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Foul play in e-tender resulting is misappropriation of balance payment: Supreme Court of India | A Public Interest Litigation (PIL) is a petition that can be filed by any member of the public for any matter of public interest, for redress of public wrong or injury. A Writ Petition may be filed by an aggrieved person(s) to seek legal remedies for violation of fundamental rights. In context of Civil Appeal No. of 2021(Arising out of SLP (Civil) No.13683 of 2018) Multitask Solutions versus Zilla Parishad Washim & Ors. The judgment was passed by A.S.Bopanna.J. The appellant herein is assailing the order dated 24.02.2018 passed by the High Court of Judicature at Bombay, Nagpur Bench in Writ Petition No.4789 of 2014. Through the said order, the High Court has directed the State of Maharashtra and the Chief Executive Officer of Zilla Parishad, Washim to initiate steps to recover all amounts paid to the appellant herein. Further, direction is also issued to file appropriate police complaints in the matter. The writ petition in which the impugned order was passed is considered as a petition in public interest. The brief facts of the case are as follows: The Zilla Parishad Washim had issued an e-tender notice for purchase of E-learning kits, the notification inviting tender was finally published afresh on 13.07.2014 both on website as well as in local newspaper. The four tenderers participated in the tender process. The appellant was awarded the supply order dated 19.08.2014 for supplying e-learning kits to 22 Zilla Parishad schools as his financial bid was the lowest. The respondent herein claiming to be aggrieved by the tender process filed the writ petition before the Bombay High Court. But, the High Court order dated 06.04.2015 did not see any reason to entertain the writ petition because several disputed questions of fact arise for consideration and work order was already implemented. The High Court then gave the opinion that there was a prima-facie case to conduct inquiry into the handling of matter by the then CEO of Zilla Parishad, Mr. Ruchesh Jaivanshi. When the writ petition was listed before the court as well as then CEO Mr. Ruchesh Jaivanshi submitted his report, the High Court assumed the foul play and has abruptly arrived at the conclusion that the State Government and the CEO of Zilla Parishad, Washim are to proceed in the matter as per law and initiate steps to recover all amount paid to the appellant herein and further directed the filing of police complaints. A perusal of the inquiry report would indicate that it refers to three dimensions (i) It relates to the manner in which the funds have been utilised by the Zilla Parishad, Washim (ii) It refers to the tender process wherein the four tenderers had participated and the appellant being the lowest tenderer and (iii) The report refers to comparative statement of the purchase of E-learning kits by the various Zilla Parishads and the price at which it was procured. Observations have been made in the inquiry report indicating that the Zilla Parishad had not appropriately dealt with the funds which had been allotted for other purposes but had diverted the same for purchase of E-learning kits, that is an aspect for which the appellant cannot be faulted. The judgment framed is, “the statement contained in the inquiry report relating to the purchase made by the various Zilla Parishads, there is no clear finding in the report as towhether the payment of the price as quoted by the appellant isjustified or if it is exorbitant and whether over quoted amountis approved. Be that as it may, the supply of Elearning kits being of different types, the further details relating to the configuration; the features; the brand and such other technical details are necessary to compare the different sets of devices supplied which is not an exercise that can be done in a proceeding of the present nature, but it is left to the official respondents to look into that aspect. The appeal is accordingly allowed subject to the above observations. There shall be no order as to costs. Pending applications, if any, shall stand disposed of.” Click here for Judgement | The appellant herein is assailing the order dated said order the High Court has directed the State of Washim to initiate steps to recover all amounts paid to the appellant herein. Further direction is also issued to file Though the writ petition in which the impugned order whether an order of the present nature is justified in the instant case without reference to the contractual obligation The Zilla Parishad Washim had issued an etender on the website vide letter No.1 20142015 dated 13.06.2014 The tender was to be opened on 10.07.2014 at 17:00 hours tender was published afresh on 13.06.2014 both on the tender was scheduled on 19.08.2014 at 11:00 am. The four tenderers namely the appellant respondents 2 3 and 5 had was technically disqualified due to which the financial bid of the remaining three tenderers were opened. The appellant 19.08.2014 for supplying the Elearning Kits to 22 Zilla dated 06.04.2015 did not see reason to entertain the writ cognizance of the writ petition in public interest while continuing to retain the petitioner who was a business Court was of the opinion that there was a primafacie case to by Rs.90 000 to Rs.1 00 000 per unit. Certain other through the order dated 08.09.2014 directed the parties to maintain statusquo and the petitioner was directed to serve the respondents. Pursuant thereto the response was filed by the respondents to the writ petition and a consideration was had directed the respondent No.4 herein to secure details When the writ petition was listed before the Court on inquiry would be made and a report would be submitted Accordingly an inquiry report was submitted to which response was filed by the appellant herein in the form of an Jaivanshi CEO Zilla Parishad was placed on record. In that background the High Court had been informed that the and installation of kits which had been done. It was further the supplies made by the appellant to the schools under the herein also by same CEO. Since both these suppliers had participated in both the places the High Court has assumed State Government and the Chief Executive Officer of Zilla initiate steps to recover all amounts paid to the appellant appellant being successful in the tender process regarding are unrepresented. We have perused the appeal papers writ petition though ultimately considered as being in public Hence essentially what is to be taken note is that the writ such rival business establishment which had failed in the tender process. The contention was with regard to the difference in price of the kits supplied to Zilla Parishad Washim and to the schools in other Zilla Parishads. It is no doubt true that the High Court thereafter directed the respondent No.4 herein State of Maharashtra to place on record the affidavits indicating the details pertaining to such purchase of Elearning kits by the other Zilla Parishads and also the process adopted by the Zilla Parishad Washim. The State Government had accordingly made an inquiry on this was filed before the High Court. A perusal of the order impugned passed by the High Court does not indicate any other hand the High Court has abruptly proceeded to direct A perusal of the inquiry report would indicate that it the funds have been utilised by the Zilla Parishad Washim (ii participated and the appellant being the lowest tenderer and at which it was procured. Though certain observations have been made in the inquiry report indicating that the Zilla purchase of Elearning kits that is an aspect for which the submitted and ultimately the supplies were made. For Secretary of the School Management Committee as per condition No.5 to the supply order. The Headmaster of the school is also the Secretary of the School Management to the tender process since the work order was already in any event would have the right to proceed against the to the appellant. At this stage no such process has been conducted. As such the recovery of the amount ordered is premature. The lacuna noticed by the inquiry committee order the same could not be done in view of the statusquo upgrading of software as agreed under the contract and also the appellant cannot be allowed to enrich themselves to that extent and the proportionate amount will be deductible after following due process. However the entire payment for the Further with regard to the statement contained in the inquiry report relating to the purchase made by the various Zilla Parishads there is no clear finding in the report as to is approved. Be that as it may the supply of Elearning kits being of different types the further details relating to the configuration the features the brand and such other technical details are necessary to compare the different sets of devices supplied which is not an exercise that can be done in a proceeding of the present nature but it is left to the official In that circumstance the withdrawal of the payment without reference to all these aspects would not be justified regard to the upgradation of the software agreed under the contract the same be also completed. With regard to the any grievance liberty is reserved to avail the remedy in accordance with law before the appropriate forum. If the upgradation and training is undertaken and the appellant It is relevant to take note that Mr. Ruchesh Jaivanshi the then CEO of Zilla Parishad was before this Court in SLP No.13869 2018 assailing the same order dated 24.02.2018 This Court by order dated 09.05.2018 clarified that all proceedings referred in paragraph 12 of the impugned and the proceedings shall be taken up on their own merits being uninfluenced by any observations in the impugned as the appellant herein who was a party to the writ petition all In the light of the above the order dated 24.02.2018 The appeal is accordingly allowed subject to the above Pending applications if any shall stand disposed of Page 1 |
Long time in concluding trial, is no ground for leniency : Supreme Court | The Supreme Court while partly allowing the present appeal stated that just because long time has been taken by the trial court does not mean that leniency can be shown in punishment imposed. The appellant was acquitted under Section 498A of IPC. However, considering the present age of the appellant which is 80 years, the court reduced the period of imprisonment from one year to three months. The appeal was brought before a supreme court bench comprising Justice Mr. Shah and Justice B.V. Nagarathna in the matters between Meera v State By the Inspector of Police Thiruvotriyur Police Station Chennai, CRIMINAL APPEAL NO. 31 OF 2022 decided on January 11th, 2022. The appellant filed an appeal after being unsatisfied by the decision of High Court of Judicature at Madras dated 30.04.2019 passed in Criminal Appeal No. 748 of 2010.The appellant was booked under Section 498A of IPC for torturing her deceased daughter-in-law for jewels due to which immolated herself. It was submitted by the appellant that the deceased did not want her husband to move to Saudi Arabia which led to her quarrel with the husband and other members of the family and was the root cause of the suicide. The appellant’s counsel pleaded that her(appellant’s) act did not amount to harassment under Section 498A of IPC and alternatively pleaded a lenient view while imposing the sentence since she is 80 years old. The court observed that after going through the records of the trial court and the High court and the evidences submitted by PW1 & PW2 (mother & father of the deceased) it was stated that their daughter was constantly subjected to harassment for jewels. With regard to all the observations, the court said that the appellant is guilty under Section 498A. With regard to the pleading on leniency, the court stated that merely because long time has passed in concluding the trial and/or deciding the appeal by the High Court, is no ground not to impose the punishment and/or to impose the sentence already undergone. When an offence is committed by a woman to another woman, it becomes more serious. Since, the deceased was alone due to her husband being abroad, she needed support from her mother-in-law instead of harassment for jewels. The cruelty made her more vulnerable which led to her suicide. Therefore, the court rejected leniency in this matter. However, keeping the age of the appellant in consideration, the court proposed to reduce the sentence to three months R.I. from one year. The appeal was partly allowed and the appellants bail bond was cancelled, and she was charged under Section 498A IPC. Click here to view the judgement | IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 31 OF 2022 ...Appellant(s State By the Inspector of Police Thiruvotriyur Police Station Chennai ...Respondent(s JUDGMENT M.R. SHAH J Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Judicature at Madras dated 30.04.2019 passed in Criminal Appeal No. 748 of 2010 by which the High Court has dismissed the said appeal so far as the appellant original accused No.2 is concerned upholding the judgment and order passed by the Trial Court convicting her for the offence under Section 498A of the Indian Penal Code the original accused No.2 mother in law of the deceased has preferred the present appeal. As per the case of the prosecution a complaint was lodged by PW 1 Ramathilagam mother of the victim therein alleging that all the accused her son in law his mother her daughter and father in law were harassing the deceased and she was subjected to torture cruelty for want of jewels. It was alleged that due to which her daughter had immolated herself. She was taken to the hospital however she succumbed to the injuries. All the accused were charged for the offences under Sections 498A and 306 IPC. After investigation the Investigating Officer filed the charge sheet against accused Nos. 1 to 4 for the offences under Sections 498A and 306 of IPC. 2.1 The case was committed to the Court of Sessions which was numbered as Sessions Case No. 2008. The Trial Court framed the charge against the accused for the aforesaid offences. The accused pleaded not guilty and therefore they claimed to be tried by the Trial Court for the aforesaid offences. 2.2 To bring home the charges against the accused the prosecution examined in all 16 witnesses. The prosecution also brought on record documentary evidence through the aforesaid witnesses. After completion of the evidences on the side of the prosecution the statements of the accused under Section 313 Cr.P.C. were recorded The accused pleaded total denial and stated that they had been falsely implicated in the case. The Trial Court on appreciation of evidence acquitted accused No. 4 however it convicted accused Nos. 1 to 3 for the offences punishable under Sections 498A and 306 IPC. The Trial Court sentenced the accused to undergo one year R.I. with a fine of Rs.1 000 for the offence under Section 498A IPC and three years R.I with a fine of Rs.2 000 for the offence under Section 306 IPC. The Trial Court also imposed default sentence in case of failure to pay the fine. 2.3 Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence imposed by the Trial Court accused No. 1 husband of the deceased accused No. 2 mother in law of the victim and accused No. 3 sister in law of the victim preferred the appeal before the High Court. By impugned judgment and order the High Court has partly allowed the said appeal and has acquitted all the accused for the offence under Section 306 IPC. By the impugned judgment and order the High Court has also set aside the conviction in respect of accused Nos. 1 and 3 for the offence under Section 498A IPC. However the High Court has maintained the conviction and sentence in respect of accused No. 2 for the offence under Section 498A IPC. 2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court dismissing the appeal of accused No.2 and confirming the judgment and order passed by the Trial Court convicting her for the offence under Section 498A IPC the original accused No.2 mother in law of the victim has preferred the present appeal. 3. We have heard Shri S. Nagamuthu learned Senior Advocate appearing on behalf of the appellant original accused No.2. Though served nobody has appeared on behalf of the respondent State Shri Nagamuthu learned Senior Advocate appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case both the Trial Court as well as the High Court have erred in holding the appellant guilty for the offence under Section 498A of the IPC. It is submitted that considering the fact that the injuries sustained by the deceased were deep and to the extent of 96% she would not have been in a position to make any statement. It is submitted that the Hon’ble High Court when disbelieved the evidence of PW 1 to PW 3 while acquitting the other accused the same yardstick ought to have been applied in the case of the appellant also. It is submitted that in fact the deceased did not want her husband A1 to go back to Saudi Arabia and for that she quarreled with her husband and other family members which was the root cause of dispute quarrel which led to her committing suicide. It is submitted that the domestic quarrel on account of the insistence of the deceased that her husband accused No. 1 should not go back to Saudi Arabia would not amount to harassment in terms of Section 498A IPC. In the alternative it is prayed by Shri Nagamuthu learned Senior Advocate appearing on behalf of the appellant mother in law of the victim that the appellant is an old lady who is now 80 years old and therefore if this Court is not inclined to interfere with the conviction in that case a lenient view may be taken while imposing the sentence. 5. We have heard Shri Nagamuthu learned Senior Advocate appearing for the appellant at length. 6. We have also gone through and considered the judgment and order of conviction passed by the Trial Court as well as the impugned judgment and order passed by the High Court holding the appellant accused No. 2 mother in law guilty for the offence under Section 498A IPC. We have also gone through the depositions of relevant witnesses namely PW 1 to PW 3. Having gone through the material on record and the findings recorded by the Trial Court we are of the opinion that it has been established and proved that the deceased was subjected to torture cruelty by the appellant mother in law with regard to jewels PW 1 mother of the victim in her evidence has clearly stated that her daughter was frequently subjected to harassment by her mother in law for not adorning jewels. Similar is the deposition of PW 2 father of the victim. Both the aforesaid witnesses were subjected to cross examination. However after detailed cross examination they have stood by what they have stated. Therefore both of them and even PW 3 have fully supported the case of the prosecution. There are concurrent findings of facts recorded by both the Courts below on the harassment and or torture and or cruelty by the appellant accused No. 2 with regard to jewels. The findings recorded by both the Courts below are on appreciation of evidence therefore we are of the opinion that the appellant has been rightly held guilty for the offence under Section 498A IPC. Now in so far as the alternative submission made on behalf of the accused to take a lenient view looking to the age of the appellant is concerned it is required to be noted that as such the Trial Court has imposed the sentence of one year R.I. for the offence under Section 498A. However the punishment could have been upto three years R.I At the time when the incident occurred the appellant was approximately between 60 65 years. The incident is of the year 2006. Therefore merely because long time has passed in concluding the trial and or deciding the appeal by the High Court is no ground not to impose the punishment and or to impose the sentence already undergone. It is to be noted that the appellant mother in law is held to be guilty for the offence under Section 498A of IPC. Being a lady the appellant who was the mother in law ought to have been more sensitive vis à vis her daughter in law. When an offence has been committed by a woman by meting out cruelty to another woman i.e. the daughter in law it becomes a more serious offence. If a lady i.e. the mother in law herein does not protect another lady the other lady i.e. daughter in law would become vulnerable. In the present case even the husband of the victim was staying abroad. The victim was staying all alone with her in laws Therefore it was the duty of the appellant being the mother in law and her family to take care of her daughter in law rather than harassing and or torturing and or meting out cruelty to her daughter in law regarding jewels or on other issues. Therefore as such no leniency is required to be shown to the appellant in this case. There must be some punishment for the reasons stated hereinabove. However considering the fact that the incident is of the year 2006 and at present the appellant is reported to be approximately 80 years old in the peculiar facts and circumstances of the case as a mitigating circumstance we propose to reduce the sentence from one year R.I. to three months R.I. with fine imposed by the Trial Court to be maintained In view of the above and for the reasons stated above the present appeal succeeds in part. The conviction of the appellant original accused No.2 mother in law is hereby confirmed maintained. However instead of one year R.I. for the offence under Section 498A IPC the appellant is directed to undergo imprisonment of three months R.I. with fine and the default sentence as imposed by the Trial Court. As the appellant is on bail her bail bond stands cancelled and the appellant shall now surrender before the appropriate Court jail authority to undergo the sentence as per the present order within a period of four weeks from today. The present appeal is partly allowed to the aforesaid extent. Pending applications if any also stand disposed. [M.R. SHAH NEW DELHI JANUARY 11 2022 ….J [B.V. NAGARATHNA |
The Petitioner caught in the act of concealing the controlled substances in his residence, the Petition for bail deserves to be and is accordingly disposed of: The High Court of Sikkim | The Petitioner was caught in the act of concealing the controlled substances in one room of his residence, where the Police reached and also considering that the quantity seized is a commercial quantity viz. 64 packets of Spasmodon capsules; another 13 packets of Spasmodon capsules and 26 packets of Nitrosun-10 tablets. In the Hon’ble High Court of Sikkim led through the single-bench by Justice Meenakshi Madan Rai in the matters of Durga Gupta @Golu v. State Of Sikkim[BAIL APPLN./11/2021] The facts of the case are the Applicant herein, aged about 38 years, was arrested under Sections 9 (1)(c) of the Sikkim Anti-Drugs Act, 2006 (SADA, 2006) and Sections 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act, 1985) read with Section 34 of the Indian Penal Code, 1860. Since then he has been in Judicial Custody. The Petitioners submitted that, the Petitioner has been falsely implicated in the instant matter by his elder brother, one Krishna Gupta, in connivance with the Police party conducting the search and seizure due to the acrimonious relations that he has with his elder brother. That, in fact, the premises that the Petitioner is residing in is the Fifth Floor of the seven storeyed building, whereas the controlled substances were recovered from the Sixth Floor of the building which is the residential premises of his elder brother and his family. That, neither the FIR nor the Seizure Memo reflect the seizure as having been made from his residential premises. That, the elder brother of the Petitioner runs a Medical Store and has a Licence for procuring medicines and therefore collected the controlled substances and with the assistance of the Police and one Yesar Arfat, implicated him falsely in the instant matter. That, the Petitioner was also threatened by the Police at the Sadar Police Station that he would be incarcerated for a long time on account of the various Complaints lodged by his elder brother before the Police Station. Besides, he has no criminal antecedents and being the only bread winner of his family, his incarceration would adversely affect his family. Learned Additional Public Prosecutor submits that the Petitioner has been taking advantage of his License to run a Medical Store and has been obtaining medicines that are not permitted by the Licence. That, the Petitioner is not only a consumer of the controlled substances but the investigation has led to the revelation that he is also a supplier and seller of such controlled substances. That, the Petitioner was caught in the act of concealing the controlled substances when the Police reached his residence for search and seizure, hence there is no doubt that the search and seizure were made from his residence, as against the submissions put forth by the Petitioners. Besides, the articles seized were in commercial quantity and hence the Petition for bail deserves to be rejected. The court concludes “In view of the facts and circumstances placed before me today and in consideration of the fact that at this juncture it has been pointed out that the Petitioner was caught in the act of concealing the controlled substances in one room of his residence, where the Police reached and also considering that the quantity seized is a commercial quantity viz. 64 packets of Spasmodon capsules (total 6400 capsules); another 13 packets of Spasmodon capsules (total 1300 capsules) and 26 packets of Nitrosun-10 tablets (total 2600 tablets), the Petition for bail deserves to be and is accordingly rejected and disposed of.” | HIGH COURT OF SIKKIM Record of Proceedings Virtual Court No.2 Bail Appln. No.121 DURGA GUPTA @ GOLU APPLICANT STATE OF SIKKIM RESPONDENT Date: 02.09.2021 For Applicant For Respondent 1. THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI A.C.J. Namgyal Mr. S.K. Chettri Additional Public Prosecutor. S.I. Naresh Chhetri I.O. of the O R D E RThe Applicant herein aged about 38 years was arrested by the Sadar Police Station on 26.06.2021 in connection with Sadar Police Station Case No.79 of 2021 of the same date under Sections 9 14 of the Sikkim Anti Drugs Act 2006 SADA 2006) and Sections 22(b) 27 of the Narcotic Drugs and Psychotropic Substances Act 1985 read with Section 34 of the Indian Penal Code 1860. Since then he has been in Judicial Custody. 2. Learned Counsel for the Petitioner submits that the Petitioner had filed two separate Bail Applications before the Court of the Learned Special Judge SADA 2006 East Sikkim at Gangtok being Crl. Misc. Case Bail No.74 of 2021 and the Court of the Learned Special Judge NDPS Act 1985 East Sikkim at Gangtok being Criminal Misc. Case (Bail) No.22 of 2021. Both the Applications were rejected vide Orders dated 06.08.2021 and Page | 1 HIGH COURT OF SIKKIM Record of Proceedings Virtual Court No.2 09.08.2021 respectively. That the Petitioner has been falsely implicated in the instant matter by his elder brother one Krishna Gupta in connivance with the Police party conducting the search and seizure due to the acrimonious relations that he has with his elder brother. That in fact the premises that the Petitioner is residing in is the Fifth Floor of the seven storeyed building whereas the controlled substances were recovered from the Sixth Floor of the building which is the residential premises of his elder brother and his family. That neither the FIR nor the Seizure Memo reflect the seizure as having been made from his residential premises. That the elder brother of the Petitioner runs a Medical Store and has a Licence for procuring medicines and therefore collected the controlled substances and with the assistance of the Police and one Yesar Arfat implicated him falsely in the instant matter. That the Petitioner was also threatened by the Police at the Sadar Police Station that he would be incarcerated for a long time on account of the various Complaints lodged by his elder brother before the Police Station. That his elder brother in fact shares acrimonious relations not only with him but also with his married elder sister. That Yesar Arfat whose name is reflected in the FIR and who informed the Police that he had procured the controlled substances from the Petitioner is the husband of an employee in the Medical Shop of his elder brother and hence there is every doubt that he has also connived with the elder brother of the Petitioner. That the Petitioner has recently been married and at the time of his arrest it was only eight days since his marriage. Besides he has no criminal Page | 2 HIGH COURT OF SIKKIM Record of Proceedings Virtual Court No.2 antecedents and being the only bread winner of his family his incarceration would adversely affect his family. That should the Petitioner be enlarged on bail he will not abscond nor tamper with the Prosecution Witnesses and he will appear before the Court on each and every date fixed for hearing. That he is also willing to abide by any terms and conditions imposed by this Court. 3. Repelling the arguments of Learned Counsel for the Petitioner Learned Additional Public Prosecutor submits that the Petitioner has been taking advantage of his License to run a Medical Store and has been obtaining medicines which are not permitted by the Licence. That the Petitioner is not only a consumer of the controlled substances but investigation has led to the revelation that he is also a supplier and seller of such controlled substances. That the Petitioner was caught in the act of concealing the controlled substances when the Police reached his residence for search and seizure hence there is no doubt that the search and seizure was made from his residence as against the submissions put forth by Learned Counsel for the Petitioner. Besides the articles seized were in commercial quantity and hence the Petition for bail deserves to 4. I have heard Learned Counsel for the parties at length and have duly perused all the documents furnished before be rejected. the Court. 5. In view of the facts and circumstances placed before me today and in consideration of the fact that at this juncture it has been pointed out that the Petitioner was caught in the act of Page | 3 HIGH COURT OF SIKKIM Record of Proceedings Virtual Court No.2 concealing the controlled substances in one room of his residence where the Police reached and also considering that the quantity seized is a commercial quantity viz. 64 packets of Spasmodon capsules another 13 packets of Spasmodon capsules and 26 packets of Nitrosun 10 tabletsthe Petition for bail deserves to be and is accordingly rejected and disposed of. 6. I hasten to add that the observations made hereinabove will have no consequences on the merits of the matter which shall be considered at the time of trial. The Learned Trial Court shall consider the evidence placed by the Prosecution at the time of trial and reach an independent finding unhindered by the observations made by this Court in this Order. 7. Copy of this Order be forwarded to the Learned Trial Court for information. Acting Chief Justice Page | 4 |
Filing an FIR while departmental proceedings are going on for the same issue constitutes parallel litigation: High Court of Jammu and Kashmir | Parallel litigation refers to a scenario where different courts are hearing the same claim. Parallel litigation is not permitted as it wastes time and money of the public over meaningless litigation. Filing an FIR against someone while they have departmental proceedings against him for the same issue would constitute parallel litigation. This was adjudged by a single-member bench of Justice Ali Mohammad Magrey of the High Court of Jammu and Kashmir in the case of Dara Singh v State of Jammu and Kashmir & Others [CRMC No. 36/2018] on 3rd June 2021. The petitioner, Dara Singh was working as a head constable in the Police Department and was posted with the Railway Department. The petitioner allegedly produced a fake No Objection Certificate before his department which enabled him to fraudulently obtain a car loan from Canara Bank, Budshah Chowk, Srinagar. The NOC produced by the petitioner was verified by the railway department and upon them understanding that it was not issued by the bank authorities, the petitioner was temporarily placed under suspension and departmental proceedings were initiated against him. He was reinstated back into service and additionally a First Information Report no. 58/2017 was filed under Sections 420 and 467 of the erstwhile Ranbir Penal Code for cheating and forgery. The petitioner requested the honourable High Court to quash the FIR against him on the grounds of parallel litigation since the departmental investigation against him was still going on. | Dara Singh Serial No. 307 After Notice List HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Through Virtual Mode} CRMC No.36 2018 Dated: 3rd of June 2021. … Petitioner(s) Through: Ms Asma Rashid Advocate. Through: Mr B. A. Dar Sr. AAG. State of JK & Ors. … Respondent(s) Hon’ble Mr Justice Ali Mohammad Magrey Judge. Through the medium of the instant Petition the Petitioner is seeking quashing of FIR bearing No. 58 2017 registered in Police Station Maisuma Srinagar under Sections 420 and 5467 of the erstwhile Ranbir Penal Codeinter alia on the grounds detailed out herein below: That the petitioner during the preliminary inquest proceedings informed the department that there is no such dispute existing at all between him and the Bank and even if there was any having regard to the fact that the Bank has accepted one time payment of loan liquidation towards car loan and has issued the NOC as such the petitioner was reinstated into service and is presently working in Railway Police. The FIR registered against the petitioner now after his retirement and liquidation of loan is liable to be quashed That the petitioner has not committed any offence and the allegation of production of fake fictitious NOC gets absolved once the Bank has issued the NOC. There is no dispute now on account of obtaining loan CRMC No.36 2018 from the Bank concerned and liquidating the loan advance. The Crime Branch has also clarified that since the petitioner has liquidated the loan in full and NOC has been issued in his favour by the Bank concerned and accordingly he is required to be exonerated. Since the matter is now settled there is no reason for re investigating the case by the local police i.e. Police Station Maisuma Srinagar. The police has unnecessarily registered the case to harass the petitioner. It is submitted that the Police Station Maisuma has without conducting preliminary enquiry registered the said FIR and without getting any information from the Bank concerned and also without going through the main case. As a matter of fact there is no compliant from the Bank surviving it is only on false and frivolous grounds that the said FIR has been registered against the petitioner that too without conducting an enquiry into the offence for registration of FIR u s 154 Cr. P. C. being the procedure established by law in this behalf. The communication referred to in the FIR on the basis of which Police Maisuma claims to have registered the FIR does not disclose cognizable offence as such there was no need to register instant FIR against the petitioner. As submitted above there is no such dispute between the principal party i.e. Canara Bank and the petitioner as the petitioner has liquidated the car loan advance in full and the Bank having accepted same has as such issued NOC. It is assumed for the sake of argument without admitting that there is any such kind of dispute and or the department is of the view that the petitioner has committed a misconduct for the same the petitioner is being proceeded against departmentally and the Police has no jurisdiction to step into it in any manner whatsoever. As such on this ground alone the FIR is liable to be quashed That the petitioner respectfully submits here that the object behind investigation by police is not only to collect evidence not possible for complainant or aggrieved party to lay hand upon but also to weed out matters at the very outset and send for trial only such cases where there is prima facie sufficient material to connect accused with alleged occurrence offence. In the instant case there is no material or trustworthy evidence collected in support of the claim by the police as such there was no question of registering the case against the petitioner. On this ground also the FIR warrants to be quashed That the complaint against petitioner admittedly was of civil nature the concerned party i.e. the Bank has deliberately not chosen to avail civil remedy if any available to it as in that eventuality the party had to pay a huge sum towards court fee to be affixed along with the suit. In any case the FIR registered against petitioner and proceedings initiated in it are liable to be quashed That it is settled that whether the information is genuine whether the information is credible and whether the information is false these are issues that have to be verified during the investigation of FIR at the stage of registration of FIR but the Police has not taken any interest in it before registering FIR. The Police has been interested only in pleasing the higher ups who as submitted above have already reinstated the petitioner into service and also posted him in Railway Police. It is only on wrong notion concept that the FIR has been registered otherwise under law the dispute if any does not disclose any CRMC No.36 2018 cognizable offence at all. On the basis of a simple communication the Police ought to have not registered the FIR against the petitioner who is a government employee and a respectable person in the society commanding high respect and reverence among masses in the locality. The registration of case FIR against the petitioner has got defamed him in the locality society where he hold high respect and regard and as such the FIR is liable to be quashed and That while perusing the FIR the complaint communication does not constitute any offence u s 420 & 467 RPC as the dispute if any disclosed is of civil nature and that the same stands settled. There is no material prima facie disclosing commission of offence cheating nor are the necessary ingredients of offence expressly alleged in the FIR. Moreover the allegations set out in the compliant do not constitute offence of which the police has taken cognizance therefore in that view of the matter it is a fit case in which the Hon’ble Court would be pleased to exercise its inherent powers to quash the said FIR in which the allegations do not disclose and or constitute the offence u s 420 & 467 RPC so as to not only prevent abuse of process of law but also to secure the ends of justice.” On notice having been issued the Respondents have filed their Objections in opposition to the maintainability of the instant Petition Paragraphs 1 to 3 whereof read as under: “1. It is submitted that during the course of investigation it transpired that Dara Singh S o Jodh Singh R o Mangham Tral who is working as Head Constable in Police Department and is presently posted with Railway Department has managed the certificate fraudulently and produced the same before his department were the said Dara Singh has obtained a car loan from Canara Bank Budshah Chowk Srinagar and after obtaining the loan the said Dara Singh was NPA towards the bank. The accused person fraudulently produced NOC before his department that he has finalized the car loan. The NOC produced by the accused was verified by the department which was not given by the bank authorities. However in this regard the departmental enquiry was conducted by the Railway Police and matter was forwarded to Sr. Superintendent of Police District Srinagar for registration of FIR. Accordingly a case FIR no. 58 2017 u s 420 467 RPC was registered by the P S Maisuma Srinagar and investigation was set into motion. During the course of investigation the statement of witnesses were recorded u s 161 Cr.P.C. and bank details alongwith some documents were seized and enquiry papers were also seized which are a part of investigation and offences u s 420 467 RPC were proved against the Head Constable Dara Singh and has produced anticipatory CRMC No.36 2018 bail which was ordered by 1st Additional Sessions Judge Srinagar and in the instant matter the statement of witnesses is yet to be recorded. 2. During the course of investigation the investigating officer received an order from the Hon’ble Court vide dated 05 02 2018 which reveals that “In the meantime further investigation in FIR No. 58 2017 u S 420 467 RPC of Maisuma registered against the petitioner shall 3. That in order to unearth the real facts and circumstances of the case the alleged accused person and witnesses were required to be interrogated but due to stay in the instant matter investigation agency could not proceed further into the matter.” Heard learned counsel for the parties perused the pleadings on record and considered the matter. The law is that in exercise of the wholesome powers vested in the High Court under Section 482 of the Criminal Procedure Code corresponding to Section 561 of the erstwhile J&K Criminal Procedure Code the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of law or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court’s inherent powers both in civil and criminal matters is designed to achieve a salutary public purpose which is that a proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case the veiled object behind a lame prosecution on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to the laws made by the Legislature. The CRMC No.36 2018 compelling necessity for making these observations is that without a proper realization of the object and the purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and the contours of that salient jurisdiction. In the law laid down by the Hon’ble Supreme Court in case titled ‘State of Haryana & Ors. V. Bhajan Lal & Ors: “1992 Supp.SCC 335” the Apex Court has elaborately considered the scope of Section 482 of the Criminal Procedure Codeand Section 5(2) of the Prevention of Corruption Act 1947. After noticing the earlier pronouncements on the subject the Supreme Court detailed with lace certain categories of cases by way of illustration where power under Section 482 of the Criminal Procedure Codecan be exercised to prevent the abuse of the process of the Court or secure the ends of justice. Paragraph No. 102 of the judgment provides seven categories of cases where the provisions of Section 482 of the Criminal Procedure Codecan be invoked and these are extracted below: “i) Where the allegations made in the first information report or the complaint even if they are taken at their face value and accepted in CRMC No.36 2018 their entirety do not prima facie constitute any offence or make out a case against the accused. ii) Where the allegations in the first information report and other materials if any accompanying the FIR 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. iii) 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. iv) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non cognizable offence no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. vi) Where there is an express legal bar engrafted in any of the provisions of the code or the concerned Act to the institution and continuance of the proceedings and or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party. vii) Where a criminal proceeding is manifestly attended with mala fide and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” In the case in hand from a bare perusal of the pleadings on record coupled with the appreciation of the law laid down above what comes to the fore is that the genesis for registration of the FIR in question as registered against the Petitioner who is an employee of the Police Department lies in the factum of car loan having been taken by the Petitioner from the Canara Bank. Thereafter the Petitioner is stated to have produced NOC with respect to liquidation of the aforesaid car loan before the CRMC No.36 2018 Department which was later on found to be not genuine. Accordingly the Petitioner is stated to have been placed under suspension and departmental proceedings initiated against the Petitioner. Subsequently the Petitioner stands reinstated in service while as the Departmental proceedings are going on against him with respect to the aforesaid aspect of production of NOC before the Department qua liquidation of car loan from the Canara Bank. When the departmental proceedings are going on against the Petitioner the registration of FIR would not only amount to initiating parallel proceedings against the Petitioner for the same offences but would if allowed to go unabated also result in violation of the process of law. Besides the registration of FIR in question was also not warranted due to the fact that the case has a civil lineage or flavor involving civil rights obligations of the parties qua liquidation of car loan. Furthermore in light of the mandate of law as laid down by the Hon’ble Supreme Court in the above reproduced judgment the FIR does not clearly disclose the commission of cognizable offence on the part of the Petitioner as would warrant its investigation. It is a simple case concerning the conduct of the Petitioner as a Government employee which is under investigation before the authorities concerned in the Department where the Petitioner is employed and thus the registration of FIR in such circumstances cannot sustain in the eyes of law. The cumulative effect of all that has been said and done above is that the Petition of the Petitioner is allowed and as a sequel thereto the FIR CRMC No.36 2018 bearing No. 58 of 2017 registered against the Petitioner at Police Station Maisuma Srinagar for the commission of offences punishable under Sections 420 and 467 of the erstwhile RPC as well as the proceedings if any emanating therefrom are quashed. June 3rd 2021 Disposed of along with connected CrlMs on the above terms. Judge Whether the Judgment is reportable Yes No. Yes No. Whether the Judgment is speaking |
For any agreement, the real intent of the parties is germane: High Court of Delhi. | In the event the written arbitration agreement is not signed by the parties, it is essential to ascertain if there is an intention on the part of the parties to settle their disputes through arbitration. A single Judge bench compromising Hon’ble Justice Sanjeev Narula, in the matter of Swastik Pipe Ltd. Vs. Shri Ram Autotech Pvt. Ltd. (ARB. P. 241/2021), dealt with an issue where the petitioner had filed a petition under Section 11(6) of the Arbitration and Conciliation Act, 1996, seeking the appointment of a sole arbitrator to adjudicate the disputes arising from the tax invoices issued by the Petitioner [hereinafter referred to as ‘SPL’] in the course of their dealings with the Respondent [hereinafter referred to as ‘SRAPL’]. In the present case, SRAPL had placed orders with SPL for the purchase of ‘C.R. Strips’. The same was supplied by SPL as per SRAPL’s request and specifications, on a running account basis. The said commercial dealings between the parties lasted between 1st April 2019 to 29th December 2020. While some payment was made, an amount of 15,63,217/- was outstanding on the part of SRAPL. Since such payment was outstanding, a legal notice was issued against SRAPL, for either payment of the outstanding amount or to agree to arbitration in accordance with the terms and conditions of the invoices which contained an arbitration clause. But neither SRAPL paid the outstanding amount nor did they send any reply to the legal notice. Thereby SPL approached the court with this petition seeking the appointment of a Sole Arbitrator. The petition was taken up and notice was issued on 15th February 2021, despite serving notice, none appeared for SRAPL. The matter was heard at length on 18th March but still, there was no representation from SRAPL’s side. Thereby the court proceeded to decide the petition ex-parte on the basis of submissions advanced by the Counsel of SPL. The counsel of SPL had contended that the goods accompanying the invoices had been duly received by SRAPL under a Goods Receipt, signed and acknowledged by the representative of SRAPL. Later it was found that the invoices containing the arbitration agreement were not signed by SRAPL. Therefore, a pertinent question arose as to whether the terms and conditions appearing on the invoices accompanying the delivery of goods would constitute a valid arbitration agreement between the parties. After referring to section 7 of the Arbitration and Conciliation Act, 1996, the court observed that- “Since the terms and conditions printed on an invoice are generally inserted unilaterally by the party issuing the invoice, the Court had called upon SPL to validate the mutual intention of the parties to settle the disputes through arbitration”. Further, the court held that-“Despite service of notice, SRAPL have chosen not to appear, for reasons best known to them” and hence the court allowed the petition and appointed the sole arbitrator to adjudicate the disputes arising between the petitioner and the respondent. | IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 18th March 2021 Pronounced on: 5th July 2021 ARB. P. 241 2021 SWASTIK PIPE LTD. Through: Mr. Sanjay Jain and Ms. Puja ..... Petitioner Chourasiya Advocate. SHRI RAM AUTOTECH PVT. LTD. Through: None. ..... Respondent HON’BLE MR. JUSTICE SANJEEV NARULA JUDGMENT SANJEEV NARULA J. The present petition under Section 11(6) of the Arbitration and Conciliation Act 1996 seeks appointment of a Sole Arbitrator to adjudicate the disputes arising from the tax invoices issued by the Petitioner Swastik Pipe Ltd. in the course of their dealings with the Respondent Shri Ram Autotech Pvt. Ltd.is outstanding against the goods which have been already been delivered to and received by SRAPL. Since the liability was not discharged a legal notice dated 31st December 2020 was issued by SPL calling upon SRAPL to make good the amount due or agree to arbitration in accordance with the terms and conditions of the invoices which contained an arbitration clause. The said notice was served on SRAPL at their Delhi office on 6th January 2021 and also at their Gurugram office on 14th January 2021 despite which SRAPL neither made the payment nor replied to the said notice. In these circumstances SPL has approached this Court seeking the appointment of a Sole Arbitrator by way of the present petition. The petition was taken up and notice was issued on 15th February 2021 which was returnable on 17th March 2021. On this date despite successful service of notice none appeared for SRAPL. The matter was heard at length on 18th March but again there was no representation from SRAPL’s side. Thus it can only be surmised that SRAPL has wilfully chosen not to appear before this Court. In these circumstances the Court has proceeded to decide the present petition ex parte on the basis of the pleadings and the submissions advanced by the counsel for SPL. ARB. P. 241 2021 Page 2 of 13 5. Mr. Sanjay Jain learned counsel for SPL argued that in view of the arbitration agreement between the parties the Court must proceed to appoint an Arbitrator. On a query raised by the Court relating to the existence of a valid arbitration agreement Mr. Jain contended that the clause contained in the invoice constitutes a valid arbitration agreement in view of the judgments of the Supreme Court in Trimex International FZE Ltd. Dubai v. Vedanta Aluminium Ltd. India 1 and M s. Caravel Shipping Services Pvt. Ltd. v. Premier Sea Food Exim Pvt. Ltd.2 Further Mr. Jain sought to differentiate the decision of a coordinate bench of this Court in Parmeet Singh Chatwal v. Ashwani Sahani.3 Additionally Mr. Jain also relied upon Section 7(4) of the Act and stressed that SRAPL has not denied the existence of the arbitration agreement notwithstanding the categorical assertion to that effect in the notice of invocation of arbitration and thus this Court should not have any hesitation in appointing an Arbitrator. ANALYSIS AND FINDINGS It is noticed that the arbitration clause is on the same page as the details of the invoice. It is in a readable font size under the heading “Remarks: Terms & Conditions” with two other conditions3 SCC 1 2 11 SCC 461 3 MANU DE 0442 2020 ARB. P. 241 2021 Page 3 of 13 and exclusively subject to Delhi jurisdiction. The language of arbitration proceedings shall be English.” SPL contends that the goods accompanying the invoices have been duly received by SRAPL under a Goods Receipt signed and acknowledged by the representative of SRAPL copies whereof are placed on record. Besides there are other documents such as e Way Bills evincing the supply and sale of goods. In view of the above the transaction between the parties and the resultant dispute arising on account of alleged non payment of outstanding sums is prima facie established. However concededly invoices containing the arbitration agreement are not signed by SRAPL. Therefore the pertinent question which arises for consideration is whether the terms and conditions appearing on the invoices accompanying a delivery of goods would constitute a valid arbitration agreement between the parties. Section 7 of the Act stipulates what constitutes a valid arbitration agreement. The said provision reads as under: “7. Arbitration agreement. — In this Part “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship whether contractual or not. 2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. 3) An arbitration agreement shall be in writing. 4) An arbitration agreement is in writing if it is contained in— a) a document signed by the parties b) an exchange of letters telex telegrams or other means of telecommunication which provide a record of the agreement or c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. ARB. P. 241 2021 Page 4 of 13 5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the 10. As can been seen Section 7(3) provides that the arbitration agreement shall be in writing which is undeniably a mandatory requirement. Section 7(4)(a) stipulates that an arbitration agreement shall be in writing if it is contained in a document signed by all the parties. However sub clausesand of Section 7(4) show that the legislative intent is also to include a written document not signed by the parties within the ambit of a valid arbitration agreement as Section 7(4)(b) provides that an arbitration agreement can be in the nature of exchange of communication which provides a record of the agreement in writing. Taking into consideration the language deployed in the aforesaid provision there can be no doubt that the signature of either party on the Arbitration Agreement is not mandatory. Moreover the provision noted above manifests that an arbitration agreement need not be in a particular form and a valid agreement can be constituted if it has all the necessary attributes. 11. For any agreement the real intent of the parties is germane. In the event the written arbitration agreement is not signed by the parties it is essential to ascertain if there is an intention on the part of the parties to settle their disputes through arbitration. Since the terms and conditions printed on an invoice are generally inserted unilaterally by the party issuing the invoice the Court had called upon SPL to validate the mutual intention of the parties to settle the disputes through arbitration. In fact this precise question of inference of arbitration agreement on the touchstone of true ARB. P. 241 2021 Page 5 of 13 the subject: intention of the parties or ‘consensus ad idem’ has engaged the Courts often. Let us briefly examine the legal position that emerges from the case laws on In Caravel Shipping a suit was filed in which a Bill of Lading was expressly stated to be a part of the cause of action. The Defendant filed an application under Section 8 of the Act relying upon the arbitration clause included in the printed terms annexed to the Bill of Lading. The court rejected the application holding that the arbitration clause being a printed condition showed no intention to arbitrate and there was nothing to show that the clause was brought to the notice of the other party. The same reasoning was also affirmed by the High Court. The Supreme Court however set aside the order of the High Court by holding that the respondent therein has expressly agreed to be bound by the arbitration clause despite the fact that it is a printed condition annexed to the Bill of Lading. The Bill of Lading itself was not in dispute and the Supreme Court specifically observed that since respondent had itself relied upon the Bill of Ladingas part of its cause of action in the suit it cannot blow hot and cold and contend that for the purpose of arbitration the arbitration clause should be signed. The Court also reiterated the legal position noted above that the only pre requisite to validity is that the arbitration agreement should be in writing but Section 7(4) could not be rigidly construed to imply that in all cases an arbitration agreement needs to be signed. In Trimex International the Supreme Court dealt with a petition under Section 11(6) of the Act wherein appointment of an ARB. P. 241 2021 Page 6 of 13 arbitrator was sought as per the arbitration agreement contained in a Commercial Offer and also in a formal agreement that was exchanged between the parties. The respondent therein contested the petition on the ground that there was no concluded contract and there was no ad idem of various essential features of transaction. The Supreme Court after examining voluminous communications including e mails placed on record forming part of the text of the judgment concluded that basic and essential terms had been accepted by the Respondent. The parties had arrived at a concluded contract and accordingly referred them to arbitration. In the said case the Court held that in the absence of a signed agreement between the parties the existence of the arbitration agreement can be inferred from various documents duly approved and signed by the parties in the form of exchange of e mails letters telex telegrams and other means of telecommunication. A Division Bench of this Court in Scholar Publishing House Pvt. Ltd v. Khanna Traders 4 while deciding an appeal against the order of a Single Judge deciding objections under Section 34 of the Act dealt with the question of whether the award rendered on a dispute referred to arbitration by the Respondent Claimant was legal and binding inasmuch as did the parties enter into an arbitration agreement. The arbitration clause was contained in the invoice. The Court relying upon the decision of Bombay High Court in Lewis W. Fernadez v. 4 2013Arb. LR 105No. 6243 2014 titled Scholar Publishing House Pvt. Ltd. v. M s Khanna Traders. ARB. P. 241 2021 Page 7 of 13 Jivatlal Partapshi 5 held that the conduct of the parties was the relevant and determinative test. It was noted that there is no strait jacket formula to say whether condition on invoices can amount to binding arbitration clauses. An arbitration agreement could be inferred through a series of correspondences or even on demur of one of the parties to an arbitration proceeding who can otherwise object to it on the ground of absence of agreement. In other words if such party does not urge the contention of non existence of an arbitration agreement in its reply to the claim then the arbitration agreement is deemed to exist. That said the Court must note that there are a few cases wherein on facts the arbitration clauses printed on the invoices have not been held as valid. In the specific facts of such cases the Court could not conclude that the parties were ad idem to render the arbitration clauses binding and enforceable. Taipack Ltd. v. Ram Kishor Nagar Mal 6 Alupro Building Systems Pvt. Ltd. v. Ozone Overseas Pvt. Ltd. 7 IMV India Pvt. Ltd. v. Stridewel International 8 and Kailash Nath Aggarwal v. Aaren 12. Under Section 7(4)(c) of the Act an arbitration agreement can also be inferred from the exchange of statement(s) of claim and defence in which 5 AIR 1947 Bom 65. 6 2007Arb. L.R. 402: MANU DE 8199 2007. 7 2017DRJ 412 : MANU DE 0495 2017 8 MANU DE 1620 2018. 9 2009 SCC Online Del 3691. ARB. P. 241 2021 Page 8 of 13 existence of the agreement is alleged by one party and not denied by the other. What constitutes as statement of claim and defence has been explained by the Supreme Court in the case of S. N. Prasad v. M s. Monnet Finance Ltd. & Ors.10 Therein the Court while deciding an appeal arising out of the order deciding objections under Section 34 of the Act was faced with a question as to whether a guarantor who is not a party to a Loan Agreement containing the arbitration agreement can be made a party to a reference to arbitration. While deciding this question the Court also examined the contention whether an arbitration agreement could be inferred from the exchange of statements of claim and defence as contemplated under Section 7(4)(c) of the Act. The Court delved into the meaning of the expression “statements of claim and defence” occurring in Section 7(4)(c) of the Act and held that it cannot be given a restrictive meaning. It would thus be apposite to note the views of the Supreme Court which read as under: But the words ‘statements of claim and defence’ occurring in section 7(4)(c) of the Act are not restricted to the statement of claim and defence filed before the arbitrator. If there is an assertion of existence of an arbitration agreement in any suit petition or application filed before any court and if there is no denial thereof in the defence counter written statement thereto filed by the other party to such suit petition or application then it can be said that there is an "exchange of statements of claim and defence" for the purposes of section 7(4)(c) of the Act. It follows that if in the application filed under section 11 of the Act the applicant asserts the existence of an arbitration agreement with each of the respondents and if the respondents do not deny the said assertion in their statement of defence the court can proceed on the basis that there is an arbitration agreement in writing between the parties. ” Emphasis Supplied)” 13. As held by the Supreme Court the existence of the arbitration agreement can also be inferred from the stand taken by the parties in the 10 AIR 2011 SC 442. ARB. P. 241 2021 Page 9 of 13 pleadings filed under the petition under Section 11 of the Act. In the instant case although there is no exchange of statements of claim and defence in the sense that there is no reply from SRAPL but the fact remains that the existence of the arbitration agreement specifically alleged by SPL with the narration of transaction has not been refuted by SRAPL. Pertinently the existence of the arbitration agreement between the parties has also been categorically asserted in the precursor to the present petition being the notice invoking arbitration which was duly served upon SRAPL at two of its addresses in terms of the tracking reports annexed with the petition but there was no response from SRAPL and thus the assertion stood not denied. 14. Besides the Court at this stage has to only form a prima facie view regarding the existence of the arbitration agreement in terms of Section 11 6A) of the Act. Detailed examination and final determination regarding the existence of the arbitration agreement is in the domain of the Arbitral Tribunal. The Supreme Court in the case of Vidya Drolia & Ors. v. Durga Trading Corporation 11 has observed that “the rule for the Court is ‘when in doubt do refer’”. Therein Justice Ramana in his concurring opinion has clarified the role of this Court in a Section 11 petition as follows: “75. Before we part the conclusions reached with respect to question no. 1 are: Sections 8 and 11 of the Act have the same ambit with respect to judicial b. Usually subject matter arbitrability cannot be decided at the stage of Sections 8 or 11 of the Act unless it’s a clear case of deadwood. The Court under Sections 8 and 11 has to refer a matter to arbitration or to appoint an arbitrator as the case may be unless a party has established a prima faciecase of nonexistence of valid arbitration agreement by summarily portraying a strong case that he is entitled to such a finding. The Court should refer a matter if the validity of the arbitration agreement 11 2 SCC 1. ARB. P. 241 2021 Page 10 of 13 cannot be determined on a prima facie basis as laid down above i.e. ‘when in doubt do refer’. The scope of the Court to examine the prima facie validity of an arbitration agreement includes only: a. Whether the arbitration agreement was in writing or b. Whether the arbitration agreement was contained in exchange of letters telecommunication etc. were fulfilled c. Whether the core contractual ingredients qua the arbitration agreement d. On rare occasions whether the subject matter of dispute is arbitrable ” It must also be noted that the commercial dealing between the parties is demonstrated from the documents placed before this Court by SPL. Copy of the ledger of SPL as placed on record exhibits that the parties have been transacting with each other for some time and some of the invoices raised by SPL have been paid by SRAPL during the same time period as well. Now if there is sufficient material on record to establish that the condition clause in the invoices were accepted and acted upon the parties would be ad idem and arbitration agreement could be safely inferred. However in the opinion of the Court this aspect has to be conclusively decided on the basis of evidence that the parties would lead as well as the surrounding facts and circumstances. However the same cannot be done at this stage having regard to the limited jurisdiction exercised by this Court under Section 11 of the Act. 16. As noted above SRAPL has elected to stay away from the present proceedings. Despite service of notice they have chosen not to appear for reasons best known to them. They have not filed a reply to deny the assertion both in response to the legal notice invoking arbitration as well as to the present petition. The consequence of such non appearance is that the assertion of existence of the arbitration agreement is unrebutted. Thus prima ARB. P. 241 2021 Page 11 of 13 facie it can be inferred that the arbitration agreement exists between the 17. Accordingly the present petition is allowed. Ms. Kanika Sinha Advocateis appointed as the Sole Arbitrator to adjudicate the disputes arising between the parties. 18. The parties are directed to appear before the learned Arbitrator as and when notified. This is subject to the learned Arbitrator making the necessary disclosure under Section 12(1) of the Act and not being ineligible under Section 12(5) of the Act. 19. The learned Arbitrator will be entitled to charge their fees in terms of the provisions of the Fourth Schedule appended to the Act. It is clarified that the Court has not examined any of the contentions of the parties on merit and both the parties shall be free to raise their claims counter claims before the learned Arbitrator in accordance with law. All rights and contentions of the parties are left open. SRAPL shall be free to raise all objections as are available under law including but not limited to the existence of the arbitration agreement before the learned Arbitrator. As and when such a plea is raised the learned Arbitrator would be competent to rule on their own jurisdiction and decide as to whether there exists an arbitration agreement or not uninfluenced by the observations made by this Court which are only prima facie in nature. ARB. P. 241 2021 Page 12 of 13 disposed of. JULY 5 2021 In view of the above the present petition is allowed and stands SANJEEV NARULA J ARB. P. 241 2021 Page 13 of 13 |
A bail granted cannot be canceled in a mechanical manner without there being any supervening circumstances unfavourable to a fair trial: High Court of Delhi | A bail granted cannot be canceled on a request from the side of the complainant or investigating agency unless and until it is established that the same is being misused and it is no longer conducive in the interest of justice to allow the accused any further to remain on bail. These were stated by Justice Rajnish Bhatnagar in the case Vishal Bhutani vs. State and Anr. [CRL.M.C. 1308/2021] on 06.01.2022. The facts of the case are that the complainant Sh. Vishal Bhutani filed a complaint against Manjeet Singh (respondent no. 2 herein), Sunil Daral and Manisha Daral for forgery, cheating, trespassing, and housebreaking and other penal offences. The complainant stated that he is the owner of the property bearing No. F-193/551, Vijay Chowk, Laxmi Nagar and he purchased the same from Smt. Shilpi Gupta vide sale deed duly registered. The complainant had constructed four floors along with stilt parking at the aforesaid plot from his own resources then he entered into the agreement to sell and purchase with the alleged Smt. Manisha Daral with regard to the 3rd floor of the above said property and executed the sale deed in favour of Smt. Manisha Daral for the 3rd floor of the aforesaid property. He received a total sum of Rs.1,17,00,000. Later on, he entered into the agreement to sell and purchase with the alleged Smt. Manisha Daral with regard to the 2nd floor of the above said property and executed the sale deed of 2nd floor in favour of the Smt. Manish Daral and for that he received a total sum of Rs.1,30,00,000. It was further submitted by the complainant that at the time of selling of aforesaid 2nd and 3rd Floor of the said property, some construction work was yet to be completed but the alleged persons pressurized him to execute the sale deed and further asked they would execute an another agreement in favour of the complainant for the completion of renovation work and agreed to pay a sum of Rs.1,46,00,000, in this regard, an indemnity & declaration was executed by the accused Manisha Daral and her husband Sunil Daral in favour of the complainant, wherein it was mentioned that 84 Lacs was already paid to the complainant whereas Six Post Dated Cheques against the payment of remaining 62 Lacs were issued by the accused persons. It is further submitted by the complainant that he had already sold out the upper ground floor to some other person and the 1st floor of the building was vacant and he installed his locks on the first floor. He further stated that the completion of renovation work was much before the due date and handed over the possession of 2nd& 3rd Floor to the accused persons but when the said cheques were present in bank on their due date, the same were dishonoured by the bank due to the reason of stop payment and therefore, the complainant had sent a legal notice to the accused persons. The Counsel for the petitioner contended that while passing the impugned order on the application for grant of bail to Respondent no.2 under section 439 of Cr.P.C. treated bail matter as trial proceedings. It is further submitted that the Investigation file of the IO was not called and perused to deal with investigated facts to appreciate contentions of the parties. He further submitted that the status report of investigation in the matter has not been considered by the Learned ASJ who devised its own procedure. It is also submitted that Learned ASJ should have perused, appreciated and considered facts that co-Accused Manisha Daral has been absconding & proceedings under sections 82, 83 of Cr.P.C. is pending against her, Respondent no.2 is brother in law of Manisha Daral and brother of other co-accused Sunil Daral and thus, are family members, interfering in the investigation. It is further submitted that till date the original copy of forged agreement to sell is not produced before the IO for investigation. It is also submitted that one witness of the said forged document Mr. Darshan Sharma has already made a statement before IO that he had no knowledge about the said agreement to sell and his signature on the said document. Lastly, it is prayed by the counsel for the petitioner/complainant that bail granted to respondent no. 2 i.e. Manjeet Singh should be canceled. The Counsel for the respondents contended that the respondent no. 2 is very much likely to tamper with the evidence/influence witnesses. However, there are no allegations against the respondent no. 2 that he ever tried to tamper with the evidence or any of the witnesses of the case had complained about by influencing them in any manner whatsoever. It is further submitted that the respondent no. 2 has root in the society and there is no apprehension of absconding. It is further submitted that there is no likelihood of tampering with the evidence or influencing the witnesses and it is further submitted that accordingly the Learned A.S.J. has rightly granted bail to the respondent no. 2 after duly considering the facts of the case. It is further submitted that the cancellation can only be done in cases of supervening circumstances which are totally lacking in the present case. | IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on : 06.01.2022 Through: Mr. Vijay K. Gupta Advocate STATE AND ANR Through: Dr. M.P.Singh APP for the State with SI Anand Pratap PS Laxmi Nagar Dr. L.S. Chaudhary Advocate with Mr. Ajay Chaudhary and Mr. Vishesh Kumar Advocates for R 2 HON BLE MR. JUSTICE RAJNISH BHATNAGAR RAJNISH BHATNAGAR J CRL.M.C. 1308 2021 and CRL.M.A. 6719 2021(stay This is a petition filed by the petitioner under section 439(2) Cr.P.C seeking setting aside cancellation of order dated 17.04.2021 by which respondent no.2 i.e. Manjeet Singh was granted bail in case FIR no 301 2020 u s 420 448 406 467 468 471 34 120B IPC registered at P.S Laxmi Nagar Delhi Brief facts of the case are that the complainant Sh. Vishal Bhutani had filed a complaint against Manjeet SinghSunil Daral and Manisha Daral W o Sunil Daral all R o F 193 Vijay Chowk Laxmi Nagar Delhi for forgery cheating trespassing and house breaking and other penal offences at PS Laxmi Nagar Delhi wherein complainant had stated that he is the owner of the property bearing No. F 193 551 Vijay Chowk Laxmi Nagar Delhiand he purchased the same from Smt. Shilpi Gupta W o Ram Mohan Gupta and Sh. Ram Mohan Gupta S o Late Shri Gian Chand Gupta vide sale deed duly registered vide Regd. No. 3125 Addl. Book No. 1 Volume No. 1049 pages 169 to 178 dated 29.06.2017 and Regd. No 5004 Addl. Book No. 1 Volume No. 879 pages 41 to 50 dated 26.06.2017 respectively by which they had claimed that complainant had executed an agreement to sell and purchased with them on 04.09.2017 with regard to the 1st Floor of the above said property against the agreed considerable amount i.e. Rs.1 05 00 000 out of which a sum of Rs.94 Lacs had already been paid to the complainant whereas remaining 11 Lakhs had to be paid. It is also submitted by the complainant that the amount stated to be paid by accused persons to the complainant was with regard of the renovation work done by him at 2nd and 3rd Floor of the above said property. It is submitted by the complainant that the agreement to sell and purchase submitted by the alleged persons before the Hon ble Court is forged and the alleged persons illegally entered into the premises of the complainant i.e. 1st Floor F 193 Vijay Chowk Laxmi Nagar Delhi by breaking the lock On receiving the aforesaid complaint an enquiry was conducted and after the completion of enquiry the present FIR was registered at PS Laxmi Nagar Delhi and investigation was taken up. Vide order dated 17.04.2021 respondent no. 2 i.e. Manjeet Singh was granted regular bail by Ld. ASJ 02 I have heard learned counsel for the petitioner complainant learned APP for the State and learned counsel for the respondent no. 2. I have also perused the status report filed on behalf of the State It is submitted by the counsel for the petitioner that the Ld. ASJ while passing the impugned order on application for grant of bail to Respondent no.2 under section 439 of Cr.P.C. treated bail matter as trial proceedings. It is further submitted that Investigation file of the IO was not called and perused to deal with investigated facts to appreciate contentions of the parties. He further submitted that the status report of investigation in the matter has not been considered by the Learned ASJ who devised its own procedure. It is also submitted that Learned ASJ should have perused appreciated and considered facts that co Accused Manisha Daral has been absconding & proceedings under sections 82 83 of Cr.P.C. is pending against her Respondent no.2 is brother in law of Manisha Daral and brother of other co accused Sunil Daral and thus are family members interfering in the investigation. It is further submitted that till date the original copy of forged agreement to sell dated 04.09.2017 is not produced before the IO for is also submitted that one witness of the said forged document Mr. Darshan Sharma has already made a statement before IO that he had no knowledge about the said agreement to sell and his signature on the said document. Lastly is prayed by the counsel petitioner complainant that bail granted to respondent no. 2 i.e. Manjeet Singh vide order dated 17.04.2021 be cancelled On the other hand it is submitted by the counsel for the respondent no. 2 that one of the ground taken by the petitioner is that the respondent no 2 is very much likely to tamper with the evidence influence witnesses However there are no allegations against the respondent no. 2 that he ever tried to tamper with the evidence or any of the witnesses of the case had complained about the respondent no. 2influencing them in any manner whatsoever. It is further submitted that the respondent no. 2 has root in the society and there is no apprehension of absconding. It is further submitted that there is no likelihood of tampering with the evidence or influencing the witnesses and it is further submitted that accordingly the Learned A.S.J. has rightly granted bail to the respondent no. 2 after duly considering the facts of the case. It is further submitted that the cancellation can only be done in cases of supervening circumstances which are totally lacking in the present In this regard Three Judges Bench of Hon ble the Supreme Court in Statevs. Sanjay Gandhi 1978(2) SCC 411 has made the following elemental distinction in defining the nature of exercise while cancelling bail Rejection of bail when bail is applied for is one thing cancellation of bail already granted is quite another. It is easier to reject a bail application in a non bailable case than to cancel a bail already granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if by reason of supervening circumstances it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial the Hon ble Supreme Court in Dolat Ram v. State of Haryana1 SCC 349 has also laid down guidelines to Courts while deciding the question of cancellation of bail already granted. Para 4 of judgment reads as follows “4. Rejection of bail in a non bailable case at the initial stage and the cancellation of bail so granted have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. Generally speaking the grounds for cancellation of bail broadlyare: interference or attempt to interfere with the due course of administration of justice or evasion to evade the due course of justice or abuse of concession granted to the accused in any manner... However bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles it appears were lost sight of by the High Court when it decided to cancel the bail already granted. The High Court appears to us overlooked the distinction of the factors relevant for rejecting bail in a non bailable casein the first instance and the cancellation of bail already granted It is settled that once bail granted should not be cancelled in a mechanical manner without there being any supervening circumstances which are not conducive to fair trial. It cannot be cancelled on a request from the side of the complainant investigating agency unless and until it is established that the same is being misused and it is no longer conducive in the interest of justice to allow the accused any further to remain on bail. No doubt the bail can be cancelled only in those discerning few cases where it is established that a person to whom the concession of bail has been granted is misusing the same In the instant case the chargesheet has already been filed. It is also pertinent to mention here that there are no allegations of any tampering or the witnesses. There are also no allegations that respondent no. 2 is at flight risk or there is any likelihood of absconding The petitioner has not been able to make out a case of supervening circumstances on the basis of which the bail granted to the respondent no. 2 should be cancelled and nothing has been brought on record to show that the respondent no. 2 has a towering personality that his mere presence out on bail would in any manner thwart the further investigationof the case or that he is in any manner threat to the fair trial of this case. Nothing has been brought on record that the respondent no.2 in any manner has violated the terms and condition of the order granting him bail. The co accused namely Manisha Daral has already deposited a sum of Rs. 62 lacs with the learned Trial Court and the said amount has already been ordered to be released to the complainant. So I see no reason for cancellation of bail of respondent no. 2 in the present case. Therefore relying upon the judgments Statevs. Sanjay Gandhi& Dolat Ram v State of Haryanaand also that all the facts and circumstances required for an order of cancellation of bail to be passed are missing in the present case the petition along with pending application is dismissed JANUARY 6 2022 RAJNISH BHATNAGAR J Page |
Stale claim is not to be adjudicated: High court of Patna | Inordinate delay on the part of the petitioners will lead to the non-interference of the court since entertaining a belated claim would only have the effect of inflicting hardship and inconvenience. The courts do not assist the tardy and the indolent and the lazy and the lethargic. This was held by Honorable Mr. Justice Mohit Kumar Shah in the case of Mukesh Kumar Singh vs. The State of Bihar through the Principal Secretary, Department of Road Construction Department [Civil Writ Jurisdiction Case No. 5809 of 2020] on the 12th of July, 2021 before the Hon’ble High Court of Bihar at Patna. The brief facts of the case are, the petitioner, who is a contractor, was awarded contract work for construction of HL bridge (RCC) at Sariya and an agreement was entered into with the Executing Engineer, NH Division, Chapra on 13.03.2013 for construction of the aforesaid bridge wherein the time period stipulated for completion of the contract work was 16 months from the date of agreement. the bridge in question was constructed within the stipulated time period, however, subsequently, the Executive Engineer, directed the petitioner to undertake additional work whereupon the petitioner had performed variation work, but the same was not approved. It is stated that the entire work was completed in the year 2014 itself, however, the admitted outstanding dues are yet to be paid to the petitioner. The present writ petition has been filed for directing the respondents to forthwith pay the admitted dues along with earnest money and security deposit with respect to the contract work discharged by the petitioner as also to grant approval of the works already done by the petitioner apart from approving price variation. The counsel for the respondent submits that, the present petition is barred by delay and latches inasmuch as the present petition has been filed after a huge delay of six years. It is further submitted that the then Executive Engineer, NH Division, Chapra had made variation in the work of BM and SDBC and prime coat without the approval of the concerned Chief Engineer, who is the competent authority for grant of approval. It is further submitted that the Assistant Engineer had examined the records and vide letter dated 07.08.2018, he has communicated to the Executive Engineer that as per the measurement book No. 338, payment has been made to the petitioner against his eight bills totaling to a sum of Rs. 3,68,53,379.00, for the work done by the petitioner. In fact, a sum of Rs. 41.07 lacs and Rs. 16.16 lacs have also been paid to the petitioner as secured advance against the 4th and 7th A/C Bills. The counsel for the petitioner submitted that the petitioner has refuted the aforesaid statements made in the counter affidavit by filing a rejoinder affidavit. The learned judge heard the counsel for both the parties and observed the huge delay of about 6 years in filing the petition with no plausible explanation. The court relied on the judgement in Chennai Metropolitan Water Supply & Sewerage Board v. T. T. Murali Babu, reported in (2014) 4 SCC, 108, wherein it was held that, “Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinize whether the Lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but, in most circumstances, inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant — a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the Lis.” The Court further found that the present writ petition involved disputed question of facts inasmuch as on the one hand the petitioner is claiming that admitted outstanding dues are due to be paid to him whereas on the contrary, the respondent State is making a claim that certain amounts are in fact recoverable from the petitioner. It is a trite law that disputed question of facts cannot be adjudicated in a writ petition. In this connection with this, the judges relied on the judgment in the case of AIR 1977 Patna 65 M/s Radha Krishna Agrawal & Ors. vs. The State of Bihar & Ors, wherein it was held that, “If those facts are disputed and require assessment of evidence of the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Art. 226 of the Constitution. Such proceedings are summary proceedings reserved for extraordinary cases where the exceptional and what are described as, perhaps not quite accurately, “prerogative” powers of the Court are invoked. We are certain that the cases before us are not such in which powers under Art. 226 of the Constitution could be invoked.” Applying the rationale in the two above cases, the present petition was dismissed on the grounds of inordinate delay and the court ruled that, “the petitioner has approached this Court after a huge delay of about six years for which no plausible explanation what-so-ever has been furnished by the petitioner. It is a well settled law that the High Court in exercise of its discretion does not assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner, the Court may decline to intervene and grant relief inasmuch as entertaining such a belated claim would only have the effect of inflicting hardship and inconvenience. It is equally a well settled law that stale claim is not to be adjudicated and deserve to be thrown out at the very threshold. Considering the facts and circumstances of the case and for the reasons mentioned hereinabove in the preceding paragraphs as also taking into account the well settled principle of law laid down by the Hon’ble Apex Court in a catena of decisions, as referred to hereinabove, this Court finds that since the present case involves disputed question of fact and the respondents have denied their liability arising out of the contract, the present writ petition, filed under Article 226 of the Constitution of India, is not maintainable, hence, the same stands dismissed.” Click here to read the judgement | IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 58020 Mukesh Kumar Singh aged about 45 yearsS o Shree Ram Balak Singh Resident of Village Ekderawa Masuria P.S. Maker District Saran. ... Petitioner s 1. The State of Bihar through the Principal Secretary Department of Road Construction Department Bihar Patna 2. The Secretary Road Construction Department Government of Bihar Patna Government of Bihar Patna Circle) Muzaffarpur West) Patna 3. The Chief Engineer Road Construction Department 4. The Superintending Engineer Road Construction Department at Sariya and an agreement was entered into with the Executing Engineer NH Division Chapra on 13.03.2013 for construction of the aforesaid bridge wherein the time period stipulated for completion of the contract work was 16 months from the date of agreement. It is the case of the petitioner that the bridge in question was constructed within the stipulated time period however subsequently the Executive Engineer directed the petitioner to undertake additional work whereupon the petitioner had performed variation work but the same was not approved. It is stated that the entire work was completed in the year 2014 itself however the admitted outstanding dues are yet to be paid to the 4. Per contra the learned counsel for the respondent State Shri. Manoj Kumar Ambastha SC 26 has referred to the counter affidavit filed in the present case and has submitted that the present petition is barred by delay and latches inasmuch as the present petition has been filed after a huge delay of six years It is further submitted that the then Executive Engineer NH Division Chapra had made variation in the work of BM and SDBC and prime coat without the approval of the concerned Chief Engineer who is the competent authority for grant of approval. It is further submitted that the Assistant Engineer N.H. Sub Division Muzaffarpur III had examined the records and vide letter dated 07.08.2018 he has communicated to the Executive Engineer NH Division Chapra that as per the measurement book No. 338 payment has been made to the petitioner against his eight bills totalling to a sum of Rs 3 68 53 379.00 for the work done by the petitioner. In fact a sum of Rs. 41.07 lacs and Rs. 16.16 lacs has also been paid to the petitioner as secured advance against the 4th and 7th A C Bills. It has also been stated in the counter affidavit that various other amounts were also paid to the petitioner on the head of secured advances against which adjustments were made however in nutshell the position is that still a sum of Rs 14 77 489 is recoverable from the petitioner against the secured advance money which had been taken by the petitioner 5. The learned counsel for the petitioner has in reply submitted that the petitioner has refuted the aforesaid statements made in the counter affidavit by filing a rejoinder affidavit 6. I have heard the learned counsel for the parties and perused the materials on record. This Court finds that though the work was completed in the year 2014 but the petitioner has approached this Court after a huge delay of about six years for which no plausible explanation what so ever has been furnished by the petitioner. It is a well settled law that the High Court in exercise of its discretion does not assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner the Court may decline to intervene and grant relief inasmuch as entertaining such a belated claim would only have the effect of inflicting hardship and inconvenience. It is equally a well settled law that stale claim is not to be adjudicated and deserve to be thrown out at the very threshold. In this regard it would be apt to refer to a judgment rendered by the Hon’ble Apex Court in the case of Chennai Metropolitan Water Supply & Sewerage Board v. T T. Murali Babu reported in4 SCC 108 paragraph no 16 whereof is reproduced herein below: “16. Thus the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person without adequate reason approaches the court at his own leisure or pleasure the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant — a litigant who has forgotten the basic norms namely “procrastination is the greatest thief of time” and second law does not permit one to sleep and rise like a phoenix Delay does bring in hazard and causes injury to the lis.” 7. It would also be relevant to refer to a judgment rendered by the Hon’ble Apex Court in the case of Karnataka Power Corpn. Ltd. vs. K. Thangappan reported in4 SCC 322 paragraph No. 6 whereof is reproduced herein below: “6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports1 SCC 185 : AIR 1970 SC 769]. Of course the discretion has to be exercised judicially and reasonably.” 8. Thus this Court is of the view that the present petition is fit to be dismissed on the ground of delay and latches alone 9. This Court further finds that the present writ petition involves disputed question of facts inasmuch as on the one hand the petitioner is claiming that admitted outstanding dues are due to be paid to him whereas on the contrary the respondent State is making a claim that certain amounts are in fact recoverable from the petitioner. It is a trite law that disputed question of facts cannot be adjudicated in a writ petition. In this connection it would be apt to refer to a judgment rendered by the Hon’ble Apex Court in the case of Orissa Agro Industries Corpn. Ltd. v Bharati Industries reported in 12 SCC 725 Paragraph nos. 7 to 10 and 12 whereof are reproduced herein below: 7. A bare perusal of the High Court s judgment shows that there was clear non application of mind. On one hand the High Court observed that the disputed questions cannot be gone into a writ petition. It was also noticed that the essence of the dispute was breach of contract After coming to the above conclusions the High Court should have dismissed the writ petition. Surprisingly the High Court proceeded to examine the case solely on the writ petitioner s assertion and on a very curious reasoning that though the appellant Corporation claimed that the value of articles lifted was nearly Rs 14.90 lakhs no details were specifically given. From the counter affidavit filed before the High Court it is crystal clear that relevant details disputing claim of the writ petitioner were given. Value of articles lifted by the writ petitioner is a disputed factual question. Where a complicated question of fact is involved and the matter requires thorough proof on factual aspects the High Court should not entertain the writ petition. Whether or not the High Court should exercise jurisdiction under Article 226 of the Constitution would largely depend upon the nature of dispute and if the dispute cannot be resolved without going into the factual controversy the High Court should not entertain the writ petition. As noted above the writ petition was primarily founded on allegation of breach of contract. Question whether the action of the opposite party in the writ petition amounted to breach of contractual obligation ultimately depends on facts and would require material evidence to be scrutinised and in such a case writ jurisdiction should not be exercised See State of Bihar v. Jain Plastics & Chemicals Ltd.1 SCC 216] 8. In a catena of cases this Court has held that where the dispute revolves round questions of fact the matter ought not to be entertained under Article 226 of the Constitution. 5 SCC 74 1998 SCC1270] and Chairman Grid Corpn. of Orissa Ltd.v. Sukamani Das7 SCC 9. In the instant case the High Court has itself observed that disputed questions of fact were involved and yet went on to give directions as if it was adjudicating the money claim in a suit. The course is clearly impermissible. 8 SCC 639] and Rourkela Shramik Sangh v. Steel Authority of India Ltd.4 SCC 317 : 2003 SCC456] 10. In National Highways Authority of India v. Ganga Enterprises7 SCC 410] it was observed by this Court that the question whether the writ petition was maintainable in a claim arising out of a breach of contract should be answered first by the High Court as it would go to the root of the matter. The writ petitioner had displayed ingenuity in its search for invalidating circumstances but a writ petition is not an appropriate remedy for impeaching contractual obligations.1 SCC 737 : AIR 1975 SC 1121] and Divisional Forest Officer v. Bishwanath Tea Co. Ltd.3 SCC 238 AIR 1981 SC 1368] 12. Above being the position the High Court s judgment is clearly unsustainable and is set aside. However our interference in the matter shall not stand in the way of the writ petitioner seeking any other remedy as is available 10. It would also be apposite to refer to a Judgment rendered by the Hon ble Apex Court in the case of Babubhai Muljibhai Patel v. Nandlal Khodidas Barot reported in 1974) 2 SCC 706 paragraphs no. 18 and 19 whereof are reproduced herein below: 10. It is not necessary for this case to express an opinion on the point as to whether the various provisions of the Code of Civil Procedure apply to petitions under Article 226 of the Constitution. Section 141 of the Code to which reference has been made makes it clear that the provisions of the Code in regard to suits shall be followed in all proceedings in any court of civil jurisdiction as far as it can be made applicable. The words “as far as it can be made applicable” make it clear that in applying the various provisions of the Code to proceedings other than those of a suit the court must take into account the nature of those proceedings and the relief sought. The object of Article 226 is to provide a quick and inexpensive remedy to aggrieved parties Power has consequently been vested in the High Courts to issue to any person or authority including in appropriate cases any government within the jurisdiction of the High Court orders or writs including writs in the nature of habeas corpus mandamus prohibition quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under Article 226 it needs to be emphasised is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Article 226. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner s right of relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law Exercise of the jurisdiction is no doubt discretionary but the discretion must be exercised on sound judicial principles. When the petition raises complex questions of fact which may for their determination require oral evidence to be taken and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petition the High Court may decline to try a petition3 SCC 769 : AIR 1970 SC 802] ). If however on consideration of the nature of the controversy the High Court decides as in the present case that it should go into a disputed question of fact and the discretion exercised by the High Court appears to be sound and in conformity with judicial principles this Court would not interfere in appeal with the order made by the High Court in this respect 11. I have heard the learned counsel for the parties and perused the materials on record. It is a trite law that a High Court does not entertain a petition under Article 226 of the Constitution of India to enforce a civil liability arising out of a breach of contract or a tort to pay an amount of money due to the claimant and the same is required to be left to the aggrieved party to agitate the said question in a civil suit to be filed for that purpose. Reference in this connection be had to a judgment rendered by a Full Bench of this Court reported in AIR 1977 Patna 65paragraphs no. 18 and 19 whereof are reproduced herein below: “18. Learned counsel appearing on behalf of the petitioners submitted that on the facts and in the circumstances of the case there has been no contravention of the terms of the agreement by the petitioner and as such the order of termination of the lease is void. Now the question is as to whether the allegation regarding the breach of the terms of the agreement either by the petitioner or by the respondent State can be examined by this Court in exercise of its writ jurisdiction. According to the learned counsel appearing for the petitioners the impugned actions are in exercise of executive powers by the State under Article 298 of the Constitution which are amenable to the jurisdiction of this court. Whether under the writ jurisdiction such dispute can be agitated and decided has been the subject matter of controversy. Such disputes can be put under three groups for the purpose of answering i) Where a petitioner makes a grievance of breach of promise on the part of the State in cases wherein assurance or promise made by the State he has acted to his prejudice and predicament but the agreement is short of a contract within the meaning of Article 299 of the Constitution ii) Where the contract entered into between the person aggrieved and the State is in exercise of a power under certain Act or Rules framed thereunder and the petitioner alleges a breach on the part of the State and iii) Where the contract entered into between the State and the person aggrieved is non statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract and the petitioner complains about breach of such contract by the State 19. So far as the cases under categoriesandare concerned it is almost settled that the person aggrieved can invoke the writ jurisdiction of this Court. In Union of India v. M s. Anglo Afghan Agencies Century Spinning and Manufacturing Co. Ltd. v Ulhasnagar Municipal Council and Robertson v. Minister of Pensions 1 KB 227) it was pointed out that public bodies are as much bound as private individuals to carry out representations of facts and promises made by them relying on which other persons have altered their position to their prejudice and in such cases even if the contract has not been embodied in the form prescribed it can be enforced by a writ in appropriate cases in equity. Similarly in K. N Guruswamy v. State of Mysore D F. O. South Kheri v. Ram Sanhi Singh and Shree Krishna Gynoday Sugar Ltd. v. State of Bihar it has been held that even if the right to relief arose not of an alleged breach of contract but the action of the authority which was being challenged was of a public authority vested with statutory power this court in exercise of its writ jurisdiction can grant relief to the aggrieved person. On the other hand in case falling under categorywhere there is no question of exercise of any statutory power and the rights of the parties flow from mere terms of the contract entered into by the authorities of the State a party to such agreement should not be allowed to invoke the writ jurisdiction of this Court for the purpose of finding out as to whether there has been a breach of contract on the part of the State or on the part of such person. It is apparent that in such cases there cannot be adjudication without evidence on the point. There is no question of infraction of any rules or statutes. Courts have always called upon such petitioners to seek their remedy in the Civil Court. In this connection reference can be made to a Bench decision of this Court in B. K Sinha v. State of Bihar where Untwalia C. J.after making a reference to the Supreme Court in Umakant Saran v State of Bihar AIR 1973 SC 964): and Lekhraj Sathram Das v. N. M Shah observed Here in the very nature of the contract in question the petitioner had no right to claim its specific performance. The Statute did not impose any legal duty on the authorities concerned that if they thought that the petitioner should not be allowed to complete the work even assuming they thought so wrongly they could not stop the work............. A writ of mandamus cannot issue to compel the authorities to remedy a breach of contract pure and simple. In the same case at page 231 it was further observed: I am therefore definitely of the view that until and unless in the breach is involved violation of certain legal and public duties or violation of statutory duties to the remedy of which the petitioner is entitled by issuance of a writ of mandamus mere breach of contract cannot be remedied by this Court in exercise of its powers under Article 226 of the Constitution 12. The aforesaid judgment rendered by a Full Bench of this Court was upheld by the Hon’ble Apex Court by a judgment reported in AIR 1977 SC 1496paragraphs no.11 19 21 and 25 whereof are reproduced herein below: “11. In the cases before us the contracts do not contain any statutory terms or obligations and no statutory power or obligation which could attract the application of Art 14 of the Constitution is involved here. Even in cases where the question is of choice or consideration of competing claims before an entry into the field of contract facts have to be investigated and found before the question of a violation of Art. 14 could arise. If those facts are disputed and require assessment of evidence of the correctness of which can only be tested satisfactorily by taking detailed evidence involving examination and cross examination of witnesses the case could not be conveniently or satisfactorily decided in proceedings under Art. 226 of the Constitution. Such proceedings are summary proceedings reserved for extraordinary cases where the exceptional and what are described as perhaps not quite accurately "prerogative" powers of the Court are invoked. We are certain that the cases before us are not such in which powers under Art. 226 of the Constitution could be invoked 19. We do not think that any of these cases could assist the appellants or is at all relevant. None of these cases lays down that when the State or its officers purport to operate within the contractual field and the only grievance of the citizen could be that the contract between the parties is broken by the action complained of the appropriate remedies by way of a petition under Art. 226 of the Constitution and not an ordinary suit There is a formidable array of authority against any such a proposition. In Lekhraj Sathramdas v. M. M. Shah AIR 1966 SC 334)this Court saidthis Court declaredIf a right is claimed in terms of a contract such a right cannot be enforced in a writ petition In Har Shankar v. Dy. Excise and Taxation Commr. 1975) 3 SCR 254 at p. 265 :a Constitution Bench of this Court observed(of SCR) :: "The appellants have displayed ingenuity in their search for invalidating circumstances but a writ petition is not an appropriate remedy for impeaching contractual obligations 21. In the cases before us allegations on which a violation of Art. 14 could be based are neither properly made nor established Before any adjudication on the question whether Art. 14 of the Constitution could possibly be said to have been violated as between persons governed by similar contracts they must be properly put in issue and established. Even if the appellants could be said to have raised any aspect of Art. 14 of the Constitution and this Article could at all be held to operate within the contractual field whenever the State enters into such contracts which we gravely doubt such questions of fact do not appear to have been urged before the High Court And in any event they are of such a nature that they cannot be satisfactorily decided without a detailed adduction of evidence which is only possible in ordinary civil suits to establish that the State acting in its executive capacity through its officers has discriminated between parties identically situated. On the allegations and affidavit evidence before us we cannot reach such a conclusion. Moreover as we have already indicated earlier the correct view is that it is the contract and not the executive power regulated by the Constitution which governs the relations of the parties on facts apparent in the cases before us 25. The limitations imposed by rules of natural justice cannot operate upon powers which are governed by the terms of an agreement exclusively. The only question which normally arises in such cases is whether the action complained of is or is not in consonance with the terms of the agreement. As already pointed out by us even if by some stretch of imagination some case of unequal or discriminatory treatment by the officers of the State of persons governed by similar contracts is sought to be made out a satisfactory adjudication upon the unusual facts of such a case would necessitate proper pleadings supported by acceptable evidence. In that case the interim stay order or injunction could not be justified at all because so long as a Presidential Order under Article 359 of the Constitution is operative. the enforcement of fundamental rights falling under Art. 14 is suspended. In such cases even if a petition or suit is entertained and kept pending no stay order could be passed because that would amount to indirectly enforcing the fundamental rights conferred by Art. 14 of the Constitution. It is only where a prima facie case for an injunction or stay can be made out quite apart from a right covered by Art. 14 of the Constitution or by any other fundamental right whose enforcement may have been suspended that an injunction or stay could be granted at all on suitable terms. As we have already said it was on such an assumption that this Court had apparently granted the interim stay which must now be discharged.” whereof are reproduced herein below: 6. On the first point we are of opinion that though the High Courts have power to pass any appropriate order in the exercise of the powers conferred under Article 226 of the Constitution such a petition solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax. We have been referred to cases in which orders had been issued directing the State to refund taxes illegally collected but all such cases had been those in which the petitions challenged the validity of the assessment and for consequential relief for the return of the tax illegally collected. We have not been referred to any case in which the Courts were moved by a petition under Article 226 simply for the purpose of obtaining refund of money due from the State on account of its having made illegal exactions. We do not consider it proper to extend the principle justifying the consequential order directing the refund of amounts illegally realised when the order under which the amounts had been collected has been set aside to cases in which only order for the refund of money are sought The parties had the right to question the illegal assessment orders on the ground of their illegality or unconstitutionality and therefore could take action under Article 226 for the protection of their fundamental right and the courts on setting aside the assessment orders excerised their jurisdiction in proper circumstances to order the consequential relief for the refund of the tax illegally realised. We do not find any good reason to extend this principle and therefore hold that no petition for the issue of a writ of mandamus will be normally entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claims a 9. We therefore hold that normally petitions solely praying for the refund of money against the State by a writ of mandamus are not to be entertained. The aggrieved party has the right of going to the civil court for claiming the amount and it is open to the State to raise all possible defences to the claim defences which cannot in most cases be appropriately raised and considered in the exercise of writ jurisdiction 14. Considering the facts and circumstances of the case and for the reasons mentioned hereinabove in the preceding paragraphs as also taking into account the well settled principle of law laid down by the Hon’ble Apex Court in a catena of decisions as referred to hereinabove this Court finds that since the present case involves disputed question of fact and the respondents have denied their liability arising out of the contract the present writ petition filed under Article 226 of the Constitution of India is not maintainable hence the same ( Mohit Kumar Shah J |
High Court while entertaining a petition under section 482 Cr.P.C. cannot discharge the accused before the trail: Delhi High Court | The High Court while entertaining a petition under section 482 Cr.P.C. to quash an FIR cannot evaluate the defence and discharge the accused before the trail. The High Court must refrain from passing an order which will result in giving finality to the circumstances. This was held in the matter of Shri. Aishwarya Bindal vs. The State, Govt. of N.C.T. Delhi & Anr [CRL.M.C. 177/2021 & CRL.M.A.901/2021(stay)]. The judgement was given by Justice Subramonium Prasad. The petition was filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing an FIR for the offences under Sections 509, 377, 313, 506, 376(2)(n) I.P.C. The petitioner was accused of committing rape on the prosecutrix under the pretence of marriage. The version of the petitioner stated that he is a bright student of a reputed university and that the prosecutrix has a history of blackmailing people. The petition stated that the prosecutrix came to visit the accused in jail twice before the petitioner was granted bail and it is stated that the prosecutrix threatened the petitioner/accused either to marry her or give Rs.15,00,000/- for closing the F.I.R. The Court relied on Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) [18 SCC 191] to show the distinction between rape and consensual sex. In such cases, the court must carefully examine, whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. In the present case, the question was to whether the consent for intercourse was given due to promise of marriage or that the allegation of promise of marriage was a mere ruse to file a case against the accused/petitioner under Section 376 Cr.P.C or whether such a promise was made at all. It was hence stated in the judgement that, “The material relied on by the accused is not of such nature and is not sufficient to completely reject and over-rule the assertions contained in the complaint. This Court is therefore not inclined to quash the FIR on the basis of the available material. This court however cannot be oblivious to the fact that the petitioner is a youngster and an engineering graduate and the entire life of the petitioner/accused is at stake. Keeping that in mind the trial court is directed to complete the trail expeditiously, not later than one year from today.” | IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.M.C. 177 2021 & CRL.M.A.901 2021(stay) Date of decision: 11th FEBRUARY 2021 IN THE MATTER OF: SHRI AISHWARYA BINDAL ..... Petitioner Through Mr. O.P. Saxena with Mr. Ravinder Aggarwal Advocates. THE STATE GOVT. OF N.C.T. OF DELHI & ANR..... Respondents Through Ms. Kusum Dhalla APP for the State with S.I. Manisha P.S. Janakpuri. HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. This is a petition under Section 482 of the Code of Criminal Procedure 1973read with Article 227 of the Constitution of India for quashing F.I.R. No.338 2019 dated 06.09.2019 registered at Police Station Janakpuri Delhi for offences under Sections 509 377 313 506 376(2)(n) I.P.C. The petitioner is accused of committing rape on the prosecutrix. The allegation in the FIR is that the prosecutrix met her friend one Isha Gupta resident of Sarai Rohilla Delhi who introduced the petitioner accused to the prosecutrix by stating that the accused is her friend. It is stated in the FIR that after two or three days Isha Gupta told the prosecutrix that the CRL.M.C. 177 2021 petitioner accused wanted to meet her and wants to be friends with her. It is stated in the FIR that the prosecutrix refused this proposal by stating that she will only accept friendship from such a person who will marry her. Despite that the said Isha Gupta gave the mobile number of the prosecutrix to the accused. It is stated in the FIR that the accused started talking to the prosecutrix and insisted on meeting her. It is stated that on 03.03.2019 the accused and the prosecutrix met at hotel Oyo Town Pankha Road Janakpuri. It is stated in the FIR that in the hotel the accused promised marriage and pressurized her to establish physical relationship with the prosecutrix. It is stated that in April 2019 the accused came to the house of the prosecutrix and promised that he will talk to his mother about their marriage and established physical relationship with her. It is further stated in the FIR that later the accused called the prosecutrix to Karnal on the pretext of meeting his mother and for discussion about their marriage the prosecutrix was put up at hotel Gopinath Grand near Dayal Singh College Karnal and he established physical relationship with her stating that he will introduce the prosecutrix to his mother. It is alleged that the accused forced her to have unnatural sex. It is stated that after that incident the prosecutrix had a fight with the accused but the accused assured her that he will marry the prosecutrix within 15 days. It is further stated that on 27.07.2019 once again under the pretext of meeting his mother the accused took the prosecutrix to hotel Yellow Sparrow Namaste Chowk Karnal where the prosecutrix told the accused that she is pregnant with the child of the accused. It is stated in the FIR that despite being told that the prosecutrix is pregnant the accused established physical relationship with her and it is CRL.M.C. 177 2021 alleged that the accused mixed some medicine in the food of the prosecutrix because of which the prosecutrix had a miscarriage. It is stated that on 25.08.2019 once again the accused called the prosecutrix to Karnal admitted his guilt and established physical relationship with her. It is stated that after the act the accused refused to marry the prosecutrix and that he told her that he has already used her and that now she is of no use to him. It is stated in the FIR that the accused also threatened that he will put her photo on the internet which would tarnish her image. It is stated that after that incident despite repeated attempts the accused refused to marry the prosecutrix. It is also stated that the prosecutrix tried to contact the mother of the accused who threatened her that she will get cases filed against her and further she was threatened of dire consequences. On the complaint of the prosecutrix FIR No.338 2019 dated 06.09.2019 was registered at Police Station Janakpuri Delhi for offences under Sections 509 377 313 506 376(2)(n) I.P.C. The petitioner was arrested on 12.09.2019 and has been released on bail on 18.11.2019. Arguments on charge were heard on 29.01.2020. The Additional Session Judge South West Dwarka Courts Delhi discharged the relatives of the accused but has held that there is substantial material on record to frame charges against the accused for offences punishable under Sections 376 377 376(2)(n) 509 313 323 506 IPC and accordingly charges were framed against the accused. This instant petition is for quashing the F.I.R. No.338 2019 dated 06.09.2019 registered at Police Station Janakpuri Delhi for offences under Sections 509 377 313 506 376(2)(n) I.P.C. The version of the CRL.M.C. 177 2021 petitioner accused is that the petitioner is a bright student and is enrolled in B.Tech programme with the Institute of Engineering and Technology Nilokheri Karnal Haryana affiliated with Kurukshetra University. It is stated in the petition that the petitioner has also got a diploma in Civil Engineering from Government Polytechnic Ambala City with First Division. It is stated in the petition that the petitioner was in search of a part time job and through one of his friend Isha Gupta the petitioner came in the contact with the prosecutrix. It is stated that Isha Gupta told him that the prosecutrix would help the petitioner accused in searching online jobs as she has numerous contacts. It is stated in the petition that the petitioner met the prosecutrix in the evening of 13.03.2019 at District Centre Janakpuri New Delhi in the presence of said Ms. Isha Gupta. It is stated that his discussion with the prosecutrix regarding his job took a long time it was late in the night and when the petitioner wanted to return back to his home in Karnal the prosecutrix persuaded the petitioner to stay in Delhi. It is stated in the petition that the petitioner refused the proposal saying that he does not have any money or any place to stay in Delhi. It is stated that the prosecutrix herself booked two rooms in Oyo Arora Hotel at Janakpuri. The petitioner stayed in Room No.107 and the prosecutrix stayed in Room No.108 with her boyfriend. It is stated that pursuant to that night several communications were exchanged between the petitioner and the prosecutrix and the prosecutrix expressed her desire and liking for the petitioner. It is stated by the petitioner that the prosecutrix called the petitioner and on 18.06.2019 under constant threat given by the prosecutrix the petitioner reached the hotel and the prosecutrix established physical relationship with him and after CRL.M.C. 177 2021 that put her demands that either the petitioner should marry her or give Rs.25 00 000 to her otherwise she would get the petitioner arrested in a rape case. It is stated in the petition that the Police arrested the petitioner on 12.09.2019 for rape in the present case. In the petition it is stated that the prosecutrix came to visit the accused in jail twice on 25.09.2019 and 30.09.2019 i.e. before the petitioner was granted bail and is stated the prosecutrix petitioner accused either to marry her or give Rs.15 00 000 for closing the F.I.R. The petition states that the prosecutrix is in the habit of blackmailing people. It is also stated that she had married another person named Tarun Kumar @ Hari Om on 18.01.2008 and she has a female child from that marriage. It is also stated in the petition that she had filed a dowry complaint against Tarun Kumar @ Hari Om and his family. The said complaint is numbered as C.C.No.428 2008 dated 15.12.2018. It is stated in the petition that the prosecutrix entered into a compromise and the complaint was closed. The compromise deed is annexed along with the petition. In the compromise deed the said Tarun Kumar @ Hari Om has taken the custody of the child. It is stated in the deed that the stridhan has been returned back to the prosecutrix. The petition also states that the prosecutrix had filed FIR No.26 2010 dated 02.02.2010 against one Brijesh @ Golu for offences under Section 376. Copy of the FIR is annexed with the petition. The charge sheet was filed on 24.04.2010. It is stated that in the trial during her examination the prosecutrix turned hostile wherein the prosecutrix stated that she had no CRL.M.C. 177 2021 sexual intercourse with Brijesh @ Golu. It is stated that the complaint against Brijesh @ Golu is more or less similar to the present complaint. The Additional Session Judge by his judgment dated 17.07.2010 has acquitted Brijesh @ Golu and stated that the prosecutrix is not a reliable witness. It is also stated in the petition that the prosecutrix is a suspect in FIR No.24 2019 dated 27.01.2019 registered at Police Station Sarai Rohilla under Section 363 IPC wherein the prosecutrix is alleged of kidnapping one Master Riyansh @ Vishnu. A copy of the said FIR is also annexed with the Heard Mr. O.P. Saxena learned counsel appearing for the petitioner and Ms. Kusum Dhalla learned APP appearing for the State and perused the petition. material on record. 10. Mr. O.P. Saxena learned counsel for the petitioner has reiterated the facts stated in the petition and he would contend that the prosecutrix met the petitioner accused when he was in custody twice which would show that the allegation against the petitioner is false. He would state that the police has examined Ms. Isha Gupta and in her statement she has stated that the prosecutrix has filed the FIR only to blackmail the petitioner accused. She has also mentioned about the false rape case registered by the prosecutrix against Brijesh @ Golu in FIR No.26 2010 where the prosecutrix turned hostile. It is submitted that in her statement Ms. Isha Gupta has confirmed that the prosecutrix has met the accused in jail. Learned counsel for the petitioner has also placed reliance on the judgment dated 17.07.2010 arising out of FIR No.26 2010. He also states that the MLC discloses that the last menstrual cycle of the prosecutrix was on 10.08.2019 and therefore the CRL.M.C. 177 2021 allegation that the prosecutrix was pregnant on 27.09.2019 is false. 11. On the other hand Ms. Kusum Dhalla learned APP for the State would state that the petitioner is accused of a heinous offence of rape. She would state that the statement of the prosecutrix alone is sufficient to convict the accused petitioner in case of rape. She would state that this Court should not evaluate the correctness or truthfulness of the allegations at this juncture. It is well settled that the powers of the High Court under Section 482 Cr.P.C are unlimited and that in the interest of justice the High Court can make such orders as may be necessary to prevent abuse of the process of the Court or otherwise to secure the ends of justice1 SCC 568)). It is well settled that the High Court is free to consider every material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained or not. 13. However it is also equally well settled that the High Court while exercising its jurisdiction under section 482 Cr.P.C while considering an application to quash an FIR or considering the correctness of an order framing charges the High Court should not evaluate the truthfulness or correctness of the allegations levelled by the prosecution complainant against the accused. This is not a stage to determine as to whether the defence raised by the accused is correct or not. It is settled that even if the accused is successful in raising a suspicion or doubt in allegations levelled by the prosecution or the complainant the High Court while entertaining a petition under section 482 Cr.P.C. to quash an FIR cannot evaluate the defence and discharge the accused before the trail. The High Court must CRL.M.C. 177 2021 refrain from passing an order which will result in giving finality to the accusations levelled by the prosecution by accepting the case of the defence without allowing the prosecution or the complainant to adduce evidence to substantiate the same. This is so because the defence can approach the High Court while exercising its jurisdiction under section 482 Cr.P.C at any stage of the trial with a case that the material produced is sufficient to acquit the accused. 14. The Supreme Court in a catena of judgments has held that where the prosecution complainant has levelled allegations bringing out all ingredients of the charges levelled and have placed material before the Court prima facie evidencing the truthfulness of the allegations levelled trial must be held. In State of Karnataka v. M. Devendrappa 3 SCC 89 the Supreme Court has held as under: three circumstances under which “6. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It inherent jurisdiction may be exercised namely to give effect to an order under the Code to prevent abuse of the process of court and to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. 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 CRL.M.C. 177 2021 the section which merely recognizes and preserves inherent powers of the 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 potest CRL.M.C. 177 2021 In Rajiv Thapar v. Madan Lal Kapoor 3 SCC 330 the Supreme Court has held as under: “29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process or at the stage of committal or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC at the stages referred to hereinabove would have far reaching consequences prosecution s complainant s case without allowing the prosecution complainant to lead evidence. Such a determination must always be rendered with caution care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his their defence is based on sound reasonable and indubitable facts the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution complainant. It should be sufficient to rule out reject and discard the accusations levelled by the prosecution complainant without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted or alternatively cannot be justifiably refuted being material of sterling and impeccable quality. The material relied upon by the CRL.M.C. 177 2021 accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings for that would prevent abuse of process of the court and secure the ends of justice. 30. Based on the factors canvassed in the foregoing paragraphs we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC: 30.1.Step one: whether the material relied upon by the accused is sound reasonable and indubitable i.e. the material is of sterling and impeccable quality 30.2.Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false 30.3.Step three: whether the material relied upon by the accused has not been refuted by the prosecution complainant and or the material is such that it cannot be justifiably refuted by the prosecution complainant 30.4.Step four: whether proceeding with the trial would result in an abuse of process of the court and would not serve the ends of justice CRL.M.C. 177 2021 30.5. If the answer to all the steps is in the affirmative the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power besides doing justice to the accused would save precious court time which would otherwise be wasted in holding such a trialspecially when it is clear that the same would not conclude in the conviction of the accused.” 16. Applying the laws laid down by the Supreme Court to the facts of this case it is found that the prosecutrix has levelled allegations against the petitioner that he established physical relationship with the prosecutrix on the pretext of marriage five times. This is not a case where the accused and the prosecutrix were living together or that they had intercourse a number of times and that after a lapse of considerable time the prosecutrix has turned around and has levelled the allegation of rape. In Dhruvaram Murlidhar Sonar v. State of Maharashtra 18 SCC 191 the Supreme Court has held as under: “23. Thus there is a clear distinction between rape and consensual sex. The court in such cases must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts such an act would CRL.M.C. 177 2021 not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused or where an accused on account of circumstances which he could not have foreseen or which were beyond his control was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC.” 18. The question as to whether the consent for intercourse was given due to promise of marriage or that the allegation of promise of marriage was a mere ruse to file a case against the accused petitioner under Section 376 Cr.P.C or whether such a promise was made at all can be determined only after the prosecutrix is examined and after the prosecution places the entire case. The fact that the prosecutrix has levelled a similar allegation against another person and has turned hostile though is a very important fact but it alone cannot be the basis of quashing the complaint. It is for the prosecution to establish that it was the petitioner accused who brought the prosecutrix to Karnal on the pretext of meeting his mother. This court at this juncture cannot go into the antecedents of the prosecutrix to quash the complaint as it would be improper to do so. The antecedents of the prosecutrix would be an important factor which the trial Court will have to take into account during the final hearing of the case. It is well settled that the petitioner can be convicted on the statement of the prosecutrix provided the statement is CRL.M.C. 177 2021 accepted by the Court and is found to be reliable. Both sides have given their own versions and the correctness of the version given by each side can be tested only during trial. The material relied on by the accused is not of such nature and is not sufficient to completely reject and over rule the assertions contained in the complaint. This Court is therefore not inclined to quash the FIR on the basis of the available material. 19. This court however cannot be oblivious to the fact that the petitioner is a youngster and an engineering graduate and the entire life of the petitioner accused is at stake. Keeping that in mind the trial court is directed to complete the trail expeditiously not later than one year from today. 20. Accordingly the revision petition is dismissed with the above observations along with the pending application. SUBRAMONIUM PRASAD J. FEBRUARY 11 2021 CRL.M.C. 177 2021 |
Dharma Prathishthanam v. M/S. Madhok Construction Pvt. Ltd | “Arbitration agreement” means a written agreement to submit present or future differences to arbitration” In the year 1985, the appellant proposed to have a building constructed for which purpose it entered into a works contract with the respondent for the construction as per the drawings and specifications given by the appellant. Disputes arose between the parties. Clause 35 of the agreement which is the arbitration clause read as under:- “Settlement of disputes shall be through arbitration as per the Indian Arbitration Act.” Obviously and admittedly the reference was to the Arbitration Act, 1940. On 12th June, 1989 the respondent appointed one Shri Swami Dayal as the Sole Arbitrator. The respondent gave a notice to the appellant of such appointment having been made by the respondent but the appellant failed to respond. The respondent made a reference of dispute to the Arbitrator and the Arbitrator Shri Swami Dayal entered upon the reference. The record of the proceedings of the Arbitrator had neither been produced before the High court nor before this court. However, it is not disputed that the appellant did not participate in the proceedings before the Arbitrator.On 14th April, 1990 the Sole Arbitrator gave an award of Rs.14,42,130.78p. with interest at the rate of 12 per cent per annum from 14th April, 1990 till realization in favour of the respondent against the appellant. The respondent filed an application in the Court under Sections 14 and 17 of the Act for making the Award a Rule of the Court. The notice under Section 14(2) of the Act was published in the Statesman, a daily English newspaper in its edition dated 6th December, 1991.The appellant appeared in the Court on the appointed date i.e. 20th February, 1992. According to the appellant it gathered only on that date of copy of the Award dated 14th April, 1990. From 14th March, 1992 to 20th March, 1992 the Court was closed. On 21st March, 1992 the appellant filed objections to the Award.The objections were dismissed without any adjudication on merits and only on the ground that the objection petition was filed beyond a period of 30 days from 6th February, 1991 i.e. the date of publication of notice in the Statesman. Having lost before the learned Single Judge of the High Court of Delhi (Original Side) as also in intra-court appeal preferred before the Division Bench, the aggrieved appellant filed this appeal by special leave. ISSUE BEFORE THE COURT:Whether in the light of a general provision as in clause 35, the respondent could have unilaterally appointed an arbitrator without the consent of the appellant and could have made a reference to such arbitrator again without the reference of disputes having been consented to by the appellant. RATIO OF THE COURTAccording to this court, three types of situations may emerge between the parties and then before the Court. Firstly, an arbitration agreement, under examination from the point of view of its enforceability, may be one which expresses the parties ‘ intention to have their disputes settled by arbitration by using clear and unambiguous language then the parties and the Court have no other choice but to treat the contract as binding and enforce it.Or, there may be an agreement suffering from such vagueness or uncertainty as it not capable of being construed at all by culling out the intention of the parties with certainty, even by reference to the provisions of the Arbitration Act, then it shall have to be held that there was no agreement between the parties in the eye of law and the question of appointing an arbitrator or making a reference or disputes by reference to Sections 8, 9 and 20 shall not arise.Secondly, there may be an arbitrator or arbitrators named, or the authority may be named who shall appoint an arbitrator, then the parties have already been ad idem on the real identity of the arbitrator as appointed by them before hand; the consent is already spelled out and binds the parties and the Court. All that may remain to be done in the event of an occasion arising for the purpose, is to have the agreement filed in the Court and seek an order of reference to the arbitrator appointed by the parties.Thirdly, if the arbitrator is not named and the authority who would appoint the arbitrator is also not specified, the appointment and reference shall be to a sole arbitrator unless a different intention is expressly spelt out. The appointment and reference – both shall be by the consent of the parties. Where the parties do not agree, the Court steps in and assumes jurisdiction to make an appointment, also to make a reference, subject to the jurisdiction of the Court being invoked in that regard.This court added that mere inaction by a party called upon by the other one to act does not lead to an inference as to implied consent or acquiescence being drawn. The appellant not responding to respondent’s proposal for joining in the appointment of a sole arbitrator named by him could not be construed as consent and the only option open to the respondent was to have invoked the jurisdiction of Court for appointment of an arbitrator and an order of reference of disputes to him. It is the Court which only could have compelled the appellant to join in the proceedings.The court held that far from submitting to the jurisdiction of the Arbitrator and conceding to the appointment of and reference to the Arbitrator-Shri Swami Dayal, the appellant did raise an objection to the invalidity of the entire proceedings beginning from the appointment till the giving of the Award though the objection was belated.In the facts and circumstances of the case, this court considered that referring the matter again to the learned Single Judge of the High Court so as to record a finding if the award is a nullity would be a futile exercise resulting in needless waste of public time. On the admitted and undisputed facts, this court held that the impugned Award is a nullity and hence liable to be set aside and that is what we declare and also do hereby, obviating the need for remand. . DECISION HELD BY COURT:The appeal was allowed. The impugned Award given by the Arbitrator along with the unilateral appointment of the Arbitrator and reference made to him were all set aside as void ab initio and nullity. | Appeal71404 M s. Madhok Construction Pvt. Ltd DATE OF JUDGMENT: 02 11 2004 CJI R.C. LAHOTI G.P. MATHUR & P.P. NAOLEKAR JUDGMENT R.C. LAHOTI CJI Arising out of Special Leave PetitionNo. 78303 Leave granted The appellant Dharma Prathishthanam is a charitable institution. The respondent is a builder engaged in construction activity. In the year 1985 the appellant proposed to have a building constructed for which purpose it entered into a works contract with the respondent for the construction as per the drawings and specifications given by the appellant. We are not concerned with the correctness or otherwise of the allegations and counter allegations made by the parties which relate to the question who committed breach of the agreement. Suffice it for our purpose to say that disputes arose between the parties. Clause 35 of the agreement which is the arbitration clause reads as under: "Settlement of disputes shall be through arbitration as per the Indian Arbitration Act Obviously and admittedly the reference was to the Arbitration Act 1940 On 12th June 1989 the respondent appointed one Shri Swami Dayal as the Sole Arbitrator. It appears that the respondent gave a notice to the appellant of such appointment having been made by the respondent but the appellant failed to respond. The respondent made a reference of disputes to the Arbitrator and the Arbitrator Shri Swami Dayal entered upon the reference. The record of the proceedings of the Arbitrator have neither been produced before the High court nor are they available before us. However it is not disputed that the appellant did not participate in the proceedings before the Arbitrator. On 14th April 1990 the Sole Arbitrator gave an award of Rs. 14 42 130.78p. with interest at the rate of 12 per cent per annum from 14th April 1990 till realization in favour of the respondent against the appellant. The respondent filed an application in the Court under Sections 14 and 17 of the Act for making the Award a Rule of the Court. The notice under Section 14(2) of the Act was published in the Statesman a daily English newspaper in its edition dated 6th December 1991. the notice reads as under: Dharma Prathishthanam A 214 New Friends Colony New Delhi \026 65 Whereas Shri Swami Dayal the Arbitrator has filed the award dated 14.4.90 delivered by the said Arbitrator with Arbitration proceedings in Court in disputes inter se you respondent and petitioner for being made a rule of the Court. You are hereby called upon to file objections if any in accordance with law to the said award within 30 days of the Service of this notice And petitioner has filed an application I.A. No. 8446 90 under Section 17 of the Arbitration Act 1940 on 20.9.91 AND Whereas it has been shown to the satisfaction of the Court it is not possible to serve you in the ordinary way therefore this notice is given by advertisement directing you to make appearance in Court on 20.2.92 at 11 a.m Take notice that in default of your appearance on the day before mentioned the suit and I.A. will be heard and determined in your absence Dated this 18th day of November 1991 The appellant appeared in the Court on the appointed date i.e. 20th February 1992. According to the appellant it gathered only on that date a copy of the Award dated 14th April 1990. From 14th March 1992 to 20th March 1992 the Court was closed. On 21st March 1992 the appellant filed objections to the Award. The objections have been dismissed without any adjudication on merits and only on the ground that the objection petition was filed beyond a period of 30 days from 6th February 1991 i.e. the date of publication of notice in the Statesman. Having lost before the learned Single Judge of the High Court of Delhias also in intra court appeal preferred before the Division Bench the aggrieved appellant has filed this appeal by special leave Though the initial submission of the learned counsel for the appellant has been that in the facts and circumstances of the case the delay in filing the objection petition ought to have been condoned and the objection petition ought to have been held to have been filed within the period of limitation calculated from the date on which copy of the award was made available to the appellant without which the appellant could not have exercised its right to file objections and therefore subject to this Court feeling satisfied of the maintainability of the objection petition and its availability for consideration on merits this Court may remand the objection petition for hearing and decision by the learned Single Judge on merits. However we do not think that this exercise is at all called for as we are satisfied that the Award given by the arbitrator is a nullity and hence the proceedings must stand terminated fully and finally at this stage itself. We proceed to record our reasons for taking this view. An arbitrator or an Arbitral Tribunal under the Scheme of the 1940 Act is not statutory. It is a forum chosen by the consent of the parties as an alternate to resolution of disputes by the ordinary forum of law courts. The essence of arbitration without assistance or intervention of the Court is settlement of the dispute by a Tribunal of the own choosing of the parties. Further this was not a case where the arbitration clause authorized one of the parties to appoint an arbitrator without the consent of the other. Two things are therefore of essence in cases like the present one: firstly the choice of the Tribunal or the arbitrator and secondly the reference of the dispute to the arbitrator. Both should be based on consent given either at the time of choosing the Arbitrator and making reference or else at the time of entering into the contract between the parties in anticipation of an occasion for settlement of disputes arising in future. The Law of Arbitration does not make the arbitration an adjudication by a statutory body but it only aids in implementation of the arbitration contract between the parties which remains a private adjudication by a forum consensually chosen by the parties and made on a consensual reference Arbitration Act 1940 consolidates and amends the law relating to arbitration. According to Clauseof Section 2 of the Act "Arbitration agreement" means a written agreement to submit present or future differences to arbitration whether an arbitrator is named therein or not. Under Section 3 "arbitration agreement unless a different intention is expressed therein shall be deemed to include the provisions set out in the First Schedule insofar as they are applicable to the reference. The First Schedule consists of 8 paragraphs incorporating implied conditions of arbitration agreements. Para 1 of the First Schedule which only is relevant for our purpose provides 026 " Unless otherwise expressly provided the reference shall be to a sole arbitrator". The manner and method of choosing the sole arbitrator and making the reference to him is not provided. That is found to be dealt with in Sections 8 9 and 20 of the Act The relevant parts of the provisions relevant in the context of a general clause merely providing for arbitration as in the present case are extracted and reproduced herein : Section 8 Power of Court to appoint arbitrator or umpire \026In any of the following cases a) where an arbitration agreement provides that the reference shall be to one or more arbitrators to be appointed by consent of the parties and all the parties do not after differences have arisen concur in the appointment or appointments or b) XXX XXX XXX c) XXX XXX XXX any party may serve the other parties or the arbitrators as the case may be with a written notice to concur in the appointment or appointments or in supplying the vacancy 2] If the appointment is not made within fifteen clear days after the service of the said notice the Court may on the application of the party who gave the notice and after giving the other parties an opportunity of being heard appoint an arbitrator or arbitrators or umpire as the case may be who shall have like power to act in the reference and to make an award as if he or they had been appointed by consent of all parties Section 9 is irrelevant for our purpose as its applicability is attracted to a case where an arbitration agreement provides for a reference to two arbitrators one to be appointed by each party and procedure to be followed in such cases which is not a situation provided in by the agreement with which we are Sections 8 and 9 are placed in Chapter II of the Act Section 20 finds place in Chapter III. According to Section 20 \026 Application to file in Court arbitration agreement \026 1) Where any persons have entered into an arbitration agreement before the institution of any suit with respect to the subject matter of the agreement or any part of it and where a difference has arisen to which the agreement applies they or any of them instead of proceeding under Chapter II may apply to a Court having jurisdiction in the matter to which the agreement relates that the agreement be filed in court." After noticing all the parties and affording them an opportunity of being heard under sub sectionsand\026 4) where no sufficient cause is shown the Court shall order the agreement to be filed and shall make an order of reference to the arbitrator appointed by the parties whether in the agreement or otherwise or where the parties cannot agree upon an arbitrator to an arbitrator appointed by the Court 5) Thereafter the arbitration shall proceed in accordance with and shall be governed by the other provisions of this Act so far as they can be made In the background of the above said provisions the question which arises for consideration is whether in the light of a general provision as in clause 35 the respondent could have unilaterally appointed an arbitrator without the consent of the appellant and could have made a reference to such arbitrator again without the reference of disputes having been consented to by the appellant. On a plain reading of the several provisions referred to hereinabove we are clearly of the opinion that the procedure followed and the methodology adopted by the respondent is wholly unknown to law and the appointment of the sole arbitrator Shri Swami Dayal the reference of disputes to such arbitrator and the ex parte proceedings and award given by the arbitrator are all void ab initio and hence nullity liable to be ignored. In case of arbitration without the intervention of the Court the parties must rigorously stick to the agreement entered into between the two. If the arbitration clause names an arbitrator as the one already agreed upon the appointment of an arbitrator poses no difficulty. If the arbitration clause does not name an arbitrator but provides for the manner in which the arbitrator is to be chosen and appointed then the parties are bound to act accordingly. If the parties do not agree then arises the complication which has to be resolved by reference to the provisions of the Act. One party cannot usurp the jurisdiction of the Court and proceed to act unilaterally. A unilateral appointment and a unilateral reference \026 both will be illegal. It may make a difference if in respect of a unilateral appointment and reference the other party submits to the jurisdiction of the arbitrator and waives its rights which it has under the agreement then the arbitrator may proceed with the reference and the party submitting to his jurisdiction and participating in the proceedings before him may later on be precluded and estopped from raising any objection in that regard. According to Russell\026 An Arbitrator is neither more nor less than a private judge of a private courtwho gives a private judgmenthe is chosen and paid by the disputantshe does not sit in publiche acts in accordance with privately chosen procedure so far as that is not repugnant to public policyso far as the law allows he is set up to the exclusion of the State Courtshis authority and powers are only whatsoever he is given by the disputants’ agreementthe effectiveness of his powers derives wholly from the private law of contract and accordingly the nature and exercise of these powers must not be contrary to the proper law of the contract or the public policy of England bearing in mind that the paramount public policy is that freedom of contract is not lightly to be interfered A reference to a few decided cases would be apposite. In Thawardas Pherumal and Anr. Vs. Union of India 1955) 2 SCR 48 a question arose in the context that no specific question of law was referred to either by agreement or by compulsion for decision of the Arbitrator and yet the same was decided howsoever assuming it to be within his jurisdiction and essentially for him to decide the same incidentally. It was held that \026 A reference requires the assent of both sides. If one side is not prepared to submit a given matter to arbitration when there is an agreement between them that it should be referred then recourse must be had to the court under Section 20 of the Act and the recalcitrant party can then be compelled to submit the matter under sub sectioncompelling a reference the arbitrator is not vested with the necessary exclusive A Constitution Bench held in Waverly Jute Mills Co. Ltd. Vs. Raymond and Co.Pvt. Ltd.3 SCR 203 that An agreement for arbitration is the very foundation on which the jurisdiction of the arbitrators to act rests and where that is not in existence at the time when they enter on their duties the proceedings must be held to be wholly without jurisdiction. And this defect is not cured by the appearance of the parties in those proceedings even if that is without protest because it is well settled that consent cannot confer jurisdiction." Again a Three Judges Bench held in Union of India Vs. A.L. Rallia Ram3 SCR 164 that it is from the terms of the arbitration agreement that the arbitrator derives his authority to arbitrate and in absence thereof the proceedings of the arbitrator would be unauthorized In Union of India Vs. Prafulla Kumar Sanyal 3 SCC 631 this Court observed that an order of reference can be either to an arbitrator appointed by the parties whether in the agreement or otherwise or where the parties cannot agree upon an arbitrator to an arbitrator appointed by the Court. If no such arbitrator had been appointed and where the parties cannot agree upon an arbitrator the Court may proceed to appoint an arbitrator itself. Clearly one party cannot force his choice of arbitrator upon the other party to which the latter does not consent. The only solution in such a case is to seek an appointment from the Court In Banwari Lal Kotiya Vs. P.C. Aggarwal 1985SCC 255 the question of validity of a reference came up for the consideration of the Court in the context of the issue whether an arbitrator could enter upon a reference which was not consensual. The Court explained the law laid down by this Court in Thawardas Perumal’s casethat though the reference to arbitrator has to be accompanied by consent of the parties but such consent is not necessarily required to be expressed at the time of making the reference if it is already provided by the agreement or is sanctioned by statutory rules regulations or bye laws. The Court held that the expression arbitration agreement" is wider as it combines within itself two concepts \026a bare agreement between the parties that disputes arising between them should be decided or resolved through arbitration and an actual reference of a particular dispute or disputes for adjudication to a named arbitrator or arbitrators. When the arbitration agreement is of the former type namely a bare agreement a separate reference to arbitration with fresh assent of both the parties will be necessary and in the absence of such consensual reference resorting to Section 20 of the Arbitration Act will be essential The Constitution Bench in Khardah Company Ltd. Vs. Raymond & Co.Private Ltd. AIR 1962 SC 1810 decided the issue from the view point of jurisdictional competence and held that what confers jurisdiction on the arbitrators to hear and decide a dispute is an arbitration agreement and where there is no such agreement there is an initial want of jurisdiction which cannot be cured even by acquiescence. It is clearly spelled out from the law laid down by the Constitution Bench that the arbitrators shall derive their jurisdiction from the agreement and consent. Thus there is ample judicial opinion available for the proposition that the reference to a sole arbitrator as contemplated by para 1 of the First Schedule has to be a consensual reference and not an unilateral reference by one party alone to which the other party does not consent We are also inclined to make a reference to a few decisions by High Courts. In India Hosiery Works Vs. Bharat Woollen Mills Ltd. AIR 1953 Cal. 488 the Division Bench of the Calcutta High Court an arbitration agreement neither specifying the number of arbitrators nor specifying the mode of appointment is perfectly effective and valid and the incidents of such an agreement are that it is to take effect as an agreement for reference to a sole arbitrator to be appointed by consent of the parties or where the parties do not concur in making an appointment to be appointed by the Court except where the operation of Rule 1 of the First Schedule is XX XX XX XX XX XX Where therefore the agreement does not assign the right of appointment distributively to different parties in respect of different arbitrators it is inherent in the agreement that the appointment of the arbitrator or of each of the several arbitrators must be by the consent of all parties. There may be an express provision to such effect but even in the absence of any express provision such a provision must be taken to be necessarily implied. It is for that reason that where the agreement does not specify the number of arbitrators nor specifies the mode of appointment the Court first takes the agreement as providing for reference to a single arbitrator by reason of the provisions of Rule 1 of Schedule I then takes the mode of appointment intended necessarily to be appointed by consent of the parties and next if it finds that the parties cannot concur in the appointment of an arbitrator it appoints from itself The view was reiterated by another Division Bench of the same High Court in M s. Teamco Private Ltd. Vs. T.M.S. Mani AIR 1967 Cal. 168 M s National Small Industries Corpn. Ltd. Vs. M s. National Metal Craft Delhi and others AIR 1981 Del. 189 is very close to the case at hand. An arbitration clause longish one in substance provided that on question dispute or difference arising between the parties to the agreement "either of the parties may give to the other notice in writing of such question dispute or difference and the same shall be referred to arbitration". One of the parties served a notice on the other appointing one ’K’ as arbitrator to adjudicate upon the dispute. The notice ended by saying "you are hereby called upon to agree to the said reference in accordance with the arbitration agreement for the settlement of the said disputes." ’K’ then commenced the arbitration proceedings. Following the Division Bench decision of the Calcutta High Court the learned Single Judge of Delhi High Court held \026 If the agreement merely provides as here that the dispute shall be referred to arbitration the reference shall be made to a single arbitrator. If the agreement does not provide for the number of arbitrators and the mode of their appointment it will be assumed to be one for reference to a single arbitrator by reason of para I of the First Schedule and the mode of appointment taken necessarily to be consent of parties and if the parties do not concur in the appointment as is the case here the court will make the appointment". of Section 8 of the Act and then it is the Court which assumes jurisdiction to appoint an Arbitrator as held by High Court of Orissa in Niranjan Swain Vs. State of Orissa and Others AIR 1980 Ori. 142 The view of the law taken by the several High Courts as above appeals to us and we find ourselves in agreement In the event of the appointment of an arbitrator and reference of disputes to him being void ab initio as totally incompetent or invalid the award shall be void and liable to be set aside de hors the provisions of Section 30 of the Act in any appropriate proceedings when sought to be enforced or acted upon. This conclusion flows not only from the decided cases referred to hereinabove but also from several other cases which we proceed to notice In Chhabba Lal Vs. Kallu Lal and Others AIR 1946 P.C. 72 their Lordships have held that an award on a reference pre supposes a valid reference. If there is no valid reference the purported award is a nullity. On this point there is near unanimity of opinion as amongst the High Courts of the country as well. Illustratively we may refer to a few cases. In Union of India Vs. M s. Ajit Mehta and Associates Pune and Others AIR 1990 Bom. 45 para 34) the Division Bench held that the Court has suo motu power to set aside an award on ground other than those covered by Section 30 such as an award made by arbitrators who can never have been appointed under Section 8 as such an award would undoubtedly be ab initio void and nonest. In Union of India Vs. South Eastern Railway AIR 1992 M.P. 47 and Rajendra Dayal Vs. Govind 1970 MPLJ 322 both Division Bench decisions the High Court of Madhya Pradesh has held that in certain situations the Court may set aside an Award even without there being an application under Section 30 or even if the petition under Section 30 has not been filed within the period of limitation if the Court finds that the award is void or directs a party to do an act which is prohibited by law or is without jurisdiction or patently illegal. We need not multiply the number of authorities on this point as an exhaustive and illuminating conspectus of judicial opinion is found to be contained in Law of Arbitration and Conciliation Practice and Procedure by S.K. Chawlaunder the caption 026 "Whether the Court has suo motu power to set aside an Arbitral Award " and the answer given in the discussion thereunder is in the affirmative Though it has been held in The Union of India Vs. Shri Om Prakash4 SCC 32 that an objection on the ground of invalidity of a reference is not specifically covered by clauses a) andof Section 30 yet it is included in the residuary expression "or as otherwise invalid" and could have been set aside on such an application being made. However the above decision cannot be treated as an authority to hold that an award which is void ab initio and hence a nullity consequent upon an invalid appointment and an invalid reference in clear breach of the provisions contained in Sections 8 9 and 20 of the Act can still be held to be valid if not objected to through an objection preferred under Section 30 of the Act within the prescribed period of limitation. Three types of situations may emerge between the parties and then before the Court. Firstly an arbitration agreement under examination from the point of view of its enforceability may be one which expresses the parties’ intention to have their disputes settled by arbitration by using clear and unambiguous language then the parties and the Court have no other choice but to treat the contract as binding and enforce it. Or there may be an agreement suffering from such vagueness or uncertainty as is not capable of being construed at all by culling out the intention of the parties with certainty even by reference to the provisions of the Arbitration Act then it shall have to be held that there was no agreement between the parties in the eye of law and the question of appointing an arbitrator or making a reference or disputes by reference to Sections 8 9 and 20 shall not arise. Secondly there may be an arbitrator or arbitrators named or the authority may be named who shall appoint an arbitrator then the parties have already been ad idem on the real identity of the arbitrator as appointed by them before hand the consent is already spelled out and binds the parties and the Court. All that may remain to be done in the event of an occasion arising for the purpose is to have the agreement filed in the Court and seek an order of reference to the arbitrator appointed by the parties. Thirdly if the arbitrator is not named and the authority who would appoint the arbitrator is also not specified the appointment and reference shall be to a sole arbitrator unless a different intention is expressly spelt out. The appointment and reference \026 both shall be by the consent of the parties. Where the parties do not agree the Court steps in and assumes jurisdiction to make an appointment also to make a reference subject to the jurisdiction of the Court being invoked in that regard. We hasten to add that mere inaction by a party called upon by the other one to act does not lead to an inference as to implied consent or acquiescence being drawn. The appellant not responding to respondent’s proposal for joining in the appointment of a sole arbitrator named by him could not be construed as consent and the only option open to the respondent was to have invoked the jurisdiction of Court for appointment of an arbitrator and an order of reference of disputes to him. It is the Court which only could have compelled the appellant to join in the proceedings In the present case we find that far from submitting to the jurisdiction of the Arbitrator and conceding to the appointment of and reference to the Arbitrator Shri Swami Dayal the appellant did raise an objection to the invalidity of the entire proceedings beginning from the appointment till the giving of the Award though the objection was belated. In ordinary course we would have after setting aside the impugned judgments of the High Court remanded the matter back for hearing and decision afresh by the learned Single Judge of the High Court so as to record a finding if the award is a nullity and if so then set aside the same without regard to the fact that the objection petition under Section 30 of the Act filed by the appellant was beyond the period of limitation prescribed by Article 119(b) of the Limitation Act 1963. However in the facts and circumstances of the case we consider such a course to follow as a futile exercise resulting in needless waste of public time. On the admitted and undisputed facts we are satisfied as already indicated hereinabove that the impugned Award is a nullity and hence liable to be set aside and that is what we declare and also do hereby obviating the need for remand For the foregoing reasons the appeal is allowed. The impugned Award given by the Arbitrator alongwith the appointment of the Arbitrator and reference made to him are all set aside as void ab initio and nullity. The respondent shall be at liberty to seek enforcement of his claim if any by having recourse to such remedy as may be available to him under law and therein pray for condonation of delay by seeking exclusion of time lost in the present proceedings. No order as to the costs |
According to Section 84 of IPC, the standard of proof to be applied shall be of legal insanity and not just medical insanity: High Court of Tripura | It was the duty of the investigating officer to subject the accused for medical examination immediately and place that evidence before the Court. Such an opinion was held by The Hon’ble High Court of Tripura before The Hon’ble Mr. Justice T. Amarnath Goud and The Hon’ble Mr. Justice Arindam Lodh in the matter of The State of Tripura Vs. Sri Mitan Das and Ors [Crl.A. No. 52 of 2019]. The facts of the case were related to a Criminal appeal made against a judgment order passed by the Ld. Additional Sessions Judge dated 06.05.2019. It was reported that Sri Maheshwar Das’s daughter was given to marriage with Mithun Das, and was given all his demanded articles. A sum of Rs 50,000 was also given for his business. Even after fulfilling all the demands, the daughter was tortured by the husband and his family. Further one day Mr. Das’s daughter was hospitalised and when the father along with others reached the hospital, he found his daughter bleeding from multiple injuries and later she was declared dead. It was alleged that the husband and his family killed her under a conspiracy. Therefore, an FIR was lodged against the accused under sections 498A/304B/34 of IPC. It was revealed during the investigation the deceased was tortured mentally and physically every day by the accused and his family and demanded more dowries. Ultimately, the husband inflicted a blow upon her head by an ‘Axe’ resulting in bleeding injuries. The “Axe” was presented before the court but no bloodstain was found. The matter was later taken to the Court of Sessions. The learned sessions judge considered the materials on record and heard both sides, framed charges against the accused persons for commission of an offence punishable under Section-498A/304B/302/34. Furthermore, it was observed that the accused suffered from schizophrenia and was under treatment at Modern Psychiatric Hospital and according to the psychiatric doctors, the accused was suffering from a mental disorder and required further observation as an inpatient. On this, The Hon’ble Court stated that the detailed history of the patient was failed to be explained by the prosecution. This created a serious doubt on the prosecution case for which, the accused was liable to get the benefit of Section-84 of IPC. Considering all the submissions, The Hon’ble Court held that “In view of above and having regard to the entire evidence and materials on record, I am of the opinion that prosecution has failed to prove the case beyond reasonable doubt and hence, the order of acquittal recorded by the learned Sessions Judge does not deserve interference. Accordingly, the criminal appeal filed by the State-appellant stands dismissed. The Judgment and order of acquittal passed by the learned Sessions Judge are affirmed.” Click here to read the Judgment | HIGH COURT OF TRIPURA Crl.A. No. 519 The State of Tripura represented by the Ld. Public Prosecutor High Court of Tripura Agartala West Tripura. V E R S U S Sri Mitan Das S o Sri Sukha Ranjan Das @ Shova. Sri Sukha Ranjan Das @ Shova S o late Upendra Kr. Das. Smt. Rekha Das W o Sri Sukha Ranjan Das @ Shova. Sri Litan Das S o Sri Sukha Ranjan Das @ Shova. Smt. Suparna Das W o Sri Litan Das. All are resident of village Purba Assam Para P.S. Ranirbazar District: West Tripura. HON’BLE MR. JUSTICE T. AMARNATH GOUD HON’BLE MR. JUSTICE ARINDAM LODH ….. Respondents. : : For Petitioner(s) For Respondent(s) Date of hearing and delivery of judgment and order : Whether fit for reporting : Mr. Samrat Ghosh Addl. P.P. Mr. S. Bhattacharjee Advocate. JUDGMENT & ORDERHeard Mr. Samrat Ghosh learned Addl. Public Prosecutor appearing for the State of Tripura appellant and Mr. S. Bhattacharjee learned counsel appearing for the respondents. This criminal appeal under Section 378(2) of the Code of Criminal Procedure is directed against the judgment and order of acquittal dated 06.05.2019 passed by the Ld. Additional Sessions Judge Court No.5 Agartala West Tripura in case No. ST T 1 14 2014. The factual background of the case is that on 30.11.2012 Sri Maheshwar Das had lodged one written ejahar before the O.C of Ranirbazar P.S. alleging inter alia that his daughter Smt. Rita Das deceased herein) was given marriage with Mithun Das @Mitan of Assampara giving all the articles as per his demand. After marriage another amount of Rs.50 000 was given for his business. Inspite of that Mitan Das along with his parents and other family members used to torture his daughter. On the morning of 30.11.2012 at about 7.00am he got information that his daughter was admitted in GBP Hospital due to her illness. Immediately after getting the information he along with others rushed to the GBP Hospital and found his daughter having several bleeding injuries on her head and she was not in a position to speak anything. After a while she was declared dead by the attending doctor. Thus it was alleged in the ejahar that Rita Das was killed by her husband and other family members under conspiracy. The trial court had examined evidence of PW 1 the informant herein marked as Extb.1. The trial court also examined the P.M report marked as Exbt.5 which was not effectively challenged by the defence during the cross examination of PW 12 Dr. Juthika Debbarma. On the basis of the aforesaid ejahar Ranirbazar Police Station FIR No. 612 dt. 30.11.2012 was registered under Sections 498A 304B 34 of IPC against the accused person Sri Mitan Das and other family members. During investigation it was revealed that on 04.07.2012 Rita Das got married with Mithun. At the time of marriage all the articles were given to the Mithun Das but subsequently she was tortured mentally and physically by her husband and other family members demanding more dowries. In the month of September 2012 the father of the deceased gave 50 000 to Mithun Das but the torture upon his daughter increased day by day. Ultimately on 30.11.2012 in the morning the husband of deceased inflicted blow upon her head by an ‘Axe’ resulting to bleeding injuries. It is pertinent to mention here that the ‘Axe’ which was produced during trial and marked as Exbt.MO.1 as per evidence of PW11 Dr. S. Nath no blood stain could be detected in the Exbt.A i.e. the ‘Axe’. Thereafter on the same day she died at GBP Hospital. On completion of investigation being prima facie satisfied about the commission of offence the Investigating Officer registered Ranirbazar P.S. Case No. 113 dt. 30.04.2013 under Sections 498A 304B 34 of IPC against principal accused Sri Mitan Das and under Sections 498A 34 against other four accused persons namely Sukha Ranjan Das Shova Smt. Rekha Das Sri Litan Das and Smt. Suparna Das to face the trial in the Court of Law. Cognizance was taken on the basis of police report and in due course the case was committed to the Court of Sessions. The learned Sessions Judge considered the materials on record and after hearing both sides framed charges against the accused persons for commission of offence punishable under Section 498A 304B 302 34. In course of trial prosecution had examined 14 witnesses including the informant and the investigating officer. On closure of prosecution evidence for the time being trial was clogged as it was reported that accused Mithun Das was suffering from schizophrenia and was under treatment at Modern Psychiatric Hospital Narshingarh Agartala and in this regard one Board was constituted consisting of three doctors and was certified that Sri Mithun Das is suffering from schizophrenia and he is not fit for face the trial. Subsequently on 07.12.2017 the accused persons were examined under Section 313 of Cr. P.C. to which each of them claimed themselves as innocent and denied the prosecution case in toto. The learned Sessions Judge considering the evidence on record arrived at a conclusion that prosecution has failed to prove the case against the accused beyond reasonable doubt and therefore acquitted the prime accused and four other family members from the The appellant herein being aggrieved by and dissatisfied with against the impugned judgment of acquittal dated 06.05.2019 has preferred this appeal on the following grounds: I) The learned trial court has lead to an affirmative finding in favour of the respondentsand this clearly indicates that the PWs 1 2 3 4 5 6 8 and 9 was the vital witnesses of this case. But the trial court did not considere the evidence of that PWs and arrived at wrong finding and hence liable to be set aside. II) The alleged offence committed on 30.11.2012 and it is settled law that it is not every and any plea of unsoundness of mind that will suffice for attracting Section 84 of IPC in the chapter of general exceptions the standard of proof to be applied shall be of legal insanity and not just medical insanity. The burden of proving that the case comes within the purview of general exception under Section 84 of IPC rests on the III) It was not proved that the accused was suffering from such legal insanity at the time of commission of offence to proof that by reasons of such unsoundness of mind he was incapable of knowing the nature of the Act or that he was doing what was either wrong or contrary to law. Therefore Section 84 of IPC cannot come in to play to the rescue of accused Mithun Das if otherwise his involvement in the commission of the alleged offence is established from the prosecution evidence. The condition precedent for taking plea of any of the general exception of the IPC is that the involvement of the person accused of the offence is either admitted or not denied. From The evidence of PWs 1 2 3 5 and 6 it is proved that the deceased was cruelly treated by all the accused persons on demand of money since after 15 days of her marriage till death and their evidence are consistent to each other. So charge under Section 498A IPC has duly proved. Admittedly the deceased was a married lady at the time of alleged incident. PW 1 Maheswar Das the informant herein deposed that the deceased is his younger daughter and her marriage was solemnized with the accused. PW 2 Rajesh Das PW 5 Gobardhan Das and PW 6 Chanchala Dashave also supported the fact of marriage and it was not disputed by the defence. Thus the first ingredient to constitute an offence of cruelty has been duly established. On the other hand learned counsel for the respondent in the present appeal opposing the submission of the learned Addl. P.P. contending that the evidence of aforesaid witnesses are not consistent to each other and merely on the basis of some omnibus statement no charge of cruelty can be established. Now it is the settled principle of law that allegation of cruelty has to be proved with material particulars. Omnibus statement of exercise of cruelty cannot prove the case. Here in the present case also this Court finds that there are certain omnibus statements in the evidence of close relatives of the victim without any material particulars to justify the nature of cruelty exercised upon the victim. Thus on the basis of evidence on records no conclusive findings can be arrived at to establish the charge of cruelty. In the result the accused persons are not found guilty under Section 498A of IPC. In the present case it has been observed that the accused was suffering from schizophrenia and was under treatment at Modern Psychiatric Hospital Narshingarh Agartala and to that affect a Board consisting of three doctors of Psychiatric department clearly observed that the accused was suffering from mental disorder and requires further observation as inpatient. But fact remains that prosecution failed to explain as to why the detail information and history of the patient was not supplied to the Board for further observation and to collect the necessary information about the exact period from which point of time he was suffering from mental disorder. It was the duty of the investigating officer to subject the accused for medical examination immediately and place that evidence before the Court but that was not done in the present case. Therefore it creates a serious doubt on the prosecution case for which the accused is liable to get benefit of Section 84 of IPC. In view of above and having regard to the entire evidence and materials on record I am of the opinion that prosecution has failed to prove the case beyond reasonable doubt and hence the order of acquittal recorded by the learned Sessions Judge does not deserve interference. Accordingly the criminal appeal filed by the State appellant stands dismissed. The Judgment and order of acquittal passed by the learned Sessions Judge is affirmed. Send back the L.C. records along with a copy of this judgment. As a sequel miscellaneous applications pending if any shall stand closed. JUDGE |
When an Arbitral Award exceeds the value of Rs.1,000/-, the stamp duty on the Award is payable only in terms of Clause (b) thereof; and Clause (a) would be applicable only when the Award does not exceed the value of Rs.1,000/- : Delhi High Court | There can really be no dispute to the fact that as per Article 12 of Schedule-1A, as amended vide the Indian Stamp (Delhi Amendment) Act, 2001, when an Arbitral Award exceeds the value of Rs.1,000/-, the stamp duty on the Award is payable only in terms of Clause (b) as upheld by the High Court of Delhi through the learned bench led by Hon’ble Ms. Justice Rekha Palli in the case of M/S. Indsao Construction Pvt. Ltd. V. The Collector of Stamp/ Sub-Divisional Magistrate (W.P.(C) 886/2021) The brief facts, leading to the filing of the present petition, are that an Arbitral Award, pertaining to a dispute between the petitioner company and M/s Baroda House NRGE CGHS, came to be passed on 11.10.2013. The Award was made on a non-judicial stamp paper of Rs.1,000/- with directions to the petitioner to have the amount of stamp duty payable thereon adjudicated by the Collector of Stamps. Consequently, on 07.11.2013, the petitioner filed an application before the respondent/Sub Divisional Magistrate, Dwarka for adjudication of stamp duty on the Arbitral Award. The said application came to decided vide the impugned order on 03.01.2020, whereunder the respondent has held that the petitioner was liable to pay stamp duty @ 2% on the awarded amount. While passing the impugned order, the respondent has placed reliance on a decision dated 03.02.2010 of a Co-ordinate Bench in OMP No. 78/2003 titled “Eider Pwi Paging Limited & Eider Pwi Communications Ltd. v. Union of India”. From a perusal of the facts and arguments, the Hon’ble Court held “I, therefore, have no hesitation in setting aside the impugned order and accepting the petitioner’s plea that it was liable to pay stamp duty only at @0.1% on the awarded amount, in accordance with Clause (b) of Article 12, Schedule 1-A. 11. The matter is, therefore, remanded back to the respondent for determining the stamp duty in accordance with the observations made hereinabove.” | IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 08.11.2021 W.P.(C) 886 2021 M S. INDSAO CONSTRUCTION PVT. LTD. Petitioner Through Mr. Prashant Kumar Mittal Adv. SUB DIVISIONAL Respondent Through Mr. Anuj Aggarwal ASC with Mr. Vikrant Chawla Ms. Ayushi Bansal and Mr. Vishesh Jagga Advs. HON BLE MS. JUSTICE REKHA PALLI REKHA PALLI JEven though despite opportunity no counter affidavit has been filed the matter is taken up for disposal with the consent of the parties. The brief facts leading to the filing of the present petition are that an Arbitral Award pertaining to a dispute between the petitioner company and M s Baroda House NRGE CGHS came to be passed on 11.10.2013. The Award was made on a non judicial stamp paper of Rs.1 000 with directions to the petitioner to have the amount of stamp duty payable thereon adjudicated by the Collector of Stamps. Consequently on 07.11.2013 the petitioner filed an application before the respondent Sub Divisional Magistrate Dwarka for adjudication of stamp duty on the Arbitral Award. The said application came to decided W.P.(C) 886 2021 DigitallySigned By:AWANISHCHANDRA MISHRASigning Date:09.11.202112:22:39Signature Not Verified vide the impugned order on 03.01.2020 whereunder the respondent has held that the petitioner was liable to pay stamp duty @ 2% on the awarded amount. While passing the impugned order the respondent has placed reliance on a decision dated 03.02.2010 of a Co ordinate Bench in OMP No. 78 2003 titled “Eider Pwi Paging Limited & Eider Pwi Communications Ltd. v. Union of India”. In support of the petition Mr. Mittal learned counsel for the petitioner submits that the impugned order is wholly perverse as while determining the payable stamp duty the respondent has erroneously applied the provisions of Clauseof Article 12 of Schedule 1A as amended vide the Indian StampAct 2001 to the petitioner’s case as against Clause under which the petitioner’s case was covered. The Award in question is admittedly for an amount more than Rs.1 000 and therefore the respondent has erred in applying Clause of Article 12 without appreciating the fact that Clause would be only applicable in a case where the amount under the Award does not exceed Rs.1 000 . He therefore contends that the petitioner was liable to pay the stamp duty only 0.1% in terms of Clauseof Article 12 of Schedule 1A of the Act. Learned counsel for the respondent is not in a position to dispute either the fact that the Award is for a value of more than Rs.1 000 or that Clauseof Article 12 is applicable to such cases where the Award is for a sum exceeding Rs.1 000 . Even though learned counsel for the respondent has not disputed the petitioner’s plea that Clause of Article 12 would be applicable to the present case for the sake of clarity the said provision is reproduced hereinbelow: W.P.(C) 886 2021 DigitallySigned By:AWANISHCHANDRA MISHRASigning Date:09.11.202112:22:39Signature Not Verified Description of Instrument Proper Stamp Duty Award that is to say any decision in writing by an arbitrator or umpire not being an award directing a partition on a reference made otherwise than by an order of this Court in the course of a suit a) Where the amount or value of the property to which the award relates are set forth in such award does not exceed Rs.1 000. b) If it exceeds Rs.1 000 but does not exceed Rs.5 000 and for every additional Rs.1 000 or part thereof in excess of Rs.5 000. The same duty as a Bond No.15) for such amount. One rupee for every one thousand of the value of the property to which the award relates. From a perusal of the aforesaid provision there can really be no dispute to the fact that as per Article 12 of Schedule 1A as amended vide the Indian StampAct 2001 w.e.f. 28.03.2001 when an Arbitral Award exceeds the value of Rs.1 000 the stamp duty on the Award is payable only in terms of Clausethereof and Clausewould be applicable only when the Award does not exceed the value of Rs.1 000 . 8. Moreover the reliance placed by the respondent on a decision of the Co ordinate Bench in OMP No. 78 2003 titled “Eider Pwi Paging Limited Eider Pwi Communications Ltd. v. Union of India” is also wholly misplaced. It appears that the said decision has been applied mechanically without even appreciating the fact that the issue raised in the said decision was not regarding as to which Clause of Article 12 would be applicable in a case where the Award is of a value of more than Rs.1 000 . W.P.(C) 886 2021 DigitallySigned By:AWANISHCHANDRA MISHRASigning Date:09.11.202112:22:39Signature Not Verified At this stage the petitioner also points out that the respondent has erroneously determined the payable stamp duty by applying Clause on the basis of an internal circular issued by the Govt. of India NCT of Delhi directing all SDMs to calculate the stamp duty payable on Arbitral Awards 2%. He submits that though a copy of the said circular is not available with the petitioner appropriate directions be issued to the respondent to correctly apply Clauseof Article 12 in all such cases where the Award exceeds the value of Rs.1 000 . I therefore have no hesitation in setting aside the impugned order and accepting the petitioner’s plea that it was liable to pay stamp duty only at @0.1% on the awarded amount in accordance with Clauseof Article 11. The matter is therefore remanded back to the respondent for determining the stamp duty in accordance with the observations made 12 Schedule 1 A. hereinabove. 12. However before concluding this Court is constrained to express its anguish in the lethargic manner in which the petitioner’s application has been dealt with by the respondent. The record shows that application for adjudication of stamp duty was preferred by the petitioner way back on 07.11.2013 to decide which the respondent took more than six years vide its impugned order which too as already held hereinabove is contrary to the plain language of Article 12 of Schedule 1 A itself. The respondent is therefore directed to determine the stamp duty payable by the petitioner on the Award dated 11.10.2013 within two weeks from the receipt of this order. 13. A copy of this order be sent to the Chief Secretary Govt. of NCT of W.P.(C) 886 2021 DigitallySigned By:AWANISHCHANDRA MISHRASigning Date:09.11.202112:22:39Signature Not Verified Delhi for information and appropriate action so that other similarly placed persons do not have to approach this Court on account of erroneous determination of stamp duty. REKHA PALLI) NOVEMBER 08 2021 W.P.(C) 886 2021 DigitallySigned By:AWANISHCHANDRA MISHRASigning Date:09.11.202112:22:39Signature Not Verified |
