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Opportunity for re-evaluation of answer sheets cannot be claimed by candidates in any examination as a right: The High Court of Delhi

In the absence of any specific provision conferring such a right upon an examinee to have her answer books revaluated, no such direction can be issued by the Court. Admittedly, there is no provision in the Rules of the CBSE that provides for revaluation by an independent examiner and therefore, such a prayer cannot be acceded to. The aforesaid judgment was given by the High Court of Delhi by a single judge bench comprising Justice Prateek Jalan in the case of Shreem Mittal v. Central Board of Secondary Education (CBSE) [W.P.(C) 7183/2020 & CM APPLs. 24289/2020, 27918/2020] on 31ST May 2021. The facts of the case are as follows. The petitioner was a student of Bal Bharti Public School, Pitampura, Delhi. She appeared for the Senior Secondary School (Class XII) Examinations, 2020 conducted by the CBSE. The petitioner was not satisfied with the marks awarded to her in Political Science (Subject Code: 028) and Economics (Subject Code: 030). She therefore invoked the procedure for “(I) Verification of Marks, (II) Obtaining Photocopy of the Evaluated Answer Book(s), (III) Re-evaluation of Marks”, as set out in the Circular. She therefore expected an increase of 7 marks in her examinations but after revaluation, the total increase amounted to only 2 marks which was far below her expectations. The submissions of the counsel are as follows. Learned counsel for the petitioner, submitted in the course of argument that he assails the CBSE’s method for re-evaluation, as it does not provide any reasoning for addition or deduction of marks and that the process is arbitrary and discretionary, inasmuch as it does not provide for any appeal or review after the process of re-evaluation. On the other hand, Ms Seema Dolo, learned counsel for the CBSE, submitted that re-evaluation of answer scripts cannot be claimed as a right, and is always subject to the rules laid down by the examining authority. Ms. Dolo submitted that the petitioner, having invoked the modalities mentioned in the Circular, cannot now seek modification of the same.

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 7183 2020 & CM APPLs. 24289 2020 27918 2020 SHREEM MITTAL ..... Petitioner Date of decision: 31st May 2021 Through: Mr. Anshul Kumar and Mr. Parwesh Kumar Advocates. CENTRAL BOARD OF SECONDARY EDUCATION Respondent Through: Ms. Seema Dolo Advocate. HON’BLE MR. JUSTICE PRATEEK JALAN JUDGMENT The present petition concerns the process of re evaluation of answer sheets in terms of a Circular dated 14.07.2020issued by the respondent Central Board of Secondary Education “CBSE”]. The petitioner seeks general directions relating to the CBSE scheme for re evaluation of papers as well as orders relating specifically to re evaluation of her own papers. The petitioner was a student of Bal Bharti Public School Pitampura Delhi. She appeared for the Senior Secondary School Class XII) Examinations 2020 conducted by the CBSE. The CBSE W.P.(C) 7183 2020 declared the results of the examinations on 13.07.2020 wherein the petitioner had scored as follows: PRACTICAL TOTAL TOTAL 301 ENGLISH 028 POLITICAL 030 ECONOMICS 041 MATHEMATIC PRAC.500 WORK 502 HEALTH 503 GENERAL The petitioner was not satisfied with the marks awarded to her in Political Science and Economics Verification of Marks Obtaining Photocopy of the Evaluated Answer Book(s) III) Re evaluation of Marks” as set out in the Circular. After the first stage of the aforesaid procedure viz. verification of marks the petitioner sought photocopies of the answer sheets. She claims to have matched her answers with the Model Answer Key of the CBSE and discerned that as per the Answer Key there were seven W.P.(C) 7183 2020 questions where marks were erroneously not awarded to her. Therefore on 06.08.2020 she applied for re evaluation of those seven questions four in Economics and three in Political Science. It thus appears that the petitioner expected a score of 99 100 in Economics and 100 100 in Political Science. The petitioner received the result of the re evaluation vide email dated 30.08.2020 alongwith a new marks statement. After re evaluation of the answer sheets the petitioner was awarded one extra mark in each of the two subjects meaning that she achieved a mark of 96 100 in Economics and 98 100 in Political Science. Unfortunately the petitioner remains unsatisfied with her performance and has sought the intervention of this Court. The present writ petition has been filed in these circumstances with the following prayers: thereby directing “(a) Issue a writ of mandamus or any other appropriate writ order or direction Respondents to issue comprehensive plan for revaluation of the answer sheets considering the concerns of the students and which should not be discretionary arbitrary b) direct the Respondent to reevaluate the answer sheet of petitioner as per standard model specimen answer issued by the Respondent or c) direct the Respondent to give the reason that why only 1 mark each has been given to the Petitioner in her both papers for which revaluation applied and also give reasons for not given marks in 7 questions which are the concern of the Petitioner in her revaluation application W.P.(C) 7183 2020 d) Pass any other order(s) direction(s) as this Hon’ble court may deem fit and appropriate in the facts and circumstances of the present case.” The reliefs claimed thus encompass general directions regarding the scheme of re evaluation and specific directions for disclosure of reasons and further re evaluation of the petitioner’s answer sheets. Submissions of counsel 7. Mr. Anshul Kumar learned counsel for the petitioner submitted in the course of argument that the petitioner does not press for a further re evaluation of her answer sheets at this stage. However he assails the CBSE’s method for re evaluation as it does not provide any reasoning for addition or deduction of marks. He also submitted that the process is arbitrary and discretionary inasmuch as it does not provide for any appeal or review after the process of re evaluation. On the other hand Ms. Seema Dolo learned counsel for the CBSE submitted that re evaluation of answer scripts cannot be claimed as a right and is always subject to the rules laid down by the examining authority. She relied for this purpose upon the judgment of a coordinate bench of this Court in Aarushi Goyal vs. Central Board of Secondary Education8552 2017 decided on 28.02.2019] and a Division Bench judgment dated 17.07.2019 in LPA 453 2019 Paavani Gupta vs. Central Board of Secondary Education]. 9. Ms. Dolo submitted that the petitioner having invoked the modalities mentioned in the Circular cannot now seek modification of the same. She emphasised that the Circular provides three levels of checks and submitted that addition of further stages of supplying W.P.(C) 7183 2020 reasons appeal and review would render the evaluation process inconclusive. Ms. Dolo drew my attention to the contents of the affidavit filed by the CBSE in respect of the scale of the examinations conducted by it leading to the practical difficulties which would ensue if such further steps are read into the said Circular. 10. At the outset it may be noted that the scope of interference of the writ court in matters of re evaluation of examination papers is very limited. In Ran Vijay Singh & Ors. vs. State of Uttar Pradesh & Ors. 2018) 2 SCC 357 the Supreme Court considered the authorities on the point and summarised its conclusions as follows: “30. The law on the subject is therefore quite clear and we only propose few significant conclusions. They are: to highlight a 30.1. If a statute Rule or Regulation governing an examination permits the re evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right then the authority conducting the examination may permit it 30.2. If a statute Rule or Regulation governing an examination does not permit re evaluation or scrutiny of an answer sheetthen the court may permit re evaluation or scrutiny only if it is demonstrated very clearly without any “inferential process of reasoning or by a process of rationalisation” and only in rare or exceptional cases that a material error has been committed 30.3. The court should not at all re evaluate or scrutinise the answer sheets of a candidate—it has no expertise in the matter and academic matters are best left to academics W.P.(C) 7183 2020 30.4. The court should presume the correctness of the key answers and proceed on that assumption and 30.5. In the event of a doubt the benefit should go to the examination authority rather than to the candidate. 31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re evaluation of an answer sheet. If an error is committed by the examination authority the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse — exclude the suspect or offending question. 32. It is rather unfortunate that despite several decisions of this Court some of which have been discussed above there is interference by the courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and the candidates. Additionally a massive and sometimes prolonged examination exercise concludes with an air of uncertainty. While there is no doubt that candidates put in a tremendous effort in preparing for an examination it must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage but the court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities. The present appeals are a classic example of the consequence of such interference W.P.(C) 7183 2020 where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination — whether they have passed or not whether their result will be approved or disapproved by the court whether they will get admission in a college or university or not and whether they will get recruited or not. This unsatisfactory situation does not work to anybody s advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest 11. This judgment has been followed in several later judgments including Bihar Staff Selection Commission & Ors. vs. Arun Kumar & Ors. 6 SCC 362 and Vikesh Kumar Gupta & Anr. vs. State of Rajasthan & Ors.2 SCC 3097183 2020 “4. That it is submitted that Challenges objections received for scrutiny re evaluation of answer scripts are placed before the respective two Subject Experts. The objections so received are considered and examined exhaustively by the subject experts of CBSE. 5. That it is submitted that the re evaluation of answer script is carried out by the examiner other than the original examiner who had evaluated the answer script earlier by blocking the marks assigned by the original examiner. The answers attempted by the students are reassessed by the new examiner during the re evaluation process. Examiners are advised to follow the guidelines as stated in the Marking Scheme provided for each subject by the CBSE while assessing the answer scripts of the students. 6. That upon re evaluating the answer script if the subject experts are of the opinion that the answer given by the student deserves an increase of marks appropriate marks is then awarded to the student and CBSE issues revised mark sheets for that particular subject reflecting new revised marks. However if the subject experts are of the view that the answers given by the students has been assessed and justly awarded marks by the original examiner then in that case no modification in the marks is carried out.” 14. The Circular upon which the petitioner relied in order to seek re evaluation and has in fact benefited by one mark in each of the two papers does not require reasons to be given by the re evaluating examiner nor for an appeal or review. Clause III(e) of the Circular specifically excludes appeal review against the re evaluation and the Circular also expressly stipulates that the decisions of the Competent Authority thereunder shall be final. In my view there is no arbitrariness or unreasonableness in the omission of these provisions. When the process of re evaluation itself is one which may or may not W.P.(C) 7183 2020 be provided it cannot be said that candidates have to be given further chances at improving their marks. There has to be a point at which the process ends and the marks awarded to a candidate attain finality. In its counter affidavit the CBSE has pointed out the scale of the examinations conducted by it and also averred that the entire process of re evaluation is completed within a relatively short time frame so that the final results are declared in time for candidates to participate in the admissions process in institutions of higher education all over the world. To require a further process to be undertaken even after re evaluation is in these circumstances unjustifiable. 15. The matter is in fact covered to a considerable extent by the judgment of the Division Bench in Paavani Gupta cited by Ms. Dolo. The Division Bench was considering a circular issued by the CBSE in respect of the 2019 examination which appears to have been substantially similar to the Circular dated 14.07.2020. After noticing the judgment in Ran Vijay Singhthe Division Bench held as follows: “12. In the present case the correctness of evaluation of the answer sheets of the appellant has been questioned on the ground that it is not as per the marking scheme. 14. In Ran Vijay Singh the Supreme Court has quoted with approval its earlier decision in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth reported as 1984) 4 SCC 27 wherein it was observed as follows: “12. The principles of natural justice cannot be extended beyond reasonable and rational limits W.P.(C) 7183 2020 and cannot be carried to such absurd lengths as to make it necessary that candidates who have taken a public examination should be allowed to participate in the process of evaluation of their performances or to verify the correctness of the evaluation made by the examiners by themselves conducting an inspection of the answer books and determining whether there has been a proper and fair valuation of the answers by the examiners. xxx xxx xxx 29. The Court should be extremely reluctant to substitute its own views as to what is wise prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day to day working of educational institutions and the departments controlling them.”..It is equally important that the Court should also as far as possible avoid any decision or interpretation of a statutory provision rule or bye law which would bring the system the result of rendering unworkable in practice.” 15. Thus it is apparent that in the absence of any specific provision conferring such a right upon an examinee to have her answer books revaluated no such direction can be issued by the Court. Admittedly there is no provision in the Rules of the respondent CBSE that provides for revaluation by an independent examiner and therefore such a prayer cannot be acceded to. Taking a pragmatic view too if independent examiners are permitted to be introduced into the system at the instance of a dissatisfied candidate it would be unsettling the established system of examination. It is not as if an examinee is left remediless if she is dissatisfied with the declared results. She has the option of approaching the respondent CBSE W.P.(C) 7183 2020 as per the modalities prescribed. In the present case the appellant had in fact exhausted her remedies as per the modalities prescribed by the respondent CBSE for re valuation. 16. In Salil Maheshwari Vs. The High Court of Delhi reported as MANU DE 2085 2014 a co ordinate Bench of this Court held as under : “20. In matters of judicial review which involve examination of academic content and award of marks the previous rulings of the Supreme Court and other authorities have cautioned a circumspect approach leaving evaluation of merits to the expertise of academics. However if the approach complained of falls within the traditional parameters of judicial review i.e. illegality irregularity non consideration of material facts or consideration of extraneous considerations or lack of bona fides in the decision making process as contrasted with the decision itself the action or decision can be corrected in judicial review. The last category is where the decision is so manifestly and patently erroneous that no reasonable person similarly circumstanced could have taken it the court would intervene.” emphasis added) 17. In the instant case as noted above a procedure for evaluation has been prescribed by the respondent CBSE and in the absence of any fact disclosing any bias malafides non consideration of the relevant factors etc. no ground for interference in judicial review is made out. 18. The appellant may be unhappy that she could not achieve the scores she had expected but that itself would not be a ground for the Court to interfere. It has rightly been observed by the learned Single Judge that there is no glaring error apparent on the face of the record and W.P.(C) 7183 2020 the appellant has failed to make out a case for the relief 16. A claim for further re evaluation after one round of re evaluation had already been undertaken was also rejected by a coordinate bench of this Court by a judgment dated 09.02.2018 in W.P.(C) 8552 2017 review whereof was declined by the judgment dated 28.02.2019 relied upon by Ms. Dolo. In the light of the principles laid down in the aforesaid authorities it is generally beyond the remit of the Court to enter into an independent evaluation of a candidate’s answers. However it is placed on record that Mr. Kumar drew my attention to the answer given by the petitioner to Question 10 of the Economics paper in support of his contention that the petitioner has been denied marks even for questions which she answered in accordance with the Model Answers provided by the CBSE. In response Ms. Dolo states upon instructions that this is the very answer for which the petitioner was awarded an extra mark upon re evaluation of her Economics paper. In the aforesaid circumstances the petitioner has not made out a case for grant of relief in this petition. The petition is consequently PRATEEK JALAN J. MAY 31 2021 W.P.(C) 7183 2020

What constitutes inherent power under Section 482 Cr.P.C. has not been laid down as the Code is silent on this issue.: Meghalaya High Court

The High Court has got ample power to exercise its inherent jurisdiction when it comes to righting a wrong for securing ends of justice and also to prevent abuse of the process of the Court as held by the High Court of Meghalaya through the learned bench led by Hon’ble Mr. Justice W. Diengdoh in the case of Shri Kitbok Rymbai Vs. State of Meghalaya & 3 Ors. (Crl.Petn. No. 1 of 2020). The brief facts of the case are that on 29.05.2015, an FIR was lodged before the Officer in-Charge Ummulong Police Out Post by the Respondents No. 3 and 4 herein as complainants to the effect that the Petitioner herein as headman of Khliehtyrshi village has issued residential and birth certificates to the residents which is highly illegal and in disobedience to the order of the High Court of Meghalaya dated 10.12.2014 passed in WP(C) No. 363 of 2014. On being opposed by the said Respondents, the Petitioner has threatened to hurt and defame them. In the said FIR, the Respondent No. 3 has further alleged that the Petitioner has threatened her when she met him near her house and had objected to his illegal claim over the land of Respondent No. 4 herein. Again, on 25.05.2015, the Petitioner has again threatened to hurt the Respondents No. 3 & 4 after they opposed his illegal intention to claim the land of Respondent No. 4. By misusing his powers as headman, he has threatened and used abusive language against Respondents No. 3 & 4. The FIR was registered as Jowai P.S Case No. 127(6) 2015 under Section 188/506 IPC and on investigation being launched and completed, the charge sheet was filed before the court and at the stage of consideration of charges after hearing the parties, the said impugned order was passed. After the perusal of the facts and arguments, the Hon’ble Court held, “By citing the case of Sanjay Kumar Rai v. State of Uttar Pradesh & Anr: 2021 SCC Online SC 367, this court is inclined to hold that an application for quashing of an order of framing of charge can be proceeded under Section 482 Cr.P.C as is the case in this present petition.In view of the above, this Court on consideration of the matter in its entirety, relying on the authorities cited above, is of the opinion that the Petitioner has not been able to convince this Court that the impugned order suffers from any legal vice and as such, the same is sustained, the instant petition is hereby rejected.”

Serial No. 01 Regular List HIGH COURT OF MEGHALAYA AT SHILLONG Crl.Petn. No. 20 Date of Decision: 01.12.2021 Shri Kitbok Rymbai Vs. State of Meghalaya & 3 Ors. Hon’ble Mr. Justice W. Diengdoh Judge For the Petitioner Appellant(s) For the Respondent(s) i) Whether approved for reporting in Law journals etc.: Ms. A.D. Syiem Adv. Mr. K. S. Kynjing Sr. Adv with Mr. S. Sengupta Addl. Sr. PPMr. T.T. Diengdoh Sr. Adv. with Mr. C.C.T. Sangma Advii) Whether approved for publication in press: Vide order dated 28.06.2019 passed in GR Case No. 1215 the learned Magistrate First Class Subordinate District Council Court Jowai after hearing the accused person therein who is the Petitioner herein and after calling upon him to answer to the charges under Section 188 506 IPC for offences said to have been committed by him has passed the impugned order whereby the learned court has found that no case can be made out under Section 188 IPC however the charges under Section 506 IPC is made out against him to which charges have been framed against him accordingly. The Petitioner accused being aggrieved by the said order mentioned above has approached this Court by way of this application under Section 482 Cr.P.C with a prayer to set aside and quash the same. Facts as could be ascertained on the petition in hand including the annexures therein is that on 29.05.2015 an FIR was lodged before the Officer in Charge Ummulong Police Out Post by the Respondents No. 3 and 4 herein as complainants to the effect that the Petitioner herein as headman of Khliehtyrshi village has issued residential and birth certificates to the residents which is highly illegal and in disobedience to the order of the High Court of Meghalaya dated 10.12.2014 passed in WP(C) No. 3614. On being opposed by the said Respondents the Petitioner has threatened to hurt and defame them. In the said FIR the Respondent No. 3 has further alleged that the Petitioner has threatened her on 11.05.2015 when she met him near her house and had objected to his illegal claim over the land of Respondent No. 4 herein. Again on 25.05.2015 the Petitioner has again threatened to hurt the Respondents No. 3 & 4 after they opposed his illegal intention to claim the land of Respondent No. 4. By misusing his powers as headman he has threatened and used abusive language against Respondents No. 3 & 4. The FIR was registered as Jowai P.S Case No. 127(6) 2015 under Section 188 506 IPC and on investigation being launched and completed the charge sheet was filed before the court and at the stage of consideration of charges after hearing the parties the said impugned order was passed. Heard Mr. K.S. Kynjing learned Sr. counsel assisted by Ms. A.D. Syiem learned counsel who has submitted that a perusal of the FIR and the statement of the Complainants who are the only witnesses in the case what can be seen is that the complaint was filed as there is a land dispute involving the land of the Respondent No. 4 and the Petitioner regarding a road which passes through her land. The complaint alleging criminal intimidation by the Petitioner by way of threatening against the Respondents No. 3 and 4 cannot be substantiated as there is no threat of any kind and no evidence in this regard was forthcoming and as such the ingredients of Section 506 IPC are not found in the allegations. Therefore even if the matter travelled further before the Trial Court it is clear that the matter will not end in conviction and as such the Petitioner accused person may be discharged. In this connection the learned Sr. counsel has cited the case of Hari Kishen Sharma v State & Anr in Crl. M.C. 692 2014 para 22 wherein the Hon’ble Delhi High Court considering a case on similar nature involving Section 506 IPC has vide order dated 24.09.2018 allowed an application under Section 482 Cr.P.C and has quashed the proceedings before the Trial Court. Also heard Mr. T.T. Diengdoh learned Sr. counsel assisted by Mr. C.C.T. Sangma learned counsel who has firstly led this Court to the prayer made in this application and has submitted that the Petitioner has made a prayer for setting aside and quashing the impugned order dated 28.06.2019 as well as all subsequent proceedings in GR. Case No. 1215. However the said impugned order can be assailed by way of an appeal before the Court of the Judge District Council Court and Section 482 Cr.P.C. says that if there is an alternative remedy then the party should take recourse to that remedy. It is further submitted that Section 482 Cr. P.C. should be used sparingly by the courts. It is again submitted that under Section 482 Cr.P.C the court is not to go into the evidence. Rightly or wrongly the Petitioner has been charged and it is only after the trial of the case can the innocence or guilt of the Petitioner be established. 8. Mr. S. Sengupta learned Addl. Sr. PP appearing for the State Respondents No. 1 and 2 has submitted that at this stage it would be proper that evidence be led and argument advanced and if the prosecution has no case then the Petitioner will be discharged. Before adverting to the contentions of the parties it would be prudent to look into the scope and ambit of Section 482 Cr.P.C. as to whether the Petitioner is entitled to approach this Court under this provision under the facts and circumstances of the case relatable to the impugned order dated 10. Section 482 reads as follows: “482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” 11. Section 482 of the Cr.P.C was added by the Code of Criminal Procedure Amendment) Act 1923 though it is an exact reproduction of Section 561 A of the Code of Criminal Procedure 1898. This is a provision where the inherent power of the High Court can be applied to render complete justice in cases where illegality is apparent. The inherent powers of the High Court under this section include power to quash FIR or criminal proceeding pending before the High Court or any court subordinate to it to secure ends of justice prevent abuse of the power of the court and to make such orders as may be necessary to give effect to any order under the Code. In the case of Narinder Singh v. State of Punjab:6 SCC 466 the Hon’ble Supreme Court has laid down the principles by which the High Court may be guided to give effect to this provision that is i) Prevent abuse of the power of the Court ii) Secure the ends of justice and iii) To give effect to an order under the Code. 13. What constitutes inherent power has not been laid down as the Code is silent on this issue. However what can be culled out from various judicial pronouncements particularly that of the Apex Court will give an idea as to how this provision has been resorted to under the facts and circumstances of a particular case. In the case of State of Karnataka v. M. Devendrappa & Anr:3 SCC 89 a three Judge Bench of the Hon’ble Supreme Court while elucidating on the exercise of power of the High Court under Section 482 has opined at paragraph 6 that: “6. …...No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts therefore have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of High Courts. All Courts whether civil or criminal possess in the absence of any express provision as inherent in their constitution all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit concedere videtur et id sine quo res ipsae esse non potest9 SCC 460 the Hon’ble Supreme Court citing the case of at paragraph 23 has observed as follows: “23. In Janata Dal v. H.S. Chowdhary & Ors.4 SCC 305] the Court while referring to the inherent powers to make orders as may be necessary for the ends of justice clarified that such power has to be exercised in appropriate cases ex debito justitiae i.e. to do real and substantial justice for administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the powers requires a great caution in its exercise. The High Court as the highest court exercising criminal jurisdiction in a State has inherent powers to make any order for the purposes of securing the ends of justice. Being an extra ordinary power it will however not be pressed in aid except for remedying a flagrant abuse by a subordinate court of its powers.” 16. What emerges from the observation above is that the High Court has got ample power to exercise its inherent jurisdiction when it comes to righting a wrong for securing ends of justice and also to prevent abuse of the process of the Court. 17. Coming to the case in hand a prayer was made for quashing of criminal proceedings before the Court of the learned Judicial Magistrate First Class Sub Ordinate District Council Court Jowai after charges have been framed against the Petitioner herein particularly Section 506 IPC. 18. The main thrust of the contention of the Petitioner is that the same was an abuse of the process of the court inasmuch as there is a land dispute between the parties for which the Complainants in a bid to harass the Petitioner has made unsustainable allegations against him. Though the charge sheet was filed indicating that prima facie case under Section 188 506 IPC on being petitioned by the Petitioner the learned Trial Court had found it fit to drop the charge under Section 188 IPC however the charge u s 506 IPC was maintained relying on the statement of the Complainant. This Court is therefore called upon to address the issue of abuse of the process of the court and to direct that the charges framed and proceedings thereto be set aside and quashed. 19. The learned counsel for the Respondents No. 3 and 4 has raised the issue of maintainability of this application contending that the Petitioner has recourse to other remedies available in the Code of Criminal Procedure by way of appeal before the Judge District Council Court and as such this petition is liable to be rejected. 20. The counsel for the State Respondent has only endorsed the submission made by the learned Sr. counsel for the Respondents No. 3 and 4. 21. This Court will first answer to the contention raised by the Respondents No. 3 and 4 by citing the judgment of the Hon’ble Supreme Court in the case of Sanjay Kumar Rai v. State of Uttar Pradesh & Anr: 2021 SCC Online SC 367 at paragraph 16 of the same while reiterating the law laid down in the case of Madhu Limaye4 SCC 551) has held as follows: “16. The correct position of law as laid down in Madhu Limaye supra) thus is that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397of CrPC. That apart this Court in the above cited cases has unequivocally acknowledged that the High Court is imbued with inherent jurisdiction to prevent abuse of process or to secure ends of justice having regard to the facts and circumstance of individual cases. As a caveat it may be stated that the High Court while exercising its afore stated jurisdiction ought to be circumspect. The discretion vested in the High Court is to be invoked carefully and judiciously for effective and timely administration of criminal justice system. This Court nonetheless does not recommend a complete hands off approach. Albeit there should be interference may be in exceptional cases failing which there is likelihood of serious prejudice to the rights of a citizen. For example when the contents of a complaint or the other purported material on record is a brazen attempt to persecute an innocent person it becomes imperative upon the Court to prevent the abuse of process of law.” In view of the authority quoted above this Court is inclined to hold that an application for quashing of an order of framing of charge can be proceeded under Section 482 Cr.P.C as is the case in this present petition. 23. The next issue to be decided is whether the impugned order can be sustained or whether it was an outcome of an abuse of the process of the court. On perusal of the said impugned order it can be seen that the learned Magistrate First Class has heard the parties and on the basis of the submissions made including the written argument filed have come to a finding that the charge under Section 188 IPC could not be sustained however on the basis of the statement of the Complainant as mentioned above the charge under Section 506 IPC was sustained. This Court finds that the order is a reasoned one and cannot be faulted. The fact as admitted by the Petitioner himself that there was an ongoing dispute between the parties relating to a land dispute would only lend credence to the fact that there could have been exchange of words or threats which can only be substantiated by due process of law in a proper trial on evidence being led. This Court is not at liberty to go into the details of the evidence as to whether the case would end up in conviction or acquittal. 24. The Hon’ble High Court in the case of Amit Kapoor(supra) at paragraph 27 relevant excepts of which are extract herein are held as follows: “27.1 Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings particularly the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases the High Court should be loath to interfere at the threshold to throttle the prosecution in exercise of its inherent powers. 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and if so is it an abuse of the process of court leading to injustice. 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 27.15. Coupled with any or all of the above where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone the courts 25. The case of Hari Kishen Sharma(supra) relied upon by the learned Sr. counsel for the Petitioner is distinguishable from the facts and circumstances of this case inasmuch as in the said case the Hon’ble Delhi High Court has dealt with a matter which was at the stage of filing of charge sheet whereas in the case where the Petitioner is the accused the impugned order clearly indicates that after considering the argument of the parties before charge the Court has found it fit that charges under Section 506 IPC be framed which was accordingly done so and the matter to proceed for recording of evidence. In reiteration of the observations made above this Court will not interfere with the process at this particular juncture. In view of the above this Court on consideration of the matter in its entirety relying on the authorities cited above is of the opinion that the Petitioner has not been able to convince this Court that the impugned order suffers from any legal vice and as such the same is sustained the instant petition is hereby rejected. 27. Matter disposed of. No cost. 28. Registry is directed to send back the case record. Judge “N. Swer Stenographer”

Refusal to follow the direction given by the High Court would result in denial of justice and it would be destructive of basic principles in the administration of justice: Chhattisgarh High Court

If a law has been established by the High Court, it is binding and must be followed by all authorities involved, whether executive or judicial. The refusal to implement the High Court’s instruction would constitute a denial of justice and a violation of essential norms in the administration of justice. The judgment was passed by The High Court of Chhattisgarh in the case of State of Chhattisgarh V. Ram Swarup Rajwade [W.P.(Cr.)No.540/2020] by a Single Bench consisting of Hon’ble Shri Justice Sanjay K. Agrawal. The applicants have sought modification principally on the ground that the State of Chhattisgarh has notified the Special Court specified under Section 14 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, under Section 28 of the Protection of Children from Sexual Offences Act, 2012 for the trial of offences under the provisions of the POCSO Act. Learned Counsel for the applicants, would submit singular contention that since the State Government by notification notified the special court under the SC-ST Act, 1989 for the trial of offences under the POCSO Act committed against children belonging to SC / ST category and the notification could not be brought to the notice of this Court at the time of hearing of the writ petition and passing of the order, therefore, notification is incorporated in the operative paragraph of the order passed for the sake of convenience and the MCC be allowed partly. Learned Counsel for the respondent, would submit that the law declared by the highest authority of the State i.e. this Court is binding on all the authorities or tribunals under its superintendence and the State cannot ignore it, as it has not been challenged in the higher forum and the State is bound by the order and the order passed by this Court in the writ petition is binding. She would further submit that the effect of the order of the High Court in the writ petition cannot be diluted on the garb of modification of the order passed in the said writ petition. Relying on the Supreme Court in the matter of Anil Ratan Sarkar and others v. State of W.B. and others has held that administrative instructions/circulars/orders cannot infiltrate onto an arena covered by judicial orders. It was observed by their Lordships as under: – “Administrative ipse dixit cannot infiltrate on to an arena which stands covered by judicial orders.”

HIGH COURT OF CHHATTISGARH BILASPUR Misc. Civil Case No.1321 Arising out of order dated 10 12 2020 passed in W.P.(Cr.)No.540 2020 Order reserved on: 19 3 2021 Order delivered on: 7 6 2021 1. State of Chhattisgarh Through the Principal Secretary Government of Chhattisgarh Department of Law & Legislative Affairs Mantralaya Mahanadi Bhawan Nava Raipur Atal Nagar District Raipur2. Station Incharge Police Station AJK Korba District KorbaAct 1989as the Special Court under Section 28 of the Protection of Children from Sexual Offences Act 2012for trial of offences under the provisions of the POCSO Act therefore the order dated 10 12 2020 be modified and the notification dated 12 9 2014 be also incorporated in the order dated 10 12 2020 passed by this Court. In other words the stand of the State Government Applicants would be that the order of this Court would govern only the parties to lis that is Ram Swarup Rajwade v. State of Chhattisgarh and another and as far as other cases on the point involved the notification dated 12 9 2014 would hold the field. 1 2021 Cri.L.J. 1787 : AIR 2021 OnLine Chhattisgarh 133 4. Mr. Sunil Otwani learned Additional Advocate General appearing on behalf of the applicants State would submit singular contention that since the State Government by notification dated 12 9 2014 vide Annexure A 2 notified the special court under the SC ST Act 1989 for trial of offences under the POCSO Act committed against children belonging to SC ST category and the notification dated 12 9 2014 could not be brought to the notice of this Court at the time of hearing of the writ petition and passing of the order dated 10 12 2020 therefore notification dated 12 9 2014 be incorporated mentioned in the operative paragraph of the order dated 10 12 2020 passed in W.P.(Cr No.540 2020 for the sake of convenience and the MCC be allowed partly. 5. Ms. Aditi Singhvi learned counsel appearing on behalf of the non applicant would submit that the law declared by the highest authority of the State i.e. this Court is binding on all the authorities or tribunals under its superintendence and the State cannot ignore it as it has not been challenged in the higher forum and the State is bound by the order and the order passed by this Court in the writ petition is binding. She would further submit that the effect of the order of the High Court in the writ petition cannot be diluted on the garb of modification of the order passed in the said writ petition. She would bring to the notice of the Court the decision of the Supreme Court in the matter of Alarming Rise in the Number of Reported Child Rape Incidents In Re2 in which the Supreme Court has directed that if there are more than 100 cases under the POCSO Act in a district of the country an exclusive Designated Special Court will be set up which will try no other offence except those under the POCSO Act. She would also cite the further decision of the Supreme Court in the matter of Alarming Rise in the Number of Reported Child Rape Incidents In Re3 in which the Supreme Court taking into account the affidavit filed by the State Government has clearly declined the State of Chhattisgarh to permit the exclusive POCSO Courts to take up other matters. She would also cite another decision of the Supreme Court in the matter of East India Commercial Co. Ltd. Calcutta and another v. Collector of Customs Calcutta4 to buttress her submission that the law declared by the High Court in the State is binding on the authorities or tribunals under its superintendence and they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding. She would also submit that any proceeding contrary to the law laid down by the court would be invalid and the proceedings themselves would be without jurisdiction. Lastly she would submit that since the decision rendered by this Court deciding the issue has a precedential value as in principle it has already been decided by this Court that if the accused is charged for the offence punishable under the SC ST Act of 1989 and the POSCO Act simultaneously in one series of incident at the same trial then in that situation the 27 SCC 87 37 SCC 112 4 AIR 1962 SC 1893 designated Special Court constituted and notified under the POCSO Act will have exclusive jurisdiction to try the offence(s under both the Acts as such no case is made out for modifying the order dated 10 12 2020 and the application for modification deserves to be dismissed 6. I have heard learned counsel for the parties and considered the rival submissions made herein above and also went through the record with utmost circumspection. 7. This Court in the above stated writ petition formulated following question for consideration in paragraph 1 of the order dated 10 12 2020 which states as under: “If an accused has been charged for offence punishable under the penal provisions of the Scheduled Castes and the Scheduled Tribes Prevention of Atrocities) Act 1989and simultaneously also charged under the penal provisions of the Protection of Children from Sexual Offences Act 2012at the same trial whether in that situation the special court constituted under the SC ST Act of 1989 or the special court constituted under the POCSO Act would have jurisdiction to try the offences punishable under both the Acts ” Thereafter after hearing counsel for the parties and upon perusal of record this Court answered the question so posed for consideration in paragraph 45 as under: “If the accused is charged for the offences punishable under the SC ST Act of 1989 and the POCSO Act simultaneously in one series of incident at the same trial then in that situation the designated Special Court constituted and notified under the POCSO Act will have exclusive jurisdiction to try the offence(s under both the Acts.” 8. In sum and substance this Court in principle held that if the accused is charged for offence punishable under the SC ST Act of 1989 and also under the POCSO Act simultaneously in one series of incident at the same trial then in that situation the Special Court constituted and notified under the POCSO Act will have exclusive jurisdiction to try the offence(s) under both the Acts and consequently issued the consequential direction for transfer of case from the Court of Special Judge Korba to the file of Special CourtKorbafor hearing and disposal in accordance with law. 9. A careful perusal of the order passed by this Court on 10 12 2020 which is sought to be modified by the applicant State on the strength of notification dated 12 9 2014 would show that this Court has clearly held that an accused who is simultaneously charged with the offences punishable under the SC ST Act of 1989 and the POSCO Act in one series of incident at the same trial should be tried under both the Legislations exclusively in the designated Special Court constituted and notified under the POSCO Act. The said conclusion was reached by this Court after a detailed examination of the relevant provisions of the SC ST Act of 1989 and the POSCO Act also in the light of the provisions contained in the Code of Criminal Procedure 1973 This exercise included a review of judicial precedents not only from the Hon’ble Supreme Court regarding similar issues under the enactments that are pari materia with the SC ST Act of 1989 and the POSCO Act but also from the other High Courts that had an occasion to deal with the same question of law answered by this Court by order dated 10 12 2020. As such the order passed by this Court dated 10 12 2020 is a “declaration of law” enunciation of law qua the Court which has the exclusive jurisdiction to try an accused who is simultaneously charged with the offences punishable under the SC ST Act of 1989 and the POSCO Act in one series of incident at the same trial Therefore the order of this Court dated 10 12 2020 making declaration qua the “appropriate court” is in fact “judgment in rem” rendered by the writ constitutional court in exercise of jurisdiction under Article 226 of the Constitution of India which is binding on all executive judicial authorities within the State including the State of Chhattisgarh despite the existence of notification dated 12 9 2014 issued by the State Government. 10. Their Lordships of the Supreme Court in the matter of Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju and others5 followed in the matter of Deccan Paper Mills Co. Ltd. v. Regency Mahavir Properties and others6 described the judgment in rem as under: “10. … A judgment in rem is defined in English law as “an adjudication pronounced by the status some particular subject matter by a tribunal having competent authority for that purpose”. ...” 51 SCC 212 6 AIR 2020 SC 4047 11. The Supreme Court in the matter of Dr Subramanian Swamy v State of Tamil Nadu and others7 clearly held that the decision of High Court making declaration of status of Dikshitars is a judgment in rem. It was observed by their Lordships as under: “49. The declaration that “Dikshitars are religious denomination or section thereof” is in fact a declaration of their status and making such declaration is in fact a judgment in rem.” 12. The Constitution Bench of the Supreme Court in the matter of Ambika Prasad Mishra v. State of U.P. and others8 has held that every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent. It was pertinently observed by their Lordships as under: It is wise to remember that fatal flaws silenced by earlier rulings cannot survive after death because a decision does not lose its authority “merely because it was badly argued inadequately considered and fallaciously reasoned”. ...” 13. The above stated principle of law qua the binding effect of judgment was followed by the Supreme Court in the matter of State of Gujarat and another v. Justice R.A. Mehtaand others9. It was observed as under: “Binding effect of the judgment There can be no dispute with respect to the settled legal proposition that a judgment of this Court is binding particularly when the same is that of a coordinate Bench or of a larger Bench. It is also correct to state that even if a particular issue has not been agitated earlier or a particular argument was advanced but was not considered the said judgment 75 SCC 75 83 SCC 719 93 SCC 1 does not lose its binding effect provided that the point with reference to which an argument is subsequently advanced has actually been decided. The decision therefore would not lose its authority “merely because it was badly argued inadequately considered or fallaciously reasoned”. The case must be considered taking note of the ratio decidendi of the same i.e. the general reasons or the general grounds upon which the decision of the court is based or on the test or abstract from the specific peculiarities of the particular case which finally gives rise to the decision. 2 SCC 267 : AIR 1970 SC 1002 124 SCC 638 : AIR 2002 SC 1598 131 SCC 347 would be that merely because other similarly situated persons did not approach the Court earlier they are not to be treated differently. 22.2. However this principle is subject to well recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence sitters and laches and delays and or the acquiescence would be a valid ground to dismiss their claim. 22.3. However this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons Such a situation can occur when the subject matter of the decision touches upon the policy matters like scheme of regularisation and the like was followed with approval subsequently by the Supreme 146 SCC 721 Court in the matter of Shoeline v. Commissioner of Service Tax 16. Likewise the Supreme Court in the matter of Anil Ratan Sarkar and others v. State of W.B. and others16 has clearly held that administrative instructions circulars orders cannot infiltrate on to an arena covered by judicial orders. It was observed by their Lordships as under: “Administrative ipse dixit cannot infiltrate on to an arena which stands covered by judicial orders.” 17. Reverting to the facts of the case in the light of the above stated legal analysis and after noticing the principle of law laid down by their Lordships of the Supreme Court qua the binding effect of declaration of law it is quite vivid that this Court by its order dated 10 12 2020 clearly reasoned and declared that “POCSO Court” constituted and notified under the POCSO Act would be the “appropriate court” which has the jurisdiction to exclusively try an accused who is simultaneously charged with offences punishable under both the Acts namely the SC ST Act of 1989 and the POCSO Act in one series of incident at the same trial Such declaration of law is in fact “judgment in rem” binding to all and consequently the applicant State Government cannot now say and contend that it will only bind the case in hand that is Ram Swarup Rajwade v. State of Chhattisgarh and another which was subject matter of W.P.(Cr.)No.540 2020 decided on 1516 SCC 104 165 SCC 327 10 12 2020 and other cases will be governed by its notification dated 12 9 2014. 18. Even otherwise it is well settled that the law declared by the High Court is binding to all the executive and judicial authorities within the State. Article 141 of the Constitution of India provides that law declared by the Supreme Court shall be binding on all courts within the territory of India. As such whenever a law is laid down by the Supreme Court it is binding on all the authorities whether executive or judicial in the entire country. Article 141 of the Constitution of India further provides that all the authorities civil or judicial shall act in aid of the Supreme Court. The supremacy of law laid down by the Supreme Court with the binding effects admits no exception. The judgments of the Supreme Court are decisional between litigants but declaratory for the nation. 19. Though there is no specific provision in the Constitution corresponding to Article 141 of the Constitution of India making the decision law declared by the High Court binding on all the subordinate courts and the tribunals the State however it is implicit in the power of superintendence to High Courts vested in Article 227 of the Constitution of India and by judicial pronouncement of their Lordships of the Supreme Court. In East India Commercial Co. Ltd. their Lordships of the Supreme Court have in uncertain terms held that the law declared by the highest court in the State is binding on 17 AIR 1980 SC 286 authorities or tribunals under its superintendence and they cannot ignore it and the launching of proceedings contrary to the law laid down by the High Court would be invalid and the proceedings themselves would be without jurisdiction. It was observed as under: “(29) As we have already noticed in the earlier stage of the judgment the notice issued by the respondent charges the appellants thus: One of the conditions of the special licence was that the goods would be utilized for consumption as raw material or accessories in the factory of the licence holder and no part thereof would be sold to other parties but in contravention of that condition the appellants sold a part of the goods imported to a third party and as the goods had been caused to be issued by fraudulent misrepresentation they were liable to be confiscated under Section 167(8 of the Sea Customs Act." Section 167(8) of the Sea Customs Act can be invoked only if an order issued under Section 3 of the Act was infringed during the course of the import or export. The Division Bench of the High Court held that a contravention of a condition imposed by a licence issued under the Act is not an offence under Section 5 of the Act. This raises the question whether an administrative tribunal can ignore the law declared by the highest court in the State and initiate proceedings in direct violation of the law so declared. Under Article 215 every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Under Article 226 it has a plenary power to issue orders or writs for the enforcement of the fundamental rights and for any other purpose to any person or authority including in appropriate cases any Government within its territorial jurisdiction. Under Article 227 it has jurisdiction over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. It would be anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by that court and start proceedings in direct violation of it. If a tribunal can do so all the subordinate courts can equally do so for there is no specific provision just like in the case of Supreme Court making the law declared by the High Court binding on subordinate courts. It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working otherwise there would be confusion in the administration of law and respect for law would irretrievably suffer. We therefore hold that the law declared by the highest court in the State is binding on authorities or tribunals under its superintendence and that they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding. If that be so the notice issued by the authority signifying the launching of proceedings contrary to the law laid down by the High Court would be invalid and the proceedings themselves would be 20. The principle of law laid down by their Lordships of the Supreme Court in East India Commercial Co. Ltd. was followed with approval in the matter Shri Baradakanta Mishra Ex Commissioner of Endowments v. Shri Bhimsen Dixit18. In that case Shri Baradakanta Mishra the appellant therein was a member of the Superior Judicial Service of the State of Orissa being judicial officer and also worked earlier as officiating District Judge. He was at the relevant point of time functioning as Commissioner of Hindu Religious Endowments Orissa created under the Orissa Hindu Religious Endowments Act and he did not follow the previous decision of the High Court. He was found guilty of contempt by the High Court and when in the appeal preferred by him against the order holding him guilty of contempt while dismissing the appeal their Lordships of the Supreme Court have held that under Article 227 of the Constitution of India the High Court is vested with the power of superintendence over the courts and tribunals in the State. It was further held that 181 SCC 446 acting as a quasi judicial authority under the Orissa Hindu Religious Endowments Act the appellant judicial officer was subject to the superintendence of the High Court and accordingly the decisions of the High Court were binding on him he could not get away from them by adducing factually wrong and illegitimate reasons. Their Lordships pertinently observed as “15. The conduct of the appellant in not following the previous decision of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is therefore comprehended by the principles underlying the law of Contempt. The analogy of the inferior court s disobedience to the specific order of a superior court also suggests that his conduct falls within the purview of the law of Contempt Just as the disobedience to a specific order of the Court undermines the authority and dignity of the court in a particular case similarly the deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed while the former conduct has repercussions on an individual case and on a limited number of persons the latter conduct has a much wider and more disastrous impact It is calculated not only to undermine the constitutional authority and respect of the High Court generally but is also likely to subvert the Rule of Law and engender harassing uncertainty and confusion administration of law in 16. Our view that a deliberate and a mala fide conduct of not following the binding precedent of the High Court is contumacious does not unduly enlarge the domain of the contempt. It would not stifle a bona fide act of distinguishing the binding precedent even though it may turn out to be mistaken.” 21. Similarly in the matter of Bishnu Ram Borah and another v Parag Saikia and others19 the Supreme Court deprecated the action of the Board of Revenue in refusing to carry out the 192 SCC 488 directions of the High Court and relying upon its earlier decision in the matter of Bhopal Sugar Industries Ltd. v. Income tax Officer Bhopal20 clearly held that refusal on the part of the Board of Revenue to follow the direction given by the High Court was in effect a denial of justice and is furthermore destructive of one of the basic principles in the administration of justice. It was observed by their Lordships as under: It is regrettable that the Board of Revenue failed to realize that like any other subordinate tribunal it was subject to the writ jurisdiction of the High Court under Article 226 of the Constitution. Just as the judgments and orders of the Supreme Court have to be faithfully obeyed and carried out throughout the territory of India under Article 142 of the Constitution so should be the judgments and orders of the High Court by all inferior courts and tribunals subject to their supervisory jurisdiction within the State under Articles 226 and 227 of the Constitution. We cannot but deprecate the action of the Board of Revenue in refusing to carry out the directions of the High Court. In Bhopal Sugar Industries Limited v. Income tax Officer Bhopal17 the Income tax Officer had virtually refused to carry out the clear and unambiguous directions with a superior tribunal like the Income tax Appellate Tribunal had given to him by its final order in exercise of its appellate powers in respect of an order of assessment made by him. The Court held that such refusal was in effect a denial of justice and is furthermore destructive of one of the basic principles in the administration of justice based as it is in this country on the hierarchy of courts. The facts of the present case are more or less similar and we would have allowed the matter to rest at that but unfortunately the judgment of the High Court directing the issue of a writ of mandamus for the grant of a liquor licence to respondents 1 and 2 cannot be 22. Similarly the Allahabad High Court in the matter of Ramlalan v State of U.P.21 clearly held that if a law has been laid down by the High Court of the State it is binding and ought to be complied 20 AIR 1961 SC 182 21 2012(111) AIC 372 by all the authorities concerned whether it is executive or judicial and further it has been reiterated by the Allahabad High Court in the matter of Smt. Shanu Sharma v. State of U.P. and others22 23. Reverting to the facts of the case it is quite vivid that enunciation of law by this Court in Ram Swarup Rajwadeholding that the special court constituted and notified under the provisions of the POCSO Act will have the exclusive jurisdiction to try an accused who is simultaneously charged with the offences punishable under the provisions of the SC ST Act of 1989 and the offences punishable under the provisions of the POCSO Act in one series of incident at the same trial is a “declaration of law” by this Court under Article 226 of the Constitution of India and is in fact would have the effect of “judgment in rem” and “judgment of the court was not judgment in personam” confining its applicability to the parties to the lis. Therefore the contention of the State Government that the order dated 10 12 2020 will only be applicable to the parties to writ petition and other cases will be governed by the notification dated 12 9 2014 deserves to be rejected for the above stated reasons including that administrative notification cannot infiltrate on to an area covered by judicial order as held by their Lordships of the Supreme Court in Anil Ratan SarkarAWC 2410 held by the Supreme Court in East India Commercial Co. Ltd supra). In Shri Baradakanta Mishra Ex Commissioner of Endowment while dismissing the petition filed by Shri Mishra a judicial officer who was acting at relevant time as Commissioner Hindu Religious Endowments Orissa who was found guilty for not following the decision of High Court it was held that it is calculated to create confusion in the administration of law and it will undermine the respect for law laid down by the High Court and impair the constitutional authority of the High Court and it is likely to subvert the rule of law and engender harassing uncertainty and confusion in the administration of justice. In Bhopal Sugar Industries Ltd. their Lordships of the Supreme Court have held that refusal by the Board of Revenue to follow the direction given by the High Court would result in denial of justice and it would be destructive of basic principles in the administration of justice 25. In my considered opinion the law laid down by their Lordships of the Supreme Court in the above stated judgments namely East India Commercial Co. Ltd.Shri Baradakanta Mishra Ex Commissioner of Endowment supra) and Bhopal Sugar Industries Ltd.squarely apply to the facts of the present case and the principle of law enunciated by this Court by order dated 10 12 2020 would be effect of the judgment in rem and binds all the judicial and executive authorities of the State including State. The modification prayed for would not only create confusion and chaos in the administration of law but it would erode the respect for law laid down by this Courtand diminish the constitutional authority of this Courtand would also have the effect of lowering the majesty which the High Court commands. 26. As a fallout and consequence of the above stated legal analysis I am unable to accede to the request of the State Government to modify the order dated 10 12 2020 confining its applicability to the parties before the writ Court for the reasons ascribed herein above and as such the application for modification deserves to be and is hereby accordingly rejected being merit less and substance less as well. No order as to cost(s). Sd Sanjay K. Agrawal

Natural guardians are not required to furnish security under rule 422 of the Bombay High Court (OS) Rules: Bombay High Court

The father and mother are natural guardians and in the matter of interpretation of a statute, the mother’s right to act as the natural guardian does not stand obliterated. Thus, no question arises of having to furnish surety or of justifying surety for the share of a birth minor since she is already charged in law with the guardianship of the property of the minor and is bound to safeguard it. This remarkable judgment was recently passed by Bombay High Court in the matter of MADHURI DATTPRASAD PITRE V GOVIND JANARDAN PITRE [T.P. No. 1701/ 2017] by Honourable Justice G.S. Patel. This is a testamentary petition and the Bench is discussing an issue pertaining to an estate in which a minor has an interest and like other recent applications, the applicant is the mother and natural guardian of the minor. The registry has taken an objection demanding that the mother must justify the surety for the entirety of the minor’s share in the estate. The objection, in this case, is based on Rule 422 of the Bombay High Court (Original Side) Rules. In this petition, the court deliberated upon Rule 422 and tried to correctly interpret it so that an objection with the Registry is not raised again and again. The facts of the case are, Madhuri seeks a Succession Certificate in respect of her father-in-law Govind who has two sons, Dattprasad and Mahesh and Dattprasad was Madhuri’s husband. Soham is their son and Dattaprasad died in 2013 and Mahesh, died in 2012. Madhuri as the only surviving member of the family along with her minor son, Soham Dattprasad Pitre and bought this petition when he was 14 years old. Court noted that “Rule 422 itself provides that surety may be dispensed by the Court in a proper case and for reasons recorded in writing. But Rule 422(a)(ii) is often completely misread, misinterpreted, and misunderstood. Letters of Administration or Succession Certificate is exempted if the applicant is a guardian of the property of minor appointed by the Court.” Thus, the Court asserted that in the application the Rule 422(a)(ii) has no application to a birth parent who is the natural guardian of a minor since when an application for Letters of Administration or Succession Certificate is made by a parent no question of having to furnish surety arises neither does that person has to justify this surety for the share of a birth minor in an estate. The parent-applicant is already charged in law with the guardianship of the property of the minor and is bound to safeguard it. The Court observed that “Appointed by the Court” qualifies to “guardian” not “property”. This is, therefore, clearly a reference to someone other than the surviving birth parent and natural guardian. No mother or father needs to be ‘appointed’ a guardian of the property of the minor by an order of the Court. That parent is the natural guardian at law of the property of the minor. There are situations where persons other than parents may need to be appointed as guardians of the property of the minor. That requires an order of the Court. If neither of the parents and natural guardians is alive, then, possibly, a minor’s uncle, aunt, adult sibling, or grandparent may need to be appointed as the natural guardian of the property of the minor. This is also true if the person is a step-parent. Such an appointment will be done by an order of the Court on an application for that purpose.”

on 07 04 2021 on 14 04 34 TP1701 2017.DOCAtul REPORTABLEIN THE HIGH COURT OF JUDICATURE AT BOMBAYTESTAMENTARY AND INTESTATE JURISDICTIONTESTAMENTARY PETITION NO. 1701 OF 2017Madhuri Dattprasad Pitre…PetitionerAndGovind Janardan Pitre…DeceasedMr Ashish Raghuvanshi i b Ram U Singh for the Petitioner.Mrs Chandan Bhatt Company Registrar in charge of the Testamentary Department is present.CORAM:G.S. PATEL J(Through Video Conferencing)DATED:6th April 2021PC:1.Heard through video conferencing.2.This is the fourth or ffth such matter that has come before me in the last two weeks on an objection taken by the Registry. In each case there is an estate in which a minor has an interest and the applicant either for Letters of Administration or a Succession Certifcate is the mother and natural guardian of the minor. In every such case the Registry has taken an objection demanding that the mother must justify the surety for the entirety of the minor’s share Page th April 2021 on 07 04 2021 on 14 04 34 TP1701 2017.DOCin the estate. The objection is apparently based on Rule 422 of the Bombay High CourtRules.3.In every single matter I have dispensed with the requirement of surety. I will proceed to do precisely that in this matter too. 4.But I do believe it is now time that Rule 422 be correctly interpreted so that this objection is not taken again and again. Rule 422 of the Original Sides Rules reads thus:“R. 422. Surety to be justifed in certain cases.—In the following cases the surety to the bond shall justify for the whole amount of the estate—(i)When the person to whom the grant is made has taken out letters of administration or succession certifcate for the use and beneft of a lunatic or person of unsound mind unless he be a committee of the estate of such lunatic appointed by the Court and has given security.(ii)When the person to whom the grant is made has taken out letters of administration or succession certifcate for the use and beneft of a minor unless he be a guardian of the property of such minor appointed by the Court and has given security.(iii)When the person to whom the grant of letters of administration or succession certifcate is made is entitled to a life interest.(b)When the person to whom the grant of letters of administration or succession certifcate is made is entitled to a portion only of the estate the surety to the bond shall Page th April 2021 on 07 04 2021 on 14 04 34 TP1701 2017.DOCjustify for the whole estate less the share of the grantee and of such sharers as shall consent in writing thereto.(c)In all other case the surety may be a common surety. The Judge in Chambers may however in a proper case and for reasons to be recorded in writing dispense with the justifcation of surety.”(Emphasis added)5.Clearly this Rule itself provides that surety may be dispensed by the Court in a proper case and for reasons recorded in writing.6.My reasons in every single case have been more or less the same. The petitioners have been widowed at an uncommonly early age in their lives — 50 years old or younger. They have been left with the duty of caring for minor children some of them very young and in at least two cases they had aged parents or in laws to take look after as well. In every single case these widowed petitioners have had no independent income. They have no means of providing the surety bond or justifying the surety for any part of the estate. To ask them to do this even from the sale proceeds of a flat which was the factual scenario in one matter means putting the petitioner to even greater hardship. In more than one order I have noted all our Rules are not meant to impede justice but to aid it. No Court of Justice can be blind sided by such a ruthless application of this or that Rule. This is precisely why sub clausegives a Court discretion. 7.But Rule 422(a)(ii) is in my view being completely misread misinterpreted and misunderstood. This is clear from the last phrase Page th April 2021 on 07 04 2021 on 14 04 34 TP1701 2017.DOCin that clause which speaks of the applicant for Letters of Administration or Succession Certifcate being exempted if he be a guardian of the property of such minor appointed by the Court. “Appointed by the Court” qualifes “guardian” not “property”. This is therefore clearly a reference to someone other than the surviving birth parent and natural guardian. No mother or father needs to be ‘appointed’ a guardian of the property of the minor by an order of the Court. That parent is the natural guardian at law of the property of the minor. There are situations where persons other than parents may need to be appointed as guardian of the property of the minor That requires an order of the Court. If neither of the parents and natural guardians are alive then possibly a minor’s uncle aunt adult sibling or grandparent may need to be appointed as the natural guardian of the property of the minor. This is also true if the person is a step parent. Such an appointment will be done by an order of the Court on an application for that purpose.8.Therefore Rule 422(a)(ii) has no application at all to a birth parent who is the natural guardian of a minor. It follows that when an application for Letters of Administration or Succession Certifcate is made by a parent and one of the heirs is the natural guardian of the Petitioner no question arises of having to furnish surety or of justifying surety for the share of a birth minor in an estate. The parent applicant is already charged in law with the guardianship of the property of the minor and is bound to safeguard it. 9.The insistence on this Rule in the case of a mother father and natural guardian and the minor is also illogical because no consent Page th April 2021 on 07 04 2021 on 14 04 34 TP1701 2017.DOCcan be obtained from the minor except through the birth parent and natural guardian in the frst place. 10.The aspect of the birth parent and natural guardian being charged with the care of the property of the minor is settled by the landmark three Judge bench decision of the Supreme Court in Githa Hariharan v Reserve Bank of India 1 though in a diferent context where the question was whether the mother could be a ‘natural guardian’ only on the father’s demise. I had occasion to refer to and follow that decision in Amrita Sanjay Achharya.2 11.In Githa Hariharan the Supreme Court considered the statutory provisions and the law regarding natural guardianship. It said:43.Turning attention on the principal contention as regards the constitutionality of the legislation in particular Section 6 of the Act of 1956 it is to be noted that the validity of a legislation is to be presumed and eforts should always be there on the part of the law courts in the matter of retention of the legislation in the statute book rather than scrapping it and it is only in the event of gross violation of constitutional sanctions that law courts would be within their jurisdiction to declare the legislative enactment to be an invalid piece of legislation and not otherwise and it is on this perspective that we may analyse the expressions used in Section 6 in a slightly more greater detail. The word “guardian” and the meaning attributed to it by the legislature under Section 4(b) of the Act cannot be said to be restrictive in any way and thus the same would mean and 12 SCC 228.2 2016 SCC OnLine Bom 7508.Page th April 2021 on 07 04 2021 on 14 04 34 TP1701 2017.DOCinclude both the father and the mother and this is more so by reason of the meaning attributed to the words as “a person having the care of the person of a minor or his property or of both his person and property …”. It is an axiomatic truth that both the mother and the father of a minor child are duty bound to take due care of the person and the property of their child and thus having due regard to the meaning attributed to the word “guardian” both the parents ought to be treated as guardians of the minor. As a matter of fact the same was the situation as regards the law prior to the codifcation by the Act of 1956. The law therefore recognised that a minor has to be in the custody of the person who can subserve his welfare in the best possible way — the interest of the child being the paramount consideration.44.The expression “natural guardian” has been defned in Section 4(c) as noticed above to mean any of the guardians as mentioned in Section 6 of the Act of 1956. This section refers to three classes of guardians viz. father mother and in the case of a married girl the husband. The father and mother therefore are natural guardians in terms of the provisions of Section 6 read with Section 4(c). Incidentally it is to be noted that in the matter of interpretation of a statute the same meaning ought to be attributed to the same word used by the statute as per the defnition section. In the event the word “guardian” in the defnition section means and implies both the parents the same meaning ought to be attributed to the word appearing in Section 6(a) and in that perspective the mother’s right to act as the guardian does not stand obliterated during the lifetime of the father and to read the same on the statute otherwise would tantamount to a violent departure from the legislative intent. Section 6(a) itself recognises that both the father and the mother ought to be treated as natural guardians and the expression “after” therefore shall have to Page th April 2021 on 07 04 2021 on 14 04 34 TP1701 2017.DOCbe read and interpreted in a manner so as not to defeat the true intent of the legislature.(Emphasis added)12.Viewed from any angle therefore there is absolutely no warrant whatsoever for seeking a justifying surety for the share of a minor when the Petition is brought by the minor’s birth parent as the natural guardian of the minor and of the property of the minor. 13.In the present case there is misfortune heaped on tragedy. The Petitioner Madhuri seeks a Succession Certifcate in respect of her father in law Govind Janardan Pitre. Govind had two sons Dattprasad and Mahesh. Dattprasad was Madhuri’s husband. They had a son Soham. Dattaprasad died in 2013. His brother Govind’s other son Mahesh died unmarried a year earlier in 2012. Their father Govind thus sufered the fate most dreaded by every parent — attending the funeral of one’s own child. Govind went through this not once but twice. Madhuri lost her husband and her brother in law. Four years or so later Govind himself died. This left Madhuri as the only surviving member of the family along with her minor son Soham Dattprasad Pitre. He was 14 years old at the time when the Petition was brought and is about 17 years old today. 14.Indeed this is another reason not to insist on the surety. If I was to simply adjourn this matter for six months I have very little doubt that Soham would readily grant his consent and the matter would then proceed to a grant. The result is the same.Page th April 2021 on 07 04 2021 on 14 04 34 TP1701 2017.DOC15.The requisition for justifying surety is without foundation in law or the Rules. It is dispensed with. The Registry will proceed accordingly.16.In all matters where a birth parent seeks such Letters of Administration or a Succession Certifcate the Registry is not entitled to demand surety justifying the birth minor’s share in the property or estate in question. Such a demand can only be made where the Petitioner is not the birth parent and natural guardian of the minor. 17.A copy of this order is to be sent to Mrs Chandan Bhatt who holds charge of the Testamentary Department for future reference as also to the Prothonotary and Senior Master.18.All concerned will act on production of an ordinary copy of this order.(G. S. PATEL J) Page th April 2021

Issue of Non-Joinder of proper parties, is not sufficient enough to dismiss an appeal: Orissa High Court

“The issue of non-joinder of parties is not a pertinent issue”, this remarkable stand was forwarded by Hon’ble Orissa High Court, in a two judge bench chaired by Hon’ble Justice Mr. S.K. Panigrahi & Hon’ble Justice Mr. Sanju Panda, where a common judgment was advanced in the Writ appeal cases of Babita Satpathy & Ors. V. State of Odisha & Ors., [W.A. NO.701 of 2019]; Dibakar Panda V. State of Odisha & anr., [W.A No.700 of 2019]; Ramakanta Nath & Ors. V. State of Odisha & ors., [W.A No.702 of 2019]; Hrusikesh Panda V. State of Odisha, [W.A No.703 of 2019]. In the present Writ Appeals, the appellants seek to challenge the Order dated 29.11.2019 passed by the learned Single Judge in W.P.(C) Nos.16711 of 2016, 22369 of 2015, 18904 of 2015 and 18768 of 2015 which were dismissed for non-joinder of proper parties without going into the merits of the case. Since common question of facts and law are involved in all these Writ Appeals, the same are heard together and disposed of by this common judgment. The appellants seek direction from the respondents/opposite parties to recast the Selection List of Sikshya Sahayaks drawn pursuant to the advertisement as per merit and engage them as Sikshya Sahayaks in all the districts and grant the consequential service benefits to them. The factual conspectus of the case revolves around issue of selection of some less meritorious candidates whereas the appellants claim to be more meritorious in comparison to other candidates to be accommodated. The grievance of the appellants herein is that they are the eligible candidates for the post of Sikshya Sahayaks and pursuant to a direction of this Court in Writ Petition (Civil) No.18720 of 2014 and some other connected matters, the Commissioner-cum-Secretary was pleased to enhance the upper age limit by three to four years for the purpose of engagement of Sikshya Sahayak. Though the present appellants were applicants in response to the advertisement published on 12.09.2014, but their candidature were rejected on the ground of their overage. After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble HC observed that, “Since there are large number of candidates for the said appointment as against large number of vacancies and the appellants do not have any grievance against the candidates who have already been appointed before the decision was taken by the State Government to enhance upper age limit from 35 to 42 years, learned counsel for the appellants submitted that it is very difficult to array all the candidates as parties and serving them by post will take long time to get the service completed which practically becomes very difficult. Hence, the issue of non-joinder of parties is not a pertinent issue. Further the appellants are not against the appointment of any candidates rather they seek appointment against the existing vacant posts.”

ORISSA HIGH COURT CUTTACK WRIT APPEAL NO.7019 WRIT APPEAL NO.7019 WRIT APPEAL NO.7019 WRIT APPEAL NO.7019 Appeals against the orders dated 29.11.2019 passed by the learned Single Judge in W.P(C) Nos.16711 of 2016 22369 of 2015 18904 of 2015 and 18768 of 2015) In W.A No.7019 Babita Satpathy & others Appellants Versus State of Odisha & Others Respondents For Appellants : M s.B.Routray(Sr.Advocate) S.K.Samal S.P.Nath S.D.Routray B.R.Pattnaik A.K.Das For Respondents : Sri D.R. Mohapatra Education Department Standing Counsel School & Mass In W.A No.7019 Dibakar Panda Versus State of Odisha & Another For Appellant : M s.B. Routray(Sr.Advocate) S.K.Samal S.P.Nath S.D.Routray B.R.Pattnaik A.K.Das For Respondents : Sri D.R. Mohapatra Standing Counsel School & Mass Education Department Appellants In W.A No.7019 Ramakanta Nath & Others State of Odisha & Others Versus Respondents For Appellants : M s.B.Routray(Sr.Advocate) S.K.Samal S.P.Nath S.D.Routray B.R.Pattnaik A.K.Das For Respondents : Sri D.R. Mohapatra Education Department Standing Counsel School & Mass In W.A No.7019 Hrusikesh Panda & Another Appellants Versus State of Odisha & Others Respondents For Appellants : M s.B.Routray(Sr.Advocate) S.K.Samal S.P.Nath S.D.Routray B.R.Pattnaik A.K.Das For Respondents : Sri D.R. Mohapatra Education Department Standing Counsel School & Mass P R E S E N T: THE HONOURABLE KUMARI JUSTICE S. PANDA AND THE HONOURABLE MR. JUSTICE S.K. PANIGRAHI Date of hearing: 01.12.2020 Date of Judgment: 23.12.2020 S.K. Panigrahi J. 1. In the present Writ Appeals the appellants seek to challenge the Order dated 29.11.2019 passed by the learned Single Judge in W.P.(C) Nos.16711 of 2016 22369 of 2015 18904 of 2015 and 18768 of 2015 which were dismissed for non joinder of proper parties without going into the merits of the case. 2. Since common question of facts and law are involved in all these Writ Appeals the same are heard together and disposed of by this common judgment. 3. The appellants seek direction from the respondents opposite parties to recast the Selection List of Sikshya Sahayaks drawn pursuant to the advertisement as per merit and engage them as Sikshya Sahayaks in all the districts and grant the consequential service benefits to 4. The appellants having required requisite qualification and being trained as well as OTET qualified persons had sought engagement to the post of Sikshya Sahayak on the basis of their Online Applications on 12.09.2014. The factual conspectus of the case revolves around issue of selection of some less meritorious candidates whereas the appellants claim to be more meritorious in comparison to other candidates to be accommodated. The resolution contending guidelines of the School and Mass Education Department for appointment of Sikshya Sahayaks which allowed the appellants to apply for the said post. 5. The short grievance of the appellants herein is that they are the eligible candidates for the post of Sikshya Sahayaks and pursuant to a direction of this Court in Writ PetitionNo.18720 of 2014 and some other connected matters the Commissioner cum Secretary was pleased to enhance the upper age limit by three to four years for the purpose of engagement of Sikshya Sahayak. Though the present appellants were applicants in response to the advertisement published on 12.09.2014 but their candidature were rejected on the ground of their overage. 6. The School and Mass Education Department though allowed the over aged eligible candidates but the cases of the appellants were rejected only due to their overage in their 3rd preference choice district. However during the course of OnLine applications since the appellants were over aged candidates i.e. more than 35 years the website did not accept OnLine applications from the appellants. Being aggrieved by such non acceptance of their OnLine applications all the appellants have approached this Court and this Court was pleased to give direction to the State Government to take a decision on the matter of fixation of overage. Pursuant to the order passed by this Court in W.P.(C) 18542 of 2014 a High Power Committee was constituted and a meeting was held under Chairmanship of Commissioner cum Secretary to Govt. S & M.E. Department for relaxation of upper age limit for engagement of Sikshya Sahayaks and by their meeting decided to enhance their overage limit from 35 years to 42 years. When such decision was taken by the High Power Committee the first and second preference choice district selections were almost over. In that context the appellants made their grievance before the School and Mass Education Department and the said Department directed the OPEPA to allow over aged candidates to participate in the selection process in their third preference districts which they have opted during On line application. 7. Since the OPEPA was conducting the selection process during the first preference selection the appellants were shown to be rejected under the heading of “Cause of Rejection” as overage and the said rejected candidates due to overage has not yet been engaged. 8. Pursuant to the letter dated 30.07.2015 the School and Mass Education Department specifically directed the OPEPA which is Nodal Agency for selection of Sikhya Sahayak on the basis of the advertisement published in the year 2014 15 and 2016 17 to accommodate all over aged eligible candidates in the third preference choice district. It has also been directed that a separate list of over aged candidates as per their third preference choice district was available in the district Log in and that list to be treated as authenticated document for third preference recruitment process. Further in the said letter it has been clearly mentioned that the candidatures of over aged candidates will be considered in their third preference choice district who have submitted their applications through OnLine subject to positive order of the Hon’ble Court. 9. Learned Single Judge has not considered the Writ Petitions filed by the appellants on merit but dismissed it solely on the ground of non joinder of the necessary parties. Since there are large number of candidates for the said appointment as against large number of vacancies and the appellants do not have any grievance against the candidates who have already been appointed before the decision was taken by the State Government to enhance upper age limit from 35 to 42 years learned counsel for the appellants submitted that it is very difficult to array all the candidates as parties and serving them by post will take long time to get the service completed which practically becomes very difficult. Hence the issue of non joinder of parties is not a pertinent issue. Further the appellants are not against the appointment of any candidates they seek appointment against the existing vacant posts. 10. The appellants’ grievance is only to accommodate them on vacant seats with the enhanced upper age limit. Mr. S.K. Samal learned counsel for the appellants submits that as per information sought under the RTI Act there are about 7062 numbers of posts of Sikshya Sahayaks which are lying vacant after the selection of Sikhya Sahayaks pursuant to the completion of recruitment process as per advertisement published in the year 2014 15. Since sufficient number of posts are lying vacant the appellants can easily be accommodated without disturbing any selected candidates. Therefore the orders passed by the learned Single Judge deserve to be quashed. 11. Learned Standing Counsel for the School and Mass Education Department submits that the appellants have filed this appeal under Clause 10 of Letter Patent’s Act read with Chapter VIII Rule 2 of the Orissa High Court Rules challenging the order dated 29.11.2016 passed by the learned Single Judge in W.P.(C) Nos.16711 of 2016 22369 of 2015 18904 of 2015 and 18768 of 2015 which were dismissed solely on the ground of non joinder of proper further submitted that the appellants’ allegation about less meritorious candidates have been vis à vis the present appellants erroneous. He has further contended that the appellants have been given opportunity to appear in fourth preference district and they were found below the cut off marks. Hence they were not engaged as Sikhya Sahayaks. 12. On perusal of the materials available on record and considering the submissions of learned counsels for both sides we set aside the orders dated 29.11.2019 passed by the learned Single Judge in W.P.(C) Nos.16711 of 2016 223615 189015 and 187615. However it is made clear that since there are unfulfilled vacancies of posts of Sikhya Sahayaks available against which the 9 appellants could be accommodated we therefore direct the respondents to accommodate these appellants against the said vacant posts as they are eligible for the said posts. 13. In the light of the above we dispose of all the Writ Appeals. No order as to cost. Sanju Panda J. I agree. ….. …. Orissa High Court Cuttack The 23rd December 2020 AKK LNB

Court allows bail to the petitioner on attempt to murder: Karnataka High Court

The criminal petition filed under section 438 of CR.P.C ( direction for grant of bail to person apprehending arrest) seeking enlargement on bail for the offence punishable under section 307 ( attempt to murder) read with section 34 of IPC ( acts done by several persons in furtherance of common intention) and sections 3 (licence for acquisition and possession of firearms and ammunition)and 26 of Arms Act ( secret contravention) by the petitioner. And the petition is allowed by the High court of Karnataka through the learned bench led by the Honorable Mr. Justice H P Sandesh in case Paramesh vs State of Karnataka (criminal petition no.319/2022) on 20th January 2022. Brief facts of the case are that when the complainant was with his friend Santhosh near his house at around 10:30 p.m, this petitioner and accused came there, but accused was having gun with him and threatened him that he would take away his life. Based on the complaint, a case has been registered against petitioner and accused . Arguments presented by the learned counsel appearing on behalf petitioner that though an allegation is made against this petitioner that this petitioner was with accused and no any overt act allegation against this petitioner and only the life threat was caused. In order to invoke Section 307 of Cr.P.C., there are no any ingredients. Hence, he may be enlarged on bail. Arguments presented by the learned high court government pleader appearing on behalf of state that accused came along with petitioner in there house, and abused the Complainant and also assaulted them. After hearing both the counsels and looking into the contents of the case and considering the records presented before the honorable court by the counsels , the court allowed the petition that the petitioner shall be released on bail but on certain grounds such as. The petitioner shall surrender himself before the Investigating Officer within ten days from the date of receipt of a certified copy of this irder and shall execute a personal bond for a sum of Rs.2,00,000/- with two sureties for the like-sum to the satisfaction of the concerned Investigating officer; The petitioner shall not indulge in hampering the investigation or tampering the prosecution witnesses; The petitioner shall co-operate with the investigating Officer to complete the investigation and he shall appear before the Investigating Officer, as and when called for; The petitioner shall not leave the jurisdiction of the Investigating Officer without prior permission till the charge sheet is filed or for a period of three months, whichever is earlier; The petitioner shall mark his attendance once in a month that is, on 30th of every month between 10.00 am and 5.00 pm., before the investigating Officer for a period of three months or till the charge sheet is filed, whichever is earlier. Click here to read the judgement

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.319 2022 … PETITIONER BETWEEN: S O PUTTEGOWDA AGED ABOUT 30 YEARS RESIDING AT KAPANIGOWDANADODDI VILLAGE UYYAMBALLI HOBLI KANAKAPURA TALUK RAMANAGAR DISTRICT 562 117. BY SRI D.R.SRIDHARA ADVOCATE) THE STATE OF KARANTAKA BY SATHANUR POLICE STATION REP. BY STATE PUBLIC PROSECUTOR HIGH COURT COMPLEX BENGALURU 560 001. BY SRI SHANKAR H.S. HCGP) … RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 438 OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN THE EVENT OF HIS ARREST IN CR.NO.212 2021 REGISTERED BY SATHNOOR POLICE STATION RAMANAGARA FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 307 R W 34 OF IPC AND SECTIONS 3 AND 25 OF INDIAN ARMS ACT. 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 438 of Cr.P.C. praying to enlarge the petitioner on bail in the event of his arrest in respect of Crime No.212 2021 registered by Sathnoor Police Station Ramanagara District for the offences punishable under Section 307 read with Section 34 of IPC and Sections 3 and 26 of Arms Act. 2. Heard learned counsel appearing petitioner and the learned High Court Government Pleader appearing for the respondent State. 3. The factual matrix of the case is that when the complainant was with his friend Santhosh near his house at around 10:30 p.m this petitioner and accused No.1 came there but accused No.1 was having gun with him and threatened him that he would take away his life. Based on the complaint a case has been registered against this petitioner and accused No.1. The learned counsel appearing for the petitioner submits that though an allegation is made against this petitioner that this petitioner was with accused No.1 and no any overt act allegation against this petitioner and only the life threat was caused. In order to invoke Section 307 of Cr.P.C. there are no any ingredients. Hence he may be enlarged on bail. Per contra the learned High Court Government Pleader appearing for the State would submit that accused No.1 came along with this petitioner abused and assaulted the complainant. Having heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the State and on perusal of the material available on record particularly the content of the complaint an only allegation is that this petitioner accompanied accused No.1. Accused No.1 was having gun with him and no overt act allegation against this petitioner. When such being the factual aspects of the case I am of the opinion that it is a fit case to exercise the discretion under Section 438 of Cr.P.C. in favour of the petitioner. In view of the discussions made above I pass the The petition is allowed. Consequently the petitioner shall be released on bail in the event of his arrest in respect of Crime No.212 2021 registered by Sathnoor Police Station Ramanagara District for the offences punishable under Section 307 read with Section 34 of IPC and Sections 3 and 26 of Arms Act subject to the following conditions: The petitioner shall surrender himself before the Investigating Officer within ten days from the date of receipt of a certified copy of this order and shall execute a personal bond for a sum of Rs.2 00 000 with two sureties for the like sum to the satisfaction of the concerned Investigating The petitioner shall not indulge in hampering the investigation or tampering the prosecution iii) The petitioner shall co operate with Investigating Officer investigation and he shall appear before the Investigating Officer as and when called for. iv) The petitioner shall not leave the jurisdiction of Investigating Officer without prior permission till the charge sheet is filed or for a period of three months whichever is earlier. v) The petitioner shall mark his attendance once in a month i.e. on 30th of every month between 10.00 am and 5.00 pm. before the Investigating Officer for a period of three months or till the charge sheet is filed whichever is earlier. Sd

Under Section 498A active involvement has to be proved beyond a reasonable doubt: Supreme court of India

From the evidence on record, it is clear that there are no external injuries apart from the ingle ante-mortem injury i.e. ligature mark around the neck, and the cause of death is shown as asphyxia. It was also submitted by the appellate that when the incident took place he was working at ICICI bank which is 40 Km away from the place of the incident. There there are only blad and vague statements are made and no evidence to prove them. Thus, the proceeding is liable to be quashed. Such an observation was made by the Hon’ble Supreme Court before Hon’ble Justice R. Subhash Reddy & Hon’ble Justice Hrishikesh Roy in the matter of Mirza Iqbal @ Golu & Anr vs State of Uttar Pradesh & Anr [CRIMINAL APPEAL NO. 1628 OF 2021]. The fact arising the present appeal was that one Rushda Nisar was married to Mirza Ismail Beg alias Amir. After the solemnization of marriage, her husband and in-laws started abusing and beating her for the fulfillment of demand of Rs. 10,00,000 and a car. Consecutively, it was alleged by the complainant that on 24.07.2018 at about 8 p.m., the accused person with a common intention beat his daughter, killed her by putting a noose around her neck, and hanged her.   The Hon’ble Supreme Court referred to the case of Geeta Mehrotra and Anr. v. State of Uttar Pradesh and Anr  (2012) 10 SCC 741 and held that in identical circumstances, this court has quashed the proceedings by observing that family members of the husband were shown as accused by making casual reference to them. In the very same judgment, it is held that a large number of family members are shown in the FIR by casually mentioning their names and the contents do not disclose their active involvement, as such, taking cognizance of the matter against them was not justified. Additionally, the Hon’ble Supreme Court held that “Having regard to the case of the appellants and the material placed on record, we are of the considered view that except vague and bald allegations against the appellants, there are no specific allegations disclosing the involvement of the appellants to prosecute them for the offenses alleged. ” Finally, the Hon’ble Supreme Court allowed the instant appeal in view of the above and quashed the impugned order of the Hon’ble High Court.

SLP(Crl.) No. 2786 of 2019 REPORTABLE IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1628 OF 20 Arising out of SLPNo.2786 OF 2019 Mirza Iqbal @ Golu & Anr. ...Appellant(s State of Uttar Pradesh & Anr ...Respondent(s JUDGMENT R. SUBHASH REDDY J. This Criminal Appeal is filed aggrieved by the order dated 10.12.2018 passed by the High Court of Judicature at Allahabad in Application No.44475 of The aforesaid application was filed before the High Court under Section 482 of Cr.P.C. for quashing the Chargesheet No.01 of 2018 dated 12.10.2018 and order of Chief Judicial Magistrate taking cognizance of the case vide order dated 22.10.2018 for the SLP(Crl.) No. 2786 of 2019 offences punishable under Sections 498 A 323 504 506 304 B of IPC and Sections 3 & 4 of the Dowry Prohibition Act 1961 in Case Crime No.01318 registered on the file of PS Kotwali The 2nd respondent complainant Shri Nisar Ullah father of the deceased Rushda Nisar has lodged a complaint on 25.07.2018 at 09:31 p.m. at PS Kotwali District Gorakhpur to the effect that his younger daughter namely Rushda Nisar was married to Mirza Ismail Beg alias Amir s o Zaki Ullah r o Mohalla Muftipur of Gorakhpur District on 25.12.2015. After the solemnization of marriage the accused persons Mirza Ismail Beg alias Amirbrother in law devar) Mirza Iqbal alias Golusister in lawHifza alias Chinki and mother in lawSammicontinuously used to demand a four wheeler vehicle and Rs.10 00 000 in cash as dowry. It is alleged that as the said demands were not met they used to beat his daughter and threatened to kill her. It is further alleged that ten days prior to the date of incident all the accused persons with a common intention had severely SLP(Crl.) No. 2786 of 2019 beaten up his daughter and threatened to kill if the demands of dowry of cash and car were not met. On being compelled he had also given an amount of Rs.2 70 000 cash from his business earning in spite of the same accused was adamant in demanding the car. On 24.07.2018 at about 8 p.m. the accused persons with a common intention beat his daughter killed her by putting a noose around her neck and hanged her. On coming to know of the incident he went along with his son from Surat and he was shocked to see his daughter in such a state. When the situation has become slightly normal he has lodged a report to take necessary action and to initiate legal proceedings against the accused. Based on the aforesaid complaint a case was registered against all the named accused including the appellants herein who are brother in law and mother in law of the deceased for the alleged offences under Sections 498 A 323 504 506 304 B of IPC and Sections 3 & 4 of the D.P. Act When the appellants have filed quash petition before the High Court it was disposed of by impugned order directing the appellants to surrender before SLP(Crl.) No. 2786 of 2019 the Court below and apply for grant of bail and the same was directed to be considered in accordance with Pursuant to the complaint crime was registered and after registration investigation was taken up and after completing the investigation final report was filed on 12.10.2018 and the same was taken cognizance by learned Chief Judicial Magistrate by order dated 22.10.2018. We have heard Ms. Vibha Datta Makhija learned Senior Counsel appearing on behalf of the appellants and Mr. Sahdev Singh learned counsel for State of Uttar Pradesh and Mohd. Asad Khan learned counsel for the respondent no.2 Complainant Learned senior counsel appearing for the appellants has contended that the 1st Appellant herein is brother in law of the deceased is working as a Cashier in ICICI Bank Khalilabad. On the date of incident i.e. on 24.07.2018 he was on duty. It is submitted that he resides at Khalilabad in view of his employment in ICICI Bank and his mother2nd Appellant Shamima Bano alias Sammi is also living SLP(Crl.) No. 2786 of 2019 with him at Khalilabad since 2017. It is submitted that even as per the case of the prosecution the incident has taken place at about 8 p.m. at Gorakhpur which is 40 kms away from Khalilabad. On the date of incident he was on duty at ICICI Bank and entered the branch at 09:49 a.m. and came out at 06:25 p.m. In spite of the same on vague and bald allegations appellants are sought to be prosecuted without any specific allegations either in complaint or in the chargesheet. It is submitted that during the pendency of investigation the appellant has filed affidavit before the Senior Superintendent of Police District Gorakhpur stating that he was in the Bank on the date of incident and requested to investigate by looking into the call details of his mobile number and also CCTV footage of the bank. It is submitted that his sister in law i.e. the deceased was under mental depression and was undergoing treatment for the same. It is submitted that in spite of such an affidavit filed by the appellants without any investigation in a casual and routine manner final report was filed with vague and omnibus allegation against the appellants. It is submitted SLP(Crl.) No. 2786 of 2019 that in absence of any specific allegations against the appellants disclosing their active involvement the learned Chief Judicial Magistrate has taken cognizance in a routine and mechanical manner. It is submitted that as there is no material or any specific allegations against the appellants accused and if they are allowed to face the trial it is nothing but abuse of the process of law. Learned counsel has submitted that it is evidently a fit case to quash the proceedings by allowing the On the other hand learned counsel appearing for 1st respondent State and 2nd respondent Complainant have submitted that in view of specific mention of the names in the complaint as well as in the chargesheet it is not a case to quash the proceedings at this stage. It is submitted that the appellants have to prove their innocence in the trial. It is submitted that all the accused were demanding dowry of Rs.10 00 000 and a car from the deceased and on 24.07.2018 with a common intention all of them caused injuries to the deceased and ultimately killed her. It is submitted that as the SLP(Crl.) No. 2786 of 2019 postmortem report clearly reveals cause of death as asphyxia there are no grounds to quash the proceedings. Further it is submitted that the quash petition filed by the sister in law of the deceased was dismissed by this Court vide order dated 10. Having heard the learned counsels on both the sides We have carefully perused impugned order other material placed on record and counter affidavits filed on behalf of 1st RespondentState as well as on behalf of 2nd Respondentcomplainant 11. The appellants are brother in law and mother in law respectively of the deceased. A perusal of the complaint filed by the 2nd respondent pursuant to which a crime was registered does not indicate any specific allegations by disclosing the involvement of the appellants. It is the specific case of the 1st appellant that he was working as a cashier in ICICI Bank at Khalilabad branch which is at about 40 kms from Gorakhpur. The alleged incident was on 24.07.2018 at about 8 p.m. When the investigation was pending the 1st appellant has filed affidavit before Senior Superintendent of Police on 08.08.2018 giving SLP(Crl.) No. 2786 of 2019 his employment details and stated that he was falsely implicated. It was his specific case that during the relevant time he was working at ICICI Bank Khalilabad branch Gorakhpur and his mother was also staying with him. The Branch Manager has endorsed his presence in the branch showing in time at 09:49 a.m and out time at 06:25 p.m. Even in the statement of 2nd respondent recorded by the police and also in the final report filed under Section 173(2) of Cr.P.C. except omnibus and vague allegations there is no specific allegation against the appellants to show their involvement for the offences alleged. This Court time and again has noticed making the family members of husband as accused by making casual reference to them in matrimonial disputes. Learned senior counsel for the appellants in support of her case placed reliance on the judgment of this Court in the case of Geeta Mehrotra and Anr. v. State of Uttar Pradesh and Anr.1. In the aforesaid case this Court in identical circumstances has quashed the proceedings by observing that family members of husband were shown as accused by making casual 1 10 SCC 741 SLP(Crl.) No. 2786 of 2019 reference to them. In the very same judgment it is held that a large number of family members are shown in the FIR by casually mentioning their names and the contents do not disclose their active involvement as such taking cognizance of the matter against them was not justified. It is further held that taking cognizance in such type of cases results in abuse of judicial process. Paras 18 and 25 of the said judgment which are relevant for the purpose of this case read as under “18. Their Lordships of the Supreme Court in Ramesh case 735] had been pleased to hold that the bald allegations made against the sister in law by the complainant appeared to suggest the anxiety of the informant to rope in as many of the husband s relatives as possible. It was held that neither the FIR nor the charge sheet furnished the legal basis for the Magistrate to take cognizance of the offences alleged against the appellants. The learned Judges were pleased to hold that looking to the allegations in the FIR and the contents of the charge sheet none of the alleged offences under Sections 498 A 406 IPC and Section 4 of the Dowry Prohibition Act were made against the married sister of the complainant s husband who was undisputedly not living with the family of the complainant s husband Their Lordships of the Supreme Court SLP(Crl.) No. 2786 of 2019 were pleased to hold that the High Court ought not to have relegated the sister in law to the ordeal of trial Accordingly the proceedings against the appellants were quashed and the appeal was allowed 25. However we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegations of overt act indicating the complicity of the members of the family named in the FIR in a given case cognizance would be unjustified but what we wish to emphasise by highlighting is that if the FIR as it stands does not disclose specific allegation against the accused more so against the co accused specially in a matter arising out of matrimonial bickering it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant wife. It is the well settled principle laid down in cases too numerous to mention that if the FIR did not disclose the commission of an offence the court would be justified in quashing the proceedings preventing the abuse of process of law Simultaneously the courts are expected to adopt a cautious approach in matters of quashing especially in cases of matrimonial disputes whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima SLP(Crl.) No. 2786 of 2019 facie discloses a case of overimplication by involving the entire family of the accused at the instance of the complainant who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.” 12. From a perusal of the complaint filed by the 2nd respondent and the final report filed by the police under Section 173(2) of Cr.P.C. We are of the view that the aforesaid judgment fully supports the case of the appellants. Even in the counter affidavits filed on behalf of respondent nos.1 and 2 it is not disputed that the 1st appellant was working in ICICI Bank at Khalilabad branch but merely stated that there was a possibility to reach Gorakhpur by 8 p.m Though there is an allegation of causing injuries there are no other external injuries noticed in the postmortem certificate except the single ante mortem injury i.e. ligature mark around the neck and the cause of death is shown as asphyxia. Having regard to the case of the appellants and the material placed on record we are of the considered view that except vague and bald allegations against the appellants there are no specific allegations disclosing the involvement of the appellants to prosecute them for SLP(Crl.) No. 2786 of 2019 the offences alleged. In view of the judgment of this Court in the case of Geeta Mehrotra and Anr.1 which squarely applies to the case of the appellants we are of the view that it is a fit case to quash the 13. For the aforesaid reasons this appeal is allowed and the impugned order dated 10.12.2018 passed in Application No.44475 of 2018 by the High Court is set aside. Consequently the chargesheet no.01 dated 12.10.2018 filed in FIR No.1318 on the file of PS Kotwali District Gorakhpur for the offences under Sections 498 A 323 504 506 304 B of IPC and Sections 3 & 4 of the D.P. Act and the consequential order dated 22.10.2018 passed by the Chief Judicial Magistrate Gorakhpur is hereby quashed. December 14 2021 J [R. Subhash Reddy [Hrishikesh Roy

Delay in issuance of Degree Certificate would not invalidate the candidature of UPSC aspirant: Delhi High Court

The Issue is whether delay in issuance of degree certificate due to COVID-19 pandemic, after the aspirant had passed the UPSC would invalidate his/her candidature. This was decided in the case of Tejaswini Khajuria v. Union of India, on December 9, 2021, by Hon’ble Mr. Justice Prateek Jalan in W.P. (C) No.  13790/2021 & CM APPL. 43514/2021. The brief facts of this case are that the petitioner applied for the Combined Defense Services Examination in the Short Service Commission Women (Non- Technical) course pursuant to an advertisement dated 05.08.2020 issued by the “UPSC”. The petitioner participated in the selection examination which was held on 24.08.2020, and secured the first rank for the course. In order to satisfy the eligibility conditions, she submitted a communication from the University dated 12.07.2021, which stated that she had passed her BDS fourth year examinations in January, 2021, and is currently undergoing 12 months of compulsory rotating paid internship. The petitioner recently came to know that joining letters dated 24.11.2021 have been issued to other candidates, and thereafter received a communication dated 26.11.2021 from the Union cancelling her candidature on the ground that she would not have completed her BDS degree until March, 2022. The counsel for respondent contended that the decision of issuing degree certificate, has to be taken by the concerned university and not by the DCI. If a university considers it appropriate on the basis of the facts and circumstances prevailing in a particular case, a candidate can be issued a degree certificate without completing the one-year internship. Further, it is submitted that this is a matter for the concerned dental college and the university to decide. Furthermore, the petitioner has not yet been awarded the BDS degree, and on the basis of the University’s communication dated 12.07.2021 to the effect that the degree would be awarded only in March, 2022. He further states that there were 17 vacancies for the course, for which 17 other candidates have since been called and are scheduled to join on 12.12.2021. The Counsel for the Petitioner contends that the award of the petitioner’s degree has been delayed due to circumstances arising out of the COVID-19 pandemic. He refers to notifications of the University whereby the examinations scheduled for August, 2020 were postponed until February-March, 2021, which led to a delay in the commencement of her internship. Further, a reference was made to the DCI’s guidelines dated 16.04.2020, which contemplate a relaxation in the tenure of internship in order to permit passing out candidates to pursue career opportunities without loss of time. The best that can be done for the petitioner is to permit her to approach the University in terms of the DCI’s guidelines, and in the event the University accepts her request, then the Union may consider her candidature in the event any of the selected candidates do not join. The rights of selected candidates, whose selection has already been confirmed, cannot be disturbed on this account. After contemplating the arguments put forth by both the parties, the court had decided that since the petitioner has secured the very first rank in the competitive examination. As such, there can be no impediment to consider her candidature if there is a vacancy, and she otherwise meets the eligibility conditions. Such consideration would not trump the superior right of any other candidate whose candidature has been rejected on the same basis. Therefore, the writ petition, along with the pending application, is disposed of.

36IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 13790 2021 & CM APPL. 43514 2021 Date of Decision: December 09 2021 TEJASWINI KHAJURIA Petitioner Through: Mr. Anand Varma with Ms. Apoorva Pandey Advocates. UNION OF INDIA & ORS. Respondents Through: Mr. Ruchir Mishra with Mr. Ramneek Mishra Advocates for R1 UOI and R 2. Major Partho Katyanan Officer In charge Legal Cell Indian Army High Court of Delhi. Mr. T. Singhdev. Ms. Michelle B Das Advocates for R 3 DCI. HON’BLE MR. JUSTICE PRATEEK JALAN JUDGMENT PRATEEK JALAN J.The proceedings in the matter have been conducted through hybrid mode13790 2021 Technical) course pursuant to an advertisement dated issued by the Union Public Service Commission “UPSC”]. She assails a decision of the respondent Nos. 1 and 2 i.e. the Union of India and the Director General of Recruitingdated 26.11.2021 by which her candidature for the said examination has been cancelled. The notice issued by the UPSC covers selection to several different courses. It is not disputed that the course in question is covered under the category of admission to the Officers Training Academy Chennai course from the respondent No. 4 Himachal Pradesh Universitywhich is the qualifying degree certificate she is required to submit. The petitioner participated in the selection examination which was held on 24.08.2020 and secured the first rank for the course. In to satisfy the eligibility conditions she submitted a communication from the University dated 12.07.2021 which stated that she had passed her BDS fourth year examinations in January 2021 and is currently undergoing 12 months of compulsory rotating paid internship. The internship commenced on 10.03.2021 and is W.P.(C) 13790 2021 likely to be completed on 09.03.2022. The petitioner recently came to know that joining letters dated 24.11.2021 have been issued to other candidates and thereafter received a communication dated 26.11.2021 from the Union cancelling her candidature on the ground that she would not have completed her BDS degree until March 2022. In this connection the impugned communication draws reference to the BDS Course Regulations 2007 issued by the respondent No. 3 Dental Council of India and amendments thereto. The present writ petition has been filed challenging this decision. 4. Mr. Anand Varma learned counsel for the petitioner submits that the award of the petitioner’s degree has been delayed due to circumstances arising out of the COVID 19 pandemic. He refers to notifications of the University whereby the examinations scheduled for August 2020 were postponed until February March 2021 which led to a delay in the commencement of her internship. 5. When the petition was first taken up for hearing on 06.12.2021 Mr. Varma drew my attention to the DCI’s guidelines dated 16.04.2020 which contemplate a relaxation in the tenure of internship in order to permit passing out candidates to pursue career opportunities without loss of time. The said guidelines were reiterated by a further notification dated 28.04.2021. In view of this submission Mr. T. Singhdev learned counsel for the DCI and Mr. Ruchir Mishra learned counsel for the Union were requested to take instructions. 6. Mr. Singhdev today submits on instructions that the guidelines issued by the DCI do contemplate the grant of a relaxation in the W.P.(C) 13790 2021 internship conditions. The decision however has to be taken by the concerned university and not by the DCI. If a university considers it appropriate on the basis of the facts and circumstances prevailing in a particular case a candidate can be issued a degree certificate without completing the one year internship. He submits that this is a matter for the concerned dental college and the university to decide. At the request of learned counsel for the Union Major Partho Katyanan Officer In charge Legal Cell Indian Army High Court of Delhi was permitted to make submissions on behalf of the Union. He submits that the impugned decision was taken on the basis that the petitioner has not yet been awarded the BDS degree and on the basis of the University’s communication dated 12.07.2021 to the effect that the degree would be awarded only in March 2022. He further states that there were 17 vacancies for the course for which 17 other candidates have since been called and are scheduled to join on 12.12.2021. Having heard learned counsel for the parties I am of the view that the decision of the Union to cancel the petitioner’s candidature cannot be termed as arbitrary or unreasonable so as to invite the interference of the writ court. The notice inviting applications states that the completion of the Bachelors degree is an eligibility condition to join the course. The certificate of the University submitted by the petitioner admittedly stipulates that her course which in the ordinary course includes the compulsory one year rotating paid internship would be completed only on 05.03.2022. W.P.(C) 13790 2021 As of today the petitioner has completed only nine months of the internship. Whether or not the University decides to waive the remaining three months of her internship and award her the degree is a matter for the University to consider. From the documents on record the petitioner does not appear to have approached the University yet for this purpose. The relevant guidelines of the DCI were originally issued on 16.04.2020 and reiterated on 28.04.2021. The petitioner has made a representation to the DCI on 26.11.2021 but that too was made after the impugned decision of the Union dated 26.11.2021. The degree has not yet been issued by the University and the question of whether she will have the requisite qualifications by exercise of the discretion conferred by the DCI’s guidelines is still undecided. In these circumstances no fault can be found with the decision of the 10. This is an unfortunate case where despite a meritorious showing in the competitive examination the petitioner has not been able to complete her qualifying degree within the stipulated cut off period. This is not for any default of the petitioner but due to the postponement of her examinations in the wake of the COVID 19 pandemic. However the writ court cannot overlook the eligibility conditions or the cut off dates to come to her aid in these circumstances. The position that courts may not ordinarily interfere with eligibility conditions is well settled and has been reiterated by the Supreme Court in University Grants Commission v. Neha Anil W.P.(C) 13790 2021 Bobde1 as well as in the recent judgment in Indian Institute of Technology Kharagpur and Others vs Soutrik Sarangi and Others2. In Indian Institute of Technology Kharagpur3 the Court held as follows: “19. The reasoning of the High Court of Criterion 5 not permitting IIT students to participate in IIT for the second time being arbitrary in the opinion of this Court is not supportable. This Court has repeatedly emphasized that in matters such as devising admissions criteria or other issues engaging academic institutions the courts’ scrutiny in judicial review has to be careful and circumspect. Unless shown to be plainly arbitrary or discriminatory the court would defer to the wisdom of administrators in academic institutions who might devise policies to curricular admission process career progression of their employees matters of discipline or other general administrative issues institution or university Basavaiah Dr.) v. Dr. H.L. Ramesh8 SCC 372. It was held for Technical in All India Council Education v. Surinder Kumar Dhawan 11 SCC this court in regard “16. The courts are neither equipped nor have the academic or technical background themselves in place of statutory professional technical bodies and take decisions in academic matters involving standards and quality of technical education. If the courts start entertaining petitions from institutions or students to permit courses of their choice either for their convenience or to alleviate hardship or to provide better opportunities or because they think that one course is equal to another without realizing 110 SCC 5192 2021 SCC OnLine SC 826 3 SupraW.P.(C) 13790 2021 the repercussions on the field of technical education in in education and general deterioration in standards of education.”4 to chaos it will The said position has also been reiterated by the Division Bench of this Court in Dr. Rajat Duhan and Others vs. AIIMS and Others5 which reads as follows: “8. There can be no two views that the respondents No. 1 2 AIIMS is running an institution of excellence and maintaining a high academic standard. Therefore it would be justified in laying down stringent conditions for admission into the institute. Providing for such high standards for admission cannot by any stretch be described as a discriminatory practice. Any eligibility criteria is bound to cause hardship to some set of students particularly if they are closer to the cut off criteria. Therefore such considerations cannot weigh with the court to dilute the standards of academic excellence prescribed by the academicians who are experts in their field. It is most unwarranted for the court to interfere with such standards particularly if it would result in their dilution.….”6 11. The position that courts should ordinarily refrain from altering cut off dates is equally well settled. Reference in this regard may be made to State of Rajasthan v. Hitendra Kumar Bhatt7 wherein the Court held as follows: “6. Looking to the clear terms of the advertisement which we have referred to above the respondent was not 5 2019 SCC OnLine Del 11437[paragraphs 8 and 9] 4 Emphasis supplied. 6 Emphasis supplied. 76 SCC 574 W.P.(C) 13790 2021 is submitted by for consideration. It respondent before us that since he has been continued and has now been confirmed we should not disturb his appointment. He has requested that his case should be considered sympathetically. The fact however remains that the appellants have taken the correct stand right from the beginning. The respondent s application was not considered and he was not called for an interview. It was on account of interim orders which were obtained by the respondent that he was given appointment and continued. He was aware that his appointment was subject to the outcome of his petition. One cannot therefore take too sympathetic a view of the situation in which the respondent finds himself. A cut off date by which all the requirements relating to qualifications have to be met cannot be ignored in an individual case. There may be other persons who would have applied had they known that the date of acquiring qualifications was flexible. They may not have applied because they did not possess the prescribed date. the requisite qualification on Relaxing the prescribed requirements in the case of one individual may therefore cause injustice to others.”8 11. Mr. Varma submits that in the light of the clarification given by Mr. Singhdev today the petitioner will approach the University immediately for waiver of the remaining period of her internship. However the contention on behalf of the Union is that it has already sent joining letters to 17 other candidates who have fulfilled the eligibility conditions as on the date stipulated. Major Katyanan states that some candidates in the reserve list have also been asked to report to the OTA. In these circumstances the best that can be done for the petitioner is to permit her to approach the University in terms of the 8 Emphasis supplied. W.P.(C) 13790 2021 DCI’s guidelines and in the event the University accepts her request then the Union may consider her candidature in the event any of the selected candidates do not join. The rights of selected candidates whose selection has already been confirmed cannot be disturbed on this account. 12. Although the University has not yet entered appearance despite advance service it is expected that the University will take an expeditious decision if the petitioner approaches it for this relief. 13. Major Katyanan submits that the candidature of several candidates has been cancelled on similar grounds. However this Court is mindful of the fact that the petitioner has secured the very first rank in the competitive examination. As such there can be no impediment to consider her candidature if there is a vacancy and she otherwise meets the eligibility conditions. Such consideration would not trump the superior right of any other candidate whose candidature has been rejected on the same basis. of with these directions. 14. The writ petition alongwith the pending application is disposed 15. The office is directed to transmit a copy of this judgment to learned counsel on record for the parties through email. PRATEEK JALAN J. DECEMBER 09 2021 W.P.(C) 13790 2021

Reassessment based on mere change of opinion is not justified : Karnataka High Court

The tax payer should not be allowed to take advantage of an oversight or mistake committed by an Assessment Officer. The High Court bench consisting of Hon’ble Chief Justice Abhay S. Okay, Hon’ble Justice R. Devadas and Hon’ble Justice Sachin Shankar Magadum postulated upon the scope of Section 142 of the Income Tac Act, 1961 in the case of Dell India Private Limited v. The Joint Commissioner of Income Tax [Writ Appeal No. 1145 of 2015 (T-IT)]. The appellants are manufacturers who sell computer hardware and other related products, provide warranty services the price of which is covered by sale price of the hardware and also provide extended or upsell warranty which goes beyond standard warranty. The appellant has adopted a “deferred revenue” system under the mercantile system of accounting. Scrutiny assessment proceedings were held in the assessment year 2009-10. The appellant claimed that that Assessing Officer examined the issue of deferred revenue and agreed with the said accounting system. However, the Joint Commissioner of Income Tax issued a notice stating that the appellant had escaped tax for the assessment year 2009-10. The appellant replied that the reasons for reopening of the assessment for the given year was based on mere change of opinion and hence, was not valid. The appellant filed a petition which was rejected and hence, the present appeal.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JANUARY 2021 THE HON’BLE MR. ABHAY S. OKA CHIEF JUSTICE THE HON’BLE MR. JUSTICE R. DEVDAS THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM WRIT APPEAL NO. 11415Dell India Private Limited Now Dell International Services India Private Limited) Divyashree Greens No.12 1 12 1A Koramangala Inner Ring Road Domlur Bangalore 560 071 Represented herein by its Tax Director Mr. Amit Gupta By Shri Percy Pardiwalla Senior counsel for Shri Suryanaryana T. Advocate) And: The Joint Commissioner of Income Tax Large Tax Payers UnitJSS Towers 100 Feet Ring Road Banashankari III Stage Bangalore 560 085 Appellant The Commissioner of Income Tax II Large Tax Payers UnitJSS Towers 100 Feet Ring Road Banashankari III Stage Bangalore 560 085 By Shri K.V. Aravind Advocate) … Respondents This Writ Appeal filed under Section 4 of the Karnataka High Court Act praying to set aside the order passed in Writ Petition No.8901 2015 dated 23rd March 2015. As per the order of Hon’ble the Chief Justice dated 5th January 2016 this Writ Appeal is ordered to be posted before the Full Bench to consider the questions of law formulated by the Division Bench by the order dated 2nd September 2015. This writ appeal having been heard on the questions referred and pronouncement of Judgment this day Chief Justice delivered the following: coming on Judgment By the order dated 2nd September 2015 a Division Bench of this Court directed that this Writ Appeal should be placed before the Chief Justice for considering the issue of referring following three questions to a larger Bench. The said three questions are as under: “1. Whether the Division Bench judgment in the case of Commissioner of Income Tax Vs Rinku Chakraborthy 242 ITR 425 lays down good law 2. Whether the judgment in the Rinku Chakraborthy supra) is per incurium in view of the fact that it relies upon the judgment of the Apex Court in the case of Kalyani Mavi & Co. Vs Commissioner of income Tax 1976 CTR 85 which has been specifically overruled by the Apex Court in the case of Indian & Eastern Newspaper Society Vs Commissioner of Income Tax110 ITR 996 3. Whether ‘reason to believe’ in the context of Section 147 of the Income Tax Act can be based on mere ‘change of opinion’ of the Assessing Officer ” By an order dated 31st October 2017 the then Chief Justice placed the Appeal before a Full Bench. The constitution of Full Bench underwent change from time to time. The reference was heard on 8th January 2021. Though the scope of adjudication is limited to decide three questions of law framed by the Division Bench and this Bench is not really concerned with the merits of the case it is necessary to make a brief reference to the facts of the case only for the purpose of understanding how the controversy arises. The appellant manufacturers and sells computer hardware and other related products. The appellant provides warranty services to the customers and the price of the standard warranty period is covered by the sale price of the computer hardware and other products. The appellant provides extended or upsell warranty which covers the period beyond the standard warranty. The appellant charges additional amount of consideration for the extended warranty provided to the customers. Though the appellant recovers the consideration for extended warranty with the price of the products along with sales tax or service tax as the case may be the revenue in connection with extended warranty is recognized and offered to Income Tax proportionately over the period of the service contract which spreads beyond the financial year in which the sale in relation to the product in respect of which extended warranty is issued is made. The appellant has adopted “deferred revenue” system under the mercantile system of accounting. Scrutiny assessment proceedings as per Sub Sectionof Section 142 of the Income Tax Act 1961were held for the Assessment Year 2009 10. According to the case of the appellant at that stage the Assessing Officer examined the issue of deferred revenue by calling for details from the appellant. According to the case of the appellant the Assessing Officer agreed with the said accounting system followed by the appellant as regards accounting of consideration for extended warranty. A notice dated 27th March 2014 under Section 148 of the said Act was issued to the appellant by the Joint Commissioner of Income Tax stating therein that he had reason to believe that the income in respect of which the appellant is assessable to tax for the Assessment Year 2009 10 has escaped assessment within the meaning of Section 147 of the said Act. By a communication dated 25th April 2014 the joint Commissioner of Income Tax communicated the reasons to the appellant for reopening the assessment for Assessment 2009 10. While Rs.31 10 85 96 000 the Assessment Year 2009 10 reduction of Rs.2 16 89 00 773 was made as smart debits deferred revenue account. It is alleged in the reasons that the said income of Rs.2 16 89 00 773 had escaped assessment for the Assessment Year 2009 10. The appellant replied to the notice under Section 148 of the said Act and objected to the reasons recorded by its reply dated 9th May 2014. It was submitted in the reply that the reasons recorded for reopening the assessment for the Assessment Year 2009 10 are based on mere change of opinion and hence cannot be termed as valid reasons. It was submitted that as the Assessing Officer has taken a different view for different Assessment Years it amounts to merely a change of opinion. The Joint Commissioner of Income Tax by a letter dated 24th February 2015 rejected the objections raised by the appellant and directed the appellant to appear for the reassessment proceedings for the Assessment Year 2009 10. Being aggrieved by the said notice under Section 148 and the rejection of preliminary objections raised by the petitioners to the said notice a writ petition was filed before the learned Single Judge. By the Judgment and order which is impugned in the present Appeal the learned Single Judge rejected the petition on the ground that there was no error in initiation of the proceedings under Section 148 of the said Act. By the judgment and order dated 2nd September 2015 by which the reference was made to the larger Bench the Division Bench found that while passing the Assessment Order for the Assessment Year 2009 10 the Assessing Officer actually considered the accounting system followed by the appellant and that the Assessing Officer had assumed that deferred amount was subjected to tax in the subsequent Assessment Year 2010 11. Ultimately the Division Bench was of the opinion that there was neither “reason to believe” for the Assessing Officer to issue the notice under Section 148 of the said Act for the Assessment Year 2009 10 nor reasons assigned by him satisfy the criteria for reopening the concluded assessment as laid down in Section 147 of the said Act. The Division Bench also observed that this is a case of mere change of opinion which will not warrant reopening of the concluded assessment for the Assessment Year 2009 10. The Division Bench relied upon the decision of a Division Bench of this Court in the case of the Commissioner of Income Tax and another v. M s. Hewlett Packard Globalsoft Pvt. Ltd.1 decided on 14th of August 2015. The said decision holds that “reason to believe” cannot be based on a mere change of opinion 1 ITA Nos.65 2014 C w 66 2014 dt.14 08 2015 on the part of the Assessing Officer. However attention of the Division Bench was invited to a decision of another Division Bench of this Court in the case of Commissioner of Income Tax and another v. Rinku Chakraborthy2. The said decision of the Division Bench was based on the decision of the Apex Court in the case of Kalyanji Mavji and Company v. C.I.T. West Bengal II3. In the said decision the Apex Court while interpreting clauseof Sub Sectionof Section 34 of the Income Tax Act 1922 held that concluded assessment can be reopened where in the original assessment the income tax has escaped assessment due to oversight inadvertence or a mistake committed by the Assessing Officer. The Division Bench thereafter referred to a subsequent decision of the Apex Court of a Bench of three Hon’ble Judges in the case of M s. Indian and Eastern Newspaper Society New Delhi v. Commissioner of Income Tax New Delhi4. In the said decision it was held that the law laid down in the case of Kalyanji Mavji and Companywas not correct. However after finding that there was a conflict between the view taken by 2242 CTR 425 31 SCC 985 44 SCC 248 two coordinate Division Benches in the cases of Hewlett Packard and Rinku Chakraborthy respectively the Division Bench referred the above quoted questions for decision of a larger Bench. 9. We have heard the submissions of the learned Senior Counsel Mr. Percy Pardiwalla for appellant assessee and the learned counsel Shri K.V. Aravind for the respondents revenue. 10. Following the gist of submissions made by Shri In the case Rinku Chakraborthy the Division Bench concluded that where an Assessing Officer erroneously fails to tax a part of the assessable income there is an income escaping assessment and accordingly the Assessing Officer has jurisdiction under Section 147 to reopen the assessment. In doing so it relied on the observations of the Apex Court in the case of Kalyanji Mavji and Companyare no longer good law in their entirety in the light of the subsequent decision of the Apex Court in the case of Indian and Eastern Newspaper Society where the Apex Court held that those particular observations in Kalyanji Mavji and Companydid not lay down the correct position of law. In the light of the observations of the Apex Court in the case of Indian and Eastern Newspaper Society it is clear that a mistake oversight or inadvertence in assessing any income would not give a power to an Assessing Officer to reopen the assessment by exercise of powers under Section 147 of the Act. That would amount to a review which is outside the scope of Section 147 of the Act. The subsequent Judgment of the Apex Court in the case of Indian and Eastern Newspaper was not brought to the notice of this Hon’ble Court in the case of Rinku Chakraborthy supra). He urged that there are specific provisions in the Act for correcting errors mistakes like the power of rectification under Section 154 of the Act and one cannot resort to Section 147 to correct errors or to review an earlier order. Further the learned Senior Counsel relied upon various other decisions in support of his submission including the decision in the case of Commissioner of Income tax Delhi v. Kelvinator of India Limited5. He would therefore submit that the first and third questions framed by the Division Bench will have to be answered in the negative and the second question will have to be answered in the affirmative. 11. The learned counsel appearing for the respondents revenue relied upon various decisions on the question of scope of interference with the proceedings under Section 148 of the said Act by a Writ Court. His submission is that the Court cannot go into the sufficiency or correctness of the material on the basis of which concluded assessment is sought to be reopened. He relied upon decisions of the Apex Court in the case of S. Narayanappa v. CIT6 and Reymond Wollen Mills Ltd. v. ITO and others7. He urged that whether reopening of the assessment is based merely on change of opinion or not is a question which depends on facts of each case. He urged that while deciding the reference this Court ought not to go into the merits of the case. 12. We have given careful consideration to the submissions. We are dealing with a reference to a larger bench where we have been called upon to decide the questions formulated by a Division 5320 ITR 561 663 ITR 2197236 ITR 0034Bench of this Court. The first two questions revolve around the issue whether the Division Bench of this Court in the case of Rinku Chakraborthyhas laid down the correct law. We must therefore refer to the decision in the case of Rinku Chakraborthy85 :102 ITR 287 SC). The Supreme Court dealing with s. 34(1)(b) of 1922 Act has held as under: “On a combined review of the decisions of this Court the following tests and principles would apply to determine the applicability of s. 34(1)(b) to the following categories of cases: 1) where the information is as to the true and correct state of the law derived from relevant judicial decisions 2) where in the original assessment the income liable to tax has escaped assessment due to oversight inadvertence or a mistake committed by the ITO. This is obviously based on the principle that the taxpayer would not be allowed to take advantage of an oversight or mistake committed by the taxing authority 3) where the information is derived from an external source of any kind. Such external source would include discovery of new and important matters or knowledge of fresh facts which were not present at the time of the original assessment 4) where the information may be obtained even from the record of the original assessment from an investigation of the materials on the record or the facts disclosed thereby or from other enquiry or research into facts or law. If these conditions are satisfied then the ITO would have complete jurisdiction to reopen the original assessment. It is obvious that where the ITO gets no subsequent information but merely proceeds to reopen the original assessment without any fresh facts or materials or without any enquiry 14 into the materials which form part of the original assessment s. 34(1)(b) would have no application.” Underlines supplied) Based on the said decision of the Apex Court this Court held that: a) Where in the original assessment the income liable to tax escapes assessment due to oversight or inadvertence or a mistake committed by Assessment Officer the jurisdiction to reopen the original assessment vests in the Assessment Officer. b) A tax payer should not be allowed to take advantage of an oversight or mistake committed by Assessment Officer. 13. Thus what is held in the case of Rinku Chakraborthy is clearly based on the decision of the Apex Court in the case of Kalyanji Mavji and Company and in particular what is held in Clausehighlighted above. In paragraph 13 of the decision of Kalyanji Mavji and Companyit was held thus: “13. On a combined review of the decisions of this Court the following tests and principles would apply to determine the applicability of Section 34(1)(b) to the following categories of cases: “(1) Where the information is as to the true and correct state of the law derived from relevant judicial decisions 2) Where in the original assessment the income liable to tax has escaped assessment due to oversight a mistake committed by the Income Tax Officer. This is obviously based on the principle that the tax payer would not be allowed to take advantage of an oversight or mistake committed by the taxing authority 3) Where the information is derived from an external source of any kind. Such external source would include discovery of new and important matters or knowledge of fresh facts which were not present at the time of the original assessment 4) Where the information may be obtained even from the record of the original assessment from an investigation of the materials on the record or the facts disclosed thereby or from other enquiry or research into facts or law.” If these conditions are satisfied then the Income Tax Officer would have complete jurisdiction to reopen the original assessment. It is obvious that where the Income Tax Officer gets no subsequent information but merely proceeds the original assessment without any fresh facts or materials or without any enquiry into the materials which form part of the original assessment Section 34(1)(b) would have no application.” Underlines supplied) In the case of M s. Indian and Eastern Newspaper Societyone of the issues which arose for consideration was whether reassessment is justified on the basis of an error found by the Assessing Officer on the reconsideration of the same material which was before him when he made the original assessment. Another issue before the Apex Court was whether a view expressed by an internal auditor of the Income Tax Department on a point of law can be regarded as an information within the meaning of Clause of Section 147 of the said Act. The Apex Court considered its several earlier decisions and in paragraph 14 of the said decision the Apex Court held thus: “14. Now in the case before us the Income Tax Officer had when he made the original assessment considered the provisions of Sections 9 and 10. Any different view taken by him afterwards on application of those provisions would amount to a change of opinion on material already considered by him. The Revenue contends that it is open to him to do so and on that basis to reopen the assessment under Section 147(b). Reliance is placed on Kalyanji Mavji & Co. v. CIT where a Bench of two learned Judges of this Court observed that a case where income had escaped assessment due “oversight inadvertence or mistake” of the Income Tax Officer must fall within Section 34(1)(b) of the Indian Income Tax Act 1922. It appears to us with respect that the proposition is stated too widely and travels farther than the statute warrants insofar as it can be said to lay down that if on reappraising the material considered by him during the original assessment the Income Tax Officer discovers that he has committed an error in consequence of which income has escaped is open to him assessment. In our opinion an error discovered on a reconsideration of the same material does not give him that power. That was the view taken by this Court in Maharaj Kumar Kamal Singh v. CIT CIT v. Raman & Co. and Bankipur Club Ltd. v. CIT and we do not believe that the law has since taken a different course. Any observations in Kalyanji Mavji & Co. v. CIT suggesting contrary do not we say with respect lay down the correct law.” Underlines supplied) 15. Hence Apex Court expressly held that the law laid down by a Bench of two Hon’ble Judges of the Apex Court in the case of Kalyanji Mavji and Companywas not correct. The Apex Court after noticing the view taken in its earlier decision in the case of Kalyanji Mavji and Companyexpressly held that an error discovered on reconsideration of the same material does not give the Income Tax Officer the power to reopen a concluded assessment. 16. At this stage we may make a useful reference to a subsequent decision of the Apex Court in the case of CIT v. Kelvinator of India LimitedAct 1987 i.e. prior to 1 4 1989 section 147 of the Act reads as under: “147. Income escaping assessment. If the Assessing Officer for reasons to be recorded by him in writing is of the opinion that any chargeable to tax has escaped assessment for any assessment year he may subject to the provisions of sections 148 to 153 assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently the course of proceedings under this section or recompute the loss or the depreciation allowance or any other allowance as the case may be for the assessment year concerned We are concerned with the provision of Section 147 as amended with effect from 1st April 1989. In paragraph 4 of the said decision the Apex Court held thus: “4. On going through the changes quoted above made to Section 147 of the Act we find that prior to the Direct Tax Laws Act 1987 reopening could be done under the above two conditions and fulfilment of the said conditions alone conferred jurisdiction on the assessing officer to make a back assessment but in Section 147 of the Actthey are given a go by and only one condition has remained viz. that where the assessing officer has reason to believe income has escaped assessment confers jurisdiction to reopen the assessment. Therefore post 1 4 1989 power to reopen is much wider. However one needs to give a schematic interpretation to the words “reason to believe” failing which we are afraid Section 147 would give arbitrary powers to the assessing officer to reopen assessments on the basis of “mere change of opinion” which cannot be per se reason to reopen. We must also keep in mind the conceptual difference between power to review and power to reassess. The assessing officer has no power to review he has the power to reassess. But reassessment has to be based on fulfilment of certain precondition and if the concept of “change of opinion” is removed as contended on behalf of the Department then in the garb of reopening the assessment review would take place. One must treat the concept of “change of opinion” as an in built test to check abuse of power by the assessing officer. Hence after 1 4 1989 assessing officer has power to reopen provided there is “tangible material” to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief. Our view gets support from the changes made to Section 147 of the Act as quoted hereinabove. Under the Direct Tax Laws Amendment) Act 1987 Parliament not only deleted the words “reason to believe” but also inserted the word “opinion” in Section 147 of the Act. However on receipt of representations from the companies against omission of the words “reason to believe” Parliament reintroduced the said expression and deleted the word “opinion” on the ground that it would vest arbitrary powers in the assessing officer. 7.2 Amendment made by the Amending Act 1989 to reintroduce the expression reason to believe section 147. A number of representations were received against the omission of the words reason to believe from section 147 and their substitution by the opinion of assessing officer. It was pointed out the meaning of expression reason to believe had been explained in a number of court rulings in the past and was well settled and its omission from section 147 would give arbitrary powers to the Assessing Officer to reopen past assessments on mere change of opinion. To allay these fears the Amending Act 1989 has again amended section 147 to reintroduce the expression has reason to believe in place of the words for reasons to be recorded by him in writing is of the opinion . Other provisions of the new section 147 however remain the same." Underlines supplied) 17. Thus what is held by the Apex Court is that when a power under Section 147 is to be exercised concept of change of opinion must be treated as an inbuilt test to check abuse of power of the Assessing Officer. Further it is held that after 1st April 1989 the Assessing Officer has power to reopen provided there is a tangible material to come to the conclusion that there is escapement of income from assessment. The Apex Court held that mere change of opinion on consideration of the same material is no ground to invoke Section 147 of the said Act. 18. As noted earlier the decision in the case of Rinku Chakraborthyis based only on what is held in Clauseof paragraph 13 of the decision in the case of Kalyanji Mavji and Companywas by a Bench of two Hon’ble Judges. Subsequently a larger Bench of three Hon’ble Judges in the case of M s. Indian and Eastern Newspaper Society supra) has clearly held that oversight inadvertence or mistake of the Assessing Officer or error discovered by him on the reconsideration of the same material does not give him power to reopen a concluded assessment. It was expressly held that the decision in the case of Kalyanji Mavji and Companyon this aspect does not lay down the correct law. The decision in the case of Rinku Chakraborthy is based solely on the decision of the Apex Court in the case of Kalyanji Mavji and Company and in particular what is held in Clause of paragraph 13. The said part is held as not a good law by a subsequent decision of the Apex Court in the case of M s. Indian and Eastern Newspaper Societythe first question will have to be answered in the negative by holding that the decision in the case of Rinku Chakraborthy does not lay down correct position law to the extent to which it follows what is held in clause of paragraph 13 of the decision of the Apex Court in the case of Kalyanji Mavji and Companyshall place this Writ Appeal before the concerned Division Bench. CHIEF JUSTICE Sd Sd Sd JUDGE

No person shall open a new private market or continue to keep open a private market unless he has obtained a license from the Village Panchayat : High Court of Kerala

No person shall open a new private market or continue to keep open a private market unless he has obtained a license from the Village Panchayat to do so. Such, license shall be got renewed by the licensee every year. The village panchayat may grant the license applied for subject to certain conditions or refuse renewal of a license if it is satisfied that such refusal is justified in public interest and same was upheld by High Court of Kerala through the learned bench led by HONOURABLE MR. JUSTICE SHAJI P.CHALY in the case of GIGI ROY vs. N.T. GEORGE on 18th March, 2022. Brief facts of the case are that a private cattle market is conducted close to the property belonging to petitioner and her sisters, without securing a license in contemplation of Section 222 of the Kerala Panchayat Raj Act, 1994 and that even Ext. P5 notice dated 24.07.2015 was issued by the Pollution Control Board to the first respondent asking him to show cause as to why action shall not be taken for violation of the conditions prescribed under the consent to operate issued by the Environmental Engineer. Learned counsel for petitioner states that neither a properly roofed or sealed cow dung pit nor a septic tank and soak pit arrangement for the collection of urine/wash water are provided. According to her, even though Ext. P4 complaint was filed before the Secretary of the Rayamangalam Grama Panchayat, Perumbavoor, Ernakulam District, the 2nd respondent, no action was initiated. Respondent has issued Ext. P6 communication dated 20.07.2015 stating that the first respondent is conducting a cattle market for the past 30 years by renewing the license successively. It is also the contention of the petitioner that a health and sanitary certificate was issued by the Health Inspector and the Medical Officer in charge of the Primary Health Centre without adequate precautions and without taking note of the action taken by the Pollution Control Board. According to the petitioner, the license that is renewed time and again by the first respondent is only a D & O license and there is no license secured by the first respondent as provided under Section 222 of the Act, 1994. The writ petition was pending before this Court for the past nearly 7 years without securing any interim orders. Court opined that a license under Section 222 of the Act, 1994 is to be secured from the Village Panchayat. The complaint filed by the petitioner was before the Secretary of the Grama Panchayat. Therefore the Panchayat alone is vested with powers to take any action, for not securing a license as per Section 222 of the Act, 1994 . The petitioner can be relegated to the Village Panchayat seeking appropriate action, if no license is secured by the 1st respondent in accordance with Section 222 of Act 1994. Therefore, the writ petition is disposed of, leaving open the liberty of the petitioner to file a suitable complaint before the Village Panchayat in contemplation of Section 222 of the Act, 1994.

W.P.(C) No. 23404 2015 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY THE 18TH DAY OF MARCH 2022 27TH PHALGUNA 1943 WP(C) NO. 23404 OF 2015 NADANKUZHY HOUSE PULLUVAZHI P.O. VIA PERUMBAVOOR PIN 683 541 SRI.PRATAP ABRAHAM VARGHESE NANGELIMALIL PULLUVAZHI VIA PERUMBAVOOR PIN 683 541 RAYAMANGALAM GRAMA PANCHAYATH RAYAMANGALAM P.O. KURUPPAMPADY PIN 683 545 REPRESENTED BY ITS SECRETARY THE ENVIRONMENTAL ENGINEER KERALA STATE POLLUTION CONTROL BOARD DISTRICT OFFICE ERNAKULAM II) 1ST FLOOR MANNA RESIDENCY M.C.ROAD PERUMBAVOOR PIN 683 542 THE MEDICAL OFFICER IN CHARGE PRIMARY HEALTH CENTRE RAYAMANGALAM PIN 683 545 R1 BY SRI.M.P.ASHOK KUMAR W.P.(C) No. 23404 2015 2 R4 SRI.JOBY JOSEPH SENIOR GOVERNMENT PLEADER R3 SRI.NAVEEN.T SC THIS WRIT PETITIONHAVING BEEN FINALLY HEARD ON 18.03.2022 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 23404 2015 3 Dated this the 4th day of March 2022 JUDGMENT This writ petition is filed by the petitioner seeking the following 1. Issue a writ of certiorari or any other appropriate writ or order quashing and setting aside Ext.P6 2. Issue a writ of mandamus or any other appropriate writ or order directing the 2nd respondent to consider and pass orders on Ext.P4 afresh 3. Hold that the first respondent cannot run the cattle market in his property without licence contemplated in Section 222 of the Kerala Panchayat Raj Act 1974. 2. According to the petitioner a private cattle market is conducted close to the property belonging to herself and her sisters without securing a licence in contemplation of Section 222 of the Kerala Panchayat Raj Act 1994and that even Ext. P5 notice dated 24.07.2015 was issued by the Pollution Control Board to the first respondent asking him to show cause as to why action shall not be taken for violation of the conditions prescribed under the consent to operate issued by the Environmental Engineer. 3. It is also pointed out therein that neither a properly roofed or sealed cow dung pit nor a septic tank and soak pit arrangement for the collection of urine wash water are provided. According to her even though Ext. P4 complaint was filed before the Secretary of the W.P.(C) No. 23404 2015 4 Rayamangalam Grama Panchayat Perumbavoor Ernakulam District the 2nd respondent no action was initiated. 4. On the other hand the 2nd respondent has issued Ext. P6 communication dated 20.07.2015 stating that the first respondent is conducting a cattle market for the past 30 years by renewing the licence successively. It is also the contention of the petitioner that a health and sanitary certificate was issued by the Health Inspector and the Medical Officer in charge of the Primary Health Centre Rayamangalam without adequate precautions and without taking note of the action taken by the Pollution Control Board. 5. According to the petitioner the licence that is renewed time and again by the first respondent is only a D & O licence and there is no licence secured by the first respondent as provided under Section 222 of the Act 1994. The writ petition was pending before this Court for the past nearly 7 years without securing any interim orders. 6. I have heard the learned counsel for the petitioner Sri. Pratap Abraham Varghese Smt. Bindu Sreekumar representing the learned counsel for the first respondent Sri. M. P. Ashok Kumar Smt. Chitra representing the learned Standing Counsel for the Pollution Control Board Sri. T. Naveen and Sri. Joby Joseph the learned Senior Government Pleader and perused the pleadings and materials on W.P.(C) No. 23404 2015 5 1994 which reads thus 7. The subject issue revolves around Section 222 of the Act “222. Licensing of private markets: No person shall open a new private market or continue to keep open a private market unless he has obtained a licence from the Village Panchayat to do so. Such licence shall be got renewed by the licensee every year 2) The village panchayat may a) grant the licence applied for subject to such conditions as it may think fit as to supervision and inspection sanitation and water supply weights and measures to be used rents and fees to be charged and such other matters as may be prescribed b) refuse renewal of a licence if it is satisfied that such refusal is justified in public interest c) at any time suspend or cancel any licence granted under clause a) for breach of any of the conditions thereof d) modify the conditions of the licence to take effect from a specified date and e) In a case where renewal of licence is refused under clauseNo market fee shall be charged in evening markets Anthichanthas) and the licence for the same shall be granted free of charge but shall be subject to such conditions as to supervision and inspection sanitation and weights and measures to be used as may be prescribed 4) when a licence granted under sub section permits the licensee to levy any fee from the private market a licence fee not exceeding one third of the gross income of the owner from the market in the preceding year shall be charged by the village Provided that in the case of a new market the licence fees shall be W.P.(C) No. 23404 2015 6 fixed by the Panchayat at rates which shall not be less than the amounts given hereunder namely: i) if the area of the market is not more than 0.1 hectare rupees two ii) if the area is more than 0.1 hectare but less than 0.2 hectare rupees four hundred iii) and if the area is more than 0.2 hectare rupees five hundred 5) The Village Panchayat or any officer duly authorised by it may close a private market which is unlicensed or the licence for which has been suspended or cancelled or which is held or kept open contrary to the provisions of this Act after prior intimation 8. On a perusal of the provision it is categoric and clear that in order to conduct a private cattle market a licence is required from the Village Panchayat itself. The case projected by the petitioner is that even though the first respondent has successfully secured renewal of the D & O licence no licence in contemplation of Section 222 of the Act 1994 is secured. 9. In my considered opinion in the absence of any counter affidavit filed by the first respondent or the Grama Panchayat I am unable to sort out the issue. That apart a licence under Section 222 of the Act 1994 is to be secured from the Village Panchayat. The complaint filed by the petitioner was before the Secretary of the Grama Panchayat. Therefore the Panchayat alone is vested with powers to take any action for not securing a licence as per Section 222 of the Act 1994 W.P.(C) No. 23404 2015 7 10. In that view of the matter I am of the considered view that the petitioner can be relegated to the Village Panchayat seeking appropriate action if no license is secured by the 1st respondent in accordance with Section 222 of Act 1994. Therefore the writ petition is disposed of leaving open the liberty of the petitioner to file a suitable complaint before the Village Panchayat in contemplation of Section 222 of the Act 1994 and if any such complaint is filed within three weeks from the date of receipt of a copy of this judgment it shall be finalised at the earliest and at any rate within a month thereafter after providing a notice of hearing to the petitioner as well as the first respondent. I make it clear that if any adverse consequences are still remaining for non compliance of the conditions contained in the consent to operate issued by the Pollution Control Board to the 2 nd respondent the Pollution Control Board is at liberty to take appropriate action in accordance with law. sd SHAJI P. CHALY JUDGE W.P.(C) No. 23404 2015 8 APPENDIX OF WP(C) 23404 2015 PETITIONER S EXHIBITS P1 : COPY OF SETTLEMENT DEED NO.588 2008 OF KURUPPAMPADY SUB REGISTRY DTD.12.2.2008 P2 : COPY OF APPLICATION DTD.8.6.2015 MADE UNDER THE RIGHT TO INFORMATION ACT BEFORE THE 1ST P3 : COPY OF REPLY DTD.10.6.2015 RECEIVED FROM THE PUBLIC INFORMATION OFFICER OF THE 1ST P4 : COPY OF COMPLAINT DTD.10.7.2015 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT P5 : COPY OF THE LETTER DTD.24.7.2015 ISSUED BY THE 3RD RESPONDENT P6 : COPY OF LETTER DTD.20.7.2015 FROM THE 2ND RESPONDENT TO THE PETITIONER P7 : COPY OF CERTIFICATE DTD.1.7.2015 ISSUED BY THE 3RD RESPONDENT RESPONDENTS EXHIBITS :NIL PS to Judge

Separability is Applicable in case it does not affect the Intention of the Transaction: National Company Law Appellate Tribunal, Principal Bench, New Delhi

Considering a group of transactions, the rule of separability as a principle which can be applied only if it does not affect the main aim and intention of the transaction and only if the objectionable part can be severed without affecting the validity of the remaining part, was considered by the NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI, before a bench consisting of Justice Ashok Bhushan, Chairperson; and Dr. Ashok Kumar Mishra, Member (Technical), in the matter of S.A.R.E Public Company Limited vs. SARE Gurugram Pvt. Ltd. and Ors. [Company Appeal (AT) (Insolvency) No. 359 of 2021], on 24.01.22. The present appeal was filed against order dated 09.03.2021 passed by National Company Law Tribunal, New Delhi, Principal bench admitting the Company Petition filed by Respondent No.2-Asset Care and Reconstruction Enterprises Ltd. under Section 7 of the Insolvency and Bankruptcy Code, 2016 (‘Code’). The appellant had filed an IA for intervention, which application was dismissed by admitting the Company Petition filed by Respondent No.2. The facts of the case are that the appellant S.A.R.E Public Company Limited is a Company existing under the laws of Cyprus. One Wafra Capital Partners L.P (Wafra) a Cayman Islands Limited Partnership having its office at New York, United States of America. In the year 2011 Wafra had invested US$ 50 million in convertible bonds issued by S.A.R.E Public and a Purchase Agreement dated 28.04.2011 was entered between Wafra and Appellant. Several other supporting/ ancillary agreements forming part of the composite transaction were also entered. SARE Gurugram Pvt. Ltd., the Corporate Debtor in order to obtain funds entered into Debenture Trust Deed, and subsequently, a Facility Agreement was also entered into pursuant to which loan facility was being advanced. On 30.06.2018 an amount of US $ 60,162,463 was due and payable by SARE Public to Wafra on account of outstanding Bonds. Due to repeated defaults of SARE Public, Wafra had exercised its right to appoint a Receiver as per the terms of the Debenture Deed dated 28.04.2011 and had appointed Mr. Augoustinos Papathomas as Receiver and Manager on all secured assets of SARE Public on 10.08.2018. Receiver issued letters to SARE Public and subsidiaries of SARE Public informing about his appointment as Receiver / Manager of SARE Public. Wafra had initiated proceedings against SARE Public before the Hon’ble Supreme Court of the State of New York, claiming a sum of USD 64,064,696 and seeking restraint order from transferring, converting, encumbering, selling, assigning, withdrawing, perfecting etc. the assets of SARE Public. Hon’ble Supreme Court of the State of New York, County of New York passed order dated 13.08.2018 granting temporary injunction as prayed for. The SARE Public through its Receiver had filed Civil Suit in the High Court of Delhi through its Receiver Mr. Augoustinos Papathomas seeking inter alia declaration that all securities such as power of attorney, Non Disposable Undertaking, charge on assets/ encumbrances/lien/ pledge of shares etc., already created or sought to be created by the companies forming part of the SARE Group in favour of KKR and Altico in furtherance of a Facility Agreement dated 14.05.2018 are non-est, null and void. On 07.01.2020, ACRE filed an Application under Section 7 of the Code against SARE Gurugram. The Adjudicating Authority vide its order dated 09.03.2021 admitted Section 7 petition filed by Respondent No.2 and rejected the Intervention Application filed by the Appellant. Aggrieved against the order dated 09.03.2021, this Appeal has been filed by SARE Public. The Tribunal, upon a thorough perusal of the facts, documents, evidence, arguments presented, and precedents cited; held that severability which takes in the rule of separability is a principle which can be applied only if it does not affect the main aim and intention of the transaction and only if the objectionable part can be severed without affecting the validity of the remaining part. It noted that the test therefore is whether the transaction evidenced by the particular instrument is single and indivisible, or whether it really evidences two transactions which can be severed from each other. The tribunal was, thus, of the view that the three loans which were assigned by Altico in favour of Respondent No.2 were severable and even if the Facility Agreement dated 14th May, 2018, which was sought to be given effect to be excluded from consideration, the assignment cannot be held to be illegal with regard to other two transactions that is Debenture Trust Deeds dated 04.12.2015 and 24.11.2016. There being default under the above two transactions being INR 111,55,88,511 + INR 2,73,76,59,666 as mentioned in Column 2 of Part-IV of the Section 7 Application and default being more than Rs.1 crore, the Application has rightly been admitted by the Adjudicating Authority. We, thus, are of the view that no error has been committed by the Adjudicating Authority in admitting the Section 7 Application.

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI Company Appeal(Insolvency) No. 3521 Arising out of Order dated 01 09.03.2021 passed by the Adjudicating Authority National Company Law Tribunal) New Delhi Principal Bench in Company Petition No.300(PB 2020) IN THE MATTER OF: S.A.R.E Public Company Limited through its Receiver Mr. Augoustions Papathomas Vyronos 36 Nicosia Tower Centre 8th Floor Flat Office 801 PC 1506 Nicosia Cyprus. Rep. by its Power of Attorney Holder Mr. Rajesh Panayathatta Flat No.503 Tower No.22 Paras Tierea Sector 137 Noida UP SARE Gurugram Pvt. Ltd. E 7 12 LGF Malviya Nagar Delhi 110017. Rep. by the Interim Resolution Professional Mr. Ajit Gyanchand Jain 204 Wall Street 1 Near Gujrat College Ellis Bridge Ahmedabad 380 006. Appellant Asset Care and Reconstruction Enterprises Ltd. 2nd Floor Mohan Dev Building 13 Tolstoy Marg New Delhi 110001. Respondents For Appellant: For Respondent: Ms. Pooja M. Saigal Ms. Anshul Bajaj Simrat Singh Pasay Mr. Chaitanya Pandey Advocates Mr. Bhargav K.Hemmige Advocate for R1 Mr. Arun Kathpalia Sr. Advocate Mr. Rajat Joneja Mr. Ananya Kumar Mr. Kartikeya Gupta Advocates for R2 Company Appeal(Insolvency) No. 3521 Mr. Ritin Rai Sr. Advocate Mr. Siddharth Dutta Advocate for JUDGMENT ASHOK BHUSHAN J. This Appeal has been filed against order dated 09.03.2021 passed by National Company Law Tribunal New Delhi Principal bench admitting the Company Petition No. 300(PB) 2020 filed by Respondent No.2 Asset Care and Reconstruction Enterprises Ltd. under Section 7 of the Insolvency and Bankruptcy Code 2016a Cayman Islands Limited Partnership having its office at New York United States of America. In the year 2011 Wafra had invested US$ 50 million in convertible bonds issued by S.A.R.E Public and a Purchase Agreement dated 28.04.2011 was entered between Wafra and Appellant. Several other supporting ancillary agreements forming part Company Appeal(Insolvency) No. 3521 of the composite transaction were also entered. A Share Pledge and Assignment Agreement dated 28.04.2011 was executed between Wafra and S.A.R.E Public and SARE Cypruswhereby non convertible debentures worth INR 95 crores was issued by Corporate Debtor and purchased by Altico Capital India Ltd.(A private limited Company incorporated under the provisions of Companies Act 1956 having its registered office at Bandra Mumbai Maharashtra). Another Debenture Trust Deed dated 24.11.2016 was entered whereby non convertible debentures worth INR 220 crores were issued by the Corporate Debtor and purchased by Altico. iii) A Facility Agreement dated 14.05.2018 had been executed amongst SARE GurugramKKR India Asset Finance Private Limitedand Altico in pursuant to which Company Appeal(Insolvency) No. 3521 loan facility for an amount of INR 100 crores was being advanced by KKR and Altico to SARE Gurugram. Altico was to advance INR 60 crores and KKR to INR 40 crores. Securities were created by the Company forming part of SARE Group. iv) On 30.06.2018 an amount of US $ 60 162 463 was due and payable by SARE Public to Wafra on account of outstanding Bonds. Due to repeated defaults of SARE Public Wafra had exercised its right to appoint a Receiver as per the terms of the Debenture Deed dated 28.04.2011 and had appointed Mr. Augoustinos Papathomas as Receiver and Manager on all secured assets of SARE Public on 10.08.2018. Receiver issued letters to SARE Public and subsidiaries of SARE Public informing about his appointment as Receiver Manager of SARE Public. v) Wafra had initiated proceedings against SARE Public before the Hon’ble Supreme Court of the State of New York claiming a sum of USD 64 064 696 and seeking restraint order from transferring converting encumbering selling assigning withdrawing perfecting etc. the assets of SARE Public. Hon’ble Supreme Court of the State of New York County of New York passed order dated 13.08.2018 granting temporary injunction as prayed for. The SARE Public through its Receiver had filed Civil Suit in the High Court of Delhi CSNo.11718 through its Company Appeal(Insolvency) No. 3521 Receiver Mr. Augoustinos Papathomas seeking inter alia declaration that all securities such as power of attorney Non Disposable Undertaking charge on assets encumbrances lien pledge of shares etc. already created or sought to be created by the companies forming part of the SARE Group in favour of KKR and Altico in furtherance of a Facility Agreement dated 14.05.2018 are non est null and void. In the suit Corporate Debtor SARE Gurugram was Defendant No.3 and Altico was Defendant No.17. vii) The Delhi High Court passed an interim order dated 12.10.2018 restraining Altico from giving effect to the Facility Agreement dated 14.05.2018 to the extent of taking lien charge security mortgage or pledge of any of the assets of the companies forming part of SARE Group. viii) On 23.03.2019 the Altico has assigned entire financial assistance aggregating to INR 370 Crores to Asset Care and Reconstruction Enterprises Ltd. Respondent No.2 hereinafter referred to as ‘ACRE’). As per the Assignment Agreement all the facilities advanced by Altico to SARE Gurugram have been assigned in favour of ACRE. ix) On 07.01.2020 ACRE filed an Application under Section 7 of the Code against SARE Gurugram. x) On 08.01.2020 the Delhi High Court modified the interim order dated 12.10.2018 to the extent that it permitted SARE Company Appeal(Insolvency) No. 3521 Gurugram and other Group Companies to raise further funding to complete the pending projects. Against the order of Delhi High Court dated 08.01.2020 of learned Single Judge KKR filed an FAO(OS)No.620 where Division bench vide order dated 17.07.2020 has directed the Companies forming part of the SARE Groupnot to mortgage charge or create a lien on their movable immovable assets till the next date of hearing. xi) Hon’ble Supreme Court of the State of New York vide judgment dated 25.08.2020 awarded an amount of US$ 82 388 841. xii) The Appellant herein filed an Intervention Application being I.A. No.3783 of 2020 in the Company Petition 300(PB) 2020 seeking intervention as well as dismissal of Section 7 petition. Reply to the intervention was filed by Respondent No.2. xiii) The Adjudicating Authority vide its order dated 09.03.2021 admitted Section 7 petition filed by Respondent No.2 and rejected the Intervention Application filed by the Appellant. Aggrieved against the order dated 09.03.2021 this Appeal has been filed by SARE Public. 3. We have heard Ms. Pooja M. Saigal learned Counsel for the Appellant Shri Arun Kathpalia learned Senior Counsel appearing for Respondent No.2both of them have placed their submissions with ability and clarity. Mr. Ritin Rai learned Senior Counsel appearing for Company Appeal(Insolvency) No. 3521 Intervener and Mr. Bhargav K. Memmige learned Counsel for Respondent No.1 SARE Gurugram. Learned Counsel for the Appellant challenging the impugned order stated that Adjudicating Authority committed error in entertaining the Application of Respondent No.2 under Section 7 of the Code which was filed on the strength of Assignment Agreement 23.03.2019. The Assignment dated 23.03.2019 in favour of Respondent No.2 was in violation of interim order passed by the Delhi High Court dated 12.10.2018 hence was void and unsustainable. The Assignment which was very basis of the Application filed by Respondent No.2 being invalid the Application ought not to have been entertained by the Adjudicating Authority and same deserves to be rejected. The Delhi High Court by interim order dated 12.10.2018 has specifically restrained the Alticoin suit. not to give effect to the Facility Agreement dated 14.05.2018 to the extent of taking lien charge security mortgage or pledge of any of the assets of the Company forming part of SARE Group. The Assignment by Altico in favour of Respondent No.2 dated 23.03.2019 being in teeth of interim order dated 12.10.2018 the Application ought to have been rejected. In filing the Application Respondent No.2 had colluded with Respondent No.1 which is apparent from the fact that Respondent No.1 neither filed the reply in Section 7 application nor contested the Application. Specific plea of intervening raised by the Appellant before the Adjudicating Authority which was not even considered by the Adjudicating Authority. Respondent No.2 had no locus to file and maintain Section 7 Application before the Company Appeal(Insolvency) No. 3521 Adjudicating Authority in view of the restraint order passed of the Delhi High Court of 12.10.2018. The Adjudicating Authority failed to consider the fact that Assignment Agreement does not permit severance bifurcation of the Facility. The Adjudicating Authority committed an error in taking the view that even if Facility Agreement dated 14.05.2018 is ignored there was debt under DTD1 and DTD2 hence default being admitted Section 7 Application was maintainable. The Assignment Agreement dated 23.03.2019 being not severable. The above view taken by the Adjudicating Authority is erroneous and deserves to be set aside by this Tribunal. The impugned order is non speaking order since the issues raised by the Appellant in the Intervention Application has not been appropriately considered. The Corporate Debtor a second step subsidiary of SARE Public is the recipients of funds availed from Wafra Capital Partners hence it was bound by Clause 12 of the Purchase Agreement dated 28.04.2021. Shri Arun Kathpalia learned Senior Counsel for Respondent No.2 refuting the submissions of the learned Counsel for the Appellant submits that the Appellant has no locus to challenge the order dated 09.03.2021. There is no dispute raised by the Corporate Debtor or the Appellant with respect to the debt owed by the Corporate Debtor. At the stage of proceeding under Section 7 of the Code Adjudicating Authority is only required to examine the existence of debt and whether there has been a default by the Corporate Debtor in repayment of the debt. The Corporate Debtor or other subsidiaries of SARE Public were not party to Purchase Agreement dated 28.04.2011. There were three financial debts owned by Company Appeal(Insolvency) No. 3521 the Corporate Debtor namely Debenture Trust Deed dated 04.12.2015 worth Rs.95 crores Debenture Trust Deed dated 24.11.2016 worth Rs.220 crores andFacility Agreement dated 14.05.2018 for a facility of Rs.100 crores. The Delhi High Court in its order dated 08.01.2020 has also clearly held that the Purchase Agreement between Plaintiff and Defendant No.20 Wafra was executed by Defendant Nos. 1 to 15 and there is no commitment or promise by Defendant Nos.1 to 15 of the suit. In the suit which was filed in Delhi High Court only document sought to be challenged by the Intervener was the Facility Agreement and no relief was claimed in relation to DTD1 and DTD2. The interim order dated 12.10.2018 was restricted with regard to only Facility Agreement dated 14.05.2018. In any way the order dated 12.10.2018 does not in any manner restrain the Altico from assigning its right under the Facility Agreement. There being no restraint with regard to DTD1 and DTD2 Assignment of the said loan did not suffer from any error or invalidity and admitted default being there with regard to DTD1 and DTD2 Adjudicating Authority did not commit any error in admitting Section 7 Application. For argument sake even if it is assumed that there was any restraint with regard to Facility Agreement dated 14.05.2018 other two loans remained untouched hence default at the part of Corporate Debtor was an admitted fact which could have been very well taken note on the basis of Section 7 Application. In the present case debt and default having not been disputed either by the Corporate Debtor or by the Intervener herein the Intervention Company Appeal(Insolvency) No. 3521 Application was not maintainable and has rightly been rejected by the Adjudicating Authority. Shri Ritin Rai learned Senior Counsel for Interveners submits that homebuyers are already part of the CoC and there is a Resolution Plan which is pending consideration. 7. We have considered the submissions of learned Counsel for the parties and have perused the record. 8. We need to first notice the Section 7 Application filed by Respondent No.2 and the basis given in the Application for initiating insolvency proceedings. Section 7 Application has been brought on the record by Appellant as Annexure A 2295 00 00 000 95 00 00 000 Company Appeal(Insolvency) No. 3521 The schedule of disbursement of Rs.220 crs NCDs is as follows: Date of 23 November 23 November 8 June 2018 20th March 2019 Amount of Adjustments in INR) 188 00 00 000 23 47 50 000 3 66 50 000 4 86 00 000 220 00 00 000 The schedule of disbursement of Rs.60 crores Term Loan is as follows: Date of 25 May 2018 12 June 2018 25 June 2018 30 July 2018 14 September 31 October 2018 6 November 2018 7 December 2018 29 January 2019 Amount of Adjustments in INR) 12 22 20 000 2 71 30 000 2 11 00 000 12 40 00 000 8 77 34 444 3 75 00 000 4 02 61 258 3 80 00 000 10 20 54 298 60 00 00 000 The entire debt has thereafter been assigned to the Applicant by way of Assignment Agreement dated 23 March A copy of the Assignment Agreement dated 23 March 2019 is enclosed and marked as Annexure F. Copy of the Amended and Restated Declaration of Trust dated 22 March 2019 appointing the Financial Creditor as the trustee of ACRE 81 TRUST is enclosed and marked as Annexure G.” Company Appeal(Insolvency) No. 3521 9. The above indicates that there are three independent and separate transactions by which Altico has extended financial facility loan to Corporate Debtor they are Non convertible debenture of face value of INR 95 crores issued by the Corporate Debtor and purchased by Altico on 04.12.2015 Non convertible debenture aggregating to INR 220 crores executed by Corporate Debtor and purchased by Altico dated 24.11.2016 andFacility Agreement dated 14.05. 2018 executed between Corporate Debtor in its capacity as borrower and Altico Capital India Ltd. and KKR India Asset Finance Limited for extending a Term Loan Facility for aggregating INR 100 crores out of which Rs.60 crores was to be financed by Altico. The total defaulted amount claimed in Section 7 Application is INR 462 34 02 742. The learned Counsel for the Appellant’s argument is based on the interim order dated 12.10.2018 passed by the Delhi High Court in CS No.1179 of 2018. It is useful to extract the entire order dated 12.10.2019 passed in the above suit and in I.A. No.14239 of 2018 filed by the Plaintiff under Order 39 Rule 1 and 2 CPC to the following “IA No.14239 2018 Issue notice to the defendants by ordinary process and speed post returnable for the date fixed above. This application is filed under Order 39 Rule 1 and 2 CPC seeking ex parte ad interim injunction restraining the defendants No.1 to 15 from pledging mortgaging encumbering disposing of selling or alienating any of their assets shares propertiesCompany Appeal(Insolvency) No. 3521 in any manner whatsoever without obtaining the prior written permission of the Receiver of the plaintiff. Other connected reliefs are also sought. The suit is filed seeking a decree of declaration that all the securities and documents power of attorneys non disposable undertakings charge on assets etc. sought to be created by the defendants No.1 to 15 in favour of defendants No.16 to 19 or any other person or entity pursuant to and or in furtherance of the Facility Agreement dated or any other agreement are nonest null and void. Other connected reliefs are also sought. The case of the plaintiff and the defendants No.1 to 15 form part of S.A.R.E.Group of companies which are all inter related to each other. SARE Public is the parent holding company of the entire SARE Group and the entire group is controlled by it through its controlled subsidiaries. It is stated that in the year 2011 Wafra had invested US $50 Million in convertible bonds issued by SARE Public. The said funds were to be utilised by SARE Public through its controlled subsidiaries to acquire develop and sell middle income residential projects across India. Wafra and SARE Public had also executed a secured convertible bond purchase agreement dated 28.4.2011 pursuant to which Wafra had purchased Company Appeal(Insolvency) No. 3521 SARE Public’s Series A Secured Convertible Bonds subject to terms and conditions of the purchase agreement. It is further pleaded that by virtue of Purchase Agreement SARE Group i.e. SARE Public and its subsidiaries were categorically barred from creating any lien pledge encumbrance charge and any third party right whatsoever on their respective properties until the time the bonds are outstanding. It is further pleaded that the investments were made by SARE Public in India through its controlled subsidiaries and the entire SARE Group including the Indian Subsidiaries were a part of the agreement and were governed by the terms and conditions thereof. Learned senior counsel appearing for the plaintiff has relied upon the Purchase Agreement dated 28.4.2011 Sub Clause 3 which stipulates that the Issuer SARE Group) shall use the net proceeds of the sale of the Bonds to the Purchaser to acquire develop sell middle income residential projects across India with supporting infrastructure by Controlled Subsidiaries. Reliance is also placed on clause 12 which states that so long as the Bond remains outstanding the issuer shall cause each of its Subsidiaries not to directly or indirectly create incur assume or suffer to exist any Lien upon any of its Company Appeal(Insolvency) No. 3521 property assets or revenues etc. It is also pointed out that this agreement is signed on behalf of the It is pleaded that a Facility Agreement has now been executed on 14.5.2018 by defendant No.3 SARE Gurugram Private Limited with defendants No.16 and 17 pursuant to which the loan facility vide an aggregate amount of INR 100 Crores is proposed to be advanced to defendant No.3 on security of the assets of defendant No.3 and other subsidiaries of SARE Group. It is pleaded that this arrangement which has yet not been completed is wholly contrary to the Agreement between the parties and will cause irreparable loss and injury to the WAFRA Group if the securities are allowed to be further pledged or given as lien. Plaintiff has made out a prima facie case in its favour. Defendants No.1 to 10 are restrained from creating any encumbrance charge or lien or mortgage of any of their assets shares properties to any third party till the next date of hearing. Defendants 16 and 17 are also restrained from giving effect to the Facility Agreement dated 14.5.2018 to the extent of their taking lien charge security mortgage or Company Appeal(Insolvency) No. 3521 pledge of any of the assets of defendants No.1 to 15 till the next date of hearing. Plaintiff to comply with provisions of Order 39 Rule 3 CPC within three days. A copy of the order be given dasti under signatures of the Court Master to learned counsel for the plaintiff” In the suit Defendant No.16 was the KKR India Asset Finance Pvt. Ltd. and Defendant No.17 was Altico Capital India Ltd. The interim injunction passed by the Delhi High Court against Defendant No.16 and 17 is to the following effect: “Defendants 16 and 17 are also restrained from giving effect to the Facility Agreement dated 14.5.2018 to the extent of their taking lien charge security mortgage or pledge of any of the assets of defendants No.1 to 15 till the next date of hearing.” 11. One of the submission advanced by learned Counsel for Respondent No.2 was that the above interim injunction order dated 12.10.2018 does not restrain Defendant No.17 to assign its debt. It is submitted that injunction was to restrain from giving effect to the Facility Agreement dated 14.05.2018 but there was no restraint of assignment. The tenor of the order dated 12.10.2018 is restraint to give effect to the Facility Agreement dated 14.05.2018. Any action taken in pursuance of Facility Agreement dated 14.05.2018 may be in teeth of the said injunction. The Assignment dated 23.03.2019 by Defendant No.17 in favour of ACER Respondent No.2 was also for the loan which was advanced by Facility Agreement dated Company Appeal(Insolvency) No. 3521 14.05.2018. Thus taking a broad view of the matter we are inclined to agree with the learned Counsel for the Appellant that assignment of Facility Agreement dated 14.05.2018 ought not to have been done by Defendant No.17 as per the spirit of the order dated 12.10.2018. Now the question to be answered is as to whether when loan extended by Facility Agreement dated 14.05.2018 could not have been assigned to Respondent No.2. Whether assignment of non convertible debenturesof INR 95 crores dated 04.12.2015 and INR 220 crores by non convertible debentures also could not have been assigned by Altico to Respondent No.2 and when default in pursuance of Facility Agreement dated 14.05.2018 could not have been looked into when the assignment of Facility Agreement dated 14.05.2018 was prohibited what is the consequence on the Application filed by Respondent No.2 under Section 7 of the Code 12. As noted above the Application under Section 7 in Part IV contains three separate transactions on the basis of which default was claimed. Copies of Debentures Trust Dees dated 04.12.2015 as well as 24.11.2016 were part of the Section 7 Application. The Facility Agreement dated 14.05.2018 was also filed along with Section 7 Application. Total default on the basis of the aforesaid three financial transactions were amounting to INR 462 34 02 742. On 01.10.2019 Respondent No.2 issued an acceleration cum enforcement notice to the Corporate Debtor recalling all financial assistance and declaring outstanding amount as on 16.09.2019 as due and payable. As per Section 7 sub section 4 the Adjudicating Authority has to ascertain the existence of a default from the records of the Company Appeal(Insolvency) No. 3521 information utility or on the basis of other evidence furnished by the Financial Creditor. Under Section 7 sub sectionit is mentioned when the Adjudicating Authority is satisfied that “a default has occurred and the application under sub sectionis complete …. it may by order admit such application”. The Hon’ble Supreme Court in1 SCC 407 in Innoventive Industries Limited vs. ICICI Bank and Another while considering statutory scheme under Section 7 of the Code laid down following in paragraph 29 and 30: “29. The scheme of Section 7 stands in contrast with the scheme under Section 8 where an operational creditor is on the occurrence of a default to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in Section 8(1) of the Code. Under Section 8(2) the corporate debtor can within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in sub sectionbring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings which is pre existing—i.e. before such notice or invoice was received by the corporate debtor. The moment there is existence of such a dispute the operational creditor gets out of the clutches of the Code. 30. On the other hand as we have seen in the case of a corporate debtor who commits a default of a financial debt the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is “due” i.e. payable unless Company Appeal(Insolvency) No. 3521 interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise. 13. The Adjudicating Authority has merely to see the records of information utility and other evidence produced by the Financial Creditor to satisfy itself that a default has occurred. 14. We may also now look into the Assignment Agreement dated 23.03.2019. The Assignment Agreement dated 23.03.2019 executed between Altico Capital India Ltd. and Asset Care and Reconstruction Enterprises Ltd. Respondent No.2. In Schedule 1 of the Assignment Agreement details of the ‘Financing Documents’ has been mentioned and ‘Facility wise Principal Outstanding as on March 22 2019 has been mentioned in Schedule 1 Item 3 to the following effect: “3 Facility wise as on March 22nd Date of SMA II: March 2nd Nature of facility NCD 220 Crores NCD 95 Crores Term Loan 60 Crores Principal outstanding as on 22nd Mar 2019 2 20 00 00 000 90 00 00 000 60 00 00 000 3 70 00 00 000” 15. We may also notice that interim order dated 12.10.2018 came to be modified by the Delhi High Court by subsequent order dated 08.01.2020. The modification as directed by the Delhi High Court on 08.01.2020 did not modify or vacate the interim direction and modification was to the limited extent that Defendant No.1 to 10 were permitted to mortgage Company Appeal(Insolvency) No. 3521 charge or create a lien on their movable immovable assets. In paragraph 49 of the judgment following has been held: I accordingly modify the interim order dated 12.10.2018 read with order dated 01.11.2018. Subject to further orders of the court defendants No.1 to 10 are permitted to mortgage charge or create a lien on their immovable assets subject filing an undertaking in the court by way of an affidavit that the same is being done bonafidely for the purpose of completion of the pending real estate projects of defendants No.1 to 10 or for its day to day operations. Any such lien mortgage or charge would be created only to complete the pending projects or for carrying out normal day to day running of the companies. Full amounts of the funds so generated by creation of such lien mortgage or charge including how the amounts are expanded shall be filed in court on an affidavit of a director every quarterly. Subject to above modification interim order dated 12.10.2018 read with clarification dated 01.11.2018 shall continue to operate.” 16. The interim order dated 12.10.2018 as extracted above was confined to injunction against Defendant No.17 regarding Facility Agreement dated 14.05.2018. The interim injunction was not with regard to non convertible Debenture Trust Deed dated 04.12.2015 and Debenture Trust Deed dated 14.11.2016 and the debt due under the aforesaid Debenture Trust Deed as was detailed in Section 7 Application were unaffected by the interim order dated 12.10.2018. Hence the debt under the aforesaid financial Company Appeal(Insolvency) No. 3521 transaction was due and default was there with regard to the said financial transactions. It is not the case of the Appellant that there was no default on the part of the Corporate Debtor with regard to Debenture Trust Deed dated 04.12.2015 and 24.11.2016. It is not even the case that there is no default with regard to Facility Agreement dated 14.05.2018 but the submission is that there being interim injunction on 12.10.2018 assignment of debt under the Facility Agreement dated 14.05. 2018 could not have been made in favour of defendant No.3. 18. At this juncture we may notice one of the Clauses of the Assignment Agreement dated 23.03.2019 which is Clause 10.5 dealing with ‘Severability’ to the following effect: “10.5 Severability If any provision of this Agreement is held to be illegal invalid or unenforceable under Applicable Law and if the rights or obligations under this Agreement of the Parties will not be materially and adversely affected therebysuch provision will be fully severable this Agreement will be construed and enforced as if such illegal invalid or unenforceable provisions had never comprised a part hereof andthe remaining provisions of the Agreement will remain in full force and effect and will not be affected by the illegal invalid or unenforceable provision or by its severance here Company Appeal(Insolvency) No. 3521 19. The Assignment Agreement thus does contain a ‘Severability’ clause specifically providing that if any provision in the Agreement unenforceable under applicable law such provision will be fully severable. Provision of the Agreement insofar as it assigns the debts arising out of the Facility Agreement dated 14.05.2018 being under the injunction of the Delhi High Court vide order dated 12.10.2018 this could not have been given effect to and the Facility Agreement thus can be held to be unenforceable under the applicable law. There being three financial transactions dated 04.12.2015 24.11.2016 and 14.05.2018 even if 18.05.2018 was unenforceable there was no cloud on the enforceability of other two transactions i.e. 04.12.2015 and 24.11.2016 and they were clearly severable by virtue of Clause 10.5 as noted above. The Adjudicating Authority thus has not committed any error in taking the view that even if the Facility Agreement dated 14.05.2018 is ignored there was still default on the part of the Corporate Debtor on the basis of which IBC proceedings under Section 7 can be proceeded. The findings in the above context recorded by the Adjudicating Authority in paragraph 22 of the judgment. 20. The learned Counsel for the Appellant submits that Clause 10.5 did not permit any severability into three facilities. In support of her submission learned Counsel Ms. Pooja M. Saigal relied on judgment of Hon’ble Supreme Court in 3 SCC 799 Mattapalli Chelamayya and Another vs. Mattapalli Venkataratnam and Another. Hon’ble Apex Court in the above case had occasion to consider the severability with Company Appeal(Insolvency) No. 3521 regard to an Award which was unregistered and which embodied partition of the immovable property. On the same Award the Hon’ble Apex Court held that it contains two distinct transactions. In paragraph 11 and 12 following has been laid down: “11. The direction to pay a sum of money which has been held due and payable by the appellants to the respondents is a direction giving effect to a liability which already existed. It does not create the liability for the first time but merely works out the liability. But the same thing cannot be said about the charge. The charge is created for the first time. The case therefore involves two distinct matters — one is a personal liability to pay a certain amount and the second is an additional relief to recover that amount from the immovable property of the appellants should they fail to pay as ordered. It is therefore clear that the two do not form one transaction but two severable transactions. As pointed out long ago by Muttusami Ayyar J. in Sambaya v. Gangayya : “The test therefore is whether the transaction evidenced by the particular instrument is single and indivisible or whether it really evidences two transactions which can be severed from each other the one as creating an independent personal obligation and the other as merely strengthening it by adding a right to proceed against immovable property. But it should be remembered that it is not enough that there is an obligation to pay a sum of money but that it is also the obligation should have an independent existence and be in no way contingent or conditional on the breach of some obligation relating to immovable property created by the same instrument for Company Appeal(Insolvency) No. 3521 the contingency or the condition and the obligation would then be parts of one indivisible transaction”. In the present case the document evidences two transactions which can be severed from each other. One transaction creates an independent personal obligation to pay a certain sum of money and the other transaction namely the charge merely strengthens the first transaction by adding a right to proceed against the charged property. In our opinion the High Court was right in directing that the second transaction with regard to the charge being a severable transaction can be validly ignored and to the extent that it declares the personal obligation to pay the transaction not being required to be compulsorily registered the award was admissible in evidence. 12. It was further contended for the appellants that an award is one and indivisible and to direct that effect be given to a part of the award and not to the whole of the award would amount to modifying the award and that was impermissible. We do not think that there is any substance in this contention also. Where a severable part of an award cannot be given effect to for a lawful reason there is no bar to enforce the part to which effect could be justly given. See Mst Amir Begam v. Badr ud din Hussain where as a general principle it is laid down that when a separable portion of an award is bad the remainder of the award if good can be maintained. By giving effect to a part of the award in this case no prejudice is caused to the appellants. In fact they stand to benefit. As the award stands the appellants would have been responsible not only to pay the amounts personally but also from the property which was Company Appeal(Insolvency) No. 3521 charged. Since the charge part is eliminated for want of registration they are freed from the additional liability. It is true that judgment should be pronounced according to the award but that does not bar giving effect to the severable part of the award if it could be justly done. Departure from the award or a part of the award is barred only in those cases where the award or a severable part of it is lawful and capable of being given effect to.” 21. The Hon’ble Supreme Court had approved the judgment of the High Court which directed that second transaction with regard to the charge being a severable transaction can be validly ignored and the personal obligation to pay the transaction not being required to be compulsorily registered can be enforced the Award was admissible in the above respect. In the present case we have noticed that there were three financial transactions which were assigned by Agreement dated 23.03.2019. Even if one transaction that is Facility Agreement dated 14.05.2018 was under cloud due to interim order passed by the Delhi High Court dated 12.10.2018 there was no cloud on other financial transactions which were much before of passing of the interim order. There can be no illegality with regard to assignment of debt in favour of Respondent No.2 with regard to above two transactions and there being default with regard to above two transactions which is an admitted fact no exception can be taken to the admission of Application under Section 7 of the Code. 23. The judgment of Kerala High Court inKLT 87 Varkey vs. Subromonia Iyer has also been relied by the learned Counsel for the Company Appeal(Insolvency) No. 3521 Appellant where the High Court itself has relied on judgment of Hon’ble Supreme Court reiterated the same principle and laid down following in paragraphs 14 15 16 17 and 18: “14. Counsel for the respondent relying on the in M. Chelamayya v. M. Venkataratnam3 SCC 799 : AIR. 1972 SC. 1121) submits that even if the agreement contains certain provisions which require registration without affecting the body and main purpose of the agreement the part that is required to be registered can be severed and the document could be used. In 3 SCC 799 : AIR. 1972 SC. 1121 it was observed: “Thus where one creates an independent personal obligation to pay a certain sum of money and the other transaction merely strengthens the first transaction by adding the right to proceed against the charged property the second transaction with regard to the charge being a severable transaction can be validly ignored and the award to the extent it declares the personal obligation to pay is admissible in evidence the transaction not being required to be compulsorily 15. The counsel submits that part which provides for interest can be severed and the document can be used even without registration. Here also the plaintiff has got another difficulty that there is a charge by the document Ext. A2. 16. If applying the principle of separability this part also is severed the plaintiff has to fall back on the charge in the original mortgage. If he wants to enforce Company Appeal(Insolvency) No. 3521 the charge created on the property by the original mortgage as stated earlier it is not enforceable in this suit since it is barred by limitation….. 17. We also agree that if a transaction is distinct and divisible and one part of the transaction can be validly effected by an unregistered instrument and the other part requires registration the instrument may be used as evidence of the part which does not require registration. We are of opinion that the part which is not required to be registered must be collateral and not dependent upon the part which requires registration. In a Madras case13 Mad. 308) Muttusami Ayyar J. said: “The test therefore is whether the transaction evidenced by the particular instrument is single and indivisible or whether it really evidences two transactions which can be severed from each other the one as creating an independent personal obligation and the other as merely strengthening it by adding a right to proceed against immovable property. But it should be remembered that it is not enough that there is an obligation to pay a sum of money but that it is also necessary that the obligation should have an independent existence and be in no way contingent or conditional on the breach of some obligation relating to immovable property created by the same instrument for the contingency of the condition and the obligation would then be parts of one indivisible transaction.” 18. Normally an agreement has to be considered as a whole. Of course severance can be effected without affecting or damaging the core of the transaction. Company Appeal(Insolvency) No. 3521 Severability which takes in the rule of separability is a principle which can be applied only if it does not affect the main aim and intention of the transaction and only if the objectionable part can be severed without affecting the validity of the remaining part.” 24. We thus are of the view that the three loans which were assigned by Altico in favour of Respondent No.2 were severable and even if the Facility Agreement dated 14th May 2018 which was sought to be given effect to be excluded from consideration the assignment cannot be held to be illegal with regard to other two transactions that is Debenture Trust Deeds dated 04.12.2015 and 24.11.2016. There being default under the above two transactions being INR 111 55 88 511 + INR 2 73 76 59 666 as mentioned in Column 2 of Part IV of the Section 7 Application and default being more than Rs.1 crore the Application has rightly been admitted by the Adjudicating Authority. We thus are of the view that no error has been committed by the Adjudicating Authority in admitting the Section 7 Application. There is no merit in the Appeal the Appeal is dismissed. No order as to costs. Justice Ashok Bhushan] Dr. Ashok Kumar Mishra] MemberNEW DELHI 24th January 2022 Company Appeal(Insolvency) No. 3521

A detention order will be vitiated if grounds for detention are not communicated: High Court of Jammu and Kashmir

Article 22 clause (5) of the Indian constitution grants the right to representation against a detention order. Unless the grounds for detention are communicated to the detenu, he will be unable to make effective representation and hence an order can be vitiated if the grounds are not communicated. This was held by a single member bench of the High Court of Jammu and Kashmir consisting of Justice Ali Magrey in the case of Majid Ahmad Bhat v Union Territory of Jammu and Kashmir [Case no. (WP Cri No, 177/2020)] on 28th June 2021. The petitioner, Majid Ahmad Bhat was placed under preventive detention through the order passed by District Magistrate, Pulwama on 9th September 2020. As a result of this, a Heabus Corpus petition was filed with a prayer to quash the detention order on the grounds that it suffers from non-application of mind.  It was brought to the notice of the court that no documents or information was supplied to the petitioner explaining to him why he was detained. It was contended by the petitioner’s counsel that firstly there was no satisfactory reason recorded by the state as to why the petitioner was retained and secondly since he was not made aware about the reason of his detention, the petitioner was not given the right to effectively represent himself. For these reasons the petitioner concluded that the detention order should be declared void. The counsel representing the state defended the impugned order stating was the preventive detention was based on the past record of the petitioner. The state contended that the petitioner should have simply filed representation based on whatever material he was supplied and that insufficient material should not be sole grounds to vitiate the order. The court declared that by not duly communicating the grounds of detention to the petitioner, the state his violated the constitutional rights and so it was clear that the detaining authority did not apply their mind in this case. The court also cited the case of Lallubhai Jogibhai Patel v Union of India [(1981) 2 SCC 427], where the Supreme Court vitiated a detention order stating that that not communicating the grounds of detention to the detenu in a way understandable to him would violate his right to make representation against the same.