There is no need for interference when decision of the respondents to reject tender is well considered, based on a study, understanding of the relevant facts and legal opinion : Delhi High Court | Conflict of Interest is a complicated arena to justify and prove one’s true interests and intents. Therefore, the party that is questioning has the right to make a decision after sufficient research and understanding. This was held in the judgment passed by a two-judge bench comprising HON’BLE MR. JUSTICE VIPIN SANGHI HON’BLE MR. JUSTICE JASMEET SINGH, in the matter of STERLITE GRID 20 LIMITED V. PFC CONSULTING LIMITED & ANR [W.P.(C) 5768/2021 & CM APPLs.18096/2021 & 18781/2021], dealt with an issue where the petitioner filed a petition seeking that the court allows the Petitioner to participate in bidding process of the respondents. The Petitioner company (SGL 20) is a wholly owned subsidiary of Sterlite Power Transmission Limited. SPTL is a global developer of power transmission infrastructure with projects in India and Brazil. The commercial objectives of IndiGrid are, inter alia, to plan, promote, invest, own, construct, process, develop, maintain, manage, repair, accumulate, store, trade, lease, permit, license and operate all kinds of assets, designs, technologies and resources in relation to transmission of power, and generation and/or transmission of renewable energy. The Respondent No. 1 is PFC Consulting Limited. It is a wholly owned subsidiary of Power Finance Corporation Limited, which is a Schedule-A, Nav-Ratna Public Sector Enterprise. The Respondent No. 2 is U.P. Power Transmission Corporation. UPPTCL is engaged in acquiring, establishing and operating electrical transmission lines and network and associated sub-stations and connected ancillary services in the State of Uttar Pradesh. The Respondent No. 1 issued the RfQ (Request for Qualification), inviting responses from prospective bidders for shortlisting the bidders for the next stage of bidding i.e. Request for Proposal, as part of the process of selection of the prospective Transmission Service Provider (“TSP”) in accordance with the Tariff Based Competitive Bidding Guidelines for Transmission Service and Guidelines for Encouraging Competition in Development of Transmission Project issued by the Government of India, Ministry of Power. The Petitioner submitted its response to the RfQ. The Petitioner sought qualification on the basis of the technical and financial qualifications of its affiliate, Talwandi Sabo Power Limited (“TSPL”) for the purpose of meeting the qualification requirements under the RfQ. The Petitioner argued that the impugned decision is arbitrary, illegal and violative of Article 14 and 19(1)(g) of the Constitution of India. The Petitioner submitted that there was no “Conflict of Interest” between the Petitioner and the IGL. After hearing both the parties The Hon’ble Delhi High Court dismissed the petition and held that the respondent was not called upon to examine the situation at hand with a microscopic lens, and determine whether, as a matter of fact, information was exchanged. All that the respondent was required to examine was, whether, the two companies were in a position so as to have access to information of the other company with regard to their bids. In the light of the discussion above, we are of the view that the conclusion drawn by the respondent that both companies were in a position to access information of each other, was reasonable, well informed and justified. | 10 IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 5768 2021 & CM APPLs. 18096 2021 & 18781 2021 Pronounced on: Reserved on: 26.07. 2021 STERLITE GRID 20 LIMITED ..... Petitioner Through: Mr. Saurabh Kirpal Sr. Adv. with Mr. Gaurav Juneja Mr. Aayush Jain Ms. Swastika Chakravarti Advs. PFC CONSULTING LIMITED & ANR. ..... Respondents Through: Mr. Tushar Mehta Ld. SGI with Mr.Vijay Kundal Mr. Nitish K. Sharma Advs. HON BLE MR. JUSTICE VIPIN SANGHI HON BLE MR. JUSTICE JASMEET SINGH JUDGMENT OF THE COURT The present writ petition has been filed by the Petitioner seeking amongst others the following substantial reliefs: Issue a writ of Mandamus or any other appropriate writ(s) order(s) direction(s) directing the Respondent No. 1 to produce the entire record in so far as it pertains to the Impugned Decision dated 18.05.2021 of the Respondent No. W.P.(C) 5768 2021 1 to reject disqualify the bid submitted by the Petitioner in the tender to select a Transmission Service Provider to for Construction of 400 220 132kV GIS Substation Mohanlalganj with associated 400kV lines and other 765kV and 400kV LILO lines at 765kV GIS Substation Rampur and 400kV LILOat 400kV GIS Substation Sector 123 Noida Issue a writ of Certiorari or any other appropriate writ(s) order(s) direction(s) quashing the Impugned Decision dated 18.05.2021 taken by the Respondent No. 1 in respect of the above tender to the extent that the bid submitted by the consequently issue a direction to the Respondent No. 1 to allow the Petitioner to participate in the abovementioned bidding process ” Briefly stated the facts giving rise to the filing of the present writ petition are as follows: i) The Petitioner companyis a wholly owned subsidiary of Sterlite Power Transmission LimitedIndiGrid 1 Limitedis a company earlier known as Sterlite Grid 2 Limited which was subsequently acquired by IndiGrid Trust in June 2019. The commercial objectives of IndiGrid are inter alia to plan promote invest own construct process develop maintain manage repair accumulate store trade lease permit license and operate all kinds of assets designs technologies and resources in relation to transmission of power W.P.(C) 5768 2021 and generation and or transmission of renewable energy. The Respondent No. 1 is PFC Consulting Limitedwhich is a Schedule A Nav Ratna Public Sector Enterprise. The Respondent No. 2 is U.P. Power Transmission Corporation Limited PTC Mohanlalgunj dated 09.02.2021 UPPTCL notified the Respondent No. 1 as the Bid Process Coordinator for the purpose of selecting a Transmission Service for Construction of 400 220 132kV GIS Substation Mohanlalganj with associated 400kV lines and other 765kV and 400kV LILO lines at 765kV GIS Substation Rampur and 400kV LILOat 400kV GIS Substation Sector 123 Noida on build own operate and maintain basis. The Respondent No. 1 accordingly issued the RfQ on 12.02.2021 inviting responses from prospective bidders for qualifying shortlisting the bidders for the next stage of bidding i.e. Request for Proposal as part of the process of selection of the prospective Transmission Service Providerin accordance with the „Tariff Based Competitive Bidding Guidelines for Transmission Service‟ W.P.(C) 5768 2021 and „Guidelines for Encouraging Competition in Development of Transmission Projects‟ issued by the Government of India Ministry of The Petitioner submitted its response to the RfQ on 15.03.2021. The Petitioner sought qualification on the basis of the technical and financial qualifications of its affiliate Talwandi Sabo Power Limited for the purpose of meeting the qualification requirements under the RfQ. IGL1 also submitted its response to the RfQ in joint venture with Techno Electric and Engineering Company Ltd. Vide letter dated 07.04.2021 addressed to the Petitioner Respondent No. 1 sought certain additional information documents clarification. Vide the said letter the Respondent No. 1 sought clarification with regard to the relationship between the petitioner and IGL 1. 10) The clarifications sought by Respondent No.1 from the petitioner were as under: IGL 1 had claimed technical expertise of NRSS XXIX Transmission Limited which was earlier owned by Sterlite Power Grid Ventures Limitedand subsequently acquired by the India Grid Trustin June 2019ii) As per the balance sheet of IGL 1 for F.Y. 2019 2020 SPGVL was mentioned as shareholder of IGL 1 till 31.03.2020 iii) Sterlite Grid 20 Limited i.e. the Petitioner herein was the wholly owned subsidiary of SPGVL and had submitted a separate response to the RfQ iv) From the balance sheet of NRSS XXIX the Project Management Fee and Investment Management Fee paid to W.P.(C) 5768 2021 SPGVL qualified as a „Related Party Transaction‟ v) From the response submitted it appeared that SPGVL was the shareholder for both IGL 1 and SGL 20 which amounted to a relationship in terms of the definition of Conflict of Interest under the RfQ.” 11) The Petitioner was called upon to clarify the relationship between the Petitioner IGL 1 SPGVL and IGT along with documentary evidence to prove that there was no conflict of interest between the Petitioner and IGL 1. 12) On 08.04.2021 the Petitioner addressed an e mail to the Respondent No. 1 seeking time upto 13.04.2021 for the submission of its clarifications. However on 09.04.2021 the Respondent No.1 directed the Petitioner to submit its responses latest by 11:00 AM on 12.04.2021. In compliance the Petitioner vide letter dated 12.04.2021 clarified that it was incorporated as a wholly owned subsidiary of SPGVL. SPGVL was earlier a wholly owned subsidiary of SPTL but later got merged with SPTL pursuant to the approval of a scheme of merger between SPTL and SPGVL by the National Company Law Tribunal Mumbai on 15.11.2020. In terms thereof all the assets and liabilities of SPGVL became the assets and liabilities of SPTL. It was further clarified that Twin Star Overseas Limited a company incorporated under the laws of Mauritius holds 71.38% of equity stake in SPTL and Volcan Investment Limited a company incorporated under the laws of Bahamas holds 100% equity stake in Twin Star Overseas Limited. Thus Volcan Investment Limited was the Ultimate Parent Company of the Petitioner SGL 20. The Petitioner also provided the following responses to the specific queries clarifications sought by the Respondent No. 1 along with the relevant documents: W.P.(C) 5768 2021 IGL 1 was earlier a subsidiary of SPGVL and was transferred by SPGVL to IGT in June 2019. Thus as on 31.03.2020 IGL 1 ceased to be a subsidiary of SPGVL since it was already transferred way back in June 2019. Moreover as on 02.08.2019 IGT held 100% shares in IGL 1SGL 20 i.e. the Petitioner was 100% owned by SPTL and had submitted a proposal for the bid on 15.03.2021. Moreover none of SGL 20‟s affiliate parent ultimate parent as defined in the RfQ had submitted a separate response to the RfQ iii) Transfer of IGL 1 with NRSS XXIX was completed in June 2019. Post June 2019 SPGVL and NRSSXXIX ceased to be related parties under the provisions of the Companies Act 2013 iv) That neither the Petitioner nor any of its parent companies had any relationship with IGL 1 or any of its parent companies either directly or through a common company that put them in a position to access confidential information or influence the bidding of each other That SGL 20 and IGL 1 were not affiliates. vi) That SPTL holds 0.35% stake in IGT.” 14) Respondent No. 1 after scrutinising the clarifications additional information submitted by the Petitioner sought further clarification on 12.04.2021 with respect to the Petitioner‟s response dated 12.04.2021. The Respondent No. 1 sought the following additional information latest by 3:00 PM on 13.04.2021: “(i) Details of balance shareholding of SPTL given that 71.38% equity was held by Twin Star Overseas Limited ii) Board members of Volcan Investment Limited Twin Star Overseas Limited SPTL the Petitioner NRSSXXIX and the W.P.(C) 5768 2021 Trustees Key Managerial Personnel of IGT ” 15) The information as sought by Respondent No. 1 was duly provided by the Petitioner on 13.04.2021. As regards the details of Board Members Trustees of NRSS XXIX and IGT it was stated that the Petitioner had no access to the information pertaining to these entities. It was confirmed that none of the representatives of the Petitioner was on the board of NRSS XXIX IGL 1 or IGT. 16) On 15.04.2021 the Respondent No.1 further sought additional information from the Petitioner to be provided latest by 16.04.2021: “(i) List of Directors Key Managerial Personnel of Petitioner ii) List of Directors of all the parent affiliate companies of the Petitioner e.g. Directors of SPTL Twin Star Overseas Limited Volcan Investment Limited etc. iii) Key Managerial Personnel of the parent affiliate companies of the Petitioner.” 17) The Petitioner vide email dated 16.04.2021 and 20.04.2021 duly provided the information as sought by respondent No.1. 18) Even though no further clarifications were sought by the Respondent No. 1 the Petitioner on its own addressed a letter dated 11.05.2021 to the Respondent No.1 requesting for a personal hearing to present its responses on the observations of the Respondent No. 1 and clarify the issue in further detail. 19) The Petitioner has stated in the petition and also argued before us: A. As on 02.08.2019 IGT held 100% shares in IGL 1. IGT is W.P.(C) 5768 2021 registered with the Securities and Exchange Board of Indiaas an Infrastructure Investment Trust under Regulation 3(1) of the SEBI Regulations 2014of IGT and as mentioned earlier holds a nominal 0.35% stake in IGT. B. Indigrid Investment Managers Limited(earlier known as Sterlite Investment Managers Limited) the „Investment Manager‟ of IGT in terms of InvIT Regulations. SPTL holds 40% stake in IIML and the Managing Director of SPTL is also a Non Executive Director on the Board of IIML as a nominee of SPTL. A Bidding Committee was constituted by IIML in August 2020 specifically for taking bidding and investment decisions. IIML made sure that SPTL‟s nominee was excluded from the Bidding Committee to preserve confidentiality and avoid any „access‟ to information. As a result SPTL‟s nominee was not even on the Bidding Committee which was responsible for any bid decisions on behalf of IGT its subsidiaries. There could not have been any question of a Conflict of Interest between the IGL 1 Consortium and the Petitioner in these circumstances. In fact even the Code of Conduct prescribed under Schedule VI of the InvIT Regulations mandates that the InvIT and the parties thereto shall try to avoid conflicts of interest as far as possible in managing the affairs of the InvIT and keep the interest of all unit holders paramount in all matters. W.P.(C) 5768 2021 C. The IGL 1 Consortium withdrew its bid response to the Project on 18.05.2021. Thus the question of conflict of interest in any event did not survive. 20) On the same day as IGL 1 Consortium withdrew its bid response i.e. 18.05.2021 Respondent No.1 issued the impugned decision stating: “…The bids of the following two bidders are not qualified at RfQ stage for participation in next stage of bidding i.e. RfP stage as both bidders having a conflict of interest which puts them in a position to have access to information of the other Bidder and as per clause 2.1.5 of the RfQ the bids of both bidders are rejected: 1. IndiGrid 1 Limited & Techno Electric and Engineering Company Ltd. Consortium 2. Sterlite Grid 20 Limited” 21) The Petitioner has argued that the impugned decision is arbitrary illegal and violative of Article 14 and 19(1)(g) of the Constitution of India. The Petitioner submits that there was no “Conflict of Interest” between the Petitioner and the IGL 1. The Petitioner further submits that Clause 2.1.5 of the RfQ categorically defines “Conflict of Interest” and the Petitioner and IGL 1 were in no way in a position to access each other‟s commercial information or influence each other‟s commercial decisions. It has been further submitted that the Bid Evaluation Committee BEC) on 28.04.2021 had taken a decision to reject the Petitioner‟s response. However the Board of Respondent No.2 took cognizance of the same after 2 weeks i.e. on 15.05.2021 clearly showing that the justification offered by Respondent No.1 is false suspicious and concocted. The said decision was communicated to the Petitioner only on 18.05.2021. W.P.(C) 5768 2021 It is further submitted that after withdrawal of bid by IGL 1 Consortium there was no “Conflict of Interest” and the withdrawal of bid by IGL 1 on 17.05.2021 was not taken into account before issuance of the impugned decision. 2.1.5 of RfQ is misplaced. 24) The Petitioner submits that the reliance of Respondent No.1 on Clause It has further been submitted that the Bidding Committee was formed by IIMLin August 2020 for taking bidding and investment decisions and SPTL‟s nominee was specifically excluded from the Bidding Committee formed by IIML to preserve confidentiality and avoid any access to information. As a result SPTL‟s nominee was not even in the Bidding Committee responsible for any bid decisions on behalf of the IGT its subsidiaries. There could not have been any question of a Conflict of Interest between the IGL 1 Consortium and the Petitioner in these circumstances. 26) The respondents have filed a counter affidavit and stated in their response that the bids were opened online at MSTC portal on 15.03.2021 at 15:30 hrs in the presence of the representatives of the Bidders who wished to be present. Simultaneously the hard copies of RfQ responses were also opened by BPC. Thereafter on evaluation of the RfQ received from IGL 1 & Techno Electric and Engineering Company Limited Consortiumthe Respondent No. 1 found that SPGVL was mentioned as a shareholder of IGL 1 till 30.03.2019. Further as per the Financial Statements of IGL 1 from June 2019 the shares which were held by SPGVL in IGL 1 have been transferred to India Grid Trust5768 2021 27) On evaluation of the RfQ received from the Petitioner BPC found that SPGVL is a 100% shareholder in the Petitioner and subsequently SPGVL got merged into SPTL in November 2020. It is in this context that various queries and clarifications were sought by Respondent No.1. Similar queries were also put to IGL 1 on 07.04.2021 12.04.2021 and 15.04.2021. 28) After examining the reply by IGL 1 it transpired that Mr. Pratik Pravin Agarwal is a Non Executive Director of the Indigrid Investment Managers Limited and also the Managing Director of SPTL. It was only then that IGL 1 disclosed the factum of Mr. Pratik Pravin Agarwal being Non Executive Director of IIML and also disclosed that SPTL is a sponsor of IGT. It has been further stated that the Energy Department Govt. of UP vide office order dated 04.05.2018 had intimated the constitution of Bid Evaluation Committee for transmission projects to be taken by Respondent No. 2. The BEC is constituted by the State Government in case of intra state transmission of electricity. The BEC comprises of the members who possess the technical and financial expertise for bid evaluation. The composition of the BEC has been disclosed which comprises of the following: “i) Chairman UPPTCL Lucknowii) Managing Director UPPTCL Lucknow Sh. Senthil Pandian C. IAS) iii) Managing Director UPPCL Lucknow DirectorUPPTCL LucknowDirectorUPPTCL LucknowW.P.(C) 5768 2021 vi) Director UPPTCL Lucknow DirectorUPPTCL Lucknowviii) Director UPPTCL Lucknow DirectorUPPTCL Lucknowxi) One member from CEACEA")” 30) The BEC in its meeting dated 15.04.2021 reviewed the responses to the RfQ submitted by the 8 bidders in the context of the provisions of RfQ and decided that the following 5 bidder met all the qualification and compliance requirements as per the RfQ: “i) Power Grid Corporation of India Limited Torrent Power Limited iii) Renew Transmission Ventures Private Limited iv) DBL Transmission Private Limited Kalpataru Power Transmission Limited” 31) As regards the remaining 3 bidders the BEC advised the BPC as “i) Adani Transmission Limited: To seek clarification from the bidder w.r.t. board resolution authorizing Mr. Anil Kumar Sardana MD & CEO to sign the specific format of the bid IndiGrid 1 Limited and Sterlite Grid 20 Limited: To legally examine the aspects of common directors on the boards of “IndiGrid 1 Limited” W.P.(C) 5768 2021 “Sterlite Grid 20 Limited” and their parent companies with respect to the provisions of RfQ.” 32) Consequently based on the examination of the issue the BEC in its meeting dated 28.04.2021 decided on the rejection of bids of the Petitioner and IGL 1. BEC before taking the decision sought legal opinion from M s 33) The grounds for rejection given by the Committee against the Petitioner are as under: As per the definition of RFQ “Conflict of Interest A bidder shall be considered to be in a Conflict of Interest with one or more Bidders in the same bidding process if they have a relationship with each other directly or through company that puts them in a position to have access to information about or influence the Bid of another Bidder.” b. Mr. Pratik Agarwal being the Non Executive Director of Investment Manager of IGT which is a holding company of Indigrid 1 Limited and Managing Director of Petitioner’s holding company is in a position to have access to information of both the bidders. It qualifies under “conflict of interest” as both the bidders have a relationship with each other through Mr. Pratik Agarwal. As per Clause 2.1.5 of the RFQ if any bidder is having a Conflict of interest with other bidders participating in the same bidding process the bids of all such bidders shall be rejected.34) Thereafter the board of Respondent No. 2 took cognizance of the decision of BEC on 15.05.2021 and informed the Respondent No. 1 of the same on 17.05.2021 and accordingly the Respondent No. 1 informed the W.P.(C) 5768 2021 qualification status of the bidders at the RfQ level to all the bidders and uploaded the same on the website on 18.05.2021. 35) The respondents point out that the Petitioner sought to contend that Indigrid 1 Limited vide its letter dated 18.05.2021 had informed the Respondents that they are withdrawing their proposal in response to RfQ and their submission of RfQ should not be treated as a qualification citing COVID 19 affecting their team members. In response the Respondent No. 1 replied vide its letter dated 27.05.2021 to the Petitioner stating that: “a. The withdrawal of the Bid by IGL 1 has been done on 18.05.2021 which is after the decision on qualification status had already been taken by the BEC on 28.04.2021 so the same becomes infructuous and cannot be taken into consideration. b. Further there is no provision in the RfQ document for withdrawal of Bid. Therefore the letter of IGL 1 Limited dated 18.05.2021 is void.” 36) The Respondent has further stated that the project is of national importance and the timeline of the bidding process is underway as follows: Time from Zero Actual Anticipated timeline for present UPPTCL Project Publication of RFQ Zero Date Submission of Responses of 30 days Short listing based on 60 days Issuance of RFP Pre Bid Meeting W.P.(C) 5768 2021 Bid clarification conferences Final clarification and revision of RFP 85 days Technical and price bid submission 120 days e reverse bidding after opening of initial Price Offer Short listing of bidder and issue of LOI 127 days 135 days 13.08.2021 Signing of Agreements 145 days And on the date of hearing the technical and price bid submission were 37) The respondents further submit that keeping in view the increasing electricity consumption load in the near future in Lucknow & its adjoining area the substation at Mohanlalganj is urgently required to be installed to take care of the overloading of the existing substation and lines to provide uninterrupted electricity supply. 38) We have heard learned senior counsels for the parties and the case laws cited by them. Analysis and Conclusion of the Case: The short point that arises for our consideration is: whether the reasoning adopted by BEC and subsequently confirmed by Respondent No.2 for disqualifying the petitioner on the ground of there being conflict of interest between the two bidders viz. the petitioner and IGL 2 is reasonable and rational based on the relevant information provided by the parties and not hit by malafides arbitrariness and the Wednesbury principle of unreasonableness. W.P.(C) 5768 2021 At this stage we may notice the relevant clauses of the Request for Qualification. Clause 2.1.5 of the RfQ reads as under: “A Bidder shall submit only one response in the same bidding process either individually as Bidding Company or as a Member of a Bidding Consortium “Conflict of Interest” has also been defined in the RfQ as under: “A Bidder shall be considered to be in a Conflict of Interest with one or more Bidders in the same bidding process if they have a relationship with each other directly or through a common company that puts them in a position to have access to information about or influence the Bid of another Bidder ” underlining supplied) On the basis of the information provided by the petitioner the respondents have graphically depicted the inter se relationships between the different corporate entities. There is no dispute raised by the petitioner to the said tabulation in so far as the structure relationships as depicted is concerned though the petitioner claims that the said Mr. Pratik Pravin Agarwal who was found to be a common Director on the Board of Directorsof STPL and the BOD of IIML was not involved in the decision making process of IGL 1 with regard to bidding and investment. The relationship between Petitioner and IGL 1 highlighting the position of Mr. Pratik Pravin Agarwal in IIML and SPTL is as under: W.P.(C) 5768 2021 W.P.(C) 5768 2021 1. During course of arguments it has been submitted by the learned Solicitor General that the fact that SPTL held 40 % share in IIML was not known to the Respondent No.1 at the time of rejection of the bid of the Petitioner and hence did not form part of the decision making process. Clause 2.1.5 categorically states that in the event of “Conflict of Interest” the bids of the bidders shall be rejected. The bid of the Petitioner has been rejected due to conflict of interest between the Petitioner and IGL Conflict of interest as conceptualized in the RfQ is wide and encompassing. The key words used in the “Conflict of Interest” Clause are “relationship with each other” and “that puts them in a position to have access to information about”. The scope of judicial scrutiny in disputes arising out of rejection award of public tenders is limited. We cannot examine the decision on its merits. We are primarily concerned with the decision making process. Thus we are only to see whether the decision of BEC as affirmed by the Respondent is reasonable non arbitrary and if mala fides are alleged whether the same is mala fide. Thus we need to examine whether the decision of the respondents to invoke Clause 2.1.5 is a plausible and reasonable view. If it is then no interference would be called for. Coming back to the facts of the present case to determine whether the petitioner and IGL 2 had conflict of interest on the advice of the BEC legal opinion was sought by the respondent from M s SRGR to the following “i) As per the provisions of the RfQ is there a conflict of interest W.P.(C) 5768 2021 between “IndiGrid 1 Ltd. Whether there is a direct or indirect relationship between IndiGrid 1 Ltd. And Sterlite Grid 20 Ltd. which is such that it puts them in a position to have access to information about or influence the Bid of the other iii) Access of information by Mr. Pratik Pravin Agarwal who is Non Executive Director of the Board of IndiGrid Investment Management Limited and also Managing Director of SPTL holding company of Sterlite Grid 2 Limited). iv) What are the provisions as per the RfQ if there is a conflict of interest between two bidders ” 10. On the advice of the Legal Advisor additional clarifications were also sought from IGL 1 and Sterlite Grid 20. The Legal Advisor opined as under: “5. BPC informed that on the advice of Legal Advisor additional clarifications were sought from IndiGrid 1 Limited and Sterlite Grid 20 Limited. The responses received from both the bidders were examined by the Legal Advisor. The brief of the opinion is given below: As per the information submitted by IndiGrid 1 Limited and Sterlite Grid 20 Limited it may be seen that the two bidders are not “Affiliates” within the meaning of the RFQ document. SPTL holds 0.35% unit in the IndiGrid Trustwhich is less than the threshold required as per the RFQ document. As per information provided by Sterlite Grid 20 Ltd. Mr. Pratik Agarwal is the Managing Director of SPTL which is the holding companyof Sterlite Grid 20 Ltd. iii) As per information provided by IndiGrid 1 Limited India Grid Trust holds 100% equity in IndiGrid 1 Limited5768 2021 Consortium). India Grid trust is a trust established Investment Trusts) under SEBI Regulations 2014. Further as per SEBI regulations IndiGrid Investment Management Limitedhas been appointed as the Investment Manager of India Grid Trust and Mr. Pratik Agarwal is the Non Executive Director of IIML. As per regulation 10 of SEBI Regulations the rights the present Memorandum) of the Investment Manager inter alia investment manager shall make investment decisions with respect to the underlying assets or projects of the InvIT including any further investment or disinvestment of the assets. The investment manager shall submit to the trustee the decision to acquire or sell or develop or bid for any asset or project or expand existing completed assets or projects along with rationale for the same Further IndiGrid 1 Limited clarified that “Mr. Pratik Agarwal is not involved in any manner relating to IndiGrid IGL1‟s participation in the bid. In course of being on Investment Manager and IIML has constituted an independent bidding committee which is responsible for taking all decisions with respect to participating in bids for transmission projects by IndiGrid. This committee has no representative from Sterlite Power. Consequently Mr. Pratik Agarwal not to any documentation or discussion transpires at the bidding committee.” IndiGrid vi) As per the Companies Act 2013 read with SS 1 the Directors have right to inspect the minutes of the board meeting as well as the committee meetings and there are no specific provisions which provide for W.P.(C) 5768 2021 exclusion of an interested Director from inspecting Minutes of Board and Committee meetings. A Director is privy to the Minutes of Board and Committee Meeting in view of statutory provisions and is entitled to inspect Minutes of meetings”. emphasis supplied) 11. Hence as per the opinion of the Legal Advisor Mr. Pratik Pravin Agarwal was in a position to access information of the two bidders and this “amounts to a conflict of interest between Sterlite Grid 20 Ltd. and IndiGrid 1 Ltd”. twin questions before us 12. Mr. Saurabh Kirpal Ld. Senior Counsel for the Petitioner had raised a. Whether in case of common directors in two corporate entities flow of information of one company to the other company can be imputed b. Whether any information had been disclosed between the two companies in question i.e. the petitioner and IGL1 13. Mr. Kirpal has relied upon the following judgments to substantiate his arguments The Texas Company v. The Bombay Banking Company Limited Privy Council)1 T.R. Pratt Ltd. v. E.D. Sassoon & Co Ltd. Bombay High Court)2 T.R. PrattLtd. v. E.D. Sassoon & Co. Ltd. Bombay High Court)3 Halifax Mortgage Services Ltd. v. Stepsky and Anr. Chancery Division)4 Halifax Mortgage Services Ltd. v. Stepsky and 1 AIR 1919 PC 20. 2 ILR60 Bom 326. 3 ILRBom 421WLR 701. W.P.(C) 5768 2021 Anotherit was observed by relying on Cave v. Cave and Young v. David Payne & Co. that “I understand the law to be this: that if a communication be made to an agent which it would be his duty to hand on to his principals.......and if the agent has an interest which would lead him not to disclose to his principals the information which he has thus obtained and in point of fact he does not communicate it you are not to impute to his principals knowledge by reason of the fact that their agent knew something which it was not his interest to disclose and which he did not disclose.” emphasis supplied) 16. Young v. David Payne & Co was also relied upon in Sri Meenakshi Mills Ltd. and Other vs. Commissioner of Income Tax Madras and the same position was accepted in Commissioner of Income Tax Madras vs. Sri Meenakshi Mills Ltd. & Others. In the former case the Madras High Court 5 1996WLR 230. 62 Ch. 608. 750 ITR 769. 81 SCR 934. W.P.(C) 5768 2021 observed the following “20. Mr. Venkataraman learned counsel for the assessees has referred to In re David Payne & Co. Ltd.1 That was a case where it had to be considered whether when a director of a company knew in his private capacity that another company to which money was to be advanced intended to utilise that money outside the scope of its business such knowledge could be imputed to the company of which he was a director. It was held that it could not be so imputed. It is not necessary to refer to the details of the reasoning of the learned judges. The position here is analogous and even if Thyagaraja Chettiar as one of the directors of the assessee mills knew in his capacity as the director of the Madurai Bank that the money placed in fixed deposit by the mills would be transferred to the taxable territory that knowledge could not be imputed to the assessee mills much less can it be said that the transfer was part of the integral arrangement of the loan transaction.” 5768 2021 as the Committee Meetings and it has not been shown by Mr. Kirpal that there is any specific legal provision which provides for exclusion of an interested Director from inspecting the Minutes of the Board of Directors and Committee Meetings. A Director has access to the Minutes of the Board and Committee Meetings under the statutory scheme contained in the Companies Act 2013 and therefore the potential of communication of information relating to bidding in commercial investment matters between the petitioner and the IGL1 was very much present on account of the presence of the common Director Mr. Pratik Pravin Agarwal on the Board of the petitioner company as well as on the Board of Directors of the investment company i.e. IIML which was managing investments of the Indiagrid Trust and which in turn wholly owns and controls IGL1. 18. The Division Bench of Calcutta High Court in M s Sharma Transport v. Coal India Limited and Other9 has succinctly described the extent of judicial review in tender matters. Following is the observation of the Ld. High Court “41. Tender matters are not decided by running a fine tooth comb over the process to discover which „i‟ has not been dotted or which „t‟ not crossed. The writ court always maintains a dispassionate distance from the process and in course of the adjudication does not imagine itself being in the position of the tender committee or as evaluators of the bids. It is only if the writ court finds the decision or the decision making process to be utterly illegal or patently irrational or totally unreasonable that it would seek to intervene. If an executive authority has jurisdiction has adopted a reasonable acted within 9 FMA No. 21118 with CAN No. 31718 dated 14.12.2018. W.P.(C) 5768 2021 procedure and has rendered a cogent decision at the end of the process: the writ court will ask for nothing more…..” 19. Additionally the Supreme Court in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd. & Anr.10 while relying on Central Coalfields Ltd. v. SLL SML SCC 818. 11 2016SCALE 99 8 SCC 622. W.P.(C) 5768 2021 a common director i.e. Mr. Prateek Agarwal as the Non executive Director of IIMLand also as Managing Director of SPTL that holds 100% in Sterlite Grid 20 and 40% in IIML) indeed puts both the companies in a position to access information of each other. It is important to reiterate that the respondent was not called upon to examine the situation at hand with a microscopic lens and determine whether as a matter of fact information was exchanged. All that the respondent was required to examine was whether the two companies were in a position so as to have access to information of the other company with regard to their bids. In the light of the discussion above we are of the view that the conclusion drawn by the respondent that both companies were in a position to access information of each other was reasonable well informed and justified. 23. Hence we do not find any unreasonableness arbitrariness malafides or perversity in either the decision making process or the decision of the Respondent. We find the decision of the respondents to be well considered based on a study and understanding of the relevant facts and based on the legal opinion. The same is reasonable and rational and within the ambit of clause 2.1.5 of the RfQ. 24. Therefore for the reasons stated above the petition is dismissed for lack of merit in the present petition. The parties are left to bear their respective costs. VIPIN SANGHI J SEPTEMBER 10 2021 „ms‟ JASMEET SINGH J W.P.(C) 5768 2021 |
Ashok Kumar v. DG. BSF Case doesn’t create a rule for leniency to intoxicated BSF personnel with mental tension: Delhi High Court | The issue is whether a Border Security Force (BSF) personnel, being under intoxication due to mental tension and who misbehaves with the superior officers deserve leniency as per the case of Ashok Kumar v. DG. BSF. This was clarified in the case of Guddu Kumar v. Union of India and Others, in W.P.(C) 13572/2021, decided by Hon’ble Mr. Justice Manmohan & Hon’ble Mr. Justice Navin Chawla on December 1, 2021. Facts of the Case: The petitioner to the case being a Border Security Force personnel was dismissed from the service through an order dated 29.12.2020 passed by the Commandant 148 BN, Border Security Force (BSF). Another order dated 13.04.2021 passed by respondent no. 3, dismissing the representation of the petitioner against the order of removal from service; and another order dated 09.06.2021 was passed by respondent no. 2 on the ground that under Section 117 of the Border Security Force Act, 1968 read with Rule 167(2) of the Border Security Force Rules, 1969, a person aggrieved by any order passed by the Summary Security Force Court (SSFC) can present only one petition to any of the officers. Aggrieved by the aforementioned orders, the petitioner had filed this Writ Petition seeking relief. Contentions of the Petitioner (Guddu Kumar): The counsel for petitioner contended that a total of six charges were framed viz. intoxication while on duty, misbehaved and abusing the senior officers, use of threatening language, unauthorized possession of liquor and mobile phone, and refusal to sit in the ambulance for medical tests. The learned counsel for the petitioner submits that the petitioner was forced to enter a plea of guilty on the six charges against him and on the basis of this forced plea of guilt entered by the petitioner, the SSFC held the petitioner to be guilty of the charges framed against him without recording any evidence. The petitioner referred to the case of Ashok Kumar v. DG. BSF & Ors. (W.P. (C) 2145/1998) where it is submitted that the petitioner was suffering from mental tension as his father was hospitalized and he doesn’t know about the situation and in duress had consumed alcohol and therefore, deserved leniency. Contentions of the Respondent (BSF & UOI): The learned counsel for the respondent contended that the petitioner was found to be under the influence of alcohol and used threatening and insubordinate language to his superior officers. The above charges framed against the petitioner are extremely grave. The same clearly reflect gross indiscipline on part of the petitioner. The petitioner is a member of a disciplined force and was found to be indulging in these activities while being on duty. Moreover, the admission of guilt was not forced as the petitioner has appended his signature on the proceeding sheet. The proceeding sheet also records that the petitioner was warned of the repercussion of such admission. The said proceedings are dated 29.12.2020 and surely the petitioner understood the same. Judgment by the Court: After considering the submissions made by the parties, the Court held that the charges against the petitioner are of grave nature and the penalty imposed on the petitioner is not disproportionate. The observation of this Court in Ashok Kumar case cannot be considered as having laid down as a rule that in every case where an officer of Armed Force is found to be intoxicated on duty and indulging in unruly behavior, he would deserve leniency. Therefore, no merits are found in the present petition. The same is dismissed. | IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 1st December 2021 W.P.(C) 13572 2021 GUDDU KUMAR Petitioner UNION OF INDIA &ORS. Through Ms. Saahila Lamba Advocate Respondents Through Mr. V.N. Goyal Advocate HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA NAVIN CHAWLA J.This petition has been filed by the petitioner challenging the order dated 29.12.2020 passed by the Commandant 148 BN Border Security Force directing the dismissal of the petitioner from service the order dated 13.04.2021 passed by the respondent no. 3 dismissing the representation of the petitioner against the above order of removal from service and the order dated 09.06.2021 passed by the respondent no. 2 wherein the representation of the petitioner for setting aside the impugned order dated 29.12.2021 was again dismissed on the ground that under Section 117 of the Border Security Force Act 1968 read with Rule 167(2) of the Border Security WP(C) 13572 2021 Force Rules 1969 a person aggrieved by any order passed by the Summary Security Force Court hereinafter referred to as ‘SSFC’) can present only one petition to any of the officers mentioned in Section 117 of the Act and since the petitioner had already availed said opportunity by submitting a statutory petition to the respondent no. 3 which was duly considered there is no provision to entertain another representation in the same It is the case of the petitioner that a hearing under Rules 45 45A 45B of the Rules was conducted against the petitioner on 18.12.2021 on six charges viz.on 16.12.2020 at about 1845 hours while on duty the petitioner was found in a state of intoxication on 16.12.2020 at about 1845 hours while on duty the petitioner misbehaved and abused Insp Offg Coy Commander Sunil Yadav on 16.12.2020 at about 1845 hours while on duty the petitioner used threatening language against Const GD P M Rao on 16.12.2020 at about 1845 hours while on duty the petitioner was found in unauthorized possession of a pouch of 180 ml Officer Choice whiskey on 16.12.2020 at about 1845 hours while on duty the petitioner was found in possession of mobile phone which is against the instructions andon 16.12.2020 at about 2130 hours while on duty the petitioner refused to sit in the ambulance for proceeding for his medical test despite order by SI Ganpat Lal to do so. The charges so framed were corroborated by six witnesses and vide order dated WP(C) 13572 2021 18.12.2020 a Record of Evidence was directed to be prepared against the petitioner. On 29.12.2020 after the preparation of the Record of Evidence the SSFC was conducted against the petitioner wherein he was found guilty on all six of the aforementioned charges. The petitioner is alleged to have admitted to being guilty of the six charges hence the order of dismissal from service was passed. The learned counsel for the petitioner submits that the petitioner was forced to enter plea of guilty on the six charges against him and on the basis of this forced plea of guilt entered by the petitioner the SSFC held the petitioner to be guilty of the charges framed against him without recording any evidence whatsoever and awarded the sentence of dismissal from service to the petitioner. She further submits that the petitioner did put on record his version of the events by admitting to consuming liquor on 16.12.2020 as he claimed to be under duress due to his father’s hospitalization and was not aware of what happened. The learned counsel for the petitioner contends that this admission is only with respect to the first charge framed against the petitioner that is intoxication and not qua the remaining five charges. Placing reliance on the judgment dated 11.07.2011 of this court in Ashok Kumar v. DG. BSF & Ors.2145 1998) she submits that the petitioner was suffering from mental tension and therefore deserved leniency. She submits that the punishment of dismissal from service is therefore disproportionate. WP(C) 13572 2021 5. We have considered the submissions made by the learned counsel for the petitioner and find no merit in the same. The charges found against the petitioner to be proved is that while being deputed on duty on 16.12.2020 the petitioner was found to be under the influence of alcohol and used threatening and insubordinate language to his superior officers. The above charges framed against the petitioner are extremely grave. The same clearly reflect gross indiscipline on part of the petitioner. The petitioner is a member of a disciplined force and was found to be indulging in these activities while being on duty. Moreover we find no merit in the argument by the learned counsel of the petitioner that the admission of guilt was forced as the petitioner has appended his signature on the proceeding sheet. The proceeding sheet also records that the petitioner was warned of the repercussion of such admission. The said proceedings are dated 29.12.2020 and surely the petitioner understood the same. In Union of India & Ors. vs. Diler Singh 13 SCC 71 the Supreme Court has held that unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks conscience of the Court there is no scope for interference. When a member of the disciplined force deviates to such an extent from the discipline it is difficult to hold that punishment of dismissal is disproportionate or shocking to the judicial conscience. WP(C) 13572 2021 In Union of India & Ors. vs. Lt. Col. Kuldeep 10 SCC 449 the Supreme Court reiterated that though the Tribunal Court is competent and empowered to interfere with the punishment awarded by the appropriate authority in any departmental action on the ground of the same being excessive or disproportionate to the misconduct proved against the delinquent officer however exercise of such power is circumscribed and can be invoked only in exceptional and rare cases when the punishment awarded by the Disciplinary Authority shocks the conscience of the Tribunal Court or is so unreasonable that no reasonable person could have taken such an action. The Tribunal Court cannot act as a court of appeal and substitute its own view and findings by replacing the subjective satisfaction arrived at by the competent authority in the backdrop of the evidence on record. In the present case as noted hereinabove the charges against the petitioner are of grave nature and we do not find the penalty imposed on the petitioner to be disproportionate. 10. The observation of this court in Ashok Kumar cannot be considered as having laid down as a rule that in every case where an officer of Armed Force is found to be intoxicated on duty and indulging in unruly behavior he would deserve leniency. WP(C) 13572 2021 11. We therefore find no merit in the present petition. The same is dismissed. There shall be no order as to cost. NAVIN CHAWLA J MANMOHAN J DECEMBER 1 2021 AB WP(C) 13572 2021 |
The totality of the circumstances deserves to be seen before a person is granted or denied anticipatory bail: Delhi High Court | Nothing has been shown to the Court in the form of any cogent and primfacie evidence which could show that he has threatened anybody or tried to tamper with the evidence. Having regard to the facts and circumstances of this case, the petitioner is admitted to anticipatory bail. This was said in the case of Ameet Khandelwal vs State Of Nct Of Delhi [BAIL APPLN. 1162/2021] by Mr. Justice Rajnish Bhatnagar in the High Court of Delhi The facts of the case are that a bail application has been filed on behalf of the petitioners under Section 438 Cr.P.C seeking anticipatory bail in connection with an FIR registered under Sections 376/506/509 IPC. It was filed after Court of Sessions dismissed his anticipatory bail application on 01.04.2021, holding that the allegations against the petitioner are serious and it is not a fit case for grant of anticipatory bail. The petitioner contended that the petitioner has been falsely implicated in the instant case subsequent to being regularly threatened implications in false cases. It is further contended that the FIR are highly improbable and cannot be believed as no dates, day, time has been mentioned about the incidents. It is further submitted that delay in filing FIR after 7 months of the alleged incident under a well planned strategy to extort money from the petitioner and to take revenge from the petitioner for the cases filed by him for redressal of bonafide grievances as the owner of the company. On the other hand, the respondent contended that the allegations against the petitioner are grave and serious in nature. It is further contended that the accused/petitioner may not be available for the trial as he has mentioned different addresses in the bail petition and there are chances that he may flee from the justice. As regard the delay in lodging the FIR, it is submitted that the complainant remained silent to save the matrimonial trauma of her mother and the marriage of the complainant was fixed during that period and if the fiance of the complainant would have come to know about the incident, he would have broken the relationship The Court referred to the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra [(2011) 1 SCC 694] wherein it was said that “Court should be loath to reject the grant of anticipatory bail in as much as it impinges on the personal liberty of a person. Meaning thereby, unless and until there is an imminent and a great imperative to have a custodial interrogation of an accused, the anticipatory bail does not deserve to be denied”. | VIA VIDEO CONFERENCING IN THE HIGH COURT OF DELHI AT NEW DELHI STATE OF NCT OF DELHI BAIL APPLN. 1162 2021 Date of Decision : 23.04.2021 Through: Mr. Sudhir Nandrajog Sr. Adv. with Setu Niket Ms Mazumdar Ms. Avani Kaushal Ms. Salonee Keshwani Advocates Through: Ms. Manjeet Arya APP for the State with SI Anil Kumar PS. Greater Ms. Tanessa Puri Advocate HON BLE MR. JUSTICE RAJNISH BHATNAGAR RAJNISH BHATNAGAR J.1 SCC 694 has laid down that the Court should be loath to reject the grant of anticipatory bail in as much as it impinges on the personal liberty of a person. Meaning thereby unless and until there is an imminent and a great imperative to have a custodial interrogation of an accused the anticipatory bail does not deserve to be denied In the instant case there is no denial to the fact that the petitioner and his wife who is the mother of the complainant are involved in various litigations amongst each other. The mobile phone has already been recovered and the petitioner has already joined the investigation on 10.02.2021 11.02.2021 12.02.2021 15.02 2021 16.02 2021 and 17.02.2021. As per the status report filed by the state in compliance of the order dated 09.02.2021 of Sh. Gaurav Rao Ld. ASJ Saket Court New Delhi the verification of the complaints given by the petitioner has also been done and it has been found that BAIL APPLN. 1162 2021 applicant petitioner has filed 3 complaints at P.S. Greater Kailash wherein he has mentioned about his apprehension of being arrayed in a false case of molestation by his step daughter on the instructions of his wife. As per the status report all the information with regard to the mobile phones being used by the petitioner has been supplied to the 16. As already observed hereinabove the petitioner has joined the investigation on numerous occasions. There is a history of litigations in regard to the control of business between the petitioner and the mother of the complainant. Ld. Sr. counsel for the petitioner has also laid much emphasis on the delay in lodging the FIR and contended that there is no plausible explanation for the delay and the same is fatal to the case of the complainant In the instant case the alleged offence took place on 18.05.2020 and on the same very day according to the complainant she had informed her mother about the incident and also discussed with her but the complaint was only lodged on 29.12.2020 In between this period from the record it is evident that the petitioner and the mother of the complainant have been litigating 17. No doubt the delay in lodging the FIR is not always fatal and it depends upon the facts of each case. The reasons given by the counsel for the complainant for the delay is that the complainant never wanted to spoil the matrimonial home of her mother and secondly her fiance BAIL APPLN. 1162 2021 would have left her if he had come to know about the conduct of the petitioner. Though the complainant has tried to explain the delay but the same can be looked into at the time of trial and as to what would be the fate of such delay would be seen at that particular stage 18. The perusal of the FIR shows that no day date month and time has been given by the petitioner with regard to the incident prior to 18.05.2020. It is also not understood as to why she had not even once made any complaint to her mother and brother about the misconduct and sexual harassment being meted out by the petitioner and when at one stage according to the complainant her mother even fell unconscious after drinking green tea which the petitioner brought for the complainant but was drank by the mother of the complainant but then also the complainant failed to tell her mother and brother about the conduct of the petitioner as already observed In the instant case the petitioner has been able to make out a case for grant of anticipatory bail on account of the fact that no recovery of any articles is to be effected inasmuch as this is a case where all the articles have been seized by the police as per the Status Report and he had joined the investigation at least six times 20. There are two more considerations which are being taken into account for grant of anticipatory bail. Firstly the petitioner is having roots in the society and no apprehension has been shown by the BAIL APPLN. 1162 2021 prosecution that there is a chance of fleeing away of the petitioner from the process of law In so far as the contention of the petitioner tampering with the evidence or threatening the witnesses are concerned a generalize statement has been made by the counsel for the complainant and nothing has been shown to the Court in the form of any cogent and primfacie evidence which could show that he has threatened anybody or tried to tamper with the evidence It has also been argued by the Ld. APP that NBWs were the petitioner as he has not been joining the investigation but thereafter as per the status report the petitioner has joined the investigation. Merely because the NBWs were issued against the petitioner cannot be a sufficient ground for denying the grant of anticipatory bail if it is otherwise made out. Every reasonable person who has approached the Court for grant of anticipatory bail will keep away from the investigation for some time so that his bail application may not become infructuous 23. Having regard to the facts and circumstances of this case I am inclined to admit the petitioner to anticipatory bail on his furnishing a personal bond in the sum of Rs. 50 000 with one surety of the like amount to the satisfaction of the IO SHO concerned with the condition BAIL APPLN. 1162 2021 that he shall not tamper with the evidence or threaten any of the witnesses. The bail application is disposed of accordingly 24. Nothing stated hereinabove shall tantamount to the expression of any opinion on the merits of this case RAJNISH BHATNAGAR J APRIL 23 2021 BAIL APPLN. 1162 2021 Page 1 |
The strict proof of marriage is not a requirement in the case under Section 125 of the Cr. P.C: Chhattisgarh High Court | The parties had lived as a wife and spouse, enough to draw their marriage suppositions. It is found that the claimant and the respondent have lived together as a husband and wife for some time, based on the submissions and the present facts. It is undisputed now. The applicant’s only ground of dispute is that he was not legal when he married the respondent. The judgement was passed by the High Court of Chattisgarh in the case of Meghraj Sahu v. Smt. Lata Bai [CRR No. 490 of 2020] by Single Bench consisting of Hon’ble Justice Rajendra Chandra Singh Saman. This criminal revision petition has been brought against the order Passed in M.J.C, granting monthly maintenance of Rs.3,000/- to the respondent. Learned Counsel for the applicant submitted that the impugned order is erroneous and illegal. The respondent has failed to prove that she was the legally wedded wife of this applicant. Learned Family Court has erroneously held that although the respondent is not a legally wedded wife of the applicant even then, she was entitled to maintenance. Counsel further referred to Badshah vs. Urmila Badshah Godse and Another, wherein it was submitted that “it is not a case in which the respondent was ignorant about the previous marriage of the applicant, therefore, she cannot be deemed as the legally wedded wife of the applicant.” Learned counsel for the respondent opposes the submissions so made and submits, that the respondent has proved her case to show her entitlement for maintenance under Section 125 of the Cr.P.C. After the dispute arose between the applicant and the respondent, a compromise had taken place between them. He further referred to Smt. Motim Bai Borkar vs. Arjun Singh Borkar, wherein it was held by this Court that “the respondent had married the lady lived together as husband and wife and cohabited with her, now cannot be permitted to turn around and say that the petitioner is not his legally wedded wife.” | 1 HIGH COURT OF CHHATTISGARH BILASPUR CRR No. 490 of 2020 Reserved on 12.04.2021 Delivered on 19.05.2021 Meghraj Sahu S o. Brijlal Sahu aged about 50 years Alleged Occupation Service 1 SCC 530 in which it has been held that a woman marrying a man who is already married and his wife is living is not entitled under Section 125 of the Cr.P.C. as such marriage is void ab initio. It is submitted by counsel for the applicant that it has been similarly held in the cases of Savitaben Somabhai Bhatiya vs. State of Gujarat and Others reported in 3 SCC 636 and D Velusamy vs. D. Patchaiammal reported in 10 SCC 469 that for the purpose of Section 125 of the Cr.P.C. the wife must be legally wedded wife. It is further submitted that the impugned order is unsustainable therefore the revision petition be allowed and the impugned order be set aside 3 4. Learned counsel appearing for the respondent opposes the submissions so made and submits that the respondent has proved her case to show her entitlement for maintenance under Section 125 of the Cr.P.C. After the dispute arose between the applicant and the respondent a compromise had taken place between them. Copy of that compromise deed Ex.P 7 C has been produced in the evidence which shows that the applicant admitted that the respondent is his wife. The applicant has made admissions in his cross examination that name of the respondent is mentioned in the ration card Ex.P 1 C in the post office saving account Ex.P 2 C in the Dena Bank Saving Account Ex.P 3 C and in the Aadhar Card Ex.P 4 C which shows the applicant as her husband. It is also submitted that in the case of Smt. Motim Bai Borkar vs. Arjun Singh Borkar reported in 2017(2) C.G.L.J.330 it was held by this Court that the respondent husband having married the lady lived together as husband and wife and cohabited with her now cannot be permitted to turn around and say that the petitioner is not his legally wedded wife. This ratio has been laid down in the judgment of Supreme Court in the case of Badshah vs. Urmila Badshah Godse and Anotherand also followed in the judgment of this High Court in the case of Smt. Teras Dongare vs. Avinash Dongare in CRR No. 3419 decided on 10.2.2021 therefore on the basis of this ratio of law the respondent has the entitlement for grant of maintenance Hence the petition is without any substance which may be dismissed In reply it is submitted by counsel for the applicant that the case laws cited by the respondent side are not applicable in this case. It is very much clear that the respondent was already married and her husband was living when she married to the applicant whose previous wife was 4 also living. Therefore it is a clear case of invalid marriage because of which the respondent has no entitlement 6. Heard counsel for both the parties and perused the documents present 7. Learned Family Court has drawn a conclusion that the respondent is wife of the applicant on the basis of the ratio laid down by the Madhya Pradesh High Court in the case of Sumitra Bai vs. Bheekam reported in AIR 1985 SC 765 and on the judgment of Supreme Court in the case of Dwarika Prasad Satpathy vs. Bidyut Prava Dixit and Another reported in7 SCC 675 in which it has held that the strict proof of marriage is not a requirement in the case under Section 125 of the Cr.P.C. The fact established that the parties were living as husband and wife is sufficient to draw presumption about their marriage. On the basis of the submissions made and the evidence present it is found that now it is undisputed that the applicant and the respondent had resided together as husband and wife for sometime. The only ground of contest of the applicant is that his marriage with the respondent was not lawful The admission of respondent Smt. Lata Bai in her cross examination about her previous marriage with Bisahu Ram and that she has not legally divorced him has been further clarified that she has obtained customary divorce from her previous husband. Halif Khan AW 2) has stated in his cross examination that he had no knowledge of previous marriage of the respondent. Hemlal Sahuhas stated that he was present when the marriage of the applicant with the respondent was performed. He has also stated about her ignorance regarding the previous marriage of the respondent 8. Applicant Meghraj Sahu has stated in his examination in chief about the previous marriage of the respondent and also about his marriage 5 with Devki Bai which was subsisting. Although he has made denial to all the suggestions put to him in cross examination but he has admitted about the presence of name of the respondent in ration card Ex. P 1 C in the saving account of the post office Ex.P 2 C in the Dena Bank saving account Ex.P 3 C and in the Aadhar Card Ex.P 4 C which shows the name of the respondent as his wife regarding which he was unable to give any explanation. On the basis of this oral statement of the applicant and his witness it is clear that the applicant was previously married and in support of the same one document Ex.D 1 C has been exhibited which is a copy of ration card mentions Devki Bai as wife of this applicant. 9. The applicant had filed a reply to the application under Section 125 of the Cr.P.C. in which he has mentioned about his marriage with Devki Bai in the year 1992 93 denying the statement in the application of the respondent. In the evidence of Lata Bairespondent has not made a single statement in her examination in chief to deny the statement of the applicant regarding his previous marriage which was subsisting however in her cross examination she has admitted that the applicant was married to one Devki Bai and he had two children from her. There is no statement to deny that the marriage of the applicant with Devki Bai was continuing. In the case of Badshah vs. Urmila Badshah Godse and Another observed in paragraphs 13.1 and 13.2 which is as follows ‘13.1. Firstly in Chanmuniya case the parties had been living together for a long time and on that basis question arose as to whether there would be a presumption of marriage between the two because of the said reason thus giving rise to claim of maintenance under Section 125 Cr.P.C. by interpreting the term “wife” widely. The Court 6 has impressed that if man and woman have been living together for a long time even without a valid marriage as in that case term of valid marriage entitling such a woman to maintenance should be drawn and a woman in such a case should be entitled to maintain application under Section 125 Cr.P.C. On the other hand in the present case respondent No.1 has been able to prove by cogent and strong evidence that the petitioner and respondent No.1 had been married each other 13.2. Secondly as already discussed above when the marriage between respondent No.1 and petitioner was solemnized the petitioner had kept the respondent No.1 in dark about her first marriage. A false representation was given to respondent No.1 that he was single and was competent to enter into marital tie with respondent No.1. In such circumstances can the petitioner be allowed to take advantage of his own wrong and turn around to say that respondents are not entitled to maintenance by filing the petition under Section 125 Cr.P.C. as respondent No.1 is not “legally wedded wife” of the petitioner Our answer is in the negative. We are of the view that at least for the purpose of Section 125 Cr.P.C. respondent No.1 would be treated as the wife of the petitioner going by the spirit of the two judgments we have reproduced above. For this reason we are of the opinion that the judgments of this Court in Adhav and Savitaben cases would apply only in those circumstances where a woman married a man with full knowledge of the first subsisting marriage. In such cases she should know that second marriage with such a person is impermissible and there is an embargo under the Hindu Marriage Act and therefore she has to suffer the consequences thereof. The said judgment would not apply to those cases where a man marries second time by keeping that lady in dark about the first surviving marriage That is the only way two sets of judgments can be reconciled and harmonized.’ 7 10. In the case of Savitaben Somabhai Bhatiya vs. State of Gujarat and Othersit was held that even if the wife makes a plea that she was not informed about the previous marriage of her husband that shall be of no avail. In the case of Smt. Motim Bai Borkar vs. Arjun Singh Borkarthis High Court has held in paragraph 5 is as follows ‘5. Having held so I am clearly of the view that Arjun Singh the second husband cannot escape from his liability to maintain his wife. The reason is that he married Motim Bai knowing fully well that she had a female child from earlier husband and at the time when he got married he did not ask to produce a decree of divorce and at that time he was willing to marry her probably on oral submission that she had obtained a divorce. It is not a case where the wife had hoodwinked the husband.’ 11. After appreciating the evidence and on the basis of the legal precedents cited the facts in this case reveal that the applicant had knowledge that the respondent was already married to one Bisahu Ram Sahu regarding which the respondent claims that she has obtained divorce in customary manner. This also is a fact that the applicant was married to one Devki Bai in the year 1992 93 but there is no evidence present to show that the previous marriage of the applicant was continuing and subsisting when the marriage of the applicant with the respondent had in the year 2009. The witnesses of the respondent have stated about performance of marriage of the respondent with the applicant and also about the social meeting which was held on account of dispute between the applicant and the respondent in which the applicant had admitted that the respondent is his wife and he had taken the responsibility for the respondent in compromise. The applicant side has not brought any evidence or examined the previous wife of the applicant to show that the marriage of the applicant with his previous wife was continuing. In 8 the case of Badshah vs. Urmila Badshah Godse and Another supra) the Supreme Court has held in paragraphs 13.3 and 20 which is as follows ‘13.3. Thirdly in such cases purposive interpretation needs to be given to the provisions of Section 125 Cr.P.C. While dealing with the application of a destitute wife or hapless children or parents under this provision the Court is dealing with the marginalized sections of the society. The purpose is to achieve “social justice” which is the Constitutional vision enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens justice liberty equality and fraternity. It specifically highlights achieving their social justice Therefore it becomes the bounden duty of the Courts to advance the cause of the social justice. While giving interpretation to a particular provision the Court is supposed to bridge the gap between the law and society. 20. Thus while interpreting a statute the court may not only take into consideration the purpose for which the statute was enacted but also the mischief it seeks to suppress. It is this mischief rule first propounded in Heydon’s Case which became the historical source of purposive interpretation. The court would also invoke the legal maxim construction of ut res magis valeat quam pereat in such cases i.e. where alternative constructions are possible the Court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than one which will put a road block in its way. If the choice is between two interpretations the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided We should avoid a construction which would reduce the legislation to futility and should accept the bolder construction based on the view that Parliament would 9 legislate only for the purpose of bringing about an effective result. If this interpretation is not accepted it would amount to giving a premium to the husband for defrauding the wife Therefore at least for the purpose of claiming maintenance under Section 125 Cr.P.C. such a woman is to be treated as the legally wedded wife.’ 12. After taking into consideration all the facts and circumstances the evidence of the case and the position of law as settled the finding of the learned Family Court that the respondent has entitlement in grant of maintenance cannot be said to be erroneous in any respect. Hence I am of this view that this revision petition is devoid of any substance and the impugned order does not call for any interference 13. Accordingly the revision petition is dismissed (Rajendra Chandra Singh Samant Judge |
Neelam Gupta V/S Mahipal Sharan Gupta & Another | These appeals arise out of the common Judgment and Order dated 15.11.2018 passed by the High Court of Delhi at New Delhi in Criminal M.C. No.3391 of 2017 and in Criminal M.A. No.13845 of 2017, by which the High Court affirmed (i) the order dated 26.10.2016 passed by Mahila Court in proceedings initiated by the appellant under Section 12 of the DV Act1 and (ii)the order dated 15.04.2017 passed by Additional Sessions Judge-2, (North), Rohini Courts, Delhi in Criminal Appeal No.30 of 2016.The short history of the litigation between the appellant and the respondents, as brought on record, is that Sh. Mahipal Gupta (respondent No.1 herein) was married to one Ms. Geeta Gupta and two issues, one son namely Arnav Gupta and a daughter Garima were born out of their wedlock and after the demise of Ms. Geeta Gupta on October 10, 2004, the respondent No.1 married the appellant Mrs. Neelam Gupta and both were residing in the premises in question that basically was owned by Ms. Geeta Gupta, the first wife of the respondent No.1.After some time of the marriage of the appellant, Ms. Neelam Gupta with her second husband Sh. Mahipal Gupta turned sour and parties were before the courts of law as Ms. Neelam Gupta, the appellant had filed a petition for protection of her rights of her residence etc., under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as the DV Act) and claimed a right of residence claiming such property as shared household and vide order dated 17-06-2008, the Ld. Trial Court had passed a protection order of the residence to the appellant in such premises. The appellant has also filed a civil suit No.295/2009 qua such premises and she had obtained an interim injunction against her husband from her dispossession form the premises in question.Sh. Arnav Gupta, respondent No.2, the son of the first wife of respondent No.1 (the husband of the appellant herein) filed the partition suit qua the premises in question that got decreed and even the final decree was made executable vide orders dated 03-04-2013 of the Hon’ble High Court, in the Chamber Appeal against the orders dated 06-08-2011, vide which the application of the appellant (Ms. Neelam Gupta) seeking impleadment in the suit of partition under Order 1 Rule 10 CPC was dismissed and such appeal was also dismissed thereby the final decree passed in the CS (OS) 858/2010, made executable, subject to the vacation/variation of order dated 17-06-2008 in DV Act.The appellant herein, had also preferred an RFA (OS)/96/2013 against the final decree that was also dismissed vide order dated 19-02-2014 passed by the two judges’ bench of HMJs Sh. Pradeep Nandrajog and Jayant Nath, J.J. of Hon’ble High Court.The application for variation of the protection order dated 17.06.2008 was disposed of by Mahila Court. ISSUE BEFORE THE COURT: Can it be assumed as a shared household within the definition, as prescribed within the Act.Whether her husband, the respondent No.1 was “to provide her with a suitable, reasonable accommodation in accordance with law.” RATIO OF THE COURT: In furtherance of a challenge raised at the instance of the appellant, the aforesaid orders dated 26.10.2016 and 15.04.2017 were affirmed by the High Court. The present appeals were being entertained by this Court principally to explore the possibilities of settlement between the appellant and the respondent No.1. The rival submissions on the point were noted in the order dated 18.11.2019.Certain options about rented accommodation were given by the respondent No.1 which were not accepted by the appellant and as such while reserving the matter for orders, it was observed by this Court in its order dated 21.1.2020.No response has been filed by the respondent No.1 either disputing the market value of the apartment as stated by the appellant or traversing the submission that the appellant be granted at least Rs.65,00,000/- (sixty-five lakhs) by way of permanent settlement. In any case, the respondent No.1 had shown willingness to make over to the appellant 1/3rd value of the apartment by way of permanent settlement. This order is, therefore, premised on such willingness and the assumption that the other sharers, namely, the son and the daughter of the respondent No.1 from his first wife are also willing and agreeable to the sale of the apartment. DECISION HELD BY COURT: The court gave the following directions: The respondent No.1 shall within four weeks from today deposit a sum of Rs.5,00,000/- towards interim payment of consideration of 1/3rd value of his share in the apartment as well as Rs.1,00,000/- (being rent for six months at the rate of Rs. 15,000/- per month as directed by the Courts below and Rs.10,000/- towards out of pocket expenses of the appellant) in the Registry of this Court.Within two weeks of such deposit, the appellant and the respondent No.1 shall file an appropriate application under Section 13B of the Hindu Marriage Act, 1955 (“the Act” for short) seeking divorce by mutual consent in pending proceedings by way of necessary amendment or initiate fresh proceeding in that behalf.Within eight weeks of filing of such application, the appellant shall vacate and hand over peaceful possession of the apartment to the respondent No.1, whereafter the aforesaid sum of Rs.6,00,000/- deposited in the Registry of this Court shall be handed over to the appellant. It will be entirely upto the appellant to re-locate herself at such place as she deems appropriate.The respondent No.1 may thereafter cause such minor repair works including painting of the apartment, if necessary. The apartment shall then be put up for sale. The sale shall be completed within three months of the appellant vacating the same. All the sale proceeds shall be deposited in the Registry of this Court.After the sale is effected and the proceeds are deposited as stated above, a sum of Rs.60,00,000/- shall be set apart to be handed over to the appellant after the stage of second motion in the proceeding under Section 13B of the Act is undertaken as stated hereafter. After setting apart said sum of Rs.60,00,000/- rest of the amount shall be handed over by the Registry to the son and daughter of the respondent No.1 from his first wife, in equal shares.The appellant and the respondent No.1 shall appear before the concerned Court for second motion stage in the proceeding under Section 13B of the Act in order to dissolve the marriage by mutual consent. As an integral part of such dissolution, Rs. 65,00,000/- by way of permanent alimony shall be provided to the appellant, in the manner indicated in these directions.After the decree for dissolution as aforesaid is passed by mutual consent, the balance sum of Rs.60,00,000/- shall be made over to the appellant by the Registry of this Court.It is made clear that in case the sale consideration of the apartment is greater than 1,95,00,000/- and consequently 1/3rd share of the respondent No.1 is greater than Rs. 65,00,000/-, the appropriate amount representing 1/3rd share of the respondent No.1 in the additional sum shall be made over to the appellant. It is further made clear that even if the sale consideration is less than Rs.1,95,00,000/-, the respondent No.1 shall still be liable to make over Rs.65,00,000/- by way of permanent alimony to the appellant.Upon such payment of 1/3rd share of the respondent No.1 in the apartment or Rs.65,00,000/- (whichever is higher) and passing of the decree for dissolution of marriage as stated above, nothing further need be done by the respondent No.1 towards maintenance, upkeep and residence of the appellant and such payment shall be in full discharge of all the obligations on part of the respondent No.1.If for any reason, the apartment is not sold by the respondent No.1, the appellant shall be entitled to retain the sum of Rs.6,00,000/- and shall also be entitled to re-enter the apartment in question. Her re-entry shall be facilitated by the respondent No.1 within seven days of the expression of intent to reenter on part of the appellant. To effectuate this, a communication shall be sent by the respondent No.1 to the appellant within two weeks of the expiry of period for completion of sale as contemplated by clause (D) of these directions. In case the appellant chooses not to re-enter, the respondent No.1 shall be obliged to pay to her Rs.30,000/- per month towards rent. Needless to state that in either of such eventualities, the application preferred by the parties under Section 13B of the Act shall stand dismissed. However, such dismissal shall not affect any other proceedings between the appellant and the respondent No.1.Except for the sale of the apartment to be effected in the manner set out hereinabove, the respondent No.1 shall not create any third party rights in respect of the apartment nor shall he deal with the apartment in a manner which may prejudice the interest of the appellant.It shall however be open to the respondent No.1 and his son and daughter to decide not to sell the apartment and retain it unto themselves; in which event the respondent No.1 shall make over to the appellant a sum of Rs.70,00,000/- instead of 1/3rd value of the apartment as stated above and rest of the terms indicated above shall apply, mutatis mutandis. In other words, in case such decision is taken, the appellant shall be paid Rs.65,00,000/- over and above the sums indicated in clause (A) of these directions.In case the respondent No.1 fails to deposit the sum of Rs.6,00,000/- within the time stipulated in clause (A) of these directions, this Appeal shall stand allowed and the Orders under appeal will stand set aside. Consequently, the application preferred by the appellant under Section 12 of the DV Act shall stand allowed.Any violation of these directions shall invite action in Contempt.With the aforesaid directions this appeal was disposed of. No order as to costs. | CRIMINAL APPEAL NOS.417 418 OF 2020 @ SLPNOS.4044 4045 OF 2019 NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER 1 IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 417 418 OF 2020 Arising out of Special Leave PetitionNos.4044 40419 MAHIPAL SHARAN GUPTA AND ANOTHER O R D E R Uday Umesh Lalit J Leave granted. These appeals arise out of the common Judgment and Order dated 15.11.2018 passed by the High Court of Delhi at New Delhi in Criminal M.C No.33917 and in Criminal M.A. No.138417 by which the High Court affirmed the order dated 26.10.2016 passed by Mahila Court in proceedings initiated by the appellant under Section 12 of the DV Act1 andNOS.4044 4045 OF 2019 NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER 2 the order dated 15.04.2017 passed by Additional Sessions Judge 2 Rohini Courts Delhi in Criminal Appeal No.316 The facts leading to the passing of the order dated 26.10.2016 as captured in the aforementioned order dated 15.04.2017 are as under: “The short history of the litigation between the appellant and the respondents as brought on record is that Sh. Mahipal Guptawas married to one Ms. Geeta Gupta and two issues one son namely Arnav Gupta and a daughter Garima were born out of their wedlock and after the demise of Ms. Geeta Gupta on October 10 2004 the respondent No.1 married the appellant Mrs. Neelam Gupta and both were residing in the premises in question that basically was owned by Ms Geeta Gupta the first wife of the respondent No.1. After some time of the marriage of the appellant Ms Neelam Gupta with her second husband Sh. Mahipal Gupta turned sour and parties were before the courts of law as Ms Neelam Gupta the appellant had filed a petition for protection of her rights of her residence etc. under the Protection of Women from Domestic Violence Act 2005 hereinafter referred as the DV Act) and claimed a right of residence claiming such property as shared household and vide order dated 17 06 2008 the Ld. Trial Court had passed a protection order of the residence to the appellant in such premises. The appellant has also filed a civil suit No.295 2009 qua such premises and she had obtained an interim injunction against here husband from her dispossession form the premises in question Thus the appellant had two protective orders qua the property in question one under the DV Act and another under the injunction suit Sh. Arnav Gupta respondent No.2 the son of the first wife of respondent No.1 filed the partition suit qua the premises in question that got decreed and even the final decree was made CRIMINAL APPEAL NOS.417 418 OF 2020 @ SLPNOS.4044 4045 OF 2019 NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER 3 executable vide orders dated 03 04 2013 of the Hon’ble High Court in the Chamber Appeal against the orders dated 06 08 2011 vide which the application of the appellantseeking impleadment in the suit of partition under Order 1 Rule 10 CPC was dismissed and such appeal was also dismissed thereby the final decree passed in the CS858 2010 made executable subject to the vacation variation of order dated 17 06 2008 in DV The appellant herein had also preferred an RFA OS) 96 2013 against the final decree that was also dismissed vide order dated 19 02 2014 passed by the two judges’ bench of HMJs Sh. Pradeep Nandrajog and Jayant Nath J.J. of Hon’ble High Court with the observations ‘Under the Protection of Women from Domestic Violence Act 2005 the appellant would certainly be entitled to a shared residence being her matrimonial home or in lieu thereof her husband to provide her with a suitable reasonable accommodation in accordance with The vacation variation contemplated by the impugned order would mean the appellant’s possessory rights cannot be disturbed with respect to the flat in question unless the husband obtains an order from the learned Metropolitan Magistrate to offer an alternative accommodation to the appellant in accordance with law’. In the above noted brief history and the relevant facts of the case the respondent No.2 Sh.Arnav Gupta filed an application for variation of the protection orders dated 17 06 2008 that was disposed of vide orders dated 26 10 2016 against which the appeal has been preferred by the appellant.” CRIMINAL APPEAL NOS.417 418 OF 2020 @ SLPNOS.4044 4045 OF 2019 NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER 4 The application for variation of the protection order dated 17.06.2008 was disposed of by Mahila Court with following observations: In Criminal Appeal No.30 of 2016 arising therefrom the relevant issues were considered as under: “It is seen that petition suit has already decreed and property at Hudson Lines has been ordered by Hon’ble High Court subject to variation of order dated 17.06.2008 Further it is seen that respondent has offered to complainant the premises at the place where she is not comfortable. It is settled law that complainant is entitled to same standard of living as she had during her marriage at the time when she was living at her matrimonial home Keeping in view the above facts respondent is directed to provide similar accommodation in the same locality where complainant is presently living or rent of Rs.15000 p.m in lieu of same. Accordingly application stands disposed “9. On going through the records in the light of contentions of both the parties & the law referred above during the course of arguments and the settled legal propositions of law as settled by the higher courts including the Hon’ble Apex Court in catena of judgments for the ‘shared household’ for providing interim protection to the appellant under the Act in the above noted history of the case in hand it is observed that admittedly the premises in question in which the interim protection of right of residence has been granted vide orders dated 07 06 2008 was belonging to and was in absolute ownership of one Ms Geeta Gupta the first wife of respondent No.1 and the respondent No.1 as husband of his demised wife in the partition suit filed by his son born out of the wedlock of his first wife had been awarded only a ⅓rd share of sale proceeds of the proposed sale of the premises in question and in no stretch of imagination such premises could be assumed to be a ‘shared household’ within the definition as prescribed within the Act.” CRIMINAL APPEAL NOS.417 418 OF 2020 @ SLPNOS.4044 4045 OF 2019 NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER 5 10. The right of protection for residence available to the appellant is only against the respondent No.1 her husband and in the light of observations made by Hon’ble High Court in orders dated 19 02 2014 her husband the respondent No.1 was “to provide her with a suitable reasonable accommodation in accordance with law.” 13. Also if the alternative accommodation offered by the respondent No.1 her husband is not acceptable then the appellant may move an appropriate leave application before the Ld. Court thereby rejecting such offers and offering proposing such kind of accommodation available in the area of ‘her choice’ and if the rent ordered within the impugned orders is not sufficient then appropriate application leave may be moved before such court within the provisions of the Act seeking modification of such orders qua the quantum of rent. It is observed that certain available accommodation with the limits of rent @ Rs.15 000 have been shown through a website & other websites can also be visited to fetch an alternative accommodation of her choice.” In further challenge raised at the instance of the appellant the aforesaid orders dated 26.10.2016 and 15.04.2017 were affirmed by the High Court. The present appeals were being entertained by this Court principally to explore the possibilities of settlement between the appellant and the respondent No.1. The rival submissions on the point were noted in the order dated 18.11.2019 as under: “It is submitted by the petitioner that she is willing to move into a smaller apartmenteither in the locality where she is presently residing or in or around Lajpat Nagar III where her brother is presently residing CRIMINAL APPEAL NOS.417 418 OF 2020 @ SLPNOS.4044 4045 OF 2019 NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER 6 Let options in that behalf be given by the respondent husband within a day to the petitioner who shall thereafter exercise her choice within 10 days. Alternatively it is suggested by Mr. Gogia that ⅓rd value of the apartment where the petitioner is residingcan be made over to the petitioner by way of permanent settlement. In order to effectuate this part the apartment will be required to be sold whereafter ⅓rd share of the value will be handed over to the petitioner The aforesaid options are given by the respondent husband subject to the petitioner agreeing to the annulment of the marital relationship between the parties and to a decree for Certain options about rented accommodation were given by the respondent No.1 which were not accepted by the appellant and as such while reserving the matter for orders it was observed by this Court in its order dated 21.1.2020 as under: “The petitioner is at liberty to place on record such options as she considers appropriate where a tenement having one bedroom apartment could be provided on rental basis. The petitioner may give all the details including the component of rent per month as well as the amount of security if any required to be kept in deposit with the landlord along with any reasonable brokerage if so required. The details may be provided within a week’s time. The respondent may respond within 3 days thereafter ” Accordingly an affidavit has been filed by the appellant on 01.02.2010. The affidavit states that despite best efforts on part of the appellant she was not able to find any suitable accommodation on rental basis CRIMINAL APPEAL NOS.417 418 OF 2020 @ SLPNOS.4044 4045 OF 2019 NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER 7 and as such she was willing to accept the suggestion made on behalf of the respondent No.1 on the previous occasion with regard to ⅓rd share in the value of the apartment. The affidavit further indicates that the market value of the apartment would be in the region of Rs. 1.85 to 2.25 crores and the appellant be granted at least Rs.65 lakhs as ⅓rd share by way of settlement as offered by the respondent No.1. The affidavit asserts as under: “19. That the petitioner expresses her reasonable apprehensions that the respondent no.1 may utilize his professional and personal contacts to obtain quotations for very low sale consideration against the actual prevailing market price and monetary receipts for the said apartment and offer a lesser amount of compensation to the petitioner against her final settlement. Therefore in view of the prevailing market price of the said apartment the petitioner humbly submits that a minimum threshold of Rs.65 lakhs as the ⅓rd share of the sale proceedings may kindly be guaranteed to the petitioner by the respondent No.1. The said amount should be absolute in nature and free from any deductions on any account 20. That having no other income of her own the petitioner will have to put the said money in a fixed deposit in the bank and utilize the monthly interest to make payment of her monthly rentals and bare survival for the remaining period of her life. Hence the petitioner humbly prays that her permanent settlement amount may kindly be fixed after due consideration of all the facts circumstances of petitioner as explained in the above No response has been filed by the respondent No.1 either disputing the market value of the apartment as stated by the appellant or traversing the CRIMINAL APPEAL NOS.417 418 OF 2020 @ SLPNOS.4044 4045 OF 2019 NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER 8 submission that the appellant be granted at least Rs.65 00 000 by way of permanent settlement. In any case the respondent No.1 had shown willingness to make over to the appellant 1 3rd value of the apartment by way of permanent settlement. This order is therefore premised on such willingness and the assumption that the other sharers namely the son and the daughter of the respondent No.1 from his first wife are also willing and agreeable to the sale of the apartment. In the circumstances we direct: The respondent No.1 shall within four weeks from today deposit a sum of Rs.5 00 000 towards interim payment of consideration of 1 3rd value of his share in the apartment as well as Rs.1 00 000 in the Registry of this Court. Within two weeks of such deposit the appellant and the respondent No.1 shall file an appropriate application under Section 13B of the Hindu Marriage Act 1955seeking divorce by mutual consent in CRIMINAL APPEAL NOS.417 418 OF 2020 @ SLPNOS.4044 4045 OF 2019 NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER 9 pending proceedings by way of necessary amendment or initiate fresh proceeding in that behalf Within eight weeks of filing of such application the appellant shall vacate and hand over peaceful possession of the apartment to the respondent No.1 whereafter the aforesaid sum of Rs.6 00 000 deposited in the Registry of this Court shall be handed over to the appellant. It will be entirely upto the appellant to re locate herself at such place as she deems appropriate. The respondent No.1 may thereafter cause such minor repair works including painting of the apartment if necessary. The apartment shall then be put up for sale. The sale shall be completed within three months of the appellant vacating the same. All the sale proceeds shall be deposited in the Registry of this Court After the sale is effected and the proceeds are deposited as stated above a sum of Rs.60 00 000 shall be set apart to be handed over to the appellant after the stage of second motion in the proceeding under Section 13B of the Act is undertaken as stated hereafter. After setting apart said sum of Rs.60 00 000 rest of the amount shall be handed over by the Registry to CRIMINAL APPEAL NOS.417 418 OF 2020 @ SLPNOS.4044 4045 OF 2019 NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER 10 the son and daughter of the respondent No.1 from his first wife in equal The appellant and the respondent No.1 shall appear before the concerned Court for second motion stage in the proceeding under Section 13B of the Act in order to dissolve the marriage by mutual consent. As an integral part of such dissolution Rs. 65 00 000 by way of permanent alimony shall be provided to the appellant in the manner indicated in these directions After the decree for dissolution as aforesaid is passed by mutual consent the balance sum of Rs.60 00 000 shall be made over to the appellant by the Registry of this Court It is made clear that in case the sale consideration of the apartment is greater than 1 95 00 000 and consequently 1 3rd share of the respondent No.1 is greater than Rs. 65 00 000 the appropriate amount representing 1 3rd share of the respondent No.1 in the additional sum shall be made over to the appellant. It is further made clear that even if the sale consideration is less than Rs.1 95 00 000 the respondent No.1 shall still be liable to make over Rs.65 00 000 by way of permanent alimony to the appellant CRIMINAL APPEAL NOS.417 418 OF 2020 @ SLPNOS.4044 4045 OF 2019 NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER 11 Upon such payment of 1 3rd share of the respondent No.1 in the apartment or Rs.65 00 000 and passing of the decree for dissolution of marriage as stated above nothing further need be done by the respondent No.1 towards maintenance upkeep and residence of the appellant and such payment shall be in full discharge of all the obligations on part of the respondent No.1 If for any reason the apartment is not sold by the respondent No.1 the appellant shall be entitled to retain the sum of Rs.6 00 000 and shall also be entitled to re enter the apartment in question. Her re entry shall be facilitated by the respondent No.1 within seven days of the expression of intent to re enter on part of the appellant. To effectuate this a communication shall be sent by the respondent No.1 to the appellant within two weeks of the expiry of period for completion of sale as contemplated by clause of these directions. In case the appellant chooses not to re enter the respondent No.1 shall be obliged to pay to her Rs.30 000 per month towards rent. Needless to state that in either of such eventualities the application preferred by the parties under Section 13B of the Act shall stand dismissed. However such dismissal shall not affect any other proceedings between the appellant and the respondent No.1. CRIMINAL APPEAL NOS.417 418 OF 2020 @ SLPNOS.4044 4045 OF 2019 NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER 12 Except for the sale of the apartment to be effected in the manner set out hereinabove the respondent No.1 shall not create any third party rights in respect of the apartment nor shall he deal with the apartment in a manner which may prejudice the interest of the appellant. It shall however be open to the respondent No.1 and his son and daughter to decide not to sell the apartment and retain it unto themselves in which event the respondent No.1 shall make over to the appellant a sum of Rs.70 00 000 instead of 1 3rd value of the apartment as stated above and rest of the terms indicated above shall apply mutatis mutandis. In other words in case such decision is taken the appellant shall be paid Rs.65 00 000 over and above the sums indicated in clauseof these directions In case the respondent No.1 fails to deposit the sum of Rs.6 00 000 within the time stipulated in clauseof these directions this Appeal shall stand allowed and the Orders under appeal will stand set aside. Consequently the application preferred by the appellant under Section 12 of the DV Act shall stand allowed. Any violation of these directions shall invite action in Contempt. CRIMINAL APPEAL NOS.417 418 OF 2020 @ SLPNOS.4044 4045 OF 2019 NEELAM GUPTA VS. MAHIPAL SHARAN GUPTA AND ANOTHER 13 With the aforesaid directions this appeal is disposed of. No order as to Uday Umesh Lalit New Delhi April 29 2020 |
In ordinarily transfers deputationist has no legal right to be absorbed in the post to which he is deputed: Jharkhand High Court | Ordinarily transfers on deputations are made as against equivalent post from one cadre to another, one department to another, or one Government to another; in such case, a deputationist has no legal right in the post. Such deputationist has no right to be absorbed in the post to which he is deputed. In such a case, deputation does not result in recruitment, as no recruitment in its true import and significance takes place as the person continues to be a member of the parent service. The judgement was passed by the High Court of Jharkhand in the case of Rajeshwar Prasad vs The State of Jharkhand & Anr. [W.P.(S) No. 1935 of 2014] by Single Bench consisting of Hon’ble Justice Deepak Roshan. The facts of the case are the petitioner joined the service of BHALCO, was sent on deputation to the sanctioned post of correspondence clerk in the Minor Irrigation Department, the service condition of the petitioner was never done by the department. Thereafter, the petitioner made a representation before the respondent-authorities for payment of the arrear of salary and other retiral benefit withdrawn the benefit given to the petitioner on account of revision of pay scale based on the recommendation made by 6th pay revision. Learned counsel for the petitioner submits that the petitioner was appointed by deputation as the appointment of the petitioner was done in the Minor Irrigation Monitoring and Valuation Division, Ranchi on the sanctioned post of correspondence clerk and his service condition was to be determined by Minor Irrigation Department. Moreover, the parent department of BHALCO was on the verge of closure and at the stage of winding up and was not in a position to retain its employee. Further, till his retirement; the petitioner was never repatriated for the obvious reason that the parent department was almost on closure. learned counsel for the respondent submits that the petitioner was an employee of BHALCO which is a corporation of the State of Bihar. He referred to paragraph 5 of its counter-affidavit and submits that the petitioner was allowed to work on a deputation basis in the Minor Irrigation Department of the State Government and he was working on a deputation and he was paid his salary against the work done by him. He reiterated that he was never a State Government employee 5 and his claim for retiral benefit similar to the State Government employee is not sustainable in the eye of law. Relying on The Hon’ble Apex Court in the case of Ashok Kumar Ratilal Patel Vs. Union of India & Another wherein “it was held that ordinarily transfers on deputations are made as against equivalent post from one cadre to another, however in cases where the deputation has been made by way of advertisement then, in that case, the same cannot be treated as deputation by transfer rather it will be considered as appointment by deputation.” | 30 Dated: 15th March 2021 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 19314 Rajeshwar Prasad 1. State of Jharkhand. 2. The Secretary Water Resources Department State of Jharkhand having its office at Nepal House P.O.+P.S. Doranda District Ranchi. ..… Petitioner 3. The Chief Engineer Minor Irrigation Ranchi State of 4. State of Bihar through the Chief Secretary State of Bihar having office at New Secretariat Bailey Road P.O.+P.S Punai Chack District Patna. 5. The Managing Director JHALCO office at B 393 Road No. Respondents 4 C Ashok Nagar P.O.+P.S. Argora District Ranchi. CORAM: HON BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner Mr. Prashant Pallav Advocate For the Respondent : Mr. Munna Lal Yadav S.C.(L&C) III For the Resp No.4 : Mr. Binit Chandra Advocate For the Resp No.5 : Mr. Gautam Rakesh Advocate Heard learned counsel for the parties through V.C. The instant writ application has been preferred by the petitioner praying therein for a direction upon the respondent authorities to pay the entire retiral benefits including unpaid wages gratuity earn leave ACP group insurance LIC etc. along with pension. The petitioner has further prayed for a direction upon the respondent authorities especially respondent State of Jharkhand to determine the service condition for regularization of service in the Minor Irrigation Department State of Jharkhand as directed by the State of Bihar at the time of deputation w.e.f. 11.01.2000 from Bihar Hill Area Lift Irrigation Corporationto Minor Irrigation Department at Ranchi Minor Irrigation Monitoring and Valuation Division which was subsequently shifted to Dhanbad. Petitioner has further prayed for quashing of the order as contained in Memo No. 1168 dated 26.10.2013 issued by the office of Executive Engineer Minor Irrigation Diversion Dhanbad whereby the revision of pay of the petitioner in the 6th Pay scale which was given earlier vide letter No. 279 dated 20.03.2009 was withdrawn. The facts of the case lie in a narrow compass. The petitioner joined service of BHALCO as Store Keeper on 01.11.1975 and worked till 10.01.2000. Subsequently petitioner was sent on deputation to the sanctioned post of correspondence clerk in Minor Irrigation Department Ranchi for three years w.e.f. 11.01.2000. Though the service conditions of the petitioner was to be decided by the Department subsequently but the same was never done. On 20.03.2009 vide office order No. 279 the benefit of 6th Pay revision commission was made applicable to this petitioner w.e.f. 01.01.2006. The petitioner subsequently retired from service from the Minor Irrigation Division Dhanbad w.e.f. 31.03.2013. Thereafter the petitioner made representation before respondent authorities payment of the arrear of salary and other retiral benefits. Pursuant thereto the respondent State of Jharkhand has withdrawn the benefit given to the petitioner on account of revision of pay scale on the basis of the recommendation made by 6th pay revision vide its order dated 26.10.2013. 4. Mr. Pallav learned counsel for the petitioner submits that the petitioner was appointed by deputation as the appointment of the petitioner was done in the Minor Irrigation Monitoring and Valuation Division Ranchi on the sanctioned post of correspondence clerk and his service condition was to be determined by Minor Irrigation Department. Moreover the parent department of BHALCO was on the verge of closure and at the stage of winding up and was not in a position to retain its employee. Further till his retirement the petitioner was never repatriated for the obvious reason that the parent department was almost on closure. Learned counsel further contended petitioner is duly entitled for the 6th pay revision as was applicable to the regular employee of the State of Jharkhand in view of the judgment passed in the case of Bihar State Beverages Corporation Limited and others Vs. Naresh Kumar Mishra & Others reported in5 SCC 110. He lastly submits that the petitioner’s claim may be separated in two parts first from the date of his joining in BHALCO till date of deputation in Minor Irrigation Division Ranchi i.e. from 01.11.1975 to 10.01.2000 for which State of Bihar may be directed to make payment of all dues if not paid and subsequently the period from the date of deputation in Minor Irrigation Department till the date of his retirement i.e. from 11.01.2000 till 31.03.2013. Before concluding his argument he categorically stated that the other similarly situated persons who were initially in BHALCO and were subsequently deputed and remained in the State of Bihar after bifurcation has been regularized by the State of Bihar and they are getting the salary and the other service benefits at par with the State Government employees as such instant writ application may be allowed and the State of Jharkhand may be directed to pass a formal order of regularization and calculate the benefits as per 6th pay revision what the other employees of the State of Jharkhand are getting. 7. Mr. Munna Lal Yadav learned counsel for the respondent State of Jharkhand submits that the petitioner was an employee of BHALCO which is a corporation of State of Bihar. He referred to paragraph 5 of its counter affidavit and submits that the petitioner was allowed to work on deputation basis in Minor Irrigation Department of the State Government and he was working on deputation and he was paid his salary against the work done by him. He reiterated that he was never a State Government employee and his claim for retiral benefit similar to the State Government employee is not sustainable in the eye of law. 8. Mr. Binit Chandra learned counsel for the State of Bihar without opposing the prayer of the petitioner confines his argument only to the extent that the entire payment has been made to the petitioner for the period he worked at BHALCO as such the State of Bihar is not responsible or accountable for any payment. 9. Mr. Gautam Rakesh appearing for the JHALCO only contended that though the organization is not closed but the winding up process is going on. Thus it is an admitted fact that BHALCO never revived after 2000 when its employees were sent on deputation to other different department of State Government. 10. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the averments made therein it is an admitted case that the petitioner was earlier appointed as Store Keeper in BHALCO and worked till 10.01.2000. Subsequently on 11.01.2000 he was sent on deputation to the sanctioned post of Correspondence Clerk in Minor Irrigation Department Ranchi for three years. However his services were extended and finally he retired from Minor Irrigation Department in the year 2013. It also appears that pursuant to the Resolution No. 660 dated 28.02.2009 whereby the Finance Department revised the pay in terms of 6th pay revision commission the benefits of such 6th pay revision was also extended to this petitioner vide office order No. 279 dated 20.03.2009 w.e.f. 01.01.2006. It is only when the petitioner retired and made representation for payment of his retiral benefits the benefit of 6th pay revision commission which was earlier given to the petitioner vide order No. 279 dated 20.03.2009 was withdrawn vide order dated 26.10.2013. 11. Thus the first issue that requires determination in the present case is whether the case of the petitioner can be treated as transfer by deputation or appointment by deputation In the instant case since the parent department i.e. BHALCO was at the stage of winding up and was not in position to retain its employees as such as per the policy decision of the Government every employee were sent on deputation to other government departments and the petitioner was also sent on deputation to Minor Irrigation Monitoring and Valuation Division Ranchi on sanctioned post of correspondence clerk. The Hon’ble Apex Court in the case of Ashok Kumar Ratilal Patel Vs. Union of India & Another reported in 2012) 7 SCC 757 has held that ordinarily transfers on deputations are made as against equivalent post from one cadre to another however in cases where the deputation has been made by way of advertisement then in that case the same cannot be treated as deputation by transfer rather it will be considered as appointment by deputation. instant case there was no advertisement but it was the policy decision of the Government that since BHALCO was on the verge of closure and under winding up process all the employees of BHALCO shall be deputed to other organizations of the State Government as such the case of this petitioner cannot be termed as transfer by deputation rather his case will be treated as an appointment on deputation. For better appreciation paragraph 13 and 14 of the judgment in the case of Ashok Kumar Ratilal Patel is quoted herein below: “13. Ordinarily transfers on deputations are made as against equivalent post from one cadre to another one department to another one organisation to another or one Government to another in such case a deputationist has no legal right in the post. Such deputationist has no right to be absorbed in the post to which he is deputed. In such case deputation does not result into recruitment as no recruitment in its true import and significance takes place as the person continues to be a member of the parent service. 14. However the aforesaid principle cannot be made applicable in the matter of appointment on deputation. In such case for appointment on deputation in the services of the State or organisation or State within the meaning of Article 12 of the Constitution of India the provisions of Article 14 and Article 16 are to be followed. No person can be discriminated nor is it open to the appointing authority to act arbitrarily or to pass any order in violation of Article 14 of the Constitution of India. A person who applies for appointment on deputation has an indefeasible right to be treated fairly and equally and once such person is selected and offered with the letter of appointment on deputation the same cannot be cancelled except on the ground of non suitability or unsatisfactory work.” 12. The next issue which is to be decided is that whether the petitioner was entitled to the benefit of 6th pay revision as was applicable to the regular employees instant case the respondent State of Jharkhand has taken a conscious decision to extend the benefits of 6th pay revision commission and an office order as contained in Memo No. 279 dated 20.03.2009 was also issued whereby the petitioner was made entitled to the benefits of 6th pay revision w.e.f. 01.01.2006. However the petitioner made representation after his retirement for his retiral benefits including arrears of salary the respondent authorities withdraw the benefit given earlier. This decision of the State Government is in the teeth of the judgment passed by the Hon’ble Apex Court in the case of Bihar State Beverages Corporation Limited and others Vs. Naresh Kumar Mishra & Ors reported in 5 SCC 110 wherein the Hon’ble Apex Court at paragraph nos. 22 23 27 and 28 has laid down the law as under: “22. At the outset it is required to be noted that by the impugned judgment and order the Division Bench of the High Court has directed the appellant Corporation to grant the benefit of pay scale to the respondents herein original writ petitioners as per the 6th PRC as per the decision of the Corporation itself in 2010. By the impugned judgment and order the High Court has also quashed and set aside the Resolution of the Corporation dated 27 3 2012 by which it was resolved to pay the salary to the employees of the Corporation as is being the employees working the parent 23. Now so far as the quashing and setting aside the Resolution dated 27 3 2012 by which the Corporation to pay salary the employees of Corporation as is being paid in the parent Board parent organisation is concerned it is required to be noted that it is not in dispute that the respective original writ Boards organisations. Therefore if the Resolution dated 27 3 2012 is permitted to be implemented in that case there shall be disparity in the pay scale salary of the employees of the Corporation doing the same similar work. There may be different pay scales salaries in the respective parent organisations. However when they are working with the Corporation and doing the similar work they have to be paid the salary which is paid to other employees doing the same similar work. It is not in dispute that the employees working on different posts in the Corporation are doing the same similar work. Therefore the Division Bench of the High Court has rightly applied the “principle of equal pay for equal work” and has rightly quashed and set aside the Resolution dated 27 3 2012. 27. Now so far as the impugned judgment and order passed by the High Court directing the appellant Corporation to grant pay scale to the respondents herein original writ petitioners as per the 6th PRC is concerned it is required to be noted that as such the appellant Corporation itself took a conscious decision in the year 2010 to grant the benefit of 6th PRC to the employees working with the Corporation. However on the advice of the Finance Department that the Corporation may grant the benefit of 6th PRC to their permanent employees and not to the employees on deputation the Corporation thereafter took a decision not to grant the benefit of the pay scale as per the 6th PRC. As rightly held by the Division Bench of the High Court the advice by the Finance Department was non application of mind inasmuch so far as the Corporation is concerned there is not a single employee appointed by the Corporation on permanent basis and the entire staff is either on Boards organisations. Therefore the Division Bench of the High Court has rightly directed the appellant Corporation to grant the pay scale to the respondent original writ petitioners as per the 6th PRC. However at the same time it is to be clarified that they will get the pay scale as per the 6th PRC so long as they continue to work with the appellant Corporation and as and when they are repatriated in that case they shall be governed by the pay scale paid to the employees in the parent 28. In view of the above submissions and for the reasons stated hereinabove both the present appeals fail and they deserve to be dismissed and are accordingly dismissed. However it is clarified that the original writ petitioners shall be entitled to the pay scale as recommended by the 6th PRC so long as they work in the appellant Corporation and as and when and in case they are repatriated to their parent Board organisation they shall be governed by the pay scales paid to the employees of the parent Board organisation concerned. No costs.” 13. Respectfully relying upon the aforesaid principle as laid down by the Hon’ble Apex Court this Court is of the firm opinion that the petitioner is entitled for the 6th pay revision and the withdrawal of the said benefit is non est in 14. Now the last and most important issue is that whether the petitioner is entitled for absorption in the State the eye of law. of Jharkhand From perusal of records it appears that the petitioner was deputed in Minor Irrigation Department in the background that his parent organization BHALCO was under process of winding up and it was not in a position to retain its own employees and a policy decision was taken by the Government to depute all the employees of BHALCO to its different departments. Therefore the petitioner was deputed with no scope of repatriation. Initially the period of deputation was for the three years which was further extended for an indefinite time by stating “until further orders”. The petitioner continued to work in the borrowing department for as long as 13 years and superannuated in the year 2013 from the Minor Irrigation Department State of Jharkhand. Moreover a similar matter relating to absorption of the deputationist in the borrowing department on account of closure of the parent department has been decided by this Court in W.P.(S) No. 347 of 2015 in the following “8.Having heard learned counsel for the parties and after going through the documents available on record it appears that the petitioner was sent on deputation to Ranchi Nagar Nigam in the year 1995 in view of the fact that High Tension Insulator Factory Malleable Cast Iron Foundry was closed down. It further transpires that from the date of deputation the petitioner continuously worked with the respondent Corporation till 31.12.2011 when he superannuated from his service. The petitioner was denied regular service and increment being paid to the regular employees of the Ranchi Nagar Nigam on the ground that the petitioner was taken on deputation and therefore he was not entitled for the regular pay scale and increment being paid to the regular employees of the corporation. After perusing the previous order passed by this Court in petitioner’s own case in W.P.(S) No. 4015 of 2012 it appears the Hon’ble Court has categorically held that where the parent Department has ceased to exist and an employee sent on deputation under the Government policy has worked for a long period of 16 years and was not ever released to join his parent department and could not be released because of the fact that the parent department has ceased to exist therefore petitioner was legally entitled for consideration for 13 absorption in the Ranchi Nagar Nigam.” The case of the petitioner in the instant case stands on the same footing and his services are entitled to be absorbed in the borrowing company on account of closure of the parent Corporation.” In view of the aforesaid facts and discussions all the three issues has been decided in favour of the petitioner. As such the impugned letter as contained in memo no. 1168 dated 26.10.2013 is hereby quashed and set aside. The petitioner shall make a representation before respondent no.4 for that period when he was posted at BHALCO and if any amount is still due then the respondent State of Bihar shall calculate the same and take a decision on the claim of the petitioner and pay the same. So far as the claim of regularization is concerned in view of the aforesaid findings the respondent State of Jharkhand shall take a formal decision for regularization of this petitioner in view of the fact that it was not a case of transfer on deputation rather it has been held to be appointment on deputation for the sole reason that the petitioner was never repatriated and the parent organization was on the verge of closure and is in winding up process and as per the statement of learned counsel for JHALCO it has never revived. At this stage it is necessary to mention here that similarly situated persons who were employees of BHALCO and who were deputed in different other organizations and were retained in the State of Bihar after bifurcation they are getting the same and similar benefits of State employees. As such the State of Jharkhand is directed to take a formal decision in the light of the aforesaid findings and pass a necessary order with respect to monetary benefits in favour of the petitioner. The petitioner is also at liberty to file a representation before the State of Jharkhand for claim of monetary benefit. It goes without saying that since the matter is very old the entire exercise shall be completed by the respondent authorities within a period of four months from the date of receipt production of copy of this order and or With the aforesaid terms instant writ application stands allowed. The pending I.A. stands disposed of. |
With the passage of time, the reliefs sought by the plaintiff will become infructuous if the litigation concerns a matter that has already taken place: Madras High Court | A litigation which concerns a matter that had taken place in the past cannot be allowed since there would be no effective progress and the suit would just remain pending in the court of law. Since such a suit would serve no purpose, it will become infructuous. This was decreed by The Hon’ble Mr. Justice C.V. Karthikeyan in THE MUDALIAR EDUCATIONAL TRUST Vs. N. M. Sundarar [C.R.P. (PD) No. 3551 of 2019]. The brief facts of the case are, a suit was filed against the first defendant and the district collector of Erode in a nature of declaration that the elections conducted for the general council and executive committee were invalid and for a permanent injunction restraining the third and sixth defendants from functioning as office bearers and for a mandatory injunction to appoint an Advocate Commissioner to conduct the election for the first defendant Trust. The suit remained idle without any effective progress. The first defendant filed an Interlocutory application to dismiss the suit as infructuous since the election in question had run its course and 2 subsequent fresh elections were conducted and steps to conduct fresh elections in 2021 have also been taken up by the defendant. It was also observed that, the said set of office bearers had also been recognized by the District Registrar, who had taken their names on record and they had also taken charge of their respective posts. Contending this, a counter had been filed on behalf of the plaintiff wherein he mentioned that the cause of action is still alive and is not wiped away merely because of the passage of time. On 03.09.2019, an order was passed dismissing the applications by the learned judge. The plaintiff claimed that the elections of the year 2015 constituted irregularities since the second defendant ignored the legal notice issued by the plaintiff and proceeded with the elections and declared the elected body as unopposed. The learned counsel also mentioned that such irregularities cannot be ignored merely on the basis of passage of time and declaration must still be awarded. However, this was disputed by the learned counsel for the revision petitioner wherein he relied on AIR 2002 SC 1649 [ J.M.Biswas Vs. N.K.Bhattacharjee and others] where the Hon’ble Supreme Court held that, “Further, successive elections have been held to elect office bearers and the office bearers so elected have been recognized by the management. In the circumstances, continuing this litigation will be like flogging the dead horse. Such litigation, irrespective of the result, will neither benefit the parties in the litigation nor will serve the interest of the Union. Accepting the contentions raised on behalf of respondent No. 1 that the successive elections held in the meantime were invalid because he was not permitted to participate in it and to quash all such elections and direct holding of fresh elections under the supervision of the Court, will be contrary to democratic functioning of the employees Union. Furthermore, Courts in the present situation of exploding dockets can ill afford to stand time in such an exercise” | 1IN THE HIGH COURT OF JUDICATURE AT MADRASRESERVED ON: 21.06.2021 PRONOUNCED ON: 01.07.2021CORAM:THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYANC.R.P.No. 35519AndC.M.P.No. 232919THE MUDALIAR EDUCATIONAL TRUSTRepresented by its Secretary K.K.BalusamyHaving registered office at:No.1 South Hanumandarayan Kovil Street... Petitioner 1st Defendant Petitioner Vs N.M.Sundarar... Respondent Plaintiff RespondentPRAYER: Civil Revision Petition filed under Article 227 of the Constitutionof India against the fair and decreetal order passed by the I AdditionalDistrict Munsif Court at Erode dated 03.09.2019 in I.A.No. 8318 inO.S.No. 2015. For Petitioner :Mr. P.Valliappan 2For Respondent:Mr. V.S. KesavanORDERThe first defendant in O.S.No. 2015 pending on the file of the IAdditional District Munsif Court Erode is the revision petitioner herein.The revision petitioner had filed I.A.No. 8318 in the said suit.Simultaneously the sixth defendant in the suit had also filed I.A.No. 832 of2018. Both the Interlocutory Applications were dismissed by order dated03.09.2019. Questioning that order the first defendant petitioner in I.A.No.8318 has filed the present revision petition. The sixthdefendant petitioner in I.A.No. 8318 according to the learnedcounsels had not questioned the said order. 2.The suit in O.S.No. 2015 had been filed against the firstdefendant a registered trust under the Societies Registration Act and othermembers of the first defendant and also against the District Collector ofErode and the District Registrar of Erode seeking a Judgment and Decree inthe nature of a declaration that the elections to the General Council and theExecutive Committee for the first defendant held on 21.02.2015 and on01.03.2015 and conducted by the second defendant based on notifications 3dated 11.02.2015 were invalid and against the bylaws of the first defendantand to declare the elections for the Executive Committee and office bearersalso as invalid and for a permanent injunction restraining the third and sixthdefendants from functioning as office bearers of the first defendant and alsofor an injunction against the eighth defendant from taking on file the list ofelected body of the first defendant and for a mandatory injunction to appointan Advocate Commissioner to conduct the election for the first defendantTrust and for such further reliefs as may be granted by the Court.3.The suit had been meandering around without any effectiveprogress. A written statement had been filed by the first defendant andsubsequently an additional written statement had also been filed. These hadbeen filed in the year 2015 itself. 4.Thereafter the first defendant filed I.A.No. 8318 todismiss the suit as infructuous. It is seen that subsequent to the institution ofthe suit and pending the suit the term of the office bearers whose electionhave been questioned in the suit had run its course and in the year 2018 fresh elections had also been held. That election has not been challenged or 4questioned by the plaintiff. Further the term of the office bearers elected inthe year 2018 had also been completed in the year 2021 and steps to conductfresh elections have also been undertaken by the first defendant. 5.In the affidavit filed in support of I.A.No. 8318 it hadbeen stated that the tenure of the members who have been elected for theperiod 2015 2018 was for three years and had expired in the year 2018 andsubsequently in the year 2018 further elections had been held for officebearers to function from 2018 to 2021. It had also been stated that the saidset of office bearers had also been recognised by the District Registrar whohad taken their names on record and they had also taken charge of theirrespective posts. It had therefore been stated that the suit had becomeinfructuous and no effective Judgement can be passed with respect to thereliefs sought in the suit.6.A counter had been filed on behalf of the plaintiff wherein thecontention that the suit had become infructuous was disputed. It had beenclaimed that the cause of action still survive and is not wiped away merelybecause elections had been conducted for the subsequent period. It had been 5stated that even on an earlier occasion when a suit was filed challenging theelections conducted in the year 2000 it was disposed of only in the year2009 and first appeal was disposed of in the year 2013 and the second appealwas disposed of in the year 2014 and the election conduced in the year 2000was held invalid. It had therefore been stated that the application should bedismissed and the plaintiff should be permitted to proceed further with thesuit. 7.As stated another defendant namely the sixth defendant hadalso filed a similar application in I.A.No. 8318. A common order hadbeen passed in both the applications on 03.09.2019 dismissing both theapplications. The learned Judge while examining the issues in theapplications had stated that the suit had been filed questioning the electionsfor the reason that the members who were inducted after a particular periodhad no right to vote. It was stated that the actual issue was whether the listof voters prepared by the second defendant was correct or not. Referencewas also made to the Second Appeal which flowed out of the earlier suitfiled in the year 2000 and the order passed by this Court holding that theelection of the year 2000 were invalid. It was therefore held that the 6application should be dismissed.8.Heard Mr.P.Valliappan learned counsel for the petitioner andMr.V.S.Kesavan learned counsel for the first respondent plaintiff.9.The facts had been stated above. 10.The first respondent as plaintiff had instituted O.S.No. 200 of2015 which is now pending on the file of I Additional District Munsif Court Erode. He claimed to be a permanent member of the General Council of thefirst defendant trust namely Mudaliar Educational Trust and further claimedthat the said Trust runs several educational institutions at Erode and has itsown bylaws rules and regulations. 11.It is a Trust registered under the Societies Registration Act 1975. In the suit it had been claimed that the elections conducted in theyear 2015 for the General Council and Executive Committee should be setaside and fresh election should be conducted by appointment of an Advocate 7Commissioner. It had been further contended that the second defendant hadbeen appointed to conduct the election. A report was given to the secondrespondent to decide the list of voters. He also had the power to decide thelist of eligible voters. It was however contended that the second defendantignored the directions given in an earlier suit. He also ignored the legalnotice issued by the plaintiff. Thereafter he had issued the electionnotification and then the plaintiff filed O.S.No. 915 before theDistrict Munsif Court at Erode seeking a declaration that the electionnotification was invalid. The second defendant had however declared theelected body of the General Council Members as unopposed and thereafterhad issued a paper publication advancing the elections for selecting theExecutive Committee members and had actually conducted the said election.It had been stated by the plaintiff that all these constituted irregularities andtherefore the election of the year 2015 should be set aside.12.Mr. V.S. Kesavan learned counsel for the respondent claimedthat merely because there has been passage of time the alleged irregularitiescannot be swept under the carpet. A declaration would still lie whether theoffice bearers who functioned between the years 2015 2018 had been 8properly elected or not. In this connection learned counsel drew inspirationfrom an order of this Court in a Second Appeal where a learned Single Judgeof this Court in S.A.No. 2613 Mudaliar Educational Trust represented by its Secretary Vs. C.K.Ramanathanand 30 others byJudgment dated 11.07.2014 had directed an Advocate Commissioner to holdelections in accordance with law. The said Second Appeal arose fromO.S.No. 4804 originally filed as O.S.No. 7600 challengingthe elections conducted on 25.04.2000. It had therefore been contended byMr.V.S.Kesavan learned counsel for the first respondent that the suit inO.S.No. 2015 should be permitted to proceed and that the reliefssought therein cannot be held to have become infructuous.13.This contention is very seriously disputed by Mr.P.Valliappan learned counsel for the revision petitioner. The learned counsel afterpointing out the facts relied on AIR 2002 SC 1649Alipore South Calcutta. That suit was filed by the plaintiff whowas the first respondent before the Hon ble Supreme Court seeking adeclaration that he was a duly appointed office bearer of the Union andrestraining the defendants from interfering with his functioning as GeneralSecretary. He filed an application seeking interim injunction. The TrialCourt rejected the prayer for temporary injunction. The First AppellateCourt however allowed the appeal by the plaintiff. That order waschallenged by the defendant before the High Curt. The High Court dismissedthe revision petition the defendant then filed an appeal before the Hon bleSupreme Court. It was submitted that in the meanwhile three elections hadbeen held and different sets of office bearers excluding the plaintiff firstrespondent have been elected. They have also been recognised by themanagement of the South Eastern Railway. It was contended that in thesecircumstances the order of interim injunction should be vacated.14.On the other hand it had been contended on behalf of the firstrespondent plaintiff that the elections are invalid as they were not held inaccordance with the rules of the Union. The Hon ble Supreme Court held asfollows: 10“10. .... Further successive electionshave been held to elect office bearers and theoffice bearers so elected have beenrecognized by the management. In thecircumstances continuing this litigation willbe like flogging the dead horse. Suchlitigation irrespective of the result willneither benefit the parties in the litigation norwill serve the interest of the Union. Acceptingthe contentions raised on behalf ofrespondent No. 1 that the successive electionsheld in the meantime were invalid because hewas not permitted to participate in it and toquash all such elections and direct holding offresh elections under the supervision of theCourt will be contrary to democraticfunctioning of the employees Union.Furthermore Courts in the present situationof exploding dockets can ill afford to standtime in such an exercise.”15.Mr.P.Valliappan learned counsel also referred to AIR 2004 SC2093wherein the Hon ble Supreme Court while considering subsequentevents had observed as follows: “25.Thus it is clear that by the subsequentevent if the original proceeding has becomeinfructuous ex debito justitiae it will be the duty ofthe court to take such action as is necessary in theinterest of justice which includes disposing ofinfructuous litigation. For the said purpose it will beopen to the parties concerned to make an applicationunder Section 151 of CPC to bring to the notice ofthe court the facts and circumstances which havemade the pending litigation infructuous. Of course when such an application is made the court willenquire into the alleged facts and circumstances tofind out whether the pending litigation has in factbecome infructuous or not. ”16.In the present case I hold that pursuing with the suit in O.S.No.2015 would serve no purpose. With the passage of time the reliefssought by the plaintiff have become infructuous. The blame for the samecannot be laid on the first defendant revision petitioner. They had filed the 12written statement in the year 2015 itself. Subsequently elections have beenheld in the year 2018. The plaintiff had not thought it fit to question thesame. He should have asserted his rights at every point of time. 17.Keeping the suit on file would only ensure that without anyeffective progress the suit will be just pending in the Court of law. At somepoint the respondent plaintiff should realise that subsequent events haveover ridden his grievances and it is only in the interest of all parties that theyare taken note of and a litigation which would not result in any effectivedecree being passed is put to an end.18.The allegations of the petitioner with respect to the voter list orwith respect to the conducting of the elections could have been raised beforethe District Registrar but it is seen that the District Registrar had acceptedand recognised the list of office bearers who were declared elected. He alsorecognised the list of office bearers who have been elected in the year 2018.I hold that keeping the suit on file and re examining the issues would onlybe as the Hon ble Supreme Court put it “flogging a dead horse”. The resultof the litigation will benefit none of the parties to the suit. Therefore I 13would interfere with the order passed in I.A.No. 8318 and put an endto the tortorous suit which is now pending namely O.S.No. 2015before the I Additional District Munsif Court Erode. The suit is accordinglydirected to be struck off the records and dismissed as infructuous.19.The contention that the sixth defendant had not filed anyrevision petition cannot be pressed to the disadvantage of the revisionpetitioner herein who as first defendant had thought it fit to agitate theorder dated 03.09.2019 in I.A.No. 8318 before this Court 20.This Civil Revision Petition is allowed. No order as to costs.Consequently connected Miscellaneous Petition is closed.01.07.2021vsg Index: Yes NoInternet: Yes No.Speaking Non speakingC.V.KARTHIKEYAN J. 14vsg Pre Delivery Order made in C.R.P.No. 35519AndC.M.P.No. 23291901.07.2021 |
Trial Court cannot direct sentence of life imprisonment for remainder of natural life: Supreme Court of India | A trial court while sentencing an accused to life imprisonment cannot order that such imprisonment is for the remainder of his/her natural life; only High Courts and the Supreme Court have the power to direct the same. Supreme Court of India bench including Hon’ble Justice Indu Malhotra and Justice Ajay Rastogi gave the judgment in the case of Gauri Shankar vs. State of Punjab [Criminal Appeal no. 135 of 2021] while stating the above-cited reasons. In the instant case, the appellant was accused of murdering two minor children of the complainant; for which he was being convicted for offences u/s 302 of the Indian Penal Code by the Trial Court which was later upheld by the High Court too. According to the facts of the present case, the complainant and her two children lived with the accused but were not related to each other. The accused-appellant was not happy living with the children and hence, used to beat them daily. One day, when the complainant was not home, the accused gave poison to both the kids, as a result of which they died. The statement of the accused-appellant was recorded under Section 313 CrPC where he denied having committed the crime but did not lead any evidence in defence. Considering the facts, the Trial Court judge had held the appellant guilty for offence u/s 302 of IPC and punished him with imprisonment for life which would mean the remainder of natural life. When the matter reached the Supreme Court, the learned counsel of the appellant argued that in both the proceedings before the Trial Court and the High Court that no reasonable opportunity for cross-examination was given to them u/s 230 CrPC. Relying on the judgments of Union of India Vs. V. Sriharan @ Murugan and Others 2016(7) SCC 1, the counsel had also argued that the Trial Court does not have the power to direct the life imprisonment for the remainder of natural life; only High Courts and Supreme Court can do that. | The sole accused appellant faced trial for committing the dated 1st July 2013 and confirmed by the High Court on appeal preferred at his instance being dismissed by judgment impugned dated 13th December 2018 the appellant has preferred this appeal married with Ajay Kumar S o Sajjan Singh and from this wedlock she had two children namely Vijay Kumar @ Bittu aged 4 years because of intoxicants he died. The accused appellant was residing on rent in the neighbourhood of complainant Anju appellant used to quarrel with Anju and frequently beat the they were not his own and that some day he would kill both of them. About a month and half before the incident he had fractured the arm of Vijay @ Bittu deceased son of Anju. On the fateful day of 18th March 2013 at about 7.30 a.m. Anju went to the house and the accused appellant was present. When Anju complainant Anju that he had given poison to both the children The complainant Anju raised alarm and with the assistance of Jagdev Singh PW2 the landlord and his nephew Kamaldeep Singh PW3 both the children were taken to Civil Hospital Mandi police statement of the complainant Anju was recorded and FIR of which the children died within 1520 minutes. However after Jagdev Singhhe moved an application dated 14 th May 2013 misled by Government counsel to make a wrong statement The prosecution examined number of witnesses including Anju PW1 the complainant whose both children were murdered case of both the children was found to be Aluminium Phosphide recorded under Section 313 CrPC where he denied having Learned trial Judge finally held the appellant guilty of an offence under Section 302 IPC and punished him with revisited the record in totality and confirmed the finding of guilt recorded by the learned trial Judge by judgment dated 13th December 2018 which is impugned before us in the instant At the motion stage when the matter came up before this Court on 20th February 2020 the plea which was raised by learned counsel for the appellant was that on the date of framing of charges i.e. 29th April 2013 the statement of material prosecution witnesses PW1 and PW2 was recorded without affording of Criminal Procedure 1973. After the notice was served counter in our Order dated 20th February 2020 has been explained in the appellant pleaded guilty however following the rule of recording the conviction and accordingly PW1 and PW2 were to the accused appellant to crossexamine the witnesses on 29th two witnesses the appellant pleaded to claim trial on 14th May 2013 and thereafter the evidence of other prosecution witnesses 10. After taking note of the statement of fact which has been in particular of which the reference has been made and with assistance of the learned counsel we have gone through the while convicting the accused appellant for offence under Section would mean a remainder of natural life which was not in the domain of the trial Court and this could have been exercised only learned counsel has placed reliance on para 105 and 106 of the Constitution Bench judgment of this Court in Union of India Vs V. Sriharan @ Murugan and Others 2016(7) SCC 1 which is “105. We therefore reiterate that the power derived from the Penal Code for any modified punishment within the to impose a modified punishment providing for any specific SCC 767 that a special category of sentence instead of death application of remission is well founded and we answer the said question in the affirmative. We are therefore not in agreement with the opinion expressed by this Court in Sangeet v. State of Haryana2 SCC 452 that the awarding sentences of 20 or 25 years or without any remission as not permissible is not in consonance with the 12. Taking assistance thereof learned counsel for the appellant submits that at least judgment of the trial Court in imposing punishment of life imprisonment to the remainder of natural life 13. Per contra learned counsel for the respondent submits that Judge and since this question was not raised by the appellant exercise its power and approve the sentence which has been the respondent and after the accused has been held guilty for 15. On the legal principles the learned counsel for the appellant case in totality with motive of the crime that he was living in a a brutal manner by administering celphos to them has been life could not have been imposed by the learned trial Judge but after looking into the entire case we consider it appropriate to confirm the sentence of imprisonment for life to mean the remainder of natural life while upholding the conviction under 16. Consequently the appeal fails and is accordingly dismissed 17. Pending application(s) if any stand disposed of |
Incriminating evidence is required to convict – Bombay High Court | Bombay High Court held that mere non-explanation on the part of the appellant, by itself cannot lead to proof of guilt against the appellant held by Justice Smt.Sadhana S.Jadhav and Justice N.J. Jamadar in the case of Sachin Subhash Londhe Vs State of Maharashtra [Criminal Appeal No 714 of 2016]. In the present case, the police had received an information that one male person was lying in a pool of blood in a shed at one Shivaji Hotel. The deceased was identified and upon investigation it was found that the appellant and the deceased after had an argument while the deceased was intoxicated. After two hours of this incident, the body of the deceased was found in the shed of the hotel. It had transpired in the investigation that deceased was hurling abuses to the accused and therefore, the accused had assaulted the deceased with a stone. Charges were filed and the appellant was convicted by Additional Sessions Judge for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to a rigorous imprisonment for life and a fine of Rs.2,000/-. The appeal has been initiated challenging the said decision before the High Court. The appellant submitted that there is no material on record to show that the appellant is the author of the injuries sustained by the deceased or that he has caused the homicidal death of deceased. The question for determination before the court was whether the prosecution has brought on record convincing and cogent material to implicate the appellant in the alleged homicidal death. The Court after examining the witnesses observed that, “It is clear that there was no enmity between the accused and the deceased. Neither there was any motive to eliminate the deceased. The evidence is otherwise. It would show that they were in the liquor shop at the same time but the accused had left the liquor shop even before the deceased and after he returned, he was accompanying the deceased who was waiting alone in the shop. The recovery of blood-stained clothes coupled with the Forensic Science Laboratory report does not show that the blood on the clothes of the accused were that of the deceased. Blood group of the deceased could not be determined and therefore, finding of the blood stains on the clothes of the accused would not be an incriminating circumstance.” The High Court while squashing the conviction and sentence imposed upon the accused/appellant heavily relied on the case of Kanhaiya Lal Vs. State of Rajasthan [(2014) 4 SCC] where the Hon’ble Apex Court had held that “The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime.” Hence, taking into consideration the totality of the facts and evidence, the circumstances relied upon by the prosecution were not established by convincing evidence and they did not form a complete chain pointing to the guilt of the appellant and hence, the appellant deserves to be acquitted. Hence, they passed the following order:- (i) Appeal was allowed. (ii) The conviction and sentence imposed upon the accused (Sachin Subhash Londhe) vide judgment and order dated 7th April 2016 passed by the Additional Sessions Judge, Islampur in Sessions Case No.51 of 2014 was hereby quashed and set aside. (iii) The accused has been released forthwith, if not required in any other offence. (iv)Fine amount, if paid, be refunded. (v) Appeal was disposed of. Click here to read the Judgment Judgment Reviewed by – Savita | cri. apeal no.714.16 judgment.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 714 OF 2016 Sachin Subhash Londhe Age 25 yrs. Resident of Peth Taluka Walva District Sangli State of Maharashtra At the instance of Islampur Police Station Tal. Walwa Dist. Sangli in respect of Mr. Prosper D’souza appointed Advocate for the Appellant Ms. P.P. Shinde APP for the Respondent State JUDGMENT RESERVED ON JUDGMENT PRONOUNCED ON CORAM : SMT. SADHANA S. JADHAV N.J. JAMADAR JJ 8th SEPTEMBER 2020 1st OCTOBER 2020 JUDGMENT : PER SADHANA S. JADHAV J. The appellant herein takes exception to the judgment and order dated 7th April 2016 passed by the Additional Sessions Judge Islampur in Sessions Case No.514 thereby convicting him for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer RI for life and pay fine of Rs.2 000 in default to suffer RI for three months The factual matrix of the case is as follows : cri. apeal no.714.16 judgment.doc On 22nd July 2014 at about 10.00 pm an information was received by the Peth Naka Police Station that one male person is lying in a pool of blood in a shed. The Police Constable Rajendra Patil was deputed to verify the said information and thereafter Mr. Kamble and PSI Mali reached the spot. They saw one male person lying in a pool of blood in the shed of one Shivaji Hotel. They found him to be dead. An information was recorded in the Police Station. At that time one Shamrao Tulshiram Pawar reached the spot and identified the dead person as his son Amol. The statement of Mr. Shamrao was recorded on the strength of which Crime No.1514 was registered for an offence punishable under section 302 of IPC against the unknown person. The investigation was set in motion. In the course of investigation it had transpired that on 22nd July 2014 at about 7.00 pm the deceased Amol Pawar and his friends were consuming liquor One Sachin Londhe had joined them. Sachin had left the liquor shop at 8.00 pm and had again visited the shop at about 9.15 pm. He was accompanied by Amol Pawar. They purchased liquor and then a quarrel had ensued between both of them. The cousins of Amol viz. Sudhir and Namdeo Kamble had seen the quarrel and had attempted to pacify them and asked them to return to their respective houses. Soon thereafter at about 11.00 pm it was learnt that Amol is lying in a pool of blood. Hence Sachin i.e. the present appellant was arrested on 24 th cri. apeal no.714.16 judgment.doc July 2014. It is further the case of the prosecution that while in Police custody the accused had disclosed to the Police that after consuming Alcohol Amol was abusing him by referring to his mother without any rhyme or reason and therefore the accused had assaulted him with a stone lying nearby. The Police had also seized the blood stained clothes of the accused The prosecution in order to substantiate the charge against the accused has examined 10 witnesses. The accused had admitted the scene of offence panchanama inquest panchanama and post mortem report under section 293 of Cr.P.C. The material witnesses who would throw light on the prosecution are PW2 Shamrao Pawar first informant PW4 Sudhir Kamble brother in law of deceased Amol PW6 Pintu Pawar person working in liquor shop of Suryakant Choudhari at Peth Naka PW7 Ananda Kamble cousin of PW4 PW9 Sanjay Patil and PW 10 Rajendra Patil who was attached to Islampur Police Station on 22nd cri. apeal no.714.16 judgment.doc PW2 Shamrao Pawar happens to be the father of deceased Amol. He has deposed before the Court that on 22nd July 2014 Amol had left the house at 7.00 am with Nashir Kureshi and returned at 9.00 am after consuming liquor. At about 4.00 pm he had again left the house with Nashir Kureshi. He did not return till 9.30 pm. PW2 had presumed that he must have gone to visit his wife who had gone to her maternal house. At about 10.45 pm Sanjay Pawar informed PW2 that Amol was lying in front of Shivaji Hotel after consuming alcohol. On the spot he saw Amol lying in a pool of blood and registered FIR which is at Exh.16. In the cross examination PW2 has volunteered that on 22nd July 2014 there was heavy rain and so some shops were closed. That the tourist buses halt at Manikandan hotel at night. It is elicited in the cross examination that after the Police reached on the spot within no time Sudhir and Anand Kamble also reached on the spot. The Police had enquired with them but since nobody knew about the incident the complaint was lodged against unknown persons. PW4 Sudhir Kamble in his deposition before the Court has cri. apeal no.714.16 judgment.doc stated as follows That on 22nd July 2014 at about 9.00 pm he along with his cousin brother Ananda Kamble had been to Peth Naka to see off their relatives to Mumbai. They had gone on motor cycle. After the relatives had left they noticed that Amol and Sachin were quarreling near the shed of Shivaji Hotel. They pacified the quarrel and told them to go to their respective houses and at 11.00 pm he had received a call that somebody had murdered Amol with a stone and therefore he reached the spot. He saw the dead body. He acted as a pancha for inquest panchanama which is at Exh.9On 24th July 2014 the accused appellant was arrested The statement of PW6 Pintu Pawar who was working in the liquor shop was recorded by the Police and he had disclosed that although the accused and the deceased did not consume alcohol together but while leaving the liquor shop the deceased was abusing the accused. The witnesses had no knowledge what happened thereafter VII) On 25th July 2014 the scene of offence was shown to the Investigating Officer by the accused. On 25th July 2014 blood stained clothes were seized by the Police at the instance of the appellant. The appellant had kept the clothes in a cupboard in his house The learned counsel for the appellant submits that there is no material on record to show that the appellant is the author of the injuries sustained by the deceased or that he has caused the homicidal death of deceased Amol. As against this the learned APP submits that there is enough material to show that the accused was lastly seen in the 1 cri. apeal no.714.16 judgment.doc company of the deceased. That the evidence of PW6 Pintu would show that while leaving the liquor shop the deceased was abusing the accused and that there is a recovery of blood stained clothes of the accused. According to the learned APP there is no explanation regarding concealment of the blood stained clothes of the appellant In view of the above the question which falls for determination is as to whether the prosecution has brought on record convincing and cogent material to implicate the appellant in the alleged homicidal death of Amol Pawar. Firstly on the date of incident the deceased had left his house in the company of Nashir who is not examined by the prosecution. Witnesses PW4 and PW7 have candidly agreed in the cross examination that the Police had told them that only if they would say that there was a quarrel between the accused and the deceased they could proceed to file a case against appellant. It is in the light of this that the witnesses had disclosed that upon seeing the altercation between the accused and the deceased they had pacified both of them. It cannot be overlooked that the father of the deceased had learnt about the incident at about 10.30 pm and by 11.30 pm the witnesses PW4 and PW7 had reached the spot however they had not 1 cri. apeal no.714.16 judgment.doc disclosed to anyone nay the Police who was present on the spot Silence of PW4 and PW7 from 22nd July 2014 to 24th July 2014 speaks volumes for itself. The statement of PW6 Pintu was recorded much later and even if the evidence of PW6 is taken without addition or subtraction it would show that it was the deceased who was abusing the accused. It is clear that there was no enmity between the accused and the deceased. Neither there was any motive to eliminate the deceased. The evidence is otherwise. It would show that they were in the liquor shop at the same time but the accused had left the liquor shop even before the deceased and after he had returned he was accompanying the deceased who was waiting alone in the shop The memorandum of the accused showing the scene of offence is totally misplaced for the simple reason that the scene of offence was already known to the investigating agency and the witnesses. A stone was also lying on the spot. In fact the scene of offence panchanama is dated 23rd July 2014 and it was recorded during the period 2.50 am to 5.10 am i.e. a day prior to the arrest of the accused appellant. FIR was recorded at midnight of 23rd July 2014 and therefore disclosure of the scene of offence at the instance 1 cri. apeal no.714.16 judgment.doc of the accused appellant needs no consideration. The scene of offence panchanama shows that the said shed was being used as a kitchen platform. There were three iron tables and two wooden benches and the door of the Hotel was locked and that there was trail of blood at a distance of 3 ft. from the kitchen door and it appeared that there was a splash of blood. The recovery of blood stained clothes coupled with the Forensic Science Laboratory report does not show that the blood on the clothes of the accused were that of the deceased. Blood group of the deceased could not be determined and therefore finding of the blood staines on the clothes of the accused would not be an incriminating Since the evidence of PW4 and PW7 does not inspire confidence it can be held that the prosecution has utterly failed to bring on record any clinching material against the accused. The evidence of last seen is also infirm and cannot be relied upon. In the case of Kanhaiya Lal Vs. State of Rajasthan4 SCC 715 the Hon’ble Apex Court has held as follows : 1 cri. apeal no.714.16 judgment.doc “The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime Mere non explanation on the part of the appellant in our considered opinion by itself cannot lead to proof of guilt against the appellant.” Much weight cannot be attached to the alleged recovery of blood stained clothes and knife as the blood group of the deceased on his clothes and knife is inconclusive The case of the prosecution is not supported by credible evidence which would eliminate the innocence of the accused and establish that it is none other than the accused who must have caused the homicidal death of the deceased Amol. All this would show that the death of Amol Pawar is shrouded with mystery. Hence taking into consideration the totality of the facts and evidence in our view the circumstances relied upon by the prosecution are not established by convincing evidence and they do not form a complete chain pointing to the guilt of the appellant and hence the appellant deserves to be acquitted. Hence we pass the following order : 1 cri. apeal no.714.16 judgment.doc i) Appeal is allowed ii) The conviction and sentence imposed upon the accused appellant Sachin Subhash Londhe vide judgment and order dated 7th April 2016 passed by the Additional Sessions Judge Islampur in Sessions Case No.514 is hereby quashed and set aside iii) The accused be released forthwith if not required in any other offence iv) Fine amount if paid be refunded v) Appeal is disposed of This order will be digitally signed by the Private Secretary of this Court. All concerned will act on a digitally signed copy of this (N.J. JAMADAR J (SMT. SADHANA S. JADHAV J 1 |
A mere rule of preference meant to give weightage to the other qualification cannot be enforced as a rule of reservation or rule of complete precedence: The High Court of Gauhati | When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates and that by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed. The aforesaid has been laid down in the Secy. (Health) Deptt. Of Health & F.W. & Anr. v. Dr. Anita Puri & Ors. (2003) 5 SCC 341 and has laid the premise for the Gauhati High Court to be followed in the case of Ratul Deka v. The State of Assam and 3 Ors [WP(C)/929/2017] which was decided by a single judge bench comprising Justice Kalyan Rai Surana on 18th June 2021. The fact of the case are as follows. The petitioner is a 12th pass who has was appointed as a contractual peon under the 13th Finance Commission. Subsequently a vacancy arose for the post of temporary peon in the establishment of the District Legal Services Authority, Kamrup. However, vide select list dated 24.01.2017, the respondent no.4 was selected for appointment to the post of peon. The appointment of respondent no.4 has been assailed by filing this writ petition under Article 226 of the Constitution of India. The counsel for the petitioner has submitted that as per clause 2(b) of the advertisement, it was provided that the candidate was to be Class VII standard pass and it was further provided that preference will be given to those candidates who have already worked or working temporarily as contractual/ fixed pay/ wages basis in subordinate Judicial Court/ Offices. Accordingly, it was submitted that the respondent no.4 had never served in any manner as peon or in any capacity in the subordinate Judicial Court/ Offices. Therefore, it was submitted that the appointment of the respondent no.4 was vitiated by gross illegality and irregularity and that the respondent no.3 had over-looked Clause 2(b) of the terms and conditions of the employment advertisement. It was also submitted that the experience of the petitioner was ignored, his status as temporary contractual worker in the DLSA, Kamrup as peon was ignored. The learned senior counsel for the respondent no.4 had submitted that this Court is not sitting in appeal over the decision of the selection Committee. It was also submitted that the purpose of interview is just for elimination in the absence of any written test. It was submitted that Clause 2(b) of the advertisement cannot be given any restrictive meaning as “office’ could be any office and not necessarily “subordinate Judicial Court/ Offices”. Moreover, it was submitted that ‘preference’ was applicable only if everything is equal. | Page No.# 1 7 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 929 2017 RATUL DEKA S O. LT. BISHNU RAM DEKA R O. HABERIKURA P.O. PUTHIMARI P.S. KAMALPUR DIST. KAMRUPM ASSAM THE STATE OF ASSAM and 3 ORS. REP. BY THE SECRETARY LEGISLATIVE DEPTT. GOVT. OF ASSAM DISPUR GUWAHATI 06 2:THE MEMBER SECRETARY ASSAM STATE LEGAL SERVICES AUTHORITY HIGH COURT OLD BUILDING CAMPUS GUWAHATI 01 DIST. KAMRUPM 3:THE DISTRICT AND SESSION JUDGE CUM CHAIRMAN DIST. LEGAL SERVICE AUTHORITY 4:SRI MRINAL KUMAR NATH S O. SHRI AJAN NATH R O. VILL. and P.O. CHANGSARI P.S. CHANGSARI 781101 DIST. KAMRUPRURAL ASSAM Page No.# 2 7 B E F O R E HON’BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the petitioner : Mr. K.N. Choudhury Senior Advocate : Mr. N. Alam Mr. S.U. Ahmed Mr. K. Jain Advocates for respondent no.1 : Mr. D. Nath Addl. Senior Govt. Advocate Advocates for respondent no.2 : Mr. U.K. Nair Senior Advocate : Standing Counsel Gauhati High Court Advocates for respondent no.3 : Mr. M. Mahanta. Advocates for respondent no.4 : Mr. M.K. Choudhury Senior Advocate : Mr. T.N. Srinivasan Mr. A. Barkataki : Mr. N. Baruah Mr. P. Bharadwaj : Ms. A. Choudhury Date of hearing : 22.03.2021 and 24.03.2021 Date of judgment : 18.06.2021 JUDGMENT AND ORDER Heard Mr. K.N. Choudhury learned senior counsel assisted by Ms. R. Kakoti learned counsel for the petitioner Mr. D. Nath Addl. Senior Government Advocate for the respondent nos.1 and 2 Mr. M. Mahanta learned counsel for respondent no.3 and Mr. M.K. Choudhury learned senior counsel assisted by M. Sarma learned counsel for respondent no.4 2. The petitioner claims to have passed the Higher Secondary School examination. It is projected that in the year 2013 a vacancy arose in the establishment of the respondent no.3 for the post of contractual peon to be appointed for a period of one year under 13th finance Commission award w.e.f. 01.04.2013 and on that he was selected and appointed vide order dated 21.03.2013 on contractual basis for one year in the consolidated pay of Rs.4 500 per month under the notified terms and conditions. The period of service was extended for a further period of one year by order dated 08.04.2014. Thereafter the petitioner had participated in the selection process for appointment to the temporary vacant post of peon in the establishment of the District Legal Services Authority Kamrupfor short) pursuant to advertisement published in the newspaper on 08.06.2016 by the District & Sessions Judge Cum Chairman DLSA Kamrupof the advertisement it was provided that the candidate was to be Class VII standard pass and it was further provided that preference will be given to those candidates who have already worked or working temporarily as contractual fixed pay wages basis in subordinate Judicial Court Offices. Accordingly it is submitted that the respondent no.4 had never served in any manner as peon or in any capacity in the subordinate Judicial Court Offices. Therefore it is submitted that the appointment of the respondent no.4 was vitiated by gross illegality and irregularity and that the respondent no.3 had over looked Clause 2(b of the terms and conditions of the employment advertisement. It was also submitted that the experience of the petitioner was ignored his status as temporary contractual worker in the DLSA Kamrup as peon was ignored. It is submitted that the appointment of respondent no.4 was whimsical arbitrary and that the non adherence to the herein before referred terms and conditions amounted to changing the rules of the game after the game had been played. It was further submitted that on the ground of experience the petitioner ought to have been awarded 8 marks on the basis of 2 marks each by 4 member selection body. It was also submitted that the stand taken by the respondent no.3 in paragraphs 7 and 9 of the affidavit in opposition were contradictory to each other. 4. The learned Addl. Senior Government Advocate and the learned Standing Counsel of this Court appearing for respondent no.2 have submitted that this is a dispute between the petitioner and the respondent no.4 and their presence is only to protect the interest of the respondent nos. 1 and 2 5. The learned counsel for respondent no.3 has produced the record of selection and he had submitted that there was no irregularity or illegality in the selection process which was transparent and in accordance with the well established procedure for selection and appointment and that the Selection was done by a Board consisting of 4 persons. The learned counsel has relied on the following cases viz. Secy.Deptt of Health & F.W. & Anr. Vs. Dr. Anita Puri & Ors. 5 SCC 341 andSecretary A.P Public Service Commission Vs. Y.V.V.R. Srinivasulu & Ors. 6 SCC 282 Page No.# 4 7 6. The learned senior counsel for the respondent no.4 has submitted that this Court is not sitting in appeal over the decision of the selection Committee. It is also submitted that the purpose of interview is just for elimination in the absence of any written test. It is submitted that Clause 2(b) of the advertisement cannot be given any restrictive meaning as “office’ could be any office and not necessarily “subordinate Judicial Court Offices”. Moreover it was submitted that ‘preference’ was applicable only if everything is equal. The learned senior counsel has also referred to the statements made in para 6 of I.A.(C) 90 2017. In support of his submissions reliance has been placed on the following cases viz. M.V Thimmaiah Vs. Union Public Service Commission 2 SCC 119 Dr. Anita Puri & Ors supra) Bibhudatta Mohanty Vs. Union of India & Ors. 4 SCC 16 Y.V.V.R Srinivasulu & Ors.LDA cum Typist andPeon. As per Clause 2(b) in respect of the post of peon the required education qualification was as follows “Class VIII standard pass. Preference will be given to those candidates who have already worked or working temporarily as contractual fixed pay wages basis in subordinate Judicial 8. On the point as to whether the petitioner and the respondent no.4 had the requisite qualification of having worked in “Judicial Court office” the learned senior counsel for the petitioner and respondent no.4 had made their respective erudite submissions which led the Court to search the internet on use of symbolwhich is termed as the slash the stroke the virgule the oblique the solidus. It appears from the materials available in the internet that one of the uses of the said symbol is to depict relationship like one appearing in Page No.# 5 7 the following sentence “They were in love hate relationship”. The symbol of slashes are also commonly used to signify alternatives as in “and or” and “his her they”. The said symbol is also has usage to replace and per or or. Slashes can also appear in place of the word and as in “She’s a writer producer actor ” or the word or as in “You can post on your favorite social media platform: Twitter Instagram Facebook.” In the State of Assam the police and the judiciary use the said symbol in lieu of a comma for example “The accused has committed offence punishable under Sections 302 323 325 326 149 34 IPC.” In job advertisements it is found to be used as suggesting alternatives for example “Each candidate shall carry his her proof of identity”. The said symbol is also used to show a period time for example “The 1989 90 football season was marred by frequent scandals.” “This office is open Tuesday Saturday each week.” Thus it is seen that the symbolappears to have a varied variety of usage. Accordingly the Court is of the considered opinion that in the present case in hand the words “Judicial Court office” cannot be given a limited use to mean that the word “office” must be one attached to “judicial Court” as sought to be projected by the learned senior counsel for the petitioner. 9. On a perusal of selection record produced it is seen that the Selection Board consisted of four members. It is seen that while the petitioner got the score of 33 by adding the marks awarded by all four members the respondent had got the score of 37 marks by adding the marks awarded by all four members. In this order for the sake of convenience the respondent no.1 is referred to as Chairman and the three members are referred to as 2 nd Member 3rd Member and 4th Member. The Board had awarded the following marks to the petitioner and respondent no.4: Petitionerthe Supreme Court had held inter alia to the effect that when an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates and that by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed and it was further observed that in adjudging the suitability of person for the post the expert body like Public Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate and Page No.# 7 7 that the competence and merit of a candidate is adjudged not on the basis of the qualification he possesses but also taking into account the other necessary factors like career of the candidate throughout his educational curriculum experience in any field in which the selection is going to be held his general aptitude for the job to be ascertained in course of interview extracurricular activities like sports and other allied subjects personality of the candidate as assessed in the interview and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held. Moreover in the case of Y.V.V.R. Srinivasulu & Ors.it was held to the effect that a mere rule of preference meant to give weightage to the other qualification cannot be enforced as a rule of reservation or rule of complete precedence 12. Therefore in view of the discussion above this writ petition fails on all counts. Resultantly this writ petition stands dismissed. However with no order as to cost 13. The learned counsel for respondent no.3 is at liberty to collect the selection records from the Court Master JUDGE |
Mental trauma cannot be ignored even if physical cruelty has been stopped by the husband: Jharkhand High Court | Although the physical cruelty committed in the house of marriage may not have stopped and those actions do not take place in a family home it may not be clear that the psychological trauma and distress caused by the actions of the husband, which, if any, obliged the woman to leave the house of the marriage and shelter with her parents, will continue to persist at the parental home. The judgement was passed by the High Court of Jharkhand in the case of Amrendra Kumar vs The State of Jharkhand [Cr. Revision No. 495 of 2012] by Single Bench consisting of Hon’ble Justice Justice Anubha Rawat Choudhary. The facts of the case are that the petitioner was convicted by the learned Trial Court, for the offence under Section 498A of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for three years and also a fine of Rs. 10,000/-. It was further directed that in case of default in payment of fine, the petitioner would further undergo simple imprisonment for six months. The learned counsel for the petitioner has submitted that the impugned orders are perverse, in as much as, the case does not come under the definition of “cruelty” either under Explanation (a) of Section 498A of the Indian Penal Code or under Explanation (b) to the said Section. He submits that the allegation of “cruelty”, as defined under Explanations (a) or (b) of Section 498A of the Indian Penal Code is absent in the present case. Learned counsel while referring to the impugned Judgments has submitted that there is no allegation of demand of any kind of property and as such the applicability of Explanation (b) of Section 498A of the Indian Penal Code is ex-facie excluded. He further submits that the petitioner was ultimately acquitted for the alleged offence under Section 3/4 of the Dowry Prohibition Act, 1961. The learned counsel for the respondent has opposed the prayer and submitted that there are consistent findings, recorded by the learned courts below and there is no scope for re-appreciation of the evidence before this Court in the revisional jurisdiction and, accordingly, the conviction and sentence, which are impugned in the present case cannot be interfered with. However, he submitted that the revisional jurisdiction of this High Court is very limited and the arguments of the petitioner do not call for any interference by this Court in the revisional jurisdiction. While relying on the supreme court case Rupali Devi Vs. State of Uttar Pradesh and Others it was held that “Cruelty can be both physical or mental cruelty. The impact on the mental health of the wife by overt acts on the part of the husband or his relatives; the mental stress and trauma of being driven away from the matrimonial home and her helplessness to go back to the same home for fear of being ill-treated are aspects that cannot be ignored while understanding the meaning of the expression “cruelty” appearing in Section 498-A of the Penal Code.” | 1 Cr. Revision No. 495 of 2012 IN THE HIGH COURT OF JHARKHAND AT RANCHI Amrendra Kumar son of Gorak Nath Ganjhu ..... … Petitioner 1. The State of Jharkhand. 2. Punita Devi w o Amrendra Kumar .…. … Opposite Parties Versus CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Petitioner For the Opposite Party State : Mr. Jitendra Pandey A.P.P. : Mr. Vibhor Mayank Advocate Through Video Conferencing Pronounced on 09.04.2021 C.A.V. on 25.03.2021 1. Heard Mr. Vibhor Mayank learned counsel for the petitioner. 2. Heard Mr. Jitendra Pandey learned A.P.P. for the opposite party State. The present criminal revision has been filed challenging the legality propriety and correctness of the Judgment dated 25.5.2012 passed by the learned Principal Sessions Judge Latehar in Criminal Appeal No. 8 of 2010 whereby the learned Appellate Court has been pleased to dismiss the appeal preferred by the petitioner against the Judgment of Conviction and Order of Sentence dated 20.9.2010 passed by the learned Judicial Magistrate 1st Class Latehar in Complaint Case No. 07 T.R. No. 1410. The petitioner was convicted by the learned Trial Court for the offence under Section 498A of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of three years and also a fine of Rs. 10 000 . It was further directed that in case of default in payment of fine the petitioner would further undergo simple imprisonment for six months. Arguments on behalf of the Petitioner The learned counsel appearing on behalf of the petitioner has submitted that the impugned orders are perverse in as much as the case does not come under the definition of “cruelty” either under Explanation of Section 498A of the Indian Penal Code or under Explanation to the said Section. He submits that the allegation of 2 “cruelty” as defined under Explanationsorof Section 498A of the Indian Penal Code is totally absent in the present case. Learned counsel while referring to the impugned Judgments has submitted that there is no allegation of demand of any kind of property and as such the applicability of Explanation of Section 498A of the Indian Penal Code is ex facie excluded. He further submits that the petitioner was ultimately acquitted for the alleged offence under Section 3 4 of the Dowry Prohibition Act 1961. 6. He further refers to Explanation of Section 498A of the Indian Penal Code and submits that the said explanation is attracted only when the conduct of the accused is of such a nature that such ‘cruelty’ is likely to drive the woman to commit suicide or to cause grave injury or danger to life limb or heath of the woman and there is no dispute that such cruelty could be mental or physical. Learned counsel submits that there is no finding recorded by the learned courts below that the conduct of the petitioner was such which was likely to drive the complainant wife to commit suicide or to cause grave injury or danger to her life limb or health. He further submits that the only allegation which appears from the Trial Court’s Judgment is that the petitioner did not conduct gauna second marriage) of the complainant and this conduct of the petitioner was the cause for filing a complaint case against the petitioner. He submits that the impugned Judgment of Conviction and Order of Sentence cannot be sustained in the eyes of law. Learned counsel for the petitioner has placed reliance upon the judgment passed by the Hon’ble Supreme Court in the case of State of A.P. Versus M. Madhusudhan Rao reported in15 SCC 582. The learned counsel appearing on behalf of the opposite party State on the other hand has opposed the prayer and submitted that there are consistent findings recorded by the learned courts below and there is no scope for re appreciation of the evidence before this Court in the revisional jurisdiction and accordingly the conviction and sentence which are impugned in the present case cannot be interfered with. Arguments on behalf of the opposite party State Findings of this Court 3 Learned counsel has however submitted that the revisional jurisdiction of this High Court is very limited and the arguments of the petitioner do not call for any interference by this Court in the revisional jurisdiction. The present case arises out of a complaint filed by the opposite party No. 2 before the learned court below on 16.1.2007 alleging inter alia that the complainant was married to the present petitioner on 02.07.2006. She spent about a week in the conjugal home and returned back to her parental house. Thereafter gauna was required to be performed which was deferred by the petitioner on the ground that some dowry items were to be sent to him at Gumla where the petitioner was residing in a rented premise. Ultimately fridge colour T.V. godrej etc. were purchased by the complainant’s father and given to the petitioner but still gaunawas not agreed upon. Eventually the circumstances led to filing of the complaint petition in the court of learned Chief Judicial Magistrate Latehar. Complainant wife was examined on solemn affirmation and five witnesses were also examined in course of the enquiry under Section 202 of the Cr.P.C. and prima facie case under Section 498A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act 1961 was found against the present petitioner and his sister and trial began. 10. The complainant examined altogether four prosecution witnesses and one witness was examined on behalf of the defence. P.W. 1 is the father of the complainant P.W. 2 is the complainant herself P.W. 3 is an acquaintance and independent witness and P.W. 4 is the friend and acquaintance of the father of the complainant. D.W. 1 is the resident of Khunti. 11. The complainant had exhibited the following documents apart from the oral evidence: Exhibit 1 was the Marriage Certificate Exhibit 2 is the letter written by the petitioner Exhibit 3 is the legal notice issued at the instance of the petitioner Exhibit 4 is the letter written by the complainant Exhibit 5 is the petition dated 11.9.2007 which was filed by the complainant before the Sub Divisional Judicial Magistrate Latehar Exhibit 6 is the complaint petition filed by the 4 complainantExhibit 7 is the certified copy of the order sheet passed in Criminal Revision No. 5 of 2009 and Exhibit 8 is the copy of the judgment passed in Criminal revision No. 5 of 2009 related to order of maintenance under Section 125 Cr.P.C in favour of the complainant. 12. Complainant wife has been examined as P.W. 2 who has deposed that she was married to the petitioner on 2.7.2006 in a Temple and thereafter she remained in her in laws house for a period of one week and thereafter she returned back to her parents house but her husband never came to her parents house for the purpose of gauna and instead the husband wrote a letter that the things i.e. fridge colour T.V. godrej etc. may be sent to the house where mother in law and sister in law of the complainant were residing. Consequently these things were taken at their place but the mother in law and sister in law refused to keep the complainant by stating that she was of dark complexion and was illiterate and further demanded rupees two lakhs’ cash and one Hero Honda motorcycle. The complainant had also alleged that in the meantime on the basis of compromise between the complainant and the petitioner the petitioner had taken the complainant but left her at an isolated house and did not make any arrangement for her food etc. She had also stated that two unknown persons had threatened her that if she would insist to stay with the petitioner then they will kill her. Ultimately the complainant called her brother and went to her parents’ house. This fact was brought to the notice of the learned court below by filing a petition dated 11.09.2007 which was marked Exhibit 5. During her cross examination she stated that her father has given the articles during marriage on his own wish and at the time of marriage itself there was a demand of Rs.two lakhs and one Hero Honda motorcycle which her father could not meet and consequently her in laws family left her and petitioner had asked by writing letter to her father to fulfill the demand of various items which was fully complied with by her father and the goods were sent where only her sister in law and mother in law were present. She also deposed during cross examination that she came to know that the petitioner had also filed a 5 filed a false case. case for divorce but denied the suggestion that the complainant had 13. The father of the complainant was examined as P.W. 1 who has fully supported the prosecution case. He has deposed that when the complainant came back from her in laws’ place she did not make any complaint. He had received the letterissued by the petitioner regarding the demand of dowry. He has also stated that the petitioner never came to the house of P.W. 2 to take back the complainant and it was also not correct to say that the complainant had any illegitimate affair with anybody else. This witness has also been thoroughly cross examined by the defence and he has denied that the complaint case was filed after coming to know about the divorce case filed by the petitioner. 14. P.W. 3 is an independent witness. He has deposed that on 5.11.2006 he had taken fridge colour T.V. godrej almirah to the house of the petitioner where her mother and sister were residing and handed over the goods to them and they had asked for Rupees two lacs and a Hero Honda Motorcycle. He has stated in his cross examination that he has no relationship with P.W. 2 and he was the owner of the jeep which carried the aforesaid articles and he had also gone with the driver. He has further stated that he had lifted the goods from Ranchi from a person namely Murari and thereafter went to the house of the petitioner at Khunti. P.W. 4 has also fully supported the prosecution case. 15. This Court finds from the records that the accused persons were examined under Section 313 of the Cr.P.C. and specific queries were raised to the petitioner but the petitioner was in total denial and simply claimed to be innocent. 16. The petitioner had led a defence D.W 1. The said defence witness has stated that the complainant was married to the petitioner and she had been in the in laws’ place for eight days and thereafter she went back to her parents house but the gauna was not performed. He has stated that he lives next door to the petitioner. He has stated that the in laws of the complainant repeatedly asked for performance of the gaunabut the family members of the complainant did not come for gaunathe boy’s side has to go to the girl’s side but he did not know as to whether the petitioner had gone to the girl’s house for the purpose of performance of gaunato the house of the petitioner at Namkom. The learned court found that as per the letter Exhibit 2 the said goods were directed to be sent to Gumla and were sent to Namkom which created doubt in the prosecution case regarding the demand of dowry and further the prosecution has not produced any bill receipt etc. regarding the goods which were said to be sent on demand. 18. The learned trial court also recorded that so far as second marriage is concerned all the prosecution witnesses in their examination in chief have consistently stated that information for performance of gauna was given to the accused but they did not come for performance of gauna and they have also stated that the petitioner did not come to perform vidayi of the complainant and simply stated that he will not perform vidayi. The learned court also recorded that there are also allegations that demand of Hero Honda motorcycle and Rs.2 lakhs was additionally demanded. 19. The learned trial court recorded that there is clear evidence that the complainant had stayed with the petitioner only for a period of 8 days and thereafter the petitioner had not taken any interest to bring back the complainant and when during the pendency of the case the complainant was sent with the petitioner upon assurance that he would keep the complainant properly he went to Gumla and left the complainant at an isolated place and the complainant informed the entire incident to the court vide petition dated 11.09.2007thereto and not explanationto the said section as the demand of any property dowry could not be proved against the 21. The learned Appellate Court after scrutinizing the evidences on record dismissed the appeal filed by the petitioner by recording its finding at Paragraph 9 of the Judgment which reads as follows: “9. Consequently having perused the evidence of the four witnesses for the complainant as well as one witness for the defence it has been clearly established that marriage was solemnized between both the sides in the year 2006 at Nagar Temple and that on this pretext or the other the complainant wife had been driven out of the matrimonial home compelling her to find refuge at her paternal home and the Exhibit 3 which is the legal notice given by the appellant is an instance of acute cruelty as discussed above. The filing of the divorce case as against the complainant wife also stands admitted in the face of the willingness on part of the complainant wife for conjugal living. Obliging the complainant wife to stay isolatedly in her paternal home despite all the observances having been made on her part is indeed cruelty in law as against the complainant wife perpetrated by the appellant husband. Therefore the impugned findings of conviction and sentence under Section 498 A I.P.C. as against the appellant husband Amerandar Kumar is upheld and confirmed. The appellant Amerandar Kumar has been found guilty for the offence punishable under Section 498 A of the Indian Penal Code and further I am not inclined to interfere with the impugned sentencing.” 22. The arguments of the learned counsel for the petitioner that the only reason for which petitioner has been convicted is that the petitioner did not perform gauna with the petitioner is not correct. The learned courts below by consistent findings convicted the petitioner 8 ground for the offence under Section 498A of the Indian Penal Code on the firstly that the petitioner did not take any interest to perform gauna second marriage) with the complainant to take her back to her matrimonial house in spite of repeated requests made from the side of the girl and as per the response of the sole defence witness to the court’s question for the purposes of gaunathe boy’s side has to go to the girl’s side but he did not know as to whether the petitioner had gone to the girl’s house for the purpose of performance of gauna second marriage) secondly the petitioner alleged against the complainant that she has illegitimate relationship with someone else thirdly when the petitioner took the complainant with him under the orders of the court with an assurance that he would keep her properly he did not take her home and took her to an isolated place at Gumla and left her there for which the complainant had duly filed petition before the courtany wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life limb or healthof the woman or b) harassment of the woman where such harassment is with a view 9 to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” 23. The Hon’ble Supreme Court in the case of State of A.P. Versus M. Madhusudhan Rao reported in15 SCC 582 has held in para 17 as under : 17. Thus providing a new dimension to the concept of “cruelty” clause of Explanation to Section 498 A IPC postulates that any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute “cruelty”. Such wilful conduct which is likely to cause grave injury or danger to life limb or health whether mental or physical) of the woman would also amount to “cruelty”. Clause of the Explanation provides that harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand would also constitute “cruelty” for the purpose of Section 498 A IPC. In the judgement passed by the Hon’ble Supreme court reported in has been held as under: 2019) 5 SCC 384it 14. “Cruelty” which is the crux of the offence under Section 498 A IPC is defined in Black’s Law Dictionary to mean “the intentional and malicious infliction of mental or physical suffering on a living creature esp. a human abusive treatment outrage &to Section 498 A of the Penal Code which define “cruelty”. The provisions contained in Section 498 A of the Penal Code undoubtedly encompass both mental as well as the physical well being of the wife. ..” 25. This Court is of the considered view that the conduct of the accused for an offence under Section 498 A read with explanation includes both the act and omission which has an underlying element of an emotional distress and mental agony. In the instant case the sufferings of the complainant at the parental home was a result of a deliberate omission by the petitioner by not performing Gauna which was required to be performed by the petitioner. The adverse effects on the mental health in the parental home out of such deliberate omission would in considered view of this Court amount to commission of cruelty within the meaning of Section 498A of Indian Penal Code when seen coupled with the act conduct of the petitioner who took the complainant along with him by the orders of the court with an assurance that he would keep her properly but left her at an isolated place at Gumla. Such Act of the petitioner certainly endangered her health safety life limb and well being both mental and physical and actually caused humiliation trauma amounting to emotional abuse and mental distress. The learned appellate court has already recorded a finding of acute cruelty to the complainant at the hands of the petitioner by appreciating the materials on record. 27. This Court is of the considered view that the impugned judgements reflect concurrent findings with regard to the ingredients of 11 Penal Code. ‘cruelty’ as defined under explanationof section 498A of the Indian The Hon’ble Apex Court has explained the power of revisional court in the case of Jagannath Choudhary and others reported in5 SCC 659 at para. 9 as under: “Incidentally the object of the revisional jurisdiction as envisaged u s 401 was to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law irregularity of procedure neglect of proper precautions of apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order or on the other hand in some underserved hardship to individuals.1 JCR 684at para. 13 as follows: “It is well settled that revisional interference may be justified where: i) the decision is grossly erroneous. ii) there is no compliance with the provisions of iii) the finding of fact affecting the decision is not based on evidence. iv) material evidence of the parties is not considered v) judicial discretion is exercised arbitrarily or 30. This Court finds that none of the above criteria for interference in the impugned judgement in revisional jurisdiction are satisfied in the instant case. This Court finds that the findings recorded by the learned courts below are neither unreasonable or perverse. From perusal of the 12 impugned judgements this Court is of the considered view that there has been no miscarriage of justice arising from the judgements of conviction. The impugned judgements do not suffer from any misconception of law or irregularity of procedure. The learned courts below have not committed any illegality or material irregularity or impropriety in passing the impugned judgment of conviction. This Court is of the considered view that substantial justice has been done and there is no failure of justice accordingly no interference is called for on the point of conviction of the petitioner. In view of the aforesaid discussions and findings and considering the entire facts and circumstances of this case this Court is of the considered view that the learned courts below have passed well reasoned judgements considering every aspect of the matter and every argument advanced on behalf of the petitioner. There being no perversity or illegality in the impugned judgements of conviction no interference is called for. 32. So far as the point of sentence is concerned this Court finds that the complaint case was filed as back as in the year 2007 and about 14 years have elapsed the petitioner has faced the rigors of the criminal case for a long time and as per the trial court judgement the present offence appears to be the first offence of the petitioner. In addition to the aforesaid keeping in mind the manner in which the offence has been committed this Court is of the considered view that the facts and circumstances of the case does not call for maximum sentence to the 33. Accordingly this Court is of the considered view that the ends of justice would be met if the sentence of the petitioner is modified to some extent. Accordingly the sentence of the petitioner is modified and reduced to rigorous imprisonment for a total period of one year and fine amount is enhanced to Rs.1 00 000 to be deposited by the petitioner before the learned court below within a period of four months from the date of communication of this judgement to the learned court below. The fine amount so deposited is directed to be remitted to the complainant of the case after due identification. In case of non deposit of the aforesaid 13 fine amount within the stipulated period the petitioner would further serve simple imprisonment for a period of six months. 34. As a cumulative effect of the aforesaid findings this criminal revision petition is hereby disposed of with modification of sentence. 35. Bail bond furnished by the petitioner is hereby cancelled. 36. Pending interlocutory application if any is closed. 37. Let the lower court records be immediately sent back to the 38. Let a copy of this order be communicated to the learned court learned court below. below through ‘e mail FAX’. Amitesh Saurav |