507 FH HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Through V.M) Case no.No. 177 2020 Reserved on 03.06.2021 Pronounced on. 28.06.21 Majid Ahmad Bhat Union Territory of J&K and ors …Petitioner Mr. G.N Shaheen adv. Through : Coram: Hon’ble Mr. Justice Ali Mohammad Magrey. Mr. Mir Suhail AAG JUDGMENT Impugned in this Heabus Corpus petition with a prayer for quashment thereof is the detention order no. 36 DMP PSA 20 dated 09.11.2020 to have been passed by District Magistrate Pulwama whereunder detenu namely Majid Ahmad Bhat s o Abdul Ahad Bhat R o Karimabad Tehsil Pulwama is under detention. The detenu through his father challenges the aforesaid detention 2. order through the medium of aforesaid petition inter alia on the grounds that the order of detention suffers from non application of mind “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 under FIR no. 256 2017 the detenu applied for bail but instead booked in case FIR no. 223 2018 u s 302 307. 120 B RPC and 7 27 A. Act. b) that there is total non application of mind while passing the detention order without reflecting any plausible ground c) that the detenu has not been provided the material forming basis of the detention order to make an effective representation against his detention order d) that the detaining authority has not prepared the grounds itself which is a pre requisite for him before passing any detention order e) that while passing the order of detention against the detenu the respondent no.2 has violated all the procedural safeguards enshrined in Art. 22of the Constitution of India f) that the allegations made in the grounds of detention are vague non existent and no prudent man can make a representation against such allegations and passing of detention order on such grounds is unjustified and unreasonable.” 3. 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 seeks dismissal of the Heabus Corpus petition. The learned counsel for the petitioner has raised primarily four 4. issues before the Court questioning the validity of the detention. The first point taken by the learned counsel for the petitioner is that the detention order was passed while the detenu was already in custody in respect of the criminal case under FIR No. 256 2017. In these circumstances it was submitted by the learned counsel for the petitioner the detaining authority ought to have satisfied himself with the fact that there was imminent likelihood of release of the detenu in that case and that it was necessary to detain the detenu in order to prevent him from indulging in prejudicial activities. According to the learned counsel for the petitioner detenu there is no such satisfaction recorded in the grounds of detention. He placed reliance on the decision of the Supreme Court in the case titled “Anant v. State of Maharashtra reported as AIR 1987 Supreme Court 137 Surya Prakash Sharma v. State of U.P. and others: 2017SLJ 650 AIR 1999 Supreme Court 3051 1994 SCC1691 2007SLJ 136 to submit that since the said satisfaction was not recorded the detention order was vitiated. 5. The second point taken by the learned counsel for the petitioner was that non supply of relevant material documents also vitiated the detention order. In this context it was the case of the petitioner detenu that no documents at all were supplied to the petitioner detenu. The non supply of relevant documents seriously undermines the capacity of a detenu to make an effective representation against the detention order and that itself would be a ground to declare the detention void. The third point raised by the learned counsel for the petitioner was based on non application of mind of the detaining authority with reference to having not mentioned that the detenu was already in custody while passing the detention order. 7. The fourth point raised by the learned counsel for the petitioner detenu was based on vagueness in grounds of detention. 8. The learned counsel for petitionerfurther submits that the detenu has not been provided the material referred to in the grounds of detention resultantly the right of making effective representation against the impugned order of detention as enshrined under Article 22of the Constitution has been violated. On the other hand Mr. Mir Suhail learned GA defended the order of detention and he responded to each of the points. With regard to the first point he submitted that there is a mention in the grounds of detention about the arrest of the detenu with reference to the FIR Nos. 256 2017 and 223 2018. Therefore according to him the detaining authority was aware of the fact that the detenu was already in custody when the detention order was passed. He therefore submitted that the point raised by the learned counsel for the petitioner on this score was untenable. With regard to the plea of non supply of material documents Mr. Mir Sushail learned GA mailed photo copy of the record pertaining to the detention. On going through the same I find that there is a signed document said to have been signed by the detenu Majid Ahmad Bhat in the shape of receipt. Based upon the said receipt Mr. Mir Suhail learned GA submits that the grounds of detention had been supplied along with other relevant documents and therefore the petitioner detenu cannot make any grievance on this ground. With regard to the non application of mind detaining authority having mentioned the reason for detaining the detenu activities are jeopardizing the peace security and tranquillity of the UT of J&K and in the grounds of detention as prejudicial to the Security of the State. It is submitted that there is not non application of mind the security of the State or jeopardizing the peace security and tranquillity of the State is almost the same. With regard to plea of vagueness of the grounds is concerned Mr. Mir Suhail learned GA submits that the grounds are clear and without any ambiguity. 13. Mr. Mir Suhail learned GA submits that insufficiency of supply of material shall not form a ground for vitiating the detention of the detenu. He further submits that the detenu was required to file representation on the material whatever supplied and could have projected the grounds of non supply of the material before the detaining authority which he has failed therefore non supply of material vitiates the detention has no substance. He further averred that there is no non application of mind or vagueness in grounds. He has referred to and relied upon the Judgment reported as AIR 2001 Supreme Court 301 titled R. Keshava Vs. M. B. Prakash and Ors. Mr. Mir Suhail GA further submits that the impugned order of detention is well founded in fact and law and there is nothing bad about it. He submits that the detenu has been provided the material relied upon by the detaining authority while detaining him. He further submits that the detenu has also been informed about his right of making representation against his detention. He submitted that the detaining authority has fully applied its mind while issuing the detention order and there is nothing on record to controvert it. Learned State Counsel referred to and relied upon the law laid down in 1981 4) SCC 216 AIR 1975 1143 2002 SCC 735 AIR 2000 SC 301. 15. I have heard learned counsel and considered the matter and perused the records. As per pleadings and contentions raised at bar the main ground of attack projected by petitioner against the detention in question is that grounds of detention were not duly communicated to him which prevented him from making an effective representation against the same and thereby he was deprived of an important constitutional right and that the detaining authority did not apply his mind while passing the detention order and has not revealed as to on what materials he assumed subjective satisfaction regarding necessity of having the subject detained when the detenu have not filed any bail application in any court for his release in the FIR(s) registered against him. 16. 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 in “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: “Communicate’ is a strong word which means that sufficient knowledge of the basic facts constituting the ‘grounds’ should be imparted effectively and fully to the detenu in writing in 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 case titled LallubhaiJogibhai Patel v. Union of India vitiates the detention order as not amounting to effect communication of grounds and resultant deprivation of the right to make representation against the same. 18. That being so the grounds of challenge set up by petitioner succeed and the detention stands vitiated. Other grounds urged do not therefore need to be separately addressed. 19. The petition is accordingly allowed and detention order no. 36 DMP PSA 20 dated 09.11.2020 purporting to have been passed by District Magistrate Pulwama under which the detenu namely Majid Ahmad Bhat s o Abdul Ahad Bhat R o Karimabad Tehsil Pulwama under detention. is quashed with direction for his release forthwith. 20. The petition stands accordingly disposed of. No order as to the 21. Registrar Judicial to send a copy of this order to Director General of Prisons and also concerned Jail authorities for compliance. Judge i)Whether the order is speaking: ii)Whether the order is reportable : Yes No costs. Srinagar S.A Hussain Secretary

Mere marks of hanging on the body of the victim don’t mean that it was a suicide: High Court Of Patna

The petitioners were alleged of killing the informant’s daughter or their Daughter-in-Law. The FIR of the same was done by the village people and police on investigating found that the death happened due to hanging. The Court in the light of all facts and circumstances allowed the plea of the bail to the petitioners. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter of Ranjeet Kumar Mahto v. The State of Bihar[Criminal Miscellaneous No.39831 of 2021]. The facts of the case were that petitioners apprehend arrest in connection with the case instituted under Sections 304(B)/34 of the Indian Penal Code. The petitioner was alleged to have killed their daughter-in-law/informant’s daughter. The learned Counsel of the Petitioner submitted that it was the mother-in-law who filed the FIR. It was submitted that the falsity of the allegation would be clear from the fact that it cannot be believed that a person who has committed a crime would ring the informant to say that they had committed the crime of killing the daughter of the informant.  The Learned Counsel of the State contended that the FIR was done by some villagers and the police had come to the home of the petitioners on their own. It was further submitted that in the post-mortem only ligature mark has been found on the neck which indicates death by asphyxia due to hanging and no other injury has been found on the body of the deceased.  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 the fact that the deceased was brought by her husband a the day prior to the incident and the post-mortem report not disclosing any injury on the body except for ligature mark on the neck which shows death by hanging as also the stand taken by petitioners no. 1 and 2 that they are working at Midnapur, in support of which a certificate has been granted by the said transport company, the Court is inclined to allow the prayer for pre-arrest bail.” The petition was disposed of on the mentioned terms and the petitioners were granted bail. Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The facts of the case were that petitioners apprehend arrest in connection with the case instituted under Sections 304(B)/34 of the Indian Penal Code. The petitioner was alleged to have killed their daughter-in-law/informant’s daughter. The learned Counsel of the Petitioner submitted that it was the mother-in-law who filed the FIR. It was submitted that the falsity of the allegation would be clear from the fact that it cannot be believed that a person who has committed a crime would ring the informant to say that they had committed the crime of killing the daughter of the informant.  The Learned Counsel of the State contended that the FIR was done by some villagers and the police had come to the home of the petitioners on their own. It was further submitted that in the post-mortem only ligature mark has been found on the neck which indicates death by asphyxia due to hanging and no other injury has been found on the body of the deceased.  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 the fact that the deceased was brought by her husband a the day prior to the incident and the post-mortem report not disclosing any injury on the body except for ligature mark on the neck which shows death by hanging as also the stand taken by petitioners no. 1 and 2 that they are working at Midnapur, in support of which a certificate has been granted by the said transport company, the Court is inclined to allow the prayer for pre-arrest bail.” The petition was disposed of on the mentioned terms and the petitioners were granted bail. Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The facts of the case were that petitioners apprehend arrest in connection with the case instituted under Sections 304(B)/34 of the Indian Penal Code. The petitioner was alleged to have killed their daughter-in-law/informant’s daughter. The learned Counsel of the Petitioner submitted that it was the mother-in-law who filed the FIR. It was submitted that the falsity of the allegation would be clear from the fact that it cannot be believed that a person who has committed a crime would ring the informant to say that they had committed the crime of killing the daughter of the informant.  The Learned Counsel of the State contended that the FIR was done by some villagers and the police had come to the home of the petitioners on their own. It was further submitted that in the post-mortem only ligature mark has been found on the neck which indicates death by asphyxia due to hanging and no other injury has been found on the body of the deceased.  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 the fact that the deceased was brought by her husband a the day prior to the incident and the post-mortem report not disclosing any injury on the body except for ligature mark on the neck which shows death by hanging as also the stand taken by petitioners no. 1 and 2 that they are working at Midnapur, in support of which a certificate has been granted by the said transport company, the Court is inclined to allow the prayer for pre-arrest bail.” The petition was disposed of on the mentioned terms and the petitioners were granted bail. Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The Learned Counsel of the State contended that the FIR was done by some villagers and the police had come to the home of the petitioners on their own. It was further submitted that in the post-mortem only ligature mark has been found on the neck which indicates death by asphyxia due to hanging and no other injury has been found on the body of the deceased.  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 the fact that the deceased was brought by her husband a the day prior to the incident and the post-mortem report not disclosing any injury on the body except for ligature mark on the neck which shows death by hanging as also the stand taken by petitioners no. 1 and 2 that they are working at Midnapur, in support of which a certificate has been granted by the said transport company, the Court is inclined to allow the prayer for pre-arrest bail.” The petition was disposed of on the mentioned terms and the petitioners were granted bail. 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, in view of the fact that the deceased was brought by her husband a the day prior to the incident and the post-mortem report not disclosing any injury on the body except for ligature mark on the neck which shows death by hanging as also the stand taken by petitioners no. 1 and 2 that they are working at Midnapur, in support of which a certificate has been granted by the said transport company, the Court is inclined to allow the prayer for pre-arrest bail.” The petition was disposed of on the mentioned terms and the petitioners were granted bail.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.398321 Arising Out of PS. Case No. 197 Year 2020 Thana MOHIUDDIN NAGAR District Ranjeet Kumar Mahto @ Ranjeet Mahto age about 40 years4. Kiran Devi Wife of Late Rambali Mahto age about 65 yearsfor the State 4. The petitioners apprehend arrest in connection with Mohiuddin Nagar PS Case No. 1920 dated 16.10.2020 instituted under Sections 304(B) 34 of the Indian Penal Code Patna High Court CR. MISC. No.398321 dt.06 09 2021 5. The allegation against the petitioners who are the in laws of the deceased is that they were party to the killing of the daughter of the informant who was the wife of one of the sons of petitioner no. 4 namely Dashrath Mahto not a 6. Learned counsel for the petitioners submitted that in the FIR itself it has been stated that it was the petitioner no. 4 the mother in law who had informed with regard to killing of the daughter of the informant. Learned counsel submitted that falsity of the allegation would be clear from the fact that it cannot be believed that a person who has committed a crime would ring the informant to say that they had committed the crime of killing the daughter of the informant. Learned counsel submitted that even otherwise there was no intention of any foul play because it was not the informant who had intimated the police and rather the police had come there and in the FIR also it has been stated that some villagers had informed the police Learned counsel submitted that the petitioners no. 1 and 2 reside at Midnapur in the State of West Bengal and are truck drivers for Amar Transport and both of them as well as the petitioner no. 3 who is the wife of petitioner no. 1 were living at Midnapur on the date of the incident. Learned counsel submitted Patna High Court CR. MISC. No.398321 dt.06 09 2021 that the husband of the deceased is in custody. It was further submitted that in the post mortem only ligature mark has been found on the neck which indicates death by asphyxia due to hanging and no other injury has been found on the body of the 7. Learned APP submitted that the petitioners being the relatives of the husband of the deceased cannot claim to be 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in view of the fact that the deceased was brought by her husband a day prior to the incident and the post mortem report not disclosing any injury on the body except for ligature mark on the neck which shows death by hanging as also the stand taken by petitioners no. 1 and 2 that they are working at Midnapur in support of which a certificate has been granted by the said transport company 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 released on bail upon furnishing bail bonds of Rs 25 000 each with two sureties of the Patna High Court CR. MISC. No.398321 dt.06 09 2021 like amount each to the satisfaction of the learned ACJM IV Samastipur in Mohiuddin Nagar PS Case No. 197 of 2020 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 andthat 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 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

Appeals against certain identified orders of the court and arbitral tribunal play an important role: High Court Of New Delhi

Petitioner issued a Notice of Negligence under Clause 37 of the GCC against the respondent for not obeying the orders passed by them and the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MR. JUSTICE VIBHU BAKHRU, in the matter STEEL AUTHORITY OF INDIA LIMITED Vs M/S SP SINGLA CONSTRUCTIONS PVT LTD, dealt with an issue mentioned above. Steel Authority of India Limited has filed the present appeal under Section 37(2)(b) of the Arbitration and Conciliation Act 1996, inter alia, impugning an order dated 21.08.2020, passed by the learned Arbitral Tribunal (by majority) under Section 17 of the A&C Act. SAIL issued a Notice Inviting Tenders (Tender Notice bearing no. DGM/PCC/TK/5(749) R/2009/3090) inviting tenders from pre-qualified bidders for the construction of flyovers for its steel plant located at Bhilai on a Divisible Turnkey Contract basis. Thereafter, on 18.06.2010, SAIL issued the Notification of Letter of Acceptance in favour of the respondent. Admittedly, they mentioned that the Project was not completed within the stipulated time period. The aforesaid disputes between the parties were referred to ARB. A. (COMM.) 47/2021 arbitration before the Arbitral Tribunal comprising of three members and the arbitration proceedings commenced on 07.01.2019. Thereafter, on 18.07.2019, SAIL issued a letter to the respondent providing details for the balance work to be completed and requested the respondent to resume the works regarding flyover no. 2 within a period of ten days and to start the work. On 03.08.2019, SAIL once again requested the respondent to resume the balance works within seven days of receipt of the letter, On 23.08.2019, SAIL issued a Notice of Negligence under Clause 37 of the GCC to the respondent. On 29.08.2019, the respondent applied Section 23(3) of the A&C Act and submitted an amended Statement of Claims, as further disputes had arisen between the parties. Meanwhile, on 09.09.2019, during the pendency of disputes before the learned Arbitral Tribunal, the respondent applied Section 17 of the A&C Act, inter alia, seeking maintenance of status quo in all further disputes between the parties in respect of their legal relationship, whether contractual or not. On 19.09.2019, the learned Arbitral Tribunal issued the notice, however, it passed no orders regarding the application filed by the respondent under Sections 17 and 23(3) of the A&C Act. It also directed SAIL to file its reply by 15.10.2019 and further, fixed a meeting on 08.11.2019 at the Bhilai Steel Plant for an amicable discussion between the parties to mutually settle their disputes. In the meanwhile, by a letter dated 09.11.2019, SAIL issued a Risk Purchase Notice under Clause 37 of the GCC read with Clause 44.2 of the GCC to the respondent to take immediate steps to expedite the execution of the work within a period of fourteen days from the date of the notice. Shri Ashok Sharma, one of the learned Arbitrators, passed a dissenting order and held that the application preferred by the respondent under Section 17 of the A&C Act is liable to be rejected. The learned Arbitrator observed that Clauses 37 and 44 of the GCC provided the right to SAIL to terminate the agreement under certain circumstances as well as “for any reason”. Later Aggrieved by the impugned order, SAIL filed the present appeal. Mr Basu, learned senior counsel appearing for SAIL contended that the impugned order is liable to be set aside on several grounds. First, he submitted that the Arbitral Tribunal has, in effect, directed a specific performance of the Contract, which is contrary to the Specific Relief Act, 1963. He submitted that the Contract is determinable and therefore, no orders could be passed compelling specific performance of the Contract. Lastly, he submitted that the Arbitral Tribunal has, in effect, modified the Risk and Purchase Notice dated 09.11.2019 and directed SAIL to execute the work based on a no default on the part of the respondent and, the same is beyond its jurisdiction. The Arbitral Tribunal had returned the finding that SAIL is responsible for the delay in execution of the Contract. However, it was also clarified in the impugned order that the findings are only tentative and only for the interim application. Because of the above, no interference with the impugned order is warranted by this Court in these proceedings. The court perused the facts and argument’s presented, it believed that- “It is also relevant to note that the impugned order (majority view) is dated 21.08.2020 and the present appeal was filed on 19.04.2021 after a considerable delay. On this ground as well, no interference with the impugned order is warranted in these proceedings. For the reasons stated above, the appeal is dismissed. All pending applications are also disposed of”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 05.10.2021 11857 2021 & 11858 2021 COMM.) 47 2021 and IA Nos. 11856 2021 STEEL AUTHORITY OF INDIA LIMITED ..... Petitioner Through: Mr. Joy Basu Sr. Advocate with Mr. Ashish Rana Mr Kanak Bose and Mr. Anurag K Singh Advocates M S S.P. SINGLA CONSTRUCTIONS Through: Mr. Akhil along with Mr HON BLE MR. JUSTICE VIBHU BAKHRU VIBHU BAKHRU J.a company incorporated under the Companies Act 1956 has filed the present appeal under Section 37(2)(b) of the Arbitration and Conciliation Act 1996inter alia impugning an order dated 21.08.202047 2021 order’) passed by the learned Arbitral Tribunalunder Section 17 of the A&C Act SAIL issued a Notice Inviting TendersR 2009 3090 eligible pre qualified bidders for the construction of flyovers for its steel plant located at Bhillai on a Divisible Turnkey Contract basis Thereafter on 18.06.2010 SAIL issued the Notification of Award Letter of Acceptance in favour of the respondent. On 14.07.2010 SAIL and the respondent entered into a Contract for “Construction of Flyover at 3 locations and Road Networkat Bhillai Steel Plant Bhillai”the Project was to be completed within a period of two years that is on or before 14.07.2012 the said Project was not completed within the stipulated time period. SAIL alleges that the delay in completion of the Project is attributable to the respondent as it failed to take the applicable permits as and when required under the Contract and deliberately and intentionally ignored the time schedules and instructions under the Contract the General Clauses of the Contract GCC) and the Schedules stipulated therein The aforesaid disputes between the parties were referred to ARB. A.47 2021 arbitration before the Arbitral Tribunal comprising of three members and the arbitration proceedings commenced on 07.01.2019 Thereafter on 18.07.2019 SAIL issued a letter respondent providing details for the balance work to be completed and requested the respondent to resume the works regarding flyover no. 2 within a period of ten days and to start the piling work for the two abutments of ROB 1 within a period of fifteen days On 03.08.2019 SAIL once again requested the respondent to resume the balance works within seven days of receipt of the letter failing which it would be presumed that the respondent was not interested in resuming the said works. The said letter also stated that the respondent was not performing its obligations in accordance with Clause 6.2 of the GCC which stipulated the performance of contractual obligations by both the parties during the pendency of conciliation or arbitration proceedings On 23.08.2019 SAIL issued a Notice of Negligence under Clause 37 of the GCC to the respondent. In the said notice SAIL referred to Clause 6.2 of the GCC and put the respondent to notice to resume the balance works of all the flyovers within fourteen days from the issuance of the said notice and to perform and complete its contractual obligations failing which SAIL would be compelled to initiate appropriate action. The respondent responded to the aforesaid notice by a letter dated 05.09.2019 and stated that the notice issued by SAIL under Clause 37 of the GCC “is an operative repudiation of ARB. A.47 2021 contract unconstitutional illegal and unconscionable would be defended by us at the risk and cost of the Employer” On 29.08.2019 filed an application under Section 23(3) of the A&C Act and submitted an amended Statement of Claims as further disputes had arisen between the parties Thereafter on 09.09.2019 during the pendency of disputes before the learned Arbitral Tribunal application under Section 17 of the A&C Act inter alia seeking maintenance of status quo in all further disputes between the parties in respect of their legal relationship whether contractual or not an interim measure directing SAIL to provide without prejudice funding corresponding to the estimated cost furnished by the respondent by its letter dated 17.07.2019 and direct SAIL to provide physical and legal possession of the whole site in an unimpeded state as specified in Clause 10.2 of the GCC and provide approvals of all the drawings along with required variation orders in accordance with the Contract 11. On 19.09.2019 the learned Arbitral Tribunal issued notice however it passed no orders regarding the application filed by the respondent under Sections 17 and 23(3) of the A&C Act. It also directed SAIL to file its reply by 15.10.2019 and further fixed a meeting on 08.11.2019 at the Bhillai Steel Plant for an amicable discussion between the parties to mutually settle their disputes. By a letter dated 05.11.2019 the respondent informed SAIL its inability to attend the meeting fixed on 08.11.2019 by the Arbitral Tribunal and ARB. A.47 2021 suggested that the meeting be fixed on or after 23.11.2019 In the meanwhile by a letter dated 09.11.2019 SAIL issued a Risk Purchase Notice under Clause 37 of the GCC read with Clause 44.2 of the GCC to the respondent to take immediate steps to expedite the execution of the work within a period of fourteen days from the date of the notice failing which SAIL would terminate the Contract and employ a third party to complete the balance works at the risk and cost of the respondent In the aforesaid context on 22.11.2019 the respondent filed an application under Section 17 of the A&C Act before the learned Arbitral Tribunal seeking an interim relief for stay of the Risk Purchase Notice dated 09.11.2019 14. On 23.11.2019 the learned Arbitral Tribunal allowed the respondent’s application dated 29.08.2019 under Section 23(3) of the A&C Act for amendment of claims. The Tribunal further directed that SAIL would not give effect to the Risk Purchase Notice dated 09.11.2019 until disposal of the respondent’s application under Section 17 of the A&C Act Thereafter on 24.08.2020 the Arbitral Tribunal passed the impugned order holding that prima facie the respondent was not responsible for the delay in execution of the Contract. The Tribunal held that SAIL could without prejudice to the rights of both the parties continue to carry on the balance works either through the respondent or another contractor ARB. A.47 2021 The Tribunal was of the view that the said Contract could be terminated under Clause 44.1.1 of the Contract for any reason attributable to the respondent. The Arbitral Tribunal observed that certain steps were required to be undertaken by SAIL to provide an encumbrance free site to the respondent and the same had not been done. The Arbitral Tribunal also clarified that its view was a prima facie view based on the inspections carried out by the Arbitral Tribunal as were noted in Procedural Orders nos. 7 and 9 passed by the Arbitral Tribunal on 09.07.2019 and 19.09.2019 respectively. The Arbitral Tribunal also stated in the event the site in question becomes free from all the encumbrances SAIL could approach the Arbitral Tribunal and the impugned order could be given a fresh look 17. On 25.08.2020 Shri Ashok Sharma one of Arbitrators passed a dissenting order and held that the application preferred by the respondent under Section 17 of the A&C Act is liable to be rejected. The learned Arbitrator observed that Clauses 37 and 44 of the GCC provided the right to SAIL to terminate the agreement under certain circumstances as well as “for any reason”. The learned Arbitrator held that the Contract in its very nature is a determinable one and thus cannot be specifically enforced. Further Sections 14(d and 41(e) of the Specific Relief Act 1963 create a prohibition on the issuance of an injunction directing the specific performance of the contract between the parties and therefore there can be no stay of the Risk Purchase Notice dated 09.11.2019 The learned Arbitrator also held that an injunction granting a ARB. A.47 2021 stay in respect of the Risk and Purchase Notice dated 09.11.2019 would lead to further delay in completion of the Project and in view of Section 20A read with Section 41(ha) and the Schedule to the Specific Relief Act 1963 an injunction having the effect of delaying an infrastructure project cannot be issued. The learned Arbitrator further observed that the present dispute regarding the Risk and Purchase Notice dated 09.11.2019 issued by SAIL has originated after reference to and constitution of the Arbitral Tribunal and therefore the said notice gives rise to a fresh cause of action which is beyond the scope reference and jurisdiction of the Arbitral Tribunal and requires a fresh reference to arbitration 19. Aggrieved by the impugned order SAIL filed the present 20. Mr Basu learned senior counsel appearing for SAIL contended that the impugned order is liable to be set aside on several grounds First he submitted that the Arbitral Tribunal has in effect directed specific performance of the Contract which is contrary to the Specific Relief Act 1963. He submitted that the Contract is determinable and therefore no orders could be passed compelling specific performance of the Contract Second he submitted that the impugned order in effect stays the Risk and Purchase Notice dated 09.11.2019 which is beyond the scope of Section 9 of the A&C Act as it is not in aid of the arbitral ARB. A.47 2021 proceedings. He submitted that the dispute regarding action of SAIL in issuing the Risk and Purchase Notice dated 09.11.2019 was not a subject matter of dispute before the Arbitral Tribunal and therefore no order interdicting the same could be passed Lastly he submitted that the Arbitral Tribunal has in effect modified the Risk and Purchase Notice dated 09.11.2019 and directed SAIL to execute the work on the basis of a no default on the part of the respondent and the same is beyond its jurisdiction Reasons and Conclusion The contentions advanced by Mr Basu are unsubstantial. First of all the Arbitral Tribunal has not interdicted SAIL from executing the balance work remaining to be executed under the Contract either by itself or through another contractor. The directions issued by the Arbitral Tribunal are only for preserving the rights and contentions of the parties. Clearly if it is found that the respondent is not in breach of any of its obligations SAIL’s action under the Risk And Purchase Clause would be unsustainable. However given the disputes between the parties the Arbitral Tribunal permitted SAIL to carry on the works at its own risk which in any event SAIL is entitled to do under the Contract. The Arbitral Tribunal has made it amply clear that this is without prejudice to the rights of either parties. The Arbitral Tribunal has not precluded SAIL from canvassing that it is entitled to terminate the contract on account of negligence on the part of the respondent and to get the balance work executed through another contractor. Mr ARB. A.47 2021 Basu’s contention is premised on the assumption that the Arbitral Tribunal has set aside the notices dated 23.08.2019 and 09.11.2019. It is clear from the impugned order that the Arbitral Tribunal has not done so. It has at the interim stage restrained SAIL from taking any precipitate steps in that regard while preserving its rights to do so The contention that the impugned order is beyond the jurisdiction of the Arbitral Tribunal is also unpersuasive. Admittedly the dispute between the parties relates to whether the respondent has delayed the execution of the contract or that SAIL has failed to perform its reciprocal obligations and is responsible for the delay Clearly if the Arbitral Tribunal finally determines that the respondent is not in breach of any of its obligations under the Contract any further steps including the notices dated 23.08.2019 and 09.11.2019 which are premised on the basis that the respondent has failed to perform its obligations under the Contract would be unsustainable Having stated the above it is not necessary for this Court to examine the dispute in any detail. The question whether any final relief can be granted in respect of notices dated 23.08.2019 and 09.11.2019 is also open for the parties to agitate before the Arbitral Tribunal At this stage it is also relevant to refer to the findings of the Arbitral Tribunal. The same are reproduced below I am of the view that: terminated on the ground of delay on the part of the claimant. There is no ARB. A.47 2021 the contract can be terminated for any reason but reason should be in existence and should be attributable to the claimant If the procedural Orders No.7 and 9 quoted above are taken note of then it becomes apparent that the site is not available for work. This is a prima facie view based on the inspection carried on by the Tribunal and in the proceedings which have been noticed in the procedural orders iii) The words “for any reason” for the contract would mean a reason for which the claimant is responsible. As at present such is not the situation the respondent was supposed to make available the entire site which was not done incomplete. The respondents have to deposit a sum of Rs.3 crore with the Railways before they can interfere with the Railway lines The respondents were supposed to take certain steps such as providing encumbrance free site. This has not respondents who have perform their part of cannot take and insist failure or negligence on the part of the vi) The contract could not be terminated for the reason of delay which prima ARB. A.47 2021 claimant. It is the respondent who has to first perform its part of the contract submissions made that the work should not be stopped I am of the view that the interim order to be modified. The respondent without prejudice to rights of both parties can resort carry on with the work at his own risk and cost if they so desire under Clause 44.1 i.e. Termination for Employer’s Convenience either from a new party or from the claimant The claimant has all his machinery at the site which can be utilized. It is further clarified that as and when the site become free from encumbrances the respondent can approach this Tribunal and the order passed under Section 17 can be given a fresh look a) The contract is almost 10 years old. The claimant had expressed a wish that it may be relieved from performing the contract on account of increase in the cost during the intervening period attributable to the Respondent’s obligation under Clause 10 request has not be b) That the conditions of the contract i.e condition No.37 and condition No.44(2 Condition No.37 visualizes negligence on the part of the claimant and condition No.44 visualizes default on the part of the factors are present. There is failure on the In this case none of Thus it is held that: ARB. A.47 2021 part of the respondent to provide the encumbrances free site in the process 10 years has been lost with financial impacts thereof to prolongation cost and increase in the cost of construction which in itself is a issue between the parties c) That the respondent can carry on work at its own risk and cost. This can be got done without prejudice to rights of both parties under clause 44.1 instead of 44.2 from the claimant who has all machinery from any person whom the respondent feels is capable of doing the Tribunal again when it feels that the site and the work can be continued. The provisions of Specific Relief Act have been taken note of and by making observations at paraandThat the reason given for termination is delay on the part of claimant as the facts and the situation as it exists and as ARB. A.47 2021 reproduced above responsible for delay at present g) As prima facie the non existing reason has been given for contract this cannot be ignored. Any reason would mean a reason which exists and not a reason for which the claimant cannot be held responsible the contract enables tribunal to decide all disputes arising out of the contract and this dispute having arisen out of the contract this tribunal would have jurisdiction.” The Arbitral Tribunal had returned the finding that SAIL is responsible for the delay in execution of the Contract. However it was also clarified in the impugned order that the findings are only tentative and only for the purposes of the interim applicaton. In view of the above no interference with the impugned order is warranted by this Court in these proceedings It is clear that the parties are not precluded from canvassing their respective contentions before the Arbitral Tribunal and the Arbitral Tribunal is yet to finally adjudicate the disputes. SAIL is not prejudiced in any manner at this stage as it is not precluded from carrying on the balance work under the Contract either directly or through any other contractor. The question whether the additional costs for carrying on the balance works can be recovered from the respondent is dependent on the adjudication of the issue as to which party is in breach of its obligations ARB. A.47 2021 It is also relevant to note that the impugned orderis dated 21.08.2020 and the present appeal was filed on 19.04.2021 after a considerable delay. On this ground as well no interference with the impugned order is warranted in these For the reasons stated above is dismissed. All pending applications are also disposed of OCTOBER 5 2021 Click here to check corrigendum if any VIBHU BAKHRU J ARB. A.47 2021 Page 1

Courts would relegate to arbitration, unless the dispute is ex-facie barred by limitation and there is no issue to be adjudicated: High Court of Delhi

It is only in cases where there is no vestige of doubt that the claims are barred by limitation that the Court would decline the request for appointment of an Arbitrator. It is now well settled that unless the Court finds that ex-facie the dispute is barred by limitation and there is no issue to be adjudicated, the Courts would relegate the parties to the remedy of their choice i.e. arbitration and the same was upheld by High Court of Delhi through the learned bench led by Justice Vibhu Bakhru in the case of GAIL (INDIA) LIMITED vs. M/S RATHI STEEL AND POWER LTD [ARB.P. 597/2021] on 16.02.2022. The facts of the case are that the petitioner filed the present petition praying that an Arbitrator should be appointed to adjudicate the disputes that have arisen between the parties in connection with the Gas Supply Contract (GSA). The GSA includes an Arbitration Clause. It is the petitioner’s case that the respondent had not lifted the minimum quantity of Regasified LNG (Gas) as agreed. Therefore, is liable to pay the amount for the said quantity under Clause 14.1 of the GSA, which provides for ‘Pay For If Not Taken’ obligations. The respondent had not paid the said invoices, as according to the respondent, it was not liable to do so. In view of the above, the petitioner had also suspended the supply of gas from the year 2015 onwards. Since the respondent had failed to pay the amounts as claimed by the petitioner, the petitioner issued a notice invoking the Arbitration Agreement, claiming certain amounts, which according to the petitioner, were due under ‘Pay For If Not Taken’ obligations of agreement. The respondent’s counsel submitted that an agreement does exist between the parties for reference of the disputes to arbitration, however, the claims made by the petitioner are ex-facie barred by limitation. The petitioner’s counsel contended that the liability of the respondent to pay under the GSA ‘Pay For If Not Taken’ obligations continued even after the supply of Gas was suspended. He stated that notwithstanding that the invoices raised in respect of the period three years prior to the date of notice of invocation of arbitration are considered as barred by limitation, nonetheless, petitioner is entitled to recover the amounts for the period of three years prior to the notice invoking arbitration. In view of the above, the Court considered it apposite to allow the present petition. Even though the parties to arbitration in respect of the disputes were barred by limitation. The Court observed that, “it is only in cases where there is no vestige of doubt that the claims are barred by limitation that the Court would decline the request for appointment of an Arbitrator. It is now well settled that unless the Court finds that ex-facie the dispute is barred by limitation and there is no issue to be adjudicated, the Courts would relegate the parties to the remedy of their choice – arbitration.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 16.02.2022 ARB.P. 597 2021 & IA 8049 2021 IA 14329 2021 GAILLIMITED Petitioner Through Mr Junior Luwang Advocate. M S RATHI STEEL AND POWER LTD. Respondent Through Mr Sanjoy Ghose Senior Advocate with Mr anand Shankar Jha Mr Arpit Gupta Mr Rhishabh Jetley Mr Girish Bhardwajf Ms Meenakshi Devgan Mr Shubham Tripathi Advocates. HON BLE MR. JUSTICE VIBHU BAKHRU Hearing held through videoconferencing] VIBHU BAKHRU J.The petitioner has filed the present petition under Section 11 of the Arbitration and Conciliation Act 1996praying that an Arbitrator be appointed to adjudicate the disputes that have arisen between the parties in connection with the Gas Supply Contract dated 26.12.2008 ‘the GSA’) and Supplementary Agreement dated 21.05.2009. The GSA includes an Arbitration Clause that reads as under: ARB.P. 597 2021 “15.6 Any Dispute arising in connection with this Agreement which is not resolved by the Parties pursuant to Article 15.1 within sixtyDays of the notice of the Dispute or Article 15.3(c) and Article 15.3(d) shall: Alternative 2 where one Party to the Agreement is not a Government Company a) be finally settled by arbitration in accordance with the Indian Arbitration and Conciliation Act 1996 and rules made there under from time to time. The procedure for appointment of arbitrators shall be as After the sixty 60 Days period described in Article 15.1 either Party may submit the Dispute to a single arbitrator Days of the expiration of such sixty 60 Days period from a panel of threedistinguished persons nominated by the Seller. The decision(s) of supported by reasons for such shall be final and binding on the Parties. the Sole Arbitrator decision The venue of the arbitration shall be New Delhi. ARB.P. 597 2021 This Article 15.6 shall survive the termination or expiry of this Agreement.” It is the petitioner’s case that the respondent had not lifted the minimum quantity of Regasified LNG as agreed nonetheless it was liable to pay the amount for the said quantity under Clause 14.1 of the GSA which provides for ‘Pay For If Not Taken’ obligations. The petitioner had issued a letter dated 28.02.2015 raising a demand of ₹10.33 crores for the dues payable under the said clause for the year 2014. The petitioner claims that similar demands were made for the subsequent years as well. The respondent had not paid the said invoices as according to the respondent it was not liable to do so. It had not received the supply of Gas for which the invoices were raised. In view of the above the petitioner had also suspended the supply of gas from the year 2015 onwards. Notwithstanding that the supplies had been suspended the petitioner states that it continued to raise the invoices under the ‘Pay For If Not Taken’ quantity for the year 2015 as well as the years subsequent thereto. Since the respondent had failed to pay the amounts as claimed by the petitioner the petitioner issued a notice dated 27.11.2019 invoking the Arbitration Agreement in terms of Clause 15.6 of the GSA claiming certain amounts which according to the petitioner were due under Clause 14.1 of the GSA2 SCC 1 and Bharat Sanchar Nigam Ltd. And Anr. v. M s Nortel Networks India Private Limited:5 SCC 738 in support of his contention that the Court would not relegate the parties to arbitration in respect of the disputes that are ex facie barred by limitation. 8. Mr Luwang learned counsel appearing for the petitioner countered the aforesaid submissions. He submits that the liability of the respondent to pay under Clause 14.1 of the GSA continued even after the supply of Gas was suspended. He states that notwithstanding that the invoices raised in respect of the period three years prior to 27.11.2019are considered as barred by limitation the petitioner is nonetheless entitled to recover the amounts due under Clause 14.1 of the GSA for the period of three years prior to the notice invoking arbitration. 9. Mr Luwang also referred to the letter dated 08.06.2021 whereby the respondent had evinced its interest to settle the disputes by payment of a one time settlement amount of ₹1.61 crores. He contended that the said letter constitutes an acknowledgement of liability as the respondent had sought waiver of liabilities in respect of the dues demanded for the ARB.P. 597 2021 years 2015 to 2020. He also referred to an email dated 28.04.2015 and submitted that the said email sent by the respondent in respect of the notice for disconnection of Gas supply also indicates that the respondent had acknowledged its liability. 10. Undoubtedly the contention that the claims raised by the respondents are barred by limitation is a substantial one. In the notice invoking arbitration the petitioner had expressly stated that it had terminated the gas supply on 20.04.2015 and “the same position continues till today”. This according to the petitioner was on account of the respondent’s failure to clear the dues. The failure to pay the amount claimed does not extend the period of limitation. 11. The email dated 28.04.2015 also does not appear to be an acknowledgement of the liability against the ‘Pay For If Not Taken’ obligations under the GSA. Further the letter dated 08.06.2021 which is relied upon by the petitioner is a letter evincing interest for a one time settlement which was issued by the respondent without prejudice to all rights and contentions. It is difficult to accept that this letter constitutes an acknowledgement of liability for two reasons. First that the letter was written “without prejudice” and does not unequivocally acknowledge any liability. Second that it was not sent within the period of limitation of three years. 12. Having stated the above there is a contentious issue whether the amounts claimed by the petitioner for the period three years prior to the issuance of notice are barred by limitation. According to the petitioner the liability to pay under Clause 14.1 of the GSA continues notwithstanding the discontinuation suspension of the supply of Gas. ARB.P. 597 2021 The respondent claims that the entire claim is barred by limitation as it had declined to pay the amount under Clause 14.1 of the GSA and had not done so since 2015. Thus it had repudiated any alleged liability obligation for making any payment for Gas not received by it and more particularly after it was suspended. 13. The respondent also claims that the petitioner has not claimed such amounts against the ‘Pay For If Not Taken’ obligations under the GSA from certain other establishments and had entered into a one time settlement with them. 14. Although this Court is inclined to accept the contention as advanced by the respondent. However it is apparent that the controversy as noted above falls outside the standard of examination under Section 11 of the A&C Act. The Supreme Court in BSNL v. Nortel Networks Private Limited had after referring to the observations made by the Supreme Court in Vidya Drolia v. Durga Trading Corporationexplained that it is only in cases where there is no vestige of doubt that the claims are barred by limitation that the Court would decline the request for appointment of an Arbitrator. It is now well settled that unless the Court finds that ex facie the dispute is barred by limitation and there is no issue to be adjudicated the Courts would relegate the parties to the remedy of their choice arbitration. In view of the above this Court considers it apposite to allow the present petition. Accordingly JusticeBadar Durrez Ahmed a former Chief Justice of Jammu and Kashmir High Courtis appointed as the Sole Arbitrator to adjudicate the disputes between the parties. This is subject to the learned Arbitrator ARB.P. 597 2021 making the necessary disclosure as required under Section 12(1) of the A&C Act and not being ineligible under Section 12(5) of the A&C Act. 16. The learned counsel for the parties further request that the arbitration be conducted under the aegis of the Delhi International Arbitration Centreand in accordance with its Rules. Thus with the consent of the parties it is directed that the arbitration would be conducted under the aegis of DIAC and in accordance with its Rules. 17. The parties are at liberty to approach the Coordinator DIAC for further proceedings. 18. The petition is allowed in the aforesaid terms. All pending applications are also disposed of. VIBHU BAKHRU J FEBRUARY 16 2022 Click here to check corrigendum if any ARB.P. 597 2021

Areas where the District Council Courts exercises jurisdiction, the Judge District Council Court exercises powers similar to that of a District Judge: High Court of Meghalaya

The District Council Courts are conferred with powers and jurisdiction to try suits and cases between members of the Scheduled Tribes community residing within the territorial jurisdiction of such courts as upheld by the High Court of Meghalaya through the learned bench led by Justice W. Diengdoh in the case of Smti. Clarinda Momin Vs. Smti. Brishmony G. Momin (FA. No. 1 of 2019) The brief facts of the case are that the Appellant herein is the executor of the last Will and Testament of her elder brother (Late) Pleander G. Momin, who during his lifetime had executed his last Will and Testament on 31.08.2004, bequeathing all his landed property including four residential standing houses and other belongings, moveable and immoveable to the Appellant to the exclusion of the Respondent who was his first wife. The said elder brother of the Appellant expired on 23.09.2004. The Appellant had made an application before the Garo Hills District Council Court at Tura for administration of the last Will and Testament as stated above and the learned Court vide order dated 10.05.2007 had granted probate of the Will in favour of the Appellant. Respondent being aggrieved by the said order had approached the Hon’ble Gauhati High Court, Shillong Bench with a revision application and the Hon’ble High Court after hearing the parties vide judgment and order had allowed the said revision application and has set aside the probate of the Will and has further directed that the case be transferred to the learned Judge, District Council Court, Shillong. On being pending before the said court for a long time, the Learned Additional District Magistrate (Judicial) has concluded that the court is a wrong forum for the parties to pursue the matter both being tribal belonging to the Garo community and as such, only the Garo Hills District Council Court has got jurisdiction to try the matter. The Appellant has failed to array the Respondent herein as a necessary opposite party in the said Probate which prompted the Court of the Judge District Council Court, to pass the impugned order rejecting the application of the Appellant herein. Hence, this appeal. After the perusal of the facts and arguments, the Hon’ble Court held “Given the facts as stated above and having held that the said Court of the Judge, District Council Court, GHADC has the jurisdiction to try the matter, the issue of limitation ought to have been taken up taking into account the provision of Sub-Section 2 of Section 14 of the Limitation Act, 1963 which squarely covered the case of the Appellant/Petitioner. In view of the above, this appeal is allowed. The impugned order is hereby set aside and quashed.”

Serial No. 01 Regular List FA. No. 19 HIGH COURT OF MEGHALAYA AT SHILLONG Smti. Clarinda Momin Vs. Smti. Brishmony G. Momin Date of Decision: 28.10.2021 Hon’ble Mr. Justice W. Diengdoh Judge For the Petitioner Appellant(s) For the Respondent(s) i) Whether approved for reporting in Law journals etc.: Mr. A.H. Hazarika Adv. Mr. A. Choudhary Adv. vice Mr. H.R. Nath Adv. ii) Whether approved for publication in press: Heard Mr. A. H. Hazarika learned counsel for the Appellant who has submitted that the Appellant herein is the executor of the last Will and Testament of her elder brother Pleander G. Momin who during his lifetime had executed his last Will and Testament on 31.08.2004 bequeathing all his landed property including four residential standing houses and other belongings moveable and immoveable to the Appellant herein to the exclusion of the Respondent herein who was his first wife. The said elder brother of the Appellant expired on 23.09.2004. 2. Mr. Hazarika has further submitted that the Appellant had made an application before the Garo Hills District Council Court at Tura for administration of the last Will and Testament as stated above and the learned Court vide order dated 10.05.2007 had granted probate of the Will in favour of the Appellant. 3. The Respondent being aggrieved by the said order dated 10.05.2007 had approached the Hon’ble Gauhati High Court Shillong Bench with a revision application registered as CR(P) No. 18of 2008 and the Hon’ble High Court after hearing the parties vide judgment and order dated 09.07.2009 had allowed the said revision application and has set aside the probate of the Will dated 10.05.2007 and has further directed that the case be transferred to the learned Judge District Council Court Shillong. Thereafter the Appellant had filed an application before the Court of the learned Additional Judge District Council Court Shillong for probate of the said Will dated 31.08.2004 which was registered as Misc. Case No. 2 of 2009. However in course of proceedings the Appellant had made a prayer for withdrawal of the case with liberty to file a fresh one which application was not objected to by the Respondent herein and accordingly a fresh case before the Court of the Additional District MagistrateWilliamnagar was filed. On being pending before the said court for a long time the Learned Additional District Magistrate has concluded that the court is a wrong forum for the parties to pursue the matter both being tribal belonging to the Garo community and as such only the Garo Hills District Council Court has got jurisdiction to try the matter. The Appellant accordingly filed an application for probate before the Civil Judge Garo Hills Autonomous District Council Court Tura and the same was registered as Probate Case No. 09. However the Appellant has failed to array the Respondent herein as a necessary opposite party in the said Probate Case No. 1 of 2009 which prompted the Court of the Judge District Council Court Garo Hills Autonomous District CouncilTura to pass the impugned order dated 19.06.2019 rejecting the application of the Appellant herein. Hence this appeal. 6. Mr. Hazarika has again submitted that the learned Judge District Council Court GHADC has dismissed the application only on the ground that the Respondent herein was not made a party to the said application and also on the ground that there was a delay of 9 10 years in filing the application without any sufficient explanation for condonation of delay and on this premise the learned Court has rejected the application for want of legal jurisdiction. Finally Mr. Hazarika has submitted that this matter may be remanded to the Court of the Judge District Council Court GHADC for continuation of the trial with liberty to the Appellant to implead the Respondent as a party thereto and thereafter to dispose of the same in accordance with law. 8. Mr. A. Choudhary learned counsel for the Respondent has not made any counter submission to the submissions made by Mr. Hazarika and has instead consented to the prayer that this matter may be remanded to the Court of the Judge District Council Court GHADC for trial after allowing the Respondent herein to be made a party thereto. Upon hearing the learned counsels for the parties the facts and circumstances of the case as stated above need not be reiterated. A perusal of the impugned order is however necessary to come to a finding as to whether the Appellant has been able to make out a case on her behalf. 10. What is noticed in the impugned order is that the learned Judge District Council Court GHADC has dismissed the application for probate of the said Will dated 31.08.2004 mainly on the ground that the court lacks legal jurisdiction. In understanding the powers and jurisdiction of the District Council Courts to try suits and cases between parties who belonged to the Scheduled Tribe community within the State of Meghalaya paragraph 4 of scheduled 6 of the Constitution of India is very clear when it speaks of constitution of courts for the trial of suits and cases between the parties all of whom belonged to the Scheduled Tribe Community within such areas. This in effect would show that the District Council Courts are conferred with powers and jurisdiction to try suits and cases between members of the Scheduled Tribes community residing within the territorial jurisdiction of such courts. It may be mentioned that an application for probate of a Will has been made in accordance with the provisions of the Indian Succession Act 1925 which is a special Act. Section 264 of the said Act speaks of the jurisdiction of District Judge in granting and revoking probate and section 268 prescribed for proceedings in such case to be regulated by the code of civil procedure. It is understood that in areas where the District Council Courts exercises jurisdiction particularly in cases between two tribals the Judge District Council Court exercises powers similar to that of a District Judge and as such in this instant case it cannot be said that the learned Judge District Council Court GHADC lacks the competent jurisdiction. The impugned order on this count therefore is not sustainable. It is also observed that notwithstanding the fact that the Appellant herein has admitted and was duly observed in the impugned order that the Respondent could have been issued with notice which was not done so by the Petitioner Appellant however the import of the impugned order is that the learned Judge District Council Court GHADC has dismissed the application mainly on the ground of limitation holding that the Appellant Petitioner has not given sufficient explanation for condonation of delay and has slept over her rights for 9 10 years. 14. Again the Appellant has made an averment in the appeal indicating to the extent that after seeking leave from the Court of the learned Additional Judge District Council Court Shillong to withdraw and file a fresh petition the Appellant had preferred the petition before the Court of the Additional District Magistrate(Judicial) Willamnagar and the matter was pending in that court for about 9 10 years after which the learned Additional District Magistrate(Judicial) had declined to entertain the petition for lack of jurisdiction and only then did the Appellant filed the petition before the said District Council Court GHADC. 15. Given the facts as stated above and having held that the said Court of the Judge District Council Court GHADC has the jurisdiction to try the matter the issue of limitation ought to have been taken up taking into account the provision of Sub Section 2 of Section 14 of the Limitation Act 1963 which squarely covered the case of the Appellant Petitioner. The provision reads as follows: “14. Exclusion of time of proceeding bona fide in court without jurisdiction. …..(2) In computing the period of limitation for any application the time during which the applicant has been prosecuting with due diligence another civil proceeding whether in a court of first instance or of appeal or revision against the same party for the same relief shall be excluded where such proceeding is prosecuted in good faith in a court which from defect of jurisdiction or other cause of like nature is unable to entertain it…..” In view of the above this appeal is allowed. The impugned order is hereby set aside and quashed. Probate Case No. 19 in the Court of the Judge District Council Court GHADC is restored to file. The Appellant Petitioner as well as the Respondent herein are accordingly directed to appear before the said Court on 20.11.2021 to proceed in the case. 17. Registry is directed to return the Lower Court case record immediately. 18. Matter disposed of. No cost. Judge “D. Nary PS”

Absconder can seek anticipatory bail: Himachal Pradesh High Court

According to section 82 of Crpc the offender who has run away can seek anticipatory bail as it does not create “any riders nor imposes any restriction” on them, thus making it clear that an ‘absconder’ can approach for anticipatory bail. This remarkable judgement was passed by Himachal Pradesh High Court in the case of Mahendra Kumar versus State of Himachal Pradesh [Cr. MP (M) No. 1682 of 2020] which was headed by the Hon’ble Mr. Justice Anoop Chitkara. The petitioner was accused of raping a 15-year-old girl while she was returning from her school in the end of May 2013. The FIR was registered on 19th July 2013 under section under Sections 376, 506 of Indian Penal Code, 1860, (IPC), and 4 of Protection of Children from Sexual Offences Act, 2012, in Police Station Gohar, District Mandi, Himachal Pradesh, disclosing cognizable and nonbailable offences. The statement of the girl was recorded under section 164 CrPC after her medical examination was conducted but the police failed to capture the accused. The charge sheet was filed without arresting him. Upon the non-execution of the non-bailable warrant, the court proceeded against the accused under section 82 of CrPC and declared him as a proclaimed offender. This Court relied on the judgements passed in the case of Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730, (Para 10), where the Hon’ble Supreme Court held that “10. … Normally, when the accused is “absconding” and declared as a “proclaimed offender”, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled the relief of anticipatory bail.” The Court further state that “Section 82 of Crpc neither creates any rides nor imposes any restriction in the filing of anticipatory bails by the proclaimed offenders. Even in Lavesh’s case (supra), while laying down the law on anticipatory bails to absconders, Hon’ble Supreme Court structured the pronouncement by the words, “Normally.” An analysis of entire allegations creates a possibility of the accused smitten by love, became melancholic, and left the area on June 20, 2013, i.e., before the registration of FIR dated July 19, 2013. After that, compelled by the lockdown, and fear created by the pandemic of COVID-19, returned home, where, for the first time, he came to know about the FIR and already declared as a proclaimed offender cannot be ruled out. Resultantly, the facts and circumstances are not normal. The legal maxim Domus sua cuique est tutissimum refugium, aptly describes the plight of the accused, which means every man’s house is his safest refuge. Thus the circumstances cannot be termed as normal for the accused, and he makes out a special case for bail. A balanced approach would work as an incentive, a catalyst for proclaimed offenders to surrender to the Court of Law, speeding up the process, and bringing the guilty to Justice and Justice to the guilty.”

Hig h C o urt of H.P on 01 11 HCHP 1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACr. MP(M) No. 16820Reserved on: 25th September 2020Date of Decision: 26th October 2020 Mahender Kumar...Petitioner.VersusState of Himachal Pradesh ...Respondent.Coram:The Hon’ble Mr. Justice Anoop Chitkara Judge.Whether approved for reporting 1 YES. For the petitioner:Ms. Abhilasha Kaundal Advocate. For the respondent:Mr. Nand Lal Thakur Additional Advocate General Mr. Ram Lal Thakur Assistant A.G. and Mr. RajatChauhan Law Officer.Amicus Curiae:Mr. Ashok Tyagi AdvocateCOURT PROCEEDINGS CONVENED THROUGH VIDEO CONFERENCEAnoop Chitkara Judge.On the allegations made by a girl aged 15 years against the petitioner of havingcoitus with her in the end of May 2013 by entering her home and also raping her inforest on 30th June 2013 when she was returning from school the police registered FIRNo. 82 of 2013 dated 19.07.2013 under Sections 376 506 of Indian Penal Code 1860and 4 of Protection of Children from Sexual Offences Act 2012 in PoliceStation Gohar District Mandi Himachal Pradesh disclosing cognizable and non bailable offences.2.The Police conducted the investigation took the victim for her medicalexamination got her statement recorded under S. 164 CrPC but failed to nab theaccused. Subsequently the Police filed a charge sheet without arresting the accused.After taking cognizance of the offence the Court issued Non bailable Warrants andupon its non execution allowed the application of the prosecution and proceeded1Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 01 11 HCHP 2 against the accused under Section 82 CrPC and thus vide order dated 24.12.2013 declared the petitioner as a proclaimed offender. Per Paragraph 7 of the bail petition after that Learned Additional Sessions Judgeproceeded underSection 299 CrPC and recorded evidence including statement of the victim. 3.The petitioner s criminal history relating to the offences prescribing sentence ofgreater than seven years of imprisonment or when on conviction the sentence imposedwas more than three years: The contents of the petition and the status report do notreveal any criminal history.4.Briefly the allegations against the petitioner are that on 19.7.2013 the victim accompanied by her father visited the Police Station Gohar and complained to thePolice that she was a student of 10+1. On 22.6.2013 she had gone to stay with hermother s brother from where her school was approachable. On 30.6.2013 when shereturned from her school and was going towards her Mama s place then accused startedchasing her. When she reached near a temple then below the forest he caught hold ofher torn her clothes made her lie opened the string of her salwar and forciblycommitted rape upon her. After that he warned her that if she revealed this incident toanyone then he would do away with her life and ran away from that place. The victimfurther alleged that even earlier at the end of May when she was alone in her home andstudying in the corridor of her house the accused came there and asked her that he hadsome work with her and asked her to accompany him to her room. Upon that shefollowed him and the moment she entered the room he caught hold of her andcommitted rape upon her on the bed. From that day onwards he would threaten her thatif she revealed this incident to anyone he would do away with her life. Because of thethreat she could not tell the ordeal to her parents. She further stated that it was due tothis fear that she had shifted to her maternal uncle s place. She also alleged thatMahender Kumar would even write letters asking her to reply with warnings that failureto respond would lead to unimaginable consequences. She further stated to the Policethat because of fear of the accused on 15.7.2013 she had run away from her maternaluncle s house and gone to the forest and stayed in a cave alone for three days. On17.7.2013 when she was returning from the forest and walking to her home then on theway one Jyoti Parkash met her and brought her home. Based upon the aboveallegations the Police registered the FIR. Hig h C o urt of H.P on 01 11 HCHP 3 5.Ms. Abhilasha Kaundal Learned Counsel for the petitioner contends thatincarceration before the proof of guilt would cause grave injustice to the petitioner andfamily. She further argued that upon being declared a proclaimed offender the petitionervoluntarily approached this Court by filing a petition for anticipatory bail. Accusedexplains that he and the victim were in love and to make out an exceptional case further states that on noticing that the girl had an affair with one Jyoti Prakash it brokehis heart and feeling ignominious he became melancholic and on June 20 2013 leftfor a distant place far away from her. Accused further contends that due to theLockdown of the COVID 19 pandemic he was forced to return home and gotinformation that his girlfriend had lodged an FIR against him and he is a proclaimedoffender hence bail.6.While opposing the bail Mr. Nand Lal Thakur Learned Additional AdvocateGeneral contended that an absconder whom the Court has declared as a proclaimedoffender has no legal rights to file an application under Section 438 CrPC.7.Mr. Ashok Tyagi Learned Amicus Curiae carved out a distinction in thepronouncements of Hon’ble Supreme Court and states that this Court has thejurisdiction to grant anticipatory in peculiar facts even to a proclaimed offender.8.In Lavesh v. State(2012) 8 SCC 730 Hon’bleSupreme Court holds 10. … Normally when the accused is "absconding" and declaredas a "proclaimed offender" there is no question of grantinganticipatory bail. We reiterate that when a person against whoma warrant had been issued and is absconding or concealinghimself in order to avoid execution of warrant and declared as aproclaimed offender in terms of Section 82 of the Code is notentitled the relief of anticipatory bail. 9.In State of Madhya Pradesh v. Pradeep Sharma 2 SCC 171 Para 10 Supreme Court placing reliance upon Lavesh v. State held that it is clear from theabove decision that if anyone is declared as an absconder proclaimed offender in termsof Section 82 of the Code he is not entitled to the relief of anticipatory bail.10.In Balveer Singh Bundela v. The State of Madhya Pradesh 12 May 2020 M.Cr.C.No.5621 2020 single bench of Madhya Pradesh High Court observed Hig h C o urt of H.P on 01 11 HCHP 4 29. In other words if chance of fleeing from justice exists thenapplication under Section 438 of Cr.P.C. can be rejected andwhen a person is declared as proclaimed offender as per Section82 of Cr.P.C. it means that factorof Section 438ofCr.P.C. manifested in reality or in other words possibility ofapplicant to flee from justice converted into reality. To put itdifferently Section 82 of Cr.P.C. is manifestation of"Apprehension" as contained in Section 438factorofCr.P.C. The judgments pronounced by the Apex Court in thecase of Lavesh and Pradeep Sharmanowhere bar themaintainability of the application under Section 438 of Cr.P.C.in wake of person being declared as absconder under Sections82 and 83 of Cr.P.C. and understandably so because this wouldnot have been in consonance with letter and spirit ofConstitution Bench judgment of Apex Court pronounced in thecase of Gurbaksh Singh Sibbia etc.and Sushila Aggarwaland othersas well as two Judge Bench of Apex Courtin the case of Bharat Chaudhary and anotheras well asRavindra Saxenabecause these judgments categoricallyheld that anticipatory bail is maintainable even after filing ofcharge sheet and till the person is not arrested.33. Therefore in the considered opinion of this Court even ifthe police authority has declared award or prepared FarariPanchnama even then anticipatory bail application ismaintainable however it is to be seen on merits that whetherthat application deserves to be considered and allowed as perthe factors enumerated in Section 438 of Cr.P.C. itself and if anyof those factors are not satisfied then the Court certainly hasdiscretion to reject it. The said discretion has been given byConstitutional Bench decision of Hon ble Apex Court in thecase of Gurbaksh Singh Sibbia etc.11.Section 82 of CrPC neither creates any riders nor imposes any restrictions in thefiling of anticipatory bails by the proclaimed offenders. Even in Lavesh’s casewhile laying down the law on anticipatory bails to absconders Hon’ble Supreme Courtstructured the pronouncement by the words “Normally.” An analysis of entireallegations creates a possibility of the accused smitten by love became melancholic and left the area on June 20 2013 i.e. before the registration of FIR dated July 19 2013. After that compelled by the lockdown and fear created by the pandemic ofCOVID 19 returned home where for the first time he came to know about the FIRand already declared as a proclaimed offender cannot be ruled out. Resultantly the factsand circumstances are not normal. The legal maxim Domus sua cuique est tutissimumrefugium aptly describes the plight of the accused which means every man’s house is Hig h C o urt of H.P on 01 11 HCHP 5 his safest refuge. Thus the circumstances can not be termed as normal for the accused and he makes out a special case for bail. A balanced approach would work as anincentive a catalyst for proclaimed offenders to surrender to the Court of Law speedingup the process and bringing the guilty to Justice and Justice to the guilty.12.In Gurbaksh Singh Sibbia and others v. State of Punjab 1980SCC 565a Constitutional bench of Supreme Court held that the bail decision mustenter the cumulative effect of the variety of circumstances justifying the grant or refusalof bail. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav 2005SCC42 a three member bench of Supreme Court held that the persons accused ofnon bailable offences are entitled to bail if the Court concerned concludes that theprosecution has failed to establish a prima facie case against him or despite theexistence of a prima facie case the Court records reasons for its satisfaction for the needto release such persons on bail in the given fact situations. The rejection of bail doesnot preclude filing a subsequent application and the Courts can release on bail provided the circumstances then prevailing requires and a change in the fact situation.In State of Rajasthan Jaipur v. Balchand AIR 1977 SC 2447 SupremeCourt noticeably illustrated that the basic rule may perhaps be tersely put as bail notjail except where there are circumstances suggestive of fleeing from justice orthwarting the course of justice or creating other troubles in the shape of repeatingoffences or intimidating witnesses and the like by the petitioner who seeks enlargementon bail from the court. It is true that the gravity of the offence involved is likely toinduce the petitioner to avoid the course of justice and must weigh with us whenconsidering the question of jail. So also the heinousness of the crime. In GudikantiNarasimhulu v. Public Prosecutor High Court of Andhra Pradesh 1 SCC240 Supreme Court in Para 16 held that the delicate light of the law favoursrelease unless countered by the negative criteria necessitating that course. In DataramSingh v. State of Uttar Pradesh 3 SCC 22 Supreme Court held thatthe grant or refusal of bail is entirely within the discretion of the judge hearing thematter and though that discretion is unfettered it must be exercised judiciously and in ahumane manner and compassionately. Also conditions for the grant of bail ought not tobe so strict as to be incapable of compliance thereby making the grant of bail illusory. Hig h C o urt of H.P on 01 11 HCHP 6 13.Pre trial incarceration needs justification depending upon the offense s heinousnature terms of the sentence prescribed in the statute for such a crime probability of theaccused fleeing from justice hampering the investigation criminal history of theaccused and doing away with the victim(s) and witnesses. The Court is under anobligation to maintain a balance between all stakeholders and safeguard the interests ofthe victim accused society and State. However while deciding bail applications theCourts should discuss evidence relevant only for determining bail. The difference in theorder of bail and final judgment is similar to a sketch and a painting. However somesketches are in detail and paintings with a few strokes.14.The conduct of the victim of accompanying the accused to her bedroom withoutany resistance and subsequently without any reasons running away to the forest fromthe safe custody of her maternal uncle and staying alone in a cave for three days atleast makes out a case for bail to the petitioner. An analysis of the evidence does notjustify further incarceration of the accused nor is it going to achieve any significantpurpose making out a case for bail.15.The possibility of the accused influencing the course of the investigation tampering with evidence intimidating witnesses and the likelihood of fleeing justice can be taken care of by imposing elaborative conditions and stringent conditions. InSushila Aggarwal versus State& Another 5 SCC 1 theConstitutional Bench held that unusually subject to the evidence produced the Courtscan impose restrictive conditions.16.Given the above reasoning the Court is granting bail to the petitioner subject tothe imposition of following stringent conditions which shall be over and above andirrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC.Consequently the present petition is allowed and in the event of arrest the petitionershall be released on bail in the FIR mentioned above on his furnishing a personal bondof INR 1 00 000 with two sureties for INR 50 000to the satisfaction of the Investigator SHO of the concerned PoliceStation. The furnishing of bail bonds shall be deemed acceptance of all stipulations terms and conditions of this bail order:a)The Attesting officer shall mention on the reverse page of personal bonds the permanent address of the petitioner along with the phone number(s) Hig h C o urt of H.P on 01 11 HCHP 7 WhatsApp numberemailand details of personal bank account(s)(if available).b)The petitioner shall join investigation as and when called by theInvestigating officer or any superior officer. Whenever the investigation takesplace within the boundaries of the Police Station or the Police Post then thepetitioner shall not be called before 8 AM and shall be let off before 5 PM. Thepetitioner shall not be subjected to third degree methods indecent language inhuman treatment etc.c)The petitioner shall join and cooperate in the investigation and failure to doso shall entitle the prosecution to seek cancellation of the anticipatory bail grantedby the present order.SCC 350).d)The petitioner shall not influence browbeat pressurize make anyinducement threat or promise directly or indirectly to the witnesses the Policeofficials or any other person acquainted with the facts of the case to dissuadethem from disclosing such facts to the Police or the Court or to tamper with theevidence.e)The petitioner shall not in any manner try to delay the trial. The petitionerundertakes to appear before the concerned Court on the issuance ofsummons warrants by such Court. The petitioner shall attend the trial on eachdate unless exempted. f)There shall be a presumption of proper service to the petitioner about thedate of hearing in the concerned Court even if it takes place through SMS WhatsApp message E Mail or any other similar medium by the Court. g)In the first instance the Court shall issue summons and may inform thePetitioner about such summons through SMS WhatsApp message E Mail.h)In case the petitioner fails to appear before the Court on the specified date then the concerned Court may issue bailable warrants and to enable the accusedto know the date the Court may if it so desires also inform the petitioner aboutsuch Bailable warrants through SMS WhatsApp message E Mail.i)Finally if the petitioner still fails to put in an appearance then theconcerned Court may issue Non Bailable warrants to procure the petitioner spresence and send the petitioner to the Judicial custody for a period for which theconcerned Court may deem fit and proper. Hig h C o urt of H.P on 01 11 HCHP 8 j)In case of Non appearance then irrespective of the contents of the bailbonds the petitioner undertakes to pay all the expenditurethat the State might incur to produce him before suchCourt provided such amount exceeds the amount recoverable after forfeiture ofthe bail bonds and also subject to the provisions of Sections 446 & 446 A ofCrPC. The petitioner s failure to reimburse the State shall entitle the trial Court toorder the transfer of money from the bank account(s) of the petitioner. However this recovery is subject to the condition that the expenditure incurred must bespent to trace the petitioner and it relates to the exercise undertaken solely toarrest the petitioner in that FIR and during that voyage the Police had not gonefor any other purpose function what so ever.k)The petitioner shall intimate about the change of residential address andchange of phone numbers WhatsApp number e mail accounts within thirty daysfrom such modification to the police station of this FIR and the concerned Court if such stage arises.l)The petitioner shall neither stare stalk make any gestures remarks call contact message the victim either physically or through phone call orany other social media nor roam around the victim s home. The petitionershall not contact the victim.m)The petitioner shall abstain from all criminal activities. If done then whileconsidering bail in the fresh FIR the Court shall take into account that evenearlier the Court had cautioned the accused not to do so.n)During the trial s pendency if the petitioner repeats the offence or commitsany offence where the sentence prescribed is seven years or more then the Statemay move an appropriate application for cancellation of this bail.o)In case of violation of any of the conditions as stipulated in this order theState Public Prosecutor may apply for cancellation of bail of the petitioner.Otherwise the bail bonds shall continue to remain in force throughout the trialfollowing the mandate of the Constitutional Bench in Sushila Aggarwal’s case wherein the Constitutional bench held that anticipatory bail can continue until theend of the trial however the Courts can limit the bail period s tenure if unique orpeculiar features require. Hig h C o urt of H.P on 01 11 HCHP 9 17.The learned Counsel representing the accused and the Officer in whose presencethe petitioner puts signatures on personal bond shall explain all conditions of this bailorder to the petitioner in vernacular and if not feasible in Hindi or English.18.In case the petitioner finds the bail condition(s) as violating fundamental human or other rights or causing difficulty due to any situation then for modification of suchterm(s) the petitioner may file a reasoned application before this Court and after takingcognizance even before the Court taking cognizance or the trial Court as the case maybe and such Court shall also be competent to modify or delete any condition.19.This order does not in any manner limit or restrict the rights of the Police or theinvestigating agency from further investigation in accordance with law.20.The present bail order is only for the FIR mentioned above. It shall not be ablanket order of bail in any other case(s) registered against the petitioner.21.Any observation made hereinabove is neither an expression of opinion on themerits of the case nor shall the trial Court advert to these comments.22.The SHO of the concerned Police Station or the Investigating Officer shallarrange to send a copy of this order preferably a soft copy to the victim at the earliest.In case the victim notices stalking or any violation of this order she may either informthe SHO of the concerned Police Station or the Trial Court or even to this Court.23.In return for the protection from incarceration the Court believes that the accusedshall also reciprocate through desirable behavior.24.I express my gratitude to Mr. Ashok Tyagi Advocate learned Amicus Curiae foroutstanding assistance and also to Ms. Abhilasha Kaundal Advocate and Mr. Nand LalThakur Learned Additional Advocate General Mr. Ram Lal Thakur Deputy AG andMr. Rajat Chauhan Law Officer for excellent assistance. The petition stands allowed in the terms mentioned above. Judge.October 26 2020

Rape Survivors need not undergo “two-finger test” and identity of the victim should not be revealed in proceedings or judgment: Jammu & Kashmir High Court

Identity of the rape survivors is not be disclosed in the proceedings and judgments. Further, all the health professionals are strictly directed to desist from practicing the “two finger test” or “pre-vaginum examination” on the rape survivors. The Jammu & Kashmir high court presided over by C.J. P. Mithal & J. Sanjay Dhar laid this ratio in the case of State of J&K Vs. Mohd. Imran Khan, [SLA No. 38/2018]. The brief facts of the case are that the Prosecution sought a leave to appeal against the judgment passed by the Principal judge of the Trial Court whereby the Respondent was acquitted of the charge for offence under Section 376 of IPC. The Prosecutor contended that the Prosecutrix was a minor and had been kidnapped and a FIR was filed by the maternal grandfather later it was found that the Respondent had kidnapped and raped her. Hence a charge sheet for rape was filed against the Respondent. The Trial Court acquitted the Respondent on the basis of technicalities of the statement of the prosecutrix and for several other flimsy reasons.  Hence, the leave to appeal was filed. The High Court allowed the leave to appeal against the impugned judgment. The Division bench of the Court also observed that the victims name was repeatedly mentioned in the proceedings and the judgment. The Court with respect to this matter stated that, “Although, prohibition contained in Section 228A may not strictly apply to the judgment of a Court, yet the Courts must avoid disclosing the name(s) of prosecutrix in their orders and judgments, so as to avoid embarrassment and humiliation to a victim of rape. Rape is not merely a physical assault but it is destruction of the personality of the victim. Therefore, Courts have to act responsibly and with sensitivity while dealing with the cases of rape, particularly, while referring to the prosecutrix.” The court also relied on a few landmark judgments like the State of Punjab v. Gurmeet Singh, (1996) 2 SCC 384 & Bhupinder Sharma v. State of Himachal Pradesh (2003) 8 SCC 551, that state that “the bar imposed under Section 228A IPC did not in term apply to the printing or publication of judgments of the High Courts and the Supreme Court because of the explanation to the said provisions, yet keeping in view the social object of preventing the victims or ostracizing of victims, it would be appropriate that in judgments of all the Courts i.e. trial Courts, High Courts and the Supreme Court the name of the victim should not be indicated.”

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU through virtual mode) Reserved on: 14.12.2020 Pronounced on: 24.12.2020 SLA No.38 2018 Through : Mr. Aseem Sawhney AAG Through : None HON’BLE THE CHIEF JUSTICEHON’BLE MR. JUSTICE SANJAY DHAR JUDGE State of J&K Mohd. Imran Khan Coram: Sanjay Dhar J The State has sought leave to file appeal against the judgment dated 29.11.2017 passed by the learned Principal Sessions Judge Bhaderwah hereinafter referred to as “the trial Court”) in File No.07 Sessions Challan titled State v. Mohd. Imran Khan whereby the respondent herein has been acquitted of the charge for offence under Section 376 RPC. Briefly stated the case of the prosecution is that on 13.12.2014 the prosecturix went missing and in this regard a complaint was lodged before the police by the maternal grandfather of the prosecutirx. It was found that the prosecutrix had been kidnapped and taken away by the respondent in a car. FIR No.196 2014 for offences under Section 366 RPC was registered and SLA No. 38 2018 investigation was set into motion. On 15.12.2014 the prosecutrix was recovered from the custody of the respondent accused.The statement of the prosecutrix under Section 164 A Cr.P.C. was recorded. After investigation of the case it was found that the prosecutirx after being kidnapped was raped by the respondent and accordingly charge sheet for offences under Sections 363 376 RPC was laid before the trial Court. Charge for offence under Section 376 RPC was framed against the accused and he was put to trial. After trial of the case and hearing the parties the learned trial Court came to the conclusion that the offence against the accused respondent is not established and he was acquitted of the charge vide the impugned judgment. We have heard Mr. Aseem Sawhney learned AAG and perused It has been contended by learned counsel for the petitioner State that the prosecutrix in the instant case was minor at the time of the occurrence and she had in her statement recorded before the Court fully supported the prosecution case. According to the learned counsel the learned trial Court has disbelieved the statement of the prosecutrix on technicalities and for flimsy Keeping in view the contentions raised by the learned AAG a prima facie case for grant of leave to file appeal is made out. Accordingly the application is allowed and the leave to appeal against the impugned judgment is granted in favour of the petitioner. Main appeal be diarized. The same is admitted to hearing. Post admission notice be issued to the respondent. the record. SLA No. 38 2018 for hearing in due course. The Registry shall prepare the paper book and process the appeal Before parting with the order it is necessary to comment on certain things which we have noticed from a perusal of the impugned judgment. The learned trial Judge has mentioned the name of the prosecutrix at several places in the said judgment which is impermissible in law. Section 228A of IPC prohibits disclosure of identity of the victim of certain offences which includes offence under Section 376 IPC. In pari materia to the aforesaid provision is Section 228A of the J&K Ranbir Penal Code which was applicable to the case at hand at the relevant time. Although prohibition contained in Section 228A may not strictly apply to the judgment of a Court yet the Courts must avoid disclosing the name(s) of prosecutrix in their orders and judgments so as to avoid embarrassment and humiliation to a victim of rape. Rape is not merely a physical assault but it is destruction of the personality of the victim. Therefore Courts have to act responsibly and with sensitivity while dealing with the cases of rape particularly while referring to the prosecutirx. This issue has been a matter of discussion before the Supreme Court and various High Courts of the country in a number of cases. In State of Punjab v. Gurmeet Singh 2 SCC 384 the Supreme Court while emphasizing that victims of sexual abuse or assault need to be treated with sensitivity during investigation and trial and that trial of rape cases should be generally held in camera made the following observations: “It would enable the victim of crime to be a little comfortable and answer the questions with greater ease in SLA No. 38 2018 not too familiar a surroundings. Trial in camera would not only be in keeping with the self respect of the victim of crime and in tune with the legislative intent but is also likely to improve the quality of the evidence of a prosecutrix because she would not be so hesitant or bashful to depose frankly as she may be in an open court under the gaze of public. The improved quality of her evidence would assist the courts in arriving at the truth and sifting truth from falsehood. ….. The Courts should as far as possible avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim of sex crime. The anonymity of the victim of the crime must be maintained as far as possible throughout. In the present case the trial court has repeatedly used the name of the victim in its order under appeal when it could have just referred to her as the prosecutrix. We need say no more on this aspect and hope that the trial Courts would take recourse to the provisions of Sections 327 andCr. P.C. liberally. Trial of rape cases in camera should be the rule and an open trial in such cases an exception.” emphasis supplied) In Bhupinder Sharma v. State of Himachal Pardesh8 SCC 551 the Supreme Court while referring to Section 228A IPC held as “We do not propose to mention the name of the victim. Section 228A of the Indian Penal Code 1860 makes disclosure of the identity of victims of certain offences punishable. Printing or publishing the name or any matter which may make known the identity of any person against whom an offence under Sections 376 376A 376B 376C or 376D is alleged or found to have been committed can be punished. True it is the restriction SLA No. 38 2018 does not relate to printing or publication of judgment by the High Court or the Supreme Court. But keeping in view the social object of preventing social victimization or ostracism of the victim of a sexual offence for which Section 228A has been enacted it would be appropriate that in the judgments be it of a High Court or a lower court the name of the victim should not be indicated. We have chosen to describe her as “victim” in the judgment.” The afore noted judgments of the Supreme Court were noted with the approval by the Supreme Court in the case of Nipun Saxena v. Union of India and others 2 SCC 703and it was held that though the bar imposed under Section 228A IPC did not in term apply to the printing or publication of judgments of the High Courts and the Supreme Court because of the explanation to the said provisions yet keeping in view the social object of preventing the victims or ostracizing of victims it would be appropriate that in judgments of all the Courts i.e. trial Courts High Courts and the Supreme Court the name of the victim should not be indicated. From afore noted judgments of the Supreme Court it is clear that all Courts are bound to avoid disclosure of name of rape victim(s) in the court proceedings as well as in their judgments. This dictum of law it seems has been ignored by the learned trial Court in the instant case. We therefore feel a need to reiterate and remind the trial Courts of the Union Territories of Jammu Kashmir and Ladakh to follow the aforesaid dictum in letter and spirit while dealing with cases of rape and crime against women. Another issue that has come to our notice from the reading of the trial Court record and the impugned judgment is that the prosecutrix in this case SLA No. 38 2018 has been subjected to “two finger test”. The International Covenants on Economic Social and Cultural Rights 1966 United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985 provide that rape survivors are entitled to medical procedures conducted in a manner that respects their right to consent. As per these Covenants State is under an obligation to make such services available to survivors of sexual violence and that proper measure should be taken to ensure their safety and there should be no arbitrary or unlawful interference with their privacy. On the basis of aforesaid Covenants the Supreme Court in the case of Lillu and others v. State of Haryana 14 SCC 643 came to the conclusion that “two finger test” and its interpretation violates the right of rape survivors to privacy physical and mental integrity and dignity. Thus “two finger test” has been declared as unconstitutional. Apart from the above Ministry of Health and Family Welfare Govt. of India has issued guidelines and protocols for health professionals for dealing with survivors of sexual violence. Guideline 18 B is relevant to the context and the same is reproduced as under: “18. Local examination of genital parts other orifices B.In case of female survivors the vulva is inspected systematically for any signs of recent injury such as bleeding tears bruises abrasions swelling or discharge and infection involving urethral meatus & vestibule labia majora and minora fourchette introitus and hymen. •Examination of the vagina of an adult female is done with the help of a sterile speculum lubricated with warm saline sterile water. Gentle retraction allows for inspection of the SLA No. 38 2018 vaginal canal. Look for bruises redness bleeding and tears which may even extend onto the perineum especially in the case of very young girls. In case injuries are not visible but suspected look for micro injuries using good light and a magnifying glass colposcope whatever is available. If 1% Toluidine blue is available it is sprayed and excess is wiped out. Micro injuries will stand out in blue. Care should be taken that all these tests are done only after swabs for trace evidence are collected. •Per speculum examination is not a must in the case of children young girls when there is no history of penetration and no visible injuries. The examination and treatment as needed may have to be performed under general anaesthesia in case of minors and when injuries inflicted are severe. If there is vaginal discharge note its texture colour odour. •Per Vaginum examination commonly referred to by lay persons as two finger test must not be conducted for establishing rape sexual violence and the size of the vaginal introitus has no bearing on a case of sexual violence. Per vaginum examination can be done only in adult women when medically indicated. •The status of hymen is irrelevant because the hymen can be torn due to several reasons such as cycling riding or masturbation among other things. An intact hymen does not rule out sexual violence and a torn hymen does not prove previous sexual intercourse. Hymen should therefore be treated like any other part of the genitals while documenting examination findings in cases of sexual violence. Only those that are relevant to the episode of assaultare to be documented. SLA No. 38 2018 • Genital findings must also be marked on body charts and numbered accordingly.” From a perusal of the aforesaid guidelines it is clear that “two finger test” which as per the medical term is called per vaginum examination has been strictly prohibited under the guidelines and protocols issued by the Ministry of Health and Family Welfare Government of India. It is pertinent to mention here that these guidelines stand adopted by the Government of Union Territory of J&K and are applicable to the health professionals of the Union Territory with full force. Inspite of all this in the instant case it appears that the prosecutrix who was minor at the relevant time has been subjected to two finger test which must have violated her privacy physical and mental integrity and dignity. It is the need of the hour to implement the ban on “two finger test” on rape survivors with full force and in this regard a direction is required to be extended to all the health professionals of Union Territories of Jammu and Kashmir and Ladakh so that the judgment of the Supreme Court and guidelines and protocols issued by the Ministry of Health and Family Welfare Govt. of India on the subject are taken seriously. In view of what has been discussed hereinbefore we direct that all the Courts in the Union Territories of Jammu & Kashmir and Ladakh to avoid disclosing identity of rape survivors in their proceedings and judgments. A further direction is issued to all the health professionals of Union Territory of Jammu & Kashmir and Union Territory of Ladakh to strictly desist from SLA No. 38 2018 undertaking “two finger test” known as “per vaginum examination” on the rape Copies of this order be sent to the Registrar General of the High Court and Secretaries to the Govt. Health Department of Union Territories of J&K and Ladakh with a direction to circulate the order to all Courts Hospitals for ensuring its compliance in letter and spirit. survivors. Judge Chief Justice(Rajesh Bindal) Whether the order is speaking: Yes Whether the order is reportable: Yes

Sole Arbitrator Cannot Be Appointed Solely By One Party: High Court Of New Delhi

The present petition before this Court is to appoint sole Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996, and the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MR. JUSTICE SURESH KUMAR KAIT, in the matter PRET STUDY BY JANAK FASHIONS PRIVATE LIMITED V. DHANI LOANS AND SERVICES, LIMITED dealt with an issue mentioned above. The petitioner was a person who was engaged in the business of retail of garments all over the country under its brand “Study by Janak” and which become the one-stop-shop for luxury Indian designer wear and couture for its customers. On the other hand, the respondent is a Non-Banking Financing Company (NBFC). According to the petitioner, He got sanctioned three loan facilities ARB.P. 1049/2021 from the respondent of Rs.15 crores vide agreement dated 25.04.2018 and Rs.1.60 crores vide agreement dated 28.04.2018 and Rs.10 lakhs vide agreement dated 28.04.2018. And also Petitioner got sanctioned a loan facility of Rs.15 crores against the property from the respondent and the loan was on the adjustable interest rate for 144 months by way of 144 equated monthly instalments starting from 05.06.2018 till August 2030. As per the repayment schedule dated 13.07.2018, with the total number of EMIs too. Were rate of interest was also increased from 12% p.a. to a fixed rate of interest of 12.20% p.a. w.e.f. 05.07.2018. Meanwhile, the petitioner made a written complaint to the respondent for an arbitrary and wrongful increased rate of interest without prior ARB.P. 1049/2021  intimation or consent of the petitioner. However, the respondent did not respond to the abovesaid complaint of the petitioner. It is further submitted that in November 2020, the petitioner again approached the respondent for releasing of one of three properties situated at Karol Bagh, New Delhi secured against the three loans, respondent issued a conditional No Objection Certificate (NOC) on 13.01.2021 wherein it was agreed to release the said property subject of payment of Rs.14,83,95,000/-. On 15.01.2021, the petitioner made the payment and requested the respondent to release the charge against the property situated at Karol Bagh. Learned counsel for the petitioner submitted that petitioner has already invoked arbitration vide notice dated 19.08.2021 under clause 12 of the agreement and prayed this Court to appoint an Arbitrator to adjudicate the disputes between the parties, which is not disputed by learned counsel for the respondent. Accordingly, Mr Justice (Retd.) Vinod Goel is appointed sole Arbitrator to adjudicate the disputes between the parties. The court perused the facts and argument’s presented, it believed that- “The arbitration shall be conducted under the Delhi International Arbitration Centre (DIAC). The fee of the Arbitrator shall be following the schedule of fees prescribed under the Delhi International Arbitration Centre (DIAC) (Internal Management) Rules and Delhi International Arbitration Centre (Administrative Cost and Arbitrators’ Fees) Rules, 2018. The learned Arbitrator shall ensure compliance with Section 12 of the Arbitration and Conciliation Act, 1996 before commencing the arbitration. The present petition is accordingly disposed of”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 26.10.2021 ARB.P. 1049 2021 & I.A.13814 2021 PRET STUDY BY JANAK FASHIONS PRIVATE LIMITED Through Ms.Vanika Gupta Adv. Petitioner DHANI LOANS AND SERVICES LIMITED Respondent Through Ms.Sangeeta Sondhi Ms.Ruchi Gour Narula & Mr.Gorang Goyal Advs. HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENTThe relief sought in the present petition before this Court is to appoint sole Arbitrator under Section 11(6) of the Arbitration and Conciliation Act 1996 to adjudicate the dispute between the parties. Pertinently petitioner is engaged in the business of retail of garments all over the country under its brand “Study by Janak” and has become one stop shop for luxury Indian designer wear and couture for its customers. On the other hand respondent is a Non Banking Financing Companyon 13.01.2021 wherein it was agreed to release the said property subject of payment of Rs.14 83 95 000 . On 15.01.2021 petitioner made the payment and requested the respondent to release the charge against the property situated at Karol Bagh in respect of the conditional NOC wherein as per the NOC respondent was to adjust Rs.14 78 09 904 towards the principal of loan facility of Rs.15 crores and an amount of Rs.5 85 096 would be left as principal outstanding amount which had to be paid by the petitioner. Thereafter respondent had illegally deducted EMI of Rs.2 52 088 from ARB.P. 1049 2021 petitioner’s bank account since 05.02.2021 and on 23.06.2021 issued a notice under Section 13(2) of the SARFAESI Act. At the hearing learned counsel for petitioner submitted that petitioner has already invoked arbitration vide notice dated 19.08.2021 under clause 12 of the agreement and prayed this Court to appoint an Arbitrator to adjudicate the disputes between the parties which is not disputed by learned counsel for respondent. However the claims made in the present petition are disputed and the same can be adjudicated by an Arbitrator. Accordingly Mr. JusticeVinod Goelis appointed sole Arbitrator to adjudicate the disputes between the parties. The arbitration shall be conducted under the Delhi International Arbitration Centre(Internal Management) Rules and Delhi International Arbitration CentreRules 2018. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act 1996 before commencing the arbitration. The present petition is accordingly disposed of. ARB.P. 1049 2021 10. A copy of this order be sent to DIAC and the learned Arbitrator for JUDGE SURESH KUMAR KAIT) OCTOBER 26 2021 ab ARB.P. 1049 2021

In cases of Writ in the nature of Mandamus, necessary arrangements should be made to do a fruitful investigation: Calcutta High Court

In respect of the issue of mortgaged property and restoration of possession, it was found that the dispute was of civil nature between the private parties. Such an opinion was held by The Hon’ble High Court of Calcutta before The Hon’ble Mr. Chief Justice Prakash Shrivastava and The Hon’ble Mr. Justice Rajarshi Bharadwaj in the matter of Dinesh Agarwal Vs. State of West Bengal & Ors [MAT 863 of 2021 With IA CAN 1 2021]. The Writ petitioner questioned the correctness of the order passed by the Single Judge on 14.07.2021. It was found by the Single Judge that the dispute raised by the appellant was of civil nature. According to the submissions by the appellant, the police failed to justify the civil dispute and wrongly handed over the possession of the premises and goods kept therein to the private respondent. The counsel representing the respondents opposed the prayer and submitted that based upon factual controversy the appellant tries to set up the entire story and approached the required forum and establish it by way of evidence. It was reported that the official respondents had denied the plea of forcible dispossession by filing an affidavit in opposition and disclosing that 4 women including 2 senior citizens were locked in the premises in question and on receiving an intimation they were rescued.  The Hon’ble Court considering all the facts stated that “The perusal of the order passed by the learned Single Judge reveals that the issues raised by the appellant have been duly considered and appropriate conclusions have been drawn. In this view of the matter, we do not find any informity or illegality in the order of the learned Single Judge. Hence, no case is made out to interfere in the order of the learned Single Judge. The appeal is found to be devoid of any merit which is accordingly dismissed.”

Pronounced on: 16.11.2021 IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION Appellate Side) MAT 8621 IA CAN 1 2021 Reserved on: 10.11.2021 Vs Dinesh Agarwal Present: State of West Bengal & Ors. ...Respondents Mr. Dinesh Agarwal ... Appellant in person. Mr. Suvadip Bhattacharjee Mr. Balaram Patra Advocates for the respondent nos. 7 and 8 Mr. Amitesh Banerjee Mr. Tarak Kanan Advocates for the State. Coram: THE HON’BLE JUSTICE PRAKASH SHRIVASTAVA CHIEF JUSTICE THE HON’BLE JUSTICE RAJARSHI BHARADWAJ Prakash Shrivastava CJ: By this appeal correctness of the order of the learned Single Judge dated 14.07.2021 passed in WPA No. 108520 has been MAT 8621 questioned by the writ petitioner. The learned Single Judge has found that the dispute raised by the appellant is of civil nature and a factual Submission of the appellant in person is that the police is not justified in saying that it is civil dispute and that the police has wrongly handed over the possession of the premises and goods kept therein to the private respondent. Opposing the prayer learned Counsel for the respondent has submitted that the entire story which the appellant has tried to set up is based upon the factual controversy for which he is required to approach the appropriate forum and establish it by way of evidence. He submits that the police authorities have rescued the persons who were forcibly locked inside the premises. Having heard the learned Counsel for the parties and perusal of the records it is noticed that the appellant had come to the writ court with the plea that the premises in question was mortgaged in which he had started his business and was forcibly dispossessed therefrom. Following was the prayer made in the writ petition. A writ in the nature of Mandamus by directing the respondents their agents servants mainly the Respondent No. 1 and 2 to conduct an enquiry and suspend the respondent no. 5 and start departmental proceedings against the concerned officer that is respondent nos. 3 4 and 6. A writ in the nature of Mandamus directing the Respondent Nos. 1 and 2 to handover and restore the possession of the mortgaged property to the mortgagee A writ in the nature of mandamus directing the respondent nos. 1 and 2 for make necessary arrangements to do a fruitful investigation and taken necessary action in connection to Bidhannagar Police Station case no. MAT 8621 107 dated 25 8 2020 under section 341 323 406 506 of the Indian Penal Code 1860. and make the rule absolute. Rule N.I.S.I. in terms of prayer(b) andabove e) Pass such other or orders as Your Lordship may deed fit and proper.” The official respondents had denied the plea of forcibly dispossession by filing an affidavit in opposition and disclosing that 4 women including 2 senior citizens were locked in the premises in question and on receiving an intimation they were rescued. In the light of the aforesaid learned Single Judge has duly considered each of the prayers made by the appellant and has reach to the conclusion that considering the affidavit of the official respondents conclusion cannot be drawn that the police personnel were guilty of latches and breaches as complained of by the petitioner. In respect of the issue of mortgaged property and restoration of possession it has been found that the dispute is of civil nature between the private parties. Hence liberty has been granted to approach the appropriate forum in accordance with law. In respect of the police case a direction has been issued to conclude the investigation and submit a report before the jurisdictional Court within a time bound period. The perusal of the order passed by the learned Single Judge reveals that the issues raised by the appellant have been duly considered and appropriate conclusions have been drawn. In this view of the matter we do not find any informity or illegality in the order of the learned Single Judge. Hence no case is made out to interfere in MAT 8621 the order of the learned Single Judge. The appeal is found to be devoid of any merit which is accordingly dismissed. PRAKASH SHRIVASTAVA) CHIEF JUSTICE JUDGE

Concurrent findings of fact of first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction u/s 100 of CPC: High Court of Delhi

The power of the High Court to interfere in second appeal under section 100 Code of Civil Procedure is limited solely to decide a substantial question of law, if at all the same arises in the case and the same was upheld by High Court of Delhi through the learned bench led by Justice Prathiba M. Singh in the case of RAMESHWAR SINGH vs. THE CHIEF SECRETARY, GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI & ANR. [CM APPLs. 4984/2022] on 28.01.2022. The facts of the case are that the plaintiff purchased a plot of land from one Sh. Kanwar Singh and Sh. Risal Singh, vide registered sale deed. According to the Plaintiff, he constructed a porch on the said property a decade before filing the suit in 2005 against threats made by defendant. It was sometime in December, 2005, that officials of the GNCTD made threats for demolition of the porch marked in red colour in the site plan averring that the porch has been constructed upon pusta. It was this threat which led to the filing of the suit. The trail court dismissed the suit on the ground that the plaintiff failed to prove his case. Thereafter, even the appeal was dismissed by the appellate court. The petitioner has filed a second appeal under section 100 Code of Civil Procedure requesting a restrain on the Defendant and their agents, servants, employees, workers, assigns, nominees from forcibly and illegally demolishing the porch constructed in the property of the Plaintiff. The plaintiff’s counsel submitted that the Trial Court has wrongly non-suited the Plaintiff. He submitted that since the sellers were not produced as witness before the Trial Court, therefore, case of the Plaintiff was not proved. Considering the facts and circumstances, the Court was of the opinion that no interference with the concurrent findings of the lower courts was warranted in the present second appeal as it cannot be said that the view taken by the first appellate court was based on no material. Accordingly, the present appeal was dismissed. The Court observed that, “It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction Under Section 100 of Code of Civil Procedure. The power of the High Court to interfere in second appeal under section 100 Code of Civil Procedure is limited solely to decide a substantial question of law, if at all the same arises in the case”. Click here to read the Judgment

22 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 28th January 2022 RSA 12 2022 & CM APPLs. 4984 2022 4985 2022 RAMESHWAR SINGH Through: Mr. Devraj Singh Advocate. ..... Appellant THE CHIEF SECRETARY GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI & ANR. JUSTICE PRATHIBA M. SINGH Through: None. ..... Respondents Prathiba M. Singh J.This hearing has been done through video conferencing. The present second appeal arises out of a suit for permanent injunction filed by the Appellant Plaintiff in December 2005 against the Defendant Government of NCT of Delhi. The relief sought in the plaint is as under: the Defendant “It is therefore most respectfully prayed that this Hon’ble Court may be pleased to: a) Restrain their agents servants employees workers friends assigns nominees from forcibly and the porch constructed in the property of the Plaintiff being marked Red in color in the site plan annexed along with the plaint. illegally demolishing b) The costs of this suit may also be allowed in favour of the Plaintiff and against the Defendants. c) Any other and such further relief as this Hon’ble court may deemed fit and proper under RSA 12 2022 circumstances of the case may also be granted in favour of the Plaintiff.” The said suit came to be dismissed vide order dated 28th April 2014 in suit no. 177 2014 titled Shri Rameshwar Singh v. The Chief Secretary Govt. of NCT of Delhi passed by the Civil Judge Central 05 Delhi hereinafter “Trial Court”) on the ground that the Plaintiff failed to prove his case. An appeal was preferred by the Plaintiff against the said order in RCA 61015 2016 titled Rameshwar Singh v. The Chief Secretary. However even the said appeal came to be dismissed by the ASJ 02 South East Saket Delhivide the impugned order dated 30th July 2021 which has been challenged in the present second appeal before this Court. The case of the Plaintiff is that he purchased a plot of land admeasuring 1000 square yards forming part of Khasra No. 64 4 2 from one Sh. Kanwar Singh and Sh. Risal Singh vide registered sale deed dated 4th October 1985. According to the Plaintiff the plot was bounded on the East by a private Raasta having 10 feet width on the West by a Raasta of 15 feet width on the North by land belonging to a third party and on the South by a Raasta of 30 feet width. From the said plot the Plaintiff sold 450 square yards to different purchasers from time to time. According to the Plaintiff he constructed a porch on the property which was constructed a decade before filing of the suit in 2005. It was sometime in December 2005 that officials of the GNCTD made threats for demolition of the porch marked in red colour in the site plan averring that the porch has been constructed upon pusta. It was this threat which led to the filing of the suit. RSA 12 2022 In the written statement the GNCTD took the plea that the Plaintiff’s claim is wrong and misleading and that the Raasta which is 10 feet wide on the East side of the Plaintiff’s property is being used as a public utility for more than 20 years over which the porch has been constructed. In the written statement the plea taken was that even as per the sale deed only the land was sold in favour of the Plaintiff and there was no the Raasta on the East which was sold to the Plaintiff. Thus the Raasta was not part of the property which was sold to the Plaintiff and it was for common use. Trial was held in the suit and parties led their evidence. Witnesses were produced both by the Plaintiff as also the Defendant. On behalf of the Plaintiff the Plaintiff examined himself as PW 1 and also examined the Head Constable Virendra Singh Police Station Nangloi as PW 2. The Record Keeper in the office of Sub Registrar of Kashmere Gate was also summoned to produce the sale deed marked as Ex. PW3 1. On behalf of the Defendant Defendant examined one Sh. M.S. Narwal who has filed his evidence by way of affidavit marked as Ex DW1 A and along with Sarza plan. following conclusions: After analysing the sale deed on record the Trial Court came to the “16. At this juncture it would be worthwhile to reproduce the relevant portion of the sale deed dated 4th October 1985. Exhibit PW 3 1 which is as under: Whereas the vendors are co owner occupiers and in absolute possession in a piece of land measuring i bigha i.e. 1000 square yards part of Khasra No. 64 4 2 situated in the area of village Nangloi jaat Delhi and bounded as under: RSA 12 2022 East: Raasta 10 feet wide North: Other’s Property West: Raasta 15 feet wide South: Raasta 30 feet wide In the entire sale deed and even in the portion as reproduced above there is no mention that the Plaintiff purchased the property vide sale deed Exhibit PW 3 1 bound by a private Raasta having 10 feet width left by the original sellers from their own property. All that the sale deed Ex. PW 3 1 mentions that the property purchased by the Plaintiff has a 10 feet wide Raasta on the East. The version of the Plaintiff that the said 10 feet wide Raasta on the East was left by the original sellers from their own property is neither mentioned in the sale deed nor has been proved by the Plaintiff. The best evidence for proving this fact were the depositions of the sellers Shri Kanwar Singh and Shri Risal Singh which the Plaintiff did not produce in his evidence. Furthermore if for an instance it is assumed that in the sale deed Exhibit PW3 1 the said 10 feet wide Raasta on the East was left by the original sellers from their own property then by that analogy even the 15 feet wide Raasta on the West and 30 feet raasta on the South must also have been left by the original sellers from their own property. But the Plaintiff does not claims so and claims that only 10 feet wide raasta on the East was left by the original sellers from their own property which is contrary to the contents of the Sale Deed Exhibit PW 3 1.” Thus in view of these fact that the Plaintiff was unable to prove his case as to rights in the 10 feet Raasta on the East side the suit was dismissed vide judgment dated 28th April 2014. The appeal against the said order had also been dismissed by the Appellate Court. The finding of the Appellate Court is as under: RSA 12 2022 they were not “22. The official witnesses examined by plaintiff did not probablize the case of plaintiff with regard to aforesaid aspects and therefore their testimonies are discarded by me being inconsequential in nature. Testimonies of plaintiff witnesses were bereft of relevant details and Therefore I discarded the same. So far as defendant no. 2 is concerned it examined DW2 M.S. Narwal Executive Engineer Irrigation and Flood Control Department. This witness stuck to his version that 10th ft. wide raasta on east side was not the property of plaintiff. Coupled with the same in his cross examination he deposed that said raasta on east side of plot in question was part of bank of drain i.e. Pusta. This witness did not place on record any specific document showing the fact that said 10th ft. wide raasta was a public land. Lack of evidence with regard to said reply did not probablize the case of plaintiff. Said lack of evidence at the most can be seen as a shortcoming in the case of defendant no. 2. Said shortcoming did not probablize the case of plaintiff as the case of plaintiff has to stand on his own legs as per judge made laws. Even otherwise plaintiff has put suggestion to this witness that said 10th ft. wide raasta on east side of plot in question was left by plaintiff in his own property alongwith the length of the property. Said suggestion was refuted by this witness. Even otherwise said contention of plaintiff was not mentioned in the plaint. Therefore said suggestion was an improvement on the part of plaintiff which did not probablize the case of plaintiff. Thus I discarded the said claim of plaintiff. The net result is that plaintiff failed to prove his case based on preponderance of probabilities. Ld. Trial Court rightly dismissed the suit of plaintiff. In view of the aforesaid appreciation present appeal has no merits and stands dismissed. No order as to cost. Decree Sheet be prepared accordingly Trial Court RSA 12 2022 Record be sent back along with copy of this judgment.” The submission made by Mr. Devraj ld. Counsel appearing for the Plaintiff Appellant is that the Trial Court has wrongly non suited the Plaintiff. He submits that in the present case a substantial question arises as to whether the Trial Court was right in holding that since the sellers were not produced as witness before the Trial Court the case of the Plaintiff was not 10. Heard. An analysis of the Trial Court’s judgment clearly shows that the Trial Court has perused the sale deed and has also reviewed the evidence on record. Thereafter the Trial Court has come to the conclusion that the 10ft. Raasta on the East was not part of the land which was sold. The Trial Court only made a passing observation that the best evidence to prove the Plaintiff’s case would have been the sellers whom the Plaintiff did not produce. In the opinion of this Court the question as to whether the sellers are required to be produced in such a case would not be a substantial question of law as the Plaintiff has chosen to lead evidence in the manner it best thought. The production of these two witnesses or otherwise did not have a bearing on the Trial Court’s judgment because in any case the Trial Court has analysed the sale deed and evidence in detail and has come to the conclusion that the Plaintiff could not prove his case. 12. Thus in the opinion of this Court the Appellate Court also having upheld this very finding no substantial question of law arises in this matter and there is no ground for warranting interference against the concurrent findings of the Trial Court. It is settled law that in a second appeal the scope RSA 12 2022 of interference is quite narrow. The Supreme Court in C Doddanarayana Reddy by LRs & Ors v C Jayarama Reddy by LRs & Ors AIR 2020 SC 1912 has held as under: “25. The question as to whether a substantial question of law arises has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman E Ismail Madris Un Niswan: 6 SCC 343 it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under: the practice of 12. This Court had repeatedly held that the power of the High Court to interfere in second appeal Under Section 100 Code of Civil Procedure is limited solely to decide a substantial question of law if at all the same arises in the case. It has the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on 13. In Ramanuja Naidu v. V. Kanniah Naiduthis Court held: It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction Under Section 100 of Code of Civil Procedure. The Single Judge of the High Court totally misconceived his the second in deciding appeal Under Section 100 of the Code in the way he did. 14. In Navaneethammal v. Arjuna Chetty this Court held: Interference with the concurrent findings of the courts below by the High Court Under Section 100 Code of Civil Procedure must be avoided unless warranted by RSA 12 2022 compelling reasons. In any case the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.” 13. The Supreme Court recently in KN Nagarajappa & Ors. v. H Narsimha Reddy [Civil Appeal Nos. 5033 5034 of 2009 decided on 2nd September 2021 has reiterated the above position of law. 14. After considering the aforesaid judgments this Court is of the opinion that no interference with the concurrent findings of the lower courts is warranted in the present second appeal. Accordingly the present appeal is devoid of merit and is dismissed along with all pending applications. PRATHIBA M. SINGH JUDGE JANUARY 28 2022 Aman SK RSA 12 2022

“Appellant files appeal after approximately eight months after the last date permissible under the RTI Act.”: SEBI, Part 2.

The respondent, in response to the query number 1, informed the number of complaints received by SEBI against Anugrah Stock Broking Pvt Ltd., during the period from April 01, 2020 to September 15, 2020. With respect to query numbers 2 and 4, the respondent informed that SEBI will not be able to confirm/deny the existence or otherwise of any examination/ communication notes in the matter for which information has been sought by the appellant. The respondent also informed that the requested information is exempted under Section 8(1)(d) of the RTI Act. However, it was informed that NSE is conducting forensic audit and based on the findings, if any, SEBI may take appropriate action as deemed fit. Further, any such proceedings for action is conducted confidentially because of their sensitive nature. It was also informed that pursuant to examination/ analysis, if any regulatory action is taken by SEBI, the same would be available in the public domain, on the SEBI website. With respect to query number 3, the respondent observed that the query is vague and not specific and accordingly, cannot be construed as seeking “information” as defined under section 2(f) of the RTI Act. The appellant has filed the appeal on the ground that access to the requested information was refused. The appellant, in her appeal, reiterated the queries raised in her application. On perusal of the query number 1 and it was found that the respondent has provided the information regarding number of complaints received by SEBI against Anugrah Stock & Broking Pvt Ltd. On perusal of the appeal, it was noted that the appellant has not made any specific submission against the response provided by the respondent. In this regard, it was noted that the Hon’ble High Court of Delhi in the matter of Ms Vandana Mittal v. CIC and Others [W. P. (C) 7244/2009] held that if no ground for interference in the impugned response is made out in the appeal, such appeal is liable to be rejected. In view of these observations, it was found that no interference was warranted at this stage.

Appeal No. 43621 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43621 Aarti Harshad Patil CPIO SEBI Mumbai The appellant had filed an application dated September 12 2020 under the Right to Information Act 2005 of the RTI Act an aggrieved person may prefer the first appeal within thirty days from the receipt of the response from the CPIO of the concerned public authority. In the instant case the impugned response from the respondent is dated October 05 2020. The appellant therefore should have filed the first appeal on or before expiry of thirty days from the date of receipt of the said response. As noted above the appellant has filed this first appeal on July 13 2021 i.e. approximately eight months after the last date permissible under the RTI Act. In this appeal the appellant has neither requested for condonation of delay nor made any submission regarding the reason for the delay. In the absence of any reason that prevented the appellant from filing the first appeal in time I consider this appeal as time barred and hence liable to be dismissed. 3. Notwithstanding the above observation I consider the appeal on merit. I have carefully considered the application the response and the appeal and find that the matter can be decided based on the material 4. Queries in the application The appellant vide her application dated September 12 2020 sought the available on record following information: 1. How many investors have filed complaint against Anugrah Stock & Broking Pvt Ltd and status thereof. 2. Record of all communication between Anugrah Stock & Broking Pvt Ltd and SEBI NSE and BSE 3. Any other matter which is of importance in the matter of Anugrah Stock & Broking Pvt Ltd Appeal No. 43621 4. As per circular SEBI HO MIRSD DPIEA CIR P 2020 115 dated 1st Jul 2020 What is the status of implementation in Anugrah Stock & Broking Pvt Ltd case. The respondent in response to the query number 1 informed the number of complaints received by SEBI against Anugrah Stock Broking Pvt Ltd. during the period from April 01 2020 to September 15 2020. With respect to query numbers 2 and 4 the respondent informed that SEBI will not be able to confirm deny the existence or otherwise of any examination communication notes in the matter for which information has been sought by the appellant. The respondent also informed that the requested information is exempted under Section 8(1)(d) of the RTI Act. However it was informed that NSE is conducting forensic audit and based on the findings if any SEBI may take appropriate action as deemed fit. Further any such proceedings for action is conducted confidentially because of their sensitive nature. It was also informed that pursuant to examination analysis if any regulatory action is taken by SEBI the same would be available in the public domain on the SEBI website. With respect to query number 3 the respondent observed that the query is vague and not specific and accordingly cannot be construed as seeking “information” as defined under section 2(f) of the RTI Act. 6. Ground of appeal The appellant has filed the appeal on the ground that access to the requested information was refused. The appellant in her appeal reiterated the queries raised in her application. 7. Query number 1 I have perused the query and I find that the respondent has provided the information regarding number of complaints received by SEBI against Anugrah Stock & Broking Pvt Ltd. On perusal of the appeal I note that the appellant has not made any specific submission against the response provided by the respondent. In this regard I note that the Hon’ble High Court of Delhi in the matter of Ms Vandana Mittal v. CIC and Others7244 2009] held that if no ground for interference in the impugned response is made out in the appeal such appeal is liable to be rejected. In view of these observations I find that no interference is warranted at this stage. 8. Query numbers 2 and 4 I note that the appellant had sought record of all communication between Anugrah Stock & Broking Pvt Ltd and SEBI NSE and BSE. The appellant also sought status of implementation of SEBI Circular dated July 01 2020 with respect to the case of Anugrah Stock & Broking Pvt Ltd. On consideration I note that a response neither confirming nor denying existence of examination communication notes is justified where disclosure of existence of examination or otherwise would itself amount to disclosure of exempted information. It is understood that SEBI receives alerts and references from various sources and these may or may not result in further action by SEBI such as examination or investigation. Further such examination or investigation may or may not Appeal No. 43621 establish the suspected violations or lead to enforcement actions. Maintaining confidentiality of investigation is important since reports of an investigation may result in unwarranted speculation or concern in the market or may affect evidence collection during the investigation or may result in unnecessary harm to third parties. Further the respondent informed that if any regulatory action is initiated by SEBI pursuant to the examination analysis the same would be available on the website of SEBI. In view of these observation I agree with the response that SEBI will not be able to confirm deny existence of examination in the present matter. I note that the respondent also denied the requested information by invoking the provisions of sections 8(1)(d) of the RTI Act. In this regard I am of the opinion that SEBI being the regulatory authority for the securities market gets various references documents from market participants and the information contained in those documents may contain information in the nature of commercial confidence disclosure of which may adversely impact the competitive position of the concerned entities. Having regard to the aforesaid I find that the disclosure of the requested information may cause irreparable damage to the reputation of that entity and may also affect its competitive position and therefore the same is exempted from disclosure under section 8(1)(d) of the RTI Act. Accordingly I do not find any deficiency in the response. 10. Query number 3 Upon a perusal of the query I note that the same is vague. Further it is difficult to ascertain what exact information has been sought by the appellant. I am inclined to agree with the observation of the respondent that the request for information made therein was vague and not specific and the same cannot be construed as seeking “information” as defined under section 2(f) of the RTI Act. In this context I note that in the matter of Shri S. C. Sharma vs. CPIO Securities and Exchange Board of India Decision dated August 30 2012) the Hon’ble CIC held: “Since the Appellant had not clearly stated what exact information he wanted the CPIO could not have provided any specific information to him. We would like to advise the Appellant that he might like to specify the exact information he wants from the SEBI and prefer a fresh application before the CPIO.” In view of these observations I find that the respondent is not obliged to provide a response where the information sought is vague and not specific. Accordingly I do not find any deficiency in the response. 11. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The appeal is accordingly dismissed. Appeal No. 43621 Place: Mumbai Date: August 09 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

Government Order in the case of compassionate ground appointment may be accepted from another legal heir of the deceased Government servant – Madras High Court

“The application submitted by the appellant after a lapse of 16 years, cannot be considered”. These were stated by double bench of Hon’ble Mr. Justice M. Duraiswamy & Hon’ble Mr. Justice J. Sathya Narayana Prasad in the case of G.G.Sharma v. The Director of School Education & Ors. (W.A. No.1127 of 2021) The father of the appellant had died in harness on 18.07.2001 and that his mother made an application for compassionate appointment on 29.10.2001. Subsequently, the said application was remanded back to the applicant, namely Tmt. Selvakumari, for want of additional details. Thereafter, the writ petitioner submitted a fresh application dated 21.03.2018 seeking for compassionate appointment. The learned single Judge, taking into consideration the submission made by both the parties, dismissed the writ petition. Stating that the appellant submitted a fresh application after a lapse of 16 years. It is settled law that an application seeking for compassionate appointment should be made within three years from the date of death of the employee. Learned counsel appearing for the appellant submitted that, as per G.O. (Ms) No.18 Labour and Employment (Q1) Department dated 23.01.2020, if the applicant (legal heir of the deceased Government Servant) died after applying for compassionate ground appointment, an alternative application may be accepted from the another legal heir of the deceased Government servant, subject to the conditions prescribed for compassionate ground appointment and therefore, the application submitted by the appellant should have been accepted by the respondent. The double bench of Hon’ble Mr. Justice M. Duraiswamy & Hon’ble Mr. Justice J. Sathya Narayana Prasad on a careful perusal of the said Government Order dismissed the Writ Appeal and stated that it is clear that the said Government Order is applicable only in the case of the applicant, who is the legal heir of the deceased Government servant had died after applying for compassionate ground appointment. In such circumstances, alternatively an application may be accepted from another legal heir of the deceased Government servant. In the case on hand, the mother of the appellant, namely Tmt.Selvakumari, is very much alive and therefore, the said Government Order, cannot be made applicable to the case of the appellant. So far as the remand of the application to Tmt.Selvakumari seeking for additional details is concerned, the appellant has not disputed the said contention in the affidavit filed in support of his writ petition. In these circumstances, the application submitted by the appellant after a lapse of 16 years, cannot be considered. The learned single Judge has rightly dismissed the writ petition. We do not find any ground to interfere with the order of the learned single Judge. Click here to read the judgement

W.A. No.11221IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17.12.2021CORAM :THE HON BLE MR. JUSTICE M. DURAISWAMYANDTHE HON BLE MR. JUSTICE J. SATHYA NARAYANA PRASADWrit Appeal No.11221G.G.Sharma...AppellantVs. 1.The Director of School Education DPI Complex College Road Chennai 600 006.2.The Chief Education Officer Salem District Salem3.The District Education Officer Sankagiri Salem District4.The Headmaster Government High School Kaveripuram Post Mettur Taluk Salem District....RespondentsPrayer : Writ Appeal filed under Clause 15 of the Letters Patent against the order dated 27.07.2020 made in W.P.No.96520.For Appellant : Mr.S.Doraisamy for Mr.V.ElangovanFor Respondents: Ms.Mythereya Chandra Special Government PleaderJUDGMENTPage No. https: www.mhc.tn.gov.in judis W.A. No.11221(Delivered by M. DURAISWAMY J.) Challenging the order dated 27.07.2020 passed in W.P. No.96520 the writ petitioner has filed the above writ appeal. 2. The appellant has filed the writ petition to issue a writ of certiorarified mandamus to call for the records relating to the order of rejection dated 26.05.2020 on the file of the first respondent and to quash the same and consequently directing the respondents to provide suitable employment to the petitioner on compassionate ground.3. It is not in dispute that the father of the appellant had died in harness on 18.07.2001 and that his mother made an application for compassionate appointment on 29.10.2001. Subsequently the said application was remanded back to the applicant namely Tmt.Selvakumari for want of additional details. Thereafter the writ petitioner submitted a fresh application dated 21.03.2018 seeking for compassionate appointment. 4. The learned single Judge taking into consideration the submission made by both the parties dismissed the writ petition. Challenging the same the above writ appeal has been filed by the writ petitioner.5. On a careful consideration of the materials available it could be Page No. https: www.mhc.tn.gov.in judis W.A. No.11221seen that the appellant s mother submitted her application seeking for compassionate appointment on 29.10.2001. In the order impugned in the writ petition the first respondent has stated that the application submitted by the mother of the appellant was remanded back to her for want of additional details. Instead of re presenting the application the appellant submitted a fresh application after a lapse of 16 years. It is settled law that an application seeking for compassionate appointment should be made within three years from the date of death of the employee.6. Mr.S.Doraisamy learned counsel appearing for the appellant submitted that as per G.O.No.18 Labour and EmploymentDepartment dated 23.01.2020 if the applicantdied after applying for compassionate ground appointment an alternative application may be accepted from the another legal heir of the deceased Government servant subject to the conditions prescribed for compassionate ground appointment and therefore the application submitted by the appellant should have been accepted by the respondent. 7. But on a careful perusal of the said Government Order it is clear that the said Government Order is applicable only in the case of the applicant who is the legal heir of the deceased Government servant had died after applying for compassionate ground appointment. In such Page No. https: www.mhc.tn.gov.in judis W.A. No.11221circumstances alternatively an application may be accepted from another legal heir of the deceased Government servant. In the case on hand the mother of the appellant namely Tmt.Selvakumari is very much alive and therefore the said Government Order cannot be made applicable to the case of the appellant.7. So far as the remand of the application to Tmt.Selvakumari seeking for additional details is concerned the appellant has not disputed the said contention in the affidavit filed in support of his writ petition. In these circumstances the application submitted by the appellant after a lapse of 16 years cannot be considered. The learned single Judge has rightly dismissed the writ petition. We do not find any ground to interfere with the order of the learned single Judge.8. Accordingly the Writ Appeal is dismissed. However there is no order as to costs.[J.S.N.P. J.]17.12.2021AsrIndex: Yes NoInternet: Yes To1.The Director of School EducationPage No. https: www.mhc.tn.gov.in judis W.A. No.11221 DPI Complex College Road Chennai 600 006.2.The Chief Education Officer Salem District Salem3.The District Education Officer Sankagiri Salem District4.The Headmaster Government High School Kaveripuram Post Mettur Taluk Salem District.Page No. https: www.mhc.tn.gov.in judis W.A. No.11221M. DURAISWAMY J.and J. SATHYA NARAYANA PRASAD J.AsrWrit Appeal No.11221 17.12.2021Page No.

Appellant has 8 queries regarding Karvy’s closure cum transfer application: SEBI, Part 4.

It was found that the said queries cannot be construed as seeking ‘information’ as defined under section 2 (f) of the RTI Act. In this context, reference is made to the matter of Vineet Pandey vs. CPIO, United India Insurance Company Limited (Judgment dated January 21, 2021), wherein similar observations were made by the Hon’ble CIC. Further, in the matter of Shri Shantaram Walavalkar vs. CPIO, SEBI (Decision dated January 17, 2013), it was noted that the Hon’ble CIC held: “… we would also like to observe that, under the Right to Information (RTI) Act, the citizen has the responsibility to specify the exact information he wants; he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO…”. In view of the said observations, the respondent did not have an obligation to provide such clarification/opinion under the RTI Act. Notwithstanding the above, it was noted82 that the respondent has informed regarding action that can be taken by an investor/ complainant, if he is not satisfied with the redressal of his complaint. It was fond that the queries have been adequately addressed. Accordingly, he did not find any deficiency in the response. Further, on perusal of the appeal, it appears that the appellant has grievance regarding the activities of the TM and handling of complaints on the SCORES portal. It was noted that the Hon’ble CIC, in the matter of Sh. Triveni Prasad Bahuguna vs. LIC of India, Lucknow (Decision dated September 6, 2012), held: “The Appellant is informed that … redressal of grievance does not fall within the ambit of the RTI Act rather it is up to the Appellant to approach the correct grievance redressal forum…”. In view of these observations, it was found that if the appellant has any grievance, the remedy for the same would not lie under the provisions of the Right to Information Act, 2005.

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

Conviction on the same day will not render vote of the Legislative Assembly Member invalid : Supreme Court

A vote cast by a member of the Legislative Assembly will not be considered invalid, consequent upon his/her disqualification arising out of a conviction. The Supreme Court bench consisting of Hon’ble Chief Justice S A Bobde, J. A S Bopanna and J. V Ramasubramanian decided on the matter of Pradeep Kumar Sonthalia v. Dhiraj Prasad Sahu @ Dhiraj Sahu & Anr. [Civil Appeal No. 611 of 2020], which was an election petition questioning the validity of  a vote caste by a member who later faced conviction. The biennial elections for 2 seats in the Council of States from the State of Jharkhand was conducted on 23.03.2018 wherein a total of 80 members of the Legislative Assembly cast their vote. One Shri Amit Kumar Rao cast his vote at 9.15 AM and was later convicted at 2.30 PM of various offences on the same day. The Election Petitioner was declared defeated with a total of 2599 value of votes whereas the candidates who were duly elected had secured 2601 and 2600 value of votes. Pradeep Kumar Sonthalia (petitioner) lodged an objection requesting the Returning Officer to declare Shri Amit Kumar Rao’s vote invalid on the basis of his conviction. An Election Petition was filed by the defeated candidate in the High Court who dismissed the same inspite of deciding majority of the issues in favour of the petitioner and refused to grant any relief to the election petitioner, primarily on the ground that “the election to the Council of States by a system of proportional representation by means of single transferable vote, is a highly complex, technical issue and that it is not possible for the Court to find out whether the election petitioner could have won the election, if that one vote had been rejected”. Two main issues were framed by the SC – Whether the vote cast by Shri Amit Kumar Rao was to be treated invalid on account of the disqualification suffered by the voter under Article 191(1)(e) of the Constitution of India read with Section 8(3) of the Representation of the People Act, 1951 by virtue of his conviction? Ans if yes, then whether the petitioner was entitled to be declared as duly elected automatically?

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 611 0F 2020 PRADEEP KUMAR SONTHALIA … APPELLANT(S DHIRAJ PRASAD SAHU @ DHIRAJ SAHU & ANR. …RESPONDENT(S CIVIL APPEAL NO. 2159 OF 2020 JUDGMENT S.A. Bobde CJI An interesting but important question of far reaching consequence arises for consideration in these appeals. It is this “Whether the vote cast by a Member of the Legislative Assembly in an election to the Rajya Sabha in the forenoon on the date of election would become invalid consequent upon his disqualification arising out of a conviction and sentence imposed by a Criminal Court in the afternoon on the very same day ” We have heard learned counsel for the parties The brief facts sufficient for answering the issue arising for consideration in these appeals are as follows: By a notification dated 05.03.2018 the Election Commission of India notified the biennial elections for two seats in the Council of States from the State of Jharkhand Three candidates by name Pradeep Kumar Sonthalia Samir Uraon and Dhiraj Prasad Sahu filed their nominations on 12.03.2018. It is stated that the first two candidates belonged to the Bharitya Janata Party and the third candidate belonged to the Indian National CongressOn 23.03.2018 the election was held between 9.00 A.M. and 4.00 P.M. at the Vidhan Sabha. A total of 80 members of the Legislative Assembly of the State of Jharkhand cast their votes One Shri Amit Kumar Mahto who was an elected member of the Assembly belonging to Jharkhand Mukti Morcha Partywould have it Shri Amit Kumar Mahto was convicted by the Court of the Additional Judicial Commissioner XVIII Ranchi in Sessions Trial No.481 of 2010 for the offences punishable under Sections 147 323 149 341 149 353 149 427 149 and 506 149 IPC on the same day but the conviction and sentence were handed over at 2.30 P.M. He was sentenced to various periods of imprisonment for those offences but all of them were to run concurrently. The maximum punishment was for the offence under Section 506 149 and the Court awarded RI for a period of two years Since the election to the Council of States is by a system of proportional representation by means of single transferable vote the counting of votes began at 7.30 P.M on 23.03.2018 Out of the 80 votes cast two were declared invalid by the Returning Officer. The remaining 78 votes which were validly cast were converted into pointsand Pradeep Kumar Sonthalia was declared to have secured 2599 value of votes Samir Uraon was declared to have secured 2601value of votes and Dhiraj Prasad Sahu was declared to have secured 2600 value of votes. Thus the election petitioner was declared defeated and the other two declared duly elected It appears that an objection was lodged at 11.20 P.M requesting the Returning Officer to declare the vote cast by Shri Amit Kumar Mahto invalid on the basis of the conviction and sentence imposed in the afternoon on the same day by the Criminal Court viii) However the Returning Officer went ahead and declared the results at 12.15 A.M. on 24.03.2018. Shri Samir Uraon and Shri Dhiraj Prasad Sahu were declared by the Returning Officer to be duly elected and they were also issued with a certificate in Form No. 24 in terms of Rule 85 of the Conduct of Election Rules 1961 Therefore Pradeep Kumar Sonthalia the defeated candidate filed an election petition in Election Petition No.01 2018 praying for a declaration that the Returning Officer has caused improper reception of the void vote of Shri Amit Kumar Mahto He also prayed for setting aside the election of Shri Dheeraj Prasad Sahu with a consequential declaration that the petitioner was duly elected as a member of Rajya Sabha The High Court framed as many as 6 issues for consideration in the Election Petition and they are as follows: Whether Shri Amit Kumar Mahto has cast his vote in favour of respondent no. 1 in Biennial Election to the Council of States 2018 in connection with State of Whether on conviction and sentence of two years in Sessions Trial No. 4810 by the Additional Judicial Commissioner XVIII Ranchi Shri Amit Kumar Mahto ceased to be a Member of Legislative Assembly and his disqualification came into effect immediately from the date of his conviction and sentence of two years and therefore the vote of Shri Amit Kumar Mahto could not have been taken into consideration at the time of Whether the disqualification of Shri Amit Kumar Mahto rendered his vote void illegal that was cast to respondent no.1 and therefore reception of his vote was improper and thus in terms of Section 100(d of the Representation of People Act 1951 the election of respondent no. 1 is liable to be declared void Whether the communication from the Returning Officer e mail dated 24.03.2018) rejecting the objection made on behalf of the petitioner on the ground that the Returning Officer had not received the judgment of conviction of Shri Amit Kumar Mahto till the declaration of the results is absolutely illegal and unlawful Whether disqualification of Shri Amit Kumar Mahto in terms of Section 8of the Representation of People Act 1951 takes effect from the date of his conviction and sentence of two years i.e. 23.03.2018 which means the day as per English calendar beginning at midnight and covering a period of 24 hours i.e. with effect from 23.03.2018 at 00.00 hours The respondent no. 1 having been declared to be elected in the Biennial Election to the Council of States 2018 by a margin of 0.01 vote and in the event the vote of Shri Amit Kumar Mahto which has been received improperly is ignored then whether the petitioner is entitled to be declared successful and consequently for being elected as a Member of Rajya Sabha By a judgment dated 17.01.2020 the High Court dismissed the Election Petition after recording a finding in favour of the election petitioner on Issue Nos. 1 2 3 & 5. On Issue Nos. 4 6 the High Court did not record any finding Despite deciding Issue Nos. 1 2 3 & 5 in favour of the election petitioner the High Court refused to grant any relief to the election petitioner primarily on the ground that the election to the Council of States by a system of proportional representation by means of single transferable vote is a highly complex technical issue and that it is not possible for the Court to find out whether the election petitioner could have won the election if that one vote had been rejected Finding that the surgery was successful but the patient died the election petitioner has come up with one appeal in Civil Appeal No.611 of 2020. Aggrieved by the findings on Issue Nos. 1 2 3 & 5 one of the two returned candidates namely Shri Dhiraj Prasad Sahu has come up with the other appeal namely Civil Appeal No.2159 of 2020.For the purpose of convenience we refer to the appellant in Civil Appeal No. 6120 as the appellant throughout and the appellant in the other appeal as the returned candidate Before proceeding further it must be recorded that there is no dispute either before us or before the High court about the fact that Shri Amit Kumar Mahto cast his vote at 9.15 A.M. on 23.03.2018 and that the judgment of the criminal court was rendered at 2.30 p.m. on the very same day Before the High court a preliminary objection was raised about the validity of the presumption on the part of the election petitioner that Sri. Amit Kumar Mahto cast his vote in favour of Shri Dhiraj Prasad Sahu. Unless Shri Amit Kumar Mahto had cast his vote in favour of Shri Dhiraj Prasad Sahu the entire edifice on which the election petition was built could have crumbled. Therefore the Returning Officer Mr. Binay Kumar Singh was examined as PW 1 and through him the original ballot paper by which Shri Amit Kumar Mahto cast his vote was marked as Exhibit 9. On the basis of the same the High Court came to the conclusion that Shri Amit Kumar Mahto cast his vote in favour of Shri Dhiraj Prasad Sahu the Congress candidate. It was also clear from the evidence of PW 1 and Exhibit 9 that Shri Amit Kumar Mahto did not cast his 2nd 3rd and 4th preference vote. Therefore the validity of the vote cast by Amit Kumar Mahto assumed significance especially in view of the margin Since the factual position that Amit Kumar Mahto cast his vote in favour of Dhiraj Prasad Sahu has now become unassailable many of the issues framed by the High Court have now paled into insignificance. There are only 2 issues which now survive for consideration and they are: Whether the vote admittedly cast by Shri Amit Kumar Mahto in favour of Shri Dhiraj Prasad Sahu at 9.15 A.M. on 23.03.2018 should be treated as an invalid vote on account of the disqualification suffered by the voter under Article 191(1)(e) of the Constitution of India read with Section 8(3) of the Representation of the People Act 1951 by virtue of his conviction and sentence by the Sessions Court in a criminal case rendered at 2.30 P.M. on the very same date 23.03.2018 Whether in the event of the first issue being answered in the affirmative the election petitioner is entitled to be declared as duly elected automatically It is needless to say that the second question as formulated above would arise only if the answer to the first question is in the affirmative and not otherwise Before proceeding further we may point out that two ancillary issues namelythe non joinder of the Election Commission of India as a party to the election petition andthe absence of a specific prayer for recounting of votes were also dealt with by the High Court These issues may have gained importance but for the appeal filed by Shri Dhiraj Prasad Sahu against the findings on Issue Nos. 1 2 3 & 5 Therefore these ancillary issues need not deter us at this stage The primary contention of Shri Mukul Rohatgi and Shri K.V Vishwanathan learned senior counsel appearing for the defeated candidate who is the appellant in the first civil appeal is that wherever a statute uses the word “date” with reference to an event courts have always interpreted the same to have happened at the intersection of the previous day and the present day namely 00.01 a.m. This is firstly because it is at that time that the day begins and secondly because law abhors fractions. Therefore it is their contention that though the Sessions Court delivered its judgment of conviction and sentence at 2.30 P.M. on 23.03.2018 the date of such conviction is deemed in law to have commenced at about 00.01 A.M when the date of March 22 lapsed and the date of March 23 began. It is the further contention of the learned Senior Counsel that if the time at which the judgment was delivered is irrelevant and the focus is actually on the date of conviction then the disqualification would also commence at 00.01 A.M. on 23.03.2018. As a corollary the vote cast at 9.15 A.M. on 23.03.2018 would be a vote by a disqualified member and thus invalid In order to test the veracity of the above contention it is necessary first to take note of the relevant provisions of the Constitution and the Representation of the People Act 1951 Article 191 of the Constitution speaks of the circumstances under which a person will be treated as disqualified either for being chosen asor for being a member of the State Legislative Assembly. The language of Article 191 makes it clear that it covers both a contest in an election and the continuance in office after getting elected. It reads as follows: “191. Disqualifications for membership 1) A person shall be disqualified for being chosen as and for being a member of the Legislative Assembly or Legislative Council of a State a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule other than an office declared by the Legislature of the State by law not to disqualify its holder b) if he is of unsound mind and stands so declared by a competent court c) if he is an undischarged insolvent d) if he is not a citizen of India or has voluntarily acquired the citizenship of a foreign State or is under any acknowledgement of allegiance or adherence to a foreign State if he is so disqualified by or under any law made by Parliament Explanation. For the purposes of this clause] a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for 2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the If a person being a member of the Assembly suffers a disqualification his seat becomes vacant. This situation is taken care of by Article 190 which reads as follows “190. Vacation of seats 3) If a member of a House of the Legislature of a a) becomes subject to any of the disqualifications mentioned in clauseor clauseof Article 191 or b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman as the case may be and his resignation is accepted by the Speaker or the Chairman as the case may be his seat shall thereupon become vacant: Provided that in the case of any resignation referred to in sub clauseif from information received or otherwise and after making such inquiry as he thinks fit the Speaker or the Chairman as the case may be is satisfied that such resignation is not voluntary or genuine he shall not accept such resignation]” It is clear as daylight that the event which causes the disqualification under Article 191(1)(e) read with Section 8(3) is a conviction of a person for any of the specified offences. The consequence of such disqualification is that the seat becomes vacant Obviously therefore a Member of the Legislative Assembly who has become disqualified and whose seat has become vacant is not entitled to cast his vote for electing a representative from his State under Article 80(4) which provides that the representatives of each State “shall be elected by the elected members”. His name is liable to be deleted from the list of members of the State Legislative Assembly maintained under Section 152 of the Representation of the People Act 1951. He ceases to be an elector in relation to election by assembly member and cannot cast his vote The Representation of the People Act 1951 was enacted for the purpose of providing for the conduct of elections of both houses of Parliament and to the House Houses of State Legislatures the qualifications and disqualifications for membership of those houses the corrupt practices etc. . Section 8 of the Act deals with disqualification on conviction for certain offences. For the purpose of disqualification the offences are classified in section 8 into 3 categories namely i) offences falling under sub sectionii) offences falling under sub sectionand iii) offences not falling either under sub sectionor under sub The disqualification results in the Member becoming liable to be removed from the list of voters under Section 152 of the Representation of the People Act 1951 though the actual deletion may take time. In any case he ceases to be an elector vide Rule 2(d of the Conduct of Election Rules 1961 which provides that an elector in relation to an election by assembly members means any person entitled to vote at that election 16. We are concerned in this case with sub sectionof section 8 as Amit Kumar Mahto was convicted for offences which do not fall either under sub sectionor under sub sectionof section 8 alone is extracted as follows: “8. Disqualification on conviction for certain 3) A person convicted of any offence and sentenced to imprisonment for not less than two yearsor sub sectionshall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.]” The disqualification under Section 8 of Act 43 of 1951 is relatable to Article 191(1)(e) of the Constitution. Therefore any interpretation to Section 8 should be in sync with the Constitutional As this Court had an occasion to point out in Saritha S. Nair vs. Hibi Eden1 Section 8(3) of the Act deals both with the conditions of disqualification and with the period of disqualification. As regards the period of disqualification Section 8(3) is comprehensive in that it indicates both the commencement of the period and its expiry. The date of conviction is prescribed to be the point of commencement of disqualification and the date of completion of a period of six years after release is prescribed as the point of expiry of the period of 1 SLPNo. 106720 dated 08 12 2020 19. Once the period of disqualification starts running the seat hitherto held by the person disqualified becomes vacant by virtue of Article 190(3) of the Constitution. While speaking about the seat of the disqualified person becoming vacant Article 190(3) uses the expression “thereupon”. We may have to keep this in mind while interpreting the words “the date of such conviction” 20. One fundamental principle that we may have to keep in mind while interpreting the phrase appearing in Section 8(3) is that in cases of this nature the Court is not dealing with a fundamental right or a common law right. As pithily stated by this Court in Jyoti Basu vs Devi Ghosal2 an election dispute lies in a special jurisdiction and hence it has to be exercised without importing concepts familiar to common law and equity unless they are ingrained in the statute itself. We may usefully extract the relevant portion of the decision in Jyoti Basu which reads as follows: “8. A right to elect fundamental though it is to democracy is anomalously enough neither a fundamental right nor a Common Law Right. It is pure and simple a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute there is no right to elect no right to be elected and no right to dispute an election. Statutory creations they are and therefore subject to statutory limitation. An Election petition is not an action at Common Law nor in equity. It is a statutory proceeding to which neither the Common Law nor the principles of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction and a special jurisdiction has always to be exercised in accordance with the statutory creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless 21 SCC 691 21. Placing heavy reliance upon the decision of this Court in Pashupati Nath Singh vs. Harihar Prasad Singh3 it is contended that wherever the statute uses the words “on the date” it should be taken to mean “on the whole of the day” and that law disregards as far as possible fractions of the day But in our considered view Pasupati Nath Singh hardly supports the contention of the Appellant. In that case the election to the Bihar legislative Assembly from Dumro constituency was in issue As per the schedule the filing of nominations was to take place from 13.01.1967 to 20.01.1967. The date of scrutiny of nomination papers was fixed as 21.01.1967. The returning officer upon scrutiny of nominations on 21.01.1967 rejected the nomination paper of the Appellant before this Court on the ground that he had not made and subscribed the requisite oath or affirmation as enjoined by clauseof Art. 173 of the Constitution before the date fixed for scrutiny of nomination paper. In other words is a candidate entitled to make and subscribe the requisite oath when objection is taken before the Returning Officer or must he have made and subscribed the requisite oath or affirmation before the scrutiny of nomination The answer to the above question turned on the interpretation to Section 36(2) of the Act clauseof which used the words “on 3 AIR 1968 SC 1064 the date fixed for scrutiny”. The contention of the appellant before this court in Pashupati Nath Singh was that he was entitled to take the oath or affirmation before the Returning Officer immediately after an objection is made but before the objection was considered by the Returning officer. Since Section 36(2)(a) uses the expression “on the date fixed for scrutiny” it was contended by the appellant in Pashupati Nath Singh that the whole of the day on which the scrutiny took place was available to him. However this contention was rejected by this Court in the following manner: “16. In this connection it must also be borne in mind that law disregards as far as possible fractions of the day. It would lead to great confusion if it were held that a candidate would be entitled to qualify for being chosen to fill a seat till the very end of the date fixed for scrutiny of nominations. If the learned counsel for the petitioner is right the candidate could ask the Returning Officer to wait till 11.55 p.m on the date fixed for the scrutiny to enable him to take the oath” In other words this Court interpreted the words “date” in Pashupati Nath Singh not necessarily to mean 00.01 A.M. to 24.00 P.M. This was despite the fact that in common parlance a date would mean 24 hours in time. But the running of time got arrested the moment the nomination of the appellant in Pashupati Nath Singh was taken up for scrutiny. Thus the benefit of the whole day of 24 hours was not made available by this court in Pashupati Nath Singh to the appellant therein and the act of the Returning officer in drawing the curtains down at the happening of the event namely scrutiny of nomination papers was upheld by this court in Pashupati Nath Singh. 25. In fact Pashupati Nath Singh can be said to be a mirror image or the converse of the case on hand. In the case on hand the period of commencement of an event is in question while in Pashupati Nath Singh the period of conclusion was in issue. If the date on which scrutiny was taken up can be held to have ended at the time when the event of scrutiny was taken up we should by the very same logic hold that the date of commencement of an event such as conviction and the consequent disqualification should also begin only from the time when the event happened In fact the argument of the appellant in this case is a double edged weapon. If the event of conviction and sentencing that happened at 2.30 P.M. on 23.03.2018 can relate back to 00.01 A.M. the event of voting by Shri. Amit Kumar Mahto which happened at 9.15 A.M. can also relate back to 00.01 A.M. Once both of them are deemed to relate back to the time of commencement of the date the resulting conundrum cannot be resolved. This why the emphasis in Pashupati Nath Singh was to provide an interpretation that will avoid confusion. The learned Senior Counsel for the appellant relied upon the decision of this Court in Prabhu Dayal Sesma vs. State of Rajasthan4in support of their contention that a legal date commences after 12 o’ clock midnight and continue until the same hour of the following night. But Prabhu Dayal Sesma arose in the context of Rule 11B of the Rajasthan State and Subordinate Services 44 SCC 59 Rules 1962 which prescribed the minimum and maximum age for participation in the selection for direct recruitment to Rajasthan Administrative Service. The appellant in that case was born on 02.01.1956 and Rule 11B prescribed that an applicant for participation in the selection must not have attained the age of 28 years on the first day of January next following the last date fixed for receipt of application. Therefore when a notification was issued in the year 1983 the upper age limit was to be reckoned as on January 1 1984. Since the appellant was born on 02.01.1956 and attained the age of 28 years on 01.01.1984 his candidature was rejected. It was in such circumstances that this Court took note of Section 4 of the Indian Majority Act 1875 which stipulated the method of computation of the age of any person. In view of the fact that Rule 11B used the words “must not have attained the age of 28 years” this court concluded that the appellant therein attained the said age at 12 o’clock midnight when January 1 was born. We should point out here that if Prabu Dayal Sesma concerned a case of retirement he would be taken to have attained the age of superannuation on January 1 by the very same logic but at 2400 hours on January 1. But Rule 11B mandated that the candidate “must not have attained”. Therefore Prabhu Dayal Sesma also does not go to the rescue of the appellant. 28. Tarun Prasad Chatterjee vs. Dinanath Sharma5 relied upon by the learned senior counsel for the appellant concerned the question of computation of the period of limitation for filing an 58 SCC 649 Election petition under section 81(1) of the R.P. Act 1951. Therefore this Court referred to Section 9 of the General Clauses Act 1897 that laid down the manner in which statutes prescribing the commencement and termination of time can be worded by using expressions such as “from” and “to”. But this decision is also of no assistance to the appellant for the simple reason that Section 8(3) of the Act uses the word “from” as well as the expression “the date of conviction” and Tarun Prasad Chatterjee concerned the interpretation to be given only to the word “from” 29. In any case Tarun Prasad Chatterjee need not have gone as far as the General Clauses Act since Section 12(1) the Limitation Act 1963 itself provides for the exclusion of the date from which the period of limitation is to be reckoned while computing the period of 30. We must point out at this juncture that even in criminal law there is a vast difference betweenthe interpretation to be given to the expression “date” while calculating the period of imprisonment suffered by a person andthe interpretation to be given to the very same expression while computing the period limitation for filing an appeal revision. Say for instance a person is convicted and sentenced to imprisonment and also taken into custody pursuant thereto on 23.03.2018 the whole of the day of March 23 will be included in the total period of incarceration. But in contrast the day of March 23 will be excluded for computing the period of limitation for filing an appeal Though one contrasts the other both interpretations are intended to benefit the individual Placing reliance upon the decision of the Constitution bench in B.R Kapur vs. State of T.N. & Anr.6 it was contended by the learned senior counsel for the appellant that the disqualification under Article 191 of the Constitution and Section 8 of the R.P. Act is not a penal provision and that therefore the question of beneficial construction would not arise especially when the object of such disqualification is to cleanse politics 32. We have no doubt that disqualification is not a penal provision and that the object of disqualification is to arrest criminalisation of But what triggered the disqualification in this case under Section 8(3) was a conviction by a criminal Court for various offences under the Penal Code. Therefore the phrase “the date of conviction” appearing in Section 8(3) should receive an interpretation with respect to the penal provisions under which a person was convicted The rule that a person is deemed innocent until proved guilty is a long standing principle of constitutional law and cannot be taken to be displaced by the use of merely general words. In law this is known as the principle of legality and clearly applies to the present case. In Pierson vs Secretary of State for the Home Department7 House of Lords held that unless there be clearest 67 SCC 231 73 All ER 577 provision to the contrary Parliament is presumed not to legislate contrary to rule of law which enforces ‘minimum standard of fairness both substantive and procedural’. In our view to hold that a Member of the Legislative Assembly stood disqualified even before he was convicted would grossly violate his substantive right to be treated as innocent until proved guilty. In Australia this principle has been described as an aspect of the rule of law “known both to Parliament and the Courts upon which statutory language will be interpreted”8. In the present case it would be significant to add that it is not necessary to make a declaration incompatible in the use of the word “date” with the general rule of law since the word “date” is quite capable of meaning the point of time when the event took place rather than the whole day The well known presumption that a man is innocent until he is found guilty cannot be subverted because the words can accommodate both competing circumstances. While it is known that an acquittal operates on nativity no case has been cited before us for the proposition that a conviction takes effect even a minute prior to itself. Moreover the word “date” can be used to denote occasion time year etc. It is also used for denoting the time up to the present when it is used in the phrase “the two dates”. Significantly the word “date” can also be used to denote a point of time etc.83 ALJR 327 para 47 To say that this presumption of innocence would evaporate from 00.01 A.M. though the conviction was handed over at 14.30 P.M would strike at the very root of the most fundamental principle of Criminal Jurisprudence. Inasmuch as a conviction for an offence is under a penal law it cannot be deemed to have effect from a point of time anterior to the conviction itself. As rightly pointed by Dr. A.M. Singhvi this court held in Union of India vs. M S G.S Chatha Rice Mills9 that legal fiction cannot prevail over facts where law does not intend it to so prevail. It was a case where a notification was issued by the Government of India under section 8A of the Customs Tariff Act 1975 introducing a tariff on all goods originating in or exported from Pakistan. The notification was uploaded on the e gazette at 20:46:58 hours on 16.02.2019. The Government of India took a stand that the enhanced rate of duty was applicable even to those who had already presented bills of entry for home consumption before the enhanced rate was notified in the e gazette. The importers successfully challenged the claim of the customs authorities before the High court and the Union of India came up on appeal to this Court. An extensive analysis was made in Section H of the decision in M S G.S. Chatha Rice Mills on the interpretation of the words “day” and “date”. After taking note of several decisions some of which arose under the law of Limitation some under the law of Insurance and some under the Election law this Court pointed out that these expressions were construed in varying contexts and that a general position in law divorced from 9SCC Online SC 770 subject context and statute has not been laid down. As succinctly put by this Court “Legislative silences create spaces for creativity” and that “between interstices of legislative spaces and silences the law is shaped by the robust application of The decision in K Prabhakaran vs. P Jayarajan10 relied upon by the learned Senior Counsel for the appellant did not deal with the question that we are now confronted with. It was a case wherethe effect of several sentences of imprisonment each for a period of less than 2 years ordered to run consecutively and not concurrently thereby totalling to more than the period prescribed under section 8(3) of the Act andthe effect of the decision of the Appellate Court rendered in a criminal case after the election was over were in question. It is in that context that the Constitution Bench held in K Prabhakaran that Section 8 of the R.P Act has to be construed in harmony with the provisions of Cr.P.C so as to give effect to the provisions contained in both Cases arising under the law of insurance have no relevance to cases of disqualification. Even under the law of insurance different principles of interpretation have been carefully nurtured and developed. For instance New India Assurance Company Limited vs. Ram Dayal & Ors.11 this Court was concerned with a case where a vehicle had insurance cover upto 31.08.1984 which was not renewed. However a fresh policy was taken on 28.09.1984. It was on 101 SCC 754 112 SCC 680 the very same day that the vehicle got involved in an accident. The Motor Accident Claims Tribunal upheld the repudiation of liability by the insurer but the High Court held that the policy of insurance obtained on the date of the accident became operative from the commencement of the date of insurance namely from the previous midnight. While upholding the view taken by the High Court by a short order this Court referred to In Re F.B. Warren12 wherein it was held that a judicial act will be referred to the first moment of the day on which it is done. However in a subsequent decision in National Insurance Company Limited vs. Jijubhai Nathuji Dabhi Ors.13 this Court explained the decision in Ram Dayalby stating that the same would hold good only in the absence of any specific time mentioned in that behalf in the policy of insurance. In Jijubhai Nathuji Dabhi the Court found that the contract clearly stipulated that it would be operative from 4.00 p.m on 25.10.1983 and that therefore the insurance coverage was not available in respect of an accident that happened before 4.00 p.m. on the same day. The decision in Jijubhai Nathuji Dabhi was also followed in New India Assurance Company vs. Bhagwati It must be remembered that a policy of insurance lies in the realm of contract. Therefore the interpretation to be given to the terms of such contract would largely depend upon the intent of the parties with a certain degree of latitude in favour of a party whose 122 All ER 331 131 SCC 66 146 SCC 534 bargaining power is not equal to that of other contracting party Hence it is not possible for us to adopt the interpretation given to the word “the date” appearing in a contract of Insurance Accepting the appellant’s submission would require us to construe the statutory scheme as intending something startling i.e positing that the consequence precedes the cause. This would be reducing this provision to absurdity and require Courts to hold that a consequence can precede its cause but according to the learned counsel this is the intended effect of the provision since it states that a convicted person shall be disqualified from the date of his conviction. But we do not agree. The disqualification arising under Section 8(3) of the Act is the consequence of the conviction and sentence imposed by the criminal Court. In other words conviction is the cause and disqualification is the consequence. A consequence can never precede the cause. If we accept the contention of the appellant the consequence will be deemed to have occurred even before the cause surfaced 44. It is contended by the learned Senior Counsel for the Returned candidate that the Constitution also takes care of the contingency of disqualified persons sitting and voting despite suffering a disqualification and that a court cannot travel beyond what is so prescribed. Article 193 which takes care of this contingency reads as follows: “193. Penalty for sitting and voting before making oath or affirmation under Article 188 or when not qualified or when disqualified. If a person sits or votes as a member of the Legislative Assembly or the Legislative Council of a State before he has complied with the requirements of Article 188 or when he knows that he is not qualified or that he is disqualified for membership thereof or that he is prohibited from so doing by the provisions of any law made by Parliament or the Legislature of the State he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the State.” On the basis of Article 193 it is contended that when law prescribes certain consequences for an act of commission the Court cannot impose additional consequences. Reliance is placed in this regard on the decision of this Court in State of Madhya Pradesh vs Centre for Environment Protection Research and Development Ors.15 wherein it was held that when a Statute or the Statutory Rules prescribes a penalty for any act or omission no other penalty not contemplated in the Statute or the Rules can be imposed But we do not think that the aforesaid decision can be applied to cases where consequences other than a penalty arise on account of an act or omission. While it is true that a penalty other than the one prescribed by the Statute cannot be imposed for a particular act or omission the said principle has no place in so far as consequences other than penalty which flow automatically out of such act or omission are concerned Article 193 deals with the penalty to be imposed upon an erring member who sits or votes as a member of the Legislative Assembly or the Legislative Councileither before he has complied with the requirements of Article 188 or when he knows that he is 15SCC Online SC 687 not qualified for membership or when he knows that he is disqualified from being a Member or when he knows that he is prevented by any law from sitting or voting A disqualification for which penalty is prescribed under Article 193 also invites civil consequences such as the denial of privileges that go with the membership other than the penalty stipulated in Article 193. Once a person is disqualified he ceases to be a member and his right to vote also ceases alongwith his membership. This is a natural consequence of a person ceasing to be a member and this consequence is automatic and not dependent upon Article 193 Therefore we cannot stretch Article 193 to such an extent that even the natural consequences of disqualification of a member will not get attracted because of the prescription of a penalty However Article 193 and the interpretation given to the same by this Court may be of significance for finding out whether an act or omission done by a person disqualified would also perish and if so in In Pashupati Nath Sukul vs. Nem Chandra Jain16 one of the questions that arose for consideration was whether a person elected as a member of the Assembly but who has not made and subscribed the prescribed oath or affirmation as required by Article 188 can validly propose a person as a candidate at an election for filling a seat in the Rajya Sabha. This question arose under peculiar circumstances. The elections to the Legislative Assembly of the State 162 SCC 404 of Uttar Pradesh were held in May 1980 and the notification containing the names of elected members was issued on 09.06.1980 under Section 73 of the Representation of the People Act 1951. The elected members were notified that they could take oath as required by Article 188 at the Session of the Assembly summoned to meet on 27.06.1980. But in the meantime election for filling up a vacancy in the Rajya Sabha was notified on 17.06.1980. Therefore the proposal of the name of a candidate for election to the Rajya Sabha made by an elected member who was yet to take oath under Article 188 was objected to. The objection was overruled and the nominated candidate won the election. Therefore the question as stated above arose before this Court in an Election Petition Article 188 reads as follows: “188. Oath or affirmation by members. Every member of the Legislative Assembly or the Legislative Council of a State shall before taking his seat make and subscribe before the Governor or some person appointed in that behalf by him an oath or affirmation according to the form set out for the purpose in the Third Schedule.” In view of the mandate of Article 188 it was argued before this Court in Pashupati Nath Sukul this Court invoked the de facto doctrine to declare as valid all acts performed by a Chief Minister 1715 Cal.LJ 517 183 SCC 132 193 SCC 367 whose appointment was held to be invalid from day one. Paragraph 57 of the said decision reads as follows “We are aware that the finding that the second respondent could not have been sworn in as Chief Minister and cannot continue to function as such will have serious consequences. Not only will it mean that the State has had no validly appointed Chief Minister since 14th May 2001 when the second respondent was sworn in but also that it has had no validly appointed Council of Ministers for the Council of Ministers was appointed on the recommendation of the second respondent. It would also mean that all acts of the Government of Tamil Nadu since 14th May 2001 would become questionable. To alleviate these consequences and in the interest of the administration of the State and its people who would have acted on the premise that the appointments were legal and valid we propose to invoke the de facto doctrine and declare that all acts otherwise legal and valid performed between 14th May 2001 and today by the second respondent as Chief Minister by the members of the Council of Ministers and by the Government of the State shall not be adversely affected by reason only of the order that we now propose to pass.” Therefore it is not possible to hold that the vote cast by Shri Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 should be treated as invalid on account of the conviction and sentence passed by the criminal Court at 2:30 p.m. on the same day. This conclusion can be drawn through another process of reasoning also. Article 191of the Constitution deals with five different grounds of disqualification They are holding an office of profit as specified in the First Schedule unsoundness of mind which stands so declared by a competent Court undischarged insolvency absence of citizenship of India or acquisition of citizenship of a foreign State etc. anddisqualification by or under any law made by Parliament The interpretation to be given to the expression “the date” appearing in Section 8(3) of the Representation of the People Act 1951 will have a bearing upon the interpretation to be given to the date of happening of any one of the above events of disqualification 60. While it may be convenient for the appellant in this case to interpret the expression “the date” appearing in Section 8(3) with reference to Article 191(1)(e) we may have to see whether the same would fit into the scheme of Article 191(1) in entirety. It may not. If tested against each one of Sub clauses to of Clause of Article 191 we would find that the interpretation offered by the appellant would not survive. Justice Oliver Wendell Holmes Jr. in Henry R Towne vs. Mark Eisner20 while dealing with the construction of a word in the Constitution as well as a statute “A word is not a crystal transparent and unchanged it is the skin of a living though and may vary greatly in colour and content according to the circumstances and tie in which it is used” Therefore on the first issue we hold that the vote cast by Shri Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 was rightly treated as a valid vote. To hold otherwise would result either in an expectation that the Returning Officer should have had foresight at 9:15 a.m about the outcome of the criminal case in the afternoon or in vesting with the Election Commission a power to do an act that will create endless confusion and needless chaos 20 245 U.S. 418 In view of our above answer to the first issue the second issue does not arise for consideration. Therefore the Civil Appeal No.6120 is dismissed. Civil Appeal No.21520 is allowed setting aside the findings of the High Court on issue Nos. 2 3 and 5 framed by the High Court. There will be no order as to costs December 18 2020

Admissibility of Revision petition under Section 115 of Code of Civil Procedure, 1908 and appeal/ review of the order/judgment under section 6 of the Specific Relief Act, 1963: High Court of Delhi

The question as to the admissibility of Revision petition under Section 115 of Code of Civil Procedure, 1908 and appeal/ review of the order/judgment under section 6 of the Specific Relief Act, 1963 was examined by the High Court of Delhi, consisting of Justice Pratibha M. Singh in the matter of Balwinder Singh vs. Kamal Kishore [CM APPL. 42960/2021] on 24.12.2021. The facts of the case were that Plaintiff is the owner of the West part of property No. A-40 (part) Mansarovar Park, Shahdara, Delhi, (hereinafter “suit property”) which was allegedly illegally broken into by Defendant, who was the owner of the remaining part of the suit property. The suit was filed under Sections 6 and 39 of the Specific Relief Act, 1963 seeking a decree of declaration, recovery of possession, and mandatory injunction in relation to the suit property. Plaintiff was able to establish that the property was purchased from one Sh. Monu Aggarwal by producing the electricity bills in the name of Shri Monu Aggrawal. A photograph PW1/X8-13 placed on the record of the Trial Court clearly showed that there was a wall which was erected between the Plaintiff’s and Defendant’s portion which was demolished by Defendant. Further Exhibit DW6/1, which is relied upon by both the parties also reveals the entrance to the Plaintiff’s side of the property having been freshly plastered with the evidence of a doorbell space in the wall which showed that there was a separate entrance from the street, to the suit property. On the strength of the evidence, the Trial Court directed Defendant to hand over the peaceful and vacant possession of the suit property to Plaintiff and to restore the main door in front of the road along with the partition wall of the suit property within one month from the date of judgment. The learned Counsel for the plaintiffs contended that the actual position was that one part of the property was in the possession of Defendant, however, the suit property, i.e., 1/4th share of the property was in possession of the Plaintiff. Moreover, there was a partition wall erected to divide the two portions of the property which were in the possession of the Defendant and the Plaintiff respectively. There was also a front door which enabled entrance to the suit property. Since the Plaintiff was not regularly residing in the suit property since 2006 and was residing in the neighbourhood, he used to visit the suit property every two three days, the Defendant took advantage of the same and blocked the front entrance of the suit property with a brick wall and broke the separating wall from the inside. Thus, the Defendant has no rights in the suit property and the decree has been rightly passed by the Trial Court and execution has already been preferred by the Plaintiff of the impugned decree. It was further submitted that the original deeds relating to the suit property were deposited with State Bank of India as the property was mortgaged in lieu of loan taken by Late Shri S. Harbans Singh, father of the Plaintiff. Vide a letter dated 27th September, 2003 issued by the SBI, it was stated that the said bank has misplaced the documents related to the suit property and no dues were left to be paid to the bank. Further, then plaintiff relied on the Will of the original owner Sh. Harbans Singh whose title is not disputed even by the Defendant itself showed that he had created four separate parts in the property: East, West and two middle parts. The East part given to Shri. Balwinder Singh and the West part was given to the mother of the Plaintiff, Shri Ranjeet Kaur and two middle parts of the property were purchased by Sh. Gulzar Khan. It is this portion which was sold to Mr. Monu Aggarwal and thereafter purchased by the Plaintiff from Mr. Monu Aggarwal thereby establishing title of the Plaintiff over the Property. The learned Counsel for the respondent contended that that mere electricity bills in the name of Sh. Monu Aggarwal would not be sufficient as there is no consumption of electricity shown in those bills. It is evident from the electricity bill in the name of Mr. Monu Aggarwal, that not even a single unit of electricity was consumed which shows that the Plaintiff was not residing in the suit property. He also relies upon the testimony of DW-10 from the BSES who deposed that he cannot say if there was any consumption of electricity from 2000 to 2004. The said sale by Mr. Monu Aggarwal to the Plaintiff should, therefore, not be recognised by this Court. It was further submitted by counsel for the Defendant that there are several litigations between the parties and the said Will on which the reliance is placed by the Plaintiff is forged. The High Court of Delhi held that the scope of a Revision petition under Section 115 of CPC is to see if there is any gross jurisdictional error. Thus, the question of facts raised before this Court by the Defendant cannot be analysed under revisional jurisdiction. In the opinion of this Court, it is for cases like the one presently before this Court that Section 6 of the Specific Relief Act, 1963 has been enacted. The purpose and import of section 6 is to give quick and immediate relief to any person who has been dispossessed. Furthermore, the intent of the legislature while enacting the said provision is also clear as no appeal from orders and decrees passed under Section 6 of the Act can be provided. In view of the legislative bar placed by Section 6(3) of the Act no appeal/ review of the order/judgment can be entertained by this Court against the order passed by the Trial Court under section 6. Accordingly, the present petition, along with all pending applications, was disposed of.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 24th December 2021 C.R.P. 86 2021 & CM APPL. 42960 2021 BALWINDER SINGH ..... Petitioner Through: Mr. Vijay Kinger Advocate. KAMAL KISHORE Through: Mr. Fateh Singh Chauhan & Ms. Respondent Kashyap JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.1. This hearing has been done in physical Court. Hybrid mode is permitted in cases where permission is being sought from the Court. The present revision petition arises out of judgment decree dated 22nd September 2021 passed by SCJ CUM RC North East) Karkardooma Courts Complex New Delhi in CS No. 391 2016 titled Kamal Kishore v Balwinder Singh by which the suit of the Plaintiff Respondent Shri Kamal Kishore hereinafter “Plaintiff”) has been decreed. The case of the Plaintiff is that he is the owner of the West part of property No. A 40 Mansarovar Park Shahdara Delhi which was allegedly illegally broken into by the Defendant Petitionerwho was the owner of the remaining part of the suit property. The suit was filed under Sections 6 and 39 of the Specific Relief Act 1963 seeking decree of declaration recovery of possession and mandatory injunction in relation to the suit property. The C.R.P. 86 2021 reliefs sought in the plaint are as under: “i) Pass a decree for recovery of possession of the plaintiff’s immoveable property standing at A 40 Mansarovar Park G.T.Road Shahdara Delhi. Pass a mandatory injunction in favour of the plaintiff and against the Defendant for restoration of the main door and partition wall of the plaintiff’s immoveable property standing at A 40 West Part) Mansarovar Park G.T.Road Shahdara Delhi. iii) Cost of the present suit in favour of the plaintiff and against the Defendant.” The written statement was filed by the Defendant and evidence was led by both the parties. The Trial Court came to the conclusion on the basis of the evidence that the Plaintiff has been able to establish that the property was purchased from one Sh. Monu Aggarwal. Electricity bills to this effect issued in the name of Shri Monu Aggrawal were perused. The Trial Court also observed that the photograph PW1 X8 13 placed on the record of the Trial Court clearly show that there was a wall which was erected between the Plaintiff’s and Defendant’s portion which was demolished by the Defendant. Further Exhibit DW6 1 which is relied upon by both the parties also reveals the entrance to the Plaintiff’s side of the property having been freshly plastered with the evidence of a door bell space in the wall which showed that there was a separate entrance from the street to the suit property. The Trial Court further records based on the testimony of two independent witnesses Sh. Nanak Chand and Sh. Tapsi Ram that Sh. Monu Aggarwal was in possession of the suit property till 28th June 2001. C.R.P. 86 2021 Thereafter the Plaintiff purchased the property from Sh. Monu Aggarwal and was using it for the purposes of residence of his mother till her death in the year 2006. The Plaintiff was not regularly residing in the property in question and he used to occasionally visit the suit property. The findings of the Trial Court are relevant and are set out below: “16. PW1 during his categorically admitted that there is a partition wall between the portion shown in red and the portion shown in green in the site plan Ex. PWL D2. The suit property as a portion of Ranjeet Kaur has been reflected in the lay out plan part of DW9 A which is an admitted document by the defendant. It also has a photograph of the property A 40 which shows a wall dividing 3 4th and 1 4th share of the property. Further PW1 during his examination was confronted with the site plan Ex. PW1 D2 where he admitted that there is a wall from point X1 to X2 and the height of the wall is approximately 11 to 12 feet. This admission of PW1 corroborates testimony of DW2 Bhupinder Singh who during his evidence categorically stated that after he purchased 1 4th share of his mother i.e. the suit property and he got it separated from the rest of the part of A 40 Mansarover Park by constructing a full height and full length brick wall. No suggestion on this aspect has been given by the plaintiff to DW2 during his cross examination denying the construction of the wall by defendant no. 2. The aforesaid evidence lead on record clearly shows that the property A 40 Mansarover Park was even physically divided especially 3 4th portion on one side and 1 4th portion on the other which is the suit property herein. The photographs PW1 X8 13 are the photographs depicting the status of construction inside the suit property. These photographs have C.R.P. 86 2021 also been admitted by PW1 during his cross examination which clearly shows and proves the separation of suit property from the rest of the portion of A 40. Similarly PW1 X6 and PW1 X7 are also admitted by PW1 in cross examination that also apparently shows the physical separation of property A 40. Apart the admitted photographs exhibited as Ex. PW1 X8 to Ex. PW1 X13 document Ex. DW6 1 relied by both the parties also shows that a door has been installed in the partition wall and the roadside wall also seems to have been constructed recently.” On the strength of the evidence led by both the parties the Trial Court directed the Defendant to handover the peaceful and vacant possession of the suit property to the Plaintiff and to restore the main door in front of the road along with the partition wall of the suit property within one month from the date of judgment. Ld. Counsel for the Defendant submits that the Defendant had also filed a suit which was rejected by the Trail Court and appeal has been preferred by the Defendant being RCA 28 2021 which is pending adjudication. Thus this Court ought to await the outcome of the said appeal. He further submits that there are four cross F.I.Rs. which have been filed by the parties against each other in respect of the property documents and other allegations which have been raised in the present Petition. He further submits that mere electricity bills in the name of Sh. Monu Aggarwal would not be sufficient as there is no consumption of electricity shown in those On the other hand Mr. F.S. Chauhan ld. Counsel for the Plaintiff submits that actual position was that one part of the property was in the C.R.P. 86 2021 possession of the Defendant however the suit property i.e. 1 4th share of the property was in possession of the Plaintiff. Moreover there was a partition wall erected to divide the two portions of the property which were in the possession of the Defendant and the Plaintiff respectively. There was also a front door which enabled entrance to the suit property. Since the Plaintiff was not regularly residing in the suit property since 2006 and was residing in the neighbourhood he used to visit the suit property every two three days the Defendant took advantage of the same and blocked the front entrance of the suit property with a brick wall and broke the separating wall from the inside. The existence of the entrance was established by Exhibit DW1 W and the plastered wall photograph. Thus the Defendant has no rights in the suit property and the decree has been rightly passed by the Trial Court and execution has already been preferred by the Plaintiff of the impugned decree. Mr. Chauhan ld. Counsel for the Plaintiff has shown the photographs taken before the partition wall was allegedly brought down to the court which would make it evident that there was a proper vertical wall dividing the properties of the Plaintiff and the Defendant. However Counsel for the Defendant submits that from the electricity bill in the name of Mr. Monu Aggarwal it is evident that not even a single unit of electricity was consumed which shows that the Plaintiff was not residing in the suit property. He also relies upon the testimony of DW 10 from the BSES who deposed that he cannot say if there was any consumption of electricity from 2000 to 2004. The said sale by Mr. Monu Aggarwal to the Plaintiff should therefore not be recognised by this Court. 10. Ld. Counsel for the Plaintiff on the other hand submits that the claim of the Plaintiff initially was that the original deeds relating to the suit C.R.P. 86 2021 property were deposited with State Bank of India as the property was mortgaged in lieu of loan taken by Late Shri S. Harbans Singh father of the Plaintiff. Vide a letter dated 27th September 2003 issued by the SBI it was stated that the said bank has misplaced the documents related to the suit property and no dues were left to be paid to the bank. However it was thereafter revealed that the loan which was taken from SBI by the father of the Plaintiff was for buying of 2 trucks and it had nothing to do with the suit property in question. It was later found vide a certificate issued by the Syndicate Bank on the direction of the Trial Court marked as Exhibit PW1 X3 that actual title documents of the suit property were in fact in the possession of Syndicate Bank from where the Defendant had availed a loan of Rs. 1.3 crores on the basis of the title documents of the suit property. It is further submitted by the ld. Counsel for the Plaintiff that the Will of the original owner Sh. Harbans Singh whose title is not disputed by the Defendant itself shows that he had created four separate parts in the property: East West and two middle parts. 12. The East part given to Shri. Balwinder Singh and the West part was given to the mother of the Plaintiff Shri Ranjeet Kaur and two middle parts of the property were purchased by Sh. Gulzar Khan. Sale deed in this regard has also been shown to the Court. Insofar as the Western portion which was with the Smt. Ranjeet Kaur is concerned the Will in Clause क clearly mentioned that the western portion is of 71 sq. yards. It is this portion which is sold to Mr. Monu Aggarwal and thereafter purchased by the Plaintiff from Mr. Monu Aggarwal thereby establishing title of the Plaintiff over the Property. It is submitted by counsel for the Defendant that there are several litigations between the parties. It is also submitted by the Defendant that the C.R.P. 86 2021 said Will on which the reliance is placed by the Plaintiff is forged. 13. Heard. In the suit the following issue was framed by the Trial Court: plaintiff was “1. Whether dispossessed by the defendant from the house built on 1 4th part of plot no. A 40 Mansarovar Park Delhi OPP 14. The Trial Court has considered the various documents which were exhibited on the record. The photographer who took the photographs was also produced as witness before the Trial Court by the Plaintiff. On the said issue which was framed after considering that the main defence of the Defendant that there is no water or electricity connection the Trial Court has concluded that there were two independent witnesses namely PW 2 and PW 3 i.e. Mr. Nank Chand and Mr. Tapsi Ram supporting Plaintiff’s case. Mr. Nanak Chand has deposed that the Plaintiff was in possession of the suit property and that Balwinder Singh was in the possession of less than 1 4th portion of the entire property situated A 40 Mansarovar Park. It is further stated in the evidence by the Mr. Tapsi Ram that he has seen Plaintiff doing construction on the suit property and that the mother of the Plaintiff resided at the suit property. Mr. Tapsi Ram admitted that the Plaintiff was the owner of the entire build up property A 40 Mansarovar Park Delhi. However he also claims that he was also an acquaintance of the Plaintiff and he used to visit the Plaintiff regularly for the last 30 35 years. Notably the partition wall between the two properties were also admitted in the evidence. On the basis of the evidence which was recorded and the photographs which was taken the Trial Court came to the conclusion that the status of construction is also quite clear and the physical separation between the two properties is C.R.P. 86 2021 also clear. After holding so the suit was decreed by the Trial Court in favour of the Plaintiff. The Trial Court also simultaneously vide separate order dismissed the application under Order XXXIX Rule 2CPC. 15. The issue in this petition is only on the final relief and not related to the contempt application. The main submission of ld. Counsel for the Defendant is that since there is no consumption of electricity it cannot be stated that the Plaintiff was in possession of the suit property. This has already been explained by the Plaintiff by stating that the he lives in the neighbourhood and his parents lastly his mother was living in the suit property. He has also stated that he used to visit the suit property regularly. Under such circumstances the mere fact that there was no electricity consumption in some recent period would not take away the fact that the separate property existed with the partition wall. The electricity bill in the name of Mr. Monu Aggarwal is explicit to the effect that someone else was living in this property and not the Defendant. The original electricity bills have been placed on record in the Trial Court show that as of 2001 2002 there has been consumption of electricity in the property. Thus the submission of ld. Counsel for the Defendant that the lack of electricity consumption shows that there was no occupation and use of the premises by the Plaintiff is liable to be rejected. 16. Ld. Counsel for the Defendant also argues that the source of photographs exhibited by the Plaintiff has not been shown. In the digital era the previous method of proving photographs by producing the negatives is no longer the process followed any more. In the present case the photographer himself has deposed in this case and has submitted before the Trial Court that he used a digital camera for taking the said photographs. C.R.P. 86 2021 The affidavit of the photographer reads as under: “That my camera uses memory card and does not generate ‘negatives’. However the receipts of the amount received from Shri Kamal Kishore were given to him. xxx xxx xxx It is correct that in Ex. DW5 1 to DW5 5 there is no laborer or mason work seen working. I do not remember the camera from which I took the photographs however it was having a memory card. It is correct that changes in photographs is possible in photo sop after the photographs are taken however no such changes were made in the present case. I do not remember the name or the designations of the police officials present on 10.09.2013 but they were around 3 4 in number. I was accompanied by four police officials Kamal Kishore and Rakesh to the suit property. It is wrong to suggest that no photographs were taken by me prior to 10.09.2013. It is wrong to suggest that I am deposing falsely at the instance of Kamal Kishore. ” Thus the photographer’s testimony cannot be dislodged merely on the ground that negatives of the photographs were not produced. 17. Be that as it may the scope of a Revision petition under Section 115 is to see if there is any gross jurisdictional error. A constitution bench of the Supreme Court in Pandurang Dhoni Chougule v Maruti Hari Jadhav AIR 1966 SC 153 while examining the scope of High Court’s power under section 115 CPC has observed: “11. The provisions of s. 115 of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under C.R.P. 86 2021 s. 115 it is not competent to the High Court to correct errors of fact however gross they may or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. As clauses(b) andof s. 115 indicate it is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before subordinate courts which are related to questions of jurisdiction. It is well settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the court and so an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of s. 115 of the Code. But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction of that court cannot be corrected by the High Court under s. The said view has been reiterated by the High Court of Jammu and Kashmir in Ab. Raheem Bhat v Mukhti Bibi 2020(5) JKJ 236 wherein the High Court held: “6. From the aforesaid backdrop it is deducible that for effective exercise of the High Court s superintending and visitorial powers over subordinate courts the revisional jurisdiction has C.R.P. 86 2021 scope of been conferred on the High Court by Section 115 of the Code. The powers given are clearly limited to keep subordinate courts within bounds of their jurisdiction. Thus jurisdiction depends on the language of the statute. Though revisional jurisdiction is only a part of appellate jurisdiction yet it cannot be equated with that of a full fledged appeal. It is well settled that the High Court while considering the matter in exercise of its jurisdiction in civil revision would not reverse the finding of the fact as recorded by the courts below. Even where an error of jurisdiction is committed by the court below but the action taken by it has not been proved to have resulted in injustice the High Court would be loath to interfere with it. Thus power under Section 115 is very limited and not to be exercised except in the rarest of rare cases however grossly erroneous. From all angles the present case does not come and fall within rarest of rare cases inasmuch as there is no error muchless grave in passing of orders both by Trial Court as well as Appellate Court. Thus the question of facts raised before this Court by the Defendant cannot be analysed under revisional jurisdiction. Nevertheless the evidence which has come on record and the photographs all point to only one fact that there was a separate partition delineated from the Plaintiff’s property which was sought to be merged by the Defendant into the Defendant’s property by breaking of a wall and by closing the entrance from the road. In the opinion of this Court it is for cases like the one presently before this Court that Section 6 of the Specific Relief Act 1963 has been enacted. The purpose and import of section 6 is to give quick and immediate relief to any person who has been dispossessed. The limitation is C.R.P. 86 2021 also therefore fixed as six months from the dispossession. The Hon’ble Supreme Court in Sanjay Kumar Pandey & Ors. v. Gulbahar Sheikh And Others 4 SCC 664 has held that Section 6 of Specific Relief Act 1963 is a provision to give immediate succour to the person who has been incorrectly dispossessed from the property which was under his possession. The Court observed as under: “A proceeding under Section 6 of the Specific Relief Act 1963 is intended to be a summary proceeding the object of which is to afford an immediate remedy to an aggrieved party to reclaim possession of which he may have been unjustly denied by an illegal act of dispossession. Questions of title or better rights of possession does not arise for adjudication in a suit under Section 6 where the only issue required to be decided is as to whether the Plaintiff was in possession at any time six months prior to the date of filing of the suit. The legislative concern underlying Section 6 of the SR Act is to provide a quick remedy in cases of illegal dispossession so as to discourage litigants from seeking remedies outside the arena of law. The same is evident from the provisions of Section 6(3) which bars the remedy of an appeal or even a review against a decree passed in such a suit.” 19. Furthermore the intent of the legislature while enacting the said provision is also clear as no appeal from orders and decrees passed under Section 6 of the Act is provided. In view of the legislative bar placed by Section 6(3) of the Act no appeal review of the order judgment can be entertained by this Court against the order passed by the Trial Court under section 6. This view finds support from Supreme Court decision in Mohd. Mehtab Khan & Ors. v. Khushnuma Ibrahim Khan 9 SCC 221 C.R.P. 86 2021 wherein it has observed: “A proceeding under Section 6 of the Specific Relief Act 1963 is intended to be a summary proceeding the object of which is to afford an immediate remedy to an aggrieved party to reclaim possession of which he may have been unjustly denied by an illegal act of dispossession. Questions of title or better rights of possession does not arise for adjudication in a suit under Section 6 where the only issue required to be decided is as to whether the Plaintiff was in possession at any time six months prior to the date of filing of the suit. The legislative concern underlying Section 6 of the SR Act is to provide a quick remedy in cases of illegal dispossession so as to discourage litigants from seeking remedies outside the arena of law. The same is evident from the provisions of Section 6(3) which bars the remedy of an appeal or even a review against a decree passed in such a suit.” 20. Admittedly the suit in this case was filed in 2010 it has taken 11 years for the suit for possession to be decided. The Court having perused the impugned judgment as also the evidence on record is of the opinion that this is not a case which warrants any interference under Section 115 CPC. 21. Accordingly the present petition along with all pending applications is disposed of. Under such circumstances no costs are awarded. PRATHIBA M. SINGH DECEMBER 24 2021 corrected and released on 30th December 2021) C.R.P. 86 2021

Petitioner or even Respondents do not have any legal right to undertake the execution of the work in violation of the consent/NOC granted in their favour: High Court of J&K and Ladakh

The agency in the vicinity of the road cannot undertake work without consent of the officials and against the conditions of the consent given by said officials. Thus, petitioner or for that matter respondents, to whom the contract of laying OFC has been awarded, do not have any legal right to undertake the execution of the work in violation of the consent/NOC as held by the Hon’ble High Court of J&K through a learned bench of Justice Sanjay Dhar in the case of Ashiq Hussain & Co. Vs Ut Of J&K & Others [WP(C) No.1836/2021 CM No.6129/2021]. According to the petitioner, respondents had allotted a contract to the petitioner for execution of work of installation and laying of OFC etc. It is averred that pursuant to the aforesaid allotment of work, the petitioner has started execution of contract work and has completed almost 70% of the work. It is further averred that at the time when the work was allotted to the petitioner, the road had not been widened but after the completed 70% of work, the respondents started widening of the aforesaid road and they also started macadamizing the same, as a result of which, the alignment of the work which was executed by the petitioner fell in the middle of the widened road. Respondents No.1 and 2 have contested the writ petition by filing a reply thereto. In their reply, said respondents have raised a preliminary objection with regard to maintainability of the writ petition on the ground that the work of laying OFC has been allotted to respondents No.3 and 4 and not to the petitioner, as such, he has no locus or cause of action against the official respondents. The Hon’ble High Court observed that Petitioner was aggrieved of impugned communication dated 07.09.2021 issued by respondent No.2 on two counts. One that he has been asked to stop the work of laying OFC till macadamization work on the road is complete. As per the said communication, the macadamization would be complete within a month and till ten days thereafter, laying of OFC should not be undertaken. The other condition contained in the said letter of which the petitioner is aggrieved, is that manual trenching should be undertaken on the extreme edge of the road strictly in consultation with the Field Engineers of the department. It was further observed by the court that permission for digging of road for the purposes of laying of OFC was given to the vendor only on the condition that such digging work is carried out towards the edge of the road and not in the middle of the road. Thus, it was stated that “The road which is property of the official respondents can be dug or any other activity can be undertaken in the vicinity of the road only with the permission of the department and not otherwise. Any such permission will be contingent upon and subject to the conditions as may be imposed by the department. The agency laying cables or any other infrastructure in the vicinity of the road cannot undertake such work without consent of the official respondents and against the conditions of the consent given by said respondents. Thus, petitioner or for that matter respondents No.3 and 4, to whom the contract of laying OFC has been awarded, do not have any legal right to undertake the execution of the work in violation of the consent/NOC granted in their favour.”