Surender Kaushik and Ors v. State of Uttar Pradesh and Ors | A person should not be vexed twice. FIR No. 274 of 2012 was lodged by the appellant No. 1, Surender Kaushik, as the Secretary of Sanjeev Memorial Education Society on 29.5.2012 against Dr. Subhash Gupta, Dr. Harshu Gupta and Yunus Pahalwan, members of the society, alleging that in collusion with one Surya Prakash Jalan, they had prepared fake and fraudulent documents. It was further alleged that their signatures had been forged indicating their participation in various general/executive meetings of the society, though they had not attended the said meetings. On the basis of the said FIR, a crime under Sections 420, 467, 468 and 471 of the IPC was registered.One Dr. Subhash Gupta filed an application before the Additional Chief Judicial Magistrate, Meerut, under Section 156(3) of the Code of Criminal Procedure (for brevity “the Code”) alleging, inter alia, that he was never a member of the Sanjeev Memorial Education Society, Ghaziabad and further he was neither present in the meetings of the society which were held on 1.10.2008 and 16.4.2009 nor was he a signatory to the resolutions passed in the said meetings.It was further asseverated in the application that the accused persons, namely, P.C. Gupta, Seema Gupta, Surender Kaushik, Kamlesh Sharma and Vimal Singh, had fabricated an affidavit on 15.12.2008 with forged signatures and filed before the Deputy Registrar, Society Chit and Fund, Mohanpuri, Meerut.FIR No. 442 of 2012 which gave rise to Crime No. 491 of 2012 was registered on 4.9.2012 and it is apt to note that the said FIR came to be registered on the basis of an order passed by the learned Magistrate under Section 156(3) of the Code.In the said case, the complainant was Smt. Nidhi Jalan, one of the members of the Governing Body of the society, and it was alleged that she is a member of the society which runs an educational institution, namely, Mayo International School, and the accused persons, namely, P.C. Gupta, Seema Gupta, Vikash Jain, Bhawna Jain, Sushil Jain, Shubhi Jain, Surender Kaushik, Kamlesh Sharma, Rajender Sharma, Virender Bhardwaj, Vimal Singh and Renu Sharma, having entered into a conspiracy had prepared forged documents regarding meetings held on different dates, fabricated signatures of the members and filed before the competent authority with the common intention to grab the property/funds of the society.The members had filed affidavits before the competent authority that they had never taken part in the meetings of the school management and had not signed any papers. As already stated, the said FIR pertained to offences punishable under Sections 406, 420, 467, 468, 471, 504 and 506 of the IPC.ISSUE BEFORE THE COURT:Whether the FIR in question concerned the same cause of action?RATIO OF THE COURTThe counsel for the appellants argued that the law prohibits lodgment of the second FIR in respect of the same cognizable offence and it was propounded by him that when there is a legal impediment for setting the criminal law in motion, the decision in State of Haryana and others v. Bhajan Lal and others [1992 Supp (1) SCC 335] gets attracted.The counsel for the state submitted that there is no absolute prohibition in law for lodgment of a second FIR and, more so, when allegations are made from different spectrum or, for that matter, when different versions are put forth by different persons and there are different accused persons. It was urged by him that the decisions relied upon by the appellants are distinguishable on facts and the proposition of law laid down therein is not applicable to the case at hand.In T.T. Antony v. State of Kerala and others [(2001) 6 SCC 181] that a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 of the Code or under Articles 226/227 of the Constitution.In Pandurang Chandrakant Mhatre and others v. State of Maharashtra [(2009) 10 SCC 773] Surender Kaushik and Ors v. State of Uttar Pradesh and Ors, the Court referred to T.T. Antony (supra), Ramesh Baburao Devaskar v. State of Maharashtra [(2007) 13 SCC 501] and Vikram v. State of Maharashtra [(2007) 12 SCC 332] and opined that the earliest information in regard to the commission of a cognizable offence is to be treated as the first information report and it sets the criminal law in motion and the investigation commences on that basis.Although the first information report is not expected to be an encyclopaedia of events, yet an information to the police in order to be first information report under Section 154(1) of the Code, must contain some essential and relevant details of the incident. A cryptic information about the commission of a cognizable offence irrespective of the nature and details of such information may not be treated as first information report.This court relied upon above cases and held that the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint.In the case at hand, the appellants had lodged the FIR No. 274 of 2012 against four accused persons alleging that they had prepared fake and fraudulent documents. The second FIR came to be registered on the basis of the direction issued by the learned Additional Chief Judicial Magistrate in exercise of power under Section 156(3) of the Code at the instance of another person alleging, inter alia, that he was neither present in the meetings nor had he signed any of the resolutions of the meetings and the accused persons, five in number, including the appellant No. 1 herein, had fabricated documents and filed the same before the competent authority. FIR No. 442 of 2012 (which gave rise to Crime No. 491 of 2012) was registered because of an order passed by the learned Magistrate.It was noted that the complaint was filed by another member of the Governing Body of the Society and the allegation was that the accused persons, twelve in number, had entered into a conspiracy and prepared forged documents relating to the meetings held on different dates. There was allegation of fabrication of the signatures of the members and filing of forged documents before the Registrar of Societies with the common intention to grab the property/funds of the Society. On analyzing the the involvement of the number of accused persons and the nature of the allegations, it became clear that every FIR had a different spectrum.At last the court held that the appellants or any of the other complainants or the accused persons may move the appropriate court for a trial in one court but to say that it is a second FIR relating to the same cause of action and the same incident and there is sameness of occurrence and an attempt has been made to improvise the case is not correct. DECISION HELD BY COURT: FIR lodged by the fourth respondent was quashed and petition dismissed. | IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.305 OF 2013 Arising out of S.L.P.No. 92712 Surender Kaushik and others State of Uttar Pradesh and others JUDGMENT Dipak Misra J The present appeal by special leave is directed against the order dated 12.10.2012 passed by the Division Bench of the High Court of Judicature at Allahabad in Criminal Miscellaneous Writ Petition No. 150712 wherein the High Court has declined to quash the FIR No. 4412 registered at P.S. Civil Lines Meerut that has given rise to Crime No. 4912 for offences punishable under Sections 406 420 467 468 471 504 and 506 of the Indian Penal Code4 SCC 437 on 29.5.2012 against Dr. Subhash Gupta Dr. Harshu Gupta and Yunus Pahalwan members of the society alleging that in collusion with one Surya Prakash Jalan they had prepared fake and fraudulent documents. It was further alleged that their signatures had been forged indicating their participation in various general executive meetings of the society though they had not attended the said meetings. On the basis of the said FIR a crime under Sections 420 467 468 and 471 of the IPC was One Dr. Subhash Gupta filed an application before the Additional Chief Judicial Magistrate Meerut under Section 156(3) of the Code of Criminal Procedurealleging inter alia that he was never a member of the Sanjeev Memorial Education Society Ghaziabad and further he was neither present in the meetings of the society which were held on 1.10.2008 and 16.4.2009 nor was he a signatory to the resolutions passed in the said meetings. It was further asseverated in the application that the accused persons namely P.C. Gupta Seema Gupta Surender Kaushik Kamlesh Sharma and Vimal Singh had fabricated an affidavit on 15.12.2008 with forged signatures and filed before the Deputy Registrar Society Chit and Fund Mohanpuri Meerut. The said petition was entertained and on the basis of the direction of the learned Magistrate FIR No. 4212 was lodged on 21.8.2012 for the offences punishable under Sections 406 420 467 468 471 504 and 506 of the As the facts would further unfurl FIR No. 4412 which gave rise to Crime No. 491 of 2012 was registered on 4.9.2012 and it is apt to note that the said FIR came to be registered on the basis of an order passed by the learned Magistrate under Section 156(3) of the Code. In the said case the complainant was Smt. Nidhi Jalan one of the members of the Governing Body of the society and it was alleged that she is a member of the society which runs an educational institution namely Mayo International School and the accused persons namely P.C. Gupta Seema Gupta Vikash Jain Bhawna Jain Sushil Jain Shubhi Jain Surender Kaushik Kamlesh Sharma Rajender Sharma Virender Bhardwaj Vimal Singh and Renu Sharma having entered into a conspiracy had prepared forged documents regarding meetings held on different dates fabricated signatures of the members and filed before the competent authority with the common intention to grab the property funds of the society. Be it noted the members had filed affidavits before the competent authority that they had never taken part in the meetings of the school management and had not signed any papers. As already stated the said FIR pertained to offences punishable under Sections 406 420 467 468 471 504 and 506 of the IPC It is submitted by Mr. Nagendra Rai learned senior counsel that the FIR No. 4412 could not have been lodged and entertained as law prohibits lodgment of the second FIR in respect of the same cognizable offence and it is propounded by him that when there is a legal impediment for setting the criminal law in motion the decision in State of Haryana and others v. Bhajan Lal and others3 gets attracted. To bolster the contention that the second FIR could not have been entertained the learned senior counsel has commended us to the decisions in T.T. Antony v. State of Kerala and others4 Pandurang Chandrakant Mhatre and others v. State of Maharashtra5 and Babubhai v. State of Gujarat and others6 9. Mr. R.K. Dash learned senior counsel for the State per contra submitted that there is no absolute prohibition in law for lodgment of a second FIR and more so when allegations are made from different spectrum or for that matter when different versions are put forth by different persons and there are different accused persons. It is urged by him that the decisions relied upon by the appellants are 3 1992 SuppSCC 335 46 SCC 181 510 SCC 773 612 SCC 254 distinguishable on facts and the proposition of law laid down therein is not applicable to the case at hand. The learned senior counsel would further contend that the principles stated in Ram Lal Narang v. State 2 SCC 322 813 SCC 292 scuttled and the accused persons cannot be allowed to pave the escape route in this manner. It has been highlighted by him that lodging of second FIR for the same cause of action or offence is based on the principle that a person should not be vexed twice but if there are offences having distinctive ingredients and overlapping features it would not invite the frown of Article 20 of the Constitution of India. The pronouncement in Statev. Navjot Sandhu alias Afsan Guru9 has been commended to us 11. Chapter XII of the Code deals with information to the police and their powers to investigate. As provided under Section 154 of the Code every information relating to commission of a cognizable offence either given orally or in writing is required to be entered in a book to be kept by the officer in charge of the concerned police station. The said FIR as mandated by law has to pertain to a cognizable case. Section 911 SCC 600 Page 9 2(c) of the Code defines “cognizable offence” which also deals with cognizable cases. It reads as follows: “cognizable offence” means an offence for which and “cognizable case” means a case in which a police officer may in accordance with the First Schedule or under any other law for the time being in force arrest without warrant ” If the primary requirement is satisfied an FIR is registered and the criminal law is set in motion and the officer in charge of the police station takes up the investigation. The question that has emerged for consideration in this case is whether after registration of the FIR and commencement of the investigation a second FIR relating to the same incident on the basis of a direction issued by the learned Magistrate under Section 156(3) of the Code can be registered 13. For apposite appreciation of the issue raised it is necessitous to refer to certain authorities which would throw significant light under what circumstances entertainment of second FIR is prohibited. In Ram Lal Narang this Court was dealing with the facts and circumstances of a case where two FIRs were lodged and two charge sheets were filed. The Bench took note of the fact that the conspiracy which was the subject matter of the second case could not be said to be identical with the conspiracy which was the subject matter of the first one and further the conspirators were different although the conspiracy which was the subject matter of the first case may perhaps be said to have turned out to be a part of the conspiracy which was the subject matter of the second case. After adverting to the various facets it has been opined that occasions may arise when a second investigation started independently of the first may disclose wide range of offences including those covered by the first investigation. Being of this view the Court did not find any flaw in the investigation on the basis of the subsequent FIR In T.T. Antony it was canvassed on behalf of the accused that the registration of fresh information in respect of the very same incident as an FIR under Section 154 of the Code was not valid and therefore all steps taken pursuant thereto including investigation were illegal and liable to be quashed. The Bench analyzing the scheme of the provisions of Sections 154 155 156 157 162 169 170 and 173 of the Code came to hold that only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 of the Code and therefore there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. It was further observed that on receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Code It is worth noting that in the said case the two Judge Bench explained and distinguished the dictum in Ram Lal Narang by opining that the Court had indicated that the real question was whether the two conspiracies were in truth and substance the same and held that the conspiracies in the two cases were not identical. It further proceeded to state that the Court did not repel the contention of the appellant regarding the illegality of the second FIR and the investigation based thereon being vitiated but on facts found that the two FIRs in truth and substance were different since the first was a smaller conspiracy and the second was a larger conspiracy as it turned out eventually. Thereafter the Bench explained thus: “The 1973 CrPC specifically provides for further investigation after forwarding of report under sub sectionof Section 173 CrPC and forwarding of further report or reports to the Magistrate concerned under Section 173(8) CrPC. It follows that if the gravamen of the charges in the two FIRs — the first and the second — is in truth and substance the same registering the second FIR and making fresh investigation and forwarding report under Section 173 CrPC will be irregular and the court cannot take cognizance of the same.” In Upkar Singh a three Judge Bench was addressing the issue pertaining to the correctness of law laid down in the case of T.T. Antony of the Code before the Judicial Magistrate who having found a prima facie case directed the concerned police station to register a crime against the accused persons in the said complaint and to investigate the same and submit a report. On the basis of the said direction Crime No. 48 A of 1995 was registered for offences punishable under Sections 147 148 149 and 307 of the IPC. Challenging the direction of the Magistrate a revision was preferred before the learned Sessions Judge who set aside the said direction. Being aggrieved by the order passed by the learned Sessions Judge a Criminal Miscellaneous petition was filed before the High Court of Judicature at Allahabad and the High Court following its earlier decision in Ram Mohan Garg v. State of U.P.10 dismissed the revision. While dealing with the issue this Court referred to paragraph 18 of T.T. Antonyand noted how the same had been understood: “11. This observation of the Supreme Court in the said case of T.T. Antony is understood by the learned counsel for the respondents as the Code prohibiting the filing of a second complaint arising from 1027 ACC 438 the same incident. It is on that basis and relying on the said judgment in T.T. Antony case an argument is addressed before us that once an FIR is registered on the complaint of one party a second FIR in the nature of a counter case is not registrable and no investigation based on the said second complaint could be carried out.” 17. After so observing the Court held that the judgment in T.T. Antonyreally does not lay down such a proposition of law as has been understood by the learned counsel for the respondent therein. The Bench referred to the factual score of T.T. Antony supra) and explained thus: “Having carefully gone through the above judgment we do not think that this Court in the said cases of T.T. Antony v. State of Kerala has precluded an aggrieved person from filing a counter case as in the present To arrive at such a conclusion the Bench referred to paragraph 27 of the decision in T.T. Antony wherein it has been stated that a case of fresh investigation based on the second or successive FIRs not being a counter case filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate may be a fit case for exercise of power under Section 482 of the Code or under Articles 226 227 of the Constitution. Thereafter the three Judge Bench ruled thus “In our opinion this Court in that case only held that any further complaint by the same complainant or others against the same accused subsequent to the registration of a case is prohibited under the Code because an investigation in this regard would have already started and further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint hence will be prohibited under Section 162 of the Code. This prohibition noticed by this Court in our opinion does not apply to counter complaint by the accused in the first complaint or on his behalf alleging a different version of the 18. Be it noted in the said verdict reference was made to Kari Choudhary v. Sita Devi11 wherein it has been opined that there cannot be two FIRs against the same accused in respect of the same case but when there are rival versions in respect of the same episode they would normally take the shape of two 111 SCC 714 different FIRs and investigation can be carried out under both of them by the same investigating agency. Reference was made to the pronouncement in State of Bihar v. J.A.C. Saldanha12 wherein it has been highlighted that the power of the Magistrate under Section 156(3) of the Code to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out under Section 3 of the stated thus: It is worth noting that the Court also dealt with the view expressed in Ram Lal Narang and a counter complaint “22. A perusal of the judgment of this Court in Ram Lal Narang v. State also shows that even in cases where a prior complaint is already permissible but it goes further and holds that even in cases where a first complaint is registered and investigation initiated it is possible to file a further complaint by the same complainant based on the material gathered during the course of investigation. Of course this larger proposition of law laid down in Ram Lal Narang case is not necessary to be relied 121 SCC 554 on by us in the present case. Suffice it to say that the discussion in Ram Lal Narang case is in the same line as found in the judgments in Kari Choudhary and State of Bihar v. J.A.C. Saldanha. However it must be noticed that in T.T. Antony case Ram Lal Narang case was noticed but the Court did not express any opinion either way.” 20. Explaining further the Court observed that if the law laid down by this Court in T.T. Antony is to be accepted to have held that a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Code such conclusion would lead to serious consequences inasmuch as the real accused can take the first opportunity to lodge a false complaint and get it registered by the jurisdictional police and then that would preclude the victim to lodge a complaint. In Pandurang Chandrakant Mhatre the Court referred to T.T. Antony Ramesh Baburao Devaskar v. State of Maharashtra13 and Vikram v. State of Maharashtra14 and opined that the earliest information in regard to the commission of a cognizable offence is to be treated 1313 SCC 501 1412 SCC 332 as the first information report and it sets the criminal law in motion and the investigation commences on that basis. Although the first information report is not expected to be an encyclopaedia of events yet an information to the police in order to be first information report under Section 154(1) of the Code must contain some essential and relevant details of the incident. A cryptic information about the commission of a cognizable offence irrespective of the nature and details of such information may not be treated as first information report. After so stating the Bench posed the question whether the information regarding the incident therein entered into general diary given by PW 5 is the first information report within the meaning of Section 154 of the Code and if so it would be hit by Section 162 of the Code. It is worth noting that analyzing the facts the Court opined that information given to the police to rush to the place of the incident to control the situation need not necessarily amount to an FIR In Babubhai this Court after surveying the earlier decisions expressed the view that the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is in the affirmative the second FIR is liable to be quashed. However in case the contrary is proved where the version in the second FIR is different and they are in respect of two different incidents crimes the second FIR is permissible. In case the accused in the first FIR comes forward with a different version or counterclaim in respect of the same incident investigation on both the FIRs has to be conducted It is worth noting that in the said case the Court expressed the view that the High Court had correctly reached the conclusion that the second FIR was liable to be quashed as in both the FIRs the allegations related to the same incident that had occurred at the same place in close proximity of time and therefore they were two parts of the same transaction 24. From the aforesaid decisions it is quite luminous that the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. As is further made clear by the three Judge Bench in Upkar Singhthe prohibition does not cover the allegations made by the accused in the first FIR alleging a different version of the same incident. Thus rival versions in respect of the same incident do take different shapes and in that event lodgment of two FIRs is permissible In the case at hand the appellants lodged the FIR No. 274 of 2012 against four accused persons alleging that they had prepared fake and fraudulent documents. The second FIR came to be registered on the basis of the direction issued by the learned Additional Chief Judicial Magistrate in exercise of power under Section 156(3) of the Code at the instance of another person alleging inter alia that he was neither present in the meetings nor had he signed any of the resolutions of the meetings and the accused persons five in number including the appellant No. 1 herein had fabricated documents and filed the same before the competent authority. FIR No. 442 of 2012 was registered because of an order passed by the learned Magistrate. Be it noted the complaint was filed by another member of the Governing Body of the Society and the allegation was that the accused persons twelve in number had entered into a conspiracy and prepared forged documents relating to the meetings held on different dates. There was allegation of fabrication of the signatures of the members and filing of forged documents before the Registrar of Societies with the common intention to grab the property funds of the Society. If the involvement of the number of accused persons and the nature of the allegations are scrutinized it becomes crystal clear that every FIR has a different spectrum. The allegations made are distinct and separate. It may be regarded as a counter complaint and cannot be stated that an effort has been made to improve the allegations that find place in the first FIR. It is well nigh impossible to say that the principle of sameness gets attracted. We are inclined to think so for if the said principle is made applicable to the case at hand and the investigation is scuttled by quashing the FIRs the complainants in the other two FIRs would be deprived of justice. The appellants have lodged the FIR making the allegations against certain persons but that does not debar the other aggrieved persons to move the court for direction of registration of an FIR as there have been other accused persons including the complainant in the first FIR involved in the forgery and fabrication of documents and getting benefits from the statutory authority. In the ultimate eventuate how the trial would commence and be concluded is up to the concerned court. The appellants or any of the other complainants or the accused persons may move the appropriate court for a trial in one court. That is another aspect altogether. But to say that it is a second FIR relating to the same cause of action and the same incident and there is sameness of occurrence and an attempt has been made to improvise the case is not correct. Hence we conclude and hold that the submission that the FIR lodged by the fourth respondent is a second FIR and is therefore liable to be quashed does not merit acceptance In view of the aforesaid premised reasons the appeal being sans substance stands dismissed K. S. Radhakrishnan [Dipak Misra New Delhi February 14 2013 |
The Court directed the trial court to serve notices and hear the matter on application for ad-interim relief: High Court of Shimla | High Court directs the Court to list the matter, when it would proceed to hand over notices for effecting service upon the respondents/defendants directly under Order 5 Rule 9-A CPC and then proceed to fix the matter for consideration, when arguments on the application for ad-interim relief shall be heard by the Court afresh. This honorable judgement was passed by High Court of Shimla in the case of Meena Versus Mohit Kumar Gupta and another [CMPMO No.105 of 2021] by The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. The plaintiff had obtained an ex-parte ad-interim order in her favour despite a caveat petition having been filed by the respondent/defendant. The learned first appellate Court before whom the appeal was filed by the respondent committed no irregularity much less illegality in vacating the ex-parte ad-interim order that had been passed in favour of the petitioner. Record reveals that the learned first appellate Court had passed the order and directed the parties to appear before the learned trial Court, but the certified copy of the order was made available to the petitioner only. It was stated by learned counsel for the petitioner that this order was not even got uploaded on the official website by the learned first appellate Court. The learned first appellate Court needed to explain its position regarding this aspect of the matter. The order was passed by trial court referring the case of G.C. Siddalingappa vs. Veeranna, AIR 1981 Karnataka 242, C. Seethaiah vs. Government of Andra Pradesh and others, AIR 1983 Andra Pradesh 443, and M. Krishnappa Chetty and another vs. P.E. Chandrasekaran. The court was of the opinion that, “The learned first appellate Court was absolutely right in setting aside the ex-parte ad-interim order passed by the learned trial Court, but then it was also required to ensure that the order so passed directing the parties to appear before the learned trial Court on the next date of hearing was made available to the parties. Construction, if any, raised during the pendency of the litigation is always a serious matter where every day counts and it may be extremely difficult to balance the equities at later stage.” | Hig h C o urt of H.P on 25 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACMPMO No.1021. Date of decision: 24.04.2021.Meena .....Petitioner.VersusMohit Kumar Gupta and another …...Respondents.CoramThe Hon’ble Mr. Justice Tarlok Singh Chauhan Judge.Whether approved for reporting 1 YesFor the Petitioner :Mr. Romesh Verma Advocate. For the Respondents:NemoTarlok Singh Chauhan Judgeof Civil Procedure Code is acondition precedent for serving an application oncaveator before passing interim order etc.”3.In C. Seethaiah vs. Government of AndraPradesh and others AIR 1983 Andra Pradesh 443 itwas held that: “also when a caveat is lodged it becomes not onlyth duty of the Court but also of the petitioner andhis counsel to bring to the notice of the Court thatcaveat has been lodged and the matter may notbe heard exparte etc.”4.In M. Krishnappa Chetty and another vs.P.E. Chandrasekaran @ Chandran 1993 1 MLJ 18 itwas observed as follows: “The proper procedure to be adopted in all caseswhere caveat has been filed is for the plaintiff petitioner to serve copies of the plaint andapplication on the caveator s counsel or the caveatorbefore filing them in court. He must inform thecaveator or his counsel as the case may be the dateon which he will move the application before court.He must also file acknowledgments of the receipt ofcopies obtained from the caveator s counsel or thecaveator as the case may be in court along with theapplication. On receiving such papers the office ofthe Court shall while fixing the date for the firsthearing of the application prepare a note and bring it Hig h C o urt of H.P on 25 04 HCHP 3to the notice of the presiding officer concerned thatcaveat has been entered and the caveator s counselor the caveator has been served with copies of plaintand the application. Then the presiding officer shalldirect the office of the court to issue notice to thecaveator s counsel or the caveator as the case maybe specifying the date on which the matter will beheard in the first instance. The court shall inform thepetitioner s counsel also of the said date and on thatdate both sides shall be heard before any interimorder is passed. This procedure shall strictly befollowed by all the subordinate courts. There shall beno lapse in following this procedure. 5.The Gauhati High Court in M S ContemporaryTarget Pvt. Ltd. and others vs. M S M.B. Enterprisesand others AIR 1994 Gauhati 7 in paragraphs 18 and19 held that the purpose and intend of introducing the newprovision for a caveat by authorising a party to intimate tothe Court of his intention to have notice of an intendedapplication by the adverse party so that ex parte order onan application may not be obtained by an adverse partywithout such notice. Therefore he sought to quash theimpugned order passed by the Trial Court allowing the writpetition. Hig h C o urt of H.P on 25 04 HCHP 46.Obviously in such circumstances the learnedfirst appellate Court before whom the appeal was filed bythe respondent committed no irregularity much lessillegality in vacating the ex parte ad interim order thathad been passed in favour of the petitioner.7.Record reveals that the learned first appellateCourt had passed the order on 08.04.2021 and directed theparties to appear before the learned trial Court on09.04.2021 but the certified copy of the order was madeavailable to the petitioner only on 20.04.2021.8.It is stated by learned counsel for the petitionerthat this order was not even got uploaded on the officialwebsite by the learned first appellate Court. Let the learnedfirst appellate Court explain its position regarding thisaspect of the matter.9.As observed above the learned first appellateCourt was absolutely right in setting aside the ex partead interim order passed by the learned trial Court on17.03.2021 but then it was also required to ensure that theorder so passed directing the parties to appear before thelearned trial Court on the next date of hearing i.e.09.04.2021 was made available to the parties. Hig h C o urt of H.P on 25 04 HCHP 510.Construction if any raised during the pendencyof the litigation is always a serious matter where everydaycounts and it may be extremely difficult to balance theequities at later stage. 11.Therefore in the given circumstances this Courtdirects the learned trial Court to list the matter forthwith on26.04.2021 when it would proceed to hand over notices foreffecting service upon the respondents defendants directlyunder Order 5 Rule 9 A CPC and then proceed to fix thematter for consideration on 30.04.2021 when arguments onthe application for ad interim relief shall be heard by theCourt afresh. 12.The petition stands disposed of in the aforesaidterms so also the pending application if any.Copy ‘dasti’ authenticated. 24th April 2021.Judge |
Custodial violence is loathsome & is unacceptable in a civilized society: Supreme Court of India | If any person dies because of custodial violence, it is abhorrent in law and completely unacceptable. It violates the rights guaranteed under Article 21 of the Constitution and affects humanity. Supreme Court of India gave the decision considering the above-cited reasons in the case of Parvat Chandra Mohanti vs. State of Odisha [Criminal Appeal no. 125 of 2021] presided over by the bench of Hon’ble Justice Ashok Bhushan. In the instant case, the victim (Kasinath Naik) went to the Purighat police station to file a complaint against the other party for the charges of assault. But due to sudden turn in incidents, inspectors present in the police station started assaulting the victim. It was observed that both the inspectors started beating him mercilessly due to which the victim started bleeding. After which he was being taken to the hospital for treatment but was declared dead, the next day. In the trial court, both the inspectors were found guilty for offences u/s 304 and 324 of the IPC. In the High Court, the accused were directed to pay Rs 3 lacs to the legal representatives of the deceased. When the matter reached the Supreme Court, the appellant’s counsel argued that when the incident occurred, section 324 of IPC was a compoundable offence & therefore they challenged their conviction under the said section. Considering all the facts present in the case, Supreme Court upheld the conviction of the accused u/s 324 of IPC and stated that “Even if the offence was compoundable, the court cannot grant leave considering the facts of the case and those can only be compounded with the leave of a court u/s 320 CrPC”. Hence, the Supreme Court finally decided that “The present is a case where the accused who were police officers, one of them being in-charge of Station and other Senior Inspector have themselves brutally beaten the deceased, who died the same night. Their offences cannot be compounded by 31 Court in the exercise of Section 320(2) read with subsection (5). We, thus, reject the prayer of the appellants to compound the offence”. Finally, Supreme Court upheld the conviction of the accused but considering the fact that they were aged more than 75 years, court reduced their sentence by one year and directed the accused to pay Rs 3.5 lacs to the legal representatives of the deceased. | IN THE CRIMINAL APPELLATE JURISDICTION 2021 arising out of SLPIPC to undergo R.I. for eight years and accused Pravat Chandra Mohanty under Section 304to undergo R.I. for five years. Both the accused were further sentenced under Section 471 IPC read with Section 466 IPC to undergo R.I. for three years and R.I. for three months under Section 342 IPC and R.I for one month under Section 323 IPC by judgment dated 3. Aggrieved by the judgment of the trial court the appellants Pravat Chandra Mohanty filed Criminal Appeal No.207 of 1988 and Pratap Kumar Choudhury filed Criminal Appeal No.2188 before the Orissa High Court. The High Court decided both the appeals by its judgment and order dated 09.11.2020 partly allowing the appeals. The conviction of both the appellants under Section 304 Part II) IPC read with Section 34 IPC and Section 342 34 IPC was set aside and their conviction under Sections 323 34 IPC and 471 34 IPC was upheld. The High Court convicted both the appellants under Section 324 34 IPC. Simple imprisonment for one month was imposed under Section 323 34 IPC. Simple imprisonment for three months for the offence under Section 471 34 IPC and simple imprisonment for one year for the offence under Section 324 34 IPC were imposed by the High Court. All the sentences were to run concurrently. Aggrieved by the above judgment these appeals have been filed 4. When these appeals were taken by this Court on 17.12.2020 learned counsel for the appellants confined his submissions to the conviction under Section 324 IPC only. Learned counsel for the appellants further volunteered that the appellants are willing to compensate the family of the deceased. Following order was passed on 17.12.2020 by this Court “Learned senior counsel for the petitioners confines his submissions to the conviction under Section 224 of the IPC on the ground that what was used was a baton. He volunteers that the petitioners are willing to compensate the family of the deceased and that they are now in their middle 70s. On a Court query learned counsel offers and agrees to deposit Rs.3.5 lakhs each for the two petitioners each totaling to Rs.7 lakhs as compensation in this Court within three weeks so that the total compensation admissible to the family would be 10 lakhs taking into consideration Rs. 3 lakhs awarded to the legal representatives of the deceased which the State Government would have paid. Issue notice on the SLP as well as on the interim bail returnable in the first miscellaneous week post the winter recess. We consider appropriate to implead the legal representatives of the deceased as Amended memo of parties be filed. Notice be also issued to the said Dasti in addition through the standing counsel for the State and to the legal heirs of the deceased in person.” Legal heirs representatives of the deceased were impleaded in these appeals and they entered appearance before this Court. On 08.01.2021 following order was “Applications for exemption from filing c c of the impugned judgment and official translation are allowed. Learned counsel for the legal heirs of the deceased have entered appearance through counsel and are agreeable to the proposal made by learned counsel for the petitioner on 17.12.2020 which was recorded by us. Learned counsel for the State submits that he has just entered appearance and may be given a short accommodation to obtain instructions and make necessary submissions. List on 13.01.2021. Both the learned senior counsel for the petitioner and learned counsel for the State will submit a one page synopsis in advance on the course of action suggested by them.” Thereafter the appeals were heard by this Court on 04.02.2021. We have heard Shri R. Basant learned senior counsel and Shri Yasobant Das learned senior counsel for the appellants. Shri Ravi Prakash Mehrotra has appeared for the State of Odisha and Ms. Priyanka Vora has appeared for the legal representatives of the Shri Basant learned senior counsel submits that in pursuance of this Court’s order dated 17.12.2020 the appellants have already deposited the amount of Rs.3.5 lakhs each in the Registry of the Court. He submits that learned counsel appearing for the legal representatives are also agreeable with the proposal made by the learned counsel for the appellants hence conviction under Section 324 IPC be compounded by this Court under Section 320(2) Cr.P.C. Learned counsel submits that on the date when the offences took place i.e. 04.5.1985 offences under Section 324 IPC were compoundable which subsequently have been made non compoundable. He submits that both the appellants are now more than 75 years of age and acting under the order of this Court dated 17.12.2020 the appellants having deposited amount for compensation to be paid to the legal heirs the offences be In addition to the above submission learned counsel for the appellants has also contended that conviction under Section 324 IPC by the High Court is unsustainable. He submits that the conviction under Section 324 IPC deserves to be converted to the conviction under Section 323 IPC. He submits that the ingredients of Section 324 IPC are not made out from the evidence brought on record. He submits that injuries which were found on the body of the deceased were all simple injuries. He submits that weapon of offence being only a wooden batten lathi which weapon was not likely to cause death hence conviction under Section 324 was unjustified. He further contends that either the offence be converted under Section 323 IPC or imprisonment be substituted by fine. 10. Shri Basant further submits that alleged weapons of offence i.e. MO.IV and MO.VII were not shown to PW.1 during trial for identification. Learned counsel further submits that there were material contradictions in the statement of PW.1 Kusia Naik so his evidence deserved to be rejected. He submits that the High Court itself has found the statement of PW.1 only partially reliable. Shri Basant however fairly submitted that conviction under Section 471 IPC is not sought to be compounded which is non compoundable. Learned counsel has not challenged the conviction under Section 471 34 IPC and is confined his submission only with regard to the conviction under Section 324 IPC 11. Learned counsel for the State of Odisha Shri Mehrotra referring to affidavit filed on behalf of the State submits that with regard to the amount of compensation directed by the High Court to be given by the State Government the State Government has completed necessary procedural formalities and would deposit or give the compensation amount as directed by the High Court to the legal representatives in the mode and manner as this Court would please direct. 12. Learned counsel appearing for the legal representatives of the deceased Kasinath Naik expressed their agreement to proposal of the learned counsel for the appellants as noticed in the order 13. We have considered the submissions of the learned counsel for the parties and perused the record. 14. The High Court in its judgment has noticed the prosecution case in paragraph 2 of the judgment Paragraph 2 of the High Court judgment is as follows “2. The prosecution case as per the first information report lodged by Kusia Nayakon 05.05.1985at 11 a.m before the D.S.P. City Cuttack(S) is that the informant was staying in a rented house of one Bishnu Mohanty of Rajabagicha Cuttack. On 02.05.1985 he had been to Nayagarh in connection with the marriage of his nephew and returned home to Cuttack in the morning hours of 04.05.1985. After arrival he was informed by his wife Kanchan Deithat there was quarrel between their Basti residents Sura and Bainshi on Friday. He went to the market and returned at about 4 p.m. when his wife told him that Pramod Naik Benu Naik and Guna Naik were abusing her in filthy language and telling her to drive out her family members as they had no houses and no holding numbers. The informant was also told by his wife that 4 Thana Babu of Purighat police station had called him to go to the police station. After sometime Kasinath Naik also told the informant that the constable had come and told him in that respect. Accordingly both the informant and the deceased decided to go to Purighat police station. In the evening hours when both of them reached at Purighat police station one police officer having mustache told the deceased that on the next time he would cause fracture of the hands and legs of the son of the deceased by assaulting him as the later had filed a case against him before the Legal Aid. The deceased remained silent The said police officer also used slang language against the deceased and told that he belonged to Alisha Bazar Cuttack and he would not allow the family of the deceased to stay at Cuttack and no lawyer could do anything to him The deceased replied to the said police officer that on being assaulted his wife and son had filed the case before the Legal Aid and he did not know anything in that respect It is further stated in the first information report that the said police officer having mustache gave a kick to the deceased and again used slang language and also gave two blows on the hands of the informant and also kicked him. Then said police officer having mustache further assaulted the 5 deceased who cried aloud and in that process he sustained bleeding injuries on his body. The informant was asked to wait in one room of the police station and the deceased was taken to the other side verandah of the police station and was assaulted. Though the informant was not able to see the assault but he could hear the cries of the deceased. Then the police officer called the informant outside and after he came out he saw the appellant Pravat Mohanty assaulting the deceased by means of a stick and the deceased was crying aloud. The informant gave water to the deceased on being told by the police officer but the deceased was having no strength to walk and he was just crawling. The deceased came near the informant and he was having bleeding injuries on his hands and necks and the legs were swollen. The deceased was telling that he would not survive and would die. When the deceased sought permission to attend the call of nature the police officer having mustache and appellant Pravat Mohanty further assaulted him. When the deceased again requested to attend the call of nature with permission of the police officer the informant took him for such purpose and after they returned the appellant Pravat Mohanty asked the deceased as to why he was limping. The deceased was given bread to eat but when he refused appellant Pravat Mohanty compelled him to take bread and further assaulted him 6 on his knee. Getting indication from the constable the informant concealed the bread and told the police officer that the deceased had already taken the bread. The said police officer brought liquor in a bottle and poured it in the mouth of the deceased as well as the informant and then sprinkled liquor over them and went outside of the police station. Sura Naikwho belonged to the Basti of the informant came to the police station and talked with one Mishra Babu secretly but on seeing the deceased and the informant he went away. Then appellant Pravat Mohanty again assaulted the deceased and asked him to sit in a vehicle to go to the hospital. At that time it was 11 to 12 O’ clock in the night. The appellant Pravat Mohanty a driver and a constable lifted the deceased and placed him inside the vehicle and he was crying that he would not survive. When the informant expressed his eagerness to accompany the deceased to the hospital he was told that there was no necessity to accompany the deceased even though the deceased was calling the informant to accompany him. After the deceased was taken away from the police station one constable chained the left leg of the informant to a table of the police station and in the morning hours the informant was untied as per the instruction of the appellant Pravat Mohanty. One sweeper was called to the police station and he was asked to clean the blood and stool of 7 the deceased which was lying at different places inside the police station. At that time the informant came to know that the deceased had died in the hospital last night. The widow of the deceased had also come to the police station crying but she was not allowed to stay there by the Havildar. It is mentioned in the first information report that the police officer having mustache was a fair and tall person. On receipt of such first information report Purighat Lalbag P.S. Case No.273 of 1985 was registered under sections 302 342 323 294 201 read with section 34 of the Indian Penal Code on 05.05.1985 at 11 a.m against appellant Pravat Mohanty and the other police officer of Purighat police station 15. The prosecution in the trial has examined 39 witnesses i.e. PW.1 to PW.39. PW.1 Kusia Naik being informant eye witness and injured witness and PW.39 Gaganbehari Mohanty being the IO. No witness was examined for the defence. A large number of Exhibits running Ext.1 to Ext.67 1 were produced by the prosecution. Ext.A to Ext.J were also admitted into the evidence by defence. MO.I to MO.VII were material objects. After marshalling evidence on record the learned trial judge while holding conviction under Section 304read with Section 34 IPC recorded its conclusion in paragraph 74 which is to the “74. It is thus found that there is nexus between death of the deceased and the act of the accused persons in subjecting him to long detention throughout the night and in mercilessly beating him. Therefore it is clear that such death was caused by the act of the accused persons. They did it in furtherance of their common intention. The facts of the case disclose that there might not be an intention to cause such bodily injury as was likely to cause death. But the facts disclose that the accused persons knew that their act would be likely to cause death. Hence it is found that the accused persons also committed an offence punishable u s 304(Part II) I.P.C. read with section 34 IPC.” 16. The defence which was taken on behalf of the accused before the Courts below was that deceased Kasinath Naik came to Purighat Police Station at about 9 p.m. on 04.05.1985 to lodge an FIR regarding occurrence of assault on the deceased which took place on the Kathajori River embankment at about 9 p.m. by some unknown person in which the deceased sustained injuries. The case No.272 1985 was registered by appellant Mohanty who directed the appellant Choudhury to investigate the case and maintain case diary. In order to substantiate its plea the evidence regarding FIR in Case No.272 1985 the case diary maintained in the said case by the appellant Choudhury was marked as 17. The High Court after marshalling the evidence on record has held that the FIR lodged to have been signed by the deceased Kasinath Naik on which Lalbag P.S Case No.2785 was registered did not contain the signature of Kasinath Naik. In Case No.272 1985 final report was submitted indicating the case to be false No one challenged the final report submitted in Case No.272 1985. It is relevant to notice the relevant discussion by the High Court which is to the following “In view of the foregoing discussions the defence plea that any occurrence of assault on the deceased took place on the Kathajori river embankment on 04.05.1985 at about 9.00 p.m. in which the deceased sustained injuries and came to lodge the first information report to Purighat police station and accordingly the F.I.R. was registered and that as per the direction of appellant Pravat Mohanty appellant P.K. Choudhury took up investigation of the case and maintained case diary vide Ext.63 mentioning all correct state of affairs is not acceptable. I am of the considered view that the deceased had not presented any F.I.R on 04.05.1985 at 10 p.m. at Purighat police station and a false F.I.R. is shown to have been presented by him which carries the forged signature of the deceased vide Ext.A.” 18. Both the appellants have been convicted under Section 371 34 IPC by the courts below finding offence of forging and fabrication of record to be proved. The reason for fabricating the false story that deceased Kasinath Naik came to Police Station to lodge an FIR about the assault on him at 9 p.m. was only with a view to save the accused with intent to explain injuries caused on the body of deceased which he received during his stay in the Police Station. As noted above the conviction of the appellants under Section 371 34 IPC has not been challenged before us. The defence taken by the appellants has miserably failed. The High Court after re appraising the evidence on record including the oral and documentary evidence has come to the conclusion that ante mortem injuries noticed on the person of the deceased as per postmortem report were caused in Purighat Police Station during his stay from 7.30 p.m. till post midnight on 4 5.05.1985 and the evidence of the scientific officer and chemical report also corroborates the assault at the police station and the appellants were author of those injuries. The trial court has also held in its judgment after marshalling the entire evidence that injuries were caused to the deceased Kasinath Naik in the Police Station Purighat by both the accused. The High Court on reappraisal of the evidence came to the same finding. 19. We have carefully perused the judgment of the trial court as well as the High Court and have adverted to the marshalling of oral evidence by both the Courts below as well as analysis of the documentary evidence on record where evidence of PW.1 who was the informant and eye witness has rightly been believed by the trial court and the High court to the fact that both deceased and informant arrived at Police Station after 7.30 p.m and they were mercilessly beaten by Choudhury and Mohanty. In spite of Varandah of the Police Station washed in the morning by the sweeper the scientific officer who visited the police station found the blood stains in the Varandah. 20. The evidence of PW.1 could not have been discarded merely because he was an agnate of the deceased. In the long cross examination PW.1 could not be shaken and his evidence of account given of beating of the deceased by the Police Officers i.e. Choudhury and Mohanty is to be believed and relied on 21. Now we may notice the submissions of the learned counsel for the appellants challenging their conviction under Section 324 IPC. Section 324 IPC reads: “Section 324. Voluntarily causing hurt by dangerous weapons or means.—Whoever except in the case provided for by section 334 volun tarily causes hurt by means of any instrument for shooting stabbing or cutting or any instrument which used as weapon of offence is likely to cause death or by means of fire or any heated substance or by means of any poison or any corrosive substance or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale to swallow or to receive into the blood or by means of any animal shall be punished with imprisonment of either de scription for a term which may extend to three years or with fine or with both.” 22. Emphasis of learned counsel for the appellants is that only lathi and wooden batten were alleged to have been used as weapons of offence use of which weapons cannot be said to be likely to cause death. MO.IV was a bamboo lathi and Mo.VII was a wooden batten. Section 324 IPC uses the examination of “weapon of offence” The submission cannot be accepted that use of wooden lathi and batten are weapons which are not likely to cause death. Wooden lathi and batten are the weapons which are usely possessed by the police and the submission cannot be accepted that the injuries cannot be caused by wooden lathi and batten which may cause death. It depends on the manner of use of the wooden lathi and batten 23. Learned counsel further submits that MO.IV and MO.VII were not shown to PW.1 during trial for identification. MO.IV and MO.VII were seized and exhibited as material objects. The failure of prosecution to show the MO.IV and MO.VII to PW.1 in no manner can be said to be fatal to the prosecution case Wooden lathi and batten are the weapons of the police force and the injuries having caused to the deceased by these weapons as has been found by the trial court and High Court non showing to PW.1 cannot impeach the credibility of evidence of PW.1 24. Now we look into the injuries which were found on the body of deceased. Post Mortem report is Exhibit 43 PW. 37 Dr. Debendra Kumar Pattnaik had conducted the post mortem who also appeared in the Court. The external injuries found on the body of the deceased are as follows: “1. Pattern bruise and abrasion in an area of 5” x 3” on the lateral side of right thigh at its lower 1 3rd 2. Pressure abrasion 2” x ½” in front of right leg 4” below the right knee 3. Pressure abrasion 1.1 2” x 1 2" in the medial aspect of right leg 2.1 2” above the medial malieolus 4. Multi pressure abrasion in an area of 10” x 4” in front of left leg 3.1 2” below the knee 5. Lacerated wound 1 5” x 1 4% x skin deep 4.1 2” below the left knee in front without involving the bone 6. Grazed abrasion ½” x ½” on the left buttock 2” away from the anus 7. Pressure abrasion in an area of 2” x 1” on left elbow joint on its posterior as pect 8. Pattern bruise in an area of 7” x 5” on the lateral aspect of the left 9. Pattern bruise in an area of 20” x 3” on the right hand from 3” above the elbow to the dorsom of palm 10. Pattern bruise 12 cm x 1” size in the left side of back over the 11. Pattern bruise 12 cm x 1” on left side of back over the left scapula region.” 25. The trial court has also convicted on the inquest report prepared by accused P.K. Chaudhary i.e. Exhibit 16. The trial court has after considering the evidence recorded the findings that with mala fide intentions to suppress the injuries description of injuries have been minimized in Exhibit 16 by accused P.K. Chaudhary. We are not persuaded to accept submissions of learned counsel for the appellants that conviction by the High Court under Section 324 IPC is initiated. We thus affirm the conviction of accused under Section 324 IPC 26. Now we come to the submission which has been much pressed by learned counsel for the appellant i.e. composition of offence under Section 324 IPC Section 320 of the Code of Criminal Procedure 1973 provides for compounding of offence. Sub Sectionof Section 320 contains a table which may be compounded by persons mentioned in third column of the table whereas sub sectionof Section 320 provides: “320(2). The offences punishable under the sections of the Indian Penal Code 45 of 1860) specified in the first two columns of the table next following may with the permission of Court before which any prosecution for such offence is pending be compounded by the persons mentioned in the third column of that table.” 27. Sub Section of Section 320 provides as follows: “320(5). When the accused has been committed for trial or when he has been convicted and an appeal is pending no composition for the offence shall be allowed without the leave of the Court to which he is committed or as the case may be before which the appeal is to be heard.” 28. The present is a case where accused has already been convicted for offence under Section 324 IPC. By Cr.P.C. Act 2005 offence under Section 324 IPC has been made non compoundable offence. Prior to the aforesaid amendment offence under Section 324 was compoundable. Learned counsel for the appellants is right in his submissions that on the date when offence was committed i.e. 04 05.05.1985 the offence under Section 324 IPC was compoundable. We thus need to examine as to whether in the present case the request of the appellants to which learned counsel appearing for the legal representative of the deceased have also agreed need to be accepted and this Court may permit compounding of offence under Section 324 IPC. 29. The offence under Section 324 in the facts of the present case can be compounded only with permission of the Court. Sub Sectionof Section 320 provides that “no composition for the offence shall be allowed without the leave of the Court.” Thus the composition of the offence in the facts of the present case is not permissible only on the agreement on the request of the appellant which may be also accepted by the legal heirs of the deceased but composition is permissible only by the leave of the Court. 30. The grant of leave as contemplated by sub section 5) of Section 320 is not automatic nor it has to be mechanical on receipt of request by the appellant which may be agreed by the victim. The statutory requirement makes it a clear duty of the Court to look into the nature of the offence and the evidence and to satisfy itself whether permission should be or should not be granted. The administration of criminal justice requires prosecution of all offenders by the State. 31. The prosecution by the State is the policy of law because all the offences are against the society. The offenders have to bring to the Courts and punish for their offences to maintain peace and order in the society. It is the duty of the prosecution to ensure that no offender goes scot free without being punished for an offence. It is also the settled principle of law that innocent should not be punished. 32. The question arises as to while granting leave of the Court for composition of offence what is the guiding factor for the Court to grant or refuse the leave for composition of offence. The nature of offence and its affect on society are relevant considerations while granting leave by the Court of compounding the offence. The offences which affect the public in general and create fear in the public in general are serious offences nature of which offence may be relevant consideration for Court to grant or refuse the leave. When we look into the conclusion recorded by the trial court and the High Court after marshalling the evidence on record it is established that both the accused have mercilessly beaten the deceased in the premises of the Police Station. Eleven injuries were caused on the body of the deceased by the accused. As per the evidence of PW 1 which has been believed by the Courts below the victim was beaten mercilessly so that he passed on stool Urine and 33. We may refer to a Division Bench Judgment of Nagpur High Court reported in Provincial Government Central Provinces and Berar vs. Bipin Singh Choudhary AIR 1945) Nagpur Oudh Peshawar & Sind 104 where the Division Bench consisted of Justice Vivian Bose(as he then was) had occasion to consider the provisions of Section 345 Criminal Procedure Code 1898 which are pari materia provision to Section 320 Cr.P.C. In the above case the Government had filed an appeal where sanction was accorded under Section 345(2) Cr.P.C. to the compounding of offence of cheating. The respondent accused in that case was found guilty of cheating. He had cheated a litigant. The accused was clerk in the High Court. He induced the complainant to pay him a sum of Rs. 2 000 stating that accused would hand it over to one of the Judges in charge of the complainant’s case as a bribe. Learned Magistrate has accorded sanction stating that complainant and accused were friends and it would be pity to disturb their friendly relations with which public at large are not concerned and in which they are not interested. 34. The Division Bench of the High Court expressed its disagreement with the view taken by the Magistrate. The Court held that the matter was of a very great public concern. The Division Bench held following in the above case: “...The matter is however aggravated when we find that the person who is said to have done the cheating is a clerk of the Court. All public servants attached to a Court are trustees and guardians of the honour and integrity of the Court. It is a matter of grave import if any of them attempts to extract an illegal gratification or extort money from those who seek access to the Courts or endeavours to lead them astray and by abusing his position tries to enrich himself. Persons in this class of life are looked upon as persons of influence and of some authority by the ordinary ignorant public. If therefore they abuse the position of confidence in which they are placed by reason of their office it becomes a matter of great public concern. In our opinion it is perverse to consider otherwise. If ever there was a case in which composition should have been refused this is such a case...” 35. The ratio of the judgment is that in event people holding public office abuse their position it becomes a matter of great public concern. We fully endorse the above view of the Nagpur High Court 36. Present is a case where the offence was committed by the in charge of the Police Station Purighat as well as the Senior Inspector posted at the same Police Station. The Police of State is protector of law and order. The people look forward to the Police to protect their life and property. People go to the Police Station with the hope that their person and property will be protected by the police and injustice and offence committed on them shall be redressed and the guilty be punished. When the protector of people and society himself instead of protecting the people adopts brutality and inhumanly beat the person who comes to the police station it is a matter of great public concern. The beating of a person in the Police Station is the concern for all and causes a sense of fear in the entire society. 37. We may refer to the judgment of this Court in Yashwant and others vs. State of Maharashtra 18 SCC 571 where this Court laid down that when the police is violator of the law whose primary responsibility is to protect the law the punishment for such violation has to be proportionately stringent so as to have effective deterrent effect and instill confidence in the society. Following was laid down in paragraph 34: “34. As the police in this case are the violators of law who had the primary responsibility to protect and uphold law thereby mandating the punishment for such violation to be proportionately stringent so as to have effective deterrent effect and instill confidence in the society. It may not be out of context to remind that the motto of Maharashtra Khalanighrahanaya”which needs to be respected. Those who are called upon to administer the criminal law must bear in mind that they have a duty not merely to the individual accused before them but also to the State and to the community at large. Such incidents involving police usually tend to deplete the confidence in our criminal justice system much more than those incidents involving private individuals. We must additionally factor this aspect while imposing an appropriate punishment on the accused herein.” 38. The observations as quoted above are fully attracted in the facts of the present case. We thus are of the considered opinion that present is a case where this Court is not to grant leave for compounding the offences under Section 324 IPC as prayed by the counsel for the appellants. The present is a case where the accused who were police officers one of them being in charge of Station and other Senior Inspector have themselves brutally beaten the deceased who died the same night. Their offences cannot be compounded by the Court in exercise of Section 320(2) read with sub section 10 SCC 765. In the above case the Court refused to compound the offence but the Court proceeded to interfere with the question of sentence In paragraph 10 following was laid down: “10. Having said that we are of the view that the settlement compromise arrived at between the parties can be taken into consideration for the purpose of determining the quantum of sentence to be awarded to the appellants. That is precisely the approach which this Court has adopted in the cases referred to above. Even when the prayer for composition has been declined this Court has in the two cases mentioned above taken the fact of settlement between the parties into consideration while dealing with the question of sentence. Apart from the fact that a settlement has taken place between the parties there are few other circumstances that persuade us to interfere on the question of sentence awarded to the 42. To the same effect is the another judgment of this Court in Ishwar Singh vs. State of Madhya Pradesh 2008) 15 SCC 667 following was laid down in paragraph 12 13 and 14: “12. Now it cannot be gainsaid that an offence punishable under Section 307 IPC is not a compoundable offence Section 320 of the Code of Criminal procedure 1973 expressly states that no offence shall be compounded if it is not compoundable under the Code. At the same time however while dealing with such matters this Court may take into account a relevant and important consideration about compromise between the parties for the purpose of reduction of sentence 13. In Jetha Ram v. State of Rajasthan Murugesan v. Ganapathy Velar and Ishwarlal v. State of M.P this Court while taking into account the fact of compromise between the parties reduced sentence imposed on the appellant accused to already undergone though the offences were not compoundable. But it was also stated that in Mahesh Chand v. State of Rajasthan such offence was ordered to be compounded 14. In our considered opinion it would not be appropriate to order compounding of an offence not compoundable under the Code ignoring and keeping aside statutory provisions. In our judgment however limited submission of the learned counsel for the appellant deserves consideration that while imposing substantive sentence the factum of compromise between the parties is indeed a relevant circumstance which the Court may keep in mind.” 43. Looking to the facts that both the appellants are more than 75 years of age now we are of the considered opinion that the ends of justice be served in reducing the sentence awarded for conviction under Section 324 IPC to six months instead of one year. Additionally the legal heirs of the deceased can be compensated by the compensation which has been offered and deposited by the appellant in this Court. Thus sentence of one year is reduced to six months by awarding compensation of Rs.3.5 Lakhs each to the legal heir of the deceased in addition to the compensation awarded by the High Court The compensation deposited in this Court shall be remitted to the trial court who may pay the same to the legal heirs of the deceased. The affidavit has been filed before us that the deceased had four sons his wife is dead the entire amount be disbursed equally to two sons who are alive and heirs of two deceased sons. 44. In result the appeals are partly allowed. The sentence awarded to the appellants under Section 324 IPC of one year is reduced to six months with enhancement of compensation to Rs.3.5 lacs each in addition to compensation awarded by the High Court to be paid to the legal heirs of the deceased. The compensation to the legal heirs be paid as directed ( ASHOK BHUSHAN ( AJAY RASTOGI New Delhi February 11 2021 |
Cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC: Supreme Court | Cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC. Cheating is defined under Section 415 of the IPC. In the matter of Archana Rana vs. State of Uttar Pradesh [CRIMINAL APPEAL NO. 167 OF 2021], the Court held cheating as an essential ingredient for an offence under Section 420 of the IPC. The judgement was given by Justice Dr. Dhananjaya Y. Chandrachud and Justice M.R. Shah. An FIR was lodged by the respondent under Sections 419, 420, 323, 504 and 506 IPC alleging, that the appellant’s husband had taken a sum of Rs.5,00,000/- from him for getting his son employed. However, his son did not get any employment and subsequently when they went to the house of the appellant to ask for the return of the money, the appellant assaulted the complainant and threatened to get them falsely implicated in criminal cases and the appellant pushed/thrown him and his son from her house. The appellant filed a petition to quash the FIR under Section 482 Cr.P.C and the criminal proceedings but it was dismissed by the Court and hence, the appellant preferred the present appeal. It was submitted by the learned counsel appearing on behalf of the appellant that no case is made out against the appellant for the offences under Sections 419 & 420 IPC. Heavy reliance was placed on the the case of Prof. R.K. Vijayasarathy v. Sudha Seetharam (2019) 16 SCC 739 and Dr. Lakshman v. State of Karnataka (2019) 9 SCC 677. The judgement stated, “As observed and held by this Court in the case of Prof. R.K. Vijayasarathy (supra), the ingredients to constitute an offence under Section 420 are as follows: i) a person must commit the offence of cheating under Section 415; and ii) the person cheated must be dishonestly induced to a) deliver property to any person; or b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. Thus, cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC. Cheating is defined under Section 415 of the IPC. The ingredients to constitute an offence of cheating are as follows: 4 i) there should be fraudulent or dishonest inducement of a person by deceiving him. The person who was induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or the person who was induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived. Thus, a fraudulent or dishonest inducement is an essential ingredient of the offence under Section 415 IPC. A person who dishonestly induced any person to deliver any property is liable for the offence of cheating.” | IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 167 OF 2021 State of Uttar Pradesh and another JUDGMENT M.R. SHAH J Feeling aggrieved and dissatisfied with the impugned judgment and order dated 27.11.2019 passed by the High Court of Judicature at Allahabad in Criminal Miscellaneous Application No. 5213 of 2018 by which the High Court has dismissed the said application preferred by the appellant herein to quash chargesheet dated 10.05.2017 as well as the entire proceedings of Case Crime No. 1516 under Sections 419 420 323 504 and 506 IPC P.S Kotwali District Azamgarh pending in the Court of learned Chief Judicial Magistrate Azamgarh the appellant original accused No. 2 has preferred the present appeal. That respondent no.2 complainant lodged an FIR against the appellant herein and her husband for the offences under Sections 419 420 323 504 and 506 IPC alleging inter alia that the appellant’s husband had taken a sum of Rs.5 00 000 from him for getting his son employed. However his son did not get any employment and subsequently when they went to the house of the appellant to ask for the return of the money the appellant assaulted the complainant and threatened to get them falsely implicated in criminal cases and the appellant pushed thrown him and his son from her house. The same was registered as Case Crime No. 153 2016 with P.S. Kotwali District Azamgarh Thereafter the investigating officer filed the chargesheet against the appellant herein and one another for the offences under Sections 419 420 323 504 and 506 IPC. That the appellant herein approached the High Court by way of criminal miscellaneous application No. 52118 under Section 482 Cr.P.C. to quash chargesheet dated 10.05.2017 as well as the entire criminal proceedings. By the impugned judgment and order the High Court has dismissed the said application and has refused to quash the criminal proceedings chargesheet Hence the appellant has preferred the present appeal Learned counsel appearing on behalf of the appellant herein has vehemently submitted that on a bare reading of the FIR and even the chargesheet and the allegations taken on their face no case is made out against the appellant herein. It is submitted that at least no case is made out against the appellant for the offences under Sections 419 & 420 IPC. It is submitted that even if the averments in the complaint taken on their face do not constitute the ingredients necessary for the offence or do not disclose the commission of an offence under IPC. It is submitted that therefore the High Court ought to have quashed the criminal proceedings against the appellant herein for the offences under Sections 419 420 323 504 and 506 IPC. Heavy reliance is placed on the decision of this Court in the case of Prof. R.K. Vijayasarathy v. Sudha Seetharam16 SCC 739 and Dr. Lakshman v. State of Karnatakathe ingredients to constitute an offence under Section 420 are as follows a person must commit the offence of cheating under Section 415 and the person cheated must be dishonestly induced to a) deliver property to any person or b) make alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security Thus cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC. Cheating is defined under Section 415 of the IPC. The ingredients to constitute an offence of cheating are as follows there should be fraudulent or dishonest inducement of a person by property or The person who was induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any the person who was induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived Thus a fraudulent or dishonest inducement is an essential ingredient of the offence under Section 415 IPC. A person who dishonestly induced any person to deliver any property is liable for the offence of cheating Now keeping in mind the relevant ingredients for the offences under Sections 419 & 420 IPC as noted hereinabove it is required to be considered whether the averments in the complaint taken on their face do constitute the ingredients necessary for the offences under Sections 419 & 420 IPC as Having gone through the complaint FIR and even the chargesheet it cannot be said that the averments in the FIR and the allegations in the complaint against the appellant constitute an offence under Section 419 & 420 IPC Whatever allegations are made for the offence with respect to inducement and or even giving Rs.5 00 000 for obtaining the job are made against the appellant’s husband co accused. There are no allegations at all that the appellant herein induced the complainant to get the job and the amount of Rs.5 00 000 was given to the appellant herein. Therefore even if all the allegations in the complaint taken at the face value are true in our view the basic essential ingredients of cheating are missing. Therefore this was a fit case for the High Court to exercise the jurisdiction under Section 482 Cr.P.C. and to quash the criminal proceedings against the appellant herein for the offences under Section 419 & 420 IPC. The High Court has failed to exercise the jurisdiction vested in it by not quashing the criminal proceedings against the appellant herein for the offences under Sections 419 & 420 IPC Now so far as the FIR chargesheet criminal proceedings against the appellant herein for the other offences namely under Sections 323 504 & 506 IPC are concerned the High Court has rightly not quashed the criminal proceedings qua the said offences In view of the above and for the reasons stated above the present appeal is allowed in part. The criminal proceedings against the appellant herein for the offences under Section 419 & 420 IPC arising out of Case Crime No. 153 2016 registered with P.S. Kotwali District Azamgarh pending in the Court of learned Chief Judicial Magistrate Azamgarh are hereby quashed and set aside. The criminal proceedings against the appellant herein for the offences under Sections 323 504 & 506 IPC pending in the Court of learned Chief Judicial Magistrate Azamgarh shall be continued as per the chargesheet and shall be disposed of in accordance with law on their own merits Dr. Dhananjaya Y. Chandrachud New Delhi March 01 2021 M.R. Shah] |
Re-litigation of similar issues decided in previous orders cannot be permitted: Delhi High Court | Abuse of the process of court cannot be permitted, the court observed that the Petitioner’s contention have earlier been considered in the previous order and the current petition would again lead to investigation of the similar facts which cannot be permitted. Hence the division bench refused to entertain re-litigation of the same issue. The Delhi High Court presided over by J. R. Sahai & J. A. Menon laid down this ratio in the case of H.C. Ram Naresh Vs. Union of India, [W.P.(C) 10853/2020]. The facts of the case are that a Petitioner filed a petition before the Court seeking directions from the court to the Indo-Tibetan border police for consideration of a third medical report apart from apart from earlier medical reports of the medical board and appeal medical board of the ITPB which diagnosed the petitioner with alcohol dependence syndrome. The petition was considered by the Delhi high court which granted the relief to the petitioner; however, the petitioner filed another writ petition before the court regarding the same issue. The court heard the petitioner’s argument but observed that it had already considered the contentions in the previous petition. The respondents submitted before the court that they would comply with the previous court orders and consider the third medical report before taking any steps against the petitioner regarding the disciplinary proceedings. The Division bench of the Court observed that the new writ petition filed has sought similar relief finding flaws in the previous order. The Court was of the opinion that if such re-litigation is permitted it would be an abuse to the process of law. The Court further stated that, “The petitioner, earlier found to be suffering from Alcohol Dependence Syndrome, now appears to be suffering from Litigation Dependence Syndrome.” The Court further stated that, “The petitioner cannot be permitted to frustrate the action if any, liable to be taken against him, in this manner and it is high time that such attempts are put to a stop. If we entertain this petition at this interim stage of the action, if any, to be taken by the respondents against the petitioner, the same will again defer the decision, if any, to be taken against the petitioner.” | VC 10 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 22nd December 2020 W.P.10853 2020 CM APPL. No.34028 2020H.C. RAM NARESH UNION OF INDIA & ORS Petitioner Through: Mr. R.K. Shukla with Ms. Bhawna Massey Advocates Through: Mr. Ripudaman Bhardwaj CGSC for UOI with Mr. Kushagra Kumar Mr. Ashu Pathak Advocates. HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON BLE MS. JUSTICE ASHA MENON VIA VIDEO CONFERENCING] RAJIV SAHAI ENDLAW J. The petitioner had earlier filed W.P. 6717 2018 seeking mandamus directing the respondents no. 3 and 4 Indo Tibetan Border Police to obtain a third medical opinion to find out the truthfulness of the findings of the Medical Board and the Appeal Medical Board of the respondents no. 3 and 4 ITBP of the petitioner having Alcohol Dependence Syndrome by referring the petitioner either to All India Institute of Medical Sciences or to Dr. Ram Manohar Lohia Hospital or to any other hospital and to extend to the petitioner the W.P.10853 2020 benefits of the orders passed by this Court in W.P.7875 2017 titled Sanjay Yadav vs. Union of India & Ors decided on 29th January 2018. 2. W.P.6717 2018 came up first before this Court on 27th June 2018 when status quo with regard to service of the petitioner was ordered to be maintained. Finally the said petition was disposed of by a Bench comprising of us only by a judgement dated 8th December 2020 reasoning that the petitioner had been referred for third opinion seeking which the petition had been filed and thus the relief claimed in the petition stood satisfied. This petition has been filed though by wording the relief differently but otherwise finding faults with our judgement dated 8th December 2020 in the earlier petition bearing W.P. 6717 2018 preferred by the petitioner and seeking an order contrary thereto. Though we are honoured by the petitioner preferring this petition in the form of an appeal against our order before us only but are afraid in law the same amounts to re litigation and which has been held to be an abuse of the process of the Court. Reference in this regard may be made to K.K. Modi v. K.N. Modi3 SCC 573 Sardar Estates Vs. Atma Ram Properties Private Limited6 SCC 609 and Chandra Gupt Vs. Bharat Gupt 2018 SCC OnLine Del 9510. The petitioner earlier found to be suffering from Alcohol Dependence Syndrome now appears to be suffering from Litigation Dependence Syndrome. However we have allowed the counsel for the petitioner to argue to his heart’s contents and he has in his arguments contended that the third medical opinion obtained by this Court as well as the status report filed in W.P.10853 2020 pursuance to our directions in the earlier petition is in favour of the Needless to state that both of them were considered by us while passing the judgement dated 8th December 2020. The counsel for the respondents appearing on advance notice also states that the respondents before further proceeding against the petitioner if at all will take into consideration the medical opinion obtained under orders of this Court as well as the status report. In view of the aforesaid statement of the counsel for the respondents this petition does not lie. The petitioner earlier approached this court against the findings of the Medical Board without waiting for the administrative decision if any of the respondents to board out the petitioner from service and against which decision if any the petitioner would have had departmental remedies. By filing that petition and during the pendency of which there was an interim stay the petitioner deferred delayed the decision making if any by the respondents qua boarding out of the petitioner obviously to his own advantage. The petitioner by filing this petition is again attempting to delay decision making by the respondents thereby perpetuating his own continuance in service even if of no utility to the respondents. The petitioner cannot be permitted to frustrate the action if any liable to be taken against him in this manner and it is high time that such attempts are put to a stop. If we entertain this petition at this interim stage of the action if any to be taken by the respondents against the petitioner the same will again defer the decision if any to be taken against the petitioner. Interfering at the interim stage with the disciplinary proceeding has always been W.P.10853 2020 deprecated by the Supreme Court and this court in exercise of jurisdiction under Article 226 of the Constitution of India in its discretion ought not to vest the petitioner with any advantage. The petitioner if any decision prejudicial to him is taken will have the departmental remedies available to him and if remains dissatisfied shall then have the right to invoke 10. There is no merit in the present petition. Article 226. 11. Dismissed. DECEMBER 22 2020 RAJIV SAHAI ENDLAW ASHA MENON W.P.10853 2020 |
The post-mortem report shows that the petitioners may not be responsible for the death as it was due to asphyxia by hanging: High Court of Patna | The petitioners apprehended arrest under Section 304(B) of the Indian Penal Code, “Dowry death. Where the death of a woman is caused by any bodily injury within seven years of her marriage by her husband or any relative of her husband”, Section 120(B), “Punishment of criminal conspiracy”, Section 34 IPC, “Acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” The petition is in connection with Siwan Muffasil (Mahadeva OP) [PS Case No. 330 of 2020] dated 16.07.2020. In the High Court of Judicature at Patna, this judgement was given by Honorable Mr Justice Ahsanuddin Amanullah on the 17th of September 2021 in the case of Ramnath Sah and others Versus the State of Bihar, [Criminal Miscellaneous No.37701 of 2020] Mr Abdul Mannan Khan represented as the advocate for the petitioner, Ms Veena Kumari Jaiswal represented the State of Bihar as the additional Public Prosecutor, and Mr Harendra Prasad, represented as the advocate for the informant, the proceedings of the court were held via video conference. The following are the facts of the case, the petitioners who are the father-in-law, mother-in-law, elder brother of the husband and sister, respectively, of the husband of the deceased were accused of murdering the deceased (daughter-in-law) as she did not meet their dowry demand. The counsel representing the petitioner held that the allegations made in the FIR are falsely implicated and when the couple were married for three years there was no sign of any complaint before any authority concerning dowry demand or maltreatment and assault. The counsel further stated that the deceased died due to committing suicide and according to the post-mortem report the doctor have discovered a mark of rope around her neck and mentioned that the account of death was asphyxia due to hanging and looks like suicidal. The 3rd Additional Sessions Judge, Siwan dated 21.09.2020 in Anticipatory Bail Petition [No. 1490 of 2020], rejected anticipatory bail for the petitioners. The counsel held that since there is no other mark on the body the petitioner is not responsible for the same as it was her issue, the husband of the deceased is already in custody. The petitioner has no other criminal antecedent. The counsel submitted an affidavit where the informant has compromised the matter and stated that there was neither any demand earlier for dowry nor was, she killed by the petitioners. The additional public prosecutor held that the allegations are precise and the petitioners must be held accountable for demanding dowry and killing the deceased. The counsel representing the informant held that this case was nothing but murder and the petitioners were party to the same. The counsel held that he had not been instructed by the informant regarding compromise to this case before the court. After considering the facts and circumstances of the case, the court because of the finding in the post-mortem where it has been stated that the death was due to asphyxia by hanging and it appeared to be a case of suicide and also that an affidavit by the informant has been filed before the Court concerning compromising the mater and stating that the petitioners have not committed any offence as also the petitioners not having any other criminal antecedent, therefore the petitioners, who are in-laws of the deceased, are not responsible for such death, and the Court is inclined to allow the prayer for pre-arrest bail. The Honourable 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 Chief Judicial Magistrate, Siwan in Siwan Muffasil [PS Case No. 330 of 2020], subject to conditions under Section 438(2) Cr.P.C.1973 (i) that one of the bailors shall be a close relative of the petitioners, and (ii) that the petitioners shall cooperate with the Court and the police/prosecution. Failure to cooperate shall lead to the cancellation of their bail bonds. The petition stands disposed of in the aforementioned terms.” | IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.377020 Arising Out of PS. Case No. 330 Year 2020 Thana SIWAN MUFFASIL District Siwan Ramnath Sah aged about 55 yearsS o Late Bachan Sah 2. Gandhari Devi aged about 50 yearsW o Ramnath Sah Tuntun Sah aged about 35 yearsS o Ramnath Sah 4. Niraj Kumari @ Miji Kumari aged about 18 yearsD o Ramnath Sah All R o Village Jhunapur Dakshin Tola P.S. Mahadeva O.P. District The State of Bihar ... Petitioner s ... Opposite Party s For the State For the Petitioner s Mr. Abdul Mannan Khan Advocate Ms. Veena Kumari Jaiswal APP Mr. Harendra Prasad Advocate For the Informant CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 17 09 2021 The matter has been heard via video conferencing 2. Heard Mr. Abdul Mannan Khan learned counsel for the petitioners Ms. Veena Kumari Jaiswal learned Additional Public Prosecutor for the State and Mr. Harendra Prasad learned counsel for the informant 3. The petitioners apprehend arrest in connection with Siwan MuffasilPS Case No. 3320 dated 16.07.2020 instituted under Sections 304(B) 120(B) 34 of the Indian Penal Code Patna High Court CR. MISC. No.377020 dt.17 09 2021 4. The allegation against the petitioners who are father in law mother in law elder brother of the husband and sister respectively of the husband of the deceased is of killing her due to non fulfillment of demand of dowry 5. Learned counsel for the petitioners submitted that the allegations made in the FIR are totally false as never during three years of marriage there was any complaint made before any authority relating to any demand or maltreatment much less assault. Learned counsel submitted that the deceased had committed suicide and thus in the post mortem the doctor has only found mark of rope around the neck and has opined that the death was on account of “asphyxia due to hanging and looks like suicidal” as has been recorded in the order of the learned In charge 3rd Additional Sessions Judge Siwan dated 21.09.2020 in Anticipatory Bail Petition No. 14920 by which the prayer for anticipatory bail of the petitioners had been rejected. Learned counsel submitted that there being no other mark found on the body fortifies the argument that it is a case of suicide. Learned counsel submitted that the cause of suicide is also not known to the petitioners as it was a personal issue between the deceased and her husband who is already in custody. Learned counsel submitted that the informant has also Patna High Court CR. MISC. No.377020 dt.17 09 2021 compromised the matter and an affidavit to this effect has been filed before the Court below in which it has been stated that there was neither any demand earlier for dowry nor was she killed by the accused. It was submitted that the petitioners also do not have any other criminal antecedent. 6. Learned APP submitted that there is allegation of demand of dowry and also of killing of the deceased by the 7. Learned counsel for the informant submitted that it was a case of murder and the petitioners also had a role However on a specific query of the Court as to how he had been instructed by the informant to oppose the present application in the face of him having filed compromise before the Court below learned counsel submitted that he had not been instructed by the informant in this regard 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds that there are indications to the effect that the petitioners who are in laws of the deceased may not be responsible for such death more so in view of the finding in the post mortem where it has been opined that the death was due to asphyxia by hanging and it appeared to be a case of suicide and Patna High Court CR. MISC. No.377020 dt.17 09 2021 also that an affidavit by the informant has been filed before the Court below compromising the mater and stating that the petitioners have not committed any offence as also the petitioners not having any other criminal antecedent 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 like amount each to the satisfaction of the learned Chief Judicial Magistrate Siwan in Siwan MuffasilPS Case No. 3320 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and furtherthat 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 Patna High Court CR. MISC. No.377020 dt.17 09 2021 11. The petition stands disposed of in the (Ahsanuddin Amanullah J |
Reinstatement is not an automatic consequence of wrongful termination: Delhi High Court | The Supreme Court has clearly recognised the fact that reinstatement is not an automatic consequence of wrongful termination, especially when the Workman has during the pendency of litigation, not performed any services with the Management as upheld by the Hon’ble High Court of Delhi through the learned bench led by Justice Prathiba M. Singh in the case of M/S G4s Secure Solutions India Pvt. Ltd. and Ors. v. Sh. Sanjeev Pawar and Ors. (W.P.(C) 10953/2020) The brief background of the petition is that an incident had occurred in June, 2011 due to which a show cause notice was issued by the Management to the Workmen. To the said show cause notice, replies were filed by the Workmen, and thereafter, on 9th June, 2011, the Management had terminated the services of the Workmen. This termination was challenged before the Labour Court by way of a claim petition that was filed by the Workmen. In the claim petition before the Labour Court, a declaration was sought by the Workmen that the termination was illegal and compensation for unemployment, earned wages along with other legal entitlements was also sought. The Management filed its defence to these claim petitions and evidence was also recorded. The case of the Management in their written statement was that the Workmen were habitual drunkards and had involved themselves in physical fights with the guards and the staff. They had also allegedly misbehaved with the seniors. On behalf of the Management, evidence was led by the Authorized Representative. It was claimed by the Management that one Mr. V.K. Pandey was threatened and assaulted and a complaint was also lodged with the police station. It was pursuant to the said complaint that the termination letter was issued. The Labour Court, in the impugned judgement, observed that the Management did not place on record any documents to show that threat was extended to Mr. V.K. Pandey. It is this Award that has been challenged by the Management. After the perusal of the facts and arguments, the Hon’ble Court held, “This Court is of the opinion that the relief of lump sum compensation may be awarded to the Workmen in the present cases. Vide order dated 4 th January 2021, a sum of Rs.2 Lakhs was already directed to be deposited by the Management, which has now earned interest. Further, in each of the cases, considering that the Workmen have been litigating since 2011 and it has taken more than ten years for the dispute to reach its conclusion, a consolidated sum of Rs. 75,000/- is awarded as litigation expenses along with further enhancement of compensation, in favour of each of the Workmen. The present petitions are disposed of in the above terms. All pending applications are also disposed of.” | 3 to 6 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 25th November 2021 W.P.(C) 10953 2020 M S G4S SECURE SOLUTIONS INDIA PVT. LTD. ..... Petitioner Through: Mr. Gulshan Chawla & Ms. Smiriti Kumari AdvocatesSH. SANJEEV PAWAR G4S SECURE SOLUTIONPVT. LTD Through: Mr. Ajit Kumar Singh Advocate. W.P.(C) 10977 2020 ..... Petitioner ..... Respondent Through: Mr. Gulshan Chawla & Ms. Smiriti Kumari Advocates AJEET SINGH CHOUHAN M S G4S SECURE SOLUTIONS INDIA PVT. LTD. ..... Petitioner Through: Mr. Ajit Kumar Singh Advocate. W.P.(C) 10979 2020 ..... Respondent Through: Mr. Gulshan Chawla & Ms. Smiriti Kumari Advocates SH. HARENDER MALIK M S G4S SECURE SOLUTIONS INDIA PVT. LTD. ..... Petitioner Through: Mr. Ajit Kumar Singh Advocate. W.P.(C) 11198 2020 ..... Respondent Through: Mr. Gulshan Chawla & Ms. Smiriti Kumari Advocates SH. HARIPAL SINGH JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.Through: Mr. Ajit Kumar Singh Advocate. ..... Respondent 1. This hearing has been done in physical Court. Hybrid mode is W.P.(C) 10953 2020 & connected matters Digitally Signed By:DEVANSHUJOSHISigning Date:26.11.2021 15:47:19 permitted in cases where permission is being sought from the Court. These petitions have been filed challenging the impugned Awards dated 18th January 2020 passed by the Presiding Officer Labour Court V Rouse Avenue Courts Delhi. Vide the said Awards the Labour Court has awarded reinstatement along with full back wages to all the four Workmen. All four workmen were employed as security guards with the Petitioner Management The date of joining and the monthly salary of each of the Workmen is set out herein below: Date of Joining Monthly Salary Sanjeev Pawar 10th June 1997 Ajeet Singh Chouhan 8th June 1999 Harender Malik Haripal Singh 14th April 1998 12th July 2006 Rs. 6144 Rs. 6084 Rs. 6144 Rs. 6084 The brief background of the petition is that an incident had occurred in June 2011 due to which a show cause notice was issued by the Management to the Workmen. To the said show cause notice replies were filed by the Workmen and thereafter on 9th June 2011 the Management had terminated the services of the Workmen. This termination was challenged before the Labour Court by way of a claim petition that was filed by the Workmen. In the claim petition before the Labour Court a declaration was sought by the Workmen that the termination was illegal and compensation for unemployment earned wages along with other legal entitlements was also sought. The prayers that were sought in all these claim petitions are identical and are set out below: W.P.(C) 10953 2020 & connected matters Digitally Signed By:DEVANSHUJOSHISigning Date:26.11.2021 15:47:19 “PRAYER The claimant prays before this Hon ble Court that the management has services on 01.06.2011 illegally and that the claimant prays for compensation for unemployment earned wages along with other legal entitlement.” terminated his The Management filed its defence to these claim petitions and evidence was also recorded. The case of the Management in their written statement was that the Workmen were habitual drunkards and had involved themselves in physical fights with the guards and the staff. They had also allegedly misbehaved with the seniors. On behalf of the Management evidence was led by the Authorized Representative. It was claimed by the Management that one Mr. V.K. Pandey was threatened and assaulted and a complaint was also lodged with the police station. It was pursuant to the said complaint that the termination letter was issued. The Labour Court in the impugned judgement observed that the Management did not place on record any documents to show that threat was extended to Mr. V.K. Pandey. The summary of the Management’s evidence as contained in Labour Court’s order is set out below: “16. The management examined Sh Ghanshyam Singh Sisodiya its official as MW1 who also deposed on the lines of the defence taken in the reply to the claim and also proved on record show cause notice dated 02.06.2011 as Ex.MWl 3 and termination letter dated 09.06.2011 as Ex.MWll 4 besides other documents. 17. During the course of cross examination he admitted that the claimant was not having any supervisory power. 18. He also admitted that no document has been placed on record to prove that the claimant ever W.P.(C) 10953 2020 & connected matters Digitally Signed By:DEVANSHUJOSHISigning Date:26.11.2021 15:47:19 extended any threat of life to Inspector Sh. V.K. 19. The management has also failed to bring any evidence on record to controvert the claim of the claimant that from the date of his alleged termination till date he is gainfully employed.” It is this Award that has been challenged by the Management. A perusal of the record shows that the show cause notice and the letter of termination specifically mention the incident which took place. It is noticed that although the termination letter was made part of the record the complaint filed with the police was not placed on record before the Labour Court. The Management could have placed the said complaint filed with the Police Station Okhla on record however they did not do so. No other independent evidence was led by the Management to establish that the incident which was alleged had in fact taken place. However it cannot be completely disbelieved that the incident did not take place at all considering the details mentioned in the show cause notice as also in the letter of The Workmen in this case were engaged by the Management in 1997 2006 and they worked till 2011 i.e. for a period between 5 to 14 years. It has however been ten years since they were terminated from service. Accordingly considering the fact that there would now have been complete loss of confidence between the Management and Workmen this Court is of the opinion that the relief which the Workmen ought to be given lump sum compensation and not reinstatement with full back wages. Recently the Supreme Court has in Allahabad Bank and ors. v. Krishan Pal Singh No. 19648 2019 decided on 20th September 2021) W.P.(C) 10953 2020 & connected matters Digitally Signed By:DEVANSHUJOSHISigning Date:26.11.2021 15:47:19 held: “8. The directions issued by the High Court of Allahabad for reinstatement were stayed by this Court on 23.08.2019. During the pendency of these proceedings the respondent workman had attained age of superannuation. Though there was strong suspicion there was no acceptable evidence on record for dismissal of the workman. However as the workman has worked only for a period of about six years and he has already attained the age of superannuation it is a fit case for modification of the relief granted by the High Court. The reinstatement with full back wages is not automatic in every case where termination dismissal is found to be not in accordance with procedure prescribed under law. Considering that the respondent was in effective service of the Bank only for about six years and he is out of service since 1991 and in the meantime respondent had attained age of superannuation we deem it appropriate that ends of justice would be met by awarding lump sum monetary compensation. We accordingly direct payment of lump sum compensation of Rs.15 lakhs to the respondent within a period of eight weeks from today. Failing to pay the same within the aforesaid period the respondent is entitled for interest @ 6% per annum till payment.” Thus the Supreme Court has clearly recognised the fact that reinstatement is not an automatic consequence of wrongful termination especially when the Workman has during the pendency of litigation not performed any services with the Management. The Supreme Court has accordingly awarded lump sum compensation in such a case as seen above. Even in Ranbir Singh v. Executive Eng. P.W.D. the Supreme Court has similarly held as under: “6. …In other words we find that reinstatement cannot be automatic and the transgression of Section W.P.(C) 10953 2020 & connected matters Digitally Signed By:DEVANSHUJOSHISigning Date:26.11.2021 15:47:19 25F being established suitable compensation would be the appropriate remedy. 7. In such circumstance noticing that though the appellant was reinstated after the award of the Labour Court in 2006 the appellant has not been working since 2009 following the impugned order and also taking note of the fact that the appellant was in all likelihood employed otherwise also the interest of justice would be best subserved with modifying the impugned order and directing that in place of Rs. 25000 as lumpsum compensation appellant be paid Rs.3.25 lakhsas compensation taking into consideration also the fact that the appellant had already been paid Rs. 25000 Twenty Five Therefore following the said decisions this Court is of the opinion that the relief of lump sum compensation may be awarded to the Workmen in the present cases. 10. Vide order dated 4th January 2021 a sum of Rs.2 Lakhs was already directed to be deposited by the Management which has now earned interest. Let the said amount be released along with the interest accrued thereon minus TDS on interest component) directly to the bank accounts of the Workmen. Further in each of the cases considering that the Workmen have been litigating since 2011 and it has taken more than ten years for the dispute to reach its conclusion a consolidated sum of Rs. 75 000 is awarded as litigation expenses along with further enhancement of compensation in favour of each of the Workmen. Let the said amount of Rs.75 000 each be paid to the Workmen within a period of eight weeks. If the same is paid within eight weeks the same shall constitute complete satisfaction of the impugned Award dated 18th January 2020. If however W.P.(C) 10953 2020 & connected matters Digitally Signed By:DEVANSHUJOSHISigning Date:26.11.2021 15:47:19 the said amounts are not paid the Award shall come into operation and the Workmen would be entitled to seek execution of the Award passed by the Labour Court. 11. Let the bank account details of the Workmen be provided to the ld. Counsel for the Petitioner by ld. Counsel for the Respondents Workmen within a period of one week from today to effect the payment. If the Management has any difficulty in contacting the Workmen the payment shall be delivered to the Workmen through ld. Counsel by way of demand 12. The present petitions are disposed of in the above terms. All pending applications are also disposed of. PRATHIBA M. SINGH NOVEMBER 25 2021 Rahul Ak W.P.(C) 10953 2020 & connected matters Digitally Signed By:DEVANSHUJOSHISigning Date:26.11.2021 15:47:19 |
The word ‘may’ used in Section 148 of NI Act is to be construed as ‘shall’ and not as an exception for which Court has to assign special reasons: High Court of Delhi | Important conditions which are required to be complied before directing interim compensation are that the trial should be a summary trial or a summons case and the petitioner had pleaded not guilty. It was observed that the word ‘may’ used in Section 148 of Negotiable Instruments Act is to be construed as a rule as ‘shall’ and not as an exception for which the Court has to assign special reasons for directing interim compensation. These were stated by High Court of Delhi, consisting Justice Mukta Gupta in the case of Suryodhan Tyagi Propreieter of Tyagi Tent House & Anr. vs. Tirender Sharma [W.P.(CRL) 68/2022] on 13.01.2022. The facts of the case are that the petitioner seeks quashing of the complaint under Section 138 of the Negotiable Instruments Act (in short NI Act) pending before the learned Metropolitan Magistrate, South District, Saket Court as also quashing of the order passed by the learned Metropolitan Magistrate under Section 143A of the NI Act directing the petitioner to pay 20% of the cheque amount within 60 days of the passing of the order as there was no merit in the complaint and no legally enforceable liability being shown by the respondent in the complaint. The complainant in his evidence clearly stated that he does not have the financial capacity to give loan to the petitioner. The respondent also got admission of his two children under the Economic Weaker Section quota in the nearby Kendriya Vidyalaya. Therefore, the respondent was not in a position to prove a legally enforceable debt. The Counsel for the petitioner contended that the learned Metropolitan Magistrate erred in passing the order under Section 143A NI Act directing him to pay compensation of 10% of the cheque amount i.e. ₹4 lakhs within 60 days. It was stated that the learned Metropolitan Magistrate failed to apply his judicial mind while exercising the discretion of granting interim compensation of 10% to the complainant. No reasons have been recorded in the impugned order as to why the petitioner was being directed to pay compensation under Section 143A (1) of the NI Act. The Counsel for the respondent contended that the respondent has in the complaint that the respondent took loan from his mother to raise money for the petitioner and the non-return of the money has left the respondent in a difficult penury situation. It was submitted that the respondent gave a friendly loan to the petitioner for a sum of ₹40 lakhs and in discharge of the said liability, the petitioner issued 12 post-dated cheques out of which the 8 cheques when presented and were dishonoured for the reason ‘funds insufficient’. Thus, the respondent filed the complaint before the Court of competent jurisdiction. | IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on: 13th January 2022 W.P.(CRL) 68 2022 and CRL.M.A. 732 2022SURYODHAN TYAGI PROPREIETER OF TYAGI TENT HOUSE ANR. Petitioner Represented by: Mr.Ram Bhadauria Advocate. TIRENDER SHARMA Respondent Represented by: Mr.Vivek Kumar Advocate for the respondent with respondent in person through VC). HON BLE MS. JUSTICE MUKTA GUPTA JUDGMENT :CRL.M.A. 733 2022CRL.M.A. 734 2022Exemption allowed subject to just exceptions. Applications are disposed of. W.P.(CRL) 68 2022 and CRL.M.A. 732 2022By this petition the petitioner seeks quashing of the complaint case No. 6050 2020 titled as „Tirender Sharma Vs. Tyagi Tent House‟ under Section 138 of the Negotiable Instruments Act pending before the learned Metropolitan Magistrate South District Saket Court as also quashing of the order dated 26th October 2021 passed by the learned Metropolitan Magistrate under Section 143A of the NI Act directing the petitioner to pay 20% of the cheque amount within 60 days of the passing of W.P.(CRL) 68 2022 the order. Learned counsel for the petitioner contends that there being no merit in the complaint and no legally enforceable liability being shown by the respondent in the complaint the above noted complaint is liable to be quashed. It is contended that the learned Metropolitan Magistrate erred in passing the order dated 26th October 2021 under Section 143A NI Act directing him to pay compensation of 10% of the cheque amount i.e. ₹4 lakhs within 60 days. It is stated that vide the impugned order the learned Metropolitan Magistrate failed to apply his judicial mind while exercising the discretion of granting interim compensation of 10% to the complainant. No reasons have been recorded in the impugned order as to why the petitioner was being directed to pay compensation under Section 143Aof the NI Act. The complainant in his evidence has clearly stated that he does not have the financial capacity and is running a re charge shop having an income of around ₹8000 10 000 he is not an income tax assessee and hence has failed to prove his capacity to give loan to the petitioner. The respondent also got admission of his two children under the Economic Weaker Section quota in the nearby Kendriya Vidyalaya. Since the respondent is not in a position to prove legally enforceable debt the complaint and the order dated 26th October 2021 are liable to be quashed. Learned counsel for the respondent contends that the respondent has in the complaint stated and in this regard affidavit has also been filed which would indicate that the respondent took loan from his mother to raise money for the petitioner and the non return of the money has left the respondent in a difficult penury situation. Respondent filed complaint case No. 6050 2020 against the petitioner W.P.(CRL) 68 2022 as proprietor of Tyagi Tent House. As per the respondent he gave a friendly loan to the petitioner for a sum of ₹40 lakhs and in discharge of the said liability the petitioner issued 12 post dated cheques out of which the 8 cheques when presented were dishonoured for the reason “funds insufficient” Thus the respondent gave a legal notice to the petitioner dated 3rd June 2020 and despite service of legal notice since the petitioner failed to pay the amount of ₹40 lakhs the complaint was filed before the Court of competent jurisdiction. It is stated that the petitioner had issued 11 cheques of ₹5 lakhs and one blank cheque and also executed GPA of his brother‟s immovable property in favour of Pinki Sharma W o Tirender Sharma as security towards advance payment of some future business transaction. Summons were issued in the said complaint filed by the respondent whereafter on the petitioners entering appearance the respondent filed an application under Section 143A NI Act dated 4th August 2021 seeking awarding 20% interim compensation. The petitioner filed a response to the said application and vide the order dated 26th October 2021 the learned Trial Court granted interim compensation to the tune of ₹4 lakhs i.e. 10% of the cheque amount. Aggrieved by the order dated 26th October 2021 the petitioner filed a revision petition before the learned ASJ which was dismissed as withdrawn vide the order dated 3rd December 2021 and thereafter the petitioner has filed the present petition. The two main pleas of the petitioner seeking quashing of the complaint are that the cheque amount was given as security amount and secondly the respondent himself has stated that he does not have sufficient resources to pay the sum of ₹40 lakhs. The petitioner having admitted his W.P.(CRL) 68 2022 signatures on the cheque and issuance of the post dated cheques a presumption is required to be drawn under Section 139 NI Act which the petitioner will have to rebut during the course of trial either through cross examination of the complainant or by establishing its defence. 8. Merely because the complainant stated that he did not have the financial capacity despite the fact that he claims that he took loan from his mother the complaint case No.6050 2020 under Section 138 of the NI Act warrants no interference. As regards the impugned order dated 26th October 2021 passed by the learned MM directing the petitioner to pay interim compensation of ₹4 lakhs to the respondent the learned Trial Court vide the impugned order noted that for an application under Section 143A NI Act the first requirement is that the complaint should be tried as a summary summons trial case and that notice should have been framed on which the accused has pleaded not guilty. At this stage the merits of the parties is not Section 143A of the NI Act which came into force with effect from 1st to be gone into. September 2018 reads as under: “143A Power to direct interim compensation 1) Notwithstanding anything contained in the Code of Criminal Procedure 1973 the Court trying an offence under Section 138 may order the drawer of the cheque to pay interim compensation to the complainant a) b) in a summary trial or summon case where the drawer pleads not guilty to the accusation made in the complaint and in any other case upon framing charges. 2) The interim compensation under sub sectionshall not exceed twenty per cent of the amount of the cheque. W.P.(CRL) 68 2022 3) The interim compensation shall be pad within sixty days from the date of the order under sub sectionor within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the drawer of the cheque. 4) If the drawer of the cheque is acquitted the Court shall direct the complainant to repay to the drawer the amount of interim compensation with interest at the bank rate as published by the Reserve Bank of India prevalent at the beginning of the relevant financial years within sixty days from the date of the order or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant. 5) The interim compensation payable under this section may be recovered as if it were a find under section 421 of the Code of Criminal Procedure 1973The amount of fine imposed under section 138 or the amount of compensation awarded under section 357 of the Code of Criminal Procedure 19732 SCC 514 Surinder Singh Deswal Ors. Vs. Virender Gandhi & Anr. the Hon‟ble Supreme Court held that Section 148 NI Act used the word “may” is generally to be construed as a rule as “shall” and not as an exception for which the Court has to assign special reasons for directing interim compensation. 12. As noted above the twin conditions of the complaint being tried as a summary trial and secondly the charge notice having been framed against W.P.(CRL) 68 2022 the petitioner to which he pleaded not guilty having complied with this Court finds no infirmity in the impugned order dated 26th October 2021. Further as noted above the petitioner filed a revision petition against the said order which was dismissed as withdrawn and hence the petitioner cannot now avail the remedy of filing a petition under Article 226 of the Constitution of India in respect of the said relief. 13. Petition and application are dismissed. Judgment be uploaded on the website of this Court. JANUARY 13 2022 MUKTA GUPTA) W.P.(CRL) 68 2022 |
A Company and its directors are separate identities: Delhi High Court | A company and its employees are to be treated as separate identities since and there should exist no concept of vicarious liability in terms of repayment of loans on the part of the employees, unless the contrary is stated in express terms. The lifting of the corporate veil was observed by the Supreme Court in the matter of Sanjiv Kumar Mittal V Deputy Commissioner (Trc), Cgst Commissionerate Delhi South & Ors., [W.P. (C) 5590/2020 & CM APPL.20200/2020]. The Petitioner being a former Director of a company (also the respondent no. 6) was aggrieved after his personal bank account was attached by respondent-Service Tax Authorities towards recovery of dues from the assesses-company under the Finance Act, 1994. The counsel for the petitioner argued that the petitioner had agreed to his appointment as a Director in good faith and that too at the behest of his cousin, Mr. Ram Mohan Gupta, who was the founder Director of the assesses-company. Further, It is also stated in the writ petition that even prior to petitioner’s appointment as an Additional Director the assesses-company was under investigation by the anti-Evasion branch of Service Tax, Delhi-I, Commissionerate. After the petitioner resigned as a Director, a show cause notice was issued to the company demanding the recovery of service tax along with interest and penalties against the company. There was no material to indicate that the funds in the petitioner’s personal bank account were due and payable to, or held on behalf of the company keeping in mind Section 87(b)(i) of the Finance Act and prosecution against petitioner was baseless. Lastly, it was submitted on behalf of the petitioner that there was no provision in the Finance Act making Directors personally liable for the tax liabilities of a company or empowering the respondent-authorities to recover such liabilities of the company from the personal assets of its Directors. Counsel for the respondent contended that at being a Director in a Company, a person is deemed to have knowledge of the affairs of the same and a bald assertion that he took up Directorship “in good faith and was not actively involved” cannot be accepted. The counsel for the respondent submitted that a vicarious liability is cast upon the Directors of the company to pay/deposit service tax with the Government exchequer. He stated that Section 87(b)(i) of Chapter V of the Finance Act as amended provides for a mode of recovery of any amount due to the Central Government. | Sanjiv Kumar Mittal vs Deputy CommissionerCgst ... on 6 November 2020 Delhi High Court Sanjiv Kumar Mittal vs Deputy CommissionerCgst ... on 6 November 2020 IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.5590 2020 & CM APPL.20200 2020 SANJIV KUMAR MITTAL ...... Petitioner Through: Ms. Pritha Srikumar Iyer Advocate with Ms. Nikita Garg Advocate versus DEPUTY COMMISSIONERCGST COMMISSIONERATE DELHI SOUTH & ORS. ...... Respondents Through: Mr. Harpreet Singh senior standing counsel with Ms. Suhani Mathur Advocate for R 1 to 4 Ms.Rashmi Advocate for R 5 Reserved on : 21st October 2020 Date of Decision: 06th November 2020 HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE SANJEEV NARULA JUDGMENT MANMOHAN J 1. Petitioner who is a former Director of respondent no.6 companyis aggrieved by the attachment of his personal bank account by respondent Service Tax Authorities towards recovery of dues from the assessee company under the Finance Act 1994Cgst ... on 6 November 2020 confirmed the demand and recovery of service tax along with interest and penalties against the 5. It is averred that the attested copy of the aforesaid order in original dated 08th August 2018 was returned undelivered with the remark "refused" by the assessee company and subsequently two demand notices dated 21st May 2019 and 08th November 2019 were issued to the assessee company through the petitioner in his capacity as its Director ARGUMENTS ON BEHALF OF PETITIONER 6. Ms. Pritha Srikumar Iyer learned counsel for petitioner stated that Mr. Ram Mohan Gupta the founder Director of the assessee company had signed an affidavit dated 22nd November 2019 wherein he had admitted that it was at his request that the petitioner was inducted as an Additional Director and that the petitioner was not responsible for the dues of the assessee company 7. She further stated that even though the petitioner had clarified that he was not involved with the assessee company since 08th July 2015 vide his letter dated 26th December 2019 yet the respondent no.1 had issued the impugned letter attachment order dated 08th June 2020 under Section 87(b)(i) of the Finance Act read with Section 174(1) of the Central Goods and Services Tax 2017for recovery of service tax determined against the 8. Learned counsel for the petitioner submitted that the impugned attachment order was beyond the purview of Section 87(b)(i) of the Finance Act as the said provision provides for a garnishee order i.e. attachment of funds of an assessee lying with third parties. According to her the impugned attachment order was without jurisdiction inasmuch as there was no basis for proceeding against the petitioner personally while acting under Section 87(b)(i) of the Finance Act as there was no material to indicate that the funds in the petitioner s personal bank account were due and payable to or held on behalf of the assessee company 9. She also submitted that there was no provision in the Finance Act making Directors personally liable for the tax liabilities of a company or empowering the respondent authorities to recover such liabilities of the company from the personal assets of its Directors 10. She emphasised that under the statutory scheme relating to Service Tax as provided under the Finance Act no proceeding was ever initiated against the petitioner by issuing a show cause notice or otherwise and he was not even granted an opportunity to be heard before the impugned demand notices dated 21st May 2019 and 08th November 2019 or attachment order dated 08th June 2020 were issued. She pointed out that even the show cause notice issued to the assessee company had no reference to the petitioner in his personal capacity ARGUMENTS ON BEHALF OF RESPONDENT Indian Kanoon Sanjiv Kumar Mittal vs Deputy CommissionerCgst ... on 6 November 2020 11. Mr. Harpreet Singh learned senior standing counsel for the respondent stated that the petitioner was a Director in the assessee company i.e. M s Unickon Real Estate Pvt. Ltd. between 22nd August 2014 and 08th July 2015 during which period service tax investigations were continuing having begun on 27th February 2014) and the statements were recorded 12. He submitted that being a Director in a Company a person is deemed to have knowledge of the affairs of the same and a bald assertion that he took up Directorship "in good faith and was not actively involved" cannot be accepted 13. He stated that it is not a matter of dispute that there is evasion of Service Tax by the assessee company as confirmed by the Order in Original dated 08th August 2018. He pointed out that the adjudication proceedings were conducted and held against the assessee company which would essentially mean recovery of dues from not only the assessee company but also from the then Directors and Additional Directors who are deemed to have played an active role in such evasion of 14. Mr. Harpreet Singh submitted that a vicarious liability is cast upon the Directors of the company to pay deposit service tax with the Government exchequer. He stated that Section 87(b)(i) of Chapter V of the Finance Act as amended provides for a mode of recovery of any amount due to the 15. He clarified that as the dues to the Government of India vide the Order in Original had attained finality the recovery provisions of Section 87 of the Finance Act were applicable and they did not envisage any further or separate notice to the petitioner as being claimed 16. Learned counsel for respondents stated that the impugned notice had been issued under Section 87(b)(i) of the Finance Act read with Section 174 of the CGST Act. He submitted that Section 174(2)(e) saves recovery proceedings of tax fine penalty allowing it to be initiated under the CGST Act and imposition thereof under the repealed Acts. Since Section 87(b)(i) was heavily relied upon by learned counsel for respondent the relevant portion of the same is reproduced hereinbelow: Section 87 Where any amount payable by a person to the credit of the Central Government under any of the provisions of this Chapter or of the rules made there under is not paid the Central Excise Officer shall proceed to recover the amount by one or more of the modes mentioned below: b)(i) the Central Excise Officer may by notice in writing require any other person from whom money is due or may become due to such person or who holds or may subsequently hold money for or on account of such person to pay to the credit of the Central Government either forthwith upon the money becoming due or being held or at or within the time specified in the notice not being before the money becomes due or is held so much of the money as is sufficient to pay the amount due from such Indian Kanoon Sanjiv Kumar Mittal vs Deputy CommissionerCgst ... on 6 November 2020 person or the whole of the money when it is equal to or less than that amount 17. Mr. Harpreet Singh repeatedly and vehemently emphasised that the Directors of a company and other persons in management are vicariously liable to pay deposit service tax. In support of his submission he relied upon Section 9AA of the Central Excise Act 1944Section 89 of the current CGST Act and Section 168(2) of the Companies Act 2013 which stipulate that a Director who has resigned shall be liable even after his resignation for the offences committed by the company during his tenure Thus according to him the penal statutory liability is deemed to have been imposed by a statute upon the petitioner in this case under Section 87 of Finance Act in line with Section 9AA of Central Excise Act 1944 and proviso to sub sectionof Section 168 of the Companies Act 2013 COURT S REASONING A COMPANY AND ITS DIRECTORS ARE SEPARATE AND DISTINCT JURISTIC ENTITIES AND THIS DISTINCTION CANNOT BE JETTISONED UNLESS THERE IS A SPECIFIC STATUTORY PROVISION TO THE CONTRARY OR TILL A CASE FOR LIFTING OF THE CORPORATE VEIL IS MADE OUT 18. Having perused the paper book and having heard learned counsel for the parties this Court finds that after completion of investigation a notice was issued to the assessee company a separate legal entity on 24th April 2017 i.e. subsequent to the petitioner s resignation as its Director on 08th July 19. Further the assessment proceedings culminated by way of the Order in Originaldated 08th August 2018 against the assessee company alone 20. It is well settled that a company is a distinct juristic entity separate from its Directors. In Bacha F. Guzdar Bombay vs. Commissioner of Income Tax Bombay AIR 1955 SC 74 the Supreme Court has held as under: 9. It was argued that the position of shareholders in a company is analogous to that of partners inter se. This analogy is wholly inaccurate. Partnership is merely an association of persons for carrying on the business of partnership and in law the firm name is a compendious method of describing the partners. Such is however not the case of a company which stands as a separate juristic entity distinct from the shareholders. In Halsbury s Laws of England Vol. 6p. 234 the law regarding the attributes of shares is thus stated A share is a right to a specified amount of the share capital of a company carrying with it certain rights and liabilities while the company is a going concern and in its winding up. The shares or other interest of any member in a company are personal estate transferable in the manner provided by its articles and are not of the nature of Indian Kanoon Sanjiv Kumar Mittal vs Deputy CommissionerCgst ... on 6 November 2020 21. From the above extract it is apparent that the distinction between a company and its Director cannot be jettisoned unless there is a specific statutory provision to the contrary or till a case for lifting of the corporate veil is made out SECTION 87(b)(i) OF THE FINANCE ACT PROVIDES FOR A GARNISHEE ORDER ONLY i.e PROVIDES FOR ATTACHMENT OF FUNDS OF AN ASSESSEE LYING WITH THIRD PARTIES THERE IS NO PROVISION IN THE FINANCE ACT MAKING AN EX DIRECTOR EVEN IF HAVING KNOWLEDGE OF AFFAIRS OF THE COMPANY VICARIOUSLY OR JOINTLY LIABLE FOR THE DUES OF THE COMPANY 22. Though Section 174(2) of CGST Act saves any duty or tax that is due or may become due under the repealed Act including Chapter V of the Finance Act yet there is no provision in the Finance Act making the Directors personally liable for service tax liabilities of a company 23. It is clarified that Section 89 of the current CGST Act is confined only to liabilities assessed under the CGST Act and cannot be used to fasten personal liability on Directors for company dues determined under the Finance Act. After all no new liability can be fastened under the CGST Act for a period prior to its enactment as it does not have retrospective operation 24. This Court is in agreement with the submission of learned counsel for petitioner that the impugned attachment order is beyond the purview of Section 87(b)(i) of the Finance Act as the said provision provides for a garnishee order only i.e. provides for attachment of funds of an assessee lying with third parties. Accordingly Section 87(b)(i) of the Finance Act does not entitle the revenue to attach personal bank accounts of a director like the petitioner for recovery of dues of the assessee company on the assumption that money is due or may become due from the Petitioner to the assessee company. This perspective is wholly misconceived contrary to the basic tenets of liability of the Company law discussed in the preceding paras 25. We have also contrasted the provisions of the Finance Act and the Central Excise Act to the extent the same are applicable to Service Tax with Section 179 of the Income Tax Act 1961 and Section 18 of the Central Sales Tax Act 1956 which for quick reference are reproduced hereinbelow A) Section 179 of the Income Tax Act 1961 179. Liability of directors of private company in liquidation.Notwithstanding anything contained in the Companies Act 1956where any tax due from a private company in respect of any income of any previous year or from any other company in respect of any income of any previous year during which such other company was a private company cannot be recovered then every person who was a director of the private company at any time during the relevant previous year shall be jointly and severally liable for the payment of such tax unless he proves that the non recovery cannot be attributed to any gross neglect misfeasance or breach of duty on his part in relation to the affairs of the company Indian Kanoon Sanjiv Kumar Mittal vs Deputy CommissionerCgst ... on 6 November 2020 2) Where a private company is converted into a public company and the tax assessed in respect of any income of any previous year during which such company was a private company cannot be recovered then nothing contained in sub sectionshall apply to any person who was a director of such private company in relation to any tax due in respect of any income of such private company assessable for any assessment year commencing before the 1st day of April 1962 Explanation. For the purposes of this section the expression "tax due" includes penalty interest or any other sum payable under the Act B) Section 18 of the Central Sales Tax Act 1956 18. Liability of directors of private company in liquidation. Notwithstanding anything contained in the Companies Act 1956when any private company is wound up after the commencement of this Act and any tax assessed on the company under this Act for any period whether before or in the course of or after its liquidation cannot be recovered then every person who was a director of the private company at any time during the period for which the tax is due shall be jointly and severally liable for the payment of such tax unless he proves that the non recovery cannot be attributed to any gross neglect misfeasance or breach of duty on his part in relation to the affairs of the company The aforenoted provisions firstly pertain to companies in liquidation and pertinently begin with a non obstante clause. The said provisions specifically render a Director jointly and severally liable for tax dues assessed against private companies unless he proves that the non recovery cannot be attributed to any gross neglect misfeasance or breach of duty on his part in relation to the affairs of the company. However there is no such provision viz a viz Service Tax and the absence thereof is determinative. Levy and collection of tax must be with the authority of law by virtue of Article 265 of the Constitution. Consequently the impugned action against the petitioner is without jurisdiction 26. In Sunil Parmeshwar Mittal vs. Deputy CommissionerCentral Excise Mumbai Ors. 2005Mah. LJ 837 the Bombay High Court has held as under: 28. Thus notices issued to the petitioners were not only in breach of principles of natural justice but the same were in violation of section 11 A of the Excise Act. At this juncture it will not be out of place to mention that even under the provisions of the Companies Act the petitioners are not liable to discharge the liability of the company if any of which they were directors in the past. As soon as a company is incorporated it constitutes an independent juristic person in the eyes of law as distinct from its members constituting it. Even private limited company consisting of only two members has nonetheless a separate legal entity. It is entirely different from its members. From the date of its incorporation a company is endowed with certain special rights and privileges and unlike the partnership firm or a Hindu undivided family is not a mere aggregate of members. It can carry on business and can acquire and hold property in its corporate name and has other special advantages e.g. to contract with all its members and others. In short it becomes a body corporate Indian Kanoon Sanjiv Kumar Mittal vs Deputy CommissionerCgst ... on 6 November 2020 capable of exercising all functions of an incorporated company having a perpetual succession. It remains in existence irrespective of the changes in its members until it is wound up and dissolved under the provisions of the Companies Act. The characteristic of company limited by shares is that it enjoys the privilege of limited liability i.e. liability of its member is limited to the extent of the face value of the shares subscribed by each member and the amount remaining unpaid on them for the time being. Thus considering effect of incorporation of a company and its independent juristic existence a former director of the company cannot be held responsible for payment of the liabilities of the company in absence of any specific provision. No contrary provision to persuade us not to take a view taken hereunder was brought to our notice. In this view of the matter we have no hesitation to hold and declare that petitioners herein cannot be held liable to pay outstanding dues of the central excise duty sought to be demanded from them. We therefore quash and set aside the impugned last demand notice dated 1st October 2003 holding it to be without jurisdiction and without authority of law and make the rule absolutely in terms prayer clauseandwith no order as to costs 27. Consequently in the absence of a specific provision and given a company s separate legal personality the petitioner ex Director even if having knowledge of affairs of the company is not vicariously or jointly liable for the dues of the company. The onus of proof shall remain on the department respondents to show that a Director is personally liable for the dues of the company at the stage of issuing show cause notice under Section 73 of the Finance Act SECTION 9AA OF THE CENTRAL EXCISE ACT 1944 AND SECTION 168(2) OF THE COMPANIES ACT 2013 DEAL WITH OFFENCES COMMITTED BY A COMPANY WHICH IS DISTINCT FROM CIVIL LIABILITY TO PAY TAX 28. The reliance upon Section 9AA of the Central Excise Act 1944 and Section 168(2) of the Companies Act 2013 is untenable in law as these provisions deal with offences committed by a company which is distinct from civil liability to pay tax THE IMPUGNED ORDER IS IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE 29. This Court is also of the view that any show cause notices issued to the assessee company during the adjudication proceedings does not amount to notice to the petitioner in his personal capacity Admittedly no notice was ever issued to the petitioner personally prior to the passing of the impugned demand notices dated 21st May 2019 and 09th November 2019 and or the attachment order dated 08th June 2020 Indian Kanoon Sanjiv Kumar Mittal vs Deputy CommissionerCgst ... on 6 November 2020 30. In fact during the course of final hearing this Court had put a pointed question to the Principal Commissioner CGST as to whether the respondents would like to give a fresh notice to the petitioner clearly mentioning as to how the petitioner was liable for tax dues of the assessee company. However the Principal Commissioner informed this Court that the department has no material against the petitioner other than the fact that he was a Director of the assessee company 31. Consequently the impugned order is in violation of principles of natural justice 32. This Court is further of the view that recovery cannot be selectively initiated against one of the Directors only i.e. the petitioner 33. For the aforesaid reasons the present writ petition is allowed without costs and the Demand notices dated 21st May 2019as well as 08th November 2019and attachment order dated 08th June 2020are quashed. Any action taken by the respondents in pursuance to the impugned notices order and OIO dated 08th August 2018 against the petitioner are also set aside MANMOHAN J SANJEEV NARULA J NOVEMBER 06 2020 rn js Indian Kanoon |
Plaintiff must lead evidence first when the defendant do not admit to the facts pleaded by the plaintiff: High Court of Delhi | It is the general rule that the plaintiff must lead evidence first, however, when the defendant admits to the facts pleaded by the plaintiff, the plaintiff could be relieved of such burden as per Order XVIII Rule 1 of the CPC. It is for the plaintiff to lead evidence first, It is only when the defendant admits to the facts pleaded by the plaintiff that the latter would be relieved of this burden but in the absence of any such admission, asking the defendant to lead evidence first could well be disadvantageous to the defendant and the same was upheld by High Court of Delhi through the learned bench led by HON’BLE MR. JUSTICE AMIT BANSAL in the case of RAJNISH GUPTA & ANR. vs. MUKESH GARG [CS(OS) 332/2021] on 23.02.2022. The facts of the case are that the burden to prove is on the applicant/defendant and it was directed that the applicant/defendant would lead the evidence. Therefore, it was stated by the defendant that it is a choice of the defendant to begin the evidence or not and if the defendant chooses not to begin, then in that case plaintiff has to begin his evidence first. The present application has been filed on behalf of the applicant/defendant under Order XVIII Rule 1 of the Code of Civil Procedure, 1908 seeking a direction that the non-applicants/plaintiffs be directed to lead the evidence in terms of Order XVIII Rule 1 of the CPC. The applicant’s counsel submitted that according to Order XVIII Rule 1 of the CPC, it is the choice of the defendant to begin the evidence or not and if the defendant chooses not to begin, the plaintiff has to begin his evidence first. It was further contended that the Court does not have the power to direct the defendant to lead the evidence first. The defendant’s counsel contended that in the event that the defendant admits the facts alleged by the plaintiff and alleges additional facts on account on which plaintiff is not entitled to the reliefs claimed in the suit, in such an event, the defendant has to begin the evidence. In the facts and circumstances of this case, the court held that the evidence would be led, at first, by the applicant/defendant because when the defendant admits to the facts pleaded by the plaintiff, the plaintiff could be relieved of such burden. The Court observed that “plaintiff has a right to begin and so he must because the burden of proof rests upon one who pleads. It is for the plaintiff to lead evidence first. It is only when the defendant admits to the facts pleaded by the plaintiff that the latter would be relieved of this burden, but in the absence of any such admission, asking the defendant to lead evidence first could well be disadvantageous to the defendant. As per Order XVIII Rule 1 of the CPC, it is the general rule that the plaintiff must lead evidence first, however, when the defendant admits to the facts pleaded by the plaintiff, the plaintiff could be relieved of such burden.” | IN THE HIGH COURT OF DELHI AT NEW DELHI RAJNISH GUPTA & ANR. Plaintiffs Date of Decision : 23rd February 2022 CS(OS) 332 2021 Through: Mr. Mohit Chaudhary Mr. Kunal Sachdeva and Ms. Anubha Surana MUKESH GARG Defendant Through: Mr. Amit Vohra Advocate. HON BLE MR. JUSTICE AMIT BANSAL JUDGMENT AMIT BANSAL J.VIA VIDEO CONFERENCING] I.A. No. 3026 2022The present application has been filed on behalf of applicant defendant under Order XVIII Rule 1 of the Code of Civil Procedure 1908seeking a direction that the non applicants plaintiffs be directed to lead the evidence in terms of Order XVIII Rule 1 of the CPC. Issue notice. Notice is accepted by the counsel appearing on behalf of the non applicants plaintiffs on advance notice. He further submits that he does not CS(OS) 332 2021 straightway. wish to file a reply to the said application and has argued the matter Accordingly arguments of both the counsels have been heard. On 14th February 2022 the following issues were framed in the case: i) Whether the suit is bad on account of misjoinder of parties ii) Whether the suit is bad on account of misjoinder of causes of iii) Whether the defendant has pledged any ancestral gold and diamond jewellery worth Rs.4 40 00 000 with the plaintiffs action OPD iv) Whether there is any delivery note dated 11th July 2018 in existence signed by the plaintiff No. 1 OPD v) Whether the plaintiffs are entitled for a recovery of Rs.4 00 00 000 along with interest against the defendant as prayed for OPP If so whether the plaintiffs are entitled for any interest if yes for what period and at what rate OPP vii) Relief. Taking into account that in most of the substantive issues the burden to prove is on the applicant defendant it was directed applicant defendant would lead the evidence. At the outset reference may be made to Order XVIII Rule 1 of the CPC as under: “1. Right to begin.—The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contents that CS(OS) 332 2021 either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks in which case the defendant has the right to begin.” The counsel for the applicant defendant places reliance on Order XVIII Rule 1 of the CPC aforesaid to contend that it is the choice of the defendant to begin the evidence or not and if the defendant chooses not to begin the plaintiff has to begin his evidence first. It is further contended that the Court does not have the power to direct the defendant to lead the evidence first. In this regard reliance has been placed on the judgment of Co ordinate Benches of this Court in Om Prakash Vs. Amit Choudhary & Ors. 2019 DRJ 93 and Sabiha Sultana & Ors. Vs. Ahmad Aziz & Anr. 2017 SCC OnLine Del 10229. On the other hand it is contended on behalf of the counsel for the non applicants plaintiffs that in terms of Order XVIII Rule 1 of the CPC in the event that the defendant admits the facts alleged by the plaintiff and alleges additional facts on account on which plaintiff is not entitled to the reliefs claimed in the suit in such an event the defendant has to begin the evidence. In the present case admission has been made by the non applicant defendant of the material factum of the defendant receiving the sum of Rs.4 00 00 000 from the non applicants plaintiffs and which is noted in the order dated 27th January 2022 passed by the Court. Therefore in the facts and circumstances of the present case it is the non applicant defendant who should begin the evidence. Reliance is placed on Sections 102 and 103 of the Indian Evidence Act 1872. Reliance is also placed on the judgment dated 22nd August 2008 of the Division Bench of this Court in FAONo.44 2008 titled N.K. Tomar Vs. Viraj Impex Ltd. CS(OS) 332 2021 and judgment of the Co ordinate Bench of this Court in Achala Mohan Vs. Jayashree Singh MANU DE 0798 2020No.7360 2020 preferred whereagainst was dismissed on 16th November 2020]. I have heard the counsels for the parties. Let me first deal with the judgments cited on behalf of the parties. 11. Counsel for the applicant defendant relies upon paragraph 8 of the judgment in Sabiha Sultanawhich is set out below: In terms of the procedure stipulated in CPC and the aforesaid precedents it is clear that as a general rule the party which set up a claim must prove the burden cast upon it. The plaintiff has a right to begin and so he must because the burden of proof rests upon one who pleads. It is for the plaintiff to lead evidence first. It is only when the defendant admits to the facts pleaded by the plaintiff that the latter would be relieved of this burden but in the absence of any such admission asking the defendant to lead evidence first could well be disadvantageous to the defendant. Order 18 Rule 1 of CPC prescribes “right to begin” in recording of evidence wherein the plaintiff would lead evidence first but the defendant may be permitted to lead evidence if after having admitted to the facts pleaded by the plaintiff he so seeks to do. In the absence of these two qualifying circumstances the Court would not direct the defendant to lead evidence first.” In the paragraph quoted above it has been observed that as per Order XVIII Rule 1 of the CPC it is the general rule that the plaintiff must lead evidence first however when the defendant admits to the facts pleaded by the plaintiff the plaintiff could be relieved of such burden. Therefore given the facts and circumstances of the present case the judgment in Sabiha Sultana supra) does not come to the aid of the applicant defendant. CS(OS) 332 2021 12. The judgment in Sabiha Sultana was relied upon by a Coordinate Bench of this Court in Om Prakashand it was observed as under in paragraph 15 of the said judgment: “15. In the facts of the present case Order XVIII Rule 1 is not applicable. The defendants have not sought to exercise the right to begin which in view of the authorities above is a choice for him to make and not for the plaintiff to force upon him. In any event the substantive condition that the facts alleged by the plaintiff must be admitted by the defendants is also not satisfied. Merely because the execution of the Collaboration Agreement is admitted does not imply that the defendants have admitted the facts alleged by the plaintiff. In contractual disputes it is often the case perhaps in a majority of cases that the execution of the contract is admitted by the defendant but other facts establishing the plaintiff s claims are not. In the present case for example the quantum of damages assessed by the plaintiff has been expressly and unequivocally disputed in the written statement. It is settled law that pleadings are to be read as a whole and admissions cannot be considered in In the aforesaid judgment in Om Prakashthis Court came to a conclusion that merely because the defendants had admitted to a collaboration agreement would not mean that defendants had admitted the other facts alleged in the plaint. Notably the plaintiff had claimed damages in the aforesaid suit which was denied by the defendants in its written statement. Accordingly in the facts of that case the Court upheld the order of the Trial Court dismissing the application of the plaintiff seeking a direction to the defendants to begin the evidence. 14. The aforesaid judgment in Om Prakashdoes not advance the case of the applicant defendant in the present case as in the present case no damages are being claimed by the plaintiff. The suit is based on recovery of CS(OS) 332 2021 amounts paid by the non applicants plaintiffs to the applicant defendant for the purchase of property and the receipt of consideration has not been denied by the applicant defendant. 15. On the other hand the non applicants plaintiffs have placed reliance on the judgment of this Court in N.K. Tomarand Om Prakash this Court came to the following conclusion: “19. Thus the consistent view has been that if the Defendant sets up a case the proving of which would completely decide the issues which have been raised in the suit itself then the Defendant under Order XVIII Rule 1 CPC can be directed to lead evidence first. CS(OS) 332 2021 25. The ld. counsel for the Defendant submits that unless and until the Defendant voluntarily opts for leading evidence first the Court would not have the power to direct so. This would not be in accordance with law inasmuch as the Court has the power to curtail the trial of any suit at the time of framing of issues. The manner in which the issues have been framed in the present case shows that insofar as the issue no. 1 and issue no. 2 the onus has been cast clearly on the Defendant. If the Defendant is able to prove or not prove these issues the decision in the suit would get quite expedited. 26. Under these circumstances it is not necessary that in every suit unless and until the Defendant opts the Court cannot direct the Defendant to lead evidence first. The question as to whether who should lead evidence first would have to be decided by the Court after ascertaining the respective stands of the parties and after seeing as to what are the actual issues which arise for adjudication in the suit itself.” 17. The non applicants plaintiffs have filed the present suit for recovery of Rs.4 00 00 000 along with interest against applicant defendant premised on the fact that a loan of Rs.4 00 00 000 was given by the non applicants plaintiffs to the applicant defendant and the applicant defendant failed to return the said amount. The factum of receipt of the aforesaid amount has been admitted by the applicant defendant in its written statement. However the applicant defendant has pleaded additional facts in the written statement that the said amount of Rs.4 00 00 000 was in respect of old ancestral jewellery transactions which were given by the defendant to the plaintiff No.1. CS(OS) 332 2021 18. Based on the aforesaid pleadings issues were framed in the suit on 14th February 2022 and as can be seen from the issues the onus of proving issues No.(i) towere on the applicant defendant. The only issues which are to be proved by the non applicants plaintiffs is whether the non applicants plaintiffs are entitled recovery of the amount of Rs.4 00 00 000 along with interest. The substantive issues in the present suit would be issues No.(iii) and which are completely based on the additional facts pleaded by the applicant defendant in its written statement and therefore the onus of proving the same is on the applicant defendant. In the light of the dictas of this Court in N.K. Tomar and Achala Mohan there is no merit in the submission of the applicant defendant that unless the applicant defendant voluntarily opted for leading evidence in the first instance the Court cannot direct the applicant defendant to do so. In Achala Mohan it has been observed that the consistent view of the Courts has been that if the defendant sets up a case the proving of which would completely decide the issues which have been raised in the suit itself then the defendant under Order XVIII Rule 1 CPC can be directed to lead evidence first. I concur with the aforesaid observations of this Court in Achala Mohan 332 2021 does not mean that in an appropriate case based on the facts and circumstances of the case and the issues framed therein the Court cannot direct the defendant to lead evidence first. 21. Therefore in the facts and circumstances of this case it was correctly observed in the order dated 14th February 2022 that the evidence would be led at first by the applicant defendant. In light of the aforesaid this Court finds no merit in the application and the same is dismissed. CS(OS) 332 2021 FEBRUARY 23 2022 Sakshi R. dk 23. Parties are permitted to file hard copies of the entire record of the suit for the purpose of recording of evidence. AMIT BANSAL J CS(OS) 332 2021 |
Remuneration for work when appointment was done correctly must be paid: Patna High Court | Remuneration for work performed at the position of Aaganbari Sevika for almost a year if t has not been paid, it must be paid or else the petitioner is entitled to interest at the rate of 12% per annum on the salary arrears is upheld by the High Court of Patna through the learned bench led by HONOURABLE MR. JUSTICE P. B. BAJANTHRI in the case of Puja Kumari Vs. The State of Bihar (Civil Writ Jurisdiction Case No.10223 of 2020) Brief facts of the case are that the petitioner has requested the issuance of a writ/ writs/s in the nature of certiorari to set aside the order contained in letter no. 311 dated 19.06.2020 passed by C.D.P.O Masaurhi, Patna by which petitioner was removed from her post and her selection was cancelled, recognising that petitioner was the only available candidate in her category at the time of selection and thus her appointment was done correctly and has asked for the issuance of a writ in the type of a Mandamus requiring Respondents to pay her remuneration for work she performed at the position of Aaganbari Sevika for almost a year. Undoubtedly, the petitioner has a statutory right to appeal to the Appellate Authority; consequently, the petitioner has two weeks from the date of receipt of this ruling to file an appeal with the Appellate Authority. Following receipt of the petitioner’s Memorandum of Appeal, the Appellate Authority is hereby directed to resolve the petitioner’s appeal within two months of receipt. At this instance, learned counsel for the petitioner asserted that the petitioner was not paid compensation between the date of appointment and the date of cancellation of appointment. In this regard, the petitioner has not filed any representation; nonetheless, he is permitted to do so, and his representation will be reviewed by the appropriate authority. Writ petition stands disposed of stating that if the pay has not been paid, it must be paid within four weeks after the date of receipt of the petitioner’s representation; otherwise, the petitioner is entitled to interest at the rate of 12% per annum on the salary arrears. | IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.102220 Puja Kumari W o Umashankar Kumar Resident of village Chotki Masaurhi P.s. Masaurhi District Patna ... Petitioner s The State of Bihar through its Principal Secretary Welfare Department Government of Bihar Patna The Principal Secretary Department of Finance Government of Bihar Patna The Joint Secretary Department of Social Welfare Government of Bihar The P.C.F.C. Department of Finance Government of Bihar Patna The Director I.C.D.S. Government of Bihar Patna The District Magistrate(D.M.) Patna The Child Development Project OfficerMasaurhi Patna ... Respondent s For the Petitioner s For the Respondent s CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI Date : 10 01 2022 Mr.Samir Kumar Mr.Lalit KishoreFor issuance of writ writs s in the nature of certiorari for setting aside the order contained in letter no. 311 dated 19.06.2020 passed by C.D.P.O Masaurhi Patna by which petitioner has been removed from her post and her selection has been cancelled appreciating the fact that petitioner was only available candidate Patna High Court CWJC No.102220 dt.10 01 2022 without any criminal history in her category at the time of selection and so her appointment was done right ii) For issuance of writ in the nature of Mandamus directing Respondents to make the payment of the salary for work she has rendered at the post of Aaganbari Sevika for almost 12 months iii) For issuance of writ writs order orders directing the concerned authorities to for any other relief to be granted to the petitioner.” 3. Undisputedly petitioner has a statutory remedy of appeal before the Appellate Authority therefore the petitioner is at liberty to prefer appeal before the Appellate Authority within a period of two weeks from the date of receipt of this order. On receipt of Memorandum of Appeal Appellate Authority is hereby directed to decide the petitioner’s appeal within a period of two months from the date of receipt of appeal. 4. At this juncture learned counsel for the petitioner submitted that the petitioner has not been paid salary during the intervening period from the date of appointment till cancellation of appointment. In this regard petitioner has not submitted any representation. He is permitted to file representation. Such representation shall be considered by the competent authority. If salary has not been paid the same shall be paid within a period of four weeks from the date of receipt of petitioner’s representation failing which petitioner is entitled to interest at the rate of 12 per annum on arrears of salary. Patna High Court CWJC No.102220 dt.10 01 2022 5. With the above observation writ petition stands disposed off. P. B. Bajanthri J GAURAV S. |
Work stop notice solely on the ground that mobile phone tower is harmful for the health is not sustainable: High Court of Delhi | There is no scientific data available to show that installation of mobile phone tower and emission of waves by the said tower is in anyway harmful for the health or hazardous to the health of citizens. There is no conclusive data to the said effect. These studies have been conducted under the aegis of WHO. The studies have concluded that there is no conclusive scientific evidence of adverse health effects due to low level of RF emission from mobile phone towers and the same was upheld by High Court of Delhi through the learned bench led by Justice Sanjeev Sachdeva in the case of INDUS TOWERS LTD. vs. NORTH DELHI MUNICIPAL CORPORATION [W.P.(C) 11831/2021] on 23.02.2022. The facts of the case are that work stop notice was issued on the petitioner requiring him to stop further work of installation of a telecommunication tower on property based in New Delhi. The required permission for the installation work was granted to the plaintiff and petitioner had complied with all the requisite formalities and obtained permissions for installation of the said tower. Perusal of the complaints the only objection taken was that the installation of a tower in the colony is harmful and may cause great harm to children, old people and pregnant women. Therefore, the petitioner impugns the said order requiring him to stop further work of installation of a telecommunication tower on the property through the present petition. The petitioner’s counsel submitted that the permission for installation of a telecommunication tower was duly granted after petitioner had complied with all the requisite formalities and obtained permissions for installation of the said tower. The permission to commence the installation process was allowed only after receipt of all requisite documents from the petitioner and on completion of all the formalities. In view of the above, the court held that there is no scientific data available to show that installation of mobile phone towers and the emission of the waves by the said towers is in any way harmful for the health or hazardous to the health of citizens. There is no conclusive data to the said effect. The respondent has not been able to produce any data whatsoever showing any such harmful effects on the health of human beings. Therefore, the work stop notice issued by the respondent Corporation solely on the ground of the above referred complaints received from residents is not sustainable. The Court observed that, “There is no scientific data available to show that installation of mobile phone tower and emission of waves by the said tower is in anyway harmful for the health or hazardous to the health of citizens. There is no conclusive data to the said effect. These studies have been conducted under the aegis of WHO. The studies have concluded that there is no conclusive scientific evidence of adverse health effects due to low level of RF emission from mobile phone towers.” | IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 23rd February 2022 W.P.(C) 11831 2021& CM APPL. 36584 2021 INDUS TOWERS LTD Petitioner NORTH DELHI MUNICIPAL CORPORATION ..... Respondent Advocates who appeared in this case: For the Petitioner: Mr. Rohit Jain Advocate For the Respondents: Ms. Khushboo Nahar and Ms. Latika Malhotra Advocates for North DMC CORAM: HON’BLE MR. JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J The hearing was conducted through video conferencing. Petitioner impugns work stop notice dated 27.08.2021 requiring the petitioner further work of installation of a telecommunication tower on property bearing No. 50 F Block Baljit Nagar Punjabi Basti near Ramjas Ground New Delhi. Learned counsel for the petitioner submits that the permission for installation of a telecommunication tower was duly granted on W.P.(C) 11831 2021 23.08.2021 after petitioner had complied with all the requisite formalities and obtained permissions for installation of the said tower. Learned counsel submits that after the tower installation work commenced the impugned work stop notice dated 27.08.2021 was issued requiring the petitioner to stop further construction work. Counter affidavit has been filed by the respondent wherein it is confirmed that permission to commence the installation process was allowed only after receipt of all requisite documents from the petitioner and on completion of all the formalities. The counter affidavit states that the work stop notice had to be issued as complaints were received from residents of F Block Baljit Nagar raising objection with regard to installation of tower. Copies of the complaints have been annexed with the counter affidavit. Perusal of the complaints annexed with the counter affidavit show that the only objection taken is that the installation of a tower in the colony is harmful and may cause great harm to children old people and pregnant women. It is not in dispute that petitioner has complied with all the requisite formalities for installation of the telecommunication tower and permission was granted only after the petitioner fulfilled the W.P.(C) 11831 2021 conditions. Petitioner as per the Circulars of the Respondent Corporation has to also comply with the requirements of appropriate protective and preventive measures to be taken post installation and commission of the telecommunication tower. 10. Further it may be noticed that the objection raised by the residents that the tower is likely to cause harm to children old people and pregnant women is no longer res integra as by judgment dated 26.04.2016 a Division Bench of this Court in W.P.No. 5550 2015 titled Kapil Chaudhary & Anr. Vs. Union of India & Ors. has categorically held that there is no scientific data available to show that installation of mobile phone tower and emission of waves by the said tower is in anyway harmful for the health or hazardous to the health of citizens. There is no conclusive data to the said effect. 11. The Division Bench in Kapil Chaudhary was considering a public interest petition seeking removal of the mobile towers installed in residential area. The ground raised in the petition inter alia was that the presence of the towers will cause diseases on account of radiation that is emitted. The Union of India had filed a Counter Affidavit therein stating that “many studies have been conducted on the health hazard of radiations of mobile phone W.P.(C) 11831 2021 towers networks. These studies have been conducted under the aegis of WHO. The studies have concluded that there is no conclusive scientific evidence of adverse health effects due to low level of RF emission from mobile phone towers” 12. The Division Bench after considering several Judgments of various High Courts wherein similar pleas had been rejected held as “12. In view of the above it is clear that there is no scientific data available to show that installation of mobile phone towers and the emission of the waves by the said towers is in any way harmful for the health or hazardous to the health of citizens. There is no conclusive data to the said effect. The petitioner has not been able to produce any data whatsoever showing any such harmful effects on the health of human beings. The petitioner has also not been able to show violation of any norms by the respondent.” In view of the above the work stop notice issued by the respondent Corporation solely on the ground of the above referred complaints received from residents is not sustainable. Accordingly the work stop notice dated 27.08.2021 is quashed. W.P.(C) 11831 2021 14. Petitioner would be at liberty to carry out the installation of telecommunication tower as per with the sanction permission granted by the Corporation in accordance with law. Petitioner shall also comply with the post installation and commission stipulations. 15. Copy of the order be uploaded on the High Court website and be also forwarded to learned counsels through email by the Court FEBRUARY 23 2022 ‘rs’ SANJEEV SACHDEVA J W.P.(C) 11831 2021 |
Statement by the accused do not form strong grounds for apprehending arrest of the Petitioner: High Court Of Patna | The Petitioner was apprehended arrest and was alleged to have delivered a trolley full of liquor by the accused. On investigation and considering the facts and circumstances the court found that the allegation was based on the statement of the accused only. The Court cannot rely on a mere statement by the accused and hence granted the bail. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Amit Kumar v. The State of Bihar[Criminal Miscellaneous No.2051 of 2021]. The facts of the case were that the petitioner was apprehended arrest in connection with the Case, instituted under Sections 273/34 of the Indian Penal Code and 30(a) of the Bihar Prohibition and Excise Act. It was alleged that the petitioner was liable for delivering the liquor to the one caught by the police. It was alleged that the petitioner came to receive the trolley full of liquor but when he saw police, he hid away. The Learned Counsel for the petitioner submitted that the accusations are false and bald. The one arrested by the police was an employee under the petitioner and due to his negligence towards his duty, he had been warned by the petitioner. To take revenge the accused had taken the petitioner’s name and has been falsely implicated. It was further submitted that the petitioner had no other criminal antecedent. 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 the allegation against the petitioner is based only on the statement of the arrested co-accused that the liquor was to be delivered to him, the bar of Section 76(2) of the Act would not apply and further, since the petitioner has no other criminal antecedent, the Court is inclined to allow the prayer of the petitioner for pre-arrest bail.” It was further added,” Any violation of the terms and conditions of the bonds or the undertaking shall lead to cancellation of his bail bonds. The petitioner shall cooperate in the case and be present before the Court on each and every date. Failure to cooperate or being absent on two consecutive dates, without sufficient cause, shall also lead to cancellation of his bail bonds.” The Petition was hence disposed on the said terms. | IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.20521 Arising Out of PS. Case No. 649 Year 2019 Thana PATNA GRP CASE District Patna Amit Kumar aged about 28 years Gender Male son of Devendra Singh resident of village LodipurP.S. Punpun District Patna ... Petitioner s The State of Bihar ... Opposite Party s For the Petitioner s For the State Mr. Shivendra Kumar Sinha Advocate Mr. Md. Arif APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 10 08 2021 The matter has been heard via video conferencing 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioner on 04.08.2021 which was allowed 3. Heard Mr. Shivendra Kumar Sinha learned counsel for the petitioner and Mr. Md. Arif learned Additional Public Prosecutorfor the State 4. The petitioner apprehends arrest in connection with Rail PSCase No. 6419 dated 29.11.2019 instituted under Sections 273 34 of the Indian Penal Code and 30(a) of the Bihar Prohibition and Excise Act 2016of the Act would not apply in the present case. 7. Learned APP submitted that the petitioner has been named by the person who was caught with the liquor and it has been stated that the liquor was meant to be delivered to the Patna High Court CR. MISC. No.20521 dt.10 08 2021 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds that the allegation against the petitioner being based only on the statement of the arrested co accused that the liquor was to be delivered to him the bar of Section 76(2) of the Act would not apply and further since the petitioner has no other criminal antecedent the Court is inclined to allow the prayer of the petitioner for pre arrest bail 9. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioner be released on bail upon furnishing bail bonds of Rs 25 000 with two sureties of the like amount each to the satisfaction of the learned Special Judge Excise Patna in Rail PSCase No. 649 of 2019 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 petitioner that the petitioner and the bailors shall execute bond with regard to good behaviour of the petitioner andthat the petitioner shall also give an undertaking to the Court that he shall not indulge in any illegal criminal activity act in violation of any law statutory Patna High Court CR. MISC. No.20521 dt.10 08 2021 provisions tamper with the evidence or influence the witnesses Any violation of the terms and conditions of the bonds or the undertaking shall lead to cancellation of his bail bonds. The petitioner shall cooperate in the case and be present before the Court on each and every date. Failure to cooperate or being absent on two consecutive dates without sufficient cause shall also lead to cancellation of his bail bonds 10. It shall also be open for the prosecution to bring any violation of the foregoing conditions by the petitioner to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the 11. The petition stands disposed of in the (Ahsanuddin Amanullah J J. Alam |
Merely getting relief from the court as presently sought may not constitute sufficient relief for the plaintiff : Delhi High Court | Court truly holds the highest power when it comes to justice and it has the right to provide relief to parties as it deems appropriate. This was held in the judgment passed by a single judge bench HON’BLE MR. JUSTICE JAYANT NATH, in the matter of ALOK KUMAR LODHA V. ASIAN HOTELS (NORTH) LTD [CS(COMM) 189/2020], dealt with an issue where the petitioner filed a petition seeking a decree of declaration that the license in favor of the plaintiff in respect of the shop/premises in Hotel Hyatt Regency Delhi, New Delhi is irrevocable and perpetual and the purported revocation of the license by the defendant is illegal, void and bad in the eyes of law. A decree is also sought for declaration declaring that the plaintiff has unfettered right to occupy and use the said premises under the irrevocable license till the documents of transfer are executed by the defendant. Other connected reliefs are also sought. Plaintiff as part of the Asian Games, the Hyatt Hotel was launched subsequent to allotment of land under a lease deed by DDA. It was a part of an initiative to create 5-star iconic property with high end hospitality. a license agreement was executed by the plaintiff and the defendant company that regulated the terms of occupation of the plaintiff for the shop in question situated in the defendant hotel. The agreement was to be renewed periodically every five years. It is the case of the plaintiff that under the agreement valuable consideration was transferred being Rs.8.47 lakhs which was paid for the subject shop. There was no further additional payment or premium payable by the plaintiff. It is stated that the interest in the property was perpetual, permanent and irrevocable in law. Plaintiff found that to the utter shock and surprise of the plaintiff a revocation of license notice was served during the ongoing pandemic and amidst the lockdown. The defendant raised an objection that the suit is not maintainable in view of section 8 of the Arbitration and Conciliation Act. With the consent of the parties, the Co-ordinate Bench heard learned counsel for parties on the issue of maintainability of the suit as also the interim injunction application. The Division Bench set aside the said judgment in its entirety including prima facia findings of interest or rights of the parties. The matter was remanded back. After hearing both the parties The Hon’ble Delhi High Court allowed the petition and held that the proposed amendments are bona fide. The proposed amendments are necessary and proper for complete adjudication of the dispute between the parties. In the absence of such additions to the plaint the plaintiff would not be in a position to get full relief as is being sought. If the plaintiff were to succeed this court would pass appropriate declaration declaring that the plaintiffs have rights in the property/have an irrevocable license in their favor. However, if any such relief is granted by this court, it would be otiose in view of the fact that the property already stands mortgaged to the proposed defendants. Click here to view judgement | IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on: 16.08.2021 Judgment Pronounced on: 15.09.2021 CS(COMM) 189 2020 ALOK KUMAR LODHA Through: Mr.Avishkar Singhvi and Mr.Nipun Plaintiff Katyal Advs. ASIAN HOTELSLTD. ..... Defendant Through: Mr.Vikram Nankani Sr.Adv. with Kumar Mr.Sanjay Aggarwal Singh Ms.Aakanksha Kaul and Ms.Manyaa Chandok Advs. for the defendants. HON BLE MR. JUSTICE JAYANT NATH JAYANT NATH J. IA Nos.5173 2021 & 5174 2021 IA No.5173 2021 is filed by the plaintiff under Order 1 Rule 10 CPC seeking impleadment of necessary and proper parties as defendants. IA No.5174 2021 is field by the plaintiff under Order 6 Rule 17 CPC for amendment of the plaint. The present suit is filed by the plaintiff seeking a decree of declaration that the licence in favour of the plaintiff in respect of the shop premises bearing No.L 83 Hotel Hayatt Regency Delhi Bhikaji Cama Place New Delhi is irrevocable and perpetual and the purported revocation of the license by the defendant is illegal void and bad in the eyes of law. A decree IA Nos.5173 2021 & 5174 2021 in CS(COMM) 189 2020 is also sought for declaration declaring that the plaintiff has unfettered right to occupy and use the said premises shop under the irrevocable license till the documents of transfer conveyance are executed by the defendant. Other connected reliefs are also sought. It is the case of the plaintiff that as part of the Asian Games the Hyatt Hotel was launched subsequent to allotment of land under a lease deed dated 22.07.1982 by DDA. It was a part of an initiative to create 5 star iconic property with high end hospitality. It is the case of the plaintiff that the plaintiff through the original allottee paid a total sum of Rs.8.47 lakhs to the defendant in 1991 which was received as security deposit for the said shop premises L 83. It is stated that the said amount was substantially higher than the then prevailing value of the shop. On 02.09.1991 a license agreement was executed by the plaintiff and the defendant company that regulated the terms of occupation of the plaintiff for the shop in question situated in the defendant hotel. The agreement was to be renewed periodically every five years. It is the case of the plaintiff that under the agreement valuable consideration was transferred being Rs.8.47 lakhs which was paid for the subject shop. There was no further additional payment or premium payable by the plaintiff. It is stated that the interest in the property was perpetual permanent and irrevocable in law. On 29.05.2020 it is the case of the plaintiff that to the utter shock and surprise of the plaintiff a revocation of license notice was served during the ongoing pandemic and amidst the lockdown. Several other licensees who have occupied the shops for almost 40 years were also served such notices. These notices are unrelated to any alleged breach. The plaintiff impugns the said communication stating the same to be illegal and wholly contrary to the IA Nos.5173 2021 & 5174 2021 in CS(COMM) 189 2020 agreed terms. The defendant have also blocked free ingress and egress of the plaintiff to the arcade access to the shop. Hence the present suit. To complete the narration of facts I may mention that when the present matter came up for hearing before the court after filing the defendant entered appearance on receipt of an advance copy of the paperbook. The defendant raised an objection that the suit is not maintainable in view of section 8 of the Arbitration and Conciliation Act. With the consent of the parties the Co ordinate Bench heard learned counsel for parties on the issue of maintainability of the suit as also the interim injunction application. This court vide judgment dated 21.07.2020 returned a prima facie finding that the plaintiffs have a right in their favour and interest in land which is more than that of a lessee or at least that of an irrevocable license. The court also held that the suit and the application are liable to be dismissed with liberty to the parties to avail the remedy of arbitration in view of the arbitration clause in the license agreement. Both sides filed an appeal before the Division Bench. The Division Bench by judgment dated 24.12.2020 set aside the judgment of the Co ordinate Bench of this court dated 21.07.2020 stating that the order of dismissal of the suit on a verbal plea of section 8 of the Arbitration and Conciliation Act is not an order referring the parties to arbitration. The Division Bench set aside the said judgment in its entirety including prima facia findings of interest or rights of the parties. The matter was remanded back. Liberty was granted to the defendant Hotel if it so desires to on or before 15.01.2021 prefer an application under section 8 of the Arbitration and Conciliation Act which will be considered and decided in accordance with law. The defendants have filed the said application under section 8 of IA Nos.5173 2021 & 5174 2021 in CS(COMM) 189 2020 the Arbitration and Conciliation Act. The same is pending adjudication. The plaintiff has now filed IA No.5174 2021 under Order 6 Rule 17 CPC seeking amendment of the plaint. It is the case of the plaintiff that pursuant to a reply filed by the defendant hotel in these proceedings the plaintiff to its utter shock learnt for the first time about the mortgage carried out by the defendant of the entire hotel to certain banks. It is stated that the said mortgage carried out by the defendant was not revealed by the defendant earlier. The mortgaging of the property is for the purposes other than construction of the hotel which was admittedly completed in year 1984. It is stated that the defendant have surreptitiously created several mortgages over the present premises without properly disclosing to the banks financial institutions that a considerable portion of the hotel was conveyed transferred for extraordinary premium received in lieu thereof in the years 1981 2005. It is stated that the said mortgages have been created by the defendant without disclosure to the plaintiff despite the plaintiff having substantial rights in law under the terms of license and contemporaneous documents. Hence it is pleaded that the mortgages created by the defendant in favour of the financial institutions banks are illegal and void ab initio to the extent it encumbers the interest held by the plaintiff in the subject premises from 02.09.1991. Hence consequential amendments are sought to be made in the plaint pertaining to the rights of the plaintiff. The prayer clause is also sought to be amended seeking a decree of declaration against the defendant that the mortgages including the mortgage deeds which have been executed in favour of the banks is void and illegal to the extent that it encumbers any right title and interest of the plaintiff in the subject premises. Another application filed by the plaintiff is IA No.5173 2021 which is IA Nos.5173 2021 & 5174 2021 in CS(COMM) 189 2020 under Order 1 Rule 10 CPC which seeks to implead the banks and the financial institutions as defendants No.2 to 7. I have heard learned counsel for the plaintiff and learned senior counsel for the defendant. 10. The learned counsel for the plaintiff has vehemently urged that the mortgages carried out by the defendant in favour of financial institutions i.e. the proposed defendants No.2 to 7 came to the knowledge of the plaintiff only after filing of the present suit. It is pleaded that in terms of the license agreement the defendant had no right to mortgage the interest of the plaintiff. It is further stated that under the license agreement the defendant could only have mortgaged the property for construction purposes at best and not for any other purpose. The construction however of the building was completed in 1980’s and no such mortgage could be carried out thereafter. Hence it is urged that consequential reliefs have to be sought in the present suit and hence the present application. Reliance is placed on the judgments of the Supreme Court Kasturi v. Iyyamperumal & Ors. 2005SCC 733 and Ma Shwe Mya v. Maung Po Hnaung AIR 1922 PC 249. 11. Learned senior counsel appearing for the defendants have pointed out The mortgage in question was carried out in 1980’s. There is no challenge to the said mortgage in the present suit. The same cannot be as follows: permitted now. It is further stated that the plaintiff has no right against the banks and financial institutions. Hence the present amendment application does not lie. It is further stated that in any case the prayer of the plaintiff for declaration of relief and rights in the suit property have to first be adjudicated before IA Nos.5173 2021 & 5174 2021 in CS(COMM) 189 2020 any relief can be claimed against the proposed defendants No.2 to 7. It is only after the plaintiff is successful in claiming any rights in the property that the issue of adjudication of the rights of the third parties would arise. It is further urged that there is an arbitration clause in the agreement between the parties and hence this suit is liable to be stayed. An appropriate application has been filed by the defendant. Reliance is placed on the judgment of Supreme Court in the case of Deccan Paper Mills Company Ltd. v. Regency Mahavir Properties & Ors. 2021SCC 786. In rejoinder learned counsel for the plaintiff has pointed out that the mortgages were carried out sometime in the year 2012. In fact defendants have failed to provide full details of the mortgage. The same does not pertain to 1980’s when construction took place. No details are given by the defendant. IA No.5174 2021 I will first deal with the above IA under Order 6 Rule 17 CPC. I may note that the suit is presently at the initial stages. The defendants have opposed the present suit and have filed an application under Section 8 of the Arbitration and Conciliation Act seeking stay dismissal of the present proceedings. It is the case of the plaintiff that subsequent to the filing of the suit they have learnt about the creation of the mortgages by the defendant of the property claimed by the plaintiff with proposed defendants No. 2 to 7. The plaintiff claims that the mortgages carried out by the defendants are illegal and void to the extent that they affect the alleged rights of the plaintiff in the suit property. Defendants deny the said contention of the plaintiffs stating that under the terms of the agreement between the parties they have a right to IA Nos.5173 2021 & 5174 2021 in CS(COMM) 189 2020 create the mortgage. It is further stated that the mortgages were carried out long back and plaintiff has failed to carry out any challenge to the said mortgages. Other pleas are also raised. It is settled law that at the time of carrying out amendments to the pleadings the merits and demerits of the proposed amendments are not to be gone into. 17. Reference in this context may be had to the judgement of the Supreme Court in Rajesh Kumar Aggarwal and Ors. vs. K.K. Modi and Ors. AIR 2006 SC 1647 where the court held as follows: “19. While considering whether an application amendment should or should not be allowed the Court should not go into the correctness or falsity of the case in the amendment. Likewise it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.” 18. Hence at this stage it is not for this court to go into the correctness and falsity of the case as is sought to be made out in the amendments. In this context reference may also be had to the judgment of the Supreme Court in the case of Revajeetu Builders and Developers vs. Narayanaswamy and Sons & Ors 10 SCC 84. The Supreme Court held as follows: “63. On critically analyzing both the English and Indian cases some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: 1) Whether the amendment sought is imperative for IA Nos.5173 2021 & 5174 2021 in CS(COMM) 189 2020 proper and effective adjudication of the case 2) Whether the application for amendment is bona fide or mala fide 3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money 4) Refusing amendment would in fact lead to injustice or lead to multiple litigation 5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case and 6) As a general rule the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.” In my opinion the proposed amendments are bona fide. The proposed amendments are necessary and proper for complete adjudication of the dispute between the parties. In the absence of such additions to the plaint the plaintiff would not be in a position to get full relief as is being sought. Merely getting relief from the court as presently sought may not constitute sufficient relief for the plaintiff. If the plaintiff were to succeed this court would pass appropriate declaration declaring that the plaintiffs have rights in the property have an irrevocable license in their favour. However if any such relief is granted by this court it would be otiose in view of the fact that IA Nos.5173 2021 & 5174 2021 in CS(COMM) 189 2020 the property already stands mortgaged to the proposed defendants No.2 to 7. In view of the above the present application is allowed. IA. No.5173 2021 21. As noted above this application is filed under Order 1 Rule 10 CPC seeking to implead the proposed defendants No.2 to 7 to the plaint. It is the case of the plaintiff that the defendant has subsequent to the filing of the suit mortgaged the entire property including the rights claimed by the plaintiff in the present suit to banks financial institutions being proposed defendants No.2 to 7. Hence the present application to implead defendants No.2 to 7. In this context reference may be had to the judgment of the Supreme Court in the case of Kasturi v. Iyyamperumal & Ors. 189 2020 on 21.07.2020 it was vehemently pleaded by the defendant that there exists mortgages on the suit land and that no right of ownership lease or license in perpetuity can be created in favour of the third parties licensees unless the mortgagees are impleaded as parties. It was further pleaded that suit is bad for non joinder of the necessary and proper parties. This court in its judgment dated 21.07.2020 had noted the said pleas of the defendant. Relevant portion of the said judgment dated 21.07.2020 reads as follows: “87.At this stage it will also be appropriate to note the objection of the defendant that since there exists mortgages on the suit land no right of ownership lease or license in perpetuity can be created in favour of the third parties licensees unless the mortgagees are not impleaded as parties. Therefore the suit is bad for non joinder of the necessary parties. ........”. 26. Clearly in view of the pleas taken by the defendant in court it does not now lie for them to plead that the proposed defendants No.2 to 7 are not necessary or proper parties. They cannot be permitted to resile from the submissions made before the Co ordinate Bench of this court when the same matter was argued in the first round. 27. Accordingly the present application is allowed. Defendants No.2 to 7 are impleaded to the present suit. CS(COMM) 189 2020 Amended plaint if not filed be filed within ten days. Thereafter issue notice to the newly impleaded defendants No. 2 to 7 returnable for SEPTEMBER 15 2021 v JAYANT NATH J. IA Nos.5173 2021 & 5174 2021 in CS(COMM) 189 2020 Page 10 of |
The principal consideration to be decided in the writ of Habeas Corpus for custody of minor is whether the custody is illegal or not: Allahabad High Court | The custody of a minor child who has lived with her maternal grandparents since a very tender age is not unlawful or illegal. Such an observation was held by the Hon’ble Allahabad High Court before Hon’ble Justice Dr. Yogendra Kumar Srivastava in the case of Reshu @Nitya and ors vs State of UP and ors [HABEAS CORPUS WRIT PETITION No. 9 of 2020].
The fact of the case was that the mother of the minor died due to cardiac arrest when she was 19 months old and since then she is residing with her maternal grandparents. The contentions of the petitioners were that upon repeated requests the maternal grandparents were not handing over the custody of the minor to her father and paternal grandparents and therefore the respondents are illegally detaining the minor in their custody. However, the contention of the respondents was that the petitioners are responsible for the death of the minor’s mother for which a criminal complaint and an FIR has been lodged under Sections 498A, 304B IPC and Section 3/4 Dowry Prohibition Act, 1961 which is sub-judice.
The Hon’ble High Court took the view that the primary contention to be dealt with in the current petition before them was to decide the legality of custody of the maternal grandparents and not whether such custody should be given to the minor’s father and paternal home or it should be given to the maternal home. While deciding the Hon’ble court stated “The aforementioned facts do not indicate that the custody of the minor with the respondent no. 4 can in any manner be said to amount to illegal and improper detention. The child from her infancy, when she was of tender age, appears to be living with her maternal grandfather. This together with the fact that the father who is claiming custody is named as an accused in a criminal case relating to the death of the mother of the corpus, would also be a relevant factor. The other considerations which would have a material bearing would be the necessity of the child being provided loving and understanding care, guidance, and a warm and compassionate relationship in a pleasant home, which are essential for the development of the child’s character and personality”
The Hon’ble High Court also pointed out that the welfare of the minor is of paramount importance and supersedes the right of the parties involved and pointed out various judgments and doctrines to support its view. The Hon’ble High Court stated that “ material considerations have their place, they are secondary matters. More important are stability and security, loving and understanding care and guidance, and warm and compassionate relationships which are essential for the development of the child’s character, personality, and talents”. Therefore considering all the factors in play and the criminal complaint against the petitioners the Hon’ble High Court held that the custody of the maternal grandparents is not illegal.
Finally, the Hon’ble High court dismissed the writ petition and decided not inclined to exercise its extraordinary jurisdiction provided under Article 226 of the constitution of India.
Click here to read judgment
Judgment Reviewed by: Rohan Kumar Thakur
The fact of the case was that the mother of the minor died due to cardiac arrest when she was 19 months old and since then she is residing with her maternal grandparents. The contentions of the petitioners were that upon repeated requests the maternal grandparents were not handing over the custody of the minor to her father and paternal grandparents and therefore the respondents are illegally detaining the minor in their custody. However, the contention of the respondents was that the petitioners are responsible for the death of the minor’s mother for which a criminal complaint and an FIR has been lodged under Sections 498A, 304B IPC and Section 3/4 Dowry Prohibition Act, 1961 which is sub-judice.
The Hon’ble High Court took the view that the primary contention to be dealt with in the current petition before them was to decide the legality of custody of the maternal grandparents and not whether such custody should be given to the minor’s father and paternal home or it should be given to the maternal home. While deciding the Hon’ble court stated “The aforementioned facts do not indicate that the custody of the minor with the respondent no. 4 can in any manner be said to amount to illegal and improper detention. The child from her infancy, when she was of tender age, appears to be living with her maternal grandfather. This together with the fact that the father who is claiming custody is named as an accused in a criminal case relating to the death of the mother of the corpus, would also be a relevant factor. The other considerations which would have a material bearing would be the necessity of the child being provided loving and understanding care, guidance, and a warm and compassionate relationship in a pleasant home, which are essential for the development of the child’s character and personality”
The Hon’ble High Court also pointed out that the welfare of the minor is of paramount importance and supersedes the right of the parties involved and pointed out various judgments and doctrines to support its view. The Hon’ble High Court stated that “ material considerations have their place, they are secondary matters. More important are stability and security, loving and understanding care and guidance, and warm and compassionate relationships which are essential for the development of the child’s character, personality, and talents”. Therefore considering all the factors in play and the criminal complaint against the petitioners the Hon’ble High Court held that the custody of the maternal grandparents is not illegal.
Finally, the Hon’ble High court dismissed the writ petition and decided not inclined to exercise its extraordinary jurisdiction provided under Article 226 of the constitution of India.
Click here to read judgment
Judgment Reviewed by: Rohan Kumar Thakur
The Hon’ble High Court took the view that the primary contention to be dealt with in the current petition before them was to decide the legality of custody of the maternal grandparents and not whether such custody should be given to the minor’s father and paternal home or it should be given to the maternal home. While deciding the Hon’ble court stated “The aforementioned facts do not indicate that the custody of the minor with the respondent no. 4 can in any manner be said to amount to illegal and improper detention. The child from her infancy, when she was of tender age, appears to be living with her maternal grandfather. This together with the fact that the father who is claiming custody is named as an accused in a criminal case relating to the death of the mother of the corpus, would also be a relevant factor. The other considerations which would have a material bearing would be the necessity of the child being provided loving and understanding care, guidance, and a warm and compassionate relationship in a pleasant home, which are essential for the development of the child’s character and personality” The Hon’ble High Court also pointed out that the welfare of the minor is of paramount importance and supersedes the right of the parties involved and pointed out various judgments and doctrines to support its view. The Hon’ble High Court stated that “ material considerations have their place, they are secondary matters. More important are stability and security, loving and understanding care and guidance, and warm and compassionate relationships which are essential for the development of the child’s character, personality, and talents”. Therefore considering all the factors in play and the criminal complaint against the petitioners the Hon’ble High Court held that the custody of the maternal grandparents is not illegal.
Finally, the Hon’ble High court dismissed the writ petition and decided not inclined to exercise its extraordinary jurisdiction provided under Article 226 of the constitution of India. | Shukla Ramanuj Yadav Virendra Kumar Yadav Counsel for Respondent : G.A. Abhinav Gaur Ankur Verma Manoj Kumar Rajvanshi Prakash Chandra Yadav Hon ble Dr. Yogendra Kumar Srivastava J Heard Sri M.D.Mishra along with Sri Ramanuj Yadav learned counsel for the petitioners Sri Vinod Kant learned Additional Advocate General appearing along with Ms. Sushma Soni learned Additional Government learned Senior Counsel assisted by Sri Ankur Verma and 3 seeking custody of the petitioner no. 1 corpus a fact that the petitioner no.1 corpus was born on stated that the mother of the petitioner no. 1 was petitioner nos. 2 and 3 and that the same amounts to respondent no. 4 wherein it is pointed out that the her by the inlaws which resulted in her death and the newly born girl child the petitioner no. 1 is under the care of the respondent no. 4 since the death of her any kind of illegal custody. It is at this stage as reflected from the ordersheet that an application seeking was moved which was allowed on 14.02.2020 and he A supplementary counter affidavit was filed on which ultimately resulted in her death. Particulars of a Prohibition Act 1961 in which the petitioner nos. 2 3 and 4 are named as accused have also been affidavits have been filed on behalf of the petitioners the supplementary counter affidavit respectively and reiterating the claim with regard to custody and Learned counsel for the petitioners has sought to the absence of her mother the petitioner no. 2 her father who is the only surviving parent would be her natural guardian as per Section 6 of the Hindu Minority and Guardianship Act 19561 and accordingly the respondent been placed upon the decisions in Tejaswini Gaud Vs Shekhar Jagdish Prasad Tewari and others2 and Kumari Palak and another Vs. Raj Kumar Controverting the aforesaid assertions learned Senior Counsel appearing for the respondent no. 4 has years and that she is under the care and custody of respondent no. 4 her maternal grandfather ever since 1. HMGA of her mother on account of the torture and cruelty held to be illegal. Pointing out to the fact that the relating to offence of dowry death inflicted upon the the minor child to grant her custody to the said upon the decisions in Neelam Vs. Man Singh4 Smt Vs. Deepak Kisanrao Tekram7 Nil Ratan Kundu and Vs. Pradip Kumar Karunashankar Joshi10 Vaibhavi Sharma and another Vs. State of U.P. and others11 and Vahin Saxena and 6. 2 SCC 654 matter relating to a claim for custody of a child the writ of course and may be granted only on reasonable ground or probable cause being shown as held in Mohammad Ikram Hussain vs. State of U.P. and others13 and Kanu Sanyal vs. District Magistrate Bench decision in the case of Kanu Sanyal with law. The object of the writ is to secure release of a is no doubt a command addressed to a person who is his detention may be inquired into or to put it differently “in order that appropriate judgment be restraint”. The form of the writ employed is “We command you that you have in the King s Bench primarily designed to give a person restrained of his liberty a speedy and effective remedy for having the and if the detention is found to be unlawful having himself discharged and freed from such restraint. The most characteristic element of the writ is its peremptoriness and as pointed out by Lord Halsbury L.C. in Cox v. Hakes “the essential and leading theory of the whole procedure is the immediate determination of the right to the applicant s freedom That is the primary purpose of the writ that is its 13. The exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would therefore be is unlawful. It is only where the aforementioned jurisdictional fact is established that the applicant and whether the welfare of the child requires that his present custody should be changed and the child be 15. Taking a similar view in the case of that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other the whether the custody of the child can be said to be requires that the present custody should be changed. It Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and remedy of a prerogative writ of habeas corpus can be availed in exceptional cases where ordinary remedy securing the liberty of the subject by affording an as equivalent to illegal detention for the purpose of guardian in appropriate cases the writ court has 19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus the child is addressed to the discretion of the court Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case ordinary custody matters the power of the High Court in granting the writ is qualified only in cases where the Courts in our view in child custody matters the writ of the Guardians and Wards Act as the case may be. In and Wards Act the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between of affidavits. Where the court is of the view that a detailed enquiry is required the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas mother the mother having died in child birth it was held and on facts the child having been brought up by the grandmother since her infancy and having developed to be retained by the maternal grandmother. While the Court was held to be what would best serve the Vs. Arvand M. Dinshaw18 and Muthuswami Chettiar Vs. K.M.Chinna Muthuswami Moopanar19 it was also held that welfare of child prevails over legal rights of parties while deciding custody of minor child. The “14. The question for our consideration is whether in the present scenario would it be proper to direct the 15. Under the Guardians and Wards Act 1890 the father is the guardian of the minor child until he is found unfit to be the guardian of the minor female child. In deciding such questions the welfare of the question cannot be decided merely based upon the rights of the parties under the law. it was held that ordinarily under the Guardian and Wards Act 189020 the natural guardians of the child have the right to the courts are expected to give paramount consideration to what is the benefit of the child was considered in Re “...The dominant matter for the consideration of the child is not to be measured by money only nor by “It is not I think really in dispute that in all cases the that of course does not mean you add up shillings and whole background of the child s life and the first are looking at his welfare is who are his parents and factors while examining the welfare of a child was considered in Walker Vs. Walker & Harrison23 and it was observed that while material considerations have which are essential for the development of the child s character personality and talents. It was stated as “Welfare is an allencompassing word. It includes 21. 1 Ch. 143 C.A 23. 1981 New Ze Recent Law 257 material welfare both in the sense of adequacy of are maintained. However while material considerations have their place they are secondary matters. More understanding care and guidance the warm and development of the child s own character personality and a habeas corpus proceeding it has been stated in habeas corpus proceeding for custody of a child is addressed to the discretion of the court and custody may be withheld from the parent where it is made 23. The question of a claim raised by maternal grandfather for guardianship of a minor child whose Deepak Kisanrao Tekham25 and reiterating that in the matter of custody of a minor child paramount or relatives it was held that the appointment of the maternal grandfather as guardian was justified Referring to the judgments in Gaurav Nagpal Vs Sumedha Nagpal26 and Anjali Kapoor Vs. Rajiv Baijal5 “17. In Gaurav Nagpal v. Sumedha Nagpal26 this widest sense. The moral and ethical welfare of the physical wellbeing. Though the provisions of the nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in the maternal grandfather as ordered by the District 19. We have already referred to the fact that on 2332003 after giving birth to the child the mother died and the child was taken by the maternal grandfather. The maternal grandfather filed a petition for custody on 782003 and the father also made a another woman and also has a son from his second marriage. Though the exact date of marriage is not mentioned anywhere the fact remains that within a the appellant herein the respondent husband married that the respondent is working as an Operator in and other retiral benefits and also owns agricultural his wife i.e. maternal grandmother of the child and 26. 1 SCC 42 any specific finding by the courts below on either of 22. It is true that under the 1890 Act the father is the Court consistently held that the welfare of the minor child is the paramount consideration and such a rights of the parties under the law. This principle is the respondent father got married within a year after through the second marriage residing in a rural village the child is getting good education we feel that the It may be apposite at this stage to refer to the law relating to guardians and wards which is governed in terms of the Guardian and Wards Act 189020 and an order with regard to guardianship upon an application filed by a person claiming entitlement may be passed to guardians and wards. Section 4 of the Act defines “minor” as “a person who has not attained the age of the person of a minor or his property or of both his whose person or property or both there is a guardian” Sections 5 to 19 of the Act relate to appointment and “7. Power of the court to make order as to 3) Where a guardian has been appointed by will or an order under this section appointing or declaring made until the powers of the guardian appointed or Section 8 of the Guardian and Wards Act 1890 guardianship. Section 9 empowers the Court having jurisdiction to entertain application for guardianship Sections 10 to 16 deal with procedure and powers of “17. Matters to be considered by the court in the guardian of a minor the court shall subject to the provisions of this section be guided by what minor the court shall have regard to the age sex and the wishes if any of a deceased parent and any 3) If the minor is old enough to form an intelligent 29. The Hindu Minority and Guardianship Act 19561 who has not completed the age of eighteen years” property” and includes a “natural guardian”. “Natural guardian” means any of the guardians mentioned in Section 6 enacts as to who can be said to be a guardians of a Hindu minor in respect of the minor s person as well as in respect of the minor s property Provided that the custody of a minor who has not 1. HMGA unmarried girl—the mother and after her the father Explanation.—In this section the expressions ‘father’ and ‘mother’ do not include a stepfather and a Section 8 thereof enumerates powers of a natural which are necessary or reasonable and proper for the a) mortgage or charge or transfer by sale gift exchange or otherwise any part of the immovable 3) Any disposal of immovable property by a natural guardian in contravention of subsection or sub 4) No court shall grant permission to the natural 2) except in the case of necessity or for an evident 5) The Guardians and Wards Act 1890shall apply to and in respect of an application for powers specified in subsections (3) and of c) an appeal shall lie from an order of the court the court to which appeals ordinarily lie from the the Guardian and Wards Act 1890within the local limits of whose jurisdiction the immovable situate and where the immovable property is situate within the jurisdiction of more than one such court means the court within the local limits of whose minor 13.Welfare of to be paramount consideration.(1) In the appointment or declaration the welfare of the minor shall be the paramount 33. The provision with regard to making of an application regarding claims based on entitlement of guardianship is under the GWA and under Section 12 thereof the court is empowered to make interlocutory orders for protection of a minor including an order for temporary custody and protection of the person or 34. The aforestated provisions make it clear that in a matter of custody of a minor child the paramount force. The word “welfare” used in Section 13 of the 35. The subject matter relating to custody of children Marriage Act 195527 is governed in terms of the provisions contained under Section 26 thereof. The aforesaid section applies to "any proceeding" under the HMA and it gives the power to the court to make provisions in regard to:custody maintenance and iii) education of minor children. For this purpose the during the pendency of the proceedings and all such considered in Gaurav Nagpal v Sumedha Nagpal26 and 42. Section 26 of the Hindu Marriage Act 1955 proceeding under the said Act the Court could make just and proper with respect to custody maintenance get the custody of a minor child in Thrity Hoshie Dolikuka Vs. Hoshiam Shavaksha Dolikuka28 it was held that the only consideration for the court in such 28. 2 SCC 544 minor appear to be wellestablished. It is wellsettled that any matter concerning a minor has to be matter concerning a minor the Court has a special the welfare of the minor and to protect the minor s interest. In considering the question of custody of a minor the Court has to be guided by the only Further referring to para 428 of Halsbury s Laws of England 3rd Edn. Vol. 2129 in Thrity Hoshie Dolikuka s case it was observed as follows : “18. In Halsbury s Laws of England 3rd Edn. Vol. 21 Infant s welfare paramount.—In any or upbringing of an infant or the administration of any property belonging to or held on trust for an consideration whether from any other point of view possessed by the father in respect of such custody Even where the infant is a foreign national the court the first and paramount consideration whatever orders may have been made by the courts of any 39. Examining the factors to be considered in matters relating to custody of a minor child in Mausami Moitra 29. Halsbury s Laws of England 3rd Edn. Vol. 21 Ganguli Vs. Jayant Ganguli30 it was held that better financial resources love for child or statutory rights are no doubt relevant but welfare of the child would be minor child are well settled. It is trite that while determining the question as to which parent the care In fact no statute on the subject can ignore eschew or case are concerned. It is no doubt true that father is the welfare of the child being normally the working member and head of the family yet in each case the but cannot be the sole determining factor for the in the background of all the relevant facts and 40. The principles as to custody and upbringing of a minor as delineated in para 809 of Halsbury s Laws of England 4th Edn. Vol. 1329 were also referred in “22. In Halsbury s Laws of England29. Halsbury s Laws of England 4th Edn. Vol. 13 children has been succinctly stated in the following “809. Principles as to custody and upbringing of the court in deciding that question must regard the welfare of the minor as the first and paramount consideration and must not take into consideration father in respect of such custody or upbringing is superior to that of the mother or the claim of the father and the rights and authority of mother and again came up for consideration in Gaurav Nagpal Vs Sumedha Nagpal26 and it was reiterated that the paramount consideration in such matters would be welfare of the child and not rights of parents under a to give due weightage to the child s ordinary comfort contentment health education intellectual development “50. When the court is confronted with conflicting on legalistic basis in such matters human angles are not give emphasis on what the parties say it has to the minor. As observed recently in Mausami Moitra Ganguli30 the court has to give due weightage to the child s ordinary contentment health education intellectual development and favourable surroundings 26. 1 SCC 42 but over and above physical comforts the moral and being. Though the provisions of the special statutes stand in the way of the court exercising its parens 42. A similar view was taken in Gaytri Bajaj Vs. Jiten custody the welfare interest and desire of child has to be of minor children either under the provisions of the emphasised is that while all other factors are undoubtedly relevant it is the desire interest and consideration that must guide the determination court as parens patriae in deciding grant of custody of a ensure that the child grows and develops in the best environment. The best interest of the child has been placed at the vanguard of family custody disputes child primacy over other considerations. The child is often left to grapple with the breakdown of an adult institution. While the parents aim to ensure that the lingers on till the new routine sinks in. The effect of separation of spouses on children psychologically having a significantly negative repercussion in the advancement of the child. While these effects do not nor has any child experienced all these effects the of the parents to evade and the court s intent to circumvent. This right of the child is also based on again following observations in Bandhua Mukti “4. The child of today cannot develop to be a responsible and productive member of tomorrow s his social and physical health is assured to him Every nation developed or developing links its the potential and also sets the limit to the future the fatigue and drudgery in their struggle of daily life. Parents regain peace and happiness in the society will feel happy with them. Neglecting the children means loss to the society as a whole. If Founding Fathers of the Constitution therefore have 15. It hardly needs to be emphasised that a proper education encompassing skill development recreation whose development has a direct impact on the suitable health sound education and constructive environment is the productive key member of the governing the nation. The tools of education environment skill and health shape the child thereby part in the different spheres aiding the public and accompanied by a significant public interest which arises because of the crucial role they play in nation In somewhat similar set of facts in the case of Nil of a minor s mother it was held that the paramount child and the court exercising parens patriae jurisdiction must give due weightage to a child s ordinary comfort contentment health education intellectual development and favourable surroundings as well as minor s mother was a relevant factor required to be 45. Referring to the legal position under the English Law American Law and the Indian Law in Nil Ratan Kundu s case it was observed as follows : 24. In Halsbury s Laws of England 4th Edn. Vol. 24 Para 511 custody or upbringing of a minor is in question then in deciding that question the court must regard the minor s welfare as the first and paramount consideration and may not take into consideration whether from any other point of view the father s claim in respect of that custody or upbringing is superior to that of the mother or the mother s claim is exercise a choice the court will take his wishes into 25. Sometimes a writ of habeas corpus is sought for custody of a minor child. In such cases also the 26. In Habeas Corpus Vol. I p. 58134 Bailey states crystal he may not be afflicted with the slightest mental moral or physical disqualifications from 29. Halsbury s Laws of England 4th Edn. Vol. 24 Para 511 at p. 217 34. Habeas Corpus Vol. I p. 581 health make the vigilance of the mother indispensable to its proper care for not doubting best substitute which could be procured yet every instinct of humanity unerringly proclaims that no substitute can supply the place of her whose watchfulness over the sleeping cradle or waking holier feeling than the most liberal allowance of 27. In McGraththe principles governing custody of minor “52. In our judgment the law relating to custody of a difficult and complex question as to the custody of a is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor the paramount parens patriae jurisdiction and is expected nay bound to give due weight to a child s ordinary comfort education health above physical comforts moral and ethical values cannot be ignored. They are equally or we may say even more important essential and indispensable intelligent preference or judgment the court must consider such preference as well though the final decision should rest with the court as to what is not unfit to be the guardian of his minor children of all the relevant circumstances. The father s fitness cannot override considerations of the welfare of the 57. In our opinion in such cases it is not the “negative custody of his son daughter that is relevant but the that the court should exercise the power to grant or 67. Before about a century in Besant v Narayaniah36 under an agreement custody of two minor sons was with the mother who was staying in England. The father who was residing in Madras could have been lawfully made by an Indian court Upholding the contention allowing the appeal and open to the plaintiff father to apply to His Majesty s “…If he does so the interests of the infants will be considered and care will be taken to ascertain their own wishes on all material points.” (Besant case of a criminal case for an offence punishable under required to be considered by a court of law is character “63. In our considered opinion on the facts and in the circumstances of the case both the courts were duty the “character” of the proposed guardian. In in similar this Court almost 64. Thus a complaint against the father alleging and Section 498A IPC is indeed a relevant factor and a father is convicted it is open to the maternal grandparents to make an appropriate application for In an earlier decision in the case of Kirtikumar Maheshankar Joshi vs. Pradipkumar Karunashanker was facing a charge under Section 498A I.P.C. it was It is therefore seen that in an application seeking a would be to ascertain whether the custody of the child welfare of the child requires that the present custody the care and custody of somebody else other than in extraordinary remedy and the writ is issued where in the circumstances of a particular case the ordinary remedy The power of the High Court in granting a writ in child 51. A writ of habeas corpus is employed in certain cases to enable a party to enforce a right to control be detained by some other person. The Courts however for the interest of the child an order remanding him to custody in a writ of habeas corpus may not be held to be to guardianship visavis welfare of the child the predominant test for consideration would be what parties while deciding matters relating to custody. The court exercising parens patriae jurisdiction would be comfort contentment health education intellectual development and favourable surroundings as well as physical comfort and moral values paramount 53. The welfare of a child in the context of claims relating to custody guardianship would have to be considered in its widest amplitude. It may include living. However the material considerations though having their place would be secondary. More important would be the stability and security loving and understanding care and guidance and warm and psychosocial as also physical development of the child In a case where facts are disputed and a detailed extraordinary jurisdiction and may direct the parties to of U.P. and 3 others37 Master Manan @ Arush Vs State of U.P. and others38 and Krishnakant Pandey is sought to be relied on behalf of the petitioners has maintainability of habeas corpus petition under Article law and that the said remedy can be availed in 56. The other judgment in the case of Kumari Palak the petitioners is distinguishable on facts inasmuch as it three and half years who had sought to claim her custody had been acquitted in the criminal trial and the and that the mother was no longer alive and that the three years. It is not disputed that the mother of the the respondent no. 4 her maternal grandfather. The Section 3 4 Dowry Prohibition Act 1961 in which the petitioner nos. 2 3 and 4 are named as accused and the 58. The aforementioned facts do not indicate that the manner be said to amount to an illegal and improper claiming custody is named as an accused in a criminal case relating to the death of the mother of the corpus which would have a material bearing would be the necessity of the child being provided loving and understanding care guidance and a warm and present case the paramount consideration would be the proper remedy would be before the appropriate 60. This Court in the facts of the case is not inclined to |
Forum Shopping- To sought for bail under the pretext of challenging the constitutionality of a law is highly deprecated and in such instances bail should not be Allowed: Supreme Court of India | After realizing that the learned Single judge hearing his bail application would not grant him bail, the accused herein had withdrawn that application and had then proceeded to file a writ petition before the High Court challenging the vires of certain sections of the Maharashtra Control of Organised Crime Act (MCOCA). Without noticing the above, the Division Bench of the High Court had released the accused on bail that too by way of interim relief, which otherwise the accused would not have gotten before the learned Single Judge. The aforesaid can be said to be forum shopping by the accused which is highly deprecated and which cannot be approved. The same was observed by Hon’ble Mukeshkumar Rasikbhai Shah, J in the matter of The State of Maharashtra vs. Pankaj Jagshi Gangar – [Criminal Appeal No. 1493 of 2021]. In this case, an FIR was registered for the offences under the IPC against the accused. During the course of the investigation, it was also found that the respondent herein paid money to organized crime syndicate and other gangs. After investigation a charge sheet was submitted under the provisions of the IPC as well as under the MCOCA. The respondent herein filed a bail application before the learned Special Judge which was rejected and the accused approached the High Court and when the High Court was not inclined to grant any relief, the learned counsel on instructions withdrew the said bail application. Immediately on withdrawal of the aforesaid bail application the respondent filed a writ petition before the Division Bench of the High Court and prayed to strike down Section 23(1)(a) and Section 21(4) of the MCOCA on grounds of it being ultra vires the constitutional in violation of the Articles 14, 19 and 21 of the Constitution of India. As such the constitutionality of the of aforesaid two provisions is yet to be considered by the High Court in the pending writ petition. But after holding so and while admitting the writ petition, the High Court granted the interim relief by directing that the respondent be released on bail. Due to this, the State Government has preferred the present appeal. The learned Advocate appearing on behalf of the appellant – State submitted that in the facts and circumstances of the case, the High Court has committed a grave error in releasing the respondent on bail and that too by way of interim relief. It is submitted that while releasing the accused on bail, the High Court did not consider the gravity of the offences alleged. It was submitted that as such releasing the accused on bail by the Division Bench of the High Court by way of interim relief is unsustainable in law in view of the decision of this court in the case of M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and Others (Criminal Appeal No.330 of 2021 decided on 13.04.2021). The learned advocate general appearing on behalf of the respondents submitted that in the facts and circumstances of the case and on considering the material available on record, the High Court has rightly held that the sanction to prosecute the accused under the MCOCA is bad in law. It was submitted that the respondent has been released on bail by the High Court in the year 2019 and more than two years have passed and there are no allegations that the accused has misused the liberty while granting bail to him. Therefore, it was requested not to cancel the bail granted by the High Court, in exercise of powers under Article 136 of the Constitution of India. Supreme court after perusing the facts and arguments presented, held that – “While releasing the accused on bail that too by way of interim relief the High Court had not at all considered the seriousness of the offences alleged against the accused. By the impugned order, the High Court had observed that the sanction to invoke the provisions of the MCOCA is bad in law as there is no evidence on record. Therefore, it is noted that the High Court had not considered the allegations with respect to other offences under the IPC, even if such an observation at the interim relief stage on the sanction to prosecute/invoke the provisions of MCOCA was not warranted. It is required to be noted that the bail application preferred by the accused was heard by the learned Single judge who was not inclined to release the accused on bail and therefore the accused withdrew the same and thereafter preferred the writ petition before the Division Bench of the High Court under the guise of challenging the vires of MCOCA and without noticing the above, the Division Bench of the High Court has released the accused on bail that too by way of interim relief, which otherwise the accused could not get before the learned Single Judge and he withdrew the bail application. The aforesaid can be said to be forum shopping by the accused which is highly deprecated and which cannot be approved. On this ground also, the accused is not entitled to be released on bail and the impugned order passed by the High Court releasing the accused on bail deserves to be quashed and set aside.” | 1. Feeling aggrieved and dissatisfied with the impugned order 4639 of 2018 by which the Division Bench by way of an interim relief directed the respondent herein accused be Station the State of Maharashtra has preferred the present 2. At the outset it is required to be noted that the present is a glaring example of fourm shopping by the accused which offences under Sections 384 386 387 read with Section 34 Raju. The case on behalf of the prosecution has been JudgeThane in his order dated 26.03.2018 passed Special Judge rejected the application submitted by the respondent herein for bail and therefore the same is not by international gangster Shakil Babu Mohiddin Shaikh Chhota Shakil @ C.S. and Iqbal Ibrahim Kaskar @ Iqbal to time the respondent herein was paying the amount to used to use the said amount for taking help of other Borivali Mumbai after prior sanction the provisions of to be applied. After investigation a charge sheet was 3. Feeling aggrieved and dissatisfied with the rejection of the application No.855 of 2018. The same was heard by the learned Single Judge. From the order dated 13.07.2018 learned counsel on instructions withdrew the said bail order dated 13.07.2018. Immediately on withdrawal of the unguided being absolutely arbitrary uncanalized and thus unconstitutional being violative of the Articles 14 19 and 21 of the Constitution of India or to save it from unconstitutionality to read down expound empty formality dependent upon whims fancies prejudices and caprices of the concerned officer for release on bail as encapsulated therein to be unconstitutional and violative of Article 14 and c) To quash and set aside the impugned prior petitioner and consequently to quash the Case no.217 under Section 384 386 387 34 & 120of IPC and 3(1)(ii) 3(2) 3(4) and 3(5 2017 of Kasarvadavli Police Station at Thane and Charge Sheet dated under Sec 3(1)(ii) 3(2) 3(4) and 3(5) of MCOCA disposal of the instant Application the Petitioner No.l190 2017 registered with Kasarvadavli Police Station Thane on such interim bail on suitable terms and conditions as this Hon ble of the MCOCA and on the prayer to strike down the twin conditions imposed for release on bail to be unconstitutional and violative of Articles 14 and 21 of the Constitution of India. Therefore as such the constitutionality challenging the vires of aforesaid two provisions the High Court has also considered and dealt with on merits the to invoke the provisions of MCOCA and though a detailed Section 482 Cr.PC and or considering the discharge application the High Court has observed that the order passed by the Additional Commissioner of Police dated has granted the interim relief by directing that the MCOC No.24 of 2017 arising out of C.R. No.I190 2017 which the respondent accused could not get before the 4. Feeling aggrieved and dissatisfied with the impugned too by way of interim relief the State Government has has vehemently submitted that in the facts and 5.1 It is submitted that while releasing the accused on bail the High Court has not at all considered the gravity of the by a detailed judgment and order the learned Special thereafter the accused preferred the bail application before the High Court which was heard by the learned Single Judge the respective parties including the learned counsel appearing on behalf of the accused as the learned Single Judge was not inclined to release the accused on bail the accused withdrew the said bail application and thereafter filed a writ petition before the Division Bench of the High Court under the guise of challenging the vires of the provisions of MCOCA and prayed for interim relief which has been filed by the investigating agency against the the case of M s Neeharika Infrastructure Pvt. Ltd. Vs State of Maharashtra and Others (Criminal Appeal No.330 Court has virtually acquitted the accused for the offences under the MCOCA and that too at the interim stage. It is aside the approval sanction given by the appropriate authority invoking the MCOCA which is inopportune and 6. Making the above submissions it is prayed to allow the 7. The present appeal is opposed by Shri Siddhartha Dave learned Senior Advocate appearing on behalf of the 7.1 It is submitted that in the facts and circumstances of the High Court has rightly held that the sanction to prosecute have passed and there are no allegations that the accused it is requested not to cancel the bail granted by the High Court in exercise of powers under Article 136 of the 8. We have heard the learned counsel appearing on behalf of 9. At the outset it is required to be noted that the allegations i.e. offences under Sections 384 386 387 read with Section 34 of the IPC. On considering the material on record the investigating agency has invoked the provisions of the MCOCA. After investigation a charge sheet has been filed under the MCOCA. By the impugned order the Division Bench of the High Court has released the accused on bail this Court in the catena of decisions the Division Bench ought not to have released the accused on bail by way of interim relief [see the decision of this Court in the case of M s Neeharika Infrastructure Pvt. Ltd. Vs. State of 9.1 It is required to be noted that while releasing the accused on at all considered the seriousness of the offences alleged that the respondent accused is running the Matka business is providing funds to the Chhota Shakil and his of organized crime syndicate. By the impugned order the High Court has observed that the sanction to invoke the provisions of the MCOCA is bad in law as there is no MCOCA was not warranted. Virtually the High Court has interim stage exonerating the respondent from MCOCA 9.2 It is required to be noted that by the detailed judgment and writ petition before the Division Bench of the High Court under the guise of challenging the vires of MCOCA and Court has released the accused on bail that too by way of interim relief which otherwise the accused could not get before the learned Single Judge and he withdrew the bail High Court releasing the accused on bail deserves to be 10. Now so far as the submissions on behalf of the accused that on bail therefore the impugned order may not be quashed catena of decisions quashing and setting aside the wrong a question of cancellation of bail but it is a question of quashing and setting aside the wrong order passed by the 11. In view of the above and for the reasons stated above the present appeal succeeds. The impugned order dated in Criminal Writ Petition No.4639 of 2018 releasing the respondent accused on bail in connection with Special registered with Kasarvadavli Police is hereby quashed and concerned Court by issuing nonbailable warrant. The |
Doctrine of Part Performance under TPA could be raised only if there is an agreement between the parties: High Court of Delhi | Doctrine of Part Performance as enshrined in Section 53A of the TPA (Transfer of Property Act, 1882) could be raised if there is an agreement between the parties. 53A expressly provides that the transferee should have taken possession of the property or if he being already in possession should continue in possession and the same should be in furtherance of a contract. An Agreement to Sell, not being a registered Deed of Conveyance would not meet the requirement of Sections 54 & 55 of the TPA and the same was upheld by High Court of Delhi through the learned bench led by Justice Asha Menon in the case of SUNIL KUMAR CHATURVEDI (HUF) vs. PIYUSH SAMA & ANR. [CS(OS) 195/2021] on 07.02.2022. The facts of the case are that the suit property had been originally leased by the Delhi Development Authority (DDA) to Mr. Inder Pal Singh Pantle. Subsequently, after receiving permission and approval from the DDA, he sold the property Mr. Joginder Pal Singh. Mr. Joginder Pal Singh, then executed an Agreement to Sell and a General Power of Attorney (GPA) in favour of defendant i.e. Smt. Rita Chaudhary, who is the sister-in-law of the Karta. The defendant permitted the Karta to live in the suit property and he remained in the peaceful possession of the suit property in terms of the internal family understanding. The defendant then executed the Agreement to Sell in the name of the representatives and associates of FTPL and FMCNPL even though she had no marketable title or possession over the suit property. The plaintiff is a Hindu Undivided Family (HUF) and is suing through the ‘Karta’ for declaration of title over the suit property as he claims to be the rightful owner in possession of the said property. The plaintiff’s counsel submitted that the Karta and his family members are still in possession of the entire suit property and therefore, pending the disposal of the suit, their possession be protected. He further submitted that the defendant was closely connected with the FMCNPL as his maternal aunt was a 25% shareholder in it and, all the documents filed by the defendant established the clear nexus. The Agreement to sell executed by defendant was clearly under coercion and no consideration had been passed. Therefore, the Agreement to Sell was invalid and non est and on that basis. The respondent’s counsel submitted that since the suit property was the only dwelling unit available with the Karta, the defendant did not disturb their occupation till they found an alternate accommodation. Thus, only symbolic possession was handed over by defendant to the Karta. According to facts and circumstances, Court disposed of the suit on terms that the plaintiff cannot claim any ownership or title in the suit property u/s 54 & 55 of TPA on the basis of which they could file the instant suit or seek interim protection. The Court observed that, “doctrine of Part Performance as enshrined in Section 53A of the TPA could be raised if had there is an agreement between the parties. An Agreement to Sell, not being a registered Deed of Conveyance would not meet the requirement of Sections 54 & 55 of the TPA.” | CS195 2021 IN THE HIGH COURT OF DELHI AT NEW DELHI % Pronounced on: 07th February 2022 + CS(OS) 195 2021 I.A. Nos.4937 2021& 4939 2021(by the plaintiff under Order XI Rules 12 & 14 read with Section 151 CPC read with Sections 65 66 & 68 of the Indian Evidence Act 1872) & 11758 2021SUNIL KUMAR CHATURVEDI..... Plaintiff Through: Mr. Chetan Lokur & Mr. Jaspal Singh Advs. versus PIYUSH SAMA & ANR. ...... Defendants Through: Ms. Sonali Chopra Adv. for D 1 CORAM: HON BLE MS. JUSTICE ASHA MENON O R D E R I.A. 4937 20211. This application has been filed by the plaintiff under Order XXXIX Rules 1 and 2 read with Section 151 CPC for ad interim ex parte injunction. CS195 2021 2. The plaintiff is a Hindu Undivided Familysuing through the ‘Karta’ Mr. Sunil Kumar Chaturvedifor declaration of title over the suit property namely Flat No.76 C 2C Pocket 2 Janakpuri New Delhi alongwith Barsati on the roof. The plaintiff claims to be the rightful owner in possession of the said property. Consequential reliefs of permanent and mandatory injunctions have been sought against the defendant No.1 to restrain the defendant No.1 from dispossessing the plaintiff from the suit property or alienating or creating any third party rights over it. 3. The facts as set out are that the suit property had been originally leased by the Delhi Development Authorityto one Mr. Inder Pal Singh Pantle on 20th September 1977. Subsequently on 11th July 1986 after receiving permission and approval from the DDA he sold the property to one Mr. Joginder Pal Singh by executing an Agreement to Sell and other relevant documents. Later a Sale Deed was registered on 13th February 1987. Thus all leasehold rights in the suit property were transferred to Mr. Joginder Pal Singh absolutely. On 18th April 1988 Mr. Joginder Pal Singh executed an Agreement to Sell and a General Power of Attorneyin favour of defendant No.2 Smt. Rita Chaudhary who is the sister in law of the Karta. The defendant No.2 permitted the Karta to live in the suit property alongwith his family and thus the Karta has remained in the peaceful possession of the suit property since 1988 in terms of the internal family understanding. 4. It is the case of the plaintiff that on 30th October 1995 defendant No.2 transferred her title and interest in the suit property in his favour by CS195 2021 way of a GPA and Agreement to Sell and other documents and thus w.e.f. that date he became the absolute owner of the suit property. On 13th January 2000 the plaintiff applied to the DDA for conversion of the suit property into freehold but since the requisite conversion charges could not be deposited the conversion did not take place. 5. Mr. Siddharth Chaturvedi a co parcener of the plaintiff being the son of the Karta had some disputes with his employer Fastway Transmission Pvt. Ltd.as there were allegations made by FTPL that Mr. Siddharth Chaturvedi had siphoned of funds collected from Fastway Media Cable Network Pvt. Ltd.a subsidiary of FTPL by receiving payments from cable operators but not depositing the same with FMCNPL. A FIR was also registered against him by FMCNPL on 20th March 2017 being FIR No.65 2017 at Police Station Division No.5 Ludhiana. He was also arrested on 10th September 2017. 6. It is the case of the plaintiff that under the coercion of FTPL and FMCNPL it was compelled to transfer four different properties including the suit property in the name of the representatives and associates of FTPL and FMCNPL and all title documents including those relating to the suit property were taken from the custody of the plaintiff on the pretext of preparing Agreement to Sell etc. However the defendant No.1 insisted that the Agreement to Sell should be executed by the defendant No.2. In these circumstances the defendant No.2 agreed to execute the Agreement to Sell in favour of the defendant No.1 though she had no marketable title or possession over the suit property. She did so only in order to secure the release of the son of the Karta Mr. Siddharth CS195 2021 Chaturvedi. 7. It is the contention of the learned counsel for the plaintiff that in actual fact no consideration had passed for this Agreement to Sell since the defendant No.1 had handed over a cheque of Rs.44 lakhs to defendant No.2 and defendant No.2 transferred the said amount to the plaintiff who in turn transferred the same to FMCNPL. Thus what was paid through cheque on 25th September 2017 was transferred on that very day into the account of FMCNPL. What was supposedly paid by the defendant No.1 had returned to him in other words. Learned counsel submitted that the Karta and his family members are still in possession of the entire suit property and therefore pending the disposal of the suit their possession be protected. 8. Learned counsel for the plaintiff also submitted that the defendant No.1 was closely connected with the FMCNPL as his maternal aunt was a 25% shareholder in it and all the documents filed by the defendant No.1 established the clear nexus between the defendant No.1 and FMCNPL. The bank statements that have been produced by defendant No.1 also disclose specific monetary transactional relationship between defendant No.1 and FMCNPL. It was defendant No.1 who had assisted Mr. Siddharth Chaturvedi to get a job at FMCNPL. The defendant No.1 was in possession of a Mahindra car which was actually owned by FMCNPL. The FMCNPL was being run and operated from a building which was owned by a close family member of defendant No.1. The defendant No.1 has also been receiving regular monetary remuneration from FMCNPL. CS195 2021 9. In the light of all these circumstances according to learned counsel it was clear that the defendant No.1 was linked with FMCNPL at whose instance Mr. Siddharth Chaturvedi had been arrested and hence the Agreement to Sell executed by defendant No.2 was clearly under coercion. Secondly no consideration had passed. Therefore the Agreement to Sell was invalid and non est and on that basis the defendant No.1 could not be permitted to dispossess the Karta and his family members from the suit property during the pendency of the suit. 10. Learned counsel for the plaintiff has also placed reliance on the judgment of the Supreme Court in Suraj Lamp & IndustriesLtd.v. State of Haryana 1 SCC 656 to submit that even the Supreme Court had protected bonafide transfer of immovable property between family members through Agreement to Sell GPA etc. whereas the transaction relied upon by the defendant No.1 was hit by Section 53A of the Transfer of Property Act 1882since the plaintiff having acted upon the Agreement to Sell dated 30th October 1995 and having paid full consideration and having been in possession since that date the plaintiff had a superior claim to the suit property than that set up by the defendant No.1. 11. The defendant No.1 has filed his written statement and reply to the application. Written arguments have also been filed on behalf of defendant No.1. 12. Ms. Sonali Chopra learned counsel for defendant No.1 submitted that defendant No.1 and Mr. Siddharth Chaturvedi were close friends CS195 2021 since 2006. In 2016 upon the arrest of Mr. Siddharth Chaturvedi on account of certain acts committed by him during his employment with FTPL in order to come to a one time full and final settlement with FTPL the Karta approached the defendant No.1 for assistance in arranging funds. Pursuant to those discussions the defendant No.1 purchased the suit property from defendant No.2 for a mutually agreed sum of Rs.44 lakhs. A registered Agreement to Sell and a registered GPA were executed on 25th September 2017 and the leasehold rights in respect of the suit property were voluntarily sold by defendant No.2 to defendant No.1 for the said sum. A cheque bearing No.536526 dated 22nd September 2017 was also handed over to defendant No.2 who encashed the same on 27th September 2017. 13. According to Ms. Chopra since the suit property was the only dwelling unit available with the Karta the defendant No.1 did not disturb their occupation till they found an alternate accommodation. Thus only symbolic possession was handed over by defendant No.2 to the defendant No.1. It is claimed that defendant No.1 was to be paid a sum of Rs.20 000 per month towards use and occupation charges by the Karta. Towards this end six cheques for Rs.20 000 each were handed over to the defendant No.1. However when three of these cheques were presented they were dishonored. However no legal action was taken as the son of the Karta pleaded financial crunch. 14. The learned counsel for defendant No.1 submitted that the plaintiff was relying on unregistered and unstamped documents. Therefore there was no valid transfer of rights in the immovable property. Section 54 of CS195 2021 the TPA provides that sale of immovable property can be only through a registered instrument. Even the Supreme Court in Suraj Lamp & IndustriesLtd.affirmed this position in law that an Agreement to Sell not being a registered Deed of Conveyance would not meet the requirement of Sections 54 & 55 of the TPA. Thus the plaintiff could not claim any ownership or title in the suit property on the basis of which they could file the instant suit or seek interim protection. 15. In respect of the argument of learned counsel for the plaintiff that the plaintiff was protected under Section 53A of the TPA the learned counsel for the defendant No.1 submittedthat such a protection did not endow the transferee with any rights of ownership which remained with the full owner till it was legally conveyed by a registered Sale Deed in favour of the transferee. Since the defendant No.2 had not executed such a registered Sale Deed or any other instrument in favour of the plaintiff the mere continued possession cannot be accepted as a reflection of its ownership as the ownership continued to remain with the defendant No.2. In any case according to the learned counsel for the defendant No. 1 the doctrine of Part Performance as enshrined in Section 53A of the TPA could be raised by the plaintiff only against the defendant No.2 had there been an agreement between the two but was not relevant to determine the rights of the defendant No.1 in respect of the suit property as there was no privity of contract between them. 16. Learned counsel for defendant No.1 further submitted that the plaintiff had failed to disclose precisely the manner of the alleged fraud CS195 2021 that was committed as bald assertions and allegations were insufficient. Reliance has been placed on the decision of this Court in Mukesh Hans v. Uma Bhasin 2010 SCC OnLine Del 2776. It is also submitted that there was not one averment either in the plaint or in the application which satisfied the definition of ‘coercion’ under Section 15 of the Indian Contract Act 1872 or of ‘fraud’ as defined in Section 17 of the said Act. No circumstances have been set out in the plaint. No dates or time have been revealed. No other particulars have been disclosed on the basis of which the court could conclude that there was either fraud coercion or undue influence or all of them at the time when the Agreement to Sell was executed in favour of the defendant No.1 on 25th September 2017. Thus vague and frivolous pleas have been taken in an effort to defeat the rights of the defendant No.1. 17. It was submitted that admittedly the sale consideration of Rs.44 lakhs had actually been paid by defendant No.1 to defendant No.2. Thus through registered documents for consideration the suit property had been transferred to the defendant No.1. The plaintiff had transferred the money to FMCNPL only in terms of the one time full and final settlement entered between the Karta and FTPL. The defendant No.1 had no connection with FTPL but was only an employee of FMCNPL in which his maternal aunt was a 25% shareholder. Moreover the defendant No.2 had not challenged any of these registered documents executed by her in favour of defendant No.1. The GPA executed was an irrevocable registered Power of Attorney for valuable consideration and the Karta had participated in the execution and registration of these title documents CS195 2021 executed by defendant No.2 in favour of defendant No.1 signing the same as a witness. 18. Thus the plaintiff had neither disclosed a prima facie case nor would irreparable injury and damage be caused to him. The balance of convenience was also not in his favour and thus it was not entitled to any interim injunction. Hence it was prayed that the application be dismissed. 19. Though none had appeared on behalf of defendant No.2 to argue the matter in the written statement filed by defendant No. 2 she has materially supported the case of the plaintiff by stating that she was also a victim of the coercive action initiated by the defendant No.1. She has stated that she had transferred the suit property to the plaintiff way back on 30th October 1995 vide the Agreement to sell GPA etc. and that she treated the son of the Karta Mr. Siddhant Chaturvedi like her own son. Therefore when the defendant No.1 forced the Karta to transfer the suit property to him at the same time not wanting to show any link in the transaction out of filial love and on account of the pressure and coercion fraud and undue influence and extortion exerted upon her by defendant No.1 she agreed to execute the documents in his favour on 25th September 2017. The sale consideration of Rs.44 lakhs was as per the circle rate and whatever money was received by defendant No.2 on 29th September 2017 was returned to defendant No.1 as per his instructions. Thus it is clear that the defendant No.2 has also taken the stand that the consideration had been returned. 20. I have heard the submissions of learned counsel for the parties and CS195 2021 have also considered the material available on record. It is apparent from the pleadings that the material facts are not in dispute namely that there was an earlier transaction dated 30th October 1995 between the defendant No.2 and the plaintiff and that the plaintiff has been in possession since before then that Mr. Siddharth Chaturvedi was involved in a criminal case filed by FMCNPL of which the defendant No.1 is an employee and that in order to facilitate a one time settlement a transaction dated 25th September 2017 was facilitated in respect of the suit property which is now the bone of contention. 21. Both sides have relied on the decision of the Supreme Court in Suraj Lamp & IndustriesLtd.one claiming that such transactions between family members were to be recognized as argued on behalf of the plaintiff while the other submitting that without registration the prior documents could not have transferred any right in the immovable property to the plaintiff. 22. However the transaction between defendant No.2 and defendant No.1 has been questioned by the plaintiff firstly on a lack of title with the defendant No.2 to have transferred the suit property to defendant No.1 and secondly the absence of consideration. The routing of the sum of Rs.44 lakhs will need to be considered as to whether it went to defendant No.1 or went towards the final settlement of the matter with FMCNPL as it is not disputed by the defendant No.1 that the Karta had actually paid that sum of money to FMCNPL. It needs to be also determined on evidence as to the circumstances in which this transaction was effected in view of the fact that evidence in respect of the bail proceedings etc. CS195 2021 will be relevant to come to any conclusion. 23. To that extent the plaintiff has disclosed a prima facie case. The balance of convenience lies in favour of the plaintiff inasmuch as since the year 1988 the Karta and his family have been in a possession of the suit property and have continued to remain in possession thereof after the execution of documents by defendant No.2 in favour of the plaintiff on 30th October 1995. 24. Admittedly even after the execution of the documents in favour of the defendant No.1 on 25th September 2017 the Karta and his family members have continued to be in possession till date. Clearly irreparable loss and injury would be caused to the plaintiff if at the end of the trial it were to succeed in the suit but in the absence of an interim injunction it stood dispossessed or third party interests created in the suit property. 25. Thus in view of the observations made hereinabove the application is allowed. The defendant No.1 is restrained from interfering with the peaceful possession of the plaintiff and its members in the suit property namely Flat No.76 C 2C Pocket 2 Janakpuri New Delhi. The defendant No.1 is also restrained from creating any third party rights title or interests in the said suit property. 26. Nothing contained in this order shall be a reflection on the merits of the case. 27. The application stands disposed of. CS195 2021 CS(OS) 195 2021 I.A. Nos. 4939 2021& 11758 202128. List before the Joint Registrar on 12th April 2022 for completion of pleadings in the suit as well as in the applications and admission denial of documents. 29. The order be uploaded on the website forthwith. JUDGE FEBRUARY 07 2022 ck |
Contempt petition filed under section 11 of Contempt of Courts Act, 1971 barred – Madras high court | Contempt petition filed under section 11 of Contempt of Courts Act, 1971 barred – Madras high court The petitioners filed a contempt petition praying to initiate contempt proceedings against contemnors 1 and 2 and to punish them for deliberately misleading the Court to pass the orders in W.P.(MD)No.8037 of 2020. The petitioner was heard and closed by a single judge bench of THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN in the case of Mahasemam Trust versus Rohit Karanth Sawhney and Anr. ( Cont. P(MD)No.442 of 2021 in W.P(MD)No.8037 of 2020) The petitioner filed W.P.(MD)No.8037 of 2020 challenging and downgrading of their rating by India Rating and Research Private Limited and the court dismissed the petition as non -maintainable and it was made clear that the petitioner has the liberty to avail in-house remedy available or move to Securities and Exchange Board of India (SEBI) directly by filing a complaint against the Rating Agency. The petitioner questioned this order by filing S.L.P. No.15116 of 2020 and the same was dismissed the supreme court also made it clear that the petitioner may seek the remedy as stated by the high court. The petitioner then filed a complaint against the Rating Agency before SEBI and the SEBI took the stand that the petition is not maintainable and the petitioner will have to move to the Reserve Bank of India according to petitioner the reserve bank of India issued circulars have been violated. The petitioner unsatisfied with the decision files the present petition before the court. The court rejected the SEBI stand on that they do not have jurisdiction on the matter and the court directed to pass an order on merits and made it clear that the issue of maintainability shall not be reopened. The learned counsel appearing on behalf of the petitioners submits that the petitioner faulted the conduct of the authority and submitted that even though this Court in its earlier order had specifically foreclosed the issue of maintainability, the official had chosen to seek clarification once again from the Reserve Bank of India and placed reliance on the case of (2017) 5 SCC 517 (National Securities Depositor Limited Vs. Securities and Exchange Board of India) and submits that the SEBI has dismissed the application without going in the merits of the case. The court after hearing all the arguments find that the said submissions are not satisfactory and as pointed by the learned counsel that the SEBI has passed the order only on the matters of the case and the official not referred to the reserve bank of India still a careful reading indicates that the RBI has not dictated in the matter and the order has been given with independent application of mind and if the petitioner is dissatisfied with the decision the remedies available under the law can be used and the court closes the contempt petition. | Cont. P(MD)No.4421BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 14.06.2021CORAM:THE HONOURABLE MR.JUSTICE G.R.SWAMINATHANCont. P(MD)No.4421inW.P(MD)No.80320Mahasemam Trust A Public Trust Rep. by its Trustee Dr.Prabu Vairavan Prakasam Having its registered office at 519 16th Street Karpaga Nagar K.Pudur Madurai 625 007. ... PetitionerVs.1.Rohit Karanth Sawhney S o.Vinod Prakash Sawhney Managing Director & Chief Executive Officer India Rating & Research Pvt. Ltd. Having Office at Wokhardt Towers 4th Floor West Wing Bhandra East Mumbai 400 051.2.Rohan Shukla Assistant Manager Division of Policy & InspectionMarket Intermediaries Regulation & Supervision Dept.Securities and Exchange Board of India 1 6 https: www.mhc.tn.gov.in judis Cont. P(MD)No.4421 SEBI Bhavan Plot No.C4 A G Block Bandra Kurla Complex BandraMumbai 400 051. ... RespondentPrayer: Contempt Petition filed under Section 11 of the Contempt of Courts Act 1971 to initiate suo motu contempt proceedings against the contemnors 1 and 2 and punish them for willfully and deliberately misleading the Court in passing the orders in W.P.(MD)No.80320 dated 12.10.2020.For Petitioner : Mr.K.Subramanian Senior CounselFor Respondents : Mr.Aravind P.Datar Senior Counsel for Mr.V.M.Sivakumar Standing Counsel for SEBIO R D E RHeard the learned Senior Counsel on either side.2.The petitioner herein filed W.P.(MD)No.80320 challenging the downgrading of their rating by India Rating and Research Private Limited. By order dated 12.10.2020 the writ petition was dismissed as not maintainable. However it was made clear that the 2 6 https: www.mhc.tn.gov.in judis Cont. P(MD)No.4421writ petitioner was at liberty to avail the in house remedy available to them or move Securities and Exchange Board of Indiadirectly by filing a complaint against the Rating Agency. It was further observed that whatever remedy that the petitioner may avail the same shall be attended to with utmost expedition. Questioning this order the petitioner herein moved the Hon ble Supreme Court by filing S.L.P. No.151120. Vide order dated 18.12.2020 the Hon ble Apex Court dismissed the SLP and made it clear that the petitioner may seek his remedy as observed by the High Court in Paragraph No.18 of the Judgment. 3.Thereupon the petitioner filed a complaint against the Rating Agency before SEBI. SEBI took the stand that the complaint is not maintainable before them and that the petitioner will have to move the Reserve Bank of India as according to the petitioner the circulars issued by the Reserve Bank of India have been violated. Not satisfied with the stand taken by SEBI the present contempt petition came to be filed before me.3 6 https: www.mhc.tn.gov.in judis Cont. P(MD)No.44214.Vide order dated 29.04.2021 I rejected the stand of SEBI that they do not have jurisdiction in the matter. I directed them to pass an order on merits. I made it clear that the issue of maintainability shall not be reopened. The contempt petition has been posted for compliance today. The official who had disposed of the complaint vide order dated 04.06.2021 is present before this Court through video conference mode. 5.The learned Senior Counsel appearing for SEBI informed the Court that the order passed by this Court has been complied with.6.The learned Senior Counsel appearing for the petitioner faulted the conduct of the authority who passed the order dated 04.06.2021. He submitted that even though this Court in its earlier order had specifically foreclosed the issue of maintainability the official had chosen to once again seek clarification from the Reserve Bank of India. The learned Senior Counsel placed reliance on the decision of the Hon ble Apex Court reported in5 SCC 517for the proposition that the proceedings are quasi judicial in character and that 4 6 https: www.mhc.tn.gov.in judis Cont. P(MD)No.4421therefore the authority will have to independently decide the issue and could not have been dictated by any other authority or agency or institution. He pointedly contended that SEBI has not at all gone into the merits of the complaint. 7.I am not satisfied with the said submission. As rightly pointed out by the learned Senior Counsel appearing for SEBI the order dated 04.06.2021 has been passed only on the merits of the matter. Even though the official need not have referred to the Reserve Bank of India still a careful reading of the order indicates that they have not been dictated to by the Reserve Bank of India. The order has been passed after an independent application of mind. If the petitioner is aggrieved by the same it is open to the petitioner to avail the remedies open to them under law. I consciously refrain from entering into the merits of the matter. By passing the order dated 04.06.2021 I am satisfied that the direction issued by this Court has been complied with in letter and spirit. 5 6 https: www.mhc.tn.gov.in judis Cont. P(MD)No.4421 G.R.SWAMINATHAN J.rmi8. The contempt petition stands closed. 14.06.2021Index: Yes NoInternet: Yes NormiNOTE: In view of the present lock down owing to COVID 19 pandemic a web copy of the order may be utilized for official purposes but ensuring that the copy of the order that is presented is the correct copy shall be the responsibility of the advocate litigant concerned.. Cont. P(MD)No.4421inW.P(MD)No.8032014.06.20216 6 |
A shared household is a household belonging to a husband’s relative where the wife has lived in a domestic relationship: High Court of Delhi | A shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The respondent in a proceeding under Domestic Violence Act can be any relative of the husband. In event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household. There is no such requirement that the house may be owned singly or jointly by the husband or taken on rent by the husband and the same was upheld by High Court of Delhi through the learned bench led by Justice Yogesh Khanna in the case of RAVNEET KAUR vs. PRITHPAL SINGH DHINGRA [RFA 832/2018] on 24.02.2022. The facts of the case are that the respondent claims to be an absolute and sole owner of the property vide a registered sale deed. He filed a suit for eviction against the defendant viz. his daughter-in-law. A decree of possession with damages equivalent to the market rent of the alleged illegal possession was passed against the appellant and also a decree of permanent injunction to restrain her from creating any third party right in such property. It is the case of the appellant she being a legally wedded wife of respondent’s son has been residing with her two minor daughters in the property. This appeal is filed for setting aside the impugned judgment that the property was a self-acquired property of the respondent. The appellant’s counsel submitted that the said property was purchased out of joint family funds and from sale proceeds of the ancestral property and after the death of S. Kesar Singh the subject property was purchased by the respondent from such ancestral funds, hence the suit property is a joint family property in which the appellant has also a right to reside. In view of the facts and circumstances, the Court held that it would be appropriate if an alternative accommodation is provided to the appellant as per Section 19(1)(f) of the Protection of Women from Domestic Violence Act. The Court observed, “The respondent in a proceeding under Domestic Violence Act can be any relative of the husband. In event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household. There is no such requirement that the house may be owned singly or jointly by the husband or taken on rent by the husband.” | IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 18th February 2022 Decided on : 24th February 2022 RFA 832 2018 & CM APPLN No.54495 2019 RAVNEET KAUR Through : Mr.Sahilendra ..... Appellant Ms.Aroma S Bhardwaj Advocates. PRITHPAL SINGH DHINGRA ..... Respondent Through : Mr.Rajat Wadhwa Mr.Aman Luthra Kapoor Mr.Aditya Varun Advocates. HON BLE MR. JUSTICE YOGESH KHANNA YOGESH KHANNA J. This appeal is filed for setting aside the impugned judgment and decree dated 10.07.2018 passed in Civil Suit No.613347 2016 by Additional District Judge 04 Tis Hazari Courts Delhi died in the year 1977 but her husband was born in the year 1976 and hence he became a coparcener of the said HUF created by his grandfather. The said application was however dismissed by the learned Trial Court. Admittedly no appeal was filed against such order. Thus the main plea of the appellant was S. Kesar Singh had purchased the New Friends Colony property out of joint family funds and from sale proceeds of the ancestral property and after the death of S. Kesar Singh the subject property was purchased by the respondent from such ancestral funds hence the suit property is a joint family property in which the appellant has also a right to reside. After hearing the parties the impugned order was passed whereby a decree of possession was awarded to the respondent. It was held the property was a self acquired property of the respondent and the appellant was residing in the property as his daughter in law and after termination of the license she has no right to stay therein thus the impugned order. The learned counsel for the appellant primarily relied upon Satish Chander Ahuja vs. Sneha Ahuja AIR 2020 SC 5397 wherein the following questions were raised: ―(1) Whether definition of shared household under Section 2(s) of the Protection of Women from Domestic Violence Act 2005 has to be read to mean that shared household can only be that household which is household of joint family or in which husband of the aggrieved person has a share 2) Whether judgment of this Court in S.R. Batra and Anr. Vs. Taruna Batra 3 SCC 169 has not correctly interpreted the provision of Section 2(s) of Protection of Women from Domestic Violence Act 2005 and does not lay down a correct law 3) Whether the High Court has rightly come to the conclusion that suit filed by the appellant could not have been decreed under Order XII Rule 6 CPC RFA No.832 2018 4) Whether when the defendant in her written statement pleaded that suit property is her shared household and she has right to residence therein the Trial Court could have decreed the suit of the plaintiff without deciding such claim of defendant which was permissible to be decided as per Section 26 of the Act 2005 5) Whether the plaintiff in the suit giving rise to this appeal can be said to be the respondent as per definition of Section 2(q) of Act 2005 6) What is the meaning and extent of the expression ―save in accordance with the procedure established by law‖ as occurring in Section 17(2) of Act 2005 ‖ These questions were answered as follows: ―64. In paragraph 29 of the judgment this Court in S.R. Batra Vs. Taruna Batraheld that wife is only entitled to claim a right to residence in a shared household and a shared household would only mean the house belonging to or taken on rent by the husband or the house which belongs to the joint family of which the husband is a member. The definition of shared household as noticed in Section 2(s) does not indicate that a shared household shall be one which belongs to or taken on rent by the husband. We have noticed the definition of “respondent” under the Act. The respondent in a proceeding under Domestic Violence Act can be any relative of the husband. In event the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household. We are of the view that this court in S.R. Batra Vs. Taruna Batraalthough noticed the definition of shared household as given in Section 2(s) but did not advert to different parts of the definition which makes it clear that for a shared household there is no such requirement that the house may be owned singly or jointly by the husband or taken on rent by the husband. The observation of this Court in S.R. Batra vs. Taruna Batra that definition of shared household in Section 2(s) is not very happily worded and it has to be interpreted which is sensible and does not lead to chaos in the society also does not commend us. The definition of shared household is clear and exhaustive definition as observed by us. The object and purpose of the Act was to grant a right to aggrieved person a woman of residence in shared household. The interpretation which is put by this Court in S.R. Batra Vs. Taruna Batra if accepted shall clearly frustrate the object and purpose of the Act. We thus are of the opinion that the interpretation of definition of shared household as put by this Court in S.R. Batra Vs. Taruna Batrais not correct interpretation and the said judgment does not lay down the correct law. 86. The question which is posed for the consideration is whether the learned Trial Court was justified in passing the decree on alleged admission under Order XII Rule 6 of the CPC or not. What is required to RFA No.832 2018 be considered is what constitutes the admission warranting the judgment on admission in exercise of powers under Order XII Rule 6 CPC. This Court had occasion to consider above in decisions Himani Alloys Limited Vs. Tata Steel Limited 15 SCC 273 and S.M. Asif Vs. Virender Kumar Bajaj 9 SCC 287. 96. In view of the ratio laid down by this court in the above case the claim of the defendant that suit property is shared household and she has right to reside in the house ought to have been considered by the Trial Court and non consideration of the claim defence is nothing but defeating the right which is protected by Act 2005. 98. The power under Order XII Rule 6 is discretionary and cannot be claimed as a matter of right. In the facts of the present case the Trial Court ought not to have given judgment under Order XII Rule 6 on the admission of the defendant as contained in her application filed under Section 12 of the D.V. Act. Thus there are more than one reason for not approving the course of action adopted by Trial Court in passing the judgment under Order XII Rule 6. We thus concur with the view of the High Court that the judgment and decree of the Trial Court given under Order XII rule 6 is unsustainable. 118. Learned counsel for the appellant challenging the direction issued by the High Court that the husband of respondent be impleaded by the Trial Court by invoking suo moto powers under Order I Rule 10 CPC submits that no relief having been claimed against the son of the appellant he son) was neither necessary nor proper party. Learned counsel for the appellant has relied on the judgments of this Court in Razia Begum Vs. Sahebzadi Anwar Begum and others AIR 1958 SC 886 and Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and others 2 SCC 524. 121. The above direction is a little wide and preemptory. In event the High Court was satisfied that impleadment of husband of defendant was necessary the High Court itself could have invoked the power under Order I Rule 10 and directed for such impleadment. When the matter is remanded back to the Trial Court Trial Court’s discretion ought not to have been fettered by issuing such a general direction as noted above. The general direction issued in paragraph 56(i) is capable of being misinterpreted. Whether the husband of an aggrieved person in a particular case needs to be added as plaintiff or defendant in the suit is a matter which need to be considered by the Court taking into consideration all aspects of the matter. 157. From the above discussions we arrive at following conclusions: i) The pendency of proceedings under Act 2005 or any order interim or final passed under D.V. Act under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings which relate to the subject matter of order in terim or final passed in proceedings under D.V. Act 2005. ii) The judgment or order of criminal court granting an interim or final RFA No.832 2018 relief under Section 19 of D.V. Act 2005 are relevant within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court. iii) A civil court is to determine the issues in civil proceedings on the basis of evidence which has been led by the parties before the civil court. iv) In the facts of the present case suit filed in civil court for mandatory and permanent injunction was fully maintainable and the issues raised by the appellant as well as by the defendant claiming a right under Section 19 were to be addressed and decided on the basis of evidence which is led by the par ties in the suit.‖ 11. Further in Sneh Ahuja vs. Satish Chander Ahuja and Ors. MANU DE 3061 2021 the Coordinate Bench of this Court held as follows: ―24. The Supreme Court had considered the right of residence under the DV Act which includes the right of alternate residence and held that the right of residence would depend on evidence being led on there being a shared household and domestic violence which were to be pleaded and proved by way of evidence. The right to residence is closely connected to the aspect of shared household and it is where situations were such that made it impossible for continued residence in a shared household that the question of alternate residence would arise. The right to seek alternate residence thus flows from the right to a residence. Technically it is the aggrieved person who can file an application including under Section 19(1)(f) of the DV Act. However this Court had in the judgment dated 18th December 2019 permitted the husband and in laws to move an application under Section 19(1)(f) of the DV Act even before the Civil Court where their suit was pending. 37. In the present case the learned Trial Court seems to have been particularly keen to pass an eviction order against the petitioner without proper application of mind to all the circumstances that could justify such an order of eviction. 38. In light of the special circumstances in the present case that:since marriage the petitioner has been in occupation of the first floor the premises in her occupation was separate from the premises in occupation of the respondents the subsistence of an injunction order in this very suit restraining the petitioner from disturbing the possession of the respondents of the ground floor the fact that this order has not been violated by the petitioner the petitioner being pushed to file Execution Petitions to obtain the maintenance awarded to her the application moved by the petitioner for payment of the electricity charges in respect of the first floor of the premises where the petitioner is residing and the claim of the respondent No.2 that he did not have the means to do so the uncertainty in these circumstances of the respondents meeting their obligation of paying rent regularly and finally the prevailing RFA No.832 2018 circumstances of the pandemic when such an order was passed all reflect the perversity and unreasonableness of the impugned order. The directions issued to the petitioner to shift out to a rented accommodation were most unwarranted.‖ 12. Heard. 13. Admittedly the suit for possession was filed by the respondent in August 2016 on grounds he being an absolute owner of the property having terminated the license of appellant the husband of appellant having shifted to some other place various litigations being pending between the parties the respondent had cancelled such license and was not inclined to live with his daughter in law. The suit was decreed under Order XII Rule 6 CPC. 14. The case of the respondent is the New Friends Colony’s land was allotted in the year 1973 by the DDA to S. Kesar Singh who later died on 17.10.1977 and both these events happened after passing of the Hindu Succession Act 1956. He stated all the legal heirs of the New Friends Colony property thereafter relinquished their shares in favour of the respondent and his brother Surender Singh. The respondent then sold his share in New Friends Colony’s property and purchased the subject property and this is his self acquired property. 15. Admittedly the husband of the appellant is not residing in the subject property since 2016 and the respondent had also undertaken he would provide an alternate property of same status to the appellant herein and hence in these circumstances if she can insist to stay in the subject property when her old parents in law intend to live a peaceful life is to be answered. The first question is if it is an ancestral property RFA No.832 2018 In Arshnoor Singh vs. Harpal Kaur and Ors. AIR 2019 SC 3098 the Court held as under: ―6. The issues that arise for consideration before us are two fold: i) whether the suit property was coparcenary property or self acquired property of Dharam Singh the validity of the Sale Deeds executed on 01.09.1999 by Dharam Singh in favour of Respondent No. 1 and the subsequent Sale Deed dated 30.10.2007 executed by Respondent No. 1 in favour of Respondent Nos. 2 & 3. 7. With respect to the first issue it is the admitted position that Inder Singh had inherited the entire suit property from his father Lal Singh upon his death. As per the Mutation Entry dated 16.01.1956 produced by Respondent No. 1 Lal Singh’s death took place in 1951. Therefore the succession in this case opened in 1951 prior to the commencement of the Hindu Succession Act 1956 when Inder Singh succeeded to his father Lal’s Singh’s property in accordance with the old Hindu Mitakshara law. 7.1. xxxxx 7.3. Under Mitakshara law whenever a male ancestor inherits any property from any of his paternal ancestors upto three degrees above him then his male legal heirs upto three degrees below him would get an equal right as coparceners in that property. 7.5. After the Hindu Succession Act 1956 came into force this position has undergone a change. Post 1956 if a person inherits a self acquired property from his paternal ancestors the said property becomes his self acquired property and does not remain coparcenary property. 7.6. If succession opened under the old Hindu law i.e. prior to the commencement of the Hindu Succession Act 1956 the parties would be governed by Mitakshara law. The property inherited by a male Hindu from his paternal male ancestor shall be coparcenary property in his hands vis à vis his male descendants upto three degrees below him. The nature of property will remain as coparcenary property even after the commencement of the Hindu Succession Act 1956.‖ 17. Where S. Kesar Singh admittedly died in 1977 the succession opened after the commencement of 1956 Act hence there is no basis to say the subject property was an ancestral property or there existed HUF. 18. The subject property even otherwise is admitted by the respondent to be shared household hence per para 90 of the Satish Chander the Court was expected to maintain a balance between the rights of the parties. Satish Chander Ahujarather noted: RFA No.832 2018 ―16. The High Court opined that the Trial Court erroneously proceeded to pass decree under Order XII Rule 6 CPC by not impleading the husband and failing to appreciate the specific submission of the appellant while admitting the title of the respondent that the suit premises was the joint family property but also losing the site of the DV Act. The directions given by the High Court are contained in the paragraph 56 to the following ―56. In these circumstances the impugned judgments cannot be sustained and are accordingly set aside. The matters are remanded back to the Trial Court for fresh adjudication in accordance with the directions given herein below: i)At the first instance in all cases where the respondent’s son the appellant’s husband has not been impleaded the Trial Court shall direct his impleadment by invoking its suo motu powers under Order I Rule 10 ii) The Trial Court will then consider whether the appellant had made any unambiguous admission about the respondent’s ownership rights in respect of the suit premises if she has and her only defence to being dispossessed there from is her right of residence under the DV Act then the Trial Court shall before passing a decree of possession on the wife premise of ownership rights ensure that in view of the subsisting rights of the appellant under the DV Act she is provided with an alternate accommodation as per Section 19(1)(f) of the DV Act which will continue to be provided to her till the subsistence of her matrimonial iii) In cases where the appellant specifically disputes the exclusive suit premises notwithstanding the title documents in their favour the Trial Court while granting her an opportunity to lead evidence in support of her claim will be entitled to pass interim orders on applications moved by the respondents directing the appellant to vacate the suit premises subject to the provision of a suitable alternate accommodation to her under Section 19(1)(f) of the DV Act which direction would also be subject to the final outcome of the suit. iv) While determining as to whether the appellant’s husband or the in laws bears the responsibility of providing such alternate accommodation to the appellant if any the Trial Court may be guided by paragraph 46 of the decision in Vinay VermaThe Trial Court shall ensure that adequate safeguards are put in place to ensure that the direction for alternate accommodation is not rendered meaningless and that a shelter is duly secured for the appellant during the subsistence of her matrimonial relationship. vi) This exercise of directing the appellant to vacate the suit premises by granting her alternate accommodation will be completed expeditiously and not later than 6 months from today. respondents over rights of RFA No.832 2018 90. Before we close out discussion on Section 2(s) we need to observe that the right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter in law is pitted against aged father in law and mother in law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter in law. While granting relief both in application under Section 12 of the 2005 Act or in any civil proceedings the Court has to balance the rights of both the parties. The directions issued by the High Court in para 56 adequately balance the rights of both the parties.‖ 19. Further in Madalsa Sood vs Maunicks Makkar & Another CS(OS)93 2021 per order dated 10.12.2021 the Co ordinate Bench of this Court while dealing with such application under Order XII Rule 6 CPC in similar circumstances held as under: ―12. However the mere fact that the title of the plaintiff has not been shaken by the defence of the defendants will not suffice to grant her a decree as the defendant No.1 has raised the plea that the suit premises constituted her shared household which needs to be looked into. There is no dispute that the defendant No.1 had come into the suit premises after her marriage on 27th August 2014 with the son of the plaintiff as repeatedly noticed hereinabove. In fact the plaintiff herself does not dispute the fact that the suit premises formed the shared household. Of course this is not a case unlike Satish Chander Ahujawhere the son of the plaintiff and his wife were having a marital discord. Unfortunately in the present case the defendant No.1 has lost her husband. Nevertheless the plaintiff has admitted that the premises formed the shared household of the defendant No.1. Thus no further evidence or proof may be required to establish this fact. 15. Nor does the right of residence allowed to aggrieved person extend to her insisting on the right of residence in a particular premises. Section 19 of the DV Act provides for an alternate accommodation being given to the aggrieved person of the same level in certain circumstances. In fact even in Satish Chander Ahujarelied upon by the learned counsel for the defendants the judgment of a Division Bench of this Court in Eveneet Singh Vs. Prashant Chaudhari 2011 SCC OnLine Del 4651 in para 14 was quoted with approval as under: ―14. It is apparent that clause of sub section of Section 19 of the Act is intended to strike a balance between the rights of a daughter in law and her in laws if a claim to a shared residence by the daughter in law pertains to a building in which the matrimonial home was set up belongs to her mother in law or father in law.‖ RFA No.832 2018 16. The Supreme Court in para 90 of its judgment in Satish Chander Ahujafurther observed as under: ―90. Before we close out discussion on Section 2(s) we need to observe that the right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter in law is pitted against aged father in law and mother in law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter in law. While granting relief both in application under Section 12 of the 2005 Act or in any civil proceedings the Court has to balance the rights of both the parties. The directions issued by the High Court in para 56 adequately balance the rights of both the parties.‖ 17. Thus it is clear that even where a residence is clearly a shared household it does not bar the owner the plaintiff herein from claiming eviction against her daughter in law if the circumstances call for it. 19. It now has to be seen whether the plaintiff must be put to the rigours of a trial to determine whether she has made out a case for reclaiming possession of the suit premises or whether the facts as set out in the written statement and the plaint would be sufficient to come to a conclusion. Reference is once again made to the pleadings. A strained or frictional relationship between the parties would be relevant to decide whether grounds for eviction exist. 20. A perusal of the written statement would reveal that the relationship between the parties is far from cordial. xxxxx 22. But is it clear that the defendant No.1 in order to wrest a settlement from the plaintiff has made efforts to pressurise her while staying in her premises. The defendants have admitted in their written statement that the plaintiff has one bedroom in her possession whereas the defendants had two bedrooms in their possession with kitchen drawing and dinning being common portions. By inducting her mother and for a short time her sister the defendant No.1 seems to have made an attempt to assert rights in respect of the suit property clearly causing distress to the plaintiff. The averments in the written statement are sufficient to establish a justification for the plaintiff to seek the eviction of the defendants. There is no need to put the plaintiff to proof of the admitted stand of the defendants as expressed in their joint written statement. The Supreme Court in S. Vanitha Vs. Deputy Commissioner Bengaluru urban District and Others 2020 SCC OnLine SC 1023 held that when faced with competing claims of the parties one constituting a shared household and the other the right of the senior citizen to live peacefully in the twilight of their life appropriate reliefs must be given. In view of the clear facts and circumstances the plaintiff is clearly entitled to seek possession of the suit premises from the two defendants without the rigors of an unnecessary and prolonged trial at her age.‖ 20. Now a bare perusal of record viz. the conveyance deed dated RFA No.832 2018 03.08.2000 of the New Friends Colony’s property being in favour of respondent and Surender Singh the sale deed dated 15.12.2004 executed by the respondent of his share in New Friends Colony’s property and the sale deed dated 27.09.2004 qua the purchase of the subject property viz. the front portion of second floor along with roof terrace right with one bath room on terrace area of the flat admeasuring 1800 square feet approximately comprising of three bed rooms with three attached bath rooms drawing room balcony room lobby and kitchen etc. in favour of the respondent all leads to a conclusion the subject property exclusively belong to the respondent. The appellant on the contrary did not file any document to show the existence of any HUF in the name of S.Kesar Singh and sons or the property viz. New Friends Colony was ever an ancestral property or allegedly purchased from ancestral funds. The documents filed on record by the respondent do show it was a self acquired property of S.Kesar Singh and not an HUF property or an ancestral property. The submissions of the appellant are thus merely assertions without basis and without any prima facie proof. 21. Admittedly the house is a shared household wherein the appellant has been residing after her marriage with the son of the respondent. Though an argument is raised the husband of the appellant has not been made a party to the suit but admittedly the husband is not residing in the premises since prior to the filing of the suit probably because of the acrimonious relations between him and his wife appellant. On record there are various complaints filed by the appellant against her in laws including the Non Cognizable Reportsamongst the parties. Many of them are placed on record and goes on to show the relations between the parties are far from RFA No.832 2018 cordial. Even on record there is a complaint made by her husband namely Guneet Dhingra who lives in a rental accommodation against his wife the appellant herein. 22. Moreso the son of the respondent has not claimed any right in the subject property. Thus where shared household is admitted by the respondent there was no need for the learned Trial Court to implead the husband of the appellant. 23. Admittedly in Sneha Ahujathe premises in occupation of the wife was separate from the premises in occupation of the respondents but whereas in the present case the parties are residing in the same premises. 24. Admittedly where the parties are residing is a flat having only three bed rooms a drawing room and the appellant is in possession of a room in the said flat then considering there are various complaints filed by them against each other their relations being not cordial would it in such circumstances be appropriate for them to stay together and fight every minute of their existence. In Satish Chander Ahujain para No.90 the Court had observed we need to strike a balance between the rights of daughter in law and her in laws. 25. Admittedly the right of residence under Section 19 of the DV Act is not an indefeasible right of residence in shared household especially when the daughter in law is pitted against aged father in law and mother in law. In this case both being senior citizens of aged about 74 and 69 years and being in the evening of their life are entitled to live peacefully and not to be haunted by the marital discord between their son and daughter in law. RFA No.832 2018 The decision in S. Vanitha vs. Deputy Commissioner Bengaluru Urban District and Others 2020 SCC OnLine SC 1023 is also a judgment in this context which too talk of balancing of rights. 27. Thus where the residence is a shared household it does not create any embargo upon the owner to claim eviction against his daughter in law. A strained frictional relationship between the parties would be relevant to decide whether the grounds of eviction exist. I am of the considered opinion since there exist a frictional relationship between the parties then at the fag end of their lives it would not be advisable for old parents to stay with appellant and hence it would be appropriate if an alternative accommodation is provided to the appellant as is directed in the impugned order per Section 19(1)(f) of the Protection of Women from Domestic Violence Act which read as under: ―19. Residence orders.—(1) While disposing of an application under sub sectionof section 12 the Magistrate may on being satisfied that domestic violence has taken place pass a residence order— the respondent to secure same f) directing level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same if the circumstances so require: Provided that no order under clause shall be passed against any person who is a woman.‖ 28. Thus there is no force in the appeal and accordingly it is dismissed. The undertaking made at Bar to provide an alternative accommodation to the appellant till her matrimony exists be filed in the form of an affidavit of the respondent within two weeks from today before the learned Trial Court. The execution of decree be postponed till such suitable alternative accommodation is found and the applicant is conveniently shifted therein. RFA No.832 2018 The learned Trial Court to impose conditions in case of non payment of rental including electricity water charges etc by respondent. 29. Nothing opined herein above shall be treated as an observation on the merits of the litigation pending. 30. The pending application if any also stands disposed of. FEBRUARY 24 2022 YOGESH KHANNA J. RFA No.832 2018 |
Lakhwinder Singh Vs. Union of India & Ors. | The active service of an officer during War and Battle Awards and Honours earned during such action, is one of the several factors to be taken into consideration by the Special Selection Board in recommending promotion. That the Petitioner has actively fought various combats and participated in various operations from 1984 to 2003.That the Petitioner was promoted to the rank of Major General in 2001.The Petitioner was further nominated for the rank of Lt. General by two Special Selection Board which consists of Chief of Army Staff, Vice- Chief of Army Staff and Six Senior Most Lt. Generals who all together make recommendation for the promotion to the rank of Lt. General and the final decision is of Ministry of Defence.The Special Selection Board Meetings were held in 2004 and 2005 respectively where in 2004 Petitioner’s promotion was denied as there was lack in vacancy with respect to the candidates. In 2005 his promotion as once again denied while the other candidate was given the promotion. The procedural history is as follows: – The Petitioner filed a non-statutory complaint with the COAS on 17 Jan 2005 which was remained unattended.Then the Petitioner filed another Statutory complaint and approached the Ministry of Defence challenging the supersession on 29 Aug 2005.Failing to get the desired remedy, the petitioner then filed a writ petition before H.C of Delhi stating that he was eligible for the rank of Lt. General but was frequently rejected.The petitioner was totally unsatisfied by the judgement of HC, and further filed the Special Leave Petition in SC challenging the impugned judgment and order dated 22 March 2007 delivered by Delhi High court. ISSUE BEFORE THE COURT:Whether the decision made by the Central Government was biased, arbitrary and discriminatory? RATIO OF THE COURTAppearing for the petitioner, learned senior counsel, Mr. Patwalia, repeated and reiterated the case made out by the petitioner in his Writ Petition and emphasised the fact that despite the recommendation of two Special Selection Boards, consisting of the COAS, the Vice-Chief of Army Staff and the six senior Lt. Colonels in the Army, the Central Government had wrongly withheld promotion to the petitioner from the rank of Major General to the rank of Lt. General. Mr. Patwalia submitted that the senior-most officers of the Indian Army, who were acquainted with the qualities of the officers under consideration, had made the recommendations for promotion of the petitioner to the post of Lt. General, and accordingly, such recommendation by two successive Boards, should not have been rejected.It was submitted that except for indicating that in comparison to the other recommended candidates, the petitioner had a weak profile, no other satisfactory reason had been given by the respondents for rejecting the recommendation made by the Special Selection Boards in the petitioner’s favour.Appearing for the respondents, learned senior counsel, Mr. Doabia, submitted that the petitioner was first recommended for promotion to the rank of Lt. General, along with three other officers, by the Special Selection Board on 27th February, 2004, but when the said recommendation was taken up for consideration by the Central Government, it was discovered that the Special Selection Board had presumed four vacancies when only three vacancies were available.Thereafter, on a comparison of the profiles of all the officers, the petitioner was found to have the weakest profile and was graded “unfit” for promotion. Even when the second recommendation was made by the Special Selection Board on 1st April, 2005, on a comparison of the profiles of the officers recommended, the petitioner was once again found to have the weakest profile and accordingly graded “unfit”. It was submitted that such consideration to hold the petitioner “unfit” in comparison to the others recommended officer, was a decision taken not by the COAS alone, in his individual capacity, but by the Ministry of Defence in a representive capacity, which also included the COAS.It was observed that the Petitioner has the weakest profile amongst other candidates and graded unfit for the promotion according to the box grading. It is also no doubt true that the Special Selection Board consists of the highest-ranking officers of the Indian Army, but its suggestions are only recommendatory in nature and under the Army Regulations, can be varied or interfered with by the Appointing Authority, as has been done in the instant case.It is also no doubt true that the Special Selection Board consists of the highest-ranking officers of the Indian Army, but its suggestions are only recommendatory in nature and under the Army Regulations, can be varied or interfered with by the Appointing Authority, as has been done in the instant case. It is unfortunate that the recommendations were made in excess of the vacancies available which necessitated a comparison to be made of the profiles of the recommended candidates in which process the petitioner got eliminated, but having gone through the official records, which were produced before us, we find that the entire question was considered and dealt with by the Central Government in a manner which was completely free from bias and based on the service records of the different officers.It is only on an overall assessment that the profile of an officer is prepared and had been so prepared in the instant case where a comparison had to be made in filling up the available vacancies.It is further observed that the COAS has the only power to recommend and nominate the candidate as the final and binding decision is of Central Government. Appearing for the petitioner, learned senior counsel, Mr. Patwalia, repeated and reiterated the case made out by the petitioner in his Writ Petition and emphasised the fact that despite the recommendation of two Special Selection Boards, consisting of the COAS, the Vice-Chief of Army Staff and the six senior Lt. Colonels in the Army, the Central Government had wrongly withheld promotion to the petitioner from the rank of Major General to the rank of Lt. General. Mr. Patwalia submitted that the senior-most officers of the Indian Army, who were acquainted with the qualities of the officers under consideration, had made the recommendations for promotion of the petitioner to the post of Lt. General, and accordingly, such recommendation by two successive Boards, should not have been rejected. It was submitted that except for indicating that in comparison to the other recommended candidates, the petitioner had a weak profile, no other satisfactory reason had been given by the respondents for rejecting the recommendation made by the Special Selection Boards in the petitioner’s favour. Appearing for the respondents, learned senior counsel, Mr. Doabia, submitted that the petitioner was first recommended for promotion to the rank of Lt. General, along with three other officers, by the Special Selection Board on 27th February, 2004, but when the said recommendation was taken up for consideration by the Central Government, it was discovered that the Special Selection Board had presumed four vacancies when only three vacancies were available. Thereafter, on a comparison of the profiles of all the officers, the petitioner was found to have the weakest profile and was graded “unfit” for promotion. Even when the second recommendation was made by the Special Selection Board on 1st April, 2005, on a comparison of the profiles of the officers recommended, the petitioner was once again found to have the weakest profile and accordingly graded “unfit”. It was submitted that such consideration to hold the petitioner “unfit” in comparison to the others recommended officer, was a decision taken not by the COAS alone, in his individual capacity, but by the Ministry of Defence in a representive capacity, which also included the COAS. It was observed that the Petitioner has the weakest profile amongst other candidates and graded unfit for the promotion according to the box grading. It is also no doubt true that the Special Selection Board consists of the highest-ranking officers of the Indian Army, but its suggestions are only recommendatory in nature and under the Army Regulations, can be varied or interfered with by the Appointing Authority, as has been done in the instant case. It is also no doubt true that the Special Selection Board consists of the highest-ranking officers of the Indian Army, but its suggestions are only recommendatory in nature and under the Army Regulations, can be varied or interfered with by the Appointing Authority, as has been done in the instant case. It is unfortunate that the recommendations were made in excess of the vacancies available which necessitated a comparison to be made of the profiles of the recommended candidates in which process the petitioner got eliminated, but having gone through the official records, which were produced before us, we find that the entire question was considered and dealt with by the Central Government in a manner which was completely free from bias and based on the service records of the different officers. It is only on an overall assessment that the profile of an officer is prepared and had been so prepared in the instant case where a comparison had to be made in filling up the available vacancies. It is further observed that the COAS has the only power to recommend and nominate the candidate as the final and binding decision is of Central Government. DECISION HELD BY COURT: The Special Leave Petitions stands dismissed as the petitioner has weakest profile amongst the other candidates and graded unfit for the promotion further the official records which were produced before the court, it is found that the entire question was considered and dealt with by the Central Government in a manner which was completely free from bias and based on service records of different officers. | IN THE CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION(CIVIL) NO.8501 OF 2007 Lakhwinder Singh Union of India & Ors JUDGMENT ALTAMAS KABIR J This Special Leave Petition is directed against the judgment and order dated 22nd March 2007 passed by the Delhi High Court dismissing Writ Petition No. 8906 filed by the petitioner herein challenging the decision of the Central Government to reject the recommendation made by two Special Selection Boards for promoting the petitioner to the rank of Lieutenant General The petitioner who was commissioned as a Second Lieutenant in the Indian Army on 16th December 1967 was promoted to the rank of Major General in the year 2001. Two successive Special Selection Boards of the Indian Army recommended the petitioner for promotion to the rank of Lt. General but the Central Government did not approve the said recommendations. General. The said decision of the Central Government was challenged by the petitioner in the aforesaid Writ Petition on the ground that such denial of promotion to the petitioner to the rank of Lt. General was arbitrary discriminatory whimsical and in violation of the rules and the established procedure of selection and it also offended the principles laid down in various judicial pronouncements both by the High Courts as well as this Court According to the case made out by the petitioner he was engaged in active combat at Dera Baba Nanek in the Punjab Sector during the Indo Pakistan War and was recommended for Vir Chakra award. He also took part in various operations including operations relating to counter insurgency such as operation Blue Star in Punjab in 1984. In 1999 he was posted to command an Artillery Brigade in the active insurgency area in Kashmir. The Brigade under the petitioner’s command was mobilized to fight the Kargil War Operation Vijay in Drass Kargil Sector in 1999. For the petitioner’s participation in the Kargil War he was awarded the Yudh Sewa Medal in August 1999 On account of his service profile the petitioner was promoted to the rank of Major General and was posted as General Officer Commanding 40 Artillery Division which was the only Artillery Division of the Indian Army at the relevant time and he led Operation Parakram in 2002. In 2003 he was posted to the Northern Command and participated in the Operational Command which was responsible for the insurgency affected Jammu and Kashmir Sector. It is the further case of the petitioner that all promotions above the rank of Colonel are made not on the length of service put in by an officer but on the basis of selection. It is the petitioner’s case that he was promoted on first consideration right from the rank of Colonel to Major General on a competitive basis. For selection from the rank of Major General to Lt. General a Special Selection Board is constituted by the Chief of the Army Staff hereinafter referred to as “COAS” under powers delegated to him under the authority of the President. The said Board comprises the Chief of Army Staff the Vice Chief of Army Staff and the six senior most Lt. Generals who make recommendations for promotion to the rank of Lt. General and appointments are made after the recommendations are approved by the Ministry of Defence and other competent authorities It is the petitioner’s case that the Special As far as the petitioner is concerned the Selection Boards are expert bodies which consist of the COAS the Vice Chief of Army Staff and the six Corp Commanders representing different fields branches of the Army including officers from technical and non technical fields. According to the petitioner a person who has been recommended by the Special Selection Board can hardly be ignored by the Government for promotion first Board for Selection was held on 27th of February 2004 in which four names were unanimously recommended including the name of the petitioner. Before promotions could be given in terms of the recommendations made one of the four candidates superannuated on 31st August 2004 and one of the others expired on 3rd September 2004. According to the petitioner without however applying its mind to the aforesaid facts the Government returned the recommendations of the Board on the ground that four names had been recommended when there were only three vacancies though at the relevant time there were only two officers left against three vacancies. Despite the above only one of the recommended candidates Major General A Vasudeva was promoted to the post of Lt General by the Central Government but the petitioner’s case for promotion was rejected and the said decision was declared after a period of 10 months. The petitioner has contended that he was the only officer amongst the General Officers recommended for promotion as Lt. General in the Staff Stream. Aggrieved by his non selection to the post of Lt. General the petitioner filed a non statutory complaint with the COAS on 17th January 2005. The same remained unattended to and ultimately on 1st April 2005 a second Board was held. Once again the Board recommended the name of the petitioner for promotion to the rank of Lt. General. It has been emphasised by the petitioner that both the Boards were headed by the functioning Chiefs of Army Staff. In the list recommending the names of five officers for promotion to the rank of Lt. General the petitioner’s name was shown at serial No.1. When the result of the second Board was declared on 30th June 2005 the petitioner found that he had once again been superseded and the recommendation of the second Board as far as he was concerned was not approved by the Central It is also the case of the petitioner that two of the recommended candidates Major General Utpal Bhattacharya and Major General A.K Saini were to superannuate on 1st July 2005 and 31st August 2005 respectively and consequently in the vacancy arising on 1st February 2006 only two officers namely the petitioner and Major General Y.K.Jain should have been promoted. However on 29th 30th July 2005 two vacancies were created and just before the retirement of Major General U Bhattacharya the rank of Lt. General was conferred on them Aggrieved by the aforesaid action of the respondent the petitioner filed another statutory complaint on 29th August 2005 with the Ministry of Defence challenging his supersession but the same was rejected by a cryptic order on 29th December 2005. It is the petitioner’s case that although there were vacancies in the rank of Lt. General to which the petitioner was entitled to be promoted the respondents did not fill up the available vacancies as the petitioner was due to retire on 31st May 2006. The grievance made out by the petitioner in his Writ Petition is that despite his excellent service profile and unblemished service for a period of 38 years and two successive recommendations for promotion he was denied promotion to the rank of Lt General in an arbitrary and high handed Appearing for the petitioner learned senior counsel Mr. Patwalia repeated and reiterated the case made out by the petitioner in his Writ Petition and emphasised the fact that despite the recommendation of two Special Selection Boards consisting of the COAS the Vice Chief of Army Staff and the six senior Lt. Colonels in the Army the Central Government had wrongly withheld promotion to the petitioner from the rank of Major General to the rank of Lt. General. Mr. Patwalia submitted that the senior most officers of the Indian Army who were acquainted with the qualities of the officers under consideration had made the recommendations for promotion of the petitioner to the post of Lt. General and accordingly such recommendation by two successive Boards should not have been rejected. It was submitted that except for indicating that in comparison to the other recommended candidates the petitioner had a weak profile no other satisfactory reason had been given by the respondents for rejecting the recommendation made by the Special Selection Boards in the petitioner’s favour. Mr. Patwalia urged that while the petitioner may not have obtained the grading of 9 in the box grading for the purpose of promotion of the recommendees he was the only officer who had seen active combat during the Kargil War and had been decorated for the same. Mr Patwalia urged that despite the fact that the petitioner did not possess any Box Grading of “9” the Special Selection Boards still recommended him for promotion to the rank of Lt. General not once but on two occasions which surely reflected the fact that Box Grading of “9” was not of such significance as to deny promotion to the petitioner to the rank of Lt. General. Referring to the criteria factors which are considered for selection to the post of Lt. General in terms of the policy devised by the Central Government Mr. Patwalia submitted that only the Annual Confidential Report profile of the officer appears to have been taken into recommendation of the Special Selection Board to promote the petitioner to the rank of Lt General. He pointed out that one of the 7 criteria was consistent recommendations for promotion to the next higher rank. It was submitted that such criteria appears to have not been given due importance by the Central Government while rejecting the successive recommendations made in the petitioner’s favour. Although no case of malafides had been made out on behalf of the petitioner either before the High Court or before this Court it was submitted that despite the fact that the petitioner’s case for promotion was rejected two posts were created to accommodate two officers as a special favour to promote them to the rank of Lt. General Appearing for the respondents learned senior just before they retired from service Accepting the position that promotion was not a matter of right Mr. Patwalia concluded by urging that an officer who had been selected by the Special Selection Board consisting of the highest officers in the Indian Army was entitled to request the Court to look into the records to ascertain the reason for such counsel Mr. Doabia submitted that the petitioner was first recommended for promotion to the rank of Lt. General along with three other officers by the Special Selection Board on 27th February 2004 but when the said recommendation was taken up for consideration by the Central Government it was discovered that the Special Selection Board had presumed four vacancies when only three vacancies were available. Thereafter on a comparison of the profiles of all the officers the petitioner was found to have the weakest profile and was graded “unfit” for promotion. Even when the second recommendation was made by the Special Selection Board on 1st April 2005 on a comparison of the profiles of the officers recommended the petitioner was once again found to have the weakest profile and accordingly graded “unfit”. It was submitted that such consideration to hold the petitioner “unfit” in comparison to the others recommended officer was a decision taken not by the COAS alone in his individual capacity but by the Ministry of Defence in a representive capacity which also included the COAS. In fact it was submitted that as names of five officers had been recommended against three vacancies the cases of all the officers wee considered on a comparative basis and since the petitioner was found to have the weakest profile amongst all the officers recommended he was once again graded as “unfit”. It was submitted that no undue preference had been shown or given to any of the concerned officers but since from the records the petitioner was found to have the weakest profile he had been graded as “unfit” since only three vacancies were available while five names had been recommended for It was lastly submitted that Para 108 of the Regulations for the Army 1987 which provides for the constitution and duties of Selection Boards clearly indicates that the assessment of the Selection Board shall be recommendatory in nature and not binding until approved by the Competent Authority namely the COAS or the Central Government as the case may be. The said Regulation also provides that both the Central Government and the COAS have an inherent power to modify renew approve with variation or repeal the recommendations of the Selection. It was urged that it was therefore evident that the recommendation of the Special Selection Board was not binding and had to be approved by the Central Government or the Chief of the Army Staff. In support of his aforesaid submission learned counsel referred to the decision of this Court in Union of India and Ors. Vs. Lt. General Rajinder Singh Kadyan SCC 698] in which this Court inter alia held as “Of course considering the nature of rigorous standards adopted in the matter of selection of officers from the stage of Lt. Colonel onwards up to the stage of Lt General in the usual course it may be that the senior most officer is selected as the Army Commander. But that does not debar the Chief of the Army Staff or the Union of India from making the selection of any other person for good reasons who fulfils the necessary criteria.” Reliance was also placed on another decision of the Delhi High Court in the case of Union of India vs. Col. Shyam Kumar 1982 DRJ 225 in which it was held that the assessment of the Selection Board is purely recommendatory in character and that the power of the appointing authority to accept or even vary the recommendation of the Selection Board It was urged that since the petitioner’s case had been considered at the highest level of the appointing body in which the COAS was also present no interference was called for with the decision either of the said authority or the High Court Having considered the submissions made on behalf of the respective parties we are not inclined to interfere with the decision of the High Court impugned in this proceeding It is no doubt true that the name of the petitioner had been recommended on two occasions by two successive Special Selection Boards for promotion to the post of Lt General but on each occasion he was declared unfit on account of the fact that there were lesser number of vacancies available than the number of candidates recommended and it was found on a comparative assessment that of all the recommended officers he had the weakest profile. It is also no doubt true that the Special Selection Board consists of the highest ranking officers of the Indian Army but its suggestions are only recommendatory in nature and under the Army Regulations can be varied or interfered with by the Appointing Authority as has been done in the instant case. It is unfortunate that the recommendations were made in excess of the vacancies available which necessitated a comparison to be made of the profiles of the recommended candidates in which process the petitioner got eliminated but having gone through the official records which were produced before us we find that the entire question was considered and dealt with by the Central Government in a manner which was completely free from bias and based on the service records of the different officers The active service of an officer during War and Battle Awards and Honours earned during such action is one of the several factors to be taken into consideration by the Special Selection Board in recommending promotion from the post of Major General to Lt. General While the petitioner may have better records in the said category the Board has also to take into consideration various other categories which have been set out in the judgment of the High Court impugned in this Special Leave Petition. It is only on an overall assessment that the profile of an officer is prepared and had been so prepared in the instant case where a comparison had to be made in filling up the available vacancies Apart from the two decisions referred to hereinabove which support the case of the respondents various other decisions were also referred to on behalf of the parties but the same are not really relevant for a decision in this case having regard to the view taken by us on the basis of the materials available to In the circumstances indicated hereinabove no interference is called for with the impugned judgment of the High Court and the Special Leave Petition is accordingly dismissed There will be no order as to costs. Dated: July 10 2008 |
LALYA V/S THE COMMISSIONER OF POLICE AND ORS. | Detention is based not on facts proved as per Evidence Act or Cr.P.C. but on the subjective satisfaction of the detaining authority that detention is necessary for prevention of prejudicial activities in future The petitioner- Lalya @ Kishor Arun Waghmare has been detained pursuant to the detention order dated 20.8.2015 passed by Respondent No. 1 under Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (Mah. Act No. LV of 1981) (Amendment-1996) (Amendment-2009) (hereinafter referred to as “MPDA Act”). The grounds of detention shows that the detaining authority was convinced on the basis of material placed before it that the detenu was a dangerous person and had unleashed a reign of terror and had become a perpetual danger to the society at large in the area of Yerwada Police Station, Pune. The people residing in the said area are experiencing a sense of insecurity and are living under a shadow of constant fear, whereby even day to day business and activities of citizens are under threat. Further averment made in the grounds of detention show that the detaining authority was subjectively satisfied that the detenu was acting in a manner prejudicial to the maintenance of public order, hence, it was necessary to detain him. The first ground of challenge which is 6(a) is that the detaining authority has taken into consideration two statements of witnesses “A” and “B” recorded incamera on 25.7.2015 and 10.7.2015. These statements are relied upon by the detaining authority for arriving at his subjective satisfaction, however, the incamera statements were not verified by any Senior Police Officer as per the requirement of law, hence, it cannot be said that the incamera statements are authentic and hence, they cannot be relied on by the detaining authority for passing the order of detention. On account of this, the subjective satisfaction of the detaining authority is vitiated, hence, the order of detention is illegal and bad in law and liable to be quashed and set aside.In relation to verification of statements of two incamera witnesses, it is further stated in ground 6(f) of the petition that “the detaining authority has referred to and relied on two statements of witnesses “A” and “B” recorded incamera on 25.7.2015 and 10.7.2015. It is further submitted in the affidavit that the detaining authority has duly furnished all the relevant documents i.e. in all 493 pages along with the verified notes of both the incamera statements and the same are at Page Nos. 485 to 493. As such the detenu’s right to make effective representation guaranteed under Article 22(5) of the Constitution of India is not at all violated. Hence, the order passed by the detaining authority is legal, just and proper and as per the provisions of law. Hence, deserves to be confirmed. As far as ground 6(f) is concerned, the detaining authority has stated that on 6.8.2015 the Assistant Commissioner of Police, Khadki Division, Pune has called the witnesses “A” and “B” in her office for verification. On 6.8.2015 the Assistant Commissioner of Police, Khadki Division, Pune verified the witnesses “A” and “B” and also verified the truthfulness and genuineness of the statements given by them before the Senior Police Inspector of Yerawada Police Station on 25.7.2015 and 10.7.2015 respectively. Then regarding this verification of truthfulness, the Assistant Commissioner of Police, Khadki Division, Pune has recorded the supplementary statements of witnesses “A” and “B” on 6.8.2015. As such these supplementary statements of witnesses “A” and “B” recorded on 6.8.2015 by the Assistant Commissioner of Police, Khadki Division, Pune is nothing but verification of truthfulness and genuineness of the statements of the witnesses “A” and “B”. These supplementary statements regarding verification of the statements of witnesses “A” and “B” are placed at Page Nos. 489 and 493 of the copies served to the detenu. Moreover, the Assistant Commissioner of Police, Khadki Division, Pune has submitted report dated 6.8.2015 regarding the verification of the truthfulness and genuineness of the statements of the witnesses “A” and “B” to the Respondent/detaining authority. This report is placed at page No. 485 of the copy served to the detenu. In the said report, the Assistant Commissioner of Police, Khadki Division, Pune has mentioned that the facts given in the incamera statements and apprehension entertained by the witnesses “A” and “B” therein are true and reasonable. After perusing the said report, the detaining authority was subjectively satisfied that the facts given in the incamera statements and apprehension entertained by the witnesses “A” and “B” are true and reasonable. Also there is no particular format of verification. As such the order passed by the detaining authority is legal, just and proper. ISSUE BEFORE THE COURT:Whether the detention of the petitioner for offences punishable under Sections punishable under Sections of Code, Act, 1988 and Act, 1959 was valid? RATIO OF THE COURTThe court contended document also clearly shows that the two incamera statements were verified by the Assistant Commissioner of Police. Copy of this document has been furnished to the detenu. In the present case, in view of the further statements of witnesses A and B dated 6.8.2015 and report of the A.C.P. to detaining authority dated 6.8.2015, we are of the opinion that there is no need at all for the A.C.P. to record his satisfaction on this aspect separately.The further statements of witnesses A & B itself are sufficient to show that the A.C.P. had verified the incamera statements. The report of the A.C.P. to the detaining authority dated 6.8.2015 by itself is also sufficient to show that the A.C.P. had verified the incamera statements. Any one of these documents is sufficient to show that incamera statements were verified by the A.C.P. Both the report of the A.C.P. and supplementary statements are not necessary and any one of them would have been sufficient. These documents clearly prove that a Senior Police Officer i.e. A.C.P. had verified the genuineness of the incamera statements and copies of these documents, as stated earlier, have been furnished to the detenu. None of the judgments cited above lay down any principle that there should be a particular format in which the verification must be done. The verification no doubt ought to be there. The incamera statements and the witnesses making them ought to be questioned about them and the genuineness of the incamera statements ascertained. Thus, there should be a verification of the incamera statements, but it need not be in particular format or answered in any particular description or employing any particular words and expressions. Similarly none of these decisions say that the verification ought to be appearing on the face of the incamera statements or on the copy of the same supplied to the detenu. If there is an incamera statement recorded and there is a verification done, the verification can well be contained in a separate report. So long as the copies of the incamera statements and that report are forwarded to the detaining authority, if that forms part of the material and documents taken into consideration by the detaining authority and furnished to the detenu, then the detention order is not vitiated nor the right to make an effective representation guaranteed under Article 22(5) of the Constitution of India is affected. From the record of the present case, we have found that there is indeed a verification of the statements recorded incamera and copy of document showing that the incamera statements were verified by a Senior Police Official is furnished to the detenu. Thus, there is no merit in these two grounds. The next ground raised by Mr. Tripathi is that the subjective satisfaction of the detaining authority is based on three CRs., one Station Diary entry and statements of two incamera witnesses. The court agreed with the submission of Mr. Tripathi that the incidents relating to CR No. 123 of 2015 and CR No. 3053 of 2015 were not such as to affect the maintenance of public order, however, for reasons recorded below, we do not agree with the latter part of his submission that the detention order is based only on CR No. 3080 of 2015. As far as the above contention is concerned, we have already observed above that statements of two incamera witnesses have been verified by a Senior Police Officer i.e. Assistant Commissioner of Police and copy of the documents showing that such verification was done has been furnished to the detenu. Incamera statement of witness “A” shows that people were running helter skelter and shop keepers were closing their shops. At that time, the shop keeper of the shop in which witness A was, also told him to leave the shop and hurriedly pushed down the shutter of the shop. When witness “A” came on the road, the detenu arrived there armed with a sword. He assaulted witness “A” and snatched Rs.3300/- from the shirt pocket of witness “A”, detenu then pointed out a sword at witness “A” and threatened him that if he made complaint to the police, he would kill him. Incamera witness “B” has stated that the detenu threatens and collects money from vegetable vendors, businessmen and residents and the detenu has created a reign of terror in the area and nobody dared to complain against the detenu. Incamera witness “B” has further stated that on the date of the incident, the detenu was threatening shop keepers and handcart owners with a sword, due to which, handcart owners and vegetable vendors ran away. The detenu then overturned handcart of witness “B” loaded with potatoes which led to a loss to witness “B”. Thus, it is seen that the incidents relating to both witnesses “A” and “B” are such that they affect the maintenance of public order. In addition to statements of two incamera witnesses, the details relating to CR No. 3080 of 2015 are also such that the activities of the detenu were prejudicial to the maintenance of public order. In this case, the complainant approached the police in terrified condition and told them that the detenu was threatening shop keepers and handcart owners with a sword and that the detenu had overturned handcarts and had created chaos. Due to fear, people present there, ran helter skelter. On getting this information, the police officers and staff rushed to the spot where they saw the detenu holding sword and threatening shop keepers and handcart owners. The detenu had created a reign of terror and people present there were terrified. Handcart owners and vegetable vendors who were present at the spot, ran helter skelter. Investigation in the said case revealed that every month the detenu extorted money from vegetable vendors, grocery shop keepers and tea handcart owners. Thus, the incident relating to CR No. 3080 of 2015 is also such which affects the maintenance of public order. It is seen that incidents relating to CR No. 3080 of 2015 and incamera witness “A” and witness “B” are of extortion of money in public places. Such acts are bound to affect public order. In this connection, reliance can be placed on a decision of the Supreme Court in the case of Hasan Khan Ibne Haider Khan Vs. R.H. Mendonca & Ors. reported in AIR 2000 SC 1146.In this case, it was held that “It is well settled that neither is the detenu an accused nor are detention proceedings his trial. Detention is based not on facts proved as per Evidence Act or Cr.P.C. but on the subjective satisfaction of the detaining authority that detention is necessary for prevention of prejudicial activities in future. Therefore, rules and principles of criminal jurisprudence in general will not apply to preventive detention. Some element of suspicion, anticipation and speculation is inherent in the preventive detention. The detention proceedings are neither criminal nor quasi-criminal, nor judicial nor quasi-judicial in character. Detention order, more or less, is administrative in nature and the detaining authority is not bound by strict rules of Evidence Act or Cr.P.C. It may be mentioned that even “in camera” statements can be relied upon for reaching the subjective satisfaction”.The court stated that in the present case after excluding CR Nos. 123 of 2015 and 3053 of 2015, the court have four incidents or grounds on which the detaining authority has placed reliance to issue the order of detention. From these four incidents, it can certainly be said that the detenu is a dangerous person. On consideration of these four incidents, we hold that the same are germane to arrive at the subjective satisfaction of the detaining authority that even tempo of life of people was disturbed and these incidents resulted in breach of public order and affected the maintenance of public order. DECISION HELD BY COURT:In this case the judgement was given by JUSTICE V.K.TAHILRAMANI that In view of the above, this ground raised by the learned counsel for the petitioner to espouse the case of the detenu, is also of no avail. Thus, this petition is devoid of substance. Hence, Rule is discharged. | 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 |
Disregarding higher qualification in favour of lower qualifications for filling a vacant post is not legally sustainable: High Court of Bombay | For qualification as a government teacher, B.Ed. Degree with Non-Marathi subject of methodology will not erode the value of Post Graduate Degree in Marathi since qualification for teaching and services is based on set provisions, rules, and guidelines. This auspicious judgment was passed by the High Court of Sikkim in the matter of ASHOK S/O UDHAV KOTHAWALE V. THE STATE OF MAHARASHTRA & ORS. [WRIT PETITION No. 10565 of 2015] by Honourable Justice N. J. Jamadar. This writ petition is filed to challenge the judgment and order passed by the learned Presiding Officer, School Tribunal, Solapur upholding the termination of his service by the School as valid. The petitioner after appraisal of the qualification and credentials as well as his performance in the interview was appointed as a Shikshan Sevak and he joined the post. After his joining the proposal of selecting the petitioner and another candidate, who was selected through the Scheduled Tribe category, was sent for further consideration. However, the Education Officer selected the other candidate and refused to select the petitioner relying on the directive previously issued by the Director of Education. However, the petitioner argued this refusal was unjustified since he was appointed against a clear vacancy after duly following regular selection process. In his petition at Division Bench the Court observed that “Prima-facie, the petitioner possessed the requisite qualification for appointment as Teacher to teach Marathi. However, since during the pendency of the said petition he was terminated.” Thus, “It would be appropriate for the petitioner to challenge the order of termination before the School Tribunal.” He filed an appeal before the School Tribunal assailing the legality, propriety, and correctness of the termination order to which the Tribunal on basis of the material on record and submissions found the termination to be legal and valid. Consequently, the Aurangabad Bench of the High Court of Bombay relied on Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977 and Schedule-B of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 and observed that “It would be naive to expect a person, who is totally uninitiated into a particular discipline, to impart training in that discipline merely because he happens to be a graduate. However, this principle cannot be stretched to such an extreme that the authorities decline to take into account the fact that the candidate possesses higher qualification of post-graduation in that discipline.” Thus, the Court held, that the School Tribunal had fallen into an error in reading the requirement of graduation for fulfilling the criteria of qualification for appointment. Additionally, the second ground was also considered, “a weak foundation of disqualification since not opting for Marathi as the subject of methodology of school-subject while pursuing B.Ed. is not acceptable since he has basic knowledge of the primary subject at graduation or post-graduation level.” | on 01 04 2021 on 02 04 1 W.P. No. 10565 2015 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 10565 OF 2015Ashok S o Udhav Kothawaleage 34 years occupation serviceTaluka Washi Dist. Osmanabad...Petitioner VERSUS1.The State of MaharashtraThrough : The Secretary Secondary Education Mantralaya Mumbai 322.The Director of Education Secondary and Higher Secondary Maharashtra State Pune.3.The Education OfficerZilla Parishad Osmanabad Taluka & Dist. Osmanabad4.Marathwada Gramin Shikshan Prasarak Mandal PimpalgaonTal. Washi Dist. Osmanabad Through its President5.The Head Master Vasant Vidyalaya PimpalgaonTal. Washi Dist. Osmanabad...RespondentsMr. B.A. Dhengle Adv. with Mr. S.A. Dhengle Adv. for petitioner. Mr. R.D. Sanap Asstt. Govt. Pleader for Respts. No. 1 to 3Mr. S.S. Pawar Advocate for respondent No.4Mr. S.A. Nagargoje Adv. for respondent No.5 on 01 04 2021 on 02 04 2 W.P. No. 10565 2015 C ORAM : N.J. JAMADAR J. Closed for orders on : 4th March 2021 Pronounced on : 1st April 2021JUDGMENT :Rule. Rule made returnable forthwith and with theconsent of the Counsels for the parties heard finally at the stage ofadmission. 2.The challenge in this petition is to the judgment andorder dated 29th of April 2015 passed by the learned PresidingOfficer School Tribunal Solapur in Appeal No. 814 wherebythe appeal preferred by the appellant petitioner against terminationof his service by respondent No.4 management came to bedismissed.3.The background facts leading to this petition can bestated in brief as under:(i)The respondent No.4 runs a school namely VasantVidyalaya at PimpalgaonTaluka Washi Dist. Osmanabad.Pursuant to approval granted by the respondent No.3 theEducation OfficerZilla Parishad Osmanabad therespondent No.4 had published an advertisement invitingapplications for the post of Shikshan Sevaks on 24th of December on 01 04 2021 on 02 04 3 W.P. No. 10565 2015 2011. The petitioner being duly qualified had applied for the postof Shikshan Sevak from the Open Category. After appraisal of thequalification and credentials as well as performance in the interview the petitioner came to be appointed as a Shikshan Sevak by orderdated 30th of December 2011. On the very day the petitioner joinedthe said post.(ii)The respondent No.4 sent the proposal of the petitionerand another candidate Mr. Prashant Wanole who was selected inthe same process for the post reserved for Scheduled Tribes forapproval to respondent No.3. Approval to the appointment of Mr.Prashant Wanole was granted on 16th of October 2012. However the Education Officer respondent No.3 declined to grant approval tothe appointment of the petitioner on the premise that the Director ofEducation had issued a directive not to grant approval to theappointment of new Teacher and non teaching staff. Since thepetitioner was appointed against a clear vacancy after followingregular selection process the refusal to grant approval was whollyunjustified. Hence the petitioner invoked the writ jurisdiction of thisCourt by filing Writ Petition No. 36213.(iii)While this Court was seized of the said writ petition therespondent No.3 rejected the proposal for approval of the petitioneron the premise that the petitioner did not possess the necessary on 01 04 2021 on 02 04 4 W.P. No. 10565 2015 qualification as he had not completed graduation with Marathi toteach which the petitioner was appointed as a Shikshan Sevak.Thus the petitioner withdrew Writ petition No. 36213 withliberty to file independent proceeding consequent to rejection ofproposal for approval.(iv)The second petition being Writ Petition No. 6515 of2013 preferred by the petitioner challenging the said order ofrejection of approval passed by respondent No.3 was disposed of bya Division Bench of this Court by order dated 18th of March 2014.This Court noted that the petitioner has completed B.Sc. and thereafter acquired M.A. in Marathi in addition to B.Ed. Since thepetitioner possessed post graduate degree in Marathi this Courtobserved that prima facie the petitioner possessed the requisitequalification for appointment as Teacher to teach Marathi. However since during the pendency of the said petition the respondent No.4 management had in turn terminated the petitioner by order dated12th of October 2013 it was held that it would be appropriate for thepetitioner to challenge the order of termination passed byrespondent No.4 before the School Tribunal.(v)Armed with the liberty as aforesaid the petitioner filedappeal before the School Tribunal assailing the legality propriety andcorrectness of the termination order dated 12th of October 2013. The on 01 04 2021 on 02 04 5 W.P. No. 10565 2015 appeal was resisted by respondent No.5 Head master of the Schoolby filing an affidavit in reply. It was contended that the petitionerhad completed his graduation in Science. He did not possess theessential qualification of being a trained graduate in Marathi.However the petitioner being the son of the then Secretary ofrespondent No.4 came to be appointed despite availability of othercandidates having requisite and better qualification.(vi)Respondent No.4 management however supported theclaim of the petitioner. It was asserted that the respondent No.3had unjustifiably declined to accord approval to the appointment ofthe petitioner though the petitioner possessed requisite qualificationand credentials for being appointed as a Shikshan Sevak.(vii)The learned Presiding Officer after appraisal of thematerial on record and submissions canvased across the bar waspersuaded to dismiss the appeal holding that the petitioner did notsatisfy the criteria of minimum qualification prescribed under theSchedule B of the Maharashtra Employees of private SchoolsRules 1981Act 1977it was submitted that being a graduate in Science the petitioner was plainly ineligible for being appointed. Thus nofault can be found with the impugned judgment and order submittedMr. Sanap.10.Mr. Nagargoje the learned Counsel for respondent No.5would urge that the appointment order came to be issued in favourof the petitioner though the petitioner did not fulfill eligibilitycriteria as the petitioner’s father was the then Secretary of therespondent No.4. Thus the authorities were justified in ensuringthat a non qualified candidate is not appointed to man the post ofShikshan Sevak. In fact it is the responsibility of the EducationOfficer to ensure that the appointments are made in conformity withthe provisions of the Act 1977 and the Rules 1981. To lend supportto the aforesaid submission Mr. Nagargoje placed a strong relianceon the following observations of a learned Single Judge of this Courtin the case of Ku. Jaimala Bhaurao Ramteke Vs. Presiding Officer School Tribunal & Ors. 2009(5) Mah.L.J. 333: on 01 04 2021 on 02 04 10 W.P. No. 10565 2015 “31.It is also necessary to observe that theEducation Officer need to take appropriate actionsat the appropriate stage when the appointmentsof teachers are made in the private schoolsreceiving ‘grant in aid’ and approvals are soughtfor such appointments. They are legally bound toconsider whether such appointments have beenmade by following due procedure of law. If anybreaches are noticed it is for the EducationOfficer to take appropriate action at that verymoment against the management and the school as may be permissible at law. Otherwise theyneed to be held liable as it gives rise tounwarranted litigation & cause harassment to theconcerned employees at times injustice. Toensure such actions a copy of this judgment maybe forwarded to the Secretary EducationDepartment Mantralaya Mumbai for issuingappropriate directions.”11.Before adverting to deal with the aforesaid rivalsubmissions it may be advantageous to note few uncontrovertedfacts. Indisputably Vasant Vidyalaya PimpalgaonTal. Washi is a recognized School. There is not much controversy over the factthat vide advertisement dated 24th of December 2011 applicationswere invited for two posts of Shikshan Sevak. One reserved forScheduled Tribes. The other from open category candidates having on 01 04 2021 on 02 04 11 W.P. No. 10565 2015 B.A. M.A. B.Ed.and B.Ed.14.In the light of the aforesaid undisputed facts thelegality propriety and correctness of the impugned order passed bythe Presiding Officer School Tribunal and the order of terminationdated 12th October 2013 which in turn was based on the rejectionof the proposal for approval to appointment of the petitioner dated23rd July 2013 are required to be tested.15.Since a strenuous submission was advanced on the basisof the observations of this Court in Writ Petition No. 6515 2013 quathe eligibility of the petitioner it may be apposite to extract therelevant observations in the said order which read as under: “ 2 ..It is not disputed that the petitioner possessespost graduate qualification in Marathi and as suchis qualified to teach Marathi subject. There isnothing in Schedule B Clause whichprescribes educational qualifications for trainedteacher in secondary school debarring thepetitioner from consideration for appointment asa teacher in Marathi subject. on 01 04 2021 on 02 04 13 W.P. No. 10565 2015 3.Prima facie we are satisfied that thepetitioner possesses requisite qualification forbeing appointed as a Marathi teacher. ” …..16.The learned Counsel for the respondents joined the issueby stoutly submitting that the aforesaid observations were made forthe purpose of disposing of the said petition. The aforesaidobservations did not preclude the Presiding Officer School Tribunalfrom examining the material on record and arriving at anindependent conclusion on the question of qualification which isessentially rooted in facts. What has to be seen is whether thepetitioner possessed the requisite qualification in terms of the Act1977 and the Rules 1981 and not the tentative observations madeby this Court urged the learned Counsel for Respts. No.1 to 3 & 5.17.Evidently the matter lies in a narrow compass. Whetherthe petitioner possessed the requisite qualification for beingappointed to the post of Shikshan Sevak to teach Marathi subject For an answer a brief reference to the provisions of the Act 1977and the Rules 1981 becomes indispensable.18.The Act 1977 is a statutory framework governingrecruitment and conditions of service of employees of privateschools. Section 2(20) defines “private school” to mean a on 01 04 2021 on 02 04 14 W.P. No. 10565 2015 recognised school established or administered by a management other than the Government or a local authority. ClauseofSection 2 incorporates a comprehensive definition of “school” tomean a primary school secondary school higher secondary school junior college of education or any other institution by whatevername called including technical vocational or art institution or partof any such school college or institution which imparts general technical vocational art or as the case may be special education ortraining in any faculty or discipline or subject below the degreelevel. Section 3 of the Act declares that the provisions of the saidAct shall apply to all private schools in the State of Maharashtra whether receiving any grant in aid from the State Government ornot. Section 4(1) empowers the State Government to make rulesproviding for the minimum qualifications for recruitment duties pay allowances etc. and other conditions of service of employees ofprivate schools and also for reservation of number of posts formembers of the backward classes. Section 5(1) of the Act withwhich we are primarily concerned casts a duty on the managementto fill in as soon as possible in the manner prescribed everypermanent vacancy in a private school by appointment of a personduly qualified to fill such vacancy. on 01 04 2021 on 02 04 15 W.P. No. 10565 2015 19. Section 16 of the Act empowers the State Governmentto make rules for carrying out the purposes of the said Act includingthe minimum qualifications for recruitment of employees of privateschools {Section 16(2)(a)}. It would be contextually relevant tonote that in exercise of the powers conferred by Section 4(1) andSection 16(2)(a) the State Government has framed the MaharashtraEmployees of Private SchoolsRules 1981.20.Thus to ascertain as to who is a person duly qualified recourse is required to be made to the Rules. Rule 6(1) of the Rules1981 declares that the minimum qualifications for the post ofteachers and non teaching staff in the primary schools secondaryschools higher secondary schools junior colleges and junior collegesof education shall be as specified in Schedule ‘B’. Part I of theSchedule ‘B’ prescribes qualifications for Primary Teachers. Part IIprescribes qualifications for trained Teachers in Secondary Schoolsand Junior Colleges of Education. Part II is further divided in twoparts. Different qualifications are prescribed forGraduateTeachers andUndergraduate Teachers.21.For our purpose clauseof the Part IIis material. It reads as under: on 01 04 2021 on 02 04 16 W.P. No. 10565 2015 “(1) For Graduate Teachers:(i)A Bachelor’s degree in Teaching orEducation of any statutory University or aqualification recognised by Government asequivalent thereto ”22.Part III provides qualifications for Teachers in JuniorColleges. Sub clauseof first entrymay be relevant fordetermination of the question in controversy which is extractedbelow:“III. Qualifications for Teachers in Junior Colleges:(1) Full time Teachers:(a) Master’s Degree of a statutory University insecond class in the respective subjects plus B.Ed. or a Diploma or Certificate in Teaching approvedby the Department. ”23.A bare perusal of the aforesaid provisions in theSchedule especially part II “Qualifications for trained Teachers inSecondary Schools ” it becomes abundantly clear that for GraduateTeachers the candidate must have Bachelor’s degree in teaching oreducation of any statutory University or a qualification recognised bythe Government as equivalent thereto. To put it differently thecandidate must be a graduate. Secondly he must either have aBachelor’s degree in teaching or education of any statutory on 01 04 2021 on 02 04 17 W.P. No. 10565 2015 University or in the alternative a qualification recognised by theGovernment as equivalent to such Bachelor’s degree in teaching oreducation. No other qualification is discernible from the aforesaidprescription. 24.The Education Officer respondent No.3 has proceededon the premise that the candidate must have a graduation in thesubject for which the vacancy is notified and eventually appointment is made. Since the petitioner pursued graduation inScience and the advertisement was issued inviting applications forthe candidates having the qualifications of “B.A. M.A. B.Ed.(Marathi)” the petitioner did not fulfill the requisite criteria ofeducational qualification. In the view of the Education Officer it didnot matter that the petitioner had post graduation in MarathiMh.L.J. 245 wherein the services of ateacher were terminated on the ground that the respondent teachertherein who was appointed as Instructor in Junior College ofEducation had obtained her graduation with Psychology and on 01 04 2021 on 02 04 19 W.P. No. 10565 2015 Sociology and the B.Ed. Degree was obtained from AnnamalaiUniversity recognition of which was withdrawn. Repelling thesubmission that the respondent did not possess the qualification asshe had obtained the bachelor’s degree in Psychology and Sociology this Court held as under: “ 22. Similarly the ground that the firstrespondent had not completed her B.Ed. degreein a subject other than compulsory English whichwas taught at the school level is once againerroneous. Part II of Schedule B to the Rules of1981 specifies that the qualification required forgraduate teachers in Junior Colleges of Educationis inter alia a Bachelor s degree in teaching oreducation of any statutory University or aqualification recognised for Government asequivalent thereto. In contrast with this if acomparison is made with Part III of Schedule "B"which describes the qualifications for teachers inJunior Colleges one of the requirements for a fulltime teacher is a Master degree of a statutoryUniversity in the respective subjects and inaddition a B.Ed or a Diploma or Certificate inTeaching. Thus in so far as Junior Colleges areconcerned the qualifications required include aMaster degree in the respective subjects as wellas a degree in education or certificate in teaching.The requirement that a candidate should havedone a degree in the respective subjects is thus on 01 04 2021 on 02 04 20 W.P. No. 10565 2015 not a part of the qualifications prescribed in theRules for graduate teachers in colleges ofeducation. In the case of a teacher seekingemployment in a college of education it issufficient to hold a Bachelor s degree in teachingor education of a statutory University. “ 27. The aforesaid pronouncement applies with equal force tothe case of a graduate Teacher in Secondary School. Moreover inthe case at hand the petitioner possessed a post graduatequalification in the subject to teach which he came to be appointed.The Presiding Officer School Tribunal in my considered view hadfallen into an error in reading a requirement of graduation in aparticular discipline for fulfilling the criteria of qualification forappointment as a trained Teacher in Secondary School. It would beunreasonable to hold that despite having a post graduation inMarathi the petitioner did not possess the requisite knowledge ofthe said subject. 28.Reading such a requirement becomes unsustainable ifthe provisions of Part III of Schedule ‘B’ prescribing qualifications forTeachers in Junior Colleges extracted above are considered. Itspecifically provides that the Teachers in Junior Colleges shouldhave Master’s degree in second class in the respective subjects plus on 01 04 2021 on 02 04 21 W.P. No. 10565 2015 B.Ed. or a Diploma or Certificate in teaching approved by theDepartment. The Rule making authority was thus alive to therequirement of pursuing a Master’s programme in the particularsubject as the basic qualification for appointment as a Full timeTeacher in Junior Colleges. It implies that the requirement of havinga degree in the particular subject taught in the school was notconsidered to be an absolutely essential requirement. Thus thepetitioner could not have been held to be not qualified under theprovisions of Schedule ‘B’ for not possessing the degree in Marathithough he had a post graduation in Marathi. 29.The second ground of disqualification attributed to thepetitioner for having not completed B.Ed. with Marathi as the subjectof methodology of school subject also stands on a weak foundation.Again the relevant clause of Schedule ‘B’ extracted above does notwarrant that the candidate must have passed B.Ed. with theparticular subject as the methodology of school subject to teachthat subject. In a Bachelor of Education Course the emphasis ison teaching methodology pedagogy and equipping the students toimpart education. The fact that a candidate had opted for particularsubject in the said course for the purpose of methodology of school subject may not be of decisive significance. This aspect was also on 01 04 2021 on 02 04 22 W.P. No. 10565 2015 considered in the case of Anjuman Khairul IslamMh.L.J. 859.In the said case the petitioners who were possessing B.Com. B.Ed. qualification had challenged the circular dated 5th February1998 issued by the Director of Education Maharashtra State atPune directing all the Education Officersof ZillaParishads in the State not to grant approval to the appointments ofAssistant Teachers who possess the B.Com. B.Ed. Degree unlessthere is availability of work load in the respective subjects whichthey have studied up to the graduation level or in economics. Thepetitioners asserted that they had opted Marathi and History formethodology of two school subjects in the said course and thus they be held to have the necessary qualification to teach Marathi andHistory at the Secondary School level.31.The Division Bench was not persuaded to agree with theaforesaid submission. The observations of the Court in paragraphs 9& 10 are material even for determining controversy at hand. Theyread as under:9.It is nobody s case that the course contents ofB.Ed. courses in methodology paper consisting of on 01 04 2021 on 02 04 23 W.P. No. 10565 2015 two subjects can be a substitute for the coursecontents of such subjects at the basic degreelevel. For example if the methodology paper intwo subjects like Marathi and History hasprescribed certain course contents at the B.Ed.level they cannot be similar to the coursecontents in these subjects at the basic degreelevel if one has to examine the fluency that isrequired to be attained by a trained graduateteacher to teach these subjects with thestandards as are prescribed for the secondaryschool teachers. Being aware in the methodologydoes not by itself enrich the graduate teacher insuch subjects which he studied only as part of themethodology paper at the B.Ed. level andparticular standard of in depth knowledge of thesubject which one is required to teach at HigherSecondary Junior College level. The B.Ed. degreelevel course content may enrich the graduateteacher with additional skills in teaching orpsychology in teaching or methodology inteaching but the basic subject enrichment can beachieved at the graduation or post graduationlevel in these subjects. 10. Though the scheme of the MEPS Rulespostulates and recognises B.Com. B.Ed. as one ofthe qualifications for appointment to the post ofAssistant Teacher in secondary schools the on 01 04 2021 on 02 04 24 W.P. No. 10565 2015 Education Officer or the Deputy Director ofEducation has a statutory duty while grantingapproval to such appointments to examine thequalifications at the basic degree level as well aspost graduation level and not at the B.Ed. level soas to grant approval to these appointments. If thework load available in a particular school in thesubjects which the concerned teacher has studiedat the graduation level does not warrant his fullterm appointment or if there is no workload at allin such subjects the Education Officer would notbe at fault while declining approval to suchteachers irrespective of their post degree levelqualifications like B.Ed. or B.P.Ed. or even M.Ed.for that matter. Unless there is sufficient workload available in the respective subjects which theteacher has studied up to the graduation level the authorities concerned would be justified indeclining approval for his appointment and suchan action in no way amounts to changing theprovisions of the MEPS Rules or the Schedulesthereunder.“ 32. Ultimately the challenge to the circular impugned beforethe Court was held to be devoid of merits and the petition came tobe dismissed with the following observations. “ 14. In the result we hold that though theB.Com. B.Ed. is one of the qualifications on 01 04 2021 on 02 04 25 W.P. No. 10565 2015 prescribed for appointment of Assistant Teachersin secondary schools the Education Officer or theDeputy Director of Education as the case maybe has the powers to deny approval for theappointment of said teachers if there is no workload or inadequate work load in the subjectswhich they have studied at B.Com. level and thecourse contents at B.Ed. level are irrelevant todecide their eligibility for approval to teachsubjects which they have not studied at theB.Com. degree level. The challenge to theimpugned circular is therefore devoid of meritsand the petitions are hereby dismissed. Ruledischarged with no order as to costs. ” 33.In the light of aforesaid enunciation the contention onbehalf of respondent No.3 that since the petitioner had optedsubjects of Science and Maths while studying the methodology ofschool subjects in B.Ed. Course the petitioner did not fulfill therequisite qualification cannot be acceded to. The said fact does notdetract materially from the fact that the petitioner had the necessarypost graduation in Marathi. Nor does it erode the value of Bachelor’sDegree in Education which the petitioner acquired. Had thepetitioner not acquired post graduation in Marathi or for that matterobtained a degree of M.Sc. and then opted Marathi as the subjectfor methodology of school subject while pursuing B.Ed. the later on 01 04 2021 on 02 04 26 W.P. No. 10565 2015 position would not have been of any assistance to the petitioner forhe would not have the basic knowledge of the primary subject atgraduation or post graduation level. In the case at hand with apost graduation in Marathi the petitioner could not have beendisqualified on the count that he had not opted for Marathi as thesubject of methodology of school subject while pursuing B.Ed.34.The conspectus of aforesaid consideration is thattermination of the petitioner is legally unsustainable. Consequently the order of termination dated 12th of October 2013 thecommunication dated 23rd of July 2013 whereby the proposal forapproval to the appointment of the petitioner came to be rejected and the impugned judgment and order passed by the SchoolTribunal are liable to be quashed and set aside.35.The petitioner deserves to be reinstated in service.Having regard to the time lag and the attendant circumstances adirection for payment of 40%of the back wageswould meet the ends of justice. Hence the following order. O R D E R(I)The petition stands partly allowed.(II)The impugned judgment and order in Appeal No. 80 of on 01 04 2021 on 02 04 27 W.P. No. 10565 2015 2014 dated 29th April 2015 passed by the Presiding Officer School Tribunal Solapur stands set aside.(III)The order of termination dated 12th of October 2013 and the communication dated 23rd of July 2013 whereby the proposal for approval to the appointment of the petitioner came to be rejected stand quashed and set aside.(IV)The petitioner stands reinstated in service as a Shikshan Sevak with effect from 12th of October 2013 with all the consequential benefits and 40%back wages from the date of termination till the date of reinstatement.Rule made absolute in aforesaid terms.No costs. JUDGEMadkar |