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 21.10.2021 Pronounced on: 27.10.2021 WP(C) No.1836 2021 CM No.6129 2021 ASHIQ HUSSAIN & CO. ...PETITIONER(S) Through: Mr. N. A. Ronga Advocate. UT OF J&K & OTHERS …RESPONDENT(S) Through: Mr. M. A. Chashoo AAG CORAM: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE Through the medium of instant writ petition the petitioner has sought the following reliefs: a. A writ of certiorari quashing the impugned communication to the extent it directs laying of OFC on the aforesaid road on its extreme edge. b. A writ in the nature of Mandamus commanding the respondent No.1 to allow the petitioner to lay OFC and other installations required for the execution of the work allotted to him by the respondents 3 4 on the alignment of the work already done by him to the extent of 70% of the allotted work. c. A writ in the nature of mandamus commanding the respondent No.1 to stop macadamization work of the left over road for 15 20 days till the petitioner completes the allotted work of laying OFC and other connected material on the same 2 WP(C) No.1836 2021 alignment as has been done by him in the 70% of the allotted strip road. According to the petitioner respondents No.3 and 4 have allotted a contract to the petitioner for execution of work of installation and laying of OFC etc. in respect of the area from Malangam to Malangam Gujer Basti and Peerbuthoo Chandji strip located in District Bandipora. It is averred that pursuant to the aforesaid allotment of work the petitioner has started execution of contract work and has completed almost 70% of the work. It is further averred that at the time when the work was allotted to the petitioner the road from Malangam to Malangam Gujer Basti and Peerbuthoo Chandji strip located in District Bandipora had not been widened but after the completed 70% of work the respondents No.1 and 2 started widening of the aforesaid road and they also started macadamizing the same as a result of which the alignment of the work which was executed by the petitioner fell in the middle of the widened road. It is the further case of the petitioner that respondents No.1 and 2 vide their communication dated 07.09.2021 have advised him to take up the work of laying of OFC on the aforesaid road after ten days of completion of macadamization of work by manual trenching method on extreme edge of road in consultation with field engineers of the department. Petitioner goes on to submit that in case he would execute the work of laying of OFC on the extreme edge of the road it would cause huge loss to him as it would involve change of alignment as a consequence of which he would have to remove OFCs and other related installations which he has already laid. It is 3 WP(C) No.1836 2021 contended that if respondents No.1 and 2 would stop macadamization work of the left over patch just for 15 20 days the petitioner would complete the work of laying OFC on the remaining portion and the same would save him from huge losses. In the backdrop of these facts the petitioner has challenged the communication dated 07.09.2021 issued by respondent No.2. Respondents No.1 and 2 have contested the writ petition by filing a reply thereto. In their reply said respondents have raised a preliminary objection with regard to maintainability of the writ petition on the ground that the work of laying OFC has been allotted to respondents No.3 and 4 and not to the petitioner as such he has no locus or cause of action against the official respondents. On merits it is averred that Reliance JIO Infocom had approached the official respondents for seeking permission for laying of JIO Optical Fiber Cable from the road of Pearbothoo to Chandji in response to which vide letter dated 10.04.2021 permission was granted for road cut and for laying of OFC in favour of JIO Digital Fiber Pvt. Ltd with certain conditions as contained in the said letter. One of the conditions in the said letter was that whole of the operation would be carried with proper care and without causing any un necessary damage to the road. It was further provided that the excavation of pits open trenches wherever necessary should be beyond the hard shoulder and on the extreme edge of the road without causing any damage to the road protection works. 4 WP(C) No.1836 2021 It is contended that the executing agency i.e. petitioner violated all these conditions with impunity and started digging in the centre of the road during night hours without proper consultation and permission from the official respondents thereby exposing the department to huge loss. According to the official respondents these issues were raised by officers of PMGSY department and even an FIR was lodged by the official respondents in terms of letter No.PMGSY SDB 56 58 dated 04.04.2021 wherein it was complained that instead of laying OFC on the edge of the road the vendor has laid the same towards centre of the road. The official respondents have denied that because of widening of road the alignment of the work executed by the petitioner is falling in the middle of the road. It is further averred by the official respondents that in view of onset of winter season the department cannot execute macadamization for rest of portion and as such the vendor is at liberty to complete balance portion strictly in accordance with the conditions of permission. Heard and considered. Petitioner is aggrieved of impugned communication dated 07.09.2021 issued by respondent No.2 on two counts. One that he has been asked to stop the work of laying OFC till macadamization work on the road is complete. As per the said communication the macadamization would be complete within a month and till ten days thereafter laying of OFC should not be undertaken. The other condition contained in the said letter of which the petitioner is 5 WP(C) No.1836 2021 aggrieved is that manual trenching should be undertaken on the extreme edge of the road strictly in consultation with the Field Engineers of the department. So far as the first part of the communication whereby M S Reliance JIO Infocom has been asked to stop the execution of work till the macadamization of the road is complete is concerned the said prohibition in view of the stand taken by the official respondents in their reply is no longer applicable as the official respondents have clearly stated in para of their reply that they are not undertaking macadamization of road on account of onset of winter. They have made it clear that the vendor is at liberty to complete the balance portion of work in accordance with the conditions of no objection granted in favour of the vendor. That takes us to the second part of the impugned communication whereby the vendor has been asked to undertake work of laying of OFC on the extreme edge of the road. Petitioner is aggrieved of the said condition as according to him the decision to widen the road was taken by official respondents when he had already completed 70% of the work and in case he is asked to change the alignment of work it would entail huge loss to him because he will have to remove the installations for changing the alignment of work. This fact has been vehemently disputed by the official respondents in their reply. According to the official respondents petitioner during night hours executed the work of laying OFC in the middle of the road which compelled them to 6 WP(C) No.1836 2021 approach the police authorities. The stand of the official respondents in this regard is borne out from the communications copies whereof have been placed on record by the official respondents. On the other hand petitioner has not placed on record any material that would even remotely suggest that the official respondents have undertaken the process of widening of road in question after he had already executed major portion of the work. Therefore it cannot be stated that change of alignment in execution and installation of OFC has occurred due to the reasons attributable to the official respondents. 10) The petitioner has placed on record copy of communication dated 10.04.2021 of respondent No.2 whereby NOC has been issued in favour of M S Reliance JIO Digital Fiber Pvt. Ltd. for road cut and laying of OFC on certain conditions. These conditions are reproduced as under: 1. The company shall have to carry the excavation of pits open trenching whatever the case may be beyond hard shoulder on extreme edge of the road without causing damage to the road protection works drainage in consultation with field Engineer of this Department. 2. The excavation of pits shall not hinder the movement of traffic whether vehicular or pedestrian in any way. 3. The company shall be responsible for any type of accident caused due to laying of OFC by excavation of pits of open trenching. 4. The company shall make sure the whole operation is carried out with proper care to save the road from unnecessary damage and is completed within shortest possible time without any delay. 5. The excavation of trenches pits shall be carried out in stretches and after completion of one stretch not exceeding 500 Mts the adjacent stretch shall be 7 WP(C) No.1836 2021 excavated and the trenches excavated should be filled back before the excavation of next stretch. 6. That the existing electric infrastructure does not get affect. However in case of any damage to electric network the agency has to bear responsibility and costs. 7. That if any damage occurs to pipeline work the same will be restored on ward footing basis without any fail. 11) Condition No.(1) quoted above clearly obliges the vendor to carry out the excavation of pits open trenches beyond hard shoulder on extreme edge of the road in consultation with field engineer of the department. Thus permission for digging of road for the purposes of laying of OFC was given to the vendor only on the condition that such digging work is carried out towards the edge of the road and not in the middle of the road. The road which is property of the official respondents can be dug or any other activity can be undertaken in the vicinity of the road only with the permission of the department and not otherwise. Any such permission will be contingent upon and subject to the conditions as may be imposed by the department. The agency laying cables or any other infrastructure in the vicinity of the road cannot undertake such work without consent of the official respondents and against the conditions of the consent given by said respondents. Thus petitioner or for that matter respondents No.3 and 4 to whom the contract of laying OFC has been awarded do not have any legal right to undertake the execution of the work in violation of the consent NOC granted in their favour. 12) Apart from the above there is no privity of contract between petitioner and the official respondents. The NOC has been granted by 8 WP(C) No.1836 2021 the official respondents in favour of respondents No.3 and 4 and not in favour of the petitioner who is only a sub contractor of respondents No.3 and 4. If at all official respondents are creating any hindrance in execution of work it is for respondents No.3 and 4 to take remedial measures. The petitioner has no cause of action against the official respondents. Petitioner at best can inform his principals about the obstacles in execution of the work and he has no right to maintain an action against the official respondents who have granted NOC in favour of respondents No.3 and 4 and not in his favour. On this ground also the writ petition is not maintainable. 13) For the foregoing reasons I do not find any merit in this writ petition. The same is accordingly dismissed along with connect CM. 14) No order as to costs. Judge “Bhat Altaf PS” Whether the order is speaking: Yes No Whether the order is reportable: Yes No

Minors shall be permitted to donate living organ or tissue on exceptional medical grounds : Delhi High Court

The eligibility to donate under exceptional medical grounds requires to be determined based on various factors like medical fitness, case circumstances by the competent authorities.  This was held in the judgment passed by a single judge bench comprising HON’BLE MS. JUSTICE REKHA PALLI  , in the matter SAURAV SUMAN,  MRS. BABY DEVI v. GOVERNMENT OF NCT OF DELHI AND ANR [W.P.(C) 10292/2021], dealt with an issue where the petitioner filed a petition seeking setting aside of the passed by respondent no 1, whereby his application seeking approval for donating a part of his Liver to his ailing father has been rejected. Consequently, the petitioner seeks a direction to respondent no.2 to grant him the necessary permission to donate a part of his Liver to his ailing father. Counsel for the petitioner submitted that the petitioner’s father is suffering from Chronic Liver Disease and his MELD score was 28 as on 08.09.2021, according to the certificate issued by respondent no.2 itself which certificate states, in no uncertain terms, that the petitioner’ father requires a Liver transplant urgently. He submitted that the petitioner’s request for approval has been rejected by a non-reasoned order solely on the ground that he is a minor without appreciating the fact that there is no absolute bar for permitting a minor to donate his living organs or tissues. He submits that in terms of Rule 5(3)(g) of the Transplantation of Human Organs and Tissues Rules, 2014. A minor can be permitted to donate his living organs or tissues on exceptional medical grounds. Since the close relatives of the petitioner’s father were either not found to be a suitable match for donation or are unwilling to donate a part of their Liver due to their advancing age, coupled with the fact that the petitioner’s father needs immediate transplant, it is evident that the present case is a case where exceptional medical circumstances as envisaged under the aforesaid rule are made out. Counsel for the respondent no. 2 submits that since the petitioner is a minor, the respondent no.2 is justified in rejecting his request in accordance with Section 9 (1) (1B) of the Transplantation of Human Organs and Tissues Act, 1994, which states that no human organs or tissues shall be removed from the body of a minor prior to his death except in the manner as may be prescribed. After hearing both the parties The Hon’ble Delhi High Court allowed the petition and held the impugned order which does not deal with the vital aspects of the is not sustainable and is accordingly set side. However, keeping in view the fact that petitioner’s father is already in a critical state, instead of remanding back the matter to the respondent no.2, it would be in the interest of justice, if the petitioner’s case is expeditiously considered by the Secretary, Health, Government of NCT of Delhi who is the final authority to grant approval in terms of Rule 5(3) (g) in terms of the Rules. Accordingly, while setting aside the impugned order, the respondent no.1 is directed to decide the petitioner’s request within a period of 2 days from today. Click here to view judgement Judgement reviewed by – Vaishnavi Raman

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 10292 2021 SAURAV SUMAN THROUGH HIS MOTHER MRS. BABY DEVI Date of Decision: 27.09.2021 Petitioner Through Mr. Prasoon Kumar Adv. GOVERNMENT OF NCT OF DELHI AND ANR...... Respondents Through Mr. Naushad Ahmed Khan ASC GNCTD for R 1 Mr. Sanjay Poddar Sr. Adv. with Mr. Siddharth Panda and Mr. P. Venkateshan Advs. HON BLE MS. JUSTICE REKHA PALLI REKHA PALLI JThe Petitioner who is turning 18 years of age on 09.12.2021 has approached this Court seeking setting aside of the order dated 28.08.2021 passed by respondent no.1 whereby his application seeking approval for donating a part of his Liver to his ailing father has been rejected. Consequently the petitioner seeks a direction to respondent no.2 to grant him the necessary permission to donate a part of his Liver to his ailing father. Learned counsel for the petitioner submits that the petitioner’s father is suffering from Chronic Liver Disease and his MELD score was 28 as on 08.09.2021 according to the certificate issued by respondent no.2 itself W.P.(C) 10292 2021` which certificate states in no uncertain terms that the petitioner’ father requires a Liver transplant urgently. He submits that the petitioner’s request for approval has been rejected by a non reasoned order solely on the ground that he is a minor without appreciating the fact that there is no absolute bar for permitting a minor to donate his living organs or tissues. He submits that in terms of Rule 5(3)(g) of the Transplantation of Human Organs and Tissues Rules 2014a minor can be permitted to donate his living organs or tissues on exceptional medical grounds. Since the close relatives of the petitioner’s father were either not found to be a suitable match for donation or are unwilling to donate a part of their Liver due to their advancing age coupled with the fact that the petitioner’s father needs immediate transplant it is evident that the present case is a case where exceptional medical circumstances as envisaged under the aforesaid rule are made out. 3. Mr. Kumar further contends that in view of the COVID 19 pandemic and the ensuing lockdown imposed from time to time the petitioner’s father has been unable to locate any other suitable donors till date and therefore if the petitioner is not granted the necessary approval expeditiously his father’ health could take a turn for the worse. He further draws my attention to the medical fitness certificate dated 25.08.2021 issued by the concerned doctor of respondent no.2 Institute clearly certifying that the petitioner was medically fit to undergo the procedure of Liver removal. He therefore prays that the impugned order which overlooks these important aspects be set aside and the matter be referred to the respondent no.1 for necessary approval. W.P.(C) 10292 2021` On the other hand learned senior counsel for the respondent no. 2 submits that since the petitioner is a minor the respondent no.2 is justified in rejecting his request in accordance with Section 9 (1B) of the Transplantation of Human Organs and Tissues Act 1994 which states that no human organs or tissues shall be removed from the body of a minor prior to his death except in the manner as may be prescribed. Before dealing with the rival submissions of the parties it may be apposite to refer to the relevant provisions dealing with the procedure where a minor can be permitted to donate his organs or tissues. In this regard Section 9(1B) of the Act reads as under “9(1B) No human organs or tissues or both shall be removed from the body of a minor before his death for the purpose of transplantation except in the manner as may be prescribed.” Reference may also be made to Rule 5 (g) of the Rules which reads as under “3(1)(g) living organ or tissue donation by minors shall not be permitted except on exceptional medical grounds to be recorded in detail with full justification and with prior approval of the Appropriate Authority and the State Government concerned.” A bare perusal of Rule 5(3)shows that a minor can donate organs in exceptional medical circumstances. In the present petition keeping in view the facts noted hereinabove there can be no doubt that the petitioner’s case ought to have been considered within the parameters of the abovementioned rule and therefore it was incumbent upon the respondent no. 2 to consider whether the petitioner had made out a case for grant of W.P.(C) 10292 2021` approval on exceptional medical grounds. The respondent no.2 ought to also have considered the effect of the medical fitness certificate issued in favour of the petitioner by its own doctors on 25.08.2021 clearly stating that the petitioner was in a proper state of health and medically fit to be subjected to the procedure of Organ Removal. In the light of the aforesaid the impugned order which does not deal with these vital aspects is not sustainable and is accordingly set side. However keeping in view the fact that petitioner’s father is already in a critical state instead of remanding back the matter to the respondent no.2 it would be in the interest of justice if the petitioner’s case is expeditiously considered by the Secretary Health Government of NCT of Delhi who is the final authority to grant approval in terms of Rule 5(3)in terms of the Rules. Accordingly while setting aside the impugned order the respondent no.1 is directed to decide the petitioner’s request within a period of 2 days from today. Needless to state while considering the petitioner’s request for approval the Secretary Health Government of NCT of Delhi will consider the aspects noted in this order especially the fact that there is a grave medical emergency in the present case and the petitioner is about to attain majority i.e. complete 18 years of age within about two months from today. In order to facilitate an early decision by respondent no.1 the respondent no.2 is directed to forthwith forward all the medical records of the petitioner and his father to the respondent no.1. It will also be open for the petitioner to submit additional documents to the respondent no.1 within a day copies whereof will be provided to learned counsel for the respondent no.1. W.P.(C) 10292 2021` 10. The petition is disposed of in the aforesaid terms. REKHA PALLI) SEPTEMBER 27 2021 W.P.(C) 10292 2021`

The words ‘to secure the ends of justice’ in S.482 IBC, cannot mean to overlook the undermining of a statutory dictate: Supreme Court

While addressing a dispute regarding the order of the High Court under IBC and the order of NCLAT, NCLT the Supreme Court held that as per section 482 of the IBC, the High Courts cannot support the breach of a statutory provision and undermine the dictate of a provision. This judgment was in the case of Sandeep Khaitan, Resolution Professional For National Plywood Industries Ltd. vs. JSVM Plywood Industries Ltd. & Anr. [Cr.A.No.447/2021] by a Double Bench consisting of Hon’ble Justice Uday Umesh Lalit and Hon’ble Justice K.M. Joseph. The present appeal was against an order of the Guwhati High Court which allowed an interlocutory application filed by respondent no.1. the application allowed it to operate its bank account maintained with ICICI Bank, unfreeze the bank account of its creditor over which the lien was created, and the accounts which were frozen pursuant to the FIR. The facts of the case were that an application under section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC) was admitted against the National Plywood Industries Ltd. (NPIL).  The appellant was the Interim Resolution Professional (IRP) and a moratorium was passed under section 14 of IBC. While the appellant was appointed as Resolution Professional (RP), Respondent no.1 claimed to be an operational creditor and claimed for amounts due to them from the Corporate Debtor before the appellant. The application filed by the former Managing director (MD) of the Corporate Debtor under section 7 IBC seeking an injunction on the activities of the respondent was disposed of. The appellant alleges that the former MD of the corporate debtor and Respondent no.1 engaged in an illegal transaction of RS. 32.50 Lakhs w/o the authority of appellant, thus violating section 14 IBC. The appellant alleged that the MD made a transaction of rs. 500 initially to Respondent no. 1 and then made a payment of the said amount from 4 transactions. Out of them, one was for Rs.3.29 lakhs from another account. Based on this the appellant filed a cyber complaint, an FIR, and an application under section 19 r/w section 23(2) of IBC alleging noncorporation. Later the ICICI bank also created a lien on the account of Respondent no.1. The NCLT order asked for the suspension of the board of the Corporate Debtor and the board was asked to return the amount withdrawn less the amount paid to the supplier. The learned Judge in the Impugned order reversed the above decisions on the condition that the respondent would refund the Rs.32.50 if required. After hearing the parties in the present appeal the Supreme Court observed that, apart from Rs. 32.50 lakhs which the respondent contend was the price of raw materials there was more than Rs.39 Lakhs still due. Further setting aside of the appellate order of NCLAT did not mean setting aside the order admitting the application. thus the essential grievance of the appellant is regarding the Rs.32.50 lakhs transaction which took place after the appellant was order to act according to the law. The Supreme on an analysis of the IBC observed, IBC had provisions that contemplated the resolution of insolvency and if impossible to wind up the corporate debtor. When an IRP has appointed the roles of the Board of Directors or partners stands suspended and as per section 17, their powers are also exercised by the professional. Further, the impact of the moratorium includes the prohibition of transferring, encumbering, alienation or disposing of by the corporate debtor of any of its assets. As per section 14(2) IBC and the IBC regulations, the goods and services are those which are essential for the functioning and are not a direct input to the output. It is on the IRP/RP to decide if the same is crucial for the functioning of the Corporate Debtor and therefore Raw Materials also could fall within the provision. The role of RP is however restricted to the extent of taking permission from the committee of creditors for matters under section  28.

SANDEEP KHAITAN RESOLUTION PROFESSIONAL FOR NATIONAL PLYWOOD INDUSTRIES LTD. … APPELLANT(S IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.447 OF 2021 Arising out of SLPNo. 15421) JSVM PLYWOOD INDUSTRIES LTD. & Anr. … RESPONDENT(S) VERSUS JUDGMENT K.M. JOSEPH J. Leave granted. 1. The appeal is directed against order dated 04.02.2021 passed by the Hon’ble High Court of Guwahati. In the impugned order the High Court has allowed an interlocutory application filed by the Respondent No. 1 to allow it to operate its bank account maintained with the ICICI Bank Bhubaneswar and to unfreeze the bank account of its creditors over which the lien has been created and the accounts frozen pursuant to the lodging of an FIR by the appellant before us. It was made subject to conditions. 2. An application under Section 7 of the Insolvency and Bankruptcy Code 2016 hereinafter referred to as the IBC was admitted on 26.08.2019 against one National Plywood Industries Limited of the IBC alleging non corporation by the previous management of the Corporate Debtor. On 27.04.2020 the Appellant got lodged an FIR. On 04.05.2020 the ICICI Bank created a lien upon the bank account of the Respondent No. 1 based on the development to be noticed is the order dated 20.05.2020 passed by the NCLT Guwahati. The order is passed in I.A. No. 320. The relief sought therein was for direction to the Directors of the Corporate Debtor to hand over the management of the company. The order reflects the controversy relating to the payment of Rs. 32.50 lakhs violating the moratorium. Tribunal finds that the directors of the Corporate Debtor were not giving maximum assistance. On the basis of its findings the tribunal issued directions to the suspended Board of the Corporate Debtor to cooperate with the Appellant. The Auditors were to complete the audit expeditiously interalia. More importantly the Directors were directed to refund the amount withdrawn less the amount if any paid to the alleged supplier as the cost of raw materials. The interlocutory application was posted before the regular bench for hearing after lifting the lockdown. 5. A perusal of the order reveals that the Directors of the company sought to defend the withdrawal of Rs.32.50 lakhs as one intended to pay for the raw materials. It is further noticed that the Tribunal noticed that there was no proof for the same. More importantly it was found that even if done to discharge debt due to supplies during the CIRP without permission and knowledge of the Resolution Professional it was in violation of Section 14 of the Code. 6. The Appellant moved an application for review of the order dated 20.05.2020. The Tribunal in its order dated 05.06.2020 noticed the limitations flowing from Rules 154 and 155 of the NCLT Rules 2016 in the matter of review. It is observed that for the reasons highlighted in the 20.05.2020 the former Directors of the Corporate Debtor are found prima facie liable to refund the amount unauthorisedly withdrawn from the account of the Corporate Debtor. It is also noticed that the Directors of the suspended board were not made respondents. The application for review came to be dismissed. 7. The genesis of the impugned order is the FIR lodged against the Appellant and arose from the payment effected into the account of Respondent No.1 in a sum of Rs. 32.50 lakhs. The said FIR came to be challenged in a petition under Section 482 of the Cr.P.C. by the Respondent No.1 by filing Criminal Petition No. 4520. In the same the Appellant also filed I.A. No. 4520. 8. On 19.01.2021 the NCLT Guwahati passed an order in I.A No. 37 of 2020. By the said order the Appellant was directed to discharge his duties as per the provisions of the IBC. Thereafter it also passed the following directions: i. “The Learned Counsel for the Respondents has confirmed that the Suspended Management has been co operating and providing assistance to RP to complete the CIRP in time. The Corporate Debtor is directed to submit its reply Affidavit to the allegations made relating to the transactions of Rs. 35.795 lakhs serving a copy upon the RP. ii. Any amount of the Corporate Debtor lying in any Bank is to be transferred to the account being operated by the RP. Banks having account of the Corporate Debtor are directed to lift the lien if any on any amount of the Corporate Debtor and allow the operation of the account by the RP only. iii. The RP is directed to utilize the funds of the Corporate Debtor under CIRP judiciously keeping the Unit in its full operation.” 9. Thereafter in the petition filed by the Respondent No.1 under Section 482 the High Court admitted the petition. The case was directed to be listed for regular hearing in usual course. According to the Appellant the High Court had directed investigation to be continued. This is not seen reflected in the order which is produced). In the I.A No. 453 of 2020 filed in the Section 482 resulting in the impugned order the prayers sought has already been noted. It is to allow the Respondent No.1 and its creditors to operate their bank account over which lien has been created and those accounts which have been frozen based on the FIR dated 27.04.2020. THE IMPUGNED ORDER After noticing the contentions of the parties the Learned Single Judge in the impugned order proceeds to hold as follows: i. “From the material on record it is apparent that there was business relation between the petitioner company and the NPIL which is evident from the various documents annexed to the petition. Only question raised in this FIR is that the money was transferred by the suspended CMD without any authority inasmuch as the entire state of affairs of NPIL was vested with the Respondent No. 2 who has been appointed as resolution professional. Only petitioner is that the suspended CMD has personal interest in the petitioner company being an associate company which is however a disputed fact required to be investigated by police. ii. Be that as it may having considered the entire gamut of the matter and the nature of accusation brought against the present petitioner I am of the view that freezing of all the bank account as indicated above would certainly cause unnecessary hardship which may not be necessary for the investigation of the present FIR in view of the nature of the accusation made therein as well as in view of the offer made by the petitioner to furnish a bond. Therefore in my consider view the petitioner is entitled to the interim relief as sought for. Accordingly it is provided that the lien created upon the bank account iii. It is however made clear that the interim no. 149905001306 maintained with the ICICI Limited Branch Bhubaneswar be lifted the petitioner and its creditors shall be allowed to operate the bank account over which lien has been created and the accounts have been frozen pursuant to the instruction of the Respondent No. 2 in connection with Margherita P.S. Case No. 0112 2020 until further order of the Court. relief granted to the petitioner as above with regard to unfreezing the bank account and lifting of lien shall be subject to the condition that the petitioner shall withdraw the WP No. 118 2020 filed before the Itanagar Permanent Bench of this Court and furnishing an indemnity bond undertaking to refund the amount of Rs. 32.50 Lakhs if required subject to final outcome of the criminal case.” 13 We heard the Learned Counsel for the Appellant Shri Anand Varma and the Learned Counsel for the Respondent No. 1 Shri Harish Pandey. The State is represented by Shri Shuvodeep Roy. The Learned Counsel for the Appellant contended that the impugned order proceeds on an erroneous basis namely that the allegations about the co accused having an interest in the Respondent No.1 Company was a disputed fact which had to be investigated. It is the case of the Appellant that there is a report of the auditing firm. Also the said finding of the High Court is contrary to the documents of the Respondent No. 1 itself. It is also urged that the High Court itself has permitted the investigation to go on in the petition under section 482. Secondly he pointed out that the impugned order was contrary to Section 14 of the IBC. He drew support from the judgment of this Court in P Mohanraj vs. M S. Shah Brothers Ispat Pvt. Ltd. in Civil Appeal No. 103518. According to him the whole purpose of the moratorium would be defeated if members of the previous management of the Corporate Debtor are left free to transfer the funds of the Corporate Debtor. The Respondent No. 1 was a related party of the Corporate Debtor. He reiterates that with the appointment of Appellant as the Resolution Professional under Section 25 has not been stricken by the remand by this Court of the appeal against the order admitting the application. Per contra Shri Harish Pandey Learned Counsel contended that the order may not be interfered by this Court. The Respondent No.1 was a related party and it was always known to be such related party. He referred to the fact that the Respondent No.1 was supplier of raw material to the Corporate Debtor. He pointed out goods worth more than Rs.2 crores have been supplied by it to the Corporate Debtor. Payments were being made. In fact a sum of more than Rs.39 lakhs is further due from the Corporate Debtor to the Respondent No. 1. It is emphasized as a MSME it would cause grave prejudice to it if the impugned order is set aside. It is the case of the Respondent No. 1 further that the business relationship between the Respondent No. 1 and Corporate Debtor has existed for more than 15 years. The Corporate Debtor has been declared a sick industry on 18.04.2006. It was nursed back by the Respondent No. 1. Our attention is drawn to the minutes of the first meeting of the Committee of Creditors dated 23.09.2019. The minutes reveal that committee of creditors observes that a substantial part of the raw materials is purchased from Respondent No.1 and that the relatives of the Corporate Debtor directors or shareholders hold more than 51 percent shareholding of the first respondent. It is further noted that the processes to assess the veracity and reasonableness of the transaction in such situation were let known and the purchases sales must be benchmarked against arm’s length transactions and open market transactions.It is the case of the Respondent No. 1 that right from the beginning it was known that the Respondent No. 1 was a related party. It is the further case of the Respondent No. 1 that its claim for over 6 crores of rupees was vetted verified and admitted by the Appellant. After the commencement of CIRP Respondent No. 1 had made regular substantial supplies to the Corporate Debtor for which the payment were being madeand has been defined by Regulations. Regulation 32 of the INSOLVENCY AND BANKRUPTCY BOARD OF INDIAREGULATIONS 2016 reads as The essential goods and services referred to in follows: Essential Supplies. section 14(2) shall mean i. Electricity ii. water iii. telecommunication services and iv. information technology services to the extent these are not a direct input to the output produced or supplied by the corporate Illustration Water supplied to a corporate debtor will be essential supplies for drinking and sanitation purposes and not for generation of hydro electricity.” Also undoubtedly Section of Section 14 of the THE INSOLVENCY AND BANKRUPTCY CODE 2016 provides as follows: “Where the interim resolution professional or resolution professional as the case may be considers the supply of goods or services critical to protect and preserve the value of the corporate debtor and manage the operations of such corporate debtor as a going concern then the supply of such goods or services shall not be terminated suspended or interrupted during the period of moratorium except where such corporate debtor has not paid dues arising from such supply during the moratorium period or in such circumstances as may be specified.” This provision was inserted with effect from 28.12.2019. No doubt under this provision goods or services not covered by Section 14(2) are also covered. The call however is to be taken by the IRP RP. Raw material supply could fall within the provision. The IRP RP must take a decision guided purely by the object of the IBC and the provisions and the factual matrix. With the appointment of Committee of Creditors a Resolution Professional is to be thereafter to conduct the resolution process and manage the operations. Section 23 makes it clear that his power is the same as the powers of the Interim Resolution Professional. Undoubtedly the Resolution Professional is bound to seek prior approval of the Committee of Creditors in maters covered by Section 28. We have to also in this context bear in mind that the High Court appears to have in passing the impugned order which is an interim order for that matter overlooked the salutary limits on its power under Section 482. The power under Section 482 may not be available to the Court to countenance the breach of a statuary provision. The words ‘to secure the ends of justice’ in Section 482 cannot mean to overlook the undermining of a statutory dictate which in this case is the provisions of Section 14 and Section 17 of the It would appear to us that having regard to the orders passed by the NCLT admitting the application under Section 7 and also the ordering of moratorium under Section 14 of the IBC and the orders which have been passed by the tribunal otherwise the impugned order of the High Court resulting in the Respondent No. 1 being allowed to operate the account without making good the amount of Rs 32.50 lakhs to be placed in the account of the Corporate Debtor cannot be sustained. The Learned Counsel for the Appellant has also no objection in the Respondent No. 1 being allowed to operate its account subject to it remitting an amount of Rs. 32.50 lakhs into the account of the Corporate Debtor. In such circumstances Appeal is allowed. The Impugned order is modified as follows: i. The Respondent No.1 is allowed to operate its account subject to it to first remitting into the account of the Corporate Debtor the amount of Rs 32.50 lakhs which stood paid to it by the management of the Corporate Debtor. The assets of the Corporate Debtor shall be managed strictly in terms of the provisions of the IBC. The Appellant as RP will bear in mind the provision of Section 14and the object of IBC. We however make it clear that our order shall not be taken as our pronouncement on the 28 issues arising from the FIR including the petition pending under Section 482 of the Cr.P.C. ii. We also make it clear that the judgment will not stand in the way of the Respondent No.1 pursuing its claim with regard to its entitlement to a sum of Rs.32.50 lakhs and any other sum from the Corporate Debtor or any other person in the appropriate forum and in accordance with law. There will be no order as to costs. ......................J. J. New Delhi April 22 2021.

Employee’s qualification plays an important role in selection process -: High Court Of Calcutta

The original applicants failed to secure minimum qualifying cut off marks, so both the respondent were not selected for the job through the interview process, this was held in the judgment passed by a single bench judge comprising The Hon’ble Justice Soumen Sen and The Hon’ble Justice Hiranmay Bhattacharyya, in the matter [WPST 61 Of 2020] And [WPST 62 of 2020]. Respondent no. 1 in WPST no. 61 of 2020 filed an original application being Original Application no. 293 of 2017 challenging the selection process initiated by the Public Service Commission, being aggrieved against the aforesaid judgment and order, the PSC preferred the instant writ petitions. The PSC published an advertisement on December 27, 2014, inviting applications from intending candidates for recruitment to the post of Principal in GPTTI in West Bengal under the School Education Department. Both the respondents participated in the process, respondents were found eligible for the post of Principal and they were asked to appear for an interview. They appeared in the said interview but their names were not included in the panel of five candidates. PSC contested the original applications before the Tribunal by filing an affidavit-in-reply denying the allegations contained in the original applications. It was specifically contended therein that as the original applicants failed to secure minimum qualifying cut-off marks in the interview prescribed in the resolution taken in the Full Commission meeting held on September 19, 2014, the names of the original applicants were not recommended. Mr Pradip Kumar Roy, the learned Advocate for the appellant contended that the PSC being an expert body undertaking recruitment examinations has the power to fix qualifying cut-off marks for all cases of recruitment examinations as well as select cases. Also, he relied upon the following decisions in support of his aforesaid contentions. Few are as follows:  (1)Ranjan Kumar and Ors. Vs. State of Bihar and Ors. reported at (2014)16 SCC 187 (2)Manish Kumar Shahi vs. State of Bihar and Ors. (2010) 12 SCC 576  (3)Aznar Ahmad vs. the State of Bihar (1994)1 SCC 150 ( & more ) Meanwhile, the learned advocates for the State submitted that the learned Tribunal erred in directing the PSC to recommend the names of the original applicants as they failed to secure the minimum qualifying cut-off marks. Mr D.N.Roy the learned advocate appearing for the original applicants/ respondent nos. 1 in WPST-1 and WPST-2 disputed the contentions made by Mr Pradip Kumar Roy. He contended that no cut-off marks were fixed for the interview. It was evident from the minutes of the Full Commission meeting held on September 19, 2014, that in all cases of recruitment examination conducted by the examination section of PSC, West Bengal excepting West Bengal Civil Service (executive), etc. examination and West Bengal Judicial Service Examination’s cut off marks will be fixed at all stages for all categories as in selection cases, The said to cut off marks are applied universally to all candidates appearing in the examination conducted by PSC. The cut-off marks fixed for the interview cannot also be said to be arbitrary or mala fide as there is no such challenge in that regard in the instant case. The Hon’ble High Court perused the facts and the arguments presented, and thereby, opined that –“For the reasons as aforesaid we are of the view that the impugned orders both dated 14.02.2020 passed by the Tribunal in O.A. 293 of 2017 and O.A. 292 of 2017 suffer from infirmity and the same are accordingly set aside and quashed. The writ petitions stand allowed. However, there shall be no order as to costs. All parties shall act in terms of the copy of the order downloaded from the official website of this Court”.

IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE The Hon’ble Justice Soumen Sen The Hon’ble Justice Hiranmay Bhattacharyya WPST 61 Of 2020 The Public Service Commission W.B & Anr. Minarul Islam Mondal WPST 620 The Public Service Commission W.B. & Anr. Pronob Mandal & Ors. For the Petitioners in both the writ applications For the State in WPST 61 of For the State in WPST 62 of For the Private Respondent in both the writ applications Mr. Pradip Kumar Roy Mr. Shraboni Sarkar….. advocates Mr. Tapan Kumar Mukherjee…. Ld. AGP Mr. Somnath Naskar advocate Ms. Sutapa Sanyal Mr. Anand Fermania .Advocates Mr. D.N. Ray Mr. M.N. Ray Mr. Sourav Halder Mr. Biswarup Nandy…. Advocates Heard On 26.08.2021 Judgment On 22.09.2021 Hiranmay Bhattacharyya J.: Both the writ petitions were heard analogously as common questions of law and fact arise therein. The respondent no. 1 in WPST no. 61 of 2020 filed an original application being Original Application no. 293 of 2017 challenging the selection process initiated by the Public Service Commission for recruitment of Principal in Government Primary Teachers’ Training Institute in West Bengal filed the Original Application being no. 292 of 2017 for short “O.A. 2”) before the West Bengal Administrative Tribunal challenging the selection process initiated by the Public Service Commission for recruitment of Principal in GPTTI in West The learned Tribunal by separate judgments and orders both dated 14.02.2020 allowed the O.A. 1 and O.A. 2 by directing the PSC to recommend the name of the original applicants to the Secretary School Education Department for the posts of Principal in the GPTTI under OBC and Schedule Caste category respectively. Being aggrieved against the aforesaid judgment and order the PSC preferred the instant writ petitions. The undisputed facts are as follows : The PSC published an advertisement on December 27 2014 being advertisement no. 16 2014 applications from intending candidates for recruitment to the post of Principal in GPTTI in West Bengal under the School Education Department. ii) The total number of vacancies declared for the said post were 11. Out of the said posts 2 were reserved for Schedule Caste and one each for Schedule Tribe OBC categoryand OBC categorycandidates. iii) The respondent no. 1 in WPST 1 participated in the selection process for the post of Principal under OBC A) category. iv) The respondent no. 1 in WPST 2 participated in the selection process for the post of Principal under Schedule Caste category. v) The aforesaid respondents were found eligible for the post of Principal and they were asked to appear for an interview. vi) They appeared in the said interview but their names were not included in the panel of five candidates. vii) Respondent no. 1 of WPST 1 scored 36 marks in the interview and the respondent no. 1 of WPST 2 scored 30 marks in the interview. The case made out by the original applicants before the Tribunal was that they were eligible for the post of Principal in GPTTI and they participated and performed satisfactorily in the interview. However the PSC did not recommend their names for the respective posts in spite of available vacancies. It was specifically contended that there was no cut off marks in the interview. The original applicant in O.A. 1 contended that since he was the only participant under OBCcategory the PSC ought to have recommended his name. The original applicant in O.A. 2 contended that though in the advertisement 2 vacancies were declared under Schedule Caste category but the PSC recommended only one candidate and the original applicant was not recommended for appointment. PSC contested the original applications before the Tribunal by filing an affidavit in reply denying allegations contained in the original applications. It was specifically contended therein that as the original applicants failed to secure minimum qualifying cut off marks in the interview prescribed in the resolution taken in the Full Commission meeting held on September 19 2014 the names of the original applicants were not recommended. The learned Tribunal by the judgments and orders allowed the original applications. Being aggrieved the PSC preferred the instant writ petitions. Mr. Pradip Kumar Roy the learned advocate for the appellant contended that the PSC being an expert body undertaking recruitment examinations has the power to fix qualifying cut off marks for all cases of recruitment examination as well as selection cases. He contended that the Full Commission in its meeting held on September 19 2014 took a decision for fixing cut off marks for interview in respect of various categories. He contended that the applicants could not secure the qualifying cut off marks for interview and as such were not recommended appointment to the said post by the Commission. He further contended that the original applicants participated in the interview and only because they were unsuccessful in the interview cannot turn around and challenge the selection process subsequently. Mr. Pradip Kumar Roy relied upon the following decisions in support of his aforesaid contentions. 1) Ranjan Kumar and ors. Vs. State of Bihar and ors. reported atManish Kumar Shahi vs. State of Bihar and Ors. 12 SCC 576 3) Anzar Ahmad vs. State of BiharUnion of India and ors. Vs. S. Vinodh Kumar and Others 2007)8 SCC 100 5) Unreported judgment of the Supreme Court in the case of Yogesh Yadav vs. Union of India and ors. Decided on 16th August 2013 in SLP34427 2011 6) Dhananjay Malik and ors. Vs. State of Uttaranchal 2008) 4 SCC 171 The learned advocates for the State submitted that the learned Tribunal erred in directing the PSC to recommend the names of the original applicants as they failed to secure the minimum qualifying cut off marks. Mr. D.N.Roy the learned advocate appearing for the original applicants respondent nos. 1 in WPST 1 and WPST 2 disputed the contentions made by Mr. Pradip Kumar Roy. He contended that no cut off marks was fixed for the interview. He further contended that since there are available vacancies for the post of Principal in the respective categories for which the original applicants applied for and in the selection process the respondent authorities ought to have recommended the names of the original applicants for appointment to the said post. He alternatively argued that in view of non availability of candidates in the OBC category A and Schedule Caste PSC ought to have lowered the qualifying cut off marks for the interview and recommended the names of the original applicants for appointment. We have heard the learned advocates for the parties and have perused the materials on record. The Rules providing the method and qualifications required for recruitment to the post of Principal in the GPTTI under the School Education Department was notified on August 20 2013 in the Kolkata Gazette. The method of recruitment for the said post was by selection through the Public Service Commission West Bengal. PSC published the advertisement no. 16 2014 dated December 27 2014 inviting applications intending candidates for recruitment to the post of Principal in GPTTI in West Bengal under the School Education Department. The original applicants were found eligible to the post of Principal and were asked to participate in the interview for the said post. They participated in the interview but their names were not recommended on the ground that they failed to secure the qualifying cut off marks in the interview. It is evident from the minutes of the Full Commission meeting held on September 19 2014 that in all cases of recruitment examination conducted by the examination section of PSC West Bengal excepting West Bengal Civil executive) etc. examination and West Bengal Judicial Service Examination’s cut off marks will be fixed at all stages for all categories as in selection cases. It was further resolved in the said meeting that the Commission may further lower the qualifying levelas and when necessary the event of non availability of candidates for filling up vacancies in a particular category. The recruitment rules authorised PSC to select the candidates. The object is to select the best candidates for the post sought to be filled up. For the purpose of choosing the best candidates the employer or the expert agency may decide to maintain a basic standard for the post in question. In order to maintain such standard it is open to the employer or the expert agency to fix cut off marks. PSC being the expert body for recruitment of candidates for various public posts have the expertise to decide on the cut off marks. Different cut off marks may be fixed for different categories of candidates. Cut off marks may also vary from one post to another. It is evident from the materials on record that the decision regarding fixation of qualifying cut off marks for interview in cases of recruitment examination conducted by the examination section of PSC was taken much prior to the issuance of the advertisement for the instant recruitment process. The said cut off marks was fixed for all recruitment examinations conducted by the PSC as well as in selection cases. Thus it cannot be said that the qualifying cut off marks for the interview was fixed in the midst of the recruitment process. The said cut off marks are applied universally to all candidates appearing in the examination conducted by PSC. The cut off marks fixed for the interview cannot also be said to be arbitrary or mala fide as there is no such challenge in that regard in the instant case. In S. Vinodh Kumarthe Hon’ble Supreme Court held that it is for the employer or the expert body to determine the cut off marks. The Court while exercising its power of judicial review would not ordinarily intermeddle therewith. The jurisdiction of the Court in this behalf is limited. The Hon’ble Supreme Court held thus therefore be considered “11. Respondents herein had approached the Tribunal in the year 2000. The Tribunal directed the appellants to consider this case of lowering of the cut off marks. An inference therefore can be drawn from the aforementioned fact that the main prayer of the respondents was that the cut off marks should be lowered. Appellants admittedly did not agree to the said proposal. The action of the appellants impugned before the Tribunal must viewpoint as to whether it had the requisite jurisdiction to do so. The Tribunal upheld the contention of the appellant. Once it is held that the appellants had the requisite jurisdiction to fix the cut off marks the necessary corollary thereof would be that it could not be directed to lower the same. It is trite that it is for the employer or the expert body to determine the cut off marks. The court while exercising its power of judicial review would not ordinarily intermeddle therewith. The jurisdiction of the court in this behalf is limited. The cut off marks fixed will depend upon the importance of the subject for the post in question. It is permissible to fix different cut off marks for different categories of candidates.” As per the recruitment rules PSC was authorised to candidates and appointment. The PSC did not find the original applicants suitable to be recommended for the said post as they failed to secure the qualifying cut off marks for interview. In the instant case the issue is whether a candidate who does not obtain the qualifying cut off marks can be selected for the post of Principal only because certain posts were still lying vacant. A selection process is undertaken for the purpose of identifying the candidates who are suitable for the post in question. Selection is to be made strictly on the basis of the criterion specified for such post. Sympathy cannot be a guiding factor in the matter of selection of candidates for a particular post. It is well settled that undue sympathy shown to the original applicants by directing their selection despite not possessing the desired merit would amount to interference with the right of the employer to appoint suitable and meritorious candidates for the post in question cut off marks. Since cut off marks are fixed by the expert body after taking into consideration various factors it is only for the expert body to decide whether such discretion is to be exercised in a particular case. Nature of the post for which the recruitment process is undertaken may be a for exercising such discretion. The candidates do not have any unfettered right to claim that the cut off marks has to be lowered as there are available vacancies. Any contrary interpretation would result in frustrating the very object of fixation of cut off marks. Merely because there are available vacancies the expert body cannot be directed by the Tribunal or the Court to exercise the discretion in favour of the applicants. The right to exercise discretion in such matters should be left to the It is well settled that a candidate taking part in a selection process is estopped from questioning the same after being unsuccessful. Reliance may be placed to the judgments of the Hon’ble Supreme Court of India in Ranjan Kumarand Dhananjay Malikthe Hon’ble Supreme Court held as follows “15. In this context we may quote a passage from Madan Lal v. State of J&K3 SCC 486 : 1995 SCC 712 : 29 ATC 603] with profit: SCC p. 493 para 9) “9. … It is now well settled that if a candidate takes a calculated chance and appears at the interview then only because the result of the interview is not palatable to him he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In Om Prakash Shukla v. Akhilesh Kumar Shukla644] it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination the High Court should not have granted any relief to such a petitioner.” 16. In Chandra Prakash Tiwari v. Shakuntala Shukla6 SCC 127 : 2002 SCC 830] the Court observed as follows: “34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seems to be well settled that in the event a candidate appears at the interview and participates therein only because the result of the interview is not ‘palatable’ to him he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process.” 17. In Union of India v. S. Vinodh Kumar8 SCC 100 : 2 SCC 792] the Court reiterated the principle that it is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same.” In Dhananjay Malikthe Hon’ble Supreme Court of India held as follows: “10. In a recent judgment in Marripati Nagaraja v. Govt. of A.P.11 SCC 522 :1 SCC68 : 11 SCR 506] SCR at p. 516 this Court has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are therefore estopped and precluded from questioning the selection process.” This Court is thus of the considered view that the original applicants are estopped from challenging the selection process. Let us now deal with the other judgments relied upon by the respective parties. In Yogesh Yadav the authorities for the purpose of short listing of candidates for giving appointment fixed the bench mark to recruit best candidates on rational and reasonable basis. It was not a case of fixing qualifying minimum marks in the interview. Thus the said judgment has no manner of application in the instant case. In Anzar Ahmad the employment notification stated that the selection should be made on the basis of interview but the Commission in accordance with the past practice has made the selection by giving equal weight to the academic performance as well as the interview. On such facts the Hon’ble Supreme Court held that such act of the Commission has the possibility of arbitrariness and held that such procedure adapted by the Commission do not suffer from the vice of arbitrariness. The said decision is not on the issue with regard to fixation of cut off marks of the interview and as such the said decision has no manner of application to the facts of the instant case. In Manish Kumar Shahi the challenge was thrown to the marks prescribed for viva voce test as excessive and contrary to the law laid down by the Hon’ble Supreme Court. The Hon’ble Supreme Court held that earmarking of 200 marks for viva voce test as against 850 marks for written examination does not violate the doctrine of equality embodied in Article 14 and 16 of the Constitution. In the instant case the challenge is not against allocation of marks between written test and viva voce test and as such the said decision do not have any manner of application to the facts of the instant case. A Co ordinate Bench of this Court in Abdul Haque supra) held that fixation of cut off marks pursuant to a decision adapted subsequent to the selection process is not sustainable in law. In the instant case it cannot be said that the cut off marks was fixed subsequent to the commencement of the selection process. As such said decision of the Co ordinate Bench has no manner of application to the facts of the instant case. learned Tribunal in our view exceeded jurisdiction by directing PSC to recommend the original applicants for appointment to the post of Principal of the GPTTI under the respective categories without requiring the Commission to decide whether any discretion could at all be exercised in favour of the original applicants having regard to the posts in which such selection were to be made. For the reasons as aforesaid we are of the view that the impugned orders both dated 14.02.2020 passed by the Tribunal in O.A. 293 of 2017 and O.A. 292 of 2017 suffer from infirmity and the same are accordingly set aside and The writ petitions stand allowed. However there shall be no order as to costs. All parties shall act in terms of the copy of the order downloaded from the official website of this Court. Urgent photostat certified copies if applied for be supplied to the parties upon compliance of all formalities. I agree. Hiranmay Bhattacharyya J.) Soumen Sen J.)

Petitioner denied custody of minor child on the ground of remarriage: Karnataka High Court

A Petitioner denied custody of minor child on the ground of remarriage in a custody battle between two muslim spouses.The High Court denied interim custody to father of the said child on the ground of his remarriage as the court was convinced that a stepmother would not provide same care and affection as own mother.This was observed by the Karnataka High Court consisting of Justice Krishna S. Dixit in the matter of Mohammed Mushtaq GK v. Ayesha Banu (WP No. 16885 of 2021).   The facts of this case are that the Petitioner father filed a writ under article 226 and 227 of the Constitution of India for refusal of interim custody of his minor child to him.Both the spouses are educated sunni muslim and also resided in US after marriage for some while.The Respondent wife has alleged dowry harassment, physical assault and mental cruelty. The counsel on behalf of the Petitioner filed for exclusive custody of the child since he believes he can provide best education and complete family environment to the child for his upbringing as he is financially well off. The father has a second wife who would help him take good care of this child.The mother has denied her duties towards her minor child and Petitioner. The counsel on behalf of the Respondent denied that she ever neglected her duties towards either child or her husband previously.She also brought about counter allegations that the Petitioner remarried during subsistence of her marriage which is unwarranted.Mohammed_Mushtaq_G_K_v__Ayesha_Banu KHC

IN THE HIGH COURT OF KARNATAKA BENGALURU DATED THIS THE 21ST DAY OF DECEMBER 2021 THE HON BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.16885 OF 2021(GM FC) 1 … PETITIONER MOHAMMED MUSHTAQ G K S O KHADER HUSSAIN AGED 39 YEARS R AT OVAIS HOUSE NO.23 1ST MAIN 1ST CROSS SOMESHWARANAGAR JAYANAGAR 1ST BLOCK BANGALORE 560 011. BY SRI. MALLANGOUDA H ADVOCATE) AYESHA BANU W O MOHAMMED MUSHTAQ G K AGED 37 YEARS R AT BIG BUILDING GROUND FLOOR 2ND CROSS SHANTI NAGARA ELLAMMA NAGAR RING ROAD JAYADEVA CIRCLE NEAR BHOOTAPPA TEMPLE DAVANAGERE DISTRICT 577 002. BY SRI.NAYEEM PASHA S ADVOCATE) … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE E DATED 17.12.2018 PASSED BY 4TH ADDL.FAMILY JUDGE BANGALORE ON IA NO.3 IN G AND WC NO.77 2017 IN SO FAR AS IT RELATES TO THE REFUSAL OF THE INTERIM CUSTODY OF THE CHILD TO THE PETITIONER IS CONCERNED AND ETC. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER THIS DAY THE COURT PRONOUNCED THE 2 This is a legal battle between the estranged spouses for the custody of a minor child. petitioner being the husband of respondent is knocking at the doors of Writ Court for assailing the order dated 17.12.2018 a copy whereof is at Annexure E whereby the learned IV Addl. Family Court Judge Bangalore having rejected his application in I.A.No.3 for custody of the child in his G & WC No.77 2017 however has accorded visitation rights to the petitioner. reads as under: 2. The operative portion of the impugned order I.A.No.3 filed by the petitioner under section 12 of Guardians and Wards Act is However the petitioner visitation rights parenting time on 1st and 3rd Saturdays of every month from 11.30 a.m. to 3.30 p.m. at Bengaluru Mediation Center in respect of the minor child Mohammed Shahraan The respondent is directed to bring the child to Bengaluru Mediation Center on 1st and 3rd Saturdays of every month and handover the the petitioner at 11.30 a.m. The rights parenting time shall return the child to the respondent at 3.30p.m.” 3 After service of notice the respondent wife having entered appearance in person opposes the Petition making submission in justification of the impugned order and the reasons on which it has been structured she also narrates several tormenting acts allegedly perpetrated by the petitioner and the same eventually leading to the breakdown of marriage despite there being a pretty child. BRIEF FACTS: A) Parties are Sunni Muslims both they are highly educated they have a greater exposure to the outer world petitioner husband is well placed in the employ of an MNC namely Honeywell Technology Solutions at Bangalore their nikah was solemnized on 30.4.2009 at Bangalore a child is born on 1.8.2013 and it is named as Mohammed Shahraan Hussain however because of the apparent temperamental differences their marriage has broken down and respondent’s suit in O.S.No.154 2016 for the decree of its dissolution is pending it hardly needs to be stated that respondent’s suit for dissolution of marriage being pending it is open to the petitioner husband to file a Counter Claim too. Corrected Vide Chamber Order Dated 23.12.2021 4 B) Respondent wife alleges dowry harassment and claims to be an abject victim of physical assault & mental cruelty several civil & criminal cases filed by the parties against each other are pending their long list is as under: “Divorce petition in O.S.No.154 2016 pending before 6th Addl. Family court at Bangalore. G & WC.No.77 2017 pending before 6th Addl. Family Court at Bangalore. C.Misc.53 2017 pending before 6th MMTC at Defamation Suit O.S.No.8743 2017 pending before CCH 65 at Bangalore. C.C.No.27620 2018 pending before 2nd ACMM at C.C.No.29577 2019 pending before 4th ACMM at C.C.No.26059 2018 pending before 32nd ACMM at viii) Crl.Pet.No.721 2019 before this Hon’ble High Court of Karnataka at Bangalore.” It is also relevant to state that after the marriage this couple had resided in the State of Arizona in US for some time petitioner is extensively traveled he has espoused a second lady and that a child too is begotten from the second marriage admittedly he has been residing with the second wife and a female child begotten from her he admits that he is happily living the second spouse has given an Affidavit that the child from the first marriage should come & stay with this family. D) Petitioner has filed the subject G&WC seeking exclusive custody of the child inter alia contending that it is desirable to bring up the child in his exclusive custody since “he is in a better position to take care of his child 5 from a financial perspective and provide him the best upbringing education and a complete family environment” he also contends “the respondent has neglected her duties towards the minor child and the petitioner” some wild allegations are also made against her which she has stoutly denied in her Objections she has made counter allegations is also true petitioner’s claim for interim custody of the child although has been rejected the learned Family Judge has granted visitation rights to him aggrieved by the denial of custody petitioner is before this court the respondent appearing in person opposes the 5. Having heard the learned advocate for the petitioner and the respondent party in person and having perused the Petition Papers this court declines indulgence in the matter for the following reasons. In a society like ours the disputes relating to child custody by their very nature are complex regardless of religion or faith to which the parties belong at times they become complicated when the husband contracts another marriage taking shelter under the umbrella of personal law i.e. Mohammedan Law or the like the complication escalates to the higher level when a child is 6 born from the second marriage and the husband starts residing with the second family to the exclusion of the first wife who is bringing up the child all alone all this has happened in this case as borne out by the record. b) Respondent’s civil suit in O.S No. 154 2016 seeking dissolution of marriage with the respondent is pending before the learned VI Addl. Family Court at Bangalore the petitioner has filed his written statement resisting the same as already mentioned above petitioner has been happily residing with the second wife & a pretty daughter begotten from her however the respondent wife still continuing to be his first spouse has been residing separately and bringing up her son of course there is some assistance from her brother Mr.Chaman Shariff is appreciable long & multiple interactions with the parties and the child this court gathers an impression that the child is being well groomed by the respondent child too wished to continue in the custody of the respondent petitioner all these days had not cared to pay any amount for the maintenance of child although he has now paid Rs.70 000 his contention that he is financially well placed and educationally superior Corrected Vide Chamber Order Dated 23.12.2021 does not make much difference to the custody issue when 7 all necessities of the child are duly met by the respondent mother. c) Petitioner’s main case i.e. G & WC No.77 2017 is still pending before the learned Family Judge the impugned order is only by way of interim arrangement and thus obviously subject to outcome of the main matter learned Judge of the court below in his accumulated wisdom & discretion has granted visitation rights to the petitioner in such circumstances a writ court exercising a limited supervisory jurisdiction constitutionally vested under Article 227 cannot undertake a deeper examination of the matter if the custody of child is given to the petitioner husband as claimed the respondent wife would be all alone whereas the petitioner will have two children at his hands along with 2nd wife as well this offends the very sense of justice to say the least. d) Mother step mother & child: The submission of learned counsel for the petitioner that his client has the 2nd wife who has filed an affidavit that petitioner & she would take care of the child is true this is too poor a solace to the biological mother experience working on reason tells that ordinarily step mothers would not be able 8 to take care of and show affection to the children which their biological mothers instinctively would show more than a century ago in T.N.MUTHUVEERAPPA CHETTY vs. T.R.PONNUSWAMI CHETTY 13 IND CAS 16 what the Madras High Court observed is pertinent: “…It would make it the duty of the Court to come to its own conclusion as to what would best promote the minor’s interests. It does not appear that excepting the respondent’s wife there is any female relation living with him competent to take proper care of the child. It would be hardly safe to presume that his wife the child’s step mother would be willing to do so… There is good reason for believing that the maternal relations have strong affection for the child…” This is not to cast any aspersion on step mothers in general and the 2nd wife of the petitioner in particular when it comes to welfare of the child one has to err on the safer side raising a presumption u s. 114 of the Evidence Act 1872 “…regard being had to the common course of natural events human conduct …in their relation to the facts of the particular case” than to put a tender child to the possible risk of “step motherly treatment.” What a biological mother means to a child cannot be better explained than by quoting “To my Mother” the poem penned by an American poet Edgar Allan Poe: 9 Because I feel that in the Heavens above The angels whispering to one another Can find among their burning terms of love None so devotional as that of ‘Mother’ … e) Islamic law juristic view & child custody: Islamic jurist Asaf A.A.Fyzee in his Outlines of Muhammadan Law 5th Edn. Oxford at page 161 writes: “The custody of an infant child belongs to the mother”. He quotes the following from another scholarly work ie. Baillie I 435: “The mother is of all persons the best entitled to the custody of her infant child during marriage and after separation from her husband unless she be an apostate or wicked or unworthy to be trusted”. Mulla’s Principles of Mahomedan Law 20th Edn. Butterworths at page 439 quotes Hamilton Volume I page 385: “If a separation takes place between a husband and wife who are possessed of an infant child the right of nursing and keeping it rests with the mother because it is recorded that the woman once applied to the Prophet saying: ‘O Prophet of God this is my son the fruit of my womb cherished in my bosom and suckled at my breast and his father is desirous of taking him away from me into his own ‘care’ to which the Prophet replied ‘thou hast a right in the child prior to that of thy husband. So long as thou does not marry with a stranger’. Moreover a mother is naturally not only more tender but also better qualified to cherish a child during infancy so that committing the care to her is of advantage to the child…” 10 custody rights of husband: Second marriage and diminution of child Now it has been well settled that the act of a Muslim in espousing a second wife during the subsistence of first marriage per se amounts to cruelty and that not only the first wife can stay away from the matrimonial home but seek divorce too on that ground vide Division Bench decision of this Court SRI YUSUFPATEL vs. SMT.RAMJANBI ILR 2021 KAR 746 if the wife can stay away from the matrimonial home on the ground of second marriage it goes without saying that she can normally retain the exclusive custody of her minor child an argument to the contrary would permit an unscrupulous husband who contracts another marriage to pressurize his first wife to continue in the matrimonial home eventually retaining the child in his exclusive custody this Court is of a considered view that even the visitation rights of such a father will diminish to a great extent subject to all just exceptions reasons having already been stated above this court hastens to add that such a diminution in no way absolves him from providing sustenance to the child. 11 6. Before parting with this case a brief account of what transpired in the in camera proceedings needs to be stated: this court interacted with the parties and the child on several occasions hoping that long time invested might yield an amicable settlement however that did not happen the respondent wife graciously agreed to give up all allegations made against the petitioner for buying peace she also agreed to put an end to criminal cases as well and asked this court to quash them straightaway however petitioner was unjustifiably adamant and stuck to his guns though he has been happily residing with the second wife and the child begotten from her the respondent has been bringing up the child single handedly though facing the cases filed by the petitioner more is not necessary to specify. In the above circumstances this writ petition being devoid of merits is dismissed with a cost of Rs.50 000 Rupees fifty thousand) only which the petitioner shall pay to the respondent within one month failing which all his visitation rights granted by the impugned order stand suspended. 12 The learned Judges of the Courts who have been dealing with the cases enlisted supra are requested to try dispose off the same preferably within a period of nine months and report compliance to the Registrar General of this Court. Sd

Failure to effectively communicate the grounds of detention and resultant deprivation of the right to make representation against the same vitiates the detention order: High Court of J&K and Ladakh

Grounds of detention being drawn up in English and an affidavit filed on behalf of the detaining authority is not a sufficient compliance with the mandate of Article 22(5) which requires that the grounds of detention must be communicated to the detenu. This was upheld by Hon’ble High Court of J&K, while observing a judgment of Supreme Court in LallubhaiJogibhai Patel v. Union of India, (1981) 2 SCC 427, through a learned bench of Justice Ali Mohammad Magrey in the case of Mohammad Illiyass Sheikh Vs UT of J&K and anr [WP (Crl) No. 80/2021]. Grounds pleaded in support of petition were that respondent had issued the detention order dated on the basis of grounds placed before him by the concerned SSP, as the grounds of detention are ditto copy of the dossier. It was submitted that the detaining authority has not applied its mind while passing the detention order and that there is total non-application of mind while passing the impugned order of detention as the detenu was already under custody when the detention order was passed. It was submitted that the authority had not explained the grounds to the detenu in the language which he understands. It was submitted that no copy of translated version was furnished to the detenu to enable him to make an effective representation against the detention order, which renders the detention order liable to be set aside. In counter affidavit, respondent no.2 had stated that the detenu’s activities being highly prejudicial to the security of the State, his detention was necessary to prevent him from indulging in such acts, which was also approved by the Government and the State Advisory Board constituted u/s 14 of P.S. Act. During course of his submissions the respondents counsel besides reiterating the contents of counter affidavit has contended that in circumstances of the case the impugned detention is well founded in fact and law. The Hon’ble High Court after hearing both the sides stated that “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 in “LallubhaiJogibhai Patel v. Union of India, (1981) 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.”

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR {WPNo. 80 2021} Reserved on 13.09.2021 Pronounced on 03.11.2021 Through: Mr. G.N Shaheen adv. Mohammad Illiyass Sheikh UT of J&K and anr Judgment Through : Ms. Asifa padroo AAG Hon’ble Mr. Justice Ali Mohammad Magrey. Impugned in this Heabus Corpus petition with a prayer for quashment thereof is the detention order no. 01 DMK PSA 2021 dated 19.04.2021 purporting to have been passed by District Magistrate Kulgam whereunder detenu namely Mohd Illiyass Sheikh s o Gh. Hassan Sheikh R o Rampora Tehsil Qaimoh District Kulgam is under detention. 2. Grounds pleaded in support of prayer are that respondent no. 2 has issued the detention order dated 19.04.2021 on the basis of grounds placed before him by the concerned SSP as the grounds of detention are ditto copy of the dossier. It is submitted that the detaining authority has not applied its mind while passing the detention order. It is submitted that the there is total non application of mind while passing the impugned order of detention as the detenu was already under custody when the detention order was passed. It is submitted that the authority has not explained the grounds to the detenu in the language which he understands. It is submitted that no copy of translated version was furnished to the detenu to enable him to make an effective representation against the detention order which renders the detention order liable to be set aside. In his counter affidavit respondent no.2 has stated that the detenu’s activities being highly prejudicial to the security of the State his detention 1 | P a g e was necessary to prevent him from indulging in such acts which was also approved by the Government and the State Advisory Board constituted u s 14 of P.S. Act. During course of his submissions the respondents counsel besides reiterating the contents of counter affidavit has contended that in circumstances of the case the impugned detention is well founded in fact and law. 4. I have heard learned counsel and considered the matter. As per pleadings and contentions raised at bar the main ground of attack projected by petitioner against the detention in question is that grounds of detention were not duly communicated to him which prevented him from making an effective representation against the same and thereby he was deprived of an important constitutional right and that the detaining authority did not apply his mind while passing the detention order and has not revealed as to on what materials he assumed subjective satisfaction regarding necessity of having the subject detained when the detenu was already facing trial in various FIRs. 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 in “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: “Communicate’ is a strong word which means that sufficient knowledge of the basic facts constituting the ‘grounds’ should be imparted effectively and fully to the detenu in writing in a language which he understands. The 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 2 | P a g e 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 laid down by the Apex Court in case titled LallubhaiJogibhai Patel v. Union of India vitiates the detention order as not amounting to effect communication of grounds and resultant deprivation of the right to make representation against the same. That being so the grounds of challenge set up by petitioner succeed and the detention stands vitiated. Other grounds urged do not therefore need to be separately addressed. The petition is accordingly allowed and detention order no. 01 DMK PSA 2021 dated 19.04.2021 purporting to have been passed by District Magistrate Kulgam under which the detenu namely Mohd Illiyass Sheikh s o Gh. Hassan Sheikh R o Rampora Tehsil Qaimoh District Kulgam is under detention is quashed with direction for his release forthwith. The petition stands accordingly disposed of. No order as to the costs. 10. Registrar Judicial to send a copy of this Judgment order to Director General of Prisons and also concerned Jail authorities for compliance. Disposed of. Judge Srinagar 03.11.2021 S.A Hussain Secretary i)Whether the order is speaking: ii)Whether the order is reportable : Yes No 3 | P a g e

Teacher who attains the age of superannuation mid-year has right to re-employment – Supreme Court

In the case of Navin Chandra Dhoundiyal Vs State of Uttarakhand And Ors [Civil Appeal No. 3493/2020] Supreme Court held that the very object and intent of the proviso to Statute No.16.24 is to avoid the disruption caused by discontinuity of service of a teaching staff employee or official mid-session. Several appeals were combined to be heard together as the common question which arose for decision was the correct interpretation of a condition in the respondent-University’s statutes regarding the date of superannuation of its teachers. All the appellants were working as Professors in various disciplines, in the respondent Kumaun University. They were aggrieved by an office order which set out their respective dates of retirement. The appellants relied on Statute of the University, applicable to them, contending that they were entitled to continue beyond the last date of the month in which each of them attained the age of superannuation. They argued that they were entitled to continue in service, on extension up to the end of June, 2021. It was submitted by the Appellants that the purport of the proviso has to be gathered from the circumstance – that it caters to a specific eventuality, where the teacher/official superannuates on a particular day of any month, after June 30th, of an academic year. Superannuation would normally mean that the retirement date would be in accordance with the rules. In this particular case, since the provision applied only to teachers, the intention of the statute clearly was the continuance of status quo, to avoid disturbance, caused by the retirement, and the likely time to be taken by the University to make alternative arrangements to fill the vacancy. The respondent university urged the court to not interfere. It was emphasized that according to a general order, whenever an employee attained the age of superannuation (regardless of the date), he/she was entitled to continue till the end of that particular month. It was submitted that the statute did not imply that the teacher, a superannuated employee has a right to insist that he should be reemployed till the end of June of the next year. Learned counsel underlined the intent of the main provision, which enacted the essential principle, which is that every teacher attains the age of superannuation when she turns 65; in these circumstances, he/she cannot claim entitlement to re-employment. Court relied on the case of S.K. Rathi v Prem Hari Sharma [(2001) 9 SCC 377] where this court held that, “There is no doubt that the said decision would enable respondent No. 1 to continue as a teacher, which is his substantive appointment, up to 30th June, following the day when he attained the age of 60 years. In this court’s opinion, such a categorical expression about a pari materia norm was decisive enough for the court to have found itself compelled to follow.” Court observed that, “If the view that found acceptance with the impugned judgment were to prevail, there would be avoidable disruption in teaching; the likely delay in filling vacancies caused mid-session cannot but be to the detriment of the students. That apart, this court is also of the opinion that if the state or the university wished to depart from the prevailing understanding, appropriate measures could have been taken, putting all the concerned parties to notice, through amendments. In the absence of any such move, the departure from the prevailing understanding through a discordant judgment, as the impugned judgment is, injects uncertainty. Long ago, this court had underlined this aspect while ruling that long standing or established status quo brought about by judgments interpreting local or state laws, should not be lightly departed from, even by this Court, in Raj Narain Pandey v Sant Prasad Tewari & Ors [1973 (2) SCR 835].”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3493 2020 ARISING OUT OF SLPNO. 10943 2020 NAVIN CHANDRA DHOUNDIYAL STATE OF UTTARAKHAND AND ORS CIVIL APPEAL NO. 3494 2020 ARISING OUT OF SLPNO. 11189 2020 CIVIL APPEAL NO. 3495 2020 ARISING OUT OF SLPNO. 11055 2020 CIVIL APPEAL NO. 3496 2020 ARISING OUT OF SLPNO. 11023 2020 CIVIL APPEAL NO. 3497 2020 ARISING OUT OF SLPNO. 11014 2020 S. RAVINDRA BHAT J Leave granted. The parties were heard finally in these appeals. The common question which arises for decision is as to the correct interpretation of a condition in the respondent University’s statutes regarding the date of superannuation of its teachers All the appellants are working as Professors in various disciplines in the respondent Kumaun UniversityThe age of superannuation of a teacher of the University whether governed by the new scale of pay or not shall be sixty five years 2) No extension in service beyond the age of superannuation shall be granted to any teacher after the date of commencement of these statutes provided that a teacher whose date of superannuation does not fall on June 30 shall continue on service till the end of the academic session that is June 30 following and will be treated as on re employment from the date immediately following his superannuation till June 30 following Provided further that such physically and mentally fit teachers shall be reappointed for a further period of two years after June 30 following the date of their superannuation as were imprisoned for taking part in freedom struggle of 1942 and are getting freedom fighters pension) Provided also that the teachers who were re appointed in accordance with the second proviso as it existed prior to the commencement to the Kumaun UniversityFirst Statute 1988 and a period of one year has not elapsed after the expiry of the period of their reemployment may be considered for re appointment for a further period of The appellants were aggrieved by the office order dated 21.12.2019 and approached the Uttarakhand High Court in writ proceedings. They argued that they were entitled to continue in service on extension up to the end of June 2021. They had relied on a previous judgment of the Division Bench of the High Court Dr. Indu Singh v State of Uttarakhand1. In that judgment the Division Bench had on an interpretation of 1 2017 SCC Online 1527 the relevant provisionsheld that those who retire after 30th June are “entitled to continue till the end of the academic year”. The Division Bench placed emphasis and importance on the legislative intent “to cater to the supreme need to not adversely affect the academic activities of the institution and to safeguard the interest of the students The impugned judgment rejected the appellants’ writ petition holding that Indu Singh2 could not be considered as a binding authority. It was also held that Statute No 16.24 applies to the teachers of the university. The Division Bench said that Statute No 16.24specifically places an embargo on extension in service beyond the age of superannuation. Statute No. 16.24 according to the Division Bench merely provided that if the superannuation were not to fall on June 30th the teacher shall continue in the service till end of the academic session i.e. June 30th and the same will be treated as re employment. The Division Bench was of the opinion that whenever the superannuation of an employee falls within the month of June in that event his or her retirement would stand extended till the end of June of that particular month. The words used "of the end of the academic session" was held to be “misleading”. Further according to the Division Bench the end of an academic session was not “fixated as on June even though most of the universities end their academic session in June 30th. It is not a matter of rule that the same happens everywhere. Therefore the said concession has been granted only for the month of June.” In other words the impugned judgment considered Indu Singh3 to be limited to holding that the service of an employee or teacher retiring in a given month would be “extendable only till the end of the month and not more.” The impugned judgment stated that if the appellants were right every officer would get an extension for a year or so which could never be the intention of the university or of the government. 2 Supra n.1 3 Supra n.1 It is argued by Mr. Gaurav Gupta learned counsel for the appellants that the impugned judgment erred in holding that the proviso to Statute No. 16.24 only enables teachers to continue till the end of the month and that to understand it to say that it assures re employment to a superannuated teacher till the end of June of the academic session is misleading. It is submitted that the purport of the proviso has to be gathered from the circumstance that it caters to a specific eventuality where the teacher official superannuates on a particular day of any month after June 30th of an academic year Superannuation would normally mean that the retirement date would be in accordance with the rules. In this particular case since the provision applied only to teachers the intention of the statute clearly was the continuance of status quo to avoid disturbance caused by the retirement and the likely time to be taken by the University to make alternative arrangements to fill the vacancy. This was conceived in the larger interest for the students who would have faced difficulties in completing their syllabi in the absence of the teacher and likely time taken for the new teacher to adjust to the subject and the students It was next submitted that the High Court should not having regard to the precedential value of Indu Singh4 held that it was incorrectly reasoned or that its facts were different because the provision dealing with retirement was in pari materia with Statute No. 16.24. He relied on the provision which was considered in Indu Singh5 in support of this contention6. Further Mr. Gupta submitted that a bench of co equal 4 Supra n.1 5 Supra n.1 6 Para 17.15 of the First Statutes of the University of Hemavati Nandan Bahuguna Garhwal 1978 which read as follows 17.15 No extension in service beyond the age of superannuation shall be granted to any teacher after the date of commencement of these Statutes Provided that a teacher whose date of superannuation does not fall on June 30 shall continue in service till the end of the academic session that is June 30 following and will be treated as on re employment from the date immediately following his superannuation till June 30 following Provided further that such physically and mentally fit teachers shall be re appointed for a further period of two years after June 30 following the date of their superannuation as were imprisoned for taking part in freedom struggle of 1942 and are getting freedom fighters pension strength could not have refused to follow an earlier decision if it doubted it or wished to depart from it the proper course would have been to refer the issue to a larger or full bench. Counsel relied on certain decisions of this court in this regard.7 Counsel also relied on the decision of this court in S.K. Rathi v Prem Hari Sharma8 and submitted that the impugned judgment was again in error in holding that the decision of this court was not binding as the observations were obiter. It was lastly urged that the consistent view of the High Court expressed by two other BenchesNo. 601 2017} decided on 10.01.2018 and Binod Kumar Singh v State of Uttarakhand {WPNo. 328 2019 decided on 25.07.2019}] in relation to the concerned statute i.e. proviso to Statute No. 16.24 that the teacher whose age of superannuation was after the 30th of June of any given year was to be continued as a re employed officer till the end of the academic session i.e 30th June of the following year. Ms. Vanshaja Shukla learned counsel for the University and the State urged this court not to interfere with the impugned judgment. She argued that the Division Bench had good reasons to differ from the reasoning in Indu Singh9. She emphasized that the impugned judgment took note of the submissions on behalf of the state that according to a general order whenever an employee attained the age of superannuationhe she was entitled to continue till the end of that particular month. It was submitted that the Division Bench took note of this argument and correctly surmised that the proviso to Statute No. 16.24 merely embodied the principle underlying that Provided also that the teachers who were re appointed in accordance with the second proviso as it existed prior to the commencement of the Garhwal UniversityFirst Stututes 1988 and a period of one year has not elapsed after the expiry of the period of their re employment may be considered for re appointment for a further period of one year 7 S. Kasi v State through Inspector of Police 2020 SCCOnline 529 Nahar Industrial Enterprises Ltd v Hongkong and Shanghai Banking Corporation8 SCC 646 Central Board of Dawoodi Bohra Community v State of Maharastra 2005) 2 673 89 SCC 377 9 Supra n.1 government order ensuring that teachers retired only at the end of the month during which they attained the age of superannuation. Ms. Shukla submitted that one could not read too much into the expression “the 30th June following” beyond the fact that it was meant to illustrate that if a teacher were to attain the age of superannuation during June of any year she or he could be re employed till the end of that month. Ms. Shukla submitted that surely that did not imply that the teacher a superannuated employee had a right to insist that he should be re employed till the end of June of the next year. Learned counsel underlined the intent of the main provision which enacts the essential principle which is that every teacher attains the age of superannuation when she turns 65 in these circumstances he she cannot claim entitlement to re employment. This court is of the opinion that on a plain interpretation of Statute No. 16.24 including the proviso in question it is clearly apparent that firstly each teacher attains the age of superannuation on completing 65 years {Statute No. 16.24and in the impugned order dated 5th January 2000 the Division Bench of the High Court observed that in view of the decision of another Division Bench in Udai Narain Pandey s case respondent No. 1 could continue to function as Principal of the Institution till 30th June 2000. Hence this appeal 4. On a query raised by us learned Counsel for the respondent drew our attention to a decision of the Government contained in document dated 16th February 1999 in which it was inter alia stated that for teachers like respondent No. 1 the age of superannuation was 60 years. The said decision further states that no extension in service shall be granted but "if the date of superannuation of a teacher does not fall on June 30 the teacher shall continue in service till the end of the academic session i.e. June 30 following". This is the clause on which reliance is placed by the learned Counsel in support of the decision of the High Court 5. There is no doubt that the said decision would enable respondent No. 1 to continue as a teacher which is his substantive appointment up to 30th June following the day when he attained the age of 60 years but this clause cannot allow him to continue as an acting Principal which is a different post altogether. It cannot be disputed that the post of Principal and of the teacher is not the same. It is a teacher on promotion who is appointed as a Principal and there is no decision of the Government giving extension beyond the age of 60 years to a Principal. This being so the appeal is allowed and the decision of the High Court permitting respondent No. 1 to function as Principal of the Institution till 30th June 2000 is set aside.” This court no doubt held that a teacher could not continue as principal yet it decisively ruled that “There is no doubt that the said decision would enable respondent No. 1 to continue as a teacher which is his substantive appointment up to 30th June following the day when he attained the age of 60 years.” In this court’s opinion such a categorical expression about a pari materia norm was decisive enough for the court to have found itself compelled to follow. Yet the impugned judgment with respect characterized the expression in S.K. Rath11 as obiter. The Division Bench in this court’s view erred on this score 12. The issue appears to have lingered and different benches of the Allahabad High Court in view of the differences in phraseology of rules and statutes of various institutions seem to have expressed divergent views in the State of Uttar Pradesh Ultimately this led to a reference which was answered by a Full Bench authored by Justice D.Y. Chandrachud12 by the judgment reported as State Of U.P. v Ramesh Chandra Tiwari13. “Primary schools are governed by the provisions of the Uttar Pradesh Basic Education Act 1972 and the service conditions of the teachers are governed by the Rules framed under the Act. Rule 29 lays downthe age of superannuation which is 62 years the principle that a teacher who attains the age of 62 years will retire from service on the last day of the month in which the age of superannuation is attained and the principle that a teacher who has retired during an academic session shall continue to work till the end of the academic session and that such period of service will be deemed to be an extended period of employment. The proviso to Rule 29 enacts a legal fiction through the subordinate legislation the effect of which is that though a teacher has attained the age of superannuation the teacher notwithstanding the fact that he or she had retired during the academic session will continue to work until the end of the academic session and that such period of service will be deemed to be an extended period of employment. Rule 29 refers to the academic session as being 1 July to 30 June since this was the academic session which prevailed right until academic session 2013 14. The reason why a special provision is made in the proviso to Rule 29 is to ensure that the educational needs of students are not disrupted by the retirement of a teacher in the midst of an academic session. In other words the benefit is extended not so 11 Supra n.8 12 At that time the Chief Justice of the court 13ADJ 579 much for teachersbut primarily to protect the students whose education would be disturbed by the absence of a teacher for the academic session.” 13. The above analysis would show that the view of the Uttarakhand High Court as also the Allahabad High Courtconsistently have been that teachers superannuating are to be treated as re employed or allowed to continue in the larger interest of the pupils has prevailed. If the view that found acceptance with the impugned judgment were to prevail there would be avoidable disruption in teaching the likely delay in filling vacancies caused mid session cannot but be to the detriment of the students. That apart this court is also of the opinion that if the state or the university wished to depart from the prevailing understanding appropriate measures could have been taken putting all the concerned parties to notice through amendments. In the absence of any such move the departure from the prevailing understanding through a discordant judgment as the impugned judgment is injects uncertainty. Long ago this court had underlined this aspect while ruling that long standing or established status quo brought about by judgments interpreting local or state laws should not be lightly departed from even by this Court in Raj Narain Pandey v Sant Prasad Tewari & Ors14 in the following words “In the matter of the interpretation of a local statute the view taken by the High Court over a number of years should normally be adhered to and not disturbed. A different view would not only introduce an element of uncertainty and confusion it would also have the effect of unsettling transactions which might have been entered into on the faith of those decisions. The doctrine of stare decisis can be aptly invoked in such a situation. As observed by Lord Evershed M.R. in the case of Brownsea Haven Properties v. Poole Corpn.(1958574) there is well established authority for the view that a decision of long standing on the basis of which many persons will in the course of time have arranged their affairs should not lightly be disturbed by a superior court not strictly bound itself by the 14 1973SCR 835 This court is consequently of the opinion that the impugned judgment is in error The very object and intent of the proviso to Statute No.16.24 is to avoid the disruption caused by discontinuity of service of a teaching staff employee or official mid session Therefore the view in Indu Singh15 dealing with an identical statute was correctly interpreted the other decisions which dealt with Statute No.16.24 too were correctly decided. For the foregoing reasons the impugned judgment and orders of the High Court are set aside. The appellants are entitled consequently to continue till the end of the following June on re employment. If any of them has been superannuated he or she shall be issued with orders of reinstatement with full salary for the period they were out of employment and allowed to continue till the following June on re employment basis. The appeals are allowed without any order as to costs. [UDAY UMESH LALIT [S. RAVINDRA BHAT New Delhi October 16 2020 15 Supra n. 1

IBC can not intended to be a substitute for recovery forum : NCLAT

Wherever there is the existence of a real dispute, the IBC provisions cannot be invoked. The Object of the Code is not recovery of money but to bring out of insolvency and maximization of value of assets of the Corporate Debtor. The judgment passed by the NCLAT New Delhi, in its decision in  Anshul Vashishtha vs. Jayhind Steel Traders and Anr. (Company Appeal (AT) (Insolvency) No. 656 of 2020) by Hon’ble Shri Justice A.I.S Cheema The facts of the case were such that – Respondent 01/operational creditor and respondent 02/corporate debtor were engaged in an associated business following various transactions. Respondent No.1 used to supply material to respondent No.2 for completing its various projects at various sites and it was a normal business practice to seek delivery of required material at the project site itself. The appellant in their submission states about the pre-existing disputes that The Operational Creditor vide email dated 05.02.2018 has sent an email to the Corporate Debtor requesting installment of exceptional bills and has indeed, even requested PDC Check for all bills. And the date of default is “imaginary or hypothetical”. They have also alleged that the statutory notice of demand as per section 8 (1) of the Code was defective as they were not accompanying copy of the invoices Ongoing through the different entries made by the gatherings, a lucidity is arising that there are numerous dates of default, there is a presence of debate on balance levy, the real sum due should be accommodated and reflected. The Operational Creditor is guaranteeing that the Debt due is more than Rs.1 lac. On the off chance that it might likewise be expected for installment as it will be turning into the work of IRP to accommodate and get the contested sum isolated and the case can be checked given the application meets the standards of Section 8 and 9 of the Code.  The object of the Code isn’t recuperation of cash however to deliver once again from indebtedness and expansion of worth of resources of the Corporate Debtor. It is additionally a lot clear that if there is a debate according to significant provisions of the Code, it is occupant on the Adjudicating Authority to dismiss the request/application according to the provisions of Section 9 of the Code. It is likewise a lot clear for this situation that there is a question of the Debt and debate goal component is additionally given in the buy request. Since I&B Code, 2016 debars the application of the Code for recovery of money as well as if there is a dispute then also application requires to be dismissed. In a case of running account where accounts are yet to be reconciled and settled, an email like 05.02.2018 sent before Section 8 demand notice dated 13.06.2018 asking Operational Creditor to take back the rejected material reflect pre-existing dispute in such case Adjudicating Authority cannot sit down to settle the account and calculate the Debt dues.

NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI Company Appeal(Insolvency) No. 6520 Arising out of Order dated 13.03.2020 passed by the Adjudicating Authority National Company Law Tribunal) Indore Bench at Ahmedabad in CP IN THE MATTER OF: Anshul Vashistha Shareholder & Director of M s.Saturn Prefab India Pvt. Ltd S o Shri Prashant Vashistha Aged : 36 years Add: Plot No. 727 728 Sector 3 Industrial Area Pithampur Dist. Dhar Versus 1.M s. Jayhind Steel Traders 2 Stadium House OPP Municipal Swimming Pool Near Stadium Six Road Navrangpura Ahmadabad 380 009 2.M s.Saturn Prefab India Pvt. Ltd Through Insolvency Resolution Professional Dr. Shri G.K.Saraswat 727 728 Sector 3 Industrial Area Pithampur Dist. Dhar Present: For Appellant : Mr. Vijayesh Atre Advocate. …Respondent No.1 …Respondent No.2 For Respondents: Mr. Manoj Swarup Sr. Advocate with Mr. Anil.K.Sharma Advocate for R 1. Dr. G K Saraswat Advocate for RP. Mr. Rahul Parasarampuria Advocate for R 2. J U D G M E N T Company Appeal(Insolvency) No. 6520 2 DR. ASHOK KUMAR MISHRA TECHNICAL MEMBER 1. The Appeal has been filed by Mr. Anshul Vashistha who is the Director of the Suspended Board of Directors of the Corporate Debtor M s. Saturn Prefab India Pvt. Ltd. under Section 61 of the ‘Insolvency and Bankruptcy Code 2016’ against the impugned order dated 13.03.2020 passed by ‘Adjudicating Authority’ in CPNo. 374 9 NCLT AHM 2018. The Operational Creditor is M s. Jayhind Steel Tradersagainst the Corporate Debtor in accordance with the relevant provisions of the Code and has appointed Mr. Gopal Krishana Saraswat ‘Interim Resolution Professional’ with a direction to follow the provisions of Section 13 14 and other relevant provisions of the Code. 3. Initiation of CIRP is based on the following findings: a) Existence of operational debt is above Rs. One Lac b) Debt is due c) Default has occurred on 30.11.2016 d) Petition has been filed within the limitation period as the date of default is 30.11.2016 and the petition has been filed on 11.07.2018. e) Existence of any dispute prior to the notice issued by the Operational Creditor is not found. Para 17 of the impugned order dated 13.03.2020). Company Appeal(Insolvency) No. 6520 3 f) Defaulted amount is Rs. 1 81 61 422.00 as per respective invoices enclosed with the Petition. g) Date of invoice is between April 2016 to March 2018. h) Date of first default is 30.11.2016. 4. The Corporate Debtor Respondent No.2 is engaged in the business of manufacturing of pre fabricated shed industrial roofing sheet pre engineering building etc. for which it requires various material produced by the Respondent at various sites. 5. The Operational Creditor Respondent No.1 is engaged in the business of supply of Angel Channel TMP GP CR GC Sheet. 6. The Respondent No.1 used to supply material to Respondent No.2 for completing its various projects at various sites and it was a normal business practice to seek delivery of required material at project site itself. It was also usual practice between the parties to ask its clients to make direct payment to the Respondent No.1 suppliers. 7. The Appellant has made following submissions: a. Pre existing dispute: The Operational Creditor vide email dated 05.02.2018 has sent an email to the Corporate Debtor asking for payment of outstanding bills and has even asked for PDC Cheque for all bills. The Respondent No.1 Corporate Debtor has responded to the same on 29.03.2018 to the Operational Creditor “Your ledger is not matching with our ledger and TC also not came with the vehicle. Those invoices are not showing PO No. will not be accepted by our accounts. Rejected materials are by UT testing still they are in our site. Please check and revert.” Company Appeal(Insolvency) No. 6520 4 The Appellant has also submitted that the outstanding amount of Rs.1 81 61 422 is incorrect. Although reflected in the impugned order both at para 5 and 16.1. They have alleged that the Adjudicating Authority itself has given details of bills at para 4 of the order. Total 25 bills and the amount is Rs.1 73 94 065.00. Similarly in Para 6 of the impugned order the figure stated is Rs.1 56 25 154.00 which is the outstanding due as per demand notice in Form No.3 given by Operational Creditor on 13.06.2018 which was served to the Corporate Debtor on 20.06.2018. It is not in dispute that the Operational Creditor was maintaining a Running Account for the goods supplied to the Corporate Debtor from time to time. b. As per the Form 5 Application by Operational Creditor to initiate CIRP under the Code the Operational Creditor has reflected in Part IV the total amount of Debt as Rs.1 56 25 154 . Part IV is also reflecting the total amount of Rs.1 81 61 422 for Debt due for the period of April 2016 to March 2018 which includes the principal amount of invoice and interest as per Part IV clause 2 amount claimed to be in default and the date on which the default occurred here the amount is Rs.1 81 61 422 and the date on which default occurred is silent. c. The Appellant has also submitted that a group firm of the Respondent No.2 Company viz. “Saturn Infra” has purchased material for Rs. 14 90 678 only as against which the Respondent No.1 has received payment of Rs. 42 00 000 through Canara bank Account No.3353201000167 thereby leaving a credit balance of Rs.27 09 322 in favour of the Respondent No.2 company. It is also stated by the Appellant that once client of the Respondent No.2 company M s. Bhagwati Constructions has admittedly Company Appeal(Insolvency) No. 6520 5 made a direct payment of Rs. 23 34 617 to the Respondent No.1 for which its advocate Mr. Hiren K.Dudhiya has also issued legal notice dated 11th Sept. 2018. The Appellant has also submitted a list claimed to be fabricated and false invoices raised by Operational Creditor. The Appellant has provided a list of 27 invoices with dates amount to Rs.1 04 19 944 . d. It is also stated by the Appellant that the date of default is “imaginary or hypothetical”. They have also alleged that the statutory notice of demand as per section 8 of the Code was defective as they were not accompanying copy of the invoices. 8. The Operational Creditor Respondent No.1 has submitted that the Appellant was purchasing steel material from November 2016 to October 2017 in the M s. Saturn Pre Fab India Pvt. Ltd. and in the name of Saturn Fabricator and has alleged that the Corporate Debtor has not produced the ledger of M s. Saturn Pre Fab India Pvt. Ltdand provided the ledger of Saturn Fabricator(Insolvency) No. 6520 6 as still they have not been provided with rejection letter and hence there is no pre existing dispute. In order to substantiate its claim the operational creditor has given reference to its GST Return and also submitted that the corporate debtor has purchased total material of steel worth Rs.2 54 32 783 in the name of Respondent No.2 and against that they have received a payment of Rs. 69 07 629 as also of Rs.29 00 000 received from Saturn Fabricatorstotal an amount of Rs.98 07 629 para 29 of the Counter Affidavit. During the course of hearing the Respondent No.1 has submitted that there is no pre existing dispute and the amounts are due. The IRP has issued public announcement on 18.06.2020 and has constituted Committee of Creditorson 08.07.2020. We have heard parties. It is observed that there is business relationship between the two parties and has gone into rough weather from March 2018. It is not in dispute that both the operational creditor and the corporate debtor were maintaining Running Account. It is also observed that the operational creditor is making all attempts to realize the payment and conveniently used I & B Code 2016 for faster realization. It is also observed that the present case involves the need for reconciliation between the parties and to firm up a particular amount and there is multiple date of default as the purchase order seems to have a condition that payment will be released 30 days after receipt of materialand other conditions as given below as for example page 292 of the Appeal paper book: a. Payment Terms Payment will made 60 days after receiving the material Company Appeal(Insolvency) No. 6520 7 b. Delivery you will dispatch the entire ordered quantity immediately from the receipt of the order. Test certificate should be given along with commercial invoice with material. c. Transportation You shall make arrangement of transportation to send the material to our site. Transportation charge is in you scope. d. Dispute resolution Any dispute arising out of or in connection with this purchase order including any question regarding its Existence validity of termination performance under this purchase order or in case of disagreement on or non supply of product shall be referred to sole arbitrator and finally resolved in accordance with the provision of Arbitrator and counsillation Act 1996. The award passed by the sole arbitrator shall be final and binding to both the parties. The language of the arbitration including its proceedings and documents to be exchanged there of with sole arbitrator and between the parties shall be Hindi. The place of arbitrator shall be at Indore M.P. e. Governing law and jurisdiction the contract shall be governed by and construed in accordance with the provisions of Indian laws. The courts at Indore M.P. shall have exclusive jurisdiction in all the matters relating to this purchaser order. While purchase order at page 300 of the Appeal Paper book reflects: f. Payment Terms 30 days against delivery. g. Delivery You will dispatch the entire ordered quantity within immediate from the receipt of the order. page 175 of the Appeal Paper book: Whereas the invoice is stating the conditions as follows which is mentioned at Company Appeal(Insolvency) No. 6520 8 Interest will be charged @24 % per annum on all bills remaining unpaid within due time after the date of the delivery of goods. We do not accept any responsibility for loss or damage in transit. Any dispute arising from this consignment will be settled by Ahmedabad Jurisdiction only. On going through the various submissions made by the parties a clarity is emerging that there are multiple date of default there is an existence of dispute on balance dues the actual amount due needs to be reconciled and reflected. The Operational Creditor is claiming that the Debt due is more than Rs. 1 lac. If it may also be due for payment as it will be becoming the job of IRP to reconcile and get the disputed amount segregated and the claim can be counted provided the application meets the criteria of Section 8 & 9 of the Code. The Object of the Code is not recovery of money but to bring out of insolvency and maximization of value of assets of the Corporate Debtor. It is also very much clear that if there is a dispute as per relevant provisions of the Code it is incumbent on the Adjudicating Authority to reject the petition application as per the provisions of the Section 9 of the Code. It is also very much clear in this case that there is a dispute of the Debt and dispute resolution mechanism is also provided in the purchase order. Since the I&B Code 2016 debars the application of the Code for recovery of money as well as if there is a dispute then also petition application requires to be rejected. The Hon’ble Supreme Court has already held in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software pvt. Ltd.1 SCC 353 that IBC is not intended to be a substitute for recovery forum. It is also laid down that wherever there is existence of real dispute the IBC provisions cannot be invoked. Company Appeal(Insolvency) No. 6520 9 For better and fuller appreciation of the present subject matter in issue it is useful for this Tribunal to make a pertinent reference to Section 8 & 9 of the Code which provides mechanism for Operational Creditor which runs as under: Section 8 Insolvency Resolution by Operational Creditor: 8.An operational creditor may on the occurrence of a default deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be 2) The corporate debtor shall within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub sectionbring to the notice of the operational creditor— existence of a dispute if any and record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute b) the repayment of unpaid operational debt— by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor or ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation.—For the purposes of this section a "demand notice" means a notice served by an operational creditor to the corporate Company Appeal(Insolvency) No. 6520 10 debtor demanding repayment of the operational debt in respect of which the default has occurred. Section 9 application for initiation of Corporate Resolution Process by Operational Creditor: Section 9 .After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub section of section 8 if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub sectionof section 8 the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process. 2) The application under sub sectionshall be filed in such form and manner and accompanied with such fee as may be prescribed. furnish— debt debtor and 3) The operational creditor shall along with the application a) a copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor b) an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational c) a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate Company Appeal(Insolvency) No. 6520 11 d) such other information as may be specified. 4) An operational creditor initiating a corporate insolvency resolution process under this section may propose a resolution professional to act as an interim resolution professional. 5) The Adjudicating Authority shall within fourteen days of the receipt of the application under sub sectionby an order— i) admit the application and communicate such decision to the operational creditor and the corporate debtor if — the application made under sub sectionis complete b) there is no repayment of the unpaid operational debt the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility and e) there is no disciplinary proceeding pending against any resolution professional proposed under sub sectionif any ii) reject the application and communicate such decision to the operational creditor and the corporate debtor if— a) the application made under sub sectionis incomplete there has been repayment of the unpaid operational debt the creditor has not delivered the invoice or notice for payment to the corporate debtor notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility or Company Appeal(Insolvency) No. 6520 12 any disciplinary proceeding is pending against any proposed resolution professional: Provided that Adjudicating Authority shall before rejecting an application under subclause of clause give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the adjudicating Authority. The corporate insolvency resolution process shall commence from the date of admission of the application under sub sectionof this section. Since Hon’ble Apex Court has clearly laid down the mechanism to be operated by Operational Creditor in terms of Section 8 & 9 of the Code it is very clear that the undisputed debt is sine qua non of initiating CIRP as also the debt should be due and payable. Since the order of Adjudicating Authority in the present case as enumerated above does not meet the above criteria and hence the appeal needs to be allowed. We are not passing any comment on the merit of the dispute between the parties and the parties are free to approach appropriate forum for recovery or dispute resolution. In a case of running account where accounts are yet to be reconciled and settled an email like 05.02.2018 sent before Section 8 demand notice dated 13.06.2018 asking Operational Creditor to take back the rejected material reflect pre existing dispute in such case Adjudicating Authority cannot sit down to settle the account and calculate the Debt dues. In view of the above the appeal is allowed. We set aside the impugned order dated 13.03.2020 passed by the Adjudicating Authorityand consequently order passed by the Company Appeal(Insolvency) No. 6520 13 Adjudicating Authority appointing ‘Interim Resolution Professional’ declaring moratorium freezing of accounts including consequential actions taken by the ‘Interim Resolution Professional’ like publishing in newspapers constitution of committee of creditors etc. are declared illegal and set aside. The Corporate Debtor is released from all the rigour of law and is allowed to function independently through its Board of Directors from immediate effect. The Corporate Debtor will in the first instance bear CIRP costs so far incurred by IRP RP & then entitled to recover it from Operational Creditor. No order as to Justice A.I.S. Cheema] MemberDr. Ashok Kumar Mishra] Member30th September 2020 New Delhi Company Appeal(Insolvency) No. 6520

Circumstantial evidences must be conclusive in nature: Supreme Court

The circumstantial evidences must be conclusive in nature and must leave no room for doubt. The incriminating circumstances must point out sufficient reasonable certainty on the established facts, which connect the accused with the commission of crime. This principle was upheld by the honorable Supreme Court presided by J. Ashok Bhushan and J. Arjun Rastogi in the case of R. DAMODARAN vs. THE STATE REPRESENTED BY THE INSPECTOR OF POLICE [CRIMINAL APPEAL NO.1008 OF 2010]. In the present case, the marriage of deceased Nirmala Mary and accused appellant was solemnised in 1997. The appellant used to frequently change his rented accommodation and whenever he changed the rented accommodation, he subjected his wife to cruelty for money. After they shifted to Walles Garden area, the accused appellant used to come home drunk and used to beat her. Deceased lodged complaint at the Police Station many a times in this regard. On the fateful night of 28th October, 2005, while he was quarrelling with deceased Nirmala Mary, he picked up a log from the house and beaten deceased Nirmala Mary and caused internal injury in her stomach. The aunt of the deceased had found her standing in the street, when she confessed that her husband had beaten her. At about 4.30 p.m. on the same date, i.e. 29th October, 2005, the accused appellant brought his wife to the Kilpauk Medical College and Hospital, Chennai and complained that she had got cardiac arrest. The Doctor medically examined and found her dead. FIR was registered under Section 174 Cr.PC for suspicious death. Autopsy declared that she died of shock and haemorrhage due to thoracic injuries and on the opinion expressed in the post-mortem report, the case under Section 302 IPC was registered. The honorable court observed, “After we have gone through the record and findings recorded by the learned trial Court and after being revisited by the High Court under the impugned judgment which we have also taken away for our satisfaction, the incriminating circumstances pointed out, in our view, are sufficient with reasonable certainty on the established facts, which connect the accused with the commission of crime of committing the murder of his own wife.” It was further contended, “The present case squarely rests on circumstantial evidence where the death has been caused by homicidal violence and the appellant who had himself taken the deceased to the hospital and made a false statement to the Doctor that she had suffered a cardiac arrest which was found to be false after the postmortem report was received and the nature of injuries which were attributed on the body of the deceased of which a reference has been made clearly establish that it is the case where none other than the accused appellant has committed a commission of crime with intention to commit the murder of his own wife who was at the advanced stage of pregnancy. We find no substance in the appeal and is accordingly dismissed. The appellant is directed to surrender within four weeks from today and undergo the remaining part of sentence.”

NON REPORTABLE IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1008 OF 2010 ...APPELLANT(S) R. DAMODARAN VERSUS THE STATE REPRESENTED BY THE INSPECTOR OF POLICE ...RESPONDENT(S) JUDGMENT Rastogi J. The accused appellant was charged for offence under Section 302 IPC for the murder of his own wife Nirmala Mary while she was at the advanced stage of her pregnancy. After facing trial he was held guilty of charge of murder of his wife under Section 302 IPC and was awarded life imprisonment by the learned trial Judge by judgment dated 3rd September 2007 and confirmed by the High Court by judgment impugned dated 10th July 2009. The case of the prosecution is that marriage of deceased Nirmala Mary and accused appellant was solemnised on 17th February 1997. The appellant used to frequently change his rented accommodation and whenever he changed the rented accommodation he used to quarrel with the deceased and send her to her father to fetch money. Her father extended monetary help to the extent it was possible. Since the date they shifted to Walles Garden area the accused appellant used to come home after consuming liquor and invariably had a quarrel with the deceased and beat her. Deceased lodged complaint at the Police Station many a times in this regard and in continuation of the occurrence on the fateful night of 28th October 2005 while he was quarrelling with deceased Nirmala Mary he picked up a log from the house and beaten deceased Nirmala Mary and caused internal injury in her stomach and murdered her. On the date of the incident that is 29th October 2005 Mrs. Glory(PW 2 aunt of the deceased) found her standing in the street. When she called the deceasedand asked her what had happened she replied that her husband had beaten her up with a wooden log. Since there was a regular quarrel taking place between husband and wife Mrs. Glory(PW 2) told the deceased that after she come back she would take the deceased to the hospital for treatment. After returning from work at home she was informed that the deceased had been taken to the hospital in a serious condition. At about 4.30 p.m. on the same date i.e. 29th October 2005 the accused appellant brought his wife to the Kilpauk Medical College and Hospital Chennai and complained that she had got cardiac arrest. The Doctor medically examined and found her dead. On receipt of the death intimation PW 8 the Sub Inspector of Police attached to the Police Station proceeded to the hospital and prepared the inquest report and FIR in the first instance was registered under Section 174 Cr.PC for suspicious 5. After the autopsy on the dead body was conducted by PW 7 the Professor of Forensic Medicine Senior Civil Surgeon Government Kilpauk Medical College Chennai it was opined that the deceased died of shock and haemorrhage due to thoracic injuries and on the opinion expressed in the post mortem report the case under Section 302 IPC was registered. Pending investigation the appellant was arrested. In order to substantiate the charge the prosecution marched 11 witnesses and also relied on 17 exhibits and 4 material objects. On completion of the evidence on the side of the prosecution the accused was questioned under Section 313 CrPC incriminating circumstances the evidence of prosecution witnesses which he flatly denied as false and no defence witness was examined. It is not in controversy that the incident took place on 29th October 2005 during day hours and the dead body of the deceased was taken by the accused appellant to the hospital where she was declared dead by the Doctor Thick layer of reddish contusion seen in the sub cutanious and inter costal region in the left mid axillary line from 3 10 3) Fracture of 5 6 ribs from mid axillary line on left side. 4) Left thoracic cavity contains 1100 gms of clotted blood. 5) Laceration of left lower iobe of lung(outer border) 3 X 2 X 2 6) Reddish left temporal contusion in the sub scalp region. 7). All the above injuries are antemortem in nature.” The statement of PW 7 Doctor and the medical evidence brought on record establish that the injury nos. 1 to 6 were caused with blunt weapon which resulted into death of the deceased. Thus the ocular evidence of Mrs. Glory(PW 2 aunt of the deceased) is corroborated with the medical evidence of Doctor(PW In a case based on circumstantial evidence the settled principles of law are that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and such circumstances should be conclusive in nature and moreover the circumstances should be complete and there should be no gap left in the chain of events. However the circumstances must be consistent only with the hypothesis of the guilt of the accused and inconsistent with the innocence. The principle which has to be kept in mind in a case of circumstantial evidence has been laid down by a three Judge Bench of this Court in the judgment reported in Sharad Birdhichand Sarda Vs. State of Maharashtra 4 SCC 116 which reads as under: “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 Maharashtra2 SCC 793 where the observations were made: is a primary principle “Certainly 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.” It was further followed by a three Judge Bench in Padala Veera Reddy Vs. State of Andhra Pradesh and Ors. 1989 Supp 2) SCC 706 wherein this Court held as under: “10. Before adverting to the arguments advanced by the learned Counsel we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: “(1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established 2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused 3) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and 4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be See Gambhir v. State of Maharashtra2 SCC 351]” inconsistent with his Taking note of the principles which has been laid down by this Court and the circumstances which the prosecution has established in a chain of events leave no matter of doubt that it is none other than the appellant who had committed the crime of murdering his own wife who was at the advanced stage of pregnancy and taken the dead body to the hospital and made a false statement that she had got a cardiac arrest. Initially the FIR was registered on suspicion but after the autopsy on the body of the deceased was conducted taking note of the post mortem report a case under Section 302 IPC was registered. Such incriminating links of facts could if at all have been explained by the appellant and nobody else they being personally and exclusively within his knowledge. Of late Courts have from the falsity of the defence plea and false answers given to Court when questioned found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed. After we have gone through the record and findings recorded by the learned trial Court and after being revisited by the High Court under the impugned judgment which we have also taken away for our satisfaction the incriminating circumstances pointed out in our view are sufficient with reasonable certainty on the established facts which connect the accused with the commission of crime of committing the murder of his own wife Nirmala Mary). Learned counsel for the appellant in the first instance tried to persuade this Court that there are missing links in the circumstantial evidence on the basis of which the charge for offence under Section 302 IPC has been established against him but when this Court was not inclined to interfere with the finding and the guilt which was recorded by the learned trial Court and affirmed by the High Court under the impugned judgment learned counsel for the appellant submitted that the offence of the nature which has been committed as alleged if is taken at the face value may not fall under Section 302 IPC but may fall under Section 304 Part II IPC. The present case squarely rests on circumstantial evidence where the death has been caused by homicidal violence and the appellant who had himself taken the deceased to the hospital and made a false statement to the Doctor that she had suffered a cardiac arrest which was found to be false after the post mortem report was received and the nature of injuries which were attributed on the body of the deceased of which a reference has been made clearly establish that it is the case where none other than the accused appellant has committed a commission of crime with intention to commit the murder of his own wife who was at the advanced stage of pregnancy. We find no substance in the appeal and is accordingly The appellant was released on bail by this Court by Order dated 6th April 2018 the bail bonds stand cancelled. The appellant is directed to surrender within four weeks from today and undergo the remaining part of sentence. If he fails to surrender action may be taken in accordance with law. Pending application(s) if any stand disposed of. ASHOK BHUSHAN) AJAY RASTOGI) NEW DELHI FEBRUARY 23 2021

Asserting a fact for the purpose of getting bail and denying the same while seeking leniency by revision cannot be entertained: Jharkhand High Court

In a case where bail is granted by asserting one fact , denial of the same fact cannot be a ground for seeking leniency and modifying the sentence passed by the trial court. A single-judge bench comprising of Justice Anubha Rawat Choudhary adjudicating in the matter of Sushil Marandi v. The State of Jharkhand (CRIMINAL REVISION No.131 of 2012) dealt with an issue of whether to modify the sentence passed by the trial court. Facts-In the present case the Petition has filed for a revision against the conviction order dated 17.06.2008 where he was booked for the offence under section -498A of IPC and was sentenced to undergo rigorous imprisonment for 3 years with a fine of Rs. 5000/-. Later the Appellate court reduced the sentence to 2 years and the fine was reduced to Rs. 2000/-. The Petitioner submitted that the complainant was not the wife of the petitioner, therefore conviction u/s-498-A of IPC is not sustainable. Also submitted that the courts have failed to grant the benefit of Sec-360 CrPC. The Petitioner submitted that “without prejudice to the aforesaid submission, the present case is of the year 1997-98 and the petitioner has remained in custody for a period from 10.08.2006 to 28.08.2007 and thereafter from 05.01.2012 to 24.07.2012 i.e. more than one year and seven months and the learned appellate court had reduced the sentence of the petitioner from three years to two years and the fine amount was also reduced from Rs. 5,000/- to Rs. 2,000/-. The learned counsel submits that considering the fact that about 22 years have elapsed from the date of incident, the sentence of the petitioner be modified and be limited to the period already undergone in custody.” The Opposite Party stated that initially the case was registered under Sections 493, 376, 323, 420, and 313/511 of the Indian Penal Code and the learned trial court found prima-facie case under Sections 493 and 323 of I.P.C., but subsequently, the charge was framed under Section 498-A of the Indian Penal Code. It was also submitted that not only there were materials to prove the complainant is his wife but also they had a son who was born out of wedlock. Also during the time of granting bail, one supplementary affidavit was filed by the petitioner that he has solemnized his marriage with the girl and therefore they are living as husband and wife and on this ground, the Hon’ble Patna High Court was pleased to grant bail to the petitioner on furnishing bail bond of Rs. 10,000/-.It was also asserted by the complainant, that the Petitioner made an admission that the complainant is his wife and has also accepted that they had a son and r took the complainant and her son to his house and the Petitioner doesn’t deserve any leniency from the court. The Court after considering all the minute details stated that the petitioner had accepted the complainant as his wife and taken her home and at that time, she was pregnant. The Panchayati document has also been exhibited. On the basis of the evidence regarding Panchayati as well as the evidence of the complainant and the father of the complainant, learned lower appellate court was of the view that the petitioner accepted having a marriage with the complainant. This courts considered the view that “the learned courts below have rightly convicted the petitioner under Section 498-A of the Indian Penal Code. This Court also finds that the learned trial court rejected the plea of the petitioner to grant the benefit of Probation of Offenders Act, 1958 by recording that the offence has been committed against the woman and the accused persons wanted miscarriage of the 9 pregnancy of the complainant, which is a cruel form of the torture. Learned trial court as well as learned appellate court had also recorded their finding after considering the materials on record and the factum of cruelty on the complainant was proved beyond all reasonable doubts. There being no perversity or illegality in the impugned judgement, no interference is called for in revisional jurisdiction by this court.”

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No.1312 Sushil Marandi Son of Lal Marandi resident of Village Bishunpur P.O. Bishunpur P.S. Littipara District Pakur Versus Petitioner 1. The State of Jharkhand 2. Rajina Hansda D o Ramu Hansda … … Opposite parties CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the State Mr. Ranjan Kumar Singh Advocate Mr. Vishwanath Ray A.P.P. C.A.V. on: 05 04 2021 Pronounced on: 04 06 2021 1. Heard Mr. Ranjan Kumar Singh learned counsel appearing on behalf of the petitioner. 2. Heard Mr. Vishwanath Ray learned counsel appearing on behalf of the opposite party State. The present revision petition is directed against the order dated 05.02.2011 passed by the learned Sessions Judge Pakur in Criminal Appeal No.51 of 2008 whereby he has been pleased to partly allow the appeal by modifying the sentence passed by the learned trial court. The petitioner was convicted vide order dated 17.06.2008 passed in PCR Case No.235 of 1998 by the learned Sub Divisional Judicial Magistrate Pakur for the offence under Section 498 A of the Indian Penal Code and the learned trial court sentenced him to undergo rigorous imprisonment for three years with fine of Rs.5 000 . The learned Appellate Court modified the sentence of the petitioner by reducing it to two years instead of three years and the amount of fine was also reduced from Rs.5 000 to Rs.2 000 . Arguments of the petitioner Learned counsel for the petitioner has submitted that the petitioner is the husband of the complainant who was convicted under Section 498 A of the Indian Penal Code and the case of the defence was total denial of the occurrence and it was also argued that the complainant is not the wife of the petitioner. He submits that as the complainant was not the wife of the petitioner therefore conviction under Section 498 A of I.P.C. is not sustainable in the eyes of law. He has further submitted that otherwise also the basic ingredients of offence Section 498 A of I.P.C. has not been satisfied. The learned counsel has submitted that the learned courts below have failed to grant benefit of Section 360 of Code of Criminal Procedure. 6. While advancing his argument the learned counsel has submitted that without prejudice to the aforesaid submission the present case is of the year 1997 98 and the petitioner has remained in custody for a period from 10.08.2006 to 28.08.2007 and thereafter from 05.01.2012 to 24.07.2012 i.e. more than one year and seven months and the learned appellate court had reduced the sentence of the petitioner from three years to two years and the fine amount was also reduced from Rs. 5 000 to Rs. 2 000 . The learned counsel submits that considering the fact that about 22 years have elapsed from the date of incident the sentence of the petitioner be modified and be limited to the period already undergone in custody. Arguments of the opposite party State Learned counsel appearing on behalf of the opposite party State on the other hand opposes the prayer and submits that initially the case was registered under Sections 493 376 323 420 and 313 511 of the Indian Penal Code and the learned trial court found prima facie case under Sections 493 and 323 of I.P.C. but subsequently the charge was framed under Section 498 A of the Indian Penal Code. The learned counsel has also submitted that there were not only materials on record showing admission of the petitioner that the complainant was his wife but they also had a son born out of wedlock. It has been recorded in para 8 of the learned appellate court’s judgment that the prosecution also filed a copy of the order of Hon’ble Patna High Court in Criminal Miscellaneous Case No. 25303 1999 dated 08.12.1999 which was the official copy which showed that at the time of grant of bail one supplementary affidavit was filed by the petitioner that he has solemnized his marriage with the girl and therefore they are living as husband and wife and on this ground the Hon’ble Patna High Court was pleased to grant bail to the petitioner on furnishing bail bond of Rs. 10 000 with two sureties. This bail order was passed in connection with the present case itself. The learned counsel has also submitted that it has been recorded in the evidence of the complainant that a Panchayati was convened in which the present petitioner made admission that the complainant is his wife and he had also accepted that they had a son and thereafter the petitioner took the complainant and her son to his house. The learned counsel submits that considering the nature of offence involved in the present case the petitioner does not deserve any lenient view of this Court even in the matter of modification of sentence. He submits that there are consistent findings on record to sustain the conviction and there is no illegality or perversity in the impugned judgments passed by the learned courts below. Findings of this Court The prosecution case in brief is that the complainant was the student of Class VIII and aged about 14 & ½ years and the petitioner was the student of class 10+2 and love affairs developed between them in the year 1997. In the month of July 1997 at about 8:00 PM the petitioner took the complainant to Jahir Sthan and put the earth soil on her head and declared her to be his wife. He further assured her that he will also disclose the marriage before the society that the complainant has become his wife. Thereafter the petitioner made physical relationship with the complainant against her will. It was further stated in the complaint petition that the petitioner always made sexual relationship with the complainant and when she became pregnant the complainant informed her parents. The petitioner and his parents wanted the complainant to abort the child but the complainant did not accept their request. On 15.08.1998 the petitioner took the complainant to his home after intervention by the village panchayat and after sometime the accused persons including the petitioner started subjecting the complainant to cruelty so that the complainant may leave their house. The complainant was terrorized with deadly weapons forced to take medicine for abortion and out of fear the complainant went to her parents’ house. She narrated the entire story to her parents and thereafter the father of the complainant went to the village panchayat but no settlement could be arrived. Subsequently on 08.10.1998 the complainant was blessed with a son and she again went to petitioner’s house but the petitioner and his father assaulted her and drove her out of the house. The complainant reported the matter to police but the police did not take any action. Thereafter the complaint case was filed before the Court under Sections 493 376 323 420 and 313 511 of the Indian Penal Code. The witnesses were examined under Section 202 of the Cr.P.C. and a prima facie case under Sections 493 and 323 of the Indian Penal Code was found and summons were issued to the accused. There were altogether three accused i.e. the petitioner husband mother in law and father in law of the complainant. 10. This Court finds from the record that at the time of framing of charge it was submitted by the petitioner that since the complainant was his wife so at best charge can be framed under Section 498 A of the Indian Penal Code and not under Sections 493 and 323 of the Indian Penal Code. Accordingly learned trial court vide order dated 06.08.1999 framed charge against all the accused persons under Section 498 A of the Indian Penal Code. 11. The prosecution had examined altogether five witnesses in support of their case. 12. The complainant was examined as PW 3. She has fully supported the prosecution case and has narrated the allegations made in the complaint case. During her examination she had further stated that the panchayati was convened in which the petitioner admitted that the complainant is his wife and also accepted his son and thereafter the petitioner took the complainant and her son to his house but started subjecting her to cruelty. She proved her signature on the complaint petition which was marked as Exhibit 1. She was thoroughly cross examined from the side of defence and had admitted that her marriage was not solemnized in Church. The learned Lower Appellate Court recorded that the complainant had fully supported the case specifically stating that it was her husband Sushil Marandi who married her and thereafter made physical relationship with her and took her to his house and subjected her to cruelty. The learned Lower Appellate Court also recorded that so far as other accused are concerned she has not stated anything that they had participated in the occurrence or subjected her to cruelty and the learned Lower Appellate Court found her evidence to be believable. 13. So far as PW 1 is concerned he is a witness on the point of panchayati. He has stated that a panchayati was held on 15th August 1998 and a document was prepared and after discussion in the panchayat the petitioner took the complainant to his house and at that time the complaint was pregnant. He has stated in his evidence that the petitioner had kept the complainant for a month and thereafter the complainant went to her parents’ house and gave birth to a child. In his cross examination he has stated that the marriage was solemnized in a church but the prosecution case is different. The Learned Lower Appellate Court found that the petitioner had married with the complainant at a religious place and thereafter he accepted her as his wife. PW 2 is also a witness on the point of Panchayati who has also stated that the petitioner accepted the complainant as his wife and took her to his home and after physical relationship she became pregnant. The petitioner kept his wife for some time and thereafter he did not keep her at his house. Consequently the complainant went to her parents’ house and she was blessed with a child. The learned lower appellate court was of the view that there was nothing in the evidence of PW 2 to disbelieve it. 15. PW 4 is the father of the complainant. He has also supported the evidence of his daughter. He has also mentioned about the Panchayati which was convened on 15th August 1998 wherein it was decided that the petitioner will take the complainant to his house and his daughter was pregnant. This witness further stated that the accused after keeping his daughter for two months drove her out of matrimonial house and subsequently she gave birth to a child in his house. In his cross examination he has stated that a rape case was instituted by her daughter against the petitioner but that does not affect his credibility and he has fully corroborated the evidence of his daughter. 16. PW 5 is also the witness to the Panchayati convened in the village on 15.08.1998. He has proved the Panchayati document which was marked as Exhibit 1 1 and he has stated that after Panchayati the complainant was taken by the petitioner to his house. The Learned Lower Appellate Court was of the view that the marriage of the complainant with the petitioner was fully proved as the petitioner had accepted it. The document of Panchayati Exhibit 1 bears the signatures of several persons including the petitioner and the complainant was handed over to the petitioner by the 17. Thus this Court found that there are altogether three independent witnesses. So far as the panchayti is concerned i.e. PW 1 PW 2 and PW 5 who have fully supported the fact that the petitioner had accepted the complainant as his wife and taken her home and at that time she was pregnant. The panchayti document has also been exhibited. On the basis of the evidence regarding panchayti as well as the evidence of the complainant and the father of the complainant learned lower appellate court was of the view that the petitioner accepted having marriage with the complainant. Learned lower appellate court further recorded that the prosecution also filed a copy of the order of the Hon’ble Patna High Court passed in Cr. Misc. No.253099dated 8.12.1999 which was official copy of the Hon’ble High Court which shows that at the time of granting bail one supplementary affidavit was filed by the petitioner that he has solemnized the marriage with the complainant and thereafter they are living as husband and wife. On this ground the Hon’ble Patna High Court was pleased to grant the bail to the petitioner in the present case and the learned lower appellate court was of the view that this document also proves the fact that the petitioner is the husband of the complainant but he had driven out the complainant of his house subjecting her to cruelty mentally and physically. Learned lower appellate court found that so far as father in law and mother in law of the complainant are concerned the complainant had not specifically stated about these two persons and the learned lower appellate court acquitted them of the charges under Section 498 A of the Indian Penal Code. Learned Lower Court upheld the conviction of the petitioner and modified his sentence to two years instead of three years and also modified the fine amount to Rs.2 000 instead of Rs.5 000 . Learned lower appellate court also recorded from the evidence of PW 3 i.e. the complainant that after she was taken by the petitioner to his house she was subjected to cruelty and the accused tried to administer medicine for abortion terrorized her to abort the child but she did not agree. 18. The only argument which has been advanced by learned counsel for the petitioner is that the complainant is not the wife of the petitioner and accordingly he could not have been convicted under Section 498 A of the Indian Penal Court. This Court finds that the aforesaid argument of the petitioner was advanced before the learned lower appellate court at para 3 wherein the argument of the defence in short was recorded that the defence is in total denial of the occurrence and it was argued that the complainant was not the wife of the petitioner. The said argument was considered by the learned lower appellate court and it rejected the arguments of the petitioner by a well reasoned order. This court also finds that even at the time of framing of charge it was submitted by the petitioner that since the complainant was his wife so at best charge can be framed under Section 498 A of the Indian Penal Code and not under Sections 493 and 323 of the Indian Penal Code. Accordingly learned trial court vide order dated 06.08.1999 framed charge against all the accused persons under Section 498 A of the Indian Penal Code. As a cumulative effect of the aforesaid facts and circumstances there is no scope of re appreciating the evidences on record on the point of marriage of the petitioner with the informant. The finding of marriage between the petitioner and the informant is supported with materials on record. 19. Considering the nature of allegation and the manner in which the offence has been committed by the petitioner this Court is of the considered view that the learned courts below have rightly convicted the petitioner under Section 498 A of the Indian Penal Code. This Court also finds that the learned trial court rejected the plea of the petitioner to grant the benefit of Probation of Offenders Act 1958 by recording that the offence has been committed against the woman and the accused persons wanted miscarriage of the pregnancy of the complainant which is a cruel form of the torture. Learned trial court as well as learned appellate court had also recorded their finding after considering the materials on record and the factum of cruelty on the complainant was proved beyond all reasonable doubts. There being no perversity or illegality in the impugned judgement no interference is called for in revisional jurisdiction by this court. 20. Considering the nature of allegation which has been proved against the petitioner and the manner in which the same has been committed this Court finds that the learned courts below have rightly convicted the petitioner under Section 498 A of the Indian Penal Code. This Court further finds that the petitioner has been rightly held not entitled to benefit of Probation of Offenders Act 1958. The crime committed by the petitioner is not only against the woman i.e. his wife but also against the society. This Court is of the view that the learned lower appellate court has already taken a lenient view by modifying the sentence and therefore no further modification of sentence is called for in exercise of revisional jurisdiction of this Court. 21. Accordingly the present criminal revision petition is hereby dismissed. Interim order if any stands vacated. 23. Pending interlocutory application if any is dismissed as not 24. Let the lower court records be immediately sent back to the court concerned. 25. Let a copy of this order be communicated to the learned court below through ‘FAX Email’. Pankaj R. Kumar Binit

Evidence of solitary eye-witness should be of sterling quality, so that there is no doubt regarding the complicity of the Appellant: Odisha High Court

It is a well-settled principle of law that evidence has to be weighed and not counted. So, a solitary eye-witness can be relied upon to convict a person. The evidence of solitary eye-witness should be of sterling quality so that there is no doubt regarding the complicity of the Appellant as stated by the witnesses in the commission of the crime. A division bench comprising of Justice S.K. Mishra and Justice Pramath  Patnaik adjudicating in the matter of Ramachandra Sahu vs. State of Odisha (Criminal Appeal No.216 of 1998) dealt with an issue of whether to acquit the Appellant and grant his appeal or not. In the present case, The Appellant assails his conviction u/s-302 of IPC where he was sentenced to imprisonment of life vide judgment and order dated 18th August 1998. According to the prosecution, on 30.06.1997 three sisters Laxmi, Hema, and Srimati (deceased) started from their house at village Dankalpadu to collect ‘Kia’ flowers. After moving together for some distance, Laxmi left in one direction towards ‘Kaburigudi’ whereas Hema and Srimati went together in another direction towards ‘Jambari’. While both sisters were walking on the lane, flanked on either side by ‘Kia’ bushes, Hema, who was walking ahead, heard the cry of agony raised by Srimati. She turned around to find the accused dealing sword blows on the neck of the deceased. Seeing such a brutal attack, Hema fainted and collapsed. Lachhmeya (PW-4) saw the dead body of Srimati and informed the family members of the deceased. Laxmi and Sashi (sister-in-law) saw the body of the deceased and saw the accused running with his companion. The villagers informed the police about the incident over the phone and on the arrival of the police, Laxmi submitted the report, and an investigation was undertaken. After completion of all the investigation procedures, the police submitted the charge sheet. The Appellant completely denies his involvement in the crime and states that he was falsely implicated. The prosecution provided 15 witnesses in support of their case and established the charge against the appellant and the impugned judgment of conviction was passed. The Appellant contended in the present appeal that the Trial court passed the order of conviction without considering the evidence of the sole witnesses. Also, it was further contended that leading to discovery under Section 27 of the Indian Evidence Act, 1872 is wholly misconceived, as the witnesses to the same P.Ws.6, 12, and 14 have turned hostile to the prosecution. Therefore, the learned counsel for the Appellant submitted that the impugned judgment may be set aside and the Appellant may be acquitted of the charge in which he has been convicted. The prosecution replied that the evidence of the eyewitness is free from any inconsistency and infirmity. The Appellant also stated that there are abnormalities in the FIR  and it is full of contradictions in material particulars and hence not trustworthy. The witness in her cross-examination stated that she did not see the accused which was confirmed by the Investigation Officer, but in her statement u/s-161 CrPC she stated that Appellant was dealing blows on the deceased Srimati by means of the sword. Such contradiction appearing in her evidence with respect to her statement made under Section 161 of the Code is substantial and material contradiction making her evidence doubtful. The evidence of solitary eye-witness should be of sterling quality, so that there is no doubt regarding complicity of the Appellant as stated by the witnesses in commission of the crime. Also where the prosecution relied upon the circumstantial evidence i.e i.e. leading to the discovery of the weapon of offence under Section 27 of the Indian Evidence Act, 1872. It was submitted that leading to discovery as has been relied upon by the learned Trial court is wholly misconceived and against the law. According to the investigation officer, the accused voluntarily appeared in the Police station and led to the place where he concealed the weapon but such instance was not supported by some witnesses. Also, the sword covered in bloodstains that were recovered did not have human blood or the blood of human origin belonging to the deceased.

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

“Law cannot recognise different varieties of cruelty as Hindu cruelty,Muslim cruelty,Christian cruelty or secular cruelty to justify a decree for divorce”: Kerala High Court

“Law cannot recognise different varieties of cruelty as Hindu cruelty,Muslim cruelty,Christian cruelty or secular cruelty to justify a decree for divorce”: Kerala High Court The issue whether law can recognise different varieties of cruelty based on religion regardless of the fact that personal laws fall within the purview of certain definitions for cruelty was discussed by a division bench of Kerala High Court consisting of Justice A Muhamed Mustaque and Justice Sophy Thomas in the matters between Mary Margaret v Jos P Thomas MAT. APPEAL. NO.-1119 of 2015 decided on 21.1.2022. The facts of the case are that the couple were married in 1998 pursuant to Christian rites and ceremonies, and they had two daughters before her husband filed for divorce in 2009, before filing for divorce in 2015 by the family court. The counsel for appellants contended that the couple’s daughters testified to support the allegations of atrocities made by the husband. In addition, a psychiatrist consulted by his wife stated that he suffered from impulse control disorder but had not completed the appellant’s treatment. The allegations made by the husband were unfounded and she was ill-treated by her husband and mother. It was this mistreatment that caused the mental stress she consulted with doctors. The counsel for appellants contended that from the very beginning of the marriage, his wife exhibited behavioral disorders, often violent and abusive. He also argued that his wife is indifferent to children and has lived in his father’s house since 2005, ignoring his children. He alleged that although his wife was taken to various psychologists and psychiatrists, he had not cooperated or completed any treatment. The Kerala High Court dismissed the wife’s appeal and held that The law cannot recognize different types of atrocities such as Hindu , Muslim, Christian or secular to justify a divorce decree. The fact that the Hindu Marriage Law and the Private Marriage Law refer to persecution without any driver or explanation or the fact that the Divorce Law and the Annulment of the Muslim Marriage Law gives an indication of the nature of the persecution of marriage that needs to be established cannot justify this fact. It is concluded that the nature of marital cruelty, which would entitle the spouses to divorce, is different under different personal laws only because different words are used in the relevant personal law statutes. Anything that will prevent the spouse from fully blooming and enjoying married life should fall under Section 10(1)(x) of Divorce Act. Cruelty is  not defined under section 13(1)(1a) of the Hindu Marriage Law and section 27(1) of the Special Marriage Act and cruelty described in P.2(viii) of the Muslim Dissolution of Marriage Divorce Act and S.10(1)(x) of the Divorce Act should be inspired by this understanding of marital cruelty. The cruelty can be physical and mental. Compared to mental cruelty, physical cruelty provides more direct evidence that it is perceptible. While mental cruelty can be inferred from the facts and circumstances of the case, physical cruelty can be inferred from the behavior of one spouse towards the other spouse that jeopardizes the physical health of the other spouse.What may be mental cruelty now, may not be mental cruelty after a while, and vice versa.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY THE 21ST DAY OF JANUARY 2022 1ST MAGHA 1943 MAT.APPEAL NO.1119 OF 2015 AGAINST THE ORDER JUDGMENT IN OP 1339 2009 OF FAMILY COURT MARY MARGRET AGED 51 YEARS D O.M.T.JOHN MANAKKIL HOUSE NEW LANE THOTTAKKATTUKARA ALUVA SMT.ACHU SUBHA ABRAHAM JOS P THOMAS AGED 52 YEARS S O.LATE K.P THOMAS 21 740 MAJOR ROAD VYTTILA KOCHI 682 019 NOW RESIDING AT 31 791 A LANE 12 KACHAPPALLY ROAD VYTTILA ERNAKULAM 682 019 SRI.V.V.ASOKANSRI.MATHEW B. KURIAN THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22.12.2021 THE COURT ON 21.01.2022 DELIVERED THE FOLLOWING: Mat.Appeal No.11115 A.MUHAMED MUSTAQUE & C.R SOPHY THOMAS JJ Mat. Appeal No.11115 Dated this the 21st day of January 2022 JUDGMENT Sophy Thomas J “I take you to be my wife husband to have and to hold from this day forward for better for worse for richer for poorer in sickness and in health to love and to cherish till death us do part according to God s Holy law in the presence of God I make this vow.” In a Christian marriage which is a holy sacrament the couple enters into a matrimonial covenant by taking this beautiful and meaningful wedding vow on the fervent hope that it is a partnership of love and life for the whole of their life till death separates them. But sometimes their beautiful dreams hopes and aspirations stumble in bitter realities of life and incompatibilities compel them to part their ways even when the wedding vow taken by them in the name of God stares at them. Mat.Appeal No.11115 2. Here is a case where the appellant and respondent a Christian couple got married as per the Christian rites and ceremonies taking the wedding vow on 23.10.1988. Both of them are well educated and they hail from respectable and educated families. In their wedlock two girl children were born. The husband who is an Engineer cum Yoga Trainer filed O.P.No.1339 of 2009 before the Family Court Ernakulam to dissolve their marriage under Section 10 of the Divorce Act alleging cruelties both mental and physical and desertion from the part of the wife who is a Post 3. The husband was alleging that from the very inception of marriage the wife was showing behavioural disorders. She was intolerable even on minor domestic problems and she was abusive and assaultive in nature. She did not give proper attention to the children. She often threatened the husband that she would slice his throat and even strangulated him during sleep. Whenever he did not accede to her demand for unnatural sex she threatened to slice away his penis. She often threatened him with suicide and once she jumped out of a running car. She went out of the house during night hours without informing the husband and there was occasion to bring her from street during midnight. Though she was taken to Mat.Appeal No.11115 various psychologists and psychiatrists she was not co operating with the treatment. In July 2005 she returned to her paternal house and thereafter she never came back to live with her husband and children. The two girl children were taken care of by the husband and his mother. She was not bothered about the girl children who were school going children when she left her matrimonial home. When the husband was admitted in hospital due to heart attack she did not care even to visit him in hospital. She was extending her cruelties to the age old mother in law also. As it was impossible for the husband to continue his marital relationship with her due to her cruel nature and attitude and also because of desertion he filed the above O.P for dissolution of his marriage. 4. The wife was contending that the grounds alleged by the husband for divorce were absolutely false and in fact she was ill treated by the husband and his mother. She was married while she was doing her post graduation and she was not even provided food or clothing by the husband. Whenever the torture became unbearable she went back to her paternal house. But the husband and his mother were attempting to depict her as a mental patient She was ready to attend counselling and to undergo treatment to save her family life. The husband was not ready to do anything to Mat.Appeal No.11115 make his wife happy and in fact he was treating her as a slave The bitter experiences in life put her under great mental stress and strain. The husband also was advised for treatment but he was not willing. She was never abusive and she never assaulted him. The threat of homicide and suicide are only false allegations. She was willing to lead a normal family life with the husband but to prevent her from entering his house his mother filed an injunction suit According to her there is no ground to dissolve their marriage and still she is intending to live with her husband and children. 5. The Family Court formulated necessary issues and the parties were permitted to adduce evidence. PWs 1 to 4 were examined and Exts.A1 to A3 were marked from the side of the petitioner husband. RW1 was examined and Exts.B1 and B2 were marked from the side of the respondent wife. On analysing the facts and evidence the Family Court found that the petitioner husband could establish the grounds of cruelty and desertion against the respondent wife and so the O.P was decreed vide judgment dated 20.08.2015 dissolving their marriage. 6. Challenging the said judgment and decree the wife has come up in this appeal alleging that by the impugned judgment the husband was given an incentive for his own cruelty and Mat.Appeal No.11115 desertion. According to her the husband manipulated and fabricated false evidence of impulse control disorder for the wife and influenced and tutored the children to give testimony against their mother. The Family Court ought to have found that she had never intended to terminate her matrimonial life with the husband In fact she was prevented from entering her matrimonial home by an injunction suit filed by the mother in law. 7. Now let us have a re appraisal of the entire facts and evidence in the light of the grounds urged by the appellant to assail the impugned judgment and decree. 8. The wife and husband shall be referred as the appellant and respondent respectively hereinafter 9. The respondent was granted a decree of divorce on the ground of cruelty and desertion. Let us discuss these grounds one 10. In matrimonial life cruelty can be defined in many ways It has many perspectives which depend upon the socio economic status and circumstances of parties to the marriage. It varies from person to person. It also varies with time place economic status and other circumstances. Cruelty can be physical and mental Physical cruelty provides more of a direct evidence that it can be Mat.Appeal No.11115 perceptible when compared to mental cruelty. Mental cruelty can be drawn from the facts and circumstances of the case whereas physical cruelty can be drawn from the conduct of one spouse towards other spouse which endangers the other spouse s physical health. It is true that 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 cruelty. The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty 11. The Apex Court in Samar Ghosh vs. Jaya Ghosh 2007) 4 SCC 511) elaborately discussed the nature and scope of mental cruelty as a ground of divorce. It was held therein in paragraph 101 as follows “101. No uniform standard can ever be laid down for guidance yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of mental cruelty . 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 Mat.Appeal No.11115 ii) On comprehensive appraisal of the entire matrimonial life of the parties it becomes abundantly clear that 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 married life for the other spouse absolutely intolerable. iv) Mental cruelty is a state of mind. The feeling of deep anguish disappointment frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty v) A sustained course of abusive and humiliating treatment calculated to torture discommode or render miserable life of the spouse vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment 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 viii) The conduct must be much more than jealousy selfishness possessiveness which causes unhappiness and dissatisfaction and emotional upset Mat.Appeal No.11115 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 cruelty. 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 the wronged party finds it extremely difficult to live with the other party any longer may amount to mental cruelty xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if 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 cruelty xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to amount to cruelty xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may xiv) Where there has been a long period of continuous separation it may fairly be concluded that the matrimonial bond is beyond repair. The marriage Mat.Appeal No.11115 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 12. In the case in hand the respondent is alleging physical as well as mental cruelty from the part of wife. He was alleging that the appellant used to get irritated over minor domestic issues and on one such occasion since he could not heed to her request for purchasing a nighty from a shop she bit off a portion of his shoulder muscle and the bite mark is still there on his shoulder His mother had to call the Police to manage that situation. The appellant also is admitting the bite mark on the shoulder muscle of the husband but according to her the elder child bit on his shoulder leaving the bite mark. PW2 the elder child of the respondent gave testimony denying the allegation made by her mother. 13. The respondent deposed before the Family Court that the appellant had threatened to slice his throat during sleep and she even threatened to slice his penis whenever he refused her demand for unnatural sex. She was treating the children also in a cruel manner and she abused and assaulted them for silly things. She Mat.Appeal No.11115 strangulated him many a times during sleep. She often threatened him with suicide and once she tried to jump out of a moving car. 14. The allegations of abusive and assaultive nature of the appellant is fully supported by her own daughters PWs 2 and 3 Both of them gave testimony to the effect that the appellant mother always abused and insulted them and she was always fighting with their father. She went back to her paternal house leaving them at the mercy of their father and grandmother while they were school going children. They informed the appellant when they became biologically mature but she did not care to come even to see them. They have heard their mother threatening to kill their father or to kill herself. Both the children were categoric in their statement that violence was always initiated by the mother and she verbally and physically abused their father. She used to throw everything at her reach and they were victims of the violent behaviour of their mother. 15. The respondent has got a case that the appellant was having some behavioural problems and she was taken to various psychologists and psychiatrists for treatment. RW1 the wife admitted before court that she had taken treatment from psychiatrists. But according to her she had no mental problem but Mat.Appeal No.11115 only mental stress and strain due to the matrimonial cruelties she was subjected to by her husband and mother in law. 16. The appellant admitted that she had gone to PW4 Dr.Rajiv a Psychiatrist attached to PVS hospital for treatment. She is admitting that she was taken to Renewal Centre Kaloor where she had consulted Dr.Sr.Pious who was also a Psychiatrist. She is admitting that the treatment by Dr.Rajiv could not be completed because the respondent did not co operate. Thereafter no treatment was taken by her and according to her she did not go for further treatment as she had no psychiatric problems. She would say that due to family problems she was having some tension and the medicines she had taken were only for reducing her tension. 17. PW4 is Dr.Rajiv a Psychiatrist who was working in PVS hospital. Ext.A1 treatment records of the appellant for the period 19.06.2007 to 12.11.2007 was proved through him. In Ext.A1 it is clearly mentioned that earlier she had been under the treatment of Dr.Venugopal. She was brought to the doctor with the history of “always fights over trivial matter loss of temper and throw things” There was history of family discord and separation from family for past two years. The doctor prescribed medicines for her and there was regular review till 12.11.2007 as seen from Ext.A1. That Mat.Appeal No.11115 document further shows that she was accompanied by her mother in law on 12.09.2007. 18. The testimony of PW4 Doctor is to the effect that the appellant was suffering from impulse control disorder which means not able to control anger and exhibiting anger in an excessive manner which may adversely affect marital life. The persons suffering from impulse control disorder may be assaultive in nature and may throw things or may exhibit homicidal or suicidal tendency as stated by the doctor. The doctor further stated that there is no complete cure for this illness but it could be controlled under proper medication. Even according to the appellant after 12.11.2007 she had not continued the treatment. The allegations of arrogance and abusive and assaultive nature of the appellant spoken to by her husband and children get corroboration from Ext.A1 medical report and the testimony of PW4 Doctor. 19. One may suffer mental stress or strain due to very many reasons. But not taking treatment for the same in order to bring out a peaceful and harmonious family atmosphere also may have to be counted as cruelty to the persons at the receiving end. The appellant has no case that she had any difficulty to continue the treatment but according to her she had no psychiatric problem and Mat.Appeal No.11115 so she discontinued the treatment. The doctor gave testimony to the effect that the impulse control disorder will definitely affect a normal family life. If proper treatment is given it can be brought under control. 20. During re examination of PW4 Doctor learned counsel for the appellant suggested that persons suffering from hyperthyroidism may also exhibit symptoms of similar nature and the doctor answered it in the affirmative. But the appellant did not have a case in her objection that she was suffering from hyperthyroidism and no scrap of paper has been produced by her to substantiate that allegation. According to her mental stress and strain was caused due to family problems and she had taken treatment to reduce tension. But her own testimony coupled with the testimony of PW1 and Ext.A1 document will show that she was having some behavioural disorders which created troubles in her family life and she was not continuing her treatment so as to lead a normal family life with her husband and children 21. The appellant herself admitted before court that the husband was taking her to college while she was doing post graduation and she was taken for foreign trips and she was also gifted with gold ornaments and even then she was alleging that Mat.Appeal No.11115 she was treated like a slave. Learned counsel for the respondent would contend that making bald allegations against the husband also will amount to cruelty. 22. PWs 2 and 3 the daughters of the appellant are of the view that if the appellant is permitted to continue her matrimonial life with the respondent they will lose their father. PW3 the younger daughter was definite in her statement that it is better to be the children of divorced parents rather than children of parents who murdered the father. The mother went back to her paternal house in the year 2005 while they were school going children and she did not come back even when their father was hospitalised due to heart attack. 23. In Sobha Rani vs. Madhukar Reddi 1 SCC 105) the Apex Court examined the concept of cruelty and held that the word cruelty has not been defined in the Hindu Marriage Act It has been used in Section 13(1)(i)(a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical intentional or unintentional. If it is physical it is a question of fact and degree. If it is mental the enquiry must begin as to the Mat.Appeal No.11115 nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other ultimately is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. 24. In Narayan Ganesh Dastane vs. Sucheta Narayan Dastane 2 SCC 326) the Apex Court observed that the enquiry therefore has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent 25. In V.Bhagat vs. D.Bhagat((1994) 1 SCC 337) it is observed that “Mental cruelty in S. 13(1)(ia) 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 Mat.Appeal No.11115 that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such 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 already 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 in 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” 26. In Samar Ghosh s casethe Apex Court observed that “the concept of mental cruelty cannot remain static it is bound to change with the passage of time impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait jacket formula or fixed parameters for determining mental cruelty in matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors Mat.Appeal No.11115 consideration”. There cannot be any comprehensive definition of the concept of mental cruelty within which all kinds of cases of mental cruelty can be covered. The cruelty whether it be mental or physical is a question of fact depending on the evidence in each case. No uniform standard can be laid down to determine whether an act would amount to cruelty or not. An act which is tolerable to one may be intolerable to another. 27. This Court in A:husband vs. B: WifeKLT 434 held that the nature of cruelty which would entitle a spouse in matrimony for divorce must certainly be identical in all religions Law cannot recognise different varieties of cruelty as Hindu cruelty Muslim cruelty Christian cruelty or secular cruelty to justify a decree for divorce. The mere fact that Hindu Marriage Act and the Special Marriage Act refer to cruelty without any rider or explanation or the fact that the Divorce Act and the Dissolution of Muslim Marriage Act give indication of the nature of matrimonial cruelty that ought to be established cannot justify the conclusion that the nature of matrimonial cruelty which would entitle the spouses for divorce is different under different personal laws. It would be absolutely safe to draw inspiration from Art.44 of the Constitution also to jump to the conclusion that nature of cruelty Mat.Appeal No.11115 justifying a decree for divorce cannot be different under different personal laws. To our mind it appears that matrimonial cruelty must have a uniform definition or conceptualisation to justify the founding of a decree for divorce. Under S.10(1)(x) the cruelty must be such as to cause reasonable apprehension in the mind of the petitioner spouse that it would be harmful or injurious for the petitioner to live with the respondent. The expression harmful or injurious cannot be limited to physical harm or injury. Anything that would hinder the ability of the spouse to blossom into his her fullness and to enjoy life in matrimony must be held to fall within the sweep of S.10(1)(x) of the Divorce Act. Cruelty which is not defined in S.13(1)(1a) of the Hindu Marriage Act and S.27(1) of the Special Marriage Act and cruelty which is explained in S.2(viii) of the Dissolution of Muslim Marriage Act and S.10(1)(x) of the Divorce Act must all take inspiration from such understanding of matrimonial cruelty. We discard the theory that the concept of matrimonial cruelty to entitle a spouse for divorce can be dissimilar and different for persons belonging to different religious faiths merely because different words are used in the relevant personal law statutes 28. In the case in hand the husband is seeking divorce on Mat.Appeal No.11115 the ground of matrimonial cruelty envisaged under Section 10(1 x) of the Divorce Act 1869. From the available facts and evidence he has amply proved that the appellant has treated him with such cruelty as to cause reasonable apprehension in his mind that it would be harmful or injurious to him to live with the appellant. His children also are so anxious to save the life of their father and according to them if the appellant and respondent are again put together they will lose their father. The facts and evidence on board are sufficient to show that the nature and behaviour of the appellant towards the respondent was sufficient enough to cause reasonable apprehension in his mind that continuance of matrimonial life with the appellant was harmful and injurious to his life 29. Regarding the desertion alleged by the husband the appellant herself admitted before court that in July 2005 she went back to her paternal house. She has no case that before her mother in law filed injunction suit against her she preferred any complaints or petitions before any authority seeking restitution of conjugal rights or even for getting custody of her minor girl children. She has no case that when she left her matrimonial home she was prevented from taking her children with her. So Mat.Appeal No.11115 obviously she left her matrimonial home even without caring her little girl children. PWs 2 and 3 the children would say that even when she was informed about their biological maturity she did not care to see them. In the year 2005 the respondent was hospitalised due to heart attack and then also the appellant did not turn up. Though the appellant contended that during the period 2005 2009 occasionally she reached her matrimonial home and stayed with her husband and children no evidence is forthcoming to support that fact. 30. PWs 1 to 3 contended that in the year 2009 when the appellant and her parents tried to make a forcible entry in the house of her mother in law the mother in law filed a civil suit and obtained injunction. It is true that the injunction was later vacated and subsequently the mother in law not pressed that suit. Only after the civil suit the appellant filed Ext.A2 complaint under the Domestic Violence Act for getting residence order in the shared household. In Ext.A1 medical report also the doctor has noted that when he examined the patient on 19.06.2007 the appellant was living separated from her family for the past two years. So that also corroborates the testimony of PWs 1 to 3 that she deserted her husband and children in the year 2005. There is nothing to show Mat.Appeal No.11115 that after 2005 the appellant and respondent lived together as husband and wife except the fact that she lodged Ext.A2 complaint in the year 2009 for a residence order. If she was forcibly sent away from her matrimonial home and if she wanted to stay with her husband and children she need not have waited for four years to file a complaint. Admittedly she did not file any petition for restitution of conjugal rights or even to get custody of her children If her case that she was ill treated by her husband and mother in law and so she often went back to her paternal home is true definitely she should have examined her parents or family members who had first hand information about their family life But no witnesses were examined by the appellant to substantiate her contentions. All these facts lead to the irresistible conclusion that the appellant went back to her paternal house on her own in the year 2005 and thereafter she never turned up to live with her husband and children. 31. As observed by the Apex Court in Samar Ghosh s case supra) 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 Mat.Appeal No.11115 does not serve the sanctity of marriage on the contrary it shows scant regard for the feelings and emotions of the parties 32. On an overall consideration of the factual aspects and evidence would prove that the appellant was treating her husband with cruelty both physical and mental and in the year 2005 she deserted him. 33. There is no merit in preserving intact a marriage when the marital tie becomes injurious to the parties. When there is no rose and only thorns left and there is no scope for the plant to sprout again there is no meaning in watering the same knowing that it is dead for ever 34. For the last more than 16 years the parties are living separate and their marriage is to be treated as a deadwood where we could not see any signs of life. Even during the appellate stage we tried for a reconciliation. But we could not succeed. 35. We are of the firm view that the appellant could not succeed in assailing the impugned judgment and decree on the grounds alleged by her. Whereas the respondent could prove that the appellant treated him with cruelty causing reasonable apprehension of harm and injury in his mind and she deserted him in the year 2005. Mat.Appeal No.11115 In the result this appeal fails and hence dismissed confirming the impugned judgment and decree. The parties shall suffer their respective costs. A.MUHAMED MUSTAQUE

Adoption under Hindu laws requires consent of the wife – Allahabad High Court

 While adjudicating upon a case passed an order stating that if a Hindu Man wants to adopt a child the consent of his wife is necessary. Even if the husband and wife are living separately and are not divorced in such cases the consent of the wife is necessary. If the consent is not obtained, then the adoption will not be considered valid. This order was passed by Justice J.J. Munir in the case of Bhanu Pratap Singh vs. State of Uttar Pradesh & Ors. [WRIT – A No. – 10300 of 2017]. The Single bench Judge of the High Court passed the above order dismissing the petition filed by the Petitioner. The Petitioner submitted that his uncle Rajendra Singh was serving in the forest department and while serving in this department he died. Therefore, the Petitioner was seeking an appointment in a compassionate quota on the grounds that his uncle i.e. Rajendra Singh had adopted him. The Petitioner gave evidence for the Hindu rites that were carried out on adoption in the year 2001. A deed of adoption dated 14.12.2009 was also placed on record by the Petitioner. The uncle of the Petitioner was living separately from his wife for many years but had not divorced her. The present writ was filed as the Department of Forest did not consider the Petitioner as a valid heir of the Rajendra Singh. The counsel for the Petitioner cited various cases where the validity of adoption is in question factors like the ceremony of adoption and long duration of time has to be given due weight. After analysing a series of cases and hearing both sides the court was of the opinion that The court has said that the adoption of the petitioner has not been done in a legal manner as the Hindu adoption law requires wife’s consent to adopt a child until and unless the wife is not alive or ceased to be a Hindu, or a competent court declares her mentally unwell. Hence, in this, as the uncle of the Petitioner and his wife were living separately and were not divorced the consent for adoption was necessary. As in this case, no such consent was taken the adoption was not considered valid. In this petition, there were no doubt that Smt. Phulmati was a wife living until the death of the late Rajendra Singh. The two were never divorced, howsoever estranged they might have been. A mere estrangement between the man and wife without disruption of the marital status, in accordance with the law, that may either be by a decree for divorce or annulment or by the death of the wife, would not take the case out of mischief of the proviso to Section 7, requiring the wife’s consent to the adoption. As a result, this petition failed and stands dismissed. Click here to read the judgement

Court No. 66 A.F.R Case : WRIT A No. 103017 Petitioner : Bhanu Pratap Singh Respondent : State Of U.P. And 2 Others Counsel for Petitioner : Lal Behari Yadav Kamla Kant Srivastava Kshitij Shailendra Rajesh Kumar Srivastava Counsel for Respondent : C.S.C Hon ble J.J. Munir J In this writ petition parties have exchanged affidavits pending admission. These include a supplementary affidavit filed on behalf of the Mr. Kshitij Shailendra Advocate appears on behalf of the petitioner whereas all the three respondents who are the State and its officers are represented by Mr. Manvendra Dixit learned Standing The question involved in this petition is “ Whether the words “If he has a wife living” occurring in the proviso to Section 7 of The Hindu Adoptions and Maintenance Act 19561 include an estranged wife living apart from her husband but not divorced ” Rajendra Singh and Raj Narayan Singh were brothers. They were both sons of one Uday Raj Singh. Both brothers were married. Rajendra Singh was married to Smt. Phulmati whereas Raj Narayan Singh was married to Smt. Kamla Devi. Both the brothers were natives of Village Mirzapur Post Kajha District Mau. Rajendra Singh and Smt. Phulmati were an issueless couple whereas Rajendra Singh s brother Raj Narayan Singh had a son Bhanu Pratap Singh. Bhanu Pratap Singh is the petitioner here. Rajendra Singh was a Gardener in the employment of the 1 for short “Act of 1956” Forest Department. He was posted in the control of respondent no. 3 Rajendra Singh being issueless adopted his brother s son Bhanu Pratap Singh the petitioner here on 07.02.2001. The adoption was purportedly made in accordance with Hindu rites with all ceremonies of giving and taking being observed. A deed of adoption was however executed much later on 14.12.2009. It was admitted to registration on 15.12.2009. The deed of adoption shows that parties to the adoption were Raj Narayan Singh and his wife Smt. Kamla Devi on the one hand described as the first party and Rajendra Singh alone on the other described as the second party. Rajendra Singh represented himself as an unmarried man according to the recitals carried in the adoption deed. This was done as it appears because Rajendra Singh and his wife Smt. Phulmati were an estranged couple. Rajendra Singh for obvious reasons could not secure Smt. Phulmati s consent to the adoption. Rajendra Singh died in harness on 03.06.2016 leaving behind him his wife Smt. Phulmati a fact acknowledged in the writ petition and the much disputed adopted son of his Bhanu Pratap Singh the petitioner. Bhanu Pratap Singh obtained a succession certificate of sorts from a nondescript officer called an Officer In Chargeacting for the Collector of Mau. This certificate is dated 25.10.2016 It must be remarked that this certificate dated 25.10.2016 is more an expression of hesitation than certification. It says that this certificate is not valid for the purpose of any case relating to inheritance or income tax Words to this effect are scribed at the head of the document. At the foot of it there is a note which says that the certificate is founded on an administrative inquiry alone. It would not apply to a case relating to succession in Court. It would have no effect under the various laws where a requirement is there to produce a succession certificate from a Judge. It is then mentioned in the note that for claims up to the value of Rs. 5 000 the certificate would be valid. The last limitation indicated is that the certificate is not to be used in a foreign country This Court must make it bold to remark that the document dated 20.10.2016 purporting to be a succession certificate or whatever it is is the embodiment of an absolutely unauthorized act by the Collector s office. There is no provision under any law that authorizes the Collector of a district to issue a succession certificate of any kind. The learned Standing Counsel has not been able to show any law authorizing the Collector to issue a succession certificate of any worth relating either to movable or immovable property. This Court must deprecate the tendency of citizens to readily rush to authorities administrative instead of approaching the Judge or Court of ordinary original civil jurisdiction who commands wide powers in matters affecting civil rights of parties and to determine civil questions. It is well reputed that succession certificates letters of administration to estates of deceased and probates of Will are all matters that are specifically entrusted under the Succession Act to Judges including this Court. The Collectors ought not issue certificates partaking the colour of succession certificates which have a tendency of confounding rights of parties. No more is required to be said about this Now the certificate dated 25.10.2016 mentions that Bhanu Pratap Singh is the adopted son of the late Rajendra Singh. It also mentions that his status is founded on a registered adoption deed. It also certifies that apart from Bhanu Pratap Singh Rajendra Singh did not leave any other heir entitled. Acting on the certificate dated 25.10.2016 Bhanu Pratap Singh staked his claim before the respondent Authorities under the The Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules 19742 asking to be appointed on compassionate basis due to death of the late Rajendra Singh his adoptive father while still in service. This application appears not to have been attended to by respondent no. 3 and remained pending for some time. Bhanu Pratap Singh preferred Writ A No. 538616 complaining of inaction on 2 for short “the Rules 1974” the third respondent s part in the matter. He sought a direction for the consideration of his claim to a compassionate appointment. This Court by order dated 17.11.2016 made in Writ A No. 538616 disposed of the aforesaid writ petition ordering the Divisional Director Social Forestry Division Mau respondent no. 3 to consider and decide the petitioner s claim in accordance with law preferably within a month of the date of production of a certified copy of the order In deference to that direction made by this Court the Divisional Director Social Forestry Division Mau respondent no. 3 by his order dated 17.12.2016 rejected the petitioner s claim holding that he was neither the sole heir nor a dependent of Rajendra Singh within the meaning of the Rules of 1974. It was held that Smt. Phulmati was the deceased s wife and his sole heir dependent. The petitioner Bhanu Pratap Singh was his brother s son whose father and mother Raj Narayan Singh and Smt. Kamla Devi were alive. The adoption was not found valid on facts and in law for the reasons indicated in the order 11. Aggrieved this writ petition has been preferred 12. Notice pending admission was issued to the respondents on 17.03.2017 and they have filed a counter affidavit jointly on behalf of respondent nos. 2 and 3 on 22.08.2017 to which a rejoinder affidavit has been filed on behalf of the petitioner on 05.08.2017. A supplementary affidavit dated 07.02.2019 has also been filed 13. A perusal of the impugned order shows that the third respondent the Divisional Director Social Forestry Division Mau has disbelieved the adoption and held it to be a sham. The third respondent while considering the petitioner s claim also had before him the deceased Rajendra Singh s widow Smt. Phulmati who objected to the claim founded on adoption. She stated that she was the sole heir and dependent of the deceased. Amongst the many reasons that the third respondent has assigned to reject the petitioner s claim for a compassionate appointment under the Rules of 1974 is the compromise decree in O.S. No. 1494 passed by learned Civil Judge Mau dated 06.08.1994. This decree acknowledges the fact that Smt. Phulmati is Rajendra Singh s wife. It also embodies the fact that Rajendra Singh who was an employee of the Forest Department had got a nomination recorded in his Service Book and Group Insurance Schemein favour of Smt. Kamla Devi owing to strained relations with his wife. It has been covenanted by the terms of the compromise embodied in the decree that now the name of Smt. Phulmati Rajendra Singh s wife be substituted as his legal heir in the service record in place of Smt. Kamla Devi. There is also a covenant about Smt. Kamla Devi receiving a sum of Rs. 500 per month towards maintenance which would be chargeable to his pension and property also This Court has looked into that decree annexed to the counter affidavit. The impugned order further shows that the adoption has been disbelieved for other reasons as well. It has been noticed that the extract of the family register filed by the petitioner along with his application shows that the name of his father indicated therein is Raj Narayan Singh and that of his mother Kamla Devi whereas Smt. Phulmati Devi s husband is shown as Rajendra Singh. It has next been noticed in the order impugned that Rajendra Singh has described himself in the deed of adoption as unmarried whereas his wife Smt. Phulmati Devi is alive. It has also been recorded by the third respondent that while the date of adoption deed relied upon by the petitioner is 27.11.2009the petitioner s mark sheets relating to his B.A. degree for the first year the second year and the third year vis à vis the examinations of 2011 2012 and 2013 show the name of the petitioner s father as Raj Narayan Singh and that of his mother Smt. Kamla Devi The inference appears to be that in case the petitioner were adopted in terms of the registered adoption deed of 2009there was no occasion for the petitioner s father and mother s name to be mentioned in his educational records as Raj Narayan Singh and Smt. Kamla Devi who are his natural parents The educational documents would have borne his adoptive father s name On these grounds the third respondent has held the adoption to be a sham and the petitioner not at all the adoptive son of the deceased entitling him to compassionate appointment 15. Mr. Kshitij Shailendra learned counsel for the petitioner has been at pains to assail the impugned order. He has submitted that there is nothing wrong about the adoption. He asserts that the third respondent has remarked in error that reference to the adoptee in the deed of adoption as “ek ladke ko god lena chahte hain” whereas the adoptee is Rajendra Singh s nephew raises suspicion. Mr. Shailendra says that the exception taken by the third respondent to a reference about his nephew by Rajendra Singh as a boy is not at all misplaced inasmuch as it is permissible in law to take a nephew in adoption. He also submits that remarks by the third respondent that the petitioner s father and mother are alive also inform the impugned order with irrelevant considerations for it is no disqualification under the law that the adopted boy has both his natural parents alive. Mr. Kshitij Shailendra has placed reliance upon a decision of this Court in Vikas Jauhari v. State of U.P. and Others3 to support his submission that an adopted son is as much a son as a natural son for the purposes of the Rules of 1974. He has drawn the attention of this Court towards Paragraph 9 of the report in Vikas Jauhariwhere it is “9. In view of the above I am of the considered view that the adopted son also falls within the definition of family defined under section 2(c) of U.P Recruitment of Dependents of Government Servants Dying in Harness Rules 1974 and entitled for the claim of compassionate 3 2011ADJ 729 16. Mr. Kshitij Shailendra has further submitted that so far as the validity of the adoption is concerned even in cases where the adoption is not strictly proved with the establishment of a ceremony of giving and taking the long duration of time during which a person is treated as adopted has to be given due weight. He submits that in this case the petitioner was adopted way back in the year 2001 whereas the adoptive father died in the year 2016. The adoption that was completed in the year 2001 was recorded in the deed of adoption bearing a specific reference to the date in the year 2001 when the petitioner was adopted. This deed has been duly admitted to registration. It is the learned counsel s submission therefore that such long standing adoption which is also natural in its choice given the fact that the adoptee is the adopter s nephew the third respondent has erred in holding the adoption to be sham. Mr. Shailendra has placed reliance in support of this part of his contention upon a decision of the Supreme Court in Kamla Rani v. Ram Lalit Rai alias Lalak Raithrough Legal Representatives and Others4 where it was held “6. We cannot lose sight of the principle that though the factum of adoption and its validity has to be duly proved and formal ceremony of giving and taking is an essential ingredient for a valid adoption long duration of time during which a person is treated as adopted cannot be ignored and by itself may in the circumstances carry a presumption in favour of adoption. In this regard we may refer to the observations of this Court in L. Debi Prasad v. Tribeni Devi L. Debi Prasad v.Tribeni Devi 1 SCC 677] :9 SCC 663 14 Moo IA 67] that although the person who pleads that he had been adopted is bound to prove his title as adopted son as a fact yet from the long period during which he had been received as an adopted son every allowance for the absence of evidence to prove such fact was to be favourably entertained and that the case was analogous to that in which the legitimacy of a person in possession had been acquiesced in for a considerable time and afterwards impeached by a party who had a right to question the legitimacy where the defendant in order to defend his status is allowed to invoke against the claimant every presumption which arises from long recognition of his legitimacy by members of his family that in the case of a Hindu long recognition as an adopted son raised even a stronger presumption in favour of the validity of his adoption arising from the possibility of the loss of his rights in his own family by being adopted in another family. In Rup Narain v. Gopal Devi36 IA 103] the Judicial Committee observed that in the absence of direct evidence much value has to be attached to the fact that the alleged adopted son had without controversy succeeded to his adoptive father s estate and enjoyed till his death and that documents during his life and after his death were framed upon the basis of the adoption. A Division Bench of the Orissa High Court in Balinki Padhano v. Gopakrishna Padhano held that in the case of an ancient adoption evidence showing that the boy was treated for a long time as the adopted son at a time when there was no controversy is sufficient to prove the adoption although evidence of actual giving and taking is not forthcoming. We are in agreement with the views expressed in the decisions referred to above.” 17. Mr. Dixit on the other hand submits that the adoption in this case is sham to its face. He has emphasized that post adoption which is said to have taken place in the year 2001 the petitioner s name has nowhere figured in any records as the Late Rajendra Singh s son. In the family register also there is nothing to show that the adoption was ever given effect to. In the mark sheets relating to the three year B.A. course pursued by the petitioner names of the petitioner s parents mentioned are those of his natural parents Raj Narayan Singh and Smt. Kamla Devi. These do not mention Rajendra Singh or his wife Smt. Phulmati. Mr. Dixit therefore says that there is no evidence at all here to conclude that over a long period of time the petitioner has been treated as Rajendra Singh s son. He also emphasized the fact that deed of adoption was executed and registered in the year 2009 about an antecedent adoption that took place eight years ago. In his submission this also raises suspicions about it. All the aforesaid contentions aside Mr. Dixit says that the fact that consent of Smt. Phulmati was not taken before the petitioner was adopted renders the adoption bad in law in view of the proviso to Section 7 of the Act of 1956. To the last contention advanced by Mr. Dixit the Court asked Mr Shailendra if there was still doubt about Smt. Phulmati being the Late Rajendra Singh s wife. Mr. Shailendra has urged that for a fact it cannot be denied that Rajendra Singh was married and that Smt. Phulmati was his wife. He further submits that so far as the issue about the proviso to Section 7 of the Act of 1956 is concerned the same ought not be applied in a case where the husband and wife are separated and living apart so much so that the two have turned strangers though not formally divorced. He submits that the proviso to Section 7 must be read in a purposive manner and an estranged wife who has no connection with the affairs of her husband ought not be regarded as a wife obliging the man as a married Hindu to secure his wife s consent before he adopts This Court has given a thoughtful consideration to the submissions variably made on both sides. So far as the objection to the impugned order based on the fact that an adopted son may not be regarded as a son within the meaning of Section 2of the Rules of 1974 this Court does not think that there is any other issue about it. The impugned order does not decline the petitioner s claim because the petitioner is an adopted son and not a natural son. Rather the adoption has been held invalid. Therefore in the opinion of this Court that a part of Mr. Kshitij Shailendra s submissions where he has emphasized that the adopted son is also entitled to be treated as the deceased s son is not a point that arises for consideration at all. The impugned order read as a whole disbelieves the factum of adoption mostly on relevant grounds. The fact that the adoption is shown to have been made with the necessary ceremonies done way back on 07.02.2001 but the deed of adoption executed as late as 14.12.2009 has justifiably raised suspicion with the third respondent There is no ostensible reason why the petitioner s adoptive father or his natural parents should have waited all this while in executing a deed and seeking its registration if they had to execute one. In the opinion of this Court it does show that the deed is a document brought up for the purpose of creating evidence about the adoption which may not be there at all. The impugned order does not show that the third respondent has jumped to a conclusion against the validity of the adoption for the reason alone of this time lag between the claimed adoption and execution of the deed. He has carefully looked into evidence about the family register of parties who are close kindred as also the educational documents of the petitioner post adoption to record his conclusions. The family register and the petitioner s mark sheets during the three years of his graduate studies show that these carried names of his natural parents both father and mother which find record. There is no mention of the adoptive father s name anywhere. Putting all these pieces of evidence together the third respondent has drawn a plausible conclusion declining to accept the There is one very relevant fact also which the third respondent has noticed in the order impugned that is that in the deed of adoption Rajendra Singh has described himself as an unmarried man whereas he is admittedly married to Smt. Phulmati. This mis description about his marital status by the petitioner s claimed adoptive father Rajendra Singh appears to have been designedly made in order to get around the proviso to Section 7 of the Act of 1956. If Rajendra Singh had disclosed that he was a married man the adoption would require his wife s consent which is not there in this case. In fact he excluded the requirement of consent by introducing a false recital in the deed of adoption describing his status as an unmarried man. This mis description seriously hits the petitioner s case of a valid adoption. In the opinion of this Court the third respondent has rightly taken this brazenly false statement in the deed of adoption into account as a factor to discard the petitioner s case This takes us to the last and the purely legal submission that Mr Kshitij Shailendra has advanced. He has submitted that the proviso to Section 7 would not be attracted at all in the case of a wife so estranged that she has ceased to be a wife for all practical purposes. Section 7 of the Act of 1956 is extracted infra “7. Capacity of a male Hindu to take in adoption —Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption Provided that if he has a wife living he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. Explanation.— If a person has more than one wife living at the time of adoption the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso.” To the understanding of this Court the language of the proviso to Section 7 is plain and there is no such compelling reason to read something else into it. The proviso makes it imperative for a Hindu male to secure his wife s consent to an adoption that he makes unless she has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. There is nothing in any of these three exceptions which may prompt the Court to read into the statute a fourth exception of an estranged wife. A wife living apart from the husband utterly estranged is still a wife until the marital bond between the parties is severed by a decree of divorce or nullity of marriage. It is hard to read into the plain words of the Statute something like a virtual or constructive divorce to relieve the male Hindu adopter of his obligations under the proviso. Even otherwise a virtual or constructive divorce as if it were are concepts not accepted generally in matrimonial laws. To this Court s understanding even a judicial separation would not put an end to the husband s obligation under the proviso to Section 7. This Court may further hasten to add that the remark about judicial separation is one made in the passing as it does not arise on facts here. It is a matter that may be considered in an appropriate case where it arises This Court must notice in this connection the decision of the Supreme Court in Brajendra Singh v. State of Madhya Pradesh and Another5 which is about a Hindu female s rights to take in adoption. The case arose in the context of the pre amended provisions of Section 8 of the Act of 1956. It arose in the background of facts that one Mishri Bai had married in namesake one Padam Singh. She had taken in adoption one Brajendra Singh as her son and in answer to a notice under Section 10 of the M.P. Ceiling on Agricultural Holdings Act 1960 pleaded that 513 SCC 161 adoption so that she could retain 54 acres of agricultural land that was given to her by her father. The Ceiling Authorities had disbelieved the claimed adoption. Mishri Bai instituted a suit seeking a declaration that Brajendra Singh is her adopted son. Pending suit she executed a registered deed bequeathing all her properties to Brajendra Singh who prosecuted the suit against the State until its culmination in an appeal before the Supreme Court. The facts are set out in the decision of their Lordships in some detail which read thus “3. Background facts sans unnecessary details are Sometime in 1948 one Mishri Bai a crippled lady having practically no legs was given in marriage to one Padam Singh. The aforesaid marriage appears to have been solemnised because under the village custom it was imperative for a virgin girl to get married. Evidence on record shows that Padam Singh had left Mishri Bai soon after the marriage and since then she was living with her parents at Village Kolinja. Seeing her plight her parents had given her a piece of land measuring 32 acres out of their agricultural holdings for her maintenance 4. In 1970 Mishri Bai claims to have adopted appellant Brajendra Singh. Padam Singh died in the year 1974. The Sub Divisional Officer Vidisha served a notice on Mishri Bai under Section 10 of the M.P. Ceiling on Agricultural Holdings Act 1960 indicating that her holding of agricultural land was more than the prescribed limit. Mishri Bai filed a reply contending that Brajendra Singh is her adopted son and both of them constituted a joint family and therefore are entitled to retain 54 acres of land 5. On 28 12 1981 the Sub Divisional Officer by order dated 27 12 1981 disbelieved the claim of adoption on the ground inter alia that in the entries in educational institutions adoptive father s name was not recorded 6. On 10 1 1982 Mishri Bai filed Civil Suit No SA 82 seeking a declaration that Brajendra Singh is her adopted son. On 19 7 1989 she executed a registered will bequeathing all her properties in favour of Brajendra Singh. Shortly thereafter she breathed her last on 8 11 1989 7. The trial court by judgment and order dated 3 9 1993 decreed the suit of Mishri Bai. The same was challenged by the State. The first appellate court dismissed the appeal and affirmed the judgment and decree of the trial court. It was held concurring with the view of the trial court that Mishri Bai had taken Brajendra Singh in adoption and in the will executed by Mishri Bai the factum of adoption has been mentioned 8. The respondents filed Second Appeal No. 4896 before the High Court. A point was raised that the adoption was not valid in the absence of the consent of Mishri Bai s husband. The High Court allowed the appeal holding that in view of Section 8(c) of the Hindu Adoptions and Maintenance Act 1956stipulated that so far as a female Hindu is concerned only those falling within the enumerated categories can adopt a son 9. The High Court noted that there was a great deal of difference between a female Hindu who is divorced and one who is leading life like a divorced woman. Accordingly the High Court held that the claimed adoption is not an adoption and had no sanctity in law. The suit filed by Mishri Bai was to be dismissed.” Their Lordships considered the pre amended provisions of the Act of 1956 where a Hindu female had no right to take in adoption so long as the husband was alive or her marriage was not dissolved by divorce or annulment. She could not adopt even by her husband s consent. As the facts would show that the husband had never lived with Mishri Bai and the marriage was but ceremonial and one solemnized to gratify a village custom. It was further mooted before Their Lordships that for the purpose of Section 8 of the Act of 1956 as it then stood Mishri Bai was living like a divorced woman. As such she could not be regarded as disabled for taking in adoption Brajendra Singh. The provisions of pre amended Section 8 of the Act of 1956 that were amended vide Act 310 w.e.f 31.08.2010 are extracted in their Lordships judgment in Brajendra Singh and as such are not being quoted. The contention about Mishri Bai living virtually like a divorced woman in the peculiar facts of the case and therefore not disabled from taking in adoption was answered in Brajendra Singh thus “10. In support of the appeal learned counsel for the appellant submitted that as the factual position which is almost undisputed goes to show there was in fact no consummation of marriage as the parties were living separately for a very long period practically from the date of marriage. That being so an inference that Mishri Bai ceased to be a married woman has been rightly recorded by the trial court and the first appellate court. It was also pointed out that the question of law framed proceeded on a wrong footing as if the consent of husband was necessary. There was no such stipulation in law. It is contended that the question as was considered by the High Court was not specifically dealt with by the trial court or the first appellate court. Strong reliance has been placed on a decision of this Court in Jolly Das v Tapan Ranjan Das 4 SCC 363] to highlight the concept of “sham marriage” 11. It was also submitted that the case of invalid adoption was specifically urged and taken note of by the trial court. Nevertheless the trial court analysed the material and evidence on record and came to the conclusion that Mishri Bai was living like a divorced woman 12. Learned counsel for the respondents on the other hand submitted that admittedly Mishri Bai did not fall into any of the enumerated categories contained in Section 8 of the Act and therefore she could not have validly taken Brajendra Singh in adoption 13. It is to be noted that in the suit there was no declaration sought for by Mishri Bai either to the effect that she was not married or that the marriage was sham or that there was any divorce. The stand was that Mishri Bai and her husband were living separately for a very long period 14. Section 8 of the Act reads as follows “8. Capacity of a female Hindu to take in adoption.— Any female Hindu— a) who is of sound mind b) who is not minor and c) who is not married or if married whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind has capacity to take a son or daughter in adoption.” 15. We are concerned in the present case with clause c) of Section 8. The section brings about a very important and far reaching change in the law of adoption as used to apply earlier in case of Hindus It is now permissible for a female Hindu who is of sound mind and has completed the age of 18 years to take a son or daughter in adoption to herself in her own right provided thatshe is not married or is a divorcee or after marriage her husband has finally renounced the world or is ceased to be a Hindu or has been declared to be of unsound mind by a court having jurisdiction to pass a declaratory decree to that effect. It follows from clauseof Section 8 that Hindu wife cannot adopt a son or daughter to herself even with the consent of her husband because the section expressly provides for cases in which she can adopt a son or daughter to herself during the lifetime of the husband. She can only make an adoption in the cases indicated in clauseof the Act requires that the person who wants to adopt a son or a daughter must have the capacity and also the right to take in adoption. Section 8 speaks of what is described as “capacity”. Section 11 which lays down the condition for a valid adoption requires that in case of adoption of a son the mother by whom the adoption is made must not have a Hindu son or son s son or grandson by legitimate blood relationship or by adoption living at the time of adoption. It follows from the language of Section 8 read with clausesandof Section 11 that the female Hindu has the capacity and right to have both adopted son and adopted daughter provided there is compliance with the requirements and conditions of such adoption laid down in the Act. Any adoption made by a female Hindu who does not have requisite capacity to take in adoption or the right to take in adoption is null and void 17. It is clear that only a female Hindu who is married and whose marriage has been dissolved i.e who is a divorcee has the capacity to adopt Admittedly in the instant case there is no dissolution of the marriage. All that the evidence led points out is that the husband and wife were staying separately for a very long period and Mishri Bai was living a life like a divorced woman. There is conceptual and contextual difference between a divorced woman and one who is leading life like a divorced woman. Both cannot be equated. Therefore in law Mishri Bai was not entitled to the declaration sought for. Here comes the social issue. A lady because of her physical deformity lived separately from her husband and that too for a very long period right from the date of marriage. But in the eye of the law they continued to be husband and wife because there was no dissolution of marriage or a divorce in the eye of the law. Brajendra Singh was adopted by Mishri Bai so that he can look after her There is no dispute that Brajendra Singh was in fact doing so. There is no dispute that the property given to him by the will executed by Mishri Bai is to be retained by him. It is only the other portion of the land originally held by Mishri Bai which is the bone of contention 19. A married woman cannot adopt at all during the subsistence of the marriage except when the husband has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. If the husband is not under such disqualification the wife cannot adopt even with the consent of the husband whereas the husband can adopt with the consent of the wife. This is clear from Section 7 of the Act. Proviso thereof makes it clear that a male Hindu cannot adopt except with the consent of the wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. It is relevant to note that in the case of a male Hindu the consent of the wife is necessary unless the other contingency exists. Though Section 8 is almost identical the consent of the husband is not provided for. The proviso to Section 7 imposes a restriction in the right of male Hindu to take in adoption. In this respect the Act radically depicts sicdeparts) from the old law where no such bar was laid down to the exercise of the right of a male Hindu to adopt oneself unless he dispossesses the requisite capacity. As per the proviso to Section 7 the wife s consent must be obtained prior to adoption and cannot be subsequent to the act of adoption. The proviso lays down consent as a condition precedent to an adoption which is mandatory and adoption without wife s consent would be void. Both proviso to Sections 7 and 8(c) refer to certain circumstances which have effect on the capacity to make an adoption.” (emphasis by Court The decision of their Lordships in Brajendra Singh though one that is about the rights of a Hindu woman to take in adoption based on the pre amended provisions of Section 8 of the Act of 1956 nevertheless clearly spells out the principle that would apply the same way to a married Hindu man post amendment insofar as the requirement of consent to an adoption by his wife is concerned. The restriction on a married Hindu woman s rights to take in adoption absolutely so long as her husband was alive or the marriage subsisted is no longer there. Post amendment of Section 8 by Act No. 310 the position of a married Hindu man and a woman is at par. Both can take in adoption but with the consent of the other unless the other spouse can be placed in one of the three exceptions postulated by proviso to Section 7 or the proviso to Section 8 as the case may be. There is absolutely no scope to read into those provisions contrary to the plain words of the Statute any other kind of exception where a man may take in adoption so long as his marriage subsists 25. Here there is no doubt that Smt. Phulmati was a wife living until the death of the late Rajendra Singh. The two were never divorced howsoever estranged they might have been. A mere estrangement between the man and wife without disruption of the martial status in accordance with law that may either be by a decree for divorce or annulment or by death of the wife would not take the case out of mischief of the proviso to Section 7 requiring the wife s consent to the adoption In the circumstances the question formulated is answered in the negative. The other issues raised by the petitioner have already been dealt with and it is held that the impugned order does not suffer from any infirmity so as to call for interference by this Court in the exercise of our jurisdiction under Article 226 of the Constitution In the result this petition fails and stands dismissed 28. Costs shall go easy Order Date : 25.11.2020 BKM I. Batabyal