If the accused refuses to offer an explanation or gives a dishonest response, it might be seen as supplying the missing link in the sequence of events: Gauhati High Court | The incriminating circumstances which point to the guilt of the accused had been put to him, yet he chose not to give any explanation under Section 313 Cr PC except choosing the mode of denial. It is well settled in law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer an appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances. The judgment was passed by the High Court of Gauhati in the case of Gonesh Bhomij v. State of Assam [CRL.A(J)/81/2018] by Division Bench consisting of Hon’ble Justice N. Kotiswar Singh & Justice Soumitra Saikia. The facts of the case are that an FIR was lodged brother of the deceased, that on the previous night her husband the appellant assaulted her and on proceeding to his sister’s place he found her lying dead inside the house, suspected of being killed by the appellant. Further, an investigation was accordingly carried out and on completion of the same, the appellant was charge sheeted. The prosecution examined 8 witnesses. The defence, however, denied the charges and did not adduce any evidence. The Ld. Sessions Judge on the basis of the testimonial and other evidences brought on record convicted the appellant under Section 302 IPC. The Learned Trial Court held that “it was proved beyond all reasonable doubts that on the day of occurrence, the appellant had hit the deceased on her mouth with a bottle and thereafter, threw her into a pond after which she died of drowning, which was corroborated by the medical evidence and accordingly, convicted the appellant under Section 302 of the IPC.” While clearing the question of burden of proof the court relied on State of Punjab v. Karnail Singh, wherein it was held that “the duty of the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” The court observed that where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. | Page No.# 1 20 HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) THE GAUHATI HIGH COURT Case No. : CRL.A(J) 126 2018 KAMESWAR MAJHI THE STATE OF ASSAM REP. BY PP ASSAM. Advocate for the Petitioner MR. S KHOUND AMICUS CURIAE Advocate for the Respondent : MR. M PHUKAN(ADDL.PP ASSAM) HONOURABLE MR. JUSTICE N. KOTISWAR SINGH HONOURABLE MR. JUSTICE SOUMITRA SAIKIA For the Appellant Mr. S. Khound Amicus Curiae. For the Respondent(s) Mr. M. Phukan Addl. P.P. Date of Hearing Date of Judgment 20.05.2021. 03.06.2021 Soumitra Saikia JUDGMENT & ORDER(CAV) Heard Mr. S. Khound learned counsel for the appellant Amicus Curiae appointed by the Court as well as Mr. M. Phukan learned Additional Public Prosecutor for the State of Assam. Page No.# 2 20 The present appeal has been preferred against the Judgment and Order dated 26.09.2018 passed by the learned Sessions Judge Dibrugarh in Sessions Case No. 132 2014 convicting the appellant under Section 302 IPC and sentencing him to undergo rigorous imprisonment for life and a fine of Rs.1 000 in default of payment of fine to undergo rigorous imprisonment for another 1(one) month. The prosecution’s case is that on 02.08.2006 at about 5:30 pm the accused Kameswar Majhi called one Ramu Bhumij his niece Pramila Bhumij and her husband Ramesh Bhumij to his house. He offered them a bench to sit in the courtyard of his house and asked them to prepare “sada” witnesses in support of their case as well as other evidences like Post mortem report inquest report sketch map and dead body challan etc. P.W.1 is the informant who is the elder brother of the deceased. In his deposition the P.W.1 stated that on the date of occurrence i.e. 02.08.2006 while he was in his house his sister in law i.e. wife of the deceased Ramu Bhumij informed him that Ramu Bhumij was cut and murdered by Kameswar Majhi. He then came to the house of the accused Kameswar Majhi and saw the dead body Page No.# 3 20 of the deceased Ramu Bhumij. The head of the deceased was separated from his body. He came to know from Ramu Bhumij that they saw the accused Kameswar Majhi assault Ramu Bhumij. P.W.1 informed the matter to the Gaon Bura of the locality on the same day and on the next day the FIR was lodged at Tengakhat Police Station which was written by one Inam Khan on his instructions and he had put his thumb impression on the FIR. P.W.1 deposed that the Police completed the inquest over the dead body of his deceased brother Ramu Bhumij and he identified the deceased as his brother. The Police thereafter took the dead body for Post mortem examination. In his cross examination P.W.1 stated that he was not the eye witness to the occurrence. The accused Kameswar Majhi is his neighbour. He stated that he did not personally know who committed the murder. He deposed that when he went to the place of occurrence it was dark and although he did not enter into the compound of the accused he had seen the dead body from 100(hundred) yards. It was dark and there was no electricity in the village but he saw the head in the body at a distance. He also deposed that he cannot say whether there was any quarrel between the accused and the deceased nor had he seen Ramu Bhumij at any time with the accused Kameswar Majhi. P.W.1 also denied a suggestion that the accused was falsely entangled with the case. From the deposition of the P.W.1 it is apparent that he is the elder brother of the deceased and a neighbor of the accused but he was not an eye witness to the offence committed. But he had seen the dead body with its head severed lying in the courtyard of the accused. P.W.2 Smt. Pramila Bhumij who is the niece of the deceased Ramu Bhumij. In her deposition she stated that while she was coming from her work the accused called her. Thereafter she along with her husband Ramesh the deceased Ramu Bhumij and her son went to the house of th e accused. The accused gave them a bench to sit into the courtyard of the house and the accused also offered them betel nut. When her maternal uncle the deceased Page No.# 4 20 Ramu Bhumij was preparing “sada”in his hands the accused was cutting fencing tree with a dao. Suddenly the accused attacked her maternal uncle the deceased Ramu Bhumij with a dao on his neck. In the assault the head of the deceased was severed and it fell to the ground. When the P.W.2 asked the accused as to what he had done the accused wanted to assault them also and therefore they fled away from the place of occurrence. She then informed the matter to the wife of the deceased. She informed her elder maternal uncle Sukhchand Bhumij who also went to the place of occurrence but the accused fled away from the place. In the cross examination P.W.2 stated that distance between her house and the house of the deceased is about 200 meters. There are houses of other persons on all the sides of house of the accused. After the incident she raised hue and cry but nobody from the surrounding houses assembled at the place of occurrence. She stated that the deceased used to take liquor and also prepare liquor in the house of the accused. But she does not have any relation with the accused nor did she used to talk with the wife of the accused. She denied the suggestions that the accused went to her house on the day of the occurrence or that the deceased misbehaved his wife very badly or that the deceased was also present in her house. She stated that when dead body of the deceased was lifted by her husband her maternal uncle and some other persons she saw a kopi dao about 1 ½ feet in length which is tagged inside the pant of the deceased. She further denied the suggestions that the accused was in the bari Garden Vegetation) and not in the courtyard. She also denied that she and others had proceeded to the house of the accused armed with dao in their hands and upon seeing them when the accused attempted to flee then her husband chased him and wanted to assault him with a dao but the dao blow instead fell on the deceased and as a result the deceased died. She admitted that although she did not see the accused striking the deceased with the dao but she heard sound of falling of the decapitated head of the deceased. She stated that after the occurrence she and her husband left their village and went Page No.# 5 20 to their parental house in Lejai and thereafter came to Dibrugarh and has been residing in Chiring Chapori Dibrugarh. She further denied the suggestions that the accused is an innocent person or that they had bad relationship with him. She specifically stated that she heard the sound of the falling head of the deceased on the ground although she did not see the accused striking the P.W.3 Ramesh Bhumij is the husband of the P.W.2. He also deposed that on the date of the occurrence at about 4:30 pm. He his wife accompanied by the deceased went to the house of the accused where they were offered a bench to sit in the courtyard. He deposed that he and the deceased were preparing “sada”with their hands and that the accused was cutting fencing tree by the side of his courtyard with a dao. He deposed that suddenly the accused dealt Ramu Bhumij the deceased a blow with the dao in his hands and as a result of which the head of the deceased was severed and it fell on the ground. Out of fear he and his wife fled away from the place of occurrence. They immediately reported the matter to the wife of the deceased as well as to the elder brother of the deceased. He deposed that he accompanied by one Lakhi Bhumij on the following day and went to the Tengakhat Police Station to inform the matter. Thereafter the police came to the place of occurrence and recorded his statements and conducted inquest over the dead body of the deceased in his presence. The police thereafter sent the body for post mortem. In his cross examination P.W.3 stated that the deceased used to make country liquor in the house of the accused sometimes. He stated that he as well as the deceased and the accused also used to drink liquor in the accused’s house sometimes. He also stated that he did not see the accused striking the deceased but he heard the sound of the head of the deceased falling on the ground and which is why he could not say who killed the deceased and caused his death. He stated that after the attack the accused also chased them and out Page No.# 6 20 of fear they fled away from the place of occurrence. He stated that there was no quarrel between the accused and the deceased and there was good relation between both of them. P.W.3 also stated that he saw some blood at the place of occurrence and on the dead body of the deceased. From the deposition it is seen that P.W.3 was also present at the place of occurrence and at the time of occurrence. In his deposition he stated that he did not witness the striking of the blows leading to the death of the accused but he had heard the sound of the head falling on the ground after it was decapitated from the body of the deceased because of the assault. It is also evident from the deposition of P.W.3 that the deceased P.W.3 and his wife P.W.2 were sitting on the bench and the deceased and the P.W.3 were preparing “sada”when the deceased was attacked from behind by the accused. It is also evident that the accused was cutting fencing tree with his dao near the courtyard. Besides the P.W.2 and P.W.3 there was the accused and the deceased who were present in the courtyard of the accused at the time of occurrence. From the deposition of P.W.2 and P.W.3 it is evident that at the time and place of occurrence the accused had a dao and he was attending to the fencing tree in the courtyard just prior to the occurrence. 13. P.W.4 the Investigating Officer deposed that after receipt of the FIR it was registered as Tengakhat P.S. Case No. 61 2006 under Section 302 IPC and endorsed to him to investigate the case. He went to the place of occurrence with his staff and he found the beheaded body. The head of the deceased was lying on the ground and the torso was lying on the wooden bench. Inquest was completed by the Circle Officer on the body in the presence of witnesses and he completed the sketch map. He identified the inquest report and the sketch map in his deposition. He further deposed that the body was sent for post mortem examination and report was accordingly collected. He deposed that the accused evaded his arrest on several occasions and accordingly charge sheet was filed showing him as an absconder. In his cross examination he stated that he had Page No.# 7 20 noted the names of the persons who were present there namely Sukchand Bhumij Ramesh Bhumij Pramila Bhumij Lakhi Bhumij and Sukra Majhi. He deposed that besides the severed head and the torso which was lying on the bench he did not see anything from the place of occurrence. He deposed that there was blood stain on the ground and he did not find any dao inside the clothing of the deceased. In his cross examination he declined the suggestion that the accused was falsely implicated in the case. He also stated that all the witnesses are related families and he did not record the statement of any independent witness. He also declined the suggestion that the dead body of the deceased was not found in the compound of the accused. P.W.5 is the medical expert who conducted the post mortem. P.W.5 Dr. Hemanta Kumar Mahanta was posted in the Department of Forensic Medicine in the Assam Medical College Dibrugarh during the period of occurrence and he conducted the post mortem on the deceased. He deposed that the Post mortem report was present in the evidence during the trial. In the report he has stated that one beheaded body with the head separated by cut injury on the neck was presented for post mortem. All the clothes on the body were blood stained. While examining the injuries he had stated in the post mortem report that the head was separated by three blows from a “heavy sharp cutting weapon”. He had also opined that when taken together the separated head and the body were found fit each other both anatomically and in complexion. In his cross examination the Medical expert stated that he had not sent the blood samples of the body and the head as to whether the blood belongs to the same person. The Medical expert further deposed that he had not done the further investigation to affirm that the head belongs to the body as it was necessary according to his opinion. In the examination of the accused under Section 313 Cr.P.C. the accused Page No.# 8 20 stated that he was not at homeand that he did not kill the accused. The accused stated that there was a quarrel between his wife and Pramila Bhumij and that P.W.2 went and called Ramu Bhumij the deceased to his house. When he reached he saw Ramu Bhumij in his house and there was a fight between P.W.3 and his wife and then his wife asked him to flee and he went away. He stated that he did not know how the incident took place. Besides the said explanation the accused did not have anything to say to any of the eight questions put to him by the Sessions Judge. He merely stated that he was innocent and that did not kill the deceased. 16. On these evidences which were presented during the trial the Sessions Judge convicted the appellant under Section 302 IPC sentencing him to undergo rigorous imprisonment for life and a fine of Rs.1 000 and in default of payment of fine to undergo rigorous imprisonment for another 1(one) month. The Sessions Judge did not consider the case to be within the category of rarest of the rare cases and therefore declined to pass an order of death sentence. Mr. S. Khound learned Amicus Curiae submits that a perusal of the evidence before the trial Court reveals that the murder weapon was never recovered and consequently the same could not be sent for proper examination which can point to the guilt of the accused. He referred to the evidences of P.W.3 to submit that no blood stains were seen at the place of the occurrence nor were any blood stains were noticed on the clothes of the deceased. He refers to the post mortem report and the medical opinion to submit that the victim’s head was severed after three heavy blows with the help of the sharp weapon. The learned Amicus Curiae referring to the medical opinion and Post mortem report that three blows by sharp weapon were dealt on the deceased which resulted in the head being severed from the torso it is unbelievable as to why the witnesses who claimed to be present in the place of occurrence did not witness the alleged assault by the accused. He submits that when three blows Page No.# 9 20 were effected on the deceased by the accused as per the post mortem report and the P.W.2 and P.W.3 claimed to be sitting on the bench with the deceased it is impossible for them not to have witnessed an eye account of the alleged assault made by the accused upon the deceased. That apart there were several houses situated in the surroundings the house of the accused and in her evidence P.W.2 deposed that she raised a hue and cry after the incident but none of the people nearby came out and that P.W.2 and P.W.3 also fled away from the place of the occurrence immediately after the incident does not inspire any confidence and thereafter such testimony of the P.W.2 and P.W.3 ought not to have been relied upon to arrive at a conclusion towards the guilt of the accused leading to his conviction. The learned Amicus Curiae also pointed out that the only weapon which was stated to be present at the time of occurrence was a Kopi dao which is about 1 ½ feet and which was stated to have been tagged on the clothing of the deceased. Referring to all these evidences the learned Amicus Curiae submits that the trial Court convicted the accused solely on the circumstantial evidence and that there was no eye witness to the incident alleged. He further submits that the depositions of P.W.2 and P.W.3 are unreliable in view of the discrepancies pointed out hereinabove. He further referred to the medical opinion and submits that since further medical investigation relating to the blood stains found on the victim’s body were not examined and which in the opinion of the medical expert was necessary to ascertain as to whether the blood stains on the body and the head belonged to the same person the medical evidence presented during trial cannot be relied upon to prove the guilt of the accused. He also submitted that non recovery of the murder weapon namely “a heavy sharp cutting weapon” used allegedly by the accused to decapitate the deceased was fatal to the prosecution inasmuch as there were no eye witnesses to the assault alleged to have been committed by the deceased. 19. Mr. Khound learned Amicus Curiae therefore submits that this is a case Page No.# 10 20 where the impugned judgment needs to be interfered with as the conviction solely based on circumstantial evidences failed to point towards the guilt of the accused beyond reasonable doubt and that to without recovery and production of the murder weapon. In support of his contentions Mr. Khound learned Amicus Curiae relies on the Judgment of the Supreme Court in Chandubhai Shanabhai Parmar vs State of Gujarat reported in AIR 1982 SC 1022. Mr. Khound learned Amicus Curiae submits that Apex Court in the said judgment had held that when ocular evidence is unreliable then the chain of circumstances is not completed to base a conviction solely on circumstantial evidences. Mr. Khound learned Amicus Curiae for the appellant submits that out of the five witnesses P.W.1 to P.W.3 are near relations of the deceased. Accordingly being relatives their depositions cannot be safely relied upon solely to point the guilt to the accused more particularly in a case where there are no eye witnesses or where the murder weapon is not recorded. The learned Amicus Curiae also submits that the prosecution also failed to attribute any notice to the accused. As such in the absence of any notice attributed to the accused the conviction of the accused based solely on circumstantial evidence could not have been maintained by the learned Sessions Judge. The learned Amicus Curiae submits that the impugned judgment of the learned Sessions Judge Dibrugarh be interfered with and be set aside and the accused be released from Per contra Mr. M. Phukan learned Additional Public Prosecutor submits that there is no infirmity in the appreciation of evidence by the trial Court which requires any interference by this Court at the Appellate stage. He refers to the testimony of P.W.3 in the cross examination to submit that the P.W.3 in his cross examination stated that when he went to the house of the accused there was no other person present. At the time of his arrival accompanied by P.W.2 and the wife of the deceased the accused was cutting fencing tree with long Page No.# 11 20 handle Mechi dao. 23. Mr. Phukan learned Additional Public Prosecutor submits that although the P.W.3 and as also P.W.2 did not witness the assault on the deceased by the accused on the date of occurrence they have both heard the sound and had seen the severed head falling on the ground. 24. Mr. Phukan learned Additional Public Prosecutor submits that it is evident from the perusal of the depositions of the witnesses that the witnesses had given their depositions after about 9 or 10 years after the incident had taken place. He therefore submits that these depositions were given by the witnesses recollecting the sequence of the events from their memories. Therefore there may be minor discrepancies in the narration of the sequence of the events in the depositions of the witnesses which ought to be ignored. He submits that such discrepancies will not scuttle the prosecution’s case against the accused. In this regard he relies on the judgment of the Supreme Court in the case of Kishan Narain vs State of Maharashtra reported in3 SCC 368 para 9. Mr. Phukan further submits that the Apex Court in this judgment held that when depositions are made by witnesses from their memory some discrepancies in the sequence of events are not to be considered fatal for the prosecution. 25. With regard to the submissions of the learned Amicus Curiae that the to P.W.3 are related witnesses of the deceased and therefore conviction based solely on their depositions is unfair and not reliable the learned Additional Public Prosecutor submits that where other independent witnesses are not available and if the depositions of these witnesses even though related would be necessary when P.W.2 and P.W.3 as submitted above were present at the place of occurrence and at the time of occurrence. They are the most natural witnesses in the facts of the present case. Mr. Phukan learned Additional Public Prosecutor submits that the Supreme Court has held that where related witnesses are natural witness their Page No.# 12 20 depositions can be safely relied upon. He refers to the judgment of the Apex Court rendered in the State of Rajasthan Vs Smt. Kalki and Anr. reported in 1981) 2 SCC 752 para 7. He further submits that it is the quality of testimony of the witnesses which are more relevant rather than the quantity. It is his submission that where there is a quality in the testimony even in a case of single witness the same will be sufficient to rely upon for the trial Court for the purposes of conviction of an accused. He submits that where the ocular evidence is duly supported by the injuries in the post mortem report and the evidence of the medical expert then such ocular evidences duly corroborated by the medical evidences can be relied upon by the trial Court for conviction. For this purpose the learned Additional Public Prosecutor relies upon the case of Chittar Lal vs State of Rajasthan reported in6 SCC 397 PARA 7 Kishan Ram and Ors. vs State of Uttarakhand reported in16 SCC 383 para 22 Solanki Chimanbhai Ukabhai vs State of Gujarat reported in2 SCC 174 para 13. Mr. Phukan learned Additional Public Prosecutor further submits that non recovery of the murder weapon is not always fatal to the prosecution more particularly where there are direct evidence available. He submits that where the testimony of the witnesses are sufficiently corroborated by medical evidences non recovery of the murder weapon will not be fatal to the prosecution’s case. In support of the submission Mr. Phukan relies upon the judgment of the Apex Court in the Pradumansinh Kalubha vs State of Gujarat 19922 SCC 62 para 19. Mr. Phukan learned Additional Public Prosecutor also submits that absence of the motive should also not be a ground to discard ocular evidences available. He refers two judgments of the Supreme Court to support the lack of motive is not always fatal to the prosecution’s case. He refers two judgment of the Apex Court in the case of Bipin Kumar Mondal vs State of West Bengal reported in12 SCC 91 para 24 Solanki Chimanbhai Ukabhai vs State of Gujarat reported in2 SCC 174para 13 . Page No.# 13 20 Mr. Phukan learned Additional Public Prosecutor submits that the prosecution has established its case against the accused notwithstanding the non recovery of the murder weapon and notwithstanding that the P.W.1 to P.W.3 are related witnesses to the deceased. He also submits that the doctrine of presumption viz a viz the burden of proof should not be pedantic as held by the Supreme Court in the case of State of West Bengal vs Mir Mohammad Omar and Ors. reported in8 SCC 382 para 31. On the above premises it is necessary to examine the judgment of the trial Court which has been assailed in the present Criminal Appeal will have to be examined. The case put up by the prosecution is that on 02.08.2006 at about 5:30 pm.the deceased was assailed by the accused in the courtyard of the house of the accused. As a subsequent to the fatal blows the head of the deceased was severed from his torso and the accused was killed instantaneously. Although there are no specific eye witnesses to the accused causing the fatal blows dealt upon the deceased by the accused that the murder weapon P.W.2 and P.W.3 who are the niece and her husband of the deceased were present in the courtyard of the accused’s residence at the time of the occurrence. As is revealed from the testimony the deceased P.W.2 and P.W.3 were sitting on the bench offered by the accused in their courtyard and the P.W.3 were preparing “sada”for the purposes of betel nut. Although P.W.2 and P.W.3 did not witness the actual fatal blow dealt upon the deceased by the accused they heard the sound of the head falling on the ground and saw the body torso of the deceased fall on the ground. The further testimony is that when they enquired from the accused as to what he had done they were also sought to be assaulted by the accused with a dao and therefore they fled away from the scene and thereafter informed the wife of the deceased and elder brother of the deceased about the incident. It is further seen from the testimony of P.W.2 and P.W.3 that when they were Page No.# 14 20 present in the courtyard of the accused the accused was seen cutting fencing trees with a dao. Therefore although P.W.2 and P.W.3 did not witness the actual blow with the murder weapon dealt upon the deceased by the accused there is no denial of the fact that they were present at the place of occurrence on the date and time of occurrence. It is also not disputed that the deceased was assaulted in the courtyard of the accused’s residences. 31. During his statements under Section 313 Cr.P.C. on the questions put to him the accused merely denied that he had committed the crime and that he was innocent but he did not offer any explanation as to who could have severed the deceased’s head or how the death of deceased was caused in the courtyard of the accused’s residence. The accused also stated in his 313 statements that he was not present in the house at the time of incident and that when he reached the house he found the deceased and P.W.2 and P.W.3 along with his wife. He stated that his wife told him that P.W.2 had quarreled with her and that he was asked to flee from the place. Accordingly he fled away from his residence and therefore he does not know how the incident occurred. Such explanation sought to be offered by the accused in his statements under Section 313 Cr.P.C. does not inspire any confidence at all that the accused was not guilty of the offence. The defence has also not been able to dislodge the testimony of P.W.2 and P.W.3 in their cross examination. The testimonies of all the witnesses examined i.e. P.W.1 P.W.2 and P.W.3 reveal that the incident of assault of the deceased did take place on the date and time of occurrence stated as well as at the place of occurrence namely the courtyard of the accused. The defence has not been able to put up any explanation as to how the death occurred in his house when he was present. It had taken place in his courtyard. The defence has also not been able to explain as to why the wife of the accused should ask the appellant to flee from the place that is his house. It defies common sense that the appellant should flee from his own house when there was a quarrel in his house of his wife with some others unless he was threatened of which there is no explanation or evidence. Page No.# 15 20 P.W.2 is the star witness of the prosecution. Although she did not specifically witness the accused striking the deceased but she her husband the deceased and the accused were all in the courtyard of the accused’s house. After the attack on the deceased by the accused she heard the sound of the head of the deceased falling on the ground after the assault by the accused. For all practical purposes she is an eye witness to the entire incident even though she may not have witnessed the actual striking of the head by the dao but she heard the sound of the head falling and saw the severed head immediately after the assault. Although some deficiency may be noted in the manner of examination conducted by the medical expert the fact remains that the medical expert opined deposed that the head and the body were found to fit each other both anatomically and in complexion and that all its internal organs were healthy and Considering all the evidences which were adduced before the trial Court it cannot be said that there were material discrepancies in the testimony of the witnesses to such an extent that it cannot be relied upon and accepted. The evidences adduced by the prosecution witness read with the injury report there can be no other explanation other than the guilt of the accused. The testimony of the witnesses was duly corroborated by the Medical evidence and the Post mortem report which point towards the guilt of the accused. Insofar as the absence of motive is concerned it cannot be accepted th at motive was totally absent inasmuch as the accused in his statement recorded under Section 313 Cr.P.C. has stated that when he had returned home he saw that there was a quarrel between his wife and P.W.3. He also saw the deceased being present in the house at the time of occurrence. However when asked by his wife to leave the place he left the place of occurrence. That apart P.W.3 in his deposition has stated that the deceased used to make country liquor in the house of the accused. It is not explained by the accused and or put up by the Page No.# 16 20 defence as to the cause of the quarrel between the wife of the accused and P.W.2 on the date of occurrence. What is established is that there was a quarrel and that his wife asked him to leave the place. Even assuming that there was no motive the facts which are evident from the testimony of the witness is that the deceased was assaulted because of which his head was severed from the torso and he died instantaneously. The occurrence took place on 02.08.2006 at 5:30 p.m. in the courtyard of the accused. In this context the judgment of the Apex Court in the case of Bipin Kumar Mondal Vs State of West Bengal reported in 2010)12 SCC 91 may be referred to. The relevant paragraph is extracted hereinbelow: “24. It is settled legal proposition that even if the absence of motive as alleged is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore in case there is direct trustworthy evidence of witnesses as to commission of an offence the motive part loses its significance. Therefore if thegenesis of the motive of the occurrence is not proved the ocular testimony of the witnesses as to the occurrence could not be discarded only by the reason of the absence of motive if otherwise the evidence is worthy of reliance.9 SCC 40 : 1996 SCC913] Bikau Pandey v. State of Bihar12 SCC 616 : 2004 SCCSupp 535] and Abu Thakir v. State of T.N.5 SCC 91 :2 SCC1258]).” emphasis supplied) Insofar as the non recovery of the murder weapon is concerned as the accused was seen attending to cutting fencing tree in his courtyard just immediately proceeding occurrence although P.W.2 and P.W.3 did not see the actual assault on the deceased by the accused they were present in his courtyard at the time of occurrence. They had heard the sound of the head falling on the ground and had seen the head being severed from the body. The medical staff also points to the fact that the head and the torso are found to fit over both anatomically and in complexion. In view of the above facts which were brought out during the trial from the testimony of the witness the non recovery of the murder weapon cannot be Page No.# 17 20 considered to be fatal so as to demolish the case of the prosecution. The Apex Court in the case of Pradumansinh Kalubha Vs State of Gujarat reported in 1992 SuppSCC 62 as held in respect of non recovery of murder weapon as under: “19. According to the learned counsel the absence of blood onthe spot near the Haresh Stores the absence of blood in the weapon seized throws doubt on the credibility of the investigation. The failure to examine non Harijan witnesses is also commented upon amounting to suppression of material evidence. The nature of the injuries sustained by the deceased and the medical evidence justify the inference that there would not have been the possibility of any blood stain remaining on the spot for the injured was immediately removed from there and the place is one trampled upon by the public. It is quite possible that a large crowd gathered at thescene immediately after the occurrenceand if no blood could be detected by the Inspector it is not possible to infer that the incident did not happen at the spot. The presence of blood in the weapon is also of no consequence and no incriminating statement has been made by the accused on the production of the same. In a case where there is direct evidence even the seizure of the weapon is not very material.” emphasis supplied) Insofar as the testimony of P.W.1 P.W.2 and P.W.3 are concerned the learned Amicus Curiae raised a plea that they being related witnesses the conviction ought not to have been based solely on their testimony. Such submission of the learned Amicus Curiae cannot be accepted in view of the fact that testimony of P.W.2 and P.W.3 has not been dislodged during the cross examination by the defence. The testimony of the P.W.1 P.W.2 and P.W.3 in respect of the recovery of the body of the deceased along with severed head of the deceased from the courtyard of the house of the accused is also supported by the evidence of Investigating Officer P.W.4. The testimony of P.W.2 and P.W.3 in respect of the events immediately after the assault by the accused has also not been dislodged by the defence in their cross. The medical evidence and the post mortem further corroborate the testimony of P.W.2 and P.W.3 in respect of the fact that the deceased was assaulted and in consequence thereof his head was severed from his body and that they had heard the sound and had also Page No.# 18 20 seen the head of the deceased falling on the ground after the assault. Such testimony of the P.W.1 P.W.2 and P.W.3 which could not be dislodged by the defence during the trial cannot be disbelieved merely because the said witnesses are related to the deceased. From the testimony of P.W.2 and P.W.3 it is seen that they are the most natural witnesses to the assault of the deceased by the accused in his courtyard. In this context the judgment of the Apex Court in the case of Bhudeo Mandal and Ors. Vs State of Bihar reported in2 SCC 752 is relevant: “7. As mentioned above the High Court has declined to rely on the evidence of PW 1 on two grounds:she was a “highly interested” witness because she “is the wife of the deceased” andthere were discrepancies in her evidence. With respect in our opinion both the grounds are invalid. For in the circumstances of the case she was the only and most natural witness she was the only person present in the hut with the deceased at the time of the occurrence and the only person who saw the occurrence. True it is she is the wife of the deceased but she cannot be called an “interested” witness. She is related to the deceased. “Related” is not equivalent to “interested”. A witness may be called “interested” only when he or she derives some benefit from the result of a litigation in the decree in a civil case or in seeing anaccused person punished. A witness who is a naturalone and is the only possible eyewitness in the circumstances of a case cannot be said to be “interested”. In the instant case PW 1 had no interest in protecting the real culprit and falsely implicating the emphasis supplied) As discussed above in respect of the incident on the date and time of occurrence when questions are put by the trial court to the accused under Section 313 Cr.P.C. the accused in his reply could not furnish any explanation which could have raised a doubt regarding his convictions. In spite of specific queries being put up by the trial Court to the accused the accused merely maintained a stoic denial. The accused attempted to project that there was a quarrel between his wife and P.W.2 when he was not at home. However when he reached home he saw the quarrel between his wife and P.W.2 and he also saw the deceased in his residence. Thereafter on his wife asking him to free he Page No.# 19 20 fled away and therefore he does not know how the incident took place. Such explanation sought to be offered by the accused will not inspire confidence inasmuch as even assuming that the accused did not assault the deceased the recovery of the cadaver of the deceased and his severed head from his courtyard by the police has not been explained by the accused in his statement under Section 313 Cr.P.C. There is also no denial that the accused was cutting fencing tree on the date and time of the incident in his courtyard. In this context the Apex Court has in the judgment has laid down the principle that lack of motive and or non recovery of the murder weapon is not fatal to the prosecution in all circumstances. In this context the judgment of the Hon’ble Supreme Court in the case of Solanki Chimanbhai Ukabhai Vs State of Gujarat reported in2 SCC 174 has held as under: 13. Ordinarily the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical emphasis supplied) In view of all the above discussions we find no infirmity in the impugned judgment rendered by the learned Sessions Judge Dibrugarh in Sessions Case No. 132 2014 convicting the accused appellant under Section 302 IPC and sentencing him to undergo rigorous imprisonment for life and a fine of Rs.1 000 in default of payment of fine to undergo rigorous imprisonment for another 1(one) month. Accordingly the instant Jail Appeal is dismissed as being found to be devoid of any merit. The Registry is to send back the trial Court records. Page No.# 20 20 Comparing Assistant |
Communicating the ground to the detenu enables him to make effective representations. : Jammu & Kashmir High Court | The phrase ‘communicate’ is a strong one, implying that a sufficient understanding of the fundamental facts underlying the ‘grounds’ should be conveyed to the detainee in writing in a language he understands. The entire point of presenting the ‘grounds’ to the detainee is to allow him to make a useful and effective representation. If the ‘grounds’ are only verbally given to the detainee and no written documentation in a language he knows is left with him, the goal is not served, and the constitutional duty in Article 22(5) is violated, this was mentioned by Justice Ali Mohammad Magrey in the matter of Tanveer Ahmad Seergojri versus Union Territory of Jammu & Kashmir and ors. This order was passed when The petitioner-detenu has challenged the order of detention on the following grounds – a) that no compelling reason or circumstance was disclosed in the order or grounds of detention to take the detenu in preventive detention, more so in view of the fact that as on the date of passing of the aforesaid order of detention, the detenu was already in custody; b) that the detenu has not been provided the material forming basis of the detention order, to make an effective representation against his detention order; c) that the impugned order has been passed without proper application of mind. Respondents were given notice. They appeared through their lawyers and filed a rebuttal affidavit arguing that the detention order is well-founded in fact and law and that the Habeas Corpus Petition should be dismissed. The detenu’s learned counsel has argued that the grounds set forth in the detention order, as well as the material referred to and relied upon, are irrelevant because the detenu was already in custody, and thus there is no risk of the detenu being implicated in activities that are harmful to the public at large. It is argued that in the absence of material, the detention order is based solely on the detaining authority’s ipsidixit, and hence the detention order is illegal. In order to bolster his argument, learned counsel for the petitioner referred to and relied upon on T. V Sravanan Alias S.A.R Prasana v. State through Secretary and anr. (2006) 2 Supreme Court Cases 664. In terms of the ground asserted, namely, non-communication of the grounds of detention, a review of the file reveals that there is no evidence or suggestion that the grounds of detention, which are couched in English, were explained to the detainee in a language he understood, as there is no evidence to that effect on record. According to the Supreme Court’s decision in “LallubhaiJogibhai Patel v. Union of India, (1981) 2 SCC 427,” the detainee did not speak English, even though the grounds of detention were written in English, and an affidavit filed on behalf of the detaining authority stated that the grounds of detention were fully explained to the detainee while serving. However, the Supreme Court ruled that this was insufficient compliance with Article 22(5), which mandates that the detainees be informed of the reasons for their custody. | Tanveer Ahmad Seergojri vs Union Territory Of J&K And Ors on 14 June 2021 Jammu & Kashmir High Court Srinagar Bench Tanveer Ahmad Seergojri vs Union Territory Of J&K And Ors on 14 June 2021 1 Sr 501 AN HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR No. 458 2020 Reserved on 03.06.2021 Pronounced on 14.06.21 Tanveer Ahmad Seergojri ...Petitioner Through: Mr. Hilal Ahmad Wani adv vs Union Territory of J&K and ors ....respondents Through : Mr. Mir Suhail AAG Coram: Hon ble Mr. Justice Ali Mohammad Magrey JUDGMENT 1. Detenu Tanveer Ahmad Sheergojri son ofGulzar AhamdSheergojriresident of CheckporaNewa Tehsil Pulwama District Pulwama through hisfather seeks quashment of detention order no 39 DMP PSA 19 dated 07.08.2019 purporting to have been passed by District Magistrate Pulwama with consequent prayer for release of the detenu forthwith 2. The petitioner detenu has challenged the order of detention on the following grounds a) that no compelling reason or circumstance was disclosed in the order or grounds of detention to take the detenu in preventive detention moreso in view of the fact that as on the date of passing of the aforesaid order of detention the detenu was already in custody b) that the detenu has not been provided the material forming basis of the detention order to make an effective representation against his detention order c) that the impugned order has been passed without proper application of mind 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 law and seeks Indian Kanoon Tanveer Ahmad Seergojri vs Union Territory Of J&K And Ors on 14 June 2021 dismissal of the Heabus Corpus Petition 4. Heard learned counsel for the petitioner detenu as well as the learned counsel for the respondents perused the writ records 5. Learned counsel for detenu has submitted that the grounds taken in the detention order and the material referred to and relied upon has no relevance becausethe detenu was already in custody therefore there is no possibility that the detenu be implicated in the activities prejudicial to the public at large. It is submitted that in absence of material the detention order is passed on mere ipsidixit of detaining authority therefore the detention order is bad in law. Learned counsel for petitioner has in order to strengthening his submission referred to and relied upon2 Supreme Court Cases 664 titled T. V Sravanan Alias S.A.R Prasana v. State through Secretary and 6. The only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention including the materials considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. Since the material is not supplied to the detenu the right of the detenu to file such representation is impinged upon and the detention order is resultantly vitiated. Judgements on this point both of the Supreme Court and of various High Courts including our own High Court are galore. I may refer to one such judgment of the Supreme Court herein. In Ibrahim Ahmad Batti v State of Gujarat 3 SCC 440 the Apex Court relying on its earlier judgments in Khudiram Das v State of W. B. 2 SCR 81 Icchu Devi Choraria v. Union of India 4 SCC 531 in paragraph 10 of the judgment has held as under Two propositions having a bearing on the points at issue in the case before us clearly emerge from the aforesaid resume of decided cases:all documents statements and other materials incorporated in the grounds by reference and which had influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenualongwith the grounds or in any event not later than 5 days ordinarily and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention andall such material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of the two duties cast on the detaining authority under Article 22(5) of the 7. In Khudiramcasethe Apex Court has explained what is meant by grounds on which the order is made in context of the duties cast upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5 8. In Smt. Icchu Devi Casethe Supreme Court has taken the view that documents statements and other materials referred to or relied upon in the grounds of detention by the Indian Kanoon Tanveer Ahmad Seergojri vs Union Territory Of J&K And Ors on 14 June 2021 detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference and the right of the detenu to be supplied copies of such documents statements and other materials flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention because unless the former right is available the latter cannot be meaningfully 9. 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 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 10. In view of the law laid down by the Apex Court in aforesaid cases vitiates the detention order as not amounting to effect communication of grounds and resultant deprivation of the right to make representation against the same 11. Examining the present case on the touch stone of the above settled position of law and perusal of record the detenu was not supplied the materials relied upon by the detaining authority. The detenu was provided material in the shape of grounds of detention with no other material documents as referred to in the order of detention. On these counts alone the detention of the detenu is vitiated the detenu having been prevented from making an effective and purposeful representation against the order of detention 12. Accordingly the detention order No.39 DMP PSA 19 dated 07.08.2019 is quashed and the detenu Tanveer Ahmad Sheergojri son of Gulzar Ahamd Sheergojri resident of Checkpora Newa District Pulwama is directed to be released from preventive custody forthwith. No order as to costs Indian Kanoon Tanveer Ahmad Seergojri vs Union Territory Of J&K And Ors on 14 June 2021 13. Registrar Judicial to send a copy of this order to Director General of Prisons and also concerned Jail authorities for compliance by the mode available Ali Mohammad Magrey) Judge Srinagar 14.06.2021 Syed Ayaz Hussain Secretary i) Whether order is speaking: Yes No ii) Whether order is reportable: Yes No Judgment pronouncement by me today the 14th June 2021 in terms of Rule 138(3) of J&K High Court Rules 1999 Sanjeev Kumar) Judge MOHAMMAD YASIN DAR 2021.06.14 13:40 I attest to the accuracy and integrity of this document Indian Kanoon |
The date of issuance of a Letter of Acceptance has to be taken as day “zero” and not day “one”: High Court of Delhi | The legal position that emerges is that law disregards fractions. While calculating the number of days, the fraction of a day has not to be counted. If anything is to be done within a certain time of, from, or after the doing or occurrence of something else, the day on which the first act or occurrence takes place is to be excluded from the computation. This was held in M/S JAI DURGA ENTERPRISES. V. UOI & ORS.. [W.P.(C) 7611/2020] in the High Court of Delhi by a single bench consisting of JUSTICE SANJEEV SACHDEVA. The facts are that the Petitioner was a successful bidder and was awarded a contract. Later he was given a termination letter which rescinded the contract on the ground that he had failed to submit the required performance guarantee after 60 days from the issue of the Letter of Award. Resultantly every partner, as well as the partnership firm, was debarred from participating in the re-tendering process and the earnest money that was deposited was forfeited. The counsel for the petitioner submitted that the termination is bad in law as the performance guarantee was submitted within time, the termination on the ground that it was not submitted even after 60 days is bad in law and the consequential debarment of the petitioner and the proprietor, as well as the forfeiture of the earnest money deposit, should be set aside. The counsel for the respondent submitted that in terms of the Letter of Acceptance, the performance guarantee was to be submitted within 21 days, which was extendable to 60 days by the competent authority and since the petitioner had failed to submit the performance guarantee within 60 days, the contract was rightly terminated and petitioner was debarred whilst the bank guarantee was forfeited. The court made reference to the judgment of Apex Court in Tarun Prasad Chatterjee Vs. Dinanath Sharma., wherein it was held that “Expressions such as ‘from such a day’ or ‘until such a day’ are equivocal since they do not make it clear whether the inclusion or the exclusion of the day named may be intended. As a general rule, however, the effect of defining a period in such a manner is to exclude the first day and to include the last day”. The court also made reference to the judgment of Apex court in M/s. Econ Antri Ltd. Vs. Rom Industries Ltd. & Anr., wherein it was held that “…day from which such period is to be reckoned is to be excluded for calculating limitation….However, since, in the instant case we have reached a conclusion on the basis of Section 9 of the General Clauses Act, 1897 and on the basis of a long line of English decisions that where a particular time is given, from a certain date, within which an act is to be done, the day of the date is to be excluded.” | IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 24.05.2021 W.P.(C) 7611 2020 & CM. APPLS. 25237 2020 & 13915 2021 M S JAI DURGA ENTERPRISES ….. Petitioner UOI & ORS. Advocates who appeared in this case: For the Petitioner: Mr. Saurabh Bajaj Advocate. For the Respondent: Ms. Rashmi Malhotra Advocate for the Respondents. CORAM: HON’BLE MR. JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J.The hearing was conducted through video conferencing. Learned counsel for respondent submits that reply to CM Application No.13915 2021 diary No. E 380690 2021 on 22.05.2021. However the same is not on record but a copy has been furnished on the e mail of the Court Master. The same is taken on record. The Registry is also directed to place the reply on record. W.P.(C) 7611 2020 1 Learned counsel submits the reply along with documents be read in addition to the short reply to the writ petition filed by the respondents. letter dated 18.08.2020 whereby the contract awarded to the petitioner has been rescinded on the ground that he has failed to submit the requisite performance guarantee even after 60 days from the issue of Letter of Awardi.e. 03.01.2020 and further every member partner as an individual or as a partnership firm joint venture has been debarred from participating in the re tendering process and the earnest money deposit forfeited. Learned counsel for the petitioner submits that the termination is bad in law inasmuch as the performance guarantee was submitted on the 60th day and not on the 61st day as alleged by the respondents. He submits that since the performance guarantee was submitted within time the termination on the ground that it was not submitted even after 60 days is bad in law and the consequential debarment of the petitioner and the proprietor as well as the forfeiture of the earnest money deposit is liable to be set aside. Learned counsel appearing for the respondent submits that the performance guarantee was submitted on the 61st day from the date of issuance of the Letter of Award and not on the 60th day as W.P.(C) 7611 2020 2 alleged by the counsel for the petitioner. She submits that in terms of the Letter of Acceptance the performance guarantee was to be submitted within 21 days which was extendable to 60 days by the competent authority and since the petitioner had failed to submit the performance guarantee within 60 days respondents had rightly terminated the contracted debarred the petitioner and forfeited the bank guarantee. The facts leading to the present petition are that on 26.07.2019 a notice inviting bids was issued by the respondent for indoor and outdoor RRI Signalling work at B Panel and addition and alternation at Anand Vihar station in connection with part commissioning of 3rd and the 4th line between Sahibabad Anand Vihar in Delhi Division of Northern Railway. Petitioner submitted his bid and his bid was accepted and a Letter of Acceptance dated 03.01.2020 was sent by e mail on 03.1.2020 at 15:16:31. The admitted position is that as per the Letter of Acceptance the performance guarantee was to be submitted as per the General Conditions of Contracttender document. 10. As per the General Conditions of Contract the successful bidder had to submit a performance guarantee within 21 days from the date of issue of Letter of Acceptance 7611 2020 3 submission of performance guarantee beyond 21 days and upto 60 days from the date of issue of Letter of Acceptance can be given by the authority who is competent to sign the contract again. However a penal interest of 12% per annum is to be charged for the delay beyond 21 days. It further provides that in case the contractor fails to furnish the requisite performance guarantee even after 60 days from date of issue of LOA the contract is liable to be terminated and the earnest money deposit forfeited. 11. The admitted position is that the petitioner submitted the performance guarantee on 03.03.2020. 12. The Letter of Award was issued on 03.01.2020 at 3.16 P.M.. Though the contention of learned counsel for the petitioner is that the document was first viewed only on 04.01.2020 at 10.56 P.M. It will not make a difference as to whether petitioner read the email on 03.01.202.01.2020. The crucial fact would be as to when the e mail was sent by the Respondent and received by the petitioner. Admittedly the e mail was sent and received on 03.01.2020 at 3.16 P.M. Thus the date of issuance of Letter of Acceptance would have to be taken as 03.01.2020. 13. The issue that arises for consideration is as to whether the performance guarantee has been furnished on the 60th day or the 61st day. To determine the said issue the question that falls for W.P.(C) 7611 2020 4 determinations is as to whether 03.01.2020has to be considered as day “one” or day “zero” for the purposes of calculating 60 days. If the date of issuance of Letter of Awardis to be taken as day “one” then the performance guarantee which was submitted on 03.03.2020 would have been submitted on 61st day i.e. beyond the stipulated period provided by the General Conditions of Contractof the contract. In case 03.01.2020 is to be taken as day “zero” then the performance guarantee was submitted on the 60th day and consequently the termination would not be sustainable. 15. Section 9 of the General Clauses Act 1897 reads as under: “9. Commencement and termination of time.— 1) In anyor Regulation made after the commencement of this Act it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time to use the word “from” and for the purpose of including the last in a series of days or any other period of time to use the word “to”. 2) This section applies also to all made after the third day of January 1868 and to all Regulations made on or after the fourteenth day of January 1887.” In terms of Section 9 of the General Clauses Act if the expression “from” has been used then for the purposes of computing W.P.(C) 7611 2020 5 time the first in series of days has to be excluded. 17. The Supreme Court in Tarun Prasad Chatterjee Vs. Dinanath Sharma 8 SCC 649 has held as under: “10. Section 9 of the General Clauses Act 1897 gives statutory recognition to the well established principle applicable to the construction of statutes that ordinarily in computing the period of time prescribed the rule observed is to exclude the first and include the last day. 11. p. 92 it is stated as follows: In Halsbury s Laws of England 37th Edn. Vol. 3 “Days included or excluded — When a period of time running from a given day or even to another day or event is prescribed by law or fixed as contract and the question arises whether the inclusively or to be made exclusively of the first mentioned or of the last mentioned day regard must be had to the context and to the purposes for which the computation has to be made. Where there is room for doubt the enactment or instrument ought to be so construed as to effectuate and not to defeat the intention of Parliament or of the parties as the case may be. Expressions such as ‘from such a day’ or ‘until such a day’ are equivocal since they do not make it clear whether the inclusion or the exclusion of the day named may be intended. As a general rule however the effect of defining a period in such a manner is to exclude the first day and to include the last day.” 12. Section 9 says that in any Central Act or regulation made after the commencement of the General W.P.(C) 7611 2020 6 Clauses Act 1897 it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time to use the word “from” and for the purpose of including the last in a series of days or any period of time to use the word “to”. The principle is that when a period is delimited by statute or rule which has both a beginning and an end and the word “from” is used indicating the beginning the opening day is to be excluded and if the last day is to be included the word “to” is to be used. In order to exclude the first day of the period the crucial thing to be noted is whether the period of limitation is delimited by a series of days or by any fixed period. This is intended to obviate the difficulties or inconvenience that may be caused to some parties. For instance if a policy of insurance has to be good for one day from 1st January it might be valid only for a few hours after its execution and the party or the beneficiary in the insurance policy would not get reasonable time to lay claim unless 1st January is excluded from the period of computation. 13. It was argued that the language used in Section 81(1) that “within forty five days from but not earlier than the date of election of the returned candidate” expresses a different intention and Section 9 of the General Clauses Act has no application. We do not find any force in this contention. In order to apply Section 9 the first condition to be fulfilled is whether a prescribed period is fixed “from” a particular point. When the period is marked by terminus a quo and terminus ad quem the canon of interpretation envisaged in Section 9 of the General Clauses Act 1897 require to exclude the first day. The words “from” and “within” used in Section 81(1) of the RP Act 1951 do not express any contrary intention.” underlining supplied) W.P.(C) 7611 2020 7 18. The judgment in Tarun Prasad Chatterjee was relied upon by the Supreme Court in M s. Econ Antri Ltd. Vs. Rom Industries Ltd. & Anr. 11 SCC 769 wherein the Supreme Court held as under: “34. As the Limitation Act is held to be not applicable to the NI Act drawing parallel from Tarun Prasad Chatterjee v. Dinanath Chatterjee8 SCC 649] where the Limitation Act was held not applicable we are of the opinion that with the aid of Section 9 of the General Clauses Act 1897 it can be safely concluded in the present case that while calculating the period of one month which is prescribed under Section 142(b) of the NI Act the period has to be reckoned by excluding the date on which the cause of action arose. It is not possible to agree with the counsel for the respondents that the use of the two different words “from” and “of” in Section 138 at different places indicates the intention of the legislature to convey different meanings by the said words. We may at this stage note that the learned counsel for the appellant relied on State of H.P.12 SCC 210 4 SCC605] where while considering the question of computation of three months limitation period and further 30 days within which the challenge to the award is to be filed as provided in Section 34(3) and proviso thereto of the Arbitration Act this Court held that having regard to Section 12(1) of the Limitation Act 1963 and Section 9 of the General Clauses Act 1897 W.P.(C) 7611 2020 8 day from which such period is to be reckoned is to be excluded for calculating limitation. However since in the instant case we have reached a conclusion on the basis of Section 9 of the General Clauses Act 1897 and on the basis of a long line of English decisions that where a particular time is given from a certain date within which an act is to be done the day of the date is to be excluded it is not necessary to discuss whether State of H.P.12 SCC 210 4 SCC 605] is applicable to this case or not because Section 12(1) of the Limitation Act is relied upon therein.” underlining supplied) 19. A learned single judge of this court in Frank Anthony Public School Versus Amar Kaur 6 DRJ 47 while examining the question of filing of leave to defend within 15 days from service of summons held as under: “26. The expression “day” has been understood in different ways by different nations in different times. Lord Coke said: “The Jewes the Chaldeans and Babylonians begin the day at the rising of the sua the Athenians at the all the Umbri in Italy beginne at midnight and so doth the law of England in many cases”. The English day begins as soon as the clock begins to strike twelve p.m. of the preceding day. Williams v. Nash 28 L J. Ch. 886”. the Egyptians and Romanes In Halsbury s Laws of England third edition Vol. 37 P 84 it is said: W.P.(C) 7611 2020 9 “The term “day” is like the terms “year” and “month” used in more senses than one. A day is strictly the period of time which begins with one midnight and ends with the next. It may also denote any period of twenty four hours and again it may denote the period of time between sunrise and sunset.” 27. Counsel for the landlady argues that time ought to be counted from 12 5 1982 and the period of fifteen days expired on 26 5 1982. In any event he says the leave application made on 27 5 1982 was barred by time. I have no hesitation in rejecting this argument. The question is what is meant by the phrase “within fifteen days from the service hereof”. In my opinion on a proper reading of the third schedule the word “day” should be read as meaning a “calendar day”. I propose to found my decision R. v. Turner 1 K.B. 346 CCA) and Chambers v. Smith 152 E.R. 1085 and to decide that the phrase means fifteen clear days exclusive of the day of service. The words “within fifteen days of the service hereof” in the form of summons prescribed in third schedule must be construed as meaning fifteen consecutive periods of twenty four hours after the service of the summons. It is well known maxim that the law disregards 28. fractions. By the Calendar the day commenced at midnight and most nations reckon in the same manner. The English do it in this manner. We too have adopted the same. In the space of a day all the twenty four hours are usually reckoned the law generally rejecting all fractions of a day in order to avoid disputes. If anything is to be done within a certain time of from or after the doing or occurrence of something else the day on which the first act or occurrence takes place is to be excluded W.P.(C) 7611 2020 10 from the computation. Williams v. Burgess 113 E.R. 955) unless the contrary appears from the context. Hare v. Gocher. 2 Q.B. 641). The ordinary rule is that where a certain number of days are specified they are to be reckoned exclusive of one of the days and inclusive of the other.20. The legal position that emerges is that law disregards fractions. While calculating number of days fraction of a day has not to be counted. If anything is to be done within a certain time of from or after the doing or occurrence of something else the day on which the first act or occurrence takes place is to be excluded from the computation. 21. As per Section 9 of the General Clauses Act day from which such period is to be reckoned is to be excluded for calculating limitation. Where a particular time is given from a certain date within which an act is to be done the day of the date is to be excluded W.P.(C) 7611 2020 11 22. When a period is delimited by statute or rule which has both a beginning and an end and the word “from” is used indicating the beginning the opening day is to be excluded and if the last day is to be included the word “to” is to be used. Therefore when the period is marked by terminus a quo and terminus ad quem the canon of interpretation envisaged in Section 9 of the General Clauses Act 1897 require exclusion of the first day. 23. Applying the above legal position it is clear that the date on which the Letter of Acceptance has been issued has to be excluded while calculating 60 days. Accordingly the date of issuance of Letter of Acceptance has to be taken as day “zero” and not day “one”. The starting point of limitation for furnishing performance guarantee thus be 04.01.2020. Calculated from 04.01.2020 performance guarantee furnished on 03.03.2020 has to be taken as having been furnished on the 60th day and not the 61st day. In view of the above legal position the impugned letter dated 18.08.2020 the contract on the ground performance guarantee was not furnished even after 60 days from the issue of Letter of Award is erroneous and not sustainable. 25. Thus the Termination letter dated 18.08.2020 is set aside. Consequently further directions issued in the said letter debarring the petitioner as well as its members partners from participating in re W.P.(C) 7611 2020 12 tendering process and forfeiting the earnest money deposit is not sustainable and is also set aside. 26. The Writ Petition is allowed in the above terms. 27. Copy of the order be uploaded on the High Court website and be also forwarded to learned counsels through email by the Court MAY 24 2021 SANJEEV SACHDEVA J. W.P.(C) 7611 2020 13 |
Law of limitation binds everybody including the government – Supreme Court | In the case of State of Madhya Pradesh Vs Bherulal [Special Leave Petition (C) Diary No. 9217 of 2020] Supreme Court held that Supreme Court of India cannot be a place for the Governments to walk in when they choose ignoring the period of limitation prescribed. The Special Leave Petition was filed with a delay of 663 days. Court observed that there is no doubt, some leeway is given for the Government inefficiencies but the sad part is that the authorities keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government. Court relied on the judgement of Office of the Chief Post Master General & Ors. v. Living Media India Ltd. & Anr. (2012) 3 SCC 563 where it was stated, “It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available.” The Judges further remarked that, “The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. There seems to be no improvement. The purpose of coming to this Court is not to obtain such certificates and if the Government suffers losses, it is time when the concerned officer responsible for the same bears the consequences. The irony is that in none of the cases any action is taken against the officers, who sit on the files and do nothing. It is presumed that this Court will condone the delay and even in making submissions, straight away counsels appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation.” | IN THE CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITIONDIARY NO.9217 OF 2020 THE STATE OF MADHYA PRADESH & ORS. Petitioner(s BHERULAL Respondent(s JUDGMENT SANJAY KISHAN KAUL J IA No.62372 2020 CONDONATION OF DELAY IN FILING The Special Leave Petition has been filed with a delay of 663 days! The explanation given in the application for condonation of delay is set out in paragraphs 3 and 4. We are constrained to pen down a detailed order as it appears that all our counseling to Government and Government authorities have fallen on deaf ears i.e. the Supreme Court of India cannot be a place for the Governments to walk in when they choose ignoring the period of limitation prescribed. We have raised the issue that if the Government machinery is so inefficient and incapable of filing appeals petitions in time the solution may lie in requesting the Legislature to expand the time period for filing limitation for Government authorities because of their gross incompetence. That is not so. Till the Statute subsists the appeals petitions have to be filed as per the Statues prescribed. No doubt some leeway is given for the Government inefficiencies but the sad part is that the authorities keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government2 SCC 107 This position is more than elucidated by the judgment of this Court in Office of the Chief Post Master General Ors. v. Living Media India Ltd. & Anr. 3 SCC 563 where the Court observed as under “12) It is not in dispute that the person(s concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide a liberal concession has to be adopted to advance substantial justice we are of the view that in the facts and circumstances the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the 13) In our view it is the right time to inform all the government bodies their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort there is no need to accept the usual explanation that the file was kept pending for several months years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates according to us the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.” Eight years hence the judgment is still A reading of the aforesaid application shows that the reason for such an inordinate delay is stated to be only “due to unavailability of the documents and the process of arranging the documents”. In paragraph 4 a reference has been made to “bureaucratic process works it is inadvertent that delay occurs” A preposterous proposition is sought to be propounded that if there is some merit in the case the period of delay is to be given a go by. If a case is good on merits it will succeed in any case. It is really a bar of limitation which can even shut out good cases This does not of course take away the jurisdiction of the Court in an appropriate case to condone the delay We are also of the view that the aforesaid approach is being adopted in what we have categorized earlier as “certificate cases”. The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus say that nothing could be done because the highest Court has dismissed the appeal It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement. The purpose of coming to this Court is not to obtain such certificates and if the Government suffers losses it is time when the concerned officer responsible for the same bears the consequences. The irony is that in none of the cases any action is taken against the officers who sit on the files and do nothing. It is presumed that this Court will condone the delay and even in making submissions straight away counsels appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question We are thus constrained to send a signal and we propose to do in all matters today where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value. Such costs can be recovered from the officers responsible. Looking to the period of delay and the casual manner in which the application has been worded we consider appropriate to impose costs on the petitioner State of Rs.25 000 to be deposited with the Mediation and Conciliation Project Committee. The amount be deposited in four weeks. The amount be recovered from the officers responsible for the delay in filing the special leave petition and a certificate of recovery of the said amount be also filed in this Court within the said period of time. The special leave petition is dismissed as time barred in terms aforesaid We make it clear that if the aforesaid order is not complied within time we will be constrained to initiate contempt proceedings against the Chief Secretary A copy of the order be placed before the Chief Secretary State of Madhya Pradesh SANJAY KISHAN KAUL] New Delhi October 15 2020 |
“The appellant, in his appeal, submitted that the date of uploading of the order on SEBI portal was not provided…”: 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 Amar Kakaria 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 Amar Kakaria had filed an application via RTI MIS Portal on the 26th of June, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 23rd of July, 2021, filed by the appellate. After receiving a letter from the respondent on 23rd of July, 2021, on his application, the appellate decided to file an appeal on the 29th of July, 2021. In this appeal, the appellant has made a request for a personal hearing. In this regard, it was noted that as per the RTI Act, there is no such obligation on the part of the First Appellate Authority to dispose of a matter after giving hearing. Similar observations were made by the Hon’ble CIC in the matters of Mr. Milind Hemant Kotak, Mumbai vs. Canara Bank (Decision dated April 24, 2008) and Mr R.K Jain vs. UPSC (Decision dated March 10, 2014). On perusal of the appeal, it appears that the appellant is not satisfied with the response provided by the respondent. The appellant, vide query number 1, sought the link to access the order passed by the Hon’ble Supreme Court for special leave to appeal (C) No. 3538/2021 and date of its uploading on SEBI portal. The respondent, in response to the query number 1, informed that there is no obligation on SEBI to upload the orders of the Hon’ble Supreme Court. Further, Hon’ble Supreme Court is the original holder of the information. It was also informed that as a matter of practice, SEBI uploads important court orders on the website upon receipt of copy of the order. However, the respondent provided the link for accessing the order dated March 12, 2021 which is available on the SEBI website. The appellant, in his appeal, submitted that the date of uploading of the order on SEBI portal was not provided. | Appeal No. 43721 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43721 Amar Kakaria CPIO SEBI Mumbai The appellant had filed an application dated June 26 2021under the Right to Information Act 2005and Mr R.K Jain vs. UPSCNo. 3538 2021 and date of its uploading on SEBI portal. The respondent in response to the query number 1 informed that there is no obligation on SEBI to upload the orders of the Hon’ble Supreme Court. Further Hon’ble Supreme Court is the original holder of the information. It was also informed that as a matter of practice SEBI uploads important court orders on the website upon receipt of copy of the order. However the respondent provided the Appeal No. 43721 link for accessing the order dated March 12 2021 which is available on the SEBI website. The appellant in his appeal submitted that the date of uploading of the order on SEBI portal was not provided. I have perused the query and the response provided thereto. On consideration it is observed that the respondent did not have an obligation to provide the requested information since SEBI is not the original holder of the information. In this context I note that the Hon’ble CIC in Shri Amiya Kanti Patnaik Vs. Central Excise Departmentobserved that “14. In my view the holder of the information in cases where a set of information is held by more than one public authority and only one of which holds it in original only the public authority which holds the original of the information document under a statute rule notification or instruction etc. should be construed to hold that information within the meaning of Section 2(j) of the RTI Act. It is only this public authority which is in a position to decide whether a given information was liable to be disclosed because it is this public authority which is in know of the condition of the submission and retention of the information the statutory or the other implications of such retention the status of its confidentiality and the conditions in which either the whole or a part of the information could be disclosed and whether if that is the case such an information is already in the public domain. These determinations could never be made by a public authority which came to receive this information in the form of photocopies or even in original for a temporary period for a specific purpose which in this case is for audit.” 7. Notwithstanding the above I note that the respondent informed regarding SEBI’s practice of uploading important court orders on the website. I also note that the respondent provided the link for accessing the order uploaded on the SEBI website. I find that the respondent has adequately addressed the query by guiding the appellant to access the relevant order passed by the Hon’ble Supreme Court. Accordingly I do not find any deficiency in the response. 8. Query number 2 The appellant vide query number 2 sought the copy of the speaking order if any passed by the competent authority at SEBI as per original order of Hon’ble High Court which was also upheld by the Hon’ble Supreme Court. The respondent in response to query number 2 provided the copy of the communication dated June 24 2021. The appellant in his appeal submitted that a communication dated June 24 2021 was provided instead of a speaking order. Further the appellant submitted that the said communication does not have name and designation of the competent authority. Appeal No. 43721 10. On perusal of the query and the response I note that the respondent has provided the copy of the relevant document issued by SEBI in compliance with the order passed by the Hon’ble Bombay High Court in Writ Petition No.8621. I find that the respondent has adequately addressed the query by providing the information available with him. Accordingly I do not find any deficiency in the response. 11. Further the appellant in his appeal submitted that the said communication does not have name and designation of the competent authority. In this context 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. 12. Query number 3 The appellant vide query number 3 sought the designation and department of the competent authority which has passed the speaking order as directed by Hon. High Court. 13. The respondent in response to the said query informed that the said communication was issued with the approval of the Whole Time Member SEBI. Further I note that the name of the department issuing the said communication is already mentioned therein. I find that the respondent has adequately addressed the query by providing the information available with him. I find that no interference is warranted at this stage. 14. Query number 4 The appellant vide query number 4 sought the date of uploading the copy of the speaking order on SEBI portal and its link. In response to the said query the respondent informed that the said communication is not required to be uploaded on the SEBI website. The appellant in his appeal submitted that all orders issued by SEBI are uploaded on its portal. 16. On consideration I note that the respondent has clearly mentioned that the said communication is not required to be uploaded on the website. Further I note that the copy of the communication has been provided to the appellant. I do not find any reason to disbelieve the statement of the respondent. Accordingly no further intervention is warranted at this stage. 17. 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. 43721 Place: Mumbai Date: August 13 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA |
Petitioner denied anticipatory bail in high profile case of monetary fraud: The High Court of Delhi | While analyzing Section 41(1)(b) CrPC. it was observed that when a person is accused of an offence punishable with imprisonment for less than 7 years or which may extend to 7 years with or without fine, not only has the Police officer to be satisfied that the accused has committed the said offence, but he is also required to be satisfied that the arrest of the accused is necessary to prevent such person from committing any further offence, or for proper investigation of the offence. The aforesaid has been the premise adopted by the Delhi High Court while adjudicating the case of Bhanu Prakash Singh v. State (G.N.C.T OF DELHI) [BAIL APPLN. 1644/2021] which was decided by the single judge bench of Justice Mukta Gupta on 4th June 2021. The petitioner had been accused of running a fake call Centre who were involved in cybercrime whereby they were posing themselves to be Amazon Tech supporters through VOIP calls over phone and engaging in cheating USA based victims. One of the US resident victims had joined the investigation and stated that he has been cheated by the present centre for an amount of USD 6683.34. It was submitted by the counsel for the petitioner that Petitioner had clarified that he is working with M/s. Deans Infratech Pvt. Ltd. which has its offices in Delhi, Mumbai and are engaged in the road construction business, which in fact has been verified by the investigating officer. Hence the petitioner is sought to be falsely implicated in this case. He also contended that Since the offences alleged against the petitioner are punishable with sentence upto seven years imprisonment, the petitioner was required to be given a notice under Section 41-A of the CrPC. in terms of the decision of the Supreme Court reported as (2014) 8 SCC 273 Arnesh Kumar Vs. State of Bihar & Anr. Whereas Learned APP for the State on the other hand contends that the petitioner is the king pin of the fake Centre being run by virtue of which several victims in USA were cheated by way of VOIP calls and presented proofs in the form of email-id, whatsaap chats and screenshots and has adequately thrown light on the facts that such a denial of anticipatory bail is not barred under Section 41 of the CrPC as well. | IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 2nd June 2021 Decided on: 4th June 2021 BAIL APPLN. 1644 2021 BHANU PRAKASH SINGH Represented by: Mr. Manav Gupta Advocate with Petitioner Mr. Zafar Khurshid Mr. Sahil Garg Mr. Ankit Gupta Advocates. STATERespondent Represented by: Mr. Amit Gupta APP for the State with Insp. Arun Kumar Chauhan PS Kirti Nagar. HON BLE MS. JUSTICE MUKTA GUPTA By this petition the petitioner seeks anticipatory bail in case FIR No. 96 2021 under Sections 419 420 120 B 34 IPC and Section 66 C 66 D of the Information Technology Act 2000 registered at PS Kirti Nagar. Learned counsel for the petitioner contends that the petitioner is a young boy aged 32 years and is not concerned with the so called fake call centre being run. Petitioner has clarified that he is working with M s. Deans Infratech Pvt. Ltd. which has its offices in Delhi Mumbai and are engaged in the road construction business which fact has been verified by the investigating officer. Hence the petitioner is sought to be falsely implicated in this case. The so called employees of the call centre were all granted regular bail without any Police custody remand. All the computers datas phones which are required for investigation have already been recovered and BAIL APPLN. 1644 2021 Digitally Signed By:JUSTICEMUKTA GUPTASigning Date:04.06.202115:43:51Signature Not Verified no recovery is required to be made from the petitioner. Since the offences alleged against the petitioner are punishable with sentence upto seven years imprisonment the petitioner was required to be given a notice under Section 41 A of the Cr.P.C. in terms of the decision of the Supreme Court reported as8 SCC 273 Arnesh Kumar Vs. State of Bihar & Anr. Further while issuing the guidelines for arrest the High Powered Committee of this Court directed that in view of the COVID 19 situation the judgment of the Supreme Court in Arnesh Kumar should be followed and accused who are not required for interrogation be not arrested and in this regard the High Powered Committee issued directions to the Commissioner of Police to issue guidelines to all DCPs to ensure compliance of the decision of the Supreme Court in Arnesh Kumar DLSA to conduct sensitization programme and directions on administrative side to the concerned District and Sessions Judges to ensure compliance of the directions passed by the Hon’ble Supreme Court. All accused have been released on bail including the accused in whose name the property was leased where the said alleged fake call centre was being run. Petitioner is suffering from serious ailments which medical documents have been duly verified and in view of the COVID 19 situation the petitioner be not subjected to Police or Judicial custody. The only evidence against the petitioner is the disclosure statements of the co accused persons which are not admissible in evidence and cannot be relied upon to deny anticipatory bail to the petitioner. Learned APP for the State on the other hand contends that the petitioner is the king pin of the fake centre being run by virtue of which several victims in USA were cheated by way of VOIP calls. The petitioner is one of the main accused who was running the centre as is evident from BAIL APPLN. 1644 2021 Digitally Signed By:JUSTICEMUKTA GUPTASigning Date:04.06.202115:43:51Signature Not Verified the investigation carried out from the co accused who were found working at the said centre. The co accused were taking instructions from the petitioner and were duly reporting to him. The money transaction was done by the petitioner through crypto currency and Zelle account and to overcome trail of the money call centre employees were paid the salary in cash. Learned APP further contends that one of the victims from U.S. has joined the investigation who has been cheated to the tune of USD 6683.34 by the petitioner and the co accused. Considering the gravity of the offence and that necessary investigation is still required to be carried out to unearth the deep conspiracy and the magnitude of the offence no anticipatory bail be granted to the petitioner. The above noted FIR was registered after a secret information was received on 25th March 2021 in respect of an organized gang of cyber criminals who were posing themselves to be Amazon Tech supporters through VOIP calls over phone and engaging in cheating USA based victims from 5 8 Industrial Area Kirti Nagar West Delhi. A raiding team was constituted which raided the 2nd floor of the premises where several callers were engaged in receiving the calls from international numbers. Two persons Taranjot Singh and Krishna Gurung were identified as senior executives supervising the activities of 13 other tele callers who were attending the calls and were passing on directions to the callers. As per the status report the said 15 accused were arrested and it was revealed that the offence by the accused was committed in the manner beginning with a VICI Dial software generated pre recorded threatening robo call claiming to be from Amazon being sent to victim and telling the recipient US resident that suspicious transactions have taken place in their BAIL APPLN. 1644 2021 Digitally Signed By:JUSTICEMUKTA GUPTASigning Date:04.06.202115:43:51Signature Not Verified Amazon account and thereafter deceitfully persuading the victims to connect with them via Remote Access Software for resolving that issue. The victim’s computer mobile remote access was connected to the software like Quick Support AnyDesk etc. in the fictitious name of connecting victim to secure Amazon server. Thereafter the victim was made to purchase e Gift cardsthrough their Amazon account linked Credit Debit cards claiming that to be dummy transaction and part of verification process thereby persuading the victim to login into their internet banking for getting Amazon refund amount resulting in the accused getting the information regarding victim’s banking credentials and making them transfer amount to temporary Zelle accounts crypto currency wallets of the accused. E mail was then sent to the victim that they had been successfully granted refund amount finally sending the victim to store supermarket for purchasing gift packand conveying the e gift card numbers to the accused as part of refund process thereby exploiting the victim financially and once the victim could not be further duped the further calls were hung up. Since the accused connected with the victim through spoofed VOIP numbers the victim could neither call back nor were the numbers traced. Thus the magnitude of cheated amount is huge as presently the number of victims is unknown. One of the US resident victims has joined the investigation and stated that he has been cheated by the present centre for an amount of USD 6683.34. From the spot 23 computers Internet distribution switch Internet Routers mobile phones several pages of hand written cheating script booklet about the communication to be made to the victims for cheating telecommunication softwares VOIPcalling dialers incriminating BAIL APPLN. 1644 2021 Digitally Signed By:JUSTICEMUKTA GUPTASigning Date:04.06.202115:43:51Signature Not Verified data in computers and mobile phones were recovered at the instance of the 15 accused arrested on 26th March 2021. During the course of investigation two other accused namely Balwan Singh Yadavand Surender Pal Singh in whose name rent agreement for the premises was entered into were also arrested. According to the investigation the entire illegal operation was being carried out at the instance of the petitioner and one more co accused who had hired the 17 arrested accused in a pre planned criminal conspiracy to cheat US victims. The e gift cards procured from the US victims deceitfully were converted into Indian currency in cash by the present petitioner. The Zelle account US accounts crypto currency wallets used to receive cheated amount were also procured and under the control of the present petitioner. The mobile phone of the petitioner was connected with the e mail ID which was being used at the alleged centre to deceive the victims and as per the co accused arrested the petitioner was acting in the capacity of the owner of the centre. On arrest of the co accused screen shots of the chats between the petitioner and the co accused were recovered which indicated that the petitioner used to give instructions to the 15 accused present and working at the centre. Accordng to the State custodial interrogation of the petitioner is required to unearth the source from which the petitioner procured the data of US resident victims Zelle accounts US bank accounts crypto currency walletsrelied upon by learned counsel for the petitioner Supreme Court dealt with Section 41 Cr.P.C. and emphasising on Section 41(1)(b) Cr.P.C. it was observed that when a person is accused of an offence punishable with imprisonment for less than 7 years or which may extend to 7 years with or without fine not only has the Police officer to be satisfied that the accused has committed the said offence but he is also required to be satisfied that the arrest of the accused is necessary to prevent such person from committing any further offence or for proper investigation of the offence or to prevent such person from exploiting the evidence of the offence to disappear or tamper such evidence in any manner or to prevent such person from making any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer or unless such person is arrested his presence in the Court whenever required cannot be ensured and the Police Officer shall record his reasons in writing while making such BAIL APPLN. 1644 2021 Digitally Signed By:JUSTICEMUKTA GUPTASigning Date:04.06.202115:43:51Signature Not Verified arrest. Thus the law does not mandate a blanket ban on arrest of accused against whom there is a reasonable suspicion of commission of a cognizable offence punishable with imprisonment for a term of less than 7 years or which may extend to 7 years but requires that the Police officer should be satisfied about the necessity of arrest on the conditions as noted in the sub clauses to and should record reasons for the same. Even the High Powered Committee of this Court constituted under the directions of the Hon’ble Supreme Court issued direction to scrupulously follow the directions in the decision in Arnesh Kumar. As noted above not only is there prima facie material available with the prosecution to show that the petitioner is involved in the alleged offence as besides the statement of the co accused from their WhatsApp chat it is evident that the petitioner is giving them instructions the investigation is at a very preliminary stage when the entire conspiracy and the manner in which various datas of the victims were collected and the money trail pursuant to the cheating is required to be unearthed. Further the losses to the Government exchequer and the extent of cheating to the number of victims involved is also required to be unearthed and based on this material the investigating officer sought the non bailable warrant of the petitioner which has already been granted by the learned Trial Court vide its order dated 13th May 2021. 10. Learned counsel for the petitioner has vehemently relied on the fact that the petitioner is working with M s. Deans Infratech Pvt. Ltd. with its offices at Delhi and Mumbai and the company is engaged in the road construction business. Though this fact has been verified form the Managing Director of the company who stated that the petitioner was BAIL APPLN. 1644 2021 Digitally Signed By:JUSTICEMUKTA GUPTASigning Date:04.06.202115:43:51Signature Not Verified appointed in his company on 8th September 2017 as Business Development Manager and his work profile was to develop new business opportunities throughout India without being physically based in any particular office location however the petitioner’s employment as Business Development Manager with M s. Deans Infratech Pvt. Ltd. does not lead to an inference that the petitioner is not running a centre from which 15 employees and two other co accused have already been arrested. Further the medical documents filed by the petitioner have also been verified. However the medical report of the petitioner relate back to June 2016 whereafter a medical prescription dated 23rd May 2021 and report of the blood test conducted on 22nd May 2021 has been placed on record. The prescription dated 23rd May 2021 suggests tenderness in L 5 region and X Ray and MRI of lumbar spine has been prescribed which reports have not been placed on record. The other ailments relied upon are relating to the eye which prescription date back to the year 2013 and the recent prescription is of 17th February 2020 when two eye drops were prescribed. Thus even on the medical condition this Court finds that there is nothing on record to suggest that the petitioner is suffering from any co morbidity which is likely to affect him due to the COVID 19 pandemic. In view of the discussion above this Court finds no ground to grant anticipatory bail to the petitioner. Petition is dismissed. 12. Order be uploaded on the website of this Court. MUKTA GUPTA) JUNE 04 2021 ‘ga’ BAIL APPLN. 1644 2021 Digitally Signed By:JUSTICEMUKTA GUPTASigning Date:04.06.202115:43:51Signature Not Verified |
Magnitude of the offence cannot be the only criterion for denial of bail: High Court of Delhi | The object of bail is to secure the presence of the accused at the time of trial. A person who has never been convicted should only be kept in custody if there are reasons to believe that he might flee from justice or tamper with the evidence or threaten the witnesses. If there is no apprehension of interference in administration of justice then the Court should be circumspect while considering depriving the accused of their personal liberty. Mere vague belief that the accused may thwart the investigation cannot be a ground to prolong the incarceration of the accused. These were stated by High Court of Delhi, consisting Justice Subramonium Prasad in the case of Sunder Singh Bhati vs. The State [BAIL APPLN. 3750/2021] on 17.01.2022. Facts of the case are that the Complainant had received a message and an email from the Company (SMP IMPEX Pvt. Ltd.) stating that if he invested his money, they would give him a 200% return within 1 year. The Directors, Dr. Saroj Mahapatra and Rajesh Mahto called the Complainant and told him about the Company explaining their plans to expand it on the lines of Uber/Ola. They told the Complainant that the Company was registered with RBI and SEBI. It is stated that after much insistence, the Complainant invested Rs. 9,00,000. Further, the Complainant’s friends, namely Rajesh Kumar, Rajender Singh, Yogender Singh, Umed Singh, Ajay, Sunil also invested Rs. 15 to 20 lakhs. It was stated that on the 10th of every month they would receive instalment, however, after the first two months, no instalment was made. The Complainant was informed that he would get the third instalment by 15th of the month, i.e. 15th March, however, the third instalment was not made. On calling the Company, a clip was showed to Complainant from social media showcasing that the Company’s accounts have been frozen. The Complainant and many others were defrauded of their money so a complaint was filed on the basis of which the instant FIR was registered. The Petitioner in BAIL APPLN. was declared absconder/proclaimed offender and was arrested. Anticipatory bail application was dismissed under Section 437 Cr.P.C. as infructuous. The learned Counsel for Petitioner submitted that the Petitioner was languishing in jail since 09.12.2020. He submitted that no recovery was made from the Petitioner or at the instance of the Petitioner, and that, therefore, there is no link tying the Petitioner to the alleged scam. The Petitioner is neither an authorized signatory nor a director of the accused Company, and that there is nothing to suggest that the Petitioner was associated with the accused Company. He stated that several of the alleged victims received up to 40- 50% of their invested amount within a month which buttressed the fact that early investors had received significant returns from the accused Company. He argued that it is not rational to assume that Petitioner would induce his own relatives to invest in a scheme if he possessed the intention to scam people. It was submitted that the essential ingredient for invoking both Sections 406 and 409 IPC is entrustment and there is no evidence which suggests that the Petitioner had ever been entrusted with any money or property. He further submitted that there is hardly any complaint which ascribes a distinct role to the Petitioner, therefore, the Petitioner is liable to be granted regular bail. The learned Counsel for respondent submitted that the instant case involves the cheating of a large-scale of money with total investors surpassing 900 and the amount cheated being Rs. 14 crores. She vehemently opposes the instant bail application, stating that the Petitioner in BAIL. It was further submitted that the Petitioner was a direct recipient of the cheated amount through his relatives and that Rs. 1.59 crores approximately and had previously been declared PO and never joined investigation despite several notices being issued to him. She submitted that there are many statements of witnesses/complainants under Section 161 Cr.P.C. that specifically name the Petitioner and state that he took active part in the meetings/representations for inducement. She submitted that there is no evidence to indicate that the Petitioner had induced the investors and concocted lies about RBI authorization. Further, the Counsel submitted that the Petitioner was merely a non-executive director and that he only received Rs. 11 lakhs, which was his remuneration, out of the alleged cheated amount of Rs. 250 crores. The Petitioner was the beneficiary of the cheated amount, and that a perusal of the bank replies indicates that he was also the authorized signatory of the bank accounts of the accused Company and took active part in the dayto-day affairs of the accused Company. | IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 17th January 2022 IN THE MATTER OF: BAIL APPLN. 3750 2021 SUNDER SINGH BHATI ..... Petitioner Through Mr. Pradeep Singh Rana Mr.Ankit Rana Mr.Abhishek Rana Mr.Nitish Pande Advocates THE STATE ..... Respondent Through Mr. Amit Chadha APP for the State with SI Shiv Dev P S EOW BAIL APPLN. 3921 2021 RAJESH MAHTO ..... Petitioner Through Mr. Kumar Piyush Pushkar Advocate STATE..... Respondent Through Mr. Amit Chadha APP for the State with SI Shiv Dev EOW HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. The Petitioners seek regular bail in FIR No. 89 2019 dated 01.06.2019 registered at Police Station Economic Offences Wing for offences under Sections 406 420 409 120B of the Indian Penal Code 1860 hereinafter “the Company”) and its Directors Officials Dr. Saroj Mahapatra Mr. Rajesh Mahto Ms. Daisy Vijay Menon Mr. Sunder Singh Bhati and other unknown persons had committed cheating and fraud. It is stated that the Complainant had received a message and an email from the Company stating that if he invested his money they would give him a 200% return within 1 year. The Directors Dr. Saroj Mahapatra and Rajesh Mahto called the Complainant and invited him to Netaji Subhash Place where they told him about the Company and explained their plans to expand it on the lines of Uber Ola. They told the Complainant that the Company was registered with RBI and SEBI. They further made the Complainant meet one Mrs. Daisy Vijay Menon who showed the Complainant the plan of the Company. It is stated that after much insistence the Complainant invested Rs. 9 00 000 . Further the Complainant‟s friends namely Rajesh Kumar Rajender Singh Yogender Singh Umed Singh Ajay Sunil also invested Rs. 15 to 20 lakhs. It is stated that on the 10th of every month instalment would be sent to the account of the investors however after the first two months no instalment was made. On speaking with Harish Bhati and Rajesh Mahto the Complainant was informed that he would get BAIL APPLN. 3750 2021 & Anr. the third instalment by 15th of the month i.e. 15th March however the third instalment was still not made. On calling the Company Saroj Mahapatra showed the Complainant a clip from social media showcasing that the Company‟s accounts had been frozen. It is stated that the Complainant‟s money has not been returned till date and that the accused do not pick up the calls of the Complainant. Stating that the Complainant and many others have been defrauded of their money the complaint was filed on the basis of which the instant FIR was registered. The Petitioner in BAIL APPLN. 3750 2021 filed an anticipatory bail application before the Ld. Trial Court which was dismissed vide Order dated 03.08.2019. The Petitioner in BAIL APPLN. 3750 2021 was declared absconder proclaimed offender on 17.02.2020 and was arrested on 09.12.2020. Anticipatory bail application before this Court was dismissed as infructuous vide Order dated 16.08.2021. Bail application under Section 437 Cr.P.C. of Petitioner in BAIL APPLN. 3750 2021 was dismissed vide Order dated 05.07.2021. Bail application under Section 439 Cr.P.C. of Petitioner in BAIL APPLN. 3750 2021 was dismissed by the Sessions Court vide Order dated 23.09.2021. An anticipatory bail application was filed by the Petitioner in BAIL APPLN. 3921 2021 which was dismissed by the Ld. Trial Court vide Order dated 19.09.2019. The Petitioner in BAIL APPLN. 3921 2021 was declared absconder proclaimed BAIL APPLN. 3750 2021 & Anr. offender on 17.02.2020 and was arrested on 22.08.2020. Bail applications before the Ld. CMM and the Ld. ASJ Rohini were dismissed vide Orders dated 11.09.2020 and 24.09.2020 respectively. After filing of chargesheet yet again bail application before the Ld. CMM was dismissed vide Order dated 10.05.2021. 3. Mr. Pradeep Singh Rana learned Counsel for Petitioner in BAIL APPLN. 3750 2021 submits that the Petitioner has been languishing in jail since 09.12.2020. He submits that no recovery has been made from the Petitioner or at the instance of the Petitioner and that therefore there is no link tying the Petitioner to the alleged scam. He brings to the attention of this Court that the Petitioner is neither an authorized signatory nor a director of the accused Company and that there is nothing to suggest that the Petitioner was associated with the accused Company. 4. Mr. Rana submits that the Ld. Trial Court erred in observing that the only investors who had gained from the scheme were relatives of the Petitioner. He states that several of the alleged victims received up to 40 50% of their invested amount within a month which buttressed the fact that early investors had received significant returns from the accused Company. Mr. Rana argues that it is not rational to assume that the Petitioner would induce his own relatives to invest in a scheme if he possessed the intention to scam people. 5. Mr. Rana submits that there is not an iota of evidence against the Petitioner in BAIL APPLN. 3750 2021. He further relies on Sadhupati Nageswara Rao v. State of Andhra Pradesh 8 SCC 547 A to submit that the essential ingredient for invoking both Sections 406 and 409 IPC is BAIL APPLN. 3750 2021 & Anr. „entrustment‟ and there is no evidence which suggests that the Petitioner had ever been entrusted with any money or property. He further argues that the FIR in the present case was registered two years ago and that till date the investigation is nowhere near completion. Mr. Rana submits that the declaration of PO is misconceived as the Petitioner had no intention to evade the law and was merely exercising his legal remedy of seeking anticipatory 6. Mr. Pradeep Singh Rana learned Counsel for the Petitioner in BAIL APPLN. 3750 2021 further submits that there is hardly any complaint which ascribes a distinct role to the Petitioner. He states that the trial is likely to take a long while and that there is no allegation against the Petitioner that he has threatened or approached the Complainant or any of the witnesses. He therefore submits that the Petitioner is liable to be granted regular bail. Per contra Ms. Meenakshi Chauhan learned APP appearing for the State in BAIL APPLN. 3750 2021 submits that the instant case involves the cheating of a large scale of money with total investors surpassing 900 and the amount cheated being Rs. 14 crores. She vehemently opposes the instant bail application stating that the Petitioner in BAIL APPLN. 3750 2021 had previously been declared PO and never joined investigation despite several notices being issued to him. She submits that there are many statements of witnesses complainants under Section 161 Cr.P.C. that specifically name the Petitioner and state that he took active part in the meetings representations for inducement. 8. Ms. Chauhan submits that the Petitioner is a direct recipient of the cheated amount through his relatives and that Rs. 1.59 crores approximately BAIL APPLN. 3750 2021 & Anr. were transferred from the account of the accused Company to the accounts of some known persons and then to the account of his son Nitin Bhati as well as directly from the account of the accused Company to his nephew brothers and brother in law. She submits that there are other FIRs which have also been registered against the Petitioner and that as charges are yet to be framed it would be detrimental to the case to grant the Petitioner bail. 9. Mr. Kumar Piyush Pushkar learned Counsel appearing for Petitioner in BAIL APPLN. 3921 2021 submits that there is no evidence to indicate that the Petitioner had induced the investors and concocted lies about RBI authorization. He submits that the accused Company was incorporated in 2015 and was named Ayurvedic India and that the Petitioner only joined the accused Company on 26.06.2018 after the ownership and name was changed and handed over to the promoters of SMP Impex Pvt. Ltd.1 SCC 40 the Supreme Court had observed as under: 21. In bail applications generally it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases “necessity” is the operative test. In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty save in the most extraordinary circumstances. 23. Apart from the question of prevention being the BAIL APPLN. 3750 2021 & Anr. finger of accusation” against object of refusal of bail one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of the accused has been former conduct whether convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. 24. In the instant case we have already noticed that the “pointing appellants is “the seriousness of the charge”. The offences alleged are economic offences which have resulted in loss to the State exchequer. Though they contend that there is a possibility of the appellants tampering with the witnesses they have not placed any material in support of the allegation. In our view seriousness of the charge is no doubt one of the considering bail applications but that is not the only test or the factor : the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction both under the Penal Code and the Prevention of Corruption Act. Otherwise if the former is the only test we would not be balancing the constitutional rights but rather “recalibrating the scales of justice”. 25. The provisions of CrPC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions since the jurisdiction is discretionary it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. In our view the reasoning adopted by the learned District Judge which is affirmed by the High Court in our opinion is a denial of the whole basis of our system of law and considerations while BAIL APPLN. 3750 2021 & Anr. normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognised then it may lead to chaotic situation and would jeopardise the personal liberty of an individual. 46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged if proved may jeopardise the economy of the country. At the same time we cannot lose sight of the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge CBI New Delhi. Therefore their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI." emphasis supplied) 19. Therefore the magnitude of the offence cannot be the only criterion for denial of bail. The object of bail is to secure the presence of the accused at the time of trial this object is thus neither punitive nor preventative and a person who has not been convicted should only be kept in custody if there are reasons to believe that they might flee from justice or tamper with the evidence or threaten the witnesses. If there is no apprehension of interference in administration of justice in a criminal trial by an accused then the Court should be circumspect while considering depriving the accused of their personal liberty. Mere vague belief that the accused may thwart the investigation cannot be a ground to prolong the incarceration of BAIL APPLN. 3750 2021 & Anr. the accused. 20. Most importantly while the Petitioner in BAIL APPLN. 3750 2021 was arrested on 09.12.2020 the Petitioner in BAIL APPLN. 3921 2021 was arrested on 22.08.2020. Both the Petitioners have been in custody for over a year now. Chargesheet as well as supplementary chargesheet have been filed and all the evidence available is documentary in nature and in custody of the investigating agency. Whether or not the cheated money was entrusted to the Petitioners is a matter of trial and cannot be taken into consideration at this juncture. This Court is therefore of the opinion that continued custody of the Petitioners is no longer required and that both the Petitioners should be enlarged on bail. In light of the above observations this Court is inclined to grant bail to Petitioner in BAIL APPLN. 3750 2021 and Petitioner in BAIL APPLN. 3921 2021 subject to the following conditions: Each petitioner shall furnish a personal bond in the sum of Rs.1 50 000 with two sureties of the like amount one of them should be a relative of the petitioner to the satisfaction of the Trial Court The Memo of Parties shows that the petitioner in BAIL APPLN.3750 2021 is a resident of E 3 Road No.06 Gazipur Dairy Farms Gazipur Delhi 110092 and the petitioner in BAIL APPLN.3921 2021 is a resident of Flat No.125 Rose Apartment Sector 18B Dwarka New Delhi. The petitioners are directed to reside at their respective address till further orders The petitioners are directed to report to the concerned Police Stations thrice in a week i.e. on every Monday Wednesday and BAIL APPLN. 3750 2021 & Anr. trial. Friday at 10:30 AM and they shall be released by 11:00 AM after completing all the formalities The petitioners are directed to give all their mobile numbers to the Investigating Officer and keep them operational at all times The petitioners shall not directly or indirectly tamper with evidence or try to influence the witnesses in any manner In case it is established that the petitioners have tried to influence the witnesses or tamper with the evidence the bail granted to the petitioners shall stand cancelled forthwith. It is made clear that the observations made in this Order are only for the purpose of grant of bail and cannot be taken into consideration during the 23. Accordingly both the bail applications are disposed of along with pending application(s) if any. SUBRAMONIUM PRASAD J. JANUARY 17 2022 BAIL APPLN. 3750 2021 & Anr. |
Questions regarding where, when and in what condition and when, and by whom are to be answered beyond reasonable grounds: Chhattisgarh High Court | When there is a seizure, questions regarding where, when, and in what condition and when, and by whom are to be answered beyond reasonable grounds. Evidence produced must be sufficient to prove the above-stated conditions. In absence of the evidence, the conviction is not sustainable. A single-judge bench comprising of Justice Anubha Rawat Choudhary adjudicating in the matter of Mahanguram v. The State of Chhattisgarh (Criminal appeal No.1213 of 2014) dealt with an issue of whether to grant bail to the accused or not. In the present case, the appellant is appealing against the judgement dated 26.11.2014 where the appellant was convicted under section 123 of IPC along with Section 4(B) of the Explosive Substances Act. The Respondents stated that they had received a piece of secret information that the Appellant who is the sarpanch of his village had kept Naxal literature and explosives in his house. The police found that explosive substance detonators, Naxal literature, banners, and pamphlets in the cowshed. The Appellant denied his guilt and pleaded innocence and stated that he has been falsely implicated. The Appellant contended that no documentary or oral evidence on record on the basis of which it could be said that the kotha from where the articles were seized was of ownership of the Appellant or was in his exclusive possession. In the present case, there are no independent witnesses to support the case of the Respondent. Also, no evidence was found regarding the seizure of the explosive substance and other articles were kept where, when and in what condition and when, by whom, and in what condition they were sent for examination. The Respondents opposed to the contentions made by the Appellant and witnesses made their depositions before the court. | HIGH COURT OF CHHATTISGARH BILASPUR Criminal Appeal No.12114 Judgment Reserved on : 9.2 . 2021 Judgment Delivered on : 8.6.2021 Mahanguram S o Sukara Baghel aged about 48 years resident of School Para Village Gumalwada P.S. Nagarnar Revenue and Civil District Bastar State of Chhattisgarh through Police Station Nagarnar District Bastar Appellant Respondent Shri Abhishek Chandravanshi Advocate on behalf of Shri Harshwardhan Parganiha Advocate : Shri Ghanshyam Patel Government Advocate Hon ble Shri Justice Arvind Singh Chandel C.A.V. JUDGMENT This appeal has been preferred against judgment dated 26.11.2014 passed by 1st Additional Sessions Judge Bastar at Jagdalpur in Sessions Trial No.45 of 2014 whereby the Appellant has been convicted and sentenced as under: Under Section 123 of the Indian Penal Code Rigorous Imprisonment for 7 years and fine of Rs.2000 with Under Section 4(B) of the Explosive Substances Act the ‘ES Act’ for brevity Rigorous Imprisonment for 5 years and fine of Rs.2000 with Under Section 8(1) of the Jan Suraksha Adhiniyam the ‘JS Adhiniyam’ for Rigorous Imprisonment for 1 year and fine of Rs.500 with Under Section 8(2) of the JS Adhiniyam Under Section 8(3) of the JS Adhiniyam Under Section 8(5) of the JS Adhiniyam Rigorous Imprisonment for 6 months and fine of Rs.500 with Rigorous Imprisonment for 1 year and fine of Rs.500 with Rigorous Imprisonment for 3 years and fine of Rs.1000 with All the jail sentences are directed to run concurrently Prosecution case in short is that on 2.2.2014 Surendra Uike PW7) Station House Officer of Police Station Nagarnar along with his staff was on forest search and village visit. At that time he received a secret information that the Appellant Sarpanch of Village Gumalwada had kept naxal literature and explosive substance in his house. He reached the spot along with search party and witnesses. He searched the cow kothaof the Appellant He found there explosive substance detonators naxal literature banners and pamphlets. They were seized vide seizure memo Ex.P2). Search Panchnamawas prepared. The seized explosive substance detonators were sent to BDS Jagdalpur for examination. They were examined by Santosh Kumar Verma PW5) a non commissioned officer of BDS Jagdalpur. His report is Ex.P5. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. Necessary sanction for prosecution of the Appellant was obtained from the competent authority. On completion of the investigation a charge sheet was filed against the Appellant. The Trial Court framed charges against To bring home the offence the prosecution examined as many as 8 witnesses. Statement of the Appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the guilt pleaded innocence and false implication. One Chaituram Baghel was examined as a witness in defence of the Appellant. On completion of the trial the Trial Court convicted and sentenced the Appellant as mentioned in 1st paragraph of this judgment Hence this appeal. Learned Counsel appearing for the Appellant submitted that the Trial Court has convicted the Appellant without there being clinching and sufficient evidence against him. There is no documentary or oral evidence on record on the basis of which it could be said that the kotha from where the articles were seized was of ownership of the Appellant or was in his exclusive possession. It was further submitted that none of the independent witnesses has supported the case of the prosecution. The conviction is based only on the statements of police witnesses. It was further submitted that after their seizure the explosive substance and other articles were kept where when and in what condition and when by whom and in what condition they were sent for examination no evidence is available on record in this regard When and where was the seized explosive substance examined by Santosh Kumar Vermahis reportmentions nothing about it. There is also no evidence on record to show that whether the seized article was received by Santosh Kumar Vermain a sealed condition or not. Therefore the prosecution does not get support to its case from the examination reportand Fagnuram and went to the house of the Appellant along with them. He has further deposed that he searched the kotha of the house of the Appellant in presence of witnesses Laxminathand Fagnuramfrom there. Constable Sandeep Kumar Bhagat who was one of the members of the search party and the two witnesses of the seizure i.e. Laxminath and Fagnuram have supported the case of the prosecution. Laxminathand Fagnuramis the only independent witness who has not supported the case of the prosecution. Investigating Officer Surendra Uike has admitted the fact that he had prepared only spot mapand had not obtained any revenue map from any revenue officer. He has further deposed that the kotha which was searched was of ownership of the Appellant no document relating to this effect was obtained by him. According to this witness he was told by the witnesses that the said kotha was of the Appellant. One of the witnesses of the search and seizure Laxminathhas admitted the fact that he was not aware of the persons living nearby the house of the Appellant. He was also not aware that how many rooms were made in the house of the Appellant. He has further admitted that he had also not gone inside the cow kothawhere the search was made. Other witness of the search and seizure Fagnuramhas also admitted the fact that he was not aware of the persons living nearby the house of the Appellant. He has further admitted that how many rooms were made in the house of the Appellant was not known to him. In paragraph 10 he has deposed that the cow kotha which was searched was situated at some distance from the house of the Appellant and he has also deposed that no door was fixed in the said kotha. He has deposed that only a bamboo was fixed in the Constable Sandeep Kumar Bhagat who was one of the members of the search party has also admitted that how many persons were living in the house of the Appellant and how many rooms were made in the said house were not known to him. He has further admitted that the place from where the seizures were made was open from all sides On a minute examination of the above evidence it is clear that the kotha from where the articles were seized was of ownership of the Appellant or was in his exclusive possession no documentary evidence was collected by the prosecution in this regard. It appears that other members were also residing in the house of the Appellant. Therefore the cow kotha was of exclusive possession of the Appellant is not established. Apart from this from the admission made by Constable Sandeep Kumar Bhagatit is also clear that the kotha from where the seizures were made was open from all sides. In the circumstances possibility of keeping planting the seized articles in the kotha in question from outside cannot be ruled out. Therefore the kotha was of ownership of the Appellant or was in his exclusive possession is not established. As stated by Investigating Officer Surendra Uike on 14.4.2014 he had sent the seized explosive substance to B.D.S. Jagdalpur for examination. According to the statement of this witness before that the seized articles were kept in Malkhana But the prosecution has not submitted any Malkhana Register or Stock Register showing entry of deposit of the seized articles in the Malkhana. During cross examination in paragraph 24 this witness has deposed that no entry was done in Malkhana Register regarding deposit of the seized articles in Malkhana and their taking out from the Malkhana. He has deposed that such entry is made in Rojnamcha Sanha. He has admitted that no such Rojnamcha Sanha was produced before the Court. Santosh Kumar Verma who examined the explosive substance has deposed that on 14.4.2014 he had examined the explosive substance. He has admitted that in the examination report he has not mentioned the place and time of the examination. He has further admitted that in Ex.P5 it is also not mentioned that the said substance was given to him in sealed condition. He has further admitted that he has also not mentioned in Ex.P5 about the person who had brought him the said seized explosive substance. From the above statements of Santosh Kumar Vermaand Surendra Uike it is established that when and in what condition the seized articles were kept in Malkhana and when those articles were taken out from the Malkhana there is no documentary evidence available on record in this regard. There is no mention in the examination reportthat the seized articles were brought for examination in a sealed condition. Who brought the seized explosive substance to Santosh Kumar Vermaand at which place and at what time he examined the said substance there is no mention about these in the examination report (Ex.P5). Looking to the above the entire inquiry proceedings become suspicious. From the above discussion I find that the kotha was of ownership of the Appellant or was in his exclusive possession is not established. It is established that there is no evidence on record to show that when by whom and in what condition the seized articles were kept in Malkhana and when by whom and in what condition the seized explosive substance was taken out from the Malkhana for sending for examination there is no documentary evidence available on record in this regard. The examination proceeding of the explosive substance is also suspicious. Therefore I find that the prosecution is unable to prove the offence beyond reasonable doubt. Hence the conviction imposed upon the Appellant is not Consequently the appeal is allowed. The conviction and sentence of the Appellant is set aside. He is acquitted of the charges framed sustainable. against him. Sd (Arvind Singh Chandel JUDGE |
Mrs. Prajakta Mahesh Joshi & Another v. Mrs. Rekha Uday Prabhu & Others | The unilateral appointment of Arbitrator, in such fashion itself was held to be impermissible mode to resolve the disputes by this alternative dispute resolution mode through the Arbitration. The requirement of consent so provided and/or clause so mentioned above, in no way, permits any one party to appoint Arbitrator unilaterally. On 28 February, 2007, a MOU (Memorandum of Understanding) for a sale of a 2 BHK flat was signed between the Petitioners and the Respondents. The Respondents made initial payment of Rs. 50,000/- and handed over the documents. On 23 June, 2007, as the Respondents delayed balance payment, the Petitioner on request refunded the advance of Rs.50,000/- to the Respondents by a Bank transfer.On 19 August, 2007, the Respondents filed a Consumer Complaint No. 149 of 2007 before State Consumer Disputes Redressal Commission, Maharashtra against the Petitioners. On 10 January, 2008, the complaint was dismissed by the State Commission. On 17 February, 2008, the Respondents file First Appeal No. 100 of 2008 before the National Consumer Commission, New Delhi, challenging the State Commission Order. The same is pending.On 10 May, 2010, the Petitioners received a Notice of Arbitration. The Petitioners sent a reply through its Advocate-cum-Arbitrator. On 18 June, 2010, the Petitioners received a reply notice from the learned Arbitrator posing as an Advocate for the Respondents. On 26 August, 2010 a copy of the Arbitral award received by the Petitioners. As dispute arose, Respondents 1 and 2 invoked arbitration clause and thereby unilaterally appointed Advocate Shri Shailendra S. Gandhi as the Arbitrator.The Petitioners immediately by letter dated 24 May 2010 replied to the notice issued by the Arbitrator dated 10 May 2010 by which he fixed the first hearing/meeting at his office and also directed the parties to deposit Rs.50,000/- towards the initial payment. The Petitioners resisted every aspects of the invocation and the appointment of the Arbitrator and specifically mentioned that they would not be participating in the arbitration proceedings.It was specifically pointed out about the dismissal of the Respondents’ consumer complaint. It was also mentioned about the refund of Rs.50,000/- to the Respondents. Therefore, there existed no dispute. The Petitioners thereby also contended that having once invoked the judicial proceedings, there was no question of invoking of arbitration clause apart from unilateral appointment of the Arbitrator. RATIO OF THE COURT: The court noted that the Arbitrator who was an Advocate of the Respondents by its reply dated 18.6.2010 referring to the above communication/reply of Petitioners, insisted the Petitioners to participate in the arbitration proceedings on 28 June, 2010 by stating it to be the last and final call. Surprisingly, the learned Arbitrator, who appears to be the Advocate of the Respondents, even replied in detail to the contentious issues specifically raised by the Petitioners in communication dated 24 May 2010.The tenure of the reply/communication of Arbitrator dated 18.06.2010 in this court’s opinion was like an Advocate replying on behalf of the client. Even after overlooking the last paragraph of the communication of the Arbitrator, the denial and the assertion were found to be as that of contesting Respondents.This court noted that the arbitration clause referring to the Arbitration Act permitted the parties to resolve their dispute through a sole Arbitrator. Considering the scheme and object of Arbitration Act, first requirement is that the Arbitrator must be appointed by the consent of the parties. The consent of Petitioner in the present case was never obtained.Therefore, the unilateral appointment of Arbitrator, in such fashion itself was held to be impermissible mode to resolve the disputes by this alternative dispute resolution mode through the Arbitration. The requirement of consent so provided and/or clause so mentioned above, in no way, permits any one party to appoint Arbitrator unilaterally.It is contrary to the terms and the law. Apart from this clause, it is necessary for both the parties to appoint and/or nominate and/or select sole Arbitrator by consent. The appointment of the Arbitral Tribunal without consent itself was contrary to the agreed terms of the contract.In the court’s view, an Arbitrator’s role is quite limited though appointed by the parties, basically at the stage of fixing the meeting of arbitration proceedings. He is not empowered and/or even permitted to deal with the merit of the matter in such fashion on behalf of other party while calling or fixing the meetings. At this stage, the requirement is simply to give intimation and/or call upon the parties to attend in arbitration proceedings. Such notice/intimation in no way can be denial and/or assertion of other side’s case.From the contents of the communication dated 18.06.2010, it was clear that the Arbitrator who was Advocate of the Respondents, acted also as the Advocate and also as the Arbitrator. It is impermissible. Such dual capacity of Advocate and/or even of the Arbitrator is against the basic provisions of the Arbitration Act and/or the arbitration scheme itself. The Advocate by consent can act as Arbitrator, but cannot act in such dual capacity for only one party.It was also noted that the Petitioners never attended the arbitration proceedings. The learned Arbitrator noting this absentee, passed the exparte award by holding that the Respondent/disputant proved “beyond reasonable doubt” that the Petitioners breached and failed to perform the terms and conditions of MOU. This itself meant the learned Arbitrator had passed the award based upon the documents provided by the Respondents and the averments so made in the statement of claim.The court held that the award must be based on the materials available on the record and the law. There is reason to only follow the concept of “beyond reasonable doubt” in such circumstances. The unilateral acceptance of the case of the Respondents, in such fashion, resulted into the Award whereby direction is to provide one flat and/or in the alternatively, to pay Rs.77,50,000/- with interest towards compensation and liquidated damages though there was no such specific agreement between the parties.The aspect of compensation and/or liquidated damages means supporting evidence and material. It is necessary for the party one who claims such compensation and liquidated damages to show how they suffer loss and the basis for claiming such damages, apart from proving the proved default by the other side.The court further held that the remedy under consumer Act as chosen already and as the complaint of the Respondents was dismissed for same contract and the cause and the Appeal was pending, the award so passed therefore also bad in law. The competent consumer court has already rejected the complaint of the Respondents. The Arbitrator, ought not to have decided the arbitration petition in such fashion. The Award was held to be perverse.The Supreme Court has clarified that such proceeding is permissible though there exists arbitration clause. Therefore, even at this stage of passing of Award, the dispute/conflict so raised was pending before the judicial authority between the parties arising out of the same contract towards the same, still proceeded with the matter and passed the award without giving basic opportunity of any kind to the other parties.The award was against the principles of natural justice. It was noted that the Petitioners, as recorded above, deliberately not attended the arbitration proceedings basically for the reason that the proceedings so initiated and the way in which the Arbitrator was appointed and proceeded further itself was contrary to the settled principles of arbitration law.In a given case, the Petitioner would have participated in the arbitration proceedings and resisted the claim in all respects. The Arbitrator would have passed the appropriate order. But in this case the Petitioners having made their position clear in writing and had resisted every steps taken by the Respondents including the steps taken by the Arbitrator, who was no one else, but the Advocate of the Respondents and, therefore, the non-participation, in no way, can be treated as deliberate action to avoid the settlement of disputes through the arbitration proceedings.This court concluded that both the proceedings so initiated and concluded were illegal, contrary and perverse. The Award so passed is unsustainable and liable to be quashed and set aside on all counts. DECISION HELD BY COURT: Award dated 14.08.2010 was quashed and set aside and also the execution proceedings and actions arising out of it; The Petition was allowed accordingly. | on 20 02 1arbp 121 2012.sxwdgmIN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONARBITRATION PETITION NO. 121 OF 20121 Mrs. Prajakta Mahesh Joshi Indian inhabitant age 35 years residing at Flat No.D514 DevDeveshwar Society Telli Gali Xth Lane Andheri East Mumbai 400 0692 Mr. Mahesh Shrikrishna Joshi Indian inhabitant age 36 years residing at Flat No.D514 DevDeveshwar Society Telli Gali Xth Lane Andheri East Mumbai 400 069.... Petitionersvs1 Mrs. Rekha Uday Prabhu 104 Apollo Complex R.K. Singh Marg Andheri East Mumbai 4000692 Mr. Uday Manjunath Prabhu 104 Apollo Complex R.K. Singh Marg Andheri East Mumbai 4000693 The Secretary and Chairman RNA Hills Cooperative Housing Society Ltd. Near Sathya Darshan Gundavali Gaothan Andheri East mumbai 400 069..... RespondentsMr. Subodh Gokhale for the petitioners.Mr. V. Verma i by S. K. Associates for respondents 1 and 2. on 20 02 2arbp 121 2012.sxwCORAM: ANOOP V. MOHTA J. DATE : December 06 2012ORAL JUDGMENT:Heard finally by consent. 2The Petitioners have invoked Section 34 of the Arbitration and Conciliation Act 1996and thereby challenged an exparte award. The operative part of Award dated 14 August 2010 is as under :“(i)I hereby direct and award that the Opponent Nos. 1 2 be held responsible & accountable for specific breach of their terms of contract along with Op. No.3 RMNA Hills CHS Ltd for its contributory role herein above hence are jointly & severally liable & accountable to arrange and to execute a SALE DEED & convey the contracted Flat consisting of 2BHKadmeasuring 1050 SQFT at RNA Hills CHS Ltd. Opp. Satya Darshan AndheriMumbai 400 069 if possible Flat no. A102 or its substitute main road facing corner flat on the 1st floor within its complex on collection of sum of Rs. 38 00 000from the Disputants within 30 days hereof. the difference of which has to be borne by the 3opponents herein & the Deed Registration charges Rs.30 000 & Society’s Transfer charges Rs. 25 000to be advanced solely by the Disputant to the RNA Hills CHS Society on receipt of this Arbitral Award & on issuance of allotment confirmatory letter to above effect by Opponent No.3 RNA Hills CHS Ltd.(ii)In the alternative the Opponents will locate within next 30 days a suitable flat on the first floor of the same size in a like comp lex in the same vicinity & complete all formalities failing which they will be liable to jointly and proportionately pay in advance per month on or before 7th of each month a sum of Rs. 48 000towards cost compensation for nonaccommodation to the Disputants until next 3& thereafter every month within an automatic increase of 15%per quarter on the last paid amount as disturbance allowance until finalization of on 20 02 4arbp 121 2012.sxwthe above arrangement.(iii)The Opponents shall also reimburse the Brokerages & Charges if any payable for arranging an alternate accommodation upto a maximum of 2 months rental or compensation as at Sr. No.hereinabove along with initial lease rental advance deposit not exceeding to Rs.5 00 000immediately on receipt of demand to pay so to any 3rd party on account of the above and without any further application representation from the disputants for the same but refundable on handing over peaceful possession with all the proprietary documents including share certificates registered in its favour and the 2BHK flat admeasuring 1050 SQFT and on signing of a quit claim deed on satisfactorily completing the above transactions. along with simple interest @ 10%per annum from 30 days after the date of receipt of this Arbitral Award until physical payment and if the compensation is settled after 90 days of receipt of the arbitral award & beyond then interest has to be calculated @ 12% {Twelve per cent} per annum payable compounded on monthly rest basis until payment.(v)Disputant’s further representation with respect to claim for additional compensation against Harassment and Mental agony coupled with cost of increased operations including litigations initiated and for making alternate accommodation in the process of above transaction has been rejected as the compensation considered per contracted terms have been fairly & thoroughly taken in view & weighed upon against the interest that must have earned accrued on the Rs.38 00 000 while lying with the disputants when in he above process & also while arriving per above determinations.(vi)Cost of this Arbitration proceedings is Rs.15 000 {Fifteen thousand} payable by the entire 2 Disputants as well as by the on 20 02 6arbp 121 2012.sxw3 opponent parties proportionately.(vii)The opponents shall comply with the above Arbitral Award within 30 days of receipt thereof failing which recovery proceedings may be adopted.(viii)Copies of this Arbitral Award is being supplied to all the parties accordingly.”The basic events as per the Petitioners are as under :3On 28 February 2007 a MOUfor a sale of a 2 BHK flat was signed between the Petitioners and the Respondents. The Respondents made initial payment of Rs. 50 000 and handed over the documents. On 23 June 2007 as the Respondents delayed balance payment the Petitioner on request refunded the advance of Rs.50 000 to the Respondents by a Bank transfer. On 19 August 2007 the Respondents filed a Consumer Complaint No. 1407 before State Consumer Disputes Redressal Commission Maharashtra against the Petitioners. On 10 January 2008 the complaint was dismissed by the State Commission. On 17 February 2008 the Respondents file First Appeal No. 1008 before the National Consumer Commission New Delhi challenging the State Commission Order. The same is pending. on 20 02 7arbp 121 2012.sxw4On 10 May 2010 the Petitioners received a Notice of Arbitration. The Petitioners sent a reply through its AdvocatecumArbitrator. On 18 June 2010 the Petitioners received a reply notice from the learned Arbitrator posing as an Advocate for the Respondents. On 26 August 2010 a copy of the Arbitral award received by the Petitioners.Unilateral appointment of ArbitratorcumAdvocate by one party:5There is no dispute that there exists the arbitration clause in the agreement between the parties. As dispute arose Respondents 1 and 2 invoked arbitration clause and thereby unilaterally appointed Advocate Shri Shailendra S. Gandhi as the Arbitrator. 6The Petitioners immediately by letter dated 24 May 2010 replied to the notice issued by the Arbitrator dated 10 May 2010 by which he fixed the first hearing meeting at his office and also directed the parties to deposit Rs.50 000 towards the initial payment. The Petitioners resisted every aspects of the invocation and the appointment of the Arbitrator and specifically mentioned that they would not be participating in the arbitration proceedings. It was on 20 02 8arbp 121 2012.sxwspecifically pointed out about the dismissal of the Respondents consumer complaint. It was also mentioned about the refund of Rs.50 000 to the Respondents. Therefore there existed no dispute. The Petitioners thereby also contended that having once invoked the judicial proceedings there was no question of invoking of arbitration clause apart from unilateral appointment of the Arbitrator. Dual capacity of Arbitrator and Advocate of one party is impermissible:7Strikingly the Arbitrator who was an Advocate of the Respondents by its reply dated 18.6.2010 referring to the above communication reply of Petitioners insisted the Petitioners to participate in the arbitration proceedings on 28 June 2010 by stating it to be the last and final call. Surprisingly the learned Arbitrator who appears to be the Advocate of the Respondents even replied in detail to the contentious issues specifically raised by the Petitioners in communication dated 24 May 2010. The tenure of the reply communication of Arbitrator dated 18.06.2010 was like an Advocate replying on behalf of the client. If we overlook last paragraph of the communication of the Arbitrator the denial and the assertion are as that of contesting Respondents. on 20 02 9arbp 121 2012.sxw The consent is a must for app ointment of arbitral tribunal:8The arbitration clause referring to the Arbitration Act permits the parties to resolve their dispute through a sole Arbitrator. Considering the scheme and object of Arbitration Act in my view first requirement is that the Arbitrator must be appointed by the consent of the parties. The consent of Petitioner was never obtained. Therefore the unilateral appointment of Arbitrator in such fashion itself is impermissible mode to resolve the disputes by this alternative dispute resolution mode through the Arbitration. The requirement of consent so provided and or clause so mentioned above in no way permits any one party to appoint Arbitrator unilaterally. It is contrary to the terms and the law. Apart from this clause it is necessary for both the parties to appoint and or nominate and or select sole Arbitrator by consent. The appointment of the Arbitral Tribunal without consent itself was contrary to the agreed terms of the contract. 9The Arbitrator s role is quite limited though appointed by the parties basically at the stage of fixing the meeting of arbitration proceedings. He is not empowered and or even permitted to deal with the merit of the matter in such fashion on behalf of other party while calling or fixing the meetings. At this stage the requirement is on 20 02 10arbp 121 2012.sxwsimply to give intimation and or call upon the parties to attend in arbitration proceedings. Such notice intimation in no way can be denial and or assertion of other side s case. From the contents of the communication dated 18.06.2010 it is clear that the Arbitrator who was Advocate of the Respondents acted also as the Advocate and also as the Arbitrator. It is just impermissible. Such dual capacity of Advocate and or even of the Arbitrator is against the basic provisions of the Arbitration Act and or the arbitration scheme itself. The Advocate by consent can act as Arbitrator but cannot act in such dual capacity for only one party. The award is illegal.10The learned Arbitrator by the impugned Award directed the Petitioner to provide flat to the Respondents and in the alternative directed to pay compensation and or liquidated damages to the extent of Rs. 77 50 000 along with simple interest at 10% and also awarded 12% interest if amount as awarded is not paid within 90 days. He also proportionately awarded the cost of Rs.15 000 . The whole approach is contrary to law and the record. 11As recorded above the Petitioners considering the facts and circumstances immediately after receiving of arbitration notice on 20 02 11arbp 121 2012.sxwdenied the claim as well as the initiation of arbitration in such fashion and specifically opposed even the participation in the arbitration proceedings. The Petitioners therefore never attended the arbitration proceedings. The learned Arbitrator noting this absentee has passed the exparte award by holding that the Respondent disputant proved “beyond reasonable doubt” that the Petitioners breached and failed to perform the terms and conditions of MOU. This itself means the learned Arbitrator has passed the award based upon the documents provided by the Respondents and the averments so made in the statement of claim. The award must be based on the materials available on the record and the law. There is reason to only follow the concept of “beyond reasonable doubt” in such circumstances. 12Admittedly there is nothing on record to show that the Respondents led any evidence to support their claim. The learned Arbitrator ought to have considered the reply filed by the Petitioners resisting the claim of the Respondents on all counts. The unilateral acceptance of the case of the Respondents in such fashion resulted into the Award whereby direction is to provide one flat and or in the alternatively to pay Rs.77 50 000 with interest towards compensation and liquidated damages though there was no such on 20 02 12arbp 121 2012.sxwspecific agreement between the parties. The aspect of compensation and or liquidated damages means supporting evidence and material. It is necessary for the party one who claims such compensation and liquidated damages to show how they suffer loss and the basis for claiming such damages apart from proving the proved default by the other side. Mere averments itself are not sufficient. The Arbitral Tribunal ought to have considered the averments as well as the documents placed on record and the basis for arriving at and or granting such compensation for the first time in the present facts and circumstances of the case. 13The learned Arbitrator has in fact noted the pendency of Appeal No.100 2008 before the higher forum under the Consumer Protection Act. In National Seeds Corporation Limited v. M. Madhusudhan Reddy and another 1 the Supreme Court has reiterated that arbitration proceeding is an additional remedy when it comes to selecting between the Consumer Act and the Arbitration Act. The remedy under consumer Act as chosen already and as the complaint of the Respondents was dismissed for same contract and the cause and the Appeal is pending the award so passed therefore also 1(2012) 2 SCC 506 on 20 02 13arbp 121 2012.sxwbad in law. The competent consumer court has already rejected the complaint of the Respondents. The Arbitrator ought not to have decided the arbitration petition in such fashion. The Award is perverse. The Supreme Court has clarified that such proceeding is permissible though there exists arbitration clause. Therefore even at this stage of passing of Award the dispute conflict so raised was pending before the judicial authority between the parties arising out of the same contract towards the same still proceeded with the matter and passed the award without giving basic opportunity of any kind to the other parties. The award is against the principles of natural justice. It is necessary to note that the Petitioners as recorded above deliberately not attended the arbitration proceedings basically for the reason that the proceedings so initiated and the way in which the Arbitrator was appointed and proceeded further itself was contrary to the settled principles of arbitration law. I am not inclined to accept that the Petitioners deliberately not participated in the arbitration proceedings. The case is illegal inception and or invocation of the arbitration proceedings itself. The Respondents have already invoked judicial proceedings to recover their amount and the amount was refunded long before and therefore there was no arbitrable dispute pending at the relevant time. The learned on 20 02 14arbp 121 2012.sxwArbitrator knowing fully the case of the Petitioners proceeded further and has passed the impugned award which in my view is contrary to the provisions of the Arbitration Act Evidence Act Code of Civil Procedure apart from the principle of natural justice. No deliberate nonparticipation.14Admittedly the Arbitrator is not party in the present proceedings. 15In a given case the Petitioner would have participated in the arbitration proceedings and resisted the claim in all respects. The Arbitrator would have passed the appropriate order. But in this case as recorded above the Petitioners having made their position clear in writing and had resisted every steps taken by the Respondents including the steps taken by the Arbitrator who was no one else but the Advocate of the Respondents and therefore the nonparticipation in no way can be treated as deliberate action to avoid the settlement of disputes through the arbitration proceedings. I am inclined to observe that both the proceedings so initiated and concluded is illegal contrary and perverse. The Award so passed is unsustainable and liable to be quashed and set aside on all counts. on 20 02 15arbp 121 2012.sxwThe cost for the first time in Section 34 Petition by the Court.16The learned counsel appearing for the Petitioners submitted that this is a case where the cost should be awarded as the Petitioners required to pay the court fee of Rs.75 000 apart from other expenses because of such illegal initiation of the proceedings by the Respondents.The learned counsel appearing for the Respondents resisted the same. He has pointed out that the Award is dated 14.08.2010 and the Petition under Section 34 of Arbitration Act was filed on 16.11.2010. No further steps were taken to proceed with this arbitration proceedings immediately. This Court on 9.2.2012 after removal of office objections by the Petitioners and as matter listed issued notice for final disposal. On 23.02.2012 rule was made returnable. The Petition is now listed for final hearing and therefore there is no question of awarding any costs as prayed. Considering the fact that though initiation of the arbitration proceedings was not as per the scheme of Arbitration Act but nonparticipation of the Petitioners and not initiating proceedings within reasonable time in my view disentitle him to claim the cost of this proceedings as prayed because of delay in persuing the present arbitration petition. on 20 02 16arbp 121 2012.sxwThe Respondents in fact have initiated execution proceedings and even attached some property of the Petitioners. However now in view of this order as Award goes so also all the execution proceedings arising out of the same. This Court after considering the averments of both the parties and though the Petitioners inspite of service failed to appear before the Arbitrator but considering the above circumstances inclined to quash and set aside the impugned Award including the cost awarded by keeping all points open for the parties to initiate and or continue with their proceedings if any therefore also not awarding the costs as prayed.17Resultantly the following order :(I)Award dated 14.08.2010 is quashed and set aside and also the execution proceedings and actions arising out of it |