Appropriate compensation for disability should take care of all the non-pecuniary damages of a minor: Rajasthan High Court

Appropriate compensation for disability should take care of all the non-pecuniary damages. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. This assertion was made by the Rajasthan High Court Jaipur Bench presided over by J. Prakash Gupta in the case of HDFC Ergo General Insurance Company Ltd., Ajmer vs. Khushi, Abid Khan and Abhishek Patidar [S.B. Civil Miscellaneous Appeal No. 5421/2018] connected with Khushi vs. Abid Khan, Abhishek Patidar and HDFC Ergo General Insurance Company Limited, Ajmer [S.B. Civil Miscellaneous Appeal No. 1074/2019]. In the present case, the claimant was travelling with seven others when their vehicle met with an accident. She was the sole survivor and was 15 years of age when her statement was recorded. She filed for the compensation from the insurance company. The insurance company declining the claim pleaded that she was minor and her statement could not be relied upon. The claimant on the other hand, filed for the enhancement of the amount of compensation which was supposed to be provided by the insurance company to her. The honorable court in the present case declared, “in view of the facts and circumstances, as mentioned above, the appeal filed by the claimant is partly allowed. The claimant would be entitled to receive Rs.9,18,820/- as compensation instead of Rs.6,68,820/- as awarded by the Tribunal. Other terms and conditions of the award shall remain unchanged. The Insurance Company shall deposit the enhanced amount along with interest @ 6% p.a. from the date of filing the claim petition till the date of payment”. The Apex Court in the case Kumari Kiran through her father Harinarayan Vs. Sajjan Singh & Ors. 2015 (1) R.A.R.87 (SC) held, “we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs.” Hence, this Court in accordance with the principles laid down by this Court and after examining the facts, evidence on record and circumstances of the case on hand, we deem it fit and proper to award Rs.3,00,000/- towards permanent disability of the appellant-minors viz. Kumari Kiran and Master Sachin, since they have suffered 30% and 20% permanent disability respectively, due to the shortening of their right leg by one inch after the injuries sustained in the motor accident.”

on 17 01 2021 at 07:18:00 PM HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPURS.B. Civil Miscellaneous Appeal No. 5421 2018HDFC Ergo General Insurance Company Ltd. through Manager Branch Office Plot No. 711 4 K.C. Complex Fourth Floor Daulatbagh Ajmerhaving its Local Office at Office No. 2 Third Floor C 99 Singhvi Upasana Tower Shubhash Marg C Scheme Jaipur Through its Constituted Attorney Non Claimant AppellantVersus1. Khushi D o Shri Kishore Lal Verma Aged About 14 Years B c Koli R o Plot No. 306 34 Gurjar Tiba Nagra DistrictAjmerMinor Through Natural Guardian Father ShriKishorlal Sharma2. Abid Khan S o Shri Hameed Khan B c Pathan R o NayiAbadi Patwariya Road Garoth District Mandsor(Driver Of Truck No. RJ 33 Ga 2056)3. Abhishek Patidar S o Shri Rajendra Kumar Patidar R oBhanipura Road Tehsil Garoth District Mandsor(Owner Of Truck No. RJ 33 GA 2056) Non Claimants RespondentsConnected WithS.B. Civil Miscellaneous Appeal No. 1074 2019Khushi D o Shri Kishor Lal Verma Aged About 14 Years B c KoliR o Plot No. 306 34 Gurjar Teeba Nagra District Ajmer(Vehicle Owner)3. HDFC Ergo General Insurance Company Limited ThroughManager Branch Office Plot No. 711 4 K.C. ComplexFourth Floor Daulatbag AjmerRespondents[CMA 5421 2018]For Insurance Co.: Mr. Virendra Agarwal Advocatewhereby the Tribunal awarded asum of Rs. 6 68 820 as compensation in favour of the claimant.One Appeal S.B. Civil Misc. Appeal No. 5421 2018 has been filedby the Insurance Co. for modification of the judgment and awarddated 4.9.2018 whereas another appeal S.B. Civil Misc. AppealNo. 1074 2019 has been filed by the claimant for enhancement ofcompensation. Alongwith the appeal no. 1074 2019 an applicationunder Section 5 of the Limitation Act has also been filed. The saidapplication is allowed for the reasons mentioned therein and thedelay of 49 days in filing the appeal is condoned. Claimant through her father filed a claim petition underSection 166 of the Motor Vehicles Act 1988 seeking compensationon account of the injuries sustained by her in the motor vehicleaccident which occurred on 1.7.2014. At the very outset learned counsel for the InsuranceCo. has submitted that claimant was 11 years of age. At the time[CMA 5421 2018]of the accident which took place on 01.07.2014 8 persons weresitting in the Car but none of them was examined except theclaimant. The claimant being minor at the time of accident wasincompetent to depose evidence against the Insurance Co. Theclaimant has failed to examine any eye witness to prove thenegligence of the driver. Testimony of the claimant who is the solewitness being minor cannot be relied upon. He further submitsthat so far as quantum of compensation is concerned theClaimant sustained permanent disability to the extent of 34.35%.However to prove the same the Doctor has not been examined.He further submits that as per the judgment of the Hon ble ApexCourt in the case of Master Mallikarjun Versus Divisional Manager The National Insurance Company Limited reported in4RCR295 if the disability is upto 30% 60% then claimantwould be entitled to Rs. 4.00 lakh as compensation but theTribunal has awarded Rs. 6 68 820 as compensation which is onthe higher side. Hence the impugned judgment and award passedby the Tribunal is required to be modified. On the other hand learned counsel for the claimant hassubmitted that on account of accident which took place on1.7.2014 different claim petitions were filed. In some of the claimpetitions the Insurance Co. entered into compromise and this factis well established from the order sheet dated 9.9.2017 of theTribunal. For this reason the Insurance Co. is estopped fromchallenging the judgment and award passed by the Tribunal on theissue of quantum and liability. He further submits that at the timeof deposition the claimant was 15 years of age. At the time ofrecording her statement she was studying in 11th class. She wasmature and she was cross examined also. Out of the total eight[CMA 5421 2018]passengers who were travelling in the Car seven died andclaimant was the only eye witness who remained alive. From herentire statement it does not appear that she was incompetent togive evidence. In her cross examination no question was askedby the counsel for the Insurance Co. which could show that shewas immature and did not understand the questions properly. Shesustained 34.35% permanent disability which is well proved fromEx. 6 issued by the Medical Board of C.H.C. Sanganer. On accountof these injuries her leg was shortened and she is unable to squatand sit cross legged. However Tribunal granted very meageramount compensation hence the said amount requiresenhancement. In support of his arguments learned counsel hasplaced reliance on the judgment of the Hon’ble Supreme Court in I have considered the rival submissions made by thelearned counsel for the parties.The Hon’ble Apex Court in Kumari Kiran Thr. Herfather Harinarayan Vs. Sajjan Singh & Ors. 2015Pvt.[CMA 5421 2018]Ltd. and Ors.1 SCC551] while assessing thenon pecuniary damages the damages for mental andphysical shock pain and suffering already sufferedand that are likely to be suffered any future damagesfor the loss of amenities in life like difficulty inrunning participation in active sports etc. damageson account of inconvenience hardship discomfort disappointment frustration etc. have to beaddressed especially in the case of a child victim. Fora child the best part of his life is yet to come. Whileconsidering the claim by a victim child it would beunfair and improper to follow the structured formulaas per the Second Schedule to the Motor Vehicles Actfor reasons more than one. The main stress in theformula is on pecuniary damages. For children thereis no income. The only indication in the SecondSchedule for non earning persons is to take thenotional income as Rs.15 000 per year. A childcannot be equated to such a non earning person.Therefore the compensation is to be worked outunder the non pecuniary heads in addition to theactual amounts incurred for treatment done and or tobe done transportation assistance of attendant etc.The main elements of damage in the case of childvictims are the pain shock frustration deprivation ofordinary pleasures and enjoyment associated withhealthy and mobile limbs. The compensation awardedshould enable the child to acquire something or todevelop a lifestyle which will offset to some extent theinconvenience or discomfort arising out of thedisability. Appropriate compensation for disabilityshould take care of all the non pecuniary damages. Inother words apart from this head there shall only bethe claim for the actual expenditure for treatment attendant transportation etc.[CMA 5421 2018]The Tribunal has calculated the future loss of income bytaking the notional income of each the appellant minoras Rs.15 000 per annum. We are of the consideredview that a child’s notional income cannot beascertained as per the figure given for a non earningindividuals in the second schedule of the Motor VehiclesAct 1988. As the Tribunal and the High Court have notfollowed the principles laid down by this Court in theabove case by awarding loss of future income due topermanent disability therefore we set aside the same.Further reiterating the same principles as held inMaster Mallikarjun’s casewe awardRs.1 00 000 each towards shock pain and suffering(non pecuniary head) in place of loss of future incomedue to permanent disability. Further in MasterMallikarjun casewith respect to compensationfor permanent disability this Court held thus: “12. Though it is difficult to have an accurateassessment of the compensation in the case ofchildren suffering disability on account of amotor vehicle accident having regard to therelevant factors precedents and the approachof various High Courts we are of the view thatthe appropriate compensation on all otherheads in addition to the actual expenditure fortreatment attendant etc. should be if thedisability is above 10% and upto 30% to thewhole body Rs.3 lakhs upto 60% Rs.4 lakhs upto 90% Rs.5 lakhs and above 90% it shouldbe Rs.6 lakhs. For permanent disability upto10% it should be Rs.1 lakh unless there areexceptional circumstances to take differentyardstick...”Hence this Court in accordance with the principleslaid down by this Court in the above caseand after examining the facts evidence on record andcircumstances of the case on hand we deem it fit and[CMA 5421 2018]proper to award Rs.3 00 000 towards permanentdisability of the appellant minors viz. Kumari Kiranand Master Sachin since they have suffered 30% and20% permanent disability respectively due to theshortening of their right leg by one inch after theinjuries sustained in the motor accident. Further upon considering the age of appellant minors theyhave a long journey ahead of them in their lives during which they along with their parents will haveto endure an immeasurable amount of agony anduncertain medical expenses due to this motor vehicleaccident. Thus based on the principles laid down inthe above case we award Rs.25 000 each towardsagony to parents and Rs.25 000 each towardsfuture medical expenses. “xxxxxxxxxxx20. As a result the appellants shall be entitled tocompensation under the different heads as per thefollowing table:ParticularsKumari KiranMaster SachinHarinarayan1.Loss of future income due to disability Rs.2 70 000 2.Pain and suffering Rs.1 00 000 Rs.1 00 000 Rs.50 000 3.Agony to parentsRs.25 000 Rs.25 000 4.Medical ExpensesRs.69 844 Rs.84 876 Rs.1 86 154 5.AttendantRs.90 000 Rs.9 000 Rs.9 000 6.TransportationRs.5 00 Rs.5 000 Rs.5 000 7.Special Diet and NutritionRs.10 000 Rs.10 000 Rs.10 000 8.Permanent Disability loss of amenitiesRs.50 000 Rs.50 000 Rs.50 000 9.Future Medical ExpensesRs.25 000 Rs.25 000 TotalRs.5 43 844 Rs.5 58 876 Rs.5 80 154 [CMA 5421 2018]Thus the total compensation payable to all theappellants by the respondent Insurance Company willbe as per the total amount indicated in the precedingtable with interest @ 9% from the date of filing ofthe application till the date of payment.”There is no dispute that the appellant was 15 years oldat the time of recording her statement. The disability certificate(Ex.6) has been issued by the Board of Doctors. Perusal thereofreveals that the appellant had suffered permanent physicaldisability to the extent of 34.35%. It is mentioned in the saidcertificate that due to the injuries sustained by the appellant there is restricted movement of her hips and knee joints rightelbow disability in walking. Rather she is unable to squat & sitcross legged. This permanent disability of 34.35% has been saidto be in relation to whole body. Hence in view of the decisiongiven in Kumari Kiran’s caseappellant was entitled toreceive Rs.4 00 000 towards permanent disability loss ofamenities and was also entitled to receive Rs.1 00 000 towardspain and suffering as the appellant had remained under treatmentfor about 21 days. Thus the appellant was entitled to receiveRs.1 00 000 + Rs.4 00 000 + Rs.4 18 820 towards other heads as awarded by the Tribunal = Rs.9 18 820 .Taking into consideration the fact that in other claimpetitions filed on account of the same accident the Insurance Co.has entered into a compromise age of the claimant at the time[CMA 5421 2018]of recording her statement her statement and more particularlythe fact that out of the eight passengers travelling in the car seven died and claimant only remained alive and she sustainednumber of injuries I find no force in the argument of Mr. VirendraAgarwal that claimant was incompetent to give evidence againstthe Insurance Co. Accordingly the appeal filed the Insurance Co.fails and the same is hereby dismissed. However in view of the facts and circumstances asmentioned above the appeal filed by the claimant is partlyallowed. Impugned award dated 4.09.2018 passed by the Tribunalis modified to the extent that claimant would be entitled to receiveRs.9 18 820 as compensation instead of Rs.6 68 820 asawarded by the Tribunal. Other terms and conditions of the awardshall remain unchanged. The Insurance Company shall deposit theenhanced amount along with interest @ 6% p.a. from the date offiling the claim petition till the date of payment with the tribunalwithin a period of two months from today. The enhanced amountalong with interest shall be invested by the tribunal in fixeddeposit with a nationalised bank for a period of two years and theinterest accrued thereon shall be paid to the claimant on monthlybasis. J.DK 14 15

Defect in investigation cannot be the sole ground to acquit an accused: Madras High Court

Mere lapse on the part of the prosecution should not lead to unmerited acquittal subject to rider that in such a situation evidence on record should be clinching acquittal. If the evidence of the victim is credible and trustworthy, then the conviction is permissible solely on such an evidence. This was decreed by the Madras High court by the Honourable Mr. Justice P. Velmurugan in the case of Elumalai Vs. The Inspector of Police [Crl.A.No.93 of 2021] on the 06th of July 2021. The brief facts of the case are, the victim girl on 29.04.2005 went to give water to the goats near the appellant’s land. The appellant took the girl forcibly and raped her. Thereafter, she filed a complaint against the victim girl and was examined by the doctor who stated that the victim sustained injuries and hymen not intact and her vagina admitted two fingers, which corroborated evidence of the victim girl. The respondent police has registered a case against the appellant under Sections 354, 511 r/w 376 of IPC and Section 4 of Tamilnadu Prohibition of Harassment of Woman Act. The prosecution witnesses were examined but no material object was exhibited before the trial court. On the side of the defence, no one was examined and no document was marked. On 09.10. 2020, the learned judge convicted the accused and sentenced him for rigorous imprisonment for a period of 5 years for the offence punishable under Section 376 r/w 511 of IPC. Aggrieved by this judgement, the present petition is filed by the accused. The counsel for the petitioner submitted that there is no substantial material to convict the appellant for the offence under Section 376 r/w 511 IPC. He also added that, originally the case was registered for the offence under Section 354 and 323 IPC and thereafter altered into Section 354 and 376 r/w 511 IPC without any material. He also further submitted that, the doctor who examined the victim has deposed that she was brought to the Hospital after the lapse of 17 days from the date of occurrence. But, prosecution has not offered any reason for the above delay, which creates doubt in the case of the prosecution. However, the learned counsel for the respondent submitted that, the victim was an illiterate girl who was raped by the appellant. He further submits that the doctor who examined the victim has stated that the victim has injuries which are evidence. He also adds that the trial Court awarded only a lesser punishment. The learned Judge after listening to both the counsels proceeded to re-appreciate the entire evidence and give an independent finding. It was observed that during the process of cross-examination, the victim has stated the same things as mentioned in her FIR. Even though there was a delay in taking the victim to the hospital, it was observed that the victim has sustained injuries and had personally told the doctor that she was forcibly raped. Since the victim was of only 16 or 17 years, the delay in producing the victim girl before the Doctor is not fatal to the case of the prosecution. Since the victim belongs to a village where the thinking is backward and no person comes up to complain when they are raped. The court combined the evidences of the victim, the doctor, the medical report and concluded that the appellant is rightfully convicted. “Court does not find any reason to discord the evidence of the victim girl. The evidence of the victim girl and Doctor corroborates with the medical records. Ever though, there is defect in investigation and the same is not a sole ground to acquit the appellant. Mere laps on the part of the prosecution should not lead to unmerited acquittal, subject to rider that in such a situation evidence on record should be clinching. In this case, the victim has clearly narrated the entire incidents cogently, which corroborated with the medical evidence.” Since the evidence was reliable, the conviction is allowed and the court dismissed the present petition on the lack of grounds to discord the evidence of the victim.

Crl.A.No.921IN THE HIGH COURT OF JUDICATURE AT MADRASRESERVED ON : 25.03.2021PRONOUNCED ON: 06.07.2021CORAM:THE HONOURABLE MR. JUSTICE P.VELMURUGANCrl.A.No.921Elumalai ...AppellantVs.The Inspector of Police Varanjaram Police Station Villupuram District.(Crime No.805)...Respondent This Criminal Appeal is filed under Section 374 of Cr.P.C. against the judgment of conviction and consequential sentence passed by the learned Sessions Judge Magalir Needhi MandramVillupuram in S.C.No.1409 dated 09.10.2020.1 11 https: www.mhc.tn.gov.in judis Crl.A.No.921For Appellant : Mr.A.G.RajanFor Respondent : Mrs.T.P.Savitha Government AdvocateJUDGMENTThe criminal appeal has been filed against the judgment of conviction and consequential sentence passed by the learned Sessions Judge Magalir Needhi MandramVillupuram in S.C.No.1409 dated 09.10.2020.2The respondent police registered a case in Cr.No.805 against the appellant for the offence punishable under Sections 354 511 r w 376 of IPC and Section 4 of Tamilnadu Prohibition of Harassment of Woman Act against the appellant. After investigation the respondent police laid a charge sheet before the learned Judicial Magistrate Kallakurichi which was taken on file in PRC No.206. Since the offence charged against the appellant was triable only by the Court of 2 11 https: www.mhc.tn.gov.in judis Crl.A.No.921Session the case was committed to the learned Principal District and Sessions Judge Villupuram which was taken on file in S.C.No.1405 and transferred to Additional District and Sessions Court where charges were framed against the appellant for the offence under Sections 354 and 376 r w 511 IPC. During pendency of the above case the learned Principal District and Sessions Judge Villupuram since Special Court was established at Villupuram District transferred the case to the learned Sessions Judge Villpuram. 3Before the trial Court in order to prove the case of the prosecution P.Ws.1 to 6 were examined and Exs.P1 to 6 were marked and no material object was exhibited. After completing examination of prosecution witnesses when incriminating circumstances culled out from the prosecution witnesses and put before the accused by questioning under Section 313 Cr.P.C. he denied the same as false and pleaded not guilty. On the side of the defence no one was examined and no document was marked. 3 11 https: www.mhc.tn.gov.in judis Crl.A.No.9214The learned Sessions Judge Mahila Court Villpuram after trial and hearing arguments advanced on either side by judgment dated 09.10.2020 convicted the accused and sentenced him to undergo rigorous imprisonment for a period of five years with fine of Rs.50 000 in default to undergo simple imprisonment for a period of six months for the offence punishable under Section 376 r w 511 of IPC and no punishment was awarded for the offence under Section 354 of IPC. Aggrieved against the said judgment of conviction and sentence the accused has preferred this criminal appeal. 5The learned counsel appearing for the appellant accused would submit that there is no substantial material to convict the appellant for the offence under Section 376 r w 511 IPC. Originally case was registered for the offence under Section 354 and 323 IPC and thereafter altered into Section 354 and 376 r w 511 IPC without even any material. According to victim girl she lodged complaint on the following day of occurrence at about 3.00 p.m. and went to Hospital for treatment accompanying by a 4 11 https: www.mhc.tn.gov.in judis Crl.A.No.921women police. After four days of the occurrence she again went to the Hospital accompanying her parent for treatment for her injuries but no record was produced regarding the treatments. P.W.4 the Doctor one who examined the victim girl has deposed that the victim girl was brought to the Hospital after the lapse of 17 days from the date of occurrence. But prosecution has not offered any reason for the above delay which creates doubt in the case of the prosecution. P.W.6 the Investigating Officer in his evidence has clearly stated that the victim girl did not say that the appellant committed rape on her and further he did not examine the police who registered the FIR. The person who wrote the complaint was not examined by the prosecution and same is fatal to the case of the prosecution. The prosecution has failed to prove its case beyond reasonable doubt. The trial Court has convicted the appellant without any material which warrants interference of this Court. 6The learned Government Advocateappearing for the respondent police would submit that victim girl is an illiterate and on 29.04.2005 at about 3.00 p.m. when she went to give water to Goats which 5 11 https: www.mhc.tn.gov.in judis Crl.A.No.921were near the appellant s land the appellant forcibly took her by beating and committed rape on her. On hearing the alarm of the victim girl P.W.2 went to the place of occurrence and at the time the appellant showered water on the face of the victim girl and P.W.2 secured the victim girl. Thereafter P.W.1 victim girl lodged complaint and went to the Hospital. P.W.4 the Doctor one who examined the victim girl has stated that the victim sustained injuries and hymen not intact and her vagina admitted two fingers which corroborated evidence of the victim girl. The trial Court convicted the appellant only for the offence under Section 354 and 376 r w 511 IPC and sentenced for the offence under Section 376 r w 511 and no separate sentence was awarded for the offence under Section 354 of IPC. Hence trial Court awarded only a lesser punishment which does not call for any interference of this Court. 7Heard the learned counsel for the appellant and the learned Government Advocateappearing for respondent police and perused the materials available on record. 6 11 https: www.mhc.tn.gov.in judis Crl.A.No.9218Case of the prosecution is that on the date of occurrence when P.W.1 the victim girl went to provide water to Goats which were near the appellant s land the appellant forcibly took her by beating on cheek and committed rape on her. Hence the complaint. 9This Court being an Appellate Court is a final Court of fact finding which has to necessarily re appreciate the entire evidence and give an independent finding. Accordingly this Court has re appreciated the entire oral and documentary evidence produced before this Court.10P.W.1 in her complaint has stated that when she went to give water to the Goats which were near the land of the appellant the appellant followed her and took her by beating on cheek and forcibly committed rape on her. She also deposed that she has injuries on the leg and hand. Further the victim girl while examination in chief before the Court and also in cross examination has reiterated the same that the appellant committed rape on her forcibly and caused injuries. Even though as contended by the learned 7 11 https: www.mhc.tn.gov.in judis Crl.A.No.921counsel for the appellant that the victim was taken to Hospital for examination after the lapse of 17 days P.W.4 the Doctor has stated that while examining the victim she told that she attained puberty only two years back and appellant raped her forcibly. P.W.4 further stated that the victim sustained following injuries.Two scratchers on the left breast measuring 0.5 x 0.5 c.m.Scratch on the right side buttock measuring 0.5 x 0.5 c.m.Two injuries on the right side buttock measuring 0.5 c.m.Scratch on the right side knee measuring 1 x 1 c.m.Further hymen not intact and her vagina admitted two fingers. The Doctor further stated that the victim was subjected for radiology test to ascertain the age and the result showed that her age would be 16 or 17 years. Therefore the delay in producing the victim girl before the Doctor is not fatal to the case of the prosecution. 11The victim girl being an illiterate has made complaint against the appellant narrating the incident in her own language. Normally in the Village no girl would reveal that she was raped thinking about her future. 8 11 https: www.mhc.tn.gov.in judis Crl.A.No.921We cannot expect every victim girl will immediately soon after the occurrence rush to the Police Station and lodge complaint and they will reveal everything before the Court. They only speak in their own language. In this case neither the Investigating Officer nor the trial Court took the matter in a right manner. But unfortunately neither the state nor the victim has filed any appeal and hence this Court cannot go beyond the scope of appeal. 12On a combined reading of evidences of P.W.1 the victim girl and P.W.4 the Doctor and Ex.P1 complaint and Ex.P4 medical report of the victim this Court does not find any reason to discord the evidence of the victim girl. The evidence of the victim girl and Doctor corroborates with the medical records. Ever though there is defect in investigation and the same is not a sole ground to acquit the appellant. Mere laps on the part of the prosecution should not lead to unmerited acquittal subject to rider that in such a situation evidence on record should be clinching. In this case the victim has clearly narrated the entire incidents cogently which corroborated with the medical evidence. If the evidence of sole witness is cogent 9 11 https: www.mhc.tn.gov.in judis Crl.A.No.921credible and trustworthy conviction is permissible. In this case there is no reason to discord the evidence of the victim. 13In fine this Court come to the conclusion that there is no merit in the appeal and there is no sound reason to interfere with the judgment of conviction and sentence. Accordingly this criminal appeal is dismissed. The trial Court is directed to secure the appellant accused to serve remaining period of imprisonment if any. + 06.07.2021Index : Yes NocgiTo1. The Sessions Judge Magalir Needhi Mandram Villupuram.2. The Inspector of Police Varanjaram Police Station Villupuram District.3. The Public Prosecutor High Court of Madras.10 11 https: www.mhc.tn.gov.in judis Crl.A.No.921P.VELMURUGAN J. cgiPre Delivery Judgment inCrl.A.No.92106.07.202111 11

The Court is inclined to allow the prayer for pre-arrest bail as there is no direct evidence as to prove the offence by the petitioners: High court of Patna

The petitioner was taken into custody under Section 498A IPC, “Husband or relative of husband of a woman subjecting her to cruelty”, section 504, “Intentional insult with intent to provoke breach of the peace”, section 34 of the Indian Penal Code, “Acts done by several persons in furtherance of common intention” and 3/4 of the Dowry Prohibition Act, 1961. This petition is in connection with Mahila PS Case No. 39 of 2020 dated 07.03.2020. In the high court of Judicature at Patna, this judgement was given by honourable Mr Justice Ahsanuddin Amanullah on the 4th  of September 2021 in the case of Kiran Devi and others versus the state of Bihar, criminal miscellaneous No. 4766 of 2021. Mr Rajesh Kumar represented as the advocate for the petitioner, and Mr Md Arif 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 that at one time they abused the informant and demanded a four-wheeler from the informant, the informant is the one married to the nephew of petitioner no.2. The counsel representing the petitioners held that according to the FIR allegations is directed towards the father-in-law and the mother-in-law and brother and sister of the husband of the informant and the petitioners have been accused of assaulting and demanding a four-wheeler once on holi. The counsel held that this is a scenario how all the members of the family have been dragged and falsely implicated. The counsel emphasized that there has been no account of physical abuse except one time which was an isolated incident, that too highly innocuous, which clearly has been made to exert undue pressure and implicate and harass the extended family of the husband of the informant, further the counsel stated that the petitioners live separately and have no connection regarding the affairs of the informant or her family members as they live in a different town. Also, the petitioners have no other criminal antecedent and further, the petitioners would not even gain anything if the father of the informant gave them a four-wheeler, therefore, the accusations are false. The additional public prosecutor held that the petitioners have been named in the FIR with regard to abusing and demanding a four-wheeler from their daughter-in-law who is also the informant. After considering the facts and circumstances of the case, the court held that the Court finds that plain reading of the FIR indicates that somehow to make out an offence, the name of the petitioners have been introduced, for, in the entire body, there is not even a whisper with regard to any specific or direct act by them, which does not inspire confidence. Thus, the Court is inclined to allow the prayer for prearrest bail. The court concluded that “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 Judicial Magistrate, 1st Class, Patna in Mahila PS Case No. 39 of 2020, subject to the conditions laid down in Section 438(2) of the Code of Procedure, 1973 and further, (i) that one of the bailors shall be a close relative of the petitioners and (ii) that the petitioners shall co-operate with the Court and police/prosecution. Failure to cooperate shall lead to the cancellation of their bail bonds. The petition stands disposed of in the aforementioned terms.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 47621 Arising Out of PS. Case No. 39 Year 2020 Thana MAHILA P.S. District Patna 1. Kiran Devi aged about 50 years Female Wife of Sri Anjani Kumar Singh Anjani Singh. 2. Anjani Kumar Singh @ Anjani Singh aged about 55 years Male Son of Late Ambika Singh Both resident of Mohalla Bhadani Nagar Chikor PO + PS Bhadani Nagar District Ramgarh State Jharkhand The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s Mr. Rajesh Kumar Singh Senior Advocate with Mr. Anand Kumar Advocate Mr. Md Arif APP For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 04 09 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. Rajesh Kumar Singh learned senior counsel along with Mr. Anand Kumar learned counsel for the petitioners and Mr. Md. Arif learned Additional Public Prosecutor hereinafter referred to as the ‘APP’) for the State 4. The petitioners apprehend arrest in connection with Mahila PS Case No. 320 dated 07.03.2020 instituted under Patna High Court CR. MISC. No.47621 dt.04 09 2021 Sections 498A 504 34of the Indian Penal Code and 3 4 of the Dowry Prohibition Act 1961 5. The allegation against the petitioners is that they had also at one point of time abused and demanded a four wheeler from the informant who is married to the nephew of the petitioner 6. Learned senior counsel for the petitioners submitted that in the entire FIR the allegation is directed towards the father in law mother in law brother sister of the husband of the informant and only by way of a passing reference it has been stated that once on Holi the petitioners had also abused the informant and had demanded a four wheeler. Learned senior counsel submitted that this is a classic case of how all family members are falsely implicated and the law abused. It was submitted that there is not even a whisper with regard to any direct physical or overt act at any point of time except for one isolated incident that too highly innocuous which clearly has been made to exert undue pressure and implicate and harass the extended family of the husband of the informant. It was submitted that the petitioners live separately and have no connection in the affairs of the informant or her family members which would be clear from the fact that they live in a different town. Learned senior counsel Patna High Court CR. MISC. No.47621 dt.04 09 2021 while summing up his argument submitted that the petitioners do not have any other criminal antecedent and further that even otherwise the petitioners could have any interest with regard to whether or not the father of the informant gave a four wheeler to her husband as they stood nothing to gain from it 7. Learned APP submitted that the petitioners are also said to have abused the informant and demanded a four wheeler 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds that plain reading of the FIR indicates that somehow to make out an offence the name of the petitioners have been introduced for in the entire body there is not even a whisper with regard to any specific or direct act by them which does not inspire confidence. Thus the Court is inclined to allow the prayer for pre 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 Judicial Magistrate 1st Class Patna in Mahila PS Case No. 320 subject to the conditions laid down in Section 438(2) of the Code of Criminal Patna High Court CR. MISC. No.47621 dt.04 09 2021 Procedure 1973 and further that one of the bailors shall be a close relative of the petitioners andthat the petitioners shall co operate with the Court and police prosecution. Failure to co operate 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 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

The court’s interpretation of a statute cannot be with eyes closed to practical realities and have to be construed in proper perspective: Calcutta High Court

The judgments of conviction and sentence impugned in the present appeal are vitiated by errors of law as well as fact and based upon an erroneous interpretation of the provisions of the POCSO Act as well as the IPC. Such an opinion was held by the Hon’ble High Court of Calcutta before the Hon’ble Justice Sabyasachi Bhattacharyya in the matter of  Ranjit Rajbanshi Vs. The State of West Bengal and others [C.R.A. No.458 of 2018, IA No: CRAN 2 of 2020]. The facts of the case are associated with the accused aging 22 years and the victim being 16 and half years. Such a case was appealed against a conviction under Section 376(1) of the Indian Penal Code, 1860 and Section 4 of the Protection of Children from Sexual Offences Act, 2012 and sentence awarded under Section 376(1) of the IPC.  The learned advocate representing the appellant contended that no evidence was produced regarding hymen injury of the victim that connects the accused, which is sufficient to convict the appellant on either of the charges. It was further argued by the learned Advocate for the appellant that the two Doctors’ reports do not validate the prosecution case. In addition, no occurrence of rape was alleged by the victim during medical examinations and the pregnancy report was reported negative too. There were several inconsistencies in the submissions by the prosecution witnesses, argued by the appellant.  During the cross-examination, the victim mentioned that she “shouted” during the incident. However, going through the place of occurrence the room was situated between two shops – a pharmacy and a sweet shop. A burial ground and a busy bus stand were nearby too. It was quite unlikely that none heard the cry of the victim. The victim mentioned that the time of occurrence to be 2 p.m. on August 12, 2017, whereas the FIR was lodged on August 16, 2017.  The counsel of the state stated that the delay between the alleged incident and the complaint was justified since there was an attempt to give the victim in marriage to the accused, which is perfectly reasonable considering the present social structure of rural India. Learned counsel representing the State cites a judgment of the Hon’ble Supreme Court, reported at, AIR 2001 SC 2075 [State of Himachal Pradesh Vs. Gyanchand] and stated that all submissions involved in the present case had been covered in the said judgment. The prosecutor representing the state contended that all the submissions laid down in the cited judgment show that the accused was guilty of the offenses he was charged with.  All the facts stated by both the parties and the facts obtained from the cross-examination of the victim indicate that there were several occasions of the consensual physical relationship between both parties. Therefore, the offense under Section 376(1), IPC, although a minor’s consent is of no significance.  The Hon’ble High Court of Calcutta stated “… the victim girl was admittedly 16 ½ years old and studied in Class XII at the relevant point of time. She was not naïve enough not to know the implication of sexual intercourse; rather, the victim admittedly had a physical relationship with the accused, who was also of a very young age, on several occasions prior to the incident. Although the consent of a minor is not a good consent in law, and cannot be taken into account as ‘consent’ as such, the expression ‘penetration’ as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, an unilateral positive act of the accused but might also be a union between two persons out of their own volition …  The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male.”  It seemed that the prosecution failed to form the chain of events leading to the alleged offence, which would raise an assumption under Section 29 of the POCSO Act. Hence, simply taking advantage of the literal definition of the term ‘child’, the accused/appellant cannot be proved guilty of an offence under Section 3 of the POCSO Act or Section 376(1) of the IPC.  The Hon’ble Court held “the judgments of conviction and sentence impugned in the present appeal are vitiated by errors of law as well as fact and based upon an erroneous interpretation of the provisions of the POCSO Act as well as the IPC, … The appellant is thus acquitted and discharged from any condition or bond furnished by him in connection with bail, if granted by any court. In the event the appellant is in custody, he shall be immediately released”. 

In the High Court at Calcutta Criminal Appellate Jurisdiction Appellate Side The Hon’ble Justice Sabyasachi Bhattacharyya C.R.A. No.4518 IA No: CRAN 20 Ranjit Rajbanshi The State of West Bengal and others Mr. Pratip Kr. Chatterjee Ms. Aiswarjya Gupta Mr. S. G. Mukherjee ld. PP Ms. Faria Hossain Ms. Baishali Basu For the appellant For the State Hearing concluded on Judgment on Sabyasachi Bhattacharyya J: The present appeal has been preferred against a conviction under Section 376(1) of the Indian Penal Code 1860and under Section 4 of the Protection of Children from Sexual Offences Act 2012 and sentence awarded under Section 376(1) of the IPC since the quantum of punishment in the said Section was higher to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 50 000 in default to suffer rigorous imprisonment for one year for the offences punishable on both counts. Learned counsel appearing for the appellant argues that no evidence has been produced to connect the accused with the previous hymen injury of the victim sufficient to convict the appellant on either of the charges. The age of the accused was 22 years and that of the victim was 16 ½ at the time of the First Information Reportand lodging the FIR also gives rise to a suspicion as regards the involvement of the accused. It is further argued by learned counsel for the appellant that the two Doctors’ reports do not corroborate the prosecution case. For this purpose apart from the said reports learned counsel also places reliance on relevant portions of the depositions of PW3 and PW4 was situated between two shops one a pharmacy and the other a sweet shop. There was also a burial ground and a busy bus stand nearby. It was quite unlikely that none heard the cry of the victim in the event she had shouted. That apart the complainant as PW1 in her cross examination mentioned about the victim’s father and brother having accompanied her during the complaint. However none of them were produced as The victim as PW2 mentioned the time of occurrence to be 2 p.m. on August 12 2017 but the complaint was lodged only on August 16 2017. The accused and his relatives allegedly had also gone at that witnesses. time. 10. The cross examination of the victim shows that PW2 admitted that she mentioned the matter to her mother around 4 to 5 p.m. and at about 7.30 to 8 p.m. that same day the victim’s brother mother and father allegedly asked the accused to marry the victim. However such statements were not corroborated by PW1. 11. As such learned counsel for the appellant argues that none of the ingredients required to be proved for either of the charges were established beyond reasonable doubt in the present case even sufficient to raise a presumption under Section 29 of the POCSO Act. 12. Learned counsel for the State at the outset submits that the victim was proved to be a minor at the time of the offence and even if the victim had consented to the offence the same is not material at all. 13. Learned counsel for the State further contends that the delay between the alleged incident and the complaint was justified as there was an attempt to give the victim in marriage to the accused which is perfectly credible considering the present social structure of rural It is further contended that as per the law there is no option before the Court than either to uphold the punishment for the entire term of seven years which was the minimum sentence for Section 376 of the IPC or total acquittal latter being circumstances of the case. 15. Learned counsel for the State cites a judgment of the Supreme Court reported at AIR 2001 SC 2075 and submits that all propositions involved in the present case have been covered in the said judgment. It was held in paragraph 14 of the said report that conviction of an offence of rape under Section 376 of the IPC can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of medical examination etc. if the same is found to be natural trustworthy and worth being relied on. If the evidence of the prosecutrix inspires confidence the Supreme Court held it must be relied upon without seeking corroboration of a statement in material particulars. In paragraph 15 of the said report it was held that absence of marks of external injury on the person of the accused who was grown up is not fatal to prosecution under Section 376 IPC. In case of offences under Section 376 IPC in the light of Section 154 of the Code of Civil Procedure 1973 delay in lodging FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay it was held by the Supreme Court has the effect of putting the court on its guard to search if any explanation has been offered for the delay and if offered whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in the prosecution version on account of such delay the delay would be fatal to the prosecution. However if the delay is explained to the satisfaction of the court by itself the delay cannot be as a ground for disbelieving and discarding the entire prosecution case. It was further held that non examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record howsoever natural trustworthy and convincing it may be. Discovery of spermatozoa in the private part of the victim it was held is not a must to establish penetration. 19. Learned counsel for the State thus contends that the propositions laid down in the cited judgment all go on to show beyond reasonable doubt that the accused was guilty of the offences he was charged with. That apart in view of presumption under Section 29 of the POCSO Act having been sufficiently raised the onus shifted on the accused to prove his innocence which he failed to dispel by cogent evidence. 20. Upon hearing learned counsel certain salient features stand out in the present case. 21. The report of neither of the two doctors who examined the victim being Dr. Anuva Deyand Dr. Avik Dascorroborates the allegation under Section 376(1) of the IPC. 22. Although the victim has been reasonably proved to be a minor at the time of the alleged incident her age was 16 years and six months while that of the accused was 22 years. If we refer to the deposition of Dr. Anuva Dey it is clearly seen that the victim admitted her prior relationship with the accused. Moreover the victim did not allege any incident of rape to the doctor. Not only did the pregnancy test yield a negative result there was merely an old and healed tear over the hymen as it appears from the medical report. 24. PW4 both in his evidence and in his report corroborated that no injury or mark was found on the body or the private parts of the victim indicating the commission either of the offences alleged against the appellant. As far as the evidence of the prosecution witnesses is concerned there is patent discrepancy inter se the depositions of the various witnesses which leave major gaps in the chain of events leading to the offences alleged by the prosecution. 26. The victim as PW2 specifically mentioned that she had “shouted” at the time of the incident in her cross examination. However it has come out from the prosecution witnesses’ deposition that the place of occurrence was a crowded one. Even the sketch map prepared by the Investigating Officer corroborates such fact. In fact the place of occurrence was situated between a pharmacy and a sweet shop. A burial ground was located near the room where the alleged incident took place according the deposition of PW1 that is the mother of the 27. PW1 in her cross examination mentioned about the victims’ father and brother having accompanied her when she lodged the complaint but none of them were produced as prosecution witnesses. The time mentioned by the PW1 is 2:00 p.m. on August 12 2917 but the complaint was apparently lodged on August 16 2017 when the accused and her relatives also went. 28. The delay of four days in lodging the complaint itself might not have been fatal to the prosecution case if there was no other evidence to create suspicion as regards the delay. Although the reason for delay might have been that the victim’s family tried to reconcile the matter with the accused by eliciting a promise of marriage as well as due to the delay in the complaint being written by a law clerk as stated in the cross examination of the PW1 the timings as borne out by the cross examination of the PW 2 are not commensurate with the assessment of a person of reasonable prudence. It is admitted in the complaint by the mother of the victim that from six months previous to the complaint being lodged the accused “insisted” the victim in different ways and by “making her fool” he slept with her The time of the alleged incident was stated by the victimin her cross examination to be around 1:00 p.m. to 1:30 p.m. on August 12 several times. 30. As per the same cross examination the victim claimed to have stated about the fact to her mother at about 4 5:00 p.m. 31. However the victim’s mother called the accused later on during the same evening at around 7:30 8:00 p.m. when the victim stated her brother and parent told the accused to marry the victim. Such circumstances raise sufficient doubt as regards the reason for the delay in lodging the complaint. It might very well have been that the complaint was lodged merely to create pressure on the accused to marry the victim despite the serious crime of rape having been allegedly committed upon her. 32. Moreover PW1 admitted in her cross examination that there is a bus stand which is a busy place near the place of occurrence. The shop run by the family members of the victim PW1 admits is opened around 7:00 a.m. and closes around 2:00 p.m. and thereafter opened again. Hence during the occurrence of the alleged incident as per the victim’s version the shop ought to have been open at 1 1:30 pm which is the alleged time of occurrence. Although the victim in her cross examination stated that she had disclosed the fact of the alleged incident to her mother at about 4 5:00 p.m. it was elicited in the cross examination of the mother of the victim that the victim told her about the incident at around 2:00 p.m.. Moreover it was admitted by PW1 in her cross examination that they went to the police station at around 2:30 p.m. on that date. Such admission is patently contrary to the admission of the PW2 the victim in her cross examination that she stated about the incident to her mother only at around 4 5:00 p.m. which is much after the victim’s family went to the police station according to PW1 to lodge the complaint. Hence the version of the PW1 and PW2 regarding the timings of the chain of events do not tally at all. In the present case both the PW1 and the PW2 admitted a previous relationship between the accused and the victim. Admittedly the victim was a student of class XII while the accused studied in the 2nd year of college at the time of the alleged incident. 34. Such facts taken in conjunction clearly indicate that there were several previous occasions of consensual physical relationship between the parties. Thus sufficient doubt as regards any offence having been committed under Section 376(1) IPC is raised although a minor’s consent is of no significance. 35. The medical report of Dr. Anuva Dey who examined the victim on August 17 2017 clearly shows that apart from an old and healed tear over the hymen there was no external injury on her person thereby ruling out any force having been applied on the victim at the relevant juncture. The healed tear according to the said Doctorin her cross examination might have been three months old. No external or internal injury was seen on the private parts of the victim or on her body as a whole by the said Doctor. 36. Dr. Avik Das who examined the accused on August 23 2017 did not find any mark of injury on the victim’s private parts or her body. 37. As regards the allegations under Section 3 and 4 of the POCSO Act are concerned technically the victim was a “child” as defined in Section 2(d) of the POCSO Act which means any person below age of 18 years fulfils the definition of a child. 38. However in order to apply Section 29 of the POCSO Act the prosecution has to make out a strong case which has to be natural trustworthy and worth being relied upon. The evidence of the prosecutrix must inspire confidence. 39. As held in Ganesan Vs. State reported at 10 SCC 573 conviction can be granted on the sole testimony of the victim only where such testimony found reliable and trustworthy and unblemished. The witness of the victim is reliable by itself if she is a “sterling” witness being of very high quality and calibre whose version is in unassailable as per the cited report. 40. Section 3 of the POCSO Act on the other hand describes penetrative sexual assault as follows: “3. Penetrative sexual assault.—A person is said to commit “penetrative sexual assault” if— a) he penetrated 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 b) 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 c) 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 d) 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.” 41. The punishment for such offence is described in Section 4 of the 42. The pre requisite of penetrative sexual assault is penetration which in the present case was of the penis of the accused as per the POCSO Act. prosecution case. 43. The appropriate connotations of ‘child’ and ‘penetration’ as defined in the POCSO Act have to be read in proper perspective. Since Section 29 casts a reverse liability on the accused to prove his innocence which is contrary to the normal rule of evidence in criminal jurisprudence the same has to be interpreted strictly and applied in the appropriate sense as intended by the Legislature. 44. The POCSO Act was rightly introduced to offer protection to innocent children from several offences. However a Draconian interpretation of the provisions thereof would merely convert it into a tool of abuse of the process of law instead being a protective shield against defenceless minors. 45. Keeping in view the definition of ‘child’ in Section 2(d) of the said Act even a person who is aged 17 years and 364 days would qualify as a child but her maturity would not be much different from another person who was just one day older than her that is 18 years old. 46. The court’s interpretation of a statute cannot be with eyes closed to practical realities and have to be construed in proper perspective keeping in view the objects and reasons of the Act. The stated object of the Act is to protect children from offences of sexual assault sexual harassment and pornography and to provide for establishment of Special Courts for trial of such offences for matters connected therewith or incidental thereto. As such while construing the expression ‘child’ in appropriate perspective the age maturity and other circumstances also becomes relevant to clinch a case on the ground of penetrative sexual assault. In the present case the victim girl was admittedly 16 ½ years old and studied in Class XII at the relevant point of time. She was not naïve enough not to know the implication of sexual intercourse rather the victim admittedly had a physical relationship with the accused who was also of a very young age on several occasions prior to the incident. Although the consent of a minor is not a good consent in law and cannot be taken into account as ‘consent’ as such the expression ‘penetration’ as envisaged in the POCSO Act has to be taken to mean a positive unilateral act on the part of the accused. Consensual participatory intercourse in view of the passion involved need not always make penetration by itself an unilateral positive act of the accused but might also be a union between two persons out of their own volition. In the latter case the expression ‘penetrates’ in Section 3(a) of the POCSO Act might not always connote mere voluntary juxtaposition of the sexual organs of two persons of different genders. If the union is participatory in nature there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders. The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male. Hence seen in proper perspective the act alleged even if proved could not tantamount to penetration sufficient to attract Section 3 of the POCSO Act keeping in view the admitted several prior occasions of physical union between the accused and the victim and the maturity of the victim. 48. As such it cannot be said that the accused was guilty of penetrative sexual assault as such since here the act of penetration even if true would have to be taken not as an unilateral act of the accused but a participatory moment of passion involving the participation of both the victim and the accused. 49. Although the question of consent does not arise in case of a minor in order to attract Section 376(1) of the IPC it had to be established that the alleged offence was committed against the will of the victim. Read in conjunction the provisions of Section 376 of the IPC and Section 3 of the POCSO Act ought to be construed on a similar footing and cannot incriminate the accused for a voluntary joint act of sexual 50. That apart in the present case the prosecution failed to establish the chain of events leading to the alleged offence which would raise a presumption under Section 29 of the POCSO Act. Not only were there gross discrepancies between the depositions of the witnesses it was beyond credibility as to how the police could be approached by the victim’s family at 2.30 p.m. when the victim admits to have disclosed the incident to her mother at only about 4 5 p.m. the same day. 51. Moreover the meeting of the victim’s family with the accused on the same evening not for a confrontation but with a proposal of marriage is not compatible with the allegation of rape or penetrative sexual assault. The provisions of the POCSO Act should be given an appropriate construction for the protection of children and not as a tool of abuse to compel a person to marry another. In the instant case even if the prosecution case is taken into consideration no strong preponderance of probability was established in support of the prosecution case sufficient to raise a presumption under Section 29 of the POCSO Act and shifting the negative onus on the accused to prove his innocence. 53. Even if it is deemed that Section 29 of the POCSO Act were to be applied the defence has been able to show sufficient discrepancies and chinks in the chain of events sought to be established by the prosecution thereby demolishing the prosecution case and discharging the onus of the accused as cast under Section 29 of the POCSO Act. 54. Although not directly relevant to the offence the Court cannot be blind to the practical realities of life. The accused as well as the victim are at present leading marital lives with strangers to the case separately. As such the Court ought to be doubly cautious in putting a stigma on either the accused or the victim. 55. The POCSO Act defines anyone under eighteen years of age as a ‘child’ but to convict a person for penetrative sexual assault the psyche maturity and previous conduct of the victim vis à vis the accused also acquires relevance. In the present case the previous relation between the victim and the accused and their physical union on several occasions raise a strong presumption of the alleged incriminating act being participatory at both ends not a unilateral act of the accused. 56. On a contextual interpretation of the expression ‘penetration’ as used in Section 3 of the POCSO Act and Section 376(1) of the IPC no unilateral forcible act of penetration solely on the part of the accused was established on the basis of the evidence on record. On the contrary a prior relationship between the two comparatively mature persons has been admitted in the present case leading to the alleged incident. The four days’ delay in lodging complaint ought to be taken with a pinch of salt to vitiate the prosecution case since the same might have been only for the reason of compelling the accused to marry the victim. Such attempt in any event has become redundant at least in view of the present marital status of both the victim and the accused. That apart the sequence of events show that the police were approached by the victim’s family on the day of the alleged offence itself but the same night the family had met the accused and only on refusal to marry the victim the complaint was lodged four days later as a back lash. 58. Merely taking advantage of the literal definition of the term ‘child’ the accused appellant cannot be proved to be guilty of an offence under Section 3 of the POCSO Act or Section 376(1) of the IPC sufficient to convict and sentence the petitioner on such counts. 59. Although several judgments have been cited by counsel in support of the proposition that the conviction can be based solely on the oral evidence of the prosecutrix and her subsequent conduct such qualification of subsequent conduct and the credibility of the prosecution case are necessary ingredients which are to accompany the evidence of the victim to attach sufficient weight to such evidence which is missing in the present case in view of the several contradictions as well as the existence of several missing links in the chain of events sought to be made out by the prosecution. 60. Hence the judgments of conviction and sentence impugned in the present appeal are vitiated by errors of law as well as fact and based upon an erroneous interpretation of the provisions of the POCSO Act as well as the IPC. 61. Accordingly CRA No.4518 is allowed thereby setting aside the judgment and orders of conviction and sentence dated July 25 2018 and July 26 2018 passed by the Additional Sessions Judge at Kandi District Murshidabad in Sessions Trial No.04(04) 2018 arising out of C. Spl. No.917

Application to condone the delay in filing the review petition allowed for having sufficient cause- Manipur high court

Application to condone the delay in filing the review petition allowed for having sufficient cause- Manipur high court Sufficient cause was found in the delay of filing the review petition by 215 days and application was allowed by a single judge bench of HON’BLE MR. JUSTICE M.V. MURALIDARAN  in the case of Dr. Khwairakpam Loken Singh versus Shri Rajkumar Imo Singh  (MC[Rev.P.(J2)] No.1 of 2019Ref: Rev.Petn. No.in El. Petn. No.5 of 2017) The learned counsel for the applicant submits that during the proceedings of the election petition,  two miscellaneous cases two cases were filed being MC (EP) Nos.16 and 15, on 10.5.2018 and further submits that the delay that has occasioned in preferring the review petition is not intentional, not willful and mala fide and that the delay was absolute because of the non-communication to the applicant by his local council and as such the review petition could not be filed immediately. The Learned counsel further submitted that since the primary prayer for calling of documents from the election authority has been rejected and the election petitioner has not been able to modify the order from the Apex Court. It is also the main election petition list of documents and witnesses of respective parties that have been filed on 21.10.2019 and this Court have directed for production of P.W. No.1 for evidence on 7.11.2019 and on the request of the election petitioner, the matter was adjourned from time to time. The learned senior counsel submits that the applicant has not properly explained the reason for causing the delay and since the order dated 15.4.2019 for which review is sought is well within the knowledge of the election petitioner, the present application for condonation of delay is liable to be rejected. The court considered the submissions raised from both the parties and finds that the application for condonation of delay was filed on the ground that the applicants has no knowledge about the passing of such order and he came to know the order dated 15.4.2019 only on 16.12.2019 when the first respondent applied to reject the list of documents filed by the election petitioner .considering the facts the court is of the view that sufficient cause has been shown by the application for the delay and this Court is also satisfied for the reasons offered by the applicant. The word ‘sufficient cause’ in Section 5 of the Limitation Act should receive a liberal construction to advance substantial justice when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction, or negligence on the part of the applicant. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5 of Limitation Act. Accordingly, the court allowed the present application. Click here to read the judgement

IN THE HIGH COURT OF MANIPUR AT IMPHAL MC[Rev.P.(J2)] No.19 Ref: Rev.Petn. No. in El. Petn. No.17 Through Video Conference) Dr. Khwairakpam Loken Singh aged about 57 years S o Kh. Kulla Singh Resident of Sega Road Tekhellambam Leikai P.S. & P.O. Imphal District Imphal Manipur 795001 …. Applicant s Versus Shri Rajkumar Imo Singh S o R.K. Jaichandra Singh Resident of Sagolband Bijoy Govinda P.O. & P.S. Imphal District ImphalManipur 795001. Respondent s HON’BLE MR. JUSTICE M.V. MURALIDARAN For the Applicant Mr. M. Gunedhor Advocate For the Respondent Mr. H.S. Paonam Sr. Advocate Date of Hearing Judgment & Order MC[Rev.P.(J2)] No.19 Ref: Rev.Petn.(J2) No. in El. Petn. No.17 Page 1 JUDGMENT &ORDER This application has been filed by the applicant to condone the delay of 215 days in filing the review petition against the order dated 15.4.2019 passed in MCNo.118. The applicant is the election petitioner in Election Petition No.5 of the respondent. Heard Mr. M. Gunedhor applicant election petitioner and Mr. H.S. Paonam learned senior counsel for Learned counsel for the applicant submitted that during the proceedings of the election petition he had filed two miscellaneous cases being MCNos.16 and 15 on 10.5.2018 and both the cases were listed on several occasions and heard on different dates. However on 14.1.2019 after conclusion of hearing of MCNo.118 the same was dismissed and against the said order dated 14.1.2019 SLP No.108019 was preferred and same is pending. MC[Rev.P.(J2)] No.19 Ref: Rev.Petn.(J2) No. in El. Petn. No.17 Page 2 Learned counsel for the applicant further submitted that while MC(EP) No.16 of 2018 was dismissed MC No.15 of 2018 was not disposed of on the same date and though the first respondent filed objection to MCNo.118 he has not filed objection to MCNo.118. He would submit that after filing SLP the election petitioner was not in communication with his local counsel and on 16.2.2019 when the first respondent filed an application for rejecting the list of documents filed by the election petitioner the applicant came to know about the order dated 15.4.2019. Aggrieved by the order dated 15.4.2019 the applicant is preferring a review to review the order dated 15.4.2019 with a delay of 215 days. According to learned counsel for the applicant the delay that has occasioned in preferring the review petition is not intentional not willful and mala fide and that the delay was absolutely because of the non communication to the applicant by his local counsel and as such the review petition could not be filed immediately. Arguing so learned counsel the applicant prays condonation of the delay of 215 days in filing the review petition. On the other hand learned counsel for the first respondent submitted that as early as on 25.9.2018 the main election petition was taken Up on board and learned counsel appearing for the parties have also appeared Subsequently hearing MC[Rev.P.(J2)] No.19 Ref: Rev.Petn.(J2) No. in El. Petn. No.17 Page 3 was taken up on 27.11.2018 along with MCNos.16 and 118 and order in respect of MCNo.118 was passed on 14.1.2019 rejecting the same. Aggrieved by the same the election petitioner preferred SLP. Learned counsel further submitted that since the primary prayer for calling of documents from the election authority has been rejected and the election petitioner has not been able to modify the order from the Apex Court the main election petition along with the connected MC No.15 of 2018 could be taken up only in April 2019 and on 15.4.2019 MC No.15 of 2018 was also dismissed by observing that the connected MC No.i6 of 2018 being rejected and the pending MCNo.118 was also liable to be rejected. Mr. H.S. Paonam learned senior counsel next submitted that in the main election petition list of documents and witnesses of respective parties have been filed on 21.10.2019 and this Court have directed for producing of P.W. No.1 for evidence on 7.11.2019 and on the request of the election petitioner the matter was adjourned from time to time. He would submit that when the petitioner attempted to mark documents which were already rejected by this Court in MCNos.16 and 118 the first respondent filed MC MC[Rev.P.(J2)] No.19 Ref: Rev.Petn.(J2) No. in El. Petn. No.17 Page 4 EP) No.27 of 2019 praying for rejecting of the list of documents filed by the election petitioner. According to learned counsel instead filing any objection to the said application the election petitioner filed the present application for condonation of delay of 215 days for seeking to review the order dated 15.4.2019 passed in MCNo.118. The Learned Sr. counsel then submitted that since the applicant has not properly explained the reason for causing the delay and since the order dated 15.4.2019 for which review is sought for is well within the knowledge of the election petitioner the present application for condonation of delay is liable to be rejected. According to learned counsel the applicant has failed to show the sufficient cause for the delay. In support he has relied upon the decisions of the Hon’ble Supreme Court in the case of Balwant Singh dead) v. Jagdish Singh and others 8 SCC 685 and University of Delhi v. Union of India and others 13 SCC 745. This Court considered the submissions raised by the parties and also perused the materials available on record. The applicant has primarily filed this application seeking to condone the delay of 215 days in filing the review order dated 15.4.2019 MC[Rev.P.(J2)] No.19 Ref: Rev.Petn.(J2) No. in El. Petn. No.17 Page 5 passed in MC No.15 of 2018 on the ground that he has no knowledge about the passing of such order and he came to know the order dated 15.4.2019 only on 16.12.2019 when the first respondent filed an application for rejecting the list of documents filed by the election petitioner. It appears that the pending election petition the applicant took out two applications namely MC No.16 of 2018 and MC No.15 of 2018 for calling for certain documents from the respective authorities indicated in the schedule and upon receipt of the same to take certified copies thereof. Admittedly by the order dated 14.1.2019 MC No.16 of 2018 was dismissed against which the applicant has filed SLP and the same is pending. Subsequent to the dismissal of MC No.16 of 2018 on 15.4.2019 MC EP) No.15 of 2018 was dismissed by this Court. The order dated 15.4.2019 reads thus: “This Court by an order dated 14.01.2019 dismissed the MC El.Petn.) No.16 of 2018 having the same prayer as it is sought for in the present MC No.118. MC[Rev.P.(J2)] No.19 Ref: Rev.Petn.(J2) No. in El. Petn. No.17 Page 6 Hence this MCNo.118 is also dismissed as it has the same prayer and relief as sought for in MC No.118. MC stands dismissed as above.” Taking advantage of the dismissal of MCNos.16 and 15 of 2018 the applicant seeks rejection of the documents filed along with the election petition as the same has been denied by this Court vide orders dated 14.1.2019 and 15.4.2019 respectively in MCNo.219 and by way of separate order this Court dismissed the said application on the ground that while dismissing MC No.16 of 2018 this Court observed that the documents in Schedule I are official documents and if need arises during the course of the trial a responsible officer working in the Election Commission of India can be examined as witness to verify the factum of the said documents being issued by the Election Commission of India. This Court has not curtailed and or prevented the election petitioner from proceeding with the trial of the election petition and also not prevented the election petitioner from marking documents. In the order dated 14.1.2019 this Court clearly stated that since the existence of the documents was not denied by the applicant herein the same are not required to be called for. When such being the observation of MC[Rev.P.(J2)] No.19 Ref: Rev.Petn.(J2) No. in El. Petn. No.17 Page 7 this Court it cannot be said that since the prayer for calling for the documents was rejected the election petition has to be dismissed or be kept in abeyance as trial cannot be proceeded. In fact as against the order dated 14.1.2019 passed in MC No.16 of 2018 the election petitioner has preferred SLP No.108019 and admittedly the same is still pending. Coming to the delay occurred in filing the review application is concerned this Court finds that the reason stated by the applicant is satisfactory and reasonable. It is also admitted by the first respondent that on the date of passing order in MCNo.118 order in MCNo.15 of 2018 has not been passed and order in the said application was passed on 15.4.2019. The applicant also pleads that there was no communication from his counsel and therefore the delay occurred in filing the review application. To rebut the same the first respondent has not produced any material. Therefore this Court is of the view that sufficient cause has been shown by the application for the delay and this Court is also satisfied for the reasons offered by the applicant. The words “sufficient cause for not making the application within the period of limitation” should be understood and applied in a reasonable MC[Rev.P.(J2)] No.19 Ref: Rev.Petn.(J2) No. in El. Petn. No.17 Page 8 pragmatic practical and liberal manner depending upon the facts and circumstances of the case and the type of cases. The words “sufficient cause” in Section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice when the delay is not on account of any dilatory tactics want of bona fides deliberate inaction or negligence on the part of the In the instant case it is not the case of the first respondent that the applicant has adopted dilatory tactics. The law is well settled that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5 of Limitation Act. If sufficient cause is not proved nothing further has to be done the application for condoning delay has to be dismissed on that ground alone. If sufficient Cause is shown then the Court has to inquire whether in its discretion it should condone the delay. As stated supra the applicant has explained the cause for such delay and considering all relevant facts this Court is of the view that the MC[Rev.P.(J2)] No.19 Ref: Rev.Petn.(J2) No. in El. Petn. No.17 Page 9 applicant has shown sufficient cause for excusing the delay and accordingly this Court exercising its discretion is inclined to condone the delay. No prejudice would be caused to the other side if the delay is condoned. On the other hand if the delay is not condoned the applicant would be put to irreparable loss and damage as it appears from the order dated 15.4.2019 that the same has been passed in view of the dismissal order passed in MCNo.118. Further the order dated 14.1.2019 in MCNo.118 is now under challenge before the Hon’ble Supreme Court in SLP. In order to give a chance to the applicant and also taking note of the over all circumstances of the case the delay in filing the review application to review the order dated 15.4.2019 passed in MCNo.118 is condoned and the present application is liable to be allowed. Accordingly this Misc.Case in MC No.1 of 2019 is Registry is directed to issue copy of this order to both the parties allowed. No costs. through their whatsapp e mail. Larson MC[Rev.P.(J2)] No.19 Ref: Rev.Petn.(J2) No. in El. Petn. No.17 Page 10

In a commercial dispute, a notice asking for arbitration ought not to be construed too strictly: Calcutta High Court

A notice seeking for arbitration of dispute between the concerned parties should not be shrouded with technicality. The bench in Universal Consortium of Engineers v Sri Kanak Mitra AP 279 of 2020 has delved into the domain of parties seeking arbitration. The single judge bench of Arijit Banerjee J. opined that a notice for arbitration should not be construed with over-emphasis. This is an application under Section 11 of the Arbitration and Conciliation Act, 1996 (in short ‘the Act of 1996’), for appointment of an arbitrator for adjudication of disputes and differences that have arisen between the parties in relation to a Development Agreement dated December 15, 2006 (in short, ‘the said Agreement’) entered into by and between the parties. The respondents opposed the application primarily on two grounds. Firstly, it was argued that no notice under Section 21 of the Act of 1996 was given by the petitioner to the respondents. In the absence of such a notice, the present application is premature and not maintainable. Secondly, the respondents have filed a complaint against the petitioner before the National Consumer Forum, New Delhi, in relation to disputes arising out of the said Agreement. It was submitted that initiation of an arbitration proceeding by appointment of an arbitrator would mean that there will be parallel proceedings which ought not to be permitted. As regards the main contention of the respondents that the application could not be allowed since the petitioner has not served any notice under Section 21 of the Act of 1996 on the respondents, the same also is unacceptable. Section 21 merely laid down as to when the arbitral proceedings in respect of a particular dispute will be deemed to have commenced, which is when a request for the dispute to be referred to arbitration is received by the respondent. The bench further reasoned that, the letter dated 01.02.2019 written by the petitioner, when read in a commercial perspective, clearly constitutes a notice under Section 21 of the Act of 1996. It was opined that over the top technicality should not be resorted to in interpreting such a notice. If the intention of the party issuing the notice is clear that he desires arbitration, it should suffice. An overly legalistic approach is not to be adopted. In a commercial dispute, a notice asking for arbitration ought not to be construed too strictly. With reference to the second contention of the respondents regarding pending of proceedings between the parties hereto before the National Commission, the same was wholly meritless. The petitioner was a developer and contends that it had mistakenly handed over more constructed area to the respondents than they were entitled to under the Development Agreement. The petitioner, by no stretch of imagination could be considered to be a ‘Consumer’ within the meaning of the Consumer Protection Act. Hence, pendency of the proceedings before the National Commission cannot be a ground for disallowing the present application.

IN THE HIGH COURT AT CALCUTTA Original Civil Jurisdiction Original Side) AP 2720 Universal Consortium of Engineers Pvt. Ltd. Sri Kanak Mitra & Anr. Before: The Hon’ble Justice Arijit Banerjee For the Petitioner For the Respondents Heard On CAV On Judgment On 12.02.2021 07.04.2021 Mr. Uday Chandra Jha Adv. Mrs. Maheswari Sharma Adv. Ms. Tulika Roy Adv. Mr. Manab Ranjan Sarbadhikari Adv. Mr. Soupal Chatterjee Adv. 04.02.2021 10.02.2021 & 12.02.2021 Arijit Banerjee J.: This is an application under Section 11 of the Arbitration and Conciliation Act 1996 for appointment of an arbitrator for adjudication of disputes and differences that have arisen between the parties in relation to a Development Agreement dated December 15 2006 entered into by and between the parties. It is not in dispute that the said Agreement contains an arbitration clause for resolution of disputes and differences between the parties touching the said Agreement. Schedule ‘F’ to the Development Agreement dated 15.12.2006 which contains the Arbitration Clause reads as follows: SCHEDULE ‘F’ A R B I T R A T I O N 1. All disputes and differences between the parties hereto arising out of this agreement regarding this constructing or interpretation of any of the terms and conditions herein contained or determination of any liability or touching these presents shall be referred to the arbitration and the same shall be deemed to be a reference within the meaning of the Arbitration and Conciliation Act 1996 or any statutory enactment or modification thereunder and the Award so delivered shall be conclusive and binding on the parties hereto. 2. The Arbitrator shall have summary power. 3. The parties hereto agree and covenant with each other that they have full trust and faith in the Arbitrator and agree not to challenge and or dispute the same in any manner whatsoever or howsoever.” 3 The respondents opposed the application primarily on two grounds. Firstly it was argued that no notice under Section 21 of the Act of 1996 was given by the petitioner to the respondents. In the absence of such a notice the present application is premature and not maintainable. Secondly the respondents have filed a complaint against the petitioner before the National Consumer Forum New Delhi in relation to disputes arising out of the said Agreement. It was submitted that initiation of an arbitration proceeding by appointment of an arbitrator would mean that there will be parallel proceedings which ought not to be permitted. Although a third ground has been indicated in the written notes of argument filed by the respondents i.e. the said Agreement is not registered as required under Section 17 of the Registration Act this point was not argued when the matter was heard. In any event this point can be rejected at the threshold since the said Agreement being of the year 2006 there was at that time no requirement for registering the said Agreement. In support of his contention that for initiation of an arbitration proceeding issuance of notice under Section 21 of the Act of 1996 is mandatory learned Counsel appearing for the respondents has relied on several decisions. Prior to noting such decisions it may be helpful to set out Section 21 of the Act of 1996: “21. Commencement of arbitral proceedings.Unless otherwise agreed by the parties the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. ” Learned Counsel relied on the decision of the Delhi High Court in the case of Alupro Building Systems Pvt. Ltd. v. Ozone Overseas Pvt. Ltd.: 2017 SCC Online Del 7228. Learned Counsel particularly relied on Paragraphs 25 and 30 of the said judgment which are set out hereunder: “25. A plain reading of the above provision indicates that except where the parties have agreed to the contrary the date of commencement of arbitration proceedings would be the date on which the recipient of the notice receives from the claimant a request for referring the dispute to arbitration. The object behind the provision is not difficult to discern. The party to the arbitration agreement against whom a claim is made should know what the claims are. It is possible that in response to the notice the recipient of the notice may accept some of the claims either wholly or in part and the disputes between the parties may thus get narrowed down. That is one aspect of the matter. The other is that such a notice provides an opportunity to the recipient of the notice to point out if some of the claims are time barred or barred by any law or untenable in fact and or that there are counter claims and so on. 30. Considering that the running theme of the Act is the consent or agreement between the parties at every stage Section 21 performs an important function of forging such consensus on several aspects viz. the scope of the disputes the determination of which disputes remain unresolved of which disputes are time barred of identification of the claims and counter claims and most importantly on the choice of arbitrator. Thus inescapable conclusion on a proper interpretation of Section 21 of the Act is that in the absence of an agreement to the contrary the notice under Section 21 of the Act by the claimant invoking the arbitration clause preceding the reference of disputes to arbitration is mandatory. In other words without such notice the arbitration proceedings that are commenced would be unsustainable in law. ” Learned Counsel relied on a decision of the Bombay High Court in the case of Bombay Gas Company Ltd. v. Parmeshwar Mittal & Ors.: AIR 1998 Bombay 118. Reliance was placed particularly on Paragraph 10 of the said judgment. With great respect I have not been able to appreciate as to why the said judgment was relied upon. In the context of Sections 34 and 21 the Arbitration Act 1940 the learned Judge held that an application under Section 34 surely implies readiness and willingness of the party to go for arbitration but it cannot be equated with a notice under Section 21 which constitutes commencement of an arbitral proceedings. In my opinion the said decision is not relevant for the purpose of the present case. Learned Counsel also referred to a decision of this Court in the case of Magma Leasing Ltd. v. NEPC Micon Ltd. & Anr: AIR 1998 Calcutta 1994. Again in my opinion this case has no relevance to the case in hand. The learned Judge was considering the meaning of the phrase ‘not later than when submitting his first statement on the substance of the dispute’ which appears in Section 8(1) of the Act of 1996. 8. Mr. Sarbadhikari then referred to the Hon’ble Supreme Court decision in the case of M s. Sundaram Finance Ltd. v. M s. NEPC India Ltd.: AIR 1999 SC 565. Again with great respect that case is in no way germane to the facts of the present case. In that case the Hon’ble Supreme Court explained that the Court can pass interim orders under Section 9 of the 1996 Act before or during the arbitral proceedings i.e. even before notice under Section 21 of the 1996 Act is received by the respondents. Finally learned Counsel referred to the judgment of the Hon’ble Supreme Court in the case of Union of India v. Parmar Construction Company: 2019CHN343. This case also in my opinion is in no way relevant for the purpose of deciding the issue in hand. 10. The facts of the case as placed before the Court by Learned Counsel for the petitioner and not disputed by Learned Counsel for the respondents are that a Development Agreement dated 15.12.2006 was entered into by and between the petitioner and the respondents and further that the unnecessary allegations against the petitioner were causing loss of reputation and goodwill to the company. It was further stated as “Even after receipt of this letter if you are not satisfied about the explanation you have option to refer the dispute to the Arbitrator. In case you feel the matter should be referred to the Arbitrator we are ready to do the same in terms of the Agreement entered into by and between the 12. Learned Counsel for the petitioner submitted that after receipt of the said letter the respondent no.1 wrote a letter dated 19.03.2019 repeating the same allegations. As such it is clear that there are disputes between the parties which are continuing. 13. Learned Counsel submitted that the letter dated 01.02.2019 was sufficient compliance with Section 21 of the Act of 1996. In this connection he relied on the following two decisions: Nea Agrex S.A. v. Baltic Shipping Company Ltd.: 1976 2 ALL ER 842 Unreported judgment of Delhi High Court in the case of Badri Singh Vinimay Pvt. Ltd. v. MMTC Ltd. delivered on 06.01.2020 in O.M.P 225 2015. Learned Counsel also relied on the Supreme Court decision in State of Goa v. Praveen Enterprises: 12 SCC 581 in support of his submission that an application under Section 11 of the Act of 1996 is itself a request for arbitration and is sufficient compliance with Section 21 of the Act. 14. As regards the other contention of the respondents Learned Advocate for the petitioner submitted that the Consumer Forum does not have jurisdiction to entertain the petitioner’s counter claim. Hence if the petitioner’s request for arbitration is declined on the ground that proceedings between the parties are pending before the National Commission under the Consumer Protection Act the petitioner’s claim will suffer casualty without being adjudicated. I have given my anxious consideration to the rival contentions of the 16. With reference to the second contention of the respondents regarding pending of proceedings between the parties hereto before the National Commission the same is wholly meritless. The petitioner is a Developer and contends that it has mistakenly handed over more constructed area to the respondents than they were entitled to under the Development Agreement. On that account the petitioner has a money claim against the respondents. This cannot be adjudicated by the National Commission under the Consumer Protection Act. The petitioner by no stretch of imagination can be considered to be a ‘Consumer’ within the meaning of the Consumer Protection Act. Hence pendency of the proceedings before the National Commission cannot be a ground for disallowing the present application. 17. As regards the main contention of the respondents that this application cannot be allowed since the petitioner has not served any notice under Section 21 of the Act of 1996 on the respondents the same also is unacceptable. Section 21 merely lays down as to when the arbitral proceedings in respect of a particular dispute will be deemed to have commenced which is when a request for the dispute to be referred to arbitration is received by the respondent. I am unable to read into Section 21 any mandate to the effect that a Section 11 application will not be maintainable unless a notice under Section 21 has been served by the petitioner on the respondent. To that extent with respect I am unable to agree with the decision of the Delhi High Court in the case of Alupro Building Systems Pvt. Ltd. it is inter alia to the effect that an application under Section 11 of the Act of 1996 is itself a request by the petitioner for arbitration. 18. However the above discussion becomes academic since in my opinion the letter dated 01.02.2019 written by the petitioner when read in a commercial perspective clearly constitutes a notice under Section 21 of the Act of 1996. Too much technicality should not be resorted to in interpreting such a notice. If the intention of the party issuing the notice is clear that he desires arbitration that should suffice. An overly legalistic approach is not to be adopted. In a commercial dispute a notice asking for arbitration ought not to be construed too strictly. In the case of Nea Agrex S. A. which involved a charterparty the charterers’ agents presented to the owners’ agents a detailed claim for damages demanding immediate payment and then they said “please advise your proposals in order to settle this matter or name your arbitrators.” The English Court of Appeal consisting of Lord Denning M.R. Goff L.J. and Shaw L.J. while considering whether such a communication could be considered as a notice requiring arbitration held as follows: “30. Mr. Rokison says that the request is equivocal. It gives the ship owners an alternative. It does not amount to an unequivocal request for arbitration. So it cannot be deemed to be the commencement of the arbitration. That seems to me too legalistic an approach. In a commercial dispute a letter requesting arbitration should not be construed too strictly. The writer should not be impaled on a time bar because he writes in polite and courteous terms or because he leaves open the possibility of settlement by agreement. Suppose the characters had written to the owners: “Unless you are prepared to settle the matter amicably we must ask you to agree to the appointment of an arbitrator”. That would to my mind be quite sufficient. When such a letter follows upon a genuine claim promptly made it should be interpreted as a request for arbitration a request made then and there coupled with a willingness to come to an amicable settlement. The arbitration is deemed to commence with the sending of the letter and time no longer runs against him. 31. Likewise with the letter in this case it can and should be construed as a request for the difference to be submitted to arbitration with a saving that the request will be withdrawn if a settlement can be reached. That is sufficient to commence the arbitration.” 19. The decision in Alupro Building Systems Pvt. Ltd.has been distinguished by a Learned Judge of the Delhi High Court in the case of Badri Singh Vinimay Pvt. Ltd. on facts and noted that in that case there was no notice to the respondents at all. However in the present case as I have recorded my opinion above the petitioner’s letter dated 01.02.2019 clearly contemplated disputes between the parties and resolution of such disputes through the process of arbitration in the event the disputes were not resolved amicably. In view of the aforesaid all the objections raised by the respondents to resist this application fail. This application is allowed. 21. Mr. Samrat Sen Senior Advocate Bar Library Club Calcutta High Court is appointed as sole Arbitrator to adjudicate the disputes between the parties in relation to the Development Agreement dated 15.12.2006. The Arbitrator will be free to fix his own remuneration. He will also be at liberty to engage secretarial staff to assist him in conducting the arbitral proceedings and to fix their remunerations. The remuneration of the Arbitrator and the secretarial staff will be borne equally by the parties. Since no venue of arbitration is mentioned in the arbitration clause the arbitration will be held in Calcutta at a place to be decided by the Arbitrator. 22. AP 2720 is accordingly disposed of. Urgent certified photocopy of this judgment and order if applied for be given to the parties upon compliance of necessary formalities. Arijit Banerjee J.)

For conviction, weapon recovery is not essential: Delhi High Court

The issue was in this case was whether a man found guilty of murder can be convicted when the weapon of crime was not recovered which was dealt by a bench of Delhi High Court  consisting of Justice Manoj Kumar Ohri in the matters between Saleem Khan v State (GNCTD) CRL. A. 491/2020 decided on 5.1.2022. The facts of this case are the accused is booked under section 307,324 and 506 of IPC for attempting to murder and causing grievous hurt to Yunus and his brother, for which he was sentenced to 6 years rigorous imprisonment with fine.According to Police, the injuries were caused by a knife which was not recovered.The accused appealed at the high court challenging the order of conviction. The appellant contended that the Investigating Officer did not record the statements of any public witnesses. The fact that the statements of the complainant and his brother contradicted materially in terms of the time when the incident occurred was immaterial as the appellant was already known to both the injured and them.The statements were consistent with all other aspects of the case. The complainant’s bloody clothes were not confiscated and the PCR Form was not presented but was rejected by the Supreme Court. Judging by the minutes of the incident, the claim has no value and was rejected and the Investigative Officer had not recorded the testimony of any public witnesses. The respondent contended that the statements of both Yunus and Sahil are consistent and reliable, as they both declared that they had been attacked by the appellant  whom they already knew. The Delhi High Court cited case of Loyalty Kotwar and Other v. Jharkhand State as observed and recognized in the judgments of this Court, no one can enter the mind of the accused and his intention must be high and the part of the body chosen for the attack from the weapon used and the nature of the injury caused. Considering the incident within the framework of the above-mentioned principles, it can be said that the use of a deadly weapon a knife blow to the stomach and the nature of injuries close to the chest are of vital importance. Given the nature of the corpses and wounds, it is justifiably accepted that the appellants committed the crime under Article 307.In the present case, the injuries sustained a knife and to the neck.The nature of the corresponding injury was considered severe.

IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.A. 491 2020 Reserved on : 01.12.2021 Date of Decision : 05.01.2022 IN THE MATTER OF: SALEEM KHAN THE STATEThrough: Mr. B. Badrinath Advocate ..... Appellant Respondent Through: Mr. Ashok Kumar Garg APP for State HON BLE MR. JUSTICE MANOJ KUMAR OHRI VIA VIDEO CONFERENCING) JUDGMENT MANOJ KUMAR OHRI J. The present appeal has been preferred under Section 374(2) read with Section 482 Cr.P.C. on behalf of the appellant challenging the judgment on conviction dated 24.10.2019 and the order on sentence dated 30.10.2019 passed by the learned Addl. Sessions Judge 02 Karkardooma Courts Delhi in Sessions Case No. 257 2017 arising out of FIR No. 244 2017 registered under Sections 307 324 IPC at Police Station Khajuri Khas Delhi. CRL.A. 491 2020 Vide the impugned judgment the appellant was convicted for the offences punishable under Sections 307 324 IPC and vide the order on sentence he was sentenced as follows: for the offence punishable under Section 307 IPC to undergo Rigorous Imprisonment for a period of 06 years alongwith payment of fine of Rs.5 000 in default whereof to further undergo Simple Imprisonment for a period of 03 months and for the offence punishable under Section 324 IPC to undergo Rigorous Imprisonment for a period of 01 year alongwith payment of fine of Rs.1 000 in default whereof to further undergo Simple Imprisonment for a period of 01 month. The benefit of Section 428 Cr.P.C. was extended to the appellant. All the sentences were directed to run concurrently and the fines have already been paid. The brief facts as noted by the Trial Court are as under: “1. In brief the facts of the prosecution case are that on 24.05.2017 ASI Surender Pal received DD No. 115B. On receipt of the DD ASI Surender Pal along with Ct. Jhabar Ram reached at the spot i.e. Purani Chowki Mustafabad Delhi. On reaching there they came to know that the injured had already been removed to GTB Hospital. Thereafter ASI Surender Pal along with Ct. Jhabar Ram reached GTB Hospital and collected the MLC No. A 4451 17 of injured Yunus S o Sh. Yusuf wherein the doctor had mentioned ‘physical assault and U O’. In the meantime brother of injured Yusuf namely Sahil also came in the hospital in an injured condition who was also got admitted in the hospital by ASI Surender Pal vide MLC No. C 1908 17 and the doctor had mentioned on his MLC as ‘physical assault fit & U O sharp’. Thereafter ASI Surender Pal recorded statement of injured Yunus wherein he stated that he is the permanent resident of Village Daurala PS Daurala Meerut UP and along with his CRL.A. 491 2020 family was residing on rent and works as sewing machine mechanic. On 24.05.2017 he along with his brother Sahil was going to buy some medicine and when at about 10.00 PM they reached at the corner of Block Gali No.7 Nehru Vihar accused Saleem who resided in Gali o.6 Dayalpur assaulted upon him with knife on his neck and right shoulder. When Sahilcame to rescue him he was also assaulted by accused Saleem and caused injuries to him. He further narrated that accused Saleem had met him in the day time and had said ‘tune hamare upar mukadma karaya hai mai tujhe aaj shaam tak jaan se maar dunga’ and also threatened him. On this Sahilcalled at 100 number PCR van came and took him and his brother Sahil to the GTB hospital.” After completion of investigation the charge sheet was filed under Sections 307 324 506 IPC. Vide order dated 06.09.2018 charges were framed against the appellant under Sections 307 324 IPC to which he pled not guilty and claimed trial. Learned counsel for the appellant contended that the testimony of complainant Mohd. Yunus is unreliable on account of prior enmity with the appellant which has been admitted by the complainant himself. It was submitted that neither the weapon of offence was recovered during investigation nor were the complainant’s blood stained clothes seized. Further the testimony of brother of the complainant Sahil was contended to be unreliable on the ground that Sahil had not accompanied his brother to the hospital. It was also submitted that the PCR Form pertaining to call on 100 number was not produced. Learned counsel also contended testimonies of complainant and his brother have material contradictions inasmuch as the complainant stated that the incident had occurred at about 10:00 p.m. but CRL.A. 491 2020 his brother stated that the incident occurred at about 8:00 p.m. It was further contended that Dr. Deepika who proved the nature of injuries recorded in the MLC of the complainant did not depose regarding preparation of the same. Lastly it was contended that the Investigating Officer had not recorded the statement of any public witness. In the alternative learned counsel submitted that the appellant was not pressing his appeal on merit and he may be released on the period already undergone by him. 7. Learned APP for the State on the other hand supported the impugned judgment and order. It was submitted that the testimonies of both Mohd. Yunus and Sahil are consistent with each other and reliable as both have deposed that they were assaulted by the appellant who was already known to them. I have heard learned counsels for the parties and have also gone through the Trial Court Record as well as the written submissions filed on behalf of the appellant. In support of its case the prosecution had examined a total of seven witnesses. The complainant injured Mohd. Yunus was examined as PW 1 the complainant’s brother Sahil who was also injured in the incident was examined as PW 2 Ct. Jhabar Ramand HC Rajender Singhwere examined to prove the arrest memo and registration of the FIR respectively Dr. Arvind Gautam who proved the MLCs of Mohd. Yunus and Sahil on behalf of Dr. Deepika was examined as PW 5 ASI Surender Pal the Investigating Officer of the case was examined as PW 6 Dr. Deepika who also proved the MLC of complainant Mohd. Yunus wherein nature of injury was opined as grievous by Dr. Ramandeep Kaur was examined as PW 7. CRL.A. 491 2020 10. The complainant Mohd. Yunus deposed in his testimony that he was residing alongwith his parents in a rented accommodation and worked as a mechanic of sewing machines. On the day of the incident i.e. on 24.05.2017 at about 10:00 p.m. while he was going alongwith his brother Sahil to take medicine the appellant came and assaulted him with a knife. The assault resulted in injuries to the witness on his neck and on front side of his right shoulder. When the complainant’s brother Sahil tried to save him he was also given a knife blow by the appellant on his left cheek. After being assaulted the brother of the witness made a complaint at 100 number whereafter PCR came to the spot and took them to the GTB Hospital. It was further deposed that the appellant had attacked the complainant on an earlier occasion as well with a hockey and danda regarding which complaint was given to the police and a case was registered. It was also deposed that in order to take revenge the appellant had asked the complainant about a day prior to the day of the incident to withdraw the earlier complaint. In this regard he was also given life threats. After about three days of the incident in question the appellant came to be arrested at the instance of the witness. He was also identified by the complainant in the Court. In cross examination the witness stated that on the date of the incident he went to buy medicine for himself as he was having eye pain due to injuries which were earlier caused by the appellant. He further stated that though he remained hospitalized for three days his brother was discharged on the same day. He denied the suggestion that injuries received by him were caused by some other person and not the appellant. A suggestion that the appellant was falsely implicated as the complainant’s family members had enmity with some other person or that the appellant was falsely CRL.A. 491 2020 implicated at the instance of complainant’s family members was also denied. He also denied the suggestion that he had not seen the face of the appellant at the time of incident. Sahil i.e. the brother of Mohd. Yunus deposed that two days prior to the incident the appellant had assaulted his brother in respect of which a complaint was lodged at the police station. He further deposed that on the day of the incident the appellant had caused injuries on the neck and other parts of the body of his brother with a chhurri. When he tried to save his brother he was also assaulted by the appellant with the chhurri on his left cheek whereafter the appellant ran away. Subsequently the witness had made a call to 100 number. While he went to call his family members the PCR Van took his brother Mohd. Yunus to GTB Hospital where he was also taken later by the police. In cross examinationthe witness denied the suggestion that he was not present on the spot at the time of the incident or that he had deposed falsely to implicate the appellant. 12. Dr. Arvind Gautam CMO GTB Hospital Delhi proved the MLC dated 24.05.2017 of Mohd. Yunus and deposed that it was prepared under his supervision by Dr. Deepika then JRand at his pointing out arrested the appellant on 27.05.2017. He also deposed that despite best efforts the weapon of offence could not be recovered. 15. The appellant’s statement under Section 313 Cr.P.C. was recorded wherein he stated that he was falsely implicated in the present case. Needless to state Mohd. Yunus was the star witness of the prosecution case being the complainant who suffered injuries at the time of the incident. The law on appreciation of testimony of an injured witness has been enunciated by the Supreme Court in a catena of decisions including State of Uttar Pradesh v. Naresh and Others reported as4 SCC 324 where it was held as under: “27. The evidence of an injured witness must be given due weightage being a stamped witness thus his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an CRL.A. 491 2020 injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. 9 SCC 719 Balraje v. State of Maharashtra6 SCC 673 and Abdul Sayeed v. State of M.P.10 SCC 259)” 17. A perusal of the material on record in the present case would show that the complainant Mohd. Yunus had clearly deposed that there was pre existing enmity between the accused appellant and him as earlier also the appellant had caused injuries to him and in pursuance thereto a police complaint was made. In the incident in question the complainant received injuries on the neck and on front shoulder which are corroborated by his MLC and are alleged to have been caused by a chhurri. Sahil i.e. brother of the complainant was also injured in the same incident and he also deposed that it was the appellant who inflicted injuries on him and his brother with a chhurri. The testimony of Sahil is not only cumulative to the testimony of the complainant but also consistent and it finds corroboration from his own MLC which has been proved on the record as Ex.PW 5 B. During the trial the suggestion given on behalf of the appellant that the injuries were possible on account of fall was denied by Dr. Arvind Gautam as the injuries were sharp in nature. The incident is stated to have taken place at about 10:00 p.m. The complainant’s MLC was prepared on CRL.A. 491 2020 the same day at about 10:45 p.m. i.e. immediately after the incident. The FIR came to be registered at 03:30 a.m. and the appellant being already known was named in the FIR itself. It is seen that the testimonies of both the complainant Mohd. Yunus and his brother Sahil are consistent with their earlier statements and find support not only from each other but also from the respective MLCs which have been duly proved on record. In view of the aforesaid and the other evidence placed on record this Court finds the testimonies of the complainant Mohd. Yunus and his brother Sahil to be both creditworthy and reliable. 19. A contention was raised on behalf of the appellant with respect to non recovery of the weapon of offence. In connection therewith it is noted that the Supreme Court has observed in Rakesh and Another v. State of Uttar Pradesh and Another reported as 7 SCC 188 that recovery of the weapon of offence is not a sine qua non for convicting an accused. Albeit under Sections 302 34 IPC the Court in this case also opined that it was not possible to reject the ocular evidence of eye witnesses to the incident who were reliable and trustworthy. Combined with the fact that the testimonies of the complainant and his brother Sahil are cogent and consistent the contention raised on behalf of the appellant that the weapon of offence was not recovered has no merit. The same is rejected accordingly. 20. The next contention raised on behalf of the appellant was that the testimonies of the complainant and his brother exhibit material contradiction on the aspect of the time of the incident. While the complainant deposed that the incident occurred around 10:00 p.m. his brother Sahil deposed that the CRL.A. 491 2020 incident occurred around 08:00 p.m. In this regard it is noted that in the alleged history of offence recorded by the concerned Doctor in the MLC of Sahil it was mentioned that the physical assault took place around 10:00 p.m. as per the patient himself. Even otherwise the contradiction as suggested is immaterial insofar as the appellant was already known to both the injured persons and their testimonies are consistent on all other aspects of the incident. 21. Another contention raised on behalf of the appellant was that Dr. Deepika had not deposed about preparation of the complainant’s MLC. However this contention as well lacks merit as the said MLC was also proved by Dr. Arvind Gautam. Dr. Arvind Gautam categorically deposed that the complainant’s MLC was prepared under his supervision by Dr. Deepika who was working as a JR under him at the time. Further while appearing as PW 7 Dr. Deepika proved the nature of injuries appearing on the complainant’s MLC as grievous and no suggestion was given to her in cross examination that she had not prepared the complainant’s MLC. It was also contended on behalf of the appellant that the blood stained clothes of the complainant were not seized and the PCR Form was not produced. However in view of the fact that the complainant was medically examined within 45 minutes of the incident the contention bears no merit and is rejected. Insofar as the contention with respect to non examination of public witness is concerned suffice it to note that when the testimony of an injured complainant is consistent and finds support not only from his own MLC but also from the testimony of another injured then such a contention pales into insignificance. In this regard it is deemed expedient to refer to the decision CRL.A. 491 2020 of the Supreme Court in Sadakat Kotwar and Another v. State of Jharkhand reported as 2021 SCC OnLine SC 1046 where the Court observed as “7. …As observed and held by this Court in catena of decisions nobody can enter into the mind of the accused and his intention has to be ascertained from the weapon used part of the body chosen for assault and the nature of the injury caused. Considering the case on hand on the aforesaid principles when the deadly weapon dagger has been used there was a stab injury on the stomach and near the chest which can be said to be on the vital part of the body and the nature of injuries caused it is rightly held that the appellants have committed the offence under Section 307 IPC.” 24. Note is also taken of the fact that the injuries suffered by the complainant allegedly caused by a chhurri were inflicted on vital part of his body i.e. the neck. The nature of the corresponding injury was opined to be grievous. It was deposed by the complainant that earlier also he was assaulted by the appellant pursuant to which a complaint was lodged with the police. The appellant’s Nominal Roll also indicates that he is involved in FIR No. 235 2017 registered under Sections 308 34 IPC at Police Station Khajuri Khas Delhi. 25. The pre existing enmity between the appellant and the complainant the receipt of two injuries by the complainant during the incident out of which one was on vital part of the body i.e. neck the nature of the injury being opined as grievous would indicate that the appellant had the requisite intention as well as the knowledge that such injuries could have been fatal. Thus in the opinion of this Court the ingredients of the offence punishable under Section 307 IPC are clearly proved against the appellant beyond any shadow of doubt. On the same parameters even though there was no CRL.A. 491 2020 opinion on the nature of injury suffered by Sahil the receipt of injury by him was proved through his MLC. In view of the aforesaid analysis this Court concurs with the impugned judgment on conviction passed by the Trial Court. Accordingly the impugned judgment is upheld. 27. Learned counsel for the appellant prayed that a lenient view on the appellant’s sentence may be taken as the appellant has already undergone about 04 years and 06 months out of the total sentence of 06 years awarded to him and the fine imposed on him has already been deposited. It was further stated that the appellant at the time of incident was a little over 18 years of age and he belongs to a poor family. It was also stated that the appellant has responsibility of his parents as well as five brothers and sisters on him. 28. As per the Nominal Roll of the appellant available on record he has already undergone sentence of 04 years 05 months and 09 days as on 07.11.2021 alongwith remission of 06 months and 03 days and his unexpired portion of sentence is 01 year and 18 days. The fine amount is stated to have been deposited. His jail conduct for the last one year is also stated to be satisfactory. 29. Keeping in view the appellant’s age the period of incarceration his jail conduct for the last one year and other mitigating circumstances this Court deems it fit to modify the order on sentence and direct that the appellant be released on the period already undergone by him unless required in any other case. CRL.A. 491 2020 The appeal is dismissed insofar as challenge to the judgment on conviction is concerned however the order on sentence is modified to the aforesaid extent. 31. A certified copy of this judgment be communicated to the appellant through the concerned Jail Superintendent and also to the Trial Court. MANOJ KUMAR OHRI) JUDGE JANUARY 5 2022 CRL.A. 491 2020

Every agreement after the Initial Agreement between the State Electricity board and Consumer is supplementary or an Extension: Supreme Court

On a dispute regarding the interpretation of Jharkhand State Electricity Regulatory Commission Regulations, 2005 it was decided that as per the code, every agreement between the board and consumer is not a fresh one rather only an extension or supplementary to the First agreement. This Judgment was passed by the Hon’ble Supreme Court in the case of Jharkhand State Electricity Board and others vs. M/S Ramakrishna Forging Limited [C.A. No. 6145/2010] by a Double Bench consisting of Hon’ble Shri Justice Dinesh Maheshwari and Hon’ble Shri Justice Vineet Saran. The facts of the case are that the respondent is a small-scale industry and for its functioning, it had entered into a contract demanding or sanctioning a load of 4000 KVA from the appellants. When the respondent requested to reduce the load to 1325 KVA it was rejected. Following this, the respondent filed a writ before the Jharkhand High Court which was allowed. Aggrieved by the judgment of the High Court the appellant preferred an appeal before the Hon’ble Supreme Court. The sanction for the load was increased gradually from 325 KVA to 4000 KVA, from 2004 to 2007. It happened vide 4 contracts which were drafted from scratch every time the sanction for load increased from the respondents. The respondents alleged that they requested a decrease since they suffered major tripping and continuous shedding which affected the machinery. The appellants rejected the order stating that the agreement was valid for 3 years and under clause 9B the agreement could not be determined before the first three years. Furthermore, it also stated that the respondents will have to pay the said charges in case it terminated the contract. While the first contract between the respondents and appellant came into force in 2004, the Jharkhand state regulatory commission regulations came into force in 2005. The respondents contended that the contract may be technically fresh but was an extension to the previous contracts changing only the desired load. Placing reliance on Regulations 2(I), 9.1, and 9.2 of Regulations of 2005; the counsel contended that the 2007 agreement needs to be treated as an extension from the first agreement and thus be allowed. The Hon’ble Supreme Court held that while the consumer has the liberty to get the load enhanced under Regulation 9.1 they can also pray for a reduction under Regulation 9.2. On an analysis of the regulations and the agreements between the parties, the Supreme Court was of the opinion that as per Regulation 9.2.6 for both the increase in load and decrease in load, any agreement after the first one, shall be considered as supplementary agreements. It went on to hold that in all fairness while the regulations state that the increase or decrease in load can be done vide a written communication, the agreements are only supplementary to the first agreement.

The respondent is a small scale industry. For it had a contract the appellants­Jharkhand State Electricity Board Regulations 2005 read with Section 50 of the Electricity Act 2003 framed the Jharkhand State Electricity Regulatory Commission Regulations 2005 which came into effect from of contract demand sanctioned load no reduction of agreement which according to the appellants would be 07.07.2007 when a fresh agreement was executed for which was well within the period of three years from order dated 08.11.2007 as it was in conformity with for the respondent has submitted that the agreement even though technically fresh agreements may have been executed for enhancement of load of the the same were only extension amendment of the initial agreement dated increased contracted load. It has been contended by Regulations do not permit execution of a fresh agreement in case of enhancement of load and the agreements would merely be fresh agreement because it is the same electricity 14.04.2004 in which there have been amendments from time to time for increase of load and merely executing a fresh agreement for enhancement of load Regulations of 2005. It has thus been submitted that three years from the date of initial agreement dated 2005. In this regard reliance has been placed on For the ready reference the relevant provisions of the Regulations of 2005 are reproduced l) “Contract Demand” means demand in Kilowatt or Kilo Volt amperes or H.P Details of modification alteration and removal of electrical installation with the consumer with safety clearance certificate from competent authority as 9.2.3 The Distribution Licensee shall consider the application verify the same Load in writing within 30 days of the Provided that if the distribution licensee Demand Sanctioned Load it shall do so after affording the consumer reasonable opportunity of being heard in the matter and after communicating in writing the within 30 days of the application the consumer shall send a notice to the licensee requesting for disposal in the matter and if the decision is still not communicated within 15 days of the The reductions of Contract Demand Sanctioned Load shall be 16th day after the issue of notice to the The reduction of Contract effect from the first day of the month Contract Demand Sanctioned Load the consumer shall execute a supplementary agreement and the licensee shall recalculate the Security Deposit excess by way of adjustment in the minimum number of succeeding bills of the The communication dated 08.11.2007 of the Electrical Superintending Engineer of the Board “Sub: Regarding the reduction of load from 4000 KVA to 1325 KVA in respect of M s R.K Forging Ltd. Conn. No. HJAP­ applied for reduction of C.D from that C 9B of agreement may kindly be the expiration of three years from the date of commencement of the supply of energy of the Regulations also defines “contract demand” to be demand mutually communication meaning thereby that for variation of It is noteworthy that the Jharkhand State electricity which has laid down its own terms and electricity load varied for running its industry. The load to be varied even through a written communication then in our considered view in all fairness though fresh agreements may have been executed at the stage of enhancement of load of the as anything but an extension amendment or modification of the initial agreement granting the the Board the consumer may have been required to sign fresh agreements for each enhancement of load but the enhancement being for the same electricity connection which still continues it would merely be Reverting to the order dated 08.11.2007 application dated 20.09.2007 of the respondent for reduction of load to be that for determination of the agreement under Clause 9B of the agreement which application in fact ought to have been considered under Regulation 9.2 of the Regulations of 2005 the respondent for reduction of load was within the period of three years because as we have discussed hereinabove the agreement to be considered in the The judgments of this Court rendered in Bihar State Electricity Board Patna and Others v SCC 731 Orissa State Electricity Board v. Orissa Tiles Limited Supp. 3 SCC 481 Andhra Steel Electricity Board and Others 3 SCC 263 and facts in as much as they all relate to minimum ought to have been allowed by the Board in terms of into the question as to whether the provisions of Regulation 9.2.1 are discriminatory arbitrary and against the public policy as has been held by the Jharkhand High Court vide its judgment dated The appeal is accordingly dismissed. No The application of the respondent dated 20.09.2007 for reduction of contract load sanctioned have been allowed under the provisions of Regulation

Bail once granted should not be cancelled in a mechanical manner without considering: High Court Of New Delhi

The present bail application has been filed by the petitioner under Section 439 Cr. P.C and the same issue was held in the judgement passed by a single bench judge HON’BLE MR. JUSTICE RAJNISH BHATNAGAR, in the matter KELVIN GEORGE KATINDASA V. NARCOTICS CONTROL BUREAU dealt with an issue mentioned above. Briefly stated, the facts of the case which was dated 10.01.2019, were firstly intercepted at IGI airport while he was travelling to Dar-Es-Sallam via Doha and during the search, 24.5kg of Pseudoephedrine was recovered. Petitioner had disclosed that he came to Delhi along with his brother Nagar and stayed at the hotel, later the suitcase was collected by the INA market, which was supposed to be handed over to Nagar in Tanzania. Meanwhile on 18.02.2019 accused Nagar was also intercepted at Mumbai airport based on LOC, Accused Nagar also accepted his guilt and the mobile phones of accused persons were examined which proved him to be so. Ld. counsel for the petitioner, Ld. counsel for the respondent (NCB), perused the records of this case and the Status Report filed by the respondent (NCB). He further also submitted that how the samples were drawn was not as per law as the sample was not taken from each packet and this is a violation of law in drawing the sample of drugs. Later he submitted that a petitioner is a young person who has been falsely implicated in the present case and submitted that while issuing notice U/s 50 NDPS Act, the mandatory provisions of Section 50 NDPS Act have not been followed. He further submitted that in the instant case the embargo of Section 37 NDPS Act is not applicable. Ld. counsel for the petitioner has relied upon the following judgments: Ld. counsel for the respondent that the allegations against the petitioner are grave. He further submitted that the bail of the co- BAIL APPLN. 3149/2020 Page 4 of 7 accused has been dismissed by this court vide order dated 24.11.2020. He further submitted that the petitioner is a part of a drug syndicate dealing in drug trafficking and the petitioner is a foreigner and he may abscond if released on bail. Ld. counsel for the respondent (NCB) has relied upon the following judgments : And few more facts were mentioned by the advocate. The other contention of the counsel for the petitioner is that embargo of Section 37 of the NDPS Act is not applicable as the substance recovered is neither a narcotic drug nor a psychotropic substance. The Supreme Court also referred to the case of the Union of India Vs. Prateek Shukla, Criminal Appeal No. 284 of 2021 decided on 08.03.2021 were they had cancelled the bail of the petitioner who was found in possession of a controlled substance namely acetic anhydride. The court perused the facts and argument’s presented, it thought that- “The instant case, looking into the allegations against the petitioner, the quantity of the substance recovered and also the fact that the petitioner is a foreigner and bail of the co-accused has been dismissed by this court vide order dated 24.11.2020, no ground for bail is made out, the bail application is, therefore, dismissed”. Click here for judgment

IN THE HIGH COURT OF DELHI AT NEW DELHI VIA VIDEO CONFERENCING BAIL APPLN. 3149 2020 Pronounced on : 09.11.2021 KELVIN GEORGE KATINDASA Through: Mr. J.S. Kushwaha Advocate NARCOTICS CONTROL BUREAU Through: Mr. P.C. Aggarwal Advocate HON BLE MR. JUSTICE RAJNISH BHATNAGAR RAJNISH BHATNAGAR J The present bail application has been filed by the petitioner under Section 439 Cr.P.C. read with Section 37 of the NDPS Act seeking regular bail in SC No. 139 2019 registered under Sections 9A 25A 29 of the NDPS Act at police Station Crime Branch Delhi Briefly stated the facts of the case are that on 10.01.2019 on the basis of secret information petitioner Kelvin George Katindasa was intercepted at IGI airport while he was travelling to Dar Es Sallam via Doha and during search 24.5kg of Pseudoephedrine was recovered BAIL APPLN. 3149 2020 In his statement u s 67 NDPS Act petitioner disclosed that he came to Delhi along with his brother Nagary and stayed at hotel Venus Mahipalpur Delhi and on 09.01.2019 Nagary asked him to go to INA market to collect the suitcase and thereafter petitioner collected the suitcase of Pseudoephedrine from Chinedu and Kelvinwas supposed to hand over this suitcase to Nagary at Tanzania. On 18.02.2019 accused Nagary was also intercepted at Mumbai airport on the basis of LOC. Accused Nagary also accepted his guilt. The mobile phones of accused persons were examined and it was revealed that they were in touch with others and shows that they were the members of international drug syndicate and involved in drug trafficking I have heard the Ld. counsel for the petitioner Ld. counsel for the respondentperused the records of this case and the Status Report Reply filed by the respondentwill take long time in concluding the matter so no purpose would be served by keeping the petitioner behind the bar counsel for the petitioner has relied upon the following Judgment dated 13.03.2020 passed by this Court in Crl. Appeal No. 1027 2015 titled as Amani Fidel Chris Vs. Narcotics Control b) Ram Narayan Vs. State 2005JCC170 c ) Sujit Tiwari Vs. State of Gujarat and another 2020Crimes On the other hand it is submitted by the Ld. counsel for the respondentthat the allegations against the petitioner are grave and serious in nature. He further submitted that the bail of the co BAIL APPLN. 3149 2020 accused has been dismissed by this court vide order dated 24.11.2020 He further submitted that the petitioner is a part of drug syndicate dealing in drug trafficking and the petitioner is a foreigner and he may abscond if released on bail counsel for the respondenthas relied upon the following judgments 8 SCC 50 State of Gujrat Vs. Salimbhai Abdulgaffar Sheikh & Ors.10 SCC 88 c ) Achint Navinbhai Patel alias Mahesh Shah Vs. State of Gujarat Anr.10 SCC 529 Supdt. Narcotics Control Bureau Chennai Vs. R. Paulsamy 2001 SCC648SC 560 Intelligence Officer Narcotics C. Bureau Vs. Sambhu Sonkar Anr. AIR 2001 SC 830UOI Vs. Aharwa Deen 200 VI AD155 UOI Vs. Ram Samuj & Anr. 1993CC Cases22 UOI Vs. Thamisharasi & Ors. 1995 SCC665Heera Lal Vs. State 2003(2) CC CasesMd. Ahshan Vs. The State2004JCC 13 m) Mohd. Asmahil @ Mohd. Ismail @ Iqbal Bhai Vs. NCB Crl. M M) No. 354 2002 decided by Delhi High Court on 15.04.2002 Sanjeev Kumar Vs. NCB Crl. Misc.(M) No. 3962 2002 decided by Hon’ble Mr. Justice RC Chopra of DHC on 17.02.2003 10. As far as the judgments relied upon by the Ld. counsel for the petitioner are concerned they are distinguishable on facts and circumstances and it is well settled that judicial precedent cannot be followed as a statute and has to be applied with reference to the facts and circumstances of each case. The ratio of one case cannot be applied mechanically to other case without considering their factual situation and circumstances because a slight difference in the facts or additional facts makes a lot of difference in precedential value of a In the instant case on 10.01.2019 a secret information was received and petitioner was intercepted at IGI airport while he was BAIL APPLN. 3149 2020 travelling to Dar Es Sallam via Doha and during search 24.5 Kg. of Pseudoephedrine was recovered from his bag. The petitioner during investigation tendered his voluntary statement U s 67 NDPS Act and admitted the recovery. The petitioner was supposed to hand over the suit case containing Pseudoephedrine to his co accused at Tanzania which was seized from his possession. During investigation mobile phone of the petitioner and other co accused persons were examined and it was found that they were in constant touch with each other 12. As far as the contention of the counsel for the petitioner that the manner in which the samples were drawn was not as per law as the sample were not taken from each packet and this is totally a violation of law in drawing the sample of drugs and the other contention that while issuing notice U s 50 of the NDPS Act the mandatory provisions of Section 50 NDPS Act have not been followed both the contentions are liable to be rejected as they relate to violation of the procedural aspects which can only be looked into during the course of trial and cannot be deeply analyzed at the stage of bail 13. The other contention of the counsel for the petitioner is that embargo of Section 37 of NDPS Act is not applicable as the substance recovered is neither a narcotic drug nor a psychotropic substance recovery of huge quantity of Pseudoephedrine i.e. 24.5 Kg. which was recovered from the BAIL APPLN. 3149 2020 possession of the petitioner while he was present at the IGI airport for travelling to Tanzania. The Supreme Court in the case of Union of India Vs. Prateek Shukla Criminal Appeal No. 2821 decided on 08.03.2021 has cancelled the bail of the petitioner who was found in possession of controlled substance namely acetic anhydride In the instant case looking into the allegations against petitioner quantity of the substance recovered and also the fact that the petitioner is a foreigner and bail of the co accused has been dismissed by this court vide order dated 24.11.2020 no ground for bail is made out the bail application is therefore dismissed Nothing stated hereinabove shall tantamount to the expression of any opinion on the merits of this case RAJNISH BHATNAGAR J NOVEMBER 09 2021 BAIL APPLN. 3149 2020 Page

Leaving no stone unturned to repay the loan cannot be a ground for exemption: Patna High Court

The petitioner cannot be given any undue advantage of the fact that he/she tried all possible ways to repay the loan amount and it amounts to maliciously and unnecessarily engaging in vexatious litigation without there being any legal basis to do so. This remarkable judgment was given by the Hon’ble Mr. Justice Mohit Kumar Shah, in the case of M/s Naturals Dairy (P) Ltd. A Company, Mr. Sanjay Singh and others versus The Bank of Baroda A Banking Company, Mr.Vivek Prasad, and others [Civil Writ Jurisdiction Case No.5858 of 2020]. The petitioner- Company had then approached the Respondent-Bank of Baroda for availing term loan advance for a sum of Rs. 200.00 lacs and the same was sanctioned by the Respondent-Bank in the month of February 2008 vide letter dated 12.03.2008 and the Respondent-Bank by its letter dated 24.09.2019 had sanctioned a compromise proposal for the petitioner. It was stated that if any of the terms and conditions of the sanction was not complied with, the compromise shall be treated as frustrated/ lapsed and the bank was free to proceed with all legal action including a suit in DRT action under the SARFAESI Act, 2002 and other legal recourses available to the Bank for recovering the total dues of the Bank. Further, the petitioner, vide its letters dated 05.10.2019 and 29.11.2019, had made a request to the Respondent-Bank to extend the validity of the sanction of the One-time Settlement Scheme, however, the Respondent-Bank by its letter dated 17.12.2019 had rejected the request of the petitioner. The court observed that “The loan account of the petitioner was classified as non-performing assets as back as in the month of December 2010, proceedings were initiated under Section 13(2) of the SARFAESI Act, 2002 and a notice dated 03.01.2011 was issued thereafter, however the same was challenged by the petitioner in CWJC No. 569 of 2011, whereupon interim protection was granted to the petitioner vide order dated 14.01.2011.”

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.58520 M s Naturals DairyLtd. A Company registered under the Companies Act 1956 having its registered office at 225 Ashoka Place Exhibition Road P.S. Gandhi Maidan Town and District Patna through its Managing Director Sri Hemant Kumar Das son of Sri Awadhesh Kumar Das Resident of 504 White House Block A Budha Marg P.S. Kotwali Town and District Patna Bihar ... Petitioner s The Bank of Baroda A Banking Company Constituted under the Banking CompaniesAct 1970 having its head office at Mandvi Baroda through its Managing Director The Chief Manager Bank of Baroda S.K. Puri Branch Patna The Deputy General Manager Bank of Baroda Regional Office West Boring Canal Road Patna The Chief Manager Bank of Baroda S.K. Puri Branch Patna The Chief Manager Regional Office Stressed Asset Recovery Branch ROSARB) C o Bank of Baroda Patliputra Branch 1st Floor Saryug Complex Nehru Nagar Patliputra Patna The Zonal Manager Zonal office Bank of Baroda Boring Canal Road ... Respondent s For the Petitioner s Mr. Sanjay Singh Mr. Nikhil Kr. Agrawal Ms. Aditi Hansaria Mr.Vivek Prasad For the Respondent s CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH Date : 05 03 2021 following reliefs : The present writ petition has been filed seeking the i) To issue an appropriate writ(s order(s) directions(s) in the nature of Certiorari quashing the letter no BOB:SARPTN: 2019 20 dated 06.02.2020 whereby and whereunder the respondents Patna High Court CWJC No.58520 dt.05 03 2021 have malafidely and arbitrarily refused to issue No Dues Certificate to the Petitioner unless and until further interest is paid ii) To issue an appropriate writ order direction in the nature of Mandamus declaring that the demand of interest by the respondents upon the OTS amount is not in consonance with the Baroda MSME OTS Scheme No BCC:BR:111 333 dated 09.07.2019 under which the OTS was sanctioned to the petitioner Company To issue an appropriate writ order direction in the nature of Mandamus directing the respondents to forthwith issue a No Dues Certificate to the petitioner Company as the complete amount of Rs. 240 lakhs under the OTS sanction has been duly paid by the petitioner Company in terms of the Baroda MSME OTS Scheme To issue an appropriate writ order direction in the nature of Mandamus directing the respondents to also release all the original collateral security documents in favour of the petitioner Company and release the personal guarantees of all the Directors Guarantors in their individual capacity To issue an appropriate writ order direction in the nature of Patna High Court CWJC No.58520 dt.05 03 2021 Mandamus directing the respondents to remove all charge mortgage lien on the assets of the petitioner Company by issuing appropriate letters to the concerned authorities including BIADA and MCA The brief facts of the case are that the petitioner Company had established a factory in the year 2008 for manufacturing milk ghee panner dahi ice cream and other related milk products. The petitioner Company had then approached the respondent Bank of Baroda for availing term loan advance for a sum of Rs. 200.00 lacs and the same was sanctioned by the respondent Bank in the month of February 2008 vide letter dated 12.03.2008. Without going into the details and history of the case it would suffice to state here that ultimately the petitioner had submitted a One time Settlement Proposal vide letter dated 29.08.2019 addressed to the Chief Manager Bank of Baroda Asset Recovery Branch Patliputra Colony Patna relevant portions whereof is reproduced herein below : “As per the discussion held whereby confirm and revise our One Time proposal from Rs. 1 90 000 00 to Rs. 2 40 000 00 Rupees two crore forty lac only). This Patna High Court CWJC No.58520 dt.05 03 2021 amount of Rs. 2 40 000 00 has been agreed by the officials present in this meeting. This is absolute amount including all As soon as the Bank agrees with the abovementioned proposal we shall make a fixed deposit of Rs. 240.00 lacs and submit a zerox copy of the said FDR receipt in order to show my bonafides. Once an OTS sanction letter is received from the competent authority of the Bank we shall submit deposit the said FDR receipt in original to the Bank towards full and final settlement of the loan amount with the assurance that a NO DUES certificate would be immediately issued in favour of the Company. It would also be incumbent upon the Bank to release all security documents in original mortgaged with the Bank. Furthermore the Bank will withdraw all litigation from all the courts DRT.” The respondent Bank by its letter dated 24.09.2019 had sanctioned a compromise proposal for the petitioner in the following terms : “We are pleased to inform you that out authority has Compromise Proposal offered by you in tune of Rs. 240.00 lakhtowards the full and final settlement of the account in name of M s Natural Dairy Pvt. Ltd. having book dues of Rs. 61.97 lac in Term Loan Account 18630600001230) & Rs. 32.03 lacs in Term Loan Accountand Rs. 75.59 lac in Cash Credit Account 18630500000025) i.e. total Rs. 169.59 lac Rs. One Crore Sixty Nine Lac Fifty Nine Thousand only) subject to the compliance of following terms and conditions 1. The amount liable to pay towards the compromise is Rs. 240.00 lac as per the stipulated terms of the compromise 2. The total compromised amount shall be deposited immediately in compliance of the sanctioned settlement after acceptance of sanctioned terms and conditions by company through its authorized signatory 3. Sanction will be valid for 15 days from the date of sanction acceptance 4. NOC will be issued in favour of borrower &amp guarantor only on receipt of full &amp final compromise amount as per the sanctioned terms and conditions and after the withdrawl of all the suits and litigations filed by you against the bank before any Courts Tribunals Forums any Patna High Court CWJC No.58520 dt.05 03 2021 5. If any of the terms and conditions of the sanction is not complied with the compromise shall be treated as frustrated lapsed and bank is free to proceed with all legal action including suit in DRT action under SARFAESI Act 2002 and other legal recourses available to the Bank for recovering the total dues of the Bank Besides in case of frustration lapse of the compromise settlement the entire amount paid by the party shall not be refundable and the same shall be treated as a part of general recovery in the account. ” 6. In case of delay in repayment of compromise amount beyond the agreed period of settlement interest to be charged at 4% Over Base rate i.e. 13.40% from next day on the balance amount of compromise 7. Any other condition as stipulated or accorded by Bank’s Management Committee of Board Sanctioning Authority from time to time shall be applicable with respect to this compromise settlement 8. All the guidelines in respect of settlement of Bank’s dues by way of compromise as mentioned in the Bank’s Recovery Policy shall be applicable.” The petitioner is stated to have then made payments in the following manner: Patna High Court CWJC No.58520 dt.05 03 2021 Date of Payment Amount in Rs 50 00 000 25 00 000 20 00 000 50 00 000 95 00 000 240 00 000 It appears that the petitioner vide its letters dated 05.10.2019 and 29.11.2019 had made a request to the respondent Bank to extend the validity of the sanction of the One time Settlement Scheme however the respondent Bank by its letter dated 17.12.2019 had rejected the request of the petitioner and replied to the request of the petitioner in the following terms : “We refer to your captioned letter dated 29.11.2019 wherein you have made a request to extend the period of OTS sanction as accepted by you till 25.12.2019. Before adverting deliberating on your request of extension for OTS sanction period we reiterate herein the terms of sanction dated 24.09.2019 pertaining to payment of OTS amount which was also accepted by you as under : 1. The total compromised amount shall be deposited immediately in compliance of the Patna High Court CWJC No.58520 dt.05 03 2021 sanctioned settlement after acceptance of sanctioned terms and conditions by company through its authorized signatory 2. In case of delay in repayment of compromise amount beyond the agreed period of settlement interest to be charged at the rate of 13.40% from next day on the balance amount of compromise It is evidently clear in the accepted sanction terms and in our subsequent letter dated 04.10.2019 that as per the sanction dated 24.09.2019 one time payment of Rs 240 lacs has to be paid immediately and as per the terms of sanction a rate of interest of 13.40% is liable to be imposed on the residual amount not paid immediately on the acceptance. It is to be informed you that your request of extension may be considered only within the four corners of the sanctioned compromise terms and as such you may deposit the entire remaining amount by 25.12.2019 as per your request along with interest amount @ 12% on the balance amount as on 01.10.2019 as per the terms of sanctioned settlement. It is highly apropos to inform you that the validity of sanction stands till 31.12.2019 and as such you are requested to pay the aforesaid Patna High Court CWJC No.58520 dt.05 03 2021 accordingly otherwise sanctioned compromise stands to be frustrated becomes void.” Thereafter the petitioner had filed a representation for waiver of interest amount which was also rejected by the respondent Bank by the impugned letter dated 06.02.2020 in the following terms: “We refer to the captioned matter as regard to waive off the interest accrued on the remaining compromise amount not paid by 30.09.2019 and paid up to 31.12.2019 and for issuance of ‘No Dues Certificate’ The matter was put before the competent Authority for their consideration. In the matter it is informed that waiver is not acceptable considering the sanctioned terms and conditions of the compromise and the acceptance of the same by the Therefore you are requested to make the payment of interest on the remaining compromise amount not paid up to 30.09.2019. “No Dues Certificate” with respect to the account may be issued on receipt of interest amount.” The learned counsel for the petitioner Sri Sanjay Singh assisted by Sri Nikhil Kr. Agrawal Advocate has Patna High Court CWJC No.58520 dt.05 03 2021 submitted that though it is true that the petitioner in its One time Settlement proposal dated 29.08.2019 had promised the moon to the respondent Bank nonetheless it was incumbent upon the respondent Bank to have adhered to the guidelines pertaining to the Baroda MSME OTS Scheme as contained in letter of the respondent Bank dated 09.07.2019 whereby and whereunder it has been stipulated that a borrower has to deposit 5% of the OTS amount at the time of submission of the application whereafter it has to deposit 25% of the OTS amount as upfront money within 30 days from the date of sanction of OTS and the balance amount of the OTS is to be paid without interest within three months from the date of sanction of OTS hence it is submitted that since the sanction of compromise proposal was made by the respondent Bank vide letter dated 24.09.2019 the petitioner was entitled to make payment of the balance amount upto 24.12.2019 and in fact the entire payment has in fact been made by 30.12.2019 hence at best interest can be charged on the balance amount for the period 25.12.2019 to 30.12.2019 and not for the period starting from 01.10.2019 to 30.12.2019 Per contra the learned counsel for the respondent Bank has submitted that the present case has a chequered history inasmuch as initially SARFAESI proceeding was initiated Patna High Court CWJC No.58520 dt.05 03 2021 against the petitioner as far back as in the year 2010 and the same was assailed on one ground or the other by the petitioner by way of filing several writ petitions. The loan account of the petitioner was classified as non performing assets as back as in the month of December 2010 proceedings were initiated under Section 13(2) of the SARFAESI Act 2002 and a notice dated 03.01.2011 was issued thereafter however the same was challenged by the petitioner in CWJC No. 569 of 2011 whereupon interim protection was granted to the petitioner vide order dated 14.01.2011. The said writ petition was ultimately disposed of on 29.08.2013. The petitioner was then given sufficient opportunity to settle the matter as per the guidelines of the respondent Bank and several meetings were held in between the parties but the petitioner Company never fulfilled its commitment resulting in the Bank issuing a notice dated 23.12.2014 under Section 13(2 of the SARFAESI Act 2002 asking the petitioner to discharge the liabilities of the Bank totalling to a sum of Rs. 2.15 crores approximately whereafter the petitioner had filed an objection under Section 13(3 A) of the SARFAESI Act 2002 which was rejected by the Bank on 04.03.2015. The petitioner had again challenged the SARFAESI proceedings in C.W.J.C. No. 30415 followed by initiating contempt proceedings bearing M.J.C. No. 611 of 2017 however the same was subsequently Patna High Court CWJC No.58520 dt.05 03 2021 withdrawn by the petitioner. Again the Bank had initiated SARFAESI proceedings against the petitioner by giving a notice dated 25.07.2018. The petitioner is stated to have earlier also entered into a One time settlement on 07.11.2017 and the petitioner was asked to pay the entire amount by 31.01.2018 but it could only pay a sum of Rs. 30 lacs approximately by 15.01.2018 hence the petitioner was granted time to pay the balance amount by 31.01.2018 but again the petitioner committed default and instead challenged the SARFAESI proceedings in C.W.J.C. No. 190018 wherein the Hon’ble High Court directed the petitioner to make endeavours to deposit a sum of Rs. 1 crore within a period of one week but the petitioner did not do so and after sensing the pulse of the Hon’ble Court it withdrew the said writ petition on 15.10.2019 with liberty to approach the respondent Bank for redressal of his The learned counsel for the respondent Bank has further submitted that thereafter the petitioner had approached the respondent Bank by submitting One time Settlement Proposal dated 29.08.2019 as aforesaid and he had undertaken to pay the lump sum compromise amount of Rs. 240 lacs in one go however the petitioner had again defaulted and instead of depositing the entire sum of Rs. 240 lacs on or before Patna High Court CWJC No.58520 dt.05 03 2021 30.09.2019 it could ultimately deposit the said sum of Rs. 240 lacs only by 30.12.2019 resulting in charging of interest to the tune of Rs. 4 83 452 in terms of the aforesaid letter of the respondent Bank dated 24.09.2019 whereby and whereunder the Bank had sanctioned compromise proposal for the petitioner I have heard the learned counsel for the parties and gone through the materials available on record. It is clear from the Proposal submitted by the petitioner for One time settlement vide its letter dated 29.08.2019 that the petitioner had undertaken to immediately deposit a sum of Rs. 240 lacs upon receipt of OTS sanction letter from the competent authority of the Bank and in pursuance thereof the respondent Bank had sanctioned the compromise proposal for the petitioner by not only stipulating therein that the petitioner would be liable to deposit a sum of Rs. 240 lacs as per the OTS proposal of the petitioner herein but the Bank had also accommodated the petitioner by being gracious enough to grant 15 days’ time to the petitioner to deposit the said sum of Rs. 240 lacs i.e. by 30.09.2019 however it had been stipulated in the said sanction letter dated 24.09.2019 itself that in case of delay in repayment of the compromise amount beyond the agreed period of settlement interest shall be charged @ 4% over base rate i.e. @ 13.40% from the next day on Patna High Court CWJC No.58520 dt.05 03 2021 the balance amount of compromise This Court finds from the records of the present case that the petitioner has not only defaulted in honouring its One time settlement Proposal but has also failed to honour the terms and conditions of the letter of the respondent Bank dated 24.09.2019 whereby and whereunder the compromise proposal had been sanctioned by the respondent Bank for the petitioner inasmuch as it has not only failed to deposit the aforesaid sum of Rs. 240 lacs in one lump sum but has also failed to deposit the same on or before 30.09.2019 and instead has deposited the said sum of Rs. 240 lacs only by 30.12.2019 hence I find that the respondent Bank has rightly charged interest as agreed on the balance compromise amount not paid on or before 30.09.2019 As far as reference of the learned counsel for the petitioner to the One time Settlement Scheme of the respondent Bank and the guidelines issued by the respondent Bank pertaining to the Baroda MSME OTS Scheme as contained in letter dated 09.07.2019 is concerned firstly this Court finds that the respondent Bank had sanctioned the compromise proposal vide letter dated 24.09.2019 in terms of the One time settlement Proposal submitted by the petitioner before the respondent Bankvide letter dated 29.08.2019 and secondly the One time settlement Proposal submitted by the petitioner before the Patna High Court CWJC No.58520 dt.05 03 2021 respondent Bank as also sanction of compromise proposal are not in terms of the aforesaid Baroda MSME OTS Scheme as contained in letter of the respondent Bank dated 09.07.2019 nonetheless the said letter dated 09.07.2019 itself contains a caveat to the following extent : “The above list of action points is illustrative only and not exhaustive. Zones Regions Branches may draw action plans as deemed fit according to their locations Yet another aspect of the matter is that the petitioner has not challenged the letter the of the respondent Bank dated 24.09.2019 whereby the respondent Bank has sanctioned the compromise proposal for the petitioner hence it does not lie in the mouth of the petitioner to now turn around and vent his grievance regarding charging of interest by the respondent Bank for the delay caused in repayment of the compromise amount beyond the agreed period of This Court further finds that the petitioner has been a perpetual defaulter and has left no stone unturned to evade making payment of the outstanding dues of the respondent Bank and now when the Compromise Proposal has been sanctioned by Patna High Court CWJC No.58520 dt.05 03 2021 the respondent Bank vide letter dated 24.09.2019 in terms of the proposal submitted by the petitioner vide its letter dated 29.08.2019 it is still maliciously and unnecessarily engaging in vexatious litigation without there being any legal basis to do so Having regard to the facts and circumstances of the case and for the grounds mentioned hereinabove in the preceding paragraphs I do not find any merit in the present writ petition hence the same stands dismissed Mohit Kumar Shah J

When there is a violation of principles of natural justice, the availability of an appellate remedy does not operate as a bar to the maintainability of the writ petition : Delhi High Court

An assessment order requires to meet all the requirements of the Act, which includes mandatory issuing of cause notice as well as draft assessment order. This was held in the judgment passed by a two judge bench comprising HON’BLE JUSTICES MR. JUSTICE MANMOHAN and MR. JUSTICE NAVIN CHAWLA, in the matter NOVELTY MERCHANTS PRIVATE LIMITED V. NATIONAL FACELESS ASSESSMENT CENTRE DELHI & ORS., dealt with an issue where the petitioner filed a petition challenging the Assessment Order, Demand Notice and Notice for Penalty dated 23rd April 2021 passed by the respondents the Income Tax Act 1961 for the AY 2018-19. Counsel for the Petitioner states that the impugned assessment order has been passed without issuing the mandatory show-cause notice and draft assessment order under Section 144B(1)(xvi)(b) of the Act. He states that the Respondent’s action is violative of the principles of natural justice and Section 144B. He also states that in the absence of a show cause notice, the petitioner has been deprived of an opportunity to seek personal hearing. The Act states that the National Faceless Assessment Centre shall examine the draft assessment order in accordance with the risk management strategy specified by the Board, including by way of an automated examination tool. It also states that provide an opportunity to the assessee, in case any variation prejudicial to the interest of assessee is proposed, by serving a notice calling upon him to show cause as to why the proposed variation should not be made. The Court is also of the view that Section 144B(1)(xvi)(b) mandatorily provides for issuance of a show cause notice and draft assessment order before issuing the final assessment order.

IN THE HIGH COURT OF DELHI AT NEW DELHI NOVELTY MERCHANTS PRIVATE LIMITED Date of Decision: 02.09.2021 Through: Mr.Subash Agarwal Mr.Aneesh Mittal Adv NATIONAL FACELESS ASSESSMENT CENTRE DELHI EARLIER NATIONAL E ASSESSMENT CENTRE DELHI Through: Mr.Ajit Sharma Sr. Standing Counsel with Mr.Anant Ram Mishra Adv HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA MANMOHAN J.read with Section 144B Section 156 and Section 274 read with Section 271AAC(1) of the Income Tax Act 1961for the AY 2018 19 Learned counsel for the Petitioner states that the impugned assessment order has been passed without issuing the mandatory show cause notice and draft assessment order under Section 144B(1)(xvi)(b) of the Act. He states that the Respondent’s action is violative of the principles of natural justice and Section 144B. He also states that in the absence of a show cause notice the petitioner has been deprived of an opportunity to seek personal hearing Issue Notice. Mr. Ajit Sharma accepts notice on behalf of the Learned counsel for the respondent states that the present writ petition is not maintainable as the petitioner has an alternative effective remedy by filing an appeal Having heard learned counsel for the parties this Court is of the view that once the assessment has been done by the respondent No. 1 National Faceless Assessment Centre Delhi it has to be in accordance with the statutory procedure prescribed for assessment by the said Authority and cannot be in accordance with the procedure prescribed under the earlier regime This Court is also of the view that Section 144B(1)(xvi)(b mandatorily provides for issuance of a show cause notice and draft assessment order before issuing the final assessment order. The relevant portions of Section 144B(1)(xvi)(b) as well as Section 144B(9) of the Act are reproduced hereinbelow: “144B. Faceless assessment xxxx xxxx xxx xvi) the National Faceless Assessment assessment order in accordance with the risk management strategy specified by the Board including by way of an automated examination tool whereupon it may decide to b) provide an opportunity to the prejudicial to the interest of assessee is proposed by serving a notice calling upon him to show cause as to why the proposed variation should not be made 9) Notwithstanding anything contained in any other provision of this Act assessment made under sub sectionon or after the 1st day of April 2021 shall be non est if such assessment is not made in accordance with the procedure laid down under this Since in the present case no prior show cause notice as well as draft assessment order have been issued there is a violation of principles of natural justice as well as mandatory procedure prescribed under “Faceless Assessment Scheme” and as stipulated in Section 144B of the Act It is a settled law that when there is a violation of principles of natural justice the availability of an appellate remedy does not operate as a bar to the maintainability of the writ petition Keeping in view the aforesaid the impugned Assessment Order Demand Notice and Notice for Penalty dated 23rd April 2021 issued under Section 143(3) Section 156 and Section 274 read with Section 271AAC(1) of the Act are set aside and the matter is remanded back to the Assessing Officer who shall issue a show cause notice as well as draft assessment order and thereafter pass a reasoned order in accordance with law 10. With the aforesaid direction the present writ petition along with pending applications stands disposed of MANMOHAN J NAVIN CHAWLA J SEPTEMBER 2 2021 rv Page

All schools to issue No-Objection Certificate for general/mutual transfer within four weeks to teachers who file such an application unless barred by law: Calcutta High Court

The High Court at Calcutta before the Hon’ble Justice Abhijit Gangopadhyay removed the Headmistress of the Gandhi Memorial Girls’ High School from her position, and thereby, denuded the Headmistress of the school from all her powers, demoting her to act as the Assistant Teacher of the school, in the matter of Aparna Munshi vs. State of West Bengal & Ors. [W.P.A. 17159 of 2019] with Gandhi Memorial Girls’ High School & Anr. vs. The State of West Bengal & Ors. [W.P.A. 6598 of 2021]. Abiding by its order dated 07.04.2021, the Hon’ble Court took up two writ applications together, since both the matters related to the transfer of a lady teacher from her present school to another school which had been pending for almost two years. In the first writ application, the teacher (petitioner) had submitted a transfer request to the authorities for getting transferred from Gandhi Memorial Girls’ High School to Digra Mallickhati Deshbandhu Vidyapith, which was initially ordered by the transfer authorities. Soon, this was withdrawn after a fresh order dated 30th July 2021, was passed by the WBBSE, through which the transfer was permitted from Gandhi Memorial Girls’ High School to Rabindra Smriti Vidyaniketan, wherein the petitioner could join, but the release order was not being given to her by the school. Subsequently, when the petitioner tried to withdraw the writ application, it was cited by her that if she did not withdraw the same, then her release order shall not be granted by the school. Considering the circumstances surrounding the case, the Hon’ble Court directed the authority of the school to issue the release order to the petitioner, who would then approach the other school where she had been transferred to, as per the order of WBBSE. The Court also stated that the school and the Headmistress “has made a nasty effort”  in not issuing the no-objection certificate to the teacher (a Lady). Moving on to the other related matter, wherein a writ application was filed by the School and its Headmistress against the State and its functionaries like the Commission of School Education and the WBBSE, etc. The Hon’ble Court found this writ to be absolutely “a frivolous and mischievous one and want of bona fide”. On being asked to the learned advocate for the school about the right-duty relationship between the school and the transferring authorities of a teacher, and the right of the school to object as to the transfer of the teacher and the corresponding legal duty of the concerned authorities, the advocate failed to show any such right and corresponding legal duty. According to the school, as provided in the writ application, they said that they had never issued a no-objection certificate. It has also been brought to the notice of the Hon’ble Court, a letter written by the teacher to the Headmistress which stated that she had “many often with folded hands” requested for the issuance of the no-objection certificate, but all in vain. The Hon’ble Judge of the High Court even exclaimed, “What surprises me as a judge of this court that in a democratic country like ours when a person like the school teacher is seeking no-objection certificate from the school which he/she is entitled under the law and when the school is mandated by the law to issue no-objection certificate why a school teacher has to write to the Headmistress with folded hands unless the Headmistress time and again has denied to give NOC and unless she has posed herself a feudal head of some fiefdom in this country that a teacher has to pray for a no-objection certificate in folded hands!” His Lordship brought into notice the provision to Rule 6(3) of the West Bengal Central School Service Commission (General Transfer, Transfer on Special Grounds and Relocation) Rules, 2015, which stated that the Head of the Institution, the Secretary of Managing Committee or the Administrator of the concerned school “shall issue No Objection Certificate to an incumbent to be recommended for General Transfer under these regulations.” The Headmistress did not deny such representation that had been made by the teacher. The teacher had cited valid reasons for her transfer request, which included that she resided at a distance of more than 200 kilometers from the school, had been suffering from complicated gynecological disease and had undergone operations for the same, had delivered a child who was about three years old when she applied for the no-objection certificate, and that, her cancer antigen result was of a higher level than that of referral range. Despite submitting all her treatment papers from the Government hospital, her no-objection certificate was not given by the Headmistress of the school, who was also the Secretary of the Managing Committee of the school. As per Rule 6(3) of the Rules, 2015, mentioned above, the Hon’ble Court that the mandate of the rules “had been blatantly, shamelessly and deliberately violated by the Headmistress of the School.” Also, despite several directions of placing the Mutual Transfer Rules, the learned Advocate for the school had failed to do so. The school had also issued a counterpart with the name of the teacher in its resolution, which has been done before the decision of the appropriate authority of the Education Department of the State. Thus, the Hon’ble Justice Abhijit Gangopadhyay held that the school did not even have any cause of action to move such writ and any locus to file such writ application. Adding to that, His Lordship also went to the extent of stating that, “Except for harassing the teacher who has prayed with folded hands before the said feudal head in the form of a headmistress for issuance of a no-objection certificate there was no other object for filing such a frivolous writ application by the school.” The school has successfully caused a delay relating to the transfer of the teacher by filing such a “frivolous” writ application for the last two years. The Headmistress, according to the Hon’ble Court, abused the process of justice of the country besides deliberately violating the law. The Court interpreted the Headmistress’ behavior as an “arm-twisting method”, and that, the Headmistress has abused the process of the justice of this country, and has pressed a citizen, i.e., the teacher, to withdraw her writ application for issuing release order, as a bargain for the school and thus, violated the liberty granted by the Constitution of India to a citizen, by using the “arm-twisting method”. The Hon’ble Court, thus, dismissed the writ application mentioning it as “mischievous in nature” and “wholly frivolous to harass the teacher”. It also stated that such a mischievous Headmistress is wholly unfit as the Headmistress of the school, as she has not only violated the law, but also the constitutional right of a citizen, along with filing a frivolous writ which is nothing “but abuse of process of justice” to stall the transfer of the teacher Thus, the Court exercised the writ court’s plenary power to denude the Headmistress from all her powers as the Headmistress of the school, and thereby, removed from the post of the Headmistress of the school. Henceforth, the Court ordered that she would act as an assistant teacher of the school and shall be taking classes like other assistant teachers. If there is an assistant headmistress, she would be performing the duty of the headmistress of the school, or in case there is no assistant headmistress, the senior-most teacher, except the accused, would act as the headmistress of the school till a regular headmistress was appointed in the school. The post of the headmistress would be treated as vacant and accordingly, the appropriate authority would take the necessary steps to fill up the post. In case the accused was found to be an excess teaching staff in the school, the commissioner of School Education would be approached by the School’s managing committee for the transfer of such teacher to any other school as per her option. Moreover, the Hon’ble Court also imposed a fine of Rs. 20,000/- which was to be paid within two weeks from the date of judgment.

IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side The Hon’ble Justice Abjijit Gangopadhyay WPA 171519 Aparna Munshi State of West Bengal & Ors. WPA 65921 Gandhi Memorial Girls’ High School & Anr. The State of West Bengal & Ors. For the petitioner For the State respondents For the respondent nos. 6 7 8 Mr. Ujjal Ray Mr. Biswabrata Basu Mallick Mr. Pinaki Bhattacharya Mr. Sanjib Das Mr. Anjan Bhattacharya Ms. Anita Shaw Heard on 19.08.2021 and 23.08.2021 Judgement on 23.08.2021 Abhijit Gangopadhyay J.: The two writ applications being WPA 17159 of 2019 and WPA 65921 are taken up together. There was an order passed by this court on 07.04.2021 for taking up the two matters at a time as those are related matters. Learned advocate for the petitioner in WPA 171519 came up on 19.08.2021 with one written instruction from his client for not pressing her application being WPA 17159 of 2019. When that matter was called on that day learned advocate for the related school who is the petitioner in WPA 6598 of 2021 raised an objection as to how one matter out of the two matters which the court directed to be taken up together can be withdrawn. He also raised serious objection as to withdrawal of the writ application of the teacher being WPA 17159 of 2019. However without entering into such dispute I decided to take up the matters together today as the matter relates to transfer of a lady teacher from her present school to another school which is pending for almost for 2years as WPA 17159of 2019 was filed on 30.08.2019. In course of hearing of WPA 17159 of 2019 learned advocate for the teacher who is the petitioner has submitted that the transfer order issued earlier by the authority for transfer from Gandhi Memorial Girls‟ High School to Digra Mallickhati Deshbandhu Vidyapith has been withdrawn by the authority and subsequently by a fresh order dated 30th July 2021 the order of transfer has been passed by the West Bengal Board of Secondary Education from Gandhi Memorial Girls‟ High School to Rabindra Smriti Vidyaniketan. Learned advocate has submitted that the vacancy is still there in Rabindra Smriti Vidyaniketan where the petitioner can join by order of WBBSE pursuant to an order of the Commissioner of School Education but release order has not been given to her by the school. The writ application of the teacher was not allowed to be withdrawn despite the instruction given by the teacher to her learned advocate on 19.08.2021 or today. When the petitioner was asked why she wanted to withdraw the application it has been submitted that the school had directed her to withdraw otherwise release order would not be given to her by the school. After hearing the writ application and after considering the case including the teacher‟s difficulties relating to condition of her health and other surrounding circumstances I direct the authority of the School to issue release order forthwith to the teacher petitioner and the petitioner should approach immediately thereafter the other school where she has been transferred by the order of WBBSE dated 30.07.2021. A copy of the order of WBBSE for transfer as has been produced in this court be kept on record. The school and its Headmistress has made a nasty effort in not issuing the no objection certificate to the teacher for her transfer which we will see from the discussion made below. Here I join the other related matter being WPA 6598 of 2021 which is a writ application filed by the School and its Headmistress against the State and its functionaries like Commissioner of School Education and the WBBSE etc. This application is absolutely a frivolous and mischievous one and want of bona fide is writ large in each line of the writ application. Learned advocate appearing for the school when asked about the right duty relationship between the school and the transferring authorities of a teacher by asking him the question with details to show to this court what is the right of the school to raise objection as to the transfer of the teacher and what is the corresponding legal duty of the concerned authorities being the Commissioner of School Education and WBBSE he has failed to show any such right and any such corresponding Legal duty. In more than one paragraph of the writ application application in short) the school has stated that the school management never issued no objection certificate. Perhaps they have taken a pride in doing so. Here I must quote some lines from the application made by the teacher to the Headmistress for issuance of a no objection certificate which is in her writ application: “Madam many often times with folded hands I prayed to you for issuance of NOC for General transfer on special ground. I had accordingly verbally and written prayed to you for a NOC to forward my transfer application but in vain.” Some other lines are also there in the said representation of the teacher. What surprises me as a judge of this court that in a democratic country like ours when a person like the school teacher is seeking no objection certificate from the school which he she is entitled under the law and when the school is mandated by the law to issue no objection certificate why a school teacher has to write to the Headmistress with folded hands unless the Headmistress time and again has denied to give NOC and unless she has posed herself a feudal head of some fiefdom in this country that a teacher has to pray for a no objection certificate in folded hands ! Rule 6(3) of the West Bengal Central School Service Commission Transfer Transfer on Special Grounds and Reallocation) Rules 2015 under which the transfer application was processed) is as follows: “6(3) The Head of the Institution the Secretary of Managing Committee or the Administrator as the case may be of the concerned school shall issue No Objection Certificate to an incumbent to be recommended for General Transfer under these regulations. The No Objection Certificate will not exceed the number as stated under Rule 5(6) of these rules.” 10. The school has filed one affidavit in opposition to the writ application of the teacher being WPA 17159 of 2019 wherein there is no denial by the Headmistress of the school that any such representation was made by the teacher. Thus it has been accepted by the Headmistress that such a representation was made by the representation that: It is kept in mind as written by the teacher in the said a) The distance of the school from the residence of the teacher is more than 200 kilometers b) The teacher has been gynecological disease and has undergone operations for such disease c) she delivered a child in the year 2016 i.e. on the date of application for no objection the child was aged about 3 three) years and finally d) The teachers cancer antigen result report was of a higher level than that of referral range. The teacher supplied her all treatment papers twice to the school and on demand of the school again from Government hospital as stated in her writ application and not denied by the school in its affidavit in opposition. Even then No Objection was not given by the Headmistress of the school who is the Secretary of the Managing Committee of the school. 11. The above rule gives a mandate to the head of the institution the Secretary of the Managing Committee or the Administrator directing that no objection certificate to an incumbent to be recommended for general transfer under the said regulations had to be given. The word „shall‟ has been used in the said Rule 6“General Transfer” means transfer of an employee of a school from his present place of posting in a school to another place in same category of vacancy subject and post in another school ” In the writ application the school has made an endeavour to show that the teacher being the private respondent had made application for mutual transfer which was allowed by the Managing Committee and therefore it is his second transfer of the petitioner for which she has prayed for No Objection Certificate which is forbidden by law. The school has further stated in paragraph 6 of its writ application that the teacher had made incorrect and false application but when this court wanted to know from the learned advocate of the school what is the incorrectness and what is the false application he has only been able to show a resolution of the school dated 18.05.2018 by saying that already resolutions had been taken in respect of her application for mutual transfer on 18th May 2018 and the school has gone to the extent by saying that the school‟s hands are tied in respect of issuance of further no objection certificate to the teacher. 15. Surprising fact here is the school has not disclosed in its writ application any such application by the teacher for mutual transfer nor it has shown the no objection certificate if any that was issued to the teacher by the school. Learned advocate for the school has submitted repeatedly that for mutual transfer no objection certificate is not required. But he has failed to show any such rule as to mutual transfer where there is no mentioning of no objection certificate. In fact he has not placed the Mutual Transfer Rules at all before this court despite direction given to him more than once by this court in the course of hearing. 16. Learned advocate for the teacher has submitted that such a resolution was never shown to the teacher and no no objection certificate was given to her in connection thereof. Learned advocate for the school i.e. the writ petitioner countered it by saying that in the resolution of the school dated 18th May 2018 the name of the counterpart of the teacher is mentioned and this shows that there was an order of mutual transfer. I do not understand how before the no objection certificate and before the decision of the appropriate authority of the Education Department of this State as to mutual transfer one name of the counterpart of the teacher in respect of mutual transfer comes into the picture. 17. Hence I totally disbelieve due to the suppression of the two documents the resolution of the school dated 18.05.2018 and further for the reason that how before such no objection certificate and before the process is initiated a name of the counterpart of the teacher could be mentioned in the resolution of the school. 18. The school has made the prayer in their writ application that the transfer order passed by the Commissioner of School Education dated 22nd February 2021 and 23rd February 2021 is to be set aside and verification of the documents of transfer application of the private respondent being the teacher should be verified again and an order of stay as an interim measure be granted on the orders dated 02.02.2021 and 03.02.2021 be passed. 19. As the petitioner school has failed to show any right of it to raise any objection as to the transfer order of the teacher and the corresponding legal duty on the part of the Commissioner of School Education and the WBBSE I hold that the petitioner school does not even have any cause of action to move this writ application and any locus to file the writ application. Except for harassing the teacher who has prayed with folded hands before the said feudal head in the form of a headmistress for issuance of a no objection certificate there was no other object for filing such a frivolous writ application by the school. The question of issuance of No Objection is thus pending almost 2 years. The school wanted to cause delay relating to the transfer of the teacher by filing such a frivolous writ application which they have been able to do successfully for last almost 2 years. The Headmistress I hold therefore has abused the process of justice of this country beside deliberately violating the law as has been stated above. Another surprising fact is an e mailsent by the headmistress which is at pages 44 and 45 of the writ application which reads as “Respected Sir I have got two letters as referred above through mail on the matter of General Transfer on special ground to the post of AT against the application done by Aparna Munshi who is an Asst. Teacher of subject Bengali in Upper Primary group of my school till date. But it is for your kind information that a case bearing WP No. 17159(W) of 2019 has been lodged by her in the Hon‟ble Calcutta High Court against school authority Headmistress and Secretary on the matter of transfer is still pending. In these circumstances the school authority of Gandhi Memorial Girls‟ High School is unable to release her as per general law. It is for your kind information and do the needful. Chhabi De Gandhi Memorial Girls‟ High SchoolThis shows that the teacher‟s submission as to the school‟s direction to withdraw her writ application is not baseless. By taking such an arm twisting method for withdrawal of the teacher‟s writ application and for other illegalities stated above the Headmistress has 1) deliberately violated the law 2) has abused the process of the justice of this country and 3) has pressed a citizen the teacher to withdraw her writ application for issuing release order as a bargain from the school and thereby violated the liberty granted the constitution of this county to a citizen here the teacher by using the arm twisting method. I hold that the entire writ application shows want of bona fide and the same is mischievous in nature and is wholly frivolous with an aim to harass the teacher being the writ petitioner in WPA 171519. 23. Such a mischievous headmistress is wholly unfit as a Headmistress of the school and the headmistress who is to issue the release order has actually violated the law and further the constitutional right of a citizen who can maintain his writ application in the High Court. She has even filed a frivolous writ application which is nothing but abuse of process of justice to stall the transfer of the teacher. She cannot be allowed to act as a Headmistress of the school. The headmistress is before me through her learned counsel who has argued the matter in full. I exercising the writ court‟s plenary power under the writ jurisdiction in the special facts and circumstances of these cases denude the Headmistress from all her powers as a Headmistress of the school forthwith she is removed from the post of Headmistress of the school. Henceforth she will act as an assistant teacher of the school and will take classes like any other assistant teachers her scale of pay etc. if necessary can also be varied by the appropriate authority if there is an assistant headmistress she will perform the duty of the headmistress of the school and if there is no assistant headmistress the senior most teacher will act as the headmistress of the school till a regular Headmistress is appointed in the school. The post of the headmistress shall be treated as vacant and the appropriate authority will take immediate steps for filling up the post of the headmistress. If said Chhabi De Konar is found to be an excess teaching staff of the school the commissioner of School Education shall be approached by the School‟s managing committee for transfer of the said excess teacher to any other school as per of her option. 24. A cost of Rs. 20 000 is imposed upon the petitioners of the writ application being WPA 6598 of 2021. It would be paid to the petitioner of WPA 17159 of 2019 within two weeks from date. 25. While I am exercising my jurisdiction under Group Education) as a judge of this court I have found a large number of cases are coming to this court for not issuing no objection certificate to the teachers by the schools. I have passed appropriate directions in such matters for issuance of such Today I feel a direction is required to be passed for all the schools in respect of which the general transfer or mutual transfer is applicable to issue the no objection certificate to the teachers who will file application for no objection within a period of four weeks from the date of receiving of such 15 application by a school unless issuance of such no objection certificate is barred by law. There is no rule within which period the no objection is to be issued by a school to the intending teacher who want a transfer and for this reason this provision is made and as soon as any appropriate rule in this respect would be framed and given effect to by the State this general direction will automatically become inoperative. 26. With the above directions the two writ applications are disposed The Registrar General is directed to send a copy of this order to the Principal Secretary of School Education Department for its circulation to the Schools through District Inspectors of Schools Secondary Education) immediately. Abjijit Gangopadhyay J.)

Where the wife has sufficient income to maintain herself, she will not qualify for getting alimony for herself: Calcutta High Court.