Statutory obligation of the Centre and the States to provide nutritional support: Supreme Court of India | It is the statutory obligation of the Centre and the State to provide nutritional support to those who suffer from malnutrition. This was laid down by the honorable Supreme Court of India presided over by J. Ashok Bhushan, J. R. Subhash Reddy and J. M. R. Shah in the case of Dipika Jagatram Sahani vs. Union of India and others. [writ petition (civil) no. 1039 of 2020]. A Public Interest Litigation under Article 32 of the Constitution of India questioning the closure of the Anganwadi centers across the country during the lockdown due to pandemic Covid-19, was filed. It is a statutory obligation of the Centre and the States to provide for nutritional support to the pregnant women and lactating mothers, nutritional support to children and to take steps to identify and provide meals for children who suffer from malnutrition. Some of the States stated that decision had been taken not to open the Centers looking to the continuance of the pandemic. Some of the States have stated that the Centers are closed temporarily. It was further pleaded that Government of India, Ministry of Women & Child Development had issued communication (Guidance Note) to States and Union Territories on operations of Anganwadi Services. | IN THE CIVIL ORIGINAL JURISDICTION WRIT PETITIONNO.1039 OF 2020 DIPIKA JAGATRAM SAHANI ...PETITIONER(S) UNION OF INDIA AND OTHERS ...RESPONDENT(S) JUDGMENT ASHOK BHUSHAN J. This writ petition has been filed as a Public Interest Litigation under Article 32 of the Constitution of India questioning the closure of the Anganwadi Centres across the country. The petitioner states that through Anganwadi Centres supplementary nutrition to pregnant women lactating mothers adolescent girls and children upto the age of 6 years were being provided which fulfilled the State objective of holistic development of children under 6 years and to provide food and nutrition to the beneficiaries. In the writ petition the petitioner impleaded the Union of India all States and Union Territories and has prayed for following reliefs: a) For a writ of mandamus directing the Union of India and all States and Union Territories to forthwith reopen all the Anganwadi Centres in the country and provide Anganwadi services as before the lockdown and in accordance with Sections 4 to 7 of the National Food Security Act b) For writ of mandamus directing the Union of India and all States and Union Territories to provide Hot Cooked Meals Take Home Rations in consonance to the provisions of the National Food Security Act 2013 as well as The Supplementary Nutrition For a writ of mandamus directing the Union of India and all States and Union Territories to conduct growth monitoring of children to document growth in the wake of the after effects of the pandemic more particularly main nourishment among children and anemia in girl children and initiate corrective steps forthwith. d) For an order in terms of recommendations 1 6 of the Right to Food Campaign in its representation dated 6.8.20 to the Union of India at Annexure P 8 hereto and as set out in paragraph no.37 above. 3 e) For any other order deemed fit and proper under the circumstances of the present 2. The Constitution of India with the object of securing to all its citizens social and economic justice contains various Articles which empower making of special law in favour of women and children. Article 47 of the Constitution which forms the part of Directive Principles of the State Policy provides that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. The Government of India with the above objective launched a welfare scheme namely Integrated Child Development Services Scheme in the year 1975. The Scheme was designed as an early childhood development programme aimed to address health nutrition and development needs of young children who are future of India and pregnant and nursing mothers. The Scheme was designed to promote holistic development of children under 6 years of age. This Court in a Public Interest Litigation in Writ Petition No.196 of 2001 People’s Union for Civil Liberties vs. Union of India and 4 others had issued various directions for protection of right to food of the poor and the underprivileged sections including children and women. This Court has been pro actively directing the Central Government and the State Governments to effectively implement the Integrated Child Development Services Scheme. Various directions were issued by this Court from time to time. 3. The Parliament enacted the National Food Security Act 2013to provide for food and nutritional security in human life cycle approach by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity and for matters connected therewith. The Statement of Objects and Reasons of the Act apart from containing various other objects proposed to provide following also in paragraph 4(c) d) andentitle every pregnant woman and lactating mother to meal free of charge ...... ...... ...... 5 during pregnancy and six months after child birth through the local anganwadi so as to meet the nutritional standards specified in Schedule II and to provide to such women maternity benefit of rupees one thousand per month for a period of six months in accordance with a scheme including cost sharing payable in such instalments as may be prescribed by the Central Government. d) entitle every child up to the age of fourteen yearsage appropriate meal free of charge through the local anganwadi so as to meet the nutritional standards specified in Schedule II in the case of children in the age group of six months to six years andone mid day meal free of charge everyday except on school holidays in all schools run by local bodies Government and Government aided schools up to class VIII so as to meet the nutritional standards specified in Schedule II in the case of children in the age group of six to fourteen years e) require the State Government to identify and provide meals through the local anganwadi free of charge to children who suffer from malnutrition so as to meet the nutritional standards specified in Schedule II entitlements of women and children in accordance with the guidelines including cost sharing between the Central Government and the State Governments in such manner as may be prescribed by the Central Government. 4. The Act 2013 by Section 4 creates a statutory right of every pregnant woman and lactating mother free meals during pregnancy and six months after the child 6 birth. Section 5 provides for nutritional support to children in the case of children in the age group of six months to six years age appropriate meal free of charge through the local Anganwadi so as to meet the nutritional standards. Similarly Section 6 provides for and management of child malnutrition. Sections 4 5 and 6 are as follows: “Section 4. Nutritional support to pregnant women and lactating mothers. Subject to such schemes as may be framed by the Central Government every pregnant woman and lactating mother shall be entitled to— a) meal free of charge during pregnancy and six months after the child birth through the local anganwadi so as to meet the nutritional standards specified in Schedule II and maternity benefit of not less than rupees six thousand in such instalments as may be prescribed by the Central Government: Provided that all pregnant women and lactating mothers in regular employment with the Central Government or State Governments or Public Sector Undertakings or those who are in receipt of similar benefits under any law for the time being in force shall not be entitled to benefits specified in clauseSubject to the provisions contained in clause b) every child up to the age of fourteen years shall have the following entitlements for his nutritional needs namely:— 7 a) in the case of children in the age group of six months to six years age appropriate meal free of charge through the local anganwadi so as to meet the Schedule II: Provided that for children below the age of six months exclusive breast feeding shall be promoted b) in the case of children up to class VIII or within the age group of six to fourteen years whichever is applicable one mid day meal free of charge everyday except on school holidays in all schools run by local bodies Government and Government aided schools so as to meet the Schedule II. 2) Every school referred to in clauseof sub section and anganwadi shall have facilities for cooking meals drinking water and sanitation: Provided that in urban areas facilities of centralised kitchens for cooking meals may be used wherever required as per the guidelines issued by the Central Government. 6. Prevention and management of child malnutrition. The State Government shall through the local anganwadi identify and provide meals free of charge to children who suffer from malnutrition so as to meet the nutritional standards specified in Schedule 5. The Anganwadi Centres which were running in the country since 1975 under the Integrated Child Development Services Scheme now have been given statutory recognition under the Act 2013. Section 2(1) defines Anganwadi in the following words: “Section 2(1) “anganwadi” means a child care and development centre set up under the Integrated Child Development Services Scheme of the Central Government to render services covered under section 4 clauseof sub sectionof section 5 and 6.” 6. Anganwadi Centres which are manned by Anganwadi workers helpers are entrusted with implementation of a large number of welfare schemes initiated by the Central Government as well as by the State Governments. The beneficiaries who are registered with Anganwadi are also provided following: a) providing supplementary nutrition b) growth monitoring and counseling c) pre school education d) immunization and e) referral services. 7. After spread of pandemic Corona virus(COVID 19) Anganwadi Centres were closed throughout the country in March 2020. The distribution of special nutrition and other benefits to be provided for beneficiaries 9 being essential services were permitted to be conducted by Anganwadi staff by resorting to Take Home Ration. 8. Under Section 7 of the Act 2013 it is the obligation of the State Governments to implement schemes covering entitlements under Sections 4 5 and 6 of the Act 2013 in accordance with the guidelines including cost sharing between the Central Government and the State Governments in such manner as may be prescribed by the Central Government. The Schedule II of the Act 2013 provides for nutritional standards. Schedule II of the Act 2013 is as follows: “SCHEDULE II See sections 4(a) 5(1) and 6] NUTRITIONAL STANDARDS standards for children in the age group of 6 months to 3 years age group of 3 to 6 years and pregnant women and lactating mothers required to be met by providing “Take Home Rations” or nutritious hot cooked meal in Development Services Scheme and nutritional standards for children in lower and upper primary classes under the Mid Day Meal Scheme are as follows: Calories Protein Serial 1. Children(6 months to Take Home Ration 500 12 15 Category Type of meal 3 years) 2. Children(3 to 6years) Morning Snack and 500 12 15 10 3. Childrenwho are Hot Cooked Meal malnourished 4. Lower primary classes Hot Cooked Meal 450 12 5. Upper primary classes Hot Cooked Meal 700 20 6. Pregnant women and Take Home Ration 600 18 20 Lactating mothers __________________________________________ 9. The lockdowns which were placed in the entire country in exercise of the power under the Disaster Management Act 2005 were lifted by the competent authority in phased manner and gradually specified activities were permitted to be opened. 10. In this writ petition we had issued notice on 21.09.2020 and also directed the petitioner to serve a copy of the petition to the learned Solicitor General of India. The counter affidavits have been filed on behalf of Union of India. The Union of India has filed an affidavit dated 20.11.2020. It states that the Supplementary Nutrition Programme supplied under ICDS Scheme is of two types for different beneficiaries i.e. a)Take Home Ration for pregnant women & lactating mothers and children in the age group of 6 months to 3 11 years andMorning Snacks and Hot Cooked Meal for children in the age group of 3 6 years. Since the Supplementary Nutrition Programme is implemented managed and controlled by the respective State UT it is at their discretion to decide items of food to be supplied under the Supplementary Nutrition as per local food habits regional preferences and availability of food in local area which however has to be done by keeping in view the overall guidelines nutritional norms and food safety standards. 11. It has been further pleaded that Government of India Ministry of Women & Child Development has issued communication dated 11.11.2020 to States and Union Territories on operations of Anganwadi Services. 12. After filing of the affidavit the matter was taken up by this Court on 27.11.2020 on which dated following order was passed by this Court: “The affidavit has been filed on behalf of the Union of India. In the affidavit it has been stated that the decision has been taken on 11.11.2020 and guidelines issued on 12 operation of Anganwadi services with operational guidance note for continuation of services in the context of COVID 19 which has been brought on the record as Annexure R 4. Let Government of India file a detailed affidavit with regard to implementation of the guidelines dated 11.11.2020. The States may also file an additional affidavit regarding the measures taken 3 with regard to guidelines dated 11.11.2020 issued by the Government of India. Mr. Colin Gonsalves learned senior counsel has also submitted that for small children upto 6 years neither food nor any education is provided. With regard to the above aspect also in the additional affidavit details may be given by the Union of India as well as by the States. Two weeks’ time is granted. List in the week commencing from 14.12.2020.” 13. The Union of India as well as the States and Union Territories have filed affidavits in this writ petition bringing on record the steps taken by the respective States UTs regarding implementation of the requirement as contained in Sections 4 5 and 6 of the Act 2013. 14. Shri Colin Gonsalves learned senior counsel appearing for the petitioner contends that although initially under the order issued by the Government of India Ministry of Home Affairs beneficiary were not 13 to attend the Anganwadi but after lockdown came to an end due to non opening of Anganwadi in various States beneficiaries children pregnant women and lactating mothers are suffering. The pandemic has caused severe strain on the employment and means of livelihood of a large sections of the society especially marginal sections who require immediate extension of all benefits as envisaged in the Scheme. Shri Gonsalves has also filed additional documents in support of his writ petition and submits that even National Human Rights Commission has also made recommendations on 28.09.2020 and 29.09.2020 after impact assessment issued advisory to reopen Anganwadi Centres immediately. Shri Gonsalves submits that due to non providing of hot cooked meals to children upto the age of six years and children who are affected of malnutrition they are suffering which needs immediate attention and remedial action. 15. Smt. Aishwarya Bhati learned Additional Solicitor General appearing for Union of India submits that Union of India has filed its Guidance Note dated 11.11.2020 providing resumption of Anganwadi Services outside 14 containment zones with immediate effect after complying health and safety protocols. It is further submitted by the learned Additional Solicitor General that Union of India has also issued an operational Guidance Note for continuation of services in the context of COVID 19. The Union of India also referring to the Guidance Note dated 11.11.2020 has sought status report from the States and Union Territories. In the additional affidavit it has been stated that a few of UTs and States like Andaman and Nicobar Chhattisgarh Goa Meghalaya and Rajasthan Anganwadi Centres have been opened and services are being provided therein. 16. Learned counsel appearing for various States and Union Territories have also advanced their submissions. The States and Union Territories in their affidavits have submitted that the States and Union Territories have been providing necessary Home Take Ration as per the requirements to the beneficiaries which were delivered at door steps once in 15 days. Some of the States in their affidavits have stated that Anganwadi Centres have been opened. With regard to few States it 15 is stated that matter has been referred and the approval of the State Government is awaited. Some of the States have stated that decision has been taken as of now not to open the Centres looking to the continuance of the pandemic. Some of the States have stated that the Centres are closed till 31.12.2020 and decision will be taken thereafter. 17. We have considered submissions of the learned counsel for the parties and have perused the records. Children are the next generation and therefore unless and until the children and the women have the nutritious food it will affect the next generation and ultimately the country as a whole. No one can doubt that children are the future of our country and if there is some stinginess in providing them with adequate nutrition the country as a whole is deprived in future of taking the benefit of their potential. 18. As observed above it is now statutory obligation of the Centre and the States to provide for nutritional support to the pregnant women and lactating mothers 16 nutritional support to children and to take steps to identify and provide meals for children who suffer from obligation to preserve human life. Good health of its citizens is its primary duty. International covenants also aim at highest attainable standards of physical and mental health. This is in interest of social justice. Inadequate supply of nutritious food to the citizens more particularly to the children and the women shall affect their health. Therefore the same shall be in violation of their fundamental right to health right to live with dignity guaranteed under Article 21 of the Constitution of India. 19. The Centre as well as States are statutorily obliged to implement statutory obligation as imposed under Sections 4 5 and 6 of the Act 2013. The nutritional support is required to be of the nutritional standards which have already been laid down to Schedule II of the Act 2013 and all States UTs are obliged to implement such Scheme and have to comply with Schedule II. The main emphasis in the writ 17 petition being the issue of opening of Anganwadi Centres throughout the country we need to first consider the above issue. Provision of foodgrains as per the provisions of the National Food Security Act 2013 is a statutory obligation on the State. Article 47 of the Constitution provides that one of the primary duties of the State is to raise the level of nutrition and the standard of living of the people. 20. After issuance of Order dated 24.03.2020 by Ministry of Home Affairs for containment of Covid 19 Anganwadi Centres in States Union Territories were closed. The Government of India Ministry of Women and Child Development vide letter dated 30.03.2020 directed issuance of necessary instructions to the District Authorities to utilize services of Anganwadi workers helpers for providing supplementary nutrition to the beneficiaries at their doorsteps. After taking suitable measures as suggested by Health Authorities Government of India Ministry of Home Affairs issued an order dated 15.04.2020 in exercise of powers under Section 10(2)(l) of the Disaster Management Act 2005 18 wherein in paragraph 8 it was provided that Anganwadis shall remain functional by distributing the food items and nutrition once in fifteen days at the doorsteps of the beneficiaries i.e. Children pregnant women and lactating mothers. The order further stated the beneficiaries shall not attend the Anganwadi. 21. By subsequent order issued by the Government of India Ministry of Home Affairs various more activities were permitted. ON 14.10.2020 the Ministry of Women and Child Development wrote to the Ministry of Home Affairs regarding reopening of Anganwadi Centres. The Government of India Ministry of Home Affairs issued an O.M. dated 22.10.2020 stating that the Ministry of Women and Child Development may take decision after consultation with concerned States Union Territories for reopening of Anganwadi centres which are out of the containment zone taking appropriate measures related to health and safety. 22. The Government of India Ministry of Women and Child Development issued a guidance note on 11.11.2020 on operation of Anganwadi services which note is to the following effect: “F. No. PA 85 2020 CPMU C No 85941 Government of India Ministry of Women & Child Development Jeevan Vihar Building New Delhi 110001 11 t h November 2020 The Principal Secretaries Secretaries Department of Social Welfare Women & Child Development of all States UTs Subject: Guidance note on operations of Anganwadi Services — regarding Sir Madam Under nutrition is one of the leading causes of morbidity and mortality in children under the age of 5 years. Delivery of preventive services to mitigate the impact of the pandemic on the nutrition is well recognized. Provision of essential services like Growth nutrition etc. to ensure the health and well being of the pregnant ladies lactating mothers and children below 5 years is most important. In view of Covidl9 pandemic globally it is imperative to ensure that the beneficiaries do not suffer and remain away from Anganwadi Referral Hence Anganwadi Services may be resumed outside containment zones with immediate effect complying health and safety protocols. Further cleanliness Hygiene and Sanitization may be ensured in and around the premises of Anganwadi Center use of mask face covers shall be mandatory for 20 everyone visiting the Centre including AWW and AWH. Also frequent hand washing and strict social distancing as per MoHFW guidelines must be followed at Anganwadi Ministry of Women and Child Development has taken up the matter with Ministry of Home Affairs regarding reopening of AWCs. Ministry of Home Affairs vide OM No. 40 6 2020 DM 1(A) Part 2 dated 22nd October 2020advised that AWCs may be opened outside the containment zones by adhering to the Standard Operating Procedures SOP) related to health and security measures in consultation with State UTs. A guidance note for resuming Anganwadi Services is enclosed herewith. Based on the guidance note States UT Governments need to develop their own SOP for reopening AWC when the State Union Territory Governments declare it safe for AWC to operate. All States UTs are expected to comply with the COVID 19 related directions issued by Ministry of Home Affairs and Ministry of Health and Family Welfare Government of India from time to time. Therefore it is requested that States UTs may decide reopening of AWCs outside containment zones while adhering to health and safety protocols as per the guidelines of MOHFW. Yours sincerely Executive Director POSHAN Abhiyan MWCD Copy to: PS to Minister PS to MoS Secretary MoHFW and Secretary MHA” 21 23. It is also relevant to notice that in the month of September 2020 the National Human Rights Commission issued an advisory on Right to food security and nutrition in context of Covid 19. The National Human Rights Commission issued following Advisory dated 28.09.2020 Related to Nutrition: “I. Implementation of Anganwadi Services i. Recognise ICDS as an ESSENTIAL SERVICE immediately to provide crucial growth monitoring immunization cooked meal and nutritional counselling services with adequate safety protocols to prevent COVID infection for anganwadi workers women and children. ii. Ensure that sufficient quantity of dry rations and take home rations are made available to children under three years as well as pregnant and lactating women.” 24. After issuing a guidance note on 11.11.2020 several States have taken decision to open Anganwadi Centres. The State of Meghalaya opened its Anganwadi Centres w.e.f. 03.12.2020. The State of Punjab opened its Anganwadi Centres w.e.f. 09.12.2020 the State of Rajasthan also opened its Anganwadi Centres w.e.f. 07.12.2020. 25. Even before the order dated 11.11.2020 the State of Chhattisgarh had opened 12 593 Anganwadi Centres in the State w.e.f. September 2020. It is relevant to notice the affidavit filed on behalf of the State of Arunachal Pradesh. The State of Arunachal Pradesh issued an order dated 18.06.2020 titled “Strategy for opening of Anganwadi Centres” and under the aforesaid strategies Anganwadi Centres were to be reopened in two phases first Phase I from 15.07.2020 and phase II from 01.08.2020. Standard Operating Procedure dated 18.06.2020 was issued by the Government of Arunachal Pradesh Ministry of Women and Child Development 26. On the other hand there are few States who have taken decision not to reopen Anganwadi Centres. We may notice the counter affidavit filed on behalf of the State of Assam. In the affidavit it has been stated that Anganwadi Centres will be open as and when the 23 permission will be accorded by the Central Government in this regard. The State of Assam is under the impression that the order issued by the Ministry of Home Affairs dated 25.11.2020 provides for not opening of the Centres. The order dated 25.11.2020 of Government of India Ministry of Home Affairs filed as Annexure R1. Paragraph 16 which contains the heading “protection of Vulnerable persons” is as follows: “16. Persons above 65 years of age persons with co morbidities pregnant women and children below the age of 10 years are advised to stay at home except for essential and health purposes.” 27. The paragraph 16 as noted above does not in any manner create any prohibition in opening of Anganwadi Centres. The above guidelines have been issued keeping in view the protection of vulnerable persons and which requires pregnant women children below the age of 10 years to stay at home except for essential and health purposes. Services which are being provided by Anganwadi Centres are essential services. 24 28. We have already noticed the guidance note dated 11.11.2020 issued by Government of India which permits reopening of Anganwadi Centres with consultation of States Union Territories. State of Assam was thus fully empowered to take the decision regarding reopening of Anganwadi Centres and its stand taken in paragraph 7 to the following effect “All Anganwadi Centres will be opened as and when the permission is accorded by the Central Government in this regard” is not correct. The State could have very well taken a decision for reopening the Anganwadi Centres in view of the guidance note issued by the Government of India dated 29. The State of Maharashtra in its affidavit has stated that the Disaster Management department has restricted the reopening of Anganwadi Centres till the control of Covid 19 pandemic in the State and has approved the continuation of arrangement of supplies of Take Home Rations at the doorsteps of the beneficiaries. Some of the States have also in their affidavits stated that Anganwadi Centres be closed till 25 particular date like State of Tripura states that Anganwadi Centres are to be closed till 31.12.2020 State of Mizoram states that Anganwadi Centres be closed till 10.01.2021. Some of the States Union Territories have stated that the approval from the States Union Territories are awaited for reopening of Anganwadi Centres. 30. All the States Union Territories in their affidavits have given details of providing Take Home Rations(THR) as per guidelines and requirement contained in Act 2013. Different cereals and other items have been referred to in the affidavits filed by the States Union Territories which according to them complies with nutrition standards. Most of the States Union Territories have mentioned cereals as Take Home Ration for the beneficiaries from 3 to 6 years of age. The State of Maharashtra claim to supply Wheat Rice 62 grams Masoor Dal 28 grams Chana 30 grams Mirchi Powder 4 grams Turmeric Powder 4 grams Salt 8 grams Soybean Oil 10 gram per day per beneficiary. 26 31. The State of Bihar for a few months has not supplied Take Home Rations rather it has directed for crediting the amount equivalent to Take Home Ration to the Bank Account of the beneficiaries or their parents. The State of Bihar however has started distributing cereals as Home Take Rations by orders issued by the State of Bihar in April 2020. The State of Gujarat in its affidavit has stated that it is providing to Children8 packets of Balshakti 500gm Packets) Take Home Ration per month to match up nutritional requirements. Take Home Ration is being distributed through the medium of Gujarat Cooperative Milk Marketing Federation. It further states that since June 2020 the ready to eat nutritional traditional sweet 1 Kilogram per week in lieu of hot cooked meals is provided to 3 to 6 years’ children. We are of the view that the State ought to have included certain cereals in Take Home Ration instead of providing only ‘Balshakti’ and ‘Sukhadi’. The nutritional standard as provided in Schedule II of Act 2013 has to be met by all States and Union Territories. 27 32. There is no doubt that the Central Government as well as all the States and Union Territories have issued necessary guidelines for implementing statutory requirements of Act 2013 and for meeting the nutritional standards. The big question however is as to what extent the implementation is on the ground and the benefits are extended to beneficiaries as required by the Statute. The beneficiaries which belong to vulnerable class are not equipped with suitable mechanisms to raise issues of non implementation and not providing food articles complying with nutritional standards as provided in the Statute. 33. It is the obligation of the State to ensure that pregnant women lactating mothers and children in the age of 3 to 6 years and children who suffer from malnutrition are provided their dues. The State has to provide an appropriate mechanism for supervision and check child development officers and other district level officers who are entrusted to monitor the functioning of Anganwadi Centres have to be extra 28 vigilant and take steps so that no beneficiary is denied its dues. All States Union Territories should evolve an appropriate mechanism for supervision so that dues are received by beneficiaries for whom schemes are in place. It is for the State to secure health to its citizens as its primary duty. No doubt the Government is rendering this obligation through various schemes such as opening of Aanganwadis providing nutritious food through Aanganwadis Mid day Meal Scheme etc. but in order to make it meaningful it has to be within the reach of its people as far as possible and the Government must supply the nutritious food in the real sense bearing in mind the provisions of National Food Security Act. 34. The Government of India by its guidance note permitted all the States and Union Territories to open Anganwadi Centres it is the obligation of the States Union Territories to take decision for opening of Anganwadi Centres. As noted above several States Union Territories have already started running their Anganwadi Centres which is a positive step 29 towards achievement of the goal for which Anganwadi Centres were envisaged. We are of the view that unless there are any specific reasons for not opening of Anganwadi Centres all Anganwadi Centres beyond the containment zones should be made functional by all the States Union Territories at an early date. All States may review the situation and take positive decisions on or before 31.01.2021 and unless there are specific decisions taken by the State Disaster Management Authority of a particular State Anganwadi Centres be opened on or before 31.01.2021. 35. In view of the above discussions we allow this writ petition with following directions: I) As per guidance note dated 11.11.2020 issued by Government of India Ministry of Women and Development Territories who have not yet opened Anganwadi Centres shall take a decision to open Anganwadi Centres on or before 31.01.2021 situated outside the containment zone. II) The decision for not opening Anganwadi Centres in any State Union Territories or any part of State Union Territory shall be taken only after the State Disaster Management Authority of the State direct for not opening of Anganwadi Centres in State particular area of the State situated outside containment III) Anganwadi Centres situated in the containment zone shall not be opened till the containment zone. IV) All States Union Territories shall ensure that nutritional standards as provided in Schedule II of National Food Security Act 2013 reproduced herein above in para 13 is fulfilled by providing nutritional support to pregnant women lactating mothers nutritional malnutrition. V) All the States Union Territories shall issue necessary orders regarding monitoring and supervision of Anganwadi Centres to ensure that the benefit reaches to the beneficiaries and a Complaint Redressal Mechanism be put in place in each district. 36. The parties shall bear their own costs. J. J. J. New Delhi January 13 2021. |
Questions with regard to validity of the respective wills propounded by the parties will be ultimately decided in the Probate proceedings: High Court of Delhi | The Supreme Court in G. Gopal vs. C. Bhasker (2008) 10 SCC 489 has held that if a person who has even a slight interest in the estate of the deceased testator is entitled to file caveat and contest the grant of probate of will of the deceased testator. The same was observed by the Hon’ble High court of Delhi through the learned bench of Hon’ble Mr. Justice Amit Bansal in the case of Kailash Vohra Vs The State & Ors. [CM(M) 95/2019, CM No. 2811/2019 (for stay) & CM No. 16433/2019] The brief facts of the case are that a suit for permanent and mandatory injunction qua the Property was filed by Roopa Vohra, daughter of the petitioner herein, against Sh. K.L. Jain in his lifetime. The said suit was dismissed by the Trial Court and an appeal was filed against the said dismissal. During the pendency of the said appeal, Sh. K.L. Jain expired and an application for impleadment of legal heirs of Sh. K.L. Jain was filed, which was allowed. An application was filed by Roopa Vohra (plaintiff in the suit) under section 52 of the Transfer of Property Act, 1882 seeking a direction to restrain respondents herein from creating any third party interest in the Property, which was dismissed by the Appellate Court. The Appellate Court also dismissed the appeal against the judgment of the Trial Court. Roopa Vohra filed a second appeal against the order of dismissal of the first appeal, which was also dismissed by the High Court. The probate petition from which the present petition arises, was filed by the Petitioner on 10th September, 2014 seeking probate of will dated 3 rd December, 2013 executed by the deceased testator, Sh. K.L. Jain, in terms of which the petitioner is the beneficiary. The counsel for the petitioner contends that respondent no. 4 had no caveatable interest in the proceedings and therefore, the impleadment application filed by respondent no. 4 ought not to have been entertained. The counsel appearing on behalf of the respondents no. 2 to 4 submits that respondent no. 4 has a caveatable interest in the estate of the deceased testator, as he was a bonafide purchaser of the Property from the deceased testator. After hearing both the parties and perused the facts on record, the Hon’ble Court stated that “The fact that the petitioner himself had sought an injunction against the respondent no.4 in respect of the aforesaid Property clearly demonstrates that the petitioner was aware of the interest of the petitioner in the aforesaid Property. Further, an additional issue has been framed in the probate petition in respect of the registered Will dated 27th August, 2013 in favour of the respondent no. 4. Therefore, it cannot be said that the respondent no.4 does not have a caveatable interest in the estate of the deceased. That being so, the petitioner has a right to be impleaded in the probate petition.” It was also state that “The Probate Court has clearly observed that the impleadment application filed on behalf of respondent no. 4 is being allowed without going into the merits of the respective claims of the parties. Questions with regard to validity of the respective wills propounded by the parties will be ultimately decided in the Probate proceedings.” | IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 11th October 2021. CM(M) 95 2019 CM No. 2811 2019 & CM No. 16433 2019KAILASH VOHRA ..... Petitioner Through: Mr. Rajat Manchanda Advocate THE STATE & ORS ..... Respondent Through: Mr. Ajay Garg Ms. Tripti Gola and Mr. Mani Shankar Advocates. HON BLE MR. JUSTICE AMIT BANSAL AMIT BANSAL J.The present petition under Article 227 of the Constitution of India impugns the order dated 7th May 2018 passed by the Probate Court in P.C. No. 50443 16 whereby the impleadment application filed by the respondent no. 4 under Order I Rule 10 of the Code of Civil Procedure 1908 was allowed and respondent no. 4 was allowed to file objections in the Probate proceedings. The litigation between the parties with respect to the estate of deceased testator Sh. KL Jain viz. property bearing no. T 4 T 5 and T 6 Usha Chamber Ashok Vihar New Delhi hereinafter has had a chequered history which is set out hereinafter. CM(M) 95 2019 Signed By:SAKSHIRAMOLASigning Date:10.14.202100:04:04Signature Not Verified A suit for permanent and mandatory injunction qua the Property was filed by Roopa Vohra daughter of the petitioner herein against Sh. K.L. Jain in his lifetime. The said suit was dismissed by the Trial Court vide judgment dated 24th March 2012. Roopa Vohra filed an appeal bearing no. RCA No. 3 2012 against the said dismissal. During the pendency of the said appeal Sh. K.L. Jain expired on 15th December 2013. An application for impleadment of legal heirs of Sh. K.L. Jain was filed which was allowed vide order dated 26th July 2014 and respondents no. 2 and 3 being the daughters of Sh. KL Jain were brought on record. An application was filed by Roopa Vohra under section 52 of the Transfer of Property Act 1882 seeking a direction to restrain respondents no. 2 3 herein and respondent no. 4 herein from creating any third party interest in the Property which was dismissed vide order dated 26th July 2014 by the Appellate Court. The Appellate Court vide order dated 14th October 2014 dismissed the appeal against the judgment dated 24th March 2012 of the Trial Court. Roopa Vohra filed a second appeal bearing no. RSA No. 7 2015 against the order dated 14th October 2014 of dismissal of the first appeal which was also dismissed by this Court vide order dated 24th March 2015. The probate petition from which the present petition arises was filed by the Petitioner on 10th September 2014 seeking probate of will dated 3rd December 2013 executed by the deceased testator Sh. K.L. Jain in terms of which the petitioner is the beneficiary. Respondents no. 2 and 3 herein being daughters of the deceased testator were made the respondents in the said probate petition. Objections were filed by the respondents no. 2 and 3 to probate petition. Issues were framed by the Probate Court on 19th CM(M) 95 2019 Signed By:SAKSHIRAMOLASigning Date:10.14.202100:04:04Signature Not Verified November 2015 and an additional issue was framed on 12th January 2016 on the application filed by petitioner herein under Order 14 Rule 4 CPC. An application under Order 1 Rule 10 CPC was filed by respondent no. 4 on 13th November 2017 seeking impleadment in the probate case. The said application was contested by the petitioner by filing a reply. Vide the impugned order dated 7th May 2018 the Probate Court allowed the application under Order 1 Rule 10 CPC filed on behalf of the respondent no. 4 by observing that respondent no.4 has a caveatable interest in the estate of the deceased. Relevant portion of the aforesaid order is set out below: “Without going into the merits of the claims of the respective parties to avoid multiplicity of proceedings and to cut short the controversy I am of the view that the intervenor Rajat Bansal can be allowed to file his objections to the present probate as there appears to be a caveatable interest in the Estate of the deceased. However the delay needs to be compensated whereby a cost of Rs.10 000 is imposed on the intervenor subject to which the objections shall be filed. The objections shall be filed within three weeks with advance copy to the opposite party or counsel against acknowledgement. The petitioner may file reply to the objections on or before the next date of hearing with one week advance copy to the objector Rajat Bansal or his counsel. The objector Rajat Bansal shall have the liberty to file the rejoinder if he so desires.” CM(M) 95 2019 Signed By:SAKSHIRAMOLASigning Date:10.14.202100:04:04Signature Not Verified The counsel for the petitioner contends that respondent no. 4 had no caveatable interest in the proceedings and therefore the impleadment application filed by respondent no. 4 ought not to have been entertained. It is further contended that the alleged sale transaction in favour of respondent no. 4 on the basis of which the impleadment application has been filed by respondent no. 4 could not be executed in favour of respondent no. 4 in view of the interim stay granted vide order dated 23rd April 2012 in appeal no. RCA No. 3 2012. The counsel appearing on behalf of the respondents no. 2 to 4 submits that respondent no. 4 has a caveatable interest in the estate of the deceased testator as he was a bonafide purchaser of the Property from the deceased testator. The possession of the said Property was given to the respondent no. 4 by the deceased testator on 27th August 2013 in his lifetime. Since the said Property was a lease hold property no sale deed was executed however other registered documents such as Agreement to Sell and GPA were executed in his favour along with a registered will dated 27th August 2013 in which daughter of the deceased testator respondent no. 2 was also a witness. The counsel for the respondents no. 2 to 4 has also drawn attention of this Court to the Order dated 26th July 2014 passed by Appellate Court to contend that the petitioner was aware of the interest of respondent no. 4 in the Property and therefore sought an injunction against the respondent no. 4 in RCA No. 3 2012 which was rejected. Yet the petitioner did not make respondent no. 4 a party in the probate petition. CM(M) 95 2019 Signed By:SAKSHIRAMOLASigning Date:10.14.202100:04:04Signature Not Verified The counsel for the respondents no. 2 to 4 has also drawn my attention to the order dated 12th January 2016 in the probate proceedings where the following additional issue had been framed: “Whether deceased Sh. K.L Jain left behind a registered Will dt. 27.08.2013 in favour of Sh. Rajat Bansal as so averred in rejoinder reply of respondents 2 and 3 filed in rebuttal to the petition of the petitioner OP on respondents 2 & 3.” I have heard the rival contentions. 11. The Supreme Court in G. Gopal vs. C. Bhasker10 SCC 489 has held that if a person who has even a slight interest in the estate of the deceased testator is entitled to file caveat and contest the grant of probate of will of the deceased testator. The fact that the petitioner himself had sought an injunction against the respondent no.4 in respect of the aforesaid Property clearly demonstrates that the petitioner was aware of the interest of the petitioner in the aforesaid Property. Further an additional issue has been framed in the probate petition in respect of the registered Will dated 27th August 2013 in favour of the respondent no. 4. Therefore it cannot be said that the respondent no.4 does not have a caveatable interest in the estate of the deceased. That being so the petitioner has a right to be impleaded in the probate petition. 12. While considering impleadment application filed by respondent no. 4 it was not for the Probate Court to consider whether the sale was conducted in favour of respondent no. 4 in violation of the interim order dated 23rd April 2012. At that stage Probate Court only had to see if respondent no. 4 had a caveatable interest in the estate of the deceased CM(M) 95 2019 Signed By:SAKSHIRAMOLASigning Date:10.14.202100:04:04Signature Not Verified testator so as to be impleaded as a party. The Probate Court has clearly observed that the impleadment application filed on behalf of respondent no. 4 is being allowed without going into the merits of the respective claims of the parties. Questions with regard to validity of the respective wills propounded by the parties will be ultimately decided in the Probate proceedings. 13. There is no infirmity in the impugned order that warrants interference of this Court in its jurisdiction under Article 227 of the Constitution of India. 14. The petition is dismissed. AMIT BANSAL J OCTOBER 11 2021 Sakshi R. CM(M) 95 2019 Signed By:SAKSHIRAMOLASigning Date:10.14.202100:04:04Signature Not Verified |
Consent of a child below 18 years to indulge in sexual intercourse is not lawful consent: Madras High Court | If the victim of sexual assault is a child and she falls under Section 2(1)(d) of the POCSO Act, her consent or her lack of objection to indulge in sexual intercourse is not legally valid. A single judge bench of Justice P Velmurugan while adjudicating the matter in Pathiban v. The State; [Crl.A.No.67 1 of 2019], dealt with the issue of sexual assault upon a minor. A case was filed against the accused for sexual assault under the POCSO Act. The learned counsel appearing for the appellant/accused would submit that the prosecution has failed to prove its case beyond reasonable doubt. The victim girl has not disclosed the facts correctly and the evidence of the victim girl is not trustworthy. The trial Court convicted the appellant only based on the evidence of the victim girl. The victim girl was produced before the learned Judicial Magistrate for recording the statement under Section 164 Cr.P.C in which, she has clearly stated that she came out of her house as she got angry with her parents and went to Tirupathi, and after she knew that her parents had given a complaint, she came back. The learned Government Advocate (Crl. Side), appearing on behalf of the respondent police, would submit that, at the time of occurrence, the age of the victim girl was only 17 years and she had not completed 18 years of age. The victim girl has clearly stated that, since her mother scolded her, she left the house, and at that time, the victim girl met the appellant; the appellant misguided her and also forced her to come with him and also took a gold chain from the victim girl and arranged money and left to Tirupathi and stayed there; subsequently, they went to Velankanni and stayed there at a lodge; during that period, the appellant committed sexual assault on her; when she refused and denied, he threatened her and had forcible sexual intercourse with her. The appellant forcibly took the victim girl to Tirupathi, and subsequently to Velankanni and several other places without the consent of either the victim girl or her parents, who are the lawful guardians of the victim girl. Since the victim girl had not completed 18 years of age, she was a minor at the time of occurrence. Therefore, since the appellant had sexual intercourse with the victim girl, who was a child under the definition of POCSO Act, he has committed the offence punishable under Section 6 of the POCSO Act. | Crl.A.No.6719IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 25.02.2021 Delivered on : 19.04.2021CORAM :THE HONOURABLE MR. JUSTICE P. VELMURUGANCrl.A.No. 6719 Parthiban ... AppellantVs.State byThe Inspector of Police W 24 All Women Police Station Teynampet Chennai.... RespondentCriminal Appeal filed under Section 374(2) Cr.P.C. praying to set aside the judgment of conviction and sentence dated 22.11.2018 in S.C.No.2516 on the file of the Special Court for cases under POCSO Act 2012Chennai. For Appellant : Mr.T.Muruganantham for Mr.K.S.Arumugam For Respondent : Mr.R.Suryaprakash Government AdvocateChennai.2.Originally a case was registered by the E 3 Teynampet Police in Crime No.15 for “Girl Missing”. Subsequently a case was registered by the respondent policein Crime No.15 for the offences punishable under Sections 366 A IPC r w. Section 4 of the Protection of Children from Sexual Offences Act 2012Chennai since the offences are against women particularly a child under POCSO Act and the learned Special Judge had taken the case on file in S.C.No.2516. https: www.mhc.tn.gov.in judis Crl.A.No.67193.After completing the formalities the learned Special Judge framed the charges for the offences punishable under Sections 366 IPC and Section 6 of the POCSO Act against the appellant. 4.After framing the charges in order to prove the case of the prosecution on the side of the prosecution during trial as many as 9 witnesses were examined as P.W.1 to P.W.9 and 12 documents were marked as Exs.P1 to P12. Three Court documents were marked as Exs.C1 to C3. 5.After completing the examination of the prosecution witnesses the incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the appellant and he denied the same as false. On the side of the defence no witness was examined however two documents were marked as Exs.D1 and D2. One Material Object was exhibited as D.M.O.1.https: www.mhc.tn.gov.in judis Crl.A.No.67196.After completing the trial and hearing of the arguments advanced on either side considering the facts and circumstances the trial Court found the appellant guilty of the offences punishable under Sections 366 IPC and Section 6 of the POCSO Act and convicted and sentenced him as follows :Provision under which convictedSentenceSection 366 IPCRigorous Imprisonment for five years and a fine of Rs.5 000 in default to undergo Rigorous Imprisonment for six monthsSection 6 of POCSO ActRigorous Imprisonment for ten years and a fine of Rs.10 000 in default to undergo Rigorous Imprisonment for six monthsThe sentences shall run concurrently. The victim girl is entitled for compensation of Rs.6 00 000 and Rs.1 50 000 is fixed as interim compensation.7.Challenging the said conviction and sentence the appellant accused has filed the present appeal before this Court.8.The learned counsel appearing for the appellant accused would submit that the prosecution has failed to prove its case beyond reasonable doubt. The victim girlhas not disclosed the facts correctly and the evidence of the victim girlis not trustworthy. The trial Court convicted the appellant only based on the evidence of the https: www.mhc.tn.gov.in judis Crl.A.No.6719victim girlwas produced before the learned Judicial Magistrate for recording the statement under Section 164 Cr.P.C. on 27.11.2015 and the said statement was marked as Ex.C3 in which she has clearly stated that she came out of her house as she got angry with her parents and went to Tirupathi and after she knew that her parents had given a complaint she came back. The trial Court failed to see that the victim girl appeared before the Police on 21.11.2015 however she made her statement only on 27.11.2015 before the learned Judicial Magistrate which itself highly suspicious in the case of the prosecution. 9.The learned counsel appearing for the appellant would further submit that the prosecution has failed to produce any material document to prove that the appellant and the victim girl were staying at lodge either in Tirupathi or in Velankanni as per the prosecution case. The statement recorded from the victim girl under Section 161 Cr.P.C. reached the Court only on 30.11.2015 and there was a delay in sending the records to the Court which is also fatal to the case of the prosecution. The prosecution has not examined any witness to prove where the victim girl and the appellant have stated to have stayed. The age of the victim girl was not https: www.mhc.tn.gov.in judis Crl.A.No.6719proved. Once the age of the victim girl was not proved she is not a child under the POCSO Act and therefore the case registered under POCSO Act is not maintainable. The victim girl has not stated that on 15th night when they were staying at Tirupathi the appellant had sexual intercourse with her. Though the prosecution has stated that the victim girl was taken to Tirupathi and subsequently to Velankanni and made to stay with the appellant and the appellant had sexual intercourse with her during that period neither any witness was examined nor any document was produced to prove that they were staying there at a lodge and the prosecution has not enquired the place where they have stated to have stayed. 10.The learned counsel appearing for the appellant would further submit that the Doctorone who conducted the medical examination of the victim girl deposed that on examination no external injury was found on her body of the victim girl which falsifies the case of the prosecution that the appellant had forcible sexual intercourse with the victim girl. The trial Judge failed to appreciate the evidence produced on the side of the defence and convicted the appellant only based on assumptions and conjectures and on sympathetic grounds and not based on https: www.mhc.tn.gov.in judis Crl.A.No.6719the material evidence. Therefore the judgment of conviction and sentence passed by the trial Court is liable to be set aside. 11.The learned Government Advocateappearing on behalf of the respondent police would submit that at the time of occurrence the age of the victim girl was only 17 years and she had not completed 18 years of age. The victim girlhas clearly stated that since her mother scolded her she left the house and at that time the victim girl met the appellant the appellant misguided her and also forced her to come with him and also took a gold chain from the victim girl and arranged money and left to Tirupathi and stayed there subsequently they went to Velankanni and stayed there at a lodge during that period the appellant committed sexual assault on her when she refused and denied he threatened her and had forcible sexual intercourse with her. The appellant forcibly took the victim girl to Tirupathi and subsequently to Velankanni and several other places without the consent of either the victim girl or her parents who are the lawful guardians of the victim girl. Since the victim girl had not completed 18 years of age she was a minor at the time of occurrence. Therefore since the victim girl was forcibly https: www.mhc.tn.gov.in judis Crl.A.No.6719removed from the custody of the lawful guardians without their consent the appellant has committed the offence under Section 366 IPC. Since the the appellant had sexual intercourse with the victim girl who was a child under the definition of POCSO Act he has committed the offence punishable under Section 6 of the POCSO Act. 12.The learned Government Advocatewould further submit that though the victim girl in her statement under Section 164 Cr.P.C. before the learned Judicial Magistrate has not stated that when they were staying in Tirupathi at a lodge she was subjected to penetrative sexual assault however she has clearly stated in that statement itself that while they were staying at Velankanni on 18.11.2015 to 19.11.2015 the appellant had forcible sexual intercourse with her. The evidence of the Doctoralso corroborates with the same that the hymen of the victim girl was not intact. Though the Doctorhas stated that there was no external injury on the victim girl the opinion of the Doctor was that the victim girl was subjected to penetrative sexual assault. https: www.mhc.tn.gov.in judis Crl.A.No.671913.Therefore the learned Government Advocatewould submit that once the prosecution has proved that the victim girl was a child and she was removed from the custody of her lawful guardians without their consent the appellant has committed the offence under Section 366 IPC and since the prosecution has proved that the victim girl who was a child under the POCSO Act was subjected to penetrative sexual assault by the appellant the appellant has committed the offence punishable under Section 6 of the POCSO Act. Therefore the trial Court rightly appreciated the oral and documentary evidence and has convicted the appellant and there is no merit in the appeal and the appeal is liable to be dismissed.14.Heard the learned counsel on either side and perused the materials available on record.15.The case of the prosecution is that the victim girl was a minor aged about 17 years. On 12.11.2015 at about 05.00 p.m. the appellant made the victim girl to come to Kattupakkam in Two Wheeler bearing Registration No.TN 01 AW 8002 and they went to Kattupakkam at about https: www.mhc.tn.gov.in judis Crl.A.No.671906.45 p.m. There the appellant got one sovereign of gold from the victim girl on compulsion and raised money by pledging the same and thereafter he left the Two Wheeler in Koyambedu and took the victim girl to Tirupathi. He took a room on 13.11.2015 at 08.00 a.m. and stayed there for three days i.e. till 15.11.2015. Subsequently on 15.11.2015 at 10.00 p.m. the appellant took the victim girl to Nagapattinam by Bus and from there he took her to Velankanni where they stayed in a room at Sankarapani Lodge till 18.11.2015 and during that period the appellant had forcible sexual intercourse with the victim girl several times on compulsion. Thereafter he vacated the said room and they stayed in another lodge by name MJN Lodge from 18.11.2015 @ 07.30 p.m. to 20.11.2015 @ 07.30 p.m. Since the appellant had removed the victim girl who is a minor aged about 17 years from the custody of her parents who are her lawful guardians and had forcible sexual intercourse with her who is a child under POCSO Act the appellant has committed the offences punishable under Sections 366 IPC and Section 6 of the POCSO Act. 16.After completing the investigation the respondent police laid a charge sheet before the Special Court for the offences under POCSO https: www.mhc.tn.gov.in judis Crl.A.No.6719Act 2012Chennai and the learned Special Judge had taken the case on file in S.C.No.2516.17.The trial Court framed the charges against the appellant as stated supra. When questioned the appellant pleaded “not guilty”.18.In order to prove the case of the prosecution on the side of the prosecution during trial 9 witnesses were examined and 12 documents were marked. Three Court documents were marked. On the side of the defence no witness was examined however two documents were marked. One Material Object was exhibited as D.M.O.1.19.After hearing the arguments advanced on either side and considering the evidence on record the trial Court by judgment dated 22.11.2018 in S.C.No.2516 convicted and sentenced the appellant for the offences punishable under Section 366 IPC and Section 6 of the POCSO Act as above. https: www.mhc.tn.gov.in judis Crl.A.No.671920.Challenging the said judgment of conviction and sentence the accused appellant has preferred the appeal before this Court.21.This Court being an Appellate Court is a fact finding Court and it has to give its finding independently after appreciating the entire evidence. Accordingly this Court has re appreciated the entire evidence.22.The victim girl was examined as P.W.3. On a careful reading of the evidence of the victim girlit is seen that she has narrated the entire events. There is no eye witness in this case. P.W.5 is the owner of the house in which the victim girl along with her parents were residing. Shehas stated that the victim girl was missing during the relevant point of time the parents of the victim girl filed a complaint before the Police for “Girl Missing” and subsequently came to know that the appellant only took the victim girl. The Doctor one who conducted the medical examination of the victim girl was examined as P.W.6. The evidence of the Doctorclearly shows that though there was no external injury on the body of the victim girl but the hymen was not intact. https: www.mhc.tn.gov.in judis Crl.A.No.671923.The victim girl was produced before the learned Judicial Magistrate for recording statement under Section 164 Cr.P.C. The said statement was marked as Ex.P3. Though in the said statement the victim girl has stated that the appellant took the victim girl to Tirupathi and they stayed in a lodge where he has not committed any penetrative sexual assault however she has stated that subsequently they went to Velankanni and stayed at Sankarapani Lodge and MJN Lodge on 18.11.2015 and 19.11.2015 and during that period the appellant had forcible sexual intercourse with her. Though the statement recorded under Section 164 Cr.P.C. is not a substantive evidence subsequently the victim girl was examined before the Court as P.W.3 during trial and she has deposed that she was subjected to forcible penetrative sexual assault by the appellant. Therefore the statement under Section 164 Cr.P.C. corroborates with the evidence of the victim girlalso corroborates with the same. The Accident Register of the victim girl was marked as Ex.P6 which also clearly shows that the victim girl was subjected to penetrative sexual assault. https: www.mhc.tn.gov.in judis Crl.A.No.671924.At the time of occurrence the victim girl had not completed 18 years of age and therefore she is a “child” under Section 2(1)(d) of the POCSO Act. In order to prove the age of the victim girl the Birth Certificate of the victim girl was marked as Ex.P2. As per Ex.P2 the Date of Birth of the victim girl is 06.11.1998. The date of occurrence is between 12.11.2015 and 19.11.2015 and therefore at the time of occurrence the age of the victim girl was only 17 years and she had not completed 18 years. Even as per Ex.P7the age of the victim girl was 17 years and the defence has not disputed the age of the victim girl. Therefore it is clear that at the time of occurrence the age of the victim girl was only 17 years and therefore she is a “child” under Section 2(1)(d) of the POCSO Act. The appellant was aged about 26 years at the time of occurrence.25.From the evidence of the victim childP.W.1P.W.2Ex.P11and Ex.P12it is clear that the appellant has removed the custody of https: www.mhc.tn.gov.in judis Crl.A.No.6719the victim girl from her parents who are the lawful guardians without their consent and therefore he has committed the offence punishable under Section 366 IPC and since the minor victim girl who was a child under POCSO Act was subjected to aggravated penetrative sexual assault the appellant has also committed the offence punishable under Section 6 of the POCSO Act. 26.Though there is no independent witness in cases like this conviction can be made solely based on the evidence of the prosecutrix. In this case the victim is a child and her custody was removed from her lawful guardians without their consent. Even assuming that the appellant took the victim girl with her consent since the victim child had not completed the age of 18 years her consent cannot be taken as a lawful consent. Further from the evidence of the Doctorit is seen that there were no external injuries on the victim girl. Even assuming that the victim child had not objected to the sexual intercourse and had given her consent such a consent of a child is not legally valid. Once the victim is a child falling under Section 2(1)(d) of the POCSO Act her consent is immaterial. https: www.mhc.tn.gov.in judis Crl.A.No.671927.From the oral and documentary evidence the prosecution has proved that the appellant removed the custody of the victim child from her parents who are the lawful guardians without their consent and subsequently had forcible penetrative sexual intercourse with her and therefore the appellant has committed the offences punishable under Section 366 IPC and Section 6 of the POCSO Act. Though there are contradictions from the evidence of the prosecution witnesses the contradictions are not material contradictions which will go to the root of the case of the prosecution. This Court does not find any reason to discard the evidence of the victim childChennai. 2.The Inspector of Police W 24 All Women Police Station Teynampet Chennai.3.The Inspector of Police E 3 Teynampet Police Station Chennai. 4.The Public Prosecutor High Court Madras.5.The Deputy Registrar|with a direction to send back the |original records to the trial Court High Court Madras. |if any immediatelyhttps: www.mhc.tn.gov.in judis Crl.A.No.6719P. VELMURUGAN J.mknPre delivery JudgmentinCrl.A.No.6719 19.04.2021 |
Adjudication proceedings against noticee abated because noticee expired before the issuance of show cause notice – The Securities and exchange board of India | Adjudication proceedings against noticee abated because noticee expired before the issuance of show cause notice – The Securities and exchange board of India SEBI observed large scale reversal of trades in the Stock Options segment of the Bombay Stock Exchange leading to the alleged creation of artificial volume in the stock options segment and the noticee Mr. Mahesh Kumar Agarwala found suspicious for these reversal trades and allegation of violating the provisions of Regulations 3(a), (b), (c), (d) and Regulations 4(1),4(2)(a) of the SEBI “PFUTP Regulations, 2003 and SEBI initiated adjudication proceedings and appointed ROHIT DUBEY ADJUDICATING OFFICER in [ADJUDICATION ORDER NO.: Order/RD/AP/2021-22/14751] A show-cause notice was sent to the Noticee under Rule 4(1) of the Adjudication Rules to show why an inquiry should not be conducted and why penalty should not be imposed upon the noticee under Section 15HA of the SEBI Act for the violations alleged to have been committed by the Noticee. A letter came in response where It was observed that the Noticee had expired before initiation of the present Adjudication Proceedings against him. Taking this matter into consideration it was observed that the Noticee expired before the issuance of SCN and hence, an opportunity of personal hearing cannot be provided to the noticee Since the Noticee is non-est and the opportunity of being heard could not be provided to impose penalty the officer is of the view that the adjudication proceedings initiated against the Noticee do hold enough ground and are abated without going into the merits of the case. With this, no penalty is imposed on the Noticee who is deceased and the Adjudication Proceedings against the Noticee stands abated. | BEFORE THE ADJUDICATING OFFICER SECURITIES AND EXCHANGE BOARD OF INDIA ADJUDICATION ORDER NO.: Order RD AP 2021 22 14751] UNDER SECTION 15 I OF THE SECURITIES AND EXCHANGE BOARD OF INDIA ACT 1992 READ WITH RULE 5 OF THE SECURITIES AND EXCHANGE BOARD OF INDIARULES In respect of: Mahesh Kumar Agarwala PAN: AADHM3430K In the matter of dealings in Illiquid Stock Options at the Bombay Stock Exchange 1. Securities and Exchange Board of India observed large scale reversal of trades in the Stock Options segment of the Bombay Stock Exchangeleading to the alleged creation of artificial volume in the stock options segment. In this regard SEBI conducted an investigation into the trading activity in the illiquid Stock Options segment at the BSE for the period April 01 2014 to September 30 2015 hereinafter referred to as “Investigation Period”). 2. It was observed during the course of investigation that a total of 2 91 643 trades comprising 81.38% of all the trades executed in the Stock Options Segment at BSE during the investigation period were trades which involved reversal of buy and sell positions by the clients and counterparties in a contract on the same day. It was observed that Mr. Mahesh Kumar Agarwalawas one such client whose reversal trade(s) involved squaring off open positions with a significant difference without any basis for such change in the contract price. The aforesaid reversal trade(s) allegedly resulted into generation of artificial volumes leading to allegations that the Noticee had violated the provisions of Regulations 3(a) (c) and Regulations 4(1) 4(2)(a) of the SEBIRegulations 2003read with rule 3 of the SEBI Procedure for Holding Inquiry and Imposing Penalties) Rules 1995vide order dated July 06 2021 to inquire into and adjudge under section 15HA of the SEBI Act against the Noticee for the alleged violation of the aforesaid provisions of PFUTP Regulations 2003. SHOW CAUSE NOTICE REPLY AND HEARING 4. A SEBI WRO WRO WRO P OW 2021 0000040167 1 dated December 30 2021 hereinafter referred to as “SCN”) was issued to the Noticee under Rule 4(1) of the Adjudication Rules to show cause as to why an inquiry should not be initiated against the Noticee and why penalty should not be imposed upon the Noticee under Section 15HA of the SEBI Act for the violations alleged to have been committed by the Noticee. 5. The undersigned was informed vide email dated January 08 2022 that the Noticee had passed away on April 28 2021. A copy of the death certificate dated May 23 2021 issued by Registrar Kolkata Municipal Corporation Kolkata was produced along with the said email. It is observed that the Noticee expired before initiation of the present Adjudication Proceedings against him. 6. In this regard it is relevant to note that section 15 Iof the Securities and Exchange Board of India Act 1992 states as under: Adjudication Order in respect of Mahesh Kumar Agarwala in the matter of dealings in Illiquid Stock Options at BSE “For the purpose of adjudging under sections 15A 15B 15C 15D 15E 15EA 15EB 15F 15G 15H 15HA and 15HB the Board may appoint any officer not below the rank of a Division Chief to be an adjudicating officer for holding an inquiry in the prescribed manner after giving any person concerned a reasonable opportunity of being heard for the purpose of imposing any penalty” 7. In the matter under consideration the Noticee expired before the issuance of SCN and therefore an opportunity of personal hearing cannot be provided to the person concerned. Since the Noticee is non est and opportunity of being heard could not be provided for the purpose of imposing penalty I am of the view that the adjudication proceedings initiated against the Noticee do not survive and are liable to be abated without going into the merits of the case. Consequently no penalty is imposed on the Noticee who is deceased and the Adjudication Proceedings against the Noticee stands abated. 8. After taking into consideration all the facts and circumstances of the case the Adjudication Proceedings initiated against the Noticee viz. Late Mr. Mahesh Kumar Agarwalavide SCN bearing reference no. SEBI WRO WRO WRO P OW 2021 0000040167 1 dated December 30 2021 are disposed of. 9. In terms of Rule 6 of the Adjudication Rules a copy of this order is sent to the Noticee his legal representative and also to SEBI. Date: January 21 2022 Place: Raipur ROHIT DUBEY ADJUDICATING OFFICER Adjudication Order in respect of Mahesh Kumar Agarwala in the matter of dealings in Illiquid Stock Options at BSE |
For granting bail u/s 37 of the NDPS Act, it has to be prima facie shown that the accused is not guilty: High Court of Delhi | It has to be shown prima facie that the accused is not guilty of such offence and also that there is an embargo u/s 37 of the NDPS Act in granting bail to the accused. The Court should have satisfaction with regard to likelihood of him not committing the offence under the Act or any offence whatsoever and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE RAJNISH BHATNAGAR in the case of KALE RAM @ KALU RAM vs. NARCOTICS CONTROL BUREAU [BAIL APPLN. 3045/2019] on 10.03.2022. The facts of the case are that on secret information accused Raghav Sehajpal, Krishan Chand and Ram Lal were apprehended and from the possession of accused Raghav 220 gm of charas was recovered and two parcels containing 399 and 925 gm of charas were recovered from Kishan Chand and Ram Lal. Further it was alleged that accused persons in their statements admitted their involvement. The co-accused Raghav disclosed that he used to get the contraband through petitioner through conductors and drivers who sometimes used to give money in cash and sometimes used to deposit money in HDFC bank accounts. Therefore, this petition has been filed by the petitioner under section 439 of Cr.P.C. for grant of regular bail NDPS ACT. The petitioner’s counsel submitted that the petitioner is in custody whereas, the co-accused – Raghav Sehajpal and Ram Lal are on regular bail. It was further submitted that the petitioner did not possess any contraband, and he is charged with conspiracy with co-accused. It was further submitted that the petitioner has deep roots in the society and has family to support. The counsel contended that as per the allegations in the complaint, the element of conspiracy with the other co-accused person is missing. The respondent’s counsel submitted that that there is an entire chain including the drivers, and conductors involved in the trade. It was further submitted that the petitioner Kale Ram is the main accused who used to deal in the contraband through the other co-accused, and there is a recovery of commercial quantity of charas in this case. He further submitted that at this stage, the court is not supposed to prejudge the evidence and the petitioner is unable to show even prima facie that he is not guilty. According to the facts and circumstances and considering the fact that the petitioner is in judicial custody, the Court granted bail to the accused petitioner. The Court observed that, “the petitioner has to show prima facie that he is not guilty of such offence and also that there is an embargo u/s 37 of the NDPS Act in granting bail to the petitioner. The Court should have satisfaction with regard to likelihood of him not committing the offence under the Act or any offence whatsoever.” Click here to read the Judgment | IN THE HIGH COURT OF DELHI AT NEW DELHI BAIL APPLN. 3045 2019 KALE RAM @ KALU RAM Reserved on: Pronounced on: 08.02.2022 10.03.2022 .....Petitioner Through: Mr. A.K. Sahu Advocate with petitioner produced Versus NARCOTICS CONTROL BUREAU .....Respondent Through: Mr. Subhash Bansal Sr. St. Counsel with Mr. Shashwat Bansal Adv. HON BLE MR. JUSTICE RAJNISH BHATNAGAR O R D E R RAJNISH BHATNAGAR J. This is a petition filed by the petitioner under section 439 of Cr.P.C. for grant of regular bail in SC.No.8605 of 2016 under Sections 20 & 29 NDPS ACT registered at Police Station NCB. The brief facts of the case are that on secret information accused Raghav Sehajpal Krishan Chand and Ram Lal were apprehended and from the possession of accused Raghav 220 gm of charas was recovered and two parcels containing 399 and 925 gm of charas were recovered from Kishan Chand and Rs. 65000 were recovered from accused Ram Lal. It is further BAIL APPLN. 3045 2019 alleged that accused persons in their statements under Section 67 NDPS Act admitted their involvement. It is further alleged that accused Raghav Sehajpal in his statement under Section 67 of NDPS Act has disclosed the name of the present petitioner and his mobile number. It is further alleged that co accused Raghav disclosed that he used to get the contraband through Kale Ramthrough conductors and drivers who sometimes used to give money in cash and sometimes used to deposit money in HDFC bank accounts. It is further alleged that many transactions were found to have taken place between accused Raghav and petitioner Kale Ram and accused petitioner Kale Ram disclosed in his statement under Section 67 of NDPS Act that he gave five packets to Kishan Chand and Ram Lal with instructions to give the packets to Raghav Sehejpal. I have heard the learned counsel for the petitioner and learned senior standing counsel for the respondent NCB. I have also perused the status report and the records of this case. It is submitted by the learned counsel for the petitioner that the petitioner is in custody since 14.03.2015. It is further submitted by learned counsel for the petitioner that co accused Raghav Sehajpal and Ram Lal are on regular bail. He further submitted that the petitioner did not possess any contraband and he is charged with conspiracy with co accused. It is further submitted by the learned counsel for the petitioner that the petitioner was arrested on the disclosure statement of the co accused and has been falsely implicated. He further submitted that the petitioner has deep roots in BAIL APPLN. 3045 2019 the society and has family to support. Learned counsel for the petitioner further submitted that as per the allegations in the complaint the element of conspiracy with the other co accused person is missing. He further submitted that the bank slips which are exhibited in the court are not bearing the signature of co accused Raghav and different signatures are appearing on them. He further submitted that there is no evidence to show that the amount of Rs.65 000 which according to the prosecution was deposited by co accused Raghav Sehajpal in the account of petitioner was in relation to sale and purchase of contraband. On the other hand it is submitted by the learned senior standing counsel for the NCB that co accused Raghav Sehajpal on apprehension categorically disclosed that he used to get contraband from Kale Ram i.e. present accused petitioner through drivers and conductors and used to make payment in cash or sometimes deposit money in HDFC bank account of the petitioner. The verification of the bank account of present petitioner shows that number of transactions have taken place between both and the said fact is also corroborated through the statements under Section 67 NDPS Act of the accused persons. He further submitted that there is an entire chain including the drivers and conductors involved in the trade. Learned senior standing counsel further submitted that the petitioner Kale Ram is the main accused who used to deal in the contraband through the other co accused and there is a recovery of commercial quantity of charas in this case. He further submitted that at this stage the court is not supposed to prejudge the BAIL APPLN. 3045 2019 evidence and the petitioner is unable to show even prima facie that he is not guilty of such offence and also that there is an embargo u s 37 of the NDPS Act in granting bail to the petitioner. In the instant case co accused Raghav Sehajpal has been released on bail vide order dated 06.06.2015 as he was found in possession of intermediate quantity of charas. The other co accused who has been released on bail is Ram Lal as nothing was recovered from him except Rs.65 000 which according to the prosecution was received by him from co accused Raghav Sehajpal. In the present case there is no recovery of any contraband from the petitioner and as per the prosecution no amount has been recovered from his bank account. The recovery of Rs.65 000 has been effected from co accused Ram Lal which according to the prosecution was received by him from co accused Raghav Sehajpal both of whom are already on bail. As far as the question of voluntary statement of the petitioner under Section 67 of the NDPS Act is concerned in the absence of any recovery of any drugs from the petitioner it will be a debatable issue whether the disclosure statement made by the co accused is admissible against the him or not and in this regard reliance can be placed upon the judgment of the Supreme Court in the case of Tofan Singh Vs. State of Tamil Nadu16 SCC 31. Looking into the facts and circumstances of this case and the fact that two co accused are already on bail nothing has been recovered from the petitioner in the form of contraband or money which according to the BAIL APPLN. 3045 2019 prosecution has changed hands during the conspiracy alleged to have been hatched by petitioner and his co accused therefore in these circumstances the embargo of Section 37 of NDPS Act does not come in the way in granting bail to the petitioner as far as the facts of the present case is concerned. I am also of the view that requirement of Section 37 of the NDPS Act are satisfied. In so far as the petitioner is concerned there are reasonable grounds to believe that petitioner is not guilty of the said offence. 9. It is not the case of the prosecution that petitioner has been involved in any case of similar nature. Reference may be had to the judgment of the Supreme Court in Ranjit Singh Brahmajeet Singh Sharma Vs. State of Maharashtra 5 SCC 294 wherein while referring to an identically worded provision under Maharashtra Control of Organized Crimes Act 1999 the Supreme Court held that the satisfaction is with regard to likelihood of not committing the offence under the Act and not any offence 10. Therefore in the facts and circumstances discussed hereinabove and without commenting upon the merits of the case and considering the fact that the petitioner is in judicial custody since 14.03.2015 he is admitted to bail on his furnishing personal bond in the sum of Rs. 50 000 with one surety in the like amount to the satisfaction of the learned Trial Court. The petitioner shall not leave the country without the prior permission of the concerned Trial Court. 11. The petition stands disposed of accordingly. BAIL APPLN. 3045 2019 12. Nothing stated hereinabove shall tantamount to the expression of any opinion on the merits of the case. MARCH 10 2022 ib RAJNISH BHATNAGAR J BAIL APPLN. 3045 2019 |
The FIR is not an encyclopedia but can be used for corroborating the maker of the report – Jharkhand high court | The FIR is not an encyclopedia but can be used for corroborating the maker of the report – Jharkhand high court The criminal appeals are directed against the judgment and order of conviction and sentence passed by learned sessions judge S. T. No. 22 of 2010 in which the appellants were convicted for the charge under Section 302/34 of I.P.C. the present appeals are opposing the order of conviction on the ground that there was an error in passing the judgment by a lower court. The present appeals were heard by a two-judge bench of HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY and HON’BLE MR. JUSTICE SANJAY PRASAD in Sapan Hadi(in Cr. Appeal (DB) No. 507/2014), Gujra Dome(in Cr. Appeal (DB) No. 252/2013), Santosh Hadi(in Cr. Appeal (DB) No. 595/2013) versus The State of Jharkhand The facts of the case are that the three appellants have been convicted for the offenses under Section 302/34 of I.P.C in which the sapan hadi stabbed the informant in the chest and Santosh hadi enticed away from the daughter of the informant and kept her in the house and all appellants have been together convicted for the murder of the informant and based on these activities the charge sheet was filed against the appellants and the sessions judge convicted them of above-mentioned offenses based on the examination of witnesses and the basis of the evidence presented. The statements of appellants were also recorded under section 313 of C.R.P.C. The learned counsel appearing on behalf of the appellant in Cr. Appeal (DB) No. 507 of 2014 submits that the appellant was implicated only on the fact that he had enticed away and solemnized marriage with the daughter of the informant. The counsel further submits that the witnesses in the case are interested parties and reliance cannot be put on their evidence and no independent witness has been testified in the case. The learned counsel appearing on behalf of the appellant in Cr. Appeal (DB) No. 252 of 2013 submits that the appellant has been convicted only for his presence at the crime scene and further there are major contradictions in evidence testimonies. the counsel further submits that mere standing at the place of occurrence would not invite invocation of Section 34 I.P.C and the appellant could have been involved in it if there has been a meeting of minds with the other accused persons. The amicus curiae appearing for the appellants in Cr. Appeal (DB) No. 595 of 2013 submits that the witness has divested in his statement than written in the FIR as stated in her evidence. The learned A.P.P appearing on behalf of the respondents submits that the evidence is cogent, categorical, and clear and states the role of each appellant in the commission of the offense and the acts the appellants would come within the purview of Section 34 I.P.C. The court after hearing the arguments decides that the role of appellant Sapan Hadi in the murder of the informant is proved beyond reasonable doubt and the sentence passed against him is affirmed. as for the other appellants to decide the motive and application of section 34 I.P.C, the court relied on the case of “Jasdeep Singh @ Jassu Vs. the State of Punjab” reported in (2022) SCC Online 20 and it was decided the other appellants does not have the same intent as sapan hadi and this can be confirmed from the FIR in the case and the evidence presented and hence it can be said that all appellants do not have the same motive. The court from the above-mentioned findings decides that the appellant in Cr. Appeal (DB) No. 252 of 2013 and Cr. Appeal (DB) No. 595 of 2013 finds that the learned trial court had committed an error of law while convicting the said appellants for the offense under Section 302/34 I.P.C. and sentenced them accordingly and as for Sapan Hadi in Cr. Appeal No. (DB) No. 507 of 2014 is concerned, the learned trial court was justified in convicting him for the offense under Sections 302/34 I.P.C . hence the appeals are allowed and disposed of. Click here to read the Judgment | Criminal AppealNo. 5014 Criminal AppealNo. 2513 Criminal AppealNo. 5913 Against the judgment of conviction and order of sentence dated 15.03.2013 passed in S. T. No. 210 by Sri Satyendra Kumar Singh Sessions Judge Dhanbad. Sapan Hadi Gujra Dome 1.Santosh Hadi 2Manoj Hadi Versus The State of Jharkhand … … Appellant in Cr. AppealNo. 507 2014) … … Appellant in Cr. AppealNo. 252 2013) … … Appellant in Cr. AppealNo. 595 2013) … … Respondent Mr. Peeyush Krishna Choudhary Advocate Mr. Kalyan Banerjee Advocate Ms. Shruti Shrestha Amicus Curiae Mrs. Nehala Sharmin A.P.P. For the Appellants For the Respondent HON BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE SANJAY PRASAD Present: Pronounced on 03.02.2022 C.A.V. on 03.01.2022 Heard Mr. Peeyush Krishna Choudhary learned counsel for the appellant in Cr. Appeal No. 507 of 2014 Mr. Kalyan Banerjee learned counsel for the appellant in Cr. AppealNo. 2513 and Ms. Shruti Shrestha learned Amicus Curiae in Cr. AppealNo. 595 of 2013 and Mrs. Nehala Sharmin learned A.P.P. for the State in all the These appeals are directed against the judgment and order of conviction and sentence dated 15.03.2013 passed by Sri Satyendra Kumar Singh learned Sessions Judge Dhanbad in S. T. No. 210 whereby and whereunder the appellants have been convicted for the charge under Section 302 34 of I.P.C. and all of them have been sentenced to undergo 2 imprisonment for life with a fine of Rs. 2 000 for the offence under Section 302 34 of I.P.C. and in default of payment of fine they have been directed to undergo simple imprisonment for six months each. It has been alleged that the informant was sleeping along with her husband and children when at about 1 1:30 A.M. somebody knocked at the door. When her husband enquired as to their identity the accused persons broke the door and forcibly entered into the room. The informant could identify the accused who are the present appellants. All the accused persons had thrashed her husband to the ground and started assaulting him while Sapan HadiNo. 507 of 2014) had stabbed him on his chest with a knife. When he started raising alarm all the accused persons fled away. After some time her husband succumbed to his injuries. The reason for the occurrence is that about one and half months back appellant Santosh Hadi had enticed away the daughter of the informant namely Khusboo Kumari and kept her in the house of Manoj HadiP. S. Case 3 framed against Santosh Hadi Manoj Hadi and Gujra Dome for the offence under Section 302 34 I.P.C. and against Sapan Hadi for the offence under Section 302 I.P.C. which was explained to them to which they pleaded not guilty and claimed to be tried. The prosecution in support of its case has examined as many as 8 prosecution. P.W. 1 Raj Kumar Chouhan has stated that he had gone to the house of Binod Dome on hearing the cry of alarm where he saw Binod Dome having been murdered. This witness was declared hostile by the P.W. 2 Dr. Vinit Pd. Tigga was posted as a Tutor in the department of FMT PMC Dhanbad on 14.07.2009 on which date he had conducted autopsy on the dead body of Binod Dome and had found the following ante mortem injuries: Stabbed 1 ½” x 1” x cavity deep on left side of manubrium between the 2nd and 3rd costal cartrileges with one edge blunt and other edge sharp margin found sharp and inverted and blood clots all over. 1” x ½ “ x muscle deep over front of left thigh one edge blunt and other edge sharp and margin sharp. No other external wound found. The cause of death was opined to be haemorrhage and shock as a result of stab wound caused by penetrating weapon with one edge sharp and other bluntNo. 5014 that the appellant has been implicated only on account of the fact that he had enticed away and solemnized marriage with the daughter of the informant namely Khusboo KumariNo. 2513 has submitted that the appellant had been convicted primarily on account of his purported presence at the scene of the crime. Learned counsel submits that there are vital contradictions with respect to the role essayed by the appellant as could be culled out on a dissection of the evidences of P.W. 5 and P.W. 6. According to the P.W. 5 the appellant was merely present along with other accused persons though P.W. 6 has stated about the appellant threatening them with a Bhujali. Mr. Banerjee submits that mere standing at the place of occurrence would not invite invocation of Section 34 I.P.C. He adds that the appellant could also have actively participated in the commission of assault had there been a meeting of minds with the other accused persons. 9. Mrs. Shruti Shrestha learned Amicus Curiae appearing for the appellants in Cr. Appeal No. 595 of 2013 apart from adopting the arguments advanced by Mr. Kalyan Banerjee has stated that the case of Manoj Hadiis similar to that of Gujra Dome and assistance has been provided by the other appellants. We are therefore firstly considering the case of the appellant Sapan Hadi. The criminal law was set into motion by Jira Devidue to an incident which had taken place in the dead of night of 14.07.2009 when the appellants had forcibly entered into the house of the informant by breaking upon the door and committing the murder of her husband Binod Dome. The informant has clearly stated that it was Sapan Hadi who had stabbed Binod Dome with a Bhujali in his chest. The only eye witnesses to the occurrence are the informant and her children who were present inside the house when the occurrence had taken place in the house. However the prosecution has examined only P.W. 5 and 6 who have witnessed the occurrence. P.W. 5 has stuck to her narration made in the FIR that it was the appellant Sapan Hadi who had stabbed her husband with a Bhujali on his chest. P.W. 6 Khusboo Kumari who is the daughter of the deceased and who was subjected to enticement by 8 the appellant Sapan Hadi had also supported the role played by Sapan Hadi. The manner of assault attributed to the accused Sapan Hadi seems to have been corroborated by the Post Mortem report wherein the cause of death was opined to be on account of shock and haemorrhage as a result of stabbed wound caused by penetrating weapon with one edge sharp and the other blunt. The prosecution has also been able to establish the motive which can be singularly attributed to the appellant Sapan Hadi for committing such a dastardly act. P.W. 6 Khusboo Kumari has stated about her solemnization of marriage with the appellant Sapan Hadi and due to the torture meted out to her she had come back to her parents’ house. The marriage was solemnized according to her against the wishes of the deceased. As per P.W. 5 her daughter had come back about a week prior to the incident. According to P.W. 6 the appellant had come to her house about two days back and had threatened the deceased of dire consequences if she was not sent back to the house of Sapan Hadi. The role of the appellant Sapan Hadi in the murder of Binod Dome is thus clearly proved beyond any reasonable doubt and therefore the judgment and order of conviction and sentence passed against him is hereby affirmed. 15. We now venture out to consider the case of the appellants in Cr. AppealNo. 2513 and Cr. AppealNo. 5913. These appellants have been convicted under Sections 302 I.P.C. taking the aid of Section 34 I.P.C. The scope and object of Section 34 I.P.C. has recently been considered by the Hon’ble Supreme Court in the case of “Jasdeep Singh @ Jassu Vs. State of Punjab” reported inSCC Online 20 and the relevant paragraphs for the purpose of this case are quoted 21. “Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one into others in pursuance to a common intention. Onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial concrete definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved the remaining part will have to be examined with adequate care and caution as we are dealing with a case of vicarious liability fastened on the accused by treating him at par with the one who actually committed the offence. 9 there are exceptions What is required is the proof of common intention. Thus there may be an offence without common intention in which case Section 34 IPC does not get attracted. 24. The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act “in furtherance of the said intention”. One need not search for a concrete evidence as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offense. 25. Normally in an offense committed physically the presence of an accused charged under Section 34 IPC is required especially in a case where the act attributed to the accused is one of instigation exhortation. However particular when an offense consists of diverse acts done at different times and places. Therefore it has to be seen on a case to case basis. 26. The word “furtherance” indicates the existence of aid or assistance in producing an effect in future. Thus it has to be construed as an advancement or promotion. 27. There may be cases where all acts in general would not come under the purview of Section 34 IPC but only those done in intention having adequate furtherance of connectivity. When we speak of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offense. Such an intention is meant to assist encourage promote and facilitate the commission of a crime with the requisite knowledge as aforesaid. 28. The existence of common intention is obviously the duty of the prosecution to prove. However a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime may actually withdraw from it later. Of course this is also one of the facts for the consideration of the court. Further the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime without dissuading themselves or others might well be a relevant circumstance provided a prior common intention is duly proved. Once again this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the 10 It is to be seen therefore as to whether a common intention was shared by each of the appellants with the exception of the appellant Sapan Hadi in finalizing the act of murder. It is no doubt true that the presence of these appellants along with Sapan Hadi in the house of the appellant has been well established by virtue of the evidences of P.W. 5 and P.W. 6. Whether mere presence in the scene of murder would attract Section 34 I.P.C. or not is to be considered herein. 17. Motive as noted above has been clearly established so far as the appellant Sapan Hadi is concerned. He had an intention to cause bodily harm to Binod Dome for the reasons which are obvious but the rest of the appellants do not seem to share the same platform with Sapan Hadi. In the FIR the informant had stated that all the four appellants had forcibly entered inside the room threw her husband to the ground started assaulting him and Sapan Hadi had knifed her husband in his chest. The informant had come out and raised alarm at which the accused persons had fled away. Nothing has been indicated in the FIR regarding the presence of weapons in the hands of the appellants barring Sapan Hadi. The FIR is not an encyclopedia but can be used for corroborating the maker of the report. In her evidence as P.W. 5 the informant has substantially shifted from her earlier stance regarding the role played by each of the appellants and the weapon of assault they had in their possession. She as P.W. 5 does not speak of any assault except the assault committed by Sapan Hadi. She was pinned to the wall by the appellant Santosh Hadi while the appellant Manoj Hadi had threatened the children with a knife to remain silent and appellant Gujra Dome was standing at the door. P.W. 5 has also stated that she could not raise any alarm but after the accused persons had fled away she and the children started shouting. P.W. 6 has stated about the appellant Manoj Hadi and Gujra Dome threatening them with Bhujali while Santosh Hadi pinned her mother to the wall with a Bhujali. Thus there appears to be contradictions in the evidences of P.W. 5 & 6 so far as the role played by the appellants Manoj Hadi and Gujra Dome are concerned. A common intention can be derived from a pre meeting of minds or it can develop at the spur of the moment depending upon the ambience when the incident is taking place. Whether all the accused are sharing a common intention 11 or not can be assessed from the evidence of the witnesses. At the same time motive can also act as a catalyst for the accused in sharing a common platform. In the present case the presence of all the appellants in the scene of the crime is an indisputable fact. Similarly the motive of committing the offence singularly rests with the appellant Sapan Hadi though certain acts have been attributed to the appellants Santosh Hadi Manoj Hadi and Gujra Dome but the said acts do not unequivocally indicate the presence of a common intention amongst each of them. Though this court is conscious of the fact that all the accused persons had assembled at the dead of night but it has also to be borne in mind that the wife of Sapan Hadi namely Khusboo Kumari had left Sapan Hadi and had come back to her parents’ house about a week back which had infuriated Sapan Hadi and the motive was therefore existing. Moreover as stated earlier P.W. 5 and 6 have not attributed any act of assault to the appellants Santosh Hadi Manoj Hadi and Gujra Dome. In fact the post mortem report also does not indicate any other external injuries except what has been inflicted by the appellant Sapan Hadi. 19. We therefore come to the conclusion that so far as the appellant in Cr. AppealNo. 2513 and Cr. AppealNo. 5913 are concerned the learned trial court had committed an error of law while convicting the said appellants for the offence under Section 302 34 I.P.C. and sentencing them accordingly. 20. However so far as the appellant Sapan Hadi in Cr. Appeal No. DB) No. 5014 is concerned the learned trial court was justified in convicting him for the offence under Sections 302 34 I.P.C. and sentencing him to undergo imprisonment for life with a fine of Rs. 2 000 . 21. We accordingly dismiss Cr. Appeal No. 507 of 2014 while setting aside the judgment and order of conviction and sentence dated 15.03.2013 passed by Sri Satyendra Kumar Singh Sessions Judge Dhanbad in S. T. No. 22 of 2010 so far as the appellants in Cr. Appeal DB) No. 2513 and Cr. AppealNo. 5913 are concerned. Since the appellants in Cr. AppealNo. 2513 and Cr. Appeal 12 of their bail bonds. DB) No. 5913 are on bail they are discharged from the liabilities 22. All these appeals are accordingly disposed of. Pending I.A.s if any stands disposed of. Rongon Mukhopadhyay J.) Sanjay Prasad J.) Jharkhand High Court at Ranchi The 3rd day of February 2022 R.Shekhar NAFR Cp.3 |
An elected person cannot be dismissed in an unceremonious manner without completing the legal procedure: Tripura High Court | The elected official is accountable to its electorate because he is being elected by a large number of voters. His removal has serious repercussions as he is removed from the post and declared disqualified to contest the elections for a further stipulated period, but it also takes away the right of the people of his constituency to be represented by him. Undoubtedly, the right to hold such a post is statutory and no person can claim any absolute or vested right to the post, but he cannot be removed without strictly adhering to the provisions provided by the legislature for his removal. The judgement was passed by the High Court of Tripura in the case of Shri Debasish Mazumder & Ors v. The State of Tripura & Ors [W.P.(C) No. 319 of 2020] by Single Bench consisting of Hon’ble Justice Mr Akil Kureshi & Justice S.G.Chattopadhyay. Petitioners are the elected members of Bokafa Panchayat Samiti in South Tripura District, have challenged the order passed by the District Magistrate and Collector of South Tripura District in purported exercise of powers under sub-section(3) of Section 76 of the Tripura Panchayats Act, 1993 declaring that the petitioners earned disqualification under clause(b) of sub-section(1) of Section 76 of the Act for voting in the Panchayat Samiti meeting contrary to the direction of the party. Learned counsel for the petitioners has raised the following contentions: i) There is no proof that no party whip containing the direction of the party whip was served on the petitioners at any point of time before the meeting. ii) Admittedly, Vice-President of Bokafa Panchayat Samiti presided over the said meeting who categorically stated in the counter affidavit submitted by him that no party whip was served on any of the elected members before the said meeting and no party whip was even read over to the elected members of the Panchayat Samiti in the meeting before the no-confidence motion was put to vote. Therefore, disqualification of the petitioners on the ground of violation of party whip is baseless and illegal. Learned Counsel appearing for the respondent has opposed the petition contending that “it is a clear case of defection for violation of party whip by the petitioners for which they incurred disqualification under Section 76 of the Tripura Panchayats Act, 1993.” It is contended by the learned counsel that the minutes of the meeting has confirmed that the party whip was read over to the petitioners. The party whip indicates that the elected members including the petitioners were asked to vote against the no-confidence motion which was brought for the removal of the elected Chairman of the said Panchayat Samiti. But they voted in favour of the no-confidence motion contrary to the direction of the party and thereby earned disqualification under Section 76(1)(b) of the Tripura Panchayats Act. | HIGH COURT OF TRIPURA W.P.(C) No. 3120 1. Shri Debasish Mazumder S O Sri Milan Chandra Mazumder resident of Shantir Bazar P.O. and P.S. Shantir Bazar District South Tripura. 2. Indrajit Das S O Late Braja Lal Das Resident of R.K. Ganj P.O. and P.S. Shantir Bazar District South Tripura. 3. Smt. Anita Reang Sri Ratan Reang resident of D C Nagar P.O. and P.S. Shantir Bazar District South Tripura. 4. Rajesh Reang S O Sri Surya Kumar Reang resident of East Bokafa Betaba Para) P.O. Bokafa P.O. and P.S. Shantir Bazar District South 5. Smti. Sujata Das wife of Sri Mithun Natta Resident of Betaga P.O. and P.S. Betaga District South Tripura. 1. The State of Tripura represented by the Secretary to the Panchayat Department Government of Tripura Secretariat Building New Capital Complex Agartala West Tripura. 2. District Magistrate and Collector South Tripura District Belonia. 3. District Panchayat Officer South Tripura District Belonia. 4. Block Development officer Bokafa R D Block Bokafa South Tripura. 5. Smti. Anita MogPanchayat Officer Bokafa RD Block Notice to be served through the Block Development Officer Bokafa RD Block Bokafa South Tripura. 6. Sri Anish Debnath Assistant Director of Panchayats Office of the South Tripura Zilla Parishad Belonia South 7. Sri Avijit Mitra son of Sri Jagadish Mitra resident of Lowgang P.O. and P.S. Shantir Bazar District South Tripura. 8. Bharatiya Janata Party President Tripura State Committee Krishnagar Agartala West Tripura. 9. Smti. Satyabati Reang wife of Sri Harendra Reang resident of Gardhang P.O. Kanchan Nagar P.S. Shantir Bazar District South Tripura. 10. Smti. Bulti Paul Chowdhury wife of Sri Biplab Paul Chowdhury resident of Shanti Coloney P.O. and P.S. Shantir Bazar District South 11. Sri Sridam Das son of late Monoranjan Das resident of Kanchan Nagar P.O. and P.S. Shantir Bazar District South Tripura. Mr. N.Das Adv. Mr. D. Bhattacharjee Govt. Advocate. 08.05.2021 For the Petitioner(s) For the Respondent(s) Date of hearing Date of delivery of Judgment and Order Whether fit for reporting 22.06.2021 Yes. B E F O R E HON’BLE THE CHIEF JUSTICE MR.AKIL KURESHI HON’BLE MR. JUSTICE S.G.CHATTOPADHYAY JUDGMENT S.G.Chattopadhyay J] Petitioners who are the elected members of Bokafa Panchayat samiti in South Tripura District have challenged the order dated 27.03.2020 passed by the District Magistrate and Collector of South Tripura District[Respondent No.2] in purported exercise of powers under sub section(3) of Section 76 of the Tripura Panchayats Act 1993 declaring that the petitioners earned disqualification under clause(b) of sub section(1) of Section 76 of the Act for voting in the Panchayat Samiti meeting held on 11.02.2020 contrary to the direction of the party. The said petitioners were elected as members of Bokafa Panchayat Samiti in South Tripura from Bharatiya Janata Partyin the Panchayat Samiti election held in 2019. The said Panchayat Samity consisted of 9 elected members. Other than the petitioners respondent No.7 and proforma respondent no 9 10 & 11 were the other elected members of the Panchayat Samiti. After their election as members of Bokafa Panchayat Samiti from the same political party they elected Respondent No. 11 Sridam Das as Chairman and Respondent No.7 Sri Avijit Mitra as Vice Chairman of the said Panchayat Samiti. Performance of the Chairman not being satisfactory majority of the elected members including the petitioners and Respondent No.7 issued a notice dated 20.01.2020to the District Panchayat Officer South Tripuraseeking removal of the Chairman of the said Panchayat Samiti. In response the District Panchayat Officer Respondent No.3] vide his letter dated 28.01.2020 requested the said members to submit their proposal in Form 4 in terms of sub rule(2) of Rule 23 of the Tripura Panchayats Rules 1994. Accordingly they submitted the proposal in Form 4 in terms of the advice of the District Panchayat Officer. The District Panchayat Officer then convened a meeting for removal of the Chairman on 11.02.2020 at 11 A.M in the Panchayat Samiti hall at Bokafa and issued notice dated 01.02.2020[Annexure 4] to all elected members of the said Panchayat Samiti to attend the meeting. The members were also informed that Anita Mog Panchayat Officer Respondent No.5] will preside over the meeting and Sri Anish Debnath Assistant Director of Panchayatwill act as an observer in the said meeting. The meeting was held on the appointed date and in the said meeting all the 5 petitioners cast their votes in favour of the no confidence motion by raising their hands. Accordingly the no confidence motion against the Chairman of the Panchayat Samiti was passed by the majority vote of 5 petitioners in the said Panchayat Samiti consisting of 9 elected members and the District Panchayat Officer Respondent No.3] vide order dated 24.02.2020 removed Sri Sridam Das Respondent No.11 from the office of the Chairman of the said Panchayat Samiti. Thereafter the District Magistrate and Collector vide memorandum dated 13.03.2020 Annexure 6] asked the petitioners to show cause as to why they shall not be disqualified from membership of the said Panchayat Samiti in terms of clause of sub section of Section 76 of the Tripura Panchayats Act 1993 for voting against party whip in the said meeting of Bokafa Panchayat Samiti held on 11.02.2020. The petitioners submitted their reply vide impugned order dated 27.03.2020 Annexure 11] declared that the petitioners earned disqualification under Section 76(1)(b) of the Panchayats Act 1933 for voting contrary to the direction of the party. Hence the petitioners have filed this petition for quashing the impugned order of Respondent No.2. In their counter affidavit State respondent No.1 to 4 stated that the State BJP president authorized the District President of BJP Shri Sankar Roy to issue the party whip to the elected members of Bokafa Panchayat Samiti to attend the meeting convened on 11.2.2020 and vote against the no confidence motion. But the petitioners voted for the no confidence motion and thereby violated the party whip. It was also contended by the respondents that the written party whip was served on the petitioners during the meeting and the said petitioners acknowledged the receipt of the party whip by putting their signatures. The proceedings of the said meeting was also videographed and the minutes of the meeting was signed by Smt. Anita Mog who conducted the meeting as Panchayat Officer Respondent No.6 Sri Anish Debnath Assistant Director of Panchayat who was appointed as observer of the proceedings of the meeting and Respondent No.7 Sri Avijit Mitra Vice Chairman of Bokafa Panchayat Samiti who presided over the meeting. Anish DebnathAssistant Director of Panchayat also submitted a report dated 17.02.2020 to the District Panchayat Officer and acting on the minutes of the proceedings and the report of Respondent No.6 the District Magistrate and Collector after issuing show cause notice to the petitioners and considering their replies declared that they earned disqualification under Section 76of the Panchayats Act 1993. Respondent No.4 5 and 6 filed no counter affidavit in the case. Counter affidavit was also filed by Respondent No.7 and it was stated by Respondent No.7 Avijit Mitra that he presided over the meeting held on 17.02.2020 in Bokafa Panchayat Samiti and according to him no party whip was served or read over in the said meeting before the no confidence motion was put to vote. He also stated that on the minutes of the meeting his signature was procured without making him aware of the contents of the document. No other respondent had filed any counter affidavit. We have heard Mr. N.Das learned advocate appearing for the petitioners and Mr. D. Bhattacharjee learned GA appearing for the State respondents. following contentions: Counsel appearing for the petitioners has raised the i) There is no proof that no party whip containing the direction of the party whip was served on the petitioners at any point of time prior to the meeting held on 17.02.2020. ii) Admittedly Sri Avijit Mitra Vice President of Bokafa Panchayat Samiti presided over the said meeting who categorically stated in the counter affidavit submitted by him that no party whip was served on any of the elected members prior to the said meeting and no party whip was even read over to the elected members of the Panchayat Samiti in the meeting before the no confidence motion was put to vote. Therefore disqualification of the petitioners on the ground of violation of party whip is baseless and iii) The petitioners appeared at the said meeting on 17.02.2020 pursuant to the notice dated 01.02.2020 Annexure 4] issued by the District Panchayat Officer Respondent No.3] and cast their votes in favour of the no confidence motion and as such they committed no wrong. Counsel appearing for the Government Advocate has opposed the petition contending that it is a clear case of defection for violation of party whip by the petitioners for which they incurred disqualification under Section 76 of the Tripura Panchayats Act 1993. It is contended by learned GA that the minutes of the meetinghas confirmed that the party whip was read over to the petitioners. The party whip indicates that the elected members including the petitioners were asked to vote against the no confidence motion which was brought for removal of the elected Chairman Respondent 11] of the said Panchayat Samiti. But they voted in favour of the no confidence motion contrary to the direction of the party and thereby earned disqualification under Section 76(1)(b) of the Tripura Panchayats Act. According to learned counsel the impugned order was rightly issued by Respondent No.2 declaring that the petitioners were disqualified from membership of the said Panchayat Samiti. We may recall that the District Magistrate and Collector South Tripura by the impugned order dated 27.03.2020 declared that the petitioners earned disqualification as members of the said Panchayat Samiti for voting contrary to the direction of the political party in the no confidence motion in the meeting held on 11.02.2020 at Bokafa Panchayat Samiti hall for removal of the chairman of Bokafa Panchayat Samiti. To examine the correctness of the impugned order it would be appropriate to refer to the statutory provisions pertaining to removal of the elected chairman of a Panchayat Samiti. Section 82 of the Tripura Panchayats Act 1993 pertaining to removal of Chairman Vice Chairman of Panchayat Samiti provides as under: A Chairman or a Vice Chairman of Panchayat Samiti may at any time be removed from office by a resolution of the Panchayat Samiti carried by the majority of the existing elected members of the Panchayat Samiti at a meeting specially convened for the purpose in the prescribed manner. Notice of such meeting shall be given to the prescribed authority by not less than one fifth of the total members: Provided that in such meeting while any resolution for the removal of the Chairman from his office is under consideration the Chairman or while any resolution for the removal of the Vice Chairman from his office is under consideration the Vice Chairman shall not though he is present preside and the provisions of sub section of Section shall apply in relation to every such meeting as they apply in relation to a meeting from which the Chairman or as the case may be the Vice Chairman is absent.” The details of the procedure for removal of Chairman and Vice Chairman and members of Panchayat Samiti have been prescribed under Rule 23 of the Tripura Panchayats Rules 1994 which reads as under: “23(1)The District Panchayat officer shall be the prescribed Authority for removal of a member of a Panchayat Samiti under sub section(1) of Section 81 of the Act. He shall exercise this function only on the basis of receipt of communication in this regard from the concerned Panchayat Samiti. The Additional District Magistrate & Collector of the concerned District shall be appellate authority under sub Section(2) of Section 81 of the Act. 2) On receipt of a notice in Form 4 signed by at least one fifth of the total members of a Panchayat Samiti District Panchayat Officer shall convene a meeting for removal of a Chairman or Vice Chairman under Section 82 of the Act. Such notice shall be delivered in person to the District Panchayat officer by one of the member signing the notice or sent by registered post. 3) In case of removal of both Chairman and Vice Chairman in the same meeting the meeting shall be presided over as President by a member who shall be elected by the members present. Provided that the District Panchayat Officers shall appoint an observer for such meeting who shall submit a report in writing to the District Panchayat officer immediately after completion of the meeting. At the beginning of the meeting Presiding Officer shall read out to the members of the Panchayat Samiti present in the meeting the notice in form 4 given under Section 82 of the Act. He shall then allow the motion for removal to be read and discussed. Such discussions shall terminate before expiry of one hour from commencement of the meeting or such further time as may be extended by the Presiding Officer. Upon concluding of the debate or upon expiry of the said period the motion shall be put to vote. Vote shall be by show of hands: Provided that in case of absence of quorum the meeting shall be adjourned and the adjourned meeting shall be convened in the same manner. 5) The Presiding Officer shall declare the result of voting. The motion for removal shall be deemed to have been carried only when it has been passed by the majority of the existing members of Panchayat Samiti. 6) The Presiding Officer shall forthwith forward the minutes of the meeting to the District Panchayat Officer. The District Panchayat Officer will issue the removal order and intimate the same to the Executive Officer of the Panchayat Samiti Chief Executive Officer of the Zilla Parishad and Secretary to the Panchayt Samiti. 7) In case of removal of both Chairman and Vice Chairman the charges will be taken over from the Chairman and Vice Chairman by the members so appointed under Rule 3 of the Tripura Panchayats Election of Office Bearers) Rules 1994 until the new Chairman or as the case may be the Vice Chairman is elected and assumes office. 8) If the Chairman or as the case may be the Vice Chairman fails or refuses to hand over the charges the transfer of charges shall be effected through police Admittedly there were 9 elected members all from BJP including the Chairman and Vice Chairman of the said Panchayat Samiti. The aforesaid rules provide that the District Panchayat Officer shall be the prescribed authority for removal of elected member of the Panchayat Samiti and he shall exercise such function on the basis of receipt of a communication from the concerned Panchayat Samiti. Sub rule(2) of said Rule 23 provides that meeting for removal of Chairman or vice chairman shall be convened under Section 82 of the Panchayats Act on receipt of a notice in form 4 signed by at least one fifth of the elected members. It has also been provided under the proviso to sub rule(3) of the said Rule 23 that the District Panchayat officer shall appoint an observer for such meeting who shall submit a report to the District Panchayat officer immediately after the meeting. Under sub rulethe Presiding Officer shall declare the result of voting and the motion for removal shall be deemed to have been carried only when it has been passed by the majority of the existing members of the Panchayat Samiti. the given context the five petitioners along with respondent no.7 all of whom were elected members of the 9 member Panchayat Samiti gave notice to the District Panchayat Officer in prescribed form no 4[Annexure 3 of the writ petition] in terms of sub rule(2) of Rule 23 of the Tripura PanchayatRules 1994. On receipt of the said notice form a majority of the elected members the District Panchayat Officer issued notice dated 01.02.2020 in terms of sub rule(2) of Rule 23 of the said Rules convening a special meeting of the Bokafa Panchayat Samiti for removal of the Chairman of the said Panchayat Samiti pursuant to the no confidence motion brought by majority of the members of the said Panchayat Samiti. It was mentioned in the said notice that the meeting would be held in the Bokafa Panchayat Samiti hall on 11.02.2020 at 11 a.m and Smt. Anita Mog Panchayat Officerwould be the Presiding Officer to conduct the meeting and Sri Anish Debnath respondent No.6 would be the observer of the said meeting. The notice of the meeting was served on each of the elected members. Thereafter the meeting was held on the appointed date and at the appointed time and place. All the elected members were present in the meeting. After the no confidence motion against the Chairman was passed by the votes of majority of the members present and voting the minutes of the meetingwas drawn up and signed by the duly appointed Presiding Officer the Observer Respondent No.6] and the President of the meeting which forms the quorum for the meeting and at the beginning of the meeting the notice in Form 4 is read out and also issued the political party whip to all members. The motion then has been placed for debate by the members present in the meeting and has been asked to conclude the discussion by 12.00 P.M. Then all members present in the meeting were informed that the motion would now be put to vote and apprised them that votes should have to be casted by raising of hands as specified under Rule 23 of the Tripura Panchayats Rules 1994. Out of 9 nos members present in the meeting 05 members raised their hands showing their support in favour of the motion and accordingly put their signature in the attendance.” Smt. Anita Mog Presiding Officer of the said meeting Respondent No.5] by her letter dated 14.02.2020 communicated the said minutes of the meeting to the District Panchayat Officer in terms of sub rule(6) of Rule 23 of the said Rules. Anish Debnath Respondent No.6] who was appointed observer in terms of the proviso to sub rule(3) of Rule 23 of the said Rules also submitted his report dated 17.02.2020 to the District Panchayat Officer Respondent No.3]. On the basis of said report dated 14.02.2020 of the Presiding Officer and report dated 17.02.2020 of the observer the District Panchayat Officervide memorandum dated 24.02.2020 Annexure 5 of the writ petition] issued the removal order of the Chairman of the said Panchayat Samiti in terms of sub rule(6) of Rule 23 of the said Rules. Said removal order reads as under: “Annexure 5 Government of Tripura Office of the District Magistrate & Collector South Tripura District Belonia Dated 24 02 2020 Whereas the O o the South Tripura Zilla Parishad Belonia received a letter along with FORM 4” on 29th January 2020 wherein 6(six) existing elected members out of nine) of Bokafa Panchayat Samiti signed with intention for removal of present Chairman(Sri Sridam Das) of Bokafa Pacnchayat Samiti. issued by Whereas as per Rule 23(2) of the Tripura Panchayats Rules 1994 and in pursuance of Section 82 of The Tripura Panchayats Act 1993 a notice the undersigned vide No.F.29(21 5) DPO S PGE 2019 1097 Dt.01 02 2020 to conduct a special meeting on the issue of No Confidence Motion held on 11th February 2020 at 11.00 AM at Bokafa Panchayat Samiti Hall where Sri Avijit Mitra Vice Chairman of Bokafa Panchayat Samiti presided over and Smt.Anita Mog Panchayat Officer of Bokafa RD Block had discharged duties as Presiding Officer and Sri Anish Debnath Assistant Director of Panchayats(on CDC) STZP was present as an Whereas according to the report submitted by the Presiding Officer(Smt. Anita Mog) vide No. F. 9(6) BDO BKF PANCH 2019 20 640 Date: 14 02 2020 and also report of the Observer vide No.F.29 DPO S Misc 2018 1164 Date: 17 02 2020 it is commonly brought to notice of the undersigned that out of nineElected Members of Bokafa Panchayat Samiti all of them including Chairman Vice Chairman remained present that clearly formed quorum. The reports also reveal that at the beginning of the meeting the Presiding Officer read out Form 4 along with Whip of Political party(BJP) which they belong to. After making a debate discussion on the issue for removal of Chairman of Bokafa Panchayat Samiti the matter put to vote among the members who remained present in the hal. From the record it is known that out of nine(09) members five(05)members namely 1)Indrajit Das 2)Rajesh Reang 3)Debashish Majumder 4)Anita Reang 5)Sujata Das(Natta) casted their votes in favour of No Confidence Motion by raising their hands while the president couldn’t take part for casting vote as per sub section(5) of Section(87) of the Tripura Panchayats Act 1993. Besides since I have gone through the result declared by the Presiding Officer of the meeting under Section 23(5) of Part B of Chapter II of the Tripura Panchayats Rules 1994 it is come to notice that the No Confidence Motion has been passed by the majority of existing members of Bokafa Panchayat Samiti. Now therefore per Rule23(6) Rules(Administration) 1994 I the District Panchayat Officer of South Tripura District to remove Sri Sridam Das from the post of Chairman of Bokafa Panchayat Samiti. the Tripura The removed Chairmanis hereby requested to hand over the all charges of Bokafa Panchayat Samiti to Sri Avijit Mitra Vice Chairman of Bokafa Panchayat Samiti in Form 1(enclosed) within ten days. Enclo: As stated. By order District Panchayat Officer South Tripura District Belonia To Sri Sridam Das Bokafa Panchayat Samiti South Tripura District for compliance Copy to 1.The CEO(DM & Collector) STZP South Tripura District for kind information. 2.The Director of Panchayats Agartala West Tripura for kind information. 3. The EO(BDO) Bokafa RD Block South Tripura for information. He is also requested to arrange to serve this order to concerned and to take necessary action accordingly. 4.The Secretary Bokafa Panchayat Samiti South Tripura District for information & n.a. 5.All directly elected members Bokafa Panchayat Samiti for information. 6.The Vice Chairman of Bokafa Panchayat Samiti for information and compliance. District Panchayat Officer South Tripura District Belonia” Thereafter the District Magistrate and Collectorvide memorandum dated 13.03.2020[Annexure 6 of the writ petition] issued show cause notice to the petitioners on the basis of report received from the Presiding Officer of the said meeting asking them to show cause as to why they would not be declared disqualified as members of the said Panchayat Samiti for voting contrary to the direction of their political party. The said memorandum dated 13.03.2020 of the District Magistrate and Collector reads as under: “Annexure 6 Government of Tripura Office of the District Magistrate & Collector South Tripura District Belonia Dated 13 03 2020 Whereas it has been brought to my notice by presiding officer of the meeting of Bokafa Panchayat Samiti which was held on 11th February 2020 at 11.00 A.M that some members have earned disqualification under Section 76 of the Tripura Panchayats Act 1993 and referred the issue of deciding the question of their disqualification for decision under sub section(2) or as the case may be or both of Section 76 of the Act. Whereas it has been informed that you have earned disqualification under Section 76 of the Tripura Panchayats Act 1993 for voting contrary to the direction of yur political party. Whereas it has been observed that no letter of prior permission or condonation has been submitted by you to the undersigned within thirty day from the date of voting i.e. upto 12 03 2020). Now therefore you are hereby asked to show cause as to why you shall not be disqualified from being a member of Bokafa Panchayat Samiti as per clauseof sub section(1) of Section 76 of Tripura Panchayats Act 1993. Your reply in this regard shall reach the office of the undersigned by 17 03 2020 else it shall be presumed that you have nothing to say in this matter and ex parte decision shall be taken. District Magistrate & Collector South Tripura District Belonia” 16] All the five writ petitioners submitted same written reply dated 13.03.2020 to the show cause notice denying the allegations and asserting that they were never asked to abstain from voting for removal of the Chairman of the said Panchayat Samiti. Since the replies are same it would be appropriate to reproduce one of those replies for reference which is as “Annexure 7 The District Magistrate & Collector South Tripura District Belonia South Tripura Subject: Reply of your kind memorandum No.F.29(23) DPO S PGE 2019 1210 Dated 13 03 2020 Respected Sir With profound respect and magnificent generosity I would like to convey to your kind self the following facts which is factual related to your kind memo number explicit above for favour of your kind perusal and further course of action. At the very out set I beg acknowledge as received of your letter number stated above and furnishing herewith the reasonable reply in seriatim in according with the stanga wise. It is fact on 11th February 2020 one meeting was hold at 11 AM. In the Bokafa Panchayat Samiti Hall & Smt. Anita Mog Panchayat Officer of Bokafa RD Block has discharged duties as presiding officer and Sri Anish Debnath Asstt. Director of PanchayatThat sir 2) That sir 3) That sir In respect of 2nd stanga it is mentioned that I have been earned disqualification under Section of 76 of the Tripura Panchayats Act 1993 for Votting On the report I would like to clarify here that neither I have earned declared by the authorities as disqualify nor asked to abstain from caste of my Vote related to removal of the existing Chairman of Bokafa Panchayat Samiti. 4) That sir In respect of 3rd stanga I would like to briefing here that the Voting of the removal of the Bokafa Panchayat Samity Chairman was hold on 11 02 2020 In question of taken permission condemnation from your kind self within thirty days. It may be noted here that I took it will be not necessary as because I am completely ignore clear conception about the rules of Panchayat 1994. Subsequently on the other hand one office order has been communicated to me vide office order No. No.F.29(23) DPO S PGE 2019 1169 Dated 24 02 2020 Issued by the District Panchayat Officer South Tripura District Belonia. Where in it is clearly mentioned that the No confidence motion has been passed by the majority of existing members of Bokafa Panchayat Samity as per rule 23(6) of the Tripura Panchayat Rules(Administration)1994. Beside the District Panchayat Officer South Tripura District Belonia requested to the removed chairman of Bokafa Panchayat Samity to Sri Avijit Mitra Vice Chairman of Bokafa Panchayat Samity in form 1 which was enclosed) within ten days. In this perspective I am highly eagerness to know under what circumstances the presiding Officer and observer took the Votes I C. with the removal of the existing Chairman of Bokafa Panchayat Samity and District panchayat Officer Issued Office Order to handing over the all charges of Bokafa Panchayat Samity in form No.I It I am disqualify from the post of panchayat samity member Bokafa Panchayat Samity along with caste of my Vote. In Compliance of the office order issued by the District Panchayat Officer the Vice Chairman of Bokafa Panchayat Samity wrote a letter addressing to the District Panchayat Officer for handing over of the all charges of Bokafa Panchayat Samity on regards to effective functioning of the establishment of Bokafa Panchayat Samity on 03 10 2020. However In response to your kind memo number cited above I am furnishing here with the self representation which is factual for favour of your king perusal and magnanimous consideration. Yours sincerely Member Bokafa Panchayat Samity Copy to: 1) The District Panchayat Officer South Tripura District Belonia for favour of kind On receipt of the reply received from the petitioners the District Magistrate and Collector vide his impugned order dated 27.03.2020[Annexure 11 of the writ petition] declared that the petitioners earned disqualification under Section 76(1)(b) of the Tripura Panchayats Act 1993 on the ground that they voted for removal of the Chairman of the said Panchayat Samiti contrary to the direction whip issued by their political party without obtaining prior written permission of their party and their conduct was not condoned by their party within 30 days from the date of such voting. The impugned order reads as follows: “Annexure 11 Government of Tripura Office of the District Magistrate & Collector South Tripura District Belonia Dated 27th March 2020 Smt. Anita Mog Panchayat Officer of Bokafa RD Block South Tripura vide her letter No.F.9(6) BDO BKF PANCH 2019 2020 641 dated 14 02 2020 has referred the matter of disqualification of 6(six)members of Bokafa Panchayat Samiti viz. Sri Avijit Mitra. Smt. Anita Reng. Sri Rajesh Reang Sri Indrajit Das Smt. Sujata Das(Natta) & Sri Dbashish Majumder to the undersigned. It was observed that as per provision contained in Section 82 of the Tripura Panchayats Act. 1993 6(six)elected members of Bokafa Panchayat Samity have delivered Notice to the Secretary Dakshin Tripura Zilla Parishad(District Panchayat Officer)South Tripura . Belonia in FORM 4 for convening Special Meeting of Bokafa Panchayat Samiti Hall for removal of existing Chairman of Bokafa Panchayat Samiti Bokafa South Tripura. Thereafter a meeting of Bokafa Panchayat Samity under Bokafa RD Block. South Tripura was convened on 11th Februray 2020 at Bokafa Panchayat Samiti Hall at 11.00 AM for removal of existing Chairman of Bokafa Panchayat Samiti Bokafa South After the meeting Smt. Anita Mog Panchayat Officer of Bokafa RD Block South Tripura has submitted report to the DM & Colletor South Tripura in FORM 12 A under Rule 27(sub rule 1&2) of the Tripura Panchayats(Election of Office Bearers)rules 1994 that 6(Six) elected Members of Bokafa Panchayat Samiti viz. Sri Avijit Mitra Smt. Anita Reang Sri Rajesh Reang Sri Indrajit Das Smt.Sujata Das(Natta) & Sri Debashish Majumder have earned disqualification under Section76(1)(b) of the Tripura Panchayats Act 1993 for voting contrary to the direction of Political Party to which they belonged. A show cause memo was issued dated 13 03 2020 to all the members of Panchayat Samiti as to why they shall not be disqualified from being a member of Bokafa Panchayat Samiti as per clauseof sub section(1) of Section 76 of Tripura Panchayats Act 1993. It was observed from the reply furnished by the members of the Panchayat Samiti that they could neither submit any prior written permission of the political party to which they belonged for voting contrary to the directions issued by the political party nor they could furnish any document regarding condonation of such voting or abstenation by the political party within thirty days from the such voting or abstenation. Sri Commissioner Kalai District Panchayat Officer South Tripura who was directed to enquire into the matter vide Memorandum No.F.29(23) DPO S PGE 2019 1218 dated 16 03 2020 in his report vide No. F.29(23) DPO S PGE 2019 1239 dated 25 03 2020 has mentioned that they have earned disqualification under Section 76 of the Tripura Panchayats Act 1993 for abstaining in voting or voting contrary to the direction issued by the political party to which they belonged. Also that the points raised by these 6(Six) members of Bokafa Panchayat Samiti are unreasonable and However it was observed from the minutes of the proceeding that only 5(five) members voted against the direction of the political party. Sri Avijit Mitra who presided over the meeting did no cast vote. In the sub section(5) of Section 87 of The Tripura Panchayats Act 1993 it is mentioned that “ All questions coming before a Panchayat Samiti shall be decided by a majority of vote: Provided that in case of equality of votes of person presiding shall have a casting Provided further that in case of a requisitioned meeting of the removal of Chairman or Vice Chairman under Section 82 the person presiding over the meeting shall have no casting vote” Thus it is clear that Sri Avijit Mitra who presided over the meeting had not cast his vote and he was not required to as per the abovementioned provision. Therefore the disqualification under Section 76(1)(b) of the Tripura Panchayats Act. 1993 will not be applicable to Sri Avijit Mitra. However the disqualification under Section 76(1)(b) of the Tripura Panchayats Act 1993 would be applicable to those 5(five) members who voted against the directions contrary to the political party to which they belonged and that has not been condoned by the political party within the stipulated time. Therefore in exercise of the power conferred upon me under Section 76(3) of the Tripura Panchayats Act 1993 I Sri D.Bardhan IAS District Magistrate & Collector South Tripura being empowered to take decision on the subject of disqualification of elected member after careful consideration of the above facts and circumstances presented before the undersigned hereby declare that that 5(five) elected Members of Bokafa Panchayat Samiti viz. Smt.Anita Reang Sri Rajesh Reang Sri Indrajit Das Smt.Sujata Das & Sri Debashish Majumder have earned disqualification under Section 76(1)(b) of the Tripura Panchayats Act 1993 for voting contrary to the direction of the Political Party to which they belonged and the disqualification shall take immediate effect. District Magistrate & Collector South Tripura Belonia To 1. Avijit Mitra Vice Chairperson Bokafa Panchayat Samiti. 2. Smt. Anita Reang 3. Sri Rajesh Reang 4. Sri Indrajit Das 5. Smt. Sujata Das(Natta) 6. Sri Debashish Majumder Copy also to: 1. The Director of Panchayats Government of Tripura for kind information 2. TheDPO South Tripura District for information and necessary action 3. The Executive Officer Bokafa Panchayat SamitiRules 1994 I being the Vice Chairperson of the Samity presided over the said meeting dated 11 02 2020. But Presence of Respondent No.5 as presiding officer of the said meeting dated 11 2 2020 was beyond the said rules as well as her report dated 17 02 2020 wherein Respondent No.5 without giving undertaking anything to me obtained my signature about after one week in the minutes typed in English that also not read over to me Annexure 9 and as such I do not deny and dispute to the averments in this paragraph. the Majority Member of It is mentionable here that the minutes of the meeting was carried out by a resolution of the Meeting as per Tripura Panchayat(Administration) Rules 1994 and as such report of the respondent No.5 annexure 9 is contrary to the aforesaid rules 1994 as well as The Tripura Panchayat Act 1993 and The Tripura Panchayats(Election of Office Bearers)Rules 1994. The annexure 9 report of the Respondent No.5 6 and myself is not prepared in the meeting on 11 02 2020. But it is prepared on 17 02 2020 in the office of the Respondent No.3 and obtained my Signature Stating that the Bengali written resolution of the meeting dated 11 02 2020 is translated to English and obtained my signature without reading over to me but no Political Party whip issued or read over in the meeting that now I could realize from the Annexure 9 on receipt of the copy of the writ petition. When Respondent No.5 obtained signature there was no signature of Respondent No.5 &6 but obtained in their Office stating that it is prepared and my signature is necessary as I presided the meeting dated 11 2 2020 but nothing read over to me and that also contrary to the Panchayat and Rules. That the averments made in para 18 of the writ petition I say that as I presided over the meeting dated 11 2 2020 I did not refer any issue of Disqualification of any member but as regard referring any issue of Disqualification of petitioners are matter of Law and Facts and as such I Neither Denied nor disputed in this regard.” emphasis supplied] Debashish Mazumder one of the petitioners in his rejoinder dated 03.02.2021 also stated that no party whip was served on any of the petitioners in any manner. Counsel of the petitioners submitted that the burden of proof of service of the party whip lies on the respondents and the respondents having failed to prove the service their disqualification order does not survive. It is already observed that there is no proof of service of the party whip on the petitioners. Even Respondent No.7 Vice chairman of the said Panchayat Samiti who presided over the meeting categorically stated in his counter affidavit that no party whip was ever served or read over to the members of the Panchayat Samiti. The state respondents did not submit any rejoinder to dispute the contention of Respondent No.7. Even no other respondents who were present in the said meeting submitted any counter affidavit denying the said contention of the In these circumstances the contention of the petitioners that no party whip was served on them stands established. It is true that neither the Act nor the Rules made thereunder provide for a particular method of service of intimation of the whip containing the direction of the party. Section 76 of the Act uses the expression “contrary to the direction issued by the political party”. Thus the stress is on a member voting contrary to the any direction issued by the political party to which he belongs. In the case of Ranjit Sinha and Ors. vs. State of Tripura and Ors. this Court held that in order to establish the breach of party whip communication of the particular direction whip would be necessary. In the said case disqualification order of the petitioners was set aside on the ground that there was no evidence of the communication of the party whip to the members and the High Court held as under: “25.Even though there is no specific provision in this regard undoubtedly within the scheme of the statute and the Rules made thereunder the petitioners were entitled to be properly communicated the party whip prior to the commencement of the election process since their failure in complying with such whip would render them disqualified from the membership of the panchayat .” Plea of the respondents that the party whip was read over to the members prior to the meeting is categorically denied by the petitioners as well as Respondent No.7 who presided over the said meeting. For argument’s sake even if it is conceived that the party whip was read over to the members prior to the meeting such reading of the party whip cannot be substituted for proper communication of the whip. It was held by this court in the case of Ranjit Sinha(supra) that reading out of party whip cannot be substituted for proper communication of the whip on the elected members of the party to which they belong. If the requirement of proper and valid communication of whip is to be substituted by reading out the whip by the authorized officer which does not form part of his statutory duties it will open wide possibilities of disputes of authenticity correctness and reliability of The same analogy applies to this case. In absence of proof of proper service of the party whip on the petitioners they cannot be held disqualified for violation of such whip. The Apex Court has also held that removal of an elected member from a democratic institution is a very serious matter which cannot be done without strict adherence to the prescribed procedure. In Tarlochan Dev Sharma vs. State of Punjab and Ors. reported in AIR 2001 SC 2524 the Apex Court has succinctly held that in a democracy governed by the rule of law removal of an elected candidate from his office before the expiry of the statutory term for which he has been elected is a serious matter. Once elected to an office in a democratic institution the incumbent is entitled to hold the office for the whole term unless his election is set aside by a prescribed procedure known to law. Observation of the Apex Court in paragraph 7 of the said judgment is as “7. In a democracy governed by rule of law once elected to an office in a democratic institution the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents. Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held ........................................................................ ” While highlighting on the necessity of strict adherence to the legal requirements and principles of natural justice for removal of a duly elected member of the Panchayat and the effect of such removal on the electorate similar observation was made by the Apex Court in Laxmibai vs. Collector Nanded & Ors. reported in AIR 2020 SC 3393 wherein the Apex Court also made a reference to Tarlochan Dev Sharma(supra) and held as “16. In Tarlochan Dev Sharma v. State of Punjab & Ors.5 this Court has held that holding and enjoying an office discharging related duties is a valuable statutory right of not only the returned candidate but also his constituency or electoral college. Therefore the procedure prescribed must be strictly adhered to and unless a clear case is made out there cannot be any justification for his removal. 17. In Ravi Yashwant Bhoir v. District Collector Raigad & Ors.[(2012) 4 SCC 407 : this Court held that an elected official cannot be permitted to be removed unceremoniously without following the procedure prescribed by law. Where the statutory provision has very serious repercussions it implicitly makes it imperative and obligatory on the part of the authority to have strict adherence to the statutory provisions. It was held as under: “35. The elected official is accountable to its electorate because he is being elected by a large number of voters. His removal has serious repercussions as he is removed from the post and declared disqualified to contest the elections for a further stipulated period but it also takes away the right of the people of his constituency to be represented by him. Undoubtedly the right to hold such a post is statutory and no person can claim any absolute or vested right to the post but he cannot be removed without strictly adhering to the provisions provided by the legislature for his removal 1 SCC 691 : AIR 1982 SC 983] Mohan Lal Tripathi v. District Magistrate Rae Bareily4 SCC 80 AIR 1993 SC 2042] and Ram Beti v. District Panchayat Raj Adhikari1 SCC 680 : AIR 1998 SC 1222] ). 36. In view of the above the law on the issue stands crystallised to the effect that an elected member can be removed in exceptional circumstances giving strict adherence to the statutory provisions and holding the enquiry meeting the requirement of principles of natural justice and giving an incumbent an opportunity to defend himself for the reason that removal of an elected person casts stigma upon him and takes away his valuable statutory right. Not only the elected office bearer but his constituency electoral college is also deprived of representation by the person of their choice.” Keeping in view the said observations of the Apex Court and the discussions made above the impugned order dated 27.03.2020 issued by the District Magistrate and Collector South Tripura disqualifying the petitioners from the membership of Bokafa Panchayat Samiti for alleged violation of party whip is set aside. The writ petition is allowed and disposed of accordingly. S.G.CHATTOPADHYAY) J AKIL KURESHI) CJ Saikat Sarma P.A |
Probation period is included in the mandatory minimum sentence for offences under IPC: Supreme Court of India | Probation u/s Probation of Offenders Act, 1958 isn’t excluded from the provisions of the mandatory minimum sentence for offenses under the Indian Penal Code. This decision was taken by the bench of the Supreme Court of India comprising of Hon’ble Justice Sanjay Kishan Kaul and Justice Hrishikesh Roy in the case of Lakhvir Singh vs. State of Punjab [Criminal Appeal No.47-48 of 2021, Arising out of SLP (Crl.) Nos.6283-6284/2020] In the instant case, the petitioner/accused were convicted for offence u/s 397 of the IPC and were sentenced to 7 years of rigorous imprisonment each. When the appeal was filed in the SC, it was contended that the parties had mutually agreed to a settlement. Whereas, the respondent i.e. the State opposed the benefit of probation under the Probation of Offenders Act, 1958 for which a plea had been filed by the accused. And the State opined that the minimum sentence cannot be reduced to less than 7 years because it’s the minimum sentence stated in the statute. SC bench observed that Section 4 of the Act under which they’ve found guilty is not punishable with death or life imprisonment. And since they were not 21 years old, they couldn’t be given help under section 6 of the Act and hence SC stated referring to the earlier judgments in the case of Ishar Das vs. State of Punjab, where it was held that the beneficiary provisions of the Act must be interpreted in a broader manner and therefore, they shouldn’t be read in a restricted manner. Later on, the SC bench opined that “the Act may not apply in cases where a specific law enacted after 1958 prescribes a mandatory minimum sentence, and the law contains a non-obstante clause”. “Thus, the benefits of the Act did not apply in case of mandatory minimum sentences prescribed by special legislation enacted after the Act”. SC observed that in the previous judgment of State of Madhya Pradesh vs. Vikram Das that the court cannot award a sentence less than the mandatory sentence prescribed by the statute. And hence it was concluded that the benefit of probation under the said Act is not excluded by the provisions of the mandatory minimum sentence under Section 397 of IPC.
Finally, Supreme Court gave the judgment that “Accused on probation of good conduct under Section 4 of the said Act ‘on their completion of half the sentence and on their entering into a bond with two sureties each to ensure that they maintain peace and good behavior for the remaining part of their sentence, failing which they can be called upon to serve that part of the sentence.”
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| IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOs.47 48 OF 2021 Arising out of SLP(Crl) Nos.6283 6284 2020 LAKHVIR SINGH ETC ….Appellants THE STATE OF PUNJAB & ANR JUDGMENT SANJAY KISHAN KAUL J The appellants were youngsters aged 20 and 19 years when they fell foul of the law. On 14.02.2003 at around 7.30 p.m. the appellants alongwith co accused Gurpreet Singh1 approached the complainant PW1 to hire a taxi to go to a village. Enroute when at their behest the car was stopped Gurpreet Singh caught hold of the complainant and the appellant 1 He faced trial before a Juvenile Court Jagdeep Singh took a dagger and inflicted 6 7 injuries on PW1’s forehead Appellant Lakhvir Singh inflicted 2 3 injuries on his abdomen and 1 injury on his neck using a knife. The complainant was thrown out of his taxi and the three people fled with the taxi. In pursuance to the reporting of the crime by complainant an FIR was registered on 15.02.2003 under Section 382 and Section 307 read with Section 34 IPC. Knife and dagger were recovered alongwith the taxi and the trial Court framed charges under Section 397 IPC. Post trial the appellants were convicted by the trial Court vide judgment dated 8.1.2005 and sentenced to undergo Rigorous Imprisonment of 7 years each The appeal preferred by the appellants has been dismissed by the impugned judgment dated 24.10.2019 The appellants approached this Court by a special leave petition Annexed thereto the compromise deed arrived at between the complainant Amrik Singh and the appellants before us in terms whereof the complainant has stated that he did not want to pursue any action against the appellants and has no objection to their release on bail or acquittal. The appellants have already served about 50% of their sentence while in On 3.12.2020 this Court while recording the aforesaid plea issued notice on the SLP and on the prayer for interim relief of bail while simultaneously impleading the complainant as the 2nd respondent. On 18.12.2020 counsel for the State and respondent no. 2 entered appearance and counsel for respondent no.2 confirmed that the dispute had been amicably resolved. However counsel for respondent no.1 submitted that the minimum sentence provided by the statute under Section 397 is 7 years and the same cannot be reduced below that period. On this submission learned counsel for the appellants sought benefit under the Probation of Offenders Act 1958 hereinafter referred to as ‘the Act’. It is on the limited conspectus of the aforesaid aspect that on 11.01.2021 we granted leave and reserved the judgment upon conclusion of arguments and the parties having filed their respective synopsis The legal position The plea of the learned counsel for the State respondent no.1 is based on the judgment of this Court in the case of State of Madhya Pradesh v Vikram Das2 opining that the courts cannot impose less than the minimum sentence prescribed by the statute. He thus seeks continuing detention of the appellants to serve out the remaining sentence. On the other hand learned counsel for the appellants has sought the benefit under the said Act in view of the age of the appellants when the offence was committed 6. We may notice that the Statement of Objects and Reasons of the said Act explains the rationale for the enactment and its amendments: to give the benefit of release of offenders on probation of good conduct instead of sentencing them to imprisonment. Thus increasing emphasis on the reformation and rehabilitation of offenders as useful and self reliant members of society without subjecting them to the deleterious effects of jail life is what is sought to be subserved. Section 6 of the said Act as per its own title provides for restrictions on imprisonment of offenders under twenty one years of age. The said provision reads as under “6. Restrictions on imprisonment of offenders under twenty one years of age.—(1) When any person under twenty one years of age is found guilty of having committed an offence punishable with imprisonment but not with imprisonment for life) the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that having regard to 24 SCC 125 the circumstances of the case including the nature of the offence and the character of the offender it would not be desirable to deal with him under section 3 or section 4 and if the court passes any sentence of imprisonment on the offender it shall record its reasons for doing so. 2) For the purpose of satisfying itself whether it would not be desirable to deal under section 3 or section 4 with an offender referred to in sub section the court shall call for a report from the probation officer and consider the report if any and any other information available to it relating to the character and physical and mental condition of the offender.” A view was taken by a 4 judge bench of this Court in Ramji Missar vs. State of Bihar 3 while seeking to apply the said provision to offenders who were under the age of 21 years on the date of sentencing and not on the date of commission of offence. In Masarullah v. State of Tamil Nadu4 there are observations to the effect that “in case of an offender under the age of twenty one years on the date of commission of the offence the Court is expected ordinarily to give benefit of the provisions of the Act and there is an embargo on the power of the Court to award sentence unless the Court considers otherwise having regard to the circumstances of the case including nature of the offence and the character of the offender and 3 AIR 1963 SC 1088 43 SCC 458 reasons for awarding sentence have to be recorded. Considerations relevant to the adjudication of this aspect are circumstances of the case nature of the offence and character of the offender. It is therefore necessary to keep in view the afore mentioned three aspects while deciding whether the appellant should be granted the benefit of the provisions of the Act.” But in the subsequent judgment in Sudesh Kumar v. State of Uttarakhand5 the judgment of the four Judge Bench in Ramji Missar was noted as possibly having escaped attention. Thus the legal position was clarified as the one being reflected in Ramji Missar 3 SCC 111 6 Ishar Das v. State of Punjab 2 SCC 65 pr.7 In Satyabhan Kishore v. State of Bihar 7 this Court had noted the distinction between Section 6 which is in the nature of an injunction for courts to follow as distinct from Section 3 or 4 of the Act which are discretionary in nature. The relevant provisions read as under “3. Power of court to release certain offenders after admonition.—When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code or any offence punishable with imprisonment for not more than two years or with fine or with both under the Indian Penal Code or any other law and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that having regard to the circumstances of the case including the nature of the offence and the character of the offender it is expedient so to do then notwithstanding anything contained in any other law for the time being in force the court may instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due Explanation.—For the purposes of this section previous conviction against a person shall include any previous order made against him under this section or section 4. 4. Power of court to release certain offenders on probation of good conduct.—(1) When any person is found guilty of having committed an offence not 73 SCC 350 punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that having regard to the circumstances of the case including the nature of the offence and the character of the offender it is expedient to release him on probation of good conduct then notwithstanding anything contained in any other law for the time being in force the court may instead of sentencing him at once to any punishment direct that he be released on his entering into a bond with or without sureties to appear and receive sentence when called upon during such period not exceeding three years as the court may direct and in the meantime to keep the peace and be of good Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety if any has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the 2) Before making any order under sub section 1) the court shall take into consideration the report if any of the probation officer concerned in relation to the 3) When an order under sub sectionis made the court may if it is of opinion that in the interests of the offender and of the public it is expedient so to do in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period not being less than one year as may be specified therein and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender. 4) The court making a supervision order under sub sectionshall require the offender before he is released to enter into a bond with or without sureties to observe the conditions specified in such order and such additional conditions with respect to residence abstention from intoxicants or any other matter as the court may having regard to the particular circumstances consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. 5) The court making a supervision order under sub sectionshall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders the sureties if any and the probation officer In the case of the appellants Section 3 would have no application taking into consideration nature of offence. However Section 4 could come to the aid of the appellants as the offence committed of which they have been found guilty is not punishable with death or imprisonment for life However the trial court opined against the appellants. We may also note that the “notwithstanding” contained in Section 4 permits despite anything contained in any other law for the time being in force the court to release a person on bond with or without sureties for a period of 3 years instead of sentencing him in order to ensure that he keeps peace and good behaviour In this regard under sub sectionbefore making any order under sub sectionthe court is required to take into consideration the report if any of the probation officer concerned in relation to the case 9. We may note that the aforesaid is distinct from Section 6 as it is discretionary in nature while Section 6 provides that a court “must not” sentence a person under the age of 21 years to imprisonment unless sufficient reasons for the same are recorded based on due consideration of the probation officer’s report. The relevant aspects while giving benefit under Section 6 of the Act are: the nature of offence the character of the offender and the surrounding circumstances as recorded in the probation 10. We may notice that since we are concerned with the appellants who were under 21 years of age on the date of the offence and not on the date of conviction Section 6 would not come to their aid. In a subsequent judgment of this Court9 it was noted that in Masarullahthis Court had calculated the age of the convict as on the date of commission of the offence incorrectly and there has been no discussion of the potential tension 8 Masarullah vs. State of Tamil Nadu 1982 3 SCC 458 pr.6 9 Sudesh Kumar vs. State of Uttarakhand 3 SCC 111 between grant of probation under the Act and the mandatory minimum sentence of 7 years under Section 397 of the IPC The legal position insofar as invocation of Section 4 is concerned has been analysed in Ishar Das vs. State of Punjab10 elucidating that non obstante clause in Section 4 of the Act reflected the legislative intent that provisions of the Act have effect notwithstanding any other law in force at that time. The observation in Ramji Missar was cited with approval to the effect that in case of any ambiguity the beneficial provisions of the Act should receive wide interpretation and should not be read in a restricted sense which reads as under The aforesaid aspect is confirmed by the wording of the said Act “18. Saving of operation of certain enactments. — Nothing in this Act shall affect the provisions of section 31 of the Reformatory Schools Act 1897or sub section of section 5 of the Prevention of Corruption Act 1947or of any law in force in any State relating to juvenile offenders or Borstal 102 SCC 65 Even though Section 5(2) of the Prevention of Corruption Act 1947 hereinafter referred to as ‘the PC Act’) prescribes a minimum sentence of imprisonment for not less than 1 year an exception was carved out keeping in mind the application of the Act. In Ishar Dasthis Court noted that if the object of the legislature was that the Act does not apply to all cases where a minimum sentence of imprisonment is prescribed there was no reason to specifically provide an exception for Section 5(2) of the PC Act. The fact that Section 18 of the Act does not include any other such offences where a mandatory minimum sentence has been prescribed suggests that the Act may be invoked in such other offences. A more nuanced interpretation on this aspect was given in CCE vs. Bahubali11. It was opined that the Act may not apply in cases where a specific law enacted after 1958 prescribes a mandatory minimum sentence and the law contains a non obstante clause. Thus the benefits of the Act did not apply in case of mandatory minimum sentences prescribed by special legislation enacted after the Act.12 It is in this context it was observed in State of Madhya Pradesh vs. Vikram Das that the court cannot award a sentence less than the mandatory sentence prescribed by the statute. We 112 SCC 279 12 State vs. Ratan Lal Arora 4 SCC 590 are of the view that the corollary to the aforesaid legal decisions ends with a conclusion that the benefit of probation under the said Act is not excluded by the provisions of the mandatory minimum sentence under Section 397 of IPC the offence in the present case. In fact the observation made in Joginder Singh vs. State of Punjab13 are in the same context The factual position The facts of the present case are that the appellants have not served out the minimum sentence of 7 years though they have served about half the sentences. They were aged under 19 & 21 years of age as on the date of offence but not on the date of sentence. The redeeming feature in their case is that the person who suffered appears to have forgiven them possibly with the passage of time. There is no adverse report against them about their conduct in jail otherwise the same would have been brought to our notice by learned counsel for the State. Faced with the aforesaid legal position this is a fit case that the benefit of probation can be extended to the appellants under the said act in view of the provisions of Section 4 of the said Act on completion of half the sentence 13 ILRP&H 1 15. We thus release the appellants on probation of good conduct under Section 4 of the said Act on their completion of half the sentence and on their entering into a bond with two sureties each to ensure that they maintain peace and good behaviour for the remaining part of their sentence failing which they can be called upon to serve that part of the sentence The appeals are disposed of in the aforesaid terms leaving the parties to bear their own costs .. .J [HRISHIKESH ROY JANUARY 19 2021 |
High Court cannot seat as Appellate Authority involving terms of contract and its role is confined only to see any infirmity in the decision making process: Odisha High Court | “…for cancellation of the previous tender process, they are to go for fresh tender process for supply and commissioning of same objects, it will be abided by such commitments.”, this remarkable stand was forwarded by Odisha HC in the writ appeal case of ASCENOER Lift & Automation Private Ltd v. State of Odisha & another, [W.P.(C) No.16174 of 2019], chaired by Hon’ble chief justice Mr. Mohammad Rafiq & Hon’ble Justice Mr. Biswanath Rath of Odisha HC, the bench in this present case disposed the instant writ appeal, with no further order as to cost. This Writ Petition is filed seeking a direction from this Court to set aside the order dated 19.08.2019 in cancellation of the tender call notice vide Annexure-4. Short background involved in this case is that petitioner being a private company is incorporated under the Companies Act and represented through its Chairman. The O.P.2-the Chief Engineer, Orissa State Housing Board floated the tender call notice at a cost of Rs.1,26,50,000/- for work and supply with installation / testing and commissioning of 8nos. of 6 passenger lift and one number of 8 passenger lift including supply and installation of Servo Stabilizer and Comprehensive Annual Maintenance (CMC) for two years excluding the OEM provided warranty period of lift for the work of multistoried residential apartment (LIG Block) Phase-VII at Dumduma, Bhubaneswar. In the tender call notice eligible criteria of the bidders has been specifically stated in clause-2 and prior to participation in the tender the bidders were advised to verify the spot. Copy of the tender call notice is at Annexure-1. Meeting with the eligible criteria petitioner submitted all required documents before the O.P.2. It is stated that the Tender Committee accepted the proposal submitted by the petitioner. There were 8 agencies who had applied pursuant to the tender call notice and the Tender Committee rejected the proposals of Omega Elevator, Kumar Elevator and M/s. Bharat Elevator as they are not technically qualified on the basis of insufficient experience, but however, selected M/s. Arohi Elevator, M/s. LT Elevator and the petitioner as they were qualified technically and after these parties technically qualified the Tender Committee considered the financial bid. In the financial bid petitioner as well as one Arohi Elevator Private Ltd. quoted their percentage i.e. 14.99 and both of them were selected as L-1. As there were two parties standing at L-1, the Tender Committee entered into a lottery process between Arohi Elevator 3 and the petitioner and in the process, petitioner became the successful bidder. Pleadings made in this Writ Petition further discloses that in spite of depositing of a sum of Rs.1,26,500/- towards EMD by the petitioner, the O.P.2 did not issue the work order in favour of the petitioner and ultimately the petitioner came to know that the O.P.2 has cancelled the tender notice vide its order dated 19.08.2019 without assigning any reason and also without even communicating the same to the petitioner. It is submitted that petitioner could only get the information about cancellation of the tender notice through the Notice Board of the party concerned. After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble HC observed that, “there is no illegality or impropriety on the part of the O.P.2 in cancelling the earlier tender. It is, at this stage of the matter, this Court also records its expectation that for the disclosure in the counter affidavit at the instance of O.P.2 more particularly through paragraph nos.3 & 6 therein that in cancellation of the previous tender process they are to go for fresh tender process for supply and commissioning of same objects, it will be abided by such commitments.” The bench further added that, “Before parting with the judgment in upholding the decision of the authority in cancellation of the tender call notice vide Annexure-4, this Court keeping in view that there is some deposit at the instance of petitioner lying with the O.P.2, directs, such deposit shall be refunded to the petitioner with interest @7% per annum although within a period of seven days from the date of communication of a copy of this judgment by either of the parties. This Court here clarifies that for withdrawal of the Annexure-A during pendency of the Writ Petition the interim direction dated 25.11.2019 rendered infractuous and the Opposite Parties will be at liberty to go ahead with their decision on fresh tender.” | IN THE HIGH COURT OF JUDICATURE FOR ORISSA AT C U T T A C K W.P.(C) No.161719 ASCENOER Lift And Automation Private Limited Bhubaneswar State of Odisha & another Advocate(s) who appeared in this case through Video Conferencing mode: Opp. Parties Petitioner Versus For petitioner M s. T.K. Mishra P. Bastia For Opposite party no.1 : Mr. A.R. Dash AGA For Opposite party no.2 : M s D. Mohapatra M. Mahapatra G.R. Mohapatra A. Dash M.R. Pradhan J.M. Barik PRESENT: HONOURABLE THE CHIEF JUSTICE MR. MOHAMMAD RAFIQ HONOURABLE MR. JUSTICE BISWANATH RATH JUDGMENT Per:Biswanath Rath J. This Writ Petition is filed seeking a direction from this Court to set aside the order dated 19.08.2019 in cancellation of the tender call notice vide Annexure 4. 2 Short background involved in this case is that petitioner being a private company is incorporated under the Companies Act and represented through its Chairman. The O.P.2 the Chief Engineer Orissa State Housing Board floated the tender call notice at a cost of Rs.1 26 50 000 for work and supply with installation testing and commissioning of 8nos. of 6 passenger lift and one number of 8 passenger lift including supply and installation of Servo Stabilizer and Comprehensive Annual Maintenancefor two years excluding the OEM provided warranty period of lift for the work of multistoried residential apartmentPhase VII at Dumduma Bhubaneswar. In the tender call notice eligible criteria of the bidders has been specifically stated in clause 2 and prior to participation in the tender the bidders were advised to verify the spot. Copy of the tender call notice is at Annexure 1. Meeting with the eligible criteria petitioner submitted all required documents before the O.P.2. It is stated that the Tender Committee accepted the proposal submitted by the petitioner. There were 8 agencies who had applied pursuant to the tender call notice and the Tender Committee rejected the proposals of Omega Elevator Kumar Elevator and M s. Bharat Elevator as they are not technically qualified on the basis of insufficient experience but however selected M s. Arohi Elevator M s. LT Elevator and the petitioner as they were qualified technically and after these parties technically qualified the Tender Committee considered the financial bid. In the financial bid petitioner as well as one Arohi Elevator Private Ltd. quoted their percentage i.e. 14.99 and both of them were selected as L 1. As there were two parties standing at L 1 the Tender Committee entered into a lottery process between Arohi Elevator 3 and the petitioner and in the process petitioner became the successful bidder. Pleadings made in this Writ Petition further discloses that in spite of depositing of a sum of Rs.1 26 500 towards EMD by the petitioner the O.P.2 did not issue the work order in favour of the petitioner and ultimately the petitioner came to know that the O.P.2 has cancelled the tender notice vide its order dated 19.08.2019 without assigning any reason and also without even communicating the same to the petitioner. It is submitted that petitioner could only get the information about cancellation of the tender notice through the Notice Board of the party concerned. Taking this Court to the grounds raised in the Writ Petition Sri Mishra learned counsel for petitioner contended that the cancellation decision of the authority is otherwise illegal arbitrary and contrary to law. It is further contended that for the tender process having been concluded after entering into lottery process and once the petitioner stood at L 1 this is a concluding decision of the authority it will be amounting to completion of the tender procedure and after which there is no scope for cancelling the tender process. Further it is also urged by Sri Mishra that the cancellation notice having not assigned any reason of cancellation the impugned notice vide Annexure 4 is otherwise bad in law. Taking this Court to the heavy investment in participation of the tender process and consumption of time Sri Mishra learned for petitioner also contended that after so much development it becomes illegal to go behind such decision that too having no reason for such cancellation and such cancellation order makes huge financial loss to the petitioner. Sri Mishra learned counsel for petitioner further contended that looking to the 4 development already taken place upto selection of the petitioner as L 1 and the deposit already made the authority at least should have given opportunity to the petitioner before issuing such cancellation order. On the basis of development taken place involving the issue involved in the matter learned counsel for petitioner claimed that petitioner had already got a right involving the work order which cannot be denied under any circumstance. Taking this Court to the rejoinder affidavit at the instance of the petitioner so also the averments made in I.A. No.15088 of 2019 learned counsel for petitioner giving reference to the provision under the OPWD code contended that after cancellation of the tender call notice providing such work to Iron Triangles Ltd. is opposed by the provisions made by the State in the matter of contractual workings under the OPWD code and contended that such letter is opposed to their own provision through OPWD code which has a binding force on all the parties concerned. Further taking this Court to some contradictions in the counter affidavit learned counsel for petitioner also contended that the opposite parties do not come to the Court with clean hand. Taking this Court to the decision in the case of Monarch P.) Ltd. Versus Commissioner Ulhasnagar Municipal Corporation and others : 2000(5) SCC 287 and the decision of this Court dated 29.07.2019 involving disposal of the Writ Petition bearing No.11298 of 2018 along with No.11499 of 2018 learned counsel for petitioner claimed that case of the petitioner having support through the aforesaid decisions the impugned order becomes against law. Sri Mishra learned counsel for petitioner in the above circumstances requested this Court for 5 setting aside the impugned order and issuing appropriate direction in the matter of issuance of work order in favour of the petitioner. In his opposition taking this Court to the counter affidavit at the instance of O.P.2 Mr. Dayananda Mohapatra learned counsel for O.P.2 while disputing the claim of the petitioner contended that though petitioner was successful bidder to supply 8 numbers of 6 passenger lift and one number of 8 passenger lift including supply and installation of Servo Stabilizer and Comprehensive Annual Maintenance for two years excluding the OEM provided warranty period of lift for the work of multistoried residential apartment Phase VII at Dumduma Bhubaneswar but however keeping in view that the lift is a vital instrument operated in mechanical manner and carries goods and the personnel residing in the building or apartments and for the role of the lift involving such huge construction the authority has given a further thought over the matter and have decided to go for lifts of better brand and therefore in the process have decided to cancel the tender call notice. Further in the process of cancellation of the tender call notice the opposite parties have decided to go for fresh tender concerning supply of quality branded company lift. For a condition being there in the tender notice requiring final approval of the Chairman it is contended that after finding the petitioner as L 1 the file was processed for approval of the offer of the petitioner to the Chairman and in the process a decision is taken to go for high brand to ensure quality of materials in the matter of putting lifts in the apartments. Referring to the clause 29.1 Mr. D. Mohapatra learned counsel for O.P.2 contended that the decision of the competent authority is not only in terms of the provision at the clause 29.1 of the tender notice but also based on a decision of the 6 competent authority to go for high branded lift for installation. Mr. D. Mohapatra learned counsel contended that looking to the high rise buildings taking a decision to cancel the tender process cannot be found to be faulted with further since the decision is taken for greater interest of the residents of the high rise building and the decision of the authority is final there is little scope of interfering in the matter in exercise of power under Article 226 of the Constitution of India. Taking this Court to the decisions in the case of Tata Cellular versus Union of India : AIR 1996 SUPREME COURT 11 and in the case of South Delhi Municipal Corporation Versus Ravinder Kumar and another : 15 SCC 545 Mr. D. Mohapatra learned counsel for O.P.2 contended that the decision of O.P.2 has also support of law. Mr. D. Mohapatra learned counsel for O.P.2 also contended that the law of land further restricts the scope of interfering in such matter in exercise of power under Article 226 of the Constitution of India. In the above pleadings Sri Mohapatra learned counsel for O.P.2 requested this Court for dismissing the Writ Petition for having no substance. Considering the rival contentions of the parties this Court finds there is no dispute that the Writ Petition involves a challenge to the cancellation of the tender process through Tender Call Notice bearing No.10 CE OSHB 2018 19 vide Annexure 4. Looking to the pleadings made in this Writ Petition so also the contentions raised in the rejoinder affidavit involving Annexure A a subsequent letter issued by the Odisha State Housing Board in allotment of the same work in favour of the Iron Triangle Limited this Court finds in para 6 of the counter affidavit at the instance of O.P.2 it is clearly stated that in the meantime offer to the said Farm has already been 7 cancelled and for the decision of the Board O.P.2 is to go for fresh tender process. In such situation this Court finds petitioner’s allegation through Annexure A does not survive. This Court accordingly proceeds to decide the matter on the basis of the impugned order and the pleadings in the Writ Petition involving the impugned order action only. This Court here finds there is no dispute on the fact that in the tender process many participants were there there was rejection of some bids at the technical bid process petitioner along with some other got qualified in the technical bid process. Technically qualified participants including petitioner’s case being considered for financial aspect petitioner and another one found to be L 1 jointly in the price bid. There is also no dispute that upon entering into lottery process the petitioner became the successful tenderer and it is only after petitioner was declared successful in the tender process pursuant to Annexure 1 there appeared no issuance of work order and upon enquiry petitioner came to know about cancellation of the tender call notice through the impugned order vide Annexure 4. Keeping in view the allegation raised by the petitioner and recorded hereinabove this Court is required to find as to whether the cancellation of tender vide Annexure 4 is valid or invalid and the consequential relief thereupon. This Court here taking into consideration the tender call notice at the instance of O.P.2 vide Annexure 4 finds the clause 11 at page 11 of the brief contains as follows: “11. The authority reserves right to cancel any or all bids without assigning any reason.” 8 Further looking to the further conditions at page 14 onwards of the brief in the same tender notice at clause 28.2 this Court finds the same reads as follows: “28.2 The bidding process shall be deemed to be in complete till the date of issue of letter of acceptance. If the bidder fails to sign the agreement within the stipulated period mentioned under clause 29.2 his bid security shall stand forfeited. Proviso 29 deals with “Right to accept or reject any or all bids”. Clause 29.1 reads as follows: “29.1 The competent authority on behalf of the Board does not bind him to accept the lowest or any other tender and reserves to him the authority to reject any or all the tenders received without assigning any reason. Above conditions in the tender call notice reveals that the bidding process remained incomplete till the date of letter of acceptance is issued. Similarly the competent authority on behalf of the Board does not also bind it to accept the lowest or any other tender and reserves to him the authority to reject any or all the tenders received without assigning any reason. From the pleadings available in the Writ Petition this Court finds there is no pleading that for the tender process involved herein there is issuance of letter of acceptance before the letter of cancellation vide Annexure 4 is issued. Further looking to the nature of order vide Annexure 4 and the allegation that the impugned order of cancellation did not assign any reason it appears for the specific condition at clause 29.1 the authority may not also assign any reason. Be that as it may further delving into the matter this Court from paragraph no.3 of the counter affidavit at the instance of O.P.2 finds keeping in view the fact that installation of the lift in the high rise building is a vital instrument operated in mechanical manner and it carries goods as well as persons residing in the apartment the management decided to install the lifts of better brands. Further in the greater interest of the residents the management in cancellation of the previous tender also decided to go for fresh tender concerning supply of quality materials of branded company having reputation. There is reiteration of such stand again in paragraph no.6 of the counter affidavit at the instance of O.P.2. It is in the circumstance this Court finds the authority in its wisdom taking into account the complicated issue involving putting of lifts in the high rise building under its construction has decided to go for fresh tender to have better brand lifts. Therefore this Court answers the question framed in favour of O.P.2 thereby declaring that there is no fault in the cancellation of the tender call notice vide Annexure 4 for it being passed in better interest of the residents likely to be accommodated in the high rise building in question. It is at this stage of the matter this Court also enters into the question of scope with this Court in interfering in the administrative decision and proceeds accordingly. Deciding such matters Lord Scarman in Nottinghamshire County Council v. Secretary of State for the Environment 1986 AC 240 at 251 proclaimed: “judicial review” is a great weapon in the hands of the Judges but the Judges must observe the constitutional limits set by our parliamentary system upon the exercise of this beneficent power.” Commenting upon the Michael Supperstone and James Goudie in their work on “Judicial Review”at page 16 say: “if anyone were prompted to dismiss this sage warning as a mere obiter dictum from the most radical member of the higher judiciary of recent times and therefore to be 10 treated as an idiosyncratic aberration it has received the endorsement of the Law Lords generally. The words of Lord Scarman were enchoed by Lord Bridge of Harwich speaking on behalf of the Board when reversing an interventionist decision of the new Zealand Court of Appeal in Butcher v. Petrocorp Exploration Ltd. 18 March 1991.” In Chief Constable of the North Wales Police v. Evans 3 AII ER 141 at 154 Lord Brightman said : “Judicial Review as the words imply is not an appeal from a decision but a review of the manner in which the decision was made. Judicial Review is concerned not with the decision but with the decision making process. Unless that restriction on the power of the Court is observed the Court will in my view under the guise of preventing the abuse of power be itself guilty of usurping power.” In the same case Lord Hailsham commented on the purpose of the remedy by way of judicial review under RSC Ord 53 in the following terms: “This remedy vastly increased in the extent and rendered over a long period in recent years of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration is intended to protect the individual against the abuse of power by a wide range of authorities judicial quasi judicial and as would originally have been thought when I first practiced at the Bar administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the Courts as the bodies making the decisions. It is intended to see that the relevant authorities are their powers in a proper manner.R v. Panel on Take overs and Mergers ex p Datafin plc. Sir John Donaldson MR commented : ‘an application for judicial review is not an appeal’. In Lonrho plc v. Secretary of State for Trade and Industry. Lord Keith said : ‘Judicial review is a protection and not a weapon’. It is thus different from an appeal. When hearing an 11 appeal the Court is concerned with the merits of the decision under appeal. In Re Amin Lord Fraser observed that : “Judicial review is concerned not with the merits of a decision but with the manner in which the decision was made … Judicial review is entirely different from an ordinary appeal. It is made effective by the Court quashing an administrative decision without substituting its own decision and is to be constrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer.” Taking into consideration the above broad principles in the matter of judicial review of administrative decision the Hon’ble apex court in Tata Celluar v. Union of Indiain para 85 90 93 94 & 113 has observed as follows: “85. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favoritism. However it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course if the said power is exercised for any collateral purpose the exercise of that power will be struck down. 90. Judicial review is concerned with reviewing not the merits of the decision in support of which the application of judicial review is made but the decision making process itself 93. The duty of the court is to confine itself to the question of legality. Its concern should be : 1. Whether a decision making authority exceeded its powers 2. Committed an error of law 3. committed a breach of the rules of natural justice 4. reached a decision which no reasonable tribunal would have reached or 5. abused its powers. 94. Therefore it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put the grounds upon which an administrative action is subject to control by judicial review can be classified as under: i) Illegality : This means the decision maker must understand correctly the law that regulates his decision making power and must give effect to it. ii) Irrationality namely Wednesbury unreasonableness. iii) Procedural impropriety.” 113. The principles deducible from the above are: 1) The modern administrative action. trend points judicial restraint 2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. 3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision without the necessary expertise which itself may be fallible. 4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not such decisions are made qualitatively by experts. 5) The Government must have freedom of contract. In other words a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However the decision must not only be tested by the application of Wednesbury principle of reasonableness but must be free from arbitrariness not affected by bias or actuated by mala fides. 6) Quashing decisions may impose heavy administrative lead to increased and burden on the administration and unbudgeted expenditure.” 13 Considering on the aspect of power of Judicial Review by the High Courts the Hon’ble Apex court in the case of Sterling Computers Ltd. versus M s. M & N Publications Ltd. and others and United Database Pvt. Ltd. versus M s. M & N Publications Ltd. and others and United Periodicals Pvt. Ltd. versus M s. M & N Publications Ltd. and others : AIR 1996 SUPREME COURT 51 has come to observe that High Court cannot seat as Appellate Authority involving terms of contract and its role is confined only to see any infirmity in the decision making process. This judgment however held grant in the grab of extension without inviting tender is void. Similarly in the case of South Delhi Municipal Corporation v. Ravinder Kumar and another:15 SCC 545 the Hon’ble apex Court in para 20 has observed as follows: “20. For the reasons stated above the High Court has failed to see that the appellant Corporation adopted a fair and transparent method by inviting the bids for the re tender notice issued by it. The High Court has not found any mala fide intention on the part of the appellant Corporation in inviting the fresh bids after taking the decision to cancel its earlier tender notice. The appellant Corporation being the custodian of public finance took its decision objectively with a bona fide intention to serve the best interest of the public in general. Thus for the foregoing reasons the appellant Corporation has not committed any wrong in cancelling its earlier tender notice and issuing subsequent tender notice afresh inviting bids from the eligible contractors.” Considering the factual aspect discussed hereinabove the development through which a decision is taken by the authority to proceed for fresh tender upon cancellation of the earlier tender process and for the support of law to the case of opposite parties through the decisions cited hereinabove this Court finds there is no illegality or impropriety on the part of the O.P.2 in cancelling the earlier tender. It is at this stage of the matter this Court also records its expectation that for the disclosure in the counter 14 affidavit at the instance of O.P.2 more particularly through paragraph nos.3 & 6 therein that in cancellation of the previous tender process they are to go for fresh tender process for supply and commissioning of same objects it will be abided by such Before parting with the judgment in upholding the decision of the authority in cancellation of the tender call notice vide Annexure 4 this Court keeping in view that there is some deposit at the instance of petitioner lying with the O.P.2 directs such deposit shall be refunded to the petitioner with interest @7% per annum allthrough within a period of seven days from the date of communication of a copy of this judgment by either of the parties. This Court here clarifies that for withdrawal of the Annexure A during pendency of the Writ Petition the interim direction dated 25.11.2019 rendered infractuous and the Opposite Parties will be at liberty to go ahead with their decision on fresh tender. The Writ Petition is accordingly dismissed with no order as to cost. 10. As restrictions are continuing due to COVID 19 learned counsel may utilize the soft copy of this judgment available in the High Court’s website or print out thereof at par with certified copies in the manner prescribed vide Court’s Notice No.4587 dated Biswanath Rath) Orissa High Court Cuttack. The 10th day of December 2020 A. Jena Senior Stenographer. Chief Justice |
The National Green Tribunal’s adjudicatory function cannot be delegated to expert committees: Supreme Court | The Supreme Court stated that the National Green Tribunal’s adjudicatory duty cannot be delegated to committees. The bench of Justices DY Chandrachud, MR Shah, and Hima Kohli observed that tasking committees to carry out a job that vests in the tribunal cannot eliminate the tribunal’s ability to fulfil its powers. An appeal to the NGT was filed in this matter, challenging the issuance of environmental clearance to a project proponent to develop its refinery capacity in the petrochemical complex at Vadinar, Gujarat’s District Devbhumi Dwarka. The main point of contention was that the extension would negatively influence the marine environment, particularly mangroves and marine biodiversity. The NGT noted in its decision that the project proponent had stated that all EC criteria would be met and that appropriate mitigation measures would be applied to safeguard the safety of mangroves and the marine environment. The Court stated, “The specific ground before the NGT was that the expansion of the refinery would cause serious hazards to both the marine biology and to mangroves. The NGT observed that the project was already in existence, and there was no continuing grievance against its functioning insofar as environmental norms are concerned. This observation would not conclude the issue as to whether the expansion of the project would have a deleterious impact on the environment.” In exercising its appellate jurisdiction, the NGT has not addressed the substantive grounds of challenge, according to the bench. It held, | IN THE CIVIL APPELLATE JURISDICTION Civil Appeal No 45421 Sanghar Zuber Ismail Appellant(s Ministry of Environment Forests and Climate Change and Another O R D E R Dr Dhananjaya Y Chandrachud J This appeal arises from a judgment of the National Green Tribunal dated 8 June 2021 at the Principal Bench New Delhi The appeal before the NGT arose from the grant of an environmental clearance on 5 January 2021 in favour of the second respondent for the expansion of the capacity of its refinery situated in the petro chemical complex at Vadinar District Devbhumi Dwarka Gujarat from 20 MMTPA to 46 MMTPA. The main challenge before the NGT as recorded in paragraph 3 of the decision is that the expansion was likely to cause an adverse impact on the marine environment both in terms of the mangroves and marine biology The NGT noted that its attention been drawn to the EIA EMP study prepared LL 2021 SC 420 CA 4543 2021 by CSIRNEERI. Having extracted from the study the NGT noted the submission of senior counsel for the second respondent that all the EC conditions would be duly complied with and due mitigation measures would be taken to ensure the safety of mangroves and marine environment. Having recorded the statement of the second respondent the NGT proceeded to observe that it did not find any ground to interfere with the grant of the EC. It however directed the project proponent to ensure that all necessary safeguards are adopted and EC conditions are duly complied with A three member Committee was constituted in that regard. The NGT was seized with a substantive appeal under the provisions of Section 16 of the National Green Tribunal Act 2010. Section 16(h) reads thus “16. Any person aggrieved by a) toxxx h) an order made on or after the commencement of the National Green Tribunal Act 2010 granting environmental clearance in the area in which any industries operations or processes or class of industries operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the EnvironmentAct 1986.” The specific ground before the NGT was that the expansion of the refinery will cause serious hazards to both the marine biology and to mangroves. The NGT observed that the project was already in existence and there was no continuing grievance against its functioning insofar as environmental norms are concerned. This observation would not conclude the issue as to whether the expansion of the project would have a deleterious impact on the environment. LL 2021 SC 420 CA 4543 2021 Having regard to the nature of its appellate power the NGT has to apply its mind to the substantive grounds of challenge. The NGT has merely based its conclusion on the statement which has been made by the project proponent and has not conducted an independent appraisal of the grounds of challenge As a matter of fact Mr Dhruv Mehta learned senior counsel who appears on behalf of the second respondent states that the appellant had not produced a copy of the correct EIA before the NGT and an application has been filed on behalf of the second respondent for clarifying the position. Be that it may the NGT has not dealt with the substantive grounds of challenge in the exercise of its appellate jurisdiction. Constitution of an expert committee does not absolve the NGT of its duty to adjudicate. The adjudicatory function of the NGT cannot be assigned to committees even expert committees. The decision has to be that of the NGT. The NGT has been constituted as an expert adjudicatory authority under an Act of Parliament. The discharge of its functions cannot be obviated by tasking committees to carry out a function which vests in the tribunal 9 We accordingly allow the appeal and set aside the impugned order dated 8 June 2021. Appeal No 5 2021(WZ) is accordingly restored to the file of the NGT for disposal afresh. All the rights and contentions of the parties on the merits are kept open LL 2021 SC 420 CA 4543 2021 Pending application(s) if any stand disposed of SECTION XVII S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No.4543 2021 SANGHAR ZUBER ISMAIL VERSUS MINISTRY OF ENVIRONMENT FORESTS AND CLIMATE CHANGE & ANR With appln.(s) for IA No.91013 2021 EXEMPTION FROM FILING C C OF THE IMPUGNED JUDGMENT Date : 31 08 2021 This appeal was called on for hearing today CORAM : HON BLE DR. JUSTICE D.Y. CHANDRACHUD HON BLE MR. JUSTICE M.R. SHAH HON’BLE MS. JUSTICE HIMA KOHLI Mr. Purvish Jitendra Malkan Adv Ms. Dharita P Malkan Adv Ms. Deepa Gorasia Adv Mr. Alok Kumar Adv Ms. Nandini Chhabra Adv Ms. Bhavna Sarkar Adv Ms. Khushboo Vinodray Malkan AOR Mr. Dhruv Mehta Sr. Adv Mr. Somiran Sharma AOR O R D E R UPON hearing the counsel the Court made the following LL 2021 SC 420 CA 4543 2021 The appeal is allowed in terms of the signed reportable order Pending applications if any stand disposed of A.R. cum P.S Court Master Signed reportable order is placed on the file (SAROJ KUMARI GAUR LL 2021 SC 420 |
Teacher will be benefited from the date of entry service into the university: Supreme Court | “Though the earlier service is to be counted for the purpose of giving benefit of promotion, but effective date for all purposes is only from the date of entry of first respondent into the University service, i.e, 28.10.2013.”, this remarkable stand was forwarded by Hon’ble Supreme Court, in a three judge bench chaired by Hon’ble Justice Mr Ashok Bhushan, Mr. R.Subhash Reddy & Mr. M.R.Shah in the criminal appeal case of Registrar Karnataka University & Anr. V. Dr. Prabhugouda & Anr., [C.A. No. 4079 OF 2020]. The brief factual matrix of the case is that, the first respondent-writ petitioner had claimed his promotion under CAS, promulgated by the UGC, to be given effect from 01.01.2009 instead of 28.10.2013, from which date, promotion is given to the writ petitioner. The writ petitioner was earlier working as an Associate Professor, in J.S.S College, which is affiliated to Karnataka University. In pursuance of syndicate Resolution No.24 dated 26.10.2013, the writ petitioner was appointed as an Associate Professor in the P.G. Department of Studies in Mathematics in the University. Pursuant to his appointment, he joined in the service of the University on 28.10.2013 and vide order dated 31.12.2015, his service was confirmed with effect from 28.10.2013. Challenging the Resolution of the Syndicate of the University, bearing Resolution No. 36, dated 19.07.2017 and the endorsement dated 04.08.2017, the first respondent has filed writ petition No. 100353 of 2018 before the High Court of Karnataka, Dharwad Bench, questioning the aforesaid resolution, endorsement and by seeking further consequential directions to fix the eligibility date from 01.01.2009 for promotion to the post of Professor under CAS, in mathematics, instead of 28.10.2013 and to reconsider his representation dated 10.08.2017. The learned Single Judge of the High Court, by Order dated 13.03.2019, allowed the writ petition, by recording a finding that the writ petitioner completed three years of teaching by 01.01.2009, as such effective date should have been 01.01.2009. Learned Single Judge of the High Court was of the view that his service in affiliated College is also to be considered for the purpose of promotion under CAS and consequently writ petitioner is entitled for promotion from 01.01.2009 instead of 28.10.2013. This civil appeal is filed by the Karnataka University, at Dharwad, through its Registrar and another, aggrieved by the judgment and order dated 02.01.2020, passed in writ appeal No.100436 of 2019, by the High Court of Karnataka, Dharwad Bench. After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble HC observed that, “the incumbent teacher, who is entitled for promotion under the scheme, is to be given benefit only from the entry of service of such incumbent into the University. Though the earlier service is to be counted for the purpose of giving benefit of promotion, but effective date for all purposes is only from the date of entry of first respondent into the University service, i.e, 28.10.2013.” The bench further added that, “The University is not expected to grant promotion, covering the period, anterior to the entry of service of the first respondent into University. As such, we are of the view that the University has rightly given the benefit of promotion from 28.10.2013.” | SLP(C) No. 8088 2020 IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4079 OF 2020 Arising out of S.L.P.(C) NO. 8088 OF 2020 Registrar Karnataka University & Anr. Appellant(s Versus Dr. Prabhugouda & Anr Respondent(s JUDGMENT R.Subhash Reddy J This civil appeal is filed by the Karnataka University at Dharwad through its Registrar and another aggrieved by the judgment and order dated 02.01.2020 passed in writ appeal No.1004319 by the High Court of Karnataka Dharwad Bench By the aforesaid Order Division Bench of High Court has dismissed the writ appeal preferred by the appellants herein calling in question the order passed by the learned Single Judge in writ petition No. 1003518 S PRO) dated 13.03.2019 allowing the writ petition and declaring that the effective date of “Career Advancement SLP(C) No. 8088 2020 Scheme” promotion of the first respondent writ petitioner was 01.01.2009 and also directed to grant all consequential benefits to him as flow from such fixation. In fact the CAS promotion was already given to the first respondent writ petitioner and pay fixation has already been made but it was from the date of 28.10.2013 The brief factual matrix of the case is that the first respondent writ petitioner had claimed his promotion under CAS promulgated by the UGC to be given effect from 01.01.2009 instead of 28.10.2013 from which date promotion is given to the writ petitioner. The writ petitioner was earlier working as an Associate Professor in J.S.S College which is affiliated to Karnataka University. In pursuance of syndicate Resolution No.24 dated 26.10.2013 the writ petitioner was appointed as an Associate Professor in the P.G. Department of Studies in Mathematics in the University. Pursuant to his appointment he joined in the service of the University on 28.10.2013 and vide order dated 31.12.2015 his service was confirmed with effect from 28.10.2013 By issuing Circular dated 04.07.2013 the University invited applications for promotion from eligible Assistant Professors Associate professor and Professor stage 5) under CAS. The first respondent writ petitioner made an application in response to the said Circular for SLP(C) No. 8088 2020 promotion to the post of Professor under UGC CAS. He appeared for interview on 12.08.2014 before the Board of Appointment which has recommended his case for promotion and accordingly promotion order was issued on 16.02.2016 promoting the writ petitioner as a Professor with effect from 28.10.2013 that is from the date of his eligibility to the said post. He has been promoted to the post of Professor with effect from 28.10.2013 taking into consideration his past three years of service in previous college where he worked as Associate Professor. The claim of the first respondent writ petitioner in the High Court was that as he has completed three years of service in the cadre of Associate Professor from 01.01.2006 to 01.01.2009 as such he ought to have been considered for promotion under CAS from 01.01.2009 instead of 28.10.2013. During the relevant time neither he was in the service of the University nor working in any of the constituent Colleges of the University but he was in service of J.S.S College Dharwad which is an affiliated College to the Dharwad University. The first respondent writ petitioner made representations dated 18.03.2016 and 25.07.2016 in this regard for which he was replied by the University on 04.08.2017. The claim of the writ petitioner for grant of CAS promotion from 01.01.2009 was placed before the Syndicate of the University and the Syndicate in its SLP(C) No. 8088 2020 meeting held on 19.07.2017 vide Resolution No.36 has rejected the claim stating that there is no provision to grant the said benefit from 01.01.2009 as claimed. In accordance with the Resolution of the Syndicate an endorsement came to be issued by the University on 04.08.2017 a copy which was served on the writ Challenging the Resolution of the Syndicate of the University bearing Resolution No. 36 dated 19.07.2017 and the endorsement dated 04.08.2017 the first respondent has filed writ petition No. 100353 of 2018 before the High Court of Karnataka Dharwad Bench questioning the aforesaid resolution endorsement and by seeking further consequential directions to fix the eligibility date from 01.01.2009 for promotion to the post of Professor under CAS in mathematics instead of 28.10.2013 and to reconsider his representation dated 10.08.2017. The claim of the first respondent writ petitioner was opposed by filing the written note of objections in the High Court but the learned Single Judge of the High Court by Order dated 13.03.2019 allowed the writ petition by recording a finding that the writ petitioner completed three years of teaching by 01.01.2009 as such effective date should have been 01.01.2009. Learned Single Judge of the High Court was of the view that his service in affiliated College is also SLP(C) No. 8088 2020 to be considered for the purpose of promotion under CAS and consequently writ petitioner is entitled for promotion from 01.01.2009 instead of 28.10.2013 Aggrieved by the Order of the learned Single Judge the appellants herein preferred the writ appeal in writ appeal No. 1004319 and by Order dated 02.01.2020 the said writ appeal is dismissed confirming the Order of the learned Single Judge by recording a finding that the magnanimous interpretation is to be given for the wordings ”University Colleges” as found in Clause 12.7 of the Statute. The Division Bench has held that the word ‘colleges’ used in the Statute not only includes constituent colleges but also includes other colleges which are affiliated to Karnataka University. We have heard Sri Kirit Javali learned counsel appearing for the appellant University and Sri Siddarath Bhatnagar learned senior counsel appearing for the first respondent writ petitioner. Having heard the learned counsels on both sides we have perused the impugned order and other material placed on record. 10. It is contended by learned counsel for the appellants that it is an admitted position that prior to joining the appellant University respondent No.1 writ petitioner was working as Associate Professor from 01.01.2006 till 23.10.2013 No. 8088 2020 and thereafter he joined the University as Assistant Professor. It is submitted that at the time of recruitment respondent No.1 did not apply for the post of Professor as he was well aware that he was not eligible for the same. The writ petitioner was promoted as Professor vide Order dated 26.10.2013 he joined the University service with effect from 28.10.2013. It is submitted that the effective date of promotion of respondent No.1 for the post of Professor cannot be from any date prior to 28.10.2013 as at that point of time he was admittedly not in the employment of University. Further it is brought to the notice by the learned counsel that very preamble of the statute makes it clear that the candidate must have been on the rolls of the University or a Constituent College. It is further submitted that the benefit of Clause 17 of the Statute was duly given to respondent No.1 and his previous service was considered for promotion but as he was not in the effective service of the University the University has rightly given the effective date from 28.10.2013. It is submitted that as per the statute framed by the University the incumbent teacher was required to be on the rolls of the ‘constituent College’ only and not ‘affiliated College’. It is submitted that interpretation accorded to the statute by the High Court SLP(C) No. 8088 2020 is improper as is evident from the meaningful reading of complete statute as well as the preamble thereof. 11. On the other hand learned senior counsel Sri Siddarath Bhatnagar appearing for the first respondent has submitted that the Statute framed by the University for effecting promotions in CAS applies to Professors Associate Professors Assistant Professors Principals of Constituent Colleges Directors of Physical education and Librarians and allied posts. It is submitted that the term “principals of Constituent Colleges” ought to be read disjunctively as against the other posts mentioned in the provision since it appears only qua a category of principals and not other posts. By referring to the definition under Section 2(2) of Karnataka State Universities Act 2000 it is submitted that term “College” includes ‘Constituent College’ as well as ‘affiliated College’. It is further submitted that as the High Court has correctly interpreted the relevant statute and has recorded a finding that the effective date of promotion should have been 01.01.2009 instead of 28.10.2013 there are no grounds to interfere with the impugned judgment of the High Court 12. Before we consider the rival submissions made by the learned counsels on both sides we deem it appropriate to refer to certain relevant provisions of the statute governing the direct recruitment promotion under CAS SLP(C) No. 8088 2020 framed by the University. The preamble and the title of the statute read as under “PREAMBLE: Consequent upon the extension of UGC pay scales as revised from 01.01.2006 in respect of Teachers Librarians and Physical education Personnel of Universities and Constituent Colleges and issuance of letter No 1 32 2006 U II UI Idated 31.12.2008 of the Government of the India Ministry of Human Resource Development Department of Higher Education New Delhi and Notification No.F 3 1 2009dated 23.09.2009 of the University Grants Commission New Delhi and Government of Karnataka Order No. ED 37 UNE 2009 Bangalore dated 24.12.2009 prescribing the revised norms of recruitment and qualification for appointment and promotion of Professors Associate Professors Assistant Professors Physical Education Directors and Librarians it has become imperative to frame the statutes for recruitment and promotion of the above mentioned personnel in the Karnatak University Statute governing the direct recruitment promotion under Career Advancement Scheme and conduct of interview to the posts of Professors Associate Professors Assistant Professors Principals of Constituent Colleges Directors of Physical Education and Librarians under Section 40(1)(k) of KSU Act 13. Clause 12 of the Statute deals with the Screening cum Evaluation Committee for CAS Promotion. Clauses 12.6 and 12.7 of the statute read as under “12.6 CAS promotions being a personal promotion to the incumbent teacher holding a substantive sanctioned post on superannuation of the individual incumbent the said post shall revert back to its original cadre 12.7 The incumbent teacher must be on the role and active service of the University Colleges on the date of consideration by the Selection Committee for Selection CAS Promotion.” SLP(C) No. 8088 2020 14. Clause 13 of the statute deals with the Stages of Promotion under CAS of Incumbent and Newly Appointed Assistant Professors Associate Professors Professors Clauses 13.7 and 13.8 of the statute read as under “13.7 Assistant Professors completing three years of teaching in third gradeshall be eligible subject to the qualifying conditions and the API based PBAS requirements prescribed by this Statute to move to the next higher gradeand to be designated as 13.8 Associate Professor completing three years of service in stage 4 and possessing a Ph.D. Degree in the relevant discipline shall be eligible to be appointed and designated as Professor and be placed in the next higher grade stage 5) subject to satisfying the required credit points as per API based PBAS methodology provided in Table I III of Annexure I stipulated in this Statute and an assessment by a duly constituted selection committee as suggested for the direct recruitment of Professor. Provided that no teacher other than those with a Ph.D. shall be promoted or appointed as Professor.” 15. Clause 17 of the statute provides for Counting of Past Service for Direct Recruitment and Promotion Under CAS. A comprehensive reading of the statute makes it very clear that for the purpose of granting CAS promotion the incumbent teacher must have holding a substantive SLP(C) No. 8088 2020 sanctioned post as much as CAS promotion being a personal promotion to the incumbent teacher and on superannuation of the individual incumbent the said post shall revert back to its original cadre. It is also clear that the incumbent teacher must be on the “roll and active services of the University or the College” on the date of consideration by the Selection Committee for selection under CAS Promotion. A harmonious reading of Clauses 12.6 and 12.7 of the Statute read with the Preamble thereof makes it clear that the term “College” used in the said statute is referable to only Constituent College but not affiliated College 16. The High Court by losing sight of a vital aspect namely that the first respondent was not in actual service of the University or of the constituent College has ordered to extend the benefit from 01.01.2009 on the ground that he has completed three years of service by working as Assistant Professor in Mathematics in UGC pay scale with effect from 01.01.2006 to 01.01.2009. There cannot be any promotion in the University for the period where the writ petitioner was not in effective service of the University. The University is not expected to order promotion for the period when he was working in affiliated college. The High Court by mere mathematical calculation by basing on the service certificate which is “Annexure D” before the High Court has held that as SLP(C) No. 8088 2020 he has completed three years of service as Assistant Professor in UGC scale and therefore the effective date of promotion should be 01.01.2009 and not 28.10.2013 as granted by the University. Further the High Court has fell in error in interpreting clause paragraph 12.7 of the Statute by giving liberal meaning to the word “colleges” by extending to “affiliated college”. Even the Division Bench has also committed the same error by recording a finding that a magnanimous interpretation is to be given for the wordings University Colleges as used in the paragraph clause 12.7 of the Statute. The University has correctly interpreted the various clauses of the Statute and by giving the benefit of past service has given effect to his promotion from the date of entry into the service of the University. It is also to be noticed that at the time of appointment itself though the writ petitioner has completed three years of service fully knowing that he was not eligible for appointment as a Professor he has not claimed the post of Professor Even the representations filed by the writ petitioner indicate that he claimed notional service in spite of the same the High Court by misconstruing the statute contrary to its objectives as mentioned in the preamble liberally construed going beyond the scope of the statute and granted all consequential benefits by SLP(C) No. 8088 2020 declaring that the effective date for promotion was to be 01.01.2009 instead of 28.10.2013. 17. We do not find any substance in the argument made by the learned senior counsel appearing for the respondents that the term “principals of Constituent Colleges” ought to be read disjunctively as against the other posts mentioned in the provision. If it is to be read in the manner as sought to be argued by learned counsel same will run contrary to the objectives and preamble of the statute itself. Even the submission of the learned counsel relying on the definition under Section 2(2) of Karnataka State Universities Act 2000 also does not render any assistance to support his case. Karnataka State Universities Act 2000 applies to all the colleges which includes private college. Even private colleges have to seek affiliation from the jurisdictional University as such the College is widely defined in the Act. Said definition cannot be readily imported as defined for the purpose of grant of promotions under CAS. For the purpose of grant of promotions under CAS the word ‘College’ is to be interpreted keeping in mind the preamble of the statute governing promotions 18. In that view of the matter we are of the clear view that the incumbent teacher who is entitled for promotion under the scheme is to be given benefit only from the entry of service of such incumbent into the SLP(C) No. 8088 2020 University. Though the earlier service is to be counted for the purpose of giving benefit of promotion but effective date for all purposes is only from the date of entry of first respondent into the University service i.e 28.10.2013. The University is not expected to grant promotion covering the period anterior to the entry of service of the first respondent into University. As such we are of the view that the University has rightly given the benefit of promotion from 28.10.2013 19. For the aforesaid reasons this civil appeal is allowed and judgment and Order dated 02.01.2020 passed by the High Court in writ appeal No. 100436 of 2019 S PRO) is hereby quashed and set aside and consequently the writ petition filed by the first respondent in writ petition No. 1003518stands dismissed. No order as to costs ..................J [ASHOK BHUSHAN [R.SUBHASH REDDY ..................J [M.R.SHAH New Delhi DECEMBER 17 2020 |
The husband cannot use deception to deny her the right to a dignified life: Tripura High Court | The husband is unable to take subterfuges to rob her of a dignified life. As the solemn undertaking was required in marriage, and as a result, it is also a duty on the husband to see that the wife does not become an impoverished, beggar, acting following the statutory law governing the region. A circumstance should not be produced maliciously if she is forced to resign her destiny and think of life as dust to dust. It is unacceptable. The judgement was passed by the High Court of Tripura in the case of Ramendra Kishore Bhattacharjee v. Madhurima Bhattacharjee [Crl.Rev.P.No.36 of 2020] by Single Bench consisting of Hon’ble Justice MR. S.G.Chattopadhyay. The facts of the case are an application under Section 12 of the DV Act was filed in the court of the Judicial Magistrate of the First class against the petitioner seeking various reliefs under the DV Act wherein respondent referred to several incidents of domestic violence against her husband. The present writ petition has been filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, against the judgment of the session court. Learned counsel for the appellant has also contended that where there is no evidence of domestic violence, the wife is not entitled to any relief under the DV Act. In this regard learned counsel has relied on the Apex Court judgment passed in Sangita Saha vs. Abhijit Saha And Others, wherein the Apex Court has held that petitioner is entitled to relief under the DV Act only in case she establishes domestic violence. He further also contended that in absence of the proof of the ingredients of domestic violence, the wife is not entitled to relief provided under the DV Act. Learned counsel for the respondent contends that admittedly the husband is a government employee having a monthly salary of not less than ₹50,000 who is quite able to maintain his wife. Learned counsel contended that the wife by producing cogent and coherent evidence proved that she was subjected to domestic violence by her husband and the courts below on appreciation of her evidence and the entire facts and circumstances of the case granted the reliefs to her under the DV Act. It is, therefore, submitted by him that there is no reason to interfere with the findings of the courts below. According to learned counsel, the wife is entitled to the same standard of living as she would have lived in the house of her husband and therefore, the trial court rightly granted ₹15,000/- per month as monetary relief to her which was also upheld by the appellate court. While giving reliance on Delhi High Court judgment Babita Bisht vs. Dharmender Singh Bisht wherein it was noted that, “it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour or if he is able-bodied. There is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.” | HIGH COURT OF TRIPURA Crl.Rev.P.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 ........................................................ Respondent(s) For the Appellant(s) For the Respondent(s) Mr.B.Deb Adv. Mr.S.Debnath Addl. PP Mr.Raju Datta Whether fit for reporting : Yes No B E F O R E JUDGMENT HON’BLE MR.JSUTICE S.G.CHATTOPADHYAY 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: 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 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 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 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 Heard Mr. B.Deb learned counsel appearing for the husband as well as Mr. Raju Datta learned counsel appearing for the wife. 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 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. 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: 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 claimant. To overcome the 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 jurisdiction 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 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. 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 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 Salkan vs. Sumer Singh Salkan 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."” 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.” 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 in the application 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 sought residence rights under Section 19 and protection under Section 18 apart from the monetary relief under Section 20. 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 it may be seen 20. Further proceeding under the DV 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 Cr.P.C shall be taken into account. fixed under section 125 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.” Learned counsel therefore contends that the judgment of the appellate court does not call for any interference in this criminal revision petition. 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 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. 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. 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. 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. 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. 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. 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.” 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) ............................................................. 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. 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. 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 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 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 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 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.” 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 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 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.” 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 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 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. 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. Nehahas 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). 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. 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 |
Alleged of open firing and killing the informant’s son in the name of caste rivalry denied bail as per Section 302/34 of Indian Penal Code: High Court of Patna | Petitioners were alleged to open firing and killing the son of the informant. The petitioner tried furnishing the grounds that the same has been done by the opposite party and that they have been the rivalry castes and they didn’t have good relations in past as well. the petitioner was denied bail and the Court dismissed the appeal. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Lalan Yadav and Others v. The State of Bihar[Criminal Miscellaneous No. 35568 of 2020].
The facts of the case were that the Petitioner was apprehended arrest in connection with Case, instituted under Sections 302/34 of the Indian Penal Code and 27 of the Arms Act, 1959. According to the petitioner, they arrived at the market area and began firing in the air and threatening others, after which they summoned other co-accused, and the informant’s son was hurt and died on the way to the hospital as a result of the indiscriminate firing.
The Learned Counsel for the petitioner submitted that according to the petitioners’ mother, she has also filed a lawsuit for the same incident. According to learned counsel, the police have now filed a third complaint in connection with the incident. The petitioners are brothers who have been wrongfully accused due to a disagreement between two castes. They had no involvement in the occurrence. It was also claimed that they had been accused because of the previous animosity.
The Additional Public Prosecutor submitted that the father of the deceased in normal circumstances would not blame the innocents for killing his son and try to save the real murderers. He further added,” allegation is against the present two petitioners with regard to their role in starting the whole episode and also making indiscriminate firing and even if it is assumed that the firing made by the petitioners may not have hit the deceased, the same is irrelevant as they were very much party to the firing and thus, the responsibility for the death has to be equally taken by all the accused, including the petitioners.”
The Hon’ble High Court of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court is not inclined to grant pre-arrest bail to the petitioners.” The petition was dismissed and petitioners were allowed to again apply for the pray of bail in the future and the same shall be considered on its own merits.
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The facts of the case were that the Petitioner was apprehended arrest in connection with Case, instituted under Sections 302/34 of the Indian Penal Code and 27 of the Arms Act, 1959. According to the petitioner, they arrived at the market area and began firing in the air and threatening others, after which they summoned other co-accused, and the informant’s son was hurt and died on the way to the hospital as a result of the indiscriminate firing.
The Learned Counsel for the petitioner submitted that according to the petitioners’ mother, she has also filed a lawsuit for the same incident. According to learned counsel, the police have now filed a third complaint in connection with the incident. The petitioners are brothers who have been wrongfully accused due to a disagreement between two castes. They had no involvement in the occurrence. It was also claimed that they had been accused because of the previous animosity.
The Additional Public Prosecutor submitted that the father of the deceased in normal circumstances would not blame the innocents for killing his son and try to save the real murderers. He further added,” allegation is against the present two petitioners with regard to their role in starting the whole episode and also making indiscriminate firing and even if it is assumed that the firing made by the petitioners may not have hit the deceased, the same is irrelevant as they were very much party to the firing and thus, the responsibility for the death has to be equally taken by all the accused, including the petitioners.”
The Hon’ble High Court of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court is not inclined to grant pre-arrest bail to the petitioners.” The petition was dismissed and petitioners were allowed to again apply for the pray of bail in the future and the same shall be considered on its own merits.
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The Learned Counsel for the petitioner submitted that according to the petitioners’ mother, she has also filed a lawsuit for the same incident. According to learned counsel, the police have now filed a third complaint in connection with the incident. The petitioners are brothers who have been wrongfully accused due to a disagreement between two castes. They had no involvement in the occurrence. It was also claimed that they had been accused because of the previous animosity.
The Additional Public Prosecutor submitted that the father of the deceased in normal circumstances would not blame the innocents for killing his son and try to save the real murderers. He further added,” allegation is against the present two petitioners with regard to their role in starting the whole episode and also making indiscriminate firing and even if it is assumed that the firing made by the petitioners may not have hit the deceased, the same is irrelevant as they were very much party to the firing and thus, the responsibility for the death has to be equally taken by all the accused, including the petitioners.”
The Hon’ble High Court of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court is not inclined to grant pre-arrest bail to the petitioners.” The petition was dismissed and petitioners were allowed to again apply for the pray of bail in the future and the same shall be considered on its own merits.
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Judgment reviewed By Nimisha Dublish
The Additional Public Prosecutor submitted that the father of the deceased in normal circumstances would not blame the innocents for killing his son and try to save the real murderers. He further added,” allegation is against the present two petitioners with regard to their role in starting the whole episode and also making indiscriminate firing and even if it is assumed that the firing made by the petitioners may not have hit the deceased, the same is irrelevant as they were very much party to the firing and thus, the responsibility for the death has to be equally taken by all the accused, including the petitioners.”
The Hon’ble High Court of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court is not inclined to grant pre-arrest bail to the petitioners.” The petition was dismissed and petitioners were allowed to again apply for the pray of bail in the future and the same shall be considered on its own merits.
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The Hon’ble High Court of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court is not inclined to grant pre-arrest bail to the petitioners.” The petition was dismissed and petitioners were allowed to again apply for the pray of bail in the future and the same shall be considered on its own merits. | IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.355620 Arising Out of PS. Case No. 99 Year 2020 Thana GAYA MUFASIL District Gaya Lalan Yadav aged about 40 yearsSon of Sidheshwar Yadav 2. Guddu Yadav @ Army @ Guddu Kumar aged about 35 yearsSon of Sidheshwar Yadav District Gaya Both petitioner no. 1 and 2 are resident of Village Budhgere P.S. Moffasil The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH Mr. S S P Yadav Advocate Mr. Sanjay Kumar Tiwary APP Date : 22 06 2021 The matter has been heard via video conferencing 2. Heard Mr. S S P Yadav learned counsel for the petitioners and Mr. Sanjay Kumar Tiwary learned Additional Public Prosecutorfor the 3. The petitioners apprehend arrest in connection with Moffasil PS Case No. 920 dated 10.03.2020 instituted under Sections 302 34 of the Indian Penal Code and 27 of the Patna High Court CR. MISC. No.355620 dt.22 06 2021 Arms Act 1959 4. The allegation against the petitioners is that they had come to the market place and had started firing in the air and threatening that they will do whatever they want and thereafter they had called other co accused and in the indiscriminate firing the informant’s son was injured and died on way to hospital 5. Learned counsel for the petitioners submitted that there is no specific allegation as to whose firing hit the deceased and the allegation is only general and omnibus of firing. It was submitted that the mother of the petitioners has also filed a case for the same incident. Learned counsel submitted that the police have also filed a third case relating to the incident. Learned counsel submitted that the petitioners are brothers and because there was conflict between two castes they have been falsely implicated and they had no role in the incident. It was further submitted that because of previous enmity they have been 6. Learned APP submitted that there is no occasion for the informant who is the father of the deceased to specifically name the petitioners as no father would save the murderer of his son by only implicating persons who are innocent. It was Patna High Court CR. MISC. No.355620 dt.22 06 2021 submitted that the false implication could have been there only when the real culprit was also made accused even though they may have been unknown but in the present case specific allegation is against the present two petitioners with regard to their role in starting the whole episode and also making indiscriminate firing and even if it is assumed that the firing made by the petitioners may not have hit the deceased the same is irrelevant as they were very much party to the firing and thus the responsibility for the death has to be equally taken by all the accused including the petitioners. He submitted that even the FIR lodged by the mother of the petitioners is clearly an afterthought to create a defence as the same has been lodged on 16.03.2020 though the incident is said to have taken place on 10.03.2020 and the present case as well as the police case have been lodged on the same day of the incident i.e. 7. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court is not inclined to grant pre arrest bail to the petitioners 8. Accordingly the application stands dismissed 9. However in view of submission of learned counsel for the petitioners it is observed that if the petitioners appear Patna High Court CR. MISC. No.355620 dt.22 06 2021 before the Court below and pray for bail the same shall be considered on its own merits in accordance with law without being prejudiced by the present order (Ahsanuddin Amanullah J |
“Respondent will face jail time if he does not deposit the said amount”: Supreme Court, Part 1. | In context of the Criminal Appeal No .894 Of 2021, Samaul Sk. vs. The State of Jharkhand & Anr., Justice Sanjay Kishan Kaul passed the judgment. In this case, Hena Bibi, respondent No.2/complainant claimed to be the legally married wife of the appellant, the marriage having been solemnised on 8th February, 2000, as per Muslim customs & rites. The appellant was already married to one Mastra Bibi and he apparently had illicit relationship with respondent No.2, which culminated in their marriage. The two parties are stated to have lived as husband and wife in the house of the appellant for about a year and a half and two children were born out of the said marriage. Respondent No.2 alleged that on the instigation of the first wife, the appellant started mental and physical torture and made demands of dowry and respondent No.2 had to ultimately go back to her parents’ house. During this period that respondent No.2 conceived for the second time. It is not necessary to go into more details but suffice to say that the alleged demand of dowry resulted in PCR No.310 of 2006 being lodged in the Court of Sub Divisional Judicial Magistrate (for short ‘SDJM’), Pakur for offences under Section 498A of the Indian Penal Code, 1860. The case went to trial and in terms of the judgment of the SDJM, Pakur dated 30.1.2014, the appellant was held guilty and sentenced to three years of rigorous imprisonment with a fine of Rs.10,000/- and in case of failure to pay the fine, the appellant was directed to undergo further sentence of six months. The appellant preferred Criminal Appeal No. 07/2014 against the judgment of the SDJM which was dismissed vide judgment dated 02.09.2014 by the Principal District and Sessions Judge, Pakur. The appellant, thereafter, preferred a Criminal Revision against the said order, being Criminal Revision No.1060/2014, and in terms of the impugned judgment dated 11/20.10.2020, the Criminal Revision was dismissed. The appellant thereafter preferred the Special Leave Petition (for short ‘SLP’) before this Court. The appellant was called upon to surrender by this Court and he did duly surrender. | NON REPORTABLE IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO .894 OF 2021 … APPELLANT THE STATE OF JHARKHAND & ANR. …RESPONDENTS JUDGMENT SANJAY KISHAN KAUL J Hena Bibi respondent No.2 complainant claimed to be the legally married wife of the appellant the marriage having been solemnised on 8.2.2000 as per Muslim customs & rites. It may be noticed that the appellant was already married to one Mastra Bibi and he apparently had illicit relationship with respondent No.2 which culminated in their marriage The two parties are stated to have lived as husband and wife in the house of the appellant for about a year and a half and two children were born out of the said marriage It is the case of respondent No.2 that on the instigation of the first wife the appellant started mental and physical torture and made demands of dowry and respondent No.2 had to ultimately go back to her parents’ house It may be noticed that during this period that respondent No.2 conceived for the second time. It is not necessary to go into more details but suffice to say that the alleged demand of dowry resulted in PCR No.3106 being lodged in the Court of Sub Divisional Judicial Magistrate Pakur for offences under Section 498A of the Indian Penal Code The case went to trial and in terms of the judgment of the SDJM Pakur dated 30.1.2014 the appellant was held guilty and sentenced to three years of rigorous imprisonment with a fine of Rs.10 000 and in case of failure to pay the fine the appellant was directed to undergo further sentence of six months. The appellant preferred Criminal Appeal No. 07 2014 against the judgment of the SDJM which was dismissed vide judgment dated 02.09.2014 by the Principal District and Sessions Judge Pakur The appellant thereafter preferred a Criminal Revision against the said order being Criminal Revision No.1060 2014 and in terms of the impugned judgment dated 11 20.10.2020 the Criminal Revision was dismissed. The appellant thereafter preferred the Special Leave Petitionbefore this Court did duly surrender The appellant was called upon to surrender by this Court and he In the course of hearing of the SLP the petitioner appellant prayed for extension of the benefit of Probation of Offenders Act 1958 which was declined on 26.07.2021. However the Court expressed the view that it was not averse to consideration of reduction of sentence subject to the condition that the petitioner gave adequate compensation to respondent No.2 for herself and her children apart from whatever maintenance was being paid under Section 125 of the Code of Criminal Procedure 1973 In the proceedings dated 09.08.2021 learned counsel submitted on behalf of the appellant that he was willing to pay compensation of Rs.3.00 lakhs to respondent No.2 for herself and the children and requested for about six months’ time to raise the money. Since respondent No.2 did not put an appearance despite service learned counsel for the State was asked to verify the stand of respondent No.2. Learned counsel submitted that the police authorities had verified from respondent No.2 and she was agreeable to receive the compensation of Rs.3.00 lakhs. Further on compensation being paid she had agreed that if the sentence of the appellant is reduced and or if he is granted the benefit of the Probation of Offenders Act she has no objection. This was recorded in the proceedings held on 23.08.2021 and the certificate has been placed on record We have given thought to the matter. We have already noticed that keeping in mind the nature of the offence we had declined the benefit of the Probation of Offenders Act to the appellant. However if the petitioner appellant is showing remorse and is willing to make arrangements for respondent No.2 and his two children born out of the wedlock we would not like to come in the way of such an arrangement which should be beneficial to respondent No.2 and her children The object of any criminal jurisprudence is reformative in character and to take care of the victim. It is towards this objective that Section 357 of the Code of Criminal Procedure is enacted in the statute The objective of which is to apply whole or any part of the fine recovered to be applied on payment to any person of compensation for any loss or injury caused by the offence. In the present case it is one of voluntarily offering the amount albeit to seek a reduction of sentence We are informed that the appellant has now undergone about seven months of sentence and thus we are inclined to reduce the sentence to the period undergone in case the appellant pays to respondent No.2 for her benefit and her children’s benefit a sum of Rs.3.00 lakhs In view of the submission made by the petitioner on 09.08.2021 requesting for six months’ time to make arrangement to deposit pay the amount we direct that the appellant shall deposit with the trial court the amount of Rs.3.00 lakh on or before 28.2.2022 and subject to the deposit the period of sentence undergone shall be treated as the sentenced period The above mentioned amount of Rs.3.00 lakh shall be apart from the requirement of paying fine of Rs.10 000 directed by the trial court. We however make it clear that if the amounts are not deposited the appellant will have to undergo the remaining part of the sentence of 3 years On the deposit of the amount the trial court will take steps to release an amount of Rs.2.00 lakhs out of Rs.3.00 lakhs to respondent No.2 for herself and for her children. In order to secure the interest of the children a sum of Rs.50 000 each out of the remaining amount would be kept in an FDR with a nationalised bank for the benefit of the children. This amount will be released to them with accrued interest on attaining the age of 21 years The appeal is accordingly allowed to the aforesaid extent leaving the parties to bear their own costs Sanjay Kishan Kaul August 31 2021 |
Recourse to Article 224A, not a substitute for regular appointments: Supreme Court of India | We clarify that if recommendations have not been made for more than 20% of the regular vacancies then the trigger for recourse to Article224A would not arise. This was said in the case of Lok Prahari through its General Secretary V N Shukla IAS (Retd) vs Union of India and others [WRIT PETITION (C) NO. 1236 OF 2019] in the Supreme Court of India. The facts of the case are that petitioner Lok Prahari, an NGO, had approached the Supreme Court through a Public Interest litigation filed under Article 32 seeking the invocation of Article 224A to tackle the problem of mounting case arrears in High Courts and the large number of vacancies in High Court judges. The Union of India contended that ad-hoc appointments can be made only after regular vacancies are filled. However, the bench rejected this stance by saying that “this would be a self-defeating argument because the very reason why at present Article 224A has been resorted to is non-filling up of vacancies and the mounting arrears”. The three-judge Bench while carving out the role of the ad hoc judges stated that primary objective would be to deal with long pending arrears and that the said objective will be “subserved by assigning more than five year old cases to the ad hoc Judges so appointed”. However, this would not impinge upon the discretion of the Chief Justice of the High Court, if exigencies so demand for any particular subject matter even to deal with the cases less than five years old, though the primary objective must be kept in mind. Moreover, they stuck to para 24 of the Memorandum of Procedure laying down a procedure for appointment under Article 224A of the Constitution and said that “MoP has no force of a law” as specified under under Article 141, but as a starting point, this process can be followed. The Court opinioned that“However, there can be situations where the Judge may have retired earlier but his expertise is required in a particular subject matter. There may also be a scenario where the Judge(s) may prefer to take some time off before embarking upon a second innings albeit a short one. In the preparation of panel, in order to take consent and take into account different factors, a personal interaction should be held with the Judge concerned by the Chief Justice of the High Court”. | REPORTABLE IN THE CIVIL ORIGINAL JURISDICTION WRIT PETITIONNO. 1236 OF 2019 LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA .. PETITIONER(S UNION OF INDIA & ORS. .. RESPONDENT(S JUDGMENT The intent of our order today is to activate a dormant provision of the Constitution of India Article 224A for the appointment of ad hoc Judges to deal with the unprecedented situation arising from the backlog of cases pending in the High Courts which has now crossed the figure of 57 lakh coupled with the consistent ratio of vacancies of almost 40 per cent. Any Constitution has to be dynamic and thus even if the intent behind including the provisionwas slightly different nothing prevents it from being utilised to subserve an endeavour to solve an existing problem For as it is always said ‘change is the only constant’ India was fortunate to have some of the best minds work on the framing of our Constitution as members of our Constituent Assembly The Indian Constitution is an elaborate one taking cues from the experience of various democracies. One of the essential aspects of our Constitution has been the separation of powers between the Judiciary Executive and Legislature Chapter V of Part VI of the Constitution of India commencing from Article 214 upto Article 231 relates to the High Courts in the states. Article 217 provides for the appointment and conditions of the office of a Judge of the High Court wherein the current age of retirement is 62 years. We may say that broadly it is amongst the youngest ages of retirement of judges of the apex Court of a state in comparison with other democracies of the world Article 224 deals with the appointment of additional and acting judges. The objective as set out in the Article is to take care of any temporary increase in business of the High Court or by reason of arrears of work therein. The appointment of an additional judge duly qualified to be the judge of a High Court has to be for a period not exceeding two years or as the President may specify. The ground reality however remains that while determining the strength of different High Courts the practice that has been adopted is that about 25% of the strength consists of additional Judges. In the present case we are concerned with Article 224A which reads as under 224A. Appointment of retired Judges at sittings of High Courts Notwithstanding anything in this Chapter the Chief Justice of a High Court for any State may with the previous consent of the President request any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that State and every such person so requested shall while so sitting and acting be entitled to such allowances as the President may by order determine and have all the jurisdiction powers and privileges of but shall not otherwise be deemed to be a Judge of that High Court Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do." The aforesaid Article begins with a non obstante clause and was placed so that a request can be made to any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a judge of the High Court for the state. The second aspect is that while sitting and acting such a judge would be entitled to such allowances as the President may by order determine and have all the jurisdiction powers and privileges of the High Court judge but for all other purposes shall not be deemed to be a High Court judge. The proviso stipulates that consent has to be obtained from the judge concerned. It is the say of the petitioner before us in this public interest litigation that a large number of vacancies of High Court judges coupled with mounting arrears is a scenario which requires urgent attention and one of the modes to deal with both these aspects is resorting to Article 224A of the Constitution of India. The Historical Perspective Article 224A was numbered as Article 200 in the Draft Constitution and discussed by the Constituent Assembly on 7th June 1949. The debate focused on the purpose and duration of the appointment of retired High Court judges. Three other specific issues hoc judge 1) whether a retired judge must consent to his appointment 2) whether a retired judge draws salary after his appointment as an ad 3) whether the appointment of ad hoc judges was to be made with the concurrence of the President Some part of the debates indicate that the retired judge was to be invited back only for their expertise and experience to decide cases that were particularly difficult or important and that it may not be advisable to call retired judges and asked them to clear off the arrears pending before the High Court. On the other hand Dr. B.R. Ambedkar had clarified that the intent behind the appointment of ad hoc judges was as an alternative to the appointment of temporary or additional judges which suggestion had not been accepted by the Constituent Assembly Thus ad hoc judges were not intended to be appointed for an indefinite length of time. In his words It seems to me that if you are not going to have any temporary or additional judges you must make some kind of provision for the disposal of certain business for which it may not be feasible to appoint a temporary judge in time to discharge the duties of a High Court Judge with respect to such matters."1 10. The aforesaid provision it was emphasized by Dr. Ambedkar was borrowedfrom Section 8 of the Supreme Court of JudicatureAct 1925 in the UK and similar provisions in America. It was explained that the proviso was inserted to avoid a situation where the refusal of a retired judge to accept the invitation could be treated as remiss of his conduct. 11. Another important aspect as emerges from the debates was that it was the view of Dr. Ambedkar himself that the matter of salary and 1 Speech by Dr. B.R. Ambedkar on 7th June 1949 Constituent Assembly Debates Vol. VIII ¶181. benefits would be governed by the rules governing pension. Thus all benefits would be admissible minus the pension though the precise definition of "privileges" of an ad hoc judge was left to the Parliament to decide. The aspect of concurrence of the President was also debated and introduced to bring greater transparency in the process. The aforesaid provision for appointment of ad hoc judges was removed by the ConstitutionAct 1956. The objective of that Act clarifies that this was done as the provision for recalling retired judges for a short period had been found to be neither adequate nor satisfactory. It was sought to be replaced by the current Article 224 making provisions for appointment of additional judges to clear off arrears and for the appointment of acting judges in temporary vacancies There appears to have been a legislative re think as the provision for the appointment of ad hoc judges was reintroduced vide Article 224A by the ConstitutionAct 1963. The Lok Sabha debates did not specifically refer to the philosophy behind the re introduction but this can be extrapolated from the purpose behind introducing ad hoc appointments in the Supreme Court of India. The debates do reflect the two points of view i.e. a worry about a possible demon of patronage" and on the other hand views being expressed that it was possibly better to call back a retired judge instead of appointing a member of the Bar for a few months. The amendments seeking to restrict the term of ad hoc judges to three months was however negated while inserting this provision in the Constitution Judicial Views : 14. Now we turn to the aspects arising from the aforesaid provision being debated in certain judicial precedents. In Krishan Gopal vs. Shri Prakash Chandra & Ors.2 a Constitution Bench of this Court ruled on the issue of whether a person sitting and acting as a Judge of the High Court under Article 224A of the Constitution has the jurisdiction to try an election petition under Section 80 A of the Representation of the People Act 1951. Debate arose in the context of a judge of the Madhya Pradesh High Court who was sitting and acting as a judge of that Court under Article 224A of the Constitution and his appointment was to last for a period of one year or till the disposal of elections petitions entrusted to him whichever was earlier. In that context it was observed that if a person appointed under Article 224A of the Constitution was not considered to be a judge of the High Court for the purpose of jurisdiction powers and privileges the question of appointing such a person would never arise. The provision could not thus be rendered a 21 SCC 128 dead letter. It was clarified that the effect of the provision would create a deeming fiction and the Court observed “15.The person requested while so sitting and acting shall have all the jurisdiction powers and privileges of a judge of the High Court. Such a person shall not otherwise be deemed to be a judge of that Court. The words "while so sitting and acting show that the person requested not merely has the Jurisdiction powers and privileges of a Judge of the High Court he also sits and acts as a Judge of that Court. Question then arises as to what is the significance of the concluding words "but shall not otherwise be deemed to be a Judge of that Court". These words in our opinion indicate that in matters not relating to jurisdiction powers and privileges the person so requested shall not be deemed to be a Judge of that Court. The dictionary meaning of the word "otherwise" is "in other ways" "in other circumstances" in other respects". The word "otherwise" would therefore point to the conclusion that for the purpose of jurisdiction powers and privileges the person requested shall be a Judge of the concerned High Court and for purposes other than those of jurisdiction powers and privileges the person requested shall not be deemed to be a Judge of that Court. It would for example be not permissible to transfer him under Article 222 of the Constitution The use of the word "deemed" shows that the person who sits and acts as a Judge of the High Court under Article 224 A is a Judge of the said High Court but by a legal fiction he is not to be considered to be a Judge of the High Court for purposes other than those relating to jurisdiction powers and privileges.7 SCC 726 entitled to further pensionary benefits after he demits the Constitutional office that he holds in terms of Article 217. It may also be appropriate to turn to some of the opinions expressed on the requirement of consent of a retired Judge. In Union of India vs. Sankalchand Himatlal Sheth 4 it was observed that the reason for insisting on consent was that a retired Judge cannot be compelled to work as an ad hoc judge against his consent. This is because he ceases to be a judge of the High Court on demitting office at the prescribed age and is not bound by the conditions of service It is appropriate to refer to more opinions albeit of the High Court to know how this particular aspect had been dealt with in the opinion of the High Court. In Anna Mathew vs. N. Kannadasan though the issue was not directly in question the aspect of appointment of an ad hoc judge under Article 224A of the Constitution had been adverted to.5 The context of the view on the expression "ad hoc" is present only in Article 224A and Article 127. In that context a reference had been made to the Constitution Bench judgment of this Court in Ashok Tanwar and Anr. vs. State of H.P. and Others.6 Here there are observations to the effect that a consultation with the Collegium would 44 SCC 193 5 2009LW 87(¶ 47 62 SCC 104 not be necessary inasmuch as the Chief Justice is required to recommend the name of a sitting or a retired judge. However that was a case dealing with appointments to the Consumer Disputes Redressal Commission and in that context consultation with the Collegium was thought not necessary. However if we turn to the judgment in Ashok Tanwar s casewe find there was actually no real discussion on Article 224A. What was in question was whether Section 16 of the Consumer Protection Act 1986 a consultation with acting Chief Justice was sufficient compliance of the case. 19. The last judicial view we seek to refer to is of the Full Bench of the High Court of the Judicature at Allahabad in Indian Society of Lawyers vs. President of India which elaborately dealt with the interpretation of Article 224A of the Constitution.7 It was observed that an ad hoc judge does not fall within Article 216 and that he is not a judge of the High Court so sitting and acting. The President does not appoint him and only gives his consent to the Chief Justice to request a former judge to sit and act as a judge of the High Court. Thus the process of appointment under Clauseof Article 217 does not apply to him. This is also the reason why while dealing with the aspect of 75 All LJ 455over the last two years as we have already mentioned. A number of vacancies arising every year are barely filled in by fresh appointments. Thus it remains an unfulfilled challenge to bring the appointment process to such numbers as would be able to cover the vacancies existing and arising. Without endeavouring to blame anyone a ground reality remains that there are manifold reasons for the same. 21. The present system of appointments as envisaged by the Constitution and as elucidated in the Collegium system makes it clear that the first step is a recommendation from that High Court by a collegium of the three senior most judges presided over by the Chief Justice of the High Court. This process in turn requires wide consultation by the Chief Justice of the High Court to identify the requisite talent so as to make the recommendations. Contrary to some portrayed beliefs as if this is an extremely subjective system every Chief Justice is actually required to solicit names from different sources whether it be sitting judges retired judges or prominent members of the Bar. It is from this pool of talent that he selects after a discussion before the collegium the most suitable candidates. It is thus of utmost importance that the flow of recommendations continues for the appointment process to work successfully. The vacancies existing and arising are always known as a judge demits office in the High Court on his 62nd birthday. The only exception can be an unforeseen eventuality or an elevation to the Supreme Court of India. Thus every endeavour has to be made to see that the recommendations are made well in advance while maintaining a balance between recommendations from the Bar and the subordinate judiciary about six months in advance as per norms which were thought to be the appropriate time period within which the whole process of appointment ought to be concluded. This aspect has been emphasized by us in another connected matter i.e. TP(C) No. 2419 2019 22. We may also note that on the basis of talent available considering that the age profile for elevation from the Bar is between 45 to 55 years there may be situations where at one go all recommendations against vacancies may not be possible to be made. However nothing prohibits or rather the exigencies of the appointment process requires recommendations to be periodically made without unnecessarily waiting for the outcome of the first set of recommendations. If this continuing pipeline operates and even if some recommendations fall by the wayside over a reasonable period of time the vacancies can be filled up The current situation of vacancies especially in some of the larger courts with very few recommendations in the pipeline seems to be the genesis of this problem The data placed before us as drawn from the National Judicial Data Grid shows that five High Courts alone are responsible for 54% of the pendency of over 57 51 312 cases the High Courts of Allahabad Punjab & Haryana Madras Bombay and Rajasthan. The Madras High Court has among the highest arrears in the country of 5.8 lakh cases despite having fewer vacancies than most other High Courts but less than half the arrears as compared to Madrashow to make this process more efficacious and 2) till the vacancies are filled up what is it that can support a quicker adjudicatory process The latter undoubtedly requires more number of judges and thus the present debate has arisen for the purposes of utilization of the existing Article 224A of the Constitution to appoint ad hoc judges in the context of a large number of existing vacancies and pending arrears. Memorandum of Procedure The Union of India vide additional affidavit dated 13.04.2021 had placed before us a Memorandum of Procedure which was prepared in the year 1998 in pursuance to the judgment of the Supreme Court in Supreme Court Advocate on Record Association v. Union of India8read with the advisory opinion rendered in Special Reference No.1 19989 for “attendance of retired Judges at sittings of High Courts.” It is the say of the Union of India that the appointment of retired Judges under Article 224A should be a 84 SCC 441 97 SCC 739 collaborative process between the Executive and the Judiciary and the procedure prescribed in para 24 may be followed till it is amended. The relevant paragraph of the MoP reads as under “24. Under Article 224A of the Constitution the Chief Justice of a High Court may at any time with the previous consent of the President request any person who has held the office of a Judge of that court or of any other High Court to sit and act as a Judge of the High Court of that State. Whenever the necessity for such an appointment arises the Chief Justice of India will after obtaining the consent of the person concerned communicate to the Chief Minister of the State the name of the retired Judge and the period for which he will be required to sit and act as Judge of the High Court. The Chief Minister will after consultation with the Governor forward his recommendation to the Union Minister of Law Justice and Company Affairs. The Union Minister of Law Justice and Company Affairs would then consult the Chief Justice of India in accordance with the prescribed procedure. On receipt of CJI’s advice the same would be put up to the Prime Minister who will then advise the President as to the person to be appointed to it and act as a Judge of the High Court. As soon as the President gives his consent to the appointment the Secretary to the Government of India in the Department of Justice will inform the Chief Justice of the High Court and the Chief Minister(s) and will issue the necessary notification in the Gazette 31. We may notice that the subsequent endeavour to introduce the National Judicial Appointments Commission through a constitutional amendment could not withstand the constitutional challenge in Supreme Court Advocates on Record Association & Anr. v Union of India5 SCC 1 consultation with the Chief Justice of India. In this behalf the final view of the Judiciary was sent after discussion and there is no change in the aforesaid. The MoP has been circulated to the Chief Justices of the Law Commission Reports The path we seek to traverse is supported by the Law Commission Reports. In fact the 124th report of the Law Commission delivered in 1988 dealt with the aspect that a fresh look was required for High Court arrears. In that context it has been recognized that retired judges have several decades of adjudicatory experience and their talents could be utilized to dispose of mounting arrears. On account of their experience they would be quick in disposing cases and being unburdened with administrative or admission work they could spend their entire time hearing old matters. Thus the appointment of retired judges as ad hoc judges was seen as a part of a "multipronged attack on arrears and was strongly recommended This is not a first time that this aspect was noted. The 79 th Report of the Law Commission of 1979 had suggested recourse to this Article to sub serve the said objective. We may however notice that in 245th Report of 2014 some concerns were expressed about this process on account of the appointment being for a short period and the accountability in the functioning and performance of ad hoc judges. 34. We may notice that in the 188th Report of the Law Commission of 2003 that in the interest of clearing arrears in the High Court in various types of cases including criminal matters it was felt that it was the need of the hour to make appointments under Article 224A of the Constitution. The concern was to bring the arrears within manageable Some other views In the recently published treatise a view had been expressed that one great advantage of appointing ad hoc judges under Article 224 A is that it provides for a ready made pool of known judicial talent which can be relied upon to be competent clean and efficient. This can be an effective weapon to deal with the disposal of forgotten and pending cases more so in the context of inordinate delay in fresh judicial In the Chief Justices’ Conference held on 22nd and 23rd April 2016 a resolution was adopted dealing with filling up of vacancies in 11 A. M. Singhvi “Beating the Backlog Reforms in Administration of Justice in India ” in S. Khurshid et. al. Judicial Review Process Powers and Problems Essays in Honour of Upendra Baxi) page 53 High Courts and to address the problem of arrears in criminal and civil cases de hors Article 224A where it was perceived to be a course to follow. The Resolution states as under: Resolved further that keeping in view the large pendency of civil and criminal cases especially criminal appeals where convicts are in jail and having due regard the recommendation made by the 17th Law Commission of India in 2003 the Chief Justices will actively have regard to the provisions of Article 224A of the Constitution as a source for enhancing the strength of Judges to deal with the backlog of cases for a period of two years or the age of sixty five years whichever is later until a five plus zero pendency is achieved Article 224A earlier recourse 37. We have already noticed that Article 224A has largely been a dormant provision with only three recorded instances of its invocation Justice Suraj Bhan of the Madhya Pradesh High Court was appointed as an ad hoc Judge on 23.11.1972 after he had demitted office on 2.2.1971 His appointment was for a period of one year or till the disposal of election petitions entrusted to him whichever was earlier. Thus it was with a specific purpose Justice P. Venugopal of the Madras High Court was a Judge for a short period of less than three years and close to his retirement he was appointed to a Commission of Inquiry to inquire into certain incidents that took place in Coimbatore town on 23.7.1981 and again appointed to a one man commission to inquire into incidents of communal riots by order dated 22.3.1982. He was appointed to the post of ad hoc Judge in the year 1982 and yet again his term was renewed for a period of one year from 19.8.1983 39. Most recently in the year 2007 Justice O.P. Srivastava was appointed as an ad hoc Judge in the Allahabad High Court. He was one of the Members of the Special Bench constituted for hearing of the Ayodhya matter with the avowed object of facilitating continued and continuous hearing of the matter The Challenge Ahead 40. We have little doubt that challenge of mounting arrears and existing vacancies requires recourse to Article 224A of the Constitution to appoint ad hoc judges which is a ready pool of talent as a methodology especially for clearing the old cases. The existing strength of permanent and additional judges can be utilized for current and not so old cases. The ad hoc judges are absolved even from the administrative responsibilities. They can concentrate on old cases which are stuck in the system and may require greater experience. For example it is often perceived that a Regular Second Appeal is an area of concern and the more experienced judges are able to attend to this area with more promptness. We see no reason why there should be an unending debate of taking recourse to Article 224A when such a provision exists in the Constitution. It should not be made a dead letter more so when the need is so pressing 42. We are unable to accept the plea of the learned Attorney General that though the Government of India may not have any in principle opposition to the aforesaid first the existing vacancies should be filled in. In our view this would be a self defeating argument because the very reason why at present Article 224A has been resorted to is non filling up of vacancies and the mounting arrears. We may however hasten to add that the objective is not to appoint ad hoc judges instead of judges to be appointed to the regular strength of the High Court apprehension expressed by Mr. Vikas Singh Senior Counsel President of the Supreme Court Bar Association). The very provision makes it clear that it does not in any way constrain or limit the regular appointment process and consent of the retired judge is sought to sit and act as a judge of the High Court. One may say that this largely a transitory methodology till all the appointment processes are in place though that may not be the only reason to take recourse to the aforesaid 43. We also have no doubt that we would not like to encourage an environment where Article 224A is sought as panacea for inaction in making recommendations to the regular appointments. In order to prevent such a situation we are of the view that certain checks and balances must be provided so that Article 224A can be resorted to only on the process having being initiated for filling up of the regular vacancies and awaiting their appointments. We are thus of the view that there should not be more than 20% of the vacancies for which no recommendation has been made for this Article to be resorted to. We put this figure not out of the blue but looking to the entire scenario where sometimes it may be difficult to find the requisite talent at a particular stage which may have to await some time period. However certainly it cannot be countenanced that no or very few recommendations are made for a large number of vacancies by resorting to Article 224A 44. We may have to turn to the aspect of the process to be followed for making present appointments. The Constitution of India did not provide for a collegium system. This is an aspect which emerged from the cases of SP Gupta v. Union of India 12 Supreme Court Advocates on Record v. Union of India 13 and in Re: Special Reference 1 of 199814 and its modified forms has remained in existence since then. The endeavour of the Government to bring in the National Judicial Appointments Commission did not pass the muster of the constitutional mandate and was struck down in Supreme Court Advocates on Record Association and Anr. v. Union of India.15 Thus the collegium of the Supreme Court has an important role to play in the appointment of judges of the High Court. In the aforesaid conspectus the exercise by the Chief Justice of the High Court the authority vested under Article 224A of the Constitution would require a prior consent from the judge concerned and that recommendation in turn has to be routed through the collegium of the Supreme Court. Of course the previous consent of the President of Indiais necessary but looking to the very nature of this appointment which is of a retired judge who for his judicial appointment has gone through the complete process time period of maximum three months is more than sufficient to carry the process through all stages. This in turn would be facilitated if the Chief 122 SCR 365 134 SCC 441 14 AIR 1999 SC 1 15 2015 11 SCALE 1 Justice of the High Court takes the initial steps at least three months in advance so that there is no unnecessary delay in this regard 45. We may add here that we are quite conscious of the difference in the manner of appointment of permanent and additional Judges and ad hoc judges in the High Court. Thus two scenarios of appointment of Judges arise under Article 217 of the Constitution of India and the appointment has to be by the President by warrant under his hand and seal 1 SCC 226 parameters and is intended to facilitate a cogent flow to the guidelines sought from us. We may notice that it is a common case that the present proceedings are not adversarial but a method to make the provisions of Article 224A into a practical and working arrangement. We now proceed to issue the guidelines i. Trigger Point for activation The discretion of the Chief Justice of the High Court under Article 224A is not constrained but as stated some general guidelines are required to be laid so that power conferred under the said provision is exercised in a transparent manner. The Trigger Point cannot be singular and there can be more than one eventuality where the it arises a. If the vacancies are more than 20% of the sanctioned strength b. The cases in a particular category are pending for over five c. More than 10% of the backlog of pending cases are over five d. The percentage of the rate of disposal is lower than the institution of the cases either in a particular subject matter or generally in the Court e. Even if there are not many old cases pending but depending on the jurisdiction a situation of mounting arrears is likely to arise if the rate of disposal is consistently lower than the rate of filing over a period of a year or more ii. Embargo Situtation 54. We have already observed that the recourse to Article 224A is not an alternative to regular appointments. In order to emphasise this aspect we clarify that if recommendations have not been made for more than 20% of the regular vacancies then the trigger for recourse to Article 224A would not arise In this behalf we may take note of the data placed before us which would suggest that there are only ten High Courts having fewer than 20% vacancies as on 1.4.2021 seven High Courts having fewer than 10% vacancies in permanent appointments but then there may be additional Judges and there are cases which are in the pipeline. Thus the parameter we have adopted is that at least the recommendations should have been made leaving not more than 20% vacancies in order to take recourse to Article 224A iii. Pre recommendation process a. Past performance of recommendees in both quality and quantum of disposal of cases should be factored in for selection as the objective is to clear the backlog b. The Chief Justice should prepare a panel of Judges and former Judges. Naturally this will be in respect of Judges on the anvil of retirement and normally Judges who have recently retired preferably within a period of one year. However there can be situations where the Judge may have retired earlier but his expertise is required in a particular subject matter. There may also be a scenario where the Judge(s) may prefer to take some time off before embarking upon a second innings albeit a short one. In the preparation of panel in order to take consent and take into account different factors a personal interaction should be held with the Judge concerned by the Chief Justice of the High Court iv. Methodology of Appointment 56. We have already noticed that para 24 of the MoP lays down a procedure for appointment under Article 224A of the Constitution. We have also noticed that it is not law laid down in this behalf under Article 141 of the Constitution but as a first step it may be more appropriate to follow this procedure laid down in para 24 of the MoP to see the progress made and impediments if any. We may however notice that since the Judges are already appointed to the post through a warrant of appointment the occasion to refer the matter to the IB or other agencies would not arise in such a case which would itself shorten the time v. Time to complete the process The requirement that recommendations should be made six months in advance by the Chief Justice of the High Court emanates from the concept that the said period should be required to complete the process in case of a regular appointment of a Judge under Article 217 or 224 of the Constitution of India. In view of number of aspects not required to be adverted to for appointment under Article 224A we are of the view that a period of about three months should be sufficient to process a recommendation and thus ideally a Chief Justice should start the process three months in advance for such appointment vi. Tenure of Appointment The tenure for which an ad hoc Judge is appointed may vary on the basis of the need but suffice to say that in order to give an element of certainty and looking to the purpose for which they are appointed generally the appointment should be for a period between two to three vii. Number of Appointments Role of ad hoc Judges 59. We are also of the view that at least for the time being dependent on the strength of the High Court and the problem faced by the Court the number of ad hoc Judges should be in the range of two to five in a The primary objective being to deal with long pending arrears the said objective will be subserved by assigning more than five year old cases to the ad hoc Judges so appointed. However this would not impinge upon the discretion of the Chief Justice of the High Court if exigencies so demand for any particular subject matter even to deal with the cases less than five years old though the primary objective must be kept in mind 61. One of the issues raised is of constitution of Benches of an ad hoc Judge and sitting Judge in matters to be heard by Division Bench and as to who would preside. We are of the view that the Division Bench at present may be constituted only of ad hoc Judges because these are old cases which need to be taken up by them. We also make it clear that because of the very nature of the profile and work to be carried out by ad hoc Judges it would not be permissible for an ad hoc Judge to perform any other legal work whether it be advisory of arbitration or ix. Emoluments and Allowances 62. We have already discussed in the substantive part of the order that the emoluments and allowances of an ad hoc Judge should be at par with a permanent Judge of that Court at the relevant stage of time minus the pension. This is necessary to maintain the dignity of the Judge as also in view of the fact that all other legal work has been prohibited by us in terms of the aforesaid guidelines 63. We also make it clear that emoluments to be paid would be a charge on the Consolidated Fund of India consisting of salary and allowances. We may also clarify that it is a misconceived notion that there will be an additional burden on the State Government if some perquisites are made available to ad hoc Judges by the State Government. The trigger for appointment of ad hoc Judges is the very existence of vacancies and had these vacancies been filled in the State Government would have incurred these expenses anyhow. In any case there is a limit placed on the number of ad hoc Judges and thus the existence of vacancies actually results in the savings for the State Government(s) which would otherwise be amount expended as their allowances and perks 64. We make clear when we allowance perks perquisites all benefits as are admissible to the permanent additional Judge(s) would be given to the ad hoc Judge(s For clarity we may say that as far as housing accommodation is concerned either the rent free accommodation should be made available or the housing allowance should be provided on the same terms and conditions. For all practical purposes the ad hoc Judge would receive the same emoluments allowances and benefits as are admissible to the permanent additional Judges. We may note that the Second Schedule Part D of the Constitution of India stipulates the emoluments and benefits that have to be conferred on the judges of the Supreme Court and of the High Courts 65. We have taken the first step with the hope and aspiration that all concerned would cooperate and retiring retired Judges would come forth and offer their services in the larger interest of the Judiciary. The guidelines cannot be exhaustive and that too at this stage. If problems arise we will endeavour to iron them out. We must set aside apprehensions if any to chart this course and we are confident that there will be a way forward In view of the requirements of a continuous mandamus to see how a beginning has been made list after four months calling upon the Ministry of Justice to file a report in respect of the progress made [SANJAY KISHAN KAUL [SURYA KANT APRIL 20 2021 |
You cannot claim the benefit of military service for purpose of seniority for appointment to Punjab Civil Service: Supreme Court of India | The appellant was not entitled to claim the benefit of military service for purpose of seniority for appointment to Punjab Civil Service (Executive Branch) since the benefit of Rule 4(1) of 1972 Rules was not continued in 1982 Rules. This auspicious judgment was passed by the Supreme Court of India in the matter of JAGMOHAN SINGH DHILLON ETC.ETC. v. SATWANT SINGH & ORS [CIVIL APPEAL NOS.4616-4618/2010] by Justice ASHOK BHUSHAN. The appeal was filed challenging the judgment passed by the division bench of Punjab and Haryana High Court where The High Court vide the impugned judgment had allowed the LPA filed by the State of Punjab and set aside the judgment of learned Single Judge and dismissed the writ petitions filed by the appellants. The appellants were ex-servicemen, who after being released from the Army were appointed to Punjab2 Civil Service (Executive Branch). Rules were framed namely Demobilized Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab Civil Service) (Executive Branch) Rules, 1972, under which Rules Twenty percent of the vacancies in the Punjab Civil Service (Executive Branch) were to be filled in by direct recruitment from amongst Released Indian Armed Forces Personnel, who joined military service or were commissioned on or after the first day of November 1962. The vacancies that existed under Rules, 1972 for direct recruitment were from 1979 to 1981. Another set of Rules were framed namely Punjab Recruitment of Ex-servicemen Rules, 1982 which were gazetted on 12.02.1982. Fifteen percent of the vacancies to be filled by direct appointment were reserved for being filled in the recruitment by ex-servicemen. By 1982 Rules, the Rules 1972 as above mentioned were repealed. An advertisement was published on 01.05.1982 being advertisement No.2 advertising the post of Punjab Civil Service (Executive Branch). The examination was held in the year 1985 and the appellants were appointed vide order dated 18.03.1986 to Punjab Civil Service (Executive Branch). The seniority list was issued in the year 1994 in which seniority of the appellant was fixed at S.No.25 without granting him any benefit of earlier services in the Army. The appellant submitted representation against the wrong fixation of his seniority. The appellant filed a Writ petition claiming that his seniority is re-fixed by granting military services benefit in terms of Rule 4 of 1972 Rules. The court was of the consideration that “The only question which needs to be considered and answered in this appeal is as to whether the appellant for determination of his seniority was entitled to the benefit of Rule 4 of 1972 Rules.” Also, “The 1972 Rules were superseded by another rule framed under Proviso to Article 309 read with Article 234 and 318 of the Constitution of India, namely, Punjab (Recruitment of Ex-servicemen) Rules, 1982.” And, “Rule 4 of 1972 Rules provided that period of military service rendered by a candidate appointed against reserved vacancy shall count towards fixation of pay and seniority, which provision was no longer continued in Rule 4 of 1982 Rules, However, the provision for reservation of vacancies was maintained to the extent of fifteen percent of the vacancies.” | IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.4616 4618 2010 JAGMOHAN SINGH DHILLON ETC.ETC ...APPELLANT(S) SATWANT SINGH & ORS ...RESPONDENT(S JUDGMENT ASHOK BHUSHAN J These appeals have been filed against the Division Bench Judgment of High Court of Punjab and Haryana dated 28.07.2009 in LPA No.2107 with LPA No.1707. The High Court vide the impugned judgment has allowed the LPA filed by the State of Punjab and set aside the judgment of learned Single Judge and dismissed the writ petitions filed by the appellants Brief facts of the case necessary to be noted for deciding these appeals are The appellants are ex servicemen who after being released from the Army were appointed to Punjab Civil Service (Executive Branch) Rules 1972 under which Rules Twenty percent of the vacancies in the Punjab Civil Service i.e. Punjab Civil ServiceRules 1976 Learned counsel for the respondent Nos.1 to 4 submits that respondent Nos.1 to 4 have already retired from the service We have considered the submissions of learned counsel for the parties and have perused the record. The only question which needs to be considered and answered in this appeal is as to whether the appellant for determination of his seniority was entitled for the benefit of Rule 72 Rules. Rule 72 Rules provided as follows: 4.(1) The period of military service rendered after attaining the minimum age prescribed for appointment to the Punjab Civil Service Executive Branch) by the candidates appointed against reserved vacancies under rule 2 shall count towards fixation of pay and seniority in the said Service subject to the condition that a) The date of appointment in the PCS in respect of such candidates as are appointed against the reserved vacancies under rule 2 shall be assumption that they joined the service under the State Government at the first opportunity they had after joining the military service or training prior to the b) The inter se seniority of the military personnel determined by the Punjab Public Service Commission shall not be disturbed c) a military personnel appointed as a result of an earlier selection shall be senior to a appointed as a result of irrespective of the period of military service to his credit d) all candidates appointed against the reserved vacancies under rule 2 shall rank below the candidates appointed by direct recruitment in the year to which the former candidates are allotted.” 10. The 1972 Rules were superseded by another Rules framed under Proviso to Article 309 read with Article 234 and 318 of the Constitution of India namely PunjabRules 1982. Rule 82 Rules is to the following effect: 4. Reservation of Vacancies.(1) Subject to the provision of rule 3 fifteen percent of the vacancies to be filled in by direct appointment in all the State Civil Services and Posts connected with the affairs of the State of Punjab shall be reserved for being filled in by recruitment of Ex servicemen Provided that where an Ex serviceman is not available for recruitment against a reserved vacancy such a vacancy shall be reserved to be filled in by recruitment of the wife or one dependent child of an Ex serviceman who has neither been recruitment against reserved vacancy nor is eligible to be recruited against such vacancy under these rules Provided further that the total number of reserved vacancies including those reserved for the candidates belonging to the Scheduled Castes Scheduled Tribes and Backward Classes shall not exceed fifty percent of the posts to be filled in a particular year.” 2) Where a reserved vacancy remains unfilled for non availability of a person eligible for recruitment under these rules such vacancy may be filled in temporarily from any other source in accordance with the rules regulating the recruitment and the conditions of service of persons appointed to such posts as if the vacancy was not reserved Provided that the reserved vacancy so filled in shall be carried forward for the subsequent occasions arising during at least two years in each of which such occasion arises for recruitment where after the vacancy in question shall be treated as un reserved.” 11. As noted above Rule 72 Rules provided that period of military service rendered by a candidate appointed against reserved vacancy shall count towards fixation of pay and seniority which provision was no longer continued in Rule 82 Rules However the provision for reservation of vacancies was maintained to the extent of fifteen percent of the vacancies. Rule 182 Rules has provision of Repeal which is as follows: “10. Repeal The following rules are hereby repealed 1.The Punjab Government National Emergency Concession) Rules 1965 2.The Demobilized Armed Forces Personnel Reservation of Vacancies in the Punjab State Non Technical Services) Rules 3.The Demobilized Indian Armed Forces Personnel (Executive Branch) Rules 1972 and 4.The Released Indian Armed Forces Personnel Rules 1977.” 12. From the facts brought on the record it is clear that the advertisement against which the appellant was appointed was issued on 01.05.1982 i.e. after the enforcement of 1982 Rules. The appellant was appointed in pursuance of the advertisement by appointment order dated 18.03.1986. Although 1972 Rules have been repealed but in the 1982 Rules as per Rule 9(3) nothing in 1982 rules was to be construed as depriving any person of any right which had accrued under the rules in force immediately before the commencement of the Rules 1982. Before enforcement of 1982 Rules admittedly 1972 Rules were enforced 13. The much reliance has been placed by the learned counsel for the appellant on earlier judgment of learned Single Judge in W.P.No.3236 of 1995 Ishwar Singh and others versus State of Punjab. In the above case one of the questions was as to whether for the vacancies which were advertised under 1982 Rules the reservation for the Armed Forces Personnel shall be twenty percent or fifteen percent and whether the benefit of ex servicemen as contained in 1982 Rules shall be applicable with respect to vacancies which arose prior to enforcement of 1982 Rules. In paragraph 50 of the judgment following was observed: “50. Both the aforesaid decisions fully support the petitioners for the contention that the reservation quota in the vacancies which occurred before 12.02.1982 would be 20 percent for the Ex Servicemen and from 12.02.1982 it would be 15 percent. The carry forward rule under the 1972 rules as well as the 1982 rules till before amendment of 1984 was far a period of four years and it was amended by the 1984 amendment which came into effect from 30th April 1984. Therefore when the advertisements was made on 01.05.1982 for recruitment the left over vacancies from 1979 upto 1982 had to be taken into consideration and similarly the vacancies which occurred thereafter would also be taken not of for providing the relevant quota of 10 percent or 15 percent as the case may be. As noted above on the basis of the posts would be made available to the category of Ex. Servicemen. The vacancies which occurred on or after 30th April 1984 would be carried forward on the basis of the 1984 amended rules Whereas earlier unfilled vacancies would be carried forwarding under the 1972 and 1982 un amended rules...” 14. The above judgment has attained finality. The learned Single Judge took the view that since the vacancies were vacancies from 1979 upto 1982 the twenty percent reservation as provided under 1972 Rules shall govern. The judgment of Ishwar Singh thus only had laid down with regard to percentage of reservation of the vacancies which was held to be twenty percent in view of the vacancies occurring prior to the enforcement of 1982 Rules 15. The above proposition cannot be extended to the determination of the seniority. The question of determination of seniority comes only after a person enters into service and becomes a member of service Under 1972 Rules it cannot be held that the fact that vacancies were in existent prior to enforcement of 1982 Rules and appointment of a person subsequent to enforcement of 1982 Rules he shall be entitled to the benefit of Rule 4 i.e. to add his military services for the purposes of his seniority especially when the benefit which was available for the purposes of seniority under Rule 4 of 1972 Rules is no longer continued under 1982 Rules as noted above. 16. We have noticed that 1982 Rules specifically repealed the 1972 Rules thus the Rule 72 Rules which provided for benefit of seniority of Army service was no longer entitled to be counted for seniority for personnel who was appointed after enforcement of 1982 Rules. The judgment of Ishwar Singh of Punjab and Haryana High Court which only determined the percentage of reserved vacancies which were to be reserved for Army personnel could not be held to be relevant regarding determination of seniority in the facts of the present case. 17. We may notice the judgment of this Court in R.K Barwal and others versus State of Himachal Pradesh and others 16 SCC 803. This Court had occasion to consider in the above case Demobilized Armed Forces Personnel Rules 1972 where Rule 5 provided for counting of approved military service for purpose of determining seniority on joining civilian post. The Court held that persons joining Armed Forces during emergency period vis à vis persons joining Armed Forces during ‘peacetime’ there is a reasonable classification and benefit which was available for adding seniority to persons joining Armed Forces during emergency cannot be extended to persons joining Armed Forces during peacetime 18. This Court held that normal rule of fixing of seniority is with reference to the date of entry into the service and there has to be very weighty reason for departure from this rule. Following observations were made in paragraph 27: “27... After all if the benefit of armed force services rendered is extended to each and every ex serviceman for the purpose of seniority it may result in far reaching implications. Examples in this behalf are given by the private respondents as noted above. This Court cannot shy away from the normal rule of fixing the seniority as enunciated in the cases of Direct Recruitment Class II Engineering Officer’s Association as well as Aghore Nath Dey i.e. the seniority of an officer in service is determined with reference to the date of his entry in the service which is consistent with the requirement of Articles 14 and 16 of the Constitution. There have to be very weighty reasons for departure from this rule. Otherwise it may disturb the equilibrium by making many direct recruits junior to such ex servicemen even when such direct recruits joined the services in civil posts much earlier than the ex servicemen. Thus an exceptional category carved out for giving such a benefit only to those who were commissioned in Armed Forces during war time cannot be extended to each and every ex serviceman merely because he has served in Armed Forces.” 19. Under 1982 Rules there is no indication that the benefit which was available to Armed Forces Personnel under Rule 72 Rules are continued or any right has been accrued on the appellant under 1972 Rules which he is entitled to avail regarding seniority. 20. Learned Single Judge in its judgment dated 31.07.2007 has heavily relied on Ishwar Singh’s case holding that with regard to reservation of vacancies i.e. 1972 Rules have been made applicable the 1972 Rules also need to be applied for determination of seniority. The percentage of vacancies which are reserved for Armed Forces Personnel were held to be calculated as per 1972 Rules since the vacancies have occurred prior to 1982 Rules. The above judgment of learned Single Judge in Ishwar Singh cannot be relied for determination of seniority which is entirely a different concept and determination of seniority is governed by seniority rules enforced at the time of appointment of the personnel. The view of learned Single Judge that the appellant shall be deemed to be appointed under 1972 Rules cannot be approved. 21. The Division Bench has rightly taken the view that saving clause under Rule 9(3) does not extend any benefit to the appellant since there is nothing to show that any right of weightage for army services for seniority has already accrued before he joined services. Saving clause in Rule 9(3) cannot be availed by the appellant. We fully endorse the above view of the Division Bench taken in the impugned order. 22. Another judgment relied by the appellant is the judgment of Punjab and Haryana High Court in State of Punjab and other versus Dr. Balbir Bharadwaj LPA No.1604 decided on 29.01.2007 has rightly been distinguished by the Division Bench in the impugned 23. We thus hold that the appellant was not entitled to claim benefit of military service for purpose of seniority for appointment to Punjab Civil Service(Executive Branch) since the benefit of Rule 4(1) of 1972 Rules was not continued in 1982 Rules His seniority was to be governed by statutory rules applicable after the enforcement of 1982 Rules. 24. We do not find any error in the judgment of the Division Bench of the High Court. The appeals are ASHOK BHUSHAN S. ABDUL NAZEER HEMANT GUPTA New Delhi March 26 2021 |
In cases where the builder fails to obtain the occupation certificate, it will be considered as a “deficiency” under section 2(1)(d) of Consumer Protection Act 1986: Supreme Court | Failure to obtain the occupation certificate after the transfer of property to the consumer will be considered as a “deficiency” under Consumer Protection Act 1986 and hence the consumers or residents can be granted compensation as a relief for the excess of tax that they have been paying on basic facilities, this broader view as compared to the NCDRC proceedings was taken by the bench of Justice DY Chandrachud and JUSTICE AS Bopanna in the case SAMRUDDHU CO-OPERATIVE HOUSING SOCIETY LTD. V. MUMBAI MAHALAXMI CONSTRUCTION PVT LTD. [CIVIL APPEAL NO 4000 OF 2019] In this case the petitioner filed a complaint to get a refund on excess taxes that they have been paying to the municipal authorities contending that this is a “deficiency” on the part of the builder and because of their deficiency, the petitioner had to pay 25% higher property tax and additional 50% water charge. This complaint was originally dismissed by NCDRC on the contention that it was not maintainable as it was barred by limitation because it was not a consumer dispute as the Housing Society is not a “consumer” under this act because the relief they are praying for is recovery of the higher amount paid to municipal authority from the builder. Supreme court after going through section 3 and section 6 of Maharashtra Ownership Flat Regulations held that “Based on these provisions, it is evident that there was an obligation on the respondent to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided” and hence directing the builder to compensate the petitioner in the case for any higher than usual charge they have paid due to his deficiency. On the subject matter of the petition being barred by limitation, the court held that “Since 2014 till date, the respondent has failed to provide the occupancy certificate. Owing to the failure of the respondent to obtain the certificate” taking into account the NCDRC order dated 20.08.2014 where the NCDRC directed the respondent to provide the occupation certificate along with a penalty. The Supreme Court taking a wider view stated that this continuous failure to provide the occupation certificate is a violation of obligation imposed by MOFA and hence this suit is not barred by limitation. The Supreme Court said “the respondent was responsible for transferring the title to the flats to the society along with the occupancy certificate. The failure of the respondent to obtain the occupation certificate is a deficiency in service for which the respondent is liable”. It is a common practice that is seen among builders that they abuse and make a mockery out of the process of law leaving the consumer remediless. This is already a very long process for the consumers and the builders not honouring the court orders even after the judgement is an abuse of process of law and on top of that the builders often have a very good legal team ready on which they invest a lot of money unlike the consumers who have limited resources. Consumer Protection Act should always been seen as an act made for the welfare of the consumers that the Supreme Court did in this case disregarding the orders of NCDRC that rejected the case merely based on technicalities. | Reportable IN THE CIVIL APPELLATE JURISDICTION Civil Appeal No 40019 Samruddhi Co operative Housing Society Ltd. … Appellant Mumbai Mahalaxmi Construction Pvt. Ltd. …Respondent JUDGMENT Dr Dhananjaya Y Chandrachud J A Factual Background ................................................................................. 3 B Submissions of Counsel .......................................................................... 6 C Analysis ..................................................................................................... 9 D Conclusion .............................................................................................. 17 PART A Factual Background The appeal arises from a judgment and order of the National Consumer Disputes Redressal Commission1 dated 3 December 2018. The complaint was filed by the appellant for refund of the excess taxes and charges paid the appellant to the municipal authorities due to the alleged deficiency of service of the respondent. By the impugned order the NCDRC dismissed the complaint on the ground that it was barred by limitation and that it was not maintainable since it was in the nature of a recovery proceeding and not a consumer dispute. The appellant is a co operative housing society. The respondent constructed Wings ‘A’ and ‘B’ and entered into agreements to sell flats with individual purchasers in accordance with the Maharashtra Ownership Flats Regulation of the Promotion of Construction Sale Management and Transfer) Act 19632. The members of the appellant booked the flats in 1993 and were granted possession in 1997. According to the appellant the respondent failed to take steps to obtain the occupation certificate from the municipal authorities. In the absence of the occupation certificate individual flat owners were not eligible for electricity and water connections. Due to the efforts of the appellant temporary water and electricity connections were granted by the authorities. However the members of the appellant had to pay property tax at a rate 25% higher than the normal rate and water charges at a rate which was 50% higher than the normal charge. 1 “NCDRC” 2 “MOFA” PART A On 8 July 1998 the appellant instituted a consumer complaint before the State Consumer Disputes Redressal Commission Mumbai3 seeking a direction to the respondent to obtain the occupation certificate. On 7 April 2014 the respondent made an offer of a one time settlement to the appellant which the appellant refused by a letter dated 18 April 2014 as it was allegedly lower than the amount owed by the respondent. By its judgment and order dated 20 August 2014 the SCDRC directed the respondent to obtain an occupancy certificate within four months. The SCDRC also directed the respondent to pay inter alia Rs. 1 00 000 towards reimbursement of extra water charges paid. On 28 December 2015 the appellant sent a legal notice to the respondent demanding the payment of outstanding dues in an amount of Rs. 3 56 42 257 . The respondent failed to comply with the demand. Thereafter the appellant filed an application for execution of the order of the SCDRC dated 20 August 2014. The appellant also filed a complaint4 before the NCDRC seeking payment of Rs. 2 60 73 475 as reimbursement of excess charges and tax paid by the members of the appellant due to the deficiency in service of the respondent and Rs. 20 00 000 towards the mental agony and inconvenience caused to the members of the appellant. Before the NCDRC the appellant claimed that the complaint was not barred by limitation as the payment of excess water usage charges and the non issuance of occupancy certificate is a continuing cause of action. Even otherwise the cause of action was stated to have arisen on 7 April 2014 when the 3 “SCDRC” 4 CC No. 13216 PART A respondent allegedly acknowledged its liability and agreed to pay an amount of Rs. 1 crore in settlement. The cause of action was also alleged to have arisen on 15 December 2015 when the respondent failed to pay the amount demanded by the appellant. Thus the complaint was according to the appellant filed within the prescribed period of limitation under Section 24A of the Consumer Protection Act limitation as: By the impugned order the NCDRC held that the complaint was barred by The members of the appellant booked the flats in 1993 and obtained possession in 1997 which they have continued to enjoy since then. The possession was obtained against the law as no occupancy certificate had been provided by the respondent builder The cause of action arose at the time when the appellant made efforts to obtain individual water and electricity connections and the municipal authorities ordered the members to pay higher charges. The complaint should have been filed within two years of the accrual of the cause of action iii) Since the cause of action arose on the date when the municipal authorities demanded payment of higher taxes and charges the period of limitation also commenced from this date and cannot be extended by the communication between parties iv) With respect to the claim that there was a continuing cause of action due to non availability of the occupancy certificate no relief was sought by the appellant in their complaint regarding the obtaining of an occupancy PART B certificate. The only relief which was sought is a refund of Rs. 2.60 crores for payment of higher taxes. On the merits of the dispute the NCDRC observed that the complaint was filed for refund of the excess amount paid by the appellant to the authorities. In essence the complaint was filed for recovery of this excess amount from the respondent. The NCDRC held that the respondent was not the service provider of the services for which the property tax or water charges were levied. Since these services were provided by the municipal authorities the NCDRC held that the appellant would not fall under the definition of ‘consumer’ under Section 2(1)(d) of the Consumer Protection Act 1986. Thus the NCDRC dismissed the complaint as being barred by limitation and as being not maintainable under the Consumer Protection Act 1986. submissions: Submissions of Counsel Mr Sunil Fernandes counsel for the appellant urged the following There is a continuing cause of action in the present case as the respondent has failed to provide the occupancy certificate Due to the failure of the respondent to obtain the occupancy certificate the members of the appellant have had to pay a 25% higher amount on account of the property tax and an additional 50% towards the water charges PART B iii) Under Section 6 of the MOFA it is the duty of the builder to provide the occupancy certificate to the society which the respondent has failed to fulfil iv) Prior to the order of the SCDRC the respondent offered to pay an amount of Rs. 1 crore as a one time settlement amount towards payment of the extra charges or penalty incurred by the appellant for the increased property tax and water charges The offer of a one time settlement had no relation to the complaint pending before the SCDRC as the relief claimed before the SCDRC was for the grant of an occupancy certificate and payment of penalty to the appellant for excess charges and deficiencies vi) When the residents started residing in the society’s premises they had to incur increased amount towards the property tax and water charges. These charges were levied on an annual basis and continue to be raised due to the failure of the respondent to obtain an occupancy certificate vii) The conduct of the respondent has been improper. The respondent has not obtained the occupancy certificate even twenty four years after giving possession and has not complied with the order of the SCDRC dated 20 August 2014. Due to the failure of the respondent to comply with the order of the SCDRC non bailable warrants have been issued against the respondent and viii) Under the MOFA and the agreement to sell with the members of the appellant the respondent has an obligation to obtain the occupancy certificate. Due to the deficiency in service the members of the appellant PART B have had to make excess payment. Thus the appellant is a consumer under the Consumer Protection Act 1986. Opposing these submissions Mr Atul Babasaheb Dakh appearing on behalf of the respondent submitted that: i) When the construction of the project was completed in 1997 the respondent applied for an occupancy certificate. However the respondent did not offer possession to the flat purchasers The members of the appellant society took possession of their flats to interiors and to make suitable arrangements occupancy certificate was issued. Instead they started occupying the premises and made arrangements for water and electricity by paying additional charges The members of the appellant made unauthorized constructions due to which there was a delay in obtaining the occupancy certificate iv) The proposal for one time settlement in 2014 did not pertain to the additional property tax and water charges In the consumer complaint filed by the appellant in 1998 the appellant had raised the issue of excessive water charges and the SCDRC had directed payment of Rs. 1 00 000 to them. On 2 May 2016 the appellant society received an amount of Rs. 11 55 885 in the proceedings for execution of the order dated 20 August 2014 of the SCDRC PART C vi) The complaint is barred by limitation as the cause of action arose in 1997 and the complaint was filed 18 years later vii) The appellant’s failure to incorporate their present grievances in the prior complaint before the SCDRC indicates relinquishment of their grievances viii) Under Section 6 of the MOFA the builder is entitled to pay all outgoing charges till the grant of possession. The members of the appellant received possession in 1997 and there is no claim for an amount due till 1997 ix) Section 12 of the MOFA provides that it is the liability of the flat purchasers to pay municipal taxes and water and electricity charges The respondent is not a service provider of water supply and has not received any payment for water and property tax. Thus the appellant is not a consumer under the Consumer Protection Act 1986 and the complaint is not maintainable and xi) There is no privity of contract between the parties for payment of extra charges in the absence of an occupancy certificate. The crux of the appeal revolves around the maintainability of the complaint and whether it is barred by limitation. The NCDRC held that the cause of action arose when the municipal authorities asked the appellant to pay higher charges in the first instance and thus a complaint should have been filed within two years of the accrual of the cause of action. The appellant however has argued that the cause of action is of a continuing nature since members of the appellant have PART C continued paying higher charges as the respondent failed to provide the occupancy certificate. Section 24A of the Consumer Protection Act 1986 provides for the period of limitation period for lodging a complaint. A complaint to a consumer forum has to be filed within two years of the date on which the cause of action has arisen. In the instant case the appellant has submitted that since the cause of action is founded on a continuing wrong the complaint is within limitation. Section 22 of the Limitation Act 19635 provides for the computation of limitation in the case of a continuing breach of contract or tort. It provides that in case of a continuing breach of contract a fresh period of limitation begins to run at every moment of time during which the breach continues. This Court in Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan6 elaborated on when a continuous cause of action arises. Speaking for the three judge Bench Justice PB Gajendragadkarobserved that “31.Does the conduct of the trustees amount to a continuing wrong under Section 23 That is the question which this contention raises for our decision. In other words did the cause of action arise de die in diem as claimed by the appellants In dealing with this argument it is necessary to bear in mind that Section 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete there is no continuing wrong even though the damage resulting from the act may continue. If however a wrongful act is of such a character that the injury caused by it itself continues then the act constitutes a 5 “22. Continuing breaches and torts.—In the case of a continuing breach of contract or in the case of a continuing tort a fresh period of limitation begins to run at every moment of the time during which the breach or the tort as the case may be continues.” 6 AIR 1959 SC 798 PART C continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that Section 23 can be invoked.” emphasis supplied) The Court held that the act of the trustees to deny the rights of Guravs as hereditary worshippers and dispossessing them through a decree of the court was not a continuing wrong. Although the continued dispossession caused damage to the appellants the injury to their rights was complete when they were In CWT v. Suresh Seth7 a two judge Bench of this Court dealt with the question of whether a default in filing a return under the Wealth Tax Act amounted to a continuing wrong. Justice ES Venkataramiahobserved that: “11.The distinctive nature of a continuing wrong is that the law that is violated makes the wrongdoer continuously liable for penalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion is however not a continuing wrong or default. It is reasonable to take the view that the court should not be eager to hold that an act or omission is a continuing wrong or default unless there are words in the statute concerned which make out that such was the intention of the legislature. In the instant case whenever the question of levying penalty arises what has to be first considered is whether the assessee has failed without reasonable cause of file the return as required by law and if it is held that he has failed to do so then penalty has to be levied in accordance with the measure provided in the Act. When the default is the filing of delayed return the penalty may be correlated to the time lag between the last day for filing it without penalty and the day on which it is filed and the quantum of tax or wealth involved in the case for purposes of determining the quantum 72 SCC 790 PART C of penalty but the default however is only one which takes place on the expiry of the last day for filing the return without penalty and not a continuing one. The default in question does not however give rise to a fresh cause of action every day. Explaining the expression “a continuing cause of action” Lord Lindley in Hole v. Chard Union1 Ch D 293 : 63 LJ Ch 469 : 70 LT 52] observed: “What is a continuing cause of action Speaking accurately there is no such thing but what is called a continuing cause of action is a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought.” emphasis supplied) The Court further provided illustrations of continuous wrongs: in good “17. The true principle appears to be that where the wrong complained of is the omission to perform a positive duty requiring a person to do a certain act the test to determine whether such a wrong is a continuing one is whether the duty in question is one which requires him to continue to do that act. Breach of a covenant to keep the repair breach of a continuing guarantee obstruction to a right of way obstruction to the right of a person to the unobstructed flow of water refusal by a man to maintain his wife and children whom he is bound to maintain under law and the carrying on of mining operations or the running of a factory without complying with the measures intended for the safety and well being of workmen may be illustrations of continuing breaches or wrongs giving rise to civil or criminal liability as the case may be de die in diem.” In M. Siddiq v. Suresh Das8 a Constitution Bench of this Courtwas a part) examined the precedents with regards to a continuing wrong. The Court observed that: “343. The submission of Nirmohi Akhara is based on the principle of continuing wrong as a defence to a plea of limitation. In assessing the submission a distinction must be made between the source of a legal injury and the effect of the injury. The source of a legal injury is founded in a breach of an obligation. A continuing wrong arises where there is an obligation imposed by law 81 SCC 1 PART C agreement or otherwise to continue to act or to desist from acting in a particular manner. The breach of such an obligation extends beyond a single completed act or omission. The breach is of a continuing nature giving rise to a legal injury which assumes the nature of a continuing wrong. For a continuing wrong to arise there must in the first place be a wrong which is actionable because in the absence of a wrong there can be no continuing wrong. It is when there is a wrong that a further line of enquiry of whether there is a continuing wrong would arise. Without a wrong there cannot be a continuing wrong. A wrong postulates a breach of an obligation imposed on an individual whether positive or negative to act or desist from acting in a particular manner. The obligation on one individual finds a corresponding reflection of a right which inheres in another. A continuing wrong postulates a breach of a continuing duty or a breach of an obligation which is of a continuing nature.Hence in evaluating whether there is a continuing wrong within the meaning of Section 23 the mere fact that the effect of the injury caused has continued is not sufficient to constitute it as a continuing wrong. For instance when the wrong is complete as a result of the act or omission which is complained of no continuing wrong arises even though the effect or damage that is sustained may enure in the future. What makes a wrong a wrong of a continuing nature is the breach of a duty which has not ceased but which continues to subsist. The breach of such a duty creates a continuing wrong and hence a defence to a plea of limitation.” emphasis supplied) A continuing wrong occurs when a party continuously breaches an obligation imposed by law or agreement. Section 3 of the MOFA imposes certain general obligations on a promoter. These obligations inter alia include making disclosures on the nature of title to the land encumbrances on the land fixtures fittings and amenities to be provided and to not grant possession of a flat until a completion certificate is given by the local authority. The responsibility to obtain the occupancy certificate from the local authority has also been imposed under PART C the agreement to sell between the members of the appellant and the respondent on the latter. Section 6 of the MOFA make the promoter responsible for payments of outgoings till the property is transferred. Section 6 reads as follows: “A promoter shall while he is in possession and where he collects from persons who have taken over flats or are to take over flats sums for the payment of outgoings even thereafter pay all outgoings until he transfers the property to the persons taking over the flats or to the organisation of any such persons to the authority or person to whom they are payable and to be responsible for any proceedings which may be taken therefor by such authority or persons.]” emphasis supplied) Sections 3 and 6 of the MOFA indicate that the promoter has an obligation to provide the occupancy certificate to the flat owners. Apart from this the promoter must make payments of outgoings such as ground rent municipal taxes water charges and electricity charges till the time the property is transferred to the flat owners. Where the promoter fails to pay such charges the promoter is liable even after the transfer of property . PART C Based on these provisions it is evident that there was an obligation on the respondent to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided. The respondent has time and again failed to provide the occupancy certificate to the appellant society. For this reason a complaint was instituted in 1998 by the appellant against the respondent. The NCDRC on 20 August 2014 directed the respondent to obtain the certificate within a period of four months. Further the NCDRC also imposed a penalty for any the delay in obtaining the occupancy certificate beyond these 4 months. Since 2014 till date the respondent has failed to provide the occupancy certificate. Owing to the failure of the respondent to obtain the certificate there has been a direct impact on the members of the appellant in terms of the payment of higher taxes and water charges to the municipal authority. This continuous failure to obtain an occupancy certificate is a breach of the obligations imposed on the respondent under the MOFA and amounts to a continuing wrong. The appellants therefore are entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation. The NCDRC in its impugned order has held that the cause of action arose when the municipal authorities ordered the payment of higher taxes in the first instance. Further the impugned order also states that the present complaint is barred by limitation as there is no prayer for supply of occupancy certificate. We are unable to subscribe to the view of the NCDRC on both counts. Undoubtedly the continuing wrong in the present case is the failure to obtain the occupancy certificate. Against this act of the respondent the appellant society has taken appropriate action by filing a complaint before the consumer forum. The appellant PART C is currently pursuing the execution of the order of the SCDRC arising from that complaint. However that itself does not preclude it from claiming compensation for the consequences which have arisen out of this continuing wrong. The failure to obtain the occupancy certificate has resulted in the levy of higher taxes on the members of the appellant society repeatedly by the municipal authorities. Despite the order of 20 August 2014 the respondent has failed to obtain the occupancy certificate. This has resulted in a situation where the appellant despite having followed the correct course of litigation in demanding the furnishing of an occupancy certificate will continue to suffer the injury inflicted by the respondent merely due to the delay in the execution of the order against the respondent. Rejecting the complaint as being barred by limitation when the demand for higher taxes is made repeatedly due to the lack of an occupancy certificate is a narrow view which is not consonance with the welfare objective of the Consumer Protection Act 1986. 20 We shall now briefly advert to the finding of the NCDRC on the merits of the dispute. The NCDRC has held that the appellant is not a ‘consumer’ under the provisions of the Consumer Protection Act as they have claimed the recovery of higher charges paid to the municipal authorities from the respondent. Extending this further the NCDRC has observed that the respondent is not the service provider for water or electricity and thus the complaint is not maintainable. Section 2(1)(d) of the Consumer Protection Act defines a ‘consumer’ as a person that avails of any service for a consideration. A ‘deficiency’ is defined under Section 2(1)(g) as the shortcoming or inadequacy in the quality of service PART D that is required to be maintained by law. In its decisions in Wing Commander Arifur Rahman Khan & Others v. DLF Southern Homes Private Limited & Others9 and Pioneer Urban Land Infrastructure Limited v. Govindan Raghavan10 this Court has held that the failure to obtain an occupancy certificate or abide by contractual obligations amounts to a deficiency in service. In Treaty Construction v. Ruby Tower Cooperative Housing Society Ltd.11 the Court also considered the question of awarding compensation for not obtaining the certificate. In that case the Court declined to award damages as there was no cogent basis for holding the appellant liable for compensation and assessing the quantum of compensation or assessing the loss to the members of the respondent society. In the present case the respondent was responsible for transferring the title to the flats to the society along with the occupancy certificate. The failure of the respondent to obtain the occupation certificate is a deficiency in service for which the respondent is liable. Thus the members of the appellant society are well within their rights as ‘consumers’ to pray for compensation as a recompense for the consequent liabilityarising from the lack of an occupancy certificate. For the above reasons we allow the appeal against the order of the NCDRC dated 3 December 2018 and hold that the complaint is maintainable. We direct the NCDRC to decide the merits of the dispute having regard to the 916 SCC 512 105 SCC 725 118 SCC 157 PART D observations contained in the present judgment and dispose the complaint within a period of three months from the date of this judgment. Pending applications if any shall stand dismissed. [AS Bopanna] New Delhi January 11 2022 |
The only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention: High Court of J&K and Ladakh | An effective representation can only be made by a detenu when he is supplied the relevant grounds of detention, including the materials considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order as held by the Hon’ble High Court of J&K and Ladakh through a learned bench of Justice Ali Mohammad Magrey in the case of Mehraj ud din Ganaie Vs Govt of J&K and ors [(WP Cri) No. 21/2021]. In the case, Detenu, Mehraj ud din Ganaie through his wife Naziya seeked quashment of detention order no. DMS/PSA/15/2021 dated 22.02.2021 purporting to have been passed by District Magistrate, Srinagar, with consequent prayer for release of the detenu forthwith. Notice was issued to respondents. They appeared through their learned counsel and filed counter affidavit wherein they submitted that the detention order is well founded in fact and law and seeks dismissal of the Heabus Corpus Petition. Learned counsel for detenu had submitted that the grounds taken in the detention order and the material referred to and relied upon had no relevance because the detenu was already in custody, therefore, there was no possibility that the detenu be implicated in the activities prejudicial to the public security of the state. It was submitted that in absence of material the detention order is passed on mere ipsidixit of detaining authority, therefore, the detention order is bad in law. Learned counsel for petitioner has in order to strengthening his submission referred to and relied upon (2006) 2 Supreme Court Cases 664 titled T. V Sravanan Alias S.A.R Prasana v. State through Secretary and anr. The Hon’ble High Court, after a perusal of the facts, was of the view that “The only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention, including the materials considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. Since the material is not supplied to the detenu, the right of the detenu to file such representation is impinged upon and the detention order is resultantly vitiated. Judgements on this point, both of the Supreme Court and of various High Courts, including our own High Court, are galore.” While concluding and quashing the detention prder, the court 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 Case no.No. 21 2021 Reserved on 21.10.2021 Pronounced on 03.11.21 …Petitioner Mr. Aftab Ahmad adv. Mehraj ud din Ganaie Govt of J&K and ors Through : Mr. B.A Dar Sr. AAG Hon’ble Mr. Justice Ali Mohammad Magrey. JUDGMENT Detenu Mehraj ud din Ganaie son of Abdul Rehman Ganaie R o Tengpora Batmaloo Bye Pass District Srinagar through his wife Naziya seeks quashment of detention order no. DMS PSA 15 2021 dated 22.02.2021 purporting to have been passed by District Magistrate Srinagar with consequent prayer for release of the detenu forthwith. The petitioner detenu has challenged the order of detention on the following grounds: “a) that no compelling reason or circumstance was disclosed in the order or grounds of detention to take the detenu in preventive detention moreso in view of the fact that as on the date of passing of the aforesaid order of detention the detenu was already in custody b) that the detenu has not been provided the material forming basis of the detention order to make an effective representation against his detention order c) that the impugned order has been passed without proper application of mind. d) that the detention order was not provided to the detenu within the statutory period”. Notice was issued to respondents. They appeared through their learned counsel and filed counter affidavit wherein they submitted that the detention order is well founded in fact and law and seeks dismissal of the Heabus Corpus Petition. Heard learned counsel for the petitioner detenu as well as the learned counsel for the respondents perused the writ records as also the detention record produced by the learned counsel for the respondents. 5. Learned counsel for detenu has submitted that the grounds taken in the detention order and the material referred to and relied upon has no relevance because the detenu was already in custody therefore there is no possibility that the detenu be implicated in the activities prejudicial to the public security of the state. It is submitted that in absence of material the detention order is passed on mere ipsidixit of detaining authority therefore the detention order is bad in law. Learned counsel for petitioner has in order to strengthening his submission referred to and relied upon2 Supreme Court Cases 664 titled T. V Sravanan Alias S.A.R Prasana v. State through Secretary and anr. The only precious and valuable right guaranteed to a detenu is of making an effective representation against the order of detention. Such an effective representation can only be made by a detenu when he is supplied the relevant grounds of detention including the materials considered by the detaining authority for arriving at the requisite subjective satisfaction to pass the detention order. Since the material is not supplied to the detenu the right of the detenu to file such representation is impinged upon and the detention order is resultantly vitiated. Judgements on this point both of the Supreme Court and of various High Courts including our own High Court are galore. I may refer to one such judgment of the Supreme Court herein. In Ibrahim Ahmad Batti v. State of Gujarat 3 SCC 440 the Apex Court relying on its earlier judgments in Khudiram Das v State of W. B. 2 SCR 81 Icchu Devi Choraria v. Union of India 4 SCC 531 in paragraph 10 of the judgment has held as under: “Two propositions having a bearing on the points at issue in the case before us clearly emerge from the aforesaid resume of decided cases: all documents statements and other materials incorporated in the grounds by reference and which had influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenu alongwith the grounds or in any event not later than 5 days ordinarily and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of his detention and b) all such material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of the two duties cast on the detaining authority under Article 22(5) of the Constitution”. In Khudiramcase the Apex Court has explained what is meant by ‘grounds on which the order is made’ in context of the duties cast upon the detaining authority and the corresponding rights accruing to the detenu under Article 22(5). In Smt. Icchu Devi Case the Supreme Court has taken the view that documents statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference and the right of the detenu to be supplied copies of such documents statements and other materials flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention because unless the former right is available the latter cannot be meaningfully exercised. So far as the ground taken i.e non communication of the grounds of detention is concerned perusal of file reveals that there is nothing to show or suggest that the grounds of detention couched in English language were explained to the detenu in a language understood by him as there is no material to that effect on record. This according to the view taken by Hon’ble Apex Court 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 and nothing in writing is left with him in a language which he understands then that purpose is not served and the constitutional mandate in Article 22(5) is infringed.” In view of the law laid down by the Apex Court in aforesaid cases vitiates the detention order as not amounting to effect communication of grounds and resultant deprivation of the right to make representation against the same. 11. Examining the present case on the touch stone of the above settled position of law and perusal of record the detenu was not supplied the materials relied upon by the detaining authority. The detenu was provided material in the shape of grounds of detention with no other material documents as referred to in the order of detention. On these counts alone the detention of the detenu is vitiated the detenu having been prevented from making an effective and purposeful representation against the order of costs. 12. Accordingly the detention order No. DMS PSA 15 2021 dated 22.02.2021 is quashed and the detenu Mehraj ud din Ganaie son of Abdul Rehman Ganaie R o Tengpora Batmaloo Bye Pass District Srinagar is directed to be released from preventive custody forthwith. No order as to 13. Registrar Judicial to send a copy of this order to Director General of Prisons and also concerned Jail authorities for compliance. Registry to return the detention record to Mr. B.A Dar Sr. AAG. Ali Mohammad Magrey) Judge Disposed of. Srinagar Syed Ayaz Hussain Whether order is speaking: Yes No. Whether order is reportable: Yes No. |
Application stands non-maintainable if the petitioner escapes: High court of Patna | The petitioner was arrested under Section 30(a) of the Bihar Prohibition and Excise Act, 2016, “Penalty for unlawful manufacture, import, export, transport, possession, sale, purchase, distribution, etc. of any intoxicant or liquor, whoever, in contravention of any provision of this Act or of any rule, regulation, an order made, notification issued thereunder, or without a valid license, permit or pass issued under this Act, shall be punishable with imprisonment for the term which may extend to life and with fine which may extend to ten lakh rupees.” This is in connection with Simri PS Case No. 210 of 2020 dated 26.07.2020. This Judgement was given in the High court Of judicature at Patna by Honorable Mr. Justice Ahsanuddin Amanullah on the 29th of July 2021 in the case of Birendra Paswan versus the state of Bihar criminal miscellaneous No. 8861 of 2021, Mr. Sanjay Kumar represented as the advocate for the petitioner and Mr. Anant Kumar represented as the additional public prosecutor for the state of Bihar. The proceedings of the court were held through video conference. The following are the facts of the case, the police had visited near the brick-kiln of Mina Dubey on prior information and when one motorcycle approached the police without noticing the police the rider of the motorcycle turned around and ran away despite the chase, he managed to escape leaving behind the motorcycle. After search and investigation, the police recovered 60 liters of country-made liquor from the same motorcycle but unfortunately, the petitioner escaped. The counsel for the petitioner submitted that the name of the petitioner was given out of mere suspicion by the local chowkidar and since the petitioner has not yet been found, it is not relevant and he has no other criminal antecedent as well. The learned additional public prosecutor held that the police had gone on prior information and the petitioner was the one seen on coming on a motorcycle where there has been a recovery of 60 liters of country-made liquor and the local chowkidar is the one who can identify the people of the locality and since he identified the petitioner who was riding the motorcycle there is no reason to disbelieve him. The prosecutor submitted that when they make a direct connection with the petitioner regarding the recovered liquor. Therefore the present petition under Section 438 of the Code of Criminal Procedure, 1973 would not be maintainable due to the bar of Section 76(2) of the Act. The High court of Patna concluded that “Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds substance in the contention of learned APP. Once the local Chowkidar has identified the petitioner as the sole person who was riding the motorcycle and had fled away and from which there is the recovery of 60 liters of countrymade liquor, an offense, prima facie, is made out under the Act and therefore, the present application would not be maintainable due to bar of Section 76(2) of the Act. For reasons aforesaid, the petition stands dismissed as not maintainable.” Click here to read the judgment | IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 88621 Arising Out of PS. Case No. 210 Year 2020 Thana SIMRI District Buxar Birendra Paswan @ Birendra Kumar Paswan Male aged about 20 years Son of Dharmdev Paswan @ Barhmdev Paswan Resident of Village Balihar Paswan Tola PS Simari District Buxar The State of Bihar ... Petitioner s For the Petitioner s For the State Mr. Sanjay Kumar Advocate Mr. Anant Kumar No. 1 APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ... Opposite Party s ORAL JUDGMENT Date : 29 07 2021 The matter has been heard via video conferencing. 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioner on 22.07.2021 which was allowed 3. Heard Mr. Sanjay Kumar learned counsel for the petitioner and Mr. Anant Kumar No. 1 learned Additional Public Prosecutorfor the State 4. The petitioner apprehends arrest in connection with Simri PS Case No. 2120 dated 26.07.2020 instituted under Section 30(a) of the Bihar Prohibition and Excise Act 2016 hereinafter referred to as the ‘Act’ Patna High Court CR. MISC. No.88621 dt.29 07 2021 5. The allegation against the petitioner is that when the police went on prior information near the brick kiln of Mina Dubey one motorcycle was seen coming towards them but on seeing the police the rider turned the motorcycle and tried to run away but despite chase he managed to escape leaving behind the motorcycle and on search 60 litres of countrymade liquor was recovered from the said motorcycle and the petitioner was named as the person who had run away by the local Chowkidar 6. Learned counsel for the petitioner submitted that the petitioner has been named only on suspicion by the local Chowkidar and has no other criminal antecedent 7. Learned APP submitted that the police had gone on prior information and it was the petitioner who was seen coming on the motorcycle and on chase had left the motorcycle from which there is recovery of huge amount of countrymade liquor Further it was submitted that the local Chowkidar is the competent person to identify the persons of that locality and him having identified the petitioner as the sole person who was riding the motorcycle and had fled away there is no reason to disbelieve him at least at the present stage. Thus it was submitted that once there is direct connection of the petitioner to the recovered liquor the present petition under Section 438 of the Code of Criminal Patna High Court CR. MISC. No.88621 dt.29 07 2021 Procedure 1973 would not be maintainable due to bar of Section 76(2) of the Act 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds substance in the contention of learned APP. Once the local Chowkidar has identified the petitioner as the sole person who was riding the motorcycle and had fled away and from which there is recovery of 60 litres of countrymade liquor an offence prima facie is made out under the Act and therefore the present application would not be maintainable due to bar of Section 76(2 of the Act. 9. For reasons aforesaid the petition stands dismissed as (Ahsanuddin Amanullah J |
Trivial mistake without grave prejudice not a sustainable stand – Supreme Court | In the case of M/S. L&T Housing Finance Limited Vs M/S. Trishul Developers and Anr. [Civil Appeal No. 3413 of 2020] Supreme Court set aside the judgement of the Karnataka High Court. The bench comprised of Justice L. Nageswara Rao, Justice Hemant Rao and Justice Ajay Rastogi. The appellant was a Housing Finance Company under National Housing Bank Act, 1987 and was notified as Financial Institution by the Department of Finance of the SARFAESI Act. The appellant indeed fell within the definition of secured creditor under the provisions of the SARFAESI Act and was entitled to initiate measures under the provision of the SARFAESI Act for enforcement of security interest created on the secured assets by the respondents (borrower/guarantor) in favour of the appellant (secured creditor). The first respondent was a partnership firm registered under the Partnership Act, 1932 and was dealing in the real estate construction business as alleged and the second respondent was the partner of first respondent firm. The first respondent and its partners in carrying out its business obligations approached the appellant for seeking financial assistance and submitted a request to the appellant for term loan of Rs.20 crores for completion of its project. The appellant taking note of the request made by the respondents sanctioned Term Loan Facility to the tune of Rs. 20 crores towards completion of the project vide sanction letter by mortgaging the various immovable properties as a security for creating security interest in favour of the appellant. It revealed from the record that the respondents at a later stage failed to maintain financial discipline and subsequently became a defaulter and because of the alleged breach of the terms and conditions of the Facility Agreement executed between the appellant (L&T Housing Finance Ltd.) and the respondents (M/s. Trishul Developers) towards completion of its project, the appellant served a demand notice to the respondents to pay the outstanding dues within the stipulated period mentioned in the demand notice. Since the respondents failed to make their outstanding payment, under the given circumstances the appellant classified the account of the respondents as Nonperforming Assets (NPA) and sent a notice of demand under Section 13(2) of the SARFAESI Act calling upon the respondents to pay the outstanding dues of Rupees Sixteen Crores Ninety Seven Lakhs Fifty Four Thousand Eight Hundred and Fifty One Only, in terms of the notice with future interest till actual payment within sixty days from the date of the receipt of the demand notice. Since the respondents failed to discharge their liability towards the appellant in terms of the demand notice, the appellant took further action in due compliance under Section 13(4) read with Section 14 of the SARFAESI Act and filed application before the competent authority for taking possession of the mortgaged properties and the collateral security of the respondents. At this stage, the respondents proceeded in filing a Securitisation Application before the Debt Recovery Tribunal under Section 17 of the SARFAESI Act assailing the issuance of demand notice under Sections 13(2) and 13(4) of the Act inter alia on various grounds. The learned Debt Recovery Tribunal vide its order set aside the demand notice on the premise that it had not been validly issued in the name of the appellant (“L&T Housing Finance Ltd.”) instead the name of the company had been mentioned as “L&T Finance Ltd.” and this defect was alleged not being curable after issuance of demand notice by another group company instead of secured creditor, held the proceedings not sustainable. The order of Debt Recovery Tribunal came to be challenged by the appellant in appeal before the Debt Recovery Appellate Tribunal (DRAT) and after the parties being heard, DRAT vide its order set aside the order of Debt Recovery Tribunal which came to be challenged by the respondents in a writ petition before the High Court of Karnataka. The High Court while setting aside the order of DRAT returned its finding in conformity with what was observed by the DRT in its order, which was the subject matter of appeal before the Supreme Court. The appellant submitted that the proceedings initiated under the SARFAESI Act would not nullify on the mere technicality as being pointed out and the High Court without appreciating the material on record had reversed the finding returned by the DRAT in its extraordinary jurisdiction under Article 226 & 227 of the Constitution and if two views were possible, unless found to be perverse it was not justified for the High Court to reverse the finding of fact supported by the material on record and that needs interference of this Court. Court observed that, “In the facts and circumstances, when the action has been taken by the competent authority as per the procedure prescribed by law and the person affected has a knowledge leaving no ambiguity or confusion in initiating proceedings under the provisions of the SARFAESI Act by the secured creditor, in our considered view, such action taken thereof cannot be held to be bad in law merely on raising a trivial objection which has no legs to stand unless the person is able to show any substantial prejudice being caused on account of the procedural lapse as prescribed under the Act or the rules framed thereunder still with a caveat that it always depends upon the facts of each case to decipher the nature of the procedural lapse being complained of and the resultant prejudiced if any, being caused and there cannot be a straitjacket formula which can be uniformly followed in all the transactions.” | The instant appeal is directed against the impugned Bench of the High Court of Karnataka at Bengaluru in Writ Petition No.22137 of 2019 wherein the High Court while reversing the finding returned by the Debt Recovery Appellate Tribunal in its order dated 16th April 2019 upheld the order of the Debt Recovery Tribunal dated 23rd March 2018 quashing the borrower) under Section 13(2) of the Securitisation and followed with the possession notices dated 09th November 2017 notified as Financial Institution by the Department of Finance clause of clause of subsection of Section 2 of the is entitled to initiate measures under the provision of the secured assets by the respondents in “2. Definitions. In this Act unless the 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 ii) debenture trustee appointed by any bank or iii) an asset reconstruction company whether acting as such or managing a trust set up by such asset reconstruction company for the iv) debenture trustee registered with the Board appointed by any company for secured debt in whose favour security interest is created by any borrower for due repayment of any financial the Partnership Act 1932 and is dealing in the real estate appellant for seeking financial assistance and submitted a term loan of Rs.20 crores for completion of its project duly signed by the the guarantors clearly demonstrates that on the top of the at Mumbai and this is the letterhead which has always been taken in use for correspondence at all later stages when the It reveals from the record that the respondents at a later stage failed to maintain financial discipline and subsequently became a defaulter and because of the alleged breach of the the appellant and the respondents M s. Trishul Developers through its Partners) towards dated 16th December 2016 to the respondents to pay the demand notice. Since the respondents failed to make their outstanding payment under the given circumstances the appellant classified the account of the respondents as Non demand dated 14th June 2017 under Section 13(2) of the SARFAESI Act calling upon the respondents to pay the outstanding dues i.e. Rs.16 97 54 851 read with Section 14 of the SARFAESI Act and filed of the mortgaged properties and the collateral security of the At this stage the respondents proceeded in filing a Tribunal under Section 17 of the SARFAESI Act assailing the Act inter alia on various grounds. The learned Debt Recovery Tribunal vide its order dated 23rd March 2018 set aside the in the name of the appellant and after the parties being heard Debt Recovery Tribunal which came to be challenged by the respondents in a writ petition before the High Court of 10. Learned counsel for the appellant submits that from the on the same letterhead of the appellant from where the proceedings for the term loan was sanctioned in favour of the signatory being there of both the companies use common by the respondents are in reference to “L&T Housing Finance Ltd.” and only at one stage due to oversight the appellant prejudice either in acknowledging that from whom demand notice under Section 13(2) has been served judgment will not negate the proceedings which has been without appreciating the material on record has reversed the finding returned by the DRAT in its extraordinary jurisdiction High Court to reverse the finding of fact supported by the 12. Per contra learned counsel for the respondents while confirmed by the High Court at the very inception of the proceedings being initiated under the SARFAESI Act all the instant case cannot be said to be in due compliance of the under obligation to comply which indisputedly has not been followed in the given circumstances no error has been 07th August 2015 and later their account became NPA on 15th April 2017 and prior thereto the appellantof the of the appellant on the letterhead commonly used by “L&T 08th August 2017 of the respondents it becomes clear that and the respondents tried to justify and assigned reasons for which the Facility Agreement dated 11th August 2015 could not creditor) has initiated further proceedings under Section 13(4 15. Notably from the very inception at the stage when the by the respondents vide their application dated 15th May 2015 and accepted by the appellant vide sanction letter dated 07th August 2015the letterhead which was used for the purpose in Mumbai and this has been duly signed by the authorised the appellant in its correspondence while dealing with its customers and that is the same practice being followed by the appellant when demand notice dated 16th December 2016 was served at a later stage. The demand notice in explicit terms clearly indicates the execution of the Facility Agreement dated 11th August 2015 between the appellantin furtherance thereof a notice under Section 13(2) of the SARFAESI Act was served on the same appellant in its correspondence with its customers and the doubt is in reference to the nonfulfillment of the terms and conditions of the Facility Agreement dated 11th August 2015 profile which has been annexed thereto is in reference to the execution of Facility Agreement dated 11th August 2015 and its the respondents through their counsel dated 08th August 2017 between the appellant and the respondents which compliance could not have been made and no objection any in the demand notice dated 14th June 2017 which was compliance to the provisions of the SARFAESI Act or in furtherance to the proceedings initiated at the behest of the did not deny advancement of loan execution of Facility taken by the competent authority as per the procedure prescribed by law and the person affected has a knowledge prejudice being caused on account of the procedural lapse as and the resultant prejudiced if any being caused and there 20. Adverting to facts of the instant case we are of the view that time the objection raised by the respondents in the first instance at the stage of filing of a Securitisation Application has persuaded the Tribunal and the High Court to negate the to be complied with in initiating proceedings notice under Section 13(2) of the Act was served by the secured creditor in the facts of the case in our considered view is wholly without substance for the reason that “L&T Finance their correspondence with all its customers use a common by the authorised signatory due to some human error of “L&T Finance Ltd.” in place of “L&T Housing Finance Ltd.”. More so of confusion in their knowledge regarding the action being initiated in the instant case other than the secured creditor under the SARFAESI Act for nonfulfillment of the terms and conditions of the Facility Agreement dated 11th August 2015 or objection being raised while the demand notice under Section In the result the appeal succeeds and is accordingly allowed. The impugned judgment dated 27th June 2019 passed 23. Pending application(s) if any stand disposed of. |