Within the contemplation of section 36 of the Special Marriage Act, a wife will not qualify for getting alimony for herself, if she has sufficient income to maintain herself. A single Judge bench comprising Hon’ble Justice Sabyasachi Bhattacharyya, in the matter of Sri Samit Kapoor Vs. Punam Kapoor Nee Bansal (C.O. No. 1169 of 2021), dealt with an issue where the petitioner presented a revisional application against the same order of alimony granted by the Trial Court, awarding Rs.1 lakh for the wife and the child from the date of the impugned order and litigation costs of Rs.40,000/-. In the present revisional application the husband submitted that the wife had suppressed her income, but on checking the documents and the affidavits on record, it got revealed that the wife had several bank accounts with HDFC and Kotak Mahindra Banks. The husband had also indicated in the revisional application, the wife’s Income Tax return indicates that her gross annual income is Rs.1,15,959/-, whereas the income from interest and investments, including a fixed deposit worth Rs.19,50,000/-. The husband also disclosed in the application the several installments of previous payments made by the husband during the pendency of the alimony application. The husband submitted that the educational and educational expenses of their minor child was being paid by the husband. Further, the husband also pointed that the charges shown by the wife for transport in a school vehicle, was all superfluous as the child was admittedly autistic, she was sent to school in the personal vehicle of the parties, which was used by the wife. Thereby the counsel on behalf of the husband prayed before the court to set aside the order of alimony. However, the husband agreed to bear the educational expenses as well as the medical expenses of the child of the parties. The counsel for the wife contended that the wife had already disclosed the break-up of expenses of the wife as well as the child elaborately. The counsel submitted that the husband suppressed his income. The counsel for the wife in support of the case Ashrukana Das Vs. Raj Kumkar Das, reported at (2016) 1 CLJ 383, stated that the wife was entitled to alimony under section 36 of the Special Marriage Act. The court held that-“ the wife does not qualify for getting alimony for herself within the contemplation of Section 36 of the Special Marriage Act, since the wife has sufficient income to maintain herself. Moreover, adverse inference ought to have been drawn by the Trial Court against the wife for suppression of her income from the interests derived from her huge investments, fixed deposits and bank balance”. Further, the court held that the for the requirements of the child, both the parents should bear it in the ratio of their respective incomes. Where no clear picture of the actual income of the parties can be derived from the affidavits-of-assets, it would be assumed that the husband ought to bear the expenses of the child in view of his liability as a father, since he has substantial earnings as compared to his wife. Thereby the court disposed of the applications by modifying the impugned order, passed by the Additional District Judge, in connection with Matrimonial Suit, which stated that the husband shall, from the date of the impugned order, that is, from the month of February 2021 pay maintenance for the child of the parties at the rate of Rs.50,000/- per month, including all expenses of the child.  Moreover, the court held that the husband shall pay an amount of Rs.50,000/- in lieu of maintenance of the child by the fifteenth of each succeeding month for which the alimony falls due. Lastly, the court made it clear that the order shall remain in effect till disposal of the Matrimonial Suit and, in the event, there was any substantial increase in the medical expenses of the child, the wife would be at liberty to approach the Trial Court, with cogent proof, for a direction upon the husband to pay such expenses. Click here For The Judgement

In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side The Hon’ble Justice Sabyasachi Bhattacharyya C.O. No. 11621 Sri Samit Kapoor Punam Kapoor Nee Bansal C.O. No.5221 Punam Kapoor Nee Bansal Sri Samit Kapoor For the petitioner in C.O. No.11921 and Opposite party in C.O. No.5221 For the opposite party in C.O. No.11921 and petitioner in C.O. No.5221 07 15 Hearing concluded on Judgment on Sabyasachi Bhattacharyya J: Mr. Biswarup Dasgupta Mr. Dwaipayan Basu Mallick Mr. Arkaprava Sen Mr. Subhankar Das Mr. Tanmoy Mukherjee The present revisional applications have been filed against the same order of alimony granted by the Trial Court awarding Rs.1 lakh for the wife and the child from the date of the impugned order and litigation costs of Rs.40 000 . C.O. No.1169 of 2021 has been filed by the husband. Learned counsel for the husband submits that the wife suppressed her income. In the alimony application the wife denied having any income but upon the documents and affidavit of assets of the parties coming on record it was revealed that the wife had several bank accounts. Pages 130 to 147 of the revisional application and pages 148 of 167 of the same are annexures reflecting the wife’s accounts respectively with the HDFC and the Kotak Mahindra Banks. At page 129 of the revisional application the wife’s Income Tax return indicates that her gross annual income is Rs.1 15 959 whereas the income from interest and investments including a fixed deposit worth Rs.19 50 000 was suppressed in the IT returns it is argued. The Kotak Mahindra Bank account has not been disclosed in the initial stages of the alimony application. By placing reliance on the wife’s evidence on further affidavit from pages 173 to 175 of the revisional application learned counsel for the husband points out several admissions and evasive denials made by the wife for which adverse inference ought to have been drawn against her it is submitted. At page 98 of the revisional application the affidavit of assets of the wife disclose an admission of several instalments of previous payments made by the husband during the pendency of the alimony application as well. Hence the wife is not entitled to alimony from the date of the application in any event. Learned counsel for the husband contends that the husband has been paying the educational expenses of the minor child of the parties all along and disclosed his income of around Rs.4 lakh per month in his affidavit of assets particularly at page 82 of the revisional application. However due to the current pandemic situation the condition of the husband’s business has deteriorated. Learned counsel for the petitioner places reliance on Rajnesh Vs. Neha and another reported at2 SCC 324 in particular paragraphs 65 72.8 77 78 81 and 96 thereof and argues that the alimony ought to be awarded from the date of the application only in the event of destitution of the wife. In the present case it is argued by the husband the wife is not a destitute at all rather she has a lavish lifestyle. It is contended that the wife is residing with the minor child of the parties at the husband’s property located at Hindustan Park and the husband’s car is being used by the wife. 9. Moreover the expenses shown for the child are inflated. Since the child is admittedly autistic she is sent to school in the personal vehicle of the parties. As such the charges shown for transport in the school vehicles are superfluous. That apart it is reiterated that the husband has all along been providing the educational and medical expenses of the child. 10. Hence learned counsel for the husband contends that the impugned order of alimony ought to be set aside. However the husband is ready to bear the educational expenses as well as the medical expenses of the child of the parties as and when required directly to the school authorities and or to the institutions where the child is being treated. 11. C.O. No.5221 is filed by the wife on the primary allegation that the Trial Court ought to have granted alimony not from the date of the order but from the date of the application. In this context learned counsel places reliance on Jasbir Kaur SehgalVs. District Judge Dehradun and others reported at 7 SCC 7 and contends that the wife as held by the Supreme Court is generally entitled to alimony from the date of application unless there is any fault on the part of the wife herself. In the present case there being no fault on the part of the wife in delaying the proceeding there was no justification for the court below to grant alimony from the date of the impugned order and deprive the wife and the child from the expenses borne by them during pendency of the alimony application. It is further contended on behalf of the wife that she has disclosed the break up of expenses of the wife as well as the child elaborately. The relevant portions of the alimony application at page 28 and the affidavit of assets of the wife at page 48 both of C.O. No.5221 are placed in support of such contention. 13. Learned counsel for the wife argues that the husband suppressed his income and places reliance on the annexures at pages 117 125 and 126 of C.O. No.528 of 2021 in that regard. The child’s expenses as well as severe autism which is deteriorating day by day is borne out by the annexures at Volume II of C.O.5221 from pages 200 to 214A thereof it is contended. 14. Learned counsel for the wife next cites a judgment rendered by a co ordinate Bench of this Court in Ashrukana Das Vs. Raj Kumkar Das reported at 1 CLJ 383 in support of the proposition that the status of the parties are to be looked into while adjudicating applications under Section 36 of the Special Marriage Act just as in deciding applications under Section 24 of the Hindu Marriage Act. Paragraphs 5 6 and 9 of the said judgment are specifically stressed by learned counsel in this context. 15. Upon hearing learned counsel and perusing the materials on record it is clear that the wife is living a sufficiently luxurious life. It has been disputed by the wife that she is residing at the husband’s property and contended by the wife that the property is of joint ownership both of the husband and the wife. Either way such residence is situated at Hindustan Park in the heart of one of the posh areas of the city of Kolkata. It has not been denied that the wife has been using the husband’s car for conveyance for which the husband is bearing the expenses. Although there may be doubt as to whether the child uses a school vehicle to justify the charges for such transport in view of such transport charges being shown to be deducted by the school as borne out by the documents pertaining to school fees produced by the wife it cannot be construed that the charges for such transport are merely superfluous and exaggerated. 16. As far as the proposition laid down in Jasbir Kaur Sehgal is concerned it was held therein that the wife should normally be entitled to alimony from the date of the application unless there is any fault on the part of the wife in delaying the matter or otherwise. However the fault of the wife cannot be the sole deciding factor in ascertaining whether the wife is entitled to alimony from the date of the order or the application. It has been held by the Supreme Court that generally alimony should be granted from the date of the application. However in the instant case the husband has admittedly been paying substantial amounts lieu of maintenance of the wife as well as for the child including educational as well as medical expenses. Hence there is no scope for granting alimony from the date of the application. Such grant would amount to undue enrichment of the wife at the expense of the husband since the period of pendency of the alimony application was covered by the payments made by the husband. 17. As far as the respective status of the parties are concerned although the husband is earning substantial amounts as per the disclosures made in his affidavit of assets and there is no direct proof of any deterioration in the current condition of the business the materials on record indicate that the wife is leading a high life. She resides at Hindustan Park regularly uses the husband’s car for conveyance and has been looking after the child. The child studies in a reputed school and the medical needs of the child are being taken care of. In such view of the matter this court finds that the wife does not qualify for getting alimony for herself within the contemplation of Section 36 of the Special Marriage Act since the wife has sufficient income to maintain herself. Moreover adverse inference ought to have been drawn by the Trial Court against the wife for suppression of her income from the interests derived from her huge investments fixed deposits and bank balance which are betrayed by her admissions in evidence coupled with the materials disclosed by the wife in and with her affidavit of assets. 19. As far as the requirements of the child are concerned undoubtedly the same should be borne out by the parents in ratio of their respective incomes. However in view of no clear picture of the actual income of the parties having come out from the affidavits of assets and documents filed in the court below it should be assumed that the husband ought to bear the expenses of the child in view of his liability as a father and since he has substantial earnings as compared to his In view of the educational and other expenses of the child including the medical expenses regularly required for treatment of the condition of the child the amount of Rs.50 000 as granted by the Trial Court for the education of the child alone ought to be sufficient for the time wife. being. 21. Accordingly C.O. No. 528 of 2021 and C.O. No.1169 of 2021 are disposed of by modifying the impugned order bearing Order No. 34 dated February 10 2021 passed by the Additional District Judge Tenth Court at Alipore District South 24 Parganas in Miscellaneous Case No.6618 in connection with Matrimonial Suit No.3101 of 2018 to the extent that the husband shall from the date of the impugned order that is from the month of February 2021 pay maintenance for the child of the parties at the rate of Rs.50 000 per month including all expenses of the child. The litigation costs granted by the Trial Court to the tune of a one time payment of Rs. 40 000 is sustained. However the monthly amount of Rs. 50 000 granted as alimony to the wife is set aside. The husband shall clear all arrears from the date of the impugned order till the month of June 2021 if any in respect of the modified amount of Rs. 50 000 for the minor child by July 31 2021. In the event excess payment has been made by the husband in the meantime pursuant to the impugned order the same shall be adjusted from the arrears and or the current alimony to be paid henceforth paid by the husband. The first of the instalments of Rs.50 000 per month as maintenance for the child will be paid by the husband for the month of July 2021 by August 15 2021. The husband shall thereafter go on paying an amount of Rs.50 000 in lieu of maintenance of the child by the fifteenth of each succeeding month for which the alimony falls due. It is however made clear that this order shall remain in effect till disposal of the Matrimonial Suit and in the event there is any substantial increase in the medical expenses of the child subsequent 9 to this order the wife would be at liberty to approach the Trial Court with cogent proof for a direction upon the husband to pay such expenses subject to the satisfaction of the Trial Court as regards the actual necessity of the alleged expenses. 23. There will be no order as to costs. 24. 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. )

Every High Court shall have superintendence over all courts and tribunals throughout the territories: High Court Of New Delhi

The present petitions were filed under Article 227 of the Constitution of India impugn the order dated 7th October 2021 and email dated 12th October 2021 of the sole arbitrator, and the same issue was held in the judgement passed by a single bench judge comprising  HON’BLE MR. JUSTICE AMIT BANSAL, in the matter TELECOMMUNICATION CONSULTANTS INDIA LIMITED V.  B. R. SUKALE CONSTRUCTION dealt with an issue mentioned above. The counsel for the petitioner mentioned that after the order of 7 th October 2021 was passed by the arbitrator in both the arbitrations, a communication was sent by the counsel for the petitioner to the arbitrator stating that the petitioner is allowed to lead evidence in the matter. Later the said request on behalf of the petitioner was rejected by the arbitrator vide the impugned email dated 12th October 2021. Meanwhile, the counsel for the petitioner submits that, The counsel appearing on behalf of the respondent on advance notice submits that: And many more points were mentioned by the counsellor. However, in the present petitions, there is no agreement between the parties concerning the procedure for carrying out the arbitration proceedings. In the absence of any agreement between the parties, the sole arbitrator has the absolute authority to decide on whether to allow the evidence in a particular case or to proceed with the adjudication of the matter based on documents and other materials. They also mentioned that no fault can be found in the decision of the arbitrator in this regard. The reliance of the counsel for the petitioner on the provisos to Section 24(1) of the Arbitration Act is misplaced, There is no merit in the submission of the counsel for the petitioner since, the present arbitrations are not fast track arbitrations as envisaged under Section 29B of the Arbitration Act, there was no requirement to dispense with oral evidence for early disposal of the dispute. Later the counsel for the respondent has rightly relied upon the judgment of this Court in the Surender Kumar Singhal case. The court perused the facts and argument’s presented , it believed that- “Since no exceptional circumstances or exceptional rarity have been demonstrated/made out in the petitions or during the hearing and given the stage at which the arbitration proceedings are, there is no occasion to warrant the exercise of jurisdiction by this Court under Article 227 of the Constitution of India. 19. In view of the above, there is no merit in the present petitions. 20. The petitions and all pending applications are dismissed”. Click here for judgment Judgment Reviewed by: Mandira BS The court perused the facts and argument’s presented , it believed that- “Since no exceptional circumstances or exceptional rarity have been demonstrated/made out in the petitions or during the hearing and given the stage at which the arbitration proceedings are, there is no occasion to warrant the exercise of jurisdiction by this Court under Article 227 of the Constitution of India. 19. In view of the above, there is no merit in the present petitions. 20. The petitions and all pending applications are dismissed”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 28th October 2021 CM(M) 958 2021 TELECOMMUNICATION CONSULTANTS INDIA LIMITED Through Mr. Amit Meharia Mr. Abinash Agarwal and Mr. Akshat Goel Petitioner B. R. SUKALE CONSTRUCTION Through Mr. Ankur Gupta Advocate. Respondent CM(M) 959 2021 TELECOMMUNICATION CONSULTANTS INDIA LIMITED Through Mr. Amit Meharia Mr. Abinash Agarwal and Mr. Akshat Goel Petitioner B. R. SUKALE CONSTRUCTION Through Mr. Ankur Gupta Advocate. Respondent HON BLE MR. JUSTICE AMIT BANSAL VIA VIDEO CONFERENCING] AMIT BANSAL J.CM(M) 958 2021 and CM No.959 2021 CM No.38681 2021in CM(M) 958 2021 and CM No.38683 2021in CM(M) 959 2020. Allowed subject to all just exceptions. The applications are disposed of. CM(M) 958 2021 and CM No.38680 2021and CM(M) 959 2021 and CM No.38682 2021dated 7th October 2021 and email dated 12th October 2021 of the sole arbitrator issued in two separate arbitration proceedings between the same parties. Vide the impugned order direction dated 7th October 2021 the sole arbitrator has observed as under: It is decided that no further evidence by way of witnesses will be held for the time being. Proceedings of the case will begin straightaway by arguments by both claimant and respondents. This was considered appropriate for curtailing delay and all also dispute being of contractual tender nature and all issues are communicated by parties in writing which have already been filed by both parties and taken on record.” The counsel for the petitioner submits that after the order direction of 7th October 2021 was passed by the arbitrator in both the arbitrations a communication was sent by the counsel for the petitioner to the arbitrator stating that the petitioner be allowed to lead evidence in the matter. The said request on behalf of the petitioner was rejected by the arbitrator vide the impugned email dated 12th October 2021. CM(M) 958 2021 and CM No.959 2021 The counsel appearing on behalf of the petitioner states that the aforesaid directions passed by the arbitrator are not tenable as the matter requires evidence to be led for proper adjudication of the arbitrations. The counsel for the petitioner submits that as per Annexure P 12 of the petition being the ‘Affidavit of Admission Denial of Documents’ filed by the respondent herein the documents filed on behalf of the petitioner have been denied. In view of the denial of the documents as aforesaid the same would have to be proved by the petitioner by leading evidence these are not fast track arbitrations as envisaged under Section 29B of the Arbitration Act that are required to be disposed of in an expeditious manner and therefore the arbitrator should have allowed the parties to lead oral evidence as per Sections 19 and 24of the Arbitration and Conciliation Act 1996 since there has been no agreement between the parties with regard to the dispensation of oral evidence the arbitrator ought to have given the opportunity to the petitioner to lead evidence andas per the proviso to Section 24 of the Arbitration Act unless otherwise agreed to by the parties the arbitral tribunal has to hold oral hearings for the presentation of evidence. The counsel appearing on behalf of the respondent on advance notice submits that the arbitrator who is not a legally trained person but a retired Chief Engineer of Bharat Sanchar Nigam Limited has taken a considered decision that no evidence by way of witnesses shall be held for the time being and he shall straightaway proceed with arguments of both the claimant and the respondent in order to curtail delay as per Sections 19 CM(M) 958 2021 and CM No.959 2021 and 24 of the Arbitration Act failing any agreement existing between the parties the arbitrator is free to consider the proceedings in the manner it considers appropriate it is in the sole discretion of the arbitrator to decide whether to take oral evidence in a case or straightaway decide the matter on the basis of documents and other materials and in this regard reliance is placed on the judgment of this Court in Silor Associates SA Vs. Bharat Heavy Electrical Ltd. 2014 SCC OnLine Del 3407 No.370 2014 preferred whereagainst was dismissed on 1st September 2014] iv) taking into account the nature of the dispute between the parties the sole arbitrator has rightly observed that no oral evidence is required in these cases the hearings in the cases have already been held on 20th and 22nd October 2021 and the remaining final arguments are scheduled from 19th November 2021 onwards and there is limited scope of interference under Article 227 of the Constitution of India with the orders passed by the arbitrator in proceedings and in this regard reliance is placed on the judgment of this Court in Surender Kumar Singhal and Others Vs. Arun Kumar Bhalotia and Others. 2021 SCC OnLine 3708 No. 6171 2021 preferred whereagainst was dismissed on 27th April 2021]. I have heard the rival contentions of the parties. 10. Since both parties have placed reliance on various provisions of the Arbitration Act the same are set out below for ease of reference: “18. Equal treatment of parties.—The parties shall be treated with equality and each party shall be given a full opportunity to present his case. CM(M) 958 2021 and CM No.959 2021 19. Determination of rules of procedure.— 1) The arbitral tribunal shall not be bound by the Code of Civil Procedure 1908or the Indian Evidence Act 1872 72). 2) Subject to this Part the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings. 3) Failing any agreement referred to in sub section the arbitral tribunal may subject to this Part conduct the proceedings in the manner it considers appropriate. 4) The power of the arbitral tribunal under sub section includes the power to determine the admissibility relevance materiality and weight of any evidence. 24. Hearings and written proceedings.— 1) Unless otherwise agreed by the parties the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument or whether the proceedings shall be conducted on the basis of documents and other materials: Provided that the arbitral tribunal shall hold oral hearings at an appropriate stage of the proceedings on a request by a party unless the parties have agreed that no oral hearing shall be held. Provided further that the arbitral tribunal shall as far as possible hold oral hearings for the presentation of evidence or for oral argument on day to day basis and not grant any adjournments unless sufficient cause is made out and may impose costs including exemplary costs on the party seeking adjournment without any sufficient cause. CM(M) 958 2021 and CM No.959 2021 2) The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of documents goods or other property. 3) All statements documents or other information supplied to or applications made to the arbitral tribunal by one party shall be communicated to the other party and any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties.” 11. The legal position that emerges from a reading of the aforesaid provisions of the Arbitration Act is summarised below: The Arbitral Tribunal is not bound by the procedure laid down under the Code of Civil Procedure 1908 or the Indian Evidence Act 1872. ii) Parties are free to agree on the procedure to be followed by the Arbitral Tribunal in conducting its proceedings. If there is no agreement between the parties the Arbitral Tribunal may conduct the proceedings in the manner it considers appropriate. iv) The Arbitral Tribunal has the power to determine the admissibility relevance materiality and the weight of any evidence. v) Unless it has been otherwise agreed to by the parties the Arbitral Tribunal has the power to decide whether proceedings shall be conducted on the basis of documents and other materials or whether oral evidence is required or not. In the event that the Arbitral Tribunal decides that oral evidence is required it would hold hearings for presentation of evidence on a day to day basis. CM(M) 958 2021 and CM No.959 2021 12. The scope of the aforesaid provisions have been duly considered by this Court in Silor Associates SA wherein it has been observed as “17. Section 19(1) of the Act inter alia provides that “The Arbitral Tribunal shall not be bound by the Code of Civil Procedure 1908 or the Evidence Act 1872(1 of 1872)”. This means that the Tribunal is not bound by the rigor and strict provisions of the Code of Civil Procedure 1908 CPC) or the Evidence Act 1872states that subject to the provisions of Part I the parties are free to agree on the procedure to be followed by the Arbitral Tribunal in conducting its proceedings. In the present case the parties have not agreed on any specific procedure to be followed by the Arbitral Tribunal in conduct of its proceedings. Section 19(3) states that “failing any agreement referred to in sub sectionthe Arbitral Tribunal may subject to this part conduct the proceedings in the manner it considers appropriate”. Therefore the Arbitral Tribunal is free to devise its own procedure subject to the condition that such procedure should conform with the provisions of Part I of the Act. The procedure that the Tribunal may devise should meet the basic tenets of an adjudicatory process namely that the procedure should treat parties equally and each party should be given a full opportunity to present its caseCM(M) 958 2021 and CM No.959 2021 of vesting the Tribunal with much greater autonomy in the matter of regulating its procedure for conduct of the arbitration proceedings than that exercised by a civil court — which is bound by the rigour of the Code of Civil Procedure CPC) and the Evidence Act. The scheme contained in Section 19 of the Act is not to denude the Arbitral Tribunal of its power to regulate its procedure for effective and expeditious conduct of the arbitration proceedings in a transparent and fair manner. On the contrary the legislative intent appears to be vest the Arbitral Tribunal with autonomy and flexibility in the matter of conduct of its proceedings so as to expedite the proceedings and cut the procedural wrangles witnessed in courts — which are governed by the CPC and the Evidence 20. The procedure that the Tribunal may adopt for conducting the proceedings need not be evolved by consensus of the parties. It is for the Tribunal to devise its own procedure if the parties have themselves not evolved the procedure consensually under Section 19(2).” 13. Admittedly in the present petitions there is no agreement between the parties with regard to the procedure for carrying out the arbitration proceedings. In the absence of any agreement between the parties the sole arbitrator has the absolute authority to decide on whether to allow evidence in a particular case or to proceed with the adjudication of the matter on the basis of documents and other materials. In the present cases the sole arbitrator having decided that the matter can be adjudicated on the basis of the documents on record has held that no evidence by way of witnesses oral evidence is required for the time being. No fault can be found in the decision of the arbitrator in this regard. CM(M) 958 2021 and CM No.959 2021 14. Furthermore the reliance of the counsel for the petitioner on the provisos to Section 24(1) of the Arbitration Act is totally misplaced. The provisos have be read in context of the main provision being Section 24(1) of the Arbitration Act which states that the arbitral tribunal shall inter alia decide whether to hold oral hearings for the presentation of evidence. The provisos to the main provision cannot be read as taking way the absolute discretion of the arbitral tribunal as provided under Section 24(1) of the Arbitration Act or as making the presentation of evidence through oral hearing procedurally mandatory. 15. There is no merit in the submission of the counsel for the petitioner that since the present arbitrations are not fast track arbitrations as envisaged under Section 29B of the Arbitration Act there was no requirement to dispense with oral evidence for early disposal of the dispute. The mandate of the Arbitration Act as amended from time to time is to ensure early and expeditious disposal of all arbitration proceedings. Merely because the arbitration is not being conducted in the fast track procedure does not mean that the arbitration need not be decided in an expeditious manner. Furthermore it may be noted that a time limit of 12 months from the date of completion of pleadings for making an arbitral award has been statutorily specified under Section 29A of the Arbitration Act. As regards the objection of the counsel for the petitioner that the respondent has denied the documents filed on behalf of the petitioner even if the said documents have been denied by the respondent it does not mean that the arbitrator cannot consider the admissibility and the materiality of the said documents at the stage of final hearing. CM(M) 958 2021 and CM No.959 2021 17. The counsel for the respondent has rightly relied upon the judgment of this Court in Surender Kumar Singhal wherein the scope for interference with regard to arbitration matters in exercise of jurisdiction under Articles 226 and 227 of the Constitution of India has been prescribed. Paragraph 25 of the said judgment is set out below: “25. A perusal of the above mentioned decisions shows that the following principles are well settled in respect of the scope of interference under Article 226 227 in challenges to orders by an arbitral tribunal including orders passed under Section 16 of the Act. i) An arbitral tribunal is a tribunal against which a petition under Article 226 227 would be maintainable ii) The non obstante clause in section 5 of the Act does not apply in respect of exercise of powers under Article 227 which is a Constitutional provision iii) For interference under Article 226 227 there have to be exceptional circumstances iv) Though interference is permissible unless and until the order is so perverse that it is patently lacking in inherent jurisdiction the writ court would not interfere v) Interference is permissible only if the order is completely perverse i.e. that the perversity must stare in the face vi) High Courts ought to discourage litigation which necessarily interfere with the arbitral process vii) Excessive judicial interference in the arbitral process is not encouraged viii) It is prudent not to exercise jurisdiction under Article 226 227 ix) The power should be exercised in exceptional rarity or if there is bad faith which is shown CM(M) 958 2021 and CM No.959 2021 x) Efficiency of the arbitral process ought not to be allowed to diminish and hence interdicting the arbitral process should be completely avoided. ” 18. Since no exceptional circumstances or exceptional rarity have been demonstrated made out in the petitions or during the hearing and given the stage at which the arbitration proceedings are there is no occasion to warrant the exercise of jurisdiction by this Court under Article 227 of the Constitution of India. In view of the above there is no merit in the present petitions. 20. The petitions and all pending applications are dismissed. OCTOBER 28 2021 AMIT BANSAL J. CM(M) 958 2021 and CM No.959 2021

Courts are supposed to decide cases on merits and not on technicalities: High Court of Uttarakhand.

The liberal approach has to be adopted in such matters to do complete justice between the parties, particularly in cases where the other side can be compensated with costs. A single Judge bench comprising Hon’ble justice Manoj Kumar Tiwari, in the matter of Mohd. Yunus Vs. Sri Naveen Jha (WRIT PETITION (M/S) No. 806 of 2021). In the present case, the respondent had sought the release of a shop by filing an application under Section 21(1)(a) of U.P. Act No. 13 of 1972, in which the petitioner is the respondent. The petitioner was aggrieved by the order, whereby the adjournment application moved on his behalf was rejected and his opportunity for filing objection was also closed on the ground that adequate time has already been given to the petitioner for filing the objection. The counsel for the petitioner submitted that due to fever, the petitioner’s counsel could not file an objection to the release application within the given time. In support, they referred to the writ petition, which indicated that the petitioner’s counsel was vaccinated for COVID-19. The counsel also gave an undertaking that objection to the release application shall be filed positively within one week. The counsel for the respondent contested that the petitioner is trying to delay, as several opportunities were granted to him, but he did not file his objection. The court observed- “Courts are supposed to decide cases on merits and not on technicalities. The liberal approach has to be adopted in such matters to do complete justice between the parties, particularly in cases where the other side can be compensated with costs.”  It also referred to the Supreme Court’s statement in the case of the State of Punjab & another Vs. Shamlal Murari & another, reported in (1976) 1 SCC 719, where it stated that “Courts are to do justice, not to wreck this end product on technicalities.” Thereby the writ petition was allowed and the petitioner was given liberty to file an objection to 3 the release application within ten days from today, subject to payment of the cost of ` 10,000/- to the respondent within one week.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL ON THE 16TH DAY OF AUGUST 2021 HON’BLE SHRI JUSTICE MANOJ KUMAR TIWARI WRIT PETITIONNo. 8021 Mohd. Yunus. ...Petitioner By Mr. T.P.S. Takuli Advocate) Sri Naveen Jha. By Mr. Siddhartha Sah Advocate) ...Respondent Respondent sought release of a shop by filing an application under Section 21(1)(a) of U.P. Act No. 172 in which petitioner is the respondent. The said application is registered as Rent Control Case No. 118 before Prescribed Authority Civil Judge Senior Division) Nainital. Petitioner is aggrieved by order dated 20.03.2021 whereby adjournment application moved on his behalf was rejected and his opportunity for filing objection was also closed on the ground that adequate time has already been given to the petitioner for filing objection. Learned counsel for the petitioner submits that due to fever petitioner’s counsel could not file objection to the release application within given time. In support of this contention learned counsel for the petitioner has referred to Annexure No. 5 to the writ petition which indicates that petitioner’s counsel was vaccinated for COVID 19 on 16.03.2021. Learned counsel for the petitioner gives behalf of his client that objection to the release application shall be filed positively within one week from today. Learned counsel for the respondent submits that despite seven opportunities granted to him petitioner did not file his objection. Thus according to him this is a delaying tactics adopted by the petitioner who is a tenant in the shop in question. Be that as it may the fact remains that Courts are supposed to decide cases on merits and not on technicalities. Liberal approach has to be adopted in such matters to do complete justice between the parties particularly in cases where the other side can be compensated with costs. Hon’ble Supreme Court in the case of State of Punjab & another Vs. Shamlal Murari & another reported in 1 SCC 719 in paragraph no. 8 has held as follows: ‘Processual law is not to be a tyrant but a servant not an obstruction but an aid to justice. Procedural prescriptions are the hand maid and not the mistress a lubricant not a resistant in the administration of justice. Where the non compliance though procedural will thwart fair hearing or prejudice doing of justice to parties the rule is mandatory. But grammar apart if the breach can be corrected without injury to a just disposal of the case the Court should not enthrone a regulatory requirement into a dominant desideratum. After all Courts are to do justice not to wreck this end product on technicalities.’ Thus having facts & circumstances of the case the writ petition is allowed and the impugned order dated 20.03.2021 is set aside. Petitioner shall be at liberty to file objection to release application within ten days today subject to payment of cost of ` 10 000 to the respondent within one week. As the release application was filed in the year 2018 therefore learned Prescribed Authority is requested to make every endeavor to hear and decide Rent Control Case No. 118 as early as possible preferably within a period of one year from the date of production of certified copy of this order. Let a certified copy of this order be issued within 24 hours.

Bank guarantees cannot be interdicted on account of mere contractual disputes between the parties: High Court of Delhi

It is well settled that a bank guarantee can be interdicted only in exceptional circumstances. Mere contractual disputes cannot be asserted to give rise to special equities. The expression “special equities” is not nebulous. It means peculiar or special circumstances which result in irretrievable injustice. These special equities or special circumstances must be pleaded. This was held in KUBER ENTERPRISES v. DOOSAN POWER SYSTEMS INDIA PVT LTD [O.M.P. (I) (COMM.) 158/2021] in the High Court of Delhi by a single bench consisting of JUSTICE VIBHU BAKHRU. Facts are that the parties had entered into an Agreement whereby the respondent sub-contracted Thermal Power Station to the petitioner. In terms of the Agreement, the petitioner furnished the Bank Guarantee as a Performance Guarantee, it also issued a cheque for an equivalent value. The petitioner claims that there was a significant delay in making the payments under the Agreement. The respondent alleged delay and sent notice to reduce the scope of work of the petitioner. The counsel for the petitioner submitted that he is not seeking an order restraining invocation of the Bank Guarantee on the ground of any alleged fraud. The petitioner rests its case on the ground of special equities and he has invoked clause 25 of the Agreement and sought an amicable resolution of the disputes. The court made reference to the judgment of Apex court in the case of Svenska Handelsbanken v. M/s. Indian Charge Chrome and Others., wherein it was held that “…in case of confirmed bank guarantees/irrevocable letters of credit, it cannot be interfered with unless there is fraud and irretrievable injustice involved in the case and fraud has to be an established fraud…..there should be prima facie case of fraud and special equities in the form of preventing irretrievable injustice between the parties. Mere irretrievable injustice without prima facie case of established fraud is of no consequence in restraining the encashment of bank guarantee”. The court also made reference to the apex court judgment in Hindustan Steel Works Construction Ltd. v. Tarapore & Co. and Anr., wherein it was held that “We are, therefore, of the opinion that the correct position of law is that commitment of banks must be honored free from interference by the courts and it is only in exceptional cases, that is to say, in case of fraud or in a case where irretrievable injustice would be done if bank guarantee is allowed to be encashed, the court should interfere”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Judgment: 19th May 2021 O.M.P.(I)158 2021 KUBER ENTERPRISES Through Mr Tarkeshwar Nath Advocate. ..... Petitioner DOOSAN POWER SYSTEMS INDIA PVT LTD Through ..... Respondent CORAM: HON BLE MR. JUSTICE VIBHU BAKHRU Hearing held through videoconferencing] VIBHU BAKHRU J.IA Nos. 6495 2021 IA 6496 2021 Allowed subject to all just exceptions. O.M.P.(I)158 2021 The petitioner has filed the present petition under Section 9(1) of the Arbitration and Conciliation Act 1996 inter alia praying as under: “i) Direct the Respondent not to invoke and or encash the Performance Bank O.M.P.(COMM.) 158 2021 ii) iii) Guarantees No. 003GT02180720033 of Rs. 1 18 75 000 dated 13.03.2018. till further orders Direct the Respondent not to encash the HDFC bank cheque bearing No. 000209 further orders to Rs. 1 18 75 000 Restrain the Respondent from taking any coercive steps against the Petitioner the Contract dated 3. Mr Nath learned counsel appearing for the petitioner has essentially stressed on two reliefs. First that this Court should restrain the invocation of the bank guarantee in question and second that the respondent be directed not to encash the cheque furnished by the petitioner till further orders. On 27.12.2017 the parties had entered into an Agreement Contract No: DPSI HO Jawa 15 hereafter „the Agreement‟) the respondent sub contracted CHS Civil Works of Jawaharpur Super Thermal Power Stationto the petitioner. In terms of Clause 9.1 of the Agreement the petitioner furnished the Bank Guarantee as a Performance Guarantee. The petitioner claims that it also issued a cheque for an equivalent value. Clause 9.1 of the Agreement is relevant and set out below: O.M.P.(COMM.) 158 2021 “9.1 Performance Bond a) The Subcontractor shall submit to the Contractor as a guarantee of the faithful performance of the obligations under this Subcontract and a guarantee of the quality of Works and materials provided by the Subcontractor an unconditional Performance Bond acceptance to the Contractor In the following manner  Performance Bank Guarantee equivalent to Two point Five percent of Contract Value.  In leu of Performance Bank Guarantee equivalent to Two point Five percentof Contract Value Signed Cheque without date equivalent to Two point Five percent 2.5%) of Contract Value and Five Percent payment hold from progressive payment.  Contractor shall return the cheque and hold Performance Bank Guarantee equivalent to Two point Five percent of Contract Value. The Performance Bond shall expire after expiry date of Warranty Period as defined in Clause 12 WARRANTY] in this Sub contract. Such guarantee shall be binding notwithstanding any variations alterations or extensions of time that may be given or be agreed upon. No interest shall be paid for this b) The Performance Bond shall be provided by a first the Country at Contractor‟s class bank of O.M.P.(COMM.) 158 2021 discretion in the form attached hereto acceptable to the Contractor.” The petitioner claims that the scope of the work was considerably enhanced and the petitioner requested the respondents to correspondingly enhance the value of the Agreement. It is stated that on 08.01.2019 a meeting was held between the parties to sort out the issue of additional financial implication and thereafter on 21.08.2019 to commensurate with the enhanced scope of work the value of the Agreement was revised to ₹66.26 crores. The petitioner claims that there was significant delay in making the payments under the Agreement and the petitioner continued to pursue the respondent for making the payment for extra work executed by it. The petitioner has also annexed several letters along with the petition to the aforesaid effect. By a letter dated 02.04.2021 the respondent reminded the petitioner that the completion date of the Agreement is 30.06.2021 and substantial works are to be completed within the said period. It also cautioned the petitioner that in the event the contract was not completed within the said period liquidated damages would be imposed and the Performance Bank Guarantee would be invoked in accordance with the Agreement. It also pointed out that the delay in execution of the contract would lead to termination of the Agreement. On the same date that is 02.04.2021 the respondent sent another letter informing the petitioner that the petitioner had been unable to complete the contracted works within the O.M.P.(COMM.) 158 2021 contracted period. It also accordingly stated that the Contractorwould perform certain works specified therein directly. In other words the scope of the work contracted to the petitioner was sought to be reduced. The respondent also asked the petitioner to hand over equipment and manpower relating to „dewatering works‟. The petitioner responded to the said letter and disputed the allegations made therein. It claimed that there was no delay on its part and the delay had been caused due to both huge variation in quantity and value of various structures added within the scope of the contract. The petitioner claimed that there were also delays in release of drawings nonetheless the petitioner had endeavored to complete the works within the specified period. 10. Thereafter on 10.04.2021 the petitioner issued a request for settlement of issues in terms of Clause 25 of the Agreement. 11. This Court has examined the averments made in the present petition and there is no ground alleging any fraud on the part of the respondent. Mr Nath learned counsel appearing for the petitioner submits that the petitioner is not seeking an order restraining invocation of the Bank Guarantee on the ground of any alleged fraud. He states that the petitioner rests its case only on the ground of special equities. He submits that the petitioner had invoked clause 25 of the Agreement and sought an amicable resolution of the disputes. However the respondent has not joined the said resolution process and this itself is a ground of special equities in favour of the O.M.P.(COMM.) 158 2021 petitioner. He submits that since the petitioner has invoked the disputes resolution clause and the respondent has not offered an amicable resolution of the disputes the same would provide the petitioner sufficient grounds for seeking interdiction of the Bank Guarantee. He also relied on an order dated 31.12.2020 passed by this Court in O.M.P. (COMM) 442 2020 captioned ISGEC Heavy Engineering Ltd. v. Indian Oil Corporation Ltd. & Anr.. He also relies on the decision of a Division Bench of this Court in Hindustan Construction Co. Ltd. v. National Hydro Electric Power Corporation Ltd. : 2020 SCC OnLine1214 which was referred by a Coordinate Bench of this Court in ISGEC Heavy Engineering Ltd. v. Indian Oil Corporation Ltd. & Anr1 SCC 502 the Supreme Court had held as under: “...in case of confirmed bank guarantees irrevocable letters of credit it cannot be interfered with unless there is fraud and irretrievable injustice involved in the case and fraud has to be an established fraud... O.M.P.(COMM.) 158 2021 irretrievable injustice which was made the basis for grant of injunction really was on the ground that the guarantee was not encashable on its terms....... there should be prima facie case of fraud and special equities in the form of preventing irretrievable injustice between the parties. Mere irretrievable injustice without prima facie case of established fraud is of no consequence in restraining the encashment of bank In Consortium Of Deepak Cable India Limited & Abir Infrastructure Private Limited Thr Abir v. Teestavalley Power Transmission Limited: 2014 SCC Online Del 4741 the Division Bench of this Court had held as under: “145.The legal position which can be summarized would be that a bank guarantee is an independent contract between the bank and the beneficiary and disputes pertaining to bank guarantees have to be resolved de hors the terms of the main contract between the parties or disputes relatable to the main contract between the parties. Where a bank guarantee is a conditional guarantee invocation thereof would have to be in strict conformity with the conditions on which the guarantee is issued. In such a case an injunction can be granted against payment under the bank guarantee if it is found that the condition upon which the guarantee was issued has not been complied with or met. But where the guarantee is unconditional and or the bank has agreed to make payment without demur or protest on the beneficiary invoking the bank guarantee the bank is obliged to honour the same for the reason like letters of credit a bank guarantee if not honoured would cause irreparable damage to the trust in commerce and would deprive vital oxygen to the money supply and money flow in O.M.P.(COMM.) 158 2021 commerce and is necessary for transaction which economic growth. Disputes pertaining to the main contract cannot be considered by a court when a claim under a bank guarantee is made and the court would be precluded from embarking on an enquiry pertaining to the prima facie nature of the respective claim of the litigating parties relatable to the main dispute. The dispute between the parties to the underlying contract has to be decided at the civil forum i.e. a civil suit if there exists no arbitration clause in the contract or before the arbitral tribunal if there exists an arbitration clause in the contract. Pendency of arbitration proceedings is no consideration while deciding on the issue of grant of an interim injunction. That certain amounts have been recovered under running bills and have to be adjusted for is of no concern in matters relating to invocation of bank guarantee. That there are serious disputes on questions as to who the contract are no circumstances justifying granting an injunction pertaining to a bank guarantee. Plea of lack of good faith and or enforcing the guarantee with an oblique purpose or that the bank guarantee is being invoked as a bargaining chip a deterrent or in an abusive manner are all irrelevant and hence have to be ignored. There are only two well recognized exceptions to the rule against permitting payment under a bank guarantee. The same are: the breach of A. A fraud of egregious nature B. Encashment of the bank guarantee would result in irretrievable harm or injustice of an irreversible kind to one of the parties. 147. There is no separate third exception of a special equity justifying grant of an injunction to restrain the beneficiary from receiving under an unconditional bank guarantee and if there exists any third exception of a special equity the same has to be of a kind akin to irretrievable injustice or putting a party in an irretrievable O.M.P.(COMM.) 158 2021 148. Contractual disputes cannot be projected by attempting to urge that the beneficiary under the bank guarantee is in default. Issues of fraud require pleadings to bring out a case of a fraud of an egregious nature and we do not find any brought out in the pleadings. The irretrievable injury or irretrievable injustice or special equity would mean a situation where the party at whose is rendered the bank guarantee In BSES Ltd. v. Fenner India Ltd.: 2 SCC 728 the Supreme Court had observed as under: “10. There are however two exceptions to this rule. The first is when there is a clear fraud of which the bank has notice and a fraud of the beneficiary from which it seeks to benefit. The fraud must be of an egregious nature as to vitiate the entire underlying transaction. The second exception to the general rule of non intervention is when there are „special equities‟ in favour of injunction such as when „irretrievable injury‟ or „irretrievable injustice‟ would occur if such an injunction were not granted. The general rule and its exceptions has been reiterated in so many judgments of this Court that in U.P. State Sugar Corpn. v. Sumac International Ltd. 1 SCC 568 this Court correctly declared that the law was „settled‟.” In Hindustan Steel Works Construction Ltd. v. Tarapore & Co. and Anr.: AIR 1996 SC 2268 the Supreme Court had held as “We are therefore of the opinion that the correct position of law is that commitment of banks must be honoured free from interference by the courts and it is O.M.P.(COMM.) 158 2021 only in exceptional cases that is to say in case of fraud or in a case where irretrievable injustice would be done if bank guarantee is allowed to be encashed the court should interfere. In this case fraud has not been pleaded and the relief for injunction was sought by the contractor Respondent 1 on the ground that special equities or the special circumstances of the case required it. The special circumstances and or special equities which have been pleaded in this case are that there is a serious dispute on the question as to who has committed breach of the contract that the contractor has a counterclaim against the appellant that the disputes between the parties have been referred to the arbitrators and that no amount can be said to be due and payable by the contractor to the appellant till the arbitrators declare their award. In our opinion these factors are not sufficient to make this case an exceptional case justifying interference by restraining the appellant from enforcing the bank guarantees. The High Court was therefore not right in restraining the appellant from enforcing the bank guarantees.” It is well settled that a bank guarantee can be interdicted only in exceptional circumstances. Mere contractual disputes cannot be asserted to give rise to special equities. The expression „special equities‟ is not nebulous. It means peculiar or special circumstances which result in irretrievable injustice. These special equities or special circumstances must be pleaded. 18. Bank guarantees cannot be interdicted on account of disputes between the parties and therefore any allegation that the respondent has been reluctant to join the proceedings for an amicable resolution O.M.P.(COMM.) 158 2021 of the disputes in terms of the Contract is not per se a ground for interdicting an unconditional bank guarantee. In Hindustan Construction Co. Ltd. v. National Hydro Electric Power Corporation Ltd. the division bench of this Court had held that a bank guarantee cannot be interdicted on account of contractual disputes. The relevant extract of the said decision is set out below: “9. The law relating to grant of injunctions to restrain the invocation encashment of unconditional BGs is well settled. BGs are distinct agreements between the banks and its customers and are independent of the main contract between the customer and the beneficiary and therefore disputes between the latter two will have no bearing on the obligation of the bank giving such a guarantee to honour its invocation by the beneficiary in terms of the bank guarantee more so when it is unconditional. The courts are slow to restrain the realization of a BG but have however carved out two exceptions to the rule one being fraud and the other being special equities in the form of irretrievable harm or injustice being caused if encashment is allowed.568 Standard Chartered Bank v. Heavy Engineering Corporation Ltd. 2019 SCC OnLine SC 1638]. 10. Fraud calling for the intervention of the court has to be of an egregious nature. There must be fraud established and mere allegations will not suffice. Fraud in connection with a BG should vitiate its very O.M.P.(COMM.) 158 2021 foundation. It is when the beneficiary seeks to benefit thereby that the courts will restrain encashment. Fraud must be that of the beneficiary and none else. Injunction can be granted also where the bank itself is proved to have knowledge that the demand for payment of the BG U.P. Coop. Federation Ltd. v. Singh Consultants and EngineersLtd.1 SCC 174 Svenska Handelsbanken v. Indian Charge Chrome1 SCC 502]. time. The courts were 21. The law relating to encashment of BGs under the second exception has attained wider dimensions over a period of initially very circumspect and required existence of fraud before it prevented encashment of unconditional BGs. Then it looked into the question of who was in breach of the contract to determine the relief to be granted under pronouncements the scope of what constitutes special equities was expanded to include cases of irretrievable injury extraordinary special equities including the impossibility of the guarantor being reimbursed at a later stage if found entitled to the money and the invocation of the BG being not in terms of the BG itself. In the absence of any straight jacket formula the courts are required to examine each case to find out whether it falls within these heads.” In UP State Sugar Corporation v. Sumac International Ltd.: 1997SCC 568 the Supreme Court authoritatively held that: O.M.P.(COMM.) 158 2021 “..the existence of any dispute between the parties to the contract is not a ground for issuing an injunction to restrain enforcement of bank guarantees” 21. The order dated 31.12.2020 passed by this Court in O.M.P.COMM) 442 2020 captioned ISGEC Heavy Engineering Ltd. v. Indian Oil Corporation Ltd. & Anr is an ad interim order and is not an authority for the proposition that in all cases where the beneficiary of a bank guarantee is reluctant to amicably resolve the disputes the bank guarantee in its favour is liable to be injuncted. In the present case this Court finds no valid grounds for interdicting the invocation of the Bank Guarantee. The petitioner‟s prayer in this regard is accordingly rejected. Insofar as the petitioner‟s claim for return of the cheque is concerned Mr Nath has pointed out that the respondent was obliged to return the same once the petitioner had furnished the Bank Guarantee. On a pointed query from this Court whether any request had been made by the petitioner for return of the said cheque Mr Nath fairly states that no such request was made by the petitioner to the respondent. In view of the above this Court considers it apposite to interdict the respondents from presenting the said cheque for a period of two weeks from today. In the meanwhile the petitioner is at liberty to request the respondent for return of the cheque. In the event the respondent fails O.M.P.(COMM.) 158 2021 MAY 19 2021 to do so the petitioner would be at liberty to approach this Court to apply afresh. It is further directed that in the event any request is made by the petitioner to the respondent for return of the cheque the respondent shall either return the same or respond to the request setting out reasons for its refusal to do so. 26. The petition is disposed of in the aforesaid terms. VIBHU BAKHRU J O.M.P.(COMM.) 158 2021

Law does not expect instigation to be in a specific structure or that it should just be in words: High Court of Allahabad

The Penal Code ends up being relevant regardless of whether the abettor is absent when the offence abetted is committed given that he has instigated the commission of the offence or has connected with at least one or more different people in a conspiracy to commit an offence and in accordance with that conspiracy, the case held by the High court of Allahabad through the learned bench by single bench: Hon’ble Krishan Pahal, J.In the matter of Dr Rajeev Gupta M.D. Versus  State Of U.P. Thru. Sp Cbi/Acb Naval  .[ CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. – 299 of 2022 ] of 2021 dealth with an issue mentioned above. The present anticipatory bail application has been filed on behalf of the applicant in Criminal Case No.690 of 2021, Crime No. RC0062019A0008, under Sections 13(2) r/w 13(1)(e) of PC Act, 1988 and Section 109 IPC, Police Station CBI/ACB, District Lucknow, with a prayer to enlarge him on anticipatory bail. The present case has been registered on the basis of a written complaint by Shri Anmol Sachan, PI/CBI/ACB/Lucknow, dated 23/05/2019 against Dr Sunita Gupta, the then Sr. D.M.O., Northern Railway (N.R.), Divisional Hospital, Charbagh, Lucknow and her husband Dr Rajeev Gupta, Professor, KGMU, Lucknow, U/s 109 IPC & Section 13(2) r/w 13(1)(e) of P.C. Act, 1988. It is alleged in the complaint that Dr Sunita Gupta, the then Sr. D.M.O., Northern Railways, Divisional Hospital, Charbagh, Lucknow was in possession of disproportionate assets to her known sources of income to the tune of Rs 1,80,96,585.33 during the period 01/01/2009 to 12/07/2016, which she can not satisfactorily account for. Dr Rajeev Gupta husband of Dr Sunita Gupta also abetted the possession of assets disproportionate to known sources of income by Dr Sunita Gupta. Per contra, Sri Dharmendra Pratap Singh, Advocate holding the brief of Sri Anurag Kumar Singh, learned counsel for the C.B.I. has vehemently opposed the anticipatory bail application on the ground that the accused has not appeared in court on summons. The present application has been filed after the bailable warrants have been issued against the applicant. The sanction for prosecution has already been received and the charge sheet has been filed in court. Learned counsel for the CBI has further stated that the applicant is a radiotherapist and in the said field of radiotherapy, no private practice is ever seen. The said field is a specialized field and is undertaken in large Institutions and the set-up required for practising in radiotherapy goes to the tune of multi crores.

Court No. 11 Case : CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U S 438 CR.P.C. No. 2922 Applicant : Dr. Rajeev Gupta M.D Opposite Party : State Of U.P. Thru. Sp Cbi Acb Naval Counsel for Applicant : Purnendu Chakravarty Counsel for Opposite Party : Anurag Kumar Singh Hon ble Krishan Pahal J 1. Heard Sri Purnendu Chakravarty learned counsel for the applicant and Sri Dharmendra Pratap Singh Advocate holding brief of Sri Anurag Kumar Singh learned counsel for the C.B.I 2. The present anticipatory bail application has been filed on behalf of the applicant in Criminal Case No.6921 Crime No. RC0062019A0008 under Sections 13(2) r w 13(1)(e) of PC Act 1988 and Section 109 IPC Police Station CBI ACB District Lucknow with a prayer to enlarge him on anticipatory Brief Facts: 3. The present case has been registered on the basis of a written complaint by Shri Anmol Sachan PI CBI ACB Lucknow dated 23 05 2019 against Dr. Sunita Gupta the then Sr. D.M.O. Northern Railway Divisional Hospital Charbagh Lucknow and her husband Dr. Rajeev Gupta Professor KGMU Lucknow U s 109 IPC & Section 13(2) r w 13(1)(e) of P.C. Act 1988. It is alleged in the complaint that Dr. Sunita Gupta the then Sr. D.M.O. Northern Railways Divisional Hospital Charbagh Lucknow was in possession of disproportionate assets to her known sources of income to the tune of Rs 1 80 96 585.33 during the period 01 01 2009 to 12 07 2016 which she can not satisfactorily account for. Dr Rajeev Gupta husband of Dr. Sunita Gupta also abetted the possession of assets disproportionate to known sources of income by Dr. Sunita Gupta 4. The investigation revealed that Dr. Sunita Gupta was posted as Sr. D.M.O. N.R. Division Hospital Lucknow up to October 2015. She was transferred to Modern Coach Factory Rae Bareli in same capacity wherein she joined on 16 11 2015 in compliance of Order No. 940E 1A Medical Officer dated 05 11 2015 DRM Lucknow. Since then she is serving in MCF Rae Bareli and staying in the Guest House of MCF Rae Bareli Occasionally she comes to Lucknow. Dr. Sunita Gupta retained Government Accommodation allotted to her at Lucknow with due permission from competent authority. While Dr. Sunita Gupta resided in Rae Bareli her husband Dr. Rajeev Gupta resided in her official residence at Type IV 24 Church Road Railway Colony Lucknow 5. During investigation of RC 006 2016 A 002 by Shri Anmol Sachan searches were conducted by Sh Sandeep Pandey PI CBI ACB Lko in presence of the CBI Team & independent witnesses at official residential premises of Dr. Sunita Gupta at IV 24 Church Road Railway Colony near Fatehli Chauraha Charbagh Lucknow on 12 07 2016. At the time of searches. Dr Sunita Gupta was posted at Rae Bareli. Her husband Dr. Rajeev Gupta was present in the official residence of Dr. Sunita Gupta 6. During the course of house search a Search List was prepared vide which total six items including documents and cash was seized. Two Steel Almirah were kept in the Drawing Room which were opened with the keys provided by Dr. Rajeev Gupta. The Almirah contained huge currency notes. Total Rs 1 59 00 000 were found in the Almirah. Enquiry was made from Dr. Rajeev Gupta about the source of money. He took the plea that the said cash has been earned by him through private practice. The plea taken by Dr. Rajeev Gupta was not found satisfactory. Hence the said amount was seized. In addition to Rs 1 59 00 000 an amount of Rs 70 700 was also found in the Steel Almirah which was left for their day to day expenditure. During searches various documents pertaining to investments by Dr. Sunita Gupta and Dr. Rajeev Gupta were found and seized vide Search List dated 12 07 2016 by Sh Sandeep Pandey the then PI CBI ACB Lko i.e. "List of Insurance Policies & FDs "List of NSC KVP" "List of SB A c detail and PPF A c Currency Notes Rs 1.59 00 000 seized vide Details of Currency Notes". In the said house of the wife of the applicant the house hold items articles a separate Inventory Memo was prepared annexed with the search list. In the Inventory Memo details i.e. date time cost of requisition mode of acquisition and details of items articles was noted. During the house search of Dr. Sunita Gupta a locker key of Locker No 203C Central Bank of India Alambagh Branch Lucknow was seized and the said locker was operated by Sh Atul Dikshit PI CBI ACB Lucknow in the presence of Dr. Sunita Gupta and independent witnesses and vide "Bank Locker Operation Cum Seizure Memo" dated 12 07 2019 amount of Rs. 9 43 000 was seized from the said locker. The I.O. of the present case seized relevant documents. recovered cash amount from Shri Anmol Sachan vide Handing Over Taking Over taking Memo 7. The pay details of Dr. Sunita Gupta and Dr. Rajeev Gupta for the check period were collected and relevant witnesses examined to prove their income Further Sh Sandeep Pandey PI CBI ACB Lko and his CBI team including independent witnesses to the search conducted on the official residence of Dr. Sunita Gupta were examined and they proved the Search List along with Inventory Memo dated 12 07 2016. Dr. Rajeev Gupta was present during the searches and was provided a copy of Search List dated 12 07 2016. They corroborated the seizure of Rs 1.59 crore from the official residential premises of Dr Sunita Gupta on 12 07 2016 along with other seized documents 8. During investigation the I.O. collected the records from various banks pertaining to accounts maintained by Dr. Sunita Gupta & Dr. Rajeev Gupta and examined relevant witnesses for ascertaining balance at the start of the check period and at the end of the check period. The I.O. also calculated the interest received in the account and balance in the account at the end of 9. The I.O. collected the records from School Colleges to prove the expenditures incurred by Dr. Rajeev Gupta & Dr. Sunita Gupta and recorded the statements of the relevant witnesses The I.O. collected the records from Post Offices to give the due benefit to accused regarding their income during the check period. The I.O. also collected the records from Post Offices to prove investments in the name of Dr. Rajeev Gupta & Dr Sunita Gupta during the check period and recorded the statement of relevant witnesses 10. On 12 07 2019 the CBI team in presence of independent witnesses had found & seized currency notes amounting Rs 1.59 crore from official residence of Dr. Sunita Gupta. At the time of searches Dr. Sunita Gupta was posted at Rae Bareli and not present in the house. The currency notes were kept in different shelves of almirah. A large number of envelopes of different shape size & colour were found in the almirah. The envelopes were opened & inside the envelopes currency notes of different denominations were found tied with rubber bands On the envelopes some details regarding cash in the envelope was mentioned. All the currency notes were taken out from a large number of different envelopes. Denomination wise the currency notes were segregated counted with the help of Currency Note Counting Machine. Thereafter denomination wise bundles were made & seized. The envelopes paper slips rubber band were not seized as the same were not required. Dr Rajeev Gupta had claimed that every envelopehad the paper slip containing details of the patient name along with the amount received by the individual patient and that the CBI team took the cash from the envelopes and taken the envelopes with slip and left rubber bands. However the CBI team stated that only Rs. 1.59 crore cash was seized and no such slip or envelope was taken seized by them. Hence accused Dr. Rajeev Gupta was having all the opportunity to keep the said envelops paper slips with himself in safe custody so that he might produce the same as documentary evidence in his defence as he has claimed that the said envelope paper slip were having details of patients and amounts received by him through private practice. This shows that the said envelopes paper slips were not having any information details of patients amount as claimed by Dr. Rajeev Gupta 11. Dr. Sunita Gupta has taken the plea that the amount of Rs 1.59 crore seized in the case has no relation with her and stated that as the amount was seized from the almirah of Dr. Rajeev Gupta he will inform the source. Applicant Dr. Rajeev Gupta had claimed during the searches that the recovered amount of Rs. 1.59 crore from the official residence of Dr. Sunita Gupta belonged to him earned by him through private practice. He was issued Orderto produce documents source showing income pertaining to recovery of cash amount of Rs 1.59 crore on 12 07 2016 12. In response to notice U s 91 Cr.P.C. applicant Dr. Rajeev Gupta stated that after marriage in 1993 he himself & his wife Dr. Sunita Gupta started a clinic at their residence at Mahanagar Mamta Mother & Child Care Center"). On 24 03 2000 they shifted to the Railway Quarter allotted to his wife and he was doing practice from there. Patients were coming to him for treatment of Cancer consultancy in emergency and he charged regular fees from the patients. He is paid by various Doctors owners of Nursing Home & patients for his professional advice wherein he treated cancer patients after office hours. He named such Doctors and Nursing Homes. The amount received from such practice always became a handsome amount every month He also visited some patients for their treatment. He attended Hepatitis B Immunization & Cancer Awareness Program in Lucknow in 2005 along with Dr. Uttam Tiwari who used to run NGO Research India. He gave consultancy to patients and earned money. He used to get large number of patients through this NGO for treatment of Cancer disease. Dr. Rajeev Gupta further named various Doctors and Hospital owners who sent him Cancer patients for consultation prescription of medicine test. chemotherapy radiation etc. and requested for their 13. The statements of the following witnesses were taken under Section 161 Cr.P.C. by the I.O.: a) Dr. Rakesh Mishra BSc MBBS MD."Urmila Hospital" Priyadarshani Colony Sitapur Road Lucknow b) Dr. Rajesh Yadav M.B.B.S. M.D. Managing Director Autar Hospital Diabetic & Trauma Centre adjacent Diamond Palace & Petrol Pump. Talkatora Road Lucknow c) Dr. Rukhsana Khatoon Managing Director "Rukhsana Medical & Trauma Centre 20 Deen Dayal Road Ashaarfabad d) Dr. Ishtiyaq Ahmed BUMS Managing Director "Star Hospital" Hardoi Road Tahseenganj P.S Thakurganj e) Dr. Maroof Ahmed R o 498 5KA Nawab ganj Barabanki f) Dr. Neeraj Tandon Prop. "Day Care Chemo Therapy Center" from 25 to 27 Vasundhara Complex Sector 16 Behind Easy Day Near Petrol Pump Lucknow 14. The aforesaid witnesses have stated that Dr. Rajeev Gupta attended patients in their hospital after office hours gave consultation prescriptions for medicines tests & also conducted Chemotherapy of the patients. If any patients treated by Dr Rajeev Gupta needed Radiation he helped in getting Radiotherapy treatment at KGMC for which patient made payments to KGMC Hospital. Dr. Rajeev Gupta received payments from patients for their treatment through the hospital staff. They furnished the estimated payments made to Dr Rajeev Gupta towards treatment of cancer patients done by him Dr. Uttam Tiwari who used to run NGO Research India could not be examined as he has already expired around 2015. Further Dr. Ranjeet Singh MBBS MS. S o S. P. Singh Managing Director "Amrit Hospital". Super Specialty Hospital & Trauma Center Gandhi Colony Kashipur Road Rudrapur Uttarakhand and Dr. Mahender Pal S o Sh Pritam Ram Ex MLA R o Vill Ami PO Gahluya PS Jahanbad Pilibhit U.P. on examination stated that they sent a large number of patients to Dr. Rajeev Gupta for their treatment of cancer and Dr. Rajeev Gupta took his consultation treatment charges on his own. Dr. Pankaj Agrawal M.S. FIAGES Managing Director "Rajchandra Hospital. 554 Ga 256 Damodar Nagar VIP Road Alambagh Lucknow also stated that Dr. Rajeev Gupta treated few cancer patients at his hospital. The above said Doctors were directed to furnish the documentary evidence pertaining to details of the patients treated in their hospitals clinic on their reference by Dr Rajeev Gupta. However they could not furnish any documentary evidence in this regard to prove the treatment of the cancer patients by Dr. Rajeev Gupta they expressed their inability to furnish the records of patient treatment sought for the period 2010 2016. The same being very old one and due to lack of storage area and Medical Council of India guidelines they are not required to maintain records of the period more than 3 years and as such the same is burnt destroyed 15. The applicant or any other person summoned examined during the investigation could not produce any valid documentary evidence in support of their statement or explanation offered by applicant that the total amount of Rs. 1.59 crore seized from the official residence of Dr. Sunita Gupta on 12 07 2016 was actually earned by applicant by indulging in private practice after office hours 16. In respect of the applicant the Sanction for Prosecution has been accorded by the competent authority and the same has been received vide Letter No. KGMU C 79 2021 dated 30 06 2021 issued by Lt. Gen. Bipin Puri. Vice Chancellor King George Medical University U.P. Lucknow for launching prosecution U s 109 IPC r w 13(2) r w 13(1)(e) of P.C. Act 1988 Rival Contentions: 17. Learned counsel for the applicant has stated that the applicant has been falsely implicated in the matter. The money recovered from his possession is his genuine and hard earned money. Learned counsel for the applicant has further placed reliance on the statement of various doctors which have been examined by the Investigating Officer during investigation who have categorically stated that the applicant used to treat various cancer patients in private and the money is a result of the said 18. Learned counsel for the applicant has further stated that the applicant is the Head of Department in K.G.M.U. Lucknow. In case the applicant is released on anticipatory bail he will not misuse the liberty of bail and the applicant is ready to cooperate in trial 19. Per contra Sri Dharmendra Pratap Singh Advocate holding brief of Sri Anurag Kumar Singh learned counsel for the C.B.I has vehemently opposed the anticipatory bail application on the ground that the accused has not appeared in court on summons The present application has been filed after the bailable warrants have been issued against the applicant. The sanction for prosecution has already been received and the charge sheet has been filed in court 20. Learned counsel for the CBI has further stated that the applicant is a radio therapist and in the said field of radio therapy no private practice is ever seen. The said field is a specialized field and is undertaken in large Institutions and the set up required for practicing in radio therapy goes to the tune of multi crores 21. Learned counsel for the applicant has failed to accord any tenable explanation for the recovered amount. He has further argued that the applicant is not authorized to take private practice as he is employed in a Government institution 22. The Apex Court in para 92.3 and 92.4 of Sushila Aggarwal and Others vs. Stateand Another reported in 2020) 5 SCC 1 has observed as under: 92.3. .....................While considering an applicationthe court has to consider the nature of the offence the role of the person the likelihood of his influencing the course of investigation or tampering with evidence likelihood of fleeing justiceetc The courts would be justified and ought to impose conditions spelt out in Section 437(3) Cr. PC are dependent on facts of the case and subject to the discretion of the court 23. In the case of P.S. Kirupanandhan Vs State Cri. A. No 3817 and Cri MP No. 82517 the Hon ble Madras High Court has rejected the submissions made by the accused applicant and decided that in DA cases the explanation offered by the accused must be supported with valid documentary evidences. Hence the explanation argument of the accused other person cited in defence is not tenable valid and lawful. The arguments tendered on behalf of the applicant are not based on concrete facts but are vague and general. The case is not fit for the anticipatory bail 24. The medical practitioner administer an oath at the time of convocation as provided by Indian Medical Association which is an extension of Hippocratic oath taken the world over. The oath is not merely a formality. It has to be observed and followed in letter and spirit. It is on these lines that the apex medical education regulator National Medical Commission has suggested that the Hippocratic oath be replaced by CHARAK SHAPATH during the convocation ceremony for graduates in medical services. The medical and legal fields are more a service than a profession especially the stream of oncology which deals with life and death 25. Corruption is a termite in every system. Once it enters the system it goes on increasing. Today it is rampant and has become a routine. Corruption is root cause of all the problems such as poverty unemployment illiteracy pollution external threats underdevelopment inequality social unrest. The menace has to be put to account. The offence is against the society. The Court has to balance the fundamental rights of the accused to the legitimate concerns of the society at large vis a vis the investigating agency. 26. The task of the Court is manifold. Firstly it has to ensure that there is no unwarranted misuse or abuse of process to encroach upon life and liberty of the applicant as enshrined under Article 21 of the Constitution. Secondly it has to seen that the Rule of law is followed and the administration of justice is not hampered the guilty is brought to book 27. In view of the above the present anticipatory bail application is dismissed Order Date : 25.2.2022

Strong suspicion cannot take the place of proof: Supreme Court of India

Accused cannot be held convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt. Supreme Court of India upheld the judgment of the High Court and acquitted the accused convicted on the charges of murder in the case of The State of Odisha vs. Banabihari Mohapatra and Anr [Special Leave Petition (Crl.) No.1156/2021] presided over by the bench of Hon’ble Justice Indira Banerjee and Justice Hemant Gupta. In the above-cited case, a special leave petition was filed by the state of Odisha challenging the order by the High Court for acquitting the respondents from charges under Sections 302/201 read with Section 34 of the Indian Penal Code (IPC). Petitioner’s counsel argued that the High Court had committed an error by acquitting the convicts charged for serious offences like Murder. Earlier in the case, a complaint FIR was lodged by the complainant for the murder of her husband caused by electric shocks. The complainant had alleged that the Accused No.1 Banabihari Mohapatra, his son Luja, being the Accused No.2, and other accomplices committed murder of her husband by applying an electric shock to him after administering some poisonous substances to him. In the Trial Court, because of lack of evidence, both the accused were acquitted u/s 235(1) of the CrPC. The post mortem doctor opined that the deceased was intoxicated with alcohol and the death was either accidental, or homicidal, but not suicidal. There was no conclusive evidence that the death was homicidal. The Medical Officer found electrical wounds in the leg which were sufficient to cause death. He opined that the injuries sustained by the deceased might have been due to contact with live electric wire. He opined that the contact was prolonged. The injuries were ante mortem. And no evidence of murder could be found from the testimonies of several witnesses and the prosecution failed to prove the link between all the incidents which happened on the day of her husband’s death. The court observed that the prosecution miserably failed to establish the guilt of the Accused Respondents. Referring to the judgments of Sadhu Saran Singh v. State of U.P. reported in 2016 (4) SCC 357, the court stated that “Before a case against an accused can be said to be fully established on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn must fully be established and the facts so established should be consistent only with the hypothesis of the guilt of the accused. There has to be a chain of evidence so complete, as not to leave any reasonable doubt for any 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”. Hence, the Apex Court upheld the judgment of the Trial Court and High Court and mentioned that there was a strong possibility that the accused, intoxicated with alcohol, might have accidentally touched a live electrical wire, while he was asleep, and therefore, the accused were acquitted from the charges of the murder and the special leave petition was dismissed by the bench Supreme Court

Reportable IN THE CRIMINAL APPELLATE JURISDICTION Special Leave PetitionNo.1156 2021 The State of Odisha ...Petitionerof the Cr.P.C. The prosecution appears to have examined 9 witnesses. There are no eye witnesses to the incident. The deceased had apparently died in a room held by the Accused Respondent No.1. The Accused Respondents did not abscond. The Accused Respondents themselves informed the complainant that the deceased was lying still and motionless not responding to calls The post mortem Report of the deceased reveals that the cause of death was electric shock suffered by the deceased within 24 hours from the time of examination. On post mortem examination the Doctor found food particles including meat in the stomach of the deceased and also detected smell of alcohol. The post mortem doctor opined that the deceased was intoxicated with alcohol and the death was either accidental or homicidal but not suicidal. There is no conclusive evidence that the death was homicidal The complaint lodged by the complainant is apparently based on suspicion. Since the Accused Respondents had informed the complainant that the deceased was lying still and motionless not responding to calls and the body of the deceased was found at the premises of the Accused Respondent No.1 the complainant has assumed that the Accused Respondents killed the deceased In evidence the complainant said that the Accused Respondent No.1 Banabihari had taken a loan of Rs.20 000 from the deceased which he had not repaid even though the deceased had asked him to repay the amount. Significantly there is no whisper in the FIR of any loan taken by the Accused Respondent No.1 from the deceased. The reference to the alleged loan appears to be an afterthought in an attempt to insinuate a motive for killing the deceased. The mere fact that the deceased was lying dead at a room held by the the Accused Respondent No.1 and that the Accused Respondents had informed the complainant that the deceased had been lying motionless and still and not responding to shouts and calls does not establish that the Accused Respondents murdered the deceased. At the cost of repetition it is reiterated that the post mortem report suggests that the death could have been accidental. 19. We have perused the evidence of the nine Prosecution Witnesses namely the first Prosecution Witness Dhanjaya Tadu younger brother of the deceased the second Prosecution Witness Gitanjali Tadu wife of the deceased the third Prosecution Witness Ajay Sahoo a Shop Keeper at the locality where dead body of the deceased was found the fourth Prosecution Witness Smt. Bijayalaxmi Tadu sister of the deceased the fifth Prosecution Witness Bailochan Bej a Barber by profession who knew the complainant and the deceased as also the accused persons who resided in the Chandabali Police Station area the sixth Prosecution Witness Manmohan Sutar an auto driver the seventh Prosecution Witness Aswini Kumar Nayak a cultivator residing at Nayahat in the Chandabali Police Station area of Bhadrak the 8th Prosecution Witness Dr. Bhisma Parida being the Doctor who conducted the autopsy post mortem examination of the deceased and the ninth Prosecution Witness Smt. Kumari Behera Sub Inspector of Police who was the Investigating Of the nine Prosecution Witnesses three witnesses namely the third Prosecution Witness Ajay Sahoo the fifth Prosecution Witness Bailochan Bej and the seventh Prosecution Witness Durga Charan Nayak were declared hostile by the Prosecution 21. The third Prosecution Witness said that he had only seen the police shifting the dead body of the deceased and knew nothing more about the case. Nothing has emerged from his cross examination by the Public Prosecutor. In his cross examination by the defence he said there was no electric connection in the house from which the body of the deceased was brought out. He even said that the Accused Respondents did not own any shop dealing with electric appliances. No credence can be given to this witness The fifth Prosecution Witness Bailochan Bej denied knowledge of the case. He said that the police had not examined him nor recorded any statement made by him. In cross examination by the prosecution he only said that he had a saloon at Chandabali Police Station Bhadrak He categorically denied having made the statements attributed to him by the police The seventh Prosecution Witness Durga Charan Nayak only said that he had seen the body of the deceased in the rented place near the Chandabali bus stand with bleeding injury on his right leg and blood oozing from his mouth and nostrils. He said he did not know how the deceased suffered the injury or died. Nothing significant has emerged from his cross examination by the Public Prosecutor. The sixth Prosecution Witness Manmohan Sutar deposed that he knew the informant the deceased as also the Accused Respondents. In a nutshell he only confirmed that the dead body was in the shop of the Accused Respondents in Home Guard uniform. Inquest of the body was conducted in his presence. He identified his signature in the Inquest Report. He also said he had noticed a bleeding injury in the right foot of the deceased and blood oozing from the mouth and nostrils. All the three witnesses related to the deceased that is the second Prosecution Witness being the wife of the deceased the first Prosecution Witness being the younger brother of the deceased and the fourth Prosecution Witness being the sister of the deceased have more or less reiterated what has been stated in the FIR with embellishments There are however apparent inconsistencies inaccuracies and inherent improbabilities in the statements of these witnesses These three witnesses deposed that they suspected that the accused Respondents had killed the deceased as the deceased was asking the Accused Respondents to repay Rs.20 000 which the deceased had advanced to the Accused Respondents by way of loan However as observed above there is no whisper of the alleged loan in the FIR lodged by the complainant wife being the second Prosecution That apart the first and fourth Prosecution Witnesses have admitted in cross examination that they did not have first hand knowledge of the loan alleged to be advanced by the deceased to the Accused Respondent No.1. The first Prosecution Witness said that the complainanthad told him that the Accused Respondent No.1 had not repaid loan of Rs.20 000 to the deceased. The fourth Respondent said she had heard about the loan from her deceased brother. Though she said that the loan was given to the Accused Respondent No.1 at the time of his daughter’s marriage she could not say how long ago the loan was given. She could not even tell the approximate date or year of marriage of the Accused Respondent No.1’s daughter. From the evidence of the first and the second Prosecution Witnesses it transpires that the deceased had left his house at around 10.00 a.m. on 22nd June 2014 to go to his Aunt’s house in connection with his Aunt’s daughter’s marriage. He was wearing a gold chain and two gold rings and carried Rs.800 with him for buying a pair of trousers and shirt and Rs.5000 for articles for the marriage. Enquiries however revealed that he had not gone to his Aunt’s house. It is however difficult to understand why the deceased should have been wearing his home guard uniform if he were going to visit his Aunt in connection with the marriage of his Aunt’s daughter. There is evidence to show that the deceased was found in his home guard uniform. The relevance of the plan of the deceased to go to his Aunt’s house or his plan to buy clothes etc. is also not clear. This is in no way linked to the incident of death of the deceased. Prosecution has failed to show a link between the proposed visit of the deceased to his Aunt’s house with the guilt if any of the Accused Respondents. The evidence of the first Prosecution Witness Dhanjaya Tadu brother of the deceased that he had found the motor cycle of the deceased in front of the shop of the accused persons on the evening of the 22nd June 2014 is difficult to accept. He said he had asked the second accused about whereabouts of his brother to which the second accused had expressed ignorance but on the next day the second Accused Respondent and his father informed them that his brother was lying senseless. It seems rather unnatural that this witness who was the brother of the deceased should have chosen not to make any inquiry either in the police station or in the neighbourhood even after seeing the motor cycle of the deceased in front of the shop and after being told his brother was not in the shop. No attempt was made to look for the deceased even though he did not return home all night. The eighth Prosecution Witness Dr. Bhisma Parida who had at the time of death of the deceased been posted as Medical Officer at CHC Chandabali and had conducted the autopsy post mortem examination of the deceased at around 1.00 p.m. on 24th June 2014 deposed that the deceased died due to electrical injury suffered within 24 hours of the autopsy. The stomach of the deceased was full of food particles including meat and there was smell of alcohol. The deceased had been intoxicated with alcohol. The Medical Officer found electrical wounds in the leg which were sufficient to cause death. He opined that the injuries sustained by the deceased might have been due to contact with live electric wire. He opined that the contact was prolonged. The injuries were ante mortem. This witness was of the opinion that the death may have been accidental or homicidal but not suicidal. Nothing significant has emerged from the oral evidence of the ninth Prosecution Witness Smt. Kumari Behera the Investigating Officer to establish the guilt of the Accused Respondents. She only stated that the fifth Prosecution Witness had in course of examination stated before her that the first Accused Respondent and the deceased used one of the quarters where they regularly took tiffin and they were both present there on the date of the incident in Court. The fifth Prosecution Witness however denied having made any such statement to the Police and remained unshaken in cross examination by the Public Prosecutor. He only admitted that he had a saloon in the area but denied knowing the deceased the Accused Respondents or the informant. The fifth Prosecution Witness said that the Police had neither examined him nor recorded his statement In her deposition the Investigating Officer also said that some local persons had stated that the first Accused Respondent Banabhihari had out of animosity killed the deceased by applying electric current The oral evidence of the Investigating Officer in this regard is totally vague and devoid of particulars. The Investigating Officerhad neither named the local persons nor enquired into the source of their information if any. The local persons have not been examined as The Prosecution miserably failed to establish the guilt of the Accused Respondents. The Trial Court rightly acquitted the Accused Respondents. There is no infirmity in the judgment of the Trial Court that calls for interference As held by this Court in Sadhu Saran Singh v. State of U.P reported in 2016SCC 357 an appeal against acquittal has always been on an altogether different pedestal from an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced the appellate court would interfere with the order of acquittal only when there is perversity In this case it cannot be said that the reasons given by the High Court to reverse the conviction of the accused are flimsy untenable or bordering on perverse appreciation of evidence Before a case against an accused can be said to be fully established on circumstantial evidence the circumstances from which the conclusion of guilt is to be drawn must fully be established and the facts so established should be consistent only with the hypothesis of guilt of the accused. There has to be a chain of evidence so complete as not to leave any reasonable doubt for any 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. In Shanti Devi v. State of Rajasthan reported in 12 SCC 158 this Court held that the principles for conviction of the accused based on circumstantial evidence are “10.1. The circumstances from which an inference of guilt is sought to be proved must be cogently or firmly 10.2. The circumstances should be of a definite tendency unerringly pointing towards the guilt of the 10.3. The circumstances taken cumulatively must form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else 10.4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” Keeping the above test in mind we have no iota of doubt that the Trial Court rightly acquitted the Accused Respondents. There is a strong possibility that the accused who was as per the opinion of the doctor who performed the autopsy intoxicated with alcohol might have accidentally touched a live electrical wire may be while he was asleep. The impugned judgment of the High Court dismissing the appeal on the ground of delay does not call for interference under Article 136 of the Constitution of India. It is well settled by a plethora of judicial pronouncement of this Court that suspicion however strong cannot take the place of proof. An accused is presumed to be innocent unless proved guilty beyond reasonable doubt. This proposition has been reiterated in Sujit Biswas v. State of Assam reported in AIR 2013 SC 3817. In Kali Ram v. State of Himachal Pradesh reported in AIR 1973 SC 2773 this Court observed: “Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence the view which is favourable to the accused should be adopted This principle has a special relevance in cases where in the guilt of the accused is sought is to be established by circumstantial evidence.” For the reasons discussed above we find no ground to interfere with the impugned judgment and order of the High Court under Article 136 of the Constitution of India. Consequently the Special Leave Petition is dismissed. Pending application stands disposed of. [Indira Banerjee New Delhi February 12 2021 [Hemant Gupta

Courts are concerned with the decision-making process, not just the decision: Supreme Court

While dismissing an appeal, the Supreme Court bench refrained from going into comparing individual merits. The Bench stated that in the matter of judicial reviews, the courts are concerned with the process of decision making and not just the decision itself. This was held by the Supreme Court Bench comprising of Justice K.M. Joseph and Justice Pamidighantam Sri Narsimha, in the matter between Sushil Kumar v State of Haryana & Others, decided on January 19, 2022. The present appeal arose out of a judgment delivered by Punjab & Haryana High Court, passed in the year 2015.The appellant was a Police constable, was positioned as Head Constable under the extent policy and his name was recommended by the SP for promotion in the year 2004. However, his name was dropped down by the IG. After three years, his name was again forwarded and he got promoted in the year 2011. His grievance is that he should have been promoted in 2004 itself, since he was more meritorious than the ones promoted. He has pleaded a retrospective promotion from the year 2004. The counsels on behalf of the appellant have stated that the IG is not the appellate authority and therefore had no right to drop down a recommendation. The appellant was given no opportunity of hearing and was not given any reason. It was submitted that this decision was solely arbitrary and the candidate was more meritorious than the others. The respondents submitted that as per the rules of Punjab Police Act, 1934, the promotion is granted by the IG and mere forwarding of names does not give the appellant a right to get promoted. The promotion was solely on the basis of rules and law, and not arbitrary. It is their case, that the other promoted constables were more meritorious. After observing the facts of the cases, judgement of the high court and the law, the division bench remarked that the competitive environment differs from year to year. The rights to promote lie with the IG and the CDPC, and shall stay with them. The bench stated that it will not compare individual merits since the process of decision making is also of great importance. The bench dismissed the appeal stating that there was no illegality in the selection process. Click here to view the judgement Reviewed by Namisha Choudhary.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 401 OF 2022 ARISING OUT OF SLP(CIVIL) NO. 30370 OF 2017 SUSHIL KUMAR …. APPELLANT(S) THE STATE OF HARYANA & ORS. .... RESPONDENT(S) JUDGMENT PAMIDIGHANTAM SRI NARASIMHA J. Leave granted. This Civil Appeal arises out of the final judgment and order dated 29.07.2015 of the High Court of Punjab and Haryana at Chandigarh passed in LPA No. 19111. The Appellant was appointed as a Constable in the year 1995. It is his case that he was positioned as a Head Constable under the extent ORP Policy on 21.08.2001. Due to his acts of bravery his name was recommended by the Superintendent of Police for promotion under the 10% quota of outstanding performance for inclusion in the B I List for promotion to the post of Head Constable in the year 21.01.2004. However the Appellant’s name was dropped down by the Inspector General of Policewhen only 7 out of the 9 names were forwarded to the Central Departmental Promotion Committeethe IG does not act as the appellate authority and cannot substitute his decision to that of the DPC. It is also contended that the IG has no power to adjudge the comparative merit in list B I prepared by the DPC. He further submits that the IG has not given any reasons nor was the Appellant given any opportunity of hearing. He alleges that he is far more meritorious than the ones who have been recommended by the SP and approved by the IG in 2004. It is his case that the decision is arbitrary because the very same credentials enabled him to be selected and recommended in 2007. He has therefore prayed for retrospective promotion from the year 2004. The learned Additional Advocate General for the Respondent State Shri Raj Singh Rana has submitted that the names recommended by the SP to the CDPC are only provisional and subject to ratification by the IG and mere forwarding of the name of the Appellant by the SP will not create any right of promotion in his favour. He has submitted that the word “through” in Rule 13.7(9) of the Punjab Police Rules 1934 calls for application of mind by the IG and not mere forwarding of the recommendations as sent by the concerned unit head. The Respondents have alleged that the seven constables appointed were more qualified than the Appellant. The Rules: The present appeal pertains to the promotion of Constables to the post of Head Constables in the State of Haryana. The matters relating to the promotion of Constables to the rank of Head Constables are governed under the Punjab police Rules 1934 as applicable in the State of Haryana. 6.1 The scheme of appointment and promotion is governed by the provisions which are as follows: 12.10 Appointment of Head Constable: Head constables shall be appointed by promotion from selection grade constables in accordance with rules 13.7 and 13.8. 13.1 Promotion from one rank to another. 3) For the purposes of regulating promotion amongst enrolled police officers six promotion lists A B C D E and F will be maintained. Lists A B C and D shall be maintained in each district as prescribed in rules 13.6 13.7 13.8 and 13.9 and will regulate promotion to the selection grade of constables and to the ranks of head constables and assistant sub inspector......... 6.2 Chapter 13 of the Rules lay down the scheme for promotion. Rule 13.7 is concerned with the selection of candidates for admission to the Lower School Course at the Police Training College out of which postings of Head Constables are made. The Head Constables are selected out of a list of Selection Grade Candidates which is made out of three sources being:direct recruitment(b) Seniority cum merit (c) Outstanding performanceshall be maintained by each Superintendent of Police. It shall include the names of all constables selected for admission to the Lower School Course to be held at the Police Training College. Selection to the list B shall be made in the month of January each year and shall be limited to the number of seats allotted to the district for the year. The number of seats in Lower School Course in a year shall be allotted on the basis of existing vacancies and the vacancies likely to be created within one year in the respective unit. 55% of the seats allotted to a unit in the Lower School Course shall be filled in on the basis of a competitive examination 35% on the basis of seniority cum fitness and 10% on the basis of consistent outstanding performance in job obtaining Gold or Silver Medal in All India Police Games Duty Meet National Games or exceptional display of bravery during the course of performance of official duty 2)(iii) All constables irrespective of their educations qualifications shall be eligible to be brought on list B 1 on the basis of consistent outstanding performance job obtaining Gold or Silver medal in All India Police Games Duty Meets National or International Games or exceptional display of bravery during the course of performance of official duty if they are under the age of 40 years and have completed two years of service on the first day of January of the year in which selection is made. Only those constables shall be brought on list B 1 after two years of service but before five year of service who have won a medal in International Sports events like Olympics Asian Games Commonwealth Games or similar International events. Constables who have won medals in National Games All India Police Games Duty Meets and who are being considered for exceptional bravery or consistent outstanding performance shall be considered only if they have put in the minimum five year of service …. 9) Various units shall be allotted only 90% of total seats of the year for list B and candidates for 10% seats common to all units shall be selected by Central Departmental Committee. For selecting 10% of the candidates on the basis of consistent outstanding performance in job attaining Gold India Police Games Duty or Silver Medal Meet National Games or exceptional display of bravery in the job each unit shall send its recommendation through the concerned Inspectors General of Police Deputy Inspectors General of Police to the Central Departmental Promotion Committee to be appointed for the entire State by the Director General of Police. These 10% seats shall be filled in on the basis of State level comparative merit of candidates in All sponsored by the units as above on the recommendation of the State level Departmental Promotion Committee. Such the above Departmental candidates recommended by Promotion Committee shall be assigned to various units for inclusion in list B against 10% quota irrespective of the unit to which the candidate originally belongs 14) A Departmental Promotion Committee headed by the Superintendent of Police commandant of the concerned district or unit and consisting of two Deputy Superintendents of Police shall prepare list B 1: Provided that list B 1 shall not be final until the same is approved by the Inspector General of Police Deputy Inspector General of Police who is the controlling officer of the said Superintendent of Police or Commandant. The Inspector General of Police Deputy Inspector General of Police shall accord his approval only after due scrutiny of the list about its correctness. He will also be competent to refer the list back to the Superintendent of Police or Commandant from whom it had been received for correction of errors omission if any in the list and will also be competent to seek clarification about some points from the Departmental Promotion Committee if he considers The mandate of the above rule for appointment to the post of Head Constable under the aforementioned 10% quota for outstanding performance can be restated as under 7.1 There shall be a Departmental Promotion Committeein every district unit comprising of the SP Commandant and two Deputy Superintendent of Police headed by the SP. The DPC shall prepare a list called List B I. The list will be prepared from among the eligible candidates to be appointed the requirement of which is specified under Rule 13.7. All constables irrespective of their educational qualifications shall be eligible to be brought on list B I on the basis of consistent outstanding performance in job or exceptional display of bravery during the course of performance of official duty if they are under the age of 40 years and have completed two years of service on the first day of January of the year in which selection is made. The List prepared by the DPC headed by the SP will be forwarded to the Inspector General of Police Deputy Inspector General of Police who is the Cadre Controlling Officer of the SP Commandant. i) The IG DIG will undertake and examine its correctness. ii) The IG DIG will be competent to seek clarifications from the DPC if he considers it to be necessary. iii) He is also competent to refer the list back to the SP for correction of any error or omission. iv) The IG DIG shall thereafter accord his approval. It is specifically provided that the List shall not be final until the same is approved by the IG DIG. IG DIG shall send its recommendations on behalf of each unit to the CDPC. The CDPC is appointed by the Director General of Police PAMIDIGHANTAM SRI NARASIMHA) NEW DELHI JANUARY 19 2022

If members of a tribe voluntarily choose to follow Hindu customs, traditions and rites they cannot be kept out of the purview of the provisions of the Hindu Marriage Act, 1955: High Court of Delhi.

There are Codified statutes and laws that provide various protections to parties against any unregulated practices from being adopted. A single Judge bench comprising Hon’ble Justice Prathiba M. Singh, in the matter of Satprakash Meena Vs. Alka Meena (CM APPL. 332/2021), dealt with an issue where a petition was filed with a question as to the applicability of The Hindu Marriage Act, 1955 (hereinafter referred to as the “HMA, 1955”), in respect of the parties who belong to the Meena community in view of the exclusion under Section 2(2) of the HMA, 1955. In the present case, the petitioner and the respondent got married as per Hindu rites and customs on 24th June 2012 and both the parties belong to the Meena community. The petitioner had filed a petition seeking divorce under Section 13-1(ia) of the HMA, on 2nd December 2015 before the Judge (West), Family Court, Tis Hazari, Delhi. The Respondent did not appear in the said petition. Later the Respondent filed a transfer petition, but the transfer petition was disposed of and the court allowed the respondent to participate in the proceeding through video conferencing. The respondent also lodged an FIR under the Protection of Women from Domestic Violence Act, 2005 (hereinafter the “DV Act”), to seek maintenance under Section 125 of the code of Criminal Procedure, 1973(hereinafter the “CrPC”). The respondent did not participate in the divorce petition and filed an application under Order VII Rule 10 and Order VII Rule 11 of The Code of Civil Procedure, 1908 (hereinafter “the CPC”) before the Family Court. In that application, she prayed for rejection of the divorce petition, on the ground that the provisions of the HMA, 1955 do not apply to the parties concerned as they are members of a notified Scheduled Tribe in Rajasthan. The family court dismissed the divorce petition by holding that the provisions of the HMA, 1955 do not extend to the Meena community, which is a notified Scheduled Tribe. The counsel for the petitioner submitted that as their marriage was solemnized as per the Hindu rites and customs, that the respondent had also agreed to, hence the provisions of HMA 1955 would be fully applicable in this case and stated that the divorce petition under the provisions of the HMA, 1955, was maintainable. The counsel for the petitioner also stated that once a Schedule tribe follows the customs and practices of a particular religion, then they are bound to follow the law that applies to that religion. The counsel also pointed out that in the present if the Scheduled Tribe of Meena would not be governed by the HMA,1955 it would lead to enormous difficulties for women as bigamy would be recognised and could even lead to the desertion of women. Relying on various other cases the counsel for the respondent stated that even if at once the provision of HMA,1955 was followed, still such does not mean that it will be applicable on the members of a notified schedule tribe. Also, the counsel pointed out, that as the parties have a child, such child cannot be deprived of his schedule tribe status. The court observed- “The need for a Uniform Civil Code as envisioned under Article 44, has been reiterated from time to time by the Supreme Court. Cases like the present one repeatedly highlight the need for such a Code – ‘common to all’, which would enable uniform principles being applied in respect of aspects such as marriage, divorce, succession, etc., so that settled principles, safeguards, and procedures can be laid down and citizens are not made to struggle due to the conflicts and contradictions in various personal laws”. The court also observed that- “If members of a tribe voluntarily choose to follow Hindu customs, traditions and rites they cannot be kept out of the purview of the provisions of the HMA, 1955.” And finally, the court held that- “Thus, insofar as divorce proceedings are concerned, if proper tribal customs are not established or the following of Hindu customs or rites is admitted by the parties, there is no reason to hold that the provisions of the HMA, 1955 would not apply.” Thereby the court allowed the appeal and directed the trial court to proceed with the adjudication of the petition under 13-1(ia) of the HMA, 1955 on merits and render a decision within six months.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 3rd June 2021 Date of Decision: 07th July 2021 C.R.P.1 2021 and CM APPL. 332 2021 SATPRAKASH MEENA Through: Mr. F.K. Jha Advocate. Petitioner ALKA MEENA Through: Mr. Abhinav Gupta & Mr. Nitesh Respondent Ranjan Advocates. JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J. The question in this petition is as to the applicability of The Hindu Marriage Act 1955in respect of the parties who belong to the Meena community in view of the exclusion under Section 2(2) of the HMA 1955. The Petitioner Mr. Satprakash Meena and the Respondent Ms. Alka Meena got married on 24th June 2012. According to the Petitioner the marriage was solemnized in Jaipur Rajasthan as per Hindu rites and customs. Both the parties belong to the Meena community and the same is an admitted position. The Petitioner is an engineer who is working in Delhi and the Respondent is stated to be a house maker. The parties have a minor child namely Master Lakshya who was born on 12th April 2013 in Delhi. A petition seeking divorce under Section 13 1(ia) of the HMA 1955was filed by the Petitioner on 2nd December 2015 before the Principal Judge Family Court Tis Hazari Delhi. The Respondent did not appear in the said petition. There is a dispute as to whether the Respondent was served or not. The Respondent however preferred a transfer petition being Alka Meena v. Satprakash Meena before the Supreme Court. In the said transfer petition according to the Petitioner the Respondent took a categorical stand that the marriage was solemnized as per the Hindu rites and customs. Vide order dated 6th April 2017 the transfer petition was disposed of however the Respondent was permitted to avail of the facility to participate in the proceedings through video conferencing. An FIR was lodged by the Respondent under The Protection of Women from Domestic Violence Act 2005 as also an application seeking maintenance under Section 125 of The Code of Criminal Procedure 1973(hereinafter the “CrPC”) in the city of Jaipur. In the divorce petition since the Respondent did not appear she was proceeded ex parte. However after she was permitted to participate in the proceedings through video conferencing by the Supreme Courtshe filed an application under Order VII Rule 10 and Order VII Rule 11 of The Code of Civil Procedure 1908before the Family Court. In the said application she prayed for rejection of the divorce petition on the ground that the provisions of the HMA 1955 do not apply to the parties concerned as they are members of a notified Scheduled Tribe in Rajasthan and hence the HMA 1955 would not be applicable to the case of the said parties in view of Section 2(2) of the HMA 1955. The said application was decided by the Family Court and the divorce petition was dismissed by holding that the provisions of the HMA 1955 do not extend to the Meena community which is a notified Scheduled Tribe. The said order dated 28th November 2020 is under challenge in the present Submissions of the Petitioner petition. Ld. counsel for the Petitioner Mr. Jha submits that the Respondent had admitted in various pleadings that the marriage was solemnized as per Hindu rites and customs. Reference was placed upon the transfer petition filed before the Supreme Court the complaint filed under the DV Act in Rajasthan application filed by the Respondent under Section 125 CrPC as also the FIR registered by the Respondent under Section 498A Indian Penal Code hereinafter the “IPC”). He submitted that since the Respondent admitted that the marriage was solemnized as per the Hindu rites and customs the provisions of HMA 1955 would be fully applicable to the facts of the case and hence the divorce petition under the provisions of the HMA 1955 ought to be maintainable. Reliance was placed on the judgment of the Supreme Court in Labishwar Manjhi v. Pran Manjhi and Ors.8 SCC 587 specifically upon paragraphs 5 and 6 of the said judgment to argue that in the said judgment it has been clearly held that if the members of tribes follow customary and practices of Hinduism the Hindu Succession Act 1956(hereinafter the “HSA 1956”) would be applicable. The said case related to the Santhal Tribe who were seen following Hindu customs and hence the Supreme Court held that the HSA would be applicable to their situation in spite of the said tribe being a notified tribe. The submission of ld. Counsel for the Petitioner was that both the parties are following Hindu rites and customs and although they are residing in the city of Jaipur and they belong to the Meena community the HMA 1955 would be applicable. 10. He thereafter relied upon the following judgments: OmPrakash v. LalitaMeena 2015CDR 1217Yamanaji H. Jadhav v. Nirmala AIR 2002 SC 971 Subramani and Ors. v. M. Chandralekha 9 SCC 407 iv. Mirza Raja PushpavathiVijayaramGajapathi Raj Manne v. PushavathiVisweswarGajapathiraj and Ors. AIR 1954 SC 118 v. Maneka Gandhi v. Indira Gandhi AIR 1984 Delhi 428 Krishna Veni v. Union of India and Ors. 2021 SCC OnLine Cal 437 11. Referring to the above judgments ld. Counsel for the Petitioner argued that in order to establish the grounds of the objection which have been raised by the Respondent before the trial court and to decide the question as to whether a particular fact has been established or not and for adjudication of the petition for divorce on that basis evidence would have to be led. He submitted that if any particular customary law is alleged to be followed as in the present case the wife has alleged that Meena tribe customs are being followed the same cannot be presumed by the Court without evidence being adduced. Thus he submitted that even if it is held that the Respondent is entitled to take the argument that the parties are governed by the customary practices of the Meena tribe the trial court could not have presumed the same and dismissed the petition without proper trial. 12. Mr. Jha ld. counsel for the Petitioner further urged this Court that once a Scheduled Tribe follows the customs and practices of the particular religion they should be bound by the law that applies to the said religion. As seen in the present case if it is held that the Scheduled Tribe of Meena would not be governed by the HMA 1955 it would lead to enormous difficulties for women as bigamy would be recognised and could even lead to desertion of women. 13. On the strength of these judgments and of these submissions ld. Counsel for the Petitioner submitted that the impugned order dated 28th November 2020 is not sustainable. Submissions of the Respondent 14. Mr. Gupta ld. Counsel appearing for the Respondent on the other hand submitted that the Respondent had not filed a reply in the divorce petition as it was her stand that she was never served in the matter. Owing to the order passed in the transfer petition it is only at the stage of final arguments that the Respondent entered appearance. 15. Ld. Counsel submitted that an application Under Order VII Rule 10 CPC and Order VII Rule 11 CPC was filed by the Respondent inter alia contending that due to the Meena tribe being a Scheduled Tribe in the State of Rajasthan it’s right to constitutional protection would be excluded if the provisions of the HMA 1955 are held to be applicable. He submitted that the judgments of the various Courts including the Supreme Court are clear to the effect that even if Hindu customs are being followed the same would not automatically mean that the provisions of the HMA 1955 would be applicable in the case of members of a notified Scheduled Tribe. 16. Reliance was placed upon the following judgments by the ld. Counsel for the Respondent: Dr. Surajmani Stella Kujur v. Durga Charan Hansdah and Anr. 3 SCC 13: Dr. Bini B. v. Jayan P.R. 2015 SCC OnLine Ker 39489.: iii. Rajendra Kumar Singh Munda v. Smt. Mamta Devi 2015 SCC OnLine Jhar 3735 Ramlal v. Prem Bai 17. On the strength of these judgments it was submitted by the ld. Counsel for the Respondent that the impugned judgment dismissing the divorce petition does not deserve to be interfered with. Submissions made in Rejoinder 18. Mr. Jha ld. Counsel appearing for the Petitioner took the Court through various documents i.e. the marriage card of the parties the complaint under Section 498A of the IPC the FIRs registered pursuant to the said complaint the complaint made under the DV Act the Petition under Section 125CrPC and the affidavit in support thereof the charge sheet under Section 498A of the IPC. On the strength of these documents and legal judicial records Mr. Jha ld. Counsel submitted that these documents would show that the marriage of the parties took place as per Hindu reeti riwaz through the Saptpadi and in front of the fire. Thus the parties completely adhered to the Hindu way of conducting a marriage customs and rites. Therefore the HMA 1955 would applicable to them. The marriage card is also emphasised to show that it begins with the phrase ‘Shree Ganeshay Namah’. 19. He thereafter relied upon the transfer petition filed before the Supreme Court which was disposed of on 6th April 2017. Therein the Respondent had customs. made an assertion that the marriage was conducted as per the Hindu rites and 20. Thereafter Mr. Jha ld. Counsel referred to the following judgments: i) Ms. Jorden Diengdeh v. S.S. Chopra AIR 1985 SC 935. ii) Nihoto Sema v. Kanili Kimi Limi 2 GLR 296 Sekawat s o Shaukat Tadvi v. Rehane Budhan Tadavi &Anr. 2016 SCC OnLine Bom 3853 21. On the strength of these three judgments Mr. Jha submitted that for Scheduled Tribes who profess Christianity or Islam are concerned the respective personal law would apply. Similarly in the present case since the parties are following Hinduism customary and rites the HMA 1955ought to be made applicable. 22. Mr. Gupta ld. Counsel for the Respondent however on the other hand submitted that Hinduism is not considered to be a religion but only a way of life. Though the parties follow the customary principles and rites of Hinduism the status of a tribe of the Meena community cannot be taken away. On a query from the Court as to what are the methods of obtaining divorce in the Meena community he submitted that the same is through a Panchayat and there is a Board for the said purpose. He further submitted that since there is a child in the present case the Scheduled Tribe status of the child cannot also be taken away. Though Scheduled Tribes who are Christian and Muslim may be covered by their respective personal law due to the specific exclusion under the HMA 1955 the Scheduled Tribe of Meena community would not be covered by the said Act. He further submitted that the members of the Meena community pray to Hanuman Ji which is a deity also referred to as Analysis and findings 23. The parties in this petition both belong to the Meena Community. It is the case of the wife that the Meena community is covered by the exclusion under Section 2(2) of the HMA which reads: “(2) Notwithstanding anything contained in sub sectionnothing contained in this Act shall apply to the members of any Scheduled tribe within the meaning of clause of article 366 of the Constitution unless the Central Government by notification in the Official Gazette otherwise 24. The divorce petition under Section 13 1(ia) of the HMA was dismissed by the trial court on the basis of the exclusion in Section 2(2) of the HMA 1955. The trial court had not conducted the trial in the petition or considered the evidence in the matter but summarily dismissed the petition simply on the ground that since the parties belong to the Meena Community the provisions of the HMA 1955 would not be applicable. The relevant extracts of the trial court judgment read as under: “7. Hence by Sub Section 2 of Section 2 of HMA Hindu Marriage Act is not applicable to the members of Scheduled tribe within the meaning of Clause 25 of Article 366 of the Constitution unless the Central Government by notification in the official Gazette otherwise directs. No such notification is put forth or pleaded before the court by any of the sides. 8. Hence by virtue of Section 2 of sub sectionof HMA the present petition filed by the petitioner seeking decree of dissolution of marriage under HMA is not maintainable being barred by Section 2(2) of HMA itself. 12. Accordingly in view of the above discussion and in the light of the above mentioned pronunciations of law the present petition filed by the petitioner non applicant husband u s.13(1)(ia) of HMA 1955 as amended by the marriage lawsis dismissed being not maintainable in view of the provisions of Section 2(2) of Hindu Marriage Act. The petition is dismissed. File be consigned to Record Room”. 25. The submissions made on behalf of the parties reveal that there are two judgments of the Supreme Court that are relied upon. The husband i.e. the Petitioner who has preferred the divorce petition relies upon Labishwar Manjhiwhereas the Respondent wife relies upon the judgment of the Supreme Court in Dr. Surajmani Stella Kujurthe Supreme Court was dealing with a petition relating to inheritance amongst the members of the Santhal Tribe. According to the customs of the Santhal Tribe females were excluded from the right of succession. The Trial Court held that the parties would be bound by Hindu law and that the widow would be entitled to inherit the property of the deceased as they followed Hindu rites and customs. The ld. Single Judge of the High Court allowed the appeal but the ld. Division Bench remanded the matter to the First Appellate Court to examine the question as to whether parties were sufficiently Hinduised or not. The First Appellate Court on remand held that the parties were sufficiently Hinduised and Hindu law of succession would apply. The ld. Division Bench in appeal however held that the Hindu law of Succession prior to the amendment would apply and hence the widow inherited the property during her life time and on her death would devolve to the agnates of her husband. The question before the Supreme Court was as under: “The question which arises in the present case is whether the parties who admittedly belong to the Santhal Tribe are still continuing with their customary tradition or have they after being Hinduised changed their customs to that which is followed by the Hindus.” 27. The Supreme Court thereafter analysed the evidence on record and held that though the parties belonged to the Santhal tribe they followed the customs of Hindus and not of the Santhal tribe. Thus the exclusion under Section 2(2) of the HSA 1956 would not apply to the parties. The Supreme Court then concluded as under: “6. The question which arises in the present case is whether the parties who admittedly belong to the Santhal Tribe are still continuing with their customary tradition or have they after being Hinduised changed their customs to that what is followed by the Hindus. It is in this context when the matter came first before the High Court the High Court remanded the case for decision in this regard. After remand the first appellate court recorded the finding that most of the names of their families of the parties are Hindu names. Even P.W. 1 admits in the cross examination that they perform the pindas at the time of death of anybody. Females do not use vermilion on the forehead after the death of their husbands widows do not wear ornaments. Even P.W. 2 admits that they perform Shradh ceremonies for 10 days after the death and after marriage females used vermilion on their foreheads. The finding is that they are following the customs of the Hindus and not the Santhal’s. In view of such a clear finding it is not possible to hold that sub sectionof Section 2 of the Hindu Succession Act excludes the present parties from the application of the said Act. Sub sectiononly excludes members of any Scheduled Tribe admittedly as per finding recorded in the present case though the parties originally belong to the Santhal Scheduled Tribe they are Hinduised and they are following the Hindu traditions. Hence we have no hesitation to hold that sub sectionwill not apply to exclude the parties the Hindu from application of Succession Act. The High Court fell into error in recording a finding to the contrary. In view of this the widow of Lakhiram would become the absolute owner by virtue of Section 14 of the said Act consequently the gift given by her to Appellants 2 and 3 was a valid gift hence the suit of Respondent No. 1 for setting aside the gift deed and inheritance stands dismissed.” 28. Thus in the above decision the following factors were considered by the Supreme Court viz. • The names of the parties and their families are Hindu names • At the time of death of a family member Pindas are performed • Women do not wear vermilion after the death of the husband • Widows do not wear ornaments. • Shradh Ceremonies are performed for 10 days after death. 29. On the basis of these practices the Supreme Court held that the parties were Hinduised as they were following Hindu traditions. Thus the exclusion under Section 2(2) of the HSA 1956 was held to not apply to the parties and they would be governed by the provisions of the HSA. It is relevant to note that the exclusion in Section 2(2) of HMA and Section 2(2) of HSA 1956 are identical in wording. In Dr. Surajmani Stella Kujurthe issue was one of bigamy. The Appellant in the said case had conceded that both the parties were tribals who otherwise were professing Hinduism. The husband had solemnised the second marriage during the subsistence of the first marriage. The wife had then argued that the husband is liable to be prosecuted for the offence under Section 494 IPC. The wife had claimed before the Trial Court in the said case that she was of Hindu religion but since there was no notification under Section 2(2) the husband could be prosecuted for bigamy. According to the wife the tribe mandated monogamy as a rule. The Supreme Court however observed as under: “8. No custom can create an offence as it essentially deals with the civil rights of the parties and no person can be convicted of any offence except for violation of law in force at the time of commission of the act charged. Custom may be proved for the determination of the civil rights of the parties including their status the establishment of which may be used for the purposes of proving the ingredients of an offence which under Section 3(37) of the General Clauses Act would mean an act or omission punishable by any law by way of fine or imprisonment. Article 20 of the Constitution guaranteeing protection in respect of conviction of offence provides that no person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence. Law under Article 13 clause of the Constitution means the law made by the legislature including intra vires statutory orders and orders made in exercise of powers conferred by the statutory rules.” 31. The Supreme Court further held that the alleged custom of monogamy of the Santhal Tribe does not have the force of law and cannot prohibit the solemnisation of a second marriage. Mere pleading of the custom is not sufficient. Until and unless a second marriage is held to be void Section 494 IPC would not apply. 32. The judgment in Dr. Surajmani Stella Kujurwas considered by the Kerala High Court in Dr. Bini B.(supra). In the said case the parties belonged to the Kuruma community tribe they otherwise professed Hinduism. The husband had filed a petition under Section 9 of the HMA 1955 for restitution of conjugal rights. The trial court had allowed the petition under Section 9. In appeal it was contended that the provisions of HMA 1955 would not apply in view of Section 2(2). The ld. Division Bench of the Kerala High Court considered various judgments including Dr. Surajmani Stella Kujurand held as under: “15. It is clear from the above decisions that when custom become part of the tribal community as a law it will guide their attitude and practice in their social and economic life. Custom is considered as the guiding principle among them which will acquire the status of law. The party claiming custom is necessary to plead and prove that such custom followed in the community is ancient and certain. Since custom is aftcient the person relying bn(sic on) it has to establish it by clear and unambiguous evidence! It is true matthe majority of the Tribal people are living below the poverty line and they have not reached development which is equal to the civilized section of the other people in the civil society. Therefore the validity of the custom must be examined and decided by a Court when full facts are placed before it for 16. The application of custom among the Tribes and restrictions under section 2(2) of the Act were not considered by the Family Court. It has been clearly stipulated in the Act that the provisions of the Act are not applicable to members of the Scheduled Tribe unless there is a notification issued by the Central Government in the Official Gazette making the Act applicable to the scheduled tribes. No such notification has been produced before the Family Court therefore the order passed by the Family Court Kalpetta is liable to be set aside. Hence this appeal is allowed. We set aside the order dated 27.9.2012 in O.P. No. 148 2011 of Family Court Kalpetta and the matter is remitted to the lower Court for fresh consideration as per law. Both parties are at liberty to adduce fresh evidence in support of their contentions”. 33. Thus the Kerala High Court set aside the decree under Section 9 but remanded the matter for fresh consideration and for leading the evidence to prove the customs as was relied upon by the parties. In Rajendra Kumar Singh Mundathe parties belonged to the Munda tribe which was a notified tribe in Jharkhand and the ld. Division Bench took the view that Munda being a tribal community that was notified for the state of Jharkhand in view of the provisions of Section 2(2) of the HMA 1955 and the constitutional protection granted the decree of divorce under the HMA 1955 was not sustainable and the same was set aside. In Ram Lal V. Prem Baithe district court had issued a decree in the wife’s favour but the petitioner challenged it in the high court pleading that being a tribal man the decree passed by the lower court under the HMA 1955 is not binding on him. The Court quashed the order passed by a lower court in Tonk Rajasthan granting conjugal rights to a tribal woman under the HMA 1955 holding that the members of the Meena community are not covered under HMA 1955. In Anom Apang v. Geeta Singh2 GLR 583 the Gauhati High Court held that even though one of the parties belong to the Adi Tribe since the marriage was solemnised according to the Hindu customs and traditions the HMA 1955 would apply. In Rupa Debbarma v. Tapash Debbarma supra) the Tripura High Court disagreed with the Gauhati High Court. The parties belonged to the Tripuri community. The trial court granted a decree of divorce under the HMA on the ground of cruelty and desertion. The question before the High Court was whether the said divorce granted under the HMA was sustainable or not. The Tripura High Court noted both Labishwar Manjhi supra) and Dr. Surajmani Stella Kujurand held that the provisions of the HMA 1955 would not apply. The observations of the Tripura High Court are as under: “35. So far the question of conversion is concerned simply because the marriage has been performed following the Hindu customs and rites it cannot be stated that parties intending marriage had been converted to Hinduism. Conversion is a conscious abandonment of the customs of the community or the religion and adoption of the religion which someone intends to be converted to. None of the appellant and the respondent did not claim to have customs. Thus there had been no conversion and by considering “conversion” the Hindu Marriage Act cannot be applied. This court however will affirm the finding in respect of cruelty as returned by the Addl. District Judge. However the desertion has not been proved on preponderance of probabilities in as much as the appellant has clearly stated that she had intention to restitute the marriage. But this finding will have no effect in the suit as the suit itself to Hinduism by abandoning is not maintainable having barred by Section 2(2) of the Hindu Marriage Act 1955.” 37. A perusal of the various decisions discussed above shows that there is divergence in the views being taken by various High Court. The two decisions which are to be considered by this Court are the decisions of the Supreme Court in Labishwar Manjhiand Dr. Surajmani Stella KujurMarriage Invitation: A copy of the marriage invitation clearly shows that the wedding was conducted in accordance with the Hindu rites and customs as the auspicious programmes included Lagan Barat etc. The invitation also uses all the symbols including the term “Shree Ganeshaya 2) Complaint and FIR and charge sheets registered under Section 498 a) IPC: Pursuant to the said complaint filed by the wife under Section 498 of the IPC it is admitted by the wife that she was married to the Petitioner as per “Poore Hindu Riti Riwaz”(पूरेहिन्दूरीतीररवाज़) 3) Complaint under the Domestic Violence Act: In this complaint she admits that she was married to the Petitioner on 24th June 2012 as per `Hindu Riti Riwaz Saptapadi ke Anusar’.(हिन्दूरीतीररवाज़ सप्तपदीकेअनुसार) 4) Application under Section 125 CrPC: this complaint she admits that she was married as per “Hindu Riti Riwaz Saptapadi ke Anusar”(हिन्दू रीती ररवाज़ सप्तपदी के अनुसार) 5) Affidavit: In the affidavit filed by the wife she admits that the marriage was conducted with the Petitioner as per “Hindu Riti Riwaz Se Agni ke Samaksh Saptapadi ke Anusar”6) Transfer Petition filed before the Supreme Court In the transfer petition it is stated : “2. Brief Facts of the case are as under: On 24.06.2012 the marriage between the Petitioner and the Respondent was solemnized according to Hindu Rites and Customs at Jaipur rights and Rajasthan according to Hindu 39. The above documents and exhibits before the Trial Court clearly show that the Respondent wife admits: that the marriage was conducted as per the “Hindu Riti Riwaz” ii) that the marriage was effected by following the “Saptapadi” iii) that the marriage was conducted in front of `Agni’ fire. 40. The above admissions have been made by the Respondent wife repeatedly in various documents which were exhibited before the trial court. 41. The question that arises is as to whether in these facts the parties ought to be governed by the provisions of the HMA or should they be relegated to procedures of the Meena tribe In so far as the provision Section 2(2) HMA 1955 is concerned it is clear that the provisions of the Act would not apply to the members of the Scheduled Tribal community unless the Scheduled Tribe is a notified tribe. It is the admitted position between parties that the said community is not a notified tribe. Section 2(2) reads as under: “(2) Notwithstanding anything contained in sub sectionnothing contained in this Act shall apply to the members of any Scheduled tribe within the meaning of clause of article 366 of the Constitution unless the Central Government by notification in the Official Gazette otherwise 43. The Act however applies to any person who is Hindu by religion and includes a Virashaiva a Lingayat or a follower of the Brahmo Prarthana even followers of Brahma Prathana of Arya Samaj. It also applies to Buddhists Jains and Sikhs by religion. The HMA 1955 regulates all aspects of marriages applicable to Hindus including restitution of conjugal rights of judicial separation divorce etc. If the HMA 1955 does not apply to any particular individual or any parties such parties would be relegated to their respective customary practices or community Courts. In fact in Nihoto Semathe High Court of Gauhati considered this issue in relation to parties belonging to the Naga tribes but were professing Christian religion. The Court framed the following question: “3.The question is whether the Indian Divorce Act 1869 is applicable to the State of Nugaland away from the Nursery School without the knowledge and consent of the respondentand separated the child from the mother and prayed for the custody of the child. This appears to be a case where the marriage is irretrievably broken and persuasion is no proper remedy.” 45. Similarly in Sekawat the Bombay High Court held that the wife belonging to the Muslim community would be entitled to claim maintenance under Section 125 of the CrPC. In the present case admittedly the party’s marriage was solemnised as per the Hindu customs and rites. Ld. counsel for the Respondent wife admitted during the course of submissions that the wife did not deny that she is a Hindu and the tribe is a Hindu tribe however according to him this would not take away the status of the parties being a part of the notified Scheduled Tribe under the Constitution of India. 47. The word `Hindu’ is not defined in any of the statutes. It is in view of the fact that there is no definition of Hindu that the Supreme Court has held in Labishwar Manjhithat if members of Tribes are Hinduised the provisions of the HMA 1955 would be applicable. The manner in which the marriage has been conducted in the present case and the customs being followed by the parties show that as in the case of Hindus the marriage is conducted in front of the fire. The Hindu customary marriage involves the ceremony of Saptapadi which has also been performed in the present case. The various other ceremonies as is clear from the marriage invitation are also as per Hindu customs. If members of a tribe voluntarily choose to follow Hindu customs traditions and rites they cannot be kept out of the purview of the provisions of the HMA 1955. Codified statutes and laws provide for various protections to parties against any unregulated practices from being adopted. In this day and age relegating parties to customary Courts when they themselves admit that they are following Hindu customs and traditions would be antithetical to the purpose behind enacting a statute like the HMA 1955. The provisions of exclusion for example under Section 2(2) are meant to protect customary practices of recognised Tribes. However if parties follow Hindu customs and rites for the purpose of marriage this Court is inclined to follow the judgment of the Supreme Court in Labishwar Manjhito hold that the parties are Hinduised and hence the HMA 1955 would be applicable. Moreover nothing has been placed before the Court to show that the Meena community Tribe has a specialised Court with proper procedures to deal with these issues. In these facts if the Court has to choose between relegating parties to customary Courts which may or may not provide for proper procedures and safeguards as against codified statutes envisioning adequate safeguards and procedures this Court is inclined to lean in favour of an interpretation in favour of the latter especially in view of the binding precedent of the Supreme Court in Labishwar Manjhi which considered an identical exclusion under the HSA 1956. In so far as the judgment in Dr. Surajmani Stella Kujur is concerned the said decision dealt with an offence of bigamy which was pleaded to be contrary to the customs in the Santhal Tribe. The said custom had not been established on record and hence the Court held that since the custom was not established by the parties an offence could not be created by a mere pleading of a custom. Moreover even in Dr. Surajmani Stella Kujur supra) the Supreme Court clearly holds that for determination of civil rights customs may be proved and can form the basis. Thus insofar as divorce proceedings are concerned if proper tribal customs are not established or the following of Hindu customs or rites is admitted by the parties there is no reason to hold that the provisions of the HMA 1955 would not apply. 49. Unfortunately the trial court has failed to consider the admissions made by the Respondent wife which have been set out hereinabove leading to the incorrect conclusion. The trial court also failed to consider the decision of the Supreme Court in Labishwar Manjhi2 SCC 556 observed: “32. It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national the citizens of integration by removing disparate loyalties to laws which have conflicting ideologies. No community is to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil the country and unquestionably it has the legislative competence to do so. A counsel in the case whispered somewhat audibly that legislative competence is one thing the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But a beginning has to be made if the Constitution is to have any meaning. Inevitably the role of the reformer has to be assumed by the courts because it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to 51. Again in Ms Jordon Diengdeh v. S.S. Chopra 3 SCC 62 the Supreme Court observed in the context of dissolution of marriage between a couple wherein the wife belong to the Naga Tribe and the husband was a Sikh by religion that Article 44 of the Constitution needs to be implemented in its letter and spirit. The Supreme Court notices the various provisions under the personal laws applicable to marriages under the Hindu Marriage Act Special Marriage Act Parsi Marriage and Divorce Act Muslim Law etc. The Court then concluded and observed as under: “7. It is thus seen that the law relating to judicial separation divorce and nullity of marriage is far far from uniform. Surely the time has now come for a complete reform of the law of marriage and make a uniform law applicable to all people irrespective of religion or caste. It appears to be necessary to introduce irretrievable breakdown of marriage and mutual consent as grounds of divorce in all cases. The case before us is an illustration of a case where the parties are bound together by a marital tie which is better untied. There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. We suggest that the time has come for the intervention of the legislature in these matters to provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situations in which couples like the present have found themselves in. We direct that a copy of this order may be forwarded to the Ministry of Law and Justice for such action as they may deem fit to take. In the meanwhile let notice go to the respondents.” 52. The decisions in Shah Banoand Ms Jordon Diengdehwere rendered way back in 1985 and more than 35 years have been passed. The Supreme Court had expressed hope and observed that the time has come for enacting a uniform code of marriage and divorce and urged for a ‘complete reform’. These very sentiments have been again reiterated in Sarla Mudgal Vs. UOI AIR 1995 SC 1531 and Lily Thomas6 SCC 224. In John Vallamattom and Another v. Union of India 6 SCC 611 the Supreme Court considered Sarla Mudgal and further observed: “44. Before I part with the case I would like to state that Article 44 provides that the State shall endeavour to secure for the citizens a uniform civil territory of India. The aforesaid provision is based on the premise that there is no necessary connection between religious and personal law in a civilized society. Article 25 of the Constitution confers freedom of conscience and free profession practice and propagation of religion. The aforesaid two provisions viz. Articles 25 and 44 show that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law. It is no matter of doubt that marriage succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution. Any legislation which brings succession and the like matters of secular character within the ambit of Articles 25 and 26 is a suspect legislation although it is doubtful whether the American doctrine of suspect legislation is followed in this country. In Sarla Mudgal v. Union of India 1995) 3 SCC 635: 1995 SCC 569] it was held that marriage succession and like matters of secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution. It is a matter of regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies.” “20. It is imperative that the rights of the mother must also be given due consideration. As Ms Malhotra learned Senior Counsel for the appellant has eloquently argued the appellant s fundamental right of privacy would be violated if she is forced to disclose the name and particulars of the father of her child. Any responsible man would keep track of 54. The need for a Uniform Code has been again echoed by the Supreme Court in ABC v. State(2015) 10 SCC 1 wherein it was held: 55. Recently in Jose Paulo Coutinho v. Maria Luiza Valentina Pereira and Another 20 SCC 85 the Supreme Court observed: his offspring and be concerned for the welfare of the child he has brought into the world this does not appear to be so in the present case on a perusal of Furthermore Christian unwed mothers in India are disadvantaged when compared to their Hindu counterparts who are the natural guardians of their illegitimate children by virtue of their maternity alone without the requirement of any notice to the putative fathers. It would be apposite for us to underscore that our directive principles envision the existence of a Uniform Civil Code but this “..24. It is interesting to note that whereas the Founders of the Constitution in Article 44 in Part IV dealing with the Directive Principles of State Policy had hoped and expected that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India till date no action has been taken in this regard. Though Hindu laws were codified in the year 1956 there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country despite exhortations of this Court in Mohd. Ahmed Khan v. Shah Bano Begum 2 SCC 556 : 1985 SCC245] and Sarla Mudgal v. Union of India 3 SCC 635 : 1995 SCC569] .” 56. The backdrop of all the above decisions and the crux of Art. 44 of the Constitution is well captured in the Constituent Assembly Debates. Dr. B.R. Ambedkar while debating on Article 35[Constituent Assembly Debates Volume 7 23rd November 1948] “My friend Mr. Hussain Imam in rising to support the amendments asked whether it was possible and desirable to have a uniform Code of laws for a country so vast as this is. Now I must confess that I was very much surprised at that statement for the simple reason that we have in this country a uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete Criminal Code operating throughout the country which is contained in the Penal Code and the Criminal Procedure Code. We have the Law of Transfer of Property which deals with property relations and which is operative throughout the country. Then there are the Negotiable Instruments Acts: and I can cite innumerable enactments which would prove that this country has practically a Civil Code uniform in its content and applicable to the whole of the country. The only province the Civil Law has not been able to invade so far is Marriage and Succession. It is this little corner which we have not been able to invade so far and it is the intention of those who desire to have article 35 as part of the Constitution to bring about that change. Therefore the argument whether we should attempt such a thing seems to me somewhat misplaced for the simple reason that we have as a matter of fact covered the whole lot of the field which is covered by a uniform Civil Code in this country. It is therefore too late now to ask the question whether we could do it. As I say we have already done it.” 57. The need for a Uniform Civil Code as envisioned under Article 44 has been reiterated from time to time by the Supreme Court. Cases like the present one repeatedly highlight the need for such a Code ‘common to all’ which would enable uniform principles being applied in respect of aspects such as marriage divorce succession etc. so that settled principles safeguards and procedures can be laid down and citizens are not made to struggle due to the conflicts and contradictions in various personal laws. In modern Indian society which is gradually becoming homogenous the traditional barriers of religion community and caste are slowly dissipating. The youth of India belonging to various communities tribes castes or religions who solemnise their marriages ought not to be forced to struggle with issues arising due to conflicts in various personal laws especially in relation to marriage and divorce. The hope expressed in Article 44 of the Constitution that the State shall secure for its citizens Uniform Civil Code ought not to remain a mere hope. The Supreme Court had in 1985 directed that the judgment in Ms. Jordon Diengdeh to be placed before the Ministry of Law to take appropriate steps. However more than three decades have passed since then and it is unclear as to what steps have been taken in this regard till date. Accordingly let the copy of the present judgment be communicated to the Secretary Ministry of Law & Justice Government of India for necessary action as deemed appropriate. 58. The appeal is allowed. The impugned judgment is not sustainable and is accordingly set aside. Trial court is directed to proceed with the adjudication of the petition under 13 1(ia) of the HMA 1955 on merits and render a decision within six months. PRATHIBA M. SINGH JULY 07 2021

Authentication of Power of Attorney adversely affects the sales deed: Supreme Court of India

The execution and authentication of power of attorney, having not been proved, adversely affects the sale deed. If there is no clarity in the authentication of such delegation of rights, it adversely affects the sales deed further made and questions the title over the suit property. This proclamation was made by the Supreme Court of India presided by J. Ashok Bhushan, J. M. R. Shah and J. R. Subhash Reddy in the case of A. Subramaniam & anr. vs. R. Pannerselvam [CIVIL APPEAL NO.9472 of 2010]. The plaintiff, who was the respondent in this appeal, filed in 2002 in the Court of District Munsif, Namakkal praying for permanent injunction interdicting the defendants from disturbing the peaceful possession and enjoyment of the plaintiff over the suit property. The plaintiff claimed to have purchased the suit property by registered deed for a valid consideration from the descendants of Defendant. The defendants claimed that Dhasi Naidu’s son Sanjeevi Naidu had entrusted the suit property and other properties to one by a registered power of attorney, who later died, leaving behind his only legal heir, who died leaving behind her two daughters. Defendant on behalf of her three daughters filed a suit against the Ghani Sahib questioning his tenancy which suit was dismissed and had been taken in appeal. The trial court held that POA was prepared at Sri Lanka and registered at Namakkal and held that the plaintiff has right over the property. The First Appellate Court came to a conclusion that power deed written abroad need not be registered and that execution and authentication of power of attorney, Exhibit PW1 having not been proved, the sale deed Exhibit was also adversely affected. Hence, plaintiff failed to establish his title over the suit property. Aggrieved by the judgment of the First Appellate Court the plaintiff filed the second appeal.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.94710 A.SUBRAMANIAN & ANR ...APPELLANT(S ...RESPONDENT(S JUDGMENT ASHOK BHUSHAN J This appeal has been filed by the defendants in the civil suit challenging the judgment dated 28.04.2009 of Madras High Court in Second Appeal No.39 of 2009 by which judgment the High Court had allowed the second appeal of the plaintiff setting aside the judgment of the First Appellate Court dated 26.11.2008 in A.S. No.172 of 2005 and restoring the judgment dated 06.02.2004 in O.S.No.188 of 2002 of the trial court decreeing the suit. Parties shall be referred to as referred in the Original Suit. Brief facts of the case giving rise to this appeal are The plaintiff R. Pannerselvam who is the respondent in this appeal filed O.S. No.1802 in the Court of District Munsif Namakkal praying for permanent injunction interdicting the defendants from disturbing the peaceful possession and enjoyment of the plaintiff over the suit property. The suit property was measuring 1777 1 2 sq.ft. comprising in Survey No.172 1 situated at Kalappanaickenpatti Village. Plaintiff’s case in the suit was that suit property originally belonged to one Dhasi Naidu son of Thalama Naidu who went to Sri Lanka as a Farm Labour and died at Sri Lanka. The son of Dhasi Naidu Krishnasamy Naidu came to India in 1981 and entrusted the suit property and other properties to one Ghani Sahib who had been managing and enjoying the properties. The plaintiff claimed to have purchased the suit property by registered deed on 16.07.2001 for a valid consideration from the descendants of Dhasi Naidu The plaintiff’s further case was that the first defendant was formerly military serviceman and the second defendant who was son in law of the first defendant working as constable in police department attempted to disturb the plaintiff’s peaceful possession and enjoyment over the suit property Hence the suit was filed. The documents filed along with the plaint were power of attorney executed by legal heirs of Dhasi Naidu dated 22.05.2001 sale deed dated 16.07.2001 and sale deed dated 14.03.1946 in favour of Dhasi Naidu and house tax receipt dated Defendant No.1 filed written statement refuting the claim of the plaintiff defendant admitted that suit property belonged to Dhasi Naidu. The defendant pleaded that registered sale deed dated 16.07.2001 itself is a fabricated and forged one. So called legal heirs descendants of Dhasi Naidu as alleged in sale deed are fictious and are not true legal heirs of the said Dhasi Naidu. The title of the suit property is itself questionable the plaintiff along with Ghani Sahib has fabricated two special powers and plaintiff under Order VII Rule 14 of C.P.C. with the said documents had filed suit. The defendants in the written statement had set up the claim that Dhasi Naidu’s son Sanjeevi Naidu had entrusted the suit property and other properties to one P. Rangaraju Naidu by a registered power of attorney who later died leaving behind his only legal heir Mrs. Arjuna Devi who died leaving behind her daughters Nalanda Indira and Gunabarathi. Defendant No.1 on behalf of her three daughters filed a suit against the Ghani Sahib questioning his tenancy which suit was dismissed and had been taken in appeal being A.S.No.2994. The plaintiff examined himself as PW.1. Defendant examined DW.1 to DW.6. Plaintiff filed seven exhibits. The trial court framed the following three “a) Is the permanent injunction sought for by the plaintiff in the suit is available to him Is the statement of the defendants that the plaintiff is not the real owner of the suit property correct c) What are the other reliefs available to the The trial court held that power of attorney dated 22.05.2001 was prepared at Sri Lanka and registered at Namakkal Sub Registrar’s office. The documents filed on behalf of the plaintiff are Exhibits PW1 and PW2. The trial court held that the plaintiff has right over the property the possession of plaintiff was also found proved. The trial court decreed the The defendants filed an appeal before the Sub Court Namakkal being A.S. No.1705. The First Appellate Court entered into the validity of power of attorney Exhibits PW1 and PW2 and observed that Exhibit PW1 is in circumstances by suspicious surrounding. The First Appellate Court however came to a conclusion that power deed written abroad need not be registered. The First Appellate Court further came to the conclusion that execution and authentication of power of attorney Exhibit PW1 having not been proved the sale deed Exhibit PW2 is also adversely affected. Hence plaintiff has failed to establish his title over the suit property. The First Appellate Court has further found that defendant No.1 had instituted O.S.No.524 of 1987 which was for the same property in which defendant No.1 had claimed declaration and possession of the property for himself and her three daughters which suit having been dismissed the defendant has also not been able to prove that suit property belonged to the three daughters of defendant No.1 and possession lies with them. The First Appellate Court allowed the appeal and set aside the decree on the ground that plaintiff had failed to prove his title. Aggrieved by the judgment of the First Appellate Court the plaintiff has filed the second appeal. The High Court vide its judgment dated 28.04.2009 allowed the second appeal by deciding three substantial questions of law affirming the decree of trial court granting injunction in favour of the plaintiff. The High Court found that defendant having filed Original Suit No.524 of 1987 for declaration and recovery of possession of the suit property which was dismissed by the trial court against which A.S No.297 of 1994 having also been dismissed the finality was achieved to the previous proceedings that defendant has neither title nor in possession of the suit property and the possession of the plaintiff having been admitted by the defendant the suit of the plaintiff deserved to be decreed. The High Court was further of the view that the First Appellate Court ought not to have entered into the validity of the Exhibits A 1 and A 2. The High Court allowed the appeal. Aggrieved against the judgment of the High Court the defendants have come up in this appeal Ms. K. Abhirame learned counsel has appeared on behalf of the appellants and Shri V. Prabhakar learned counsel has appeared for the respondent. 10. Learned counsel for the appellants submits that the plaintiff having claimed right to the suit property on the basis of sale deed dated 16.07.2001 which sale deed was not found to be valid having not been executed by proper power of attorney by the heirs of Dhasi Naidu the suit of the plaintiff deserved to be dismissed. It is submitted that the plaintiff can succeed in the suit on the strength of his own case and the plaintiff cannot take any advantage of the weakness of the case of the defendants. Even defendants failed to prove their title and possession the suit of the plaintiff could not have been decreed mere on the fact that the defendants failed to prove their title and 11. Learned counsel for the appellants further submitted that the documents filed by the defendants were not considered by the trial court as well as by the High Court. Learned counsel for the appellant has placed reliance on the judgments of this Court in Nagar Palika Jind vs. Jagat Singh Advocate 10 SCC 30 and Jagdish Prasad Patel Through Legal Representatives and another vs. Shivnath and others 6 SCC 82 12. Shri V. Prabhakar learned counsel appearing for the respondent refuting the submission of the counsel for the appellants contends that plaintiff has successfully proved his possession which was also admitted by the defendant in his statement the suit for injunction was rightly decreed by the trial court. It is submitted that in essence the plaintiff has also successfully proved his titled by registered sale deed. The property was purchased by a registered sale deed on the basis of power of attorney executed by legal heirs of Dhasi Naidu. The power of attorney having been prepared at Sri Lanka and registered by Sub Registrar Namakkal First Appellate Court committed error in holding the power of attorney not properly executed and authenticated. It is submitted that the plaintiff having demolished the old structure which is proved from the evidence on record the possession of the plaintiff could not be denied by the defendant. The defendant having filed suit for declaration as well as recovery of possession of the suit property against Ghani Sahib the manager of the property which suit having been dismissed there is no right in the defendant to resist the suit of the plaintiff. 13. We have considered the submission of the learned counsel for the parties and have perused the records 14. The plaintiff in his plaint claimed title and possession and sought restraining the defendants from disturbing plaintiff’s peaceful possession and enjoyment over the suit property. In the suit plaintiff has prayed for the following reliefs a)by means of permanent injunction interdicting the defendants and their man from disturbing the peaceful possession and enjoyment of the plaintiff over the suit property in any b)by granting further other relief or reliefs as the Hon’ble Court deems fit in the circumstances of the case c)awarding the cost of the suit by the defendants and thus render justice.” 15. The trial court found that the plaintiff has proved his right over the property as well as possession he was entitled for decree of injunction All the three courts have referred to the earlier suit being O.S.No.5287 filed by the defendants which suit was dismissed by the trial court and appeal against which being A.S. No.297 of 1994 was also dismissed which judgments were brought before the trial court by the plaintiff. The copy of the judgment dated 23.11.1992 in O.S. No.524 of 1987 of the trial court has been brought on record as Annexure P5. The suit was filed by defendant No.1 along with his three minor daughters and he being father guardian and next friend of daughters the plaintiff of O.S. No.524 of 1987 claimed title over the suit property through Shri P. Rangaraju Naidu Ghani Sahib who was manager was impleaded as defendant and suit was filed for declaration and possession and permanent injunction. The defendant contested the suit where defendant took the plea that the property belonged to Dhasi Naidu whose son Krishnasamy Naidu who came to India and executed power of attorney in favour of defendant for managing the suit property since then the defendant was in possession and user. The trial court held that the plaintiff has failed to prove his title as well as possession. The possession of defendant was admitted by Subramanian who was the plaintiff in the said suit. In paragraph 11 of the judgment following was held by the trial court “11.....In this suit it has been admitted by the plaintiffs that the defendant is in possession of the suit properties. Under the circumstances since the plaintiffs have admitted that the defendant is in possession of the suit properties it is held that even though the defendant has not produced the power of attorney executed by Krishnasamy in favour of defendant in the deposition DW1 has made a claim that the defendant is the power of Krishnasamy is an acceptable one. From the deposition of DW2 it is held that Dasi Naidu died leaving behind Sanjeevi Naidu Nallu Naidu and Krishnasamy Naidu as his legal heirs It is also held that the defendant is in possession and managing the suit property in his capacity as the power agent of Krishnasamy and defendant is not a tenant in the suit property and accordingly issue number 2 and 5 are answered respectively. ....” 16. The suit for declaration and possession filed by Subramanian was dismissed against which A.S. No.2994 was filed which was dismissed by the District Court Salem on 08.09.1995 17. The High Court in its judgment has rightly referred to the earlier litigation and held that in view of the findings in the earlier suit filed by Subramanian and his three daughters it is sufficient to hold that defendants are not in possession of the suit property. The High Court has also rightly observed that plaintiff’s possession is based on the admission of the defendant himself made in the suit In paragraph 24 the High Court has held “24.....The Plaintiff’s possession is based on admissions made by the defendants themselves and also the factum of the previous proceedings which D 1 initiated and met with 18. The submission which has been made by the counsel for the appellants is that in the suit plaintiff has claimed his title and possession the High Court committed error in not entering into the question of title of plaintiff and without determining the title of the plaintiff the suit ought not to have been decreed. Learned counsel for the appellants has placed reliance on the judgment of this Court in Nagar Palika Jind vs. Jagat Singh Advocate went to the extent of half Heartedly admitting partly the reality) and denied the rest of the truth without having any responsibility to speak truth. For the purpose of achieving success in the litigative battle by hook or crook D 1 went to the extent of pleading before this Court quite antithetical to the Judgments and decrees in O.S.No.524 of 1987 and in A.s No.2994that the previous suit was not for recovery of possession of the suit property. But those judgments and decrees would clearly indicate that the earlier suit was filed by D 1 and his three children for declaration and recovery of possession of the entire property including the suit property. In the said previous suit the first defendant and his legal heirs contended that they derived title from their original porosities Rangarajulu Naidu and obtained the suit property under a power deed and they failed in both the courts. As such that is much more than sufficient to hold that the defendants are not in possession of the suit 21. The High Court was also right in its view that it is a common principle of law that even trespasser who is in established possession of the property could obtain injunction. However the matter would be different if the plaintiff himself elaborates in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief. The High Court has rightly observed that a bare perusal of the plaint would demonstrate that the plaintiff has not narrated anything about the title dispute obviously because of the fact that in the previous litigation DW1 failed to obtain any relief The High court has rightly observed that the principle that plaintiff cannot seek for a bare permanent injunction without seeking a prayer for declaration is not applicable to the facts of the present case. 22. We may also refer to judgment of this Court in Nair Service Society Ltd. vs. K.C. Alexander and others AIR 1968 SC 1165 where three Judge Bench of this Court presided by Hidayatullah J. has reiterated the principle that possession is good against all but the true owner. The principle enumerated in judgment of Judicial Committee in Parry v. Clissold AC 73 was noticed in paragraph 17 to the following effect “(17) In our judgment this involves an incorrect approach to our problem. To express our meaning we may begin by reading 1907 AC 73 to discover if the principle that possession is good against all but the true owner has in any way been departed from. 1907 AC 73 reaffirmed the principle by stating quite clearly “It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case his right is for ever extinguished and the possessory owner acquires an absolute 23. In paragraph 22 of the judgment the Bench approved the dictum in 1907 AC 73 24. Learned counsel for the appellants has also referred to judgment of this Court in Ajendra Prasadji Narendra Prasadji Pandey vs. Swami K Narayandasji and others 6 SCC 82. In the above case in the suit for declaration of title and possession this Court reiterated the principle that suit for declaration of title and possession the plaintiffs will succeed on the strength of their own title irrespective of whether defendants proved their case or not. In paragraph 44 and 45 following was “44. In the suit for declaration for title and possession the Plaintiffs Respondents could succeed only on the strength of their own title and not on the weakness of the case of the Defendants Appellants. The burden is on the Plaintiffs Respondents to establish their title to the suit properties to show that they are entitled for a decree for declaration. The Plaintiffs Respondents have neither produced the title document i.e. patta lease which the Plaintiffs Respondents are relying upon nor proved their right by adducing any other evidence. As noted above the revenue entries relied on by them are also held to be not genuine. In any event revenue entries for few Khataunis are not proof of title but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title. 45. Observing that in a suit for declaration of title the Plaintiffs Respondents are to succeed only on the strength of their own title irrespective of whether the Defendants Appellants have proved their case or not in Union of India v. Vasavi Coop. Housing Society Limited 2 SCC 269 it was held as underSCC p.275 para 15 “15. It is trite law that in a suit for declaration of title the burden always lies on the Plaintiff to make out and establish a clear case for granting such a declaration and the weakness if any of the case set up by the Defendants would not be a ground to grant relief to 25. There cannot be any dispute to the proposition laid down by this Court in the above cases. But coming to the facts in the present case the present suit giving rise to this appeal was not a suit for declaration of title and possession rather the suit was filed for injunction. As noted above the High Court has given cogent reasons for holding that the suit filed by the plaintiff for injunction was maintainable without entering into the title of the plaintiff in facts of the present case specially in view of the previous litigation which was initiated at the instance of defendant No.1 where he lost the suit for declaration and recovery of possession of the same property. The submission of learned counsel for the appellants that evidence filed by the defendant were not looked into is not correct. The trial court as well as the High Court has looked into not only the oral evidence but the exhibits which were filed on behalf of the defendant which is clear from the discussion made by the High Court in paragraphs 13 and 16 26. We do not find any error in the view of the High Court that it was not necessary to enter into the validity of Exhibits A 1 and A 2 and the suit for injunction filed by the plaintiff deserved to be decreed on the basis of admitted and established possession of the plaintiff. We thus do not find any error in the judgment of the High Court allowing the second appeal filed by the plaintiff by setting aside the judgment of the First Appellate Court and restoring that of trial court. 27. In the result the appeal is dismissed ( ASHOK BHUSHAN ( R. SUBHASH REDDY M.R. SHAH New Delhi February 08 2021

The parents of the deceased are always considered as dependent upon their children: High Court of Delhi

Even if the parents are not dependent on their children at the time of the accident, they will certainly be dependent, both financially and emotionally, upon their children at the later stage of their life, as the children were dependent upon their parents in their initial years. It would be unfair as well as inequitable to deny compensation for loss of dependency to a parent, who may not be dependent on his/her child at the time of accident per se but would become dependent at his/her later age. This was held in SUKHDEV PRASAD V. SUNIL KUMAR & ORS (IFFCO TOKIO GENERAL INSURANCE CO. LTD) [MAC.APP.1075/2018] in the High Court of Delhi by a single bench consisting of JUSTICE J.R. MIDHA. The facts are that the accident had resulted in the death of Avdhesh Kumar son of the appellant. The deceased was aged 25 years at the time of the accident and was survived by his father who claimed compensation. The Claims Tribunal awarded 15% towards loss to the estate to the appellant on the ground that the father was not dependent upon the deceased. The counsel for the appellant submitted that the appellant was dependent upon the deceased and entitled to loss of dependency according to principles laid down in National Insurance Co. Ltd. v. Pranay Sethi. The counsel for the respondent submitted that the compensation awarded by the Claims Tribunal was just, fair and reasonable. The court made reference to the judgment of Apex Court in Indrawati v. Ranvir Singh, wherein it was held that “This Court is of the view that the parents of the deceased are considered in law as dependent on their children, considering that the children are bound to support their parents in their old age when the parents would be unable to maintain themselves and the law imposes a responsibility on the children to maintain their parents. Even if the parents are not dependent on their children at the time of the accident, they will certainly be dependent, both financially and emotionally, upon their children at the later stage of their life, as the children were dependent upon their parents in their initial years. It would therefore be unfair as well as inequitable to deny compensation for loss of dependency to a parent, who may not be dependent on his/her child at the time of accident per se but would become dependent at his/her later age”. The court also made reference to the judgment of Apex court in  Magma General Insurance Co. Ltd. v. Nanu Ram., wherein it was held that “Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love and affection, and their role in the family unit”.

A 14 IN THE HIGH COURT OF DELHI AT NEW DELHI MAC. APP. 1075 2018 SUKHDEV PRASAD Appellant Date of Decision: 25th May 2021 Through: Mr. Rajesh Dabas Advocate TOKIO GENERAL INSURANCE CO. LTD)..... Respondents SUNIL KUMAR & ORSThe petitioner has challenged the award dated 02nd August 2018 passed by the Claims Tribunal whereby the Claims Tribunal awarded compensation of Rs.4 49 004.48 along with interest @ 9% per annum to the appellant. The accident dated 16th April 2016 resulted in death of Avdhesh Kumar. The deceased was aged 25 years at the time of accident and was survived by his father who claimed compensation. According to the claimant the deceased was earning Rs.15 000 per month. However in the absence of any documentary proof of income the Claims Tribunal took the minimum wages of Rs.9 568 per month as income of the deceased added 40% towards future prospects and deducted 85% towards personal expenses. The Claims Tribunal awarded 15% towards loss to the estate to the appellant on the ground that the father was not dependent upon the deceased. The Claims Tribunal assessed the loss of estate as Rs.4 34 004.48. The Claims Tribunal awarded Rs.15 000 towards funeral expenses. The total compensation is Rs.4 49 004.48 along with interest @ 9% per Learned counsel for the appellant submits that the appellant was dependent upon the deceased and entitled to loss of dependency according to principles laid down in National Insurance Co. Ltd. v. Pranay Sethi 16 SCC 680. Reliance is placed on Magma General Insurance Co. Ltd. v. Nanu Ram 18 SCC 130 in which the Supreme Court awarded the compensation to the parents of the deceased according to the principles laid down in Pranay Sethi276 DLT 415. Learned counsel for the respondent submits the compensation awarded by the Claims Tribunal is just fair and reasonable. This case is squarely covered by the recent judgment of this Court in Indirawati in which this Court had held that the parents of the deceased are considered in law as dependent on their children considering that the children are bound to support their parents in their old age when the parents would be unable to maintain themselves and the law imposes a responsibility on the children to maintain their parents. Even if the parents are not dependent on their children at the time of the accident they will certainly be dependent both financially and emotionally upon their children at the later stage of their life as the children were dependent upon their parents in their initial years. It would be unfair as well as inequitable to deny compensation for loss of dependency to a parent who may not be dependent on his her child at the time of accident per se but would become dependent at his her later age. Relevant portion of the said judgment is reproduced hereunder: “11. The first question arises for consideration is whether appellant No. 1 is entitled to compensation for death of her son. Appellant No. 1 is the mother of the deceased and she has no independent source of income. She deposed that she was dependent upon the deceased as well as on her husband. 12. This Court is of the view that the parents of the deceased are considered in law as dependent on their children considering that the children are bound to support their parents in their old age when the parents would be unable to maintain themselves and the law imposes a responsibility on the children to maintain their parents. Even if the parents are not dependent on their children at the time of the accident they will certainly be dependent both financially and emotionally upon their children at the later stage of their life as the children were dependent upon their parents in their initial years. It would therefore be unfair as well as inequitable to deny compensation for loss of dependency to a parent who may not be dependent on his her child at the time of accident per se but would become dependent at his her later age. Section 125 of Code of Criminal Procedure 1973 Section 20 of Hindu Adoption and Maintenance Act 1956 and Maintenance and Welfare of Parents and Senior Citizens Act 2007 cast an obligation on the children to maintain their parents. These legislations recognize the legal rights of parents to be maintained by their children. In Vijaya Manohar Arbat v. Kashirao Rajaram Sawai 1987) 2 SCC 278 the Supreme Court noted the moral obligation of children to maintain their parents. Relevant portion of the judgment is as under:— “6. There can be no doubt that it is the moral obligation of a son or a daughter to maintain his or her parents. It is not desirable that even though a son or a daughter has sufficient means his or her parents would starve. Apart from any law the Indian society casts a duty on the children of a person to maintain their parents if they are not in a position to maintain themselves. It is also their duty to look after their parents when they become old and infirm.” In Mahendrakumar Ramrao Gaikwad v. Gulabbai Ramrao Gaikwad 2001 Cri LJ 2111 the Bombay High Court referred to the ancient scripture of Manu which recognizes the right of the aged parents to be maintained by their children even if the children are unable to maintain themselves. is reproduced Relevant portion of hereunder: — 11. It is not out of place to remember the mandate of Manu in the matter of maintenance of parents wife and child. Manu said “the aged parents a virtuous wife and an infant child must be maintained even by committing a hundred misdeeds” Manu does not speak of solitary duty. It is moral duty of a person to maintain aged parents virtuous wife and infant child. In discharge of this pious duty Manu went to such an extent that he made hundred misdeeds pardonable. During course of time this moral duty assumed a legal character. The need was felt to introduce an enactment in this behalf. the said 13. Under the circumstances son is legally bound to maintain his mother if it is shown that mother is unable to maintain herself. It is not at all desirable that an earning son who is well placed in the society having possessed of sufficient means shall allow his penniless mother to face starvation. The Indian Society casts a moral obligation on the children of a person to maintain their parents if they are not in a position to maintain themselves. It is bounden duty of a son to look after his parents when they become old and infirm. 25 …..Because of his mother he has seen this beautiful world. Parents give each child name places the child in a social class and gives national and religious identity. Parent plugs child into society in which he or she will live and grow.” In Magma General Insurance Co. Ltd. v. Nanu Ram 2018) 18 SCC 130 the Supreme Court held that parents are entitled to Filial consortium as compensation for accidental death of a child. Relevant portion of the said judgment is reproduced hereunder: — “21. A Constitution Bench of this Court in Pranay Sethi National Insurance Co. Ltd. v. Pranay Sethi 16 SCC 680] dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance term which consortium” and “filial consortium”. The right to consortium would include the company care help comfort guidance solace and affection of the deceased which is a loss to his family. With respect to a spouse it would include sexual relations with the deceased spouse:9 SCC 54] consortium” 21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love affection companionship and their role in the family unit. 22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world over have recognised that the value of a child s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love affection care and companionship of the deceased child. 23. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families in cases of genuine claims. In case where a parent has lost their minor child or unmarried son or daughter the parents are entitled to be awarded loss of consortium under filial consortium. the head of Parental consortium is awarded to children who lose their parents in motor vehicle accidents under the Act. A few High Courts have awarded compensation on this count No. 28548 2014 decided on 30th June 2020 the Supreme Court re affirmed Magma General Insurance Co. Ltd. with respect to the rights of parents to compensation in case of accidental death of a child. Relevant portion of the said judgment is reproduced hereunder: — this Court “In Magma General Insurance Co. Ltd. v. Nanu Ram 2018) 18 SCC 130 term which to be a compendious encompasses spousal consortium parental consortium as well as filial consortium. The right to consortium would include the company care help comfort guidance solace and affection of the deceased which is a loss to his family. With respect to a spouse it would include sexual relations with the deceased spouse. Parental consortium is granted to the child upon the premature death of a parent for loss of parental aid protection affection society discipline guidance and Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love and affection and their role in the family Modern jurisdictions world over have recognized that the value of a child s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is the compensation for loss of love and affection care and companionship of the deceased child. The Motor Vehicles Act 1988 is a beneficial legislation which has been framed with the object of providing relief to the victims or their families in cases of genuine claims. In case where a parent has lost their minor child or unmarried son or daughter the parents are entitled to be awarded loss of consortium under the head of Filial Consortium. Parental Consortium is awarded to the children who lose the care and protection of their parents in motor vehicle accidents.” In New India Assurance Company v. Somwati 9 SCC 644 the Supreme Court awarded Filial compensation in terms of principles laid down in Magma General Insurance Company Ltd. and United India Insurance Company Ltd. v. Satinder Kaur6 SCC 121 the Supreme Court held that the mother of the deceased bachelor is entitled to compensation by taking 50% of his income as loss of dependency on the premise that the deceased would not contribute more than 50% to his mother after marriage. The Supreme Court further observed that the mother would be considered as dependent even if the father was employed and earning. In Sarla Vermathe Supreme Court has laid down clear principles for computation of compensation in respect of death of a parent as well as a spouse by applying the multiplier method and the application of those principles have not been made subject to any condition meaning thereby that no further evidence is required to prove the dependency in the aforesaid cases. In view of the law well settled by the Supreme Court in the aforesaid judgments this Court holds that the parents of the deceased child are considered as dependents computation of compensation. The principles laid down in Keith Roweand Dinesh Adhlak v. Pritam Singh ILR 2010) 5 Del 463 would not apply to the claim for compensation by the parents in respect of their child as it is in the present case. The principles relating to the loss to the estate referred to in Keith Rowe and Dinesh Adhlak supra) would also not apply in respect of the claim of a spouse for compensation in respect of death of his her spouse as well as children s claim for compensation in respect of death of their parents. In that view of the matter the principles relating to the loss to the estate shall apply only to claimants other than parents children and spouse. 21. Applying well settled principles enunciated above this Court holds that appellant No. 1 is entitled to the compensation for loss of dependency according to the multiplier method. xxx xxx xxx 29. The Claims Tribunals shall note that the principles relating to the loss to the estate in Keith Rowe and Dinesh Adhlak are not applicable to the claim of the parents in respect of the death of their child claim of children in respect of death of their parents and claim of a spouse in respect of death of his her spouse in a motor accident.” In Magma General Insurance Co. Ltd. v. Nanu Ramthe Supreme Court held that the parents are entitled to the loss of dependency according to the principles laid down in Pranay Sethi This case is squarely covered by the ratio laid down in Pranay Sethi Magma General Insurance Co. Ltd. v. Nanu Ram supra) Indrawati v. Ranvir Singh (supra). In that view of the matter this Court is of the view that that the parents of the deceased are always considered as dependent upon their children and are entitled to compensation according to the principles laid down in Pranay Sethi (supra). Taking the income of the deceased as Rs.9 568 per month adding 40% towards future prospects deducting 50% towards the personal expenses and applying the multiplier of 18 the loss of dependency is computed as Rs.14 46 681.6. The appellant is also to compensation of Rs.15 000 for loss of estate Rs.40 000 for loss of love and affection and funeral expenses of Rs.15 000 . The total compensation is computed as Rs.15 17 000 Rs.15 16 681.6 rounded off). The appeal is allowed and the compensation awarded by the Tribunal is enhanced from Rs.4 49 004.48 to Rs.15 17 000 along with interest @ 9% from the date of filing of DAR i.e. 06th June 10. Respondent No.1 is directed to deposit the entire enhanced award amount along with interest with DSLSA within four weeks. Respondent No.1 shall also file the computation of interest on affidavit with DSLSA within one week of deposit. Respondent No.1 shall send the written intimation of deposit of the enhanced award amount to the claimants within one week of deposit. 11. Upon the aforesaid amount being deposited the DSLSA shall disburse the amount to the appellant in terms of the principles laid in Rajesh Tyagi v. Jaibir Singh judgment dated 08th January 2021 12. After deposit of the award amount the claimants shall appear before DSLSA along with the passbooks of their savings bank accounts near the place of their residence as well as PAN card and Aadhaar card. The concerned banks of claimants are directed not to issue any cheque book or debit card to the claimants and if the same have already been issued the banks are directed to cancel the same and make an endorsement on their passbooks to this effect. The claimants shall produce the copy of this order to the concerned bank whereupon the bank shall make an endorsement on the passbooks of claimants that no cheque book and or debit card shall be issued to claimants without the permission of this Court. 13. After the disbursement of the award amount of disbursement DSLSA shall send the compliance report to this Court within four weeks of disbursement of award amount. 14. Copy of this judgment be sent to DSLSA. J.R. MIDHA J. MAY 25 2021

Parties to proceed in a manner which balances the respondent’s precarious financial position with the larger national interest: Delhi High Court

Respondent’s exacerbating financial troubles could not simply be brushed aside and had to be considered in the light of the fact that it had completed significant portions of the project by then and had invested enormous sums in doing so. Being mindful of this, the Court had urged the parties to proceed in a manner which balances the respondent’s precarious financial position with the larger national interest which lay in ensuring completion of the project, the Delhi High Court held in M/S NHPC LTD. v. M/S HINDUSTAN CONSTRUCTION COMPANY LTD. (O.M.P. (COMM) 484/2020) The applicant/respondent is the Award Holder in the arbitral award dated 14.10.2019 passed by a three-member Tribunal in the arbitration conducted between the two parties in relation to disputes arising out of the turnkey execution of the 330 MW hydroelectric power plant project on the Kishanganga River in Bandipora, Jammu & Kashmir (hereinafter referred to as ‘the project’). As per the terms of the contract executed between them on 09.03.2009, the project involved construction of three generating units, viz. Units I, II and III carrying power generation capacity of 110 MW each, and 330 MW in total. Considering the remote and politically charged nature of the project location, there were delays in executing the project which caused losses to both the parties and led to disputes between them as to who was to be blamed for these delays. As a result, the respondent invoked arbitration on 31.01.2017 and the award impugned in the captioned petition came to be passed on 14.10.2019. In its award, the learned Tribunal, after holding the petitioner liable for causing delays, has granted the applicant/respondent a total extension of time of 514 days in the project timeline and a total sum of INR 163.55 crores (inclusive of the costs claimed alongwith the pre-award interest @12% p.a.) along with future interest @ 9% p.a. till the date of actual payment, provided no future interest would be payable if the awarded amount was paid within ninety days of the date of the award. It is an admitted case that the awarded amount was not paid to the respondent during the ninety day period and the captioned petition has been filed by the petitioner assailing the findings in this award. This petition was taken up for the first time on 25.09.2020, Court while issuing notice and directing stay of the award dated 14.10.2019, had directed the petitioner to deposit the awarded amount with the Court by 05.10.2020. At the time, the petitioner had sought time till 24.10.2020 to effectuate the deposit, which request was not accepted by the Court on the ground that almost ten months had passed since the date of passing of the award. The quantum and time period contained in the direction for deposit was assailed by the petitioner before the Supreme Court by way of SLP(C)No.11777/2020 which was listed for 06.10.2020, which implied that the direction for deposit remained in suspension till then. However, the SLP soon came to be dismissed by the Supreme Court by granting the petitioner time till 25.10.2020 to make the deposit as directed. When all these court-ordered extensions of time to make the deposit of the awarded amount came to an end, the petitioner duly deposited the amount before Court. Soon thereafter, the respondent/Award Holder moved the present application seeking release of the amount deposited before Court. The petitioner was granted time to respond to this application and has already filed its reply opposing release of the deposited amount in favour of the respondent. Counsel for the respondent has made the submission that, Once the learned Tribunal, after due appreciation of the evidence on record and the prevailing legal position, categorically concluded in its award that certain amounts are due and payable to the respondent, then the petitioner’s mere act of assailing the award before Court by way of the captioned petition ought not be a valid ground to deprive the respondent of the amounts rightfully due to it. Counsel for the petitioner vehemently opposes the application for release and has contended that the award amount deposited by the petitioner before this Court in accordance with its orders and merely as a precondition for stay, cannot be treated by the respondent/the successful claimant before the learned Tribunal, as its own money. The court was of view that, “All of these considerations have to be seen in the light of the fact that the entire world is reeling under the devastating and compounding financial consequences of the COVID-19 global pandemic. Therefore, when it has been clear all along that (i) the respondent does not have adequate funds to sustain work at the project site, (ii) any further shortage of funds is likely to hamper the progress of the remaining work in a timely and efficient manner and that (iii) the respondent holds an award in its favour which is yet to be tested within the limited scope of interference under Section 34 of the Act, I find merit in the grounds raised and relief sought in this application.”

Via Video Conferencing IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 04.12.2020 O.M.P.484 2020 M S NHPC LTD. Petitioner Through: Ms. Maninder Acharya ASG with Mr. Viplav Acharya Mr. Krishnesh Bapat Mr. Shikhar Kishore Mr. Gauhar Mirza Mr. Prakhar Deep Mr. Nishant Doshi & Mr. Manavendra Gupta Advocates M S HINDUSTAN CONSTRUCTION COMPANY LTD. Respondent Through: Mr. Harish Salve Senior Advocate Mr. Dayan Krishan Senior Advocate with Mr. Rishi Aggarwala Advocate HON BLE MS. JUSTICE REKHA PALLI REKHA PALLI JIA No.10056 2020 This is an application filed by the respondent seeking release of the awarded amount deposited by the petitioner before this Court pursuant to the order dated 25.09.2020 directing the same as a precondition for stay of the award. The applicant respondent is the Award Holder in the arbitral award dated 14.10.2019 passed by a three member Tribunal in the OMP(COMM) 484 2020 arbitration conducted between these two parties in relation to disputes arising out of the turnkey execution of the 330 MW hydroelectric power plant project on the Kishanganga River in Bandipora Jammu Kashmiralong with future interest @ 9% p.a. till the date of actual payment provided no future interest would be payable if the awarded amount was paid within ninety days of the date of the award. It is an admitted case that the awarded amount was not paid to the respondent during the ninety day period and the captioned petition has been filed by the petitioner assailing the findings in this award. 3. When this petition was taken up for the first time on 25.09.2020 this Court while issuing notice and directing stay of the award dated 14.10.2019 had directed the petitioner to deposit the OMP(COMM) 484 2020 awarded amount with this Court by 05.10.2020. At the time the petitioner had sought time till 24.10.2020 to effectuate the deposit which request was not accepted by this Court on the ground that almost ten months had passed since the date of passing of the award. The quantum and time period contained in the direction for deposit was assailed by the petitioner before the Supreme Court by way of SLP(C)No.11777 2020 which was listed for 06.10.2020 which implied that the direction for deposit remained in suspension till then. However the SLP soon came to be dismissed by the Supreme Court by granting the petitioner time till 25.10.2020 to make the deposit as directed. When all these court ordered extensions of time to make the deposit of the awarded amount came to an end the petitioner duly deposited the amount before this Court. Soon thereafter the respondent Award Holder moved the present application seeking release of the amount deposited before this Court. The petitioner was granted time to respond to this application and has already filed its reply opposing release of the deposited amount in favour of the respondent. In support of the application Mr. Harish Salve learned senior counsel for the respondent has made the following submissions: Once the learned Tribunal after due appreciation of the evidence on record and the prevailing legal position categorically concluded in its award that certain amounts are due and payable to the respondent then the petitioner’s mere act of assailing the award before this Court by way of the captioned petition ought not be a valid ground to deprive the respondent of the amounts rightfully due OMP(COMM) 484 2020 to it. In any event there are two primary reasons which show that this petition itself deserves to be rejected at the very outset. The first and the foremost being that the petition is not maintainable as none of the grounds raised therein fall within the ambit of scope of interference set out under Section 34 of the Arbitration & Conciliation Act 1996 (L) (N) (ZZ) and NNN) in the petition show that the petitioner is deliberately attempting to raise issues which are factual in nature and therefore fall outside the purview of Section 34 of the Act especially after the amendment in 2015. Even on facts it is clear that the balance of convenience lies in favour of the respondent especially since it is admittedly a company which has executed development projects for over 90 years and even as on date is engaged in executing 45 projects of like nature. Considering the fact that the respondent as on date is finding it hard to meet its obligation to pay the salaries of its 5000 employees on account of the global pandemic and its pre existing financial troubles it is of utmost importance that this Court direct the deposited monies to be released to the respondent without being asked to furnish any security in exchange thereof. Even otherwise the respondent is a private contractor which has been continuously carrying out the project work on the basis of various extensions of time granted by the petitioner in respect of work arising out of the very same contract which formed the subject matter of the impugned award. It is not only the respondent’s will to continue carrying out the project work OMP(COMM) 484 2020 even the actions of the petitioner signify its will to have the respondent do so. Ultimately the petitioner’s actions ended up delaying the project which precipitated the respondent’s financial troubles since it had invested enormous sums in it all of which formed the basis of the findings given by the learned Tribunal in the impugned award. Delaying payment of the awarded amounts would lead to aggravating the very fire which the award sought to douse which was to prevent any further delay and facilitate smooth continuation in executing the project work. Furthermore the respondent’s equipment is still lying at the project site which is an indicator of its commitment to completing the project. In fact owing to the efforts put in by the respondent over the years the project is operational as on date and has generated electricity for the inhabitants of remote regions in the union territory of Jammu & Kashmir. Therefore this is a fit case wherein the amount deposited by the petitioner ought to be released in favour of the respondent without the requirement of directing the respondent to furnish any security. The petitioner’s case that the awarded amount deposited with the court under Section 34 proceedings can only be released in favour of the applicant respondent if it furnishes adequate security is based on a plain misreading of the provisions of the Act. Per contra the statute and specifically Section 36(3) thereof makes it clear that it is only for this Court to ascertain the conditions for stay of the award. Moreover any comparison drawn by the petitioner between a petition of this kind and appellate proceedings against a money OMP(COMM) 484 2020 decree is wholly misplaced especially in the light of the fact that any appeal preferred against a money decree is subject to very different parameters since the scope of interference of a court of first appeal is much wider than the scope of interference of a court dealing with a petition under Section 34 of the Act. On the other hand Ms.Acharya learned senior counsel for the petitioner vehemently opposes the application for release and has contended that the award amount deposited by the petitioner before this Court in accordance with its orders and merely as a precondition for stay cannot be treated by the respondent the successful claimant before the learned Tribunal as its own money. In furtherance of this submission she places reliance on Order 41 Rule 5 of the Code of Civil Procedure 1908 as also Section 36(3) of the Act to contend that the latter makes it evident that an arbitral award is akin to a money decree. Therefore the same parameters ought to be applied while directing release of the award amount deposited with a court as in the case of money decrees. Thus if this Court were to direct the release of the deposited award amount it ought to be subject to furnishing of security by the respondent. In support of her contention Ms.Acharya places reliance on the decisions in M s Dewan Chand v. UOI & Anr. 2015 SCC Online Del 9060] PSL Ramanathan Chettiar & Ors. V. ORMPRM Ramanathan ChettiarSouth Delhi Municipal Corp. v. M s Radhey Shyam Indian Oil Corp. Ltd. V. FEPL Engineering(P) Ltd.&Anr. OMP(Comm) 144 2019 order dated 30.07.2020] and NTPC v. Ritwik Project Pvt. Ltd. 484 2020 14.10.2020] all in order to contend that the deposit of the awarded amount by the party challenging the award for obtaining a stay thereon is not akin to paying the money to the opposite party. She therefore submits that this Court ought to keep this principal in account and not permit any release in favour of the respondent without any guarantee. Moreover she has drawn the attention of this Court to its recent decision dated 28.07.2020 dismissing OMP(I) 150 of 2020 which was a Section 9 petition preferred by the respondent seeking certain interim reliefs with respect to the bank guarantees it had furnished to the petitioner. It is her contention that if the Court did not find any merit in the contentions of the respondent at that time but instead took the view that the respondent had not been carrying out work at the requisite pace then that on its own sufficiently bolsters the case of the petitioner in its Section 34 petition. She finally submits that in the light of the respondent’s own claims of financial troubles and the fact that the petitioner is a public sector undertaking it is all the more necessary to protect the petitioner’s interest by dismissing this application and rejecting the respondent’s prayer to be allowed to forego the requirement of furnishing sufficient security while seeking release of the amounts accruing to it under an award which is yet to withstand the scrutiny of appellate proceedings. I have considered the submissions of the learned senior counsel for the parties and perused the record with their assistance. At the outset it may be appropriate to note that petitioner non applicant has not denied that the respondent has been carrying out work at the project site in Kashmir in terms of the OMP(COMM) 484 2020 agreement between the parties and that it has gathered manpower and equipment at the project site which continues to be there till date. It is also not denied that the petitioner has indeed granted repeated extensions of time to the respondent for carrying out this work. Further it is an admitted position that the project is operational as on date in that it has been generating electricity for the use of its intended beneficiaries i.e. the inhabitants of some of the remote regions in the union territory of Jammu & Kashmir. It is against this backdrop that the respondent’s request for release of the amount deposited by the petitioner as a precondition for stay of the award in these proceedings has to be considered. Although the petitioner’s challenge to the arbitral award is still to be considered by this Court on merits it prima facie emerges from a perusal of the grounds in the petition that the petitioner is indeed trying to assail findings mainly based on appreciation of facts. The question whether these findings actually invite interference of this Court under Section 34 of the Act can be decided once and for all only after the pleadings are complete. However at the same time it is a settled position of law that a court exercising its jurisdiction under Section 34 of the Act does not sit in appeal over the award passed by an arbitrator which is considered final and binding in normal course. This has to be read in conjunction with the fact that Ms. Acharya while making her detailed submissions has not been able to seriously dispute that most of the grounds assail factual findings. Therefore in my view at this stage the award cannot be presumed to be in contravention of the public policy of India or suffering from a patent illegality as spelt out in OMP(COMM) 484 2020 Section 34 of the Act or any other illegalities which would render the award per se illegal or liable to be set aside. 9. Ms. Acharya has also contended that as per Section 36(3) of the Act a Court which is examining an award even under the limited scope of Section 34 of the Act ought to apply the same parameters which are applicable with respect to the stay of an ordinary money decree under the Code of Civil Procedure 1908 and the release of the deposit made as a precondition for such stay. As per her this would imply that no order for release of the deposited amount can be passed by this Court without requiring the applicant to furnish the requisite security in exchange for the same. On a careful consideration of this contention I find myself unable to agree with her on this aspect for two reasons. Firstly the two statutes which are sought to be compared viz. the Code of Civil Procedure 1908 and the Arbitration and Conciliation Act 1996 contain certain provisions which in practice can be equated on certain basic principles but at the same time they are vastly different since the Act is a substantive and procedural statute on the subject of arbitration and the scope of interference under Section 34 thereof is a lot narrower. Secondly the language of the provision sought to be relied on i.e. Section 36(3) of the Act does not make it binding for the Court to follow the precepts governing the stay of a money decree but only lays down a guiding principle that the Court ought to pay due regard to it. In any event Section 36(3) of the Act only deals with the power of the Court to grant a stay on an award directing money payment and does not deal with the parameters for releasing the deposited amount in favour of OMP(COMM) 484 2020 the Award Holder. For this purpose it may be useful to extract the bare text of Section 36(3) of the Act which reads as under: “Section 36 : Enforcement 3) Upon filing of an application under sub section for stay of the operation of the arbitral award the Court may subject to such conditions as it may deem fit grant stay of the operation of such award for reasons to be recorded in writing: Provided that the Court shall while considering the application for grant of stay in the case of an arbitral award for payment of money have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure 1908” It is therefore evident that the parameters governing the release of an amount which has been deposited before a court as a precondition for stay of a money decree under the CPC need not be strictly followed by this Court in all preconditional deposits for stay made in petitions arising out of arbitration. Thus the power of this Court to stay an award and release the amounts obtained as a precondition for such a stay as also its power to decide the conditions thereof still retains a discretionary characteristic which can be exercised by this Court in a judicious manner which in its opinion fits the facts and circumstances of the case. 11. On this aspect the petitioner has placed reliance on four judgments to oppose release of the deposited amounts in favour of the applicant today which have been carefully considered by this Court. I OMP(COMM) 484 2020 find that the decision in Dewan Chandis not applicable here since the claim raised in that case was for an amount which did not form a part of the award which was under challenge but was rather for certain bank charges which the executing court had held it entitled to. The decision in PSLR Chettiar is also not applicable to this case since this Court is not sitting in appellate jurisdiction over a money decree rather it is dealing with an award and as discussed hereinabove the parameters of conditional deposit in the case of a money decree and arbitration need not necessarily be the same. I have also considered the decisions in South Delhi Municipal Corporation supra) and Indian Oil Corp. Ltd.and find them inapplicable as well. In fact all these decisions have a common thread running through them wherein the concerned Courts have directed release of the preconditional amounts deposited before the court subject to furnishing of requisite security but neither are these decisions applicable to the facts of the present case nor do they have a binding effect of the kind which defeats the discretionary powers vested in this Court under the Act to make appropriate directions in the facts of each case. 12. On facts apart from the admitted positions noted hereinabove the petitioner has sought to remind this Court of its decision in the Section 9 petition which had been filed by the respondent. However I am of the opinion that while raising this contention the petitioner has failed to pay heed to the observations of this Court towards the end of that very decision the relevant extracts whereof read as follows: “Before I conclude even though I have not been persuaded by the OMP(COMM) 484 2020 arguments made against invocation of the bank guarantees I am constrained to note my dismay at the gridlock prevailing between the parties in the present case and its likely impact on the completion of the project. On the one hand the respondent NHPC wants the petitioner to continue with the project but it does not want to extend any further financial assistance or leniency at the same time. On the other hand the petitioner believes that it is owed certain amounts from the respondent and on account of its financial constraints has raised a demand for these amounts and has also opposed encashment of the bank guarantees as it would deepen its financial woes. Although it is not for this Court to decide these issues which are arbitrable at the instance of either party it cannot be ignored that a lot of the public exchequer has been utilised in this project through the Respondent. Permitting this gridlock to continue and aggravating it by encashing the bank guarantees would only delay completion of the project at a time when the nation is already reeling from the lethal outbreak of COVID 19. Irrespective of the disputes between the parties greater regard ought to be given to the fact that ultimately it is the general public which would benefit from this project and therefore an endeavor should be made to provide them this benefit at the earliest. 13. Thus the fact remains that even while deciding against the respondent in its Section 9 petition for reasons which were strictly based on the peculiar facts thereof and the prevailing position of law relating to bank guarantees this Court had noted that the respondent’s exacerbating financial troubles could not simply be brushed aside and had to be considered in the light of the fact that it had completed significant portions of the project by then and had invested enormous sums in doing so. Being mindful of this the Court had urged the OMP(COMM) 484 2020 parties to proceed in a manner which balances the respondent’s precarious financial position with the larger national interest which lay in ensuring completion of the project. Thus even at that time the Court had observed that it was crucial for the respondent to have sufficient funds to ensure that it can finish the project. All of these considerations have to be seen in the light of the fact that the entire world is reeling under the devastating and compounding financial consequences of the COVID 19 global pandemic. Therefore when it has been clear all along thatthe respondent does not have adequate funds to sustain work at the project site any further shortage of funds is likely to hamper the progress of the remaining work in a timely and efficient manner and that the respondent holds an award in its favour which is yet to be tested within the limited scope of interference under Section 34 of the Act I find merit in the grounds raised and relief sought in this application. In arriving upon this conclusion due regard has been paid to the fact that the respondent is admittedly a company of repute in the infrastructure development sector with over 90 years of experience in carrying out work of this kind. It is also presently engaged in executing 45 projects which are similar to the project in this case and by necessary implication also require equally enormous investments in carrying out the work effectively. Ultimately the primary consideration of the Court is to ensure that the project work continues and is completed soon. To that end it appears important to accommodate the company engaged in this endeavour which is presently finding it difficult to sustain its employees. To let this OMP(COMM) 484 2020 situation aggravate any further would mean to indirectly cost us a project of great national significance since it is serving the important function of providing electricity to a remote and sensitive areas of the nation. I am therefore of the view that it will be in the interest of justice to release the amount deposited by the petitioner before this Court in favour of the respondent without requiring the respondent to furnish any security. 15. At the same time the petitioner’s apprehension that the recovery of any amount released to the respondent at this stage may become impossible owing to the respondent’s precarious condition is justified. Therefore for this reason it is deemed appropriate to direct the release to be subject to an affidavit ̉ filed by the respondent undertaking to restitute the released amount with interest @ 7 % per annum in case the captioned petition were to succeed. The respondent is directed to file the affidavit within three days from today. In these circumstances the application is allowed. 17. At this stage learned senior counsel for the applicant submits that on account of the restricted functioning of this Court’s registry and the possible health risks associated with a physical visit to collect the amount as directed to be released hereinabove this Court may consider directing the Registry to release the amount directly in its bank account. The respondent’s apprehensions cannot be said to be unfounded and therefore the prayer for digitally remitting the amount to the respondent’s account deserves to be accepted. It is accordingly directed that upon receiving the affidavit of undertaking from the respondent the Registry shall release the OMP(COMM) 484 2020 awarded amount as deposited by the petitioner along with interest accrued thereon in favour of the respondent by digitally remitting the same in the bank account of the respondent bearing the following particulars: Account Details: Hindustan Construction Co. Ltd. Bank ICICI Bank Ltd Address CIBD Mumbai Branch Account No. 039305005472 RTGS IFS Code ICIC0000393 It is made clear that the direction for release of the deposited amount in favour of the applicant respondent shall be subject to the final outcome of the captioned Section 34 petition and is being passed in the peculiar facts and circumstances of this case. 20. The application is disposed of in the aforesaid terms. O.M.P(COMM) 484 2020 21. At request list on 15.04.2021. DECEMBER 04 2020 REKHA PALLI J. OMP(COMM) 484 2020

Supreme Court orders RBI and Ministry of Finance to implement loan moratorium rules

With COVID 19 being declared as a pandemic by the World Health Organisation, Ministry of Finance and the RBI collectively took decisions to ease the issues faced by borrowers which were not implemented to their best, the Apex Court orders for further implementation.  This remarkable judgement was passed by the bench of the Supreme Court, consisting of Justice Ashok Bhushan, Justice R Subhash Reddy and Justice M.R. Shah in the matter of Gajendra Sharma v Union of India & Anr., [WRIT PETITION (CIVIL) NO.825 OF 2020]. In light of the World Health Organisation declaring COVID 19 as a pandemic and the Indian government taking steps for it in light of the Disaster Management Act, 2005, the Ministry of Finance instructed the RBI to relax the stringent loan repayment rules for a period of six months. The petitioner had taken a loan of rs. 38 lakhs, approximately from ICICI Bank but due to the lockdown imposed by the government, the income of many individuals had been adversely affected, including the petitioner. On the filing of this petition, the RBI clarified that scheme was launched under the name of “Scheme for grant of ex-gratia payment of difference between compound interest and simple interest for six months to borrowers in specified loan accounts (1.3.2020 to 31.8.2020)”, wherein a moratorium period was imposed for six months keeping in mind the severe financial crunch the pandemic had caused. It also listed down the following measures it took in order to ease the rules for borrowers. “The following borrowers were declared eligible for the benefit of waiver of ‘interest on interest’: (i) MSME loans up to Rs. 2 crore (ii) Education loans up to Rs. 2 crore (iii) Housing loans up to Rs. 2 crore (iv) Consumer durable loans up to Rs. 2 crore (v) Credit card dues up to Rs. 2 crore (vi) Automobile loans up to Rs. 2 crore (vii) Personal loans to professionals up to Rs. 2 crore (viii) Consumption loans up to Rs. 2 crore.”

IN THE CIVIL ORIGINAL JURISDICTION WRIT PETITIONNO.825 OF 2020 GAJENDRA SHARMA ...PETITIONER(S UNION OF INDIA AND ANR. ...RESPONDENT(S JUDGMENT ASHOK BHUSHAN J By this writ petition filed under Article 32 of the Constitution the petitioner has prayed for directions declaring the notification dated 27.03.2020 issued by Reserve Bank of India as ultra vires to the extent it charges interest on the loan amount during the moratorium period. The petitioner’s case and the pleadings in the writ petition briefly noted are: 2.1 The petitioner has availed a home loan of amount of Rs.37 48 000 from the ICICI Bank After declaration of Coronavirus by the National Executive Committee. 2.2 The Reserve Bank of India on 27.03.2020 issued Statement of Development and Regulatory Policies where inter alia certain regulatory measures were announced to mitigate the burden of debt servicing brought about by disruptions on account of COVID 19 pandemic and to ensure the continuity of viable businesses. The notification dated 27.03.2020 was issued by the Reserve Bank of India for rescheduling of payments Term Loans and Working Capital Facilities Relevant part of the notification relevant for the present case is as follows: “(i) Rescheduling of Payments Term Loans and Working Capital 2. In respect of all term loans including agricultural term loans retail and crop loans) all commercial banks co operative banks all India Financial Institutions and NBFCs are permitted to grant a moratorium of three months instalments1 falling due between March 1 2020 and May 31 2020 The repayment schedule for such loans as also the residual tenor will be shifted across the board by three months after the moratorium period. Interest shall continue to accrue on the outstanding portion of the term loans during the moratorium 2.3 The petitioner’s case in the writ petition is that when all the means of livelihood have been curtailed by the Government of India by imposition of complete lockdown pan India due to worldwide spread of COVID 19 pandemic the petitioner has no way to continue to his work and earn livelihood. The petitioner’s case is that imposition of interest during the moratorium period is ultra vires and shall defeat the purpose of permitting the moratorium of loans. 2.4 Referring to notification dated 27.03.2020 petitioner pleads that Reserve Bank of India has by the notification made it clear that interest shall continue to accrue on the outstanding portion of the term loans during the moratorium period. Petitioner’s case is that the above action of imposition of interest during the moratorium period is completely devastating and causes hindrance and obstruction in right to life guaranteed by Article 21 of the Constitution Petitioner’s case is that the additional interest burden for three months’ moratorium period is also equally divided in all future EMIs which is to increase the monthly bill of the customer. 2.5 The petitioner’s case is that the notification qua payment of interest violates the principle of natural justice as the Government on one hand ceased the working of the individuals and on other hand asking to pay the loan interest during moratorium. The petitioner’s case is that although the initial lockdown was for a period of three weeks but it was extended further. The Reserve Bank of India by a subsequent notification dated 23.05.2020 due to the extension of the lockdown and due to disruption on account of COVID 19 has directed all commercial banks to extend the moratorium by another three months i.e. from 01.06.2020 to 31.08.2020 on payment of all installments in respect of term loans The notification dated 23.05.2020 directed for repayment schedule for term loans as also the residual tenor will be shifted across the board. Notification further stated that “interest shall continue to accrue on the outstanding portion of the term loans during the moratorium period”. 2.6 The petitioner in the writ petition has prayed for following reliefs: Issue an appropriate Writ Order or Direction in the nature of mandamus or any other appropriate writ or Direction declaring the Notification dated 27.03.2020 issued by Respondent No.2 as ultra vires to the extent it charges interest on the loan amount during the moratorium period which create hardship to the Petitioner being borrower and creates hindrance and obstruction in “right to life” guaranteed by Article 21 of the Constitution of India and Issue a Writ Order or Direction in the nature of Mandamus thereby directing the Respondents to provide relief in repayment of loan by not charging interest during the moratorium period declared by Notification dated 27.03.2020 Pass any other order or orders which may be deemed fit and proper in the facts and circumstances of the case and in the interest of justice.” 2.7 Notices were issued in the writ petition While hearing the matter on 17.06.2020 the submission of the learned counsel for the petitioner have been noted to the following “We have heard learned counsel for the petitioner(s). Learned counsel for the petitioner(s) submits that under the Disaster Management Act 2005 the Central Government has ample power and jurisdiction to grant relief with regard to loan which is specifically provided for. It is submitted that the circular of the Reserve Bank of India dated moratorium but substantially no relief is given to the borrowers The two fold submissions have been made by learned counsel for the petitioner(s). It is submitted that if moratorium is being granted for a period of three months the entire amount payable including principal and interest should not be charged during moratorium 3 period. Secondly at least the demand of interest on interest should not be made and these reliefs can be extended by the Central Government and the Reserve Bank of India.” 2.8 In the writ petition affidavits have been filed both by the Union of India as well as the Reserve Bank of India. In the affidavits filed on behalf of the Union of India it was pleaded that the Central Government is fully conscious of the difficulties faced by the various sectors and the stakeholders of various sectors within the purview of the Ministry of Finance and other Ministries. It is further pleaded that Finance Ministry after the outbreak of the COVID 19 pandemic globally has taken several measures of relief dealing with the potential problems faced by several sectors and in several spheres of all financial worlds. In the affidavit filed dated 31.08.2020 details of number of measures to mitigate financial suffering have been enumerated. It has been further pleaded that Finance Ministry took the initiative and interacted with Reserve Bank of India requesting the Reserve Bank of India to provide for various measures of relief to the borrowers. The affidavit also enumerates different reliefs and measures taken by Reserve Bank of India with regard to moratorium. Reference has been made to two circulars dated 06.08.2020 issued by Reserve Bank of India facilitating revival of real sector activities and mitigating the impact on the ultimate borrowers by enabling lenders to grant concessions to borrowers for COVID 19 related stress in personal MSME and corporate loans. The Union of India has filed further affidavits dated 09.10.2020 23.10.2020 and 17.11.2020. 2.9 The Reserve Bank of India has also filed a counter affidavit a consolidated counter affidavit dated 09.10.2020 additional affidavit dated 09.10.2020 and further additional affidavit dated 01.11.2020 Indian Bank Association has also filed affidavits bringing on record various circulars issued by Reserve Bank of India State Bank of India etc. We have heard Shri Rajiv Dutta learned senior counsel for the petitioner. Shri Tushar Mehta learned Solicitor General Shri V. Giri learned senior counsel and Shri Ramesh Babu M.R. learned counsel appearing for the Reserve Bank of India and some of the counsels who had appeared for intervenors. Hearing of this writ petition took place alongwith other writ petitions on different dates When the matter was heard on 19.11.2020 learned counsel on behalf of the petitioner Shri Rajiv Dutta submitted that in view of the affidavits which have been filed in the present writ petition by the respondent No.1 this writ petition be disposed of We thus proceed to decide the Writ PetitionNo 8220 In course of hearing of these petitions learned senior counsel for the petitioner Shri Rajiv Duta has expressed satisfaction on the measures taken by the Government of India with respect to borrowers in which category the petitioner belongs. Learned senior counsel for the petitioner submits that the decision of the Central Government to forego interest on eight specified categories of loans paid upto Rs.2 Crores has come as a great relief. Shri Tushar Mehta learned Solicitor General submits that the Central Government is fully conscious of the difficulties faced by the various sectors and the stakeholders of various sectors and the Finance Ministry after the outbreak of COVID 19 has taken several measures of reliefs dealing with the potential problems faced by several sectors and in several spheres of all financial worlds. Shri Mehta has referred to number of measures taken by the Central Government to mitigate the financial suffering as detailed in its affidavits as noted above. In its affidavit dated 23.10.2020 it is stated that the decision taken by the Central Government for granting various reliefs for the COVID 19 pandemic for benefit of waiver of interest upto Rs.2 Crores in eight categories has been approved by the Union Cabinet in its meeting dated 21.10.2020 and Ministry of Finance has issued directions dated 23.10.2020 on the subject which has been brought on record alongwith the affidavit. Shri Mehta submits that in pursuance of circular dated 23.10.2020 as a follow up towards the implementation of the aforesaid decision the State Bank of India has informed that as on 13.11.2020 as per provisional unaudited information received so far from various lending institutions such lending institutions have released ex gratia amount of an aggregate exceeding Rs.4 300 Crores in over 13.12 Crore accounts of borrowers covered under the Scheme Shri Giri also submits that Reserve Bank of India has also taken follow up action in pursuance of the policy decision taken by the Finance Ministry. He submits that the Reserve Bank of India has issued Circular dated 26.10.2020 to all commercial banks all primary co operative banks and all All India Financial Institutions and all non banking financial companies and were advised to be guided by the Scheme announced by the Government of India dated We have considered the submissions of the learned counsel for the parties and have perused the records The pandemic COVID 19 has not only caused serious threat to the health of the people but has also cast its shadow on the economic growth of the country as well as other countries in the entire world. Due to lockdown imposed by the Government of India in exercise of powers under the Disaster Management Act 2005 there can be no denial that most of the businesses including private sector as well as public sector has been adversely affected. For several months large number of industries were not allowed to function and exemptions were granted only to few of the industries to run and carry on its activities which were found essential and necessary in the fact situation. Although gradually due to Unlock 1 2 and 3 the industries and other business activities have been restored and the economy of the country is on track although at a slow pace. The moratorium period as granted by the Reserve Bank of India vide orders dated 27.03.2020 and 23.05.2020 have continued from 01.03.2020 to 31.08.2020 i.e. for the period of six months. As submitted by the learned Solicitor General and reflected by the affidavits filed on behalf of the Union of India it is clear that Central Government was fully conscious of the difficulties faced by the various sectors and the stakeholders of various sectors and different measures by Finance Ministry have been taken in the above reference which has been detailed in the affidavits dated 31.08.2020 09.10.2020 and 23.10.2020. 10. For the purposes of the present case it is relevant to notice paragraphs 3 and 4 of the affidavit dated 23.10.2020 filed on behalf of the Union of India in which following has been stated: “3. I state and submit that as submitted in the previous affidavits the Central Government took many Policy decisions for granting various reliefs for the Covid pandemic which is a disaster within the meaning of the Disaster Management Act including a policy decision whereby the following borrowers were declared eligible for the benefit of waiver of interest on interest : MSME loans up to Rs. 2 crore Education loans up to Rs. 2 crore iii) Housing loans up to Rs. 2 crore Consumer durable loans up to Rs. 2 Credit card dues up to Rs. 2 crore Automobile loans up to Rs. 2 crore vii) Personal loans to professionals up to Rs. 2 crore viii) Consumption loans up to Rs. 2 crore It is submitted that the preparation of the Scheme in this behalf was under contemplation and it was also necessary to formalise the said policy decision by following certain mandatory procedure required by law 4. I state and submit that the aforesaid decision taken by the Ministry of Finance Government of India has been approved by the Union Cabinet in its meeting held on 21.10.2020. Pursuant to approval by the Union Cabinet the Ministry of Finance has issued Scheme providing for broadly the following mechanism a) The eligible borrowers mentioned in the previous Affidavit will be "eligible beneficiaries" under the Scheme. Under the Scheme all lending institutions shall credit the difference between compound interest and simple interest in the respective accounts of eligible borrowers for the period between 1.3.2020 to 31.8.2020. This amount shall be credited by each of the lending institutions referred to in clause 3 of the Scheme irrespective of whether such eligible borrowers have fully availed or partially availed or have not availed of the moratorium viz. deferment in payment of instalments as per the Circulars dated 27.3.2020 and 23.5.2020 issued by RBI. b) After crediting the said amount in the respective accounts of eligible borrowers the lending institutions would claim reimbursement from the Central Government through the nodal agency of State Bank of India as stipulated under the Scheme. It is submitted that the aforesaid decision is taken after careful consideration keeping in mind the overall economic scenario the nature of borrowers impact on the economy and such other factors as a policy decision earmarking the above referred class of borrowers for grant of The case of the present petitioner who has taken housing loan is fully covered by the decisions of the Union of India as noted above since the benefit has been extended to the housing loan upto Rs.2 Crores i.e. in pursuance of the aforesaid decisions of the Government of India the Ministry of Finance had issued order dated 23.10.2020 Operational Guidelines with regard to COVID 19 Reliefs details of order dated 23.10.2020 contains a heading “COVID 19 Relief” relevant portion of the Scheme is to the following effect: “COVID 19 Relief Scheme for grant of ex gratia payment of difference between compound interest and simple interest for six months to borrowers in specified loan accounts 1.3.2020 to 31.8.2020 1. Name of the scheme This scheme shall be called "Scheme for grant of ex gratia payment of difference between compound interest and simple interest for six months to borrowers in specified loan accountsor a Regional Rural Bank or an All India Financial Institution or a Non Banking Financial Company or a Housing Finance Company registered with Reserve Bank of India or National Housing Bank as the case may be. A Non Banking Institution should be a member of a Self Regulatory Organisation recognised by RBI. 4. Eligibility criteria under the scheme 1) Borrowers in the following segments classes of loans who have loan accounts having sanctioned limits and outstanding amount of not exceeding Rs. 2 crores as on 29.2.2020 shall be eligible under the Scheme i) MSME loans ii) Education loans iii) Housing loans iv) Consumer durable loans v) Credit card dues vi) Automobile loans vii) Personal loans to professionals viii) Consumption loans Any borrower whose aggregate of all facilities with lending institutions is more than Rs. 2 croreswill not be eligible for ex gratia payment under this The decision of the Government of India dated 23.10.2020 has also been communicated to all the banks and other financial institutions. The Reserve Bank of India has also issued necessary instructions in the above regard. In the affidavit filed on 17.11.2020 on behalf of the Union of India in paragraphs 3 and 4 following has been stated: “3. It is submitted that as a follow up towards the implementation of the aforesaid Scheme the nodal agency i.e State Bank of India has informed that as on 13.11.2020 as per provisional unaudited information received so far from various lending institutions such lending ex gratia institutions have released amount of an aggregate exceeding Rs. 4 300 crore in over 13.12 crore accounts of borrowers covered under the said Scheme The data received is subject to final reconciliation and audit. Information from some remaining lenders are still being 4. It is further submitted that various lending institutions have put in place Board approved policies for restructuring of accounts as per RBI circular dated 6.08.2020. Restructuring resolution of eligible accounts are being undertaken by lending institutions on case by case basis. Resolution plans in respect of eligible personal MSME and corporate loans are to be invoked by 31.12.2020 and time is still available to the account holders for such invocation.” 13. Learned Solicitor General referring to above measures taken by the Union of India submits that above measures have been taken by the Government of India in exercise of jurisdiction under the Disaster Management Act 2005 to mitigate the hardships and miseries of few sectors. Shri Mehta submits that with regard to other specified sectors different other measures have been taken which we need not note for the purposes of this case and which shall be separately considered while considering writ petitions raising such issues. As noted above Shri Rajiv Dutta learned senior counsel for the petitioner has expressed its satisfaction on the measures taken by the Government of India redressing grievances of the petitioner to the extent as noted above. The Union of India having taken specific measures vide its circular dated 23.10.2020 which has been brought on the record and follow up measures have also been taken in consequence thereof we dispose of the present writ petition with directions to the respondents to ensure that all steps be taken to implement the decision dated 23.10.2020 of the Government of India Ministry of Finance so that benefit as contemplated by the Government of India percolates to those for whom the financial benefits have been envisaged and extended All IAs impleadment applications stand disposed of ( ASHOK BHUSHAN ( R. SUBHASH REDDY ( M.R. SHAH New Delhi November 27 2020

To arise a right under the Bank Guarantee Agreement, a demand has to be made within the validity period and not during the claim period: Kerala High Court

It is settled law that invocation of the Bank Guarantee after the validity period but within the claim period, is perfectly lawful and ought to be respected. But the HC cleared that the petitioner cannot have any advantage by the incorporation of a clause in terms of the said Exception 3 to Section 28 of the Indian Contract Act, in the Bank Guarantee since the right of the petitioner to have the Bank Guarantee invoked, is only during the currency of the Bank Guarantee and not during the extended claim period of one year. This remarkable judgment was passed by the Kerala High Court in the matter of COCHIN PORT TRUST V BANK OF INDIA & ANR. [WP (C) NO.22760 OF 2019(T)] by Honourable Justice N.Nagaresh. The petitioner, Cochin Port Trust is aggrieved by the refusal of the 1st respondent to encash Bank Guarantee and transfer the same to the petitioner. The petitioner sought to declare that invocation of the Bank Guarantee during the claim period is a valid invocation and is binding on the Bank. The petitioner in this writ petition stated that a tender was floated by them for awarding the work of providing consultancy services for design and supervision of flyover and ROB at ICTT area in Vallarpadam. The 2nd respondent emerged as a successful bidder and therefore they executed the agreement. Thence, 2nd respondent was required to provide performance security in the form of a Bank Guarantee which he furnished on 21.07.2014. Later, the 1st respondent bank agreed to pay the petitioner on demand all money payable by the 2nd respondent. The Bank Guarantee was valid up to 30.09.2015 but was extended by a year and it was stipulated that though the period of Bank Guarantee is extended, the claim period is up to one year after the expiry of the validity of the Bank Guarantee. The Bank Guarantee was extended from time to time on the same conditions and the final extension was up to 31.03.2019 with a claim period up to 31.03.2020. Later, certain defects were noticed and Bank was informed to return the Bank Guarantee amount but they did not initiate remedial measures even within a period of one month. The petitioner contended that the Bank Guarantee cannot be paid as the guarantee period has lapsed and only claim period is remaining. The claim period of one year over and above the validity period is incorporated as per Exception 3 to Section 28 of the Contract Act, by the Banking Laws Amendment Act, 2012. Whereas the respondents contended that the right of the petitioner to have the Bank Guarantee invoked, is only during the currency of the Bank Guarantee and not during the extended claim period of one year. The HC after considering the facts of the case asserted that “The extended period of claim provided for under Exception 3 to Section 28 of the Contract Act is therefore intended for extinguishment of the rights or discharge of any party from any liability under a Bank Guarantee/agreement. To arise a right under the Bank Guarantee Agreement, demand has to be made within the period of validity of the Agreement. Having not made any demand within the validity period of the Bank Guarantee, the petitioner is not entitled to invoke the Guarantee during the claim period after the expiry of the validity period of the Bank Guarantee.”

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE N.NAGARESH MONDAY THE 26TH DAY OF APRIL 2021 6TH VAISAKHA 1943 WP(C).No.22760 OF 2019(T COCHIN PORT TRUST REPRESENTED BY ITS CHIEF ENGINEER WILLINGTON ISLAND COCHIN ERNAKULAM 682 009 SRI.PAULOSE C. ABRAHAM BANK OF INDIA DADARBRANCH 294 S.K. BOLE RAOD NR.PROTUGESE CHURCH DADARMUMBAI M S. SHRIKHANDE CONSULTANTS PVT. LTD. 33 35 SHANTI CENTRE 3RD FLOOR PLOT NO.8 SECTOR 17 VASHI NAVI MUMBAI MUMBAI MAHARASTRA 400 705 R1 BY ADV. SRI.J.HARIKUMAR R2 BY ADV. SRI.K.K.VIJAYAN R2 BY ADV. SRI.G.RANJU MOHAN R2 BY ADV. SRI.K.R.RAJESHKUMAR R2 BY ADV. SRI.B.VINOTH THIS WRIT PETITIONHAVING BEEN FINALLY HEARD ON 26 04 2021 THE COURT ON THE SAME DAY DELIVERED THE WP(C) No.22760 2019 2 JUDGMENT ~ ~ ~ ~ ~ ~ ~ Dated this the 26th day of April 2021 The petitionerCochin Port Trust is aggrieved by the refusal of the 1st respondent to encash Bank Guarantee and transfer the same to the petitioner. The petitioner also seeks to declare that invocation of the Bank Guarantee during the claim period is valid invocation and binding on the Bank The petitioner states that a tender was floated by them for awarding the work of providing consultancy services for design and supervision of flyover and ROB at ICTT area in Vallarpadam. The 2nd respondent being the successful bidder Ext.P1 agreement dated 20.08.2014 was executed with the 2nd respondent. The 2nd respondent was required to provide a performance security in the form of a Bank Guarantee. The 2nd respondent furnished Ext.P2 Bank Guarantee dated 21.07.2014 WP(C) No.22760 2019 3 By Ext.P2 the 1st respondent Bank agreed to pay the petitioner on demand any and all money payable by the 2nd respondent to the extent of `19 40 000 at any time up to 30.09.2015. The Bank Guarantee which was valid up to 30.09.2015 was extended as per Ext.P3 up to 30.09.2016. In Ext.P3 it was stipulated that though the period of Bank Guarantee is up to 30.09.2016 the claim period is up to one year after the expiry of the validity of the Bank Guarantee i.e. up to 30.09.2017. The Bank Guarantee was extended from time to time on same conditions. The final extension as per Ext.P8 was up to 31.03.2019 with claim period up to Certain defects were noticed in the work of the 2nd respondent and the 2nd respondent was instructed to inspect the site and suggest appropriate remedial measures. The 1 st respondent Bank was informed on 06.06.2019 to return the Bank Guarantee amount until further communication is received from the petitioner. As the 2nd respondent did not initiate remedial measures even within a period of one month WP(C) No.22760 2019 4 the petitioner invoked the Bank Guarantee on 28.06.2019 29.06.2019 and 01.07.2019 as per Exts.P10 to P12 By Ext.P13 dated 06.07.2019 the 1st respondent informed the petitioner that the Bank Guarantee cannot be paid as the guarantee period has lapsed and only claim period is remaining. The petitioner contends that refusal of the 1st respondent to honour the Bank Guarantee is illegal and in violation of the conditions of the Bank Guarantee. The petitioner therefore challenges the refusal of the 1st respondent Bank to realise the Bank Guarantee The 1st respondent filed a counter affidavit in the writ petition and contested the claim of the petitioner. The 1st respondent pointed out that it has been categorically stated in Ext.P3 that the Bank is liable to pay the guarantee amount only if the petitioner makes a written claim or demand on or before the expiry of the renewed guarantee. The claim period of one year over and above the validity period is incorporated as per Exception 3 to Section 28 of the Contract Act by the Banking Laws Amendment Act 2012 with effect from WP(C) No.22760 2019 5 The 1st respondent contended that the petitioner cannot have any advantage by the incorporation of a clause in terms of the said Exception 3 to Section 28 of the Indian Contract Act in the Bank Guarantee. The right of the petitioner to have the Bank Guarantee invoked is only during the currency of the Bank Guarantee and not during the extended claim period of one year. No relief can therefore be given to the petitioner in this writ petition The 2nd respondent also filed a counter affidavit According to the 2nd respondent the clause regarding arbitration in case of dispute is applicable to the contract The clause would take in dispute relating to encashment of Bank Guarantee also. The consultancy work was completed on 30.04.2018. A team of experts from the 2nd respondent Firm visited the site inspected the work and presented a report to the petitioner regarding the remedial measures to be taken. The 2nd respondent stated that despite the fact that the contract period and obligation are over the 2nd respondent is WP(C) No.22760 2019 6 ready to associate with the petitioner to address any issues related to structural safety The learned Standing Counsel for the petitioner argued that the invocation of the Bank Guarantee was done by the petitioner within the time period. According to the petitioner it is settled law that invocation of the Bank Guarantee after the validity period but within the claim period is perfectly lawful and ought to be respected. Exts.P2 to P8 Bank Guarantees are irrevocable and unconditional. The Bank Guarantee is an independent agreement between the petitionerbeneficiary and the Bank. The Bank Guarantee therefore can be invoked by the petitioner regardless of any dispute between the petitioner and the 2nd respondent contended the learned Standing Counsel for the petitioner. 10. Heard the learned Standing Counsel for the petitioner the learned Standing Counsel for the 1st respondent and the learned counsel for the 2nd respondent 11. Ext.P8 Bank Guarantee Extension reads as WP(C) No.22760 2019 7 “Extension of BG No.00151PEBG140103 dated 21.07.2014 from 01.11.2018 to 31.03.2019 for 19 40 000 on behalf of Shrikhande Consultant Pvt At the request of M s. Shrikhande Consultants Pvt Ltd. we the Bank of India Dadar Branch Mumbai 400 028 extend the validity of captioned Bank Guarantees upto 31.03.2019. All the other terms and conditions shall remain unchanged We are liable to pay the guarantee amount or any part thereof under this Bank Guarantee only if you serve upon us a written claimer demand on or before expiry of this renewed gauarantee All other terms & condition mentioned in the guarantee as originally issued renewed earlier The Bank Guarantee shall be valid upto 31.03.2019 with one year claim period i.e. upto 31.03.2019 Notwithstanding anything contained here above our liability under the Guarantee is restricted to 19 40 000 and this guarantee is valid upto 31.03.2019 We shall be released and discharged from all liabilities hereunder unless a written claim for payment under this guarantee is lodged claimed on or before 31.03.2020 irrespective of whether or not the original guarantee is returned to us.” It is evident that the validity of the said guarantee is only up to 31.03.2019. Even according to the petitioner demands were made only on 28.06.2019 29.06.2019 and 01.07.2019 which dates are subsequent to the period of validity of Bank WP(C) No.22760 2019 8 12. The petitioner has a case that they have informed the 1st respondent on 06.06.2019 to retain the Bank Guarantee amount until further communication is received from the petitioner. But Ext.P8 specifically provides that the 1st respondent shall be released and discharged from all liabilities unless a written claim is lodged on or before 31.03.2019. The written demand of the petitioner is admittedly after the said date 13. The Standing Counsel for the petitioner strongly urged that the claim period of Ext.P8 extends up to 30.03.2020 and before the said date written demand was made to the 1st respondent Bank. The extended claim period is in terms of Exception 3 to Section 28 of the Contract Act Exception 3 to Section 28 of the Contract Act reads as “Exception 3 Saving of a guarantee agreement of a bank or a financial institution This section shall not render illegal a contract in writing by which any bank or financial institution stipulate a term in a guarantee or any agreement WP(C) No.22760 2019 9 making a provision for guarantee for extinguishment of the rights or discharge of any party thereto from any liability under or in respect of such guarantee or agreement on the expiry of a specified period which is not less than one year from the date of occurring or non occurring of a specified event for extinguishment or discharge of such party from the said liability.” 14. The extended period of claim provided for under Exception 3 to Section 28 of the Contract Act is therefore intended for extinguishment of the rights or discharge of any party from any liability under a Bank Guarantee agreement To arise a right under the Bank Guarantee Agreement a demand has to be made within the period of validity of the Agreement. Having not made any demand within the validity period of the Bank Guarantee the petitioner is not entitled to invoke the Guarantee during the claim period after the expiry of the validity period of the Bank Guarantee The writ petition is therefore without any legal merit and is hence dismissed. Sd N. NAGARESH JUDGE WP(C) No.22760 2019 10 PETITIONER S EXHIBITS TRUE COPY OF THE RELEVANT PAGES OF THE AGREEMENT FOR THE WORK OF PROVIDING CONSULTANCY SERVICES FOR DESIGN AND SUPERVISION OF FLYOVER AND ROB AT ICTT AREA IN VALLARPADAM TRUE COPY OF THE BANK GUARANTEE OF THE 1ST RESPONDENT DATED 21.07.2014 ISSUED TO THE PETITIONER TRUE COPY OF THE BANK GUARANTEE EXTENSION DATED 16.10.2015 ISSUED TO TRUE COPY OF THE BANK GUARANTEE EXTENSION DATED 28.09.2016 ISSUED TO TRUE COPY OF BANK GUARANTEE EXTENSION DATED 01.03.2017 ISSUED TO THE TRUE COPY OF BANK GUARANTEE EXTENSION DATED 15.01.2018 ISSUED TO THE TRUE COPY OF BANK GUARANTEE EXTENSION DATED 13.08.2018 ISSUED TO THE TRUE COPY OF BANK GUARANTEE EXTENSION TRUE COPY OF THE LETTER DATED 06.06.2019 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT TRUE COPY OF THE LETTER OF INVOCATION DATED 28.06.2019 No.22760 2019 11 TRUE COPY OF THE LETTER OF INVOCATION DATED 29.06.2019 (WITHOUT ENCLOSURES ISSUED BY THE PETITIONER TO THE 1ST TRUE COPY OF THE LETTER OF INVOCATION DATED 01.07.2019 (WITHOUT ENCLOSURES ISSUED BY THE PETITIONER TO THE 1ST TRUE COPY OF THE EMAIL DATED 06.07.2019 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER RESPONDENTS EXHIBITS TRUE COPY OF THE INSPECTION REPORT PRESENTED BY THE RESPONDENT TRUE COPY OF THE LETTER DATED 20.8.2019 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT TRUE COPY OF THE LETTER DATED 10.9.2019 ISSUED BY THIS RESPONDENT TO

Bail should be granted or rejected on the basis of prima face conclusions and not detailed examinations: High Court of Delhi

The Court need not conduct detailed examinations before granting or rejecting a bail petition, it must be done on the basis on prima facie indications of whether the accused is likely to influence the course of investigation or threaten the witnesses. This was held in the judgement passed by a single member bench of the High Court of Delhi consisting of Justice Subramonium Prasad in the case of Amit Kansal v The State [Bail Application No. 2659/2021] pronounced on 16th August 2021. The petitioner filed a petition for the grant of regular bail under Section 439 Cr.P.C after having an FIR filed against him for kidnapping for ransom and criminal conspiracy under Sections 364A, 120B and 34 of the Indian Penal Code. According to the complainant Laxmi Kumar, the petitioner along with his associates kidnapped her husband Mukesh Kumar then called her demanding Rs. 2,00,000 in either cash, cheque or jewellery and meet them at Shahdara Metro Station. The complainant and her daughter handed over all their family jewellery and Mukesh Kumar’s cheque book to one of the petitioner’s associates at the aforesaid location. However the next morning, the petitioner forced the complainant’s husband to call the complainant and ask for Rs. 3-4 lakhs, as a result the complainant filed an FIR at the Prasad Nagar Police Station. The police were able to trace the phone calls made to the complainant and the petitioner, his brother and other associates were caught and arrested. The complainant’s husband stated in court that the petitioner’s brother had lured him in the guise of a prospective business client, kidnapped him, forcefully took him to a hotel room and photographed him in compromising positions and then forced him to call his wife asking for money and jewellery to be sent to the petitioner. It was added that the petitioner’s brother with the assistance of the petitioner and other associates, took Mukesh Kumar to a warehouse in Transport Nagar, Meerut and brutally battered him when he initially refused to arrange for the money. The petitioner’s counsel submitted that the petitioner was only assisting his brother who was the brains behind the operation and that he was not even fully aware of the plan, it was further contended that the petitioner had never physically attacked the complaint’s husband. On these grounds the petitioner requested the Court for the grant of bail.

IN THE HIGH COURT OF DELHI AT NEW DELHI BAIL APPLN.2659 2021 Date of decision: 16th AUGUST 2021 IN THE MATTER OF: AMIT KANSAL ..... Petitioner Through Mr. Pradeep Singh Rana Advocate with Mr. Inderpreet Singh Mr. Nitin Bansal Advocates THE STATE..... Respondent HON BLE MR. JUSTICE SUBRAMONIUM PRASAD Through Ms. Kusum Dhalla APP for the State with SI Sanjay Kumar PS Prasad SUBRAMONIUM PRASAD J. This petition filed under Section 439 Cr.P.C. is for grant of regular bail to the petitioner in FIR No.263 2020 dated 07.10.2020 registered at Police Station Prasad Nagar for offences punishable under Sections 364A 120B 34 IPC. The brief facts leading to this bail application are as follows: A complaint was received from one Ms. Laxmi W o Sh. Mukesh Kumar R o 16 284 H Bapa Nagar Hardhayan Singh Road Karol Bagh Delhi stating that her husband Mukesh Kumar left the house for the company in which he is workingby stating that some people have called him at INA for some work. BAIL APPLN. 2659 2021 It is stated that she received a phone call from him asking her to arrange about Rs.1 to 2 lakhs at once and if cash is not available then she was asked to arrange some jewellery etc. It is stated that Mukesh Kumar also asked the complainant to come along with his cheque book at Shahdara Metro Station. The complainant has stated that Mukesh Kumar told her that one person will meet her at Shahdara Metro Station and she will hand over jewellery and cheque book to him. The complainant stated that Mukesh Kumar told her that the name of the person is Pankaj and he also gave his phone number to her. It is stated that the daughter of the complainant handed over the jewellery of about Rs.3 lakhs along with the cheque book of Mukesh Kumar to the said Pankaj at Shahdara Metro Station. It is stated that about 9:30 p.m. in the evening she received another phone call from her husband wherein he asked her to arrange Rs.3 4 lakhs and told her that he will call in the morning. On the receipt of the said complaint the present FIR was registered. During investigation the call of Mukesh Kumar was traced and he was found at H.No.13 Gali No.1 Nandan Nagar Transport Nagar Meerut UP. Accused Nitin Kansal was arrested on the same day when Mukesh Kumar was rescued. Mukesh Kumar was taken to Lady Haringe Medical College and Smt.S.K. Hospital New Delhi for medical examination. f) Mukesh Kumar gave his statement under Section 161 CrPC on 08.10.2020. In his statement under Section 161 CrPC he revealed that accused Nitin Kansal was interested in taking distributorship in the BAIL APPLN. 2659 2021 company in which he was working and Nitin Kansal was given the dealership. Goods were supplied to Nitin Kansal. It is stated that in September 2020 Nitin Kansal informed Mukesh Kumar that some of the goods supplied by the company are not being sold and are lying in his godown and Nitin Kansal wanted to end the agreement. It is stated that Nitin Kansal asked Mukesh Kumar to take back the goods and demanded Rs.10 15 lakhs. It is stated that Mukesh Kumar informed Nitin Kansal that he would take him to Zikarpur and talk to the owner of the company one Dinesh Singhala. It is stated that on 10.09.2020 Mukesh Kumar and Nitin Kansal left for the office of the company where Mukesh Kumar was working. They reached Mohali Punjab and stayed at Artharb Hotel. It is stated that the next day they reached Zikarpur where the office of the company is situated and had a meeting with owner of the company. It is stated that Nitin Kansal explained about the losses he suffered and was angry. It is stated that in the evening they stayed at Vashudev Hotel where Nitin Kansal called a girl in the hotel and had taken obscene photographs of Mukesh Kumar at the hotel. It is stated that the petitioner was informed about the photographs. It is stated that Nitin Kansal forced him to visit Meerut but he refused to meet him and did not go to Meerut. It is stated that in October 2020 Mukesh Kumar received a phone call from a person who introduced himself as Vivek. It is stated that the said Vivek told Mukesh Kumar that he wants distributorship of the company in Bareilly. It is stated that the said Vivek asked Mukesh Kumar to come at INA Metro Station on BAIL APPLN. 2659 2021 06.10.2020. It is stated that at about 9:30 A.M. Mukesh Kumar reached INA Metro Station and called Vivek and started moving towards Kotla Mubarkpur where a silver colour car was parked in which Vivek was sitting and he asked him to sit in the said car and he was abducted. k) Mukesh Kumar stated in his Section 161 Cr.P.C statement that Nitin Kansal and two other unknown persons were present in the car in which he was taken to a warehouse in Transport Nagar Meerut and was threatened assaulted beaten and extorted for the money. It is stated that he made calls to his wife to arrange for money and jewelry. It is stated that his daughter handed over the jewelry cash and chequebook to co accused Pankaj at Shahdara Metro Station. It was further stated that he was taken to the house of Nitin Kansal where his father mother brotherand sister were present. Nitin Kansal was arrested on 07.10.2020 after Mukesh Kumar was rescued from his residence i.e. H No. 13 Nandan Nagar Transport Nagar Gali No.1 Meerut. The Arrest memo of Nitin Kansal shows the name of the Petitioner in the column of persons to be contacted to convey arrest information. m) Disclosure statement given by Nitin Kansal on 07.10.2020 revealed his association with Vivek Naveen Singh Robin. It stated that he along with Vivek Robin and Naveen had abducted Mukesh Kumar in a silver car from Kotla Mubarakpur and brought to Meerut. It also states that he asked his friend Pankaj a resident of East Delhi to collect the chequebook jewelry etc. from Shahdara Metro Station. A supplementary disclosure statement give by Nitin Kansal on BAIL APPLN. 2659 2021 08.10.2020 revealed that he was introduced to Vivek Robin and Naveen by the Petitioner. It is stated that the Petitioner herein introduced the co accused with the intention that they would assist Nitin Kansal in abducting Mukesh Kumar and retrieving money from The Statement of Nitin Kansal under Section 164 Cr.P.C was recorded on 13.10.2020 before the Magistrate Tis Hazari. Heard Mr. Pradeep Singh Rana Learned Counsel for the Petitioner and Ms. Kusum Dhalla learned APP for the State. The learned counsel for the petitioner submitted that the disclosure statements made by the co accused Nitin Kansal to the Police are inadmissible as evidence before a Court of law and that there is no proof of the Petitioner being a part of the conspiracy. The learned counsel for the petitioner submits that the Petitioner was unaware of what Nitin Kansal was doing. He further states that the statement of Mukesh Kumar under Section 164 Cr.P.C does not implicate the Petitioner. The learned counsel for the petitioner states that the petitioner is in judicial custody for no justified reason since 01.03.2021. He further states that had the petitioner been there at the godown where the victim was assaulted then the victim would have certainly disclosed his name. He further states that when the arrest memo was being prepared the name of the petitioner was mentioned in column three as he stays in the place with his parents and brother. Per contra Ms. Kusum Dhalla learned APP submits that the Petitioner was fully aware of the abduction of Mukesh Kumar. She states that the petitioner herein was the person who introduced Nitin Kansal to co accused Vivek Robin and Naveen and assured him that the said co accused BAIL APPLN. 2659 2021 would help him to execute the plan of abduction. She further submitted that the Call Detail Records disclosed that the Petitioner was in continuous touch with Nitin Kansal Naveen and Robin one day prior to the incident and on the date of the incident. She contended that although the Petitioner did not actively assaulted or threatened Mukesh Kumar he coordinated the entire execution of the plan by being in communication with the co accused and receiving updates on their whereabouts. The learned APP further submits that the petitioner refused to participate in the Test Identification Parade. The Petitioner is the real brother of Nitin Kansal and they reside in the same house. A perusal of the statements made under Section 161 and Section 164 Cr.P.C by Mukesh Kumar mentions about the Petitioner being present at their house where he was kept in Meerut. The supplementary disclosure statement of Nitin Kansal dated 08.10.2020 reveals that the Petitioner introduced Nitin Kansal to other co accused telling him that they would be willing to abduct Mukesh Kumar and gave the numbers of co accused Vivek Naveen and Robin to Nitin Kansal. The CDR of the Petitioner discloses that the petitioner was in continuous touch with Nitin Kansal Naveen and Robin one day prior to the incident and on the date of the incident and also the fact that that the Petitioner introduced Nitin Kansal to other co accused Vivek Naveen and Robin makes out a prima facie case that the petitioner was involved in the conspiracy of abducting Mukesh Kumar. An offence under Section 364A IPC is a heinous offence punishable with life imprisonment or death. The consideration for granting bail under Section 439 CrPC are now fairly well settled and they are: BAIL APPLN. 2659 2021 a) Nature and gravity of the offence which is determined by the punishment for that offence b) The position and status of the accused with reference to the victim c) Likelihood of the accused fleeing from justice d) Tampering with evidence and influencing witnesses. The Supreme Court has time and again stated that at the stage of granting bail a detailed examination of evidence and elaborate documentation of the case need not be undertaken but the Court must indicate in its orders reasons for prima facie concluding why the bail is being granted or indicate as to why bail is being rejected. No straitjacket formula has been laid down by the Supreme Court. 10. As stated earlier the petitioner is accused of a very heinous offence namely Section 364A IPC for which the punishment is life imprisonment or death which is the maximum provided for in the Penal Code. The petitioner is the brother of the main accused. The call detail records shows that the petitioner and the main accused were in regular touch. The possibility of the petitioner coming out and tampering with evidence or threatening the witnesses cannot be ruled out. The petitioner is therefore not entitled to bail at least till the victim Mukesh Kumar is examined. 11. For the aforesaid reasons the bail application of the petitioner is 12. Accordingly the bail application is dismissed. rejected. AUGUST 16 2021 Rahul SUBRAMONIUM PRASAD J. BAIL APPLN. 2659 2021

PARKASH SINGH BADAL AND ANR V/S STATE OF PUNJAB AND ORS

Factually conceded that the expression “notwithstanding the jurisdiction of other Special Judges in the State of Punjab” is not necessary The factual scenario of these cases is concerned appellant Sri Parkash Singh Badal was at the relevant point of time the Chief Minister of the State of Punjab, Smt. Surinder Kaur is his wife and Shri Sukhbir Singh is his son. Smt. Surinder Kaur and Shri Sukhbir Singh Badal allegedly committed offences punishable under Sections 8 and 9 of the Act. Shri Tota Singh, Shri Gurdev Singh Badal, Dr. Ratan Singh Ajnala and Shri Sewa Singh Sekhwan were Ministers during the concerned period and were at the time of taking cognizance members of Legislative Assembly. The factual scenario of these cases is concerned appellant Sri Parkash Singh Badal was at the relevant point of time the Chief Minister of the State of Punjab, Smt. Surinder Kaur is his wife and Shri Sukhbir Singh is his son. Smt. Surinder Kaur and Shri Sukhbir Singh Badal allegedly committed offences punishable under Sections 8 and 9 of the Act. Shri Tota Singh, Shri Gurdev Singh Badal, Dr. Ratan Singh Ajnala and Shri Sewa Singh Sekhwan were Ministers during the concerned period and were at the time of taking cognizance members of Legislative Assembly. Shri Sukhbir Singh Badal was a member of the Parliament. As noted above, primary stand is that the effect of Section 6(2) of the Old Act corresponding to Section 19(2) of the Act was not considered and in that view of the matter the judgment in Antulay’s case (supra) is to be considered per incuriam. Additionally, it is submitted that the voluminous charge sheets filed are extremely vague and do not indicate commission of any definite offence. Some allegations of general nature have been made. It is submitted that the offences alleged to have been committed under IPC had close nexus with the workmen who are on official duty and therefore sanction under Section 197 of the Code is mandatory. With reference to several judgments of this Court it is submitted that even offences punishable under Sections 468, 471 and 120B have been in certain cases held to be relatable to the official duty thereby mandating sanction in terms of Section 197 of the Code. It is pointed out that the mala fide intention is clear as all these cases were registered at Mohali Police Station which was declared to be the police station for the purpose of investigation of the concerned cases and new Court was established for the trial of the concerned cases and jurisdiction was conferred on one officer without following the process of consultation with the High Court. These are indicative of the fact that action was taken with mala fide intention only to harass the accused persons as noted above.PROCEDURAL HISTORY: In each of these appeals challenge is to the judgment of the Punjab and Haryana High Court dismissing the petition filed by the appellant in each case questioning the validity of proceedings initiated under the Prevention of Corruption Act, 1988 (in short the ‘Act’) and/or the Indian Penal Code, 1860 (in short the ‘IPC’). In the latter category of cases the question raised is either lack of sanction in terms of Section 197 of the Code of Criminal Procedure, 1973 or the legality thereof. It is the stand of the appellant in each case that the proceedings were initiated on the basis of complaints which were lodged mala fide and as an act of political vendetta. It is stated that allegations are vague, lack in details and even if accepted at the face value, did not show the commission of any offence. It is stated that though the High Court primarily relied on a Constitution Bench decision of this Court in R.S. Nayak v. A.R. Antulay, the said decision was rendered in the context of the Prevention of Corruption Act, 1947. It is submitted that the provisions contained in Section 6 thereof are in pari materia to Section 19 of the Act so far as relevant for the purpose of this case; the effect of Section 6(2) of the Old Act (corresponding to Section 19(2) of the Act) was lost sight of. The decision in the said case was to the effect that if an accused is a public servant who has ceased to be a public servant and/or is a public servant of different category then no sanction in terms of Section 19(1) of the Act corresponding to Section 6(1) of the Old Act is necessary. ISSUE BEFORE THE COURT: Whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority? Who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government? Where the public servant has ceased to be a public servant since he has ceased to hold the office where the alleged offence is supposed to have been taken place, the other questions really become academic? RATIO OF THE COURT:The court contended that in giving effect to the ordinary meaning of  the words used in Section 6 of the Act, the conclusion is inevitable that at the time a court is asked to take cognizance not only the offence must have been committed by a public servant but the person accused is still a public servant removable from his office by a competent authority before the provisions of Section 6 can apply. In the present appeals, admittedly, the appellants had ceased to be public servants at the time the court took cognizance of the offences alleged to have been committed by them as public servants. Accordingly, the provisions of Section 6 of the Act did not apply and the prosecution against them was not vitiated by the lack of a previous sanction by a competent authority. The court contended that in giving effect to the ordinary meaning of  the words used in Section 6 of the Act, the conclusion is inevitable that at the time a court is asked to take cognizance not only the offence must have been committed by a public servant but the person accused is still a public servant removable from his office by a competent authority before the provisions of Section 6 can apply. In the present appeals, admittedly, the appellants had ceased to be public servants at the time the court took cognizance of the offences alleged to have been committed by them as public servants. Accordingly, the provisions of Section 6 of the Act did not apply and the prosecution against them was not vitiated by the lack of a previous sanction by a competent authority. And this view has been consistently followed in C.R. Bansi case  and K.S. Dharmadatan v. Central Government (1979 (3) SCR 832). It therefore appears well settled that the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by Section 6 is the date on which the court is called upon to take cognizance of the offence of which he is accused. The court stated that the submission is that if the harassment of the public servant by a frivolous prosecution and criminal waste of his time in law courts keeping him away from discharging public duty, are the objects underlying Section 6, the same would be defeated if it is held that the sanction of the latter authority is not necessary. The submission does not commend to use. The court fail to see how the competent authority entitled to remove the public servant from an office which is neither alleged to have been used or abused would be able to decide whether the prosecution is frivolous or tendentious. An illustration was posed to the learned Counsel that a Minister who is indisputably a public servant greased his palms by abusing his office as Minister, and then ceased to hold the office before the court was called upon to take cognizance of the offence against him and therefore, sanction as contemplated by Section 6 would not be necessary; but if after committing the offence and before the date of taking of cognizance of the offence, he was elected as a Municipal President in which capacity he was a public servant under the relevant Municipal law, and was holding that office on the date on which court proceeded to take cognizance of the offence committed by him as a Minister, would a sanction be necessary and that too of that authority competent to remove him from the office of the Municipal President.  The answer was- in affirmative. But the very illustration would show that such cannot be the law. Such an interpretation of Section 6 would render it as a shield to an unscrupulous public servant. Someone interested in protecting may shift him from one office of public servant to another and thereby defeat the process of law. Ode can legitimately envisage a situation wherein a person may hold a dozen different offices, each one clothing him with the status of a public servant under Section 21 IPC and even if he has abused only one office for which either there is a valid sanction to prosecute him or he has ceased to hold that office by the time court was called upon to take cognizance, yet on this assumption, sanction of 11 different competent authorities each of which was entitled to remove him from 11 different public offices would be necessary before the court can take cognizance of the offence committed by such public servant/while abusing one office which he may have ceased to hold. Such an interpretation in contrary to all canons of construction and leads to an absurd and product which of necessity must be avoided. This Court adopted a construction which is based on the avoidance of mischief rule. That being so, the plea that the effect of Section 6(2) of the Old Act was not kept in view does not merit acceptance. Though a mere reference to a provision in all cases may not in all cases imply consciousness as to the effect of that provision the case at hand does not fall to that category.  In this case not only was there reference to that provision, but also this Court adopted a construction which kept in view the object of the statute and the need for interpretation in a particular way. Stand of learned counsel for the State is that since the impugned notification allocated certain cases to Courts of Special Judges already established with the consultation with the High Court, no further consultation was required. It is pointed out that said re-allocation does not impinge upon the control of the High Court  as envisaged by Article 235 of the Constitution . There is no doubt that the control of the High Court is comprehensive, exclusive and effective and it is to subserve the basic feature of Constitution, i.e. independence of judiciary. [See High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal and Anr. (1998 (3) SCC 72) and Registrar (Admn.), High Court of Orissa, Cuttack v. Sisir Kanta Satapathy (dead) by Lrs. and Anr. ( 1999 (7) SCC 725)] Articles 233 and 234 of the Constitution are not attracted because this is not a case where appointment of persons to be Special Judges or their postings to a particular Special Court is involved. It is however factually conceded that the expression “notwithstanding the jurisdiction of other Special Judges in the State of Punjab” is not necessary. Once group of cases are allocated to Special Court, consequentially other Special Courts cannot deal with them. Use of the afore-said expression was really un-necessary.  We consider it to be severable and so direct.It has to be noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression “information” without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, “reasonable complaint” and “credible information” are used. Evidently, the non-qualification of the word “information” in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, ’reasonableness’ or ’credibility’ of the said information is not a condition precedent for registration of a case. It has to be noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression “information” without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, “reasonable complaint” and “credible information” are used. Evidently, the non-qualification of the word “information” in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, ’reasonableness’ or ’credibility’ of the said information is not a condition precedent for registration of a case. DECISION HELD BY COURT: The judgement of this case was given by JUSTICE ARIJIT PASAYAT that it is to be noted that learned counsel for the State submitted that to avoid any fear of forum shopping, the State is even willing to abide by the decision of this Court if the trial takes place in Chandigarh or wherever this Court directs, and to show that the State has no intention to the trial being conducted at a particular place and to prove its transparency the stand is taken. The court held that it necessary to so direct, because the expression “notwithstanding the jurisdiction of other Special Judges in the State of Punjab” has already been stated to be unnecessary and would be of no consequence. That being so, the plea in that regard as raised by the appellants also fails. Since all the challenges have been held to be without substance, the inevitable result is that the appeals deserve to be dismissed which directed by court.

Appeal186 of 2001 Special Leave Petition2436 of 2000 DR.SURAJMANI STELLA KUJUR Vs DURGA CHARAN HANSDAH & ANR DATE OF JUDGMENT: 14 02 2001 K.T.Thomas R.P.Sethi SETHI J Leave granted. Who is a "Hindu" for the purposes of the applicability of the Hindu Marriage Act 1955 hereinafter referred to as "the Act") is a question of law to be determined in this appeal. Section 2 of the Act specifies the persons to whom the Act is applicable Clauses (b) andof Sub sectionof Section 2 make the Act applicable to a person who is a Hindu by religion in any of its forms or developments including a Virashaiva a Lingayat or a follower of the Brahmo Prarthana or Arya Samaj and to persons who is a Buddhist Jaina or Sikh by religion. It is also applicable to any other person domiciled in the territories of India who is not a Muslim Christian Parsi or Jew by religion. The applicability of the Act is therefore comprehensive and applicable to all persons domiciled in the territory of India who are not Muslims Christians Parsis or Jews by religion. The term "Hindu" has not been defined either under the Act or Indian Succession Act or any other enactment of the Legislature. As far back as in 1903 the Privy Council in Bhagwan Koer v. J.C. Bose & Ors. Calcutta Series 11] observed: "We shall not attempt here to lay down a general definition of what is meant by the term ’Hindu’. to make it accurate and at the same time sufficiently comprehensive as well as distinctive is extremely difficult. The Hindu religion is marvellously catholic and elastic. Its theology is marked by eclecticism and tolerance and almost unlimited freedom of private worship. Its social code is much more stringent but amongst its different castes and sections exhibits wide diversity of practice. No trait is more marked of Hindu society in general than its horror of using the meat of the cow. Yet the Chamaras who profess Hinduism but who eat beef and the flesh of dead animals are however low in the scale included within its pale. It is easier to say who are not Hindus not practically and separation of Hindus from non Hindus is not a matter of so much difficulty. The people know the differences well and can easily tell who are Hindus and who are not The Act is therefore applicable to: "(1) All Hindus including a Virashaiva a Lingayat a Brahmo Prarthana Samajist and an Arya Samajist Budhists Jains Sikhs In this appeal the parties are admittedly tribals the appellant being a Oraon and the respondent a Santhal. In the absence of a notification or order under Article 342 of the Constitution they are deemed to be Hindus. Even if a notification is issued under the Constitution the Act can be applied to Scheduled Tribes as well by a further notification in terms of Sub sectionof Section 2 of the Act. It is not disputed before us that in the Constitution Scheduled Tribes) Order 1950 as amended by Scheduled Castes and Scheduled Tribes OrderActs 63 of 1956 108 of 1976 187 and 15 of 1990 both the tribes to which the parties belong are specified in Part XII. It is conceded even by the appellant that "the parties to the petition are two Tribals who otherwise profess Hinduism but their marriage being out of the purview of Hindu Marriage Act 1955 in light of Section 2(2) of the Act are thus governed only by their Santal Customs and usage". The appellant has however relied upon an alleged custom in the Tribe which mandates monogamy as a rule. It is submitted that as the respondent has solemnised a second marriage during the subsistence of the first marriage with the appellant the second marriage being void the respondent is liable to be prosecuted for the offence punishable under Section 494 of the Indian Penal Code. No custom can create an offence as it essentially deals with the civil rights of the parties and no person can be convicted of any offence except for violation of law in force at the time of commission of the act charged. Custom may be proved for the determination of the civil rights of the parties including their status the establishment of which may be used for the purposes of proving the ingredients of an offence which under Section 3(37) of the General Clauses Act would mean an act or omission punishable by any law by way of fine or imprisonment Article 20 of the Constitution guaranteeing protection in respect of conviction of offence provides that no person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence. Law under Article 13 clause of the Constitution means the law made by the Legislature including intravires statutory orders and orders made in exercise of powers conferred by the statutory rules. The expression custom and usage" has been defined under Section 3(a) of the Act as: "the expression ’custom’ and ’usage’ and rule which having been continuously and uniformly observed for a long time has obtained the force of law among Hindus in any local area tribe community group or family Provided that the rule is certain and not unreasonable or opposed to public policy and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the For custom to have the colour of a rule or law it is necessary for the party claiming it to plead and thereafter prove that such custom is ancient certain and reasonable Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence. In Ramalakshmi Ammal v. Sivanatha Perumal Sethuraya held: "It is of the essence of special usage modifying the ordinary law of succession that they should be ancient and invariable and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the courts can be assured of their existence and that they possess the conditions of antiquity and certainty on which alone their legal title to This Court in Mirza Raja Pushpavati Vijayaram Gajapathi Raj & ors. v. Sri Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagram & Ors. again reiterated the same position of law regarding the establishment of a custom upon which a party intends to rely. The importance of the custom in relation to the applicability of the Act has been acknowledged by the Legislature by incorporating Section 29 saving the validity of a marriage solemnised prior to the commencement of the Act which may otherwise be invalid after passing of the Act Nothing in the Act can affect any right recognised by custom or conferred by any said enactment to obtain the dissolution of a Hindu Marriage whether solemnised before or after the commencement of the Act even without the proof of the conditions precedent for declaring the marriage invalid as incorporated in Sections 10 to 13 of the Act. In this case the appellant filed a complaint in the Court of Chief Metropolitan Magistrate New Delhi stating therein that her marriage was solemnised with the respondent in Delhi according to Hindu rites and customs". Alleging that the respondent has solemnised another marriage with the Accused No.2 the complainant pleaded: "That the accused No.1 has not obtained any divorce thro’ the Court of Law upto this date and hence the action of the accused No.1 is illegal and contravene the provision of law as laid down under Section Nowhere in the complaint the appellant has referred to any alleged custom having the force of law which prohibits the solemnisation of second marriage by the respondent and the consequences thereof. It may be emphasised that mere pleading of a custom stressing for monogamy by itself was not sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife. In order to prove the second marriage being void the appellant was under an obligation to show the existence of a custom which made such marriage null ineffectual having no force of law or binding effect incapable of being enforced in law or non est. The fact of second marriage being void is a sine qua non for the applicability of Section 494 IPC. It is settled position of law that for fastening the criminal liability the prosecution or the complainant is obliged to prove the existence of all the ingredients constituting the crime which is normally and usually defined by a statute. The appellant herself appears to be not clear in her stand inasmuch as in her statement in the court recorded on 24th October 1992 she has stated that "I am a Hindu by religion". The complaint was dismissed by the trial court holding "there is no mention of any such custom in the complaint nor there is evidence of such custom. In the absence of pleadings and evidence reference to Book alone is not sufficient". the High Court vide the judgment impugned in this appeal held that in the absence of notification in terms of sub sectionof Section 2 of the Act no case for prosecution for the offence of bigamy was made out against the respondent because the alleged second marriage cannot be termed to be void either under the Act or any alleged custom having the force of law. In view of the fact that parties admittedly belong to the Scheduled Tribes within the meaning of clause of Article 366 of the Constitution as notified by the ConstitutionOrder 1950 as amended by Scheduled Castes and Scheduled Tribes Order Amendment) Acts 656 1076 187 and 190 passed in terms of Article 342 and in the absence of specific pleadings evidence and proof of the alleged custom making the second marriage void no offence under Section 494 of the Indian Penal Code can possibly be made out against the respondent. The Trial Magistrate and the High Court have rightly dismissed the complaint of the appellant Learned Counsel appearing for the appellant however submitted that even if the second marriage was not void for the purposes of attracting the applicability of Section 494 and holding the respondent guilty of bigamy the appellant is entitled to maintenance succession and other benefits on account of her being the legally wedded wife of the respondent. We cannot adjudicate upon such a proclaimed right of the appellant. The appellant is at liberty to get her right established by way of civil proceedings in a competent court of jurisdiction. If any such proceedings are initiated the same would be decided on their merits in accordance with the principles of pleadings and proof not being influenced by any of the observations made by the trial magistrate or the High Court. There is no merit in this appeal which is accordingly dismissed

Not paying maintenance to wife causes “Economic Abuse”: Tripura High Court

Denial of maintenance to wife causes “Economic abuse” under section 3 of the Domestic Violence Act. Tripura High Court gave the decision and upheld the judgment of the Additional Sessions Judge in the case of Ramendra Kishore Bhattacharjee vs. Smt.Madhurima Bhattacharjee [Crl.Rev.P.No.36 of 2020] by the bench of Hon’ble Justice SG Chattopadhyay. According to the facts of the above-cited case, the wife of the petitioner had filed an application under the Domestic Violence Act against her husband for seeking relief. She had contended that her husband abused and assaulted her for dowry & also developed an extra-marital affair. Later on, she took a divorce from the petitioner. The petitioner had argued that all the allegations against him were false and frivolous. According to him, his wife was very arrogant and torturous from the beginning of their marriage. He also approached the State Legal Services Authority for a settlement. His efforts yielded no result. Ultimately, his wife filed an FIR against him and his old parents. They also had a son, whose custody was given to the petitioner. Considering the above-cited facts, Trial Court had directed the petitioner to pay Rs 15000 per month as maintenance to his wife; against which the petitioner and his family had filed an application challenging the trial court judgment. In the High Court, the petitioner contended that he had medical expenses of his old mother and all the expenses of his school-going son. Whereas, his wife’s counsel argued that since the petitioner was a govt. employee, he was eligible to pay maintenance to his wife. It was also argued that the monetary relief u/s 20 is different from maintenance u/s 125 CrPC. While referring to the judgment of Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori and another, the High Court stated that “The judgment of the appellate court does not call for any interference in this criminal revision petition”.

HIGH COURT OF TRIPURA Crl.Rev.P.No.320 Ramendra Kishore Bhattacharjee Son of Late Santi Gopal Bhattacharjee Resident of Badharghat Sreepalli P.S. Amtali District West Tripura Smt.Madhurima Bhattacharjee Wife of Ramendra Kishore Bhattacharjee C O Sri Tapan Bhattacharjee of Ramnagar Road No.4 P.S: West Agartala District: West Tripura and Anr. For the Appellant(s) For the Respondent(s) Date of hearing Date of delivery of Judgment & order Whether fit for reporting : Yes No  ..............Appellant(s) ...........Respondent(s) Mr.B.Deb Adv. Mr.S.Debnath Addl. PP Mr.Raju Datta HON’BLE MR.JSUTICE S.G.CHATTOPADHYAY B E F O R E JUDGMENT This criminal revision petition has been filed under Section 397 read with Section 401 of the Code of Criminal Procedure 1973(Cr.P.C. hereunder) against the judgment and order dated 18.07.2020 delivered in Criminal Appeal No. 16 of 2018 by the Additional Crl.Rev. P.36 2020 Sessions Judge West Tripura Agartala partly allowing the appeal against the judgment and order dated 23.08.2018 passed by the Judicial Magistrate First classAgartala in case No. CR 54 of 2016 under the Protection of Women from Domestic Violence Act 2005at Agartala on 22.01.2016 seeking various reliefs under the DV Act wherein she referred to several incidents of domestic violence against her husband. It was stated by her that after solemnization of their marriage a son was born to them on 28.05.2001. Their relationship was normal for a period of 01 year only. Thereafter her husband subjected her to harassment and torture for dowry and since she was unable to meet his demand she was physically assaulted by her husband on various dates. Gradually he developed an extramarital affair. When the wife raised protest against his conduct he assaulted her. As a result of continuous assault on 16.12.2015 and 17.12.2015 she became ill and received treatment Crl.Rev. P.36 2020 in IGM Hospital at Agartala. Unable to bear his torture the wife parted with his company on 17.12.2015. In this factual background she claimed the following reliefs in the trial court under the DV Act: A protection order under Section 18 of the DV Act restraining her husband from committing acts of domestic violence to her. Residence order under Section 19 of the DV Act restraining the husband from dispossessing her shared household. Monetary relief under Section 20 of the DV Act @Rs.15 000 per month along with one time medical expenses of Rs.1 lakh. Compensation order under Section 22 of the DV Act against the husband for damages of an amount of Rs.3 lakhs including mental torture and emotional distress caused to her by her husband by his acts of domestic violence. Her application was registered in the trial court as case no. CR 516 and notice was issued to the husband. The husband filed written objection against the complaint of his wife. In his written objection he stated that his wife filed a false and frivolous complaint against him. According to him she was very arrogant Crl.Rev. P.36 2020 and torturous right from the beginning of their marriage. But he condoned her conduct and wanted to continue the relationship. He noticed no change in her behavior even after the birth of their son. After he was transferred to the court of District and Sessions Judge at Kailashahar he had taken his wife and child to there from where the wife used to visit her parents at Agartala frequently without taking any care of his convenience. Having noticed growth of abnormalities in her conduct day by day the husband with the consent of her parents had taken her to various psychiatrists. He had also taken her to Bangalore for treatment in the National Institute of Mental Health And Neuro Science NIMHANS) in 2012 which brought no change in her. The husband then approached the State Commission for Women for reconciliation. He also approached the State Legal Services Authority for a settlement. His efforts yielded no result. Ultimately his wife filed an FIR against him and his old parents on 18.12.2015. Since then the husband has been living separately along with his son who is studying in school. Having denied the allegations of his wife he claimed that his wife was solely responsible for their matrimonial discord Crl.Rev. P.36 2020 and as such she was not entitled to any relief under the DV Act. During the trial of the case the wife examined herself as PW 1 her elder brother Tapan Bhattacharjee as PW 2 and her neighbor Ranajoyti Bhattacharjee as PW 3. The husband on the other hand examined himself as DW 1 his neighbor Priya Bhusan Deb as DW 2 and Smt. Rekha Roy as DW 3. The learned trial court on appreciation of evidence granted reliefs to the wife vide paragraph 12 of his judgment dated 23.08.2018 which is as under: “ORDER 12) In the result the application filed by the aggrieved petitioner U.S. 12 of the Act is partly allowed and the aggrieved petitioner is found entitled to protection order residence order and monetary relief. The respondents are prohibited from committing any act of domestic violence or aiding or abetting in the commission of acts of domestic violence upon the aggrieved petitioner. The Respondent No.1 is further directed as part of residence order to make payment of Rs.2000 per month as rent for accommodation to the aggrieved petitioner. He is further directed to make payment of Rs.15 000 per month as monetary relief in the form of maintenance to the aggrieved petitioner. The payment of Rs.2000 per month as residence order and Rs.15 000 per month as maintenance is to be deposited within the 10th day of every month in the Bank account of the aggrieved petitioner. Supply a copy of this judgment and order free of cost to both the parties and to the C.D.P.S’s of their respective jurisdiction of address for doing the needful. This Judgment is Crl.Rev. P.36 2020 passed on this 23rd day of August 2018 under the seal and signature of this Court. Thus the case is disposed off on contest. Make entry in the concerned T.R. The record shall be consigned to Record Room after due compliance of all legal formalities.” The husband and his mother brother and sister being appellants challenged the said judgment of the learned trial court in criminal appeal no.118 before the learned Additional Sessions Judge at Agartala in West Tripura and the leaned Additional Sessions Judge by the impugned judgment partly allowed the appeal vide paragraph 8 of the impugned judgment and directed as under: “8. In view of the discussion made above the present criminal appeal partly succeeds and the judgment and order dated 23.8.2018 passed by the Ld. Trial Court in C.R. 54 of 2016 is partly upheld and interfered with as stated herein below : a) The husband appellant No.1 is solely proved to have committed and liable for the acts of Domestic Violence upon his aggrieved wife and all other appellant Nos.2 3 and 4 are hereby discharged from the liabilities. b) The protection order passed by the Ld. Trial Court under Section 18 of the PWDV Act is upheld with a direction that the husband appellant No.1 strictly adhered the same. c) The order of monetary relief passed in the form of maintenance under Section 20(1)(d) of the PWDV Act for an amount of Rs.15 000 per month is hereby upheld and d) The order of relief passed under Section 19(f) of the PWDV Act is hereby set aside.” Crl.Rev. P.36 2020 Aggrieved with the impugned judgment of the learned Additional Sessions Judge the husband has challenged the said judgment in this criminal revision 10] Heard Mr. B.Deb learned counsel appearing for the husband as well as Mr. Raju Datta learned counsel appearing for the wife. 11] The grounds of challenge to the impugned judgment of the appellate court are as under: i) The learned courts below have not property appreciated the evidence and materials on record and as such their judgments are erroneous and liable to be set ii) The learned courts below have failed to appreciate the fact that the wife has left the the custody of her husband. Thereafter the husband alone has been shouldering all expenses of the son including his educational expenses. The learned courts below without taking into consideration the expenses borne by the husband directed him to provide monetary relief to the wife ₹15 000 per month. Crl.Rev. P.36 2020 iii) While providing the monetary relief to the wife under Section 18 of the DV Act the courts below did not also consideration personal expenses of husband and expenses borne by him for maintaining his old and ailing mother. Moreover the learned courts below did not also consider his permanent disability and the recurring medical expenses for his treatment. While determining the amount of monetary relief the courts below did not also take into consideration the order of the Family Court Agartala passed in Misc. Case No.463 of 2017 whereby the husband was directed to pay ₹ 6000 to his wife in a proceeding under Section 125 Cr.P.C. iv) The trial court as well as the appellate court issued the protection order against the husband without any proof of commission of domestic violence. According to the husband evidence adduced by him was not appreciated by the trial court as well as the appellate court while issuing such protection 12] Besides projecting the grounds stated above Mr.B.Deb learned counsel appearing for the husband has also contended that where there is no Crl.Rev. P.36 2020 evidence of domestic violence the wife is not entitled to any relief under the DV Act. In this regard Mr.Deb learned counsel has relied on order dated 28.01.2019 of the Apex Court passed in Sangita Saha vs. Abhijit Saha And Others. In Petition(s) for Special Leave Appeal(Crl.) No(s). 2600 2601 2016] wherein the Apex Court has held that petitioner is entitled to relief under the DV Act only in case she establishes domestic violence. Mr. Deb learned counsel has also contended that in absence of the proof of the ingredients of domestic violence the wife is not entitled relief relieves provided under the DV Act. In support of his contention Mr. Deb learned counsel has placed reliance on the order dated 04.10.2019 of the Apex Court in Kamlesh Devi vs. Joypal And Others.[Special Leave Petition Diary No.(s) 34053 2019] wherein the Apex Court has held that relief under DV Act can be declined where ingredients of domestic violence are wholly absent. submission on behalf of the husband is that the learned trial court as well as the appellate court should not have ignored the maintenance awarded to the wife in a Crl.Rev. P.36 2020 proceeding under Section 125 Cr.P.C while determining the amount of monetary relief to the wife under Section 20 of the DV Act. In support of his contention Mr.Deb learned counsel has referred to the decision of the Apex Court in Rajnesh vs. Neha and Another reported in 2020 SCC Online SC 903 wherein the Apex Court has directed as under: jurisdictions It is well settled that a wife can make a claim for maintenance under different statutes. For instance there is no bar to seek maintenance 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 the husband to pay proceedings independent of the relief in a previous proceeding. If maintenance is awarded to the wife in a previously instituted proceeding she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance which may be filed under another enactment. While deciding the of maintenance proceeding court family court shall take into account the maintenance instituted proceeding and determine the maintenance payable to the issue of To overcome the jurisdiction conflicting orders being passed different proceedings we direct that in a subsequent maintenance proceeding the the previous applicant shall disclose maintenance proceeding and the orders passed therein so that the Court would Crl.Rev. P.36 2020 take into consideration the maintenance proceeding and grant an adjustment or set off of the said amount. If the order the previous proceeding requires any modification or variation the party would be required to move the 13] Mr.Deb learned counsel appearing for the husband has finally argued that since there is no proof of domestic violence the impugned judgment is liable to be set aside. 14] Mr.Raju Datta learned counsel appearing for the wife on the other hand 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. Further contention of Mr.Datta learned counsel is 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 Mr.Datta that there is no reason to interfere with the findings of the courts below. According to Mr.Datta Crl.Rev. P.36 2020 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. In support of his contention Mr.Datta has referred to the decision of the Apex Court in Reema Salkan vs. Sumer Singh Salkan reported in 12 SCC 303 wherein the Apex Court succinctly held that while determining the maintenance allowance for the wife regards must be had to the living standard of his husband and his 15] With regard to the determinants of the maintenance allowance Mr.Datta learned counsel appearing for the wife has also placed reliance on the decision of Delhi High Court in Babita Bisht vs. Dharmender Singh Bisht reported in SCC Online Del 8775 wherein Delhi High Court has held as “16. The Supreme Court in Reema vs. Sumer Singh Salkan in in judgment dated judgment of the Supreme Court in Bhuwan Crl.Rev. P.36 2020 take subterfuges Mohan Singh vs. Meena:6 SCC 353 held that "the concept of sustenance does not necessarily mean to lead the life of an animal feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play and that is where the obligations of the husband in case of a wife become a prominent one. In a proceeding of this nature the husband cannot deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field it is the obligation of the husband to see that the wife does not become a destitute a beggar. A situation is not to be maladroitly created where under she is compelled to resign to her fate and think of life "dust unto dust". It is totally impermissible. In fact it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour 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."” 16] Mr.Datta learned counsel appearing for the wife has further argued that monetary contemplated under Section 20 of the DV Act is different from maintenance which can be in addition to an order of maintenance granted under Section 125 Cr.P.C. or any other law. In support of his contention Mr. Datta learned counsel has referred to the decision Crl.Rev. P.36 2020 of the Apex Court in Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori And Another reported inWhile disposing of an application under sub section of section 12 the Magistrate may direct respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to— the maintenance a) the loss of earnings b) the medical expenses loss caused due to the c) the destruction damage or removal of any property from the control of the aggrieved person and aggrieved person as well as her children if any including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure 1973 or any other law for the time being in force. shall be adequate 2) The monetary relief granted under this fair and reasonable and consistent with the standard of living to which the aggrieved person is 3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance as the nature and circumstances of the case may 4) The Magistrate shall send a copy of the order for monetary relief made under sub section to the parties to the application and to the in charge of the police station Crl.Rev. P.36 2020 within the local limits of whose jurisdiction the respondent resides. 5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub sectionUpon the failure on the part of the respondent to make payment in terms of the order under sub section the Magistrate may direct the employer or a debtor of the respondent to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent which amount may be adjusted towards the monetary relief payable by the respondent." The Monetary relief as stipulated under Section 20 is different from maintenance which can be in addition to an order of maintenance under Section 125 of the Cr.P.C. or any other law. Such monetary relief can be granted to meet the expenses incurred and losses suffered by the aggrieved person and child of the aggrieved person as a result of the domestic violence which is not dependent on the question whether the aggrieved person on the date of filing of the application under Section 12 is in a domestic relationship with the respondent.” 17] Mr. Datta learned counsel has also placed reliance on a decision of the Delhi High Court in Shome Nikhil Danani vs. Tanya Benon Danani reported in 2019) 54 Online Del 8016 wherein the Delhi High Court has held as follows: “17. Cleary the scope of Section 20 of the DV Act is much wider than that of Section 125 Cr.P.C. While Section 125 Cr.P.C. talks only of maintenance Section 20 DV Act stipulates payment of monetary relief to meet the expenses incurred and losses suffered as a result of the domestic violence including but not limited to loss of earning medical expenses loss caused due to destruction damage or removal of Crl.Rev. P.36 2020 the DV Act any property from the control of aggrieved person. Further Section 20(1)(d) of the DV Act clearly provides proceedings under magistrate may direct the Respondent to pay the maintenance to the aggrieved person as well as her children if any including an order under or in addition to an order of maintenance under section 125 Cr.P.C. or any other law for the time being in force." 18. This clearly shows that an order under Section 20 DV Act is not restricted by an order under section 125 Cr.P.C. The Trial Court appreciating the distinction between the two provisions and the reasoning clouded by an respondent wife under section 23 was only seeking an order of maintenance which is not the case. In her application under section 23 of the DV Act the respondent wife has inter alia under Section under Section 18 apart from the monetary relief under Section 20. 19 and 19. Reference may also be had to the Judgment of a coordinate bench of this court in Karamchand & Ors Vs State NCT of Delhi & Anr181 DLT 494 and of the Supreme Court of India in Juveria Abdul Majid Khan Patni Vs Atif Iqbal Mansoori10 SCC 736 wherein the Supreme Court has held that monetary relief as stipulated under Section 20 is different from maintenance which can be in addition to an order of maintenance under Section 125 Cr.P.C. or any other the DV it may be seen 20. Further Act and under section 125 Cr.P.C are independent of each other and have different scope though there is an overlap. In so far as the overlap is concerned law has catered for that eventuality and laid down that at Crl.Rev. P.36 2020 the time of consideration of an application for grant of maintenance under DV Act fixed under section 125 Cr.P.C shall be taken into account. 21. The Judgment in the case of Rachna Katuria Versus Ramesh Kathuria relied upon by learned Senior Counsel for the Petitioner to contend that DV Act does not create any additional right to claim maintenance on the part of the aggrieved person and if a woman had already filed a suit claiming maintenance and after adjudication maintenance has been determined she does not have a right to claim additional maintenance under the DV Act is per in curium as it does not notice the very provisions of Section 20 and 23 of DV Act. Further now the Supreme Court of India in Juveria Abdul Majid Khan Patni Vs Atif Iqbal Mansoori supra) has held that monetary relief under Section 20 DV Act is in addition to maintenance under section 125 Cr.P.C.” 18] Learned counsel therefore contends that the judgment of the appellate court does not call for any interference in this criminal revision petition. 19] As discussed the wife in support of her case submitted her examination in chief on affidavit and got her subjected to cross examination before the trial court as PW 1. In her examination in chief she had repeated the incidents of torture and harassment mated out to her by her husband and reiterated that her husband had compelled her leave her matrimonial home by committing physical torture on Crl.Rev. P.36 2020 her at 8 O’clock in the morning on 17.12.2015. She also stated that as a result of his torture she received treatment from IGM Hospital Agartala as an outdoor patient on 18.12.2015. She further stated that after the said incidences she filed FIR to the Officer in charge of Amtali Police Station which was registered as Amtali P.S.Case No.2015 AMT 178 dated 17.12.2015 under Sections 498A and 325 IPC and investigation of the case was also taken up by police. During the proceeding under the DV Act at the trial court this FIR lodged by her was taken into evidence and marked as Exhibit 1. She also submitted the photocopy of doctor’s prescription to prove that she attended IGM Hospital at Agartala on 18.12.2015 in the Out Patient Department after she was assaulted by her husband on the previous day. In her cross examination she denied that her husband had taken her to NIMHANS in Bengaluru for neurological treatment. She also denied that she was advised to visit NIMHANS at the interval of every 6 months. She denied that she made false allegations of domestic violence against her husband because of the only reason that she suspected that her husband was having extramarital affair. Crl.Rev. P.36 2020 20] Elder brother of the wife was examined as PW 2. In his examination in chief submitted on affidavit he supported the case of his sister with regard to her allegations of domestic violence against her husband. The PW stated at the trial that her husband used to assault his sister almost on every day to meet his demand of dowry. His sister complained to him that her husband had developed extramarital affair. It was further stated by the PW that his sister was physically assaulted by her husband on 16.12.2015 and 17.12.2015 for which she left her matrimonial home. In his cross examination the PW asserted that he met the husband of his sister and his relatives several times for mitigation of the discord and differences between the spouses. But his efforts did not work. 21] PW 3 Ranajyoti Bhattacharjee in his examination in chief on affidavit supported the case of the wife with regard to her allegations of violence and atrocities against her husband. The PW also stated that the wife told him that her husband developed an extramarital relationship. But the PW was not produced in court for cross examination. Crl.Rev. P.36 2020 Learned counsel appearing for the husband agitated on this point. According to him the courts below should not have taken his examination in chief into consideration because this PW was not produced in court for cross examination by the husband. 22] DW 1 Ramendra Kishore Bhattacharjee the husband repeated the same story which was projected by him in his written objection against the petition of his wife. He reiterated that he never committed any sort of domestic violence on his wife. Rather he left no stone unturned for her well being. But there was no change in her conduct despite his efforts. Rather she became more violent and abusive to the husband. According to the PW his wife was always suspicious and only for this reason she brought all these false allegations against him. In his cross examination the husband admitted that he was drawing a monthly salary of ₹49 000 and he also admitted that he gave no maintenance allowance to his wife after she parted with his company. 23] DW 2 Priya Bhusan Deb is the neighbor of the husband. Priya Bhusan stated at the trial that when he was secretary of Nabajagaran Sangha a meeting Crl.Rev. P.36 2020 was held in the house of the husband at the instance of the club for settlement of the disputes between them. During such meeting it came to light that the main reason of grievance of the wife against her husband was her suspicion that her husband had an extramarital affair. They tried to restore their relationship but their efforts did not work. 24] DW 3 Smt. Rekha Roy another neighbor of the husband has also given similar evidence. She also supported the fact that a meeting was held in the house of the husband at the instance of local club where efforts were taken to solve the differences between the spouses. But the efforts failed since the wife had suspected her husband to have extramarital affair. 25] The core issue which has been agitated by learned counsel appearing for the husband is that relief under the DV Act has been provided to the wife in absence of any proof of domestic violence. 26] Under Section 12 of the DV Act only the aggrieved person or a protection officer appointed under the DV Act or any other person on behalf the aggrieved person may present an application to the Crl.Rev. P.36 2020 magistrate seeking one or more reliefs under this Act. It would be apposite to reproduce Section 12 of the DV Act at this juncture which is as under: “12. Application to Magistrate.—(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. 2) The relief sought for under sub section may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent: Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person the amount if any paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall notwithstanding anything contained in the Code of Civil Procedure 1908 or any other law for the time being in force be executable for the balance amount if any left after such set off. 3) Every application under sub section shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto. 4) The Magistrate shall fix the first date of hearing which shall not ordinarily be beyond three days from the date of receipt of the application by the court. 5) The Magistrate shall Endeavour to dispose of every application made under sub sectionwithin a period of sixty days from the date of its first hearing.” 27] Aggrieved person has been defined under Section 2(a) of the DV Act which reads as under: Crl.Rev. P.36 2020 “2. Definitions.—In this Act unless the context otherwise requires — a) “aggrieved person” means any woman who is or has been in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent b) ............................................................. c) ............................................................. 28] A conjoined reading of Section 12 and Section 2(a) makes it abundantly clear that relief under the DV Act can be granted only to an aggrieved person defined under the DV Act and an aggrieved person has been defined as a woman who is or has been in a domestic relationship with the respondent who alleges to have been subjected to any act of domestic violence by the respondent. Therefore allegation of domestic violence is a sine qua non for pursuing a petition under the DV Act. 29] In this case the wife who filed the application under Section 12 of the DV Act in the trial court is obviously an aggrieved person within the meaning of the Act because she made allegations of domestic violence against her husband and the fact that she was in a domestic relationship with the husband as Crl.Rev. P.36 2020 his wife has been admitted by her respondent husband. the question is whether the wife proved commission of domestic violence against her husband at the trial court and become entitled to a relief under Section 12 of the DV Act. 30] In the definition clause of the DV Act i.e. Section 2 under clause states that domestic violence has the same meaning as assigned to it in Section 3 of the DV Act. Section 3 of the DV Act defines domestic violence as under: “3. Definition of domestic violence.—For the purposes of this Act any act omission or commission or conduct of the respondent shall constitute domestic violence in case it— a) harms or injures or endangers the health safety life limb or well being whether mental or physical of the aggrieved person or tends to do so and includes causing physical abuse sexual abuse verbal and emotional abuse and economic abuse or b) harasses harms injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security or c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clauseor clauseor d) otherwise injures or causes harm whether physical or mental to the aggrieved person. Explanation I.—For the purposes of this section — i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain harm or danger to life limb or health or impair the health or Crl.Rev. P.36 2020 development of the aggrieved person and includes assault criminal intimidation and criminal force ii) “sexual abuse” includes any conduct of a sexual nature that abuses humiliates degrades or otherwise violates the dignity of woman iii) “verbal and emotional abuse” includes— a) insults ridicule humiliation name calling and insults or ridicule specially with regard to not having a child or a male child and b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested iv) “economic abuse” includes— a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity to house hold including but not necessities for the aggrieved person and her children if any stridhan property jointly or separately owned by the aggrieved person payment of rental related to the shared house hold and maintenance b) disposal of household effects any alienation of assets whether movable or immovable valuables shares securities bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person and c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. Explanation II.—For the purpose of determining whether any act omission commission or conduct of the respondent constitutes “domestic violence” under this section the overall facts and circumstances of the case shall be taken into consideration.” Crl.Rev. P.36 2020 31] Apparently domestic violence has been defined under Section 3 of the Act in a very wider term and with regard to proof of domestic violence explanation II to said Section 3 provides that for determining whether any act an omission commission or conduct of the respondent constitutes “domestic violence” under the said Section the overall facts and circumstances of the case shall be taken consideration. 32] It may be recalled that in the present case the spouses have brought allegations and counter allegations against each other and additional sessions Judge after examining allegations and the materials placed before the court by the contesting spouses set aside the protection order as against the mother brother and the sister of the husband. While affirming the protection order as well as the monetary relief against the husband the residence order for payment of house rent @Rs.2000 per month to the wife under Section 19(f) was also set aside by the learned Additional Sessions Judge by the impugned Crl.Rev. P.36 2020 33] In gist the Additional Sessions Judge upheld the direction of the trial court prohibiting the husband from committing any kind of domestic violence or aiding or abetting in the commission of any act of domestic violence upon the wife and by means of monetary relief as under Section 20 of the Act the order for payment of ₹15 000 to the wife was also upheld. 34] In the instant case during his cross examination before the trial court the husband had categorically admitted that his monthly salary was ₹49 000 excluding all deductions. He also admitted that he gave nothing towards maintenance of his wife from 13.12.2015. His statement is reproduced as “At present my gross salary is 49 000 excluding deductions. It is true that I have not given any maintenance to my wife since 13.12.2015.” 35] Section 20 of the DV Act provides for payment of monetary relief to the aggrieved person which reads as under: “20. Monetary reliefs.—(1) While disposing of an application under sub section of section 12 the Crl.Rev. P.36 2020 Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but not limited to — a) the loss of earnings b) the medical expenses c) the loss caused due to the destruction damage or removal of any property from the control of the aggrieved person and d) the maintenance for the aggrieved person as well as her children if any including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure 1973or any other law for the time being in force. 2) The monetary relief granted under this section shall be adequate fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. 3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance as the nature and circumstances of the case may require. 4) The Magistrate shall send a copy of the order for monetary relief made under sub sectionto the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides. 5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub sectionUpon the failure on the part of the respondent to make payment in terms of the order under sub section the Magistrate may direct the employer or a debtor of the respondent to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent which amount may be adjusted towards the monetary relief payable by the respondent.” 36] Under Section 3 of the DV Act which defines domestic violence ‘economic abuse’ is a form of Crl.Rev. P.36 2020 domestic violence. Clause of explanation I of Section 3 relates to ‘economic abuse’ which includes deprivation of all or any economic financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise. The said clause of the Explanation I of Section 3 of the DV Act reads as under: “(iv) “economic abuse” includes— a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including but not limited 5 to house hold necessities for the aggrieved person and her children if any stridhan property jointly or separately owned by the aggrieved person payment of rental related to the shared house hold and maintenance b) disposal of household effects any alienation of assets whether movable or immovable valuables shares securities bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person and c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.” Crl.Rev. P.36 2020 37] In the present case obviously the wife is legally entitled to maintenance allowance from her husband who is a salaried government employee. She has made out a good case justifying her separate living. Admittedly she is a housewife and she has no source of earning whereas the husband draws a monthly salary of ₹49 000 all deductions. circumstances denial of maintenance allowance to the wife obviously causes ‘economic abuse’ to her within the meaning of domestic violence as under Section 3 of the DV Act. There is therefore no infirmity in the impugned judgment. 38] In so far as the quantum of monetary relief is concerned it is asserted by the husband in his memo of appeal that the Family Court Agartala in Misc. case No. 463 of 2017 also directed the husband to pay monthly maintenance allowance of ₹6 000 to his wife and it has been averted by the husband that the learned trial court as well as the appellate court committed error in not taking into account this amount while determining the amount of monetary relief in the proceeding under the DV Act. The Apex Court in case of Rajnesh vs. Neha has held that maintenance Crl.Rev. P.36 2020 provided in a previously instituted proceeding can be adjusted or set off in the subsequent proceeding. Though the husband has not produced any document with regard to his averment that there is an order passed by the Family Court for payment of monthly maintenance allowance of Rs.6000 to the wife such amount if any shall be adjusted towards the said amount of ₹15 000 in view of the directions issued by the Apex Court in the case of Rajnesh vs. Neha(supra). 39] The husband will therefore pay ₹15 000 to his wife as monetary relief as directed by the Additional Sessions Judge by the impugned judgment w.e.f the date of filing of the petition i.e. from 01.10.2018. The said monetary relief shall be paid by the husband by depositing the same in her savings bank account. The learned Judge Family Court Agartala will determine the mode of payment of the outstanding arrear till 31.01.2021 after issuing notice to the parties and hearing them in person. If the husband fails to pay the arrear the same shall be deducted from his salary and paid to the wife. 40] Resultantly the petition stands dismissed. Crl.Rev. P.36 2020 Interim order with regard to monetary relief if any stands vacated. Send back the LCR. Pending application(s) if any also stands disposed of. Copy of this judgment be supplied to the parties and a copy be sent to Judge Family Court Agartala immediately. Saikat Sarma Crl.Rev. P.36 2020

Medical Termination of pregnancy after 26 weeks allowed in case of minor’s rape: High Court of Kerala

The court said that in the case of a rape victim who has not attained the age of majority, the medical termination of pregnancy can happen even after the gestational period of 26 weeks by Hon’ble Justice Justice P.V.Asha of High Court of Kerala in the case ABC vs. State of Kerala and Ors. [Civil Writ Petition No.29209 of 2020 (A)].  This decision was made in furtherance of a writ petition filed which is also associated with a criminal case of rape. The case involves a 15-year-old minor rape victim who is carrying about 23 weeks of pregnancy Her parents assert that the continuation of her pregnancy would be contrary to her interest as she was not mentally prepared to accept it. Further, she was also traumatized by the sexual assault done to her. An interim order was passed by the court for constituting a medical board that included specialists in the matter. Their opinion was of utmost importance to the court under Section 5 of the Medical Termination of Pregnancy Act, 1971. The relevant provisions mentioned by the court state that the existence of this exception concerning the length of the pregnancy is allowed as long as medical specialists are in favor of MTP. The opinions read that the continuation of pregnancy of teenage girls, in general, has a high risk of developing serious medical conditions. Also, the failure to conduct MTP may result in excessive blood loss and thereby be a threat to her life. The court took note of past judgment where the Supreme Court permitted termination even though the gestational age was 25-26 weeks in the case of A.V Union of India (2018) 4 SCC 75. Another aspect to be dealt with was with the age of the minor and for this the court referred to Murugan Nayakkar v Union of India: 2017 SSCC online SC 1092 where termination of pregnancy of a 13-year-old child was allowed when the gestational age was 26 weeks. The court also ordered to take proper care of the child if the baby was born alive. For this, it took the help of the judgement laid down in  XYZ v. Union of India and Others [2019(3) Bom, CR 400)] where it was held “In case a child is born alive, despite attempts at the medical termination of pregnancy, the parents, as well as the doctors, owe a duty of care to such child. The best interests of the child must be the central consideration in determining how to treat the child. “ After taking into consideration the aforementioned judgments, the court concluded that the child was unprepared in light of the trauma that she had gone through. Moreover, the opinion that was given by the medical professionals also gave weightage to the judgement of the court.

WP(C).No.29209 OF 2020(A IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE SMT. JUSTICE P.V.ASHA MONDAY THE 04TH DAY OF JANUARY 2021 14TH POUSHA 1942 WP(C).No.29209 OF 2020(A AGED 37 YEARS AGED 34 YEARS AGED 15 YEARS BY ADV. SRI.ADITHYA RAJEEV STATE OF KERALA REPRESENTED BY SECRETARY MINISTRY OF CHILD WELFARE THYCAUD THIRUVANANTHAPURAM PIN 695 014 THE DIRECTOR OF MEDICAL EDUCATION DIRECTORATE OF MEDICAL EDUCATION MEDICAL COLLEGE P.O. THIRUVANANTHAPURAM PIN 695 011 THE DIRECTOR OF MEDICAL SERVICES GENERAL HOSPITAL JUNCTION THIRUVANANTHAPURAM 695 035 THE DISTRICT MEDICAL OFFICER KOTTAYAM DISTRICT OFFICE OF THE DISTRICT MEDICAL OFFICER KOTTAYAM 686 002 THE SUPERINTENDENT OF MEDICAL COLLEGE HOSPITAL KOTTAYAM GANDHI NAGAR P.O. KOTTAYAM PIN 686 008 THE UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF WOMEN AND CHILDREN DEVELOPMENT SASTHRI BHAVAN NEW DELHI PIN 110 001 WP(C).No.29209 OF 2020(A SMT.PRINCY XAVIER GP THIS WRIT PETITIONHAVING COME UP FOR ADMISSION ON 04.01.2021 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING WP(C).No.29209 OF 2020(A Dated this the 4th day of January 2021 An unfortunate minor rape victim girl aged 15 years has approached this Court along with her parents pointing out that the girl is carrying about 23 weeks of pregnancy and that continuation of her pregnancy would be contrary to her interest Crime No.1171 2020 has been registered in Thrikodithanam Police Station in respect of the incident. The Writ Petition is filed producing Exts.P3 and P5 medical reports dated 09.12.2020 and 15.12.2020. As per Ext.P3 report the gestational age was found to be 22 weeks and 6 days as on 09.12.2020. It is stated that victim girl is not mentally prepared to accept the pregnancy and that there is high risk in the event of continuation of her pregnancy as she has been subjected to the trauma of sexual assault. 2. When the matter came up for admission on 29.12.2020 this Court passed an interim order directing the District Medical Officer Kottayam to constitute a medical board with all specialists required to conduct medical termination of pregnancy and file a report before this court traversing through the 3. The learned Government Pleader has made available the minutes of the Medical Board convened on 31.12.2020 with the WP(C).No.29209 OF 2020(A following members: Dr.Shainimol A ThachankaryThe provisions of S.4 and so much of the provisions of sub section of S.3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioner shall not apply to the termination of a pregnancy by the registered medical practitioner in case where he is of opinion formed in good faith that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman 6. This court has in the judgments in ABC V Union of India others: 2020(4) KLT 279 Ms. X v. State of Kerala and Others 2016 KLT 745 etc have ordered termination of pregnancy exceeding 20 weeks in the case of rape victims who were not mentally prepared to deliver the child in order to save their lives. The Apex court has in the judgment in A V. Union of India: 13 SCC 339 permitted termination of pregnancy when the gestational age was 26 weeks in view of the recommendation of the medical board and the medical report WP(C).No.29209 OF 2020(A revealing the threat of severe mental injury to the woman and to the multiple complex problems to the child if born alive involving complex cardiac corrective surgery stage by stage after birth in the event of continuation of the pregnancy. In Meera Santosh Pal v. Union of India: 3 SCC 462 also permission was granted when the pregnancy crossed 24 weeks in view of the medical reports pointing out the risk involved. In the judgment reported in Neethu Narendran V State of Kerala 2020(3)KHC 157 also this court permitted termination of pregnacny when gestational age crossed 23 weeks. As found in those cases the minor victim in this case is also not prepared to deliver a child in the situation. In view of the trauma that the minor girl has undergone and taking note of the opinion of the Psychiatrist coupled with the report of medical board I am of the view that the writ petition can be allowed permitting termination of pregnancy. 7. In the event the baby is born alive it has to be taken care of as observed by the Bombay High Court in the judgment XYZ v. Union of India and Others :(2019Bom. CR 400) as If a child is born alive despite attempts at the medical termination of pregnancy the parents as well as the doctors owe a duty of care to such child. The best interests of the child must be the central consideration in determining how to treat the child. The extreme vulnerability of such child is reason enough to ensure that everything which is reasonably possible and feasible in the circumstances must be offered to such child so that it develops into a healthy child 8. Therefore petitioners 1 and 2 are permitted to subject WP(C).No.29209 OF 2020(A their daughter 3rd petitioner to medical termination of pregnancy. As any delay in undertaking the termination will involve serious consequences affecting the girl as well as the life of the baby in the womb there shall be a direction to the Superintendent of Government Medical College Kottayam to see that the termination of pregnancy of the minor girl the 3rd petitioner is undertaken by competent doctors under his her supervision at the earliest point of time if possible today itself in accordance with the provisions of the Medical Termination of Pregnancy Act 1971 its rules and all other rules regulations and guidelines prescribed for the purpose The Medical Board shall maintain a complete record of the procedure which is to be performed on the girl for termination of her pregnancy. 9. There will be a further direction to the doctors to take the tissue of the foetus for DNA identification and to maintain the same intact for future purposes especially due to the fact that a criminal case is pending in the instant case. If the child is born alive despite the attempts at medical termination of the pregnancy the doctors shall ensure that everything which is reasonably possible and feasible in the circumstances and in contemplation of the law prescribed for the purpose is offered to such child so that he she develops into a healthy 10. As the minor girl is accommodated at Children s Home WP(C).No.29209 OF 2020(A Kottayam there shall be a direction to the Superintendent of the Children s Home Kottayam to produce the child victim before the Superintendent of the Government Medical College Kottayam today itself. The Registry and all concerned shall see that absolute privacy is maintained with respect to the identity of the petitioners while issuing the certified copy of the judgment or otherwise. There shall be a direction that copy of the Writ Petition affidavit the documents annexed to it and the medical report shall not be issued to any third person without obtaining orders from this Court The Writ Petition is allowed accordingly WP(C).No.29209 OF 2020(A PETITIONER S S EXHIBITS A TRUE COPY OF THE BIRTH CERTIFICATE OF THE 3RD PETITIONER DATED 13.03.2006 ISSUED BY THE REGISTRAR ARPOOKARA GRAMA PANCHAYAT A TRUE COPY OF THE REMAND REPORT IN CRIME NO.1171 OF 2020 OF THE THRIKODITHANAM A TRUE COPY OF THE ULTRASONOGRAPHIC REPORT OBS OF THE 3RD PETITIONER DATED 9.12.2020 ISSUED BY PRIME SCANS AND LABORATORIES A TRUE COPY OF THE ORDER OF PLACEMENT OF A CHILD IN AN INSTITUTION DATED 14.12.2020 ISSUED BY THE CHILD WELFARE COMMITTEE A TRUE COPY OF THE REPORT DATED 15.12.2020 ISSUED BY THE MEDICAL COLLEGE HOSPITAL

Kerala State electricity Board and ANR. V/S Kurien E. Kalathil and ANR.

The court stated that referring the parties to arbitration has serious civil consequences procedurally and substantively The Appellant-Kerala State Electricity Board, entered into an agreement on 16.09.1981 with respondent- contractor for construction of a composite dam. After commencement of work, Government of Kerala issued a notification dated 30.03.1983, by which minimum wages payable to certain categories of workers was revised with effect from 01.04.1983. The Appellant-Kerala State Electricity Board, entered into an agreement on 16.09.1981 with respondent- contractor for construction of a composite dam. After commencement of work, Government of Kerala issued a notification dated 30.03.1983, by which minimum wages payable to certain categories of workers was revised with effect from 01.04.1983. The respondent claimed labor escalation charges from 01.04.1983 to December, 1984. The Government of Kerala referred the matter to the industrial tribunal for adjudication of the dispute. The industrial tribunal passed the award dated 14.10.1993 holding that the notification of Government of Kerala was applicable to workmen employed by the respondent. Respondent filed O.P.No.283 of 1995 claiming an amount of Rs.6,32,84,050/- towards labor escalation charges and an amount of Rs.7,66,35,927/- being interest at the rate of 18% per annum payable under Ex.P20 in respect of various bills issued by the respondent for the period 15.01.1985 to 31.10.1994. When the said writ was pending, the appellant terminated the contract with respondent, which again came to be challenged before the High Court by filing O.P.No.10759 of 1997 against termination of contract and for the payment of works done (Ex.P59) by respondent. PROCEDURAL HISTORY:The High Court disposed of both the petitions by a common judgment held that the termination of contract was arbitrary and directed the Board to pay the amount claimed by the respondent with interest at the rate of 18% per annum. The High Court also directed the Board to pay the amount under Ex.P59 towards additional work done by the respondent.Being aggrieved, appellant approached this Court by way of appeal in C.A.No.4092 of 2000 reported in Kerala State Electricity Board and Another v. Kurien E. Kalathil and Others[1]. In para (11) of the judgment, this Court observed that the contract between the parties is in the realm of private law and not a statutory contract and the matter could not have been agitated in the writ petition. However, having regard to the fact that the contract was of the year 1981 and the notification was issued in 1983 and in the peculiar facts and circumstances, this Court did not interfere with the order of the High Court, but reduced the rate of interest from 18% p.a. to 9% p.a. So far as Ex.P59 is concerned, there was no direction by this Court. Review petition filed by the appellant was dismissed by this Court.The appellant has so far paid an amount of Rs.12,82,96,320/- under Ex.P20 which was accepted by the respondent without any demur. Three years after the payment, respondent filed I.A.No.6 of 2006 seeking direction of the court to make payments due, with further interest to be paid. In which this Court had passed the order that “the Kerala State Electricity Board is liable to pay certain amount to the Petitioner-Contractor and gave liberty to the Petitioner to move to the High Court of Kerala seeking further steps for the recovery of the amount and if there is any dispute between the petitioner and the Electricity Board, the High Court would consider the same and issue appropriate directions within a reasonable time….” The appellant has so far paid an amount of Rs.12,82,96,320/- under Ex.P20 which was accepted by the respondent without any demur. Three years after the payment, respondent filed I.A.No.6 of 2006 seeking direction of the court to make payments due, with further interest to be paid. In which this Court had passed the order that “the Kerala State Electricity Board is liable to pay certain amount to the Petitioner-Contractor and gave liberty to the Petitioner to move to the High Court of Kerala seeking further steps for the recovery of the amount and if there is any dispute between the petitioner and the Electricity Board, the High Court would consider the same and issue appropriate directions within a reasonable time….” Respondent-contractor filed W.P. before the High Court. The High Court allowed the writ petition directing the Board to pay Rs.12,92,29,378/- within three months with 9% simple interest. So far as the claim as to the additional work done, the High Court directed the parties to mutually discuss among themselves. Further, the High Court referred the matter to the sole arbitrator Justice K.A. Nayar, former Judge of the High Court of Kerala to resolve the dispute. The appellant-Board filed review, which was dismissed on 23.06.2009. Being aggrieved, the appellant is before this court. ISSUE BEFORE THE COURT:Whether the contractor is justified in appropriation of payment firstly towards interest? Whether the contractor is justified in appropriation of payment firstly towards interest? Whether the contractor is entitled to subsequent interest on the amount claimed in Ex.P20? Whether the High Court was right in referring the parties to arbitration on the oral consent given by the counsel without written instruction from the party? RATIO OF THE COURTAfter hearing to both the learned counsels, the court observed that as per the facts and circumstances of the present case and since public money is involved, the court deem it a fit case for reappreciating the facts and the materials on record or otherwise the findings of the High Court are likely to result in excessive hardship to the appellant-Board and consequently passed on to the consumers. In the same manner, for all the bills, the respondent has calculated the “Value of work done”, “difference in wages” and “Labor Escalation Charges” on monthly basis. After so calculating, the respondent shown Rs.6,32,84,050/- as total amount due towards labor escalation. The court observed that, in computation, the respondent contractor himself adjusted all payments received from the appellant, only towards the principal and not towards interest. Parties are governed by the terms of the contract. Clause E1.079 of the agreement expressly provided that the appellant would pay no interest to the respondent for delayed payment. But when the respondent filed I.A.No.6 of 2006, the entire method of calculation was changed by showing adjustment of payments firstly towards interest and then towards principal. Since the respondent changed the method of adjustment, even after payment of Rs.12,82,96,320/, according to him Rs.3,38,57,618/- was still due to him. This manner of appropriation, is in clear violation of the directions given by this Court. This important aspect was lost sight by the High Court and the direction of the High Court to make further payment of Rs.4,12,58,224/- under Ex.P20 is not sustainable. Learned counsel for the respondent submitted that in the case of a debt due with interest, the normal rule is that any payment made by the debtor, in the first instance, to be adjusted towards satisfaction of interest and only thereafter to the principal. The learned counsel placed reliance upon Meghraj and Others vs. Mst. Bayabai and Others[2] and I.C.D.S. Ltd. vs. Smithaben H. Patel (Smt.) and Others[3] where the court in para (14), held that, “the general rule of appropriation of payments towards a decretal amount is that such an amount is to be adjusted firstly, in accordance with the directions contained in the decree and in the absence of such direction, adjustments be made firstly in payment of interest and costs and thereafter in payment of the principal amount.” In this particular case, since this Court directed the payment as per Ex.P20, the respondent cannot turn round and say that the amount received by him will be adjusted towards the interest first and then towards the principal.At this juncture, the court may usefully recapitulate respondent’s own letter to the appellant extracted in para (11) where the respondent himself has stated that he has deducted the advances from the principal amount claimed under “Labor Escalation Charges” and “interest” are shown separately.As per the court, the respondent is not justified in changing the method of calculation and claim appropriation. The claim of the respondent for a further sum of Rs.2,29,34,559/- with interest under Ex.P20 cannot be sustained and the direction of the High Court to pay the same is liable to be set aside.Coming on to the question that whether the respondent is entitled to subsequent interest on the amount claimed under Ex.P20. The court observed, under Section 34(2) CPC, where a decree is silent as to payment of further interest on the principal sum, it shall be deemed to have been refused. In the present case, since there is no direction for future interest, the respondent cannot claim further interest on the amount payable under Ex.P20.The appellant has paid a total amount of Rs.12,82,96,320/- and according to the Board, it has overpaid the respondent an excess amount of Rs.1,74,75,247/-. In the absence of any direction in the order of the High Court and order of this Court to pay subsequent interest, the respondent is not entitled to claim subsequent interest on the amount payable under Ex.P20. The direction of the High Court to pay subsequent interest of Rs.1,83,23,665/- under Ex.P20, is not sustainable. The impugned judgment of the High Court directing the appellant to pay Rs.4,12,58,224/- under Ex.P20, should also be set aside.So far as Ex.P59 is concerned, it is towards additional work done – material escalation and labor escalation. Earlier, the High Court held, in para (26) of its judgment that, “the Board shall also pay to the petitioner the bills raised by him for the work done till date including labor escalation payment etc.”So far as Ex.P59 is concerned, the contractor has made a claim of Rs.5,55,62,597/- towards additional work and the Board has disputed the claim made by the respondent and pleaded that the total work done was only for Rs.1,55,65,817/- including cost of departmental materials. The learned senior counsel for the respondent submitted that the claim of the respondent in Ex.P59 was not disputed by the appellant in its counter filed. But this contention does not merit acceptance. As pointed out above, the claim of the respondent on each one of the items in Ex.P59, the appellant has filed a detailed reply in I.A.No.6 of 2006 disputing the claim on each of the items claimed by the respondent. It is in this context, this Court has disposed of I.A. No.6 of 2006 observing that there is dispute regarding the quantum of the amount payable and giving liberty to the respondent contractor to move to the High Court. It is seen from the impugned judgment that the High Court has also taken note of the counter filed by the appellant in which the appellant disputed each one of the items in Ex.P59. The High Court proceeded to observe that the contention of the appellant that only Rs.1,55,65,817/- is payable under Ex.P59 cannot prima facie be accepted as the measurement was taken by the Board after ten years of the judgment; whereas the contractor’s claims were made then and there by the contractor on actual measurement. The High Court directed the appellant to pay Rs.8,79,71,154/-. The High Court ordered single uniform rate for labor escalation at 173.60% and material escalation at 98%. The appellant contended that the direction of the High Court, is contradictory to the terms of the agreement as the material escalation and labor escalation are to be calculated on a monthly basis as claimed by the respondent in other bills. The High Court did not keep in view the respondent’s own method of calculation and erred in allowing labor escalation and material escalation at single uniform rate of 173.60% and 98% respectively and the direction of the High Court to pay Rs.5,81,53,892/- is not sustainable. As the High Court has directed the appellant to pay subsequent interest of Rs.2,98,17,262/- on the amount directed to be paid under Ex.P59. view of the express provision of Section 34(2) CPC, no future interest is payable under Ex.P59. The direction of the High Court to pay future interest of Rs.2,98,17,262/- on the claims made under Ex.P59 is not sustainable and is liable to be set aside. After getting the oral consent of the counsel for the appellant, the High Court has referred the parties to arbitration appointing Justice K.A. Nayar as the arbitrator. There was no arbitration agreement between the parties. The question falling for consideration is whether the High Court was right in referring the parties to arbitration without written instruction from the party.Insofar reference of the parties to arbitration, oral consent given by the counsel without a written memo of instructions does not fulfill the requirement under Section 89 CPC. In the absence of arbitration agreement, the court can refer them to arbitration only with written consent of parties either by way of joint memo or joint application; more so, when government or statutory body like the appellant is involved. In a subsequent decision in the context of examining the compromise under Order XXIII Rule 3 CPC, in Banwari Lal v. Chando Devi (Smt) and Anr.[4], this Court has observed that the case of Byram Pestonji Gariwala had ignored the law laid down in Gurpreet Singh v. Chatur Bhuj Goel  and held that when parties enter into a compromise, the court must insist upon the parties that the compromise be reduced into writing. The court stated that referring the parties to arbitration has serious civil consequences procedurally and substantively. When there was no arbitration agreement between the parties, without a joint memo or a joint application of the parties, the High Court ought not to have referred the parties to arbitration. Now coming on to the issue that whether this court can interfere in exercise of jurisdiction under Article 136 of the Indian Constitution. The learned senior counsel for the respondent urged that in exercise of jurisdiction, the Supreme Court normally does not reappreciate the evidence and findings of fact unless there is miscarriage of justice or manifest illegality. In support of his contention, he referred the case of Taherakhatoon (D) by LRs. v. Salambin Mohammad[5].In exercise of jurisdiction under Article 136 of the Constitution of India, this Court does not normally reappreciate the evidence and findings of fact; but where the findings of the High Court are perverse or the findings are likely to result in excessive hardship, the Supreme Court would not decline to interfere merely on the ground that findings in question are findings of fact. In the case of Mahesh Dattatray Thirthkar vs. State of Maharashtra[6], this Court in para (35) stated some principles in answer to the question of exercising power to interfere with findings of fact under Article 136 of Indian Constitution: “…..It is open to this Court to interfere with the findings of fact given by the High Court if the High Court has acted perversely or otherwise improperly…..”In the present case, the appellant has so far paid Rs.56.58 crores and additionally rupees five crores by order of this Court dated 20.02.2017. As discussed above, the findings of the High Court are perverse causing loss to the statutory body like the appellant-Board, therefore this Court would not decline to interfere merely on the ground that the findings in question are findings of fact. DECISION HELD BY COURT:In this case the judgment was given by JUSTICE R.BANUMATHI that the impugned judgment of the High Court is set aside and these appeals are allowed with the following observations and directions The direction of the High Court to pay future interest of Rs.2,98,17,262/- is set aside.The award passed by the arbitrator Justice K.A. Nayar is set aside and the Arbitration Appeal filed by the appellant pending before the High Court of Kerala is allowed. The amount of Rs.1,74,75,247/- paid under Ex.P20 which is in excess of the claim under Ex.P20 and the amount of rupees five crores paid to the respondent vide order of this Court be treated as payment under Ex.P59 for additional work including tender excess, material escalation and labor escalation charges and in full quit of all claims under Ex.P59. Parties to bear their respective costs.            

Appeal186 of 2001 Special Leave Petition2436 of 2000 DR.SURAJMANI STELLA KUJUR Vs DURGA CHARAN HANSDAH & ANR DATE OF JUDGMENT: 14 02 2001 K.T.Thomas R.P.Sethi SETHI J Leave granted. Who is a "Hindu" for the purposes of the applicability of the Hindu Marriage Act 1955 hereinafter referred to as "the Act") is a question of law to be determined in this appeal. Section 2 of the Act specifies the persons to whom the Act is applicable Clauses (b) andof Sub sectionof Section 2 make the Act applicable to a person who is a Hindu by religion in any of its forms or developments including a Virashaiva a Lingayat or a follower of the Brahmo Prarthana or Arya Samaj and to persons who is a Buddhist Jaina or Sikh by religion. It is also applicable to any other person domiciled in the territories of India who is not a Muslim Christian Parsi or Jew by religion. The applicability of the Act is therefore comprehensive and applicable to all persons domiciled in the territory of India who are not Muslims Christians Parsis or Jews by religion. The term "Hindu" has not been defined either under the Act or Indian Succession Act or any other enactment of the Legislature. As far back as in 1903 the Privy Council in Bhagwan Koer v. J.C. Bose & Ors. Calcutta Series 11] observed: "We shall not attempt here to lay down a general definition of what is meant by the term ’Hindu’. to make it accurate and at the same time sufficiently comprehensive as well as distinctive is extremely difficult. The Hindu religion is marvellously catholic and elastic. Its theology is marked by eclecticism and tolerance and almost unlimited freedom of private worship. Its social code is much more stringent but amongst its different castes and sections exhibits wide diversity of practice. No trait is more marked of Hindu society in general than its horror of using the meat of the cow. Yet the Chamaras who profess Hinduism but who eat beef and the flesh of dead animals are however low in the scale included within its pale. It is easier to say who are not Hindus not practically and separation of Hindus from non Hindus is not a matter of so much difficulty. The people know the differences well and can easily tell who are Hindus and who are not The Act is therefore applicable to: "(1) All Hindus including a Virashaiva a Lingayat a Brahmo Prarthana Samajist and an Arya Samajist Budhists Jains Sikhs In this appeal the parties are admittedly tribals the appellant being a Oraon and the respondent a Santhal. In the absence of a notification or order under Article 342 of the Constitution they are deemed to be Hindus. Even if a notification is issued under the Constitution the Act can be applied to Scheduled Tribes as well by a further notification in terms of Sub sectionof Section 2 of the Act. It is not disputed before us that in the Constitution Scheduled Tribes) Order 1950 as amended by Scheduled Castes and Scheduled Tribes OrderActs 63 of 1956 108 of 1976 187 and 15 of 1990 both the tribes to which the parties belong are specified in Part XII. It is conceded even by the appellant that "the parties to the petition are two Tribals who otherwise profess Hinduism but their marriage being out of the purview of Hindu Marriage Act 1955 in light of Section 2(2) of the Act are thus governed only by their Santal Customs and usage". The appellant has however relied upon an alleged custom in the Tribe which mandates monogamy as a rule. It is submitted that as the respondent has solemnised a second marriage during the subsistence of the first marriage with the appellant the second marriage being void the respondent is liable to be prosecuted for the offence punishable under Section 494 of the Indian Penal Code. No custom can create an offence as it essentially deals with the civil rights of the parties and no person can be convicted of any offence except for violation of law in force at the time of commission of the act charged. Custom may be proved for the determination of the civil rights of the parties including their status the establishment of which may be used for the purposes of proving the ingredients of an offence which under Section 3(37) of the General Clauses Act would mean an act or omission punishable by any law by way of fine or imprisonment Article 20 of the Constitution guaranteeing protection in respect of conviction of offence provides that no person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence. Law under Article 13 clause of the Constitution means the law made by the Legislature including intravires statutory orders and orders made in exercise of powers conferred by the statutory rules. The expression custom and usage" has been defined under Section 3(a) of the Act as: "the expression ’custom’ and ’usage’ and rule which having been continuously and uniformly observed for a long time has obtained the force of law among Hindus in any local area tribe community group or family Provided that the rule is certain and not unreasonable or opposed to public policy and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the For custom to have the colour of a rule or law it is necessary for the party claiming it to plead and thereafter prove that such custom is ancient certain and reasonable Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence. In Ramalakshmi Ammal v. Sivanatha Perumal Sethuraya held: "It is of the essence of special usage modifying the ordinary law of succession that they should be ancient and invariable and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the courts can be assured of their existence and that they possess the conditions of antiquity and certainty on which alone their legal title to This Court in Mirza Raja Pushpavati Vijayaram Gajapathi Raj & ors. v. Sri Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagram & Ors. again reiterated the same position of law regarding the establishment of a custom upon which a party intends to rely. The importance of the custom in relation to the applicability of the Act has been acknowledged by the Legislature by incorporating Section 29 saving the validity of a marriage solemnised prior to the commencement of the Act which may otherwise be invalid after passing of the Act Nothing in the Act can affect any right recognised by custom or conferred by any said enactment to obtain the dissolution of a Hindu Marriage whether solemnised before or after the commencement of the Act even without the proof of the conditions precedent for declaring the marriage invalid as incorporated in Sections 10 to 13 of the Act. In this case the appellant filed a complaint in the Court of Chief Metropolitan Magistrate New Delhi stating therein that her marriage was solemnised with the respondent in Delhi according to Hindu rites and customs". Alleging that the respondent has solemnised another marriage with the Accused No.2 the complainant pleaded: "That the accused No.1 has not obtained any divorce thro’ the Court of Law upto this date and hence the action of the accused No.1 is illegal and contravene the provision of law as laid down under Section Nowhere in the complaint the appellant has referred to any alleged custom having the force of law which prohibits the solemnisation of second marriage by the respondent and the consequences thereof. It may be emphasised that mere pleading of a custom stressing for monogamy by itself was not sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife. In order to prove the second marriage being void the appellant was under an obligation to show the existence of a custom which made such marriage null ineffectual having no force of law or binding effect incapable of being enforced in law or non est. The fact of second marriage being void is a sine qua non for the applicability of Section 494 IPC. It is settled position of law that for fastening the criminal liability the prosecution or the complainant is obliged to prove the existence of all the ingredients constituting the crime which is normally and usually defined by a statute. The appellant herself appears to be not clear in her stand inasmuch as in her statement in the court recorded on 24th October 1992 she has stated that "I am a Hindu by religion". The complaint was dismissed by the trial court holding "there is no mention of any such custom in the complaint nor there is evidence of such custom. In the absence of pleadings and evidence reference to Book alone is not sufficient". the High Court vide the judgment impugned in this appeal held that in the absence of notification in terms of sub sectionof Section 2 of the Act no case for prosecution for the offence of bigamy was made out against the respondent because the alleged second marriage cannot be termed to be void either under the Act or any alleged custom having the force of law. In view of the fact that parties admittedly belong to the Scheduled Tribes within the meaning of clause of Article 366 of the Constitution as notified by the ConstitutionOrder 1950 as amended by Scheduled Castes and Scheduled Tribes Order Amendment) Acts 656 1076 187 and 190 passed in terms of Article 342 and in the absence of specific pleadings evidence and proof of the alleged custom making the second marriage void no offence under Section 494 of the Indian Penal Code can possibly be made out against the respondent. The Trial Magistrate and the High Court have rightly dismissed the complaint of the appellant Learned Counsel appearing for the appellant however submitted that even if the second marriage was not void for the purposes of attracting the applicability of Section 494 and holding the respondent guilty of bigamy the appellant is entitled to maintenance succession and other benefits on account of her being the legally wedded wife of the respondent. We cannot adjudicate upon such a proclaimed right of the appellant. The appellant is at liberty to get her right established by way of civil proceedings in a competent court of jurisdiction. If any such proceedings are initiated the same would be decided on their merits in accordance with the principles of pleadings and proof not being influenced by any of the observations made by the trial magistrate or the High Court. There is no merit in this appeal which is accordingly dismissed

The court cannot doubt oral deposition made by natural witnesses who were present during the scene of the crime: High Court of Sikkim

Natural witnesses who were present at the time of the relevant events gave oral depositions. Except for the fact that the defense had not been able to prove the weapon of offence, their testimony cannot be questioned. This auspicious judgment was passed by The High Court Sikkim in the case Sudeep Rai vs. State of Sikkim [Crl. A. No. 01 of 2020] of by Honourable Justice Bhaskar Raj Pradhan. The FIR was lodged by Sandeep Rai alleging that Randip Rai was hit on the head by his brother, the appellant, using a hammer and that he had been admitted to the Mangalbaria hospital. It was also asserted that he was hit on the verandah of his house. As per the prosecution, Randip Rai succumbed to his injuries. The investigation was conducted by the Police Inspector, who, on the closure of the investigation filed the charge-sheet dated alleging that an offence under section 302 IPC had been made out. The learned counsel for the appellant submits that there are no eyewitnesses in the present case and therefore, it is a case based on circumstantial evidence. Further, it was submitted that the circumstantial evidence has not been proved in the manner required and there are broken links in the chain of circumstances. The learned counsel on the other hand submits that the learned Sessions Judge had rightly convicted the appellant. He pointed out the various circumstances taken note of by the learned Sessions Judge in the impugned judgment and submitted that each of these circumstances was proved beyond reasonable doubt and they form an unbroken chain of circumstances leading to the only hypothesis that it is the appellant and the appellant alone who is guilty of the offence. The court relied on The Supreme Court Judgment State of U.P. vs. Dr Ravindra Prakash Mittal wherein, it was held that “the essential ingredients to prove the guilt of an accused by circumstantial evidence are: (a) the circumstances from which the conclusion is drawn should be fully proved; (b) the circumstances should be conclusive in nature; (c) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence; (d) the circumstances should to a moral certainty, exclude the possibility of guilt of any person other than the accused.”

THE HIGH COURT OF SIKKIM : GANGTOK Criminal Appellate Jurisdiction) SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE Crl. A. No. 020 Sudeep Rai Aged about 23 years Son of Kalu Singh Rai Resident of Segeng Busty Mangalbaria West Sikkim. Presently at Central Prisons Rongyek. ….. Appellant State of Sikkim ….. Respondent Appeal under section 374(2) of the Code of Criminal Procedure 1973. Ms Tshering Palmoo Bhutia Advocate for the Appellant. Mr. S.K. Chettri Additional Public Prosecutor Respondent. the State Date of hearing : 08.03.2021 and 11.03.2021 Date of judgment: 05.04.2021 JUDGMENT Bhaskar Raj Pradhan J. The appellant convicted by the learned Sessions Judge West Sikkim at Gyalshing under section 304 II of the Indian Penal Code 1860 seeks to challenge both the judgment of conviction and order on 2 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim sentence dated 23.09.2019 in Sessions Trial Case No. 07 of 2018 the Supreme Court noted its earlier judgment in State of U.P. vs. Dr. Ravindra Prakash Mittal4 in which it was held “11. ............. that the essential ingredients to prove guilt of an accused by circumstantial evidence are: the circumstances from which the conclusion is drawn should be fully proved the circumstances should be conclusive in nature all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence the circumstances should to a moral certainty exclude the possibility of guilt of any person other than the accused.” In Umakant supra) the Supreme Court held interalia that the burden of proof in criminal law is beyond all reasonable doubt and if the views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other towards his innocence the view which is favourable to the accused should be adopted. The judgment of this Court in Binod Pradhan which dealt with an allegation of rape is not found relevant. 17 SCC 20 27 SCC 405 3SCC online Sik 227 43 SCC 300 4 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim The learned Additional Public Prosecutor on the other hand submits that the learned Sessions Judge had rightly the appellant. He pointed out the various circumstances taken note of by the learned sessions Judge in paragraph 36 of the impugned judgment and submitted that each of these circumstances were proved beyond reasonable doubt and they form an unbroken chain of circumstances leading to the only hypothesis that it is the appellant and the appellant alone who is guilty for the offence. The FIR dated 11.09.2018 was lodged by Sandeep Rai PW 4) alleging that his brother Randip Rai was hit on the head by the youngest brother the appellant using a hammer and that he had been admitted to the Mangalbaria hospital. It was also asserted that his brother Randip Rai was hit on the varandah of his house at around 7:00 p.m. As per the prosecution Randip Rai succumbed to his injuries on 12.09.2018. The investigation was conducted by Police Inspector Bimal Gurung Investigating Officer) who on the closure of the investigation filed the charge sheet dated 14.11.2018 alleging that an offence under section 302 IPC had been made out. On 28.12.2018 the learned Sessions Judge framed a charge against the appellant under section 302 IPC. The appellant pleaded not guilty and claimed trial. During the trial the prosecution examined 16 witnesses. The appellant was examined under section 313 of the 5 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim Code of Criminal Procedure 1973 on 12.08.2019. He denied the allegations. In his defence he stated that it is true that he and his deceased brother had an argument that night. However as the deceased came to assault him he had run away from home. He asserted that he had not assaulted the deceased. Sandeep Rai identified the appellant as his younger brother. He deposed that on 11.09.2018 both the appellant and the deceased had gone to Mangalbaria bazaar and consumed alcohol. At around 5:00 p.m. the appellant returned home while the deceased at around 7:00 p.m. According to Sandeep Rai the appellant and the deceased had quarrelled with each other at around 7:30 to 8:00 p.m. When he went to the courtyard of their house he saw the deceased lying on the ground with cut injuries on his head. He also noticed blood on the head of the deceased. He deposed that the appellant was not at the place of occurrence when he saw the deceased lying on the courtyard. He along with the villagers evacuated the deceased to the Mangalbaria PHC. On the following day the deceased succumbed to his injuries. During cross examination Sandeep Rai admitted that the deceased and the appellant shared cordial relationship with each other. He also admitted that on the relevant day the deceased and the appellant had gone to Mangalbaria bazaar and when they returned they were intoxicated. He further admitted that he had 6 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim heard discussions between the appellant and the deceased when he was inside his room and that he had not seen the appellant assaulting the deceased. Chandrakala Chettri PW 3) also appellant as her brother in law and deposed that even the deceased was her brother in law. According to her on 11.09.2018 at around 7:30 p.m. when they were watching television she heard a discussion between the appellant and the deceased. After some time she heard some noises and saw the deceased lying on the ground in a pool of blood. She noticed that there was some wound on his head. According to her the appellant was not there. The same evening the deceased succumbed to his injuries. During cross examination she admitted that the deceased and the appellant shared a cordial relation prior to the incident. At the relevant time there was no electricity and as such it was very dark and that she had not witnessed the incident. Lalita Manger identified the appellant as her co villager. According to her on 11.09.2018 at around 7:00 p.m. the appellant came to her house and told her that he had hit someone six times with his fist and thereafter left. During cross examination she admitted that she did not know anything about the case. 7 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim Ramesh Rai identified the appellant as his cousin. He deposed that on 11.09.2018 at around 7:30 to 8:00 p.m. the appellant came to their house and told them that he had assaulted the deceased with his fist on his head. According to Ramesh Rai he took the appellant to Mangalbaria Outpost and handed him over to L Nk Jas Man Subbaadmitted that he was not an eyewitness to that incident. L Nk Jas Man Subba identified the appellant in court. He received information from the Mangalbaria Primary Health Centre stating that one assaulted patient was admitted there. He along with another officer went there and saw Randip Rai and noticed that he had three four wounds on his head. According to L Nk Jas Man Subba he asked Randip Rai as to who had assaulted him to which he had replied that it was the appellant who had done so with the weapon. He also inquired and found out that the appellant was hiding in the house of Ramesh Raito bring the appellant to Mangalbaria Outpost. Thereafter the appellant was taken to Nayabazaar Police Station. In cross examination he admitted that when he met Randip Rai at the PHC he was fine and could converse properly. He also admitted 8 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim that when he inquired from Randip Rai that if any weapon was used he did not say anything to him. Sub Inspector Pranay Chettri deposed that on 13.09.2018 he had seized the clothes of the deceased as well as the blood sample at the STNM Hospital vide seizure memo Exhibit 6). He identified the material objects i.e the white vest M.O.II) and black pantwas the seizure witness to seizure memo who identified his signature thereon. According to him the police had seized the white vest and black pant at STNM Hospital Gangtok. During cross examination he admitted that the seizure memo had not been read over to him. Dr. Uma Adhikari PW 13) had examined deceased on 11.09.2018 when he was brought to the emergency department at around 8:00 p.m. with a history of fall. She had noticed cut injuries on the forehead. The deceased had a history of alcohol intake. Dr Uma Adhikari also volunteered to state that when the deceased was brought to the PHC she was given the history that he had fallen and accordingly attended to him. Thereafter around 11:30 p.m. she was telephonically informed by the sister on duty that the condition of the deceased had deteriorated. When she went to see the deceased she found 9 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim that he was quite serious and therefore she made arrangements for a referral to a higher centre at Gangtok. As there were no escort available for the deceased at that time he was to be taken the next morning. However at 4:00 a.m. the Doctor in charge was informed that the deceased had succumbed to his injuries. During her cross examination she admitted that the deceased was brought to the PHC by the parties and was not forwarded by the police. She also admitted that no Medical Legal Case was forwarded when the deceased was brought to the hospital. She admitted that the patient was walking by himself and that he did not tell her that he was hit by a hammer. Dhan Kumar Tamang and Bishnu Manger PW 7) are witnesses to the recording of the statement of the appellant under Section 27 of the Indian Evidence Act 1872 Exhibit 3). Both of identified Exhibit 3 and signatures thereon. They deposed that after the recording of the statement they accompanied the police team and the appellant to the place of occurrence where the appellant took out one hammer from the bushes which was concealed by him. According to them the hammer was seized vide seizure Exhibit 4). During cross examination Dhan Kumar Tamang admitted that the police had already recorded Exhibit 3 when he reached the Nayabazar Police Station. Bishnu Manger admitted that the police had already recorded 10 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim Exhibit 3 when he reached the Mangalbaria Police Outpost. Dhan Kumar Tamang admitted that after he had affixed his signature in the seizure memo they went to the place of occurrence and recovered the hammer from the place of occurrence. Exhibit 3 is undated. The learned Sessions Judge noted these glaring inconsistencies caused by the depositions of Dhan Kumar Tamang and Bishnu Mangar PW 7) and concluded that it would not be safe to rely upon the purported disclosure statement or the seizure memo Exhibit 4). Milan Raiand Binod Raiare witnesses to the seizure of one stone with blood stains weighing 2 kgsblack plastic with blood stainsand one piece of cloth with blood stainson 13.09.2018 from Sandeep Raias well as the material objects. During cross examination Milan Raiadmitted that the contents of the seizure memo was not read over to him. Binod Rai PW 10) admitted during cross examination that the material objects were common objects and easily available and that he had not affixed his signature on the material objects. The inquest was conducted by the Investigating Officer on 12.09.2018 in the presence of Man Bdr. Rai PW 8). The Investigating Officer deposed that he had 11 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim conducted the inquest and prepared the inquest reportin which he had mentioned the details of the injuries seen on the dead body of the deceased. Man Bdr. Raideposed that the police had taken the body of the deceased to Gangtok Hospital for post mortem. According to him the police had prepared the inquest report in which he had affixed his signature. He also deposed that at the Gangtok Hospital police had seized one blood stained white vest and black pants with blood stains of the deceased vide seizure memo was not read over to him. Dr. O.T. Lepcha the Chief Medico Legal Consultant at the STNM Hospital Gangtok conducted the post mortem examination of the deceased on 13.09.2018 along with one Dr. Karma Mingur and prepared the autopsy report and noted the following: “On examination I found the following: 1. Rigor mortis was present post mortem staining was present faintly over the back and was fixed. There was presence of cyanosis with pallor. Ante mortem injuries: 1. There was multiple abraded laceration over the different areas of the scalp. 2. lacerated injury2.8x1.5 3. Grazed lacerated woundfracture 2.5cm diameter over the occipital bone. 7. Fissure fracture extending from the left parietal eminence to the left temporal bone measuring 10 8. Fissure the parietal eminence upto the external protuberance over the back of skull measuring 16 cms. fracture extending Head and neck: 1. The scalp showed widespread scalp haematoma with bilateral temporal haematoma. There was presence of subdural haematoma 4x3x2 cms placed lobe. There was diffuse subarchnoid haemorrage with features of intra cerebral haemorrage. the occipital 1. Both the lungs were congested and oedematous. 2. The stomach contained around 800 ml of digested food with fluidopined that the approximate time since death was more than 24 hours and the cause of death to the best of his knowledge and belief was due to intra cranial haemorrhage as a result of fractured skull due to multiple blunt force injury homicidal in nature. Prem Kumar Sharma a Junior Scientific Officer Biology Department posted at RFSL Saramsa deposed that on 03.10.2018 their Department received one sealed cloth containing blood sample of the deceased one black plastic pouch with reddish stainsone big stone weighing 2 kgswith reddish stainone hammerone small green and white coloured piece of cloth with reddish stain small green and white piece of cloth and the big stone weighing 2 kgs which tested positive for blood group „AB‟ which was the blood group of the deceased. However no blood could be detected on the hammerOn 11.09.2018 the deceased and the accused go to the market and return home in the evening in a state of intoxication b) both the brothers are under the influence of alcohol and they begin quarrelling soon after c) the elder brother PW 4 and his wife PW 3 are in their room in the same house at the time and hear the two younger brothers quarrelling. PW 4 even advises them to stop quarrelling d) following the quarrel PW 4 and his wife PW 3 go out to look only to find the deceased brother lying in a pool of blood with head injuries in the courtyard of the house e) the accused is nowhere to be seen f) the injured deceased is taken to Mangalbaria PHC by PW4 and others g) the same night immediately thereafteraccused flees to the house of PW 5 Lalita Mangar and tells her he “hit six times to somebody with his fist” after which the accused leaves h) the accused then goes to the house of PW 2 Ramesh Rai and informs PW 2 that he has hit the deceased on his head i) around 08:30pm PW 1 receives information about the patient being admitted at the PHC. PW 1 goes to the PHC and finds deceased Randip Rai admitted with “3 4 wounds on his head” 14 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim j) PW 1 asks Randip Rai who inflicted the injury on him. PW 1 says Randip Rai replied “his own youngest brother Sudeep Rai the accused assaulted him with a weapon” k) PW 1 comes to know accused is in the house of PW2 and instructs him to bring accused to the police out post l) PW 2 then takes the accused to the Mangalbaria Out Post and hands him over to PW 1 m) accused is taken to Nayabazar Police station where PW 2 says the accused “stated to the Police that he assaulted the deceased with a hammerThe deceased succumbs to his injuries in the early hours of 12.09.2018 at the Mangalbaria P.H.C. o) Accused is unable to explain how the deceased brother came to sustain the injuries when they were quarrelling or why he failed to come to the assistance of his injured brother or even why he was missing from the house at the time soon after the quarrel p) On 13.09.2018 a hammer is recovered by the police from the bushes near the PO at Segeng West Sikkim in the presence of PW 6 and 7 q) The autopsy by PW 15 reveals the death was caused due to intra cranial hemorrhage as a result of fractured skull due to multiple blunt force injury.” The identity of the appellant and the deceased are proved. They were brothers. Their brother Sandeep Raiand sister in law Chandrakala Chettri identified the appellant in court. Even Ramesh Rai identified the Sandeep Rai established that on 11.09.2018 the deceased and the appellant had gone to the Mangalbaria bazaar and returned home in the evening in a state of intoxication. Sandeep Rai and Chandrakala Chettri deposed that they were in the house at the relevant time when they heard the deceased and the appellant quarrel with each 15 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim other. Their depositions established the presence of the appellant in the house at the relevant time when the deceased was assaulted. When Chandrakala Chettri and Sandeep Rai PW 4) went to the corridor courtyard of their house they saw the deceased lying on the ground in a pool of blood. Both of them noticed that the appellant was not there. Sandeep Rai along with the villagers evacuated the deceased to the Mangalbaria PHC. The appellant thereafter went to Lalita Mangar‟shouse and told her that he had hit somebody on his head six times with his fist. Immediately thereafter the appellant went to his cousin Ramesh Rai‟s house and told them that he had assaulted the deceased with his fist on his head. The Mangalbaria PHC gave information to L Nk Jasman Subba from the Mangalbaria Police Outpost that one patient who had been assaulted was admitted to the Mangalbaria PHC. He visited the PHC and found the deceased had been admitted with three four wounds on his head. He asked the deceased about the assault. The deceased told him that he had been assaulted by the appellant with a weapon. Ramesh Raithereafter took the appellant to Mangalbaria Police Outpost and handed him over to L Nk Jasman Subba who took him to Nayabazaar Police Station where he was arrested. The above facts stand proved. It has been held so by the learned Sessions Judge who had also correctly discarded the 16 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim evidence relating the disclosure statement Exhibit 3) purportedly recorded under section 27 of the Indian Evidence Act 1872. The oral depositions have been made by natural witnesses who were present during the relevant time. Their evidence cannot be doubted except for the fact that the prosecution had not been able to prove that the hammerwas the weapon of offence. The chain of circumstances proved by the prosecution as enumerated above does lead to the inevitable conclusion that it was the appellant and the appellant alone who had committed the offence. There is no manner of doubt that it could have been done by anybody else. The learned Sessions Judge has convicted and sentenced the appellant under section 304 II IPC which reads as under: “304. Punisghment for culpable homicide not amounting to murder. Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years and shall also be liable to fine if the act by which the death is caused is done with the intention of causing death or of causing such bodily injury as is likely to cause death Or with imprisonment of either description for a term which may extend to ten years or with fine or with both if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. Part II: Punishment Imprisonment for 10 years or fine or both Cognizable Non bailable Triable by Court of Session Non compoundable.” To make out an offence punishable under section 304 II IPC the prosecution is required to prove the death of a 17 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim person and such death was caused by the act of the accused and further that he knew that such act of his was likely to cause death. Sandeep Raithe brother of the deceased and Chandrakala Chettrihis sister in law Man Bahadur Rai PW 8) who took the body of the deceased to Gangtok Hospital for post mortem along with the police Dr. Uma Adhikariwho attended to the deceased at the Mangalbaria PHC Dr. O.T. Lepchawho conducted the post mortem examination of the deceased on 13.09.2018 and the Investigating Officerwho conducted the autopsy of the deceased all established his death. The prosecution evidence as discussed above also establishes that such death was caused by the act of the appellant. The ante mortem injuries noted by Dr. O.T. Lepcha PW 15) in his post mortem reportleads to the only hypothesis that the appellant knew that such act of his which caused multiple injuries on the head of the deceased was likely to cause his death. Dr. O.T. Lepcha‟s opinion that the cause of death was due to intra cranial haemorrhage as a result of fractured skull due to multiple blunt force injury and it was homicidal in nature is convincing and backed by the post mortem examination. The punishment prescribed for the offence under section 304 II IPC is imprisonment for ten years or fine or both. 18 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim The learned Sessions Judge has sentenced the appellant to undergo simple imprisonment for a term of seven years and pay a fine of Rs.10 000 which is found perfectly justifiable in the facts of the present case. Resultantly the appeal fails and is dismissed. The judgment of conviction and order on sentence passed by the learned Sessions Judge in Sessions Trial Case No. 018 both dated 23.09.2019 are upheld. The direction for simple imprisonment in default of payment of fine is also upheld. The compensation awarded to the father of the deceased under section 357 Cr.P.C. is maintained. The records of the learned Trial Court be sent back. Certified copy of this judgment be sent to the learned Trial Court and a copy also be furnished free of charge to the appellant. Approved for reporting: Yes No Internet : Yes No Bhaskar Raj Pradhan ) Judge

A group administrator cannot be held liable for an act of member who posts objectionable content, unless there is a common intention or pre-arranged plan: Bombay High Court

A group administrator cannot be expected to presume or to have advance knowledge of the criminal acts of the member of the group. In the absence of a specific penal provision creating vicarious liability, an administrator of a WhatsApp group cannot be held liable for objectionable content posted by a member of a group. Common intention cannot be established in the case of WhatsApp service user merely acting as a group administrator. This remarkable judgment was passed by the Bombay High Court in the matter of KISHOR CHINTAMAN TARONE V THE STATE OF MAHARASHTRA [CRIMINAL APPLICATION NO. 573 OF 2016] by Honourable Justice Amit B. Borkar and Justice Z.A.Haq. Through this application preferred under section 482 of the Code of Criminal Procedure, the applicant challenged the charge-sheet filed in the Court of Judicial Magistrate First Class for offences punishable under sections 354-A(1)(iv), 509 and 107 of the Indian Penal Code and section 67 of the Information Technology Act, 2000. As per the FIR, the applicant was an administrator of a WhatsApp group, and the accused No.1 used filthy language against the non-applicant No.2 on the said WhatsApp group. It was contended that irrespective of such behavior applicant had not taken any action against the accused No.1. Also, it was alleged that the applicant being the administrator had not removed nor deleted accused No.1 from the WhatsApp group nor demanded any apology and merely expressed his helplessness. The HC before ascertaining liability evaluated the functioning of the app and expressed that Once the group is created, the functioning of the administrator and that of the members is at par with each other, except for the power of adding or deleting members to the group. “Administrator of a WhatsApp group does not have power to regulate, moderate or censor the content before it is posted on the group but if a member of the WhatsApp group posts any content, which is actionable under law, such person can be held liable under relevant provisions of law.” Also, in the absence of any specific penal provision creating vicarious liability, an administrator of a WhatsApp group cannot be held liable for objectionable content posted by a member of a group. “A group administrator cannot be held vicariously liable for an act of a member of the group, who posts objectionable content unless it is shown that there was the common intention or pre-arranged plan acting in concert pursuant to such plan by such member of a WhatsApp group and the administrator. Common intention cannot be established in a case of WhatsApp service user merely acting as a group administrator.” “A group administrator cannot be expected to presume or to have advance knowledge of the criminal acts of the member of the group.  Also, the language of section 354-A(1)(iv) of the Indian Penal Code does not introduce vicarious liability, nor could it be said that the Legislature intended to introduce vicarious liability by necessary implication. Non-removal of a member by administrator of a WhatsApp group or failure to seek apology from a member, who had posted the objectionable remark, would not amount to making sexually coloured remarks by administrator.” The court found that essential ingredients of Section 107 of IPC that the applicant had instigated or intentionally aided by his act or illegal omission to accused 1 to make sexually coloured remarks against non-applicant 2 were conspicuously absent. Hence the said Section will not be attracted in the present case. Also, there is no allegation or material that the applicant had either published, transmitted or caused to be published or transmitted in electronic form any material, which is lascivious or appeals to a prurient interest or its effect is such as to tend to deprave and corrupt persons who are likely, to read, see or hear the matter contained or embodied in it. Additionally, it is true that even if the allegations were true it does not disclose essential ingredients of offences alleged against the applicant under sections 354-A(1)(iv), 509 and 107 of the Indian Penal Code and section 67 of the Information Technology Act, 2000.

on 22 04 2021 on 25 04 1 13APL 573.16NO. 573 OF 2016APPLICANT : Kishor S o Chintaman Tarone Agedabout 33 years R o Sawar Tola TahsilArjuni Morgaon District Gondia. ...VERSUS...NON APPLICANTS : 1.The State of Maharashtra ThroughP.S.O. P. S. Arjuni Morgaon District Gondia.2.Mrs.Rachanatai W o ChameshwarjiGahane Aged about 41 years R o Siregaon Bandh Post Sangadi TahsilArjuni Morgaon District Gondia. Mr.R.M.Daga Advocate for the applicant.Mr.T.A.Mirza A.P. P. for the non applicant No.1.Mr. Sanjay A. Bramhe Advocate for the non applicant No.2. CORAM : Z.A.HAQ AND AMIT B. BORKAR JJ. DATED : 01.03.2021.ORAL JUDGMENT :509 and 107 of theIndian Penal Code and section 67 of the Information Technology Act 2000 and also proceedings bearing Regular Criminal Case No.177 of2016. 4. The First Information Report came to be registered againstthe applicant and another with the accusations that the applicant(Accused No. 2) is an administrator of a Whatsapp group that accusedNo.1 used filthy language against the non applicant No.2 on theWhatsapp group of which applicant is an administrator that despiteaccused No.1 using filthy language against the non applicant No.2 theapplicant had not taken any action against the accused No.1. It isalleged that the applicant being administrator had not removed nordeleted accused No.1 from the Whatsapp group. It is further allegedthat the applicant had not asked accused No.1 to submit apology to thenon applicant No.2 on the contrary the applicant expressed hishelplessness. The non applicant No.2 therefore lodged FirstKHUNTE on 22 04 2021 on 25 04 3 13APL 573.16509 and 107 of the Indian Penal Code and section 67 of theInformation Technology Act 2000. To adjudicate the said issue it isnecessary to understand functioning of Whatsapp messaging service.Whatsapp is an instant messaging platform which can be used for mass communication by opting to create a chat group. A chat group is afeature on Whatsapp which allows joint participation of members of thechat group. Group Administrators as they are generally called are theones who create the group by adding or deleting the members to thesame. Every chat group has one or more group administrators whocontrol participation of members of the group by deleting or addingmembers of the group. A group administrator has limited power ofremoving a member of the group or adding other members of thegroup. Once the group is created the functioning of the administratorand that of the members is at par with each other except the power ofadding or deleting members to the group. The Administrator of aKHUNTE on 22 04 2021 on 25 04 5 13APL 573.16of the Indian Penal Code to understand what are the criteria forconstitution of the offence alleged against the applicant which reads asunder:KHUNTE on 22 04 2021 on 25 04 6 13APL 573.16A man committing any of thefollowing acts—(i) physical contact and advances involvingunwelcome and explicit sexual overtures or(ii) a demand or request for sexual favours or(iii) showing pornography against the will of awoman or(iv) making sexually coloured remarks shall beguilty of the offence of sexual harassment.(2) ..(3) Any man who commits the offence specified in clause(iv) of sub sectionshall be punished withimprisonment of either description for a term which mayextend to one year or with fine or with both.]”Clauseof sub section of section 354 A of the IndianPenal Code requires that a man should himself make sexually colouredremarks. The language of section 354 A(1)(iv) of the Indian Penal Codedoes not introduce vicarious liability nor could it be said that theLegislature intended to introduce vicarious liability by necessaryimplication. The First Information Report nowhere alleges that theapplicant made sexually coloured remarks against the non applicantNo.2. It is alleged in the First Information Report that the sexuallycoloured remarks were made by accused No.1 and the applicant beingAdministrator of the Whatsapp group had not taken action of deletingthe accused No.1 from the group nor had sought apology from theaccused No.1. In our opinion in the facts of present case non removalKHUNTE on 22 04 2021 on 25 04 7 13APL 573.16of the Indian Penal Code arenot fulfilled.10. The next offence alleged against the applicant is undersection 107 of the Indian Penal Code. To appreciate the criminal liabilityof an administrator of a Whatsapp group it is necessary to understandthe concept of abetment as enshrined in section 107 of the Indian PenalCode. Section 107 of the Indian Penal Code reads as follows:“107. Abetment of a thing.— A person abets the doing of athing who—First Instigates any person to do that thing orSecondly. Engages with one or more other person orpersons in any conspiracy for the doing of that thing if anact or illegal omission takes place in pursuance of thatconspiracy and in order to the doing of that thing orThirdly. Intentionally aids by any act or illegalomission the doing of that thing.Explanation 1. —A person who by willfulmisrepresentation or by willful concealment of a materialfact which he is bound to disclose voluntarily causes orKHUNTE on 22 04 2021 on 25 04 8 13APL 573.1610 SCC 797 by the Hon’ble Apex Courtwhich in para 6 has held thus “6. Section 107 IPC defines abetment of a thing. Theoffence of abetment is a separate and distinct offenceprovided in IPC. A person abets the doing of a thing when(l) he instigates any person to do that thing orengageswith one or more other persons in any conspiracy for thedoing of that thing orintentionally aids by act orillegal omission the doing of that thing. These things areessential to complete abetment as a crime. The word“instigate” literally means to provoke incite urge on orbring about by persuasion to do anything. The abetmentmay be by instigation conspiracy or intentional aid asprovided in the three clauses of Section 107. Section 109provides that if the act abetted is committed inconsequence of abetment and there is no provision for thepunishment of such abetment then the offender is to bepunished with the punishment provided for the originaloffence. “Abetted” in Section 109 means the specific offenceabetted. Therefore the offence for the abetment of which aKHUNTE on 22 04 2021 on 25 04 9 13APL 573.16when the grievance of the non applicant No.2is that it is the accused No.1 who had used filthy language against thenon applicant No.2. We are therefore satisfied that the allegations inthe First Information Report and material brought on record in the formof charge sheet do not disclose essential ingredients of offencepunishable under section 509 of the Indian Penal Code. 12.The next offence alleged against the applicant is undersection 67 of the Information Technology Act 2000 which reads asunder:“67. Punishment for publishing or transmittingobscene material in electronic form. Whoever publishes ortransmits or causes to be published or transmitted in theelectronic form any material which is lascivious or appeals to theprurient interest or if its effect is such as to tend to deprave andcorrupt persons who are likely having regard to all relevantcircumstances to read see or hear the matter contained orembodied in it shall be punished on first conviction withimprisonment of either description for a term which may extend tothree years and with fine which may extend to five lakh rupeesand in the event of second or subsequent conviction withimprisonment of either description for a term which may extend tofive years and also with fine which may extend to ten lakhrupees.”To constitute an offence under Section 67 of theInformation Technology Act 2000 a person must publish or transmit anobscene material in electronic form. Section 67 provides for punishmentKHUNTE on 22 04 2021 on 25 04 11 13APL 573.16of the Information Technology Act 2000 which reads asunder:“2. Definitions. In this Act unless thecontext otherwise requires "intermediary" with respect to any particular electronicrecords means any person who on behalf of another personreceives stores or transmits that record or provides any servicewith respect to that record and includes telecom serviceproviders network service providers internet service providers web hosting service providers search engines online paymentKHUNTE on 22 04 2021 on 25 04 12 13APL 573.16the power under Section 482 can be exercised by this Court where the allegations made in the FIR even if they are taken at theirface value and accepted in their entirety do not prima facie constituteany offence or make out a case against the accused. Taking an overallKHUNTE on 22 04 2021 on 25 04 13 13APL 573.16509 and 107 of the Indian Penal Code andsection 67 of the Information Technology Act 2000. We are thereforesatisfied that continuation of present proceedings against the applicantwould amount to abuse of process of Court. 14.We therefore pass the following order:i) The First Information Report No.316 andconsequent charge sheet bearing No. 216 for theoffences punishable under sections 354 A(1)(iv) 509 and107 of the Indian Penal Code and Section 67 of theInformation Technology Act 2000 and further proceedingsof Regular Criminal Case No.1716 pending on thefile of Judicial Magistrate First Class Arjuni Morgaon District Gondia are quashed and set aside. Rule is made absolute in the above terms. (AMIT B. BORKAR J)(Z.A.HAQ J)KHUNTE

Provisional attachment of bank accounts by investigative agencies cannot be extended without reasonable cause: High Court of Bombay

Under the purview of the provisional attachment of bank account, a government agency cannot extend the time beyond a legally established time period without a valid justification. This was decided in the High court of Bombay in the case of Goodmartric Export Pvt. Ltd and another v. Union of India and Ors. [Writ Petition No. 94899 of 2020] by two-judge bench consisting of Hon’ble Justices Ujjal Bhuyan and Milind N. Jadhav.J.J. The facts are such that a letter was sent to the general manager of the Kotak Mahindra Bank directing it to debit-freeze one bank account of the petitioner in this case. The first letter was issued by the Directorate of Revenue Intelligence, Kolkata Zonal Unit which was already investigating a case of the petitioner. This action was taken in response to the suspicious trade of import of precious and semi-precious stones from Kolkata. The directorate is one of the respondents here who exercised the power by virtue of the provisions of Customs Act, 1962. After this the directorate went on to freeze three other bank accounts of the petitioner in the year 2019. The fraudulent imports took place to evade additional tax charges because semi-precious stones do not come under the purview of customs act. This writ petition was filed questioning the legality of continuing a provisional attachment of bank beyond a period of one year. The contention posited by the directorate is that the petitioners have not cooperated In the course of investigation and have always been either unavailable or out of town when approached to the addresses. Moreover, they have not tried to prove the bona fides of their imports and due to this the directorate had to take this step. The main provision that is Sub-Section 5 of Section 10 of the aforementioned act was analyzed by the court for which it referred to the reasoning laid down In the case M/s Boxster Impex Pvt. Ltd. and Ors v. Union of India and Ors [WRIT PETITION (ST.) NO.5669 OF 2020]. It was held “by the tone and tenor of the sub-section, it is apparent that it is not a procedural provision per se; rather it is coercive in nature, though the procedure is also laid down for giving effect to the said provision. Being a coercive provision, there has to be strict compliance to the procedure laid down. In such a circumstances and having regard to its very nature, such a provision can only have prospective operation and not retrospective operation.” Thus from a careful reading of sub-section (5) of Section 110, it is easy to see how several pre-requisites are mandated before the application of that by the directorate. The court held that continuation of such attachment even after the expiry of stipulated period was in breach of the act. Further as per the facts of the case, no such document was produced which showed that the Principal Commissioner of Customs had passed an order to extend the time period of attachment.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITIONNO.94899 OF 2020 Goodmatric Export Pvt. Ltd. and another Union of India and others Mr. Brijesh Pathak i b. Ms. Yogita V. Gogar for Petitioners Mr. Pradeep Jetly Senior Advocate a w. Mr. J. B. Mishra for Respondents P.C. :to the General Manager Kotak Mahindra Bank Limited Malad Mumbai requesting debit freeze of one account of the petitioners A perusal of the letter dated 08.05.2019 would go to show that there was an ongoing investigation undertaken by the Directorate of Revenue Intelligence in respect of import of precious and semi precious stones from Kolkata. In the course of the investigation it was found that petitioners had opened an account in the bank of respondent No.3 bearing Account No.2812920972. Respondent No.3 was requested to keep the said account under debit freeze mentioning that the letter was issued in terms of section 110 of the Customs Act 1962 Following the above provisional attachment three other bank accounts of the petitioners with respondent No.3 were frozen with effect from 15.05.2019 being Account Nos.9612928856 9712429789 and 9812301930 on instructions issued by respondent No.2 Respondents have filed reply affidavit. Stand taken in the affidavit is that an intelligence was developed by the Directorate of Revenue Intelligence Kolkata Zonal Unit to the effect that certain unscrupulous importers were importing goods declared as ‘rough precious stones and semi precious stones’ which were over invoiced. During the investigation it revealed that petitioners had made such imports from overseas supplier of Hongkong. Rationale for importing such ‘rough precious stones and semi precious stones’ is that value of those can be inflated and there is no customs duty on the said items. Only Integrated Goods and Services Taxis required to be paid but that too at the rate of only 0.25%. Such imports made by the petitioners would be to the tune of Rs.2000 crores. One person by the name of Shri. Sourabh Johari of Madhya Pradesh who was involved in this fraudulent import has been arrested. In his statement he has admitted that he undertook such fraudulent imports on behalf of several companies including that of the petitioners. Summons were issued to the Directors of petitioner No.1 for appearance but summons could not be served as they were not found in their declared addresses. They did not appear before the Directorate of Revenue Intelligence and did not co operate with the investigation. In so far provisional attachment of the bank account is concerned while admitting that under section 110(5) of the Customs Act 1962 provisional attachment can be for a period of only 12 months it is however stated that petitioners have neither approached the Directorate of Revenue Intelligence to prove the bona fides of their imports nor have they joined the Directorate of Revenue Intelligence in the investigation Due to non cooperation of the petitioners investigation has not reached Petitioners have filed rejoinder affidavit denying the allegations made by the respondents in their reply affidavit and reiterating what has been contended in the writ petition 6. While learned counsel for the petitioners submits that issue involved in the present writ petition is within a narrow compass namely whether provisional attachment of bank account can be continued beyond the period of six months extendable by another period of six months. In so far the present case is concerned he submits that even the extended period of six months was not available to the respondents as no order was passed for extending the initial period of six months On the other hand Mr. Jetly learned senior counsel for the respondents has extensively referred to the averments made in the reply affidavit and submits that conduct of the petitioners does not inspire confidence. Such a person is not entitled to invoke the discretionary jurisdiction of the writ court under Article 226 of the Constitution of Submissions made have been considered From a perusal of the impugned letter dated 08.05.2019 it is seen that during the course of the investigation it had come to the notice of the Directorate of Revenue Intelligence Kolkata Zonal Unit that petitioners had opened an account with respondent No.3 and for that reason the said account of the petitioners was required to be kept under ‘debit freeze’. It was mentioned that the letter was issued in terms of section 110 of the Customs Act 1962. However even this letter does not indicate that activities of the petitioners are unlawful and that they had credited into their bank account money which have accrued out of such unlawful activities which is required to be frozen except generally stating that “whatever amountis lying in the concerned bank accounts the same have been seized by this office in terms of section 110 of Customs Act 1962 read with section 121 of Customs Act 1962 as there are reasons on record to indicate that the companies have engaged in the act of smuggling.” But the moot question raised in the writ petition is whether a provisional attachment of bank account can be continued beyond the period of one year Section 110 of the Customs Act deals with seizure of goods documents and things. Sub sectionwas inserted in the said provision by FinanceAct 2019 with effect from 01.08.2019. Sub section 5) of section 110 reads as under: “Where the proper officer during any proceedings under the Act is of the opinion that for the purposes of protecting the interest of revenue or preventing smuggling it is necessary so to do he may with the approval of the Principal Commissioner of Customs or Commissioner of Customs by order in writing provisionally attach any bank account for a period not exceeding six months Provided that the Principal Commissioner of Customs or Commissioner of Customs may for reasons to be recorded in writing extend such period to a further period not exceeding six months and inform such extension of time to the person whose bank account is provisionally attached before the expiry of the period so specified.” Thus provisional attachment of bank account can be for a period of six months but the said period can be extended for a further period not exceeding six months for reasons to be recorded in writing and communicated to the affected person before expiry of the initial period of six months In M s. Boxster Impex Pvt. Ltd. Vs. Union of India and other connected cases decided on 22.09.2020 this Court held as follows: From the above it is evident that the said provision was inserted in the statute with effect from 1st August 2019 Besides from the tone and tenor of the sub section it is apparent that it is not a procedural provision per se rather it is coercive in nature though the procedure is also laid down for giving effect to the said provision. Being a coercive provision there has to be strict compliance to the procedure laid down.In such circumstances and having regard to its very nature such a provision can only have prospective operation and not retrospective operation. Infact the concerned Finance Act makes it explicit by making the provision effective from a prospective date i.e. from 1st August 2019 Letter from the office of the Principal Commissioner of Customs to the Branch Manager of IDFC Bank was issued on 1st March 2019 for freezing of the bank account of the petitioner. This was prior to insertion of sub section in Section 110 with effect from 1st August 2019. Therefore it is quite clear that this provision could not have been invoked for freezing the bank account of the petitioner Even otherwise we find that the above provision can only be invoked in the manner provided therein which can be culled out as under : The order of attaching the bank account provisionally shall be passed in writing by a proper officer ii) Such an order can be passed during any proceedings under the Customs Act iii) Before passing such an order the proper officer must form an opinion that such attachment of bank account is necessary for the purposes of protecting the interest of revenue or for preventing smuggling iv) Before passing such an order the proper officer must obtain prior approval of the Principal Commissioner of Customs or of Commissioner of Customs and v) Such provisional attachment shall be for a period not exceeding six months As per the proviso the Principal Commissioner of Customs or Commissioner of Customs can extend such provisional attachment for a further period not exceeding six months but he must record reasons for such extension and such extension of period has to be informed to the person whose bank account is provisionally attached before expiry of the period so specified Thus from a careful reading of sub sectionof Section 110 it is noticeable that several pre conditions and procedures are mandated. It may not be necessary for an elaborate deliberation of the same in view of the fact that respondents in their affidavit have not placed on record any order passed by the Principal Commissioner of Customs or Commissioner of Customs under sub sectionof Section 110. Suffice it to say that an order in writing for provisional attachment of a bank account is a must before such an account can be attached. In the absence of such an order in writing respondents could not have provisionally attached the bank account of the petitioner and continued with such attachment even beyond the permissible 34. Learned counsel for the respondents could not show any other provision in the Customs Act which empowers or authorizes the customs department to freeze the bank account of a person other than sub section of Section 110. Such attachment of bank account of the petitioner on 1st March 2019 and its continuation thereafter being in breach of Section 110(5) is therefore without any authority of law.” In Samyak Jewels Pvt. Ltd. Vs. Union of India decided on 25.09.2020 this Court was confronted with a similar issue where also bank account of the petitioner was frozen on 19.04.2018 and continued to remain frozen for a period of more than one year. Examining the meaning of the word ‘provisional’ it has been held that it is a temporary arrangement. The two words ‘provisional’ and ‘attachment’ read in conjunction can only mean a temporary attachment. It is for this reason that Parliament has provided a definite timeline in sub sectionof section 110 of the Customs Act 1962. It has been held as under: Following the above we do not find any good reason to sustain the communication dated 19th April 2018 as more than two years have elapsed since the bank account was frozen. We may mention that sub section of Section 110 speaks of provisional attachment. Dictionary meaning of provisional is ‘arranged or existing for the present possibly to be changed later’ Black’s Law Dictionary Eight Edition has defined it as ‘temporary or conditional’. Therefore the statute has provided a definite time line beyond which the attachment becomes bad in In the light of the above we do not find any justification to continue with the provisional attachment of the bank accounts of the petitioner. We may mention that in the reply affidavit of the respondents it has neither been pleaded nor any document has been annexed thereto to show that any order was passed by the Principal Commissioner of Customs or Commissioner of Customs firstly for provisional attachment of bank accounts of the petitioners and secondly for extending the initial period of six months to a further period not extending six months. The initial period of six months had expired in November 2019. Even assuming and giving benefit of further six months to the respondents the outer limit of one year expired in May 2020. That apart Financeholding that the said provision had prospective application. Therefore such exercise of power is clearly unlawful and in any case cannot be continued now after expiration of the outer limitation period of one year 16. However since we are only concerned with the legality and validity of the provisional attachment of the bank accounts of the petitioners we do not express any opinion on the investigation carried out by the respondents or on any action that may be taken by the respondents in accordance with law. It is in the petitioners’ interest to co operate with the investigation carried out by the respondents Subject to the observations made above impugned letter dated 08.05.2019is set aside and quashed Petitioners’ Bank Account No.2812920972 maintained with respondent No.3 shall be unfrozen forthwith. Consequently the other bank accounts of the petitioners maintained with respondent No.3 bearing Account Nos.9612928856 9712429789 and 9812301930 shall also be unfrozen 18. Writ petition is accordingly allowed to the above extent. However there shall be no order as to costs MILIND N. JADHAV J (UJJAL BHUYAN J

Shiva Karam Payaswami Tewari V. State Of Maharashtra

“Human mind is not a tape recorder which records what has been spoken word by word. The witness should be able to say as nearly as possible actual words spoken by the accused” [Case Brief] Shiva Karam Payaswami Tewari V. State Of Maharashtra                                       Case name: Shiva Karam Payaswami Tewari V. State of Maharashtra Case number:  Criminal Appeal No.                Of 2009 (Arising Out Of S.L.P. (Crl.) No.1700 Of 2008 Court: The Supreme Court Of India Bench: J. Dr. ARIJIT PASAYAT J. ASOK KUMAR GANGULY Decided on: 21-01-2009 Relevant Act/Sections: Indian Penal Code   The accused Shiva Karam Payaswami Tewar was working in Hotel Premier run by the complainant Anthony Xavier. The accused  was  entrusted  with  the  work  of  preparation  of  Muttukumar (hereinafter ‘deceased’) was working as amanager in the said hotel. On 31.8.1995 the accused as well as Muttukumar were in the hotel. On the next day morning i.e. on 1.9.1995 Murugan Shetiya working in the hotel went to Anthony and told him that the hotel is open and Muttukumar and accused are not present in the hotel.When complainant took survey of the hotel he found that cash box was open and tape recorder kept in the hotel was missing. There was no cash in the cash box.Report was lodged with the police and investigation was undertaken. Appellant was suspected to be the murderer.Accordingly, conviction was recorded by the Trial Court.Appellant filed appeal before the High Court (which upheld the conviction.) Before the High Court the stand was that even if the extra judicial confession is accepted to be correct for the sake of argument, case under Section 302 IPC is not made out.Thus, this appeal. ISSUE BEFORE THE COURT:Whether the Court should interfere with the order passed by the lower Courts? Whether the Court should interfere with the order passed by the lower Courts? RATIO OF THE COURT The Court first dealt with ‘extra judicial confession’. It stated that though it is not necessary that the witness should speak the exact words but there cannot be vital and material difference. While dealing with a stand of extra judicial confession, Court has to satisfy itself that the same was voluntary and without any coercion and undue influence.Extra judicial confession can form the basis of conviction if persons before whom it is stated to be made appear to be unbiased and not even remotely inimical to the accused.The Court further observed that if substance itself is sufficient to prove culpability and there is no ambiguity about import of the statement made by accused, evidence can be acted upon even though substance and not actual words have been stated. Human mind is not a tape recorder which records what has been spoken word by word. The witness should be able to say as nearly as possible actual words spoken by the accused.It is for the Court to judge credibility of the witness’s capacity and thereafter to decide whether his or her evidence has to be accepted or not.In conclusion the Court mentioned that in the instant case the extra-judicial confession is believable as rightly done by the Trial Court and the High Court. The same not was made to a stranger but to a friend. At the same time the background in which the assault has been made clearly shows that Section302 IPC has no application.  The assault was made in the course of sudden quarrel without pre-meditation.  The accused was not armed at the relevant point of time. DECISION HELD BY COURT:The Court altered the conviction to Section 304 Part II IPC. It was decided that custodial sentence of 8 years would meet the ends of justice. The appeal was allowed to the aforesaid extent. The Court altered the conviction to Section 304 Part II IPC. It was decided that custodial sentence of 8 years would meet the ends of justice. The appeal was allowed to the aforesaid extent.

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2009 Arising out of S.L.P.No.17008 Shiva Karam Payaswami Tewari State of Maharashtra JUDGMENT Dr. ARIJIT PASAYAT J Leave granted Challenge in this appeal is to the judgment of a Division Bench of the Bombay High Court upholding the conviction of the appellant for the offence punishable under Sections 302 321 and 201 of the Indian Penal Code 1860and sentence of life nine months and nine months respectively and fine with default stipulation. Background facts in a nutshell are as follows The accused Shiva Karam Payaswami Tewar was working in Hotel Premier run by the complainant Anthony Xavier at Dharavi Mumbai 70 The accused was entrusted with the work of preparation of spices Muttukumarwas working as a manager in the said hotel. Considering the nature of their work the accused as well as Muttukumar used to stay overnight in the hotel On 31.8.1995 in the evening complainant Anthony Xavier went to the Hotel Premier and after usual supervision and talk with manager at night he returned. At that time the accused as well as Muttukumar were in the hotel On the next day morning i.e. on 1.9.1995 one Murugan Shetiya working in the hotel went to Anthonyand told him that the hotel is open and Muttukumar and accused are not present in the hotel. He also informed that cash drawer was open and tape recorder was found missing. Naturally complainant Anthony immediately went to the hotel. When he was making query Arun Pujari who was running Pan bidi shop near the hotel and taxi driver Suresh Kumar who often used to park his taxi near the hotel told him that accused met them at about 5.30 a.m. and made enquiry about the bus going to Bangalore. When complainant took survey of the hotel he found that cash box was open and tape recorder kept in the hotel was missing There was no cash in the cash box. According to him on the previous night the manager i.e. deceased had informed him that on that day amount of Rs.3500 was collected and the same was kept in the cash box. Report was lodged with the police and investigation was undertaken. Appellant was suspected to be the murderer. After completion of investigation charge sheet was filed. Since the accused pleaded innocence trial was held. Though there was no direct evidence the Trial Court held that the circumstantial evidences adduced by the prosecution were sufficient. Particular reference was made to the extra judicial confession made before PW 1. Accordingly conviction was recorded by the Trial Court. Appellant filed appeal before the High Court which upheld the conviction Before the High Court the stand was that even if the extra judicial confession is accepted to be correct for the sake of argument case under Section 302 IPC is not made out. The stand of the prosecution was that the extra judicial confession clearly showed both the intention and the knowledge. Accordingly the High Court dismissed the appeal. The stand taken before the High Court was reiterated by the parties. In addition learned counsel for the appellant submitted that there was no pre meditation and in the course of quarrel a wooden log which was lying was picked up by the appellant in a heat of passion and assault was made. Only one blow was given and therefore Section 302 IPC in any event has no application It was submitted that extra judicial confession is a very weak piece of evidence and should not have been made the basis for conviction 4. We shall first deal with the question regarding claim of extra judicial confession. Though it is not necessary that the witness should speak the exact words but there cannot be vital and material difference. While dealing with a stand of extra judicial confession Court has to satisfy itself that the same was voluntary and without any coercion and undue influence. Extra judicial confession can form the basis of conviction if persons before whom it is stated to be made appear to be unbiased and not even remotely inimical to the accused. Where there is material to show animosity Court has to proceed cautiously and find out whether confession just like any other evidence depends on veracity of witness to whom it is made. It is not invariable that the Court should not accept such evidence if actual words as claimed to have been spoken are not reproduced and the substance is given It will depend on circumstance of the case. If substance itself is sufficient to prove culpability and there is no ambiguity about import of the statement made by accused evidence can be acted upon even though substance and not actual words have been stated. Human mind is not a tape recorder which records what has been spoken word by word. The witness should be able to say as nearly as possible actual words spoken by the accused. That would rule out possibility of erroneous interpretation of any ambiguous statement If word by word repetition of statement of the case is insisted upon more often than not evidentiary value of extra judicial confession has to be thrown out as unreliable and not useful. That cannot be a requirement in law. There can be some persons who have a good memory and may be able to repost exact words and there may he many who are possessed of normal memory and do so. It is for the Court to judge credibility of the witness’s capacity and thereafter to decide whether his or her evidence has to be accepted or not. If Court believes witnesses before whom confession is made and is satisfied that confession was voluntary basing on such evidence conviction can be founded. Such confession should be clear specific and unambiguous The expression ‘confession’ is not defined in the Evidence Act ‘Confession’ is a statement made by an accused which must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. The dictionary meaning of the word ‘statement’ is “act of stating that which is stated a formal account declaration of facts etc.” The word ‘statement’ includes both oral and written statement. Communication to another is not however an essential component to constitute a ‘statement’ An accused might have been over heard uttering to himself or saying to his wife or any other person in confidence. He might have also uttered something in soliloquy. He might also keep a note in writing. All the aforesaid nevertheless constitute a statement. It such statement is an admission of guilt it would amount to a confession whether it is communicated to another or not. This very question came up for consideration before this Court in Sahoo v. State of Uttar Pradesh AIR 1966 SC 40:held that “communication is not a necessary ingredient to constitute confession”. In paragraph 5 of the judgment this Court held as follows Admissions and confessions are exceptions to the hearsay rule. The Evidence Act places them in the category of relevant evidence presumably on the ground that as they are declarations against the interest of the person making them they are probably true. The probative value of an admission or a confession goes not to depend upon its communication to another though just like any other piece of evidence it can be admitted in evidence only on proof. This proof in the case of oral admission or confession can be offered only by witnesses who heard the admission pr confession. as the case may be.... If as we have said statement is the genus and confession is only a sub species of that genus we do not see any reason why the statement implied in the confession should be given a different meaning. We therefore hold that a statement whether communicated or not admitting guilt is a confession of guilt (Emphasis supplied The extra judicial confession purported to have been made before PW1 reads as follows “He was brought to the hotel in a taxi. In enquired with the accd. what he did to Muttukumar. The accd disclosed that he and Muttukumar got up at about 4.30 a.m. and while he was preparing spices there was quarrel between them and as a result of the quarrel he had hit Muttukumar with a wooden log used for cutting vegetables and Muttukumar had died of the injuries sustained during the assault.” In the instant case the extra judicial confession is believable as rightly done by the Trial Court and the High Court. The same not was made to a stranger but to a friend. Therefore the Trial Court and the High Court have rightly acted upon the extra judicial confession. At the same time the background in which the assault has been made clearly shows that Section 302 IPC has no application. The assault was made in the course of sudden quarrel without pre meditation. The accused was not armed at the relevant point of time. Even according to prosecution he picked up the wooden log which was lying there and made the assault. That being the position we alter the conviction to Section 304 Part II IPC. Custodial sentence of 8 years would meet the ends of justice. The appeal is allowed to the aforesaid extent 9. We record our appreciation for the able manner in which Mr. Nirmal Chopra Amicus Curiae assisted the Court. Dr. ARIJIT PASAYAT ASOK KUMAR GANGULY New Delhi January 21 2009

Petition under Article 227 of the Constitution challenging the proceedings under Chapter IV of the DV Act would be maintainable: The High Court of Jammu & Kashmir and Ladakh

There is no bar in entertaining a petition under Article 227 of the Constitution even in orders passed by criminal courts. The condition laid down is that there must be manifest miscarriage of justice occasioned, and that power is not to be exercised to correct a mistake of fact and of law. The aforesaid has been followed by the High Court of Jammu & Kashmir and Ladakh while adjudicating the case of Bilal Ahmad Ganai & ors. v. Sweety Rashid & ors. [CM(M) No.142/2021] which was decoded upon by a single judge bench comprising Justice Ali Mohammad Magrey on 11th October 2021. The brief facts of the case are as follows. Petitioner no.1 and respondent no.1 were married in the year 2012. Respondents 2 and 3 were born out of the said wedlock. On account of some marital dispute between the couple and commencement of litigation between the two, according to the 2 petitioners, the wedlock was brought to an end by petitioner no.1 by executing Talaq-i-Rajaie and later on Talaq-i-Bayin. Respondents are residents of Wuyan, Tehsil Pampore, District Pulwama, yet they filed an application under Section 12 read with other provisions of the Protection of Women from Domestic Violence Act, 2005, (DV Act). The trial Magistrate after obtaining objections from the respondents and hearing the parties, passed order holding that as per the mandate of section 27 of the Act the court had no territorial jurisdiction to adjudicate upon the matter. The respondents filed an appeal against the aforesaid order of the trial Magistrate which was decided by the learned Additional Sessions Judge, Budgam who gave a decision without hearing the petitioners and this order has been challenged by the petitioners under the present appeal on the grounds of lack of territorial jurisdiction. The court perused the facts and arguments presented. It relied on several judgments including Radhey Shyam v Chhabi Nath, Dr. P. Pathmanathan v Tmt. V. Monica and Hari Singh Mann v Harbhajan Singh Bajwa. It was hence of the opinion that “The present petition, is not a petition for correction of a mistake of fact or of law; it is a petition for undoing the miscarriage of justice caused by the impugned order. So far as the order passed by the learned Additional Sessions Judge, Budgam, thereby the appellate court has only directed the trial Magistrate to decide afresh the complaint on the issue of territorial jurisdiction after inviting oral and documentary evidence from the parties to the complaint and after hearing both sides and pass appropriate orders and that till then all the interim reliefs passed by the trial court shall remain in operation. This Court does not see that the appellate court has committed any illegality in remanding the case to the trial Magistrate for the aforesaid purpose.”

HIGH COURT OF JAMMU & KASHMIR & LADAKH AT SRINAGAR CM(M) No.142 2021 CM No.6342 2021 Reserved on: 23.09.2021 Pronounced on: 11.10.2021 Bilal Ahmad Ganai & ors. Through: Mr. M. A. Qayoom Advocate Sweety Rashid & ors. v. Mr. Mohsin Qadri Sr. Advocate with Ms. Ahra Syed Advocate. Hon’ble Mr. Justice Ali Mohammad Magrey Judge The petitioners have filed this petition invoking the jurisdiction of the Court under Article 227 of the Constitution of India with the prayer to set aside the orders dated 29.04.2021 and 07.09.2021 passed by the learned Additional Sessions Judge Budgam. It is seen that by order dated 29.04.2021 the learned Additional Sessions Judge has decided the Criminal Appeal no.181 2021 titled Sweety Rashid & ors. v Bilal Ahmad Ganai & ors. filed under Section 29 of the Protection of Women from Domestic Violence Act 2005 and set aside the order dated 26.03.2021 passed by the learned Judicial Magistrate 1st ClassChadoora whereby the trial Magistrate had dismissed the complaint on the ground that it did not have the territorial jurisdiction to entertain the complaint. The order dated 07.09.2021 has been passed by the learned Additional Sessions Judge in Civ. Misc. App no.848 2021 moved before that court when the appeal had long before been decided and there was no lis pending before that court pertaining to the matter. Narration of the relevant background facts becomes imperative. Petitioner no.1 and respondent no.1 were married in the year 2012. Respondents 2 and 3 were born out of the said wedlock. On account of some marital dispute between the couple and commencement of litigation between the two according to the 2 petitioners the wedlock was brought to an end by petitioner no.1 by executing Talaq i Rajaie on 06.07.2020. According to the petitioner thereafter he tried to persuade respondent no.1 to mend her unbecoming behaviour but all his efforts proved futile so he pronounced Talaq i Bayin against respondent no.1 on 05.09.2020. Thereafter on 06.10.2020 petitioner no.1 is stated to have pronounced another talaq against respondent no.1 and declared that the marriage between the two shall stand dissolved and that there would be no relation between them as husband and wife. It is averred that though petitioner no.1 and respondents are residents of Wuyan Tehsil Pampore District Pulwama yet respondent no.1 with mala fide intention to cause harm inconvenience and discomfort to the petitioners filed an application under Section 12 read with other provisions of the Protection of Women from Domestic Violence Act 2005 before the court of Judicial Magistrate 1st ClassChadoora alongwith an application under Section 23 of the Act praying therein that petitioner no.1 be directed not to cause any act of domestic violence against her and also to direct him to pay the maintenance to the tune of Rs.40 000 per month. The trial Magistrate passed an ex parte order on 26.06.2020 directing petitioner no.1 to pay an interim maintenance of Rs.3 500 to each of the respondents 1 to 3 herein totalling to Rs.10 500 per month with further direction that respondents’ possession of the house shall not be disturbed and that there shall be no interference in their domestic relation with petitioner no.1. The trial Magistrate also directed SHO Women’s Wing Rambagh to act as Protection Officer and to submit compliance report. By a subsequent order passed on 27.06.2020 instead of SHO Women’s Wing Rambagh DO SHO Police Station Khrew was appointed as Protection Officer. The Protection officer so appointed is stated to have made a report to the Magistrate on 29.06.2020 stating therein that respondent no.1 was provided protection for residing in the old house but she wanted to reside in the new house where her mother in law Mst. Zoona petitioner no.2 was putting up alongwith her daughter who had recently given birth to a child. According to the petitioner the Protection Officer also reported to the court that since respondent no.1 had only recently used harsh and un parliamentary language against her mother in law in case she was allowed to live in the new house the situation on the spot would turn volatile. It was also reported 3 that the new house was the personal property of Mst. Zoona and that according to him no one was legally entitled to claim any interest therein. 5. It is averred that after the Protection Officer submitted its report to the trial Magistrate petitioner no.1 filed an application seeking dismissal of the complaint on the ground that the court lacked territorial jurisdiction to entertain the complaint as petitioner no.1 and respondents were living at village Wuyan Pampore which falls beyond the jurisdiction of the court. The trial Magistrate after obtaining objections from the respondents and hearing the parties passed order dated 26.03.2021 holding that as per the mandate of section 27 of the Act the court had no territorial jurisdiction to adjudicate upon the matter. The trial Magistrate accordingly dismissed the complaint for lack of jurisdiction and revoked all the interim orders passed in the interim application. The respondents filed an appeal against the aforesaid order of the trial Magistrate which was decided by the learned Additional Sessions Judge Budgam vide order dated 29.04.2021 whereby the appellate court set aside the trial Magistrate’s order and remanded the matter to the court of Judicial Magistrate 1st ClassChadcoora with a direction to decide the complaint on the issue of territorial jurisdiction after inviting oral and documentary evidence from the parties to the complaint and after hearing both sides afresh. The appellate court further ordered that till then all the interim reliefs passed by the trial court shall remain in operation. The parties were directed to cause their appearance before the trial court on 12.05.2021. It appears that thereafter on 07.09.2021 the respondents made an application before the learned Additional Sessions Judge on 07.09.2021 seeking execution of the order dated 26.06.2020 passed by the trial Magistrate in implementation of order dated 29.04.2021 passed by the appellate court in the appeal. The learned Additional Sessions Judge Budgam without issuing notice to the petitioners herein and without affording an opportunity of hearing to them on the very same date viz. 07.09.2021 passed an order making certain directions which are quoted hereunder: 4 “16. Therefore circumstances of the case this Court has come to rescue for the appellants in implementation and execution of interim relief order dated 26.06.2020 passed by ld Judicial Magistrate 1st Class Munisff Chadoora in application under Section 23 of the Act. The Child Development Protection officer Pampore is directed to restore the possession of residential matrimonial house to the appellants which is situated over land measuring 3 Kanals falling under survey no.3157 khewat no.877 and Khata no.855 situated at Wuyan Tehsil Pampore District Pulwama where the appellants were residing before their dispossession by the 17. Before parting with this order it is made clear that any observation made by this court hereinabove is only for the purpose of deciding the instant criminal misc. application and shall have no effect on the merits of the case. 18. The SHO police station Khrew is already under litigation with appellants before Hon’ble High Court of J&K and Ladakh in Writ Petition No.1080 2021 therefore the copy of this order shall be sent to Child Development Officer Pampore for its implementation in letter in spirit sic) and further directed Executive Magistrate 1st Class Pampore to render assistance to Protection Officer in execution of this order and for maintaining the peace and tranquillity on the spot. The Protection Officer is directed to submit the compliance report on or before next date which is fixed on 20th September of 2021. Let the application shall come up on next date which is fixed on 20th September 2021 for further orders.” As said at the start of this judgment the petitioners have challenged the above orders dated 29.04.2021 and 07.09.2021 the first having been passed by the learned Additional Sessions Judge Budgam in the appeal and the other one in an application made about 04 months and 22 days thereafter on the grounds taken in the petition. The respondents represented by Mr. Mohsin Qadri Sr. Advocate were on caveat. Mr. Qadri opted not to file any objections and instead to argue the case for final disposal. So the case was finally heard. 10. As regards the order dated 29.04.2021 passed in the appeal by the learned Additional Sessions Judge Budgam Mr. Qayoom submitted that the same is totally 5 erroneous as the trial court had come to a definite conclusion that the respondents were not living at Mochua Chadoora and that the appellate court over set the finding of the trial court on surmises and conjectures that a petition under the provisions of the DV Act can be filed in any court where the aggrieved person resides permanently or temporarily or caries on business or is employed that jurisdiction of court would not be there where an aggrieved person starts residing deliberately only for the purpose of filing a case under DV Act and that in the suit filed by respondent no.1 before the Principal District Judge Pulwama for declaration that she and petitioner no.1 are joint owners of the property she has shown her residence as Wuyan Pampore Pulwama Kashmir. So according to Mr. Qayoom the courts at Chadoora lacked territorial jurisdiction to entertain the complaint. So far as the order dated 07.09.2021 is concerned it was argued by Mr. Qayoom that once the appellate court passed the order dated 29.04.2021 allowing the appeal remanding the case to the trial Magistrate ordering that all the interim directions passed by the trial Magistrate shall remain in operation it ceased to have any jurisdiction over the matter thereafter and that if the respondents had any grievance they had to approach the trial Magistrate for implementation of order dated 26.06.2020. Mr. Qayoom submitted that even if the respondents had filed such application before the learned Additional Sessions Judge Budgam the court was obliged to return the same to them to be presented before the trial Magistrate for its disposal in accordance with law. Instead of doing so the Additional Sessions Judge Budgam proceeded to entertain the application for implementation of order dated 26.06.2020 and passed the impugned order dated 07.09.2021. Mr. Qayoom further submitted that the doctrine of merger would not be applicable in the instant case as the appeal had been filed against order dated 26.03.2021 passed by the trial Magistrate not against orders dated 26.06.2020 and 27.06.2020 which were in fact interim directions passed by the trial Magistrate in favour of the 11. On the other hand Mr. Qadri learned counsel for the respondents took an objection to the maintainability of the present petition under Article 227 of the Constitution saying that the DV Act is a criminal enactment and therefore if the petitioners herein are in any way aggrieved of any orders passed by the learned Additional Sessions Judge the same can be challenged only by invoking the 6 jurisdiction of the Court under Section 482 Cr. P. C. Mr. Qadri in this regard relied upon the judgment of the Supreme Court in Radhey Shyam v Chhabi Nath 2015 AIR SCW 1849. Mr. Qayoom on the other hand in this regard citing a judgment of the Madras High Court in Dr. P. Pathmanathan v Tmt. V. Monica Cr. OP Nos. 28458 etc. of 2019 decided on 18.01.2021 submitted that a petition under Article 227 of the Constitution against an order passed under the provisions of the DV Act was maintainable. He further submitted that even if the Court for any reason comes to the conclusion that this petition under Article 227 of the Constitution was not maintainable then the Court has the power to convert it and treat it as a petition under Section 482 Cr. P. C. In this connection the learned counsel cited and relied upon the judgement of the Supreme Court in M s Pepsi Food Ltd. v. Special Judicial Magistrate 1998 SC 128. To this course being adopted a feeble objection was sought to be raised that if the petition was ordered to be converted and treated as a petition under Section 482 Cr. P. C. then the petition would need to be sent back to the Registry to be listed before the Roaster Bench. I have given my thoughtful consideration to the submissions made at the Bar by the learned counsel for the parties and to the facts and circumstances of the So far as the maintainability of this petition under Article 227 is concerned in the judgment cited and relied upon by Mr. Qadri viz. Radhey Shyam v Chhabi Nath the Supreme Court has observed that under Article 227 of the Constitution orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned and that such power is not to be exercised to correct a mistake of fact and of law. So going by the very judgment cited and relied upon by Mr. Qadri there is no bar in entertaining a petition under Article 227 of the Constitution even in orders passed by criminal courts. The condition laid down is that there must be manifest miscarriage of justice occasioned and that power is not to be exercised to correct a mistake of fact and of law. Similarly in Dr. P. Pathmanathan v Tmt. V. Monica supra) cited by Mr. Qayoom the High Court of Madras has held that a petition under Article 227 of the Constitution challenging the proceedings under Chapter IV of the DV Act in an appropriate case would be maintainable. 14. In the instant case the learned Additional Sessions Judge decided the appeal by order dated 29.04.2021 with the following operative part thereof: “22. After bestowing my anxious consideration to the facts and circumstances of the case I am convinced that the learned Magistrate approached the whole matter from a wrong angle resulting in miscarriage of justice. Since the temporary residence being one of the incident of jurisdiction the controversy whether the residence of the appellants at Machwa was a temporary residence or not can be decided only after the evidence. This fact can be decided only on the basis of evidence. Therefore the trial court has passed impugned illegal order and has ignored the settled principle of law regulating jurisdiction under Section 27 of the Act. The impugned order is accordingly set aside and the case is remanded back to the court of Judicial Magistrate 1st Class Sub Judge Chadoora with a direction to decide the complaint on the inviting oral and documentary evidence from the parties of the complaint and after hearing both sides afresh and thereafter pass appropriate orders as the situation demands till then all the interim reliefs passed by the trial court shall remain in operation. The complaint be decided expeditiously most preferably within a period of two months from the date of receipt of this order. The parties of the present appeal are directed to cause their physical appearance before the trial court on 12th May 2021.” issue of territorial jurisdiction after It was long thereafter on 07.09.2021 that the respondents herein filed an application before the Additional Sessions Judge purportedly as mentioned in the first para at page 3 of the impugned order dated 07.09.2021 for executing the interim order dated 26.06.2020 passed under Section 23 of the DV Act by the learned Judicial Magistrate in view of order dated 29.04.2021 passed by the appellate court in the appeal under Section 29 of the said Act on the principle of merger. There are two striking factors axiomatically manifest that by order dated 29.04.2021 the appellate court had directed the trial Magistrate to decide the complaint on the issue of territorial jurisdiction after inviting oral and documentary evidence from the parties and thereafter pass appropriate orders as the situation would demand. Till then the interim directions dated 26.06.2020 read with order dated 27.06.2020 were to remain in operation. 16. Obviously the purpose of restoring the operation of all the interim orders passed by the learned trial Magistrate was to continue the status quo ante as it obtained on the date of dismissal of the complaint by the trial Magistrate on the 8 ground that it lacked territorial jurisdiction. Once the learned Additional Sessions Judge finally decided the appeal and directed the trial Magistrate to hear and decide the complaint on the issue of territorial jurisdiction after inviting oral and documentary evidence from the parties of the complaint and after hearing both sides afresh and thereafter pass appropriate orders as the situation would demand the appellate court became functus officio. Law in this regard is settled. Reference in this connection may be made to the decision of the Supreme Court in Hari Singh Mann v Harbhajan Singh Bajwa 1 SCC 169. In that case the High Court of Punjab and Haryana had decided a petition under Section 482 Cr. P. C. by order dated 07.01.1999. Thereafter the very same petitioner had filed a criminal miscellaneous application which was disposed of by the same learned Single Judge apparently without notice to the appellant before the Supreme Court or any other respondent in that petition with certain directions. The Supreme Court in para 8 of the judgment observed and held as under: “8. We have noted with disgust that the impugned orders were passed completely ignoring the basic principles of criminal law. No review of an order is contemplated under the Code of Criminal Procedure. After the disposal of the main petition on 7.1.1999 there was no lis pending in the High Court wherein the respondent could have field any miscellaneous petition. The filing of a miscellaneous petition not referable to any provision of the Code of Criminal Procedure or the rules of the court cannot be resorted to as a substitute of fresh litigation. The record of the proceedings produced before us shows that directions in the case filed by the respondents were issued apparently without notice to any of the respondents in the petition. Merely because Respondent 1 was an Advocate did not justify the issuance of directions at his request without notice of the other side. The impugned orders dated 30 4 1999 and 21 7 1999 could not have been passed by the High Court under its inherent power under Section 482 of the Code of Criminal Procedure. The practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted not referable to any statutory provision and in substance the abuse of the process of the court.” In the instant case also the learned Additional Sessions Judge Budgam has entertained the miscellaneous application long after disposal of the main appeal when there was no lis concerning the matter pending before it. Not only that the 9 impugned order has been passed without notice to the petitioners herein. What is curious the learned Additional Sessions Judge in its order has said that the appellants have rightly approached to the court for the execution of order dated 26.06.2020 passed by the trial Magistrate and then has proceeded to grant an interim relief to the respondents much beyond what had been ordered by the trial Magistrate. Under the garb of the doctrine of merger the learned Additional Sessions Judge has converted itself into an executing court for the orders passed by the trial Magistrate. This course is neither permissible under law nor referable to any provision of the Code or the DW Act. At least neither any provision of law permitting such a course is mentioned in the impugned order nor brought to the notice of this Court. The impugned order therefore is totally without jurisdiction. Thus having regard to the fact that the impugned order has been passed without jurisdiction and without notice to the petitioners and consequently without hearing them it has occasioned a manifest miscarriage of justice. The present petition therefore is not a petition for correction of a mistake of fact or of law it is a petition for undoing the miscarriage of justice caused by the impugned order. So on the principle of the law laid down by the Supreme Court in Radhey Shyam v Chhabi Nathcited at the Bar and relied upon by Mr. Qadri this petition under Article 227 of the Constitution is held to be maintainable. 17. Now that this Court has found that the learned Additional Sessions Judge has passed the impugned order dated 07.09.2021 without notice and without jurisdiction it cannot stand the test of law. So far as the order dated 29.04.2021 passed by the learned Additional Sessions Judge Budgam in the appeal is concerned thereby the appellate court has only directed the trial Magistrate to decide afresh the complaint on the issue of territorial jurisdiction after inviting oral and documentary evidence from the parties to the complaint and after hearing both sides and thereafter pass appropriate orders as the situation would demand and that till then all the interim reliefs passed by the trial court shall remain in operation. This Court does not see that the appellate court has committed any illegality in remanding the case to the trial Magistrate for the aforesaid purpose. 10 For the aforesaid reasons this petition is partly allowed. The impugned order dated 07.09.2021 passed by the learned Additional Sessions Judge Budgam in Cr. Misc App no.848 2021 is set aside. Parties are directed to appear before the trial Magistrate on the date as may have been fixed there in the complaint. However the trial Magistrate is directed to hear and decide the complaint with some speed preferably within next three months. 20. This also disposes of CM 6342. Ali Mohammad Magrey) Judge Syed Ayaz Hussain Secy whether approved for reporting Yes No whether the judgment is speaking Yes No.

Hearing by one Authority and passing orders by another Authority is impermissible: Telangana High Court

Facts would reveal that one Commissioner of GHMC had conducted a hearing and on his transfer, his successor had passed the impugned order. Hearing by one Authority and deciding the matter or passing the order by another authority is impermissible. Such an observation was made by the Hon’ble Telangana High Court before Hon’ble Justice K. LAKSHMAN in the matter of  Sri Mohammed Jahangir & Anr vs The Greater Hyderabad Municipal Corporation [WRIT PETITION No.2879 OF 2020] The fact of the case was that Petitioner No.1 claims that he is the absolute owner and possessor of Plot No.226 and Plot No.227 under a registered sale deed dated 16.05.2016 and has obtained LRS proceedings dated 27.03.2017 and building permit dated 05.10.2017. Whereas it was the contention of the respondent that the reserved public utility area space as per the Gram Panchayath Layout was converted into plots by encroaching the layout open space, designing the false plot numbers, and executing the sale deeds. Based on the said sale deeds, the petitioners have also obtained a building permit by suppressing and misrepresenting the facts. Respondent No.1 had conducted a hearing and on examination of the explanations and documents, canceled the above-said proceedings. Feeling aggrieved by the same, the petitioners herein have filed a writ petition, and this Court disposed of the said writ petition vide order dated 25.01.2019 holding that the impugned order is a cryptic order and ordered a fresh hearing of the matter. The Commissioner heard the petitioner and was transferred and his successor pronounced the order by which he canceled both LRS proceedings dated 27.03.2017 and the building permit dated 05:10.2017. Aggrieved by such an order this present appeal is preferred by the petitioners.  The Hon’ble High Court referred to the case of Gullapalli Nageswara Rao. V. Andhra Pradesh State Road Transport Corporation AIR 1959 SC 308 & G. Laxmi v. Sri Somesh Kumar, IAS Common Order dated 24.01.2020 in C.C. Nos.815 & 822 of 2019 in which it was held that hearing by one Authority and deciding the matter or passing the order by another authority is impermissible. Finally, the Hon’ble High Court allowed the instant appeal in view of the above cases without going into the merits of the case and remanded the matter back to GHMC with a direction to pass orders afresh by putting the petitioners and respondent No.5 on notice and by affording them an opportunity of hearing. Furthermore, a direction was also given to the petitioner not to proceed with construction pursuant to the building permit dated 05.10.2017 till the passing of orders by respondent No.1 as indicated above.  Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The fact of the case was that Petitioner No.1 claims that he is the absolute owner and possessor of Plot No.226 and Plot No.227 under a registered sale deed dated 16.05.2016 and has obtained LRS proceedings dated 27.03.2017 and building permit dated 05.10.2017. Whereas it was the contention of the respondent that the reserved public utility area space as per the Gram Panchayath Layout was converted into plots by encroaching the layout open space, designing the false plot numbers, and executing the sale deeds. Based on the said sale deeds, the petitioners have also obtained a building permit by suppressing and misrepresenting the facts. Respondent No.1 had conducted a hearing and on examination of the explanations and documents, canceled the above-said proceedings. Feeling aggrieved by the same, the petitioners herein have filed a writ petition, and this Court disposed of the said writ petition vide order dated 25.01.2019 holding that the impugned order is a cryptic order and ordered a fresh hearing of the matter. The Commissioner heard the petitioner and was transferred and his successor pronounced the order by which he canceled both LRS proceedings dated 27.03.2017 and the building permit dated 05:10.2017. Aggrieved by such an order this present appeal is preferred by the petitioners.  The Hon’ble High Court referred to the case of Gullapalli Nageswara Rao. V. Andhra Pradesh State Road Transport Corporation AIR 1959 SC 308 & G. Laxmi v. Sri Somesh Kumar, IAS Common Order dated 24.01.2020 in C.C. Nos.815 & 822 of 2019 in which it was held that hearing by one Authority and deciding the matter or passing the order by another authority is impermissible. Finally, the Hon’ble High Court allowed the instant appeal in view of the above cases without going into the merits of the case and remanded the matter back to GHMC with a direction to pass orders afresh by putting the petitioners and respondent No.5 on notice and by affording them an opportunity of hearing. Furthermore, a direction was also given to the petitioner not to proceed with construction pursuant to the building permit dated 05.10.2017 till the passing of orders by respondent No.1 as indicated above.  Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble High Court referred to the case of Gullapalli Nageswara Rao. V. Andhra Pradesh State Road Transport Corporation AIR 1959 SC 308 & G. Laxmi v. Sri Somesh Kumar, IAS Common Order dated 24.01.2020 in C.C. Nos.815 & 822 of 2019 in which it was held that hearing by one Authority and deciding the matter or passing the order by another authority is impermissible. Finally, the Hon’ble High Court allowed the instant appeal in view of the above cases without going into the merits of the case and remanded the matter back to GHMC with a direction to pass orders afresh by putting the petitioners and respondent No.5 on notice and by affording them an opportunity of hearing. Furthermore, a direction was also given to the petitioner not to proceed with construction pursuant to the building permit dated 05.10.2017 till the passing of orders by respondent No.1 as indicated above.  Click Here To Read The Judgment Judgment Reviewed by: Rohan Kumar Thakur Finally, the Hon’ble High Court allowed the instant appeal in view of the above cases without going into the merits of the case and remanded the matter back to GHMC with a direction to pass orders afresh by putting the petitioners and respondent No.5 on notice and by affording them an opportunity of hearing. Furthermore, a direction was also given to the petitioner not to proceed with construction pursuant to the building permit dated 05.10.2017 till the passing of orders by respondent No.1 as indicated above. 

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT: HYDERABAD CORAM: THE HON’BLE SRI JUSTICE K. LAKSHMAN WRIT PETITION No.2879 OF 2020 Delivered on: 25 11 2021 Sri Mohammed Jahangir & another .. Petitioners The Greater Hyderabad Municipal CorporationRep.by its Commissioner Hyderabad & others .. Respondents For Petitioners Lr. Counsel rep. Mr.Nikhil Khadkikar Mr. Katika Ravinder Reddy Mr. Sampath Prabhakar Reddy Lr. Standing Counsel for GHMC Lr. Govt. Pleader for MA & UD Mr. Srinivas Chitturu. For Respondent Nos.1 to 3 For Respondent No.4 For Respondent No.5 Gist Head Note Cases Referred 1. AIR 1959 SC 308 2. Common Order dated 24.01.2020 in C.C. Nos.815 & 8219. KL J W.P.No.28720 HON’BLE SRI JUSTICE K. LAKSHMAN WRIT PETITION No.2879 OF 2020 ORDER: Heard Mr. Katika Ravinder Reddy learned counsel representing Mr. Nikhil Khadkikar learned counsel for the petitioners learned Government Pleader for MA & UD appearing on behalf of respondent No.4 Nr. Sampath Prabhakar Reddy leamed Standing Counsel for GHMC appearing on behalf of respondent Nos. I to 3 and Mr. Srinivas Chitturu learned counsel for respondent No.5. 2. This Writ Petition is filed to quash the proceedings dated 23.12.2019 cancelling the LRS and Building Permit of the petitioners and to direct the official respondents not to interfere with the construction of petitioners on Plot Nos.226 and 227 admeasuring 335 square yards in Survey No.179 of Maruthi Nagar Saheb Nagar Kalan Ranga Reddy District as per the building permit dated 05.10.2017. 3. Petitioner No.1 claims that he is the absolute owner and possessor of Plot No.226 and Plot No.227 admeasuring 35 and 110 square yards respectively making a total extent of 145 square yards in Survey No.179 situated at Sahebnagar Kalan Revenue Village under Ward No.5 Block No.2 of L.B. Nagar Circle No.3 of GHMC Hayath Nagar Revenue Mandal Ranga Reddy District under a registered sale deed bearing document No.115916 dated 16.05.2016. Petitioner No.2 is the absolute owner of Plot No.227admeasuring 190 square yards in the very same survey number under a registered sale deed bearing document No.116016 dated 15.05.2016. Thereafter they have obtained LRS proceedings dated 27.03.2017 and building permit dated 05.10.2017. 4. Respondent No.5 association has filed a Public Interest Litigation vide W.P. No.191 of 2018 complaining that the reserved public utility area space as per the Gram Panchayath Layout was converted into plots by encroaching the layout open space designed the false plot numbers and executed the sale deeds. Basing on the said sale deeds the petitioners have also obtained building permit by suppressing and misrepresenting the facts. 5. In view of the above the GHMC Authorities have issued a show cause notice dated 04.08.2018 under Section 450 of the GHMC Act 1955 to the petitioners as to why the building permit and the LRs proceedings cannot be revoked on the ground of suppression and misrepresentation of facts. Accordingly the petitioners have submitted their explanations dated 06.08.2018 and 09.08.2018. They have also requested for personal hearing. 6. Respondent No.1 had conducted hearing and on examination of the explanations and documents cancelled the above said proceedings. Feeling aggrieved by the same the petitioners herein have filed a writ petition vide W.P. No.12419 and this Court disposed of the said writ petition vide order dated 25.01.2019 holding that the impugned KL J W.P.No.28720 order is a cryptic order. Paragraph Nos.1 and 2 relate to previous history in brief particularly the direction of this Court in PIL No.191 of 2018. The allegation against the petitioners is that they had constructed the house in the area earmarked as open space. Further there is no reference with regard to the explanation submitted by the petitioners. The order impugned does not inspire confidence that respondent No.1 therein had dealt with the matter in accordance with law. Therefore by reproducing the relevant portion of the impugned order this Court set aside the impugned order therein remanded the matter back to respondent No.1 with a direction to pass appropriate reasoned order in accordance with law after affording opportunity of hearing to the petitioners: 7. Thereafter in compliance of the said order dated 25.01.2019 in W.P. No.1248 of 2019 respondent No.1 had conducted hearing and passed the orders dated 23 24.12.2019 cancelling both LRS proceedings dated 27.03.2017 and the building permit dated 05:10.2017 issued in favour of the petitioners herein. Challenging the same the petitioners filed the present writ petition raising various grounds including the ground that the Commissioner of GHMC conducted hearing and on his transfer his successor has passed the impugned order. Hearing by one Authority and passing orders by another Authority is impermissible. The petitioners herein have also raised several other grounds. 8. With the above said contentions the learned counsel for the petitioners sought to set aside the impugned order. KL J W.P.No.28720 9. In the impugned order dated 23 24.12.2019 passed by respondent No.1 there is specific mention about filing of PIL No.191 of 2018 issuance of show cause notice submission of explanations and passing of orders by this Court in W.P. No.1248 of 2019. It is also mentioned that in compliance of the said order respondent No.1 has proposed hearing on 16.03.2019 and subsequently the same was postponed to 20 04.2019. During the course of hearing the then Commissioner heard the petitioners and examined the explanations submitted by them and scrutinized their case. Another hearing was conducted on 15.06.2019 with due intimation to the petitioners and also instructed them to call the Colony Association to attend the hearing with their claims and objections. 10. In the impugned order it is also further mentioned that hearing was conducted in the Chamber of the then Commissioner GHMC on 15.06.2019 and during the course of hearing the then Commissioner has considered the explanations and the documents submitted by the parties and in the said documents it is clearly mentioned as Temple& Park towards eastern side. Hence the decision taken by Commissioner vide proceedings dated 29.12.2018 holds good and once again it is informed the petitioners that the LRS proceedings dated 27.03.2017 and the building permit dated 05.10.2017 were cancelled. 11. The above said facts would reveal that one Commissioner of GHMC had conducted hearing and on his transfer his successor had passed the impugned order. Hearing by one Authority and deciding the KL J W.P.No.28720 matter or passing the order by another authority is impermissible. The said principle has also held by the Hon ble Supreme Court in Gullapalli Nageswara Rao. V. Andhra Pradesh State Road Transport Corporation1 and this Court in G. Laxmi v. Sri Somesh Kumar IAS2. 12. In view of the above said principle and the discussion the impugned order dated 23 24.12.2019 is set aside on the said ground itself without going into merits and demerits of the case and also the rival contentions of the parties. The matter is remanded back to respondent No.1 with a direction to pass orders afresh by putting the petitioners and respondent No.5 on notice and by affording them an opportunity of hearing. Respondent No.1 shall complete the said exercise within one 01) month from the date of receipt of a copy of this order and communicate the said order to the petitioners and respondent No.5. However it is contended by the GHMC and respondent No.5 that in the sale deeds dated 12.08.1982 there is specific mention about the temple and park towards eastern side. In view of the same the petitioners are directed not to proceed with construction pursuant to the building permit dated 05.10.2017 till passing of orders by respondent No.1 as indicated 13. The present writ petition is accordingly disposed of. The interim order granted by this Court and extended the same from time to 1. AIR 1959 SC 308 2. Common Order dated 24.01.2020 in C.C. Nos.815 & 8219 time stands vacated. In the circumstances of the case there shall be no KL J W.P.No.28720 As a sequel the miscellaneous petitions if any pending in the writ K. LAKSHMAN J order as to costs. petition shall stand closed. 25th November 2021 Note: L.R.copy to be marked. B O.) Mgr

The proceedings before a Claims Tribunal are in the nature of an enquiry and the standard of proof is of a lesser degree than in proceedings of civil nature: High Court of J&K and Ladakh

Merely because the Claims Tribunal while deciding the claim petition has come to the conclusion that there has been a lack of care on the part of the petitioner does not lead to a conclusion that the petitioner was solely responsible for the accident. A fact in a proceeding before the Claims Tribunal has to be proved on the basis of fair evidence, not even on the basis of preponderance of probabilities as held by the Hon’ble High Court of J&K and Ladakh through the learned bench of Justice Sanjay Dhar In the case of Ali Mohammad Mir Vs State Of J&K & Ors. [OWP No.1232/2017] The facts emerging from the pleadings are that the petitioner, who is employed as a driver in J&K Police, was driving a police bus. On reaching near Kathi Darwaza, Srinagar, a mine blast took place due to which petitioner lost control over the vehicle and a pedestrian was run over by the vehicle resulting in her death on spot. A claim petition was filed before Motor Accident Claims Tribunal, Srinagar, seeking compensation on account of the death of the deceased. The Tribunal after the trial of the case came to the conclusion that the petitioner was driving the offending bus in a rash and negligent manner without any police escort. Accordingly, the Tribunal, finding the respondents in the claim petition vicariously liable for the acts of the petitioner, awarded a sum of Rs.6,45,928/ along with interest @6% per annum in favor of the claimants and against the respondents therein. It is this part of the order and the communication issued consequent to the aforesaid order that was under challenge before this High Court in this writ petition. It has been contended by the petitioner that the impugned order has been passed without observing the principles of natural justice, inasmuch as the petitioner has not been afforded an opportunity of being heard. It is further contended that the impugned order has been passed without taking note of the fact that the accident was caused not because of the negligence of the petitioner but because of the mine blast and that there was no material on record to even remotely suggest that the petitioner was responsible for the accident. After hearing the learned counsels, the Hon’ble High Court opined that it cannot even remotely be suggested that the petitioner was responsible for the accident or that he was negligent to such a degree as would amount to any dereliction of duty on his part. In conclusion, the court stated that “Merely because the Claims Tribunal has awarded compensation against the respondents herein does not lead to a conclusion that the petitioner has been negligent to an extent that he has to be held responsible for payment of compensation to the claimants. Victims of a motor accident and their dependents are entitled to compensation even in a case where they have suffered injuries/death on account of use of a motor vehicle. The element of negligence is not necessarily to be proved for entitling a claimant to compensation. Thus, merely because the Tribunal has awarded compensation in favour of the claimants does not mean that driver of the offending vehicle has to reimburse the same to his owner, particularly when no such direction has been passed by the Tribunal against the petitioner.”

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on:29.09.2021 Pronounced on: 11.10.2021 ALI MOHAMMAD MIR Through: Mr. Shabir Ahmad Dar Advocate. OWP No.1232 2017 STATE OF J&K & ORS. Through: Mr. B. A. Dar Sr. AAG. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE Petitioner has challenged Government Order No.194 of 2017 dated 10.03.2017 as also communication No.Lgl claim petition 2017 1896 97 dated 24.04.2017 to the extent the same directs recovery of the amount of compensation awarded by Motor Accident Claims Tribunal Srinagar in favour of claimants in the case titled Mohammad Yaseen Anchari & ors. vs. Director General of Police and others from the petitioner. The facts emerging from the pleadings are that on 12.09.2009 petitioner who is employed as a driver in J&K Police was driving a police bus bearing registration No.JK13 3452 in which a police party of District Police Lines Srinagar was proceeding from Central Jail 2 OWP No.1232 2017 Srinagar after lodging the prisoners over there. On reaching near Kathi Darwaza Srinagar a mine blast took place due to which petitioner lost control over the vehicle and a pedestrian namely Mst. Khatija was run over by the vehicle resulting in her death on spot. The legal heirs and dependents of the deceased Khatija filed a claim petition before Motor Accident Claims Tribunal Srinagar seeking compensation on account of death of the deceased. The claim petition was filed against the Government of Jammu and Kashmir through its Home Secretary and Director General of Police being the owners of the offending vehicle. The Tribunal after trial of the case came to the conclusion that on the fateful day the petitioner was driving the bus in question when a mine blast took place at the place of occurrence as a result of which the petitioner lost control over the bus and the deceased was knocked down by the bus resulting in her death. The Tribunal further came to the conclusion that the petitioner was driving the offending bus in a rash and negligent manner without any police escort. Accordingly the Tribunal finding the respondents in the claim petition vicariously liable for the acts of petitioner awarded a sum of Rs.6 45 928 along with interest @6% per annum in favour of the claimants and against the respondents therein. It seems that while according sanction to the drawl of amount of Rs.7 91000 for satisfying the claim as awarded in favour of claimants the respondent No.1 herein vide its order No.194 of 2017 dated 3 OWP No.1232 2017 10.03.2017 laid down a condition that the amount shall be recovered from the erring driver of the vehicle the petitioner herein. It is this part of the order and the communication issued consequent to the aforesaid order that are under challenge before this Court in this writ petition. It has been contended by the petitioner that the impugned order has been passed without observing the principles of natural justice inasmuch as the petitioner has not been afforded any opportunity of being heard. It is further contended that the impugned order has been passed without considering any other material on record and without taking note of the fact that the accident was caused not because of the negligence of the petitioner but because of the mine blast and that there was no material on record to even remotely suggest that the petitioner was responsible for the accident. The respondents have contested the petition by filing a reply thereto. In the reply it has been contended that the writ petition is not maintainable as disputed questions of fact have arisen in this case. It has been admitted by respondents that they have issued communication pursuant to the impugned Government Order but no recovery has been initiated against the petitioner in view of the stay order passed by this Court. The respondents have in their reply admitted the cause of accident as projected by the petitioner in the petition. I have heard learned counsel for the parties and perused the record of the case. 4 OWP No.1232 2017 It is not in dispute that the petitioner at the time of the accident was driving the vehicle which suffered the accident. It is also not in dispute that the live and proximate cause of the accident leading to death of the deceased was the mine blast which took place near the place of occurrence. This fact has been clearly admitted by the respondents in para of their reply. Even the fact relating to mine blast finds a mention in the FIR bearing No.73 2009 of Police Station Rainawari which has been registered in respect of the incident. Claims Tribunal while deciding issue No.1 which related to the occurrence has also come to the conclusion that the accident had taken place due to mine blast as a result of which petitioner lost control over the vehicle and the deceased got knocked down by the vehicle in question. In the face of this material it cannot even remotely be suggested that the petitioner was responsible for the accident or that he was negligent to such a degree as would amount to any dereliction of duty on his part. 10) Merely because the Claims Tribunal while deciding claim petition has come to the conclusion that there has been lack of care on the part of petitioner does not lead to a conclusion that the petitioner was solely responsible for the accident. It is a settled law that the proceedings before a Claims Tribunal are in the nature of an enquiry and the standard of proof is of a lesser degree than even in proceedings of civil nature. A fact in a proceeding before the Claims Tribunal has to be proved on the basis of fair evidence not even on the basis of preponderance of probabilities. 5 OWP No.1232 2017 11) Apart from the above merely because the Claims Tribunal has awarded compensation against the respondents herein does not lead to a conclusion that the petitioner has been negligent to an extent that he has to be held responsible for payment of compensation to the claimants. Victims of a motor accident and their dependents are entitled to compensation even in a case where they have suffered injuries death on account of use of a motor vehicle. The element of negligence is not necessarily to be proved for entitling a claimant to compensation. Thus merely because the Tribunal has awarded compensation in favour of the claimants does not mean that driver of the offending vehicle has to reimburse the same to his owner particularly when no such direction has been passed by the Tribunal against the petitioner. 12) Petitioner is right in contending that the Government while providing for recovery of the awarded sum from him has not observed the principles of natural justice. There is nothing on record and not even an averment in the reply filed by the respondents to suggest that any enquiry was held by the respondents before incorporating the impugned condition in the Government Order. The petitioner was not even a party to the proceedings before the Claims Tribunal. 13) Rule 346 of J&K Police Rules provide that recovery from pay of the whole or part of any pecuniary loss cause to Government by the negligence or breach of order has to be made after responsibility for the loss of Government property etc. is established on enquiry. It further 6 OWP No.1232 2017 provides that extent of recovery has to be determined according to the circumstances of the case. In the instant case admittedly no enquiry has been conducted with regard to alleged negligence on the part of the petitioner before incorporating the condition with regard to recovery of compensation amount from the petitioner. Thus respondents have observed the principles of natural justice as well as provisions of Rule 346 of the J&K Police Rules in breach in this case. The impugned condition therefore is not sustainable in law. 15) For the foregoing reasons the writ petition is allowed and the impugned Government Order No.1917 dated 10.03.2017 to the extent it directs recovery of amount of compensation from the petitioner is quashed. Judge Whether the order is speaking: Yes No Whether the order is reportable: Yes No “Bhat Altaf PS”

When a process of examination is challenged, it is proper on the part of the Courts to leave the matters to the experts – Orissa High Court

In the cases where the Court finds that experts were consulted for an issue with respect to any examination and that the experts after having applied their mind and knowledge has come to a decision then Court should not interfere with such decision except in the case where the decision made by the experts is found to be of a malafide nature. A Divisional Bench of Justice S.K. Mishra and Justice Savitri Ratho in the case of Kedar Sahukar V. Secretary, Board of Secondary Education, Odisha, Cuttack & Ors [W.A. No.247 OF 2021] which was filed along with various other appeals decided that in a case where an examination process or result is challenged, the Court cannot order for re-evaluation or interfere with the matter if the examination conducting authority has taken appropriate measure and honest opinion of experts. In the discussed case, the petitioner filed a petition challenging the Odisha Secondary School Teachers Eligibility Test (hereinafter referred to as “the OSSTET” for brevity) Examination, 2019. There were around 69 candidates who filed the petition against the same. The petitioners averted that the answer key uploaded by the Board was wrong and that the petitioner should be given more marks and they should be held pass in the mentioned examination. However, it was found that the Board asserted, that after the submission of Answer Key, the Board also opened a portal to receive any objections to the answer key by the candidates, in total 363 objections were filed by various candidates and after the consultation of experts from the field of education, only 8 objections were accepted. The Court, thus, relying upon the decision of Ran Vijay Singh and Others wherein the Hon’ble Supreme Court held that “sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse – exclude the suspect or offending question”.

W.A. No.247 OF 2021 C O R A M: SHRI JUSTICE S. K. MISHRA MISS JUSTICE SAVITRI RATHO AND W.A. Nos. 247 246 254 255 257 258 259 264 265 266 and 2921 Appellant. W.A. No.2421 Kedar Sahukar Versus Secretary Board of Secondary Education Odisha Cuttack Ors. W.A. No.2421 Reena Giri Versus Secretary Board of Secondary Education Odisha Cuttack Ors. Respondents. Mr. Budhadev Routray For Appellant Sr. Adv. Mr. S. Routray B.R. Pattanayak J. Biswal A.K. Das and M. Panda. For Respondents : Mr. S.S. Rao Sr. Adv. Respondents. For Appellant For Respondents : Mr. S.S. Rao Sr. Adv. Mr. Budhadev Routray Sr. Adv. Mr. S. Routray B.R. Pattanayak J. Biswal A.K. Das and M. Panda. Appellant. Appellant. Respondents. For Appellant For Respondents : Mr. S.S. Rao Sr. Adv. Mr. Subhadutta Routray J. Biswal M. Panda B.R. Pattanayak S.Sekhar and S. Routray. Appellant. Respondents. For Appellant For Respondents : Mr. S.S. Rao Sr. Adv. Mr. S.P. Nath S.S. Routray J. Biswal M. Panda B.R. Pattanayak S. Sekhar and A.R.Das. W.A. No.2521 Chandrakanta Behera Versus Secretary Board of Secondary Education Odisha Cuttack Ors. W.A. No.2521 Manasmini Das Versus Secretary Board of Secondary Education Odisha Cuttack Ors. W.A. No.2521 Jyoti Ranjan Balabantaray Versus Secretary Board of Secondary Education Odisha Cuttack Ors. For Appellant Appellant. Respondents. Mr. S.P. Nath B.R. Pattanayak S. Sekhar A.K. Das S. Routray For Respondents : Mr. S.S. Rao Sr. Adv. S.S. Routray J. Biswal and M. Panda. W.A. No.2521 Appellant. Respondents. For Appellant For Respondents : Mr. S.S. Rao Sr. Adv. Mr. Subhadutta Routray J. Biswal M. Panda B.R. Pattanayak S. Sekhar and A.K. Das. Appellant. Respondents. For Appellant For Respondents : Mr. S.S. Rao Sr. Adv. Mr. Subhadutta Routray S. Routray J. Biswal M. Panda B.R. Pattanayak S. Sekhar and A.K. Das. Ratikanta Panda Versus Secretary Board of Secondary Education Odisha Cuttack Ors. W.A. No.2521 Suchismita Nayak Versus Secretary Board of Secondary Education Odisha Cuttack Ors. W.A. No.2621 Sarita Nanda Versus Secretary Board of Secondary Education Odisha Cuttack Ors. Appellant. Respondents. W.A. No.2621 For Appellant For Respondents : Mr. S.S. Rao Sr. Adv. Mr. Subhadutta Routray B.R. Pattanayak S. Sekhar A.K. Das and J. Biswal. Appellant. Respondents. For Appellant For Respondents : Mr. S.S. Rao Sr. Adv. Mr. S. P. Nath S. Routray B.R. Pattanayak S. Sekhar A.K. Das and J. Biswal. Appellant. Respondents. For Appellant For Respondents : Mr. S.S. Rao Sr. Adv. Mr. S. P. Nath B.R. Pattanayak S. Sekhar A.K. Das S. Routray and J. Biswal. Anita Panda Versus Secretary Board of Secondary Education Odisha Cuttack Ors. W.A. No.2621 Bibhudhendra Pratap Hati Versus Secretary Board of Secondary Education Odisha Cuttack Ors. W.A. No.2921 Topha Tripathy Versus Secretary Board of Secondary Education Odisha Cuttack Ors. Appellant. Respondents. For Appellant For Respondents : Mr. S.S. Rao Sr. Adv. Mr. Jagadish Biswal and S.S. Routray. O R D E R 03. 23.04.2021 11.06.2021 These matters are taken up through Video Conferencing mode. 02. Heard Mr. B. Routray learned Senior Advocate appearing for all the Appellants and Mr. S.S. Rao learned Senior Advocate appearing for all the Respondents in all the bunch of writ appeals. 03. These bunch of appeals have been preferred by the unsuccessful Petitioners in a bunch of writ petitions disposed of by the learned Single Judge vide the common judgment passed on 04.02.2021 rejecting their prayer to correct the marks awarded in their favour and to award marks properly and further to declare them as pass candidates in the Odisha Secondary School Teachers Eligibility TestExamination 2019. They also prayed for a direction to the Opposite Parties more particularly Party No.2 Controller Examination Odisha Bhubaneswar District Khurda to award more marks and grace marks to declare them as pass candidates in OSSTET Examination 2019. 04. Appellants Petitioners claimed that they appeared in the OSSTET Examination 2019 and as per their performance they should have been awarded the pass marks. Their specific grievance is that the answers key published by the Board of Secondary Education Odisha Cuttackwas wrong in certain questions which needs to be corrected and grace marks should be given to them. Specific instances have been cited by different Petitioners being candidates the aforesaid examination. 05. The Respondents Opposite Parties filed counter affidavit in the lead case i.e. in W.P.(C) No.20691 of 2020 against which W.A. No.2621 has been preferred wherein they submitted inter alia that the Court cannot be called upon to assess the correctness of the answers given to the questions nor can recall upon to compare and decide which of the answer is correct and the scope of jurisdiction cannot be extended to such prayers of the Petitioners. The Respondents Opposite Parties further pleaded that no challenge should be allowed to be made to the correctness of the award of marks as the Board has offered an effective alternative remedy to each of the candidates. It has also been submitted that the Board soon after the examinations published a scoring key enabling the candidates to challenge in the event of any objection to the proposed answers to the questions. Upon publication of the Notification several candidates have raised their objections to different suggestive answers published in the scoring key. All the challenges along with the materials supplied by the candidates have been placed before the experts of the relevant subjects and the experts have analyzed the objections and gave their views indicating if the answer as suggested in the scoring key is correct or not. In the cases where the challenge received is accepted they have also suggested so. Upon receiving the reports from the experts in all the subjects in which objections were received the Board finalized the answer keys and published the result in accordance with the same. Thus several questions which have been raised in the different writ petitions were already placed before the exports and were tested before publication of the results. The Board has taken all steps to ensure proper award of marks. It was further pleaded that as per the Scheme the answers given by the Petitioners to each questions cannot be judged like that of answers given by the students appearing for regular courses. Rather the Petitioners therein were required to be found fit to be a teacher and therefore the answer given must be perfectly correct. It was also pleaded that the challenge to the evaluation of the answer papers cannot be called in question in the writ jurisdiction of the High Court. Even if some difference arises with regard to the answers by two different authors the answer that has been chosen by the examiner unambiguously correct is to be accepted as the examiner considering relevance and correctness of the answer accepts one. Since there is no provision for revaluation of the answer books in the relevant Rules or Regulations the examinees have no right to claim or demand revaluation. 06. In order to substantiate their case the Board relied upon the reported cases of the Hon’ble Supreme Court passed in the cases of Maharashtra State Board of Secondary and Higher Secondary Education and another vrs. Paritosh Bhupesh Kurmarsheth etc. etc.: AIR 1984 SC 1543 Pramod Kumar Srivastava vrs. Chairman Bihar Public Service Commission Patna and Others: 6 SCC 714 Himachal Pradesh Public Service Commission vrs. Mukesh Thakur and Another:6 SCC 759 and prayed for dismissal of all the writ petitions. 07. Rejoinder has been filed by the Appellants Petitioners claiming that the Respondents Opposite Parties have not filed counter affidavit in proper perspective and they have resorted to mis representation of facts and materials in order to escape from the wrong committed. 08. Learned Single Judge cast three issues in the aforesaid bunch of writ petitions which are as follows: “1. Whether in absence of any provision in the guidelines reevaluation is permissible 2. Whether the Court of law by invoking Article 226 of the Constitution of India can re assess the question and re appreciate the views of the Expert Committee 3. Whether direction can be made for re assessment of the question paper notwithstanding the fact that adequate precautions have been taken for rectification of the mistake by the expert body ” 09. Deciding the issue no.1 learned Single Judge taking into consideration the reported judgments of the Hon’ble Supreme Court passed in the cases of Pramod Kumar Srivastava and Ran Vijay Singh and Others vrs. State of Uttar Pradesh and Others: 2 SCC 357 has come to the conclusion that re valuation in absence of any provision is not permissible. Hence the learned Single Judge decided the issue no.1 in favour of the Board. 10. While deciding the issue nos.2 and 3 learned Single Judge took into consideration various judgments of the Hon’ble Supreme Court passed in the cases of Ashwini Kumar Upadhyay vrs. Union of India and Others: 7 SCC 693 Vikesh Kumar Gupta & Anr. vrs. The State of Rajasthan & Ors.and batch of Civil Appeals) Maharashtra State Board of Secondary and Higher Secondary Education and another supra) and Himachal Pradesh Public Service Commission supra). While answering the issue nos.2 and 3 in favour of the Board learned Single Judge also relied upon the judgment of the Hon’ble Supreme Court in the case of Richal and Others vrs. Rajasthan Public Service Commission and Others: 8 SCC 81 wherein at pargraph 19 the Hon’ble Supreme Court held that: “the key answers prepared by the paper setter or the examining body is presumed to have been prepared after due deliberations. To err is human. There are various factors which may lead to framing of the incorrect key answers. The publication of key answers is a step to achieve transparency and to give an opportunity to candidates to assess the correctness of their answers. An opportunity to file objections against the key answers uploaded by examining body is a step to achieve fairness and perfection in the process. xx xx xx”. Such step has also been taken in these cases while assessing the answer sheets of the Petitioners candidates. 11. In pursuance to the queries and directions made by the learned Single Judge an affidavit was filed by the Secretary of the Board wherein it was categorically stated that in the aforesaid writ petitions there are about 69 candidates. All the Petitioners except Sri Jayadev Lohar the Petitioner in W.P.(C) No.22980 of 2020 have filed their challenges in response to Notification No.153 dated 07.02.2020 calling upon all the candidates to raise any challenge between 08.02.2020 to 14.02.2020 in case they feel any ambiguity in any key answer within the stipulated time and before the final scoring key was published. Objections given by all the candidates who have Learned Single Judge also took note of appeared in the OSSTET 2019 were 363 in numbers. All the objections so received were placed before the concerned subject experts. On re examination of the challenges eight of the challenges were accepted and rest 355 challenges were not accepted. Further it was submitted that challenges were placed before the expert and after examination of the scoring keys by the experts the final scoring key was uploaded in the website of the Board for examination of the candidates vide Notification No.613 dated 01.08.2020. submissions made by the Petitioners that all the Petitioners had failed in the OSSTET examination on very small marks. In some cases it is 1 2 or 3 mark short less than the qualifying mark. However learned Single Judge referred the judgment passed in the case of Ran Vijay Singh and Others wherein at paragraph 31 the Hon’ble Supreme Court held that “sympathy or compassion does not play any role in the matter of directing or not directing re evaluation of an answer sheet. If an error is committed by the examination authority the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse exclude the suspect or offending question”. Moreover in the case of Bihar Staff Selection Commission and Others vrs. Arun Kumar and Others: 6 SCC 362 the Hon’ble Supreme Court held that “the unilateral exercise of re valuation undertaken by the High Court has not solved but rather contributed to the chaos”. Therefore the learned Single Judge held that in absence of any guideline re valuation would lead to utter confusion worst confounded. Hence the learned Single Judge dismissed all the writ petitions. 12. In assailing the findings of the learned Single Judge Mr. B. Routray learned Senior Advocate appearing for all the Appellants in the aforesaid bunch of appeals would argue that when it is accepted by the learned Single Judge that eight challenges were accepted by the Board out of 363 challenges and rejecting the rest 355 challenges why this eight challenges or 8 marks should not be given to the candidates as grace marks or marks for wrong answers. He also cites the judgment of the Hon’ble Supreme Court passed in the case of Guru Nanak Dev University vrs. Saumil Garg and Others: 13 SCC 749 and submits that whenever it is demonstrated before the Writ Court that the model answer or the key answer is incorrect in view of the accepted position of law as revealed from standard and accepted text books the writ applications should have been allowed and such direction will not be a re assessment and or re valuation of the answer sheets. 13. Coming to the first contention raised by the learned counsel for the Appellants we have carefully examined some of the memorandum of appeals filed by the Appellants. We have especially examined the memorandum of appeal in W.A. No.2621which arises out of the lead writ petition bearing W.P.(C) No.20691 of 2020 but do not find any such specific plea was raised by the Appellants Petitioners in the appeal memo. In course of hearing also Mr. B. Routray learned Senior Advocate appearing for the Petitioners does not point out that such plea has been specifically raised either in the writ petitions or in the appeal memos. Secondly it is the case of the Board that in view of the exhaustive guidelines of the National Council for Teacher Education and as per the provisions of the Right of Children to Free and Compulsory Education Act 2009 the Board has been conducting OSSTET examination every year strictly following the guidelines. to provide a chance to the candidates the proposed answers scoring key are published in the internet inviting objections. In the process all the objections received are reexamined and in the cases where the suggested answer is found inappropriate steps are also taken to correct them. This system has been followed to avoid any grievance of the candidate that there has been any defect in the answer. This system is meant for a healthy mode of examination and because the result will bind upon the candidate and finality will be attached to the same. It is further pleaded that to maintain transparency and the notice under Annexure B several objections were received by the Board challenging the key answers as published. The objections were placed before the examining body. All the questions were referred to the experts and basing on their report the final key answers were prepared and results were published basing on such final answers. Thus the Board has maintained absolute transparency in the matter of conducting examinations and evaluations. 14. The second contention of Mr. B. Routray learned Senior Advocate is that when it can be demonstrated on the face of the record that the key answers given by the Respondents Opposite Parties are incorrect in view of publication of contents of a standard text book like Oxford Dictionary for example the Court should have accepted the plea of the Appellants Petitioners and allowed the writ petitions. He relies upon the judgment passed in the case of Guru Nanak Dev University supra). 15. We have gone through the judgment relies upon by the learned Senior Counsel for the Appellants Petitioners. In that case the procedures of inviting objection referring the objection to a body of experts and after the experts’ opinion publication of a revised or corrected key answers has not been followed. So the said judgment cannot be stated to be squarely applicable to the present case. 16. Moreover when a process of examination is challenged it is proper on the part of the Courts to leave the matters to the experts though the Courts are considered experts of all experts. Such principle cannot be stretched to such an extent to overcome the opinion of an expert which is patently not absurd. In the cases where the Court finds that experts were consulted they have applied their mind and have come to a conclusion such final conclusion of the experts should not be interfered with by the Court on the drop of hat or on mere submission unless it is shown that experts’ opinion were tainted with malafide and or extraneous considerations. It may be stated that in this case the Appellants Petitioners have not alleged malafide or have imputed extraneous considerations on the part of the Board or its experts. So we are of the opinion that no valid ground has been made even if to issue notice in the aforesaid appeals. In that view of the matter we are not inclined to interfere with the matters. 17. The Appellants Writ Petitioners have not put forth a case that upon their objections the matters were not considered by the experts. In fact this plea raised by the Board is not challenged. What their challenge is that since eight objections were accepted grace marks should have been awarded in favour of the Appellants Petitioners. We again take note of the fact that such a plea of acceptance of eight objections and not awarding the benefit of such eight objections to the Appellants been specifically raised either in the writ petitions or in the appeals. 18. Moreover it is not the case of the Appellants Petitioners that after their objections were considered and final key answers sheets were published their answers sheets were corrected ignoring the eight objections. It is not demonstrated by them that their answers in the light of accepted objections were not included in their final results. It is also not demonstrated by them that they had actually answered those eight questions in their answer papers correctly according to the revised key answer sheets. We further take note of the fact that in the writ petitions the Petitioners have only annexed a part of the answer sheets. The entire answer sheets have not been annexed as Annexure to the writ petitions. So it is impossible to find out whether the eight questions were in fact answered by them rightly as per the accepted objections and the recast answers key. 19. Thus in the ultimate analysis having considered the undisputed fact that after the examination a key answer sheets were published in the internet inviting objections a total of 363 objections were received. Experts were consulted. As per their advice and experts’ opinion eight objections were accepted. A total of 355 objections were not accepted. Then on the basis of the opinion of the experts the final key answer sheets were published. At the cost of repetition we again take note of the fact that it is not the case of any of the Petitioners that their answer sheets were not evaluated as per second answer sheets i.e. the corrected key answers after consideration of the objections and experts’ opinion. 20. The facts of the reported case i.e. of the case of Guru Nanak Dev Universityare distinguishable. In that case no objections were invited on the fist publication of the key answers. From paragraphs 3 and 4 of the said case it is abundantly clear that the Punjab Medical Entrance test was conducted by the appellant University on 30.06.2005. About 10 000 students appeared in the said test. The results were declared on 02.07.2005. There were 200 questions in the objective form 50 each for Physics Chemistry Botany and Zoology. There were multi choice answers four options were available to the students. They had to opt for one correct answer from A to D. These facts of the case of Guru Nanak Dev Universityare similar to the present case. However the distinction arises on the following aspects: after declaration of the results writ petition was filed by some of the students inter alia alleging that the key answers to 21 questions were incorrect. The High Court appointed the Central Board of Secondary Education to examine the correctness of key answers of the said 21 questions. Against the orders passed by the High Court so directing in terms of its orders dated 18.07.2005 and 22.07.2005 the appellant University filed special leave petitions but for the present purpose it is not necessary to go into those aspects since the High Court has finally decided the matter and these appeals are against the final judgment of the High Court. 21. So in the cases in hand the questions were given to the candidates. They took part in the examination. Thereafter the Board published the key answer sheets and invited objections. After objections were received the objections were again referred to the experts. So what the High Court of Punjab and Haryana at Chandigarh did by appointing the Central Board of Secondary Education to examine the correctness of key answers in respect of 21 questions in fact has already been done by the Board in these cases. So the reported case of Guru Nanak Dev University supra) is not applicable to the present case. 22. Rather the observations of the Hon’ble Supreme Court in the case of Richal and Others are more pertinent to the present cases. In the reported case of Richal and Others Rajastan Public Service Commission conducted examination after completion of examination key to the answers was published inviting objections regarding the answer key. Many candidates submitted objections with regard to different subjects with regard to Paper I and Paper II. Then the Commission declared the result against which several writ petitions were filed questioning various answers as per final answer key. Dealing with such matters at paragraph 19 the Hon’ble Supreme Court has held that “the key answers prepared by the paper setter or the examining body is presumed to have been prepared after due deliberations. To err is human. There are various factors which may lead to framing of the incorrect key answers. The publication of key achieve transparency and to give an opportunity to candidates to assess the correctness of their answers. An opportunity to file objections against the key answers uploaded by examining body is a step to achieve fairness and perfection in the process. xx xx xx” The objections to the key answers were examined by the experts and thereafter corrective measures should have been taken by examinees. In the reported case of Richal and Others supra) the Hon’ble Supreme Court noted that after consideration of the objections final key to the answers was published by the Commission. Thereafter several writ petitions were filed challenging the corrected key answers adopted by the Commission. The High Court repelled the challenge accepting the views of the experts. The candidates still unsatisfied have come up to the Hon’ble Supreme Court by filing the appeals. Court in the reported case of Richal and Othershave in fact been followed by the Board in these cases. After publication of the key answers which were open to objections objections were received and referred to the experts. The experts evaluated the objections and gave their suggestions and in accordance to their suggestions final key answers were published. It is not the case of the Appellants Petitioners and not they have demonstrated that that their answer sheets were not evaluated as per the revised final key answers. So we are not inclined to interfere with the matters. 23. The procedures followed by the Hon’ble Supreme 24. that view of the matter we are of the opinion that the Appellants Petitioners have not established or have not demonstrated conclusively that they were not given benefits of eight incorrect answers stated to be published in the first answer sheets which were open to objection. Therefore we are not inclined to accept the contention raised by Mr. B. Routray learned Senior Advocate for the Appellants Petitioners. 25. Accordingly all the aforesaid Writ Appeals are dismissed in limine. 26. As the restrictions due to resurgence of Covid 19 are continuing learned counsel for the parties may utilize a printout of the order available in the High Court’s website at par with certified copy subject to attestation by concerned Advocate in the manner prescribed vide Court’s Notice No.4587 dated 25th March 2020 as modified by Court’s Notice No.4798 dated 15th April 2021. Judge …. … Judge BJ

Cancellation of bail order is justified, if the order suffers from perverse finding: High Court of Karnataka

The cancellation of bail order can be done in cases where the order of granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores the relevant material indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of granting bail to the accused. this was held in MR. BRIJ MOHAN K.S v. STATE OF KARNATAKA and Ors [CRIMINAL PETITION No.2489 of 2021] in the High Court of Karnataka by the single bench consisting of MR. JUSTICE K. NATARAJAN. Facts are petitioner is a partner of a firm, the accused persons had committed misappropriation of funds of the firm against which complaint was registered. Two of the accused persons had approached the Sessions Judge who granted anticipatory bail to one of the accused. The present petition is filed by the complainant for cancellation of the bail order. The counsel for the petitioner has contended that the order passed by the Sessions Judge is erroneous; based on extraneous consideration; the case is an economic offence and is in the interest of the public at large. The investigation is still under progress. The accused is the authority who was entrusted with the financial operation of the firm. He relied on P.Chidambaram vs. Directorate of Enforcement. The counsel appearing for the respondent contended that the respondent has not violated any bail conditions as enumerated in the anticipatory bail. The father of the complainant has misused the dominion and entrustment. Due to the Covid-19 pandemic and his old age, it would not be advisable to send him to jail. He relied on the judgement of Ahmad Ali Quraishi and another vs. The State of Uttar Pradesh and another. The Court also made reference to the judgement of Apex court in State (Delhi Administration) vs. Sanjay Gandhi, and made the following observation,“The issue of cancellation of bail can only arise in criminal cases but it does not mean that every identical matter in a criminal case must be proved beyond a reasonable doubt like the guilt of the accused. The prosecution therefore can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. If there is reasonable apprehension that he will interfere with the course of justice, is all that necessary for the prosecution to do in order to succeed in an application for cancellation of bail.” The Court also made reference to the judgement of Apex court in Myakala Dharmarajam and others etc, wherein it was held that “while granting bail, the Court is required to consider the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, repeating the offence, the possibility of his tampering with the evidences and witnesses and obstructing the course of justice etc.”

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19th DAY OF APRIL 2021 THE HON BLE MR. JUSTICE K. NATARAJAN CRIMINAL PETITION No.24821 BETWEEN: MR. BRIJMOHAN K.S. AGED ABOUT 48 YEARS S O K.L. SWAMY RESIDING AT M s. KHODAY RCA INDUSTRIES KHODAY ESHWARSA AND SONS) No.11 RACE COURSE ROAD OPPOSITE TO RAILWAY DIVISIONAL OFFICE BENGALURU CITY 560 009. BY SRI P.P. HEGDE ADVOCATE) STATE OF KARNATAKA BY SHESHADRIPURAM P.S. REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU 560 001. PADMANABHASA K.L. S O LATE K. LAKSHMANASA AGED ABOUT 81 YEARS … PETITIONER RESIDING AT No.9 SHESHADRI ROAD BENGALURU 560 009. ... RESPONDENTS BY SRI RAVI B. NAIK SENIOR COUNSEL ALONG WITH SMT. VIJETHA R. NAIK ADVOCATE FOR R 2 SMT. RASHMI JADHAV HCGP FOR R 1 STATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439(2) READ WITH SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE ORDER DATED 12.03.2021 PASSED BY THE LXVII ADDITIONAL CITY CIVIL AND CRL.MISC.No.2192 2021 GRANTING ANTICIPATORY BAIL TO RESPONDENT No.2 IS CONCERNED IN CONNECTION WITH FIR IN CRIME No.8 2021 OF SESHADRIPURAM POLICE STATION FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 120B 406 420 465 468 AND 471 READ WITH SECTION 34 OF THE INDIAN PENAL CODE. CCH 68) JUDGE THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 09.04.2021 AND COMING ON FOR PRONOUNCEMENT THIS DAY THE COURT PRONOUNCED THE This petition is filed by the de facto complainant first informant under Section 439(2) read with 482 of Cr.P.C. for cancellation of anticipatory bail granted to respondent No.2 by the LXVII Additional City Civil Sessions Judge Bengaluru CCH 68) in Crl.Misc.2192 2001 dated 12.3.2021 for the offences punishable under Sections 120B 406 420 465 468 471 read with 34 of IPC in Crime No.8 2021 registered by Sheshadripuram Police Station Bengaluru. Heard Sri P.P. Hegde learned counsel for the petitioner and Sri Ravi B. Naik learned Senior Counsel along with Smt. Vijetha R. Naik learned counsel for respondent No.2 as also Smt. Rashmi Jadhav learned High Court Government Pleader for respondent No.1 State. The case of the petitioner is that he is the first informant before the Police and he has filed a complaint to the Sheshadripuram Police on 27.02.2021 alleging that the first informant is one of the Partners of M s. Khoday Eshwarsa and Sons and RCA Industries. M s. Khoday Eshwarsa and Sons is a partnership firm engaged in the manufacture and production of Indian made liquor and carrying on business since 60 years. The office of the firm is situated at No.9 Sheshadri road Bengaluru. It is alleged by the informant that respondent No.2 herein who is accused No.2 is one of the partners entrusted with the responsibility of taking decisions in respect of payments to be made for M s. Khoday Eshwarsa and Sons and RCA Industries who approve or disapprove the same. Respondent No.2 accused No.2 is the authorised to release payments. It came to the knowledge of the complainant and other partners of the firm that an amount of Rs.17 73 00 000 was shown as expenditure towards the promotional activities of the Branches of the firm all over the State as per the invoices raised in the name of one Surabhi Enterprises and there was no signature of the accused persons on such invoices. The accused persons have committed irregularity in releasing the funds by forging the signatures by creating false documents and have cheated the firm by causing misappropriation of funds of the firm. It is revealed from the informant’s verification with the dealers that no such promotional activities took place. The said Surabhi Enterprises is a fake company. In fact the owner of the Surabhi Enterprises was the driver of the tanker who supplies the spirit for manufacture of liquors. The said Surabhi Enterprises has no office it is created for self. An amount of more than Rs.17 73 00 000 has been paid to Surabhi Enterprises which was in fact transferred to the mother’s account of a person who is a transporter of spirit. The said amount has been immediately withdrawn from his mother’s account. A false promotional agreement has been created by accused Nos.1 and 2. Accused No.3 is the Manager of the firm. All have colluded together and false documents the name of Surabhi Enterprises alleged to have been owned by accused No.5 thereby they caused loss of Rs.17 73 00 000 . They have not only mis appropriated the amount but also cheated other partners. Hence he has prayed for taking bail. After registering the case by the Police in Crime No.8 2021 against 5 accused persons accused Nos.1 and 2 approached the Sessions Judge for granting anticipatory bail which came to be allowed in part. The bail application of accused No.1 has been rejected but the bail application of accused No.2 has been allowed. Against granting of anticipatory bail the present petition is filed by the informant defacto complainant for cancellation of the Learned counsel for the petitioner has contended that the order passed by the Sessions Judge is erroneous based on extraneous consideration the case is an economic offence not only in the interest of individual but also in the interest of public at large. The offence committed by accused No.2 is heinous one and serious allegations are made against him regarding breach of trust and misappropriation of funds. The investigation is still under progress. The Investigating Officer requires custody of the respondent No.2 accused No.2 for interrogation. The accused No.2 is the authority who was entrusted with the financial operation of the firm. The Sessions Judge has not assigned any reason for granting bail except stating that the age of the accused is 81 years. The Hon’ble Supreme Court rejected bail P.Chidambaram vs. Directorate of Enforcement 2019) 9 SCC 24]. Learned counsel further contended that accused No.2 is the main person who signed the cheque. The approval is made by accused No.1. Both accused Nos.1 and 2 colluding with other accused i.e. the Manager created documents in the name of Surabhi Enterprises and released more than Rs.17 73 00 000 to a bogus company. In fact they themselves received the amount which is nothing but mis appropriation of funds and cheating the complainant. Even after ordering release of the accused No.2 on anticipatory bail on 12.02.2021 the accused No.2 did not surrender before the Police as per the direction given by the Court. Almost more than 13 days is over from the date of the order but he has not chosen to surrender which itself is the violation of the order of the Court. The accused No.2 took time for surrendering which helped him for destroying the evidence and tampering the prosecution witnesses. Therefore prayed for setting aside the order granting bail and cancel the bail. Learned counsel further contended that the Sessions Judge while rejecting bail of accused No.1 considered the judgment of the Hon’ble Supreme Court but has not assigned any reason for granting bail to accused No.2 except stating that he is super senior and the Sessions Judge has wrongly held that he is not directly involved in raising the bills or signing the bills so as to create fake payments. Learned counsel contended that he is the authority for signing the cheques and accused No.1 is the son of accused No.2 who is in charge of verifying the bills. Therefore it cannot be said that he has not participated in the commission of crime. Therefore the finding of Sessions Judge is perverse which requires to be set aside. Learned counsel in support of his arguments has relied upon various judgments produced the photograph of accused No.2 and also other documents for transferring huge amount to the account of the accused No.1 who is son of respondent No.2. Learned counsel also produced the bail order of accused No.4 in which the Sessions Judge has rejected his bail. Hence prayed for allowing the petition and to cancel the bail granted to accused No.2. Learned counsel appearing for respondent No.2 accused No.2 filed objections statement and contended that the respondent No.2 has not violated any bail conditions as enumerated in the anticipatory bail. He is 81 years old and he has not tampered with the prosecution witnesses nor threatened any prosecution witness. The Hon’ble Supreme Court held that normally bail should not be interfered unless there is any blatant violation of any bail condition. M s. Khoday Eshwarsa and sons is having 9 partners who were all members of Khoday family. The petitioner and respondent No.2 are members of the partnership firm. Accused Nos.1 and 2 together have 25% of the share. The allegation is pertaining to expenditure. There are many civil disputes pending between the parties. A commercial arbitration application was also filed for appointment of an arbitrator. There were six civil suits pending between the parties. The FIR is also filed against father of the petitioner complainant in Crime No.171 2019. Charge sheet has been filed. Another case has also been filed by accused No.1. Accused No.2 questioning the complainant about the accounts that there were 1000 crores received by father of complainant but he has not accounted. In order to overcome the said complaint this complaint has been filed as a counterblast. The respondent No.2 accused No.2 is thyroid hypertension LVF Syndrome of Heart Failure). Due to Covid 19 pandemic and his old age it would not be advisable to send him to jail. The father of the complainant has mis used the dominion and entrustment. It is further contended that the period of offence is from 2017 to August 2020. Additional excise duty has been paid and there are documents pertaining to the same. There is no prima facie case shown to launch criminal prosecution. The entire allegation pertains to family run partnership firm. The Hon’ble Supreme Court has also held in the case in Ahmad Ali Quraishi and another vs. The State of Uttar Pradesh and another reported in13 SCC 435 that any criminal proceedings maliciously instituted with ulterior motive due to animosity arising out of partition of family properties and continuation of such criminal proceedings is nothing but abuse of process of Court which is liable to be quashed. Hence prayed for dismissal of the petition. Sri Ravi B. Naik learned Senior counsel appearing for respondent No.2 contended that the complaint itself is filed as a counterblast to the complaint filed by accused No.1 against the complainant’s There are documents maintained by the firm. The auditing is continuously done every year. The question of misappropriation does not arise. Absolutely there is no perversity in the order passed by the Sessions Judge while granting bail. Hence prayed for dismissing the petition. 10. Heard the arguments of learned counsel for the petitioner and learned Senior counsel for respondent No.2 accused No.2 as also learned HGCP for the respondent No.1 State as to whether the petitioner has made out a case for cancellation of the bail granted to respondent No.2 by the Sessions Judge and perused the impugned order passed by the Sessions Judge Bengaluru. 11. The case of the prosecution as per the complainant is that the complainant his father and the accused No.1 and 2 and others were partners of M s. Khoday Eshwarsa and sons and RCA Industries which is a partnership firm manufacturing and trading in Indian made liquor. The allegation against the accused No.1 to 5 in the FIR as per the complaint is that accused No.1 the son and accused No.2 the petitioner who is the father are responsible for the entire partnership business. Accused No.2 authorised to sign all the documents pertaining to the company and accused No.1 used to approve and disapprove the documents for making any payments in respect of firm’s business. It is further alleged that between 2017 and 2020 accused No.1 to 4 have shown accounts for making payment of Rs.17 73 00 000 to accused No.5 Surabhi Enterprises towards promotional advertisement activities of the braches of the firm all over the State. In fact accused No.5 do not have any office. It is a fictitious company which is said to have been run by the transporter who used to supply spirit. Nowhere the company products has been promoted or made any advertisement but all the bills were created in the name of fictitious Surabhi Enterprises. They forged the documents prepared fake bills and shown payments made to Surabhi Enterprises for Rs.17 73 00 000 . In fact no such promotional work has been executed. The Surabhi Enterprises is the house of the spirit transporter and the amounts were paid to the mother of the said person. The entire amount has been withdrawn immediately thereby firm of more Rs.17 73 00 000 and wrongfully gained by the accused persons and cheated the partners. Hence they committed the offence under Sections 420 120B 406 465 468 and 471 of IPC. 12. Admittedly accused Nos.1 and 2 approached Sessions Judge for anticipatory bail by filing petition under Section 438 of Cr.P.C. and the Sessions Judge rejected the bail petition of accused No.1 and allowed the bail petition of accused No.2. The Sessions Judge while rejecting the bail petition of accused No.1 followed the decision of the Hon’ble Supreme Court in the case of Varinder Kumar vs. State of Himachal Pradesh reported in The petitioner No.2 is ordered to be released on bail in the event of his arrest in Crime No.8 2021 of the respondent Station Bengaluru on executing his self bond for a sum of Rs.5 00 000 along with two sureties for the likesum 2) He shall appear before the Investigating Officer as and when required for the purpose of investigation 3) He shall appear before the trial court on all the dates of hearing 4) He shall not tamper with the prosecution 5) He shall not indulge in committing any witnesses offences 6) He shall not leave the jurisdiction without prior permission of the Court.” 13. On perusal of the findings of the Sessions Judge at paragraph 13 and the Conditions Nos.1 and 2 it appears that the Sessions Judge has not properly read the prosecution papers and the allegation made against accused No.2 has not been properly considered. First of all while granting bail by imposing conditions there was no direction for the accused No.2 to surrender before the Police within the prescribed period. Therefore in spite of granting bail on 12.03.2021 accused No.2 has not chosen to appear before the Investigating Officer for the purpose of any investigation till 25.03.2021 when this Court stayed the impugned order. Atleast the Sessions Judge ought to have imposed condition for voluntary surrendering before the Police within a short period but the blanket order of granting anticipatory bail is nothing but the order which is non est in the eye of law. 14. That apart coming to the paragraph 13 the finding of the Sessions Judge holding that accused No.2 is not directly involved in raising bills or signing bills for creating fake payments is also a perverse finding. Further the finding that the involvement of this accused No.2 has to be proved in the Court during full fledged trial is nothing but a perverse finding. As per the complaint averments accused Nos.1 and 2 have been entrusted with all the day to day affairs of the firm. Accused No.2 is the authority to sign and operate the accounts and accused No.1 was also managing the day to day operations of the firm. The payments made to Surabhi Enterprises to the tune of Rs.17 73 00 000 within three years is definitely within the knowledge of accused Nos. 1 and 2. While signing the cheques accused No.2 has not raised any objection. Accused No.1 who approved the bill has not raised any objection on the other hand it is alleged that all the documents were created by accused No.1 and 2 along with other accused in the name of accused No.5 and paid hefty amount on the ground of promotional activities but no promotional activities were undertaken by them. Therefore it is a clear case of misappropriation by creating fake documents which are produced as genuine document making payment in the name of accused No.5 and in turn it was taken by themselves. Therefore it cannot be said that accused No.2 is not directly or indirectly involved in the creation of fake documents and fake payments. 15. That apart the Sessions Judge held that because accused No.2 is aged 81 years he is super senior citizen. In this regard learned counsel for the petitioner submitted the photograph which reveals that accused No.2 is hale and healthy. That apart some documents were produced which shows that previously accused No.1 got transferred Rs.18 99 81 058 to his personal account from the company’s account and subsequent to the objection raised by this complainant the said amount was re credited to the current account of the firm. Those documents clearly reveal that nearly Rs.19 00 00 000 has been transferred to the personal account of accused No.1 from the firm’s current account. The bail petition of accused No.1 has been rejected by the Sessions Judge and also the bail petition of accused No.4 was rejected by the same Sessions Judge on the ground that the matter requires free investigation and the Investigating Officer to investigate the matter smoothly as the allegation is huge stake is involved. Such being the case granting bail to accused No.2 only on the ground that his age is 81 years is also a perverse finding. 16. Learned Senior counsel for the respondent No.2 has stated in the objection statement that there are several civil cases pending between the parties in the civil court and also the matter went up to Hon’ble Supreme Court and there is no dispute in this regard. Learned Senior counsel also submitted that accused No.1 filed a complaint against the father of the complainant namely. K.L. Swamy. Also against the informant complainant petitioner a case was registered in Crime No.26 2021 in Upparpet Police Station on 05.02.2021 for the offences under Sections 341 448 323 511 506 504 read with 34 of IPC therefore as a counterblast this complaint came to be filed against the accused persons. I have perused the FIR produced by the respondent’s counsel where accused No.1 filed a complaint to the Police on 05.02.2021 alleging that when the complainant went to the house of the accused persons on 02.02.2021 at that time the informant and his family members assaulted with hands and made criminal intimidation. Looking to the said complaint there was a dispute between them in respect of forming layout and flats but the allegation is simple. Here in this case the allegation against accused No.2 and other accused is cheating an amount of Rs.17 73 00 000 . Therefore it cannot be said that this complaint came to be filed as a counterblast to the complaint filed by the respondent accused. Therefore the contention of learned Senior counsel for respondent No.2 not acceptable. 18. Learned counsel for the petitioner relied upon the the Hon’ble P.Chidambaram’s case wherein The Hon’ble Supreme Court rejected the anticipatory bail in the case of an economic offence. In the case of Sudhir vs. State of Maharashtra and another reported in as one which can be made against all accused person all cases. The apprehension was quite reasonable the high position which respondent held and in the nature of accusation relating to a period during which he held such After bestowing our anxious consideration including a perusal of the Case Diary file we definitely feel that the High Court has mis directed itself in exercising the discretionary power under Section 438 of the Code by granting a pre arrest bail order to the respondent. We therefore upset the impugned order. The appeal is allowed In the case of Puran vs. Rambilas and another reported in 6 SCC 338 the Hon’ble Supreme Court cancelled the bail granted to the accused in a case under Sections 498A and 304B of IPC and has held that granting bail by ignoring material and evidence on record and without giving reasons would be perverse and contrary to the principles of law. Such an order would itself provide a ground for moving an application for cancellation of bail. Here in this case the Sessions Judge has held that accused No.2 is not involved in the offence not created the documents not made any payment is the finding against the documentary evidence on record which is nothing but a perverse finding. Another reason for granting bail is that accused No.2 is aged about 81 years. In this regard the Punjab and Haryana High Court in CRM M 25799 2020 dated 08.03.2021 has rejected the anticipatory bail petition for the offences under Section 438 of Cr.P.C. where the age of the accused was 95 years. I am in respectful agreement with the decision of the Punjab and Haryana High Court that age is not a ground for granting bail in a case like forgery cheating and misappropriation. If at all the accused is having ill health and suffering from various diseases he could not have managed the Company and could not have involved in day to day affairs of the Company and the certificate produced by the learned Senior counsel for respondent No.2 has been obtained on 24.3.2021 but no documents pertaining to treatment taken were produced to show that he was under treatment prior to registration of the case and in fact he was the main person for running the partnership firm of the reputed firm. Therefore the medical certificate obtained on 24.3.2021 on the day on which the petition was filed for cancellation of bail cannot be acceptable. 20. Learned Senior counsel respondent No.2 contended that there is no violation of conditions of bail in order to cancel the bail etc. In view of my findings above the offence is serious one and crores of rupees alleged to have been knocked off by this accused No.2 along with accused No.1 and caused loss to the firm and wrongful gain to himself. If Rs.17 73 00 000 payment was made there must be 18% TDS towards GST but no such document is produced by learned counsel for respondent No.2 for collecting such taxes and depositing the same to the concerned authorities. Mere production of some receipts towards tax paid to the Excise Department is in respect of the business transaction for selling the liquors is not enough but no document is produced towards the transfer of Rs.17 73 00 000 to Surabhi Enterprises and its TDS. Therefore the question of violating any condition does not arise. Even otherwise 13 days after granting of bail by Sessions Judge the accused No.2 did not chose to appear before the Police and make himself available for investigation. Such being the case there is every possibility of accused destroying the evidence and tampering the documents is not ruled out since they are the custodian of the said documents. Therefore the argument addressed by learned Senior Counsel respondent No.2 is not acceptable and there is no violation of conditions of bail and cancellation of bail does not arise. In the aforesaid judgments the Hon’ble Supreme Court has laid down the principles for granting anticipatory bail and for cancellation of bail. 21. Learned Senior Counsel for respondent No.2 relied upon the judgment of the Hon’ble Supreme Court in the case of Dolat Ram and others vs. State of Haryana reported in1 SCC 349 in respect of dowry death case. In another unreported case between Myakala Dharmarajam and others etc. and The State of Telangana and another passed in Crl.A. Nos.1974 1975 2019 the Hon’ble Supreme Court has held that cancellation of bail can be done in case where the order of granting bail suffers from serious infirmities resulting in miscarriage of justice. In the case of Simranjit Singh Mann vs. State of Bihar reported inof Cr.P.C. In another case in State vs. Sanjay Gandhi reported in 13 SCC 435 the Hon’ble Supreme Court had dealt with in respect of quashing the criminal proceedings under Section 482 of Cr.P.C. In the case of Sanjay Chandra vs. CBI reported in 1 SCC 40 in respect of consideration of bail under Sections 437 and 439 of Cr.P.C. the Hon’ble Supreme Court granted bail to the accused persons in 2G Spectrum case. In Siddaram Satlingappa Mhetre vs. State of Maharashtra and others 2011)1SCC 694 wherein the Hon’ble Supreme Court has held that Section 438 Cr.P.C. is not extraordinary in the sense that it should be invoked only in exceptional or rare cases and should ordinarily be continued till end of the trial. If the liberty is granted by the Court is misused then Court can cancel or modify the conditions. 22. Learned Senior counsel for respondent No.2 also relied upon the judgment in the case of Shri Gurubaksh Singh Sibbia and others vs. State of Punjab reported in has categorically held that the issue of cancellation of bail can only arise in criminal cases but it does not mean that every identical matter in a criminal case must be proved beyond reasonable doubt like the guilt of the accused. The prosecution therefore can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. If there is reasonable apprehension that he will interfere with the course of justice is all that necessary for the prosecution to do in order to succeed in an application for cancellation of bail. Keeping the guidelines of the Hon’ble Supreme Court and looking to the case on hand the allegations are against the accused who is none other than the authorised signatory having power to conduct the day to day business and the custodian of the documents and is the person authorised to release the cheques and payments made to various persons. In spite of granting anticipatory bail by the Sessions Judge he has not chosen to appear before Police for almost 13 days and the Police has also not chosen to arrest him in this case which goes to show that he is so much influenced person and there are chances of tampering the documents in the office and destroying the evidence is not ruled out. Once there is an allegation of misappropriation and cheating by creating false documents and making payment to a fictitious firm and when a prima facie case is made out the position of accused Nos.1 and 2 being the son and the father respectively the Sessions Judge though rightly rejected the bail application of accused No.1 but committed error in granting anticipatory bail to accused No.2 without assigning proper reasons for granting bail. As already held above age is not a criterion in the case of cheating and misappropriation. The Hon’ble Supreme Court in a recent judgment relied upon by learned Senior counsel for respondent No.2 in Myakala Dharmarajam’s case at paragraph 6 has held that while granting bail the Court is required to consider the gravity of the crime the character of the evidence position and status of the accused with reference to the victim and witnesses repeating the offence the possibility of his tampering with the evidences and witnesses and obstructing the course of justice etc. The Hon’ble Supreme Court has also relied upon the judgment in the case of Raghubir Singh’s case supra) wherein it is held that it is trite law that cancellation of bail can be done in cases where the order of granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores the relevant material indicating prima facie involvement of the accused or takes into account irrelevant material which has no relevance to the question of granting bail to the accused. In such cases the High Court or Sessions Court would be justified in canceling the bail as held by the Hon’ble Supreme Court in the case of Kanwar Singh Meena vs. State of Rajasthan and another reported in 2012)12 SCC 180. 25. As already held above the Sessions Judge while granting bail at para 13 has not properly considered the material on record but wrongly held that this accused No.2 is not responsible for creating documents which is nothing but a perverse finding and against the material placed on record. As held by the Hon’ble Supreme Court in the case Anil Sharma if the accused is continued to be on anticipatory bail he will tamper the prosecution witness and cause obstruction investigation tampering the witnesses and threatening the witnesses are not ruled out. Therefore the presence of respondent No.2 is required for custodial interrogation in order to collect all the documents payments made in the name of Surabhi Enterprises and other bills under the guise of promotional payments advertisement payment etc. which are to be investigated by the Police. All the accused persons are absconding and none of them were arrested including the owner of the Surabhi Enterprises. Such being the case granting anticipatory bail to accused No.2 will be a hurdle to the investigation and he may influence the witnesses and cause obstruction to the Investigating Officer in conducting clear investigation. Therefore as argued by learned counsel for the petitioner it is not a fit case for granting anticipatory bail by the Sessions Judge. Therefore the bail granted by the Sessions Judge under Section 438 of Cr.P.C. requires to be set aside. The petitioner has made out sufficient ground for cancellation of bail granted by the Sessions Judge. Accordingly I pass the following: Criminal Petition filed under Section 439(2) of Cr.P.C. for cancellation of bail is allowed. The order passed by the LXVII Additional City Civil Judge Bengaluru CCH 68) Crl.Misc.2192 2001 dated 12.3.2021 for the offence offences punishable under Sections 120B 406 420 465 468 471 read with 34 of IPC in Crime No.8 2021 registered by Sheshadripuram Police Station Bengaluru granting anticipatory bail to respondent No.2 accused No.2 is hereby set aside cancelled. Sd JUDGE

Maintenance to wife must be fixed in regard to earning capacity of husband: High Court of Jammu and Kashmir

When a man is ordered by the court to pay maintenance to support his wife who cannot maintain herself, his earning capacity should also be taken into consideration to ensure that he does not become impoverished and unable to look after his own needs. This was held in the judgement passed by a single member bench of the High Court of Jammu and Kashmir consisting of Justice Ali Mohammad Magrey in the case of Ehsan Ali Dar v Nighar Banu [CRM (M) no. 72/2020 , CrlM no. 162/2020 c/w] on 17th June 2021. The petitioner, Ehsan Ali Dar works as a general site technician at Odeh Asalem Automation Systms in Dubai, United Arab Emirates. He is married to the respondent, Nighat Banu and they have one child together. Living far away from her husband, the respondent felt neglected and the relationship was strained as a result. The trial court granted maintenance of Rs 60,000 per month to the respondent. The petitioner challenged this order on grounds that firstly he was only earning a monthly salary of Rs 57,000 and also needed money to look after himself in Dubai and for his aged parents back home; secondly the petitioner contended that the respondent was taking unfair advantage of the law and did not have a solid case. The court noted that the respondent had every right to claim maintenance; however it would be very harsh and unreasonable to expect the petitioner to pay more than he earns in maintenance to his wife and child every month. The petitioner has the right to live comfortably in Dubai and also take care of his aging parents which would not be possible if he is ordered to pay an amount of Rs 60,000 in maintenance every month. Hence the petitioner’s contention that maintenance should be fixed only in regard to earning capacity was taken into consideration.

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR CRMno. 72 2020 CrlM no. 162 2020 c w CRMC no. 13 2019 CrlM no. 178 2019 Reserved on 11.05.2021 Pronounced on 17.06.2021 Virtual mode) Ehsan Ali dar ii) Nissar Hussain Dar and others Through: Mr Salih Pirzada Advocate …. Petitioner(s) Nighat Banu and another ii) Nighat Banu and another Through: Mr Shafaqat Nazir Advocate … Respondent(s) Hon’ble Mr Justice Ali Mohammad Magrey Judge By this judgment I propose to dispose of two petitions together as both pertain to one and the same controversy. CRMno. 72 2020 By the instant petition the petitioner challenges the ex parte judgment and order dated 29th February 2020 for short impugned order passed by the court of Judicial Magistrate 1st ClassSrinagar for short trial court on the petition titled Nighat Bano and another v. Ehsan Ali Dar filed by the respondent under and in terms of Section 488 of the Code of Criminal Procedure whereby the trial court while allowing the petition has granted Rs. 60 000 as monthly maintenance charges in favour of the respondents holding them entitled to receive the maintenance @ Rs. 30 000 each from the date of institution of the petition i.e. 03.07.2019. The challenge to the impugned order is made inter alia on the grounds that the trial court under the influence of the interim order of this Court passed in a petition bearing CRMno. 268 2019 reducing the interim maintenance of Rs. 50 000 to Rs. 30 000 by misconstruing the same as confirmation of the interim maintenance has passed the impugned order the interim order of this court by CRMno. 72 2020 along with CRMC no. 13 2019 virtue of which the interim maintenance was reduced to Rs. 30 000 was purely an interim arrangement made at its threshold and the petition on the subject is not finally decided therefore the impugned order has dissected the cause of maintenance into interim and final where final determination is given precedence over the interim relief the trial court by passing the impugned order has disregarded and steriled the supervisory powers of this Court the impugned order impinges upon the rights of the petitioner in the proceedings pending before this court as the issue vis à vis the quantum of interim maintenance is pending adjudication before this court the impugned order has been passed in disregard to the earning capacity of the petitioner and the monthly maintenance of Rs. 60 000 is based on no creditable evidence the impugned order has caused miscarriage of justice therefore cannot be allowed to sustain. To understand the controversy in proper perspective a brief look at the events leading to the filing of the instant petition is taken note of in the first instance thus: The petitioner is stated to be working as a General Site Technician at Odeh Asalem Automation Systems L.I.C ODASCA in Dubai United Arab Emirates who has married respondent no. 1 on 28th August 2014 and out of their wedlock respondent no. 2 is begotten. The relations got strained and the respondent no. 1 allegedly feeling neglected filed a petition seeking maintenance in terms of Section 488 of the Cr.P.C. The trial court on consideration of the matter awarded ex parte interim maintenance of Rs. 50 000 in favour of respondents in terms of order dated 30.07.2019 which was challenged by the petitioner before this Court in a petition bearing CRMno. 268 2019 and this Court while issuing notice to the other side reduced the interim maintenance to Rs. 30 000 in terms of order dated 20.11.2019. Subsequent thereto the trial court in terms of impugned order allowed the petition under section 488 of the Cr.P.C. and granted maintenance of Rs. 60 000 in favour of respondents. The petition CRMno. 268 2019 came to be disposed of on the statement of the learned counsel for the petitioner seeking liberty to challenge the final order in the appropriate proceedings in terms of order dated 6th March 2020. CRMC no. 13 2019 CrlM no. 178 2019 By this petition the petitioners who are parents and siblings of Ehsan Ali Dar petitioner in the CRM 72 2020 are challenging and seeking quashment of the complaint filed in terms of Section 12 of the Protection of Women from CRMno. 72 2020 along with CRMC no. 13 2019 Domestic Violence Act 2010 for short Act by the respondent no.1 and the proceedings initiated thereupon by the court of Judicial Magistrate 1st Class Srinagar inter alia on the ground that the cognizance taken by the learned Magistrate is bad in law as the same is done in absence of report required in terms of Section 12 of the Act the complainant never lived in a shared house with petitioners therefore the complaint is baseless the complaint is an abuse of process of law as the respondent is dragging the whole family of her husband into litigation there is no genuine cause shown in the complaint so as to proceed against the petitioners in terms of the impugned complaint the reliefs prayed for in the complaint do not pertain to petitioners in any way the respondent is trying to take undue advantage of the process of law which amounts to abuse of process of law there is no cause or allegation or incident of domestic violence alleged reported against the petitioners in the complaint the petitioners are dragged into litigation by the respondent only on the ground that they are relatives of respondent no. 2 the prayer sought in the complaint would itself show that the petitioners have got nothing to do with the same as she is seeking an order for residence maintenance compensation and protection which are solely the concern of respondent no. 2 there is no incident of domestic violence mentioned anywhere in the complaint that would implicate the petitioners with the commission of any This court on consideration of the matter while issuing notice to the other side has stayed the proceedings in the complaint titled Nighat Bano v. Ehsan Ali and others insofar as it related to the petitioners herein. While considering the petition no. 72 2020 this court in terms of order dated 24.11.2020 after having been apprised about pendency of another petition on the subject directed for listing of the same with the petition in hand therefore the CRM no. 72 2020 and CRMC No. 13 2019 were adjudicated upon simultaneously. The learned counsel for the petitioner was heard on 23.12.2020 and the matter was kept for advancing arguments on behalf of respondents on 30.12.2020 however the learned counsel for the respondents’ was partly heard on 31.03.2021 as the matter got adjourned on the fixed date. Subsequently in terms of order dated 15th April 2021 the court taking note of the persistent technical snag in the virtual mode of hearing directed the parties to submit their written arguments within one week and posted the matter for consideration on 30th April 2021. The parties however did not submit their written arguments on the scheduled date therefore CRMno. 72 2020 along with CRMC no. 13 2019 further week’s time was granted for the purpose. Finally the written arguments were submitted through virtual mode. The learned counsel for the petitioner has vehemently argued that the respondent no. 1 having been divorced in terms of the personal law is not entitled to any maintenance as she ceased to be the wife of petitioner. available. Considered the submissions made and went through the material made The court from the very inception made an endeavour that the parties to the dispute enter into a compromise so that their differences are set at rest and they get a chance to live a peaceful life together. However the efforts did not materialize. The only tangible issue as it appears from both the petitions is in respect of the monthly maintenance of respondent Nighat Banu and the minor child Zulfishan. The complaint filed under and in terms of the Domestic Violence Act also appears to be a branch of the same tree. The points raised by the petitioners in CRMC 13 2019 against the complaint filed under and in terms of the Domestic Violence Act and the process issued thereon appear to be carrying weight as the other side has not been able to show anything concrete to negate such assertions of the petitioners. It would be profitable to reproduce the Section 12 of the Act herein thus: “12. Application to Magistrate.__(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before passing any order on such application the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service The relief sought for under sub sectionmay include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent: Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person the amount if any paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall notwithstanding anything contained in the Code of Civil Procedure CRMno. 72 2020 along with CRMC no. 13 2019 1908 or any other law for the time being in force be executable for the balance amount if any left for such set off. Every application under sub sectionshall be in such form and contained such particulars as may be prescribed or as nearly as possible thereto. The Magistrate shall fix the first date of hearing which shall not ordinarily be beyond three days from the date of receipt of the application by the court. The Magistrate shall endeavour to dispose of every application made under sub section within a period of sixty days from the date of its first hearing.” The perusal of the complaint filed in terms of Domestic Violence Act by the respondent herein before the court below on the fact of it does not make out a case of domestic violence against the petitioners in CRMC no. 13 2019 as the respondent has not indicated anywhere as to how the petitioners have committed domestic violence against her. No incident of whatever nature has been mentioned in the complaint that would prima facie lead one to the conclusion that the petitioners are actually involved in such offence. The complaint appears to be an act of vengeance aimed at to settle score with the respondent no. 2 Ehsan Ali Dar. The petitioners have been dragged to the litigation by the respondent no. 1 merely for being the relatives of respondent no. 2. It being so the petition CRMC 13 2019 succeeds and is allowed as such. The complaint filed in terms of Domestic Violence Act before the Court below titled Nighat Bano v. Ehsaan Ali and others pending before learned Sub Registrar JMIC Srinagar under File No. 754 M and the proceedings initiated thereupon against the petitioners herein are quashed. File shall be consigned to records. CRMno. 72 2020 CrlM no. 162 2020 The admitted position of the case is that the parties to the dispute have married and out of the wedlock a child namely Zulfishan is born and that the petitioner is working abroad. The petitioner’s contention that the trial court fell in error by fixing the amount of maintenance as the same is fixed in disregard of the income of the petitioner which ought to have been taken into consideration. The monthly salary of the petitioner as per the salary certificate appended on record is Rs. 57 000 and the petitioner on such income has to survive in Dubai and has to in all probability lookafter his aged parents and two unmarried siblings. The further contention of the learned counsel for the petitioner was that the trial court CRMno. 72 2020 along with CRMC no. 13 2019 has erroneously fixed the amount of maintenance as Rs. 60 000 which is even higher than the amount he is earning. The contentions raised by the learned counsel for the petitioner carry weight as the petitioner is shown to be earning Rs. 57 000 per month and the amount of maintenance has to be fixed only in due regard to the earning capacity of the petitioner and not in vacuum. The contention gains more significance in absence of any document on record negating such assertion of income of the petitioner. The trial court was not right in fixing the amount of maintenance solely on the exparte oral evidence of the respondent. The trial court has further fallen in error in holding that this court in terms of order dated 20.11.2019 passed in CRM268 2019 has confirmed the interim maintenance at Rs. 30 000 as the petition was pending consideration and the arrangement was purely interim in nature and certainly subject to final determination. Thus while keeping in view the document available on record as regards the income of the petitioner the amount of maintenanceallowed by the trial court is certainly very extreme and harsh. Having said that this court is conscious of the fact that a lady has to sustain herself and has to maintain the minor child also and they cannot be allowed to live a life of vagrancy therefore while keeping in view all these factors and more importantly the inflation ratio in mind the impugned order is modified by reducing the amount of maintenance to Rs. 25 000 per month i.e. Rs. 10 000 in favour of respondent no.1 and Rs. 15 000 in favour of respondent no. 2. The amount of maintenance shall be payable from the date of filing of the application. An amount of Rs. 2.00 lacs already paid by the petitioner shall be adjusted from the amount due towards the amount of maintenance and if there are arrears the same shall be cleared within a period of three months. The amount of maintenance awarded in favour of respondent no. 2 minor child shall be paid to her through respondent no. 1 who shall utilize the same for her education and other necessary care. It is observed that this court has not deliberated over the issue of subsistence of marriage between the parties as the same is a matter of evidence and can be agitated before the appropriate forum where the continuance of maintenance in favour of respondent no. 1 would finally be decided therefore this order inasmuch as it pertains to grant of maintenance in favour of respondent no.1 shall be valid till the decision is rendered by the appropriate forum regarding divorce of said respondent. connected CrlMs. The petition in hand is disposed of on the above lines along with all CRMno. 72 2020 along with CRMC no. 13 2019 any obtained. Amjad Lone PS Registry shall keep a copy of this order on each file and forward one to the courts below for information and compliance. Registry to send down the records if Ali Mohammad Magrey) Judge Whether the Judgment is reportable Yes No. Whether the Judgment is speaking Yes Pronounced today on 17th June 2021 in terms of Rule 138of the Jammu and Kashmir High Court Rules 1999. Judge CRMno. 72 2020 along with CRMC no. 13 2019

In the event that an appeal is filed, the issue of limitation will not prevent the appeal from being adjudicated on the merits: Patna High Court

In the event that an appeal is filed where party is permitted to prefer appeal, the issue of limitation will not prevent the appeal from being adjudicated on the merits is upheld by the High Court of Patna through the learned bench led by HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR in the case of Shankar Uranw Vs. The Chairman, Indian Oil Corporation Ltd (Civil Writ Jurisdiction Case No.4347 of 2021) Brief facts of the case are that under the signature of Dy. General Manager (L.P.G.-S) Indian Area Office, Patna, petitioner’s application for award of LPG distributorships at Gamharia, District-West Champaran is refused for lack of FVC fees alleging inter alia. Petitioner was notified through registered mail to deposit a 10% security deposit, i.e. Rs. 40,000/-, but no deposit was made, notwithstanding the fact that no such message or information through other means was sent to petitioner. As a result, the petitioner sought for An appropriate order to be issued instructing the Respondents to set any suitable date for depositing the FVC fee and to notify the petitioner accordingly, allowing the petitioner to pay the fee for further action. The learned counsel representing petitioner states that the petitioner may be entitled to appeal the impugned order to the Appellate Authority. According to learned counsel for the respondents, if such an appeal is filed within four weeks of today, the question of limitation should not be raised or allowed to obstruct the merits determination of the appeal. The petition has been disposed of in a mutually agreeable manner. That is, Petitioner may file an appeal, and if an appeal is filed within time, the question of limitation will not prevent the appeal from being heard on the merits. Furthermore, if required, the parties will be given the opportunity to record all essential information and materials. The Appellate Authority shall decide the appeal on the merits, in accordance with natural justice principles. Petitioner, through learned counsel, agrees to fully cooperate and not seek unnecessary adjournment and the Appellate Authority shall issue a reasoned and speaking order within eight weeks of the date of filing of the such appeal and copy of the reasoned and speaking order issued by the Appellate Authority shall be supplied to the parties.

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.43421 Shankar Uranw Son of Lutharu Uranw Resident of Village Gamhariya Police Station Manpur District West Champaran ... Petitioner s The Chairman Indian Oil Corporation Ltd 3079 03 J.B. TiTO Marg Sadique Nagar New Delhi The Executive Director Indian Oil Corporation Ltd Marketing Division Eastern Region Office Indian Oil Bhawan Dhakuria Kolkata The Executive DirectorIndian Oil Corporation Ltd Lok Nayak Jay Prakash Bhawan Dakbunglow Road Patna The Deputy General ManagerIndian Area Office Patna Indian Oil Corporation Ltd First Floor Shahi Bhawan Exhibition Road Patna ... Respondent s Mr. Jagdish Prasad Singh Advocate Mr. Sanat Kumar Mishra Advocate For the Petitioner s For the Respondent s CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR Per: HONOURABLE THE CHIEF JUSTICE Date : 22 12 2021 Heard learned counsel for the parties Petitioner has prayed for the following relief(s): “(i) For setting aside of letter PAT FVC GAMHARIA 13.10.2020 issued under the signature of Dy General ManagerIndian Area Office Patna whereby and whereunder petitioner has been informed that petitioner’s application for award of LPG distributorships at Gamharia District West Champaran is rejected for want of FVC fees alleging inter alia. Petitioner was informed through registered mail dated 11.09.2020 and 19.09.2020 for depositing of 10% Security deposit i.e. Rs. 40 000 but not Patna High Court CWJC No.43421 dt.22 12 2021 deposited though such mail or information through other mode has not been given to II) An appropriate direction be issued directing the Respondents to fix any suitable date for depositing FVC fee and inform accordingly enabling the petitioner to deposit the same for further action III) Any other appropriate writ or direction may be issued which may be applicable in the facts and circumstances of the After the matter was heard for some time learned counsel appearing on behalf of the petitioner under instructions states that petitioner may be permitted to prefer an appeal against the impugned order before the Appellate Authority Permission granted. Learned counsel for the respondents states that if such an appeal is preferred within a period of four weeks from today the issue of limitation if any shall neither be raised nor allowed to come in the way of adjudication of the appeal on merits. Statement accepted and taken on record. As such petition stands disposed of in the following mutually agreeable terms: a) Petitioner is permitted to prefer an appeal within a period of four weeks from today b) In the event of appeal being preferred within a period of four weeks from today the issue of limitation shall not Patna High Court CWJC No.43421 dt.22 12 2021 come in the way of adjudication of the appeal on merits c) Opportunity shall be granted to the parties to place on record all essential documents and materials if so required and desired d) Petitioner through learned counsel undertakes to fully cooperate and not take unnecessary adjournment e) The Appellate Authority shall decide the appeal on merits in compliance of the principles of natural justice f) The Appellate Authority shall pass a reasoned and speaking order within a period of eight weeks from the date of filing of the appeal g) Copy of the reasoned and speaking order passed by the Appellate Authority shall be supplied to the parties h) Equally liberty reserved to the parties to take recourse to such other remedies as are otherwise available in accordance with law i) We are hopeful that as and when petitioner takes recourse to such remedies as are otherwise available in law before the appropriate forum the same shall be dealt with in accordance with law and with reasonable dispatch j) We have not expressed any opinion on merits and all issues are left open Patna High Court CWJC No.43421 dt.22 12 2021 k) Liberty reserved to the petitioner to challenge the order before the appropriate forum if required and desired The instant petition sands disposed of in the aforesaid Sanjay Karol CJ) ( S. Kumar J

A reopening notice u/s 148 of the Income Tax Act, 1961 issued in the name of a deceased assessee is null and void: High Court of Delhi

The sine qua non for acquiring jurisdiction to reopen an assessment is that such notice should be issued in the name of the correct person. This requirement of issuing notice to a correct person and not to a dead person is not merely a procedural requirement but is a condition precedent to the impugned notice being valid in law. Consequently, a reopening notice under Section 148 of the Act, 1961 issued in the name of a deceased assessee is null and void. The legal heirs are under no statutory obligation to intimate the death of the assessee to the Revenue. These were stated by High Court of Delhi, consisting Justice Manmohan in the case of Dharamraj vs. Income Tax Officer [W.P.(C) 9227/2021] on 17.01.2022. The facts of the case are that the petitioner is the son of Late Sh. Bhanger Singh Tanwar (hereinafter referred to as the ‘Assessee’) who died on 14.01.2016. The impugned notice under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’) was issued in the name of the Assessee. The petitioner claims that he did not receive the said notice. Subsequently, notice dated 30.10.2019 under Section 142(1) of the Act was again issued in the name of the Assessee. As no response was received to these notices, a Show Cause Notice was issued to the Assessee. Finally, an assessment order was passed against the Assessee. Notice under Section 221(1) and 271(1) (b) of the Act were also issued in the name of the Assessee. The Counsel for the petitioner challenged the above notice served on petitioner and all the other proceedings on the ground that they were initiated against a person who had died prior to the issuance of notice and therefore, all proceedings were void ab initio. The Counsel for the respondent submitted that notice under Section 148 of the Act was issued at the same address of the Assessee which is available in the ITD data base. The said notice was duly served as it was never received back by the respondent. Thereafter, notice under Section 142 (1) was issued at the same address and was served by the postal agencies. As no response to the communications was received, a Show Cause Notice was issued and sent again at the same address. The counsel further submitted that the factum of death of the Assessee was never communicated to the respondent by the legal heirs, though the notices were duly served at the given address. He contended that the petitioner, therefore, has an alternate efficacious remedy in form of a statutory appeal and this Court should refuse to entertain the present petition.

W.P.(C) 9227 2021 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 17.01.2022 Petitioner Through Mr.Jitender Kumar Adv. INCOME TAX OFFICER Respondent Through Mr.Sanjay Kumar Sr.SC with Ms.Easha Kadian Adv. HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA NAVIN CHAWLA J.The petition has been heard by way of video conferencing. The present petition has been filed by the petitioner challenging the notice dated 30.03.2019 issued by the respondent under Section 148 of the Income Tax Act 1961and all consequential proceedings emanating therefrom including orders passed by the Assessing Officer. The petitioner is the son of Late Sh. Bhanger Singh Tanwar hereinafter referred to as the ‘Assessee’) who died on 14.01.2016. The impugned notice under Section 148 of the Act was issued in the name of the Assessee. The petitioner claims that he did not WP(C) No.9227 2021 receive the said notice. Subsequently notice dated 30.10.2019 under Section 142(1) of the Act was again issued in the name of the Assessee. As no response was received to these notices a Show Cause Notice dated 15.12.2019 was issued to the Assessee. Finally an assessment order dated 23.12.2019 was passed against the Assessee. Notice dated 01.02.2020 under Section 221(1) and notice dated 05.07.2021 under Section 271(1)of the Act were also issued in the name of the Assessee. The petitioner has challenged the above notices and proceedings on the ground that they were initiated against a person who had died prior to the issuance of notice and therefore all proceedings are void ab initio. On the other hand the learned counsel for the respondent submits that notice under Section 148 of the Act was issued at the same address of the Assessee which is available in the ITD data base. The said notice was duly served as it was never received back by the respondent. Thereafter notice under Section 142 was issued on 30.10.2019 at the same address and was served by the postal agencies. As no response to the communications was received a Show Cause Notice dated 15.12.2019 under Section 144 of the Act was issued and sent again at the same address. Assessment order under Section 144 of the Act was thereafter passed on 23.12.2019 making an addition of Rs.48 53 000 under Section 69A of the Act being unexplained cash deposit. Penalty proceedings under Sections 271(1)271(1)(b) and 271F were also initiated by issuing a Show Cause Notice again served at the same address. Though all the correspondences to the Assessee WP(C) No.9227 2021 were made through speed post none of the correspondence prior to the assessment order dated 23.12.2019 was received back through postal agency in the office of the respondent. Only the assessment order was received back with the remark that the addressee had died. The learned counsel for the respondent submits that the factum of death of the Assessee was never communicated to the respondent by the legal heirs though the notices were duly served at the given address. He submits that the petitioner therefore has an alternate efficacious remedy in form of a statutory appeal and this Court should refuse to entertain the present petition. 7. We have considered the submissions made by the learned counsels for the parties. The issue of validity of a notice and proceedings held subsequent thereto against a dead person is no longer res integra. This Court in Savita Kapila vs. Assistant Commissioner of Income Tax in W.P.No.3258 2020 has held as under: “AN ALTERNATIVE STATUTORY REMEDY DOES NOT OPERATE AS A BAR TO MAINTAINABILITY OF A WRIT PETITION WHERE THE ORDER OR NOTICE OR PROCEEDINGS ARE WHOLLY WITHOUT THE ASSESSING OFFICER HAD NO JURISDICTION TO INITIATE ASSESSMENT PROCEEDINGS THE MERE FACT THAT SUBSEQUENT ORDERS HAVE BEEN PASSED WOULD NOT RENDER THE CHALLENGE TO JURISDICTION INFRUCTUOUS. 24. Further the fact that an assessment order has been passed and it is open to challenge by way of an appeal does not denude the WP(C) No.9227 2021 CONSEQUENTLY petitioner of its right to challenge the notice for assessment if it is without jurisdiction. If the assumption of jurisdiction is wrong the assessment order passed subsequent would have no legs to stand. If the notice goes so does the order of assessment. It is trite law that if the Assessing Officer had no jurisdiction to initiate assessment proceeding the mere fact that subsequent orders have been passed would not render the challenge to jurisdiction infructuous. THE SINE QUA NON FOR ACQUIRING ASSESSMENT IS THAT NOTICE UNDER SECTION 148 SHOULD BE ISSUED TO A CORRECT PERSON AND NOT TO A DEAD JURISDICTIONAL REQUIREMENT UNDER SECTION 148 OF THE ACT 1961 OF SERVICE OF NOTICE WAS NOT FULFILLED IN THE PRESENT INSTANCE. xxxxx 26. In the opinion of this Court the issuance of a notice under Section 148 of the Act is the foundation for reopening of an assessment. Consequently the sine qua non for acquiring jurisdiction to reopen an assessment is that such notice should be issued in the name of the correct person. This requirement of issuing notice to a correct person and not to a dead person is not merely a procedural requirement but is a condition precedent to the impugned law. Mumbai & Ors. 2019) 2 TMI 1209 Bombay High Court]. 27. xxxxx Consequently in view of the above a reopening notice under Section 148 of the Act WP(C) No.9227 2021 SHOES OF 1961 issued in the name of a deceased assessee is null and void. xxxxxx AS IN THE PRESENT CASE PROCEEDINGS WERE NOT INITIATED PENDING AGAINST THE ASSESSEE WHEN HE WAS ALIVE AND AFTER HIS DEATH REPRESENTATIVE DID NOT STEP INTO THE DECEASED ASSESSEE SECTION 159 OF THE ACT 1961 DOES NOT APPLY TO THE PRESENT CASE. 30. Section 159 of the Act 1961 applies to a initiated pending against the assessee when he is alive and after his death representative steps into the shoes of the deceased assessee. Since that is not the present factual scenario Section 159 of the Act 1961 does not apply to the present case. 31. xxxxx THERE IS NO STATUTORY REQUIREMENT IMPOSING AN OBLIGATION UPON LEGAL HEIRS TO INTIMATE THE DEATH OF THE ASSESSEE. 32. This Court is of the view that in the absence of a statutory provision it is difficult to cast a duty upon the legal representatives to intimate the factum of death of an assessee to the income tax department. After all there may be cases where the legal representatives are estranged from the deceased assessee or the deceased assessee may have bequeathed his entire wealth to a charity. Consequently whether PAN record was updated or not or whether the Department was made aware by the legal representatives or not is irrelevant. In Alamelu Veerappan [2018 TMI 760 Madras High Court] it has been held WP(C) No.9227 2021 the part of “nothing has been placed before this Court by the Revenue to show that there is a statutory obligation on representatives of the deceased assessee to immediately intimate the death of the assessee or take steps to cancel the PAN registration.” xxxxx 34. Consequently the legal heirs are under no statutory obligation to intimate the death of the assessee to the Revenue. SECTION 292B OF THE ACT 1961 HAS BEEN HELD TO BE INAPPLICABLE VIS À VIS NOTICE ISSUED TO A DEAD PERSON IN RAJENDER KUMAR SEHGAL TMI 697CHANDRESHBHAI JAYANTIBHAI PATELTMI 353 GUJARAT HIGH COURT] AND ALAMELU VEERAPPANTMI 760 MADRAS HIGH COURT]. 35. This Court is of the opinion that issuance of notice upon a dead person and non service of notice does not come under the ambit of mistake defect or omission. Consequently Section 292B of the Act 1961 does not apply to the present case. IN RAJINDER KUMAR SEHGAL A COORDINATE BENCH OF THIS COURT HAS HELD THAT SECTION 292BB OF THE ACT 1961 IS APPLICABLE TO AN ASSESSEE AND NOT TO A LEGAL REPRESENTATIVE. xxxxx 38. This Court is also of the view that Section 292BB of the Act 1961 is applicable to an assessee and not to a legal representative. Further in the present case one of the legal heirs of the deceased assessee petitioner had neither cooperated in the WP(C) No.9227 2021 assessment proceedings nor filed return or waived the requirement of Section 148 of the Act 1961 or submitted to jurisdiction of the Assessing Officer. She had merely uploaded the death certificate of the deceased assessee. 40. Consequently the applicability of Section 292BB of the Act 1961 has been held to be attracted to an assessee and not to legal representatives.” The above judgment was followed by this Court in W.P.(C) No.2678 2020 titled Mrs. Sripathi Subbaraya Manohara L H Late Sripathi Subbaraya Gupta vs. Principal Commissioner of Income Tax 22 N.Delhi & Anr. In the present case also as the notice under Section 148 of the Act was issued against a dead person the same is null and void and all consequent proceedings orders including the assessment order and the subsequent notices being equally tainted are liable to be set aside. 11. Consequently the impugned notice dated 30.03.2019 issued under Section 148 of the Act is set aside along with all consequential proceedings notices assessment orders. 12. The petition is allowed. There shall be no order as to costs. JANUARY 17 2022 NAVIN CHAWLA J MANMOHAN J WP(C) No.9227 2021

A mistake by a lawyer cannot work to the detriment of the client: High Court of Delhi

The provision for territorial jurisdiction has to be interpreted consistent with the object of facilitating remedies for the victims of accidents. Hyper technical approach in such matters can hardly be appreciated. This was held in the case of Saddam Hussain v Ram Prasad and Ors, [CM (M) 81/2021] by Hon’ble Justice Prathibha M singh in the High Court of Delhi. The mother of the Petitioner met with an accident while she was traveling by bus in Uttar Pradesh. The Petitioner then filed the claim petition before the Presiding Officer, MACT on 19th March 2016. The Respondents filed their written statements before the MACT in which they took the plea that the insurance company i.e. United Indian Insurance Company Limited, is liable to pay the compensation. The insurance company objected to the jurisdiction of the MACT in Saket Courts, New Delhi. An application was filed raising the issue of maintainability, by the insurance company to which a reply was also placed. Counsel for the Petitioner, however, withdrew the said petition under the impression that the MACT in Delhi would not have jurisdiction to hear the claim petition. Petitioners placed their reliance on Malati Sardar v. National Insurance Company Ltd., (2016) 3 SCC 43, and was stated to have been advised to file an application for restoration, relying upon this judgment of the Supreme Court. The MACT refused to restore the claim petition of the Petitioner. Hence, the petition was filed under Article 227 of the Constitution of India. Counsel appearing for the insurance company submits that once the lawyer has withdrawn the petition, there is always an option to file a fresh petition before the appropriate jurisdiction. The Court observed that It is a settled position in law that a litigant cannot be made to suffer due to the mistake of a lawyer. In Malati Sadar (supra), the Supreme Court has held that “The provision in question, in the present case, is a benevolent provision for the victims of accidents of negligent driving. The provision for territorial jurisdiction has to be interpreted consistent with the object of facilitating remedies for the victims of accidents. Hyper technical approach in such matters can hardly be appreciated. There is no bar to a claim petition being filed at a place where the insurance company, which is the main contesting party in such cases, has its business. In such cases, there is no prejudice to any party. There is no failure of justice.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 9th March 2021 SADDAM HUSAIN CM81 2021 Through: Mr. C. M. ..... Petitioner Patel Advocate M:7683041412) Mr. Faiz Imam AdvocateThrough: Mr. Pankaj Seth Advocate. ..... Respondents RAM PRASAD AND ORS. JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J(Oral) 1. This hearing has been done through hybrid mode2. Allowed subject to all just exceptions. Application is disposed of. CM81 2021 The present petition has been filed challenging the impugned order dated 1st February 2020 passed by the Presiding Officer Motor Accident Claims Tribunal South District Saket Courtsvide which the application of the Petitioner for restoration of the claim petition before the MACT has been dismissed. The brief background is that the mother of the Petitioner met with an accident while she was travelling by a bus in Uttar Pradesh. The Petitioner then filed the claim petition before the Presiding Officer MACT on 19th March 2016. The Respondents filed their written statements before the CM81 2021 Page 1 of 5 MACT in which they took the plea that the insurance company i.e. Respondent No.3 United Indian Insurance Company Limited is liable to pay the compensation. The insurance company objected to the jurisdiction of the MACT in Saket Courts New Delhi. An application was filed raising the issue of maintainability by the insurance company to which a reply was also placed on record on 25th April 2018. Ld. counsel for the Petitioner however withdrew the said petition under the impression that the MACT in Delhi would not have jurisdiction to hear the claim petition. Thereafter the Petitioner is stated to have been advised to file an application for restoration relying upon the judgment of the Supreme Court in Malati Sardar v. National Insurance Company Ltd. 3 SCC 43. However vide the impugned order the MACT has refused to restore the claim petition of the Petitioner. Hence the present petition has been filed under Article 227 of the Constitution of India. 7. Ld. Counsel for the Petitioner relies upon a similar case in which this Court had taken a view that in view of the judgment in Malati Sardarthere is no bar in filing a claim petition in the jurisdiction where the insurance company is carrying on its business. He submits that a similar order may be passed in the present case. 8. Mr. Seth ld. Counsel appearing for the insurance company submits that once the lawyer has withdrawn the petition there is always an option to file a fresh petition before the appropriate jurisdiction. 9. Heard ld Counsels for the parties. This Court has perused the impugned order dated 1st February 2020. It is clear from the perusal of the initial petition and reply qua non maintainability that the Petitioner had contended CM81 2021 Page 2 of 5 that the Court in Saket would have jurisdiction. Thus the reasons of withdrawal are not clear which appears to have been done due to legal advice given to the Petitioner. It is a settled position in law that a litigant cannot be made to suffer due to the mistake of a lawyer. In Malati Sadarthe Supreme Court has held as under: “14. The provision in question in the present case is a benevolent provision for the victims of accidents of negligent driving. The provision for territorial jurisdiction has to be interpreted consistent with the object of facilitating remedies the victims of accidents. Hyper technical approach in such matters can hardly be appreciated. There is no bar to a claim petition being filed at a place where the insurance company which is the main contesting parties in such cases has its business. In such cases there is no prejudice to any party. There is no failure of 11. In CM(M) 93 2021 titled Savitri and Ors. v. Keshav Singh & Ors. this Court had dealt with the similar issue where the written statement had already been filed and the counsel thereafter under the impression that the MACT would not have jurisdiction prayed for withdrawal of claim petition. In the said petition this Court vide order dated 4th February 2021 has observed as “8. Thus the clear legal position is that the claims against the insurance company can be filed where the company has its office or carries on business. The petition need not be filed only at the place where the accident took CM81 2021 Page 3 of 5 place. The withdrawal of the petition was thus a genuine mistake may be based on legal advice received the Petitioner. 9. It is the settled position of law that a mistake by a lawyer cannot work to the detriment of the client. A perusal of the order dated 25th April 2018 passed by the MACT clearly shows that the claim petition was withdrawn due to the preliminary objection as to jurisdiction which was raised by the insurance company and the said withdrawal may be under wrong legal advice. 10. Considering the fact that the written statement had already been filed before the MACT when the withdrawal of the petition took place and also the fact that The Oriental Insurance Company Ltd. has its registered office in Delhi and is not inconvenienced in any manner the impugned order dated 30th January 2020 and order dated 25th April 2018 passed by the MACT are set aside. The petition is restored to its original number. However the delay during this period cannot be the fault of the insurance company. Thus if the claim of the Petitioner is allowed for the period between 25th April 2018 till today i.e. 4th February 2021 no interest would be liable to be paid. 11. The MACT shall now proceed with the claim petition in accordance with law. List before the MACT on 1st March 2021. Copy of the order be communicated to Dr. Hardeep Katir Presiding Officer MACT South East District Saket Courts.” 12. In view of this settled position and the above discussion the present CM81 2021 Page 4 of 5 petition is liable to be allowed in favour of the Petitioner. The application for restoration is allowed and the claim petition is restored to its original number and the MACT shall now proceed with the claim petition in accordance with law. be paid. 13. If before the MACT the claim petition of the Petitioner is allowed as the insurance company ought not to be prejudiced due to the period during which the petition was withdrawn by the Petitioner for the period between 25th April 2018 till today i.e. 9th March 2021 no interest would be liable to 14. Considering that the accident took place in 2015 and the claim petition was filed in 2016 the MACT would make an endeavour to dispose of the matter expeditiously and in any case within nine months. 15. List before the MACT on 22nd March 2021. The parties shall appear before the MACT on the said date. 16. The present petition is disposed of in the above terms. Copy of this order be communicated to Shri Atul Kumar Garg ld. PO MACT South District Saket Courts New Delhi. PRATHIBA M. SINGH MARCH 9 2021 dk Ak CM81 2021 Page 5 of 5

The mortgage of the secured creditor gets prior charge over the charge for Tax/VAT dues: Bombay High Court

Even if Section 26-E was effective only prospectively from 24th January 2020 and not applicable to the facts at hand, that would not make any difference; as according to us Section 31-B of the RDB Act itself would be sufficient to give priority to a secured creditor over the Respondent’s charge for claiming tax dues. This judgment was pronounced by the division bench comprising Hon’ble Justice Ujjal Bhuyan and Justice Abhay Ahuja in the matter of State Bank of India v. The State of Maharashtra and Ors. [WP No. 92816 of 2020]. By this petition which is filed under Article 226 of the Constitution of the India 1950, Petitioner is challenging the attachment of Plot No. W-7 in Gokul Shirgoan Industrial Area in Kolhapur under the provisions of Section 32 of the Maharashtra Value Added Tax Act, 2002 and proceedings under the Maharashtra Land Revenue Code. The admitted facts of the case are: On the request of Respondent No. 3, the petitioner had sanctioned various credit facilities in his favour by way of sanctioned letters of arrangements. To avail the sanctioned credit facilities, Respondent No.3 from time to time executed in favour of the Petitioner various security documents including security by way of mortgage/charge over, inter-alia, the said property being the piece and parcel of land. To evidence the said mortgage/charge, necessary documents for the creation of an equitable mortgage commencing from 13th January 2014 were executed. Respondent No.3 failed to regularly maintain their loan accounts with Petitioner and the Petitioner initiated proceedings under the Recovery of Debts and Bankruptcy Act, 1993. The Hon’ble High Court while deciding upon the matter stated that “from a plain and conjoint reading of Section 31-B of the RDB Act and Section 25-E of the SARFAESI Act it is clear that by virtue of the non-obstante language contained therein, the rights of secured creditors to realize secured debts by the sale of assets over which security interest is created, shall have priority over Government dues including revenues, taxes, cesses and rates due to the Central/State Government or to the Local Authority.” The court held that “We therefore quash and set aside the attachment /charge on the said Plot No. W-7 under Section 32 of the MVAT Act as well as notices issued in relation thereto by Respondent No.2. We therefore quash and set aside the attachment /charge on the said Plot No. W-7 under Section 32 of the MVAT Act as well as notices issued in relation thereto by Respondent No.2. allowed. Writ petition is accordingly allowed and Rule is made absolute in the above terms. Interim order passed earlier stands vacated. No order as to costs.” The Court relied upon the case of ASREC (India) Limited v. The State of Maharashtra & Ors. [WP No. 1039 of 2017]. This was a case where the challenge to an auction notice by the Petitioner who was the assignee of the debt of borrower where the Respondent No.2 viz. in that case Sales Tax Department had published an auction notice under the provisions of the MLRC for recovery of tax dues of the company by attaching the assets of its directors. In that case, also physical possession of the concerned property was taken over by the Petitioner therein pursuant to Section 13(2) notice under the SARFAESI Act. The Court further relied upon the case of Kalupur Commercial Co-operative Bank Ltd. v. State of Gujrat where the court held that “if any central statute creates a priority of charge in favour of the secured creditor, the same will rank above the charge in favour of the State for its dues under the value-added tax of the State.” Click here to read the judgement

1 WPST 92816 2020 .doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITIONNO. 92816 OF 2020 State Bank of India a body corporate constituted under the provisions of State Bank of India Act 1955 having its Corporate Centre at State Bank Bhawan Madame Cama Road Mumbai 400 021 and its Branch amongst others at Stressed Assets Recovery Branch 2nd Floor 321 A 3 Mahatma Phule Peth Seven Loves Chowk Shankarsheth Road Pune 411 042 through its Chief Manager Mr. Jagdish Mohan Nakade The State of Maharashtra through Finance Department Mantralay Mumbai The Deputy Commissioner of Sales Tax Office of the Deputy Commissioner of Sales Tax KOL VAT_E 008 GST Bhavan Kasba Bawada Kolhapur 416 006 Krishna Industries a Partnership Firm having its address at W 7 MIDC Gokul Shirgaon Tal. Karveer Dist. Kolhapur Mr. Vivek Sawant for the Petitioner Ms. S. D. Vyas “B” panel Counsel for the Respondent State None for Respondent No.3. 2 WPST 92816 2020 .doc CORAM : UJJAL BHUYAN ABHAY AHUJA JJ 26th NOVEMBER 2020 17th DECEMBER 2020 RESERVED ON PRONOUNCED ON JUDGMENTunder the provisions of Section 32 of the Maharashtra Value Added Tax Act 2002and proceedings under the Maharashtra Land Revenue Code “MLRC”) initiated by the Respondent No.2 for recovery of VAT dues of Respondent No.3 as detailed in the communication dated 28th March 2018 from Respondent No.2 even though the said property has 3 WPST 92816 2020 .doc been mortgaged by Respondent No.3 in favour of the Petitioner. In short Petitioner is claiming priority of charge on the said property as secured creditor in respect of secured debt owed by Respondent No.3 to Petitioner over the sales tax dues payable by Respondent No.3 to reliefs: Petitioner has filed this petition seeking the following for Writ of Mandamus or Writ direction or Order in the nature of Mandamus any other Writ direction or Order directing the Respondent Nos.1 and 2 to i) forthwith remove their charge from the Plot No.W 7 ii) forthwith raise their attachment on the said Plot No.W 7 informed vide the Notice dated 28.03.2018 bearing Ref. No. DCST KOL VAT E 008 Krishna for an interim order and injunction of this Hon’ble Court pending hearing and final disposal of this Petition directing the Respondent Nos.1 and 2 to i) forthwith remove their charge from the said Plot No.W 7 and ii) forthwith raise their attachment on the said Plot No.W 7 informed vide the Notice dated 28.03.2018 bearing Ref. No. DCST KOL VAT E 008 Krishna iii) forbear from interfering in any manner with the Petitioner’s right to proceed under the provisions of the SARFAESI Act to enforce its security interest in the said Plot No.W 7 of the Respondent No.3 c. Ad interim reliefs in terms of prayerabove for costs of this petition 4 WPST 92816 2020 .doc for such other and further reliefs as the nature and circumstances of the case may require and this Hon’ble court may deem fit and proper. Before we proceed to deal with the controversy at hand brief facts of the case are set out as under Petitioner is a Bank constituted and functioning under the State Bank of India Act 1955 with its Corporate Center at State Bank Bhawan Madame Cama Road Mumbai 400 021 and its Branch amongst others at Stressed Assets Recovery Branch Shankarsheth Road Pune 411 042 Respondent No.1 is the State of Maharashtra through Finance Department and Respondent No.2 who is the Deputy Commissioner of Sales Tax exercises powers and functions under the Maharashtra Value Added Tax Act 2002though the same is disputed by the Respondent No.2. Since Respondent No.3 failed to regularly maintain their loan accounts with Petitioner it is submitted that the Petitioner initiated proceedings under the Recovery of Debts and Bankruptcy Act 1993by filing Original Application for recovery of bank dues of Rs. 2.49 crores from the Respondent No.3 i.e. M s.Krishna Industries which is pending adjudication before the Debts Recovery Tribunal at Pune as well as under the 6 WPST 92816 2020 .doc Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002to enforce their security interest in the mortgaged and hypothecated assets. Notice dated 27th November 2017 was issued under Section 13(2) of the SARFAESI Act symbolic possession of the said Plot No.W 7 was taken on 21st February 2018 and the physical possession was taken on 29th May 2019 Petitioner received notice dated 28th March 2018 bearing Ref. No. DCST KOL VAT E 008 Krishna Industries Recovery B 271 from Respondent No.2 informing the Petitioner regarding the attachment of the said Plot No.W 7 under the provisions of Section 32 of the MVAT Act in pursuance of which proceedings under the MLRC were initiated by them for recovery of VAT dues. Petitioner also received a communication notice dated 28th March 2018 being Ref.No.DC E 008 KOP 213 F 318 REC B 270 issued under Section 33(1) of the MVAT Act requiring to pay Respondent No.2 any amount due from the Petitioner to or held by the Petitioner for or on behalf of Respondent No.3 upto the amount of sales tax arrears as detailed in the said notice. Provisions of Section 37 of the MVAT Act regarding first charge of the State in respect of liability under the MVAT Act 7 WPST 92816 2020 .doc subject to any provision regarding creation of first charge in any Central Act was also brought to the notice of the Petitioner. Provisions of Section 38 of the MVAT Act regarding transfers or parting of possession during the recovery proceedings under the Act or after completion thereof being void was also brought to the notice of the It appears that Petitioner conducted an e auction on 17th July 2019 under the provisions of the SARFAESI Act and sold the said property being Plot No.W 7 through e auction for Rs.89.25 Lakhs Petitioner took up the issue with the Sales Tax Department had personal meetings with the officials of the Respondent No.2 and addressed letters dated 20th August 2019 and 27th August 2019 to the Respondent No.2. The Respondent No.2 was informed of the aforesaid e auction sale and was requested to remove the charge on the said property to enable the Petitioner to transfer the property to the successful auction purchaser since the purchaser had to pay the auction amount within the stipulated time. It was stated that despite notice Respondent No.2 had not taken any action and that the officials of MIDC Gokul Shirgoan Industrial area were refusing to issue No Objection Certificateand that inaction by 8 WPST 92816 2020 .doc the said Respondent would jeopardize the purchase transaction. The Respondent No.2 was requested to remove charge at the earliest to enable the completion of transaction within time. Respondents were also informed of the decision of the Bombay High Court in the matter of priority of charge and that since no surplus funds would remain Petitioner would be unable to remit any amount towards the sales tax dues. By the Petitioner’s advocate’s letter dated 18th September 2019 Respondents were informed that the Petitioner had already auctioned the property and had confirmed the sale but was unable to transfer the said property in the name of the auction purchaser due to non issuance of NOC by the Respondent No.2. By the said Advocate’s letter Respondent No.2 was called upon to issue NOC for recording the property in the name of the auction purchaser further stating that in case the sale proceeds received from the said property were more than the Petitioner’s dues claim the same would be handed over to the Respondent No.2 for settlement of its claim Despite the above Respondent No.2 failed to favourably respond or raise the charge attachment on the said Plot No.W 7 and that by letter dated 11th September 2019 Respondent No.2 intimated 9 WPST 92816 2020 .doc that VAT dues of Respondent No.3 as on 06th September 2019 were Rs.85 56 784 alongwith further interest and that they had first charge claim of sales tax It is however submitted in the Petition that sale of Plot No.W 7 stands cancelled and as such the said auction sale has become irrelevant for the purpose of this writ petition Respondent No.2 has published public notice on 24th September 2019 in the newspaper “Pudhari Kolhapur edition” to the general public thatthe Respondent No.3 was in arrears of sales tax dues as detailed therein that they had a first charge on the movable immovable assets of the Respondent No.3 as per the provisions of the relevant Statute that any transaction of purchasing renting of assets of the Respondent No.3 without the No Objection of the Respondent No.2 shall be presumed to have been done with an intention to avoid payment of sales tax dues and that such transaction shall be declared as void in terms of the relevant provisions of law Petitioner states and submits that the aforesaid act of the Respondent No.2 in placing their charge attaching the said Plot 10 WPST 92816 2020 .doc No.W 7 not raising removing the same despite being appraised and informed of the correct position in law is per se illegal unlawful unreasonable and in violation and breach of the statutory provisions It is the case of the Petitioner that the charge of the Petitioner as secured creditor over the assets of Respondent No.3 has priority over the charge if any of the Sales Tax authority. Action of the Respondent No.2 in attaching the said Plot No.W 7 mortgaged in favour of the Petitioner and not removing the attachment despite repeated requests in writing is illegal and contrary to law requiring intervention of this Court On the other hand in the reply filed on behalf of Respondent No.2 it is submitted that Respondent No.3 is a partnership firm and is a dealer having its place of business on Plot No.W 7 Kolhapur who is liable to pay dues as per returns for the period of 2014 15 2015 16 and 2016 17 being assessed by the authority as per the MVAT Act. It is submitted that comprehensive assessment and issue based assessment orders were passed by the proper authority which resulted into total payable dues of Rs.98 68 699 under the MVAT Act and the Central Sales Tax 1956 the “CST Act”) which are payable to Respondent No.2. The said 11 WPST 92816 2020 .doc Respondent has given details for three years as well as the chronology of events where the issue based assessment order was passed on 13th January 2020 for the period of 1st April 2014 to 31st March 2017 whereas for the period of 1st April 2014 to 31st March 2014 the assessment was dated 2nd December 2019. It is submitted that since Respondent No.3 had failed to pay the dues as per demand notices served on it recovery action under Sections 33 and 34 of the MVAT Act for pending VAT and CST dues of Rs.85 56 789 were initiated on 10th March 2016. For recovery of the said dues proceedings under the MLRC were initiated pursuant to notice dated 17th March 2016 2nd March 2017 and 20th March 2018. Claim for the property was lodged vide letter dated 20th March 2018 with MIDC Kolhapur for an amount of Rs.22 54 133 . It is contended that pursuant to Section 37 of the MVAT Act the State authorities have first charge on the said property with respect to any amount of tax penalty interest etc. Further contention is that the recovery proceedings initiated by the Respondent No.2 were before the notification of amendment including Section 26 E in the SARFAESI Act which came to be notified prospectively on 24th January 2020. In the meanwhile Respondent Nos.1 and 2 had already asserted the claim of the State Government 12 WPST 92816 2020 .doc for recovery of dues of Respondent No.3. It is therefore submitted that in view of the prospective nature of the amendment and the decision of the Bombay High Court being after initiation of recovery proceedings the State Government has priority charge over the bank dues. Accordingly it is contended that the petition be rejected Mr. Vivek Sawant learned counsel for the Petitioner submits that rejoinder affidavit is not required and the matter can be argued on the basis of pleadings on record. He has placed reliance upon the provisions of Section 31 B of the RDB Act and Section 26 E of the SARFAESI Act to submit that the act of the Respondent No.2 in placing their charge attaching the said Plot No.W 7 not raising removing the same despite being appraised and informed of the correct position in law is per se illegal unlawful unreasonable and in violation and breach of the statutory provisions. He would submit that the said Plot No.W 7 of the borrowerLimited Vs. The State of Maharashtra & Ors. in Writ Petition No.10317 in support of his contention. He would further submit that despite repeated requests Respondent No.2 did not remove the charge attachment on the said Plot No.W 7. According to him the said approach on the part of the Respondent No.2 clearly demonstrates an arbitrary and high handed approach. He accordingly submits that Petitioner’s rights as secured creditor are liable to be protected by this Court and that the attachment by the Respondent No.2 on Plot No.W 7 is liable to be interfered with by this Court. In support of his submissions he has laboriously taken us through the provisions of the RDB Act the SARFAESI Act the MVAT Act as well as the decision of this Court in the case of ASRECLimitedhas been challenged in the Supreme Court and is pending. Although there is no stay she submits that the hearing of this case may be deferred in view of the filing of SLP. Referring to Section 26 B of SARFAESI Act she submits that the Petitioner has not registered any security interest with the Central Registry of Securitisation and Asset Reconstruction and Security Interest of India “CERSARSI”) as required under Section 26 D of the SARFAESI Act which provides that no secured creditor shall be entitled to exercise the rights of enforcement of securities under the SARFAESI Act unless the security interest has been registered with the Central Registry. As the Petitioner has failed to disclose any such registration the debts due to the Petitioner cannot be paid in priority over the tax dues According to her Section 26 E of the SARFAESI Act is not applicable to the facts of this case as the said section has been notified on 24 th January 2020 and is effective prospectively. She would submit that the Respondent Nos.1 and 2 have already asserted the claim of the State Government for recovery of tax dues and that the attachment has been initiated to protect the interest of the revenue. She reiterates 15 WPST 92816 2020 .doc that the notification making Section 26 E effective prospectively is with effect from 24th January 2020 whereas the case of the Petitioner falls prior to the notification of the amendment. She would submit that the contentions of the Petitioner Bank are therefore liable to be We have heard learned counsel for the parties and also perused the papers and proceedings in the matter This is a case where Petitioner had lent monies to Respondent No.3 inter alia on the basis of security of the equitable mortgage of the said property created on 13th January 2014 and extended on 22nd February 2014. Since there was failure to maintain its loan account with the Petitioner i.e. the outstanding could not be repaid to the Petitioner proceedings under the RDB Act and the SARFAESI Act were instituted by the Petitioner against Respondent No.3. The physical possession of the said Plot No.W 7 was taken on 29th May 2019 pursuant to the order under the SARFAESI Act. Though the e auction conducted by the Petitioner Bank stands cancelled nevertheless the Bank is claiming priority of its mortgage on the said property over the charge of the Sales Tax Department. 16 WPST 92816 2020 .doc Therefore the question that arises for the consideration of this Court is of priority of debt whether secured creditor or state taxes will get priority Before we proceed to deal with the issue at hand it would be relevant to consider the definition of “secured creditor” as given in the RDB Act. Section 2(la) defines “secured creditor” as under: “secured creditor” shall have the meaning as assigned to it in clause zd) of sub sectionof section 2 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002Section 2(1)(zd) of the SARFAESI Act referred to above defines “secured creditor” as under zd) “secured creditor” means— i) any bank or financial institution or any consortium or group of banks or financial institutions holding any right title or interest upon any tangible asset or intangible asset as specified in clauseii) debenture trustee appointed by any bank or financial institution or iii) an asset reconstruction company whether acting as such or managing a trust set up by such asset reconstruction company for the securitisation or reconstruction as the case may be or iv) debenture trustee registered with the Board appointed by any company for secured debt securities or v) any other trustee holding securities on behalf of a bank or financial Section 2(l) of the SARFAESI Act referred to above defines “financial asset” as under: l) “financial asset” means debt or receivables and includes— 17 WPST 92816 2020 .doc i) a claim to any debt or receivables or part thereof whether secured or unsecured or ii) any debt or receivables secured by mortgage of or charge on immovable property or iii) a mortgage charge hypothecation or pledge of movable property or iv) any right or interest in the security whether full or part underlying such debt or receivables or v) any beneficial interest in property whether movable or immovable or in such debt receivables whether such interest is existing future accruing conditional or contingent or va) any beneficial right title or interest in any tangible asset given on hire or financial lease or conditional sale or under any other contract which secures the obligation to pay any unpaid portion of the purchase price of such asset or an obligation incurred or credit otherwise provided to enable the borrower to acquire such tangible asset or vb) any right title or interest on any intangible asset or licence or assignment of such intangible asset which secures the obligation to pay any unpaid portion of the purchase price of such intangible asset or an obligation incurred or credit otherwise extended to enable the borrower to acquire such intangible asset or obtain licence of the intangible asset or vi) any financial assistance ” Thus from a combined reading of the aforesaid definitions it is clear that Petitioner is a secured creditor as it has a debt receivable due to it which has been secured by mortgage on the said Plot No.W 7 as discussed above. Further it will be also be useful to quote Section 31 B of the RDB Act which reads as under: “31 B Priority to secured creditors. Notwithstanding anything contained in any other law for the time being in force the rights of secured creditors to realise secured debts due and payable to them by sale of assets over which security interest is created shall have priority and shall be paid in priority over all other debts and Government dues including revenues taxes cesses and rates due to the Central Government State Government 18 WPST 92816 2020 .doc or local authority.” Explanation.—For the purposes of this section it is hereby clarified that on or after the commencement of the Insolvency and Bankruptcy Code 2016 316) in cases where insolvency or bankruptcy proceedings are pending in respect of secured assets of the borrower priority to secured creditors in payment of debt shall be subject to the provisions of that Code Likewise Section 26 E of the SARFAESI Act reads as “Section 26 E. Priority to secured creditors. Notwithstanding anything contained in any other law for the time being in force after the registration of security interest the debts due to any secured creditor shall be paid in priority over all other debts and all revenues taxes cesses and other rates payable to the Central Government or State Government or local Explanation.—For the purposes of this section it is hereby clarified that on or after the commencement of the Insolvency and Bankruptcy Code 2016 316) in cases where insolvency or bankruptcy proceedings are pending in respect of secured assets of the borrower priority to secured creditors in payment of debt shall be subject to the provisions of that Code From a plain and conjoint reading of Section 31 B of the RDB Act and Section 25 E of the SARFAESI Act it is clear that by virtue of the non obstante language contained therein the rights of secured creditors to realise secured debts by sale of assets over which security interest is created shall have priority over Government dues including revenues taxes cesses and rates due to the Central State Government or to the Local Authority. We also note the reference in the pleadings to the dates of creation of charge security interest as well as lodging of the claim and dates of commencement of recovery proceedings to 19 WPST 92816 2020 .doc stake a claim of first charge over the said property. Petitioner’s mortgage was created on the said property on 13th January 2014 and as secured creditor it has claimed priority of charge over the charge of the Sales Tax Department. We find that Respondent No.2 had claimed first charge on the said property inter alia stating that it had initiated recovery proceedings under Sections 33 and 34 of the MVAT Act on 10th March 2016 whereas attachment under Section 32 of the MVAT Act was vide letter dated 28th March 2018 to the Petitioner. Petitioner had initiated proceedings under the provisions of the RDB Act. It has also taken steps as noted above to enforce the security interest in the said property vide notice dated 27th November 2017 under Section 13(2) of the SARFAESI Act prior to the notice dated 28th March 2018 of Respondent No.2 Answering Respondents have relied on Section 37 of the MVAT Act which is quoted as under: “37. Liability under this Act to be the first charge. Notwithstanding anything contained in any contract to the contrary but subject to any provision regarding creation of first charge in any Central Act for the time being in force any amount of tax penalty interest sum forfeited fine or any other sum payable by a dealer or any other person under this Act shall be the first charge on the property of the dealer or as the case may be person”. Respondent Nos. 1 & 2 have contended that by virtue of 20 WPST 92816 2020 .doc Section 37 of the MVAT Act the State has a first charge over the said property. We are however unable to agree with this submission in as much as according to the plain language of the Section 37 that first charge is clearly subject to any provision regarding creation of first charge in any Central Act for time being in force which prior mortgage charge has been created in favour of the Petitioner Bank on 13th January 2014 and has a priority under Section 31 B of the RDB Act and Section 26 E of the SARFAESI Act. Therefore by virtue of Section 37 of the MVAT Act Respondent cannot claim priority of charge over the Petitioner’s mortgage At this stage we may draw our attention to the decision of this Court in the case of ASRECLimitednotice under the SARFAESI Act. In short similar issue as in this case arose in that case regarding the priority of charge Referring to the provisions Section 31 B of the RDB Act Section 37 of the MVAT Act the SARFAESI Act as well as to the decisions of the Rajasthan High Court in the matter of G.M.G. Engineers & Contractor Pvt. Ltd. of the High Court of Madhya Pradesh reported in55 GSTR 210(MP) Bank of Baroda Vs. Commissioner of Sales Tax M.P Indore & Anr. the Full Bench Decision of the Madras High Court reported in AIR 2017 Madras 67 in Assistant Commissioner Vs. Indian Overseas Bank & Ors. of the High Court of Gujarat in Special Civil Application No.178918 Kalupur Commercial Co operative Bank ltd. Vs. State of Gujarat. this Court agreed with the consistent view taken in the above decisions and held that if any central statute creates priority of charge in favour of the secured creditor the same will rank above the charge in favour of the State for its dues under the value added tax of the State. The relevant paragraphs of the decision in the case of ASRECLimitedare quoted as under 22 WPST 92816 2020 .doc “12. A perusal of Section 37 of MVAT Act 2002 reveals that though it commences with a non obstante clause but it recognizes that the same shall be subject to any provision regarding creation of the first charge in any Central Act Therefore if by virtue of any provision under a Central Act any priority or charge is created in favour of any party the same shall 13. The claim of the Petitioner is based on Section 31B of RDB Act 1993 which reads as follows “31B. Notwithstanding anything contained in any other law for the time being in force the rights of secured creditors to realise secured debts due and payable to them by sale of assets over which security interest is created shall have priority and shall be paid in priority over all other debts and Government dues including revenues taxes cesses and rates due to the Central Government State Government or local 14. Section 31B in RDB Act 1993 was introduced by an nd Amendment in the year 2016 and was brought into force on 2 September 2016. The non obstante clause in the Section thus overrides any other law for the time being in force. The Sectionaccords priority No.1 to secured creditors with respect to the secured assets 15. This issue came up before the Rajasthan High Court in the matter of G.M.G Engineers & Contractor Pvt. Ltd.. The Court after taking into consideration the provisions of Section 47 of VAT Act in Rajasthan as well as Section 31B of RDB Act held as “We are yet considering the effect of the amended provision The Apex Court has made analysis of a provision of first charge vis a vis secured creditor in the case of Central Bank of Indiathe Madhya Pradesh High Court held as under: “8. In the present case undisputedly a notice of sale by the respondent Commercial Department has been issued on 19.07.2017. The Amendment Act 2016 which incorporates Section 31B reads as under: “31B Notwithstanding anything contained in any other law for the time being in force the rights of secured creditors to realise secured debts due and payable to them by sale of assets over which security interest is created shall have priority and shall be paid in priority over all other debts and Government dues including revenues taxes cesses and rates due to the Central Government State Government or Local Explanation. For the purposes of this section it is hereby clarified that on or after the commencement of the Insolvency and Bankruptcy Code 2016 in cases where insolvency or bankruptcy proceedings are pending in respect of secured assets of the borrower priority to secured creditors in payment of debt shall be subject to the provisions of that 9. Thus the aforesaid statutory provisions makes itvery clear that the dues of the banks are to be recovered at the first instance. Section 33 of the MP VAT Act 2002 reads as under: 24 WPST 92816 2020 .doc “33: Tax to be first chargeNotwithstanding anything to the contrary contained in any law for the time being in force and subject to the provisions of section 350 of the Companies Act 1956any amount of tax and or penalty or interest if any payable by a dealer or other person under this Act shall be first charge on the property of the dealer or 2) Notwithstanding anything contained in this Act where a dealer or person is in default or is deemed to be in default under clauseof subsectionof section 24 and whose property is being sold by a bank or financial institution for recovery of its loan the Commissioner may forgo the right of first charge as mentioned in subsectionagainst the property sold on the following conditions: a) if the arrears of tax penalty interest or part thereof or any other amounts is up to 25 percent of the total auction value the arrears shall be paid in full by the bank of financial b) if the arrears of tax penalty interest or part thereof or any other amounts is more than 15 percent of the total auction value the 25 percent of the total auction value and the amount value as the remaining arrears bear to the total dues of the bank or financial institution shall be paid by the bank or financial institution.” In our considered opinion the Enforcement of Security Interest and Recovery of Debts and Loans and Miscellaneous ProvisionAct 2016 came into force w.e.f 01.09.2016 and by virtue of the said amendment the right of the secured creditors to realise the secured dues and debt due which are payable to the secured creditors by sale of assets over which security has been created shall have priority over all other debts and government dues in including revenues taxes cesses and rates due to the Central Government State Government or Local Authorities Not only this it also has an overriding effect over all other enactments including the provisions the provisions of MP VAT Act Central Sales Tax Act Entry Tax Act and any other Tax Act. Though an attempt has been made to demonstrate 25 WPST 92816 2020 .doc before this Court that the amendment will not dis entitle to recover the dues by them as the dues are outstanding since 2012 nothing prevented the State Government to recover the dues since 2012 and the State Government woke up from slumber only after the amendment came into force and by virtue of the amendment in the Central Act this Court is of the considered opinion that by no stretch of imagination the State Government can be permitted to auction the property in question as Bank of Baroda has priority charge over the said property in light of the amendment which has been 17. Considering a pari materia provision in the Value Added Tax Act in the State of Tamil Nadu in Indian Overseas Bank Case supra) the Full Bench of the Madras High Court took a similar 18. Considering another pari materia provision in the Gujarat Value Added Tax 2003 in Kalupur Commercial Co.operative Bank Ltd.a Division Bench of the Gujarat High Court held as under “35. While it is true that the Bank has taken over the possession of the assets of the defaulter under the SARFAESI Act and not under the RDB Act Section 31 B of the RDB Act being a substantive provision giving priority to the “secured creditors” the same will be applicable irrespective of the procedure through which the recovery is sought to be made This is particularly because Section 2(la) of the RDB Act defines the phrase “secured creditors” to have the same meaning as assigned to it under the SARFAESI Act. Moreover Section 37 of the SARFAESI Act clearly provides that the provisions of the SARFAESI Act shall be in addition to and not in derogation of inter alia the RDB Act. As such the SARFAESI Act was enacted only with the intention of allowing faster recovery of debts to the secured creditors without intervention of the court. This is apparent from the Statement of Objects and Reasons of the SARFAESI Act. Thus an interpretation that while secured creditors will have priority in case they proceed under the RDB Act they will not have such priority if they proceed under the SARFAESI Act 26 WPST 92816 2020 .doc will lead to an absurd situation and in fact would frustrate the object of the SARFAESI Act which is to enable fast recovery to the secured creditors. 36. The insertion of Section 31B of the RDB Act will give priority to the secured creditors even over the subsisting charges under the other laws on the date of the implementation of the new provision i.e. 1.9.2016 .The Supreme Court in the cases of State of Madhya Pradesh v State Bank of Indore 126 STC1(SC) has held that a provision creating first charge over the property would operate over all charges that may be in force. The following observations made in para 5 of the said judgment are “5. Section 33 C creates a statutory charge that prevails over any charge that may be inexistence. Therefore the charge thereby created in favour of the State in respect of the sales tax dues of the second respondent prevailed over the charge created in favour of the bank in respect of the loan taken by the second respondent .There is no question of retrospectivity here as on the date when it was introduced section 33 C operated in respect of all charge that where then in force and gave sales tax dues precedence over them ....” 19. We respectfully agree with the consistent view taken by three Division Benches of three High Courts and the view taken by the Full Bench of the fourth High Court 20. The only contention which needs to be noted which was made by learned counsel for Respondent Nos. 1 and 2 which was not made before the four learned Benches of the four High Courts in their opinions above noted is that Chapter IVA which was inserted in SARFAESI 2002 comprising Sections 26B to 26E warrants a record to be made in the Central Register by the Central Registry creating a security interest. As per learned Counsel as per Sub sectionof Section 26B which is a part of Chapter IVA a secured creditor has to ensure that the security interest is recorded in the record of the Central Registry. The argument therefore was that unless this is done the priority of interest contemplated by Section 26E would not be applicable 27 WPST 92816 2020 .doc 21. The argument is without any substance because the law declared in the four opinions above referred to is that if any Central Statute creates priority of a charge in favour of a secured creditor the same will rank above the charge in favour of a State for a tax due under the Value Added Tax of the State. But we note the fact that the security interest has been entered in the record of the Central Registry” In our considered view the facts in the case at hand being similar to the facts in the case of ASRECLimitedthat decision would squarely be applicable to the facts of this case that if any Central statute creates priority of a charge in favour of a secured creditor the same will rank above the charge in favour of a State for a tax due under the value added tax of the State. Therefore in our view what becomes relevant in the facts of this case is the issue of priority of charge on the said assets of secured debt over tax dues and not whether the charge is first or not in time. In this view of the matter though it would not be necessary for us to deal with the contention of the Respondents relating to the date of effectiveness of Section 26 E of the SARFAESI Act however we are of the view that even if Section 26 E was effective only prospectively from 24th January 2020 and not applicable to the facts at hand that would not make any difference as according 28 WPST 92816 2020 .doc to us Section 31 B of the RDB Act itself would be sufficient to give priority to a secured creditor over the Respondent’s charge for claiming tax dues. The following observations of the Full Bench of the Madras High Court authored by Chief Justice Sanjay Kishan Kaul in the case of The Assistant CommissionerLimitedare relevant and are quoted as under “The writ petitions have been listed before the Full Bench in pursuance to the reference order in W.P.No.62606 and W.P.No.2511 in respect of the following issues: a) As to whether the Financial Institution which is a secured creditor or the department of the government concerned would have the Priority of Charge over the mortgaged property in question with regard to the tax and other dues b) As to the status and the rights of a third party purchaser of the mortgaged property in question. 2. We are of the view that if there was at all any doubt the same stands resolved by view of the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisionsin favour of the financial institution which is a secured creditor having the benefit of the mortgaged property In so far as questionis concerned the same is stated to relate only to auction sales which may be carried out in pursuance to the rights exercised by the secured creditor having a mortgage of the property. This aspect is also covered by the introduction of Section 31B as it includes secured debts due and payable to them by sale of assets over which security interest is created 7. We thus answer the aforesaid reference accordingly 8. The matters be placed before the roster Division Bench for dealing with the individual cases.” It is also worth quoting the following paragraph from the decision of the Gujarat High Court in the case Kalupur Commercial Co operative Bank ltd.which has also been relied upon by our Court in ASRECLimitedof the RDB Act defines the phrase "secured creditors" to have the same meaning as assigned to it under the SARFAESI Act. Moreover Section 37 of the SARFAESI Act clearly provides that the provisions of the SARFAESI Act shall be in addition to and not in derogation of inter alia the RDB Act. As such the SARFAESI Act was enacted only with the intention of allowing faster recovery of debts to the secured creditors without intervention of the court. This is apparent from the Statement of Objects and Reasons of the SARFAESI Act. Thus an interpretation that while the secured creditors will have priority in case they proceed under the RDB Act they will not have such priority if they proceed under the SARFAESI Act will lead to an absurd situation and in fact would frustrate the object of the SARFAESI Act which is to enable fast recovery to the secured creditors.” Again coming to another issue raised by the Respondents with respect to Section 26 D of the SARFAESI Act which provides that the secured creditor shall not be entitled to exercise rights of enforcement of securities under Chapter III unless the security interest created in its favour by the borrower has been registered with the Central Registry we are of the view that even if the Petitioner’s mortgage was not registered under Section 26 D of the SARFAESI Act in view of our above discussion on Section 31 B of the RDB Act the alleged non registration would not affect the legal position on the issue of priority. In view of the above and being in respectful agreement 31 WPST 92816 2020 .doc with the views expressed in the cases cited above we hold that the mortgage of the secured creditor viz. the Petitioner Bank gets prior charge over the charge of the Respondents for tax VAT dues We therefore quash and set aside the attachment charge on the said Plot No. W 7 under Section 32 of the MVAT Act as well as notices issued in relation thereto by Respondent No.2 Before parting with the record we would like to state that we are conscious of the decision of the Supreme Court in the case of Central Bank of India Vs. State of Kerala4 SCC 94 wherein the Supreme Court took the view that if the State Act creates first charge on the property then secured creditor cannot have claim against the statutory provision. The Supreme Court was considering the provisions of Section 38 C of the Bombay Sales Tax Act 1959 and Section 26 B of the Kerala General Sales Tax Act 1963 vis a vis the provisions of Section 34(1) of the Recovery of Debts due to Banks and Financial Institutions Act 1993and Section 35 of the SARFAESI Act. However firstly since Section 31 B was not on the statute book then the impact of this Section did not come up for consideration while deciding the matter. Also with respect it must be observed that the judgment in the case of Central Bank of India 32 WPST 92816 2020 .doc supra) was prior to the amendment in the RDB Act as well as the SARFAESI Act which inserted Section 31 B in the RDB Act and Section 26 E in the SARFAESI Act. It would in this context be pertinent to quote the following paragraphs from the decision of the Gujarat High Court in the case of Kalupur Commercial Co op. Bankwas prior to the amendment in the Act 2002 and 1993 respectively. However what is important are the observations of the Supreme Court as contained in para 126 of this decision quoted above. The Supreme Court observed that while enacting the DRT Act the Parliament was aware of the law laid down by the Supreme Court wherein priority of the State dues was recognized. If the Parliament intended to create the first charge in favour of the Banks Financial Institutions or other secured creditors on the property of the borrower then it would have incorporated a provision like Section 529A of the Companies Act or Section 11(2) of the EPF Act and ensured that notwithstanding the series of judicial pronouncements the dues of Banks Financial Institutions and other secured creditors should have priority over the State s statutory first charge in the matter of recovery of the dues of sales tax etc. The Supreme Court proceeded to observe that the fact of the matter was that no such provision had been incorporated in either of those enactments despite conferment of extraordinary power upon the secured creditors to take possession and dispose of the secured assets without the intervention of the Court or Tribunal 17. In our prima facie opinion such observations probably might have weighed with the Parliament which ultimately might have led to the introduction of in the RDB Act 1993 and 26E in the Section 31B SARFAESI Act 2002.” Thus upon a thorough consideration of all aspects of the matter we are of the view that the writ petition deserves to be 33 WPST 92816 2020 .doc allowed. Writ petition is accordingly allowed and Rule is made absolute in the above terms. Interim order passed earlier stands No order as to costs This judgment will be digitally signed by the Private Secretary Personal Assistant of this court. All concerned will act on production by fax or e mail of a digitally signed copy of this order. ABHAY AHUJA J UJJAL BHUYAN J.)

NCLAT to reconsider balance sheet as an acknowledgement under Section 18 of the Limitation Act, 1963.

While hearing an appeal petition in the case of Bishal Jaiswal Vs Asset Reconstruction Company (India) Ltd & Anr (Company Appeal (AT) (Insolvency) No. 385 of 2020) the three- judge bench referred the case of V. Padamakumar Vs. Stressed Assets Stabilization Fund (SASF) & Anr. (Company Appeal (AT) (Ins) No. 57 of 2020) for reconsideration. The latter’s verdict was decided by a five-judge bench in the appellate court without giving due consideration for the precedent laid down by Supreme Court as well as various High Courts. In the present matter the appellant had advanced a loan from a consortium of lenders which the corporate debtor could not pay back and the accounts were declared as Non-Performing Asset in 2014 but the application in NCLT was filed in 2018. The adjudicating authority had accepted the application and held that it was not time-barred. Aggrieved by this decision the corporate debtor had filed an appeal. The Corporate Debtor contended that the balance sheet cannot be considered as an acknowledgement under Section 18 of the Limitation Act, 1963. And that the application was filed with a delay of 5 years thus being time-barred. This issue was considered explicitly by the Five Hon’ble Members of this Appellate Tribunal in the case of V. Padamakumar (Supra) and held that the Books of Accounts are required to be prepared under the obligation casted Section 92 of the Companies Act, 2013. Therefore, it cannot amount to an acknowledgement for Section 18 of the Limitation Act, 1963. The Respondents contested that the appellant has acknowledged the debt in its balance sheet and thus right to sue stood extended in terms of Section 18 of the Limitation Act, 1963. It was noted by the Adjudicating Authority that in the Balance Sheet the Corporate Debtor, admitted its liability, which was signed before the expiry of three years from the date of default. The Respondents relied on various precedents of Supreme Court and High Court where it was submitted that it is settled law that the entries made in the Balance Sheet of the Company amounts to an acknowledgement of debt under Section 18 of the Limitation Act, 1963. NCLAT listed the reasons for reconsideration of V. Padmakumar’s Judgment (Supra) as follows: For all the above reasons NCLAT has referred the matter to a Bench of Five Hon’ble Members of this Appellate Tribunal.

NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI Company Appeal(Insolvency) No. 3820 IN THE MATTER OF: Bishal Jaiswal Residing at: Balarampur Purulia Rangadih West Bengal 723143 2. Corporate Power Limited Asset Reconstruction CompanyLtd Having its Registered Office at: The Ruby 10th Floor 29 Senapati Bapat Marg DadarMumbai 400028 E mail: cs@arcil.co.in Phone Number: 022 66581300 Through Interim Resolution Professional Shri Pankaj Dhanuka Residing at: FE 328 Sector III Salt Lake City Kolkata 700 106 West Bengal E mail: pankajdhanuka@gmail.com Registration Number: IBBI IPA 001 IP P 01205 2018 19 11911 Having its Registered Office: FE 83 Sector III Salt Lake City Ground Floor Kolkata 700106 West Bengal Respondent No.1 Respondent No.2 For Appellant For Respondent Mr Abhijeet Sinha Mr Sandeep Bajaj and Mr Devansh Jain Advocates for Appellant. Mr Ramji Srinivasan Sr. Advocate Mr Abhirup Das Gupta and Mr Rishub Kapoor Mr Varun Gupta Advocates for R1. Mr Sanjeev Kumar Sr. Advocate Mr Pankaj Dhanuka Mr Anshul Sehgal Advocates for R2. 2 25.09.2020 We have heard the arguments in this Appeal. During the course of argument a Judgment rendered by Five Hon’ble Members of this Appellate Tribunal in the Case of V. Padamakumar Vs. Stressed Assets Stabilization Fund& Anr. in Company Appeal(Ins) No. 520 has been cited before us. After hearing the arguments of Learned Counsel for the parties we with the great respect to the Hon’ble Members of the Judgment thought it proper to refer V. Padmakumar’s Case reconsideration. We shall proceed further in this Appeal after receiving answer of the The Registrar is directed to place the attached reference alongwith V. Padmakumar’s Case before the Hon’ble Acting Chairperson for constituting appropriate Bench. Justice Jarat Kumar Jain) MemberBalvinder Singh) MemberV.P. Singh) MemberCompany Appeal(Insolvency) No. 3820 Before Hon’ble National Company Law Appellate Tribunal New Delhi. Reference: Three Members Bench of NCLAT. We Three Members Bench of this Appellate Tribunal heard the arguments in Company Appeal(Ins) No. 3820. During the course of arguments a Judgment rendered by Five Hon’ble Members of this Appellate Tribunal in the Case of V. Padma Kumar Vs. Stressed Assets Stabilization Fund& Anr. in Company Appeal(Ins) No. 520 has been cited before us. After hearing the arguments of Learned Counsel for the parties. We with the great respect to the Hon’ble Members of the Judgment thought it proper to refer the V. Padmakumar’s case for reconsideration. The issue is of great importance which is as follows: “Hon’ble Supreme Court and various Hon’ble High Courts have consistently held that an entry made in the Company’s Balance Sheet amounts to an acknowledgement of debt under Section 18 of the Limitation Act 1963 in view of the settled law V. Padmakumar’s Case requires reconsideration.” Brief facts of the case are that the Corporate Debtorhad availed the loan from the Consortium Lenders for setting up 1080 MW coal based plant at Chandwa of Latehar District in the State of Jharkhand in two phases comprising of 2x270 MW in each phase by executing common loan agreement with the lender s bank. The Corporate Debtor has availed loan facilities aggregating to Rs.2175 00 00 000 for the Phase I project and availed Rs.2387 00 000 for PhaseII project for setting up another 540 MW coal based plant from the various bankers referred above and loan agreements have been executed between the Corporate Debtor and the above referred Banks. However the Corporate Debtor failed to repay the dues under the facilities granted by the above mentioned Banks. Thereafter State Bank of India issued a loan recall notice dated 27th March 2015 which was replied by the Corporate Debtor on 28th March 2015. The Consortium Lenders issued notices on 20th June 2015 under Section 13(2) of the SARFAESI Act 2002 demanding a total amount of Rs.5997 80 02 973 but the Corporate Debtor failed to repay the loan amount. The above mentioned Banks had assigned the debt in favour of Asset ReconstructionTherefore the Financial Creditor has filed the Application for initiation of CIRP against the Corporate Debtor under Section 7 of the I&B Code. The Corporate Debtor contends that the Financial Creditor has no cause of action to initiate and proceed against the Corporate Debtor. The purported amount claimed by the Financial Creditor is yet to be ascertained and proceedings in that regard are already pending before the DRT Kolkata. The Corporate Debtor has also raised the issue of Limitation. The Adjudicating Authority has admitted the Application on the ground that the debt and default are not under challenge and the Application is filed within Limitation. Being aggrieved with the order the Corporate Debtor filed the Appeal. The Appeal is filed mainly on the ground that the Learned Adjudicating Authority has failed to consider that the State Bank of India the predecessor in interest of Financial Creditorhad declared the accounts of the Corporate Debtor as NPA on 28th February 2014. The Application under Section 7 of the I&B Code was filed in December 2018 i.e. after a delay of almost five years. The Application is barred by Limitation. The Adjudicating Authority has failed to appreciate that the Balance Sheet produced by Financial Creditor does not hold the Corporate Debtor in any way liable as there is no categorical mention of the name of the Financial Creditor therein. Learned Counsel for the Corporate Debtor submitted that the Application is barred by Limitation. The Corporate Debtor’s balance sheet cannot be considered as an acknowledgement under Section 18 of the Limitation Act 1963. The issue was considered explicitly by the Five Hon’ble Members of this Appellate Tribunal in the case of V. Padamakumarand held that the Books of Accounts are required to be prepared under the obligation casted under Section 92 of the Companies Act 2013. Therefore it cannot amount to an acknowledgement for Section 18 of the Limitation Act 1963. The acknowledgement to extend the period of limitation should be of any penalty punishment. voluntary and cannot be given under the compulsion of law or with the threat Learned Counsel for the Corporate Debtor submitted that the Judgment passed in V. Padmakumar Case does not require reconsideration because in the dissenting Judgment by one of the Hon’ble Members of the Bench has referred the Judgment of Hon’ble Supreme Court in the case of M s Mahavir Cold Storage Vs. CIT Patna A.V. Murthi Vs. B.S. Nagabasavanna and S. Natrajan Vs. Sama Dharman. Hence it cannot be said that these precedents are not brought to the notice of the Bench. Therefore the Judgment still holds the field and is binding on this Bench. Learned Counsel for the Corporate Debtor further submitted that Hon’ble Supreme Court in the case of Babulal Vardharji Gurjer Vs. Veer Gurjer Aluminium Industries Pvt. Ltd. & Anr. SCC Online SC 647 finally settled that Section 18 of the Limitation Act 1963 is not applicable to Insolvency Cases. Therefore there is no question for referring V. Padmakumar’s case for reconsideration. The Learned Counsel for the Financial Creditor contends that in this case the right to sue for the first time accrued upon the classification of the account as NPA on 31st July 2013. Thereafter the Corporate Debtor has time and again admitted and unequivocally acknowledged its debt in the Balance Sheets for the years ending 31st March 2015 31st March 2016 and 31st March 2017. Hence the right to sue stood extended in terms of Section 18 of the Limitation Act 1963. Regarding the issue of Limitation in the present matter it is pleaded that entries in the Balance Sheet amounts to an acknowledgement of debt in terms of Section 18 of Limitation Act. The Adjudicating Authority observed that in the Balance Sheet the Corporate Debtor admitted its liability which was signed before the expiry of three years from the date of default. It is an acknowledgement of debt in terms of Section 18 of the Limitation Act and is therefore not barred by Limitation. Therefore the Adjudicating Authority admitted the Application for initiation of CIRP of the Corporate Debtor. 11. Learned Counsel for the Financial Creditor submitted that in Babulal Vardharji Gurjerji case Hon’ble Supreme Court formulated a question whether Section 18 of the Limitation Act 1963 could be applied to the present case After elaborate discussion Hon’ble Supreme Court held that the Respondent No. 2 has not pleaded in regard to an acknowledgment. Therefore Hon’ble Supreme Court declined the benefit of Section 18 of Limitation Act 1963. Hon’ble Supreme Court has not said that the provisions of Section 18 of Limitation Act 1963 are not applicable to the Insolvency cases. 12. The Learned Senior Counsel for the Financial Creditor submitted that it is settled law that the entries made in the Balance Sheet of the Company amounts to an acknowledgement of debt under Section 18 of the Limitation Act for the same he placed reliance on the law laid down by Hon’ble Supreme Court in case of Mahavir Cold Storage Vs. CIT 1991 SuppSCC 402 12. The entries in the books of accounts of the appellant would amount to an acknowledgement of the liability to M s Prayagchand Hanumanmal within the meaning of Section 18 of the Limitation Act 1963 and extend the period of limitation for the discharge of the liability as debt. Section 2(47) of the Act defines transfer in relation to a capital asset under clause the sale exchange or relinquishment of the asset or the extinguishment of any right thereof or —toare not relevant hence omitted].” In the case of A.V. Murthy v. B.S. Nagabasavanna 2 SCC 642 at page 644 Hon ble the Supreme Court of India held “Moreover in the instant case the appellant has submitted before us that the respondent in his balance sheet prepared for every year subsequent to the loan advanced by the appellant had shown the amount as deposits from friends. A copy of the balance sheet as on 31 3 1997 is also produced before us. If the amount borrowed by the respondent is shown in the balance sheet it may amount to acknowledgment and the creditor might have a fresh period of limitation from the date on which the acknowledgment was made. However we do not express any final opinion on all these aspects as these are matters to be agitated before the Magistrate by way of defence of the respondent." In the Case of Usha Rectifier Corporation Ltd. Vs. CCE 11 SCC 571:4 SCC387 at Page 574 Hon’ble Supreme Court held “10. The aforesaid position is further corroborated by the Directors Report appearing at P.2 of the annual report for the year ending December 1988 wherein it was mentioned that during the year the Company developed a large number of testing equipments on its own for using the same for the testing of semi conductors. Once the appellants have themselves made admission in their own balance sheet which was not rebutted and was further substantiated in the Director’s Report the appellant now cannot turn around and make submission which are contrary to their own admissions.” In Case of S. Natarajan Vs. Sama Dharma: MANU SC 0698 2014 Hon’ble the Supreme Court of India held that “Referring to the facts before it this Court observed that the complainant therein had submitted his balance sheet prepared for every year subsequent to the loan advanced by the complainant and had shown the amount as deposits from friends. This Court noticed that the relevant balance sheet is also produced in the Court. This Court observed that if the amount borrowed by the accused therein is shown in the balance sheet that it may amount to acknowledgement and the creditor might have a fresh period of limitation from the date on which the acknowledgement was made. After highlighting further facts of the case this Court held that at this stage of proceedings to say that the cheque drawn by the accused was in respect of a debt or liability which was not legally enforceable was clearly illegal and erroneous. In the circumstances this Court set aside the order passed by the High Court upholding the Sessions Court s order quashing the entire proceedings on the ground that the debt or liability is barred by limitation and hence the complaint was not maintainable. It is therefore clear that the contention urged by the Appellant herein can be examined only during trial since it involves examination of facts." 16. The Learned Counsel for the Financial Creditor further placed reliance on Judgments of various Hon’ble High Courts. In the case of Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff 1961 SCC Online Cal 128:65 CWN 856 : AIR 1962 Cal 115 at page 862 Hon ble High Court of Calcutta has held 11. To come under section 19 an acknowledgement of a debt need not be made to the creditor nor need it amount to a promise to pay the debt. In England it has been held that a balance sheet of a company stating the amount of its indebtedness to the creditor is a sufficient acknowledgement in respect of a specialty debt under section 5 of the Civil Procedure Act 1833see Re: Atlantic and Pacific Fibre Importing and Manufacturing Co. Ltd. 1928 Ch. 836 under section 1 of Lord Tentenden s Act 1828read with section 13 of the Mercantile Law Amendment Act 1856see Re: The ColiseumLtd. (1930) 2 Ch. 44 at 47 and under sections 23 and 24 of the Limitation Act 1939 see Ledingham v. Bermejo Estancia Co. Ltd. (1947) 1 A.E.R. 749 and Jones v. Bellgrove Properties Ltd. (1949) 2 K.B. 700 on appeal from 1 A.E.R. 498.Section 5 of the Civil Procedure Act 1833 did not require that the acknowledgement should be given to the claiming creditor and consequently a balance sheet containing an admission of indebtedness to the debenture holders was a sufficient acknowledgement of liability in respect of the debentures under that section though it was sent only to the debenture holders who happened to be the shareholders of the company and not to the other debenture holders see Re: Atlantic and Pacific Fibre Importing and Manufacturing Co. Ltd.(1928) 1 Ch. 836.Under Tentenden s Act 1828 as also under the Limitation Act 1939 the 10 Burrow) Ltd. acknowledgement must be made to the creditor or his agent and if the balance sheet is sent to a shareholder who is also a creditor the requirements of those Acts were satisfied see Re: The 1930) 2 Ch. 44 at 47 Jones v. Bellgrove Properties Ltd. (1949) 1 A.E.R. 498 at 504 affirmed2 K.B. 700.The decision in the last case has been followed in India and it has been held that an admission of indebtedness in a balance sheet is a sufficient acknowledgement under section 19 of the Indian Limitation Act see The Rajah of Vizianagram v. Official Liquidator Vizianagram Mining Co. Ltd. 12) 2 M.L.J. 535 at 550 1 : A.I.R. 1952 Mad. 136 at 145 Lahore Enamelling and Stamping Co. Ltd. v. A.K. BahallaA.I.R. 1958 Punjab 341 at 347 First National Bank Ltd. v. The MandiIndustries Ltd. (1957) 59 Punjab Law Reports 589 and in an unreported decision of S.R. Das Gupta J. in matter No. 449 of 1955 Re: Vita Supplies Corporation Ltd.decided on December 7 1956." In Case of South Asia IndustriesLtd. vs. Krishna Shamsher Jung Bahadur Rana and Ors. 14.07.1972 DELHC): MANU DE 0372 1972 Hon ble High Court of Delhi has held that 46. Shri Rameshwar Dial argued that statements in the balance sheet of a company cannot amount to acknowledgment of liability because the balance sheet is made under compulsion of the provisions in the Companies Act. There is no force in this argument. In the first place section 18 of the Limitation Act 1963 requires only that the acknowledgment of liability must have been made in writing but it does not prescribe that the writing should be in any particular kind of document. So the fact that the writing is contained in a balance sheet is immaterial. In the second place it is true that section 131 of the Companies Act 1913 makes it compulsory that an annual balance sheet should be prepared and placed before the Company by the Directors and section 132 section 211 of the Companies Act 1956) requires that the balance sheet should contain a summary inter alia of the current liabilities of the company. But as pointed out by Bachawat J. in Bengal Silk Mills v. Ismail Golam Hossain Ariff MANU WB 0033 1962: A.I.R. 1962 Calcutta 115 although there was statutory compulsion to prepare the annual balance sheet. there was no compulsion to make any particular admission and a document is not taken out of the purview of section 18 of the Indian Limitation Act 1963merely on the ground that it is prepared under compulsion of law or in discharge of statutory duty. Reference may also be made to the decisions in Raja of Vizianagaram v. Vizianagaram Mining Co. Ltd. MANU TN 0116 1952: A.I.R. 1952 Madras 136. Jones v. Bellegrove Properties Ltd. 1 All E.R. 498 and Lahore Enamelling and Stamping Co. v. A.K. Bhalla. MANU PH 0099 1958: A.I.R. 1958 Punjab 341 in which statements in balance sheets of companies were held to amount to acknowledgments of liability of the companies. 19. Hon’ble High Court of Karnataka in the case of Hedge and Golay Limited Vs. State Bank of India KA 0225 1985 held as under: law stands “The acknowledgement of liability contained in the balance sheet of a company furnishes a fresh starting point of Limitation. It is not necessary as the India that the acknowledgment should be addressed and communicated to the We are in respectful agreement with the view taken by the Learned Company Judge on the point. The position of law that an acknowledgment of debts in the balance sheets of a Company does furnish fresh starting point of limitation is too well settled to need any elaborate discussion. All. ER 498 In Re. Compania de Electric dad 1980 Ch. Dn. 146 Babulal Rukmanand v. Official Liquidator Manu RH 0043 1968 and Bengal Silk Mills Co. v Ismail Golam Hossain Ariff. Manu WB 0033 1962: AIR 1962 Cal 115.” In case of Bhajan Singh Samra v. Wimpy International Ltd. 2011 SCC OnLine Del 4888. Hon ble High Court of Delhi has held that “13. Having heard the parties this Court is of the opinion that the petitioning creditor has to satisfy the Court that the debt on which the petition is based was due and payable on the date of the petition. Certainly a time barred debt cannot be the basis of a winding up petition. However admission of a debt either in a balance sheet or in the form of a letter duly signed by the respondent would amount to an acknowledgement extending the period of limitation. Section 18(1) of the Limitation Act 1963 incorporates the said principle. Section 18(1) of the Limitation Act 1963 reads as under: 15. The Calcutta High Court in the case of Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff AIR 1962 Cal. 115 held that in 12 an appeal arising from a money decree against a company even statement of a liability in the balance sheet of the company amounted to admission acknowledgement of a debt giving rise to a fresh period of limitation notwithstanding the fact that the balance sheet was prepared under compulsions of statute and of the articles of association of the company . In Vijaya Kumar Machinery & Electrical Stores v. Alaparthi Lakshmikanthamma 74 ITR 224 the Andhra following Bengal Silk Mills Pradesh High Court after Co.Rajah Liquidator Vizianagaram Mining Company Limited AIR 1952 MAD. 1361 Lahore Enamelling and Stamping Co. Ltd. v. A.K. Bhalla AIR 1958 Punj. 341 and Jones v. Bellgrove Properties Ltd. 1949) 2 All.ER 198 held "What emerges from a consideration of the above decision is that the date of signing the balance sheet by the second defendant started a fresh period of limitation". In case of the Commissioner of Income Tax v. Shri Vardhman Overseas of Vizianagaram v. Official Ltd. 2011 SCC Online Del 5599. Hon ble High Court of Delhi has held that this amounted In the case before us as rightly pointed out by the Tribunal the assessee has not transferred the said amount from the creditors account to its profit and loss account. The liability was shown in the balance sheet as on 31st March 2002. The assessee being a limited company acknowledging the debts in favour of the creditors. Section 18 of the Limitation Act 1963 provides for effect of acknowledgement in writing. It says where before the expiration of the prescribed period for a suit in respect of any property or right an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed a fresh period of limitation shall commence from the time when the acknowledgement was so signed. In an early case in England in Jones v. Bellgrove Properties 2KB 700 it was held that a statement in a balance sheet of a company presented to a creditor share holder of the company and duly signed by the directors constitutes an acknowledgement of the debt.” 22. Hon’ble High Court of Delhi in the case of Shahi Export Pvt. Ltd. Vs. CMD Built Tech Pvt. Ltd.SCC Online Del 2535 held as under: 13 “7.It is hardly necessary to cite authorities in support of the well established position that an entry made in the company’s balance sheet amounts to an acknowledgement of the debt and has the effect of extending the period of limitation under Section 18 of the Limitation Act 1963. However I may refer to only one decision of the learned Single Judge of this Courtin Bhajan Singh Samra V. Wimpy International Ltd. 185 2011) DLT 428 for the simple reason that it collects all the relevant authorities on the issue including some of the Judgments cited before me on behalf of the petitioners. This Judgment entirely supports the petitioners on this point.” In the case of N.S. Atwal v. Jindal Steel and Power Ltd. 2013 SCC Online Del 3902. Hon ble Delhi High Court has held that “11. Indeed that was also the plea taken by JSPL: that the exchange of letters in this case establishes an agreement for the amount claimed. Not only have these letters not been contested by the appellant but instead of probing this route further in order to establish the debt the learned Single Judge relied on the admission in the balance sheets presented by the defendant before the Court. On that question of admissions of debt through balance sheet while the circumstance surrounding the entry may be relevant for other purposes the fact that the amount claimed in the present suit is admitted as a debt due as a loan from JSPL is sufficient in order for the Court to reach a finding that the liability is established. 12. This Court in ESPN Software India Ltd. v. Modi Entertainment Network Ltd. 173 Comp Cas 465noted that: 17. Admission in balance sheet is per se an admission of XXXXXX XXXXXXXXXXXX 19. This entry clearly states that an amount of Rs. 8 00 04 000 is due and payable by the respondent in accordance with the terms of the contract. This document has been signed by the directors of the company and its Company Secretary on 31.10.2002." 14 In the case of Al Ameen Limited v. K.P. Sethumadhavan 2017 SCC Online Ker 11337. Hon ble High Court of Kerala at Ernakulam has held that “7. The inclusion of a debt in a balance sheet duly prepared and authenticated would amount to admission of a liability and therefore satisfies for a valid the requirement of acknowledgment under Section 18 of the Act. We may recapitulate the words of Mr. Justice P. Subramonian Poti in Krishnan Assari v. Akilakerala Viswakarma Maha Sabhaand the following is the extract: 10. How far the balance sheets could be acted upon in deciding the claim of the appellant is the next question. The appellant relies on the balance sheets as acknowledgment of liability contemplated in S. 18 of the Limitation Act 1963. Under S. 18 an acknowledgment of liability signed by the party against whom the right is claimed gives rise to a fresh period of limitation. Under Explanation to the Section the word signed means signed either personally or by an agent duly authorized. A company being a corporate body acts through its representatives the Managing Director and the Board of Directors. Under S. 210 of the Companies Act it is the statutory duty of the Board of Directors to lay before the Company at every annual general body meeting a balance sheet and a profit and loss account for the preceding financial year. S. 211 directs that the form and contents of the balance sheet should be as set out in Part I of Schedule VI. The said form stipulates for the details of the loans and advances and also of sundry creditors. The balance sheet should be approved by the Board of Directors and thereafter authenticated by the Manager or the Secretary if any and not less than two directors one of whom should be the Managing Director. See S. 215). The Act also provides for supply of copies of the balance sheet to the members before the company in general meeting. Going by the above provisions a balance sheet is the statement of assets and liabilities of the company as at the end of the financial year approved by the Board of Directors and authenticated in the manner provided by law. The persons who authenticate the document do so in their capacity as agents of the company. The inclusion of a debt in a balance sheet duly prepared and authenticated would amount to admission of a liability and therefore satisfies the requirements of law for a valid acknowledgment under S. 18 of the Limitation Act even though the directors by authenticating the balance sheet merely discharge a statutory duty and may not have intended to make an acknowledgment." 15 25. Hon’ble High Court of Delhi in the case of Zest Systems Pvt. Ltd. Vs. Center for Vocational and Entrepreneurship Studies & Anr. SCC Online Del 12116 held as under: “ 7. It is hardly necessary to cite authorities in support of the well established position that an entry made in the company’s balance sheet amounts to an acknowledgement of the debt and has the effect of extending the period of limitation under Section 18 of the Limitation Act 1963. However I may refer to only one decision of the Learned Single Judge of this Courtin Bhajan Singh Samra Vs. Wimpy International Ltd. 185 2011) DLT 428 for the simple reason that it collects all the relevant authorities on the issue including some of the supports the petitioners on this point” 6. In view of the legal position spelt out in Judgments noted above the acknowledgment of the debt in the balance sheet extends the period of limitation. The acknowledgement is as on 31.03.2015. This suit is filed in 2017. The suit is clearly within In case of Agni Aviation Consultants and Ors. vs. State of Telangana and Ors.74 ITR 224and Bengal Silk Mills Company Rajah of Vizianagaram Vs. Official Liquidator Vizianagaram Mining Company Limited AIR 1952 Madras 1361). 101. Therefore it is not necessary that the acknowledgment of liability must be contained in a document addressed to the creditor i.e. the petitioners in the instant case.” is applicable to Insolvency Cases 27. Firstly we have considered whether Section 18 of Limitation Act 1963 28. We have carefully gone through the Judgment of Hon’ble Supreme Court in the case of Babulal Vardharji Gurjarrequires reconsideration on following reasons: I. There is consistent view of the Hon’ble Supreme Court and High Court of Allahabad Calcutta Delhi Karnataka Kerala and Telangana that the entries in the Balance Sheet of the Company be treated as an acknowledgement of debt for the purpose of Section 18 of Limitation Act 1963. The majority view in V. Padmakumar’s Case is just contrary to settled law. In V. Padamakumar’s Case minority view is in the line of settled law that Balance Sheet of the Company be treated as acknowledgement of debt for the purpose of Section 18 of the Limitation Act 1963. In the majority Judgment no reasons have been assigned for disagreement In support of majority Judgment in V. Padamakumar’s Case none of with this view. the precedent cited before us. In V. Padamakumar’s Case it is discussed that the Balance Sheet of the Company is prepared pursuant to Section 92 of the Companies Act 2013 and filing of Balance Sheet Annual Return being mandatory under Section 92(4) of the Companies Act 2013 failing of which attracts penal action under Section 92(5) and of the Act. In our humble opinion Balance Sheet is not Annual Return but is a Financial Statement. Financial Statement is defined under Section 2(40) of the Companies Act 2013. In V. Padamakumar’s Case it is held that the Balance Sheet is required to be prepared under the obligation casted under Section 92 of the Companies Act 2013. Therefore it cannot amount to an acknowledgement for Section 18 of the Limitation Act 1963. The Acknowledgement should be voluntary and cannot be given under compulsion of law or with the threat of any penalty punishment. Hon’ble Calcutta High Court in the case of Bengal Silk Mills Co.and Hon’ble High Court of Delhi in the case of South Asia Industries Pvt. Ltd.held that merely on the ground that the Balance Sheet of the Company is prepared under the compulsion of law or in discharge of statutory duty it cannot be held that the Balance Sheet of the Company cannot amount to an acknowledgement of liability. VI. The Balance Sheet is a material document attached with sanctity that must be submitted to ROC and is used for obtaining a business loan or investments. Relevant provisions in regard to Balance Sheet of the Company provided in Section 129 130 131 134 137 143 and 397 of the Companies Act. Section 130 and 131 provides that a Company cannot reopen its Books of Account and Financial Statement without the Order made by the Court of Competent Jurisdiction or the Tribunal. Directors of the Company after making Judgments and estimates that are reasonable and prudent cannot resile without permission of Tribunal. VII. Section 397 of the Companies Act provides that the documents filed for the purpose of Companies Act and Rules made thereunder by a Company with the Registrar shall be admissible in any proceedings thereunder. Without proof or production of original as evidence of any contents of the original or of any fact stated therein of which direct evidence is admissible. 31. With the aforesaid reasons we are of the considered view with all great respect to the Hon’ble Five Members Bench of this Appellate Tribunal that V. Padmakumar’s Judgment requires reconsideration. Hence we are referring the matter. 32. Learned Senior Counsel for the Financial Creditor submitted that the Hon’ble Supreme Court in the case of Pradeep Chandra & Ors. Vs. Promod Chandra & Ors.1 SCC 1 has dealt with a situation when the Bench of two learned Judges of Supreme Court has in the terms doubted the correctness of a decision of a Bench of three learned Judges. They have therefore referred the matter directly to a Bench of Five Judges however Judicial discipline and propriety demands that a Bench of Two Learned Judges should follow decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier Judgment of three learned Judges is so very incorrect that in no circumstances can it be followed the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out as has been done here the reasons why it could not agree with the earlier Judgment. 33. With the aforesaid we are of the view that the matter be referred to a Bench of Five Hon’ble Members of this Appellate Tribunal. Justice Jarat Kumar Jain] MemberBalvinder Singh] MemberV.P. Singh] Member

Mandatory Duty of the proposer to disclose pre-existing ailments to the Insurer- Supreme Court

In the case of Branch Manager, Bajaj Allianz Life Insurance Company Ltd and Others v. Dalbir Kaur, (Civil Appeal No. 3397 of 2020),  the Supreme Court had held that a proposer who seeks to obtain a policy of life insurance is duty-bound to disclose all material facts bearing upon the issue as to whether the insurer would consider it appropriate to assume the risk which is proposed. The facts of this case initiate from the judgment of the order dated from dated 20 March 2020 of the National Consumer Disputes Redressal Commission. On 5 August 2014, the appellants Kulwant Singh had submitted a proposal for obtaining a policy of insurance. The proposal form indicated the name of the mother of the proposer, who is the respondent to these proceedings as the nominee. The proposal form contained questions pertaining to the health and medical history of the proposer and required a specific disclosure on whether any ailment, hospitalization, or treatment had been undergone by the proposer Column 22 required a declaration of good health. However, the proposer answered the queries in the negative, indicating that he had not undergone any medical treatment or hospitalization and was not suffering from any ailment or disease. The declaration under Item 22(c) of the proposal form was in regard to whether any diseases or disorders of the respiratory system such as but not  limited to blood in sputum, tuberculosis, asthma, infected respiratory disease or any respiratory system disease including frequent nose bleeding, fever and dyspnoea were involved. This query was also responded to in the negative. Thus based on the information given by them policy insurance was issued by the appellants on 12 August 2014. Thus under the policy, the life of the proposer was insured for a sum of Rs. 8.50 lakhs payable on maturity with the death benefit of Rs. 17 lakhs.   On 12 September 2014, Kulwant Singh died within a period of one month and seven days from the issuance of the policy, following which a claim was lodged on the insurer.  The respondent instituted a consumer complaint before the District Consumer  Disputes Redressal Forum. The District Forum allowed the complaint and directed the appellants to pay the full death claim together with interest. The first appeal was rejected by the State Consumer Disputes Redressal Commission (hereinafter referred to as “SCDRC”) and the revision before the National Consumer Disputes Redressal Commission (hereinafter referred to as “NCDRC”) has also been dismissed. The NCDRC has relied on the decision of this Court in Sulbha Prakash  Motegaonkar & Ors vs Life Insurance Corporation of India (Civil Appeal No 8245/2015 decided on 5.10.2015). Thus consequently, while affirming the judgment of the SCDRC, the NCDRC imposed costs of Rs. 2 lakhs on the appellants, of which, an amount of Rs. 1 lakh was to be paid to the complainant and Rs. 1 lakh was to be deposited with the Consumer Legal Aid Account of the District Forum. The judges in this case had held that “The decision of this Court in Sulbha Prakash Motegaonkar vs Life Insurance  Corporation of lndia, which has been relied upon by the NCDRC, is clearly distinguishable. In that case, the assured suffered a myocardial infarction and succumbed to it.  The claim was repudiated by the insurance company on the ground that there was a suppression of a pre-existing lumbar spondilitis. It was in this background that this Court held that the alleged concealment was of such a nature that would not dis-entitle the deceased from getting his life insured. In other words, the pre-existing ailment was clearly unrelated to the cause of death. This Court had also observed in its decision that the ailment concealed by the deceased was not a life-threatening disease. This decision must,  therefore, be distinguished from the factual position as it has emerged before this Court.” “The medical records which have been obtained during the course of the investigation clearly indicate that the deceased was suffering from a serious pre existing medical condition which was not disclosed to the insurer. In fact, the deceased was hospitalized to undergo treatment for such condition in proximity to the date of his death, which was also not disclosed in spite of the specific queries relating to any ailment, hospitalization or treatment undergone by the proposer in Column 22 of the policy proposal form. We are, therefore, of the view that the judgment of the NCDRC in the present case does not lay down the correct principle of law and would have to be set aside. We order accordingly. “ Thus the court had finally held that “However, Mr. Amol Chitale, learned counsel appearing on behalf of the appellants has informed the Court that during the pendency of the proceedings, the entire claim was paid over to the respondent, save and except for the amount of costs. Having regard to the age of the respondent,  who is seventy years old and the death of the assured on whom she was likely to be dependent, we are of the view that it would be appropriate for this Court to utilize its jurisdiction under Article 142 of the Constitution, by directing that no recoveries of the amount which has been paid shall be made from the respondent. However, while doing so, we expressly hold that the impugned judgment of the NCDRC does not lay down the correct position in law and shall accordingly stand set aside. The appeal is accordingly disposed of. In the circumstances of the case, there shall be no order as to costs. Pending applications, if any, stand disposed of. “

CA 3397 2020 Reportable IN THE CIVIL APPELLATE JURISDICTION Civil Appeal No. 33920 Arising out of SLPNo. 106520) Branch Manager Bajaj Allianz Life Insurance Company Ltd and Others Dalbir Kaur JUDGMENT Dr Dhananjaya Y Chandrachud J Leave granted. This appeal arises from the judgment and order dated 20 March 2020 of the National Consumer Disputes Redressal Commission. 3 On 5 August 2014 a proposal for obtaining a policy of insurance was submitted to the appellants by Kulwant Singh. The proposal form indicated the name of the mother of the proposer who is the respondent to these proceedings as the CA 3397 2020 nominee. The proposal form contained questions pertaining to the health and medical history of the proposer and required a specific disclosure on whether any ailment hospitalization or treatment had been undergone by the proposer. Column 22 required a declaration of good health. The proposer answered the queries in the negative indicating thereby that he had not undergone any medical treatment or hospitalization and was not suffering from any ailment or disease. The declaration under Item 22(c) of the proposal form was in regard to whether any diseases or disorders of the respiratory system such as but not limited to blood in sputum tuberculosis asthma infected respiratory disease or any respiratory system disease including frequent nose bleeding fever and dyspnoea were involved. This query was also responded to in the negative. Acting on the basis of the proposal submitted by the proposer a policy of insurance was issued by the appellants on 12 August 2014. Under the policy the life of the proposer was insured for a sum of Rs. 8.50 lakhs payable on maturity with the death benefit of Rs. 17 lakhs. 4 On 12 September 2014 Kulwant Singh died following which a claim was lodged on the insurer. The death occurred within a period of one month and seven days from the issuance of the policy. The claim was the subject matter of an independent investigation during the course of which the hospital treatment records and medical certificate issued by Baba Budha Ji Charitable Hospital Bir Sahib Village Thatha were obtained. The records revealed according to the insurer that the deceased has been suffering from Hepatitis C. Copies of the investigation report dated 20 December 2014 and 9 January 2015 have been placed on the record. The investigation reports indicate that proximate to the death the deceased had been suffering from a stomach ailment and from vomiting of blood as a result of which he had been availing of CA 3397 2020 the treatment at the above hospital. The claim was repudiated on 12 May 2015 on account of the non disclosure of material facts. The respondent instituted a consumer complaint before the District Consumer Disputes Redressal Forum. The District Forum allowed the complaint and directed the appellants to pay the full death claim together with interest. The first appeal was rejected by the State Consumer Disputes Redressal Commissionand the revision before the National Consumer Disputes Redressal Commission has also been dismissed. The NCDRC has relied on the decision of this Court in Sulbha Prakash Motegaonkar & Ors vs Life Insurance Corporation of lndia1. According to the NCDRC a disease has to be distinguished from a mere illness. It held that the death had occurred due to natural causes and there was no reasonable nexus between the cause of death and non disclosure of disease. Consequently while affirming the judgment of the SCDRC the NCDRC imposed costs of Rs. 2 lakhs on the appellants of which an amount of Rs. 1 lakh was to be paid to the complainant and Rs. 1 lakh was to be deposited with the Consumer Legal Aid Account of the District Forum. 6 Mr Amol Chitale learned counsel appearing on behalf of the appellants states that the judgment of the consumer fora in the present case are contrary to the law which has been laid down by this Court in Life Insurance Corporation of India vs Asha Goel2 P.C. Chacko vs Chairman Life Insurance Corporation of India3 and Satwant Kaur Sandhu vs New India Assurance Company Limited4. Learned counsel submitted that a policy of insurance is governed by the Civil Appeal No 8245 2015 decided on 5.10.2015 2001) 2 SCC 160 2008) 1 SCC 321 2009) 8 SCC 316 CA 3397 2020 principles of utmost good faith. In the present case the investigation reports revealed that proximate to the date of death the deceased had been hospitalized in July 2014 with a complaint of having vomited blood and a non disclosure of the material facts would justify the repudiation of the claim by the insurer. It was urged that the proposer was duty bound to make a full disclosure in response to the queries in the proposal forum which he failed to do. The suppression of material facts by the insured entitles the appellants to repudiate the policy under Section 45 of the Insurance Act 1938. Section 45 stipulates that an insurer is restricted from calling into question a life insurance policy after an expiry of two years from the date on which it was effected on the ground that a false or inaccurate statement has been made in theproposal report of a medical officer referee or a friend of the insured orin any other document leading to the issue of policy. On the expiry of two years the burden of proof shifts to the insurer who has to establish that the false or inaccurate statement was a material matter or related to material facts. In the present case the claim in question was repudiated within two years from the commencement of the policy. Notice was issued by this Court on 21 September 2020 in pursuance of which the respondent has entered appearance through Mr. Aniket Jain learned 8 Mr Jain has supported the reasoning of the NCDRC urging that the death in the present case occurred due to natural cause and there was no nexus between the cause of death and the alleged non disclosure. CA 3397 2020 A contract of insurance is one of utmost good faith. A proposer who seeks to obtain a policy of life insurance is duty bound to disclose all material facts bearing upon the issue as to whether the insurer would consider it appropriate to assume the risk which is proposed. It is with this principle in view that the proposal form requires a specific disclosure of pre existing ailments so as to enable the insurer to arrive at a considered decision based on the actuarial risk. In the present case as we have indicated the proposer failed to disclose the vomiting of blood which had taken place barely a month prior to the issuance of the policy of insurance and of the hospitalization which had been occasioned as a consequence. The investigation by the insurer indicated that the assured was suffering from a pre existing ailment consequent upon alcohol abuse and that the facts which were in the knowledge of the proposer had not been disclosed. This brings the ground for repudiation squarely within the principles which have been formulated by this Court in the decisions to which a reference has been made earlier. In Life Insurance Corporation of India vs Asha Goel this Court held: “12…The contracts of including the contract of life assurance are contracts uberrima fides and every fact of material must be disclosed otherwise there is good ground for rescission of the contract. The duty to disclose material facts continues right up to the conclusion of the contract and also implies any material alteration in the character of risk which may take place between the proposal and its acceptance. If is any misstatements or suppression of material facts the policy can be called question. For determination of the question whether there has been suppression of any material facts it may be necessary to also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the it could not be ascertained by policy and reasonable enquiry by a prudent person.” CA 3397 2020 This has been reiterated in the judgments in P C Chacko vs Chairman Life Insurance Corporation of India and Satwant Kaur Sandhu vs New India Assurance Company Limited. In Satwant Kaur Sandhu vs New India Assurance Company Ltd. at the time of obtaining the Mediclaim policy the insured suffered from chronic diabetes and renal failure but failed to disclose the details of these illnesses in the policy proposal form. Upholding the repudiation of liability by the insurance company this Court held: “25. The upshot of the entire discussion is that in a contract of insurance any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a “material fact”. If the proposer has knowledge of such fact he is obliged to disclose it particularly while answering questions in the proposal form. Needless to emphasise that any inaccurate answer insurer to repudiate his will entitle the because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance.” 11 Recently this Court in Reliance Life Insurance Co. Ltd. vs Rekhaben Nareshbhai Rathod5 has set aside the judgement of the NCDRC whereby the NCDRC had held that the failure of the insured to disclose a previous insurance policy as required under the policy proposal form would not influence the decision of a prudent insurer to issue the policy in question and therefore the insurer was disentitled from repudiating its liability. This Court while allowing the repudiation of the insurance claim held: “30. It is standard practice for the insurer to set out in the application a series of specific questions regarding the applicant s health history and other matters relevant to insurability. The object of the proposal form is to gather information about a potential client allowing the insurer to get all 56 SCC 175 CA 3397 2020 information which is material to the insurer to know in order to assess the risk and fix the premium for each potential client. Proposal forms are a significant part of the disclosure procedure and warrant accuracy of statements. Utmost care must be exercised in filling the proposal form. In a proposal form the applicant declares that she he warrants truth. The contractual duty so imposed is such that any suppression untruth or inaccuracy in the statement form will be considered as a breach of the duty of good faith and will render the policy voidable by the insurer. The system of adequate disclosure helps buyers and sellers of insurance policies to meet at a common point and narrow down the gap of information asymmetries. This allows the parties to serve their interests better and understand the true extent of the contractual agreement. the proposal 31. The finding of a material misrepresentation or concealment in insurance has a significant effect upon both the insured and the insurer in the event of a dispute. The fact it would influence the decision of a prudent insurer in deciding as to whether or not to accept a risk is a material fact. As this Court held in Satwant Kaur "there is a clear presumption that any information sought for in the proposal form is material for the purpose of insurance". Each representation or statement may be material to the risk. The insurance company may still offer insurance protection on altered terms.” into a contract of The decision of this Court in Sulbha Prakash Motegaonkar vs Life Insurance Corporation of lndia which has been relied upon by the NCDRC is clearly distinguishable. In that case the assured suffered a myocardial infarction and succumbed to it. The claim was repudiated by the insurance company on the ground that there was a suppression of a pre existing lumbar spondilitis. It was in this background that this Court held that the alleged concealment was of such a nature that would not dis entitle the deceased from getting his life insured. In other words the pre existing ailment was clearly unrelated to the cause of death. This Court had also observed in its decision that the ailment concealed CA 3397 2020 by the deceased was not a life threatening disease. This decision must therefore be distinguished from the factual position as it has emerged before this Court. The medical records which have been obtained during the course of the investigation clearly indicate that the deceased was suffering from a serious pre existing medical condition which was not disclosed to the insurer. In fact the deceased was hospitalized to undergo treatment for such condition in proximity to the date of his death which was also not disclosed in spite of the specific queries relating to any ailment hospitalization or treatment undergone by the proposer in Column 22 of the policy proposal form. We are therefore of the view that the judgment of the NCDRC in the present case does not lay down the correct principle of law and would have to be set aside. We order accordingly. 14 However Mr. Amol Chitale learned counsel appearing on behalf of the appellants has informed the Court that during the pendency of the proceedings the entire claim was paid over to the respondent save and except for the amount of costs. Having regard to the age of the respondent who is seventy years old and the death of the assured on whom she was likely to be dependent we are of the view that it would be appropriate for this Court to utilize its jurisdiction under Article 142 of the Constitution by directing that no recoveries of the amount which has been paid shall be made from the respondent. However while doing so we expressly hold that the impugned judgment of the NCDRC does not lay down the correct position in law and shall accordingly stand set aside. CA 3397 2020 The appeal is accordingly disposed of. In the circumstances of the case there shall be no order as to costs. 16 Pending applications if any stand disposed of. Indira Banerjee] Indu Malhotra] New Delhi October 9 2020

The subsequent election will be subject to orders: Kerala High Court

The election which is scheduled to be held on 22.02.2022, will be subject to orders passed by the District Election Officer. This was held by the single judge bench of Justice Anu Sivaraman in the case of Smiji Binoj & Ors. v District Collector & Ors. in WP (C) No.  2684 of 2022, decided on 15th of February, 2022. The writ petition has been filed to seek relief on two matters, that is to declare that the petitioners and other members elected in Manalaur Panchayat held on 16.02.2022 is the lawfully constituted Area Development Society (ADS) of Manalaur Gram Panchayat & to issue a writ of mandamus commanding the respondents to not interfere with the functioning of Area Development Society. It is observed that there were 19 Neighborhood groups and 95 eligible voters in the ADS election. Out of those, 83 members participated in the elections & 11 were elected.47 members had filed a complaint against the elections; however, the elections were upheld. Then, on 19th, another appeal before respondent no. 1 was filed who set aside the elections. The grievance is that the elected members were not heard before setting aside the elections. It was held by the judge that even if setting aside is important, it is necessary to provide a notice before. It was ruled that the District Collection Officer of Thrissur district shall conduct a hearing and pass orders on appeals by all the forty-seven members. It was subsequently held that the result of the election shall now depend on the orders of the hearing. Alongside, the election for CDS shall also be now, deferred.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY THE 15TH DAY OF FEBRUARY 2022 26TH MAGHA 1943 WP(C) NO.2684 OF 2022 PETITIONERS : SMIJI BINOJ AGED 43 YEARS W O. BINOJ CHIRAYATH HOUSE KANJANI THRISSUR DISTRICT 680 612. SANGEETHA BINOY KUNNATHULLY HOUSE P. O. KANJANI THRISSUR DISTRICT 680 612. KOMALA CHANDRAN W O. CHANDRAN KALLAYIL HOUSE P. O. KANJANI THRISSUR DISTRICT 680 612 SHIMA SALESH W O. SALESH KANAKKANDRA HOUSE P. O. KANJANI THRISSUR DISTRICT 680 612. MOHINI RAJU W O. RAJU KAKKADATH HOUSE P. O. KANJANI THRISSUR DISTRICT 680 612. AJITHA MURALEEDHARAN W O.MURALEEDHARAN KAKKADATH HOUSE P. O. KANJANI THRISSUR DISTRICT 680 612. RESPONDENTS : THE DISTRICT COLLECTOR COLLECTORATE AYYANTHOLE THRISSUR PIN 680 003 MANALUR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY MANALUR P. O. THRISSUR DISTRICT PIN 680 612. VILLAGE EXTENSION OFFICER MANALUR GRAMA PANCHAYATH MANALUR P. O. THRISSUR DISTRICT PIN 680 612 BY SMT.DEEPA K.R. SPL.GP BY SRI.V.N.HARIDAS SC THIS WRIT PETITION HAVING COME UP FOR ADMISSION ON 15.02.2022 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.2684 OF 2022 : 2 : Dated this the 15 th day of February 2022 This writ petition is filed seeking the following reliefs : declare that the petitioners and other six persons elected to ward No.5 Area Development Society of Manalur Panchayat in the election held on 16.01.2022 is the lawfully constituted Area Development Society of Ward No.5 Manalur Grama Panchayat Issue a writ in the nature of mandamus commanding the respondents 1 and 2 not to interfere with the functioning of the Area Development Society elected on 16.01.2022 of Ward No.5 of Manalur Grama Panchayat under the guise that the election is cancelled by the 1st respondent without notice to the petitioners and other elected members of Area Development Society of ward No.5 .” Heard the learned counsel for the petitioners and the learned Government Pleader as well as the learned counsel appearing for the respondent Panchayat. I have also heard the learned counsel for the petitioners in W.P.(C) No.4365 2022 Having heard the learned counsel on all sides I notice that it is admitted that the election to the ADS of Ward No.5 of Manalur Panchayat had been conducted on 16.01.2022. It is submitted that there were 19 Neighborhood Groups and 95 eligible voters in the ADS election. It is stated that 83 of the 95 eligible members participated in the election and 11 members were elected WP(C) NO.2684 OF 2022 : 3 : including the petitioners herein. It is stated that 47members had raised a complaint against the election on the very day of the election and the CDS Returning Officer had considered and upheld the election. However on 19.01.2022 an appeal was filed by the 47 members before the 1st respondent who had considered the appeal and had set aside the election. It is submitted by the learned counsel for the petitioners that the petitioners who were elected members were not heard before the election had been set aside. Though arguments had been raised with regard to the necessity of issuing notice I am of the clear opinion that the election could not have been set aside without hearing the persons who have been elected in the election conducted on 16.01.2022 In the above view of the matter I am of the opinion that the appeal requires a reconsideration with notice to all concerned There will accordingly be a direction to the 1st respondent to forward the appeal filed along with all the records to the District Election Officer who shall issue notice to the appellants as well as the elected members and all other voters by any appropriate electronic means. The District Election Officer of the Thrissur District shall conduct a hearing as informed by the notice through any appropriate means including video conferencing and shall pass orders on the appeal submitted by the 47 members. Copies of the WP(C) NO.2684 OF 2022 : 4 : appeal memorandum shall also be forwarded to the parties through any appropriate electronic means. The subsequent election conducted on 22.1.2022 will be subject to the orders to be passed by the District Election Officer on the appeal. With regard to the CDS elections the elections to the particular Panchayat shall be deferred until orders are passed in the appeal in accordance with law. This writ petition is ordered accordingly Sd ANU SIVARAMAN JUDGE WP(C) NO.2684 OF 2022 : 5 : APPENDIX OF WP(C) 2684 2022 TRUE COPY OF COMPLAINT FILED BY THE 1ST PETITIONER TO THE DISTRICT COLLECTOR DATED TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONERS 1 AND 2 BEFORE THE DISTRICT COLLECTOR DATED 24.01.2022.

“the requested information is exempt under section 8(1)(j) of the RTI Act…”: SEBI, Part 1.

The appellate authority under the RTI (Right to Information) Act of the Securities and Exchange Board of India comprising of Mr. Anand Baiwar adjudicated in the matter of Satyendra Kumar Pandit v CPIO, SEBI, Mumbai (Appeal No. 4375 of 2021) dealt with an issue in connection with Section 2 (f) of the Right to Information Act, 2005. The appellant, Mr Satyendra Kumar Pandit had filed an application via RTI MIS Portal on the 31st of May, 2021 under the Right to Information Act, 2005, which SEBI received on the 3rd of June, 2021. The respondent responded to the application by a letter on the 1st of July, 2021, filed by the appellate. After receiving a letter from the respondent on 1st of July, 2021, on his application, the appellate decided to file an appeal on the 19th of July, 2021, which the Office of Appellate Authority received on July 23, 2021. The appellant, vide his application dated July 04, 2021, sought scheme wise amount of Sahara India Group of Companies (except Sahara India Real Estate Corporation), deposited with SEBI till 31st March 2021 in query 3(1). The appellant vide query number 3(2), inter alia, sought full details of investors (including the refund amount, names of the investors) who got refund till March 31, 2021. The appellant also stated that the details may be provided in pdf/ excel format in CD/DVD/E-mail (through link). The appellant, vide said queries, inter alia, sought the following information for query 3(3). Provide information about the responsible officers of the concerned institution/ institution/ organization for social humiliation etc. and query 3(4). Effect on the country’s economy due to unemployment and hardships faced by investors during April 1, 020 to May 2021 when the repayment was stopped by SEBI.

Appeal No. 43721 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43721 Satyendra Kumar Pandit CPIO SEBI Mumbai The appellant had filed an application dated May 31 2021under the Right to Information Act 2005against the said response dated July 01 2021. I have carefully considered the application the response and the appeal and find that the matter can be decided based on the material available on record. The ground of appeal: The appellant has filed the appeal on the ground that he is not satisfied with the response provided by the respondent. In view of the submissions made by the appellant I am dealing with the queries and the response in the following paragraphs. 3. Query number 3(1) The appellant vide query number 3(1) inter alia sought scheme wise amount of Sahara India Group of Companiesdeposited with SEBI till 31st March 2021. The respondent in response to the query number 3(1) informed that pursuant to various orders passed by the Hon’ble Supreme Court and the attachment Orders dated February 13 2013 passed by SEBI in the matter of Sahara India Real Estate Corporation Limitedand Sahara Housing Investment Corporation Limitedan aggregate amount of Rs. 15 472.60 Crores has been realized by SEBI as on March 31 2021. It was also informed that these amounts along with interest earned on them after providing for making refunds to the bondholders have been deposited in ‘Nationalized Banks’ in terms of the judgment dated August 31 2012 of the Hon’ble Supreme Court. Further the respondent informed that as on March 31 2021 the total amount deposited in ‘Nationalized Banks’ is around Appeal No. 43721 Rs. 23 190.87 Crores. The appellant in his appeal submitted that scheme wise information was not provided. I have perused the query and the response provided thereto. On consideration I find that the respondent has adequately addressed the query by providing the detailed information as per the available records. Further the respondent has categorically stated that an aggregate amount has been realized pursuant to various orders passed by the Hon’ble Supreme Court and the attachment orders passed by SEBI. In view of the same I do not find any deficiency in the response. 6. Query number 3(2) The appellant vide query number 3(2) inter alia sought full details of investors including the refund amount names of the investors) who got refund till March 31 2021. The appellant also stated that the details may be provided in pdf excel format in CD DVD E mailinformed that the requested information is exempt under section 8(1)(d) and 8(1)(e) of the RTI Act as the same is highly confidential in nature and is received by SEBI in fiduciary capacity. However the respondent informed that as on March 31 2021 SEBI has made refunds to 16 909 applications involving 45 451 accounts for an aggregate amount of Rs. 128.69 Crore. 8. On perusal of the query I find that the appellant sought information which may relate to personal informationwith respect to third parties and the disclosure has no relationship to any public activity or interest. Further disclosure of the information may cause unwarranted invasion into the privacy of the individual. In this context the Hon’ble Supreme Court in the matter of Central Public Information Officer Supreme Court of India Vs. Subhash Chandra Agarwal held that: “ 59. Reading of the aforesaid judicial precedents in our opinion would indicate that personal records including name address physical mental and psychological status marks obtained grades and answer sheets are all treated as personal information. Similarly professional records including qualification performance evaluation reports ACRs disciplinary proceedings etc. are all personal information. Medical records treatment choice of medicine list of hospitals and doctors visited findings recorded including that of the family members information relating to assets liabilities income tax returns details of investments lending and borrowing etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive...". In view of the same the requested information is exempt under section 8(1)(j) of the RTI Act. Appeal No. 43721 Further I note that the in his response the respondent had invoked the provisions of Section 8(1)(e) of the RTI Act to deny information to the appellant. In this context I note that while disposing of a batch of Writ Petition Nos. 8396 2009 16907 2006 4788 2008 9914 2009 6085 2008 7304 2007 7930 2009 and 36007 the Hon’ble High Court of Delhi in its Order dated November 30 2009 held that the person referred to in section 8(1)(e) of the RTI Act will include a public authority. It also held that: “In a fiduciary relationship the principal emphasis is on trust and reliance the fiduciary’s superior power and corresponding dependence of the beneficiary on the fiduciary. It requires a dominant position integrity and responsibility of the fiduciary to act in good faith and for the benefit of and to protect the beneficiary and not oneself”. I find that SEBI being a public authority under the RTI Act as well as the regulatory authority for the securities market gets various documents information from market participants etc. and the said information contained in those documents are received in fiduciary relationship . In view of the aforesaid I agree with the observation of the respondent that the information sought by the appellant is exempt from disclosure under Section 8(1)(e) of the RTI Act. 10. Notwithstanding the above I note that the respondent has provided information regarding total amount refunded till March 31 2021 number of investors to whom refund has been made and the total number of accounts involved. I find that the query has been adequately addressed. Accordingly I do not find any deficiency in the response. information 11. Query numbers 3(3) and 3(4) The appellant vide said queries inter alia sought the following 3(3). Provide information about the responsible officers of the concerned institution institution organization for social humiliation etc. 3(4). Effect on the country s economy due to unemployment and hardships faced by investors during April 1 020 to May 2021 when the repayment was stopped by SEBI. 12. The respondent in response to the said queries informed that the queries are in the nature of seeking clarifications opinion guidance and hence cannot be construed as seeking ‘information’ as defined under Section 2(f) of the RTI Act. 13. On consideration I agree with the observation of the respondent that the query is in the nature of seeking clarification opinion guidance from the respondent. It is understood that the respondent is not supposed to create information or to interpret information or to furnish clarification to the appellant under the ambit of the RTI Act. I find that the said queries cannot be construed as seeking ‘information’ Appeal No. 43721 as defined under section 2of the RTI Act. In this context I note that the Hon’ble Supreme Court of India in the matter of Central Board of Secondary Education & Anr. vs. Aditya Bandopadhyay & Orshad inter alia held that: A public authority is “...not required to provide ‘advice’ or ‘opinion’ to an applicant nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) of the Act only refers to such material available in the records of the public authority. Many public authorities have as a public relation exercise provided advice guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act”. Further in the matter of Shri Shantaram Walavalkar vs. CPIO SEBI I note that the Hon ble CIC had held that: “... we would also like to observe that under the Right to InformationAct the citizen has the responsibility to specify the exact information he wants he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO…”. In view of 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 the abovementioned queries. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed. Place: Mumbai Date: August 11 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

There is a difference between grant of bail under section 439 Cr.P.C. and grant of bail, post-conviction: Sikkim High Court

If the short-term sentence is allowed to run during the pending of the appeal, the appeal itself will become for all practical purposes, infructuous, so far as the appellant is concerned. Such an opinion was held by The Hon’ble High Court of Sikkim before The Hon’ble Mr. Justice Bhaskar Raj Pradhan in the matter of Pema Tshering Bhutia Vs. State of Sikkim [I.A. No. 1 of 2021 in Crl. Appeal No. 13 of 2021]. The facts of the case were associated with an application for suspension of sentence and grant of bail pending disposal of the appeal under section 389(1) of the Code of Criminal Procedure, 1973 (Cr.P.C.). The counsel representing the appellant stated that according to the order, the appellant was sentenced to one year each under sections 354 and 506 of the Indian Penal Code, 1860 (IPC). The PP for the state submitted that the appellant was convicted by the learned Trial Court and therefore the sentence must not be suspended. A previous case in Preet Pal Singh vs. State of Uttar Pradesh1 was referred wherein The Hon’ble Supreme Court held that assumption of innocence was a significant postulate of criminal jurisprudence, and courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail was the rule and jail was an exception. It was also stated that during post-conviction bail if guilt was found and the question of presumption of innocence did not rise, then suspension of operation of the sentence could be considered. It was also submitted that the court considered the prima-facie merits of the appeal with other factors. The Hon’ble Court opined that the Appellate Court must examine if there was an order of conviction that rendered the order of conviction prima facie being erroneous.  Considering all the facts The Hon’ble Court ruled that “… Considering the rival submissions and examining the impugned judgment and order on sentence along with the depositions of the prosecution witnesses, this court is of the view that it is a fit case in which the appellant ought to be granted bail pending the final disposal of the appeal… The application for suspension of sentence and bail is accordingly allowed and disposed of. This order in addition to the regular mode shall also be communicated electronically to all concerned.”

THE HIGH COURT OF SIKKIM : GANGTOK Criminal Appeal Jurisdiction) SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE I.A. No. 21 Crl. Appeal No. 121 Pema Tshering Bhutia S o Pempa Bhutia Permanent Resident of Phensong P.S. Mangan North Sikkim. ….. Appellant State of Sikkim Application under Section 389(1) of the Code of Criminal Procedure Code 1973. Ms. Zola Megi Advocate for the Appellant. Mr. S.K. Chettri Additional Public Prosecutor and Ms. Pema Bhutia Assistant Public Prosecutor for the State respondent. Date of hearing : O R D E RBhaskar Raj Pradhan J. This is an application under section 389(1) of the Code of Criminal Procedure 1973 for suspension of sentence and grant of bail pending disposal of the appeal. 2 I.A. No. 021 IN Crl. Appeal No. 121 Pema Tshering Bhutia vs. State of Sikkim Ms. Zola Megi learned counsel for the appellant submits that the order on sentence was passed on 31.08.2021 by which the appellant has been sentenced to one year each under section 354 and 506 of the Indian Penal Code 1860 Cr.P.C. is not applicable. 3 I.A. No. 021 IN Crl. Appeal No. 121 Pema Tshering Bhutia vs. State of Sikkim In Preet Pal Singh vs. State of Uttar Pradesh1 the Supreme Court held that there is a difference between grant of bail under section 439 Cr.P.C. and grant of bail post conviction. the earlier case there may be presumption of innocence which is a postulate of criminal jurisprudence and courts may be liberal depending on the facts and circumstances of the case on the principle that bail is the rule and jail is an exception. However in case of post conviction bail by suspension of operation of the sentence there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted once there is conviction upon trial. Rather the court considering an application for suspension of sentence and grant of bail is to consider the prima facie merits of the appeal coupled with other factors. There should be strong compelling reasons for grant of bail notwithstanding an order of conviction by suspension of sentence and this strong and compelling reason must be recorded in the order granting bail as mandated in section 389(1) Cr.P.C. It was further held that in considering an application for suspension of sentence the Appellate Court is only to examine if there is such patent infirmity in the 18 SCC 645 4 I.A. No. 021 IN Crl. Appeal No. 121 Pema Tshering Bhutia vs. State of Sikkim order of conviction that renders the order of conviction prima facie erroneous. In Kiran Kumar vs. State of M.P.2 the Supreme Court noted its opinion in Bhagwan Rama Shinde Gosai vs. State of Gujarat3 in which it was held when a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right suspension of sentence can be considered by the Appellate Court liberally unless there are exceptional circumstances. If the short term sentence is allowed to run during the pending of the appeal the appeal itself will become for all practical purposes infructuous so far as the appellant is concerned. A note of caution was given by the Supreme Court that it did not mean that the Appellate Court should suspend the sentence if its consequence would be a danger to the society or any other similar difficulties. Considering the rival submissions and examining the impugned judgment and order on sentence along with the depositions of the prosecution witnesses this court is of the view that it is a fit case in which the appellant ought to be granted bail pending the final disposal of the appeal. The judgment rendered by the learned Special Judge POCSO Act) North Sikkim at Mangan9 SCC 211 34 SCC 421 5 I.A. No. 021 IN Crl. Appeal No. 121 Pema Tshering Bhutia vs. State of Sikkim Judge) dated 28.08.2021 has acquitted the appellant for the charge under section 7 of the POCSO Act holding that the prosecution is unable to prove it. The conviction under section 354 IPC and 506 IPC is for a year each and it has been directed to run concurrently. The appellant having already served more than seven months there is less than three months further for the appellant to complete the sentence awarded. The appeal having been admitted is unlikely to be heard within the period of three months as the lower court records must be called for paper books prepared and matter heard finally. If the appeal is not heard within the three months next it would be rendered infructuous. This court therefore deems it appropriate to suspend the sentence passed on the appellant during the pendency of the appeal and direct him to be released on bail on his executing a bond with two solvent sureties to the satisfaction of the learned Special Judge. Additionally he shall appear personally on every date of hearing before this court stay away from the victim and not leave Sikkim without the permission from the learned Special Judge. He shall also provide his active mobile number as well as his active email addressto the registry of this court as well as the court of the learned Special Judge before whom he shall be produced on Monday 15.11.2021. 6 I.A. No. 021 IN Crl. Appeal No. 121 Pema Tshering Bhutia vs. State of Sikkim The application for suspension of sentence and bail is accordingly allowed and disposed. This order in addition the regular mode shall also be communicated electronically to all concerned. Bhaskar Raj Pradhan ) Judge Approved for reporting : Yes : Yes Internet

Investigating Agency and Court should not be made an instrument to submit to the jurisdiction of a Court which actually has none: Delhi High Court

To harass the other party, the Investigating Agency and Court should not be made an instrument of compelling a party to come to a place far away from his own place, to submit to the jurisdiction of a Court which actually has none was recorded by the Delhi High Court in the case of Ramesh Boghabhai Bhut vs State & Anr. CRL.M.C. 1616/2020 & Crl.M.A. 10307/2020, by the bench comprising of Justice Suresh Kumar Kait. The facts of the case are that since 2009, the Petitioner, through his sole proprietorship has been undertaking the business of fresh/dehydrated onions and garlic and other perishable items export to various countries like Europe, Gulf and rest of Asia. In January 2018, the Complainant’s office, Tiger Logistics, approached the Petitioner and one Mr. Makbul Sheikh- salesman of Tiger Logistics, from his office situated at Veraval, Gujarat met with the Petitioner at the offices of the Petitioner which is also in Gujarat. The Petitioner, based on the transit time of 21 days promised by Tiger Logistics, entered into a sales contract with his customer Sadro SRL, an importer based in Italy. However, to the utter shock and surprise of the Petitioner, the shipment did not reach the Port of Naples within 21 days and the contract was canceled by the buyer in Italy. The present petition has been filed under section 482 of the Code of Criminal Procedure, 1973 for quashing of FIR No.02/2020 dated 01.01.2020 registered at Police Station North Rohini, Distt. Rohini, New Delhi for the offenses punishable under sections 420/406 IPC. The petitioner submitted that courts in Delhi do not have the jurisdiction to adjudicate the matter. The alleged transaction between the parties and the pursuant action under the transaction took place from the State of Gujarat and nothing objectionable happened in the NCT of Delhi. The FIR can under any circumstances be not registered anywhere in the NCT of Delhi for lack of jurisdiction The High Court relying on Jai Prakash vs. Dinesh Dayal: (1989) 39 DLT 376 held that:  “ It is trite that an inquiry and trial with respect of an offense shall be conducted by the Court within whose local jurisdiction occurrence in question is said to have taken place and thereby cause of action has arisen. Section 178 and Section 179 of Cr.P.C. are merely exceptions to this principle enumerated in Section 177, and their scope should not be enlarged on analogous consideration. Ordinarily, the case shall be tried by the Court in whose local limits the offense was committed, which is in the state of Gujarat in relation to the present dispute In addition to the aforesaid, for determination of offenses alleged to have been committed under Section 406 of the Indian Penal Code 1860, Section 181 of the Code of Criminal Procedure, 1973 lays down the jurisdiction of such court where “the offence was committed or any part of the property which is the subject of the offence was received or retained.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: Pronounced on: 23.11.2020 CRL.M.C. 1616 2020 & Crl.M.A. 10307 2020 RAMESH BOGHABHAI BHUT Petitioner Through Mr.Mohit Negi Adv. STATE & ANR. Respondent Through Mr.Panna Lal Sharma APP for the State. Mr.B.V. Niren Adv. with Mr.Kshitij Mudgal Adv. for R 2. HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT Present petition has been filed under section 482 of the Code of Criminal Procedure 1973 for quashing of FIR No.02 2020 dated 01.01.2020 registered at Police Station North Rohini Distt. Rohini New Delhi for the offences punishable under sections 420 406 IPC. The facts of present case as narrated in the present petition are that since 2009 the Petitioner through his sole proprietorship has been undertaking the business of fresh dehydrated onions and garlic and other CRL.M.C. 1616 2020 perishable items export to various countries like Europe Gulf and rest of Asia. In January 2018 the Complainant’s office Tiger Logistics approached the Petitioner and one Mr. Makbul Sheikh salesman of Tiger Logistics from his office situated at Veraval Gujarat met with the Petitioner at the offices of the Petitioner which is also in Gujarat. During the meeting Mr. Makbul Sheikh represented to the Petitioner that the Respondent No.2 is a commission agent and can provide cost efficient and reliable services. Accordingly on 17.01.2018 Mr. Makbul Sheikh addressed an email to the Petitioner thereby informing the Petitioner regarding shipping lines available from Port Pipavav Gujarat to Port of Naples Italy. On 10.02.2018 the Petitioner based on the transit time of 21 twenty one) days promised by Tiger Logistics entered into a sales contract with his customer Sadro SRL an importer based in Italy. Upon such commitment the Petitioner provided 13 booking to the Respondent No.1 for 26 containers. The Petitioner only as a goodwill gesture as a sincere exporter and upon the insistence of the representatives of Tiger Logistics paid an amount of Rs.10 76 100 through cheque issued in Gujarat to the Shipping Line and such payment was collected by the representatives of Tiger Logistics only as CRL.M.C. 1616 2020 an agent. Over the month of January 2018 the Petitioner sent 26 shipments of fresh onion through the Safmarine Shipment Line as booked by Tiger Logistics. However to the utter shock and surprise of the Petitioner the shipment did not reach the Port of Naples within 21days. On 12.03.2018 the Petitioner issued an email representatives of Tiger Logistics based out of Gujarat expressing his concerns with regards to the delay of 14days in the delivery of the shipment of fresh onions. The Petitioner issued another email dated 21.03.2018 to the representatives of Tiger Logistics based out of Gujarat highlighting the delay in the delivery of the shipment. However the Petitioner received no proper response to any of its emails. Due to the Petitioner’s growing concern over the delay in delivery of shipments and risk of loss with every passing day the Petitioner on 16.04.2018 issued another email to the representatives of Tiger Logistics based out of Gujarat expressing his concern over the delay of 24days beyond the delivery time of 21days. On 21.04.2020 the representatives of Tiger Logistics based out of Gujarat responded to the emails issued by the Petitioner acknowledging and accepting the delay in the delivery of shipment. The representatives of Tiger Logistics based out of Gujarat further CRL.M.C. 1616 2020 apologized for the delay in the delivery. However to the dismay of the Petitioner there was complete failure on the part of the logistics service as promised by Tiger Logistics and the containers were delivered after a delay of many weeks. Due to the delay the buyer in Italy cancelled the remaining shipment of the Petitioner which caused an enormous loss to the Petitioner. Despite the fact that the Tiger Logistics along with the Shipping Line caused a tremendous delay in delivery the containers led to the Petitioner incurring substantial huge loss the Respondent No.2 started demanding approx. 37 Lakhs from the Petitioner. Since there was an utter failure of shipping services provided by Tiger Logistics which cannot claim any part of payment from the Petitioner. Learned counsel for the petitioner submitted that the allegations in the FIR ex facie do not disclose that the Petitioner at any point of time had fraudulent or dishonest intention or mens rea. The dispute raised by the Non Petitioner Respondent No. 2 in its complaint does not disclose commission of any criminal offence. The allegations and a purported claim at best and without prejudice to the instant case are in a nature of civil proceeding. The criminal proceeding is an attempt of the complainant to convert the civil dispute into a criminal dispute because of the feeling that if CRL.M.C. 1616 2020 a civil dispute is converted into a criminal dispute quicker relief will be obtained. Thus it is a gross abuse of law and process. To strengthen his above arguments learned counsel has relied upon the case of V.Y. Jose and Anr. v. State of Gujarat and Anr.: 2009SCC 78 wherein the Hon’ble Supreme Court has held as under: “14. …. For the purpose of constituting an offence of cheating the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise in absence of a culpable intention at the time of making initial promise being absent no offence under Section 420 of the Indian Penal Code can be said to have been made out. 28. A matter which essentially involves dispute of a civil nature should not be allowed to be the subject matter of a criminal offence the latter being not a shortcut of executing a decree which is non existent. The Superior Courts with a view administration of justice should not allow abuse of the process of court. It has a duty in terms of Section 483 of the Code of Criminal Procedure to supervise the functionings of the trial courts.” to maintain purity Learned counsel further submitted that the Complainant Respondent No.2 has conceded that the Tiger Logistics Ltd. provided the cost and fees for transportation of the goods within 21 days. It is now an undisputed fact that Tiger Logistics offered to provide the services CRL.M.C. 1616 2020 including the cost and fees for transportation of the goods within 21 days. It is also an undisputed fact that good were not delivered in such 21 days. There has been a complete lapses of logistic service commitment for which they are demanding full payment. Such an act makes it evident that they are trying to mislead the legal machineries. Therefore the amount of Rs.48 51 498 will no longer apply to the terms of the contract since there is a clear breach of the contract. The Complainant is trying to enforce a decree of money recovery wherein such decree does not exist through the criminal mechanism. Learned counsel for the petitioner submitted that courts in Delhi do not have the jurisdiction to adjudicate upon the matter. The alleged transaction between the parties and the pursuant action under the transaction took place from the State of Gujarat and nothing objectionable happened in the NCT of Delhi. The FIR can under any circumstances be not registered anywhere in the NCT of Delhi for lack of jurisdiction. The FIR has maliciously been lodged in Delhi. It has been so done with a view to harass the Petitioner. Apart from the fact that there has been no cheating criminal breach of trust per se none as such has been alleged to have been committed CRL.M.C. 1616 2020 in Delhi which is established on the following facts: The bookings for sending the goods overseas were made outside the NCT of Delhi and in the State of Gujarat ii) The said containers were shipped out of the country from Gujarat. Delhi Police as such have no jurisdiction whatsoever in the matter iii) Because the representatives of the Respondent No.2 based out Veraval Gujarat met with the Petitioner at his office address at Mahuva Gujarat. It is also reflected in the email issued by Mr. Makbul Sheikh the representative of the Respondent No.2 operated out of Veraval Gujarat iv) Because the Bill of Lading that is the only legal document between the parties also states that it has been prepared at Ahmedabad. Therefore any purported inducement that may have happened took place within the territory of State of Gujarat and the courts police in the NCT of Delhi have no jurisdiction to try the dispute The invoice has been raised by the office of Tiger Logistics based out of C 406 Dev Aurum NR. Shell Petrol Pump Anand Nagar Road Prahlad Nagar Ahmedabad 380015. The terms and conditions of the invoice also specifies that “all CRL.M.C. 1616 2020 disputes are subject to Ahmedabad Jurisdiction” vi) The Complainant has tried to mislead this Hon’ble Court by not annexing the initial invoices where the jurisdiction was shown to be Ahmedabad. The correct invoice is available as Schedule I to the written submissions. The later invoices was a mischievous attempt by the Complainant to make Delhi the jurisdiction and to mislead this Court vii) In any event such jurisdiction clause can only determine the jurisdiction of the civil court and not determine where the “purported” criminal act has taken place. To strengthen his arguments learned counsel for the petitioner has relied upon the case of Asit Bhattacharjee vs. Hanuman Prasad Ojha & Ors.:5 SCC 786 whereby held as under: “Fraudulent representation being one of the essential ingredients in respect of commission of an offence under Section 420 of the Indian Penal Code a place where such fraudulent misrepresentation has been made would thus give rise to a cause of action for prosecuting the accused. Similarly having regard to the ingredients of an offence under Section 406 where the entrustments were made as also the situs where the offence was completed in the sense that the amount entrusted had not been accounted for by the agent to the principal will also have a nexus so as to enable to the Court concerned to exercise its jurisdiction of taking cognizance.” The Hon’ble Supreme Court has further held in Navinchandra N. CRL.M.C. 1616 2020 Majithia v. State of Maharashtra & Ors.:7 SCC 640 as under: “22. So far as the question of territorial jurisdiction with reference to a criminal offence is concerned the main factor to be considered is the place where the alleged offence was committed.” 9. While concluding his arguments learned counsel for the petitioner submitted that the territorial jurisdiction of a court with regard to criminal offence would be decided on the basis of place of occurrence of incident and not on the basis where complaint was filed or the FIR registered. o strengthen his above arguments he has relied upon the case of Rajandra Ramchandra Kavelkar vs. State of Maharashtra & Anr.: AIR 2009 SC 1792 whereby Hon’ble Supreme Court has held as under: “19. It is also relevant to state that in Navinchandra N. Majithia vs. State of Maharashtra: 7 SCC 640 the Hon’ble Supreme Court at paragraph 22 of the judgment has observed : 22. So far as the question of territorial jurisdiction with reference to a criminal offence is concerned the main factor to be considered is the place where the alleged offence was The territorial jurisdiction of a court with regard to criminal offence would be decided on the basis of place of occurrence of the incident and not on the basis of where the complaint was filed and the mere fact that FIR was registered in a particular State is not the sole criterion to decide that no cause of action has arisen even partly CRL.M.C. 1616 2020 within the territorial limits of jurisdiction of another court. The venue of enquiry or trial is primarily to be determined by the averments contained in the complaint or charge sheet.” 11. On the other hand learned APP for State and counsel for the respondent no.2 submitted that Respondent no. 2 raised invoices for providing its services upon which the Petitioner made part payment of Rs.10 76 800 to Respondent no. 2 at New Delhi. However when said Respondent no.2 demanded the outstanding amount the Petitioner flatly refused to pay and stated that no amount is liable to be paid by the 12. On jurisdiction it is submitted that as per admitted invoices raised by Respondent no.2 the payment was to be made by the Petitioner at New Delhi since the bank account mentioned on the invoices is maintained at New Delhi. The Petitioner has committed the office of criminal breach of trust since the payment has not been made at New Delhi. In addition thereto Respondent no.2 has been demanding the payment from his office situated in New Delhi. Furthermore said Respondent has received threats and assault at New Delhi. Therefore as per section 181 Cr.P.C. even if a part of cause of action has arisen at a particular place the local court shall have jurisdiction in the matter. In the present case the whole cause of action has CRL.M.C. 1616 2020 arisen in New Delhi since the whole payment was to be made in New Delhi and the incidents have taken place in New Delhi. 13. Further submitted that it is an admitted fact that the Petitioner had paid Rs. 10 76 800 to Respondent no. 2 at New Delhi. Thus the Petitioner is estopped from claiming that no payment is required to be made at New Delhi. Therefore the cause of action for criminal breach of trust and cheating has arisen in New Delhi and consequently the FIR is maintainable at New Delhi. In addition the present FIR is legally maintainable at New Delhi since the office of Respondent no.2 Complainant is in New Delhi. The Complainant is working as Manager Credit Control in Tiger Logistics India) Ltd. In the course of his employment Respondent no.2 made constant requests for payment of the outstanding dues from the Petitioner from his office at New Delhi and in response thereof the Petitioner used to threaten and intimidate Respondent no.2. Further it has also been stated in the FIR that Respondent no.2 has been cheated at New Delhi since the Petitioner had promised to pay the amount demanded by Respondent no.2 at New Delhi but has admittedly refused to do so. It is submitted that there is no civil or contractual dispute between the Petitioner and Respondent no.2. Petitioner himself has stated in the petition CRL.M.C. 1616 2020 that there is no contractual relationship between the Petitioner and Respondent no.2. Thus the Petitioner has been consistently making contradictory statements which is evidence of the malafide and illegal contentions made by the Petitioner. The documents relied upon by the Petitioner i.e. the booking amendment and Waybill etc. are admittedly documents which have been issued by the shipping line namely Safmarine and not by Respondent no.2. Thus there is not contractual civil dispute existing between the parties and the Petitioner has committed the offence of criminal breach of trust and cheating. Furthermore the Petitioner has been making contradictory statements stating that Respondent no. 2 Complainant has been deficient in his services whereas the Petitioner himself in his email dated 16.04.2018 has stated that he is satisfied with the service provided by Respondent no.2 and that the delay was caused by the shipping line Safmarine. as follows: It is further submitted that any and all the documents relied upon by the Petitioner cannot be considered under section 482 Cr.P.C. The Hon’ble Supreme Court has held in para 18 of Ravindra Kumar Madanlal Goenka vs. Rugmini Ram Raghav Spinners Pvt. Ltd. & Anr.:11 SCC 529 CRL.M.C. 1616 2020 18. While entertaining a petition under Section 482 Cr.P.C. the materials furnished by the defence cannot be looked into and the defence materials can be entertained only at the time of trial. It is well settled position of law that when there are prima facie materials available a petition for quashing the criminal proceedings cannot be entertained. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre emption of such investigation would be justified only in very extreme 16. The Hon’ble Supreme Court has further held in Kamal Shivaji Pokarnekar vs. State of Maharashtra & Ors.:14 SCC 350 at paras 5 and 6 that: “5. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein in the light of the statement made on oath that the ingredients of the offence are disclosed there would be no justification for the High Court to interfere. 6. Defences that may be available or facts aspects which when established during the trial may lead to acquittal are not grounds for quashing the complaint at the threshold. At that stage the only question relevant is whether the averments in the complaint spell out the CRL.M.C. 1616 2020 ingredients of a criminal offence or not.” It is submitted that the Hon’ble Supreme Court has settled the position of law with respect to territorial jurisdiction for the cases pertaining to criminal breach of trust that while dealing with other precedents it is held in Rhea Chakraborty vs. State of Bihar & Ors.:SCC Online SC 654 as follows: “26. When allegation of Criminal Breach of Trust and Misappropriation is made on the jurisdictional aspect this Court in Asit Bhattacharjee Vs. Hanuman Prasad Ojha: 5 SCC 786 in the judgment written by Justice S B Sinha observed as under: “21. Section 181 provides for place of trial in case of certain offences. Sub section of Section 181 was introduced in the Code of Criminal Procedure in 1973 as there existed conflict in the decisions of various High Courts as regards commission of offence of criminal misappropriation and criminal breach of trust and with that end in view it was provided that such an offence may be inquired into or tried by the court within whose jurisdiction the accused was bound by law or by contract to render accounts or return the entrusted property but failed to discharge that obligation. station concerned 22. The provisions referred to hereinbefore clearly suggest that even if a part of cause of action has arisen the police jurisdiction of cognizance under Section 190(1) of the Code of Criminal to make Procedure will have situate within the Magistrate empowered 28. Once again in Rasiklala Dalpatram Thakkar Vs. CRL.M.C. 1616 2020 in Satvinder Kaur(supra) State of Gujarat: 1 SCC 1 while approving the earlier decisions judgment rendered by Justice Altamas Kabir as he was then the Supreme Court made it very clear that a police officer cannot refrain from investigating a matter on territorial ground and the issue can be decided after conclusion of the investigation. It was thus held: “27. In our view both the trial court as well as the Bombay High Court had correctly interpreted provisions of Section 156 CrPC to hold that it was not within the jurisdiction of the investigating agency to refrain itself from holding a proper and complete investigation merely upon arriving at a conclusion that the offences had been committed beyond its territorial 28. … in Patna 29. Moreover the allegation relating to criminal breach of trust and misappropriation of money which were to be eventually accounted Complainant resides) could prima facie indicate the lawful jurisdiction of the Patna police. This aspect was dealt succinctly by Justice J S Khehar as a member of the Division Bench in Lee Kun Hee President Samsung Corporation South Korea and Others Vs. State of Uttar Pradesh and Ors.3 SCC 132 and it was held as under: “38 181. Place of trial in case of certain offences.—(1)(4) Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained or was required to be returned or accounted for by the accused CRL.M.C. 1616 2020 person.” A perusal of the aforesaid provision leaves no room for any doubt that in offences of the nature as are subject matter of consideration in the present controversy the court within whose local jurisdiction the whole or a part of the consideration “… were required to be returned or accounted for.…” would have jurisdiction in the matter.” 18. The Hon’ble Supreme Court with respect to allegations of civil dispute has held in Indian Oil Corporation vs. NEPC India Ltd. & Ors.: 2006) 6 SCC 736 at para 12 as follows: “12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre SCC 692] State of Haryana vs. BhajanlalSCC 335] Rupan Deol Bajaj vs. Kanwar Pal Singh Gill SCC 194] Central Bureau of Investigation v. Duncans Agro Industries Ltd. SCC 591] State of Bihar vs. Rajendra Agrawalla SCC 164] Rajesh Bajaj v. State NCT of Delhi SCC 259] Medchl Chemicals & PharmaLtd. v. Biological E. Ltd.SCC 269] Hridaya Ranjan Prasad Verma v. State of BiharSCC 168] M. Krishnan vs Vijay Kumar 2001 SCC 645] and Zandu Phamaceutical Works Ltd. v. Mohd. Sharaful Haque SCC 122]. The principles relevant to our purpose are : i) to. v) A given set of facts may make out :purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence. A commercial CRL.M.C. 1616 2020 transaction or a contractual dispute apart furnishing a cause of action for seeking remedy in civil law may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding the mere fact that the complaint relates to a commercial transaction or breach of contract for which a civil remedy is available or has been availed is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.” 19. Thus submitted that in view of the above facts and circumstances and the settled position of law it is prayed that this Court be pleased to dismiss the present petition with costs. I have heard learned counsel for the parties and perused the material available on record. It is not in dispute that in the month of January 2018 from complainant’s office Tiger Logistics approached the petitioner and one Makbul Sheikh salesman of Tiger Logistics from his office situated at Verawal. Gujarat met with the Petitioner at his office in Gujarat. On 17.01.2018 said Makbul addressed an email to the Petitioner from Verawal Gujarat thereby informing to the Petitioner regarding shipping lines available from Port Pipavav Gujarat to Port of Naples Italy. On 10.02.2018 based on the transit time of 21days promised by CRL.M.C. 1616 2020 Tiger Logistics the petitioner entered into a sales contract with his customer Sadro SRL an importer based in Italy. Upon such commitment the Petitioner provided 13 booking to the complainant for 26 containers. Admittedly the Petitioner paid an amount of Rs.10 76 100 through cheque issued in Gujarat to the Shipping Line and said payment was collected by the representatives of Tiger Logistics as an agent. Over the month of January 2018 the Petitioner sent 26 shipments of fresh onion through the Safmarine Shipment Line as booked by Tiger Logistics. However the shipment did not reach the Port of Naples Italy within 21 days. To this effect the petitioner had issued e mail dated 12.03.2018 to the representatives of Tiger Logistics based out of Gujarat expressing his concern with regards to the delay of 14 days in the delivery of the shipment of fresh onions. Thereafter the Petitioner had issued two other emails dated 21.03.2018 and 16.04.2018 expressing his concern over delay of 24 days beyond the delivery time of 21 days. Due to delay the petitioner had incurred loss but respondent no.2 started demanding approx. 37 lakhs from the petitioner however not paid hence the present FIR registered against the petitioner. In case of V.Y. Josethe Hon’ble Supreme Court has held that CRL.M.C. 1616 2020 even in a case where allegations are made in regard to failure on the part of the accused to keep his promise in absence of a culpable intention at the time of making initial promise being absent no offence under Section 420 of the Indian Penal Code can be said to have been made out. Further held that a matter which essentially involves dispute of a civil nature should not be allowed to be the subject matter of a criminal offence the latter being not a shortcut of executing a decree which is non existent. In the case in hand there was an agreement to fulfil the same however there was delay due to which the petitioner has incurred loss therefore not paid the total amount. It is trite that an inquiry and trial with respect of an offence shall be conducted by the Court within whose local jurisdiction occurrence in question is said to have taken place and thereby cause of action has arisen. Section 178 and Section 179 of Cr.P.C. are merely exceptions to this principle enumerated in Section 177 and their scope should not be enlarged on analogous consideration. Ordinarily the case shall be tried by the Court in whose local limits the offence was committed which is in the state of Gujarat in relation to the present dispute. In addition to the aforesaid for determination of offences alleged to have been committed under Section 406 of the Indian Penal Code 1860 Section 181 of the Code of Criminal CRL.M.C. 1616 2020 Procedure 1973 lays down the jurisdiction of such court where “the offence was committed or any part of the property which is the subject of the offence was received or retained.” In the case in hand the transaction between the parties in relation to transaction of goods took place in Gujarat the representations and meeting took place in Gujarat the goods were shipped from Pipavav Port Gujarat bill of ladings were released from Ahmedabad Gujarat the invoices were raised by the entity based out of Gujarat and the jurisdiction of such invoices were subject to the court of Gujarat therefore applying the direct principles of Section 181 only the court situated in Gujarat can exercise jurisdiction over the alleged criminal breach of trust if any. It is pertinent to mention here that for the application of Section 179 the primary consequence should be considered in determining jurisdiction and not any secondary consequence. If the primary consequence completes the offence the mere fact that there is a more remote consequence will not make Section 179 applicable. Therefore the consequence of the offence if any is sustained by the Tiger Logistics Branch situated in Gujarat. It cannot possibly be the argument of the Complainant Respondent No.2 that tomorrow if Tiger Logistics were to send an email from its Hyderabad CRL.M.C. 1616 2020 office demanding repayment of money then courts in Hyderabad will have jurisdiction over the matter. Such interpretation of law is absurd and deserves to be outrightly rejected. In case of Jai Prakash vs. Dinesh Dayal: 39 DLT 376 this Court held that where the accused is carrying on business in a city agreement to supply to complainant’s branch office at that city is entered within the local jurisdiction of that city institution of complaint at New Delhi on the ground that the complainant’s head office situated there is without jurisdiction. as under: 27. Para 6 of the above cited case is relevant here and same is reproduced “Upon a consideration of the fact that the agreement dated 4 2 1988 between the parties clearly indicates that it was entered into between them at Bhadohi that the various invoices were sent by the petitioner to respondent No. 2 in its branch office at Bhadohi and the factum of a civil suit having been filed for recovery of amount by respondent No. 2 against the petitioner at Gian Pur Varanasi within the territorial jurisdiction of which Bhadohi is situated. I am of the view that this criminal complaint filed by respondent No. 2 against the petitioner at New Delhi could not be so filed for want of jurisdiction. Clearly if the complaint is filed by a party against another at a place which has no territorial jurisdiction to entertain the same. I am of the view that it CRL.M.C. 1616 2020 amounts to abuse of process of the Court. The Court should not be made an instrument of compelling a party to come to a place far away from his own place to submit to the jurisdiction of a court which actually has none. I am. therefore. of the view that the proceedings instituted by respondent No. 2 against the petitioner in the shape of a criminal complaint under Section 406 of Indian Penal Code and the summoning of the petitioner by the trial court are without jurisdiction and there is no alternative to quash such proceedings. The proceedings. therefore pending before the learned trial court are 28. Similar view was taken in the case of Subhkaran Luharuka & Anr. vs. State & Anr.: 2010(170) DLT 516 held as under: “59. I have perused the aforesaid judgments and find that in all those judgments it has been held that jurisdiction can be conferred on the Court either where the offence has been commenced or where it has been completed and even where part of the offence was committed. Therefore only plea raised by the complainant that a meeting had taken place in Delhi office of the complainant without giving any details as to when and for what purpose such a meeting had taken place of which no minutes has been provided by the complainant jurisdiction cannot be conferred in Delhi. 63. As regards inducement it is submitted that there is no allegation of deceit cheating or fraudulent intention of the accused at the time of entering into the contract. There is no pleading that there was any intention to cheat from the very beginning or that the 1994 agreement was fraudulently executed. The contract was executed in 1994 and after that parties have even given effect to the agreement. The assignee of the rights of the Company has already constructed the Flats over the land. Even CRL.M.C. 1616 2020 otherwise a subsequent breach of a contract i.e. creation of Mortgage cannot be construed as cheating. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of promise. From Crl.M.C.Nos.6122 23 2005 & 34 2005 Page 4] to keep up promise subsequently a culpable intention right at the beginning that is when he made the promise cannot be presumed. The element of mens rea is totally missing.” his mere In the case of State of Haryana & Ors. vs. Bhajan Lal & Ors.: 1992 SCC 426 the Hon’ble Supreme Court has conclusively held that in regard to exercise of power under Section 482 of Cr.P.C. under following circumstances the High Court must exercises its jurisdiction to quash any frivolous complaint. “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice though it may not be possible to lay down any precise clearly defined and sufficiently channelised and guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be 1. Where the allegations made in the First CRL.M.C. 1616 2020 Information Report or the complaint even if they are taken at their 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 uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. so absurd and 5. Where the allegations made in the FIR or complaint are improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the fide and or where 7. Where a criminal proceeding is manifestly attended with mala 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 personal grudge.” 30. Keeping in view the facts and circumstances of this case and the law discussed above the registration of FIR in question in Delhi is an abuse of CRL.M.C. 1616 2020 in law. the process of law. I have no hesitation to record here that the Investigating Agency and Court should not be made an instrument of compelling a party to come to a place far away from his own place to submit to the jurisdiction of a Court which actually has none. Therefore continuance of the criminal proceedings will lead to harassment of the petitioner which is not acceptable In view of the facts discussed above the present FIR is without jurisdiction whereby the complainant Respondent No.2 has attempted to seek unlawful recovery of money which is purely commercial matter therefore the cases cited by the counsel for respondent no.2 are not applicable. 32. Accordingly the FIR No.02 2020 dated 01.01.2020 registered at Police Station North Rohini Distt. Rohini New Delhi is hereby quashed with emanating proceedings thereto if any. 33. Present petition is accordingly allowed and disposed of. CRL.M.C. 1616 2020 34. Pending application also stands disposed of. 35. The judgment be uploaded on the website forthwith. NOVEMBER 23 2020 SURESH KUMAR KAIT) JUDGE CRL.M.C. 1616 2020

Lenient view should be adopted by the Court during the production of documents under O. 8 R.1A(3)- Supreme Court

In the case of Sugandhi (dead) by Lrs. & ANR v. P. Rajkumar Rep. by his Power Agent Imam Oli, (CIVIL APPEAL NO. 3427 OF 2020), the Supreme Court had stated that the court should take a lenient view when an application is made for the production of the documents under sub­rule (3) of Rule 1A, order 8. The facts of the case initiate with the present appeal which is directed against the Order dated 19.02.2019 passed by the High Court of Judicature at Madras, Madurai Bench, in C.R.P.(NPD)(MD)No.2609   of   2018   whereby the   High   Court has dismissed the revision petition filed by the appellants challenging the refusal to entertain an application under Order 8 Rule 1A(3) of the Code of Civil Procedure, 1908 (for short ‘C.P.C.’) seeking leave of the court to produce additional documents.   The appellants herein are the defendants in the suit, O.S. No.257 of 2014, on the file of the Principal Sub­Judge, Pudukottai, and the respondent is the plaintiff.  For the sake of convenience, parties are referred to in their respective positions before the Trial Court.  The plaintiff filed the suit for injunction alleging that the defendants are attempting to grab the suit schedule property.  When the suit was posted for the evidence of the defendants, they filed an application seeking leave to produce certain documents.  It was contended that they had recently traced these documents related to the suit property and that was why they could not produce them along with the written statement.  This application was opposed by the plaintiff.  The Trial Court by its Order dated 11th October, 2018 dismissed the application. As noticed above, the High Court has confirmed the order of the Trial Court. Mr. R. Anand Padmanabhan, learned counsel appearing for the appellants­defendants,   submits that the said documents are necessary for just determination of the case. He argued that the courts below have rejected the application on flimsy grounds. On the other hand, Mr. S. Mahendran, learned counsel appearing for the respondent­plaintiff, has supported the impugned orders of the courts below.  It is argued that the defendants are not entitled as a matter of right to produce the documents, particularly when the plaintiff has concluded his evidence. It had been held in the present case that “Sub­rule (1) mandates the defendant to produce the documents in his possession before the court and file the same along with his written statement.   He must list out the documents which are in his possession or power as well as those which are not. In case the defendant does not file any document or copy thereof along with his written statement, such a document shall not be allowed to be received in evidence on behalf of the defendant at the hearing of the suit.  However, this will not apply to a document produced for cross examination of the plaintiff’s witnesses or handed over to a witness merely to refresh his memory. Sub­rule (3) states that a document which is not produced at the time of filing of the written statement, shall not be received in evidence except with the leave of the court. Rule (1) of Order 13 of C.P.C. again makes it mandatory for the parties to produce their original documents before settlement of issues.” “Sub­rule (3), as quoted above, provides a second opportunity to the defendant to produce the documents which ought to have been produced in the court along with the written statement, with the leave of the court.  The discretion conferred upon the court to grant such leave is to be exercised judiciously.  While there is no straight jacket formula, this leave can be granted by the court on a good cause being shown by the defendant.” “ It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice.  If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute.  Therefore, the court should take a lenient view when an application is made for production of the documents under sub­rule (3).” “ Coming to the present case,   the defendants have filed an application assigning cogent reasons for not producing the documents along with the written statement.   They have stated that these documents were missing and were only traced at a later stage.  It cannot be disputed that these documents are necessary for arriving at a just decision in the suit.  We are of the view that the courts below ought to have granted leave to produce these documents.” “ Therefore, for the foregoing reasons, the appeal succeeds and it is accordingly allowed.  The orders impugned herein are set aside.   The application (I.A. No.551 of 2018 in O.S. NO.257 of 2014) filed by the appellants­defendants before the Principal Sub­Judge, Pudukottai, is accordingly allowed.  Parties to bear their own costs.” Click here to read the judgment

This appeal is directed against the Order dated 19.02.2019 passed by the High Court of Judicature at Madras Madurai Bench in C.R.P.(NPD)(MD)No.2609 of 2018 whereby the High Court has refusal to entertain an application under Order 8 Rule 1A(3) of the of 2014 on the file of the Principal Sub­Judge Pudukottai and the respondent is the plaintiff. For the sake of convenience parties are referred to in their respective positions before the Trial Court. The attempting to grab the suit schedule property. When the suit was posted for the evidence of the defendants they filed an application statement. This application was opposed by the plaintiff. The Trial 4. Mr. R. Anand Padmanabhan learned counsel appearing for the appellants­defendants submits that the said documents are necessary for just determination of the case. Due to certain courts below have rejected the application on flimsy grounds. He 5. On the other hand Mr. S. Mahendran learned counsel appearing matter of right to produce the documents particularly when the Rule 1A of Order 8 of C.P.C. provides the procedure for “1A. Duty of defendant to produce documents upon which written statement is presented by him and shall at the same time deliver the document and a copy thereof to be filed with the the defendant he shall wherever possible state in whose 3) A document which ought to be produced in Court by the defendant under this rule but is not so produced shall not without the leave of the Court be received in evidence on his statement. He must list out the documents which are in his possession or power as well as those which are not. In case the written statement such a document shall not be allowed to be merely to refresh his memory. Sub­rule states that a document Sub­ruleas quoted above provides a second opportunity to It is often said that procedure is the handmaid of justice way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate 10. Coming to the present case the defendants have filed an along with the written statement. They have stated that these documents were missing and were only traced at a later stage. It 11. Therefore for the foregoing reasons the appeal succeeds and it is appellants­defendants before the Principal Sub­Judge Pudukottai is ITEM NO.27 Court 10SECTION XII S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to AppealNo(s). 16491 2019 Arising out of impugned final judgment and order dated 19 02 2019 in CRP(NPD)(MD) No. 2609 2018 passed by the High Court Of Judicature At Madras At Madurai SUGANDHIMr. Anand Padmanabhan Adv Mr. Shashi Bhushan Kumar AOR For Respondent(s) Mr. S. Mahendran AOR UPON hearing the counsel the Court made the following O R D E R The Appeal is allowed in terms of the Reportable Signed All pending applications are disposed of NEELAM GULATI) (KAMLESH RAWAT ASTT. REGISTRAR cum PS COURT MASTER (NSH Reportable Signed order is placed on the file

The Court depended on Prima Facie of the offense and excused the request and subsequently held it as not viable under Court of Law: High Court Of Patna

The Petitioner was claimed of blending the beverages in with the liquor past as far as possible. The Court denied the request and held it as not viable under the official courtroom. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Aniket Singh v. The State of Bihar[Criminal Miscellaneous No. 37686 of 2020].  The facts of the case are that the candidate was captured capture regarding Case, founded under Section 30(a) of the Bihar Prohibition and Excise Act, 2016. It was claimed that the applicant from Hotel Welcome possessed by him just had 534 jars each containing 300 ML of natural product brew with 0.6-0.8% of liquor content recuperated from that point. The Learned Counsel for the Petitioner had presented that the instance of mala fide and for this thinking the synthetic assessment reports uncovered that the level of liquor by volume differed from 0.6-0.8% which was well under the breaking point by any beverage as arranged in the arrangements. The learned Counsel added,”… the word “alcoholic beverage or potable liquor”, under Section 2(4) of the Act, has been considered and it has been held that the Act prohibits “intoxicant or liquor containing alcohol of any strength and purity as per the definition of ‘alcoholic’ under Section 2(3) of the Act” and simultaneously, it does not prohibit sale, etc. of non-alcoholic substances in conformity with the standard set by the BIS, in view of the definition and clarification contained under Sections 2(4) and 2(6) of the Act. Thus, it was submitted that both sections, if read together, would show that in the present case whatever has been recovered would not constitute an offence under the Act.” The Additional Public Prosecutor battled that the beverages recuperated from the solicitors go under the referenced level of the Act. Additionally, the beverages were conveyed by another person to the inn from which the recuperation of the beverages has been impacted. The Hon’ble High Court of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds that for the purposes of consideration of the present petition, a prima facie offense is required to be seen whether made out under the Act. In the present case, when as per notification dated 19.03.2018, issued by the Ministry of Home and Family Welfare (Food Safety and Standard Authority of India), the alcoholic beverage has been specified as containing more than 0.5 % ethanol and in the present case, the percentage of ethanol being 0.6 to 0.8, prima facie, an offense is made out under the Act. The Act further stipulates that the owner of the premises would also be liable for such recovery. The Court would pause here to indicate that though such presumption is rebuttable, but it has to be at the stage of trial where it has to be proved that the accused had no concern with the recovered article which can be done only upon adducing evidence and the stage would be clearly at the time of trial.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 376820 Arising Out of PS. Case No. 354 Year 2020 Thana SHERGHATI District Gaya Aniket Singh aged about 28 years Male the Owner of Hotel Welcome Son of Sanjay Singh Resident of Gola Bazar Sherghati PS Sherghati District The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State Mr. Shivendra Prasad Advocate Mr. Umesh Lal Verma APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 06 08 2021 The matter has been heard via video conferencing 2. Heard Mr. Shivendra Prasad learned counsel for the petitioner and Mr. Umesh Lal Verma learned Additional Public Prosecutorfor the State 3. The petitioner apprehends arrest in connection with Sherghati PS Case No. 3520 dated 28.07.2020 instituted under Section 30(a) of the Bihar Prohibition and Excise Act 2016of the Act has been considered and it has been held that the Act prohibits “intoxicant or liquor containing alcohol of any strength and purity as per the definition of ‘alcoholic’ under Section 2(3) of the Act” and simultaneously it does not prohibit sale etc. of non alcoholic substances in conformity with the standard set by the BIS in view of the definition and clarification contained under Sections 2(4) and 2(6) of the Act. Thus it was submitted that both sections if read together would show that in the present case whatever has been recovered would not constitute an offence under the Act. Learned counsel submitted that petitioner does not have any other criminal antecedent 6. On 16.07.2021 the Court had called upon learned APP to seek instructions on the aforesaid submissions of the Today a communication from the Senior Superintendent of Police Gaya has been brought on record in Patna High Court CR. MISC. No.376820 dt.06 08 2021 which it has been stated that as per notification dated 19.03.2018 issued by the Ministry of Health and Family Welfarealcoholic beverage has been specified to be a liquor or brew containing more than 0.5 ethanol and thus the recovery of the fruit beer in which ethyl alcohol content was 0.6% to 0.8% V V comes within the purview of the Act. It has further been stated that the recovery of the drink of Kingfisher Budweiser and Hrineken Company containing ethyl alcohol in the aforesaid percentage clearly would be covered under the Act 7. Learned counsel for the petitioner submitted that the fruit beer seized had been given to Lallan Yadav by M s Kumar Construction which was the distributor of fruit beer and Lallan Yadav had occupied the room of the petitioner’s hotel from which recovery has been effected and thus the petitioner cannot be held liable for such recovery 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds that for the purposes of consideration of the present petition a prima facie offence is required to be seen whether made out under the Act. In the present case when as per notification dated 19.03.2018 issued by the Ministry of Home and Family Welfare Patna High Court CR. MISC. No.376820 dt.06 08 2021 Food Safety and Standard Authority of India) alcoholic beverage has been specified as containing more than 0.5 % ethanol and in the present case the percentage of ethanol being 0.6 to 0.8 prima facie an offence is made out under the Act. The Act further stipulates that the owner of the premises would also be liable for such recovery. The Court would pause here to indicate that though such presumption is rebuttable but it has to be at the stage of trial where it has to be proved that the accused had no concern with the recovered article which can be done only upon adducing evidence and the stage would be clearly at the time of trial 9. Thus the Court finds that prima facie an offence having been made out under the Act the present petition under Section 438 of the Code of Criminal Procedure 1973 would not be maintainable due to bar of Section 76(2) of the Act 10. In the aforesaid background the petition stands dismissed as not maintainable 11. Interim protection granted to the petitioner under order dated 16.07.2021 stands vacated (Ahsanuddin Amanullah J

Satisfying the Fetters of Section 37 of the NDPS Act is Candling the Infertile Eggs: High Court of Shimla

The ratio of the decision is that to get the bail in commercial quantity of substance, the accused must meet the twin conditions of Section 37 of NDPS Act. This honorable judgement was passed by the High Court of Shimla in the case of Surender Kumar Versus State of H.P. [Cr. MP(M) No. 675 of 2021] by The Hon’ble Mr. Justice Anoop Chitkara. An under-trial prisoner, for possessing commercial quantity of Charas, has come up before this Court under Section 439 of CrPC, seeking bail. The petitioner had filed a petition under Section 439 CrPC before this Court. However, vide order, the same was dismissed. The petition was silent about criminal history. The allegations against the petitioner are that on, the Police officials, had erected a Nakka at a place known as Vindravani on National Highway No.21 and were checking the vehicles. One car came, which was signaled to stop. Five youth were sitting in this Car. When the Police officials asked the driver to show the documents, he failed to produce either the documents of the vehicle or the driving licence. It raised a suspicion that vehicle may be of theft. Its prima facie made the investigator to believe that the vehicle is a stolen property and they are concealing something. Then, with a view to search the vehicle, the investigator associated two local witnesses and also called an automobile mechanic. The cover of the front left door was found to have not been properly fixed. When raised, the police could notice some packet inside. After that they removed the cover of the left door and inside noticed brown coloured packets. On opening the same, it had Charas, which when weighed on electronic scale measured 3 kilogram 285 grams. Thereafter the police conducted other procedural requirements under NDPS Act and Cr.PC and arrested the accused. The learned council referred the case of Chuni Lal v. State of H.P., Beli Ram v. State of Himachal Pradesh, and Sanjay Kumar v. State of Himachal Pradesh, and Satinder Kumar versus State of H.P., covers the proposition of law involved in this case, wherein this Court has held that, “Satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs. The ratio of the decision is that to get the bail in commercial quantity of substance, the accused must meet the twin conditions of S. 37 of NDPS Act.”

Hig h C o urt of H.P on 08 04 HCHP 1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACr. MP(M) No. 6721Reserved on: 7th April 2021.Date of Decision: 08th April 2021.Surender Kumar ...Petitioner.VersusState of H.P. ...Respondent.Coram:The Hon’ble Mr. Justice Anoop Chitkara Judge.Whether approved for reporting 1 NO For the petitioner:Mr. Yashveer Singh Rathore Advocate. For the respondent:Mr. Rajat Chauhan Law Officer. FIR No.DatedPolice StationSections62 1823.2.2018Sadar Mandi DistrictMandi20 & 29 NDPS Act and 181M.V. ActAnoop Chitkara Judge. An under trial prisoner in custody since 23rd February 2018 for possessingcommercial quantity of Charas has come up before this Court under Section 439 ofCrPC seeking bail.2.Earlier the petitioner had filed a petition under Section 439 CrPC before thisCourt. However vide order dated 04.02.2021 the same was dismissed.3.The petition is silent about criminal history however Mr. Yashveer SinghRathore learned Counsel for the bail petitioner states on instructions that thepetitioner has no criminal past relating to the offences prescribing sentence of sevenyears and more or when on conviction the sentence imposed was more than threeyears. The status report also does not mention any criminal past of the accused.4.Briefly the allegations against the petitioner are that on 23rd February 2018 the Police officials of the Police Station mentioned above had erected a Nakka at aplace known as Vindravani on National Highway No.21 and were checking the1Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 08 04 HCHP 2 vehicles. At around 10.00 a.m. one car came from the Pandoh side which wassignaled to stop. Five youth were sitting in this Car. When the Police officials askedthe driver to show the documents he failed to produce either the documents of thevehicle or the driving licence. It raised a suspicion that vehicle may be of theft. Thepolice inquired from them about the ownership of the car but they could not give anysatisfactory reply. It prima facie made the investigator to believe that the vehicle is astolen property and they are concealing something. Then with a view to search thevehicle the investigator associated two local witnesses and also called an automobilemechanic. The owner revealed his name as Surender Kumarand the personssitting on the rear seat as Vijay BharatVikram Singhand AmarNo.17520 and Sanjay Kumarv. State of Himachal Pradesh CrMPM 21720.6.Mr. Rajat Chauhan Law Officer submits they do not intend to file the statusreport because the entire facts have already been mentioned in the order passed bythis Court in Cr. MP(M) No. 321 and other requisite documents are part of thepetitioner. Therefore this Court had observed that the status report was not requiredto be filed. He further submits that the Police have collected sufficient evidenceagainst the accused which prima facie points out towards his involvement. He alsocontended that the quantity involved is commercial and restrictions of S. 37 of theNDPS Act do not entitle the accused for bail. While opposing the bail the alternative Hig h C o urt of H.P on 08 04 HCHP 3 contention on behalf of the State is that if this Court is inclined to grant bail such abond must be subject to very stringent conditions. 7.The decision of this Court in Satinder Kumar versus State of H.P. Cr.MP(M)No. 3920 decided on 4th Aug 2020 covers the proposition of law involved inthis case wherein this Court has held that Satisfying the fetters of S. 37 of the NDPSAct is candling the infertile eggs. The ratio of the decision is that to get the bail incommercial quantity of substance the accused must meet the twin conditions of S.37 of NDPS Act.8.Learned counsel for the petitioner has placed reliance on the judgment videwhich the Supreme Court had released one of the accused Amit Kumar Moniwho was sitting on the front left seat and the charas was recovered from front leftwindow i.e. adjacent to him. The order of Hon’ble Supreme Court passed inCriminal appeal No.6620 reads as follows:“Leave granted. This appeal challenges the order dated 10.07.2020 passed by theHigh Court of Himachal Pradesh Shimla in Crl. M.P.No.1107 of2020. The appellantis facing prosecution in Case No.135of 2018 on the file of the Special Judge II District Mandi HimachalPradesh in connection with crime registered pursuant to FIR No.62 dated23.02.2018 with Police Station Sadar Mandi District Mandi HimachalPradesh for the offences punishable under Sections 20 and 29 of theNarcotic Drugs & Psychotropic Substances Act 1985. The application preferred by the appellant for release on bailunder Section 439 of the Code of Criminal Procedure 1973having been rejected by the High Court the appellant haspreferred this appeal. According to the case of the prosecution in a vehicle occupied byfive persons including the appellant contraband materialJudge.April 08 2021 (ps).

Res-judicata in Section 11 of the CPC prohibits the Court from trying an issue that has been in issue in a former suit between the same parties: Orissa High Court

A decision made in the suit on a vital issue involved therein to operate as res-judicata in a subsequent suit between the same parties. Such an opinion was held by The Hon’ble High Court of Orissa before The Hon’ble Mr. Chief Justice B.P. Routray in the matter of Premlal Panda Vs. Panchanan Panda and Others [WA/61/2006].  The facts of the case were associated with property disputes. A judgment regarding such was challenged in the appeal. The properties of the four sons of Jagannath, among them Krushna Chandra died without any child. The dispute was concerned with the property of Krushna Chandra. A title suit was filed by Bhabagrahi, who claimed to be the adopted son of Krushna Chandra, the appeal by him was dismissed. An objection case was filed by Premlal praying for the recording of lands of late Krushna Chandra in his name claiming to be the adopted son of late Krushna Chandra. All the objection cases filed were disposed of by common judgment. Later, it was reported that Premlal was not the adopted son and that the claimed Adoption Deed was invalid and illegal.  A revision petition was filed which was disposed of by the Joint Commissioner. It was stated that it was an injustice to bind the petitioner by applying principles of res-judicata. Res-judicata was not applicable to the consolidation case and that the Joint commissioner was in favour of petitioner Premlal, declaring him to be the adopted son.  Considering all the facts and submissions, The Hon’ble Court stated that “… In the instant case the issue in question was substantially in issue in the previous suit, the competency of the earlier court in deciding the issue is not questioned and the parties in the list remains same, the decision of the former court shall definitely operate as res-judicata against all subsequent proceedings including the proceeding before Consolidation Authorities…  The legal position is unambiguous and the findings of the learned Single Judge are based on strong reasons. Accordingly, we do not find any ground to interfere with the same and the writ appeal is dismissed.”

IN THE HIGH COURT OF ORISSA AT CUTTACK WRIT APPEAL No.606 From the judgment dated 19th September 2006 passed by learned Single Judge in O.J.C. No.53598. Premlal Panda Versus Panchanan Panda and Others Advocate(s) appeared in this case : For Appellant Mr. Sidharth Mishra Advocate For Respondents Mr.Satyanarayan Mohapatra Advocate CORAM : THE CHIEF JUSTICE JUSTICE B.P. ROUTRAY 21st October 2021 B.P. Routray J. 1. The judgment dated 19th September 2006 of the learned Single Judge passed in OJC No.5350 of 1998 is under challenge in the present appeal. 2. Jagannath had 4 sons namely Krushna Chandra Ugrasena Panchanan and Sahadev. Krushna Chandra died issueless. Ugrasena had three sons namely Mahadev Premlal and Ramlal. Panchanan had one son namely Bhabagrahi and Sahadev had two sons namely Subash and Duryodhan @ Surya Kumar. W.A. No.606 2 3. The dispute pertains to the properties of Krushna Chandra. Initially Bhabagrahi filed Title Suit No.24 42 of 1978 81 praying to declare him as the adopted son of Krushna Chandra Premlal is not the adopted son and the registered Adoption Deed dated 14th December 1977 is invalid and illegal. The learned Munsif in his judgment dated 23rd December 1981 dismissed the suit. Against the same no appeal was 4. Subsequently during the consolidation proceeding Bhabagrahi filed Objection Case No.291 claiming to be the adopted son of late Krushna Chandra and consequent devolution of the properties in his favour. This was dismissed and Bhabagrahi carried it in Appeal Case No.73 of 1992 before the Deputy Director Consolidation which was also dismissed. No further challenge was made to the same. 5. On the other side Panchanan and Premlal also filed different other objection cases. Panchanan filed Objection Case No.291 and 68 of 1991 before the Consolidation Officer with a prayer to record the landed properties of late Krushna Chandra jointly in the names of other three surviving brothers of Krushna Chandra. Premlal filed Objection Case Nos.791 and 191 praying for recording of lands of late Krushna Chandra in his name claiming to be the adopted son of late Krushna Chandra on the basis of the registered Adoption Deed dated 14th December 1977. Those four objection cases were disposed of by common judgment dated 29th April 1992 directing allotment of 1 3rd share of the properties of late Krushna Chandra to each of the brothers namely Ugrasen Panchanan and Sahadev thereby rejecting the claim of Premlal placing reliance on the findings in the judgment of learned Munsif dated 28th December 1981. W.A. No.606 3 Said rejection order of the Consolidation Officer dated 29th April 1992 were challenged in Appeal case Nos.73 77 78 79 and 892 by Premlal and Bhabagrahi. All such appeals were dismissed by common order dated 18th September 1993. Premlal then carried it in revision before the Joint Commissioner of Settlement and Consolidation in RC Case No.594. The Joint Commissioner by judgment dated 27th February 1998 allowed the prayer of Premlal holding him as the adopted son of late Krushna Chandra and directed for recording of all his lands in favour of Premlal. The same was questioned by Panchanan and others in the writ petition. The learned Single Judge allowed the writ petition and set aside the order of the Revisional Court dated 27th February 1998. As such the present appeal has been filed by Premlal. 6. The short issue involved here is whether the findings recorded by the learned Munsif Sambalpur in T.S. No.24 82 of 1978 81 in judgment dated 23rd December 1981 declaring Premlal as not the adopted son of Krushna Chandra and the registered Deed of Adoption dated 14th December 1977 as invalid and illegal would operate as the res judicata in the subsequent proceeding before the Consolidation 7. Before proceeding to further discussion on the issue it would be better to understand the facts first. The undisputed facts are that Title Suit No.24 878 81 before the Munsif Sambalpur was between the same parties as before the Consolidation Authorities and the learned Munsif Sambalpur was the competent Court in respect of W.A. No.606 4 issue raised before him in the said Title Suit. The issues as framed by the learned Munsif are as follows: i) ii) iii) iv) Is the suit maintainable If Krushna Chandra adopt Premlal Defendant No.2 and present Opposite Party No.1) valid If the Deed of Adoption dated 14th December 1977 in favor of Premlalvalid and genuine and was acted upon Was the Plaintiff Bhabagrahiever taken in adoption by the defendant No. 1 Krushna Chandra and his wife If so is it valid and was acted upon Is there any cause of action To what relief if the plaintiff entitle v) vi) vii) Is the suit barred by Law of Limitation 8. The decision of the Learned Munsif on issue Nos. & are that Krushna Chandra never adopted Premlal and the Deed of Adoption dated 14th December 1977 is not valid and genuine document. The said finding of the learned Munsif has attained finality as no further challenge to his judgment dated 23rd December 1981 was taken up by any of the parties. 9. The Joint Commissioner in his order dated 27th February 1998 disposing of the revision petition which order was impugned in the writ petition held that it will be injustice to bind the Petitioner on the basis of some finding passed against him in the subsequent proceeding by applying principles of res judicata. It was held that the principle of res judicata will not be applicable to the present Consolidation Case and cannot be applied against the Petitioner. By recording such finding in favour of the Petitionerthe Joint Commissioner allowed W.A. No.606 5 the revision in favour of Premlal declaring him to be the adopted son of Krushna Chandra and consequently directed for recording of the land in his favour. 10. The learned Single Judge has given the finding that the issue of 11. The law mandated in Section 11 of the CPC along with 8 adoption of Premlal by Krushna Chandra as well as the Deed of Adoption dated 14th December 1977 was considered by the Munsif as the competent Court and has been conclusively decided against Premlal holding him not to be the adopted son of Krushna Chandra and further the Adoption Deed dated 14th December 1977 as invalid. The learned Single Judge has further held that such an issue having directly and substantially raised in the former suit between the same parties cannot therefore be raised and decided again in the subsequent proceeding before the Consolidation Authority being barred by the principles of res judicata enumerated in Section 11 of the Code of Civil Procedure( B.P. Routray) M.K. Panda Sr. Steno W.A. No.606

The writ petition will not be served by the Court after the allotment of accommodation: High Court of Shimla

When the allotment of the residential accommodation to the petitioner was subject to compliance being meted with the all the relevant rules, thereupon, the writ petitioner cannot make any contention before this Court that the extant available vacant accommodation be allotted to him. This honorable judgement was passed by High Court of Shimla in the case of Dr. Rattan Singh Versus Sh. Suneel Sharma & another [COPC No. 79 of 2021] by the Hon’ble Mr. Justice Sureshwar Thakur, Judge. The relevant operative portion of the verdict rendered by the Court, upon, stands extracted, the respondents-University were directed, to, within three weeks, convene meeting of the House Allotment Committee and the latter shall consider in accordance with the relevant Rules, the application of the writ petitioner, for his being, granted an accommodation, other than the one, which he was enjoying. The respondents convened the meeting of the House Allotment Committee, and, the proceedings drawn in the afore meeting were extracted here in after. The committee thoroughly examined and verified the relevant record and it was found that there is only one Type-IV residential accommodation vacant in the Teachers’ Colony (40 Flats), which was recently vacated by Prof Laxman Singh Thakur. In this context it was also found that the said residential accommodation needs to be renovated in order to make it habitable as per report of the Executive Engineer. After detailed discussion, the Committee unanimously decided that the matter of the petitioner would be duly considered as per rules in order of his seniority amongst the other eligible applicants as and when the next meeting of the Committee would be held for which the petitioner is required to apply through proper procedure on the proforma for change of accommodation.” The court opinioned that, “It clearly personify that the residential accommodation as now available with the House Allotment Committee, for allotment to the applicants concerned, is under renovation. Necessarily, the afore consideration order, did not make, any peremptory direction(s), upon, the respondents to ensure allotment of the available/vacant accommodation, if any, vis-a-vis, the applicant, and, also it did not cast any obligation, upon, the respondents, to dehors the relevant rules, make allotment of the afore accommodation to the petitioner, rather when the allotment of the residential accommodation to the petitioner was subject to compliance being meted with the all the relevant rules, thereupon, the writ petitioner cannot make any contention before this Court that the extant available vacant accommodation be allotted to him.”

Hig h C o urt of H.P on 24 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACOPC No. 721.Decided on : 24 th April 2021.Dr. Rattan Singh...Petitioner. VersusSh. Suneel Sharma & another ....Respondents. Coram:The Hon’ble Mr. Justice Sureshwar Thakur Judge.Whether approved for reporting 1 For the Petitioner:Mr. Parkash Sharma Advocate.For the Respondents: Mr. Surender Verma Advocate. Sureshwar Thakur Judgewhichwas recently vacated by Prof Laxman Singh Thakur. Inthis context it was also fond that the said residentialaccommodation i.e. Set No.22 needs to be renovated inorder to make it habitable as per report of the ExecutiveEngineerDivn. II dated 11.08.2020.After detailed discussion the Committeeunanimously decided that the matter of the petitioner Dr.Rattan Singhl will be duly considered as per rules in orderof his seniority amongst the other eligible applicants asand when the next meeting of the Committee will be heldfor which the petitioner Dr. Rattan Singh is required toapply through proper procedure on the proforma forchange of accommodation.”3.A conjoint perusal of the afore consideration order and resultant thereto proceedings drawn by the House…2… Hig h C o urt of H.P on 24 04 HCHP Allotment Committee the relevant portion whereof standsextracted hereinabove clearly personify that the residentialaccommodation as now available with the House AllotmentCommittee for allotment to the applicants concerned is underrenovation. Necessarily the afore consideration order did notmake any peremptory direction(s) upon the respondents toensure allotment of the available vacant accommodation if any vis a vis the applicant and also it did not cast any obligation upon the respondents to dehors the relevant rules makeallotment of the afore accommodation to the petitioner ratherwhen the allotment of the residential accommodation to thepetitioner was subject to compliance being meted with the allthe relevant rules thereupon the writ petitioner cannot makeany contention before this Court that the extant available vacantaccommodation be allotted to him. Consequently there is nomerit in the extant contempt petition and it is dismissedaccordingly. However the respondents are directed to ensurethat after completion of the renovation of the extanty available…3… Hig h C o urt of H.P on 24 04 HCHP vacant residential accommodation and also as and when otherthan the afore residential accommodation(s) becomes availablefor allotment to the allottees concerned they shall bearing mindthe seniority of the applicant petitioner herein and henceconsider the petitioner s claim for allotment in accordance withthe relevant rules. All pending applications also stand disposedof. …4…

When already an appeal was pending to be decided the court abstained from venturing into the matter: High Court of Uttarakhand.

Since there was already an appeal pending, it abstained from venturing into that prospective and the legal implications of the Recovery Citation, because the appeal was a pending consideration, which will have implications on the Recovery Citation, and hence would be one of the factors which have to be considered by the Appellate Authority. A single Judge bench comprising Hon’ble Justice Sharad Kumar Sharma in the matter of Amit Goyal Vs. State of Uttarakhand & others (Writ Petition (M/S) No. 1583 of 2021), dealt with an issue where the petitioner had earlier approached the High Court by filing a writ petition being “Amit Goyal Vs. State of Uttarakhand & others”, as against the order of, canceling his license for running the liquor shop situated at Kashipur Road, District Udham Singh Nagar, which was awarded to him in accordance with the Policy of the 22.02.2020. In the present case, such writ was dismissed stating it was premature and simultaneously observing that as against the order of the cancellation of the license. It was stated that the petitioner had a remedy of preferring an appeal, under Section 11 of the Excise Act. The petitioner had also preferred a writ petition, seeking a refund of the minimum monthly guarantee duty for the period of ten days, which was pending before this court. The present petition was to seek relief in the nature of certiorari quashing the impugned recovery citation passed by respondent no. 6. Also, to seek a direction against respondents to stay the proceeding of recovery citation passed by respondent no.6. Moreover, to get a direction from the court the respondent no.3/Excise Commissioner to decide the application filed by the petitioner under Section 11 of the U.P. Excise Act, 1910, for seeking relaxation of the condition regarding deposit of the twenty-five percent of the outstanding amount, as expeditiously as possible within time bound period as this court would find fit. The court observed that since there was already an appeal pending, it abstained from venturing into that prospective and the legal implications of the Recovery Citation, because the appeal was a pending consideration, which will have implications on the Recovery Citation, and hence would be one of the factors which have to be considered by the Appellate Authority. Thereby the wit petition was disposed of. However, the excise commissioner was directed to deal with the pending matter expeditiously within a month from the day. Click Here For The Judgement

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ PetitionNo. 15821 Amit Goyal .......Petitioner State of Uttarakhand & others …..Respondents Mr. Shubham Chhabra Advocate for the petitioner. Mr. Ajay Singh Bisht Additional CSC for the State of Uttarakhand. Hon’ble Sharad Kumar Sharma JThe petitioner has earlier approached the High Court by filing a writ petition being WPMS No.11420 “Amit Goyal Vs. State of Uttarakhand & others” as against the order of 13.07.2021 cancelling his licence for running the liquor shop situated at Kashipur Road Near Galla Mandi Rudrapur District Udham Singh Nagar which was awarded to him in accordance with the Policy of the The aforesaid writ petition was dismissed by the Coordinate Bench of this Court holding it to be premature and simultaneously observing that as against the order of the cancellation of the licence the petitioner had a remedy of preferring an appeal under Section 11 of the Excise Act. In accordance with the pleadings which has been raised in paragraph No.20 of the writ petition the petitioner has preferred a writ petition being WPMS No.1284 of 2021 seeking refund of the minimum monthly guarantee duty for the period of ten days as referred therein which is pending consideration before this Court. During the intervening period on account of the non remittance of the minimum monthly guarantee amount the licence of the petitioner was cancelled by an order of 01.07.2021 against which the petitioner has already preferred an appeal under Section 11 of the 2 U.P. Excise Act 1910 and the same is pending consideration before the Appellate Authority i.e. the Excise Commissioner. The present writ petition has been preferred with the following relief: “(i) Issue a writ order or direction in the nature of certiorari quashing the impugned recovery citation dated 06.01.2021 passed by the respondent No.6. ii) Issue a writ or order in the nature of mandamus directing the respondents to stay the proceeding of recovery citation passed by the respondent no.6. iii) Issue a writ or order in the nature of mandamus directing the respondent no.3 Excise Commissioner to decide the application filed by the petitioner under Section 11 of the U.P. Excise Act 1910 for seeking relaxation of the condition regarding deposit of the twenty five percent of the outstanding amount as expeditiously as possible within time bound period as this Hon’ble court deem fit and proper.” In fact the principal cause of action which has been derived by the petitioner for the purposes to file the writ petition is on the pretext that the recovery citation has been issued by the respondent No.6 for the recovery of the amount of Rupees Eighty Two Lakh Only. Subsequently as a consequence of the cancellation of his licence the recovery citation dated 06.01.2021 has been issued. Against which the petitioner has already preferred an appeal under Section 11 of the Act which is pending consideration along with his application seeking a waiver to comply with the mandatory conditions of deposit of 25% of the demanded amount as provided under the proviso of Section 11 of the Act of the depositing of 25% of the amount. Apparently in pursuance to the allotment made of the liquor shop as referred above this is 3rd phase of litigation by way of the present writ petition. Since there happens to be a prior pending appeal which is pending consideration and what implications will it have on the Recovery Citation dated 06.01.2021 would be one of the factors which has to be considered by the Appellate Authority. Hence this Court at this stage is not venturing into that prospective and the legal implications of the Recovery Citation dated 06.01.2021. However this writ petition would stand disposed of exclusively confined on the limited ground that the petitioner’s application for waiver to deposit the mandatory deposit of 25% under the proviso to Section 11 of the U.P. Excise Act 1910 it would be considered by the Excise Commissioner as expeditiously as possible but not later than one month from today and would take an appropriate decision on the same exclusively in accordance with law. 12.08.2021 NR

Whoever kidnaps any person and threatens to cause death or hurt to such person shall be punishable with death or imprisonment for life: High Court Of New Delhi

The petitioner challenges the order dated 18th September 2021 passed by the learned ASJ directing framing of charge for offences punishable under Section 364A IPC against the petitioner and the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MR. JUSTICE MUKTA GUPTA, in the matter PRIYANSHU KUMAR Vs STATE [CRL.REV.P. 329/2021] dealt with an issue mentioned above. Learned counsel for the petitioner states that the petitioner was in a very good relationship with the victim family and usually took the child to play with him. The demand for money, even as per the Whatsapp chat does not relate to the victim and even in the alleged demands, the petitioner CRL.REV.P.329/2021 repeatedly stated that he will send the child. Also, they mentioned, there was no apprehension of death or hurt to the child, therefore the ingredients of Section 364A IPC are not made out and hence, no charge for an offence punishable under Section 364A IPC could be framed. The above-noted FIR was registered on the complaint of the mother of the victim child Karthik Kaushik aged 7 months. She stated that they had a tenant, namely, Suresh Kumar on the second floor, who was residing with his son Priyanshu Kumar, daughter Bhawana, elder son Ravish and the wife of the elder son, namely, Pooja. On 9 th April 2021 at around 10.50 AM, Priyanshu Kumar came to their floor and asked the complainant about the minor child Karthik, to which she stated that he was sleeping. Priyanshu Kumar again came back at 11.00 AM. By that time also the minor child was sleeping, so he went and came again at noon, and also they told that the complainant asked for the number of Priyanshu and then made a phone call. However, the petitioner did not pick up the phone. She messaged him and he still did not reply. Thereafter she received messages for the demand of money from the petitioner. She called up her husband whose phone was with her CRL.REV.P.329/2021 Page 3 of 5 brothers-in-law and told him that Priyanshu Kumar has taken Karthik and was demanding money. Thus, the FIR in question was lodged. Meanwhile the statement of the complainant, the prosecution has also relied upon the messages between the complainant and the petitioner, wherein he is repeatedly demanding ₹40 lakhs in his HDFC account and has thereafter also stated that whatever they have, they should send and only thereafter, he will send the child. He clarified that he had no enmity with the child but he will send him only after the money was received. The conversation between the petitioner and the complainants on the Whatsapp chat not only shows how hurt was caused to the baby child but is also sufficient to create an apprehension in the mind of the complainants concerning the safety of the child, even though the CRL.REV.P.329/2021 petitioner also stated that he would do nothing to the child but he was frustrated with his life and He further stated that he should not be given the threat of the police because he was a software engineer too. Learned counsel for the petitioner contends that since there was no hurt caused to the child nor any apprehension of hurt, necessary ingredients of Section 364A IPC are not satisfied. This contention of learned counsel for the petitioner deserves to be rejected. The child was kept as ‘kidnapped’ CRL.REV.P.329/2021 till the ransom demand was met. As the child was in a bad condition crying, the child being 7 months old who could not have stayed without the mother, it is evident that bodily pain. The court perused the facts and argument’s presented, it believed that- “Hence, this Court finds no error in the impugned order passed by the learned Additional Sessions Judge framing a charge under Section 364A IPC against the petitioner later Petition was dismissed”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 12th October 2021 Represented by: Mr.M.P.Sinha Advocate Represented by: Mr. Amit Gupta APP for State with SI Anil Kumar P.S.Ranhola HON BLE MS. JUSTICE MUKTA GUPTA JUDGMENT : (ORAL The hearing has been conducted through Physical Mode CRL.M.A. 16535 2021 (Exemption Exemption allowed subject to just exceptions Application is disposed of By this petition the petitioner challenges the order dated 18th September 2021 passed by the learned ASJ directing framing of charge for offences punishable under Section 364A IPC against the petitioner Learned counsel for the petitioner states that the petitioner was in very good relationship with the victim family and usually took the child to play with him. The demand of money even as per the Whatsapp chat does not relate to the victim and even in the alleged demands repeatedly stated that he will send the child. Thus the amount demanded cannot be treated as a ransom and further there was no apprehension of death or hurt to the child therefore the ingredients of Section 364A IPC are not made out and hence no charge for offence punishable under Section 364A IPC could be framed The above noted FIR was registered on the complaint of mother of the victim child Karthik Kaushik aged 7 months. She stated that they had a tenant namely Suresh Kumar on the second floor who was residing with his son Priyanshu Kumar daughter Bhawana elder son Ravish and the wife of the elder son namely Pooja. Priyanshu used to come to their first floor everyday to play with the child and used to take him to the second floor and also on the terrace. So their relations became quite friendly. On 9th April 2021 at around 10.50 AM Priyanshu Kumar came to their floor and asked the complainant about the minor child Karthik to which she stated that he was sleeping. Priyanshu Kumar again came back at 11.00 AM. By that time also the minor child was sleeping so he went and came again at 12.00 noon He stated that since it was his holiday as and when Karthik gets up he would play with him. When Karthik got up Priyanshu Kumar took him to his floor and the complainant went to take bath. After some time sister came running asking for Karthik on which the complainant stated that Karthik was with Priyanshu Kumar. The sister looked for Priyanshu and Karthik but did not find. The complainant asked for the number of Priyanshu and then made a phone call. However the petitioner did not pick up the phone. She messaged him and he still did not reply. Thereafter she received messages for demand of money from the petitioner. She called up her husband whose phone was with her brother in law and told him that Priyanshu Kumar has taken Karthik and was demanding money. Thus the FIR in question was lodged Besides the statement of the complainant prosecution has also relied upon the messages between the complainant and the petitioner wherein he is repeatedly demanding ₹40 lakhs in his HDFC account and has thereafter also stated that whatever they have they should send and only thereafter he will send the child. He clarified that he had no enmity with the child but he will send him only after the money was received. It was stated that “Meri isse koi dushmani ni bas paise chahiye merko aap no doge to mLik ko. BHen dunga” In his chats the petitioner also stated that whether they take loan or whatever he needed money. He further stated that they must save the money he will not come but will send the boy in a taxi. He further stated “So don’t delay please the child is in trouble”. According to him the complainant’s husband should either take the loan or from his father or his brother but he needed money. He further stated “Kitna wait bolo” “Itna rora ye” “Kuch ho gya to” “Multiple lakhs chahiye” “10 se km ni to kl hi dekh payoge isko” “I am engineer you know mint”. On the complainant’s husband saying they need some time the petitioner asked how much time and stated “Mujhe kyun pareshan krre ho rora bhut fekne ka mannhora”. From the chat it is clear that on the complainant s husband stating that he did not have the complete money at that time and he should do nothing to the child the appellant stated that as the child was crying he wished to throw child The conversation between the petitioner and the complainants on the Whatsapp chat not only shows the manner in which hurt was caused to the baby child but is also sufficient to create an apprehension in the mind of the complainants with regard to the safety of the child even though the petitioner also stated that he would do nothing to the child but he was frustrated from his life. He further stated that he should not be given the threat of the police because he was a software engineer they would never be able to track him Section 364A IPC reads as under: Kidnapping for ransom: Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or causes hurt or death to such person in order to compel the Government or any other person to do or abstain from doing any act or to pay a ransom shall be punishable with death or imprisonment for life and shall also be liable to fine Thus the three main ingredients for an offence punishable under Section 364A IPC are kidnapping demand of ransom and threat to cause death or hurt to such person kidnapped or by conduct give rise to a reasonable apprehension that such person may be put to death or hurt Further hurt has been defined under Section 319 IPC. It states that whoever causes bodily pain disease or infirmity to any person is said to cause hurt. Undoubtedly when a baby child is kept in confinement and is crying it is a condition adverse to the normal condition causing bodily pain to the child and thereby fulfilling the ingredients of the offence of hurt as defined under Section 319 IPC Learned counsel for the petitioner contends that since there was no hurt caused to the child nor any apprehension of hurt necessary ingredients of Section 364A IPC are not satisfied. This contention of learned counsel for the petitioner deserves to be rejected. The child was kept as ‘kidnapped’ till the ransom demand was met. Even with the contradictory versions of the petitioner stating that he did not want to harm the child he also stated that he wished to throw the child as he was crying. As the child was in a bad condition crying the child being 7 months old who could not have stayed without the mother it is evident that bodily pain i.e. hurt was caused to the child. Further from the messages from the petitioner including the message to throw the child there was a clear apprehension in the mind of the parents that death or hurt could be caused to the child 10. Hence this Court finds no error in the impugned order passed by the learned Additional Sessions Judge framing a charge under Section 364A IPC against the petitioner Petition is dismissed 12. Order be uploaded on the website of this Court OCTOBER 12 2021 Page

Amicable settlement between the parties can be a relevant factor for reducing the quantum of sentence: Supreme Court of India

If the parties mutually decide and consensually agree to the settlement between them, then the court can consider reducing the quantum of the sentence given to the accused. The decision was taken in the case of Murali vs. State Rep. by the Inspector of Police [Criminal appeal no. 24 of 2021] citing the above-stated reasons by the bench of Hon’ble Justice N.V Ramana, Justice Surya Kant, and Justice Aniruddha Bose. In the instant case, the appellant was accused was convicted u/s 324 and 341 of the Indian Penal Code with a sentence of three months’ rigorous imprisonment, and the other accused was convicted under Sections 307 and 341 of IPC and was sentenced to 5 years of rigorous imprisonment and the High Court had upheld this decision given by the Trial Court. When the matter reached the Supreme Court, during the pendency of the appeal, the parties decided to enter into an amicable settlement. And therefore, parties requested the Court to reduce their sentences as they had already agreed to a settlement between themselves. Supreme Court observed that the offenses cannot be compounded since Section 320 of the Criminal Procedure Code does not encapsulate Section 324 and 307 IPC under its list of compoundable offenses. But for getting a solution, SC referred to the previous judgments passed in the cases with similar circumstances and therefore, the bench of Supreme Court noted that in the cases of Ram Pujan vs. State of UP [(1973) 2 SCC 456] and Ishwar Singh vs. State of MP [(2008) 15 SCC 667], the earlier bench had taken the decision of reducing the sentence of the convicts even in the serious non-compoundable offenses. SC bench also considered the reduction of sentences for the convicts because parties to the dispute had mutually buried their hatchet and at the time of the incident both accused too were no older than 20­-22 years and none of them had any criminal antecedents, no previous enmity and in present, they are married and have children. SC observed that both the accused have already served a significant portion of their sentences. Therefore, in context with the previously passed judgments, the SC bench decided to reduce the sentence of the convicts because they had made an amicable settlement. SC stated that “Notwithstanding thereto, it appears to us that the fact of amicable settlement can be a relevant factor for the purpose of reduction in the quantum of sentence.” “Given this position of law and the peculiar circumstances arising out of subsequent events we are of the considered opinion that it is a fit case to take a sympathetic view and reconsider the quantum of sentences awarded to the appellants.”

These connected appeals have been preferred against the judgment dated 01.11.2018 of the High Court of Madras which upheld Murali’s 341 of the Indian Penal Code 1860 with a sentence of three Page | 1 months’ rigorous imprisonment and Rajavelu’s and Krishnan Sathiyajothi) came to the aid of his friend Senthil and opposed both Kumar and Krishnan. Thereafter at about 2:30PM on 09.08.2005 the Muthu Kumar and Krishnancornered the led to registration of Crime No. 531 of 2005 under Sections 147 148 341 352 323 324 307 and 34 of the IPC. unimpeachable and stellar the Assistant Sessions Judge ­cum­ Chief Judicial Magistrate Cuddalore vide his judgment dated 28.01.2012 held Murali guilty of wrongfully restraining the victim and voluntarily causing Page | 2 hurt with a dangerous weapon. Based upon the medical evidence and that the second­appellant had a clear intention to murder the have been caused to his neck and he would have died instantaneously Consequently a concurrent sentence of three months’ rigorous imprisonment under Section 324 IPC and one­month rigorous the victim and no weapon or injury had been attributed to them by the The convict­appellants challenged the afore­stated judgment before two forums both of which unanimously upheld their conviction. The an order dated 20.08.2013 and their criminal revision petition before the Unsatisfied still the appellants have approached this Court seeking special leave to appeal against the High Court’s dismissal of their conviction. However through an application filed on 22.11.2019 they have sought to implead the injured­victim and get their offences compounded Page | 3 based on mutual resolution and peaceful settlement between the parties This Court nevertheless issued limited notice only on the quantum of unable to mount an effective challenge founded upon a question of law their learned Counsels given the subsequent events and change in circumstances have very fairly restricted their prayer qua reduction of A perusal of the applications for impleadment and compounding an amicable settlement. The appellants have admitted their fault taken the victim. In turn the victim has benevolently acknowledged the apology There can be no doubt that Section 320 of the Criminal Procedure 320(9) CrPC which explicitly prohibits any compounding except as Page | 4 10. Notwithstanding thereto it appears to us that the fact of amicable settlement can be a relevant factor for the purpose of reduction in the decided to forget their past and live amicably this Court in Ram Pujan v “6. The only question with which we are concerned as mentioned earlier is about the sentence. In this respect we find that an application for compromise on behalf of the injured prosecution witnesses and the that the appellants and the injured persons who belong to one family had thereupon referred the matter to the trial court for verification of the bail and are stated to have already undergone a sentence of rigorous belong to one family have settled their dispute it is in our opinion not Page | 5 opinion meet the ends of justice if the sentence of imprisonment awarded to the appellants is reduced to the period already undergone provided each of the appellants pays a fine of Rs 1500 in 326 read with Section 34 of the of the Penal Code 1860. Out of the fine if realised Rs 2000 should be paid to Ram Sewak and Rs 2000 to Ram 11. The afore­cited view has been consistently followed by this Court including in Ishwar Singh v. State of MP 15 SCC 667] laying SC 36 this Court while taking into account the fact of compromise SCC 681 : 1991 SCC 159 : AIR 1988 SC 2111] such offence was compounding of an offence not compoundable under the Code however limited submission of the learned counsel for the Page | 6 sentence the factum of compromise between the parties is indeed a 15. In the instant case the incident took place before more than fifteen also relatives. The appellant was about 20 years of age at the time of Court he was enlarged on bail but after the decision of the High Court he the totality of facts and circumstances in our opinion the ends of justice In later decisions including in Ram Lal v. State of J&K 2 SCC 213] Bankat v. State of Maharashtra 1 SCC 343] Mohar Singh v. State of Rajasthan11 SCC 226] Nanda Gopalan v State of Kerala11 SCC 137] Shankar v. State of Maharashtra parties to reduce the sentence of the convicts even in serious non­ to the appellants. We say so because: first the parties to the dispute have Page | 7 of the settlement being as a result of any coercion or inducement 14. Second at the time of the incident the victim was a college student have grown up and have mended their ways. Indeed in the present case 15. Third the appellants have no other criminal antecedents no previous 16. Finally both appellants have served a significant portion of their sentences. Murali has undergone more than half of his sentence and Page | 8 17. Considering all these unique factors including the compromise sentence imposed on the appellants. The appeals are therefore partly bonds if any are discharged. Any pending applications are disposed of Page | 9

Following of procedure and complying with safeguards must be strictly adhered to: Bombay High Court

Mandate of law is required to be strictly complied in view of the grave consequences which are likely to be followed on proof of illicit article under the Act. A bench of Revati Mohete Dere J; while adjudicating the matter in Gurmeet Singh v. State of Maharashtra; [CRIMINAL APPEAL NO.351 OF 2015], dealt with the issue of following the procedure of Section 42(1) of NDPS Act. An individual was accused on the ground that he is engaging in the sale of drugs. Thereafter, the officers of the Narcotic Control Bureau (‘NCB’), organised a raid and maintained surveillance at the spot. It appears that shortly thereafter, a vehicle was parked in front of the ICICI Prudential Bank Building. After some time, a middle-aged person of wheatish complexion arrived near the said vehicle carrying a white polythene bag. It is alleged that after a brief talk with the driver of the said car, the said person sat on the rear seat of the car. Immediately, thereafter, the officers of NCB encircled the car and asked the occupants to come out of the car. The officers introduced themselves and asked the persons in the car their names. The officers disclosed the information so received to both the appellants. On enquiry, the appellant allegedly disclosed that a total of 40 packets of Hashish were concealed in the gas cylinder and in the cavity made in the rear seat and rear door panels. Accordingly, the officers of the NCB took the car to the NCB office for conducting inspection. Thereafter, a detailed search and examination of the car was undertaken and the said examination resulted in recovery of 40 packets of 1 kg Hashish from the cavity of the said car. All the packets were opened. They tested positive for Hashish when examined by the field-testing kit. Thereafter, samples were taken and necessary formalities with respect to sealing were completed. Charge was framed as against the appellants, to which they pleaded not guilty and claimed to be tried. The question for consideration was whether it was legally valid that no officer had applied for any search warrant or authorisation nor reasons recorded for not obtaining the said authorisation/search warrant as mandated by the proviso to sub-section (1) of Section 42 of the NDPS Act.

on 31 05 2021 on 22 03 1 18 apeal.351.2015w.apeal.426.2015(J).docnsc.IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.351 OF 2015 Gurmeet Singh s o Harjinder SinghAge 28 years Indian National R o.: House No.540 Sector II Nanak Nagar Jammu(At present lodged at Nashik Central...Appellant Prison Nashik Road.)Org. Accd. No.1 Versus1.Davinder Singh Intelligence Officer Narcotic Control Bureau Exchange Building Ballard Pier Mumbai.(NCB BZU CR 04 2010)2.State of Maharashtra ...Respondents WITHCRIMINAL APPEAL NO. 426 OF 2015Pyarelal Shridhar Keer @ PahalwanAge 54 years Indian National R o.: Room No.7 Shiv Ram Sadan Veer Savarkar Marg Prabhadevi Mumbai 400 025.20(b)(ii)(c) r w 29 ofthe Narcotic Drugs and Psychotropic Substances Act 1985 to sufferrigorous imprisonment for 15 years and to pay fine of Rs.1 lakheach in default of payment of fine to undergo rigorousimprisonment for 1 year on 31 05 2021 on 22 03 3 18 apeal.351.2015w.apeal.426.2015(J).doc for the offence punishable under Sections 28 r w 8(c) and 29 of theNarcotic Drugs and Psychotropic Substances Act 1985 to sufferrigorous imprisonment for 15 years and to pay fine of Rs.1 lakheach in default of payment of fine to undergo rigorousimprisonment for 1 year. Both the aforesaid sentences were directed to run concurrently andsentence in default of fine was directed to run consecutively.2.A few facts as are necessary to decide the aforesaid appeals are as under: On 8th May 2010 specific information was received by PW 1 Sanjay Kumar Sinha Intelligence Officer that ‘one Gurmeet Singh aged24 years resident of Jammu is to deliver a substantial quantity of Hashish aNarcotic Drug under the Narcotic Drugs and Psychotropic Substances Act 1985to a person by the name Pyarelal Shridhar Keer @Pahalwan aged 50 years a resident of Room No.7 Shiv Ram Sadan VeerSavarkar Marg Prabhadevi Mumbai and that Gurmeet Singh would becoming in a white Maruti Car in front of ICICI Prudential Bank Building atVeer Savarkar Marg Prabhadevi Mumbai at around 11:00 p.m.’ On receipt of the said informationPW 1 Sanjay Kumar Sinha forwarded the same at around 7:00 p.m. to PW 6 Claudius Fernandes as well as to the Zonal Director Yashodhan Wanage. on 31 05 2021 on 22 03 4 18 apeal.351.2015w.apeal.426.2015(J).docAccordingly the Zonal Director gave permission to PW 2 Davinder Singhto proceed with the raid.Thereafter the officers of the Narcotic Control Bureau(‘NCB’) organised a raid and maintained surveillance at the spot alongwithtwo independent panch witnesses from 10:30 p.m. onwards. It appears thatshortly thereafter a vehicle mentioned in the informationarrived near the said vehiclecarrying a white polythene bag. It is alleged that after a brief talk with thedriverof the said car the said person(Gurmeet Singh) sat on the rear seat of the car. Immediately thereafter theofficers of NCB encircled the car and asked the occupants to come out ofthe car. The officers introduced themselves and asked the persons in the cartheir names. The said persons gave their names as Gurmeet Singh andPyarelal Shridhar Keer @ Pahalwan.The officers disclosed the information so received to both theappellants. On enquiry the appellant Gurmeet Singh allegedly disclosedthat a total of 40 packets of Hashish were concealed in the gas cylinder andin the cavity made in the rear seat and rear door panels. Accordingly theofficers of the NCB took the car to the NCB office at Ballard Pier Fort on 31 05 2021 on 22 03 5 18 apeal.351.2015w.apeal.426.2015(J).docMumbai for conducting inspection. Thereafter a detailed search andexamination of the car was undertaken and the said examination resulted inrecovery of 40 packets of 1 kg Hashish from the cavity of the said car. Allthe packets were opened. They tested positive for Hashish when examinedby the field testing kit. Thereafter samples were taken and necessaryformalities with respect to sealing were completed. The bulk as well as thesamples were deposited in the godown on 9th May 2010 at 10:45 a.m.Thereafter the statements of the appellants were recorded under Section 67of the NDPS Act and the appellants were placed under arrest on 9th May2010 in the evening. After completion of investigation a complaint wasfiled in the Special Court and the same was numbered as NDPS SpecialCase No.1410. Charge was framed as against the appellants to which theypleaded not guilty and claimed to be tried. The prosecution in support of his case examined 10 witnesses.PW 1 Sanjay Kumar Sinha Intelligence Officer who received the secretinformationPW 2 Davinder Singh Intelligence Officer who conducted the investigation prepared the panchanama and filed acomplaint as against the appellants PW 3 Kiran Prakash Sable Intelligence Officer who recorded the statements of appellant PyarelalShridhar Keer @ Pahalwan and arrested him. The said officer also on 31 05 2021 on 22 03 6 18 apeal.351.2015w.apeal.426.2015(J).docdeposited the samples with the DYCC PW 4 B. S. Bisht AssistantChemical Examiner DYCC PW 5 Babu Lal Yadav Intelligence Officer who recorded the statements of appellant Gurmeet Singh and arrested thesaid appellant PW 6 Claudius Fernandes Superintendent NCB whoreceived a copy of the informationPW 7 BalkrishnaNarayan More panch to the seizure of contraband PW 8 MohammedShafi Ahmed Khan Intelligence Officer who participated in the seizurepanchanama and house search of the appellant Pyarelal Shridhar Keer @Pahalwan PW 9 Prakash P.A. Antony Intelligence Officer whoparticipated in the seizure of the contraband and who took photographs ofthe seized contraband and PW 10 Shriram Gajanan Dole IntelligenceOfficer who recorded the statement of the appellant Pyarelal’s wife. Afterthe prosecution closed its evidence the learned Judge recorded thestatements of the appellants under Section 313 of the Criminal ProcedureCode. The defence of the appellants was that of denial and falseimplication. Each of the appellants examined one defence witness each ontheir behalf. DW 1 Yogesh Bhoite Administration Manager of ICICIPrudential Life Insurance Company and DW 2 Vikram Jain a moneylender.The learned Special Judge after considering the evidence on on 31 05 2021 on 22 03 7 18 apeal.351.2015w.apeal.426.2015(J).docrecord was pleased to convict and sentence the appellants as aforesaid inparagraph 1 of this Judgment.3.Several grounds were raised by both the appellants whilstimpugning the judgment and order passed by the learned NDPS SpecialJudge City Civil and Sessions Court Greater Bombay. Learned Counselfor the appellant Gurmeet Singh also submitted written submissions. 4.However having heard the first submission advanced by thelearned counsel for the appellants essentially on non compliance of theproviso to sub sectionof Section 42 of the NDPS Act and having beingsatisfied that there is non compliance of the same it is not necessary toconsider or delve into the other submissions grounds. Learned Counsel forthe appellants relied on several judgments in support of the said submissionto show that the trial of the appellants had vitiated on the ground of non compliance of the proviso to sub sectionof Section 42 of the NDPSAct thus entitling their acquittal from the said case. Learned Counselrelied on Mazzanti Esposto Gian Carlo v State of Goa1 Sukhdev Singh vState of Haryana2 State of Rajasthan v Jagraj Singh Alias Hansa3 1 1996(3) Bom.C.R. 185 2(2013) 2 SCC 2123 11 SCC 687 on 31 05 2021 on 22 03 8 18 apeal.351.2015w.apeal.426.2015(J).docState Of Punjab v Balbir Singh4 and State of Orissa v Laxman Jena5 insupport of the said submission.5.Learned Special Public Prosecutor for the respondent No.1 although supported the impugned judgment and order of conviction andsentence was unable to show that there was compliance of the proviso tosub sectionof Section 42 of the NDPS Act having regard to the law laiddown by the Apex Court in this regard.6.Perused the evidence both oral and documentary with theassistance of the learned counsel for the parties. As noted above it is notnecessary to consider or go into the other submissions canvassed by thelearned counsel for the appellants inasmuch as the aforesaid appeals oughtto succeed only on the ground of non compliance of the mandate of theproviso to sub sectionof Section 42 of the NDPS Act.7.Section 42 of the NDPS Act deals with the Power of entry search seizure and arrest without warrant or authorisation. The relevantpart of Section 42 of which non compliance is alleged reads as under “42. Power of entry search seizure and arrest without4 3 SCC 299 5 JT 2002SC 1 on 31 05 2021 on 22 03 9 18 apeal.351.2015w.apeal.426.2015(J).docwarrant or authorisation. —(1) Any such officerof the departments ofcentral excise narcotics customs revenue intellegence or any otherdepartment of the Central Government including para military forcesor armed forces as is empowered in this behalf by general or specialorder by the Central Government or any such officerof the revenue drugs control excise police or any other department of a StateGovernment as is empowered in this behalf by general or specialorder of the State Government if he has reason to believe frompersons knowledge or information given by any person and takendown in writing that any narcotic drug or psychotropic substance orcontrolled substance in respect of which an offence punishable underthis Act has been committed or any document or other article whichmay furnish evidence of the commission of such offence or anyillegally acquired property or any document or other article whichmay furnish evidence of holding any illegally acquired propertywhich is liable for seizure or freezing or forfeiture under Chapter VAof this Act is kept or concealed in any building conveyance orenclosed place may between sunrise and sunset —(a) enter into and search any such building conveyance or placein case of resistance break open any door and remove anyobstacle to such entryseize such drug or substance and all materials used in themanufacture thereof and any other article and any animal orconveyance which he has reason to believe to be liable toconfiscation under this Act and any document or other article on 31 05 2021 on 22 03 10 18 apeal.351.2015w.apeal.426.2015(J).docwhich he has reason to believe may furnish evidence of thecommission of any offence punishable under this Act or furnishevidence of holding any illegally acquired property which isliable for seizure or freezing or forfeiture under Chapter VA ofthis Act and(d) detain and search and if he thinks proper arrest any personwhom he has reason to believe to have committed any offencepunishable under this Act: Provided that in respect of holder of a licence formanufacture of manufactured drugs or psychotropic substances orcontrolled substances granted under this Act or any rule or ordermade thereunder such power shall be exercised by an officer notbelow the rank of sub inspector: Provided further that if such officer has reason tobelieve that a search warrant or authorisation cannot beobtained without affording opportunity for the concealment ofevidence or facility for the escape of an offender he may enterand search such building conveyance or enclosed place at anytime between sunset and sunrise after recording the grounds ofhis belief.” (Emphasis supplied) As far as the second proviso to sub sectionof Section 42 ofthe NDPS Act is concerned it clearly stipulates that if an officer has reason on 31 05 2021 on 22 03 11 18 apeal.351.2015w.apeal.426.2015(J).docto believe that a search warrant or authorisation cannot be obtained withoutaffording opportunity for the concealment of evidence or facility for theescape of an offender he may enter and search such building conveyanceor enclosed place at any time between sunset and sunrise after recordingthe grounds of his belief. 8.In the present case PW 1 Sanjay Kumar Sinha receivedsecret informationto the effect that appellant GurmeetSingh was to deliver a substantial quantity of Hashish a Narcotic Drugunder the NDPS Act to appellant Pyarelal Shridhar Keer @ Pahalwan. Itwas also informed that appellant Gurmeet Singh would be coming in awhite Maruti Car in front of ICICI Prudential Bank Building at VeerSavarkar Marg Prabhadevi Mumbai at around 11:00 p.m. on 8th May 2010to give delivery of the said contraband. According to the prosecution thesaid information was received on 8th May 2010 at 7:00 p.m. The said secretinformation was reduced into writing by PW 1 Sanjay Kumar Sinha andforwarded to PW 6 Claudius Fernandes as well as to the Zonal Director Yashodhan Wanage who in turn authorised PW 2 Davinder Singh toconduct the raid. Accordingly the raid was conducted at 11:00 p.m. on 31 05 2021 on 22 03 12 18 apeal.351.2015w.apeal.426.2015(J).doc9.Admittedly the search and seizure of the contraband was aftersunset and before sunrise. Admittedly no authorisation was taken from anyofficer as mandated by the said proviso nor has the reason to believe beenrecorded as mandated to show why such authorisation or search warrantcould not be obtained. The evidence on record in particular the evidence ofPW 1 Sanjay Kumar Sinha clearly shows that he had prepared theinformationand that he was aware of the fact that the vehiclewas to be intercepted after sunset. Infact the secret information note itselfreflects that the car was to come at the spot at about 11:00 p.m. It is not theprosecution case that PW 1 Sanjay Kumar Sinha asked for any searchwarrant or authorisation. Infact PW 1 Sanjay Kumar Sinha in his cross examination has admitted that he was aware when he prepared theinformation notethat the said vehicle was to be interceptedafter sunset that search warrant was required for searching houses aftersunset and that he did not apply for any search warrant. He has alsoadmitted that he was aware that the person who wants to go and search thehouse after sunset has to obtain permission to search from a GazettedOfficer. He has also admitted that there were 2 Gazetted Officers at thattime in the office when the said information was received. He has alsoadmitted that he did not ask for authorisation nor did the Gazetted Officertell that such proforma was available with him. It is thus evident that on 31 05 2021 on 22 03 13 18 apeal.351.2015w.apeal.426.2015(J).docthough the Gazetted Officers were present in the office at the time whenPW 1 Sanjay Kumar Sinha received the information their authorisationfor conducting the search was not taken. Neither does the information note(Exhibit 31) record any reason to believe why such authorisation couldnot be taken as mandated. PW 1 Sanjay Kumar Sinha has clearlyadmitted that there were 2 Gazetted Officers who were present in the officewhen the information was received. In these circumstances no reason isforthcoming why the authorisation search warrant was not taken fromthem.10.PW 2 Davinder Singh the seizing officer has also admittedthat the vehicle was searched after sunset and before sunrise and that noGazetted Officer was present during the search of the said vehicle. He hasalso admitted that the proforma was available in the office for house searchand that neither he nor any officer applied for any search warrant orauthorisation though he was aware that the vehicle was to be interceptedand searched after sunset and before sunrise.11.Learned Special Public Prosecutor for the respondent No.1fairly conceded that although the raid was to be conducted after sunset andbefore sunrise no authorisation search warrant was taken from a Gazetted on 31 05 2021 on 22 03 14 18 apeal.351.2015w.apeal.426.2015(J).docOfficer to conduct the raid nor does the information note reflect the reasonfor not obtaining the said authorisation as contemplated under the provisoto sub sectionof Section 42 of the NDPS Act. Learned Special PublicProsecutor could not also from the record or evidence show that themandate of the proviso to sub sectionof Section 42 of the NDPS Actwas followed by the officer concerned. 12.From the aforesaid discussion it is clearly evident that noofficer had applied for any search warrant or authorisation nor reasonsrecorded for not obtaining the said authorisation search warrant asmandated by the proviso to sub sectionof Section 42 of the NDPS Act. 13.The Apex Court in the case of State of Orissa v LaxmanJenahas in paras 5 and 6 held as under: “5. There is no dispute that section 42 has two parts. The firstpart deals with the recording of the information and the secondwith the conduct of the search. Again first part of the section hastwo limbs first dealing with the recording of the informationreceived and the other relating to the belief of the officer basedupon his personal knowledge. Any information recorded in termsof sub sectionof section 42 is required to be sent to thesuperior officer of the person recording the information asmandated by sub sectionof section 42. Second part of thesection 42(1) deals with the power of the officer regarding entry search seizure and arrest without warrant of authorisation. Theauthorised officer has the power to enter into and search anybuilding conveyance or place and in case of resistance break on 31 05 2021 on 22 03 15 18 apeal.351.2015w.apeal.426.2015(J).docopen any door and remove any obstacle to such entry. He haspower to seize the drug or substance and all materials used in themanufacture thereof and any other article and any animal orconveyance which he has reason to believe to be liable toconfiscation under the Act and to detain and search if he thinksproper and arrest any person whom he has reason to believe tohave committed any offence punishable under chapter IV relatingto such drug or substance.6. However in exercising a power under the second part ofsection 42(1) the designated officer is under a legal obligation tocomply with the mandate of the proviso to sub sectionofthe Act.”The Apex Court in para 7 of the said judgment further held thatthe mandate of law as incorporated under the Act is required to be strictlycomplied in view of the grave consequences which are likely to be followedon proof of illicit article under the Act that the legislature had enacted andprovided certain safeguards in various provisions of the Act includingsections 42 and 50 in all cases which must be proved to have been strictlyfollowed and that the harsh provisions of the Act cast a duty upon theprosecution to strictly follow the procedure and comply with the safeguards. on 31 05 2021 on 22 03 16 18 apeal.351.2015w.apeal.426.2015(J).doc14.Infact the Apex Court in State Of Punjab v Balbir Singh(Supra) after referring to a large number of cases recorded its conclusionin para 25 as under: “25. The questions considered above arise frequently before thetrial courts. Therefore we find it necessary to set out our conclusionswhich are as follows : ... (2 B) . Under Section 42(1) the empowered officer if has aprior information given by any person that shouldnecessarily be taken down in writing. But if he has reasonto believe from personal knowledge that offences underChapter IV have been committed or materials which mayfurnish evidence of commission of such offences areconcealed in any building etc. he may carry out the arrestor search without a warrant between sunrise and sunsetand this provision does not mandate that he should recordhis reasons of belief. But under the proviso to Section 42(1)if such officer has to carry out such search between sunsetand sunrise he must record the grounds of his belief.To this extent these provisions are mandatory andcontravention of the same would affect the prosecution caseand vitiate the trial.(3) ….. …. …. . …. on 31 05 2021 on 22 03 17 18 apeal.351.2015w.apeal.426.2015(J).doc15.Similarly in the case of State of Rajasthan v JagrajSingh Alias Hansathe Apex Court held that non compliancewith Section 42(1) proviso and Section 42(2) had seriously prejudicedthe accused therein and that non compliance of the said provisions hadvitiated the trial and as such confirmed the acquittal of the accused.16.Having regard to the legal position as stated aforesaid andthe evidence on record in the present case it is clear that there is totalnon compliance of the proviso to sub sectionof Section 42 of theNDPS Act. The non compliance of the said provision vitiates the trialand as such both the appeals ought to succeed only on the aforesaidpremise.17.Accordingly the following order is passed:ORDERi)The Appeals are allowed ii)The Judgment and Order dated 30th December 2014 passedby learned NDPS Special Judge City Civil and Sessions Court GreaterBombay in NDPS Special Case No.1410 convicting and sentencingthe Appellants is quashed and set aside on 31 05 2021 on 22 03 18 18 apeal.351.2015w.apeal.426.2015(J).dociii)The appellants are acquitted of the offences with which theyare charged. The appellants are set at liberty forthwith if not required inany other case. Fine amounts if paid be refunded to the appellants. REVATI MOHITE DERE J.

Suspension shall be ordered to Government Servants if involved in any moral turpitude under Rule 10(1)(b) of CCS (CCA) Rules, 1965: Manipur High Court

A Government servant against whom a proceeding has been taken on a criminal charge but who is not actually detained in custody may be placed under suspension. Such an opinion was held by The Hon’ble High Court of Manipur before The Hon’ble Mr. Justice Mv Muralidaran in the matter of Dr. S. Indra Singh Vs. The State of Manipur and Anr [W.P.(C) No.699 of 2021].  The facts of the case were associated with the petitioner who filed a mandamus writ petition and directed the respondents to suspend seven employees of the Veterinary Department in compliance with Clause (b) of Rule 10(1) of the CCS (CCA) Rules, 1965. The counsel representing the petitioner stated that the petitioner lodged a complaint against seven officers of the Veterinary Department for attacking the petitioner, under Sections 330, 352, 506, 511 and 34 IPC. The counsel also submitted that the Investigation Officer filed an application to withdraw the final report which was earlier filed and permit him to seek further investigation in the matter. The Counsel also stated that the petitioner prayed to the respondents to take disciplinary actions against the seven employees, but the requests were not considered and were rejected. On the other hand, the counsel representing the state contended that no specific threat by the seven employees was referred by the petitioner.  The Hon’ble Court upon hearing all the submissions stated that the appropriate direction would be that the respondent authorities should consider the said request of the petitioner. Therefore, The Hon’ble Court pronounced that “In view of the above, without going into the merits and demerits of the case, this Court is inclined to pass the following orders: (a) The writ petition is disposed of, (b) The respondent authorities are directed to consider the representation of the petitioner dated 1.7.2021 within a period of eight weeks from the date of receipt of a copy of this order, after affording a reasonable opportunity to all concerned…”

P a g e | 1 IN THE HIGH COURT OF MANIPUR AT IMPHAL W.P.(C) No.6921 Dr. S. Indra Singh aged about 58 years old S oS. Gourachand Singh a resident of Haoreibi Mayai Leikai P.O. & P.S. Wangoi Imphal West District Manipur 795003 at present working as Deputy Director Director Sub Divisional Veterinary Hospital Jiribam. Petitioner VERSUS 1) The State of Manipur represented by the Chief Secretary Government of Manipur Old Secretariat South Block Babupara P.O. & P.S. Imphal Imphal District Imphal Manipur 795001. 2) The Commissioner Government of Manipur Old Secretariat South Block Babupara P.O. P.S. Imphal Imphal District Imphal Manipur 795001. Respondents. W.P.(C) No. 6921 P a g e | 2 B E F O R E HON’BLE MR. JUSTICE MV MURALIDARAN For the petitioner : Mr. N. Jotendro Sr.Advocate. For the respondents Mr. Th. Sukumar GA. Date of Hearing & Reserving Judgment Order Date of Judgment & Order 11.11.2021. JUDGMENT & ORDER This writ petition has been filed by the petitioner seeking a writ of mandamus directing the respondents to suspend seven employees of the Veterinary Department in compliance with Clause of Rule 10(1) of the CCS Rules 1965 since Criminal Case No.44 of 2021 is pending before the Chief Judicial Magistrate Imphal East against the said seven employees of the Veterinary Department coupled with a prayer to consider and dispose of the representation of the petitioner dated 2. Heard Mr. N. Jotendro the learned senior counsel for the petitioner and Mr. Th. Sukumar the learned Government Advocate for the respondent State. With the consent of both the Counsel the writ petition itself has been taken up for final hearing. W.P.(C) No. 6921 P a g e | 3 3. The learned senior counsel for the petitioner submitted that earlier the petitioner lodged a complaint before Porompat Police Station against seven officers of the Veterinary Department namely Dr.Haohijam Kunjo Singh Chabungban Nandakishore Chabungban Ashokumar Asem Nipamacha Singh Aheibam Kullachandra Singh Thounaojam Jadumani Singh and Khuraijam Suraj for attacking the petitioner and the case has been registered in FIR No.235(8) 2013 under Sections 330 352 506 511 and 34 IPC. After investigation the Officer in charge of Porompat Police Station filed a final report before the Learned Chief Judicial Magistrate Imphal East and the case was returned on the ground of insufficient evidence on 26.3.2018. 4. The learned senior counsel further submitted that since subsequently the investigation officer has collected fresh evidences he filed an application before the Learned Chief Judicial Magistrate praying to permit him to withdraw the final report which was earlier filed and sought further investigation in the matter. By the order dated 11.10.2018 the Learned Chief Judicial Magistrate granted permission to conduct further investigation of the FIR No.235(8)2013. However the same has been again closed vide a final report dated 24.7.2020. W.P.(C) No. 6921 P a g e | 4 5. The learned senior counsel next submitted that in protest with the final report filed by the investigating officer the petitioner has filed a criminal complaint under Section 190 Cr.P.C. against the said seven employees and same has been taken on file as CriminalCase No.421 which is now pending before the Learned Chief Judicial Magistrate Imphal East. 6. The learned senior counsel then submitted that on 1.7.2021 the petitioner also preferred a representation to the respondent authorities requesting them to take disciplinary action against the seven employees under Rule 10 of CCSRules during the pendency of the Criminal Case No.44 of 2021. However the same has not yet been considered and disposed of by the respondent authorities till date. 7. It is also the submission of the learned counsel for the petitioner that the petitioner is now serving as Deputy Director at the Sub Divisional Veterinary Hospital Jiribam and there is a threat to his life from the hands of the aforesaid seven employees and therefore he may be posted at DVO Imphal West. 8. On the other hand Mr. Th. Sukumar the learned Government Advocate for the State submitted that since there is no specific threat to the petitioner by the seven employees referred to W.P.(C) No. 6921 P a g e | 5 by the petitioner the case was closed based on the final report submitted by the police authorities. However the pendency of the Criminal Case No.44 of 2021 and the representation dated 01.7.2021 made to the respondent authorities to take disciplinary action under CCS Rules against the seven employees are not disputed by the learned counsel for the respondent State. 9. This Court considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record. 10. The grievance of the petitioner is that on 12.3.2013 at about 2.00 p.m. when he went to the office of the Joint Director Veterinary Imphal East seven employees namely Dr.Haohijam Kunjo Singh Chabungban Nandakishore Chabungban Ashokumar Asem Nipamacha Singh Aheibam Kullachandra Singh Thounaojam Jadumani Singh and Khuraijam Suraj Singh jointly assaulted him under a common object and also obtained his signature by using force. Immediately the petitioner lodged a complaint before the Porompat Police Station and the case was registered as FIR Case No.235(8)2013 and on an enquiry the said complaint was closed based on the final report submitted by the police authorities. Again based on the request of the investigation W.P.(C) No. 6921 P a g e | 6 agency the said case was revived however the same was again closed on 24.7.2020. Being aggrieved the petitioner preferred a CriminalCase No.421 before the Learned Chief Judicial Magistrate Imphal East and the same is now pending. The further grievance of the petitioner is that on 1.7.2021 he has submitted a representation to the Hon’ble Minister for Veterinary the Chief Secretary to the Government of Manipur and the Commissioner Veterinary requesting to take action against the aforesaid seven employees under CCS Rules 1965. However the said representation has not been considered by the concerned authorities till date. 11. Admittedly the complaint case filed by the petitioner being CriminalCase No.421 is pending before the Learned Chief Judicial Magistrate Imphal East and the petitioner has produced a copy of the cause list showing that the matter was last called and taken up on 29.09.2021. It also appears that pending criminal case on 19.4.2021 the Joint Director Veterinary) requested the DGP Manipur and the SP CID Imphal to intimate whether there is any threat to the life of the petitioner in order to review his transfer and posting order at Jiribam. Pursuant to the letter dated 19.4.2021 the SP CIDImphal submitted a report stating that there is no specific threat to the petitioner. In the W.P.(C) No. 6921 P a g e | 7 instant case the petitioner insists for suspension of the aforesaid seven employees. 12. It is true that a Government servant against whom a proceeding has been taken on a criminal charge but who is not actually detained in custody may be placed under suspension by an order of the competent authority under Rule 10(1)(b) of CCSRules 1965. If the charge is connected with the official position of the Government servant or involving any moral turpitude on his part suspension shall be ordered under the said Rule unless there are exceptional reasons for not adopting this course. 13. At this juncture the learned senior counsel for the petitioner submitted that the failure of the aforesaid seven employees to inform their superior officials qua the lodging of FIR their arrest by the police and release on bail bond subsequently and also pendency of the Criminal Complaint Case No.421 filed against them which is pending before the Learned Chief Judicial Magistrate Imphal East till date amount to suppression of material information to higher officials and the same will render them liable to disciplinary action and as such they can be proceeded against under Rule 10 of CCSRules 1965. W.P.(C) No. 6921 P a g e | 8 14. Admittedly the submission of the representation dated 01.7.2021 by the petitioner and receipt of the same are not disputed by the respondent authorities. Since the representation of the petitioner dated 01.7.2021 has not been considered by the respondent authorities till date it would be appropriate to direct the respondent authorities to consider the same and passed a reasoned order on it. Moreover it is not for the Court to direct the respondent authorities to take action one way or the other. It is the bounden duty of an employer to consider the virtuous conduct of its employees at workplace and ensure that the act of the employee is within the contours of the law governing such establishment. This Court by no stretch of imagination can direct any employer to proceed disciplinarily action against its employee. It is for the employer to decide such course of action based on the facts and circumstances of the given case based on the law. 15. In view of the above without going into the merits and demerits of the case this Court is inclined to pass the following The writ petition is disposed of. The respondent authorities are directed to consider the representation of the petitioner dated 1.7.2021 within a W.P.(C) No. 6921 P a g e | 9 period of eight weeks from the date of receipt of a copy of this order after affording a reasonable opportunity to all It is made clear that this Court has not delved into the merits of the case in the Criminal Case No.44 of 2021 filed by the petitioner which is stated to be pending before the Chief Judicial Magistrate Imphal East and it is for the Chief Judicial Magistrate Imphal East to decide the merits of the in accordance with uninfluenced by the observation if any made in this order. d) No costs. 16. Registry is directed to issue copy of this order to both the parties through their WhatsApp e mail. FR NFR Sushil W.P.(C) No. 6921

Emergency Parole cannot be granted to criminals accused of serious offences: Bombay High Court

Prisoner convicted of serious offences shall not be granted emergency parole, held, a division bench of Justice VM Deshpande and Justice Amit B Borkar, while adjudicating the matter in Asgar Kadar Sheikh v. Mohd. Yakub Abdul Majid Nagul; [CRIMINAL WRIT PETITION NO. 253/2021]. The petitioners are convicts for offences punishable under Sections 302, 304, 307, 324, 326, 435, 120B and 34 of the Indian Penal Code, Section 151 of the Railways Act and Section 4 of the Protection of Public Properties Act. The said case is popularly known as 1996 Bombay Blast case. After having undergone the actual imprisonment of 23 years by the petitioner no. 1 and 18 years by the petitioner no. 2, the petitioners filed an application before the respondent for their release on emergency parole as per the amended provisions of Rule 19(1)(C)(ii) of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959. The application has been rejected by the impugned order dated 30/06/2020 mainly on the ground that the petitioners having been convicted under the Special Acts are not entitled to the benefit of emergency parole. The petitioners have therefore filed the present petition challenging the order of rejection of emergency parole. The petitioners have made categorical statement which reads as under: – “It is submitted that, petitioners are eligible to be released on emergency parole for a period of 45 days as they have surrendered on due date on last two occasions and there is no other embargo on their release. Therefore, petitioners deserve to be released on emergency parole for a period of 45 days.” Shri M.N. Ali, Advocate for the petitioners placed reliance on unreported judgment of this Court in Criminal W. P. No. 488/2020 (Mohd. Faruque Mohd. Yusuf vs. State of Maharashtra & ors.) by which this court remanded back the case of the co-accused to the jail authorities for fresh consideration. It is submitted that the petitioner in the said case being the co-convict along with present petitioners, same order needs to be passed in the present petition.

on 28 06 2021 on 22 03 11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR.NAGPUR BENCH NAGPUR.CRIMINAL WRIT PETITION NO. 253 2021CRIMINAL WRIT PETITION NO. 253 20211]1]Asgar Kadar SheikhAsgar Kadar Sheikh Convict No. 6473Convict No. 64732]2]Mohd Yakub Abdul Majid NagulMohd Yakub Abdul Majid Nagul Convict No. C 8774 Convict No. C 8774 Both Presently at Central Prison Both Presently at Central Prison NagpurNagpur….…. PETITIONER(S)PETITIONER(S) VERSUS VERSUS Jail SuperintendentJail Superintendent Nagpur Central Jail NagpurNagpur Central Jail Nagpur…. …. RESPONDENTRESPONDENT Shri M.N. Ali Advocate for the petitioner(s)Shri M.N. Ali Advocate for the petitioner(s)Mrs. N.R. Tripathi APP for the respondentMrs. N.R. Tripathi APP for the respondent CORAM : V.M. DESHPANDE CORAM : V.M. DESHPANDE & A& A MIT B. BORKARMIT B. BORKAR J J JJ .. JUNE 19JUNE 19 2021 2021 JUDGMENTJUDGMENT ::1]Heard. 2]RULE. Rule made returnable forthwith. on 28 06 2021 on 22 03 22 3]This case illustrates an attempt on the part of the advocate forthe petitioners by making misleading statement which on the first blushappears to be innocuous but on deeper scrutiny reveals an attempt to twistfacts to get favourable relief for his clients. 4]The petitioners are convicts for offences punishable underSections 302 304 307 324 326 435 120B and 34 of the Indian PenalCode Section 151 of the Railways Act and Section 4 of the Protection ofPublic Properties Act. The said case is popularly known as 1996 BombayBlast case. After having undergone the actual imprisonment of 23 years bythe petitioner no. 1 and 18 years by the petitioner no. 2 the petitioners filedan application before the respondent for their release on emergency paroleas per the amended provisions of Rule 19(1)(C)(ii) of the MaharashtraPrisonsRules 1959. The application has beenrejected by the impugned order dated 30 06 2020 mainly on the groundthat the petitioners having been convicted under the Special Acts are notentitled to the benefit of emergency parole. 5]The petitioners have therefore filed the present petitionchallenging the order of rejection of emergency parole. The petitioners inpara no. 17 of the petition have made categorical statement which reads asunder : on 28 06 2021 on 22 03 33 “17. It is submitted that petitioners are eligible to be releasedon emergency parole for a period of 45 days as they havesurrendered on due date on last two occasions and there is noother embargo on their release. Therefore petitioners deserveto be released on emergency parole for a period of 45 days.” 6]It needs to be noted that the petitioners in para no. 3 of thepetition have made a statement that the petitioner no. 1 has been releasedon parole and on each occasion the petitioner no. 1 had surrendered on duedate without there being a single day’s delay and in para no. 6 of the petitionhave made a statement that the petitioner no. 2 had surrendered late by 11days. 7]This Court on 18 03 2021 issued notice to the respondent. Therespondent has filed affidavit in reply stating that insofar as the petitionerno. 1 is concerned while he was released on parole leave of 10 days on20 05 2011 he surrendered late by 1 day. It is stated that the petitionerno. 2 while he was released on parole leave of 30 days on 01 05 2010surrendered himself late by 11 days. It is further stated that as per theprovisions in Maharashtra Government Circular dated 08 05 2020 both thepetitioners are not entitled to emergency leave for Covid 19 pandemic. on 28 06 2021 on 22 03 44 8]Shri M.N. Ali Advocate for the petitioners placed reliance onunreported judgment of this Court in Criminal W. P. No. 488 2020by which this courtremanded back the case of the co accused to the jail authorities for freshconsideration. It is submitted that the petitioner in the said case being the co convict along with present petitioners same order needs to be passed in thepresent petition. 9]Relying on the statement made by learned advocate for thepetitioners and to save the judicial time in dictating the judgment in openCourt it was pronounced that the petition stands partly allowed and similarorder as passed in Criminal W.P. No. 488 2020 would be passed. 10]While dictating the judgment and on careful scrutiny of theannexures alongwith the averments in the petition it is revealed that boththe petitioners had surrendered late on earlier occasions. The petitioner no. 1surrendered late by 1 day and the petitioner no. 2 surrendered late by 11days. The Division Bench of this Court in the un reported judgment in thecase of Milind Ashok Patil & ors. vs. State of Maharashtra & Ors. in CriminalWrit Petition ASDB LD VC No. 65 2020 has clearly laid down that thoseconvicts who had surrendered late on earlier occasions are not entitled toemergency parole. Para no. 15 of the said judgment reads as under : on 28 06 2021 on 22 03 55 “15. Thus it is clear that the condition mentioned in theamended clause(ii) of convict returning back on time onlast 2 releases will be applicable only if the convict is releasedon 2 occasions either on furlough leave or parole leave or theirapplications are rejected on the ground that they are habitualoffenders or likely to abscond. In this behalf it is significant tonote that the difference between Clauseand(i) of the amendment which is applicable to convictedprisoners whose maximum punishment is 7 years or lessprovides that “application shall be favourably considered” whereas clause(ii) which is applicable to the prisonerswhose maximum sentence is above 7 years provides that“application shall be appropriately considered”. To ensure thatsuch convicts should not abscond the said amended provisionstipulates that once in every 30 days the convicted prisonersshall report to the concerned police station within whosejurisdiction they are residing. If the convicts are not released on2 occasions either on furlough or parole and or their previousapplications are not rejected either on the ground that they arehabitual offenders or likely to abscond then the Authorities canstill consider their applications for release on emergency parole.However we make it clear that if the convicts are released on 2occasions or on 1 occasion either on parole or furloughpreviously and they are late in surrendering then they are notentitled for the benefit of the emergency parole. It is furtherclarified that the Authorities can impose suitable stringentconditions on the convicts who were never released on parole orfurlough or released on 1 occasion and returned back within on 28 06 2021 on 22 03 66 time if they are otherwise entitled for the benefit of emergencyparole.” The Full Bench of this Court in the case of Pintu Uttam Sonalevs. State of Maharashtra reported in 2020Mh.L.J. 627 in para no. 19 hasobserved as under: “19. In our opinion the language of the proviso clearly sets outthat the provisions sub ruleof Rule 19(1)of the 1959 Rules would not apply to the prisoners convicted for various economicoffences or bank scams or offences under some Special Acts(other than IPC) and some of which are illustratively mentionedby using the word "like" when the proviso refers to the SpecialActs namely MCOC PMLA MPID NDPS UAPA etc. Thisillustrative reference is further qualified by use of the word "etc"which indicates that the reference to these Special Acts is notexhaustive. The proviso using the words "like" and "etc" is asignificant indication of the legislative intent. The intention andobject to insert the proviso appears to be quite clear that theprovisions of the emergency parole as introduced by sub rule(C) would not apply to the prisoners convicted of seriousoffences under the different Special Acts and who fall within thecategory as specified in sub rule C(ii).”11]We therefore placed the present matter on board for freshhearing after having noticed that the petitioners are not eligible for being on 28 06 2021 on 22 03 77 released on emergency parole in view of judgment in the case of MilindAshok Patiland Pintu Uttam SonaleIrish Law Reports at p. 313: “The advocate is a representative but not a delegate. He gives tohis client the benefit of his learning his talents and hisjudgment but all through he never forgets what he owes tohimself and to others. He will not knowingly misstate the law he will not wilfully misstate the facts though it be to gain thecase for his client. He will ever bear in mind that if he be anadvocate of an individual and retained and remunerated ofteninadequately for valuable services yet he has a prior andperpetual retainer on behalf of truth and justice and there is noCrown or other license which in any case or for any party orpurpose can discharge him from that primary and paramountretainer.” 16]This Court has time and again emphasized the need of citingjudgments which may be against the interest of client by rising to theoccasion as an officer of the Court. The case of Heena Nikhil Dharia vs.Kokilaben Kirtikumar Nayak reported in2 Bom CR 65 is one of suchcase where single judge of this Courtin his distinctive styleobserved as under: “35. Wholly unrelated to any preliminary issue or the questionof limitation or to any estate partition or administration action is the decision of AM Khanwilkar J.inChandrakant Govind Sutar v. MK AssociatesMh.L.J.1011] Counsel for the petitioner raised certain contentions on on 28 06 2021 on 22 03 1212 the maintainability of a civil revision application. Khanwilkar J.pronounced his judgement in open Court finding for thepetitioner. Immediately thereafter counsel for the petitionerbrought to the Court s notice that certain relevant decisions onmaintainability had not been placed. He requested that thejudgement be not signed and instead kept for re hearing on thequestion of maintainability. At that fresh hearing petitioner scounsel placed decisions that clinched the issue — against thepetitioner. The civil revision application was dismissed. Thecounsel in question was A.S. Oka now Mr. Justice Oka and thisis what Khanwilkar J. was moved to observe in the concludingparagraph of his judgement: 9. While parting I would like to make a special mentionregarding the fairness of Mr. Oka Advocate. He conducted thematter with a sense of detachment. In his own inimitable stylehe did the wonderful act of balancing of his duty to his clientand as an officer of the Court concerned in the administration ofjustice. He has fully discharged his overriding duty to the Courtto the standards of his profession and to the public by notwithholding authorities which go against his client. As LordDenning MR in Randel v. W.3 All E. R. 657 observed:“Counsel has time and again to choose between his duty to hisclient and his duty to the Court. This is a conflict often difficultto resolve and he should not be under pressure to decide itwrongly. Whereas when the Advocate puts his first duty to theCourt he has nothing to fear. But it is a mistake to suppose thatheis the mouthpiece of his client to say what hewants. The Code which obligates the Advocate to disregard the on 28 06 2021 on 22 03 1313 instructions of his client if they conflict with his duty to theCourt is not a code of law — it is a code of honour. If he breaksit he is offending against the rules of the profession and issubject to its discipline.” This view is quoted with approval by the Apex Court in Re. T.V.Choudhary 3 SCR 146 (E.S. Reddi v. Chief Secretary Government of AP).” 17]In view of aforesaid facts and circumstances the petitionershaving surrendered late and having been convicted under the Special Actsnamely the Railways Act and the Protection of Public Properties Act which inthe context of other offences alleged against the petitioners become seriousoffences are not eligible for being released on emergency parole. 18]We are therefore satisfied that there is no merit in the petitionand the same is dismissed. Rule is discharged.((JUDGE)JUDGE)((JUDGE)JUDGE)ANSARIANSARI