Section 311 cannot be used to prolong the trial: Delhi High Court | Section 311 of the CrPC provides courts the power to summon any person as witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined if it appears to be essential for adjudication of the case but the said power has to be exercised with care and caution. It cannot be used as a tool to procrastinate trial or as a tool to fill up the lacunae either by the prosecution or by the defence. This was held by Hon’ble Justice Subramonium Prasad in the case of Shri Chand Vs. Central Bureau of Investigation [CRL.M.C. 1721/2021] on the 23rd of August, 2021 before the Hon’ble High Court of Delhi at New Delhi. The brief facts of the case are, an FIR was registered against seven accused in relation to reviving Narmad Cooperative Group Housing Society on the basis of forged and fabricated documents with the object to get land allotted in the name of the society by the DDA at reserve price which is at 1/6th or 1/7th of the market rate causing wrongful gains to the accused and corresponding loss to the DDA. The charge sheet was filed on 29.11.2006 and charges were framed on 18.02.2011. The trial has begun. The prosecution has concluded its evidence. When final arguments were to commence, the petitioner filed an application for engaging a hand-writing expert for an opinion in supplement to the opinion rendered by the handwriting expert appointed by the Government. The said application was rejected by the impugned Order dated 22.02.2021 stating that the handwriting expert has given his report. He has been examined and cross-examined by the Petitioner herein. It has also been noted in the impugned Order that there is no allegation against the government expert with respect to his impartiality. The counsel for the petitioner submits that, Section 311 Cr.P.C confers a wide discretionary power on the Court and that these powers of the Court do not impose a limit when it concerns to serving the cause of justice. Furthermore, government hand-writing expert has been provided the documents in the form of photocopies as the original documents had not been placed on record by the prosecution. The counsel for the respondents submitted that, this application is an abuse of the process of law and is a mere ruse to delay the trial. He further states that the FIR was registered on 14.12.2005, charge-sheet was filed on 29.11.2006, charges were framed on 18.02.2011 and the application under Section 311 Cr.P.C was filed after the prosecution had ended its examination and the petitioner had been given an opportunity to lead defence. He states that the Trial Court has correctly observed that when the documents have already been examined by the Government appointed expert and when there is no allegation against the said government body with respect to their impartiality, then there is no necessity of getting the documents examined by a private expert. He further states that Section 22 of the PC Act provides for a limited application of the Cr.P.C. He places reliance on Section 22(a) of the PC Act which provides that after the evidence is over, the accused is required to give in writing a list of persons (if any) whom he proposes to examine as his witnesses as well as of the documents (if any) on which he proposes to rely. He states that the petitioner has not followed the procedure prescribed in law. He, therefore, states that permitting the petitioner to examine one more hand writing expert would be superfluous in the face of the facts and circumstances of this case, and in fact would delay the mandate of Section 243 Cr.P.C. | IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.M.C. 1721 2021 & CRL.M.A. 11963 2021Date of decision: 23rdAugust 2021 SHRI CHAND ..... Petitioner Through Mr. Mohinder Nath Dudeja Advocate IN THE MATTER OF: CENTRAL BUREAU OF INVESTIGATION ..... Respondent Through Mr. Anupam S Sharrma SPP with Mr. Prakarsh Airan and Ms. Harpreet Kalsi Advocates HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. This petition under Section 482 Cr.P.C is directed against the order dated 22.02.2021 passed by Special JudgeRouse Avenue Courts rejecting the application filed by the petitioner herein under Section 311 Cr.P.C seeking permission to engage a handwriting expert. 2. Material on record discloses that on the directions of this Court FIR No. RC NO DST 2005 S 010 dated 14.12.2005 was registered at Police Station CBI STF NEW DELHI for offences under Section 120B 420 511 468 471 of the Indian Penal Code read with Section 13(2) 13(1)(d) of the Prevention of Corruption Actagainst seven accused in relation to reviving Narmad Cooperative Group Housing Society on the basis of forged and fabricated documents with the object to get land allotted in the name of the CRL.M.C. 1721 2021 DDA. society by the DDA at reserve price which is at 1 6th or 1 7th of the market rate causing wrongful gains to the accused and corresponding loss to the The charge sheet was filed on 29.11.2006 and charges were framed on 18.02.2011. The trial has begun. The prosecution has concluded its evidence. When final arguments were to commence the petitioner filed an application for engaging a hand writing expert for an opinion in supplement to the opinion rendered by the handwriting expert appointed by the Government. The said application was rejected by the impugned Order dated 22.02.2021 stating that the handwriting expert has given his report. He has been examined and cross examined by the Petitioner herein. It has also been noted in the impugned Order that there is no allegation against the government expert with respect to his impartiality. Heard Mr. M.N. Dudeja learned Counsel for the Petitioner and Mr. Anupam S. Sharrma learned SPP for the State and perused the material on record. It is the submission of the learned Counsel for the Petitioner that Section 311 Cr.P.C confers a wide discretionary power on the Court and that these powers of the Court do not impose a limit when it concerns to serving the cause of justice. The learned Counsel for the Petitioner has further relied on V.N Patil v. K. Niranjan Kumar 3 SCC 661 to submit that the aim of every Court is to unearth the truth and that Section 311 Cr.P.C vests a discretionary power in the Court to utilize the same. The learned counsel for the petitioner has further argued that the government hand writing expert has been provided the documents in the form of photocopies as the original documents had not been placed on CRL.M.C. 1721 2021 record by the prosecution. Submitting that the evidentiary value of expert opinion with regard to hand writing is inconclusive the learned Counsel for the Petitioner has relied on Fakhruddin v. State of MP AIR 1967 SC 1326 and Padum Kumar v. State of U.P. 3 SCC 25 to state that conviction cannot solely be based on the evidence of a hand writing expert and that it must be corroborated by other evidence direct or circumstantial. Per contra Mr. Anupam S. Sharrma learned SPP appearing for CBI contends that this application is an abuse of the process of law and is a mere ruse to delay the trial. He further states that the FIR was registered on 14.12.2005 charge sheet was filed on 29.11.2006 charges were framed on 18.02.2011 and the application under Section 311 Cr.P.C was filed after the prosecution had ended its examination and the petitioner had been given an opportunity to lead defence. He states that the Trial Court has correctly observed that when the documents have already been examined by the Government appointed expert and when there is no allegation against the said government body with respect to their impartiality then there is no necessity of getting the documents examined by a private expert. He further states that Section 22 of the PC Act provides for a limited application of the Cr.P.C. He places reliance on Section 22(a) of the PC Act which provides that after the evidence is over the accused is required to give in writing a list of personswhom he proposes to examine as his witnesses as well as of the documents on which he proposes to rely. He states that the petitioner has not followed the procedure prescribed in law. He therefore states that permitting the petitioner to examine one more hand writing expert would be superfluous in the face of the facts and circumstances of this case and in fact would delay the mandate of Section 243 Cr.P.C. CRL.M.C. 1721 2021 As stated earlier there is a procedure prescribed in the Cr.P.C for examination of witness. Section 22(a) of the PC Act states that the Cr.P.C would be applicable with certain modifications and Section 22(a) modifies Section 243 Cr.P.C. Section 22(a) of the PC Act reads as under: Section 22 in The Prevention of Corruption Act 1988 a) in sub sectionof section 243 for the words “The accused shall then be called upon” the words “The accused shall then be required to give in writing at once or within such time as the court may allow a list of the personswhom he proposes to examine as his witnesses and of the documents on which he proposes to rely and he shall then be called upon” had been substituted " Section 22(a) of the PC Act prescribes a procedure by which the Petitioner had the right to submit a list of defence witnesses and documents as required. The Petitioner failed to do the same. The petitioner has failed to explain as to what precluded the petitioner from getting the documents examined by a private expert in the first place. 10. The learned SPP appearing for the CBI is therefore justified in contending that permitting the petitioner to examine the hand writing expert without any reason forthcoming from the petitioner as to why the petitioner did not choose to produce a hand writing expert at an earlier stage and further as to why there is any necessity of a second hand writing expert would cause prejudice to the case. 11. Section 311 Cr.P.C does give power to a Court to summon any person as witness or examine any person in attendance though not summoned as a CRL.M.C. 1721 2021 witness or recall and re examine any person already examined if it appears to be essential for adjudication of the case but the said power has to be exercised with care and caution. It cannot be used as a tool to procrastinate trial or as a tool to fill up the lacunae either by the prosecution or by the In Mohanlal Shamji Soni v. Union of India 1991 SuppSCC 271 the Supreme Court while explaining Section 311 Cr.P.C has observed as “ The aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the Court while exercising the power under this section and it should not be used for filling up the lacunae left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. The jurisdiction of the Court must be dictated by exigency of the situation and fair play and good sense appear to be the only safe guides and the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case. ” 13. The impugned Order dated 22.02.2021 has correctly noted that the hand writing expert appointed by the government has given his report and he has been examined and cross examined. No allegations of partiality have CRL.M.C. 1721 2021 been levelled against the said expert. This Court is of the view that the instant petition is merely a ruse to prolong the trial. In light of the aforementioned observations this Court is not inclined to interfere with the impugned order of the Trial Court dated 22.2.2021. 15. Accordingly the present petition is dismissed. AUGUST 23 2021 SUBRAMONIUM PRASAD J CRL.M.C. 1721 2021 |
Union Of India V/S Simplex Infrastructure Ltd | “A negative import that only such acts as are mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done” The factual matrix of this case is the Respondent being the lowest bidder was allotted a contract by the Appellant in respect of work styled as “Construction of Tsunami Reconstruction Project in A & N Islands. SH: Construction of 821 units of permanent shelters (single stories) including internal water supply sanitary installation & internal Electrification in the Island of Teressa.“The contract agreement was entered into between the parties on 5th October, 2006. According to the Appellant, the Respondent failed to adhere to the time frame for completion of the contract.As a result, a show cause notice was issued to the Respondent on 27th April, 2007 to show cause as to why the contract should not be rescinded by invoking clause 3 of the agreement. The Respondent submitted its response thereto on 8th May, 2007.Despite the dismal performance of the Respondent, the Appellant gave it one more opportunity to improve on the performance vide a letter dated 20th June, 2007. ISSUE BEFORE THE COURT:Whether an intra-Court Letters Patent Appeal under clause 15 of the Letters Patent of High Court at Calcutta can be maintained against an order passed by the Single Judge on an application for condonation of delay filed along with the petition (for setting aside an Arbitration Award) under Section 34 of the arbitration an concillation act hereinafter referred to as ‘the Act’)?Whether the prayer for condonation of delay can be accepted?Whether the application deserves to be rejected, is a matter well within the jurisdiction of that court? RATIO OF THE COURT:The Appellant held some points that he had filed a petition for setting aside the arbitral award before the District Court at Port Blair being Appeal No. 2 of 2015. The Respondent, on the other hand, filed an execution proceeding in relation to the self same Award before the High Court at Calcutta being EC Case No.734 of 2015.The Appellant then preferred an application in Appeal No.2 of 2015 before the District Court, for stay of the Award. The District Judge allowed the said application. That fact was brought to the notice of the High Court at Calcutta in execution proceedings initiated by the Respondent. The High Court vide order dated 15th September, 2015, disposed of the Execution petition filed by the Respondent and gave liberty to the Respondent to appear before the District Court and to resist the proceedings pending in that court.The Appellant contends that the Division Bench committed manifest error in entertaining the appeal disregarding the settled legal position restated by this Court in Fuerst Day Lawson Limited (supra). It is submitted that the Act is a self contained code. It provides for a remedy against the arbitral award, including for condonation of delay in filing of the petition under Section 34 of the Act. The order passed by the learned Single Judge on the subject application for condonation of delay in filing petition under Section 34 was, therefore, in relation to the arbitration proceedings.Even if the discretion or for that matter jurisdiction is misapplied and is not in accordance with law, that can be no reason to hold that the order in such proceedings was not under the provisions of the Act as such. It would nevertheless come within the ambit of the Act. Further, such order has not been made appealable under Section 37 of the Act as applicable at the relevant time. The correctness whereof could be assailed before the appropriate forum, but not by way of a Letters Patent Appeal under clause 15. The Appellant has stoutly relied on the dictum of this Court in the case of Fuerst Day Lawson Limited (supra) to buttress this contention.The Respondent, on the other hand, has supported the view taken by the Division Bench in the impugned judgment being in conformity with the dictum of the special bench of the High Court of three-Judges in the case of M/s. Tanusree Art Printers &Anr.(supra). It is submitted that as the order passed by the learned Single Judge is not in terms of the provisions of the Act and thus without jurisdiction, the exercise of powers under clause 15 of the letters patent appeal was just and proper. It was submitted that Section 34 of the Act gives no jurisdiction to the court to condone delay in filing of the petition for setting aside the award, beyond the period prescribed in sub-Section (3) thereof.After expiry of the prescribed period, it is submitted that even though it may be a case of gross hardship caused to the Appellant because of the ill advised remedy pursued before the District Court and virtually being rendered remediless, that is the inevitable consequence of the mandate of Section 34 of the Act. Further, the explanation offered by the Appellant in the application for condonation of delay cannot be reckoned as a sufficient cause in law. Thus, the learned Single Judge committed manifest error in entertaining the same to show indulgence to the Appellant by condoning the delay of 131 days in filing of the petition under Section 34 of the Act.This court held after hearing all the submissions that the efficacy of the provisions of the Act has been expounded by this Court in the case of Fuerst Day Lawson Limited (supra). After analyzing the relevant provisions and the decisions on the subject and in particular the decision in P.S. Sathappan v. Andhra Bank Ltd.[4], it has been held that the Act is a self contained Code relating to arbitration. In paragraphs 88 and 89 of the reported judgment, this Court opined:It is, thus, to be seen that Arbitration Act, 1940, from its inception and right through to 2004 (in P.S. Sathappan) was held to be a self- contained code. Now, if the Arbitration Act, 1940 was held to be a self- contained code, on matters pertaining to arbitration, the arbitration act which consolidates, amends and designs the law relating to arbitration bring it, as much as possible, in harmony with the UNCITRAL Model must be held only to be more so.Once it is held that the Arbitration Act is a self-contained code and exhaustive, then it must also be held, using the lucid expression of Tulzapurkar, J., that it carries with it “a negative import that only such acts as are mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done”. In other words, a letters patent appeal would be excluded by the application of one of the general principles that where the special Act sets out a self-contained code the applicability of the general law procedure would be impliedly excluded.”The court stated that after this decision, there is no scope to contend that the remedy of Letters Patent Appeal was available in relation to judgment of the learned Single Judge in question. This legal position has been restated in the recent decision of this Court (to which one of us was party, Justice Dipak Misra), in the case of Arun Dev Upadhyaya V/s. Integrated Sales Service Ltd &Anr.[5]The Division Bench of the High Court, however, made a fine distinction by holding that the judgment of the learned Single Judge of condoning delay in filing of the petition under Section 34 of the Act was without jurisdiction and not in terms of the provisions of the Act. It is not possible to countenance this approach.The court observed that the issue is squarely answered against the Respondent by the decision of this Court in Fuerst Day Lawson Limited (supra). In that, the Judgment of the learned Single Judge dated 27th April, 2016, was passed on an application purported to be under Section 34(3) of the Act, for condoning delay in filing of the petition for setting aside the arbitral award. Hence, the remedy of Letters Patent Appeal against that decision is unavailable. DECISION HELD BY COURT:The court stated that the order dated 7th November, 2016 passed by this Court directing the Appellant to deposit Rs. 5,00,00,000/- (Rupees Five Crores) in the Registry of this Court and further to invest the same in a short term fixed deposit.The said amount along with interest accrued thereon be transferred to an escrow account linked to the proceedings pending before the High Court at Calcutta being A.P. No.224 of 2016.The High Court will be free to pass appropriate directions regarding disbursement or investment of the said amount. The appeals are allowed in the above terms with no order as to costs | REPORTABLE IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 4892 4893 OF 2017 Arising out of SLPNos. 33363 333616 Union of India …. Appellant M S. Simplex Infrastructures Ltd. .... Respondent JUDGMENT A.M.KHANWILKAR J The short question that arises for consideration in this appeal is: whether an intra Court Letters Patent Appeal under clause 15 of the Letters Patent of High Court at Calcutta can be maintained against an order passed by the Single Judge on an application for condonation of delay filed along with the petitionunder Section 34 of the Arbitration and Conciliation Act 1996Briefly stated the Respondent being the lowest bidder was allotted a contract by the Appellant in respect of work styled as “Construction of Tsunami Reconstruction Project in A & N Islands SH: Construction of 821 units of permanent sheltersRE TRP Kamorata 07 08 638 dated 25th February 2008. The Respondent then invoked the arbitration clause in the agreement pursuant to which the competent authority appointed an Arbitrator vide letter no. 23(6)TRP 08 09 469 dated 27th August 2008. The arbitration hearing concluded on 27th March 2014. An Award was published vide letter No.ARB RKM TRP Case 005 2014 20 dated 27th October 2014 The Appellant received a hard copy of the Award on 31st October 2014 wherein the Arbitrator held that the rescindment order passed by the Appellant was illegal as time was not the essence of the contract and further directed the Appellant to pay the final bill submitted by the Respondent. Aggrieved the Appellant filed a petition for setting aside the arbitral award before the District Court at Port Blair being Appeal No. 15. The Respondent on the other hand filed an execution proceeding in relation to the self same Award before the High Court at Calcutta being EC Case No.734 of 2015. The Appellant then preferred an application in Appeal No.15 before the District Court for stay of the Award The District Judge allowed the said application. That fact was brought to the notice of the High Court at Calcutta in execution proceedings initiated by the Respondent. The High Court vide order dated 15th September 2015 disposed of the Execution petition filed by the Respondent and gave liberty to the Respondent to appear before the District Court and to resist the proceedings pending in that court. The Respondent then filed objections in the proceedings before the District Court. According to the Respondent the appeal before the District Court was not maintainable as the application under Section 9 of the Arbitration Act with regard to the subject matter of the arbitration proceedings was filed before the High Court at Calcutta. It was then contended that the District Court did not have territorial jurisdiction as per Section 42 of the Act and that the petition under Section 34 against the subject award can proceed only before the High Court. The District Court vide order dated 12 th February 2016 accepted that objection. It held that the petition filed by the Appellant under Section 34 of the Act was not maintainable on account of territorial jurisdiction The Appellant then challenged the Award by filing Arbitration Petition No. 2216 before the High Court at Calcutta under Section 34 of the Act and prayed for setting aside the Arbitral Award. The Appellant also filed an application being G.A. No: 958 of 2016 for condoning delay mentioning the circumstances in which the Appellant had to approach the High Court under Section 34 of the Act. The learned Single Judge after hearing the parties allowed the said application for condonation of delay being satisfied that sufficient cause was made out by the Appellant for condoning the delay of 131 days. The said order reads thus “The Court: After considering the submissions made by the learned advocate for the applicant petitioner and upon perusing the application for condonation of delay it appears that sufficient cause has been shown to explain the delay in filing the application being AP No.2216 and as such the delay is Page 5 condoned. The application for condonation of delay being GA No.9516 is accordingly allowed.” Aggrieved by the aforementioned order dated 27th April 2016 the Respondent preferred an intra court letters patent appeal being G.A: No.16516. This appeal was contested by the Appellant inter alia on the ground that such letters patent appeal was not maintainable. The Division Bench adverted to the relevant decisions pressed into service by both the sides including the decision of this Court in Fuerst Day Lawson Limited v. Jindal Exports Limited.1 It has also noted that the order under appeal is not appealable under Section 37 of the Act. The Division Bench however relied on the judgment of the Division Bench of the High Court at Calcutta in the case of Modi Korea Telecommunication Ltd. V. Appcon Consultants Pvt. Ltd.2 and of the special Bench of three Judges in M s. Tanusree Art Printers & Anr. V. Rabindra Nath Pal 3 to hold that the three Judge Bench decision of the High Court was directly on the point and was binding on it. It then proceeded to conclude that the order passed by the learned Single 18 SCC 333 22 CHN 107 32 CHN 213 Judge sensu stricto was not falling within the provisions of the Act and was without jurisdiction. On that logic the Division Bench reversed the order of the learned Single Judge by invoking its jurisdiction under Letters Patent Appeal The Appellant contends that the Division Bench committed manifest error in entertaining the appeal disregarding the settled legal position restated by this Court in Fuerst Day Lawson Limited supra). It is submitted that the Act is a self contained code. It provides for a remedy against the arbitral award including for condonation of delay in filing of the petition under Section 34 of the Act. The order passed by the learned Single Judge on the subject application for condonation of delay in filing petition under Section 34 was therefore in relation to the arbitration proceedings. Even if the discretion or for that matter jurisdiction is misapplied and is not in accordance with law that can be no reason to hold that the order in such proceedings was not under the provisions of the Act as such. It would nevertheless come within the ambit of the Act Further such order has not been made appealable under Section 37 of the Act as applicable at the relevant time. The correctness whereof could be assailed before the appropriate forum but not by way of a Letters Patent Appeal under clause 15. The Appellant has stoutly relied on the dictum of this Court in the case of Fuerst Day Lawson Limitedto buttress this contention The Respondent on the other hand has supported the view taken by the Division Bench in the impugned judgment being in conformity with the dictum of the special bench of the High Court of three Judges in the case of M s. Tanusree Art Printers & Anr supra). It is submitted that as the order passed by the learned Single Judge is not in terms of the provisions of the Act and thus without jurisdiction the exercise of powers under clause 15 of the letters patent appeal was just and proper. It was submitted that Section 34 of the Act gives no jurisdiction to the court to condone delay in filing of the petition for setting aside the award beyond the period prescribed in sub Section thereof. After expiry of the prescribed period it is submitted that even though it may be a case of gross hardship caused to the Appellant because of the ill advised remedy pursued before the District Court and virtually being rendered remediless that is the inevitable consequence of the mandate of Section 34 of the Act. Further the explanation offered by the Appellant in the application for condonation of delay cannot be reckoned as a sufficient cause in law. Thus the learned Single Judge committed manifest error in entertaining the same to show indulgence to the Appellant by condoning the delay of 131 days in filing of the petition under Section 34 of the Act After hearing the counsel for the parties and going through the decisions relied upon by both sides we have no hesitation in allowing this appeal. The efficacy of the provisions of the Act has been expounded by this Court in the case of Fuerst Day Lawson Limited 11 SCC 672 be clear from the following para 10 of the judgment:andof the Arbitration Act as the same is a self contained code relating to 89. It is thus to be seen that Arbitration Act 1940 from its inception and right through to 2004in the case of Arun Dev Upadhyaya V s. Integrated Sales Service Ltd & Anr.5 11. The Division Bench of the High Court however made a fine distinction by holding that the judgment of the learned Single Judge of condoning delay in filing of the petition under Section 34 of the Act was without jurisdiction and not in terms of the provisions of the Act. It is not possible to countenance this approach. The Division Bench in our opinion was not right in observing that the decision in M s. Tanusree Art Printers & Anr. being of a special bench of three Judges of the same Court was binding in spite of having noticed the decision of this Court in Fuerst Day Lawson Limited which is directly on the point and was pressed into service by the Appellant. Neither the Division Bench of the High Court at Calcutta which dealt with the case of Modi Korea Telecommunication Ltd. nor the three Judges Bench which decided the case of M s. Tanusree Art Printers & Anr supra) had the benefit of the judgment of this Court in Fuerst Day Lawson Limitedwhich is later in time. 59 SCC 524 Page 11 12. The Act as applicable to the present case provides for a remedy of appeal in terms of Section 37 of the Act. The same reads “37. Appealable orders. An appeal shall lie from the following orders to the Court authorized by law to hear appeals from original decrees of the Court passing the order namely: a) Refusing to refer the parties to arbitration under section 8 b) granting or refusing to grant any measure under section 9 c) setting aside or refusing to set aside an arbitral award under section 34 2) An appeal shall also lie to a Court from an order of the arbitral tribunal a) accepting the plea referred to in sub section or sub sectionof section 16 or b) granting or refusing to grant an interim measure under 3) No second appeal shall lie from an order passed in appeal under this section but nothing in this section shall affect or take away any right to appeal to the Supreme 13. On a bare reading of this provision it is noticed that remedy of appeal has been provided only against an order of setting aside or refusing to set aside an arbitral award under Section 34(1)of the Act for condoning delay in filing of the petition for setting aside the arbitral award. Hence the remedy of Letters Patent Appeal against that decision is unavailable. The question as to whether the learned Single Judge had rightly exercised the discretion or otherwise could be assailed by the Respondent before this Court by way of special leave petition. But certainly not by way of a Letters Patent Appeal under clause 15 For even if the learned Single Judge may have committed manifest error or wrongly decided the application for condonation of delay that judgment is ascribable to exercise of jurisdiction under Section 34(3) of the Act. In other words whether the prayer for condonation of delay can be accepted or whether the application deserves to be rejected is a matter well within the jurisdiction of that court. 15. The learned counsel for the Respondent was at pains to persuade us that the decision of the learned Single Judge is palpably wrong and cannot be sustained in law. However we cannot permit the Respondent to agitate that plea in the present appeal preferred by the Appellant challenging the impugned decision of the Division Bench. Instead we deem it appropriate to leave all contentions available to both sides open and give liberty to the Respondent to challenge the judgment of the learned Single Judge dated 27th April 2016 in G.A.No.9516 if so advised 16. Accordingly the impugned judgment of the Division Bench of the High Court at Calcutta dated 20th June 2016 passed in G.A.No.16516 in APOT No. 183 2016 in A.P. No. 224 2016 is set aside with liberty to the Respondent to challenge the judgment of the learned Single Judge dated 27th April 2016 in G.A No. 9516 in AP No.: 2216. All contentions available to both sides with regard to the correctness of the Judgment of the Learned Single Judge dated 27th April 2016 are kept open. 17. While parting we may take note of the order dated 7th November 2016 passed by this Court directing the Appellant to deposit Rs. 5 00 00 000 in the Registry of this Court and further to invest the same in a short term fixed deposit. We are informed that the Appellant has complied with the said order and deposited the amount in the Registry. That has been invested by the Registry. The said amount along with interest accrued thereon be transferred to an escrow account linked to the proceedings pending before the High Court at Calcutta being A.P No.2216. The High Court will be free to pass appropriate directions regarding disbursement or investment of the said 18. The appeals are allowed in the above terms with no order as to ….. …..J (Dipak Misra .….. ..J New Delhi Dated: April 13 2017 |
Common intention enough to convict in absence of direct evidence – SC | In the case of Subed Ali And Others Vs The State of Assam [Criminal Appeal NO 1401 of 2012] Supreme Court held that it is not necessary that before a person is convicted on the ground of common intention, he must be actively involved in the physical activity of assault. The accused were charged under Section 34 and 302 of Indian Penal Code, 1860. There were total 5 accused out of which 2 were acquitted on benefit of doubt. The remaining accused were awarded a sentence of life imprisonment along with fine by the sessions court which was further upheld by the High Court. The present appeal has been filed by the accused praying for acquittal contending that the facts were same for acquitted persons and thus they are also liable to have the benefit of doubt. The Respondent- state contended that the findings of the lower courts were correct and that the accused had assaulted the two deceased, one of them died on spot and the other succumbed to his injuries while admitted in the hospital. There were eye-witnesses who have identified the Appellant no 1,2 and 3. The second deceased was injured and tried to flee from the spot but he was chased down by appellant no 3. The incident had taken place after sunset and it was not dark. The Appellant and the witness already knew each other hence, it was not difficult to identify the Appellants. The Appellant contended that appellant no.1 is entitled to acquittal as he cannot be said to have shared any common intention with appellants nos.2 and 3 and who are liable for their individual acts. The credibility of the witnesses was also questioned as it was dark and difficult to see when the incident took place. The Appellant prayed for acquittal of the charge under Section 34 as there was no direct evidence to the assault done by Appellant no 1. The court observed that Common intention consists of several persons acting in unison to achieve a common purpose, though their roles may be different. The role may be active or passive is irrelevant, once common intention is established. The Appellants had waited for the deceased to return from market and had made the deceased halt and then assault was committed as a consequence of an argument. The presence of the mental element or the intention to commit the act if cogently established is sufficient for conviction, without actual participation in the assault. The court referred the case of Surender Chauhan vs. State of Madhya Pradesh, (2000) 4 SCC 110, where it was noticed that absence of a positive act of assault was not a necessary ingredient to establish common intention observing : ‘Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them.’ Therefore, the Court rejected the plea for pardon and held that there is no need to interfere in the conviction by the court. | Judge North Lakhimpur has been affirmed by the High and a default stipulation. Thus the present appeal by the The prosecution alleged that the two deceased Abdul Motin and Abdul Barek were assaulted on 05.08.2005 at Abdul Motin died in the hospital during the course of Shri Gaurav Agrawal learned counsel for the acquitted giving them the benefit of doubt on basis of the and they too are entitled to acquittal on benefit of doubt witnesses P.Ws. 5 6 7 and 9. The occurrence had taken place after darkness had engulfed making identification doubtful relying on the cross examination of P.W.6. P.W.1 any manner or that he also assaulted any one of the two deceased. Thus there is no material to infer common upon the two deceased. The recoveries attributed to the Learned counsel for the State submitted that the eye witnesses P.Ws. 5 6 7 and 9 are consistent with regard to the participation of the appellants in the assault. The lay in wait for the two deceased who were accosted while 5. We have considered the submissions on behalf of the accompanied by P.Ws. 5 6 7 and 9. They were intercepted by the appellants after which the assault followed. Abdul Barek died on the spot. The post mortem report of the above left ankle joint. The wound of the seen in the both bone of the leg. The muscles major blood vessels were also limbs. The body was very pale multiple sharp cuts in 6th lower limbs. The left foot separate from the upper leg and was not found with body at the time of my post 1. Sharp cut in the lower limbs left leg at about 1” above the ankle joint causing Both leg bones skin soft tissues and vessels were cut through causing extensive 8 haemorrhages skin margins. All wounds anterior part at the junction of upper and middle thread. It was obliquely placed and 3. Another sharp cut in middle thread of medial part outer skin caused cut and fracture of right tibia causing sufficient ankle causing sharp cut obliquely down. It was also about 3½” in size causing about 2 3rd separation of ankle of the right foot muscles and vessels and upper part of calcaneus bone was cut through causing Station at 09.00 PM on 05.08.2005 on oral information by P.W.1 who was the Gaonburah that some unknown persons had assaulted the two deceased one of whom died on the Charges were framed against the five accused under Sections 147 341 and 302 IPC. The charge under Section 341 IPC was held not to have been proved against the based on the evidence of P.W.1 and P.W.5 giving them the benefit of doubt with regard to their presence and of the case despite the deposition of the eye witnesses can be of no avail to the appellants in view of the consistent nature of the evidence available against them. Minor vs. State of Punjab 1954 SCR 904 it was held as follows: “8. …But if the facts to be proved and the Section 149 must be held to be a formal the prosecution is considered irrelevant in view of the 10. P.W. 5 was an eye witness accompanying the two time of occurrence for identification. In his cross on the leg with a sharp cutting weapon. The second appellant no.3 but was chased by the accused and caught near the house of Mamud Ali at which point of time the 11. Similarly P.W.6 7 and 9 deposed that appellant no.1 stopped the deceased appellant no 2 assaulted deceased Abdul Barek with a ‘Dao’ who died on the spot. Appellant no.3 assaulted Abdul Motin and injured him. The injured the spot where Abdul Barek was lying. The injured was taken to the hospital and died the same night. The the consistent evidence of P.Ws. 5 7 and 9 that it was in the dusk possible. In any event it is apparent that the them acquittal on any benefit of doubt or parity with the acquitted accused merely because no appeal has been Agrawal that appellant no.1 is entitled to acquittal as he cannot be said to have shared any common intention with shared the common intention. The presence of the mental element or the intention to commit the act if cogently established is sufficient for conviction without actual before a person is convicted on the ground of common plan and acting in concert pursuant to the plan common number of persons deducible from the facts and circumstances of a particular case. The coming together of may be armed the manner of assault the active or passive role played by the accused are but only some of the materials SCC 779 in order to establish common intention it was “12…. The acts committed by different confederates in the criminal action may be participate and engage in the criminal enterprise for instance one may only stand guard to prevent any person coming to the coparticipants actually committing the planned crime. In the case of an offence involving physical violence however it is essential for the application of Section 34 that the person who instigates or aids the present at the actual commission of the crime for the purpose of facilitating or promoting the offence the commission of which is the aim of the joint criminal way or the other facilitate the execution of the common design is itself tantamount to essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby In Nandu Rastogi vs. State of Bihar 8 SCC 9 them stood guard and prevented the prosecution witnesses from intervening is shown that they shared a common intention to commit the offence and in furtherance thereof each one played his act of assault was not a necessary ingredient to establish “11. Under Section 34 a person must be physically present at the actual facilitating or promoting the offence the criminal venture. Such presence of those execution of the common design is itself tantamount to actual participation in the simultaneous consensus of the minds of to bring about a particular result. Such consensus can be developed at the spot 18. Coming to the facts of the present case the appellant deceased had halted. That there was some dispute with regard to money is apparent from the evidence of the witnesses. Abdul Barek died on the spot as a result of the upon him by appellant no.3 after which he tried to flee Appellant no 1 along with the other accused chased him accused persons to the place where Abdul Barek lay commit the offence in question. We therefore find no reason no role or act of assault attributed to him denying the 19. Resultantly we find no reason to interfere with the conviction and sentence of the appellants. The appeal is |
Once bail is granted, it should not be cancelled in a mechanical manner without there being any supervening circumstances: High Court of Delhi | Rejection of bail when bail is applied for is one thing and cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail already granted. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if by reason of supervening circumstances. Once bail is granted, it should not be cancelled in a mechanical manner without there being any supervening circumstances which are not conducive to fair trial. These were stated by High Court of Delhi, consisting Justice Rajnish Bhatnagar in the case of Air Customs vs. Shail Anand & Anr. [CRL.M.C. 2017/2020] on 10.01.2022. The facts of the case are that on the basis of specific intelligence, the officers of Air Customs had recovered and seized 04 watches valued at Rs. 51,55,887 from the possession of the respondents on arrival at T-3 of New Delhi airport by Flight from Dubai to Delhi on 24.09.2020. In their respective voluntary statements tendered under Section 108 of Customs Act, 1962 the persons namely Shail Anand, Tarush Anand, Ankit Madan and Anil Madan inter-alia admitted the recovery, seizure and other incriminating facts. Thereafter, FIR was registered and investigation was taken up. The respondents i.e. Shail Anand, Tarush Anand, Ankit Madan and Anil Madan were granted bail for the offences under sections 132 and 135 of Customs Act, 1962. The Counsel for the petitioner submitted that the learned CMM while granting bail to the respondents did not deal with all the submissions made on behalf of the petitioner department and none of the judgments cited by the petitioner department were taken into consideration. It was further submitted that learned CMM did not appreciate that watches which are case property in the present case are covered by Section 123 of the Customs Act, 1962 and also the plea of the petitioner department that investigation was going on and grant of bail at the initial stage of investigation particularly in economic offences should be deprecated. It was further submitted that the respondents are not only involved in smuggling of wrist watches but are also part of the hawala racket which is a case of international ramification. Therefore, it was prayed that bail granted to the all the respondents should be cancelled. The Counsel for the respondents submitted that there are no malafides in the Impugned Order dated passed by learned CMM as the respondents have already deposited the amount as per direction of the learned CMM, towards the Customs duty. It was further submitted that the watches seized at the airport were already released by customs authority and the penalty imposed on the respondents were paid by them. It was contended that there are two essential conditions mandatory for the maintenance of bail being granted to accused, first, that he shall be available for the trial proceedings and he shall not flee from the hands of justice and second that accused will not tamper with the evidence. Therefore, it was submitted that none of the condition can be violated by the respondents as there are no allegations against the respondents that they ever tried to tamper with the evidence. It was lastly submitted that the cancellation can only be done in cases of supervening circumstances which are totally lacking in the present case. | IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on : 10.01.2022 SHAIL ANAND AND ANR Through: Mr. Satish Aggarwala Sr. SPP and Mr. Gagan Vaswani Advocate .... Petitioner Through: Mr. Akshay Anand Advocate with Ms. Prarthana Gund Ms. Archana and Mr. Tushar Anand CRL.M.C. 2019 2020 and CRL. MA. 15157 2020 .... Petitioner Through: Mr. Satish Aggarwala Sr. SPP and Mr. Gagan Vaswani Advocate ANKIT MADAN AND ANR Through: Mr.Sunil K. Mittal Advocate HON BLE MR. JUSTICE RAJNISH BHATNAGAR RAJNISH BHATNAGAR J These are the petitions filed by the petitioner Customs department under section 482 Cr.P.C. seeking setting aside of order dated Crl.M.C. 2017 2020 and 2019 2020 14.10.2020 by way of which the respondents i.e. Shail Anand and Tarush Anand in Crl. M.C. 2017 2020 and Ankit Madan and Anil Madan in Crl. M.C. 2019 2020 were granted bail for the offences under sections 132 and 135 of Customs Act 1962 2. Brief facts of the case are that on the basis of specific intelligence the officers of Air Customs had recovered and seized 04 watches valued at Rs. 51 55 887 from the possession of the respondents on their arrival at T 3 New Delhi by Flight No. UK 224 dated 23.09.2020 from Dubai to Delhi on 24.09.2020. In their respective voluntary statements tendered under Section 108 of Customs Act 1962 the persons namely Shail Anand Tarush Anand Ankit Madan and Anil Madan inter alia admitted the recovery seizure and other incriminating facts. Thereafter FIR was registered and investigation was taken up I have heard learned counsel for the petitioner learned counsel for the respondents and also perused the reply filed on behalf of respondents It is submitted by the counsel for the petitioner that the learned CMM while granting bail to the respondents did not deal with all submissions made on behalf of the petitioner department and none of the judgments cited by the petitioner department were taken into is further submitted that learned CMM did not appreciate that watches which are case property in the present case are covered by Section 123 of the Customs Act 1962 and also the plea of Crl.M.C. 2017 2020 and 2019 2020 the petitioner department that investigation was going on and grant of the initial stage of investigation particularly in economic offences had been deprecated is further submitted that respondents are not only involved in smuggling of wrist watches but are also part of the hawala racket which is a case of international ramification. Lastly is prayed that bail granted to the all respondents vide order dated 14.10.2020 be cancelled 5. On the other hand is submitted by learned counsel respondents that there are no malafides in the Impugned Order dated 14.10.2020 passed by learned CMM. It is further submitted that respondents have already deposited the amount as per direction of the learned CMM towards the Customs duty. It is further submitted that the watches seized at the airport had already been released vide order dated 16.07.2021 passed by customs authority and the penalty imposed on the respondents have already been paid by them. It is submitted that there are two essential conditions mandatory for the maintenance of bail being granted to accused first that he shall be available for the trial proceedings and he shall not flee from the hands of justice and second that accused will not tamper with the evidence. It is further submitted that none of the condition has been violated by the respondents also there are no allegations against the respondents that they ever tried to tamper with the evidence. It is further submitted that there is no likelihood of tampering with the evidence and accordingly Crl.M.C. 2017 2020 and 2019 2020 the learned CMM has rightly granted bail to the respondents after duly considering the facts of the case. It is further submitted that cancellation can only be done in cases of supervening circumstances which are totally lacking in the present case In this regard Three Judges Bench of Hon ble the Supreme Court in Statevs. Sanjay Gandhi 1978(2) SCC 411 has made the following elemental distinction in defining the nature of exercise while cancelling bail Rejection of bail when bail is applied for is one thing cancellation of bail already granted is quite another. It is easier to reject a bail application in a non bailable case than to cancel a bail already granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if by reason of supervening circumstances it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial Further the Hon ble Supreme Court in Dolat Ram v. State of Haryana 1995) 1 SCC 349 has also laid down guidelines to Courts while deciding the question of cancellation of bail already granted. Para 4 of judgment reads as follows Crl.M.C. 2017 2020 and 2019 2020 “4. Rejection of bail in a non bailable case at the initial stage and the cancellation of bail so granted have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. Generally speaking the grounds for cancellation of bail broadlyare: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner... However bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles it appears were lost sight of by the High Court when it decided to cancel the bail already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non bailable case in the first instance and the cancellation of bail already granted is settled that once bail granted should not be cancelled in a mechanical manner without there being any supervening circumstances which are not conducive to fair trial. It cannot be cancelled on a request from the side of the complainant investigating agency unless and until Crl.M.C. 2017 2020 and 2019 2020 it is established that the same is being misused and it is no longer conducive in the interest of justice to allow the accused any further to remain on bail. No doubt the bail can be cancelled only in those discerning few cases where it is established that a person to whom the concession of bail has been granted is misusing the same In the instant case there are no allegations of any tampering with the evidences. There are also no allegations that the respondents are at flight risk or there is any likelihood of absconding. The petitioner department has not been able to make out a case of supervening circumstances on the basis of which the bail granted to the respondents should be cancelled and nothing has been brought on record to show the respondents have towering personalities that presence out on bail would in any manner investigationof the case or that they are in any manner threat to the fair trial of this case. Nothing has been brought on record that the respondents in any manner have violated the terms and condition of the order granting them bail It is pertinent to mention here that watches which were seized at the airport had already been released vide order dated 16.07.2021 passed by customs authority and also the penalty which was being imposed on the respondents have already been paid by them. Petitioner department also failed to answer that what purpose would be served if the bail is Crl.M.C. 2017 2020 and 2019 2020 cancelled and what further enquiry is to be done after cancellation of bail by taking them into custody. So I see no reason for cancellation of bail of respondents in the present case. Therefore relying upon the judgments Statevs. Sanjay GandhiDolat Ram v. State of Haryanaand also that all the facts and circumstances required for an order of cancellation of bail to be passed are missing in the present case the present petitions along with pending applications are dismissed JANUARY 10 2022 RAJNISH BHATNAGAR J Crl.M.C. 2017 2020 and 2019 2020 Page |
Appeal filed under Section 14A(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act) 1989 allowed, appellants granted anticipatory bail: Karnataka High Court | There is absolutely no mention in the said death note about any of his superiors including the present appellants had ever abused him with caste related insulting words. This was said in the case of Jayraj Acharya vs The State Of Karnataka [CRIMINAL APPEAL NO.527/202] by Justice P.Krishna Bhat in the High Court of Karnataka. The facts of the case are that the complainants son committed suicide by hanging. It is alleged that he was working in Reliance Digital. It was stated in the compliant that the appellants were mentally harassing him and they were abusing him with reference to his caste in his workplace. A case was registered for the offences punishable under Section 306 read with Section 34 and 3(1)(r)(s), 3(2)(v-a) and 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989 against the appellants. The appellants have earlier anticipatory bail petition before the Learned Special Judge, Davanagere which, by the impugned order, came to be rejected. Hence, the appellants filed an appeal under Section 14A(2) of 1989 seeking anticipatory bail and calling in question the order dated 30.01.2021 passed by the Learned II Additional District and Sessions Judge. Learned counsel for the appellants submits contended that the appellants are innocent and they happened to be superior officers of the deceased in the Reliance Digital where deceased was also an employee and the allegations made in the complaint by his mother that these appellants were making caste related abuse to the deceased and that had driven the deceased to commit suicide are entirely baseless and false and therefore, he submits that this appeal is liable to be allowed and appellants are entitled for granting of anticipatory bail On the other hand, learned HCGA has filed his detailed statement of objections and contended that the offences alleged are extremely serious in nature and the complainant has stated that the appellants were making caste related abuse to the deceased who was a member of Scheduled Caste community which had driven him to commit suicide and therefore, these appellants are not entitled for granting anticipatory bail After perusing the entire investigation papers submitted by the learned HCGA, the Court opined that “There is absolutely no mention in the said death note about any of his superiors including the present appellants had ever abused him with caste related insulting words. Further the Investigating Officer has recorded the statement of co-employees of the deceased like Aravind Kumar, Basavaraj R, Shivananda B. etc. Perusal of their statement shows that the deceased was short tempered and he was not open to any advise from his superiors. The offence under Section 306 IPC is not exclusively punishable with death or imprisonment for life”. Furthermore, the Court said that “Taking into consideration, the materials available in the investigation papers, I am of the view that appellants can be granted anticipatory bail inspite of the fact that the offences alleged are under Section 306 read with Section 34 of IPC and 3(1)(r)(s), 3(2)(v-a) and 3(2)(v) of the Act against the appellants”. Hence, the appeal was allowed. | IN THE HIGH COURT OF KARNATAKA BENGALURU DATED THIS THE 23RD DAY OF APRIL 2021 THE HON BLE MR.JUSTICE P.KRISHNA BHAT CRIMINAL APPEAL NO.527 2021 JAYRAJ ACHARYA S O LATE DAMODARA AGED ABOUT 32 YEARS OCC : STORE MANAGER R AT RELIANCE DIGITAL DAVANGERE 577002. LOKESH J S O JAY SHETTY AGED ABOUT 31 YEARS OCC : DEPARTMENTAL MANAGER R AT RELIANCE DIGITAL OPP : DAVANGERE URBAN BANK NEAR ANDANUR CERAMICS DAVANGERE 577006. ABHISHEK M TALWAR S O MAHADEV TALWAR AGED ABOUT 25 YEARS OCC : DEPARTMENT MANAGER DAVANGERE URBAN BANK NEAR ANDANUR CERAMICS DAVANGERE 577006. BY SRI DINESH KUMAR.K.RAO ADV. AND SMT. POOJA KATTIMANI ADV.) … APPELLANTS 2 … RESPONDENTS REP. BY SPP HIGH COURT BUILDING BENGA URU 560 001) THE STATE OF KARNATAKA BY DAVANGERE RURAL POLICE STATION DAVANGERE 577002. BY SRI K. NAGESHWARAPPA HCGP FOR R1 R2 SMT NEELAMAMA W O SHIVAPPA AGED ABOUT 55 YEARS OCC : HOUSEWIFE R AT HALUVARTHI VILLAGE DAVANGERE TALUK DAVANGERE 577 001. THIS CRIMINAL APPEAL IS FILED UNDER SECTION 14A(2) THE SCHEDULED CASTE AND SCHEDULED TRIBE ACT 1989 PRAYING TO SET ASIDE THE IMPUGNED ORDERS DATED 30.01.2021 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE CRL.MISC.NO.900 2020 CRL.MISC.NO.951 2020 AND CRL.MIC.NO.960 2020 AND BE PLEASED TO ALLOW THE APPEAL BY STATTION DAVANAGERE TO ENLARGE THE APPELLANT’S ON ANTICIPATORY BAIL IN THE EVENT OF THEIR ARREST 3 IN CRIME No.323 2020 OF DAVANAGERE RURAL POLICE STATION 3(1)(s) 3(2)(v a) AND 3(2)(v) OF SC ST PENDING ON THE FILE 2ND ADDITIONAL DISTRICT AND SESSIONS JUDGE DAVANAGERE. THIS CRIMINAL APPEAL COMING ON FOR ADMISSION THIS DAY THE COURT DELIVERED THE FOLLOWING: This appeal is filed under Section 14A(2) of Scheduled Castes and Scheduled Tribes Act 1989 by the appellants seeking anticipatory bail and calling in question the order dated 30.01.2021 passed in Crl.Misc.950 2020 by the Learned II Additional District and Sessions Judge Davanagere. 2. It is disclosed that one Hanumantappa son of the complainant committed suicide by hanging during night intervening 15.12.2020 and 16.12.2020 in a room in their family house. It is alleged that he was 4 working in Reliance Digital. It is stated in the compliant that his Manager Jayaram and two other superior officers namely Lokesh and Abhishek were mentally harassing him and they were abusing him with reference to his caste. A case was registered in Crime No.323 2020 in Davanagere Rural Police Station Davanagere for the offences punishable under Section 306 read with Section 34 of IPC and Section 3(1)(r) 3(1)(s) 3(2)(v a) and 3(2)(v) of Scheduled Castes and Scheduled Tribes Act 1989against the appellants. The appellants have earlier anticipatory bail petition before the Learned Special Judge Davanagere in Crl.MIsc.No.950 2020 which by the impugned order came to be rejected. 4. Learned counsel for the appellants submits that these appellants are innocent and they happened to be superior officers of the deceased in the Reliance Digital where deceased was also an employee and the 5 allegations made in the complaint by his mother that these appellants were making caste related abuse to the deceased and that had driven the deceased to commit suicide are entirely baseless and false and therefore he submits that this appeal is liable to be allowed and appellants are entitled for granting of anticipatory bail. Learned HCGA has filed his detailed statement of objections and submits that the offences alleged are extremely serious in nature and the complainant has stated that the appellants were making caste related abuse to the deceased who was a member of Scheduled Caste community which had driven him to commit suicide and therefore these appellants are not entitled for granting anticipatory 6. Learned HCGA has made available for my perusal the entire investigation papers. It discloses that investigation has been completed and draft chargesheet is at the stage of scrutiny for being filed 6 before this Court. The investigation papers contain the death note left behind by the deceased which reads follows: “fêÀ£ÀzÀ°è £À£ÀUÉ §zÀÄPÉÆà CAUÉ ªÀiÁrzÀÄÝ Reliance digital EªÀvÀÄÛ £Á£ÀÄ ¸ÁªÉÇzÉÝ PÁgÀt £À£Àß PÉ®¸À¢AzÀ ©Ãr¹ £À£Àß J¯Áè commitment UÉ ªÉÆøÀ ªÀiÁrzÀÄÝ Reliance digital manager and DM’s £Á£ÀÄ vÀÄA§ D¸É ElÖPÉÆArzÉÝ CzÀPÉÌ J¯Áè zÀPÉÌ vÀA¢zÀÄÝ Reliance Digital F £À£ÀUÉ PÉ®¸À¢AzÁ ©r¹ £À£Àß UÁr PÀAvÀÆ ªÀÄvÀÆÛ £À£Àß EMI UÀ½UÀÆ PÀÄvÀÆÛ vÀAzÀÆ £À£Àß ¸ÁAiÉÆ vÀgÁ ªÀiÁrzÀgÀÆ £À£ÀUÉ EzɯÁè £ÉÆÃr fêÀ£ÀzÀ°è ¨É¸ÀvÀÆÛ £Á£ÀÄ ¸Á¬Äw⤠£À£Àß ¸Á«UÉ Reliance Digital ªÀÄvÀÄÛ C°è£Á Manager PÁgÀt zÀAiÀiÁ«lÄÖ £À£ÀߣÀÄß PÀë«Ä¹. CªÀÄä £À£ÀߣÀÆß PÀë«Ä¸ÀÄ.” 7. There is absolutely no mention in the said EAw ¤ªÀÄä ªÀÄUÀ death note about any of his superiors including the present appellants had ever abused him with caste related insulting words. Further the Investigating Officer has recorded the statement of co employees of the deceased like Aravind Kumar Basavaraj R Shivananda B. etc. Perusal of their statement shows that the deceased was short tempered and he was not open to any advise from his superiors. The 7 offence under Section 306 IPC is not exclusively punishable with death or imprisonment for life. 8. Taking into consideration the materials available in the investigation papers. I am of the view that appellants can be granted anticipatory bail inspite of the fact that the offences alleged are under Section 306 read with Section 34 of IPC and Section 3(1)(r)(s) 3(2)(v a) and 3(2)(v) of the Act against the appellants. Hence the following: The appeal is allowed. • Appellants Accused Nos.1 to 3 are directed to be enlarged on bail in the event of their arrest in Crime No. 323 2020 in Davanagere Rural Police Station on executing a personal bond in a sum of Rs.50 000 each Rupees Fifty Thousand Only) with two solvent sureties for the likesum to the satisfaction of the Court below. • They shall not threaten or tamper with the prosecution witnesses directly or indirectly. 8 • They shall not leave the jurisdiction of the Court below without prior permission from the said Court. • They shall mark their attendance before SHO Davanagere Police Station on the last Sunday of every month between 10.00 a.m. to 5.00 p.m. till the charge sheet is filed. Sd JUDGE |
If the tenancy claim is for any term exceeding one year, the tenancy can be made only by a registered instrument.: Supreme Court of India | If a tenant claims that he is entitled to possession of a Secured Asset for a term of more than a year, it has to be supported by the execution of a registered instrument. if the tenant only relies upon an unregistered instrument or an oral agreement accompanied by delivery of possession, the tenant is not entitled to possession of the secured asset for more than the period prescribed under the provisions of the Transfer of Property Act. This was held by Hon’ble Justice S. Abdul Nazeer and Hon’ble Justice Krishna Murari in the case of Hemraj Ratnakar Salian vs. HDFC Bank Ltd and Ors. [CRIMINAL APPEAL NO(s).843844 OF 2021] on the 17th of August, 2021 before the Hon’ble Supreme Court of India. The brief facts of the case are, HDFC Bank had granted financial facility to respondent nos.2 and 3 of Rs.5,50,00,000/. On 03.04.2013, the Borrowers had mortgaged a property in Mumbai (the Secured Asset) in favour of the Bank with an intention to secure the said credit facility. The accounts of the Borrowers were declared as non- performing assets (NPA) on 31.10.2013. On 25.01.2014, the Bank issued a notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 to the Borrowers. It is the case of the appellant that he is a tenant of the Secured Asset on a monthly rent of Rs.20,000/ since 12.06.2012 with an increase of 5% every year. He has been paying rent regularly to his landlord since inception of his tenancy. The appellant filed Exh.8 application before the Magistrate seeking protection of his possession of the Secured Asset as the Magistrate was ceased with the petition under Section 14 of SARFAESI Act filed by the respondent no.1Bank. Vide Order dated 30.12.2015, the intervention application of the appellant was dismissed by the Magistrate holding that there was no registered tenancy placed on record by the appellant. The present appeal has been filed for restraining HDFC Bank, the first respondent herein, from taking possession of the property in the appellant’s possession. The counsel for the appellant submitted that, the appellant is a protected tenant under the provisions of the Maharashtra Rent Control Act 1999. He has been paying rent regularly to the landlord. He has also paid advance rent till 17.12.2018. There are continuous rent receipts with him from the date of his induction as a tenant. The tenant was residing in the said premises on the basis of an oral tenancy from 12.06.2012. Therefore, he cannot be evicted from the Secured Asset without due process of law. The counsel for the respondent however submitted that, the rent receipt said to have been issued by the landlord for the period from 12.06.2012 to 12.05.2013 is of 12.05.2013 which is after the date of creation of mortgage in favour of the Bank. There is absolutely no material to show that the tenancy was created earlier to the date of mortgage. The tenancy pleaded by the appellant is an oral tenancy. At the time of grant of facility, third-party valuers had confirmed that the Borrowers were staying at the Secured Asset. The Borrowers, while making representation to the Bank, have not claimed that any tenant is staying at the Secured Asset. The tenancy claimed by the appellant is an afterthought which cannot be believed in the facts and circumstances of the case. The learned judges heard the submissions of both the parties and relied on the judgement in Harshad Govardhan Sondagar v. International Asset Reconstruction Co. Ltd. & Ors (2014) 6 SCC 1 wherein, “We may now consider the contention of the respondents that some of the appellants have not produced any document to prove that they are bona fide lessees of the secured assets. We find that in the cases before us, the appellants have relied on the written instruments or rent receipts issued by the landlord to the tenant. Section 107 of the Transfer of Property Act provides that a lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made “only by a registered instrument” and all other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Hence, if any of the appellants claim that they are entitled to possession of a secured asset for any term exceeding one year from the date of the lease made in his favour, he has to produce proof of execution of a registered instrument in his favour by the lessor. Where he does not produce proof of execution of a registered instrument in his favour and instead relies on an unregistered instrument or oral agreement accompanied by delivery of possession, the Chief Metropolitan Magistrate or the District Magistrate, as the case may be, will have to come to the conclusion that he is not entitled to the possession of the secured asset for more than a year from the date of the instrument or from the date of delivery of possession in his favour by the landlord.” | These appeals are directed against the Orders dated by the Chief Metropolitan Magistrate Esplanade Mumbai rejecting HDFC Bank the first respondent herein from taking possession of and 3of Rs.5 50 00 000 Mumbai for short “the Secured Asset”) in favour of the Bank with an The accounts of the Borrowers were declared as non issued a notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002to the Borrowers. It on a monthly rent of Rs.20 000 since 12.06.2012 with an The appellant filed Exh.8 application before the Magistrate seeking protection of his possession of the Secured Asset as the Magistrate was ceased with the petition under Section 14 of 30.12.2015 the intervention application of the appellant was dismissed by the Magistrate holding that there was no registered 6. We have heard learned counsel for the parties. Learned counsel for the appellant would contend that the appellant is a protected tenant under the provisions of the Maharashtra Rent submits that the rent receipt said to have been issued by the landlord for the period from 12.06.2012 to 12.05.2013 is of of the Bank. There is absolutely no material to show that the staying at the Secured Asset. The Borrowers while making representation to the Bank have not claimed that any tenant is is an afterthought which cannot be believed in the facts and are xerox copies of the rent receipts. However in response to the notice issued under Section 13(2) of the SARFAESI Act the Borrowers have sent a very detailed representation wherein they 10. Procedural mechanism for taking possession of the Secured 17 of the SARFAESI Act provides for the right of appeal to any DRT). Section 17 has been amended by Act No. 44 of 2016 short “the Amendment”). Under the Amendment possession can Amendment has come into force w.e.f. 1st September 2016. This Court in Harshad Govardhan Sondagar v. International Asset but even restore the status quo ante. Therefore an alternative order under Section 17 of the SARFAESI Act even before the amendment to Section 17 of the SARFAESI Act. However given 16 SCC 1 22 SCC 782 Court from the year 2016 we propose to examine the case on merits without directing the appellant to avail the alternative In Harshad Govardhan Sondagar this Court has “36. We may now consider the contention of the respondents that some of the appellants have not produced any document to prove that they are bona fide lessees of the secured assets. We find that in the cases before us the appellants have relied on the written instruments or rent receipts issued by the landlord to the tenant. Section 107 of the Transfer of Property Act provides that a lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent can be made “only by a registered instrument” and all other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Hence if any of the appellants claim that they are entitled to possession of a secured asset for any term exceeding one year from the date of the lease made in his favour he has to produce proof of execution of a registered instrument in his favour by the lessor. Where he does not produce proof of execution of a registered instrument in his favour and instead relies on an unregistered instrument or oral agreement accompanied by delivery of possession the Chief Metropolitan Magistrate or the District Magistrate as the case may be will have to come to the conclusion that he is not entitled to the possession of the secured asset for more than a year from the date of the instrument or from the date of delivery of possession in his favour by the 12. A ThreeJudge Bench of this Court in Bajarang Shyamsunder all decisions of this Court in relation to the right of a tenant in possession of the secured asset has held that if a valid tenancy such tenant’s possession cannot be disturbed by the secured has to satisfy the conditions of Section 65A of the Transfer of Property Act 1882. If a tenant claims that he is entitled to instrument or an oral agreement accompanied by delivery of 39 SCC 94 “24.1. If a valid tenancy under law is in existence even prior to the creation of the mortgage the tenant’s possession cannot be disturbed by the secured creditor by taking possession of the property. The lease has to be determined in accordance with Section 111 of the TP Act for determination of leases. As the existence of a prior existing lease inevitably affects the risk undertaken by the bank while providing the loan it is expected of banks creditors to have conducted a standard due diligence in this regard Where the bank has proceeded to accept such a property as mortgage it will be presumed that it has consented to the risk that comes as a consequence of the existing tenancy. In such a situation the rights of a rightful tenant cannot be compromised under the SARFAESI Act proceedings 24.2. If a tenancy under law comes into existence after the creation of a mortgage but prior to the issuance of notice under Section 13(2) of the SARFAESI Act it has to satisfy the conditions of Section 65 A of the TP Act 24.3. In any case if any of the tenants claim that he is entitled to possession of a secured asset for a term of more than a year it has to be supported by the execution of a registered instrument. In the absence of a registered instrument if the tenant relies on an unregistered instrument or an oral agreement accompanied by delivery of possession the tenant is not entitled to possession of the secured asset for more than the period prescribed under Section 107 of the TP Act.” of a “tenantinsufferance” visàvis SARFAESI Act due to the The operation of the Rent Act cannot be extended to a “tenantinsufferance” visàvis the read with Section 13(13) of the SARFAESI Act. A the legislature to provide for Section 13(13) which has a valuable role in making the SARFAESI Act a selfexecutory instrument for debts recovery Moreover such an interpretation would also violate the bona fide of the tenant as there is no good or sufficient appellant he is a tenant of the Secured Asset from 12.06.2012 copies of the rent receipts and the first xerox copy of the rent according to the appellant he is a “tenantinsufferance” therefore the tenancy has been claimed to be renewed in terms of Section way of sale lease or otherwise after issuance of the notice under Section 13(2) of the SARFAESI Act and admittedly no such |
Prosecution must attract the ingredients of all the offences alleged: Kerala High Court | The trial court must consider whether the materials produced by the prosecution, prima facie, attract the ingredients of all the offences alleged against the petitioner. The petitioner is at liberty to raise before the court all his contentions for a fair trial. This contention had been upheld by the Kerala High Court presided by J. R. NARAYANA PISHARADI in the case of BABU vs. STATE OF KERALA [Crl.Rev.Pet.No.603 OF 2020]. The revision petitioner is the first accused in the case C.C.No.3 of 2017 pending in the Court of the Enquiry Commissioner and Special Judge, Kottayam. The offences alleged against the accused are punishable under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 and under Sections 409, 468, 471, 477A and 120B of the IPC. The petitioner was the Taluk Supply Officer, Cherthala and the accused was the Rationing Inspector, Cherthala South. The other accused was the licensee of the ration shop. The petitioner and the other two accused entered into a conspiracy and pursuant to such conspiracy, with the intention of allowing the second accused to get pecuniary gain, the petitioner and the accused allotted excess quantity of rice to the accused Santhosh in the Andyodaya Anna Yojana (AAY) scheme and thereby caused loss to the Government. The accused Santhosh had made unauthorised indents for rice on the basis of ration cards which were really not included in the AAY scheme. It was alleged that the petitioner and the accused, without verifying the indents and preparing the quarterly abstracts, allotted the rice. It was also alleged that the accused had forged and fabricated records relating to the ration shop for allotment of excess rice to the licensee of the shop. The petitioner filed an application under Section 239 of the CrPC, 1973 seeking discharge. The petitioner has filed this revision petition challenging the legality and propriety of the order passed by the trial court, dismissing the application for discharge filed by him. The honorable court contended, “Therefore, inspite of the fact that the application for discharge filed by the petitioner does not contain the contentions raised before this Court, I find that another opportunity can be granted to him to raise all his contentions before the trial court with regard to the plea for discharge made by him. The matter has to be remanded to the trial court especially for the reason that the trial court has not considered whether the materials produced by the prosecution, prima facie, attract the ingredients of all the offences alleged against the petitioner. Consequently, the revision petition is allowed.” The court further held, “The impugned order, as far as it relates to the dismissal of the application for discharge filed by the petitioner, is set aside. The trial court shall consider afresh the application for discharge filed by the petitioner and pass appropriate orders in accordance with law. The petitioner is at liberty to raise before the trial court all his contentions with regard to his plea for discharge, including contentions which are not specifically raised or mentioned by him in the discharge application filed by him.” | IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI THURSDAY THE 11TH DAY OF FEBRUARY 2021 22ND MAGHA 1942 Crl.Rev.Pet.No.603 OF 2020 AGAINST THE PROCEEDINGS DATED 27.07.2020 IN CRL.M.P.2614 17 IN CC 3 2017 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE KOTTAYAM S O C.K. NARAYANAN AGED 61 KANAKAN HOUSE WARD NO.4 CHERTHALA STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM 682 031 SRI B JAYASURYA SR PP THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05.02.2021 THE COURT ON 11.02.2021 PASSED THE FOLLOWING R.NARAYANA PISHARADI J Crl.R.P.No.6020 Dated this the 11th day of February 2021 O R D E R The revision petitioner is the first accused in the case C.C.No.3 of 2017 pending in the Court of the Enquiry Commissioner and Special Judge Kottayam The offences alleged against the accused in the case are punishable under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the Prevention of Corruption Act 1988and under Sections 409 468 471 477A and 120B of the Indian Penal Code The prosecution case as far as the petitioner is concerned is as follows. The petitioner was the Taluk Supply Officer Cherthala during the period from 25.08.2006 to 10.12.2007. The accused M.Abdul Samad was the Rationing Inspector Cherthala South during the period from 16.04.2007 to 30.11.2007. The accused K.S.Santhosh was the licensee of the ration shop ARD No.129. The petitioner and the other two accused mentioned above entered into a conspiracy and pursuant to such conspiracy with the intention of allowing the accused Santhosh to get pecuniary gain the petitioner and the accused Abdul Samad allotted excess quantity of rice to the accused Santhosh in the Andyodaya Anna Yojana scheme and thereby caused loss to the Government. It is alleged that the accused Santhosh had made unauthorised indents for rice on the basis of ration cards which were really not included in the AAY scheme. It is alleged that the petitioner and the accused Abdul Samad without verifying the indents and without preparing the quarterly abstracts allotted the rice. It is also alleged that the accused had forged and fabricated records relating to the ration shop ARD No.129 for allotment of excess rice to the licensee of The petitioner filed an application as Crl.M.P.No.2614 2017 in the trial court under Section 239 of the Code of Criminal Procedure 1973seeking The application for discharge filed by the petitioner was considered by the trial court along with the application for the same relief filed by another accused. As per the order dated 27.7.2020 the trial court dismissed both applications The petitioner has filed this revision petition challenging the legality and propriety of the order passed by the trial court dismissing the application for discharge filed by him Heard learned counsel for the petitioner and the learned Public Prosecutor Learned counsel for the petitioner has made available a copy of the application for discharge filed by the petitioner in the trial court for perusal of this Court. The prayer for discharge is made in this application on the following grounds. The charge does not contain the alleged amount misappropriated by the petitioner. The petitioner took charge as Taluk Supply Officer at Cherthala only during October 2006. He has not committed any act as alleged by the prosecution.The entire materials produced by the prosecution prima facie do not make out a case to frame charge against the petitioner There is no allegation against the petitioner that he misappropriated money. Therefore there was no question of mentioning any such amount in the charge filed by the Vigilance and Anti Corruption Bureau against him. Misappropriation was made of the rice allotted in the AAY scheme. It was allegedly committed by the licensee of the ration shop. The allegation against the petitioner is that he allowed the licensee of the ration shop to commit such misappropriation and it was done pursuant to the conspiracy hatched by the accused. It is stated that the petitioner took charge as Taluk Supply Officer Cherthala only during October 2006. The prosecution case as far as the petitioner is concerned is with regard to the acts or omissions on his part during the period from 25.08.2006 to 10.12.2007. This period covers the period during which the petitioner was the Taluk Supply Officer at Cherthala 11. The only other contention raised by the petitioner is that the materials produced by the prosecution prima facie do not make out a case against him. The trial court has referred to the statements of the witnesses CW6 CW9 and CW20 to CW38 and on the basis of such statements found that prima facie the materials would show that by the act of the petitioner and the other accused in the case the accused Santhosh the licensee of the ration shop could manage misappropriation of rice thereby causing loss to the Government. Learned counsel for the revision petitioner has not made any attempt before this Court to refer to the statements of the aforesaid witnesses and to show that such statements do not form sufficient basis for the allegations raised against the petitioner attracting the ingredients of the offences alleged against him. 12. The attempt made by the petitioner in the revision petition filed before this Court is to show that it was the duty and the responsibility of the Rationing Inspectors concerned to prepare the list of persons who were eligible to get rice in the AAY scheme and to include the ration cards of such persons in that scheme and to prepare the necessary documents in that regard. It is also the contention of the petitioner that the conversion of the ration cards to the AAY scheme had taken place before he took charge as Taluk Supply Officer at Cherthala and that his predecessors in office had already approved such conversion and that he had no occasion to check the same as there was no conversion of ration cards during his tenure as Taluk Supply Officer 13. None of the above contentions finds a place in the discharge application filed by the petitioner in the trial court. The impugned order does not show that such contentions had been advanced before the trial court by the petitioner even during the hearing of the application for discharge. 14. While considering the application for discharge filed by the petitioner along with the application for the same relief which was filed by another accused the trial court failed to consider the specific allegations against the petitioner separately to find out whether there are materials produced by the prosecution to show his involvement in the conversion of the ration cards to AAY scheme and allotment of excess rice to the licensee of the ration shop ARD No.129 and also preparation of the relevant documents in that regard. Paragraph 11 of the impugned order would show that the trial court found the petitioner as well as the other accused who filed the application for discharge prima facie liable for the misappropriation of rice made by the licensee of the It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material taken on its face value disclose the existence of the ingredients necessary to constitute the offence 2 SCC 561 In the instant case the trial court has not specifically considered whether the materials produced by the prosecution if accepted as true would attract the ingredients of the offences alleged against the petitioner. It is incumbent upon the trial court to evaluate the materials produced by the prosecution on the premise that they are true and to find out whether they bring out or disclose the ingredients of the offences alleged against the accused. The trial court has not undertaken such an exercise The trial court has not stated whether all the offences or only some of the offences alleged against the petitioner are prima facie made out against him It is not necessary for an accused to file an application seeking the relief of discharge KHC 297). Therefore inspite of the fact that the application for discharge filed by the petitioner does not contain the contentions raised before this Court I find that another opportunity can be granted to him to raise all his contentions before the trial court with regard to the plea for discharge made by him. The matter has to be remanded to the trial court especially for the reason that the trial court has not considered whether the materials produced by the prosecution prima facie attract the ingredients of all the offences alleged against the petitioner. 18. Consequently the revision petition is allowed. The impugned order as far as it relates to the dismissal of the application for discharge filed by the petitioner is set aside. The trial court shall consider afresh the application for discharge filed by the petitioner and pass appropriate orders in accordance with law. The petitioner is at liberty to raise before the trial court all his contentions with regard to his plea for discharge including contentions which are not specifically raised or mentioned by him in the discharge application filed by him R.NARAYANA PISHARADI JUDGE PETITIONER S EXHIBITS TRUE COPY OF THE ORDER DATED 27.7.2020 IN CRL M.P 2615 17 OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE KOTTAYAM TRUE COPY OF THE ORDER DATED 15.12.2017 IN M.C. 165 15 TRUE COPY OF THE ORDER OF THE FOOD AND CIVIL SUPPLY DEPARTMENT DATED NIL TRUE COPY OF THE RELEVANT PORTION OF THE CIVIL SUPPLIES MANUAL TRUE COPY OF THE CIRCULAR DATED RESPONDENTS EXHIBITS : NIL TRUE COPY PS TO JUDGE |
Submission of Documents in Support of Claim Necessary for Consideration: High Court of Jammu & Kashmir and Ladakh | The necessity of service of shortfall or stop work notice, under Section 452 of the Code of Criminal Procedure, 1973, was considered in an Order by the HIGH COURT OF JAMMU & KASHMIR AND LADAKH, before a bench consisting of Hon’ble Justice Mr. Cheekati Manavendranath Roy, in the WRIT PETITION No.643 OF 2022, on 21.01.22. The Order in the present case was made following a writ petition for a Mandamus filed to declare the action of respondents 2 and 3 in making an attempt to stop the construction work being carried on by the petitioner as per the building permit dated 05.11.2021, as illegal, arbitrary and violative of principles of natural justice and consequently sought direction to the respondents not to interfere with the construction of the building. The petitioner claimed to be the absolute owner of the house bearing Door No.21-47-4/2 to an extent of 106 Sq. yards in Sy.No.43/2A1 of Dallivanipalem, Zone-6, Pedagantyada Mandal in Visakhapatnam District. It was asserted that she had applied for building permission to construct a house and accordingly building permission dated 05.11.2021 was accorded to her and that she had been proceeding with the construction of the building as per the said building permission. The stated grievance was that while the said construction work was going on, the respondents had been abruptly making efforts to stop the construction work without issuing any notice to her and without following due process of law. Therefore, she is before this Court by way of filing this writ petition seeking the aforesaid relief. It was also submitted that no shortfall notice or stop work order was served on the petitioner personally; and further that a notice under Section 452 of the Code of Criminal Procedure, 1973, is required to be given if at all there is any violation of building permission and without resorting to the said due process of law, the respondents are not justified in stopping the construction work of the petitioner. The respondents 2 and 3 submitted that only on-line building permission was granted and during the post verification, that it came to light that the petitioner has been encroaching on to the open space of the layout without any title to the said property and as such, shortfall notice was issued on 04.01.2022 along with stop work order which was served on licenced technical person of the petitioner, who applied for building permission. Therefore, it was duly submitted that the petitioner was not entitled to the relief claimed in the writ petition. It was additionally averred that according to the Municipal Corporation, during the post verification, it was found that the petitioner has been encroaching on to the open site of the approved plan without any title to the said property. The High Court of Jammu & Kashmir and Ladakh, held that in the said facts and circumstances of the case, the Writ Petition is disposed of with a direction to the petitioner to submit her explanation to the shortfall notice issued to her within two weeks from the date of this order along with documents in support of her claim. The respondent-authorities were mandated to consider the said explanation and thereafter pass appropriate orders according to law within two weeks from the date of receiving the explanation from the petitioner. Till such time, the respondent-authorities were prohibited from interfering with the construction. | The necessity of service of shortfall or stop work notice under Section 452 of the Code of Criminal Procedure 1973 was considered in an Order by the HIGH COURT OF JAMMU & KASHMIR AND LADAKH before a bench consisting of Hon’ble Justice Mr. Cheekati Manavendranath Roy in the WRIT PETITION No.643 OF 2022 on 21.01.22. The Order in the present case was made following a writ petition for a Mandamus filed to declare the action of respondents 2 and 3 in making an attempt to stop the construction work being carried on by the petitioner as per the building permit dated 05.11.2021 as illegal arbitrary and violative of principles of natural justice and consequently sought direction to the respondents not to interfere with the construction of the building. The petitioner claimed to be the absolute owner of the house bearing Door No.21 47 4 2 to an extent of 106 Sq. yards in Sy.No.43 2A1 of Dallivanipalem Zone 6 Pedagantyada Mandal in Visakhapatnam District. It was asserted that she had applied for building permission to construct a house and accordingly building permission dated 05.11.2021 was accorded to her and that she had been proceeding with the construction of the building as per the said building permission. The stated grievance was that while the said construction work was going on the respondents had been abruptly making efforts to stop the construction work without issuing any notice to her and without following due process of law. Therefore she is before this Court by way of filing this writ petition seeking the aforesaid relief. It was also submitted that no shortfall notice or stop work order was served on the petitioner personally and further that a notice under Section 452 of the Code of Criminal Procedure 1973 is required to be given if at all there is any violation of building permission and without resorting to the said due process of law the respondents are not justified in stopping the construction work of the petitioner. The respondents 2 and 3 submitted that only on line building permission was granted and during the post verification that it came to light that the petitioner has been encroaching on to the open space of the layout without any title to the said property and as such shortfall notice was issued on 04.01.2022 along with stop work order which was served on licenced technical person of the petitioner who applied for building permission. Therefore it was duly submitted that the petitioner was not entitled to the relief claimed in the writ petition. It was additionally averred that according to the Municipal Corporation during the post verification it was found that the petitioner has been encroaching on to the open site of the approved plan without any title to the said property. The High Court of Jammu & Kashmir and Ladakh held that in the said facts and circumstances of the case the Writ Petition is disposed of with a direction to the petitioner to submit her explanation to the shortfall notice issued to her within two weeks from the date of this order along with documents in support of her claim. The respondent authorities were mandated to consider the said explanation and thereafter pass appropriate orders according to law within two weeks from the date of receiving the explanation from the petitioner. Till such time the respondent authorities were prohibited from interfering with the construction |
Mere application of mind by P.P is not enough to invoke section 321 of Cr.P.C : Sikkim High Court | The essential requirements that need to be fulfilled in order for a public prosecutor to obtain consent from the court to withdraw a petition in light of no case being made out under section 321 of the Cr.P.C were illustrated by the High Court of Sikkim at Gangtok. The single bench consisting of Justice Bhaskar Raj Pradhan pronounced this judgement in the matter of State of Sikkim v Asal Kumar Thapa & Ors., [Crl. Rev. P. No. 3 of 2020]. It was alleged that the respondents have indulged in corrupt practices and cause wrongful, pecuniary loss of Rs.8,48,675/- to the Government of Sikkim. A petition has been filed by the Public Prosecutor (hereinafter, P.P) under Section 321 Cr.P.C. before the learned Special Judge, P.C. Act, 1988 at Gangtok, seeking consent from the Hon’ble court for the withdrawal of the case from prosecution. The P.P alleged that withdrawing this case would save the precious time of the court could also be considered public policy or public interest since no case has been made out against the accused after thorough investigation. The P. P relied upon the judgment of Sheonandan Paswan vs. State of Bihar & Ors., [(1987) 1 SCC 288] passed by the Supreme court wherein it was held, “in which it was held that when an application under section 321 Cr.P.C. is made, it is not necessary for the court to assess the evidence to discover whether the case would end in conviction or acquittal”. The court opined that even though the quality of evidence might be poor, the records would, at least at this stage, indicate otherwise. Further, it relied on the judgment of the Supreme Court in Bairam Muralalidhar vs. State of Andhra Pradesh, [2014) 10 SCC 380] and Niranjan Hemchandra Sashittal & Anr. vs. State of Maharashtra, [(2013) 4 SCC 642] while declining consent to withdraw the particular petition. The bench relied on the case of Sheonandan Paswan vs. State of Bihar & Ors., [(1987) 1 SCC 288], referred by the P.P as well to state that, “section 321 Cr.P.C. The majority dismissed the appeal preferred by Sheonandan Paswan. It was held that section 321 Cr.P.C. needs three requisites to make an order under it valid: (1) the application should be filed by a public prosecutor or assistant public prosecutor who is competent to make an application for withdrawal, (2) he must be in charge of the case and (3) the application should get the consent of the court before which the case is pending. A perusal of the impugned order leads one to conclude that it was only the third requisite, i.e., the consent of the court before which the case was pending, which was not fulfilled”. While dismissing the requests of the P.P, the court held, “If the learned Special Public Prosecutor was of the opinion that there was certain evidence lacking, section 173(8) Cr.P.C. would have come to the rescue of the investigating agency. This ground again fall short of the requirement mandated by section 321 Cr.P.C. The petition filed by the learned Special Public Prosecutor records only his opinion that because of certain lacunae, the prosecution would be rendered futile. The materials placed do not even remotely indicate to this Court that the petition under section 321 Cr.P.C. was made in good faith or in the interest of public policy and justice. The facts reveal that after an elaborate investigation, charge- sheet had been filed against the public servants for criminal misconduct and other offences. The purpose for the enactment of the PC Act, 1988 is to eradicate corruption and provide deterrent punishment when criminal culpability is proven. That is the paramount public interest in corruption cases. | THE HIGH COURT OF SIKKIM : GANGTOK Criminal Revisional Jurisdiction) SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE Crl. Rev. P. No. 20 State of Sikkim Through Vigilance Department Versus ….. Revisionist Asal Kumar Thapa The then Director Food Security & Agriculture Development Department Government of Sikkim Gangtok East Sikkim. Kiran Kumar Pradhan The then Additional Director Food Security & Agriculture Development Department Government of Sikkim Gangtok East Sikkim. Jagdish Pradhan The then Additional Director Food Security & Agriculture Development Department Government of Sikkim Gangtok East Sikkim. ….. Respondents Accused Persons 1. Application for revision petition under section 397 401 of the Code of Criminal Procedure 1973. Dr. Doma T. Bhutia Public Prosecutor with Mr. S.K. Chettri Additional Public Prosecutor for the Revisionist. Mr. Ajay Rathi Advocate for the Respondents. Date of hearing : 15.10.2020 Date of order : 06.11.2020 Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:45:19 +05 30 JUDGMENT Bhaskar Raj Pradhan J. The State of Sikkim has preferred the revision petition seeking to invoke the powers of this court under sections 397 and 401 2 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others of the Code of Criminal Procedure 1973 against the order dated 13.12.2019 passed by the learned Special JudgeEast Sikkim at Gangtok in Sessions Trial Case No. 01 of 2019 vs. Asal Kumar Thapa & Others]. On 15.11.2016 a First Information Report was lodged at the Sikkim Vigilance Police Station Gangtok against respondent no.1 the then Director Food Security & Agriculture Development Department respondent no.2 the then Additional Director FS & ADD respondent no.3 Joint Director IPM INM FS & ADD and Ringzing Doma Bhutia Senior Accounts Officer cum D&DO FS & ADD Lily Bhutia Manager Srijanasil Labour Women Cooperative Society Pasangkit Lepcha President Srijanasil Labour Women Cooperative Society and others unknown for commission of offences under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act 1988and under section 13(1)(d) read with section 13(2) of the PC Act 1988. According to the charge sheet as no evidence could be found to Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:46:03 +05 30 attribute criminality to the acts of Rinzing Doma Bhutia Pasangkit Lepcha and Lily Bhutia a prayer was made for their discharge. It was further prayed that Pasangkit Lepcha and Lily Bhutia may be taken as 3 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others approvers in the case. Amongst the 59 persons listed as prosecution witnesses Rinzing Doma Bhutia Lily Bhutia and Pasangkit Lepcha were also listed. The statements recorded under section 161 Cr.P.C. were also part of the charge sheet. 59 documentary evidence formed the list of documents filed along with it. According to the learned Public Prosecutor charges are yet to be framed. The charge sheet alleged that the above dishonest and fraudulent acts of the respondents had caused undue wrongful pecuniary loss of Rs.8 48 675 to the Government of Sikkim and corresponding undue pecuniary gain to themselves. A petition under section 321 Cr.P.C. was filed by the learned Special Public Prosecutor on 27.11.2019 before the learned Special Judge P.C. Act 1988 East Sikkim at Gangtok for consent to withdraw the case from prosecution. A copy of the instructions of the State Government dated 22.10.2019 was also annexed thereto. The petition was heard by the learned Special Judge and vide the impugned order dated 13.12.2019 it was held that the court was not inclined to accord consent for withdrawal from prosecution and the petition was rejected. While doing so after hearing the learned counsel for the parties the learned Special Judge referred to the judgment of the Supreme Court in Bairam Muralalidhar vs. State of Andhra Pradesh1 and Niranjan Hemchandra Sashittal & Anr. vs. Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:46:49 +05 30 State of Maharashtra2 and of the High Court of Himachal Pradesh in Capt. Ram Singh vs. State of Himachal Pradesh & Ors.3. The learned 110 SCC 380 24 SCC 642 3 2016 Cri. L.J 44694 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others Special Judge held that no case for according consent for withdrawal from prosecution had been made out by the learned Special Public Prosecutor. The learned Special Judge further held that although it was urged that the quality of evidence was poor the records would at least at this stage indicate otherwise. The learned Special Judge held that the statements of witnesses like Tshering Ongmu Wangchuk Laxmi Rai Bina Gurung Sanjit Tamang Pabel Majumdar and Lily Bhutia would give altogether different picture then sought to be projected. The learned Special Judge refrained from making any further observation lest it may affect the merits of the Heard Dr. Doma T. Bhutia learned Public Prosecutor for the Revisionist and Mr. Ajay Rathi learned counsel for the case. respondents. The learned Public Prosecutor submitted that a perusal of the impugned order would reveal that the learned Special Judge had failed to consider whether the learned Special Public Prosecutor applied his independent application of mind and acted in good faith and in public interest which is a sine qua non of section 321 Cr.P.C. Dr. Doma further submitted that the learned Special Judge ought to have considered that the petition was also supported by the instructions from the SecretaryHome Department that the State Government had taken a decision to withdraw the case in accordance with section 321 Cr.P.C. It was urged that the learned Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:47:37 +05 30 Special Public Prosecutor had opined that it would be expedient to withdraw from prosecution as the materials placed on record by the 5 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others investigation would not lead to successful trial causing wastage of the court’s precious time as well as unnecessary sufferings of the accused persons. Thus it was contended that the impugned order was unreasonable and unsustainable in law and deserved to be set aside in the interest of justice and in public interest. It was the case of the learned Public Prosecutor that saving the precious time of the court could also be considered public policy or public interest. Dr. Doma referred to and relied upon the judgment of the Supreme Court in Sheonandan Paswan vs. State of Bihar & Ors.4 in which it was held that when an application under section 321 Cr.P.C. is made it is not necessary for the court to assess the evidence to discover whether the case would end in conviction or acquittal. Mr. Ajay Rathi to supplement the arguments made by the learned Public Prosecutor placed the judgment of the Supreme Court in Abdul Karim & Others vs. State of Karnataka & Others5 where the Supreme Court explained the principle underlying section 321 Cr.P.C. Section 397 Cr.P.C. mandates that the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior criminal court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness legality or propriety of any finding sentence or order recorded or passed and as to the regularity of any proceedings of such Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:48:22 +05 30 inferior court. It is settled that the scope of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in the proceedings. 41 SCC 288 58 SCC 710 6 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others Section 321 Cr.P.C provides thus: “321. Withdrawal from prosecution. The Public Prosecutor or Assistant Public Prosecutor in charge of a case may with the consent of the Court at any time before the judgment is pronounced withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried and upon such withdrawal a) if it is made before a charge has been framed the accused shall be discharged in respect of such offence or offences b) if it is made after a charge has been framed or when under this Code no charge is required he shall be acquitted in respect of such offence or offences: Provided that where such offence i) was against any law relating to a matter to which the executive power of the Union extends or ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act 1946iii) involved the misappropriation or destruction of or damage to any property belonging to the Central Government or iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty and the Prosecutor in charge of the case has not been appointed by the Central Government he shall not unless he has been permitted by the Central Government to do so move the Court for its consent to withdraw from the prosecution and the Court shall before according consent direct the Prosecutor to produce before it the the Central to withdraw A perusal of section 321 Cr.P.C. reflects that the consent Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:49:20 +05 30 of the court is mandatory before the public prosecutor in charge of a case withdraws from the prosecution of any person either generally or in respect of anyone or more of the offences for which he is tried. 7 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others The Constitutional Bench of the Supreme Court in Sheonandan Paswan examined inter alia the provision of section 321 Cr.P.C. The majority dismissed the appeal preferred by Sheonandan Paswan. It was held that section 321 Cr.P.C. needs three requisites to make an order under it valid: the application should be filed by a public prosecutor or assistant public prosecutor who is competent to make an application for withdrawal he must be in charge of the case andthe application should get the consent of the court before which the case is pending. A perusal of the impugned order leads one to conclude that it was only the third requisite i.e. the consent of the court before which the case was pending which was not fulfilled. The Supreme Court also held that the impugned order giving consent under section 321 Cr.P.C. was a revisable order and that the revisional court considers the materials only to satisfy itself about the correctness legality and propriety of the findings sentence or order and refrains from substituting its own conclusion on an elaborate consideration of evidence. It was further held that since section 321 Cr.P.C. does not give any guidelines the grounds on which a withdrawal application can be made such guidelines have to be ascertained with reference to decided cases under the section as Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:50:27 +05 30 well as its predecessor’s section 494. It was held that State of Bihar vs. Ram Naresh Pandey6 is a landmark case which has laid down the law on the point with precision and certainty. In the said judgment while discussing the role of the court the Supreme Court observed: 6 AIR 1957 SC 389 8 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others In Abdul Karimthe Supreme Court held: “92. .. His discretion in such matters has necessarily to be exercised with reference to such material as is by then available and it is not a prima facie judicial determination of any specific issue. The Magistrate s functions in these matters are not only supplementary at a higher level to those of the executive but are intended to prevent abuse. Section 494 requiring the consent of the court for withdrawal by the Public Prosecutor is more in line with this scheme than with the provisions of the Code relating to inquiries and trials by court. It cannot be responsibility for a prima facie determination of a triable issue. For instance the discharge that results therefrom need not always conform to the standard of ‘no prima facie case’ under Sections 209(1) and 253(1) or of ‘groundlessness’ under Sections 209(2) and 253(2). This is not to say that a consent is to be lightly given on the application of the Public Prosecutor without a careful and proper scrutiny of the grounds on which the application for consent is made.” to place on the court the process of the application suffers “18. The law as it stands today in relation to applications under Section 321 is laid down by the majority judgment delivered by Khalid J. in the Constitution Bench decision of this Court in Sheonandan Paswan v. State of Bihar1 SCC 288 : 1987 SCC82] . It is held therein that when an application under Section 321 is made it is not necessary for the court to assess the evidence to discover whether the case would end in conviction or acquittal. What the court has to see is whether the application is made in good faith in the interest of public policy and justice and not to thwart or law. The court after considering the facts of the case has to see from such improprieties or illegalities as would cause manifest injustice if consent was given. When the Public Prosecutor makes an application withdrawal after taking into consideration all the material before him the court must exercise its judicial discretion by considering such material and on such consideration must either give consent or decline consent. The section should not be construed to mean that the court has to give a detailed reasoned order when it gives consent. If on a reading of the order giving consent a higher court is satisfied that such consent was given on an overall consideration of the material available the order giving consent has necessarily to be upheld. Section 321 contemplates consent by the court in a supervisory and not an adjudicatory manner. What the court must ensure is that the application for withdrawal has been properly made after independent consideration by the Public Prosecutor and in furtherance of public interest. Section 321 enables the Public Prosecutor to withdraw from the prosecution of any accused. Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:51:31 +05 30 9 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others law therefore The discretion exercisable under Section 321 is fettered only by a consent from the court on a consideration of the material before it. What is necessary to satisfy the section is to see that the Public Prosecutor has acted in good faith and the exercise of discretion by him is proper. 19. The Government may have ordered directed or asked a Public Prosecutor to withdraw from a prosecution it is for the Public Prosecutor to apply his mind to all the relevant material and in good faith to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution. In turn the court has to be satisfied after considering all that material that the Public Prosecutor has applied his mind independently thereto that the Public Prosecutor acting in good faith is of the opinion that his withdrawal from the prosecution is in the public interest and that such withdrawal will not stifle or thwart the process of law or cause manifest injustice. 20. It must follow that the application under Section 321 must aver that the Public Prosecutor is in good faith satisfied on consideration of all relevant material that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice. The material that the Public Prosecutor has considered must be set out briefly but concisely in the application or in an affidavit annexed to the application or in a given case placed before the court with its permission in a sealed envelope. The court has to give an informed consent. It must be satisfied that this material can withdrawal of the Public Prosecutor from the prosecution will serve the public interest but it is not for the court to weigh the material. The court must be satisfied that the Public Prosecutor has considered the material and in good faith reached the conclusion that his withdrawal from the prosecution will serve the public interest. The court must also consider whether the grant of consent may thwart or stifle the course of law or result in manifest injustice. If upon such consideration the court accords consent it must make such order on the application as will indicate to a higher court that it has done all that the law requires it to do before granting consent.” the conclusion On the touchstone of the laws so well established this Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:52:49 +05 30 Court shall now examine the petition as well as the impugned order refusing to grant consent to be satisfied as to its correctness legality or propriety. The said petition reads: 10 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others That the aforementioned case is at its initial stage of trial before this Hon’ble Court. That while going through the case papers relating to this case including the charge sheet and the evidences relied on by the investigating agency in the case it has been noticed that the nature and quality of evidences placed on record by the investigating agency in support of the case are such that the trial of the case if allowed to continue is likely to end in discharge acquittal of the accused broadly reasons hereinunder a) The star Prosecution witnesses in the case namely Smt. Rinzing Doma Smt. Passangkit Lepcha and Smt. Lily Bhutia who were themselves partners in the offence and co accused in the case have been impleaded as Prosecution witnesses this case without following the procedure laid down in Section 306 Cr.P.C. b) This defect in investigation renders the testimony of such witnesses inadmissible in evidence. c) The questioned documents therein including the questioned writings and signatures of the investigating agency in support of the case have been examined by the Government of Questioned Documents of Regional Forensic Science Laboratory Saramsa which is under the Department of Police Govt. of Sikkim and hence not an independent body like the Central Forensic Science Laboratory which is the competent authority to accrediteForensic Science Laboratories in the country. d) For the reason at above the certain vital documents relied on by the investigating agency in support of the case are likely to be rendered inadmissible in evidence to the detriment of the Prosecution case. e) The instant prosecution case also suffers the vice of withholding witnesses whose evidence is vital for success of the case. In order to come to a just and proper finding on the guilt of the accused persons in this case it is necessary to examine whether the CIPMC training programme initiated and organized by the accused persons in the instant case was technically identical or different from the one earlier organized by the CIPMC Govt. of India. The accused persons would be proved to be guilty only if Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:54:21 +05 30 11 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others there are evidences on record to prove similarity in the two training programmes. The investigation report in the case lacks these particulars thereby leaving a lacuna in the Prosecution case benefit of which will ultimately go to the accused persons. in view of the above defects in the prosecution case the trial of the accused in the case is likelyend in their discharge acquittal. That in view of the above the entire legal proceedings in the matter if allowed to continue is likely to be a futile exercise at the cost of harassment to the accused persons and witnesses consumption of precious time of this Hon’ble Court and loss of other men sic ‘man’) hours and therefore not likely to serve the interest of administration of justice. That the State Government of Sikkim has also desired this case to be withdrawn from Prosecution in the interest of administration of Justice. A letter to his sic ‘this’) effect received by the undersigned Special Public Prosecutor Protocol) Home from Secretary Department Government of Sikkim is filed as an Annexure herewith. In the circumstances this Hon’ble Court may be placedto allow the State to withdraw this case from Prosecution in the interest of fair and just administration of justice. On a perusal of the petition it is noticed that the learned Special Public Prosecutor desired to withdraw the case prosecution on the ground that the case papers produced were such that if the trial of the case was allowed to continue was likely to end in discharge acquittal of the respondents. It was also asserted that therefore it was likely to be “a futile exercise at the cost of harassment to the accused persons and witnesses consumption of precious time of this honourable court and loss of other men hoursand therefore not likely to serve the interest of administration of justice”. Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:55:39 +05 30 Besides the learned Special Public Prosecutor also stated that the Government of Sikkim had also desired the case to be withdrawn in the interest of administration of justice. 12 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others The letter of the Secretary Home Department Government of Sikkim dated 22.10.2019 addressed to the learned Special Public Prosecutor is quoted hereinbelow: “GOVERNMENT OF SIKKIM HOME DEPARTMENT No. 10 528 LD 2019 777 Date: 22 10 19 Shri N.P. Sharma Special Public Prosecutor District & Sessions Court Sichey East Sikkim at Gangtok. Subject: Withdrawal of Sessions TrialCase No. 019. Sir I am directed to inform you that the State Government has taken a decision to withdraw the above mentioned case from prosecution in accordance with the provisions under Section 321 of the Code of Criminal Procedure 1973. Therefore I am directed to request you to kindly convey the decision of the State Government to the Hon’ble Court and withdraw the case from prosecution against all the accused and also submit a report in the matter to this office. This is for your kind information and necessary action. Yours sincerely SecretaryHome Department Government of Sikkim Fax No. 03592 202721 Email: [email protected]” The instructions dated 22.10.2019 by the Secretary Protocol) Home Department Government of Sikkim to the learned Special Public Prosecutor conveys only the decision of the State Government to withdraw the case from prosecution with a further direction to convey that decision to the court and after doing so to submit a report. The said instructions does not reflect the reasons for directing the learned Special Public Prosecutor to do so. Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:56:53 +05 30 The petition under section 321 Cr.P.C. has not averred that the learned Special Public Prosecutor is in good faith satisfied 13 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others on consideration of all relevant material that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice. The Supreme Court in Abdul Karim supra) had held that the application under section 321 Cr.P.C. must aver so. The learned Special Public Prosecutor has enumerated the relevant material examined by him. It was therefore vital for the learned Special Judge to examine the reasons enumerated by the learned Special Public Prosecutor in the petition and come to a conclusion whether or not to grant consent. For the said purpose the learned Special Judge was required to satisfy himself that the material placed by the learned Special Public Prosecutor could reasonably lead to the conclusion that his withdrawal from prosecution would serve public interest. The learned Special Judge was also to consider whether the grant of consent may thwart or stifle the courts of law or result in manifest injustice. The first ground taken by the learned Special Public Prosecutor was that the star prosecution witnesses namely Rinzing Doma Bhutia and Lily Bhutia who were themselves partners and co accused in the case had been impleaded as prosecution witnesses without following the procedure laid down in section 306 Cr.P.C. and this defect in investigation renders the testimony of such witnesses inadmissible in evidence. Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:58:14 +05 30 At this point it is relevant to note that as per the learned Public Prosecutor the case is at its initial stage and charges are yet to 14 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others be framed. The charge sheet filed by the Investigating Officer prays for making Pasangkit Lepcha and Lily Bhutia approvers in the case. This prayer is yet to be considered by the learned Special Judge. Section 306 Cr.P.C. provides that with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which the section applies the court at any stage of the investigation or inquiry into or the trial of the offence may tender a pardon to such person on certain conditions enumerated therein. Thus it is seen that the anxiety of the learned Special Public Prosecutor that testimonies of the said witnesses would be rendered inadmissible as the procedure laid down in section 306 Cr.P.C. had not been followed was premature. The law itself mandates that the offenders could be tendered pardon even at the stage of trial which trial had not even begun. The next ground taken by the learned Special Public Prosecutor was that the questioned documents including the questioned writings and signatures of the respondents herein had been examined by the Government Examination of Questioned Documents of Regional Forensic Science Laboratory Saramsa which is under the Department of Police Government of Sikkim and hence not an independent body like the Central Forensic Digitally signed by BHASKAR RAJ Date: 2020.11.06 17:00:05 +05 30 Science Laboratorytraining programme initiated and organised by the respondents was technically identical or different 16 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others from the earlier ones organised and that they would be proved guilty only if the evidences on record proved similarity in the two programmes. It was his opinion that the investigation report lacked these particulars thereby leaving a lacuna in the prosecution case. If the learned Special Public Prosecutor was of the opinion that there was certain evidence lacking section 173(8) Cr.P.C. would have come to the rescue of the investigating agency. This ground again fall short of the requirement mandated by section 321 Cr.P.C. The last ground taken was that the State Government desired that the present case be withdrawn. In Abdul Karimit has been clearly held that the law is though the government may have ordered directed or asked the public prosecutor to withdraw from prosecution it is for the public prosecutor to apply his mind to all the relevant material and in good faith to be satisfied thereon that public interest will be served by his withdrawal from the prosecution. The petition filed by the learned public prosecutor does not record the satisfaction of the learned Special Public Prosecutor having examined the relevant material and in good faith being satisfied that a public interest would be served by his withdrawal from the prosecution. The petition filed by the learned Special Public Prosecutor records only his opinion that because of certain lacunae the prosecution would be BHASKAR RAJ Digitally signed by BHASKAR RAJ Date: 2020.11.06 17:03:56 +05 30 rendered futile. The materials placed do not even remotely indicate to this Court that the petition under section 321 Cr.P.C. was made in good faith or in the interest of public policy and justice. The learned Special Judge has examined the materials and opined that the statement of witnesses recorded by the prosecution gives an altogether 17 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others different picture than what was suggested by the learned Special Public Prosecutor and in such circumstances has declined to grant consent. The facts reveal that after an elaborate investigation charge sheet had been filed against the public servants for criminal misconduct and other offences. The purpose for the enactment of the PC Act 1988 is to eradicate corruption and provide deterrent punishment when criminal culpability is proven. That is the paramount public interest in corruption cases. In Niranjan Hemchandra Sashittal it has been held by the Supreme Court that an attitude to abuse the official position is an anathema to the basic tenets of democracy for it erodes the faith of the people in the system and creates an incurable concavity in the rule of law. Sans the mandatory averment of the learned Special Public Prosecutor as required under section 321 Cr.P.C. and as held above it is difficult to hold that the proposed withdrawal by the learned Special Public Prosecutor would not stifle or thwart the process of law or cause manifest injustice. In Sheonandan Paswan the Supreme Court held that the power of the public prosecutor to withdraw from prosecution under section 321 Cr.P.C. is not absolute and unrestricted and that it has to be controlled and guided power or else it will fall foul of Article 14 of the Constitution of India. It was further held that once prosecution is launched its relentless course only be halted on sound consideration germane to public justice and it is not left to the sweet Digitally signed by BHASKAR RAJ Date: 2020.11.06 17:06:15 +05 30 will of the state or the public prosecutor to withdraw from prosecution. In the present case the learned Special Judge was of the view that manifest injustice would be caused if consent was given. This court on thorough examination of the material placed is of the view that the 18 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others grounds taken in the petition was in pursuance to the direction of the to withdraw from prosecution without properly determining if the withdrawal from prosecution would be in public interest. The impugned order passed by the learned Special Judge refusing to grant consent is correct legal and proper. None of the grounds enumerated in the petition individually or collectively permits this court to express an opinion that the withdrawal was sought for in public interest and it was not to stifle or thwart the process of law or The Criminal Revision Petition therefore fails and is Consequently I.A. No. 20 stands disposed. Digitally signed by BHASKAR RAJ Date: 2020.11.06 17:08:12 +05 30 Bhaskar Raj Pradhan ) Judge cause manifest injustice. Approved for reporting : Yes : Yes Internet |
The incident having occurred prior to amendment, the preamended provision will have to be taken note: Supreme Court | Taking into consideration all facts including that no material is available on record to indicate that the appellant has any criminal antecedents and that he is also a father of five children, it appears that there is no reason to apprehend that the appellant would indulgence similar acts in future as held by the Hon’ble Supreme Court through the learned bench lead by Justice A.S. Bopanna in the case of Manoj Mishra @ Chhotkau v. The State of Uttar Pradesh [CRIMINAL APPEAL NO.1167 OF 2021] (Arising out of SLP(Criminal) No. 7828/2019) The brief facts leading to the conviction and sentence of the appellant is that the father of the prosecutrix filed a written report before the police alleging therein that one Ramasre had enticed his daughter aged about 14 years on 02.08.2013 and had taken her away. In the said complaint, it was further alleged that Raksharam, Nangodiya and Manoj Kumar alias Chhotkau i.e., the appellant herein had cooperated with him in the alleged incident. An FIR was lodged under Sections 363 and 366 IPC. The prosecutrix was found by the police and brought back for medical examination. The case was investigated and a charge sheet was filed under Sections 363, 366, 376 and 506 of IPC and sections 3 and 4 of POCSO Act. The trial court having analysed the said evidence which was tendered before it, arrived at the conclusion that the charge alleged against the accused was proved. Accordingly, the accused were sentenced to punishment for the offences under Section 363, 366, 376D, 506 IPC along with Section 4 of POCSO Act. The appellant had assailed the said judgment before the High Court in Criminal Appeal No.1102/2017. The learned Judge while adverting to the evidence tendered before the trial court had reappraised the same and had arrived at the conclusion that the appellant had raped the prosecutrix number of times after being enticed away by him. The appellant therefore claiming to be aggrieved by the judgment passed by the learnedJudge of the High Court is before this Court in this appeal. The learned counsel for the appellant while seeking to contend that the trial court and the High Court had committed an error in convicting and upholding the conviction seeked to refer to the contradictions in the very manner in which the complaint was initiated and the various statements made by the prosecutrix herself with regard to the nature of the incident as also her age. He further submits, in the facts and circumstance, the conviction under Section 376D IPC is not justified and said provision ought not to have been invoked as it does not qualify to be a gang rape. The learned standing counsel for the State of Uttar Pradesh contends though there may be certain discrepancies in the various statements but the same cannot qualify as contradictions and in that circumstance when PW1, PW2 and PW3 have all stated with regard to the incident in support of the prosecution and when there is categorical medical examination to indicate that the prosecutrix was pregnant, the charge would stand established. In such circumstance when the father of the prosecutrix has indicated the age as 14 years and the doctor also has indicated the age to be around 16 years, the contention of the consensual sex will not be acceptable. After hearing the learned counsel on behalf of the respective parties at length, the Hon’ble Court held “As noted the other three accused apart from the appellant are the siblings and their father Raksharam has been acquitted by the trial court. In that circumstance, the charge of gang rape has not been established with convincing evidence. However, having already noted that the incident of rape alleged had been established, it would be a case to convict the appellant under Section 376 of IPC. However, the conviction handed down by the trial court and confirmed by the High Court under Section 363, 366 and under Section 4 of POCSO Act and the sentence as ordered thereunder would not call for interference. On arriving at the conclusion that the appellant is liable to be convicted under Section 376 IPC and not under Section 376 D IPC, the appropriate sentence to be imposed needs consideration.” | dated 14.03.2018 passed by the High Court of Judicature at the appellant by the Additional Sessions Court and Special report dated 09.08.2013 at 22:35 hours before the police alleging therein that one Ramasre alias Siri had enticed his her away. In the said complaint it was further alleged that the appellant herein had cooperated with him in the alleged incident. An FIR was lodged in Crime No.625 2013 under and a charge sheet was filed under Sections 363 366 376 and of Protection of Children from Sexual Offences Act 5 years rigorous imprisonment with fine of Rs.5 000 for the offence under of Rs.25 000 for the offence under Section 376D IPC 2 years rigorous imprisonment with fine of Rs.2 000 under Section 506 IPC and 7 years rigorous imprisonment with fine of Rs.7 000 for the offence under Section 4 of POCSO imposed and the sentence for the offence under the said provisions were ordered to run concurrently through the the accused Raksharam was acquitted on holding that the High Court in Criminal Appeal No.1102 2017. The learned court had reappraised the same in the background of the contentions that were urged and in that light had arrived at the conclusion that the appellant had raped the prosecutrix prosecution evidence that the appellant was involved in the commission of the crime. The judgment of conviction and sentence was accordingly confirmed. The appellant therefore 5. We have heard Mr. Anoop Prakash Awasthi learned counsel appearing for the appellant Mr. Parmanand Pandey learned standing counsel for the State of Uttar Pradesh and The learned counsel for the appellant while seeking to contend that the trial court as also the High Court had made by the prosecutrix herself. It is contended that the statement was recorded on 10.08.2013 he has alleged that Ramasre alias Siri had enticed his minor daughter and his that even the prosecutrix has made contradicting statements having gone with Ramasre alias Siri it only indicates that it was consensual and in any event the appellant has been stated with regard to the incident in her crossexamination nor the evidence tendered by the prosecutrix as PW3 was examination report has stated about the prosecutrix being pregnant and the foetus being of 2023 weeks that by itself contention. Alternatively it is contended that even if the and when she herself has stated that she was 20 years and also when PW4 the doctor in her crossexamination has would not be sustainable. Even otherwise in the facts and circumstance the conviction under Section 376D IPC is not The learned standing counsel for the State of Uttar may be certain discrepancies in the various statements the incident in support of the prosecution and when there is was pregnant the charge would stand established. It is contended that in such circumstance when the father of the also has indicated the age to be around 16 years the In the light of the above we have taken note of the framed against the accused more particularly against the appellant the parents of the prosecutrix and the prosecutrix regard to the same. Though reference was made to the to Mumbai as per the very statement recorded by the prosecutrix under Section 164 Cr.PC. In that circumstance what would be relevant is the statement and the evidence tendered by the prosecutrix as PW3 before the trial court Though certain discrepancies were referred to by the learned counsel for the appellant in the manner the prosecutrix had described the incident to contend that as per her own evidence tendered by the prosecutrix as PW3 is essentially with regard to the physical relationship she had with the her to be pregnant. She has further stated that in that coaccused and got her married to Ramasre alias Siri by In that background the fact that the appellant had physical relationship with the prosecutrix on more than one parents when it had happened for the first time about four months earlier but was brought to their notice when her point as to whether the charges as framed would stand established. It is no doubt true that the prosecutrix in her deposition has stated that on the day of the incident the appellant Ramasre alias Siri Nangodiya etc. had caught hold of her. However there is no specific indication as to whether to that they having assisted the appellant in enticing and of to Ramasre alias Siri. What is also to be taken note of is that the said Ramasre alias Siri and Nangodiya are siblings being the sons of Raksharam who was acquitted by the trial court. To establish common intention on their part in 11. From the evidence tendered by PW2 to PW3 more the prosecutrix it would disclose that she had examined the prosecutrix at 7 pm on 19.08.2013. She has stated that the victim who was unmarried was fully grown up and on pregnancy. The medical report was exhibited as K2. The K4. In the crossexamination she has referred to the age of could be 17 to18 years as per general variations no definite opinion to that effect has been given by her. In the cross marginal variation with regard to the number of weeks the same is kept in the backdrop the statement of the first time four months earlier which is an approximate to the statement made under Section 164 Cr.PC and the contact with her against her will. In such circumstance the evidence of the prosecutrix and the medical evidence would 12. The question which would however arise for our same. The evidence of PW3 i.e. the prosecutrix is not parking his vehicle besides the road and asked for her he did not yield. Therefore insofar as the incident of rape attributed to the appellant it does not disclose that all the accused had committed rape on her or had the common taken away by all the accused. In that regard except stating that she was carried to the home of a lady who they were is alleged to have aided has either been apprehended or by the prosecution is against the appellant and the other such the truthfulness of the incident is highly present accusedappellant only and that too four This also gives a reason for enticing her away and 26. To conclude the prosecutrix was raped by the away by him and also before the incident the truthfulness or reliability of her statement is acceptance of her testimony. In the instance the commission of alleged crime against the prosecutrix circumstances in which the charge of rape and enticement against the accusedappellant cannot be levelled. The reason given by the trial court for 14. Further when the prosecutrix was traced based on the already noted that the incident of rape alleged had been Section 376 of IPC. However the conviction handed down by punishable under Section 506 IPC. In respect of the said charge we do not find that there is any supporting evidence that view we are or of the opinion that the conviction and sentence under Section 506 imposed by the trial court and 16. On arriving at the conclusion that the appellant is liable 376 D IPC the appropriate sentence to be imposed needs consideration. The incident in question is based on the noted that Section 376 has been amended w.e.f. 21.04.2018 hand is of 2013 and the conviction of the appellant was on provides that a person committed of rape shall be punished record to indicate that the appellant has any criminal reason to apprehend that the appellant would indulgence similar acts in future. In that circumstance we deem it appropriate that the sentence of 7 years would have been sufficient deterrent to serve the ends of justice. From the custody certificate dated 05.12.2017 issued by the Jail Superintendent District Jail Bahraich it is noticed that the more than 8 years which shall be his period of sentence. As such he has served the sentence imposed by us except The conviction under Section 506 IPC is set D IPC is modified. The appellant is instead convicted under Section 376 IPC and is sentenced for the period undergone. The fine and default sentence as imposed by the trial Since the custody certificate dated 20.09.2013 indicates that the appellant has undergone Pending application if any shall stand disposed |
‘Loss of Consortium’ in Motor Accident claim can be awarded to children and parents | The Hon’ble Supreme court of India in New India Assurance Co Ltd. V. Somwati [Civil Appeal No. 3093 of 2020] it was held by the Hon’ble court that in case of Motor Accident Claims, Compensation for loss of Consortium can be awarded to Children and Parent also. The bench of Hon’ble Justice Ashok Bhushan and R. Subhash Reddy while examining the legal question as to “whether it is only the wife who is entitled to a consortium or the consortium can be awarded to children and parents also” observed that “The expression ‘compensation’ is a comprehensive term which includes a claim for the damages. Compensation is by way of atonement for the injury caused.” The apex court examined various judgements and noted that “It is relevant to notice the judgment of this Court in United India Insurance Ltd. which was delivered shortly after the above Three-Judge Bench judgment of Sangeeta Arya specifically laid down that both spousal and parental consortium are payable which judgment we have already noticed above.” The court further referred to the Black’s Law Dictionary and stated that the “The word ‘consortium’ has been defined in Black’s Law Dictionary, 10th edition. Black’s law dictionary also simultaneously notices the filial consortium, parental consortium, and spousal consortium in the following manner:- “Consortium: The benefits that one person, esp. A spouse is entitled to receive from another, including companionship, cooperation, affection, aid, financial support, and (between spouses) sexual relations a claim for loss of consortium. Filial consortium A child’s society, affection, and companionship given to a parent. Parental consortium A parent’s society, affection, and companionship given to a child. Spousal consortium A spouse’s society, affection and companionship gave to the other spouse.” | IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.3093 OF 2020 ARISING OUT OF SLP(C) NO. 23478 OF 2019 THE NEW INDIA ASSURANCE ...APPELLANT SMT. SOMWATI AND OTHERS ...RESPONDENTS CIVIL APPEAL NO.3094 OF 2020 ARISING OUT OF SLP(C) NO. 4801 OF 2020 THE NEW INDIA ASSURANCE ...APPELLANT SMT. SANGITA AND OTHERS ...RESPONDENTS CIVIL APPEAL NO.3095 OF 2020 ARISING OUT OF SLP(C) NO. 4643 OF 2020 THE NEW INDIA ASSURANCE ...APPELLANT AZMATI KHATOON AND OTHERS ...RESPONDENTS CIVIL APPEAL NO.3096 OF 2020 ARISING OUT OF SLP(C) NO. 5441 OF 2020 CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED ...APPELLANT UMARANI AND OTHERS ...RESPONDENTS CIVIL APPEAL NO.3097 OF 2020 ARISING OUT OF SLP(C) NO. 6381 OF 2020 THE NEW INDIA ASSURANCE ...APPELLANT SMT. PINKI AND OTHERS ...RESPONDENTS CIVIL APPEAL NO.3098 OF 2020 ARISING OUT OF SLP(C) NO. 7556 OF 2020 THE NEW INDIA ASSURANCE ...APPELLANT NANAK CHAND AND OTHERS ...RESPONDENTS CIVIL APPEAL NO.3099 OF 2020 ARISING OUT OF SLP(C) NO. 8250 OF 2020 THE ORIENTAL INSURANCE SMT. RINKU DEVI AND OTHERS ...RESPONDENTS ...APPELLANT JUDGMENT ASHOK BHUSHAN J These appeals raising common questions of law have been heard together and are being decided by this common judgment. For deciding these appeals it is sufficient to notice the facts in detail in Civil Appeal No … 2020(arising out of SLP(C)No.23478 of 2019) New India Assurance Company Limited Versus Smt. Somwati and Others and brief facts in other appeals All these appeals have been filed by three Insurance Companies i.e. New India Assurance Company Limited Cholamandalam MS General Insurance Company Ltd. and The Oriental Insurance Company Ltd. questioning the judgments of the High Courts arising out of the award by Motor Accident Claims Tribunal with regard to the compensation awarded in favour of the claimants under two heads i.e. “Loss of Consortium” and “loss of love and Civil Appeal NO … 2020(arising out of SLP(C)No.23478 of 2019) New India Assurance Company Limited versus Smt. Somwati and Others Ram Jiyawan the husband of Smt. Somwati died in a Motor Vehicle accident on 06.12.2001 leaving behind his widow Smt. Somwati and seven minor children. Claim petition No.7 of 2002 was filed under Section 166 of Motor Vehicles Act 1988 claiming compensation of Rs.15 25 000 . The MACT by award dated 22.03.2003 allowed a claim of Rs 1 67 000 with 9% interest. An appeal was filed by Smt. Somwati Devi and others in the High Court being F.A.F.O.No.1894 of 2003. The High Court allowed the appeal of the claimants and awarded a compensation of Rs.12 54 000 . Against the judgment of the High Court dated 25.02.2019 this appeal has been filed by the Insurance Company. The grant of compensation under two heads has been challenged in this appeal i.e. item No.and viii) which are to the following effect: “(vi)Loss of love and affection Rs.4 00 000 Loss of Parental Consortium to Rs.2 80 000 of the impugned judgment which reads as under “Loss of love and affection=Rs 4 00 000 New India Assurance Company Limited Versus Sangita Devi and Others Sanjay Kumar husband of the respondent Sangeeta Devi died of Motor Vehicle accident on 12.01.2015. Claim Petition bearing MACP No.862 of 2016 was filed by the respondents which claim petition was allowed by Motor Accident Claims Tribunal granting a compensation of Rs.17 71 000 with interest of 9%. Claimants filed an appeal in the High Court. The High Court following the judgment of this Court in Magma General Insurance Company ltd. Versus Nanu Ram @ Chuhru Ram and Ors. 2018) 18 SCC 130 granted compensation for loss of love and affection at the rate of Rs.50 000 to each of eight claimants and similarly under the head ‘Loss of consortium’ at the rate of Rs.40 000 to all the eight claimants. Aggrieved by the judgment of the Delhi High Court Insurance Company has filed appeal challenging the order of the High Court Civil Appeal No 2020(arising out of SLP(C)No.46420) New India Assurance Company Limited Versus Azmati Khatoon and Others Mohd. Hasibul Bassan died in a Motor Vehicle accident on 29.10.2007. Claim Petition was filed by respondents which has been allowed by Motor Accident Claims Tribunal granting a compensation of Rs.17 32 776 with interest. The appellant filed an appeal in the High Court. The High Court granted compensation under the head ‘loss of love and affection’ at the rate of Rs.50 000 to each seven claimants and Rs.40 000 each to seven claimants under the head ‘loss of consortium’. Aggrieved by the judgment of the Delhi High Court Insurance Company is in appeal. Civil Appeal No … 2020 Cholamandalam Ms General Insurance Company Limited Versus Umarani and Others The deceased Krishnasamy met with a vehicular accident on 07.09.2014 who subsequently died. Claim petition was filed by the respondents which has been allowed by Motor Vehicle Accident Compensation Tribunal granting compensation of Rs.13 60 000 Appeal was filed by the Insurance Company. The award under the head ‘loss of consortium’ an amount of Rs.One Lakh and award under the head ‘loss of love and affection’ an amount of Rs. Three Lakhs was confirmed by the High Court which is challenged by Insurance Company in this appeal. Civil Appeal No 2020(arising out of SLP(C)No.63820) New India Assurance Company Limited Versus Smt. Pinki and Others 10. One Dinesh Kumar met with a motor vehicle accident on 11.06.2014 and died. Claim Petition filed by the respondents was allowed by the Motor Accident Claims Tribunal granting an amount of Rs.13 01 776 . Claimants filed an appeal before the High Court which enhanced the compensation. The High Court granted compensation under the head ‘loss of love and affection’ Rs.50 000 each to four claimants and under the head ‘loss of consortium’ at the rate of Rs.40 000 each to four claimants. Aggrieved by the judgment of the High Court Insurance Company is in this appeal Civil Appeal No 2020(arising out of SLP(C)No.75520) New India Assurance Company Limited Versus Nanak Chand and Others 11. Gaurav died in a motor vehicle accident on 23.09.2010. Claim petition was filed by the parents of the deceased which was allowed granting compensation of Rs.4 83 348 . Claimants filed an appeal in the High Court which was allowed. The High Court granted compensation of Rs.50 000 each to both the claimants under the head ‘loss of love and affection’ and Rs.40 000 each to both the claimants under the head ‘loss of consortium’ Aggrieved by the judgment of the High Court this appeal has been filed Civil Appeal No 2020(arising out of SLP(C)No.8250 of 2020) The Oriental Insurance Company Limited Versus Smt. Rinku Devi and Others 12. Birbal Kumar met with an accident on 27.07.2008 resulting in his death. Claim petition filed by the respondents claiming Rs.Twenty lakhs was allowed by the Motor Accident Claims Tribunal granting compensation of Rs.5 80 000 . Insurance company filed an appeal. The Tribunal has awarded filial consortium at the rate of Rs.40 000 to each of the claimants i.e. wife two children and father totaling Rs.1 60 000 . The High Court in the appeal filed by the Insurance Company further enhanced the compensation under the head ‘loss of love and affection’ at the rate of Rs.50 000 to each of four claimants i.e. enhancing total amount by Rs. Two Lakhs. Insurance Company aggrieved by the judgment of the High Court has come up with this appeal 13. We have heard learned counsel for the appellant as well as learned counsel for the 14. In all the appeals only issue to be considered is with regard to award of compensation to the claimant under two heads i.e. loss of love and affection. With regard to ‘consortium’ the question is as to whether it is only the wife who is entitled for consortium or the consortium can be awarded to children and parents also. 15. Learned counsel for the appellants contends that the Constitution Bench of this Court in National Insurance Company Ltd. Versus Pranay Sethi and Others 16 SCC 680 has laid down that there are only three conventional heads namely i)‘loss of estate’ 2 SCC 176. This court considering the concept of compensation under Motor Vehicle Act 1939 laid down following in paragraph 5....The determination of the quantum must answer what contemporary society “would deem to be a fair sum such as would allow the wrongdoer to hold up his head among his among his neighbours and say with their approval that he has done the fair thing”. The amount awarded must not be niggardly since the “law values life and limb in a free society in generous scales”. All this means that the sum awarded must be fair and reasonable by accepted legal standards.” 25. In the above case also this Court awarded the amount under the conventional head of ‘loss of 26. Another judgment which needs to be noted is the judgment of this Court in Sarla Vermaand Others Versus Delhi Transport Corporation and Another 6 SCC 121 in which judgment in paragraph 16 this Court while elaborating the “just compensation” laid down following: 5....”Just compensation is adequate compensation which is fair and equitable on the facts and circumstances of the case to make good the loss suffered as a result of the wrong as far as money can do so by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza largesse or source of profit.” 27. This court also awarded an amount under the head ‘loss of consortium’ to the wife. 28. We need to notice the Constitution Bench judgment in National Insurance Company Ltd.(supra which case notices the earlier judgments of this Court where compensation was awarded towards loss of consortium. In paragraph 46 the following was laid down: 46. Another aspect which has created confusion pertains to grant of loss of estate loss of consortium and funeral expenses. In Santosh Devi the two Judge Bench followed the traditional method and granted Rs.5000 for transportation of the body Rs.10 000 as funeral expenses and Rs.10 000 as regards the loss of consortium. In Sarla Verma the Court granted Rs.5000 under the head of loss of estate Rs.5000 towards funeral expenses and Rs.10 000 towards loss of consortium. In Rajesh9 SCC 54 the Court granted Rs.1 00 000 towards loss of consortium and Rs.25 000 towards funeral expenses. It also granted Rs.1 00 000 towards loss of care and guidance for minor children. The Court enhanced the same on the principle that a formula framed to achieve uniformity and consistency on a socio economic issue has to be contrasted from a legal principle and ought to be periodically revisited as has been held in Santosh Devi6 SCC 421. On the principle of revisit it fixed different amount on conventional heads What weighed with the Court is factum of inflation and the price index. It has also been moved by the concept of loss of consortium. We are inclined to think so for what it states in that regard. We quote:18 SCC 130 the concept of consortium was explained in paragraphs 21 22 and 23 which are as follows: 21. A Constitution Bench of this Court in Pranay Sethi 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 “consortium” is a compendious term which encompasses 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 21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husband wife which allows compensation to the surviving spouse for loss of “company society cooperation affection and aid of the other in every conjugal relation.” 21.2. Parental consortium is granted to the child upon the premature death of a parent for loss of “parental aid discipline guidance and training.” 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 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 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 the head of Filial Consortium. 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. However there was no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium.” 32. A two Judge Bench in Magma General Insurance Company Limited awarded the amount of Rs.40 000 to father and sister of the deceased. Paragraph 24 is as follows: “24. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under ‘Loss of Consortium’ as laid down in Pranay Sethi supra). In the present case we deem it appropriate to award the father and the sister of the deceased an amount of Rs. 40 000 each for loss of 33. A three Judge Bench in United India Insurance Company Ltd. versus Satinder Kaur alias Satvinder Kaur and others SCC Online 410 had reaffirmed the view of two Judge Bench in Magma General insurance Company Ltd. Three Judge Bench from paragraph 53 to 65 dealt with three conventional heads. The entire discussion on three conventional heads of three Judge Bench is as follows: 53. In Pranay Sethi the Constitution Bench held that in death cases compensation would be awarded only under three conventional heads viz. loss of estate loss of consortium and funeral 54. The Court held that the conventional and traditional heads cannot be determined on percentage basis because that would not be an acceptable criterion Unlike determination of income the said heads have to be quantified which has to be based on a reasonable foundation. It was observed that factors such as price index fall in bank interest escalation of rates are aspects which have to be taken into consideration The Court held that reasonable figures on conventional heads namely loss of estate loss of consortium and funeral expenses should be Rs. 15 000 Rs 40 000 and Rs. 15 000 respectively The Court was of the view that the amounts to be awarded under these conventional heads should be enhanced by 10% every three years which will bring consistency in respect of these heads a) Loss of Estate Rs. 15 000 to be b) Loss of Consortium 55. Loss of Consortium in legal parlance was historically given a narrow meaning to be awarded only to the spouse i.e. the right of the spouse to the company care help comfort guidance society solace affection and sexual relations with his or her mate. The loss of companionship love care and protection etc. the spouse is entitled to get has to be compensated appropriately. The concept of nonpecuniary damage for loss of consortium is one of the major heads for awarding compensation in various jurisdictions such as the United States of America Australia etc English courts have recognised the right of a spouse to get compensation even during the period of temporary 56. In Magma General Insurance Co. Ltd. v Nanu Ram & Ors. 12 this Court interpreted “consortium” to be a compendious term which 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 57. Parental consortium is granted to the child upon the premature death of a parent for loss of parental aid discipline guidance and training 58. 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 59. 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 60. 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 61. Parental Consortium is awarded to the children who lose the care and protection of their parents in motor vehicle 62. The amount to be awarded for loss consortium will be as per the amount fixed in Pranay Sethihas recognized only three compensation can be awarded viz. loss of estate loss of consortium and funeral 64. In Magma General this Court gave a comprehensive interpretation to consortium to include spousal consortium parental consortium as well as filial consortium. Loss of love and affection is comprehended in loss of consortium 65. The Tribunals and High Courts are directed to award compensation for loss of consortium which is a legitimate conventional head. There is no justification to award compensation towards loss of love and affection as a c) Funeral Expenses Rs. 15 000 to be 34. The Three Judge Bench in the above case approved the comprehensive interpretation given to the expression ‘consortium’ to include spousal consortium parental consortium as well as filial consortium. Three Judge Bench however further laid down that ‘loss of love and affection’ is comprehended in ‘loss of consortium’ hence there is no justification to award compensation towards ‘loss of love and affection’ as a separate head. 35. The Constitution Bench in Pranay Sethi has also not under conventional head included any compensation towards ‘loss of love and affection’ which have been now further reiterated by three Judge Bench in United India Insurance Company Ltd supra). It is thus now authoritatively well settled that no compensation can be awarded under the head ‘loss of love and affection’. 36. The word ‘consortium’ has been defined in Black’s law Dictionary 10th edition. The Black’s law dictionary also simultaneously notices the filial consortium parental consortium and spousal consortium in following manner: Consortium 1. The benefits that one person esp. A spouse is entitled to receive from another including companionship cooperation affection aid financial support and sexual relations a claim for loss Filial consortium A child s society affection and companionship given to a parent A parent s Parental consortium society affection and companionship given to a child A spouse s Spousal consortium society affection and companionship given to the other spouse.” 37. The Magma General Insurance Company Ltd Supra) as well as United India Insurance Company ltd.(Supra) Three Judge Bench laid down that the consortium is not limited to spousal consortium and it also includes parental consortium as well as filial consortium. In paragraph 87 of United India Insurance Company Ltd.‘consortium’ to all the three claimants was thus awarded. Paragraph 87 is quoted below: 87. Insofar as the conventional heads are concerned the deceased Satpal Singh left behind a widow and three children as his dependants. On the basis of the judgments in Pranay Sethiand Magma General supra) the following amounts are awarded under the conventional heads: i) Loss of Estate: Rs. 15 000 ii) Loss of Consortium a) Spousal Consortium: Rs 40 000 b) Parental Consortium: 40 000 x 3 = Rs. 1 20 000 iii) Funeral Expenses: Rs. 15 000” 38. Learned counsel for the appellant has submitted that Pranay Sethi has only referred to spousal consortium and no other consortium was referred to in the judgment of Pranay Sethi hence there is no justification for allowing the parental consortium and filial consortium. The Constitution Bench in Pranay Sethi has referred to amount of Rs.40 000 to the ‘loss of consortium’ but the Constitution Bench had not addressed the issue as to whether consortium of Rs.40 000 is only payable as spousal consortium. The judgment of Pranay Sethi cannot be read to mean that it lays down the proposition that the consortium is payable only to the wife. 39. The Three Judge Bench in United India Insurance Company Ltd. has categorically laid down that apart from spousal consortium parental and filial consortium is payable. We feel ourselves bound by the above judgment of Three Judge Bench. We thus cannot accept the submission of the learned counsel for the appellant that the amount of consortium awarded to each of the claimants is not sustainable. 40. We thus found the impugned judgments of the High Court awarding consortium to each of the claimants in accordance with law which does not warrant any interference in this appeal. We however accept the submissions of learned counsel for the appellant that there is no justification for award of compensation under separate head ‘loss of love and affection’. The appeal filed by the appellant deserves to be allowed insofar as the award of compensation under the head ‘loss of love and affection’. 41. We may also notice Three Judge Bench judgment of this Court relied by learned counsel for the appellant i.e. Sangita Arya and others versus Oriental Insurance Company ltd. and others to Rs.10 000 the amount awarded towards loss of love and affection to the minor daughters was reduced from Rs.10 000 to Rs 5 000. However the amount of Rs. 5 000 awarded by the MACT towards funeral expenses was 42. This Court in the above case confined its consideration towards the income of the deceased and there was neither any claim nor any consideration that the consortium should have been paid to other legal heirs also. There being no claim for payment of consortium to other legal heirs this Court awarded Rs.40 000 towards consortium. No such ratio can be deciphered from the above judgment that this Court held that consortium is only payable as a spousal consortium and consortium is not payable to children and 43. It is relevant to notice the judgment of this Court in United India Insurance Ltd. which was delivered shortly after the above Three Judge Bench judgment of Sangeeta Arya specifically laid down that both spousal and parental consortium are payable which judgment we have already noticed 44. We may also notice one more Three Judge Bench judgment of this Court in Civil Appeal No.28820 M.H.Uma Maheshwari and others versus United India Insurance Company Ltd. decided on 12.06.2020 In the above case the Tribunal had granted the amount of Rs.One Lakh towards loss of consortium to the wife and Rs.Three Lakhs for all the appellants towards loss of love and affection. The High Court in the above case had reduced the amount of compensation in the appeal filed by the Insurance Company. The High Court held that by awarding the amount of Rs.One Lakh towards loss of consortium to the wife Tribunal had committed error while awarding Rs.One Lakh to the first appellant towards the head of ‘loss of love and affection’. Allowing the appeal filed by the claimant this Court maintained the order of MACT. 45. In the above judgment although rendered by Three Judge Bench there was no challenge to award of compensation of Rs.One Lakh towards the consortium and Rs.Three Lakhs towards the loss of love and affection. The appeal was filed only by the claimants and not by the Insurance Company. The Court did not pronounce on the correctness of the amount awarded under the head ‘loss of love and 46. We may also notice the additional submission advanced in Civil Appeal No…... 2020 Oriental Insurance Company Ltd. versus Smt.Rinku Devi & Ors. As noted above we have taken the view that the order of the High Court awarding compensation towards ‘loss of love and affection’ at the rate of Rs.50 000 to each of the claimants is unjustified which is being set aside in this appeal. We further in the above appeal also set aside the directions of the High Court in paragraph 9 by which statutory amount along with interest accrued thereon was directed to be deposited in AASRA fund. 47. In result all the appeals are partly allowed The award of compensation under the conventional head ‘loss of love and affection’ is set aside. The Motor Accident Claims Tribunals shall recompute the amount payable and take further steps in accordance with law. 48. All the appeals are partly allowed accordingly. No costs ( ASHOK BHUSHAN ( R. SUBHASH REDDY NEW DELHI SEPTEMBER 07 2020 |
Recoveries made in the absence of any evidence cannot be termed sufficient to prove the case beyond reasonable doubt: Supreme Court of India | Course circumstances like recovery of clothing apparel as well as tiffin box etc., in the absence of any other material evidence on record pointing towards the guilt of the accused, cannot be termed sufficient to hold that the case was proved beyond reasonable doubt. This honorable judgement was passed by Supreme Court of India in the case of Yogesh, Anuj, Pardeep vs. State of Haryana [CRIMINAL APPEAL NO.1306, 1307,1308 OF 2017] by The Hon’ble Mr. Justice Uday Umesh Lalit and The Hon’ble Ms. Justice Indira Banerjee. These appeals aroused out of the common judgment and final order passed by the High Court of Punjab and Haryana at Chandigarh. Eight persons were tried in Sessions Case with crime registered pursuant with Police Station City, Bahadurgarh, Haryana, in respect of the offences punishable under Sections 302/364-A/376/216 read with Section 120-B of the Indian Penal Code, 1860. A raid was conducted at the house of accused Diwan Singh, who allegedly disclosed that his son Anuj along with three others had kidnapped the victim and as pressure of the investigation by the police was mounting, the victim was murdered and her dead-body was thrown in the fields of village Paparwat. It was not clear as to when exactly the accused were arrested but it was the case of the prosecution that pursuant to the disclosure statements made by these appellants, the place where the dead body of the victim was lying could be located, and their disclosure statements led to the recovery of certain items like clothing, tiffin box etc. belonging to the victim. The dead body of the victim was subjected to post-mortem, which was conducted by Dr. P.K. Paliwal. No semen was detected in the vaginal swabs taken from the body of the victim. The learned council referred the case of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 where the law on the point of circumstantial evidence cases was made very clear. The court opinioned that, “There are of course circumstances like recovery of clothing apparel as well as tiffin box etc. belonging to the victim. However, such recoveries by themselves, in the absence of any other material evidence on record pointing towards the guilt of the accused, cannot be termed sufficient to hold that the case was proved beyond reasonable doubt. Not only those circumstances are not conclusive in nature but they also do not form a cogent and consistent chain so as to exclude every other hypothesis except the guilt of the appellants.” The court allowed the appeal stating that, “the case of the prosecution has not been proved beyond reasonable doubt, and the appellants are entitled to the benefit of doubt. We, therefore, allow these appeals and set-aside the orders of conviction and sentence recorded against each appellant. The appellants be set at liberty forthwith, unless their custody is required in connection with any other crime.” | NON REPORTABLE IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1306 OF 2017 YOGESH STATE OF HARYANA CRIMINAL APPEAL NO.1307 OF 2017 ANUJ STATE OF HARYANA CRIMINAL APPEAL NO.1308 OF 2017 PARDEEP STATE OF HARYANA JUDGMENT Uday Umesh Lalit J. These appeals arise out of the common judgment and final order dated 09.10.2013 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeals No.D 719 DB of 2010 D 713 DB of 2010 and D 735 DB of Eight persons namely Diwan Singh Anuj Sumit Pardeep Yogesh Satbir Parveen and Abhishek were tried in Sessions Case No.04 2009 on the file of the Additional Sessions Judge Jhajjar Haryana in connection with crime registered pursuant to FIR No.188 dated 18.08.2004 with Police Station City Bahadurgarh Haryana in respect of the offences punishable under Sections 302 364 A 376 216 read with Section 120 B of the Indian Penal Code 1860 “IPC” for short). The crime was registered pursuant to the reportingmade by one Manoj Kumarabout 12.45 P.M my children who use to study in B.S.M. Public school were coming back to house by bus after closing of their school as my son Neeraj 10 year and daughter xxx1 7 years got off from bus near Kothi No.622. then two boys came there on one red colour motor cycle one of them asked to come here upon which my daughter xxx went to near motor cycle then the boy sitting on motor cycle forcibly lifted baby and fled away toward the Primary school while getting her sit in between them on motor cycle number of motor cycle could not be seen. Hearing the alarm of children we tried to stop them but they fled away while pushing us. Both of them were of 1 Name of the victim is withheld young age. Out of them its driver had worn black pant brown shirt and a helmet on his head. Till now we remained in search of girl legal action be taken.” During the course of investigation a raid was conducted at the house of accused Diwan Singh who allegedly disclosed that his son Anuj along with three others had kidnapped the victim and as pressure of the investigation by the police was mounting the victim was murdered and her dead body was thrown in the fields of village Paparwat. deceased was recovered. In the intervening night of 19.08.2004 and 20.08.2004 the body of the It is not clear as to when exactly the accused were arrested but it is the case of the prosecution that pursuant to the disclosure statements made by these appellants the place where the dead body of the victim was lying could be located and their disclosure statements led to the recovery of certain items like clothing tiffin box etc. belonging to the victim. The dead body of the victim was subjected to post mortem which was conducted by Dr. P.K. PaliwalThere were multiple contusions of size 0.5 x 0.5 to 1.5 cm. over the lips angles of mouth and chin region ecchymosis was seen. iv) The labia were swollen and inflamed. The hymen and vaginal canal showed multiple and regular tears and laceration of size l x 0.5 cm. To 3 x l cm. Infiltration of blood was seen in tissues:” The cause of death was reported to be as under: “Opinion: Cause of death is manual strangulation coupled with smothering which was ante mortem in nature and homicidal in manner. However viscera was preserved for chemical analysis. Injurious over genitalia were indicative of forceful penetration of vagina. Duration between death and postmortem was about two days.” After examining viscera of the deceased the Forensic Science Laboratory Reportdisclosed the presence of Aluminium Phosphideunder Section 161 of the Code of Criminal Procedure 1973. Suresh Washerman was however not examined on behalf of the prosecution. The Investigating Officer PW20 deposed regarding the facts concerning recoveries pursuant to the disclosure statements made by the accused. On the strength of the material on record the Trial Court by its judgment and order dated 13.07.2010 found thatthe charge under Section 302 120 B 34 IPC was proved against the accused Yogesh Sumit Pardeep and Anuj while the charges under Sections 364 A and 376 IPC were not proved against themrest of the accused were not found guilty of any of the charges levelled against them and hence were acquitted. The trial court awarded sentence of life imprisonment to the convicted accused and imposed sentence of fine of Rs.20 000 in default whereof the convicted accused were directed to undergo further imprisonment for two years. The convicted accused namely Yogesh Sumit Pardeep and Anuj preferred appeals before the High Court challenging their conviction and sentence. No appeal was preferred by the State challenging acquittal of other four accused or against the acquittal of the convicted accused in respect of the charges under Sections 364 A and 376 IPC. All the appeals were considered and disposed of by the High Court by its judgment which is presently under challenge. After noting the material evidence on record and while considering the testimony of PW10 Manoj the High Court observed: “… Thus in the light of this unfortunate course of the trial statement of complainant Manoj Kumar PW10 father of the victim attains all the more importance. This witness as PW10 has specifically stated having witnessed occurrence when he was attracted on hearing the noise and has in no uncertain terms stated that accused Yogesh was driving the motorcycle and Sumeet was on the pillion and had taken away his daughter and in spite of his efforts could not chase them. …” Finding the case of the prosecution to have been proved as against the four convicted accused their conviction and sentence as recorded by the Trial Court was maintained and the appeals were dismissed by the High Court. Out of the four convicted accused Yogesh Anuj and Pardeep have preferred the appeals before this Court while Sumit has not preferred any challenge against the rejection of his appeal. It is reported that Sumit was on bail during the pendency of the appeal and after dismissal of his appeal has gone 19) We have heard Mr. V.C. Gautam learned Advocate for the appellants Yogesh and Pardeep and Mr. M.C. Dhingra learned Advocate for the appellant Anuj. The submissions on behalf of the State have been advanced by MS. Alka Agarwal learned AAG for the State. The evidence on record discloses that out of three witnesses who were stated to be the eye witnesses two witnesses viz PW12 Rajiv and PW15 Neeraj turned hostile and did not support the case of the prosecution. Both these witnesses are close relations of the victim and there is nothing on record to indicate that they were either put under any pressure or that there was any element of suspicion. Both these witnesses were categorical that the persons who kidnapped the victim were not before the Court in the capacity as the accused. 21) We are thus left with the testimony of PW10 Manoj the informant and the father of the victim. The reporting made by this witness based on which the crime was registered neither shows that he was an eye witness to the occurrence nor does it disclose that the identity of the accused who had kidnapped the victim was in any way known at the stage when the occurrence took place. The statement given by the witness in his cross examination further discloses that he was sitting inside the house when the incident had occurred and that the shouts of the children and other passers by had attracted his attention whereafter the witness came out of the house. In the circumstances it is extremely difficult to accept PW10 to be an eye witness to the occurrence. The observations made by the High Court while placing reliance on his version in our view were totally incorrect. Thus all three witnesses who were claimed to be the eye witnesses to the occurrence and on whose testimonies reliance was placed by the prosecution are 22) We now turn to the other circumstances on record to see whether circumstances on record by themselves are sufficient to bring home the guilt of of no help. the accused. The law on the point of circumstantial evidence cases is very clear and as laid down by this Court in Sharad Birdhichand Sarda v. State of Maharashtra 1984) 4 SCC 116 the well settled principles are 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 : 1973 SCC1033 : 1973 Crl LJ 1783] where the observations were made:p. 1047] “Certainly it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” 2) the facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say they should not be explainable on any other hypothesis except that the accused is guilty 3) the circumstances should be of a conclusive nature and tendency 4) they should exclude every possible hypothesis except the one to be proved and 5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the Certain salient features of the instant case are: a) Though the post mortem report discloses that the victim was sexually assaulted the FSL Report on record does not establish any connection of the accused with the sexual assault on the deceased victim. b) The dead body of the victim was found lying in an open field. c) The record is again not clear as to when the present appellants were arrested and how and in what manner their disclosure statements led to the recovery of the dead body. There are of course circumstances like recovery of clothing apparel as well as tiffin box etc. belonging to the victim. However such recoveries by themselves in the absence of any other material evidence on record pointing towards the guilt of the accused cannot be termed sufficient to hold that the case was proved beyond reasonable doubt. Not only those circumstances are not conclusive in nature but they also do not form a cogent and consistent chain so as to exclude every other hypothesis except the guilt of the appellants. 26) We therefore find ourselves in disagreement with the view taken by the Courts below. In our considered view the case of the prosecution has not been proved beyond reasonable doubt and the appellants are entitled to the benefit of 27) We therefore allow these appeals and set aside the orders of conviction and sentence recorded against the each appellants. The appellants be set at liberty forthwith unless their custody is required in connection with any other crime. [Indira Banerjee] doubt. New Delhi April 06 2021. |
Continuing with the trial serves no purpose once after the complainant herself give quietus to the misunderstanding: Delhi High Court | It serves no useful purpose in continuing with the trial if the complainant herself accepts that made the complaint due to a misunderstanding. An FIR under Sections 376/506 IPC, registered at police station Shakarpur, Delhi and all other proceedings arising therefrom were quashed in the matter of Ashish Kumar Sagar vs. The State and Anr. [CRL.M.C. 389/2021 & Crl.M.A. 2060/2021]. The judgement was given by Hon’ble Mr. Justice Suresh Kumar Kait. The petitioner sought quashing of the FIR under Sections 376/506 IPC. Learned counsel for petitioner submits that there was a misunderstanding between petitioner and prosecutrix and it has been resolved in terms of Compromise Deed. He further submitted that the marriage between petitioner and prosecutrix has been solemnized and they are happily living together as husband and wife. It was also submitted that the prosecutrix did not wish to pursue the proceedings arising out of FIR in question and her affidavit to this effect was placed on record. A decision made by the Bench of Punjab and Haryana High Court in Pankaj @ Sikandar Kumar Vs. State of U.T., Chandigarh [CRM-M No.47266 of 2019,] was called on, due to the similar circumstances of the case. The Court quashed an FIR under Section 376 of the IPC and observed, that normally, the Court would not entertain a matter like this for, in the eyes of law, the offence of rape is serious and non-compoundable and the Courts should not in ordinary circumstances interfere and quash the FIR that has been registered. However, there are always exceptions to the normal rules and certain categories of cases, which deserve consideration. A reference was made to Parbat Bhai Aahir and Ors. vs. State of Gujrat & Ors. [(AIR 2017 SC 4843)] and it was stated in the judgement that, “…the FIR should not be quashed in case of rape as it is a heinous offence, but when complainant/prosecutrix herself takes the initiative and states that she made the complaint due to some misunderstanding and now wants to give quietus to the misunderstanding which arose between her and the petitioner, in my considered opinion, in such cases, there will be no purpose in continuing with the trial. Ultimately, if such direction is issued, the result will be of acquittal in favour of the accused, but substantial public time shall be wasted.” | IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on: 11.02.2021 CRL.M.C. 389 2021 & Crl.M.A. 2060 2021 ASHISH @ ASHISH KUMAR SAGAR Petitioner Through: AdvocateTHE STATE & ANR. Through: Mr. G.M.Farooqui Additional Public Respondents Prosecutor for State with SI Smriti Respondent No.2 complainant in HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT Vide this petition petitioner is seeking quashing of FIR No. 330 2020 under Sections 376 506 IPC registered at police station Shakarpur Delhi. Notice issued. 3. Mr. G.M.Farooqui learned Additional Public Prosecutor for State accepts notice and submits that petitioner and respondent No.2 prosecutrix is present in the Court and she has been identified by SI Smriti Gupta Crl.M.C. 389 2021 Investigating Officer of this case. Learned counsel for petitioner submits the misunderstanding between petitioner and respondent No.2 prosecutrix has been resolved in terms of Compromise Deed dated 25.09.2020. He further submits that the marriage between petitioner and prosecutrix respondent No.2 has been solemnized in Arya Samaj Mandir Nakul Gali Vishwas Nagar Delhi on 25.09.2020 itself and they are happily living together as husband and wife. He next submits that respondent No.2 prosecutrix does not wish to pursue the proceedings arising out of FIR in question and her affidavit dated 06.02.2021 to this effect is placed on record. Learned Additional Public Prosecutor for State on instructions from Investigating Officer of this case submits that the factum of marriage between petitioner and respondent No.2 prosecutrix stands verified. Learned counsel for petitioner submits that to enable the parties to lead a happy married life this petition deserves to be allowed. In a somewhat similar circumstances a Bench of Punjab and Haryana High Court in CRM M No.472619 Pankaj @ Sikandar Kumar Vs. State of U.T. Chandigarh and another decided on 05.03.2020 while quashing the proceedings for the offences under Section 376 IPC has Crl.M.C. 389 2021 observed as under: “5. In normal circumstances the Court would not entertain a matter when the non compoundable offences are heinous in nature and against the public. In the instant case the offence complained of is under Section 376 IPC which is an offence of grave nature. In the eyes of law the offence of rape is serious and non compoundable and the Courts should not in ordinary circumstances interfere and quash the FIR that has been registered. However there are always exceptions to the normal rules and certain categories of cases which deserve consideration specially when it is a case of love affair between teenagers and due to fear of the society and pressure from the community one party alleges rape cases where the accused and the victim are well known to each other and allegation of rape is levelled only because the accused refused to marry as well as the age educational maturity and the mental capacity consequences of the same ought to be kept in mind when inclined to interfere.” Although as per the directions of the Hon’ble Supreme Court in Parbat Bhai Aahir and Ors. vs. State of Gujrat & Ors. the FIR should not be quashed in case of rape as it is a heinous offence but when complainant prosecutrix herself takes the initiative and states that she made the complaint due to some misunderstanding and now wants to give quietus to the misunderstanding which arose between her and the petitioner in my considered opinion in such cases there will be no purpose in continuing with the trial. Ultimately if such direction is issued the result will be of acquittal in favour of the accused but substantial public Crl.M.C. 389 2021 time shall be wasted. A similar view was taken by this court in the case of Danish Ali v. State and Anr. in Crl. M.C. 1727 2019. Taking into account the aforesaid facts and the fact that the petitioner and prosecutrix have already married on 25.09.2020 therefore this Court is inclined to quash the present FIR as no useful purpose would be served in prosecuting petitioner any further. 10. For the reasons afore recorded FIR No. 330 2020 under Sections 376 506 IPC registered at police station Shakarpur Delhi and all other proceedings arising therefrom are quashed. 11. The order be uploaded on the website of this Court forthwith. FEBRUARY 11 2021 SURESH KUMAR KAIT) JUDGE Crl.M.C. 389 2021 |
No requirement for criminal process to go on to settle the dispute, when the matter is a civil land dispute: High Court of Uttarakhand. | Where the dispute is one of a civil nature relating to the land in question and the criminal process is being used to settle that dispute and the demarcation report was unsure of the ground situation, then the Apex court observed that there was no requirement to carry on a criminal process in such a case. A single Judge bench comprising Hon’ble Justice N.S. Dhanik, in the matter of Hemant Dwivedi Vs. State of Uttarakhand and others (Criminal Misc. Application No. 79 of 2020), dealt with an issue where the petitioner filed the present criminal misc. application under Section 482 Cr.P.C. seeking from the court to Quash the charge-sheet pursuant to FIR for the offences cognizable under Section 420, 447, 504 & 506 IPC as well as to Quash the cognizance order passed by learned Chief Judicial Magistrate, Nainital in Criminal Case, “State v. Hemant Dwivedi” pursuant to FIR for the offences cognizable under Section 420, 447, 504 & 506 IPC, and the entire proceeding of the said criminal case. In the present case, respondent no. 3 had lodged FIR alleging offence under Sections 420, 447, 504 & 506 IPC against the accused applicant, which the applicant charged by filing a criminal writ petition. The main ground of challenge raised in the said writ petition was that it was actually a land dispute and the complainant had wrongly initiated the criminal proceedings against the accused applicant. After the dismissal of the writ petition, the applicant approached the Apex court and the court stated that no coercive can be taken against the applicant. the Hon’ble Apex Court directed the Collector Nainital to issue necessary instructions to the SDM to carry out the demarcation in the presence of both the parties and sought the report of demarcation along with the covering report of the Collector. The demarcation was done and the report was submitted, to which the apex court observed that the dispute really is one of a civil nature relating to the land in question and the criminal process is being used to settle that dispute. The apex court held there was no requirement for the criminal process to go on. The apex court quashed the criminal process initiated and also directed that if any of the parties were aggrieved by the SDM report, the same may be assailed in accordance with the law. Moreover, directed that the possession must be maintained by the parties in accordance with the report of the SDM subject to any adjudication which may take place. The counsel for the applicant prayed to decide the present petition in the light of the Judgement passed by the apex court. The state counsel fairly conceded to it. The Hon’ble High court followed the decision of the Apex court and thereby allowed the C482 application and “State v. Hemant Dwivedi” was quashed. | IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 720 Hemant Dwivedi …..Applicant State of Uttarakhand and others Respondents Mr. Rakesh Thapliyal learned Senior Counsel assisted by Mr. Pankaj Chaturvedi learned counsel for the applicant. Mrs. Mamta Joshi learned Brief Holder for the State. None appears for respondent no. 3. Dated: 18th August 2021 Hon’ble N.S. Dhanik J.The present criminal misc. application under Section 482 Cr.P.C. has been filed by the applicant seeking the following reliefs: Quash the charge sheet No. 15 of 2018 dated 22.12.2018 pursuant to FIR No. 06 of 2018 for the offences cognizable under Section 420 447 504 & 506 IPC. ii) Quash the cognizance order dated 19.02.2019 passed by learned Chief Judicial Magistrate Nainital in Criminal Case No. 3619 “State v. Hemant Dwivedi” pursuant to FIR No. 06 of 2018 for the offences cognizable under Section 420 447 504 & 506 IPC as well as the entire proceeding of the said criminal case. Brief facts of the case are that respondent no. 3 lodged an FIR against the accused applicant on 04.03.2018 alleging offence under Sections 420 447 504 & 506 IPC against the accused applicant. Accused applicant challenged the said FIR by filing Criminal Writ Petition No. 4418. 2 Since during the pendency of the said writ petition charge sheet was submitted against the petitioner this Court dismissed the said writ petition as infructuous vide order dated 07.01.2019. The main ground of challenge raised in the said writ petition was that it was an actually land dispute and the complainant has wrongly initiated the criminal proceedings against the accused applicant. After dismissal of the said writ petition the accused applicant approached the Hon’ble Apex Court and the Hon’ble Apex Court vide its order dated 08.02.2019 directed that no coercive steps shall be taken against the accused applicant. However since the trial court was regularly issuing summons to the accused applicant the present C482 application was filed challenging the charge sheet filed against the accused applicant. Meanwhile vide order dated 06.12.2019 the Hon’ble Apex Court directed the Collector Nainital to issue necessary instructions to the SDM to carry out the demarcation in the presence of both the parties and sought the report of demarcation along with the covering report of the Collector. Accordingly the demarcation was done and report was submitted and thereafter the Hon’ble Apex Court vide its order dated 03.11.2020 disposed of the appeal of the accused applicant by observing that “we find that the dispute really is one of a civil nature relating to the land in question and the criminal process is being used to settle that dispute. The demarcation report leaves little in doubt about the ground situation and thus we are of the view that there is no requirement for the criminal 3 to go on. Learned counsel respondents states that they seriously dispute the report of the SDM and naturally so as it does not now favour them. We have not precluded them from challenging the report in accordance with law”. The Hon’ble Apex Court passed following directions while disposed of the appeal of the accused applicant: “In view of the aforesaid the appeal is disposed of with the following directions: criminal process pursuance to FIR No. 6 of 2018 dated 04.03.2018 registered at PS Bhimtal stands quashed. The report of the SDM is taken on record and if any of the parties is aggrieved by the SDM report the same may be assailed in accordance with law. iii) The possession at present will be maintained by the parties in accordance with the report of the SDM subject to any adjudication which may take place as aforesaid. The appeal is accordingly allowed leaving parties to bear their own costs.” 6. Learned Senior Counsel applicant further prayed that the present petition be decided in the light of the judgment and order dated 03.11.2020 passed by the Hon’ble Apex Court in Special Leave to AppealNo. 1108 of 7. Learned State Counsel the present criminal misc. application may be decided as per the judgment and order dated 03.11.2020 passed by the Hon’ble Apex Court. 8. It is pertinent to mention here that despite sufficient service on respondent no. 3 and filing of Vakalatnama on his behalf by Mr. Bhupendra Prasad and Mr. Sanpreet Singh Azmani none appeared today on behalf of the respondent no. 3. 9. Having heard learned counsel for the circumstances of the case and particularly the judgment and order of the Honb’le Apex Court dated 03.11.2020 it is crystal clear that the dispute was purely of land dispute for which criminal proceedings were lodged. The Hon’ble Apex Court observed that the criminal process is used to settle that dispute. The demarcation report leaves little in doubt about the ground situation and thus we are of the view that there is no requirement for the criminal process to go on and the criminal process pursuance to the FIR lodged against the applicant with liberty to the private respondent to assail the report of the SDM. In view of the above the impugned criminal proceedings cannot be allowed to be continued as the Hon’ble Apex Court has quashed the criminal process pursuant to the FIR lodged by the private respondent no. 3 and the impugned proceedings are passed pursuant to the charge sheet filed against the accused applicant after investigation in the said FIR. Consequently this C482 application is allowed. The charge sheet dated 22.12.2018 and the cognizance order dated 19.02.2019 passed by learned Chief Judicial Magistrate Nainital in Criminal Case No. 361 of 2019 “State v. Hemant Dwivedi” is hereby accordingly. 18.08.2021 |
The trauma of a victim does not end with the incident and real-life issues may compel a victim to forgo all the trauma which she had undergone: Bombay High Court | The trauma of a victim does not end with the incident and real-life issues may compel a victim to “forgo all the trauma which she had undergone and to take U turn,” at the time of trial. This was held in Imran Shabbir Gauri vs The State of Maharashtra [CRIMINAL APPEAL NO. 831 OF 2015] in the High Court of New Delhi by division bench consisting of Honourable Justice Prasanna B. Varale & S.M. MODAK. The facts consist the man took the young girl to the bungalow where he was working, sexually assaulted her, and threatened her of dire consequences if she spoke about the incident to anyone. This was allegedly done several times. He also took victims nude images and threatened to publish them on social media. The case came to light when the girl narrated the incidents to her sister, who in turn informed the mother. The counsel for the appellant argued that the victim had not supported her case before the trial court, and the court had had wrongly convicted his client by relying on the victim’s statement u/s 164 of the CrPc. The Bench opined that the trial court could not have relied on the victims 164 statement to convict the accused, calling it “corroborative evidence,” in the absence of her testimony. We fail to understand what the trial court meant to say, corroboration of which fact? If the evidence of the principal fact is not there, the evidence adduced of the subsequent fact how it can be used for corroboration.” The court observed that the victim was the “sole witness” of the incident and this didn’t seem like a case where she was initially tutored to make allegations against the father. “It is difficult to opine what compelled the victim not to state those facts which she has stated before the police.” Lastly, the Bench said in the zeal of protecting the interest of the victim, it cannot give go-bye to accepted principles. | on 03 04 2021 on 12 04 Cri.Appeal 831.2015 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTIONCRIMINAL APPEAL NO. 831 OF 2015Imran Shabbir GauriAge: 39 years r o. Flat No.14 Deoashish Building Near Poornima Bus Stop Vaidya Nagar Dwarka Nashik at present in NashikCentral Prison Nashik. ...Appellant VersusThe State of MaharashtraThrough the Bhadrakali Police StationNashik ...Respondent Mr. Aniket Vagal for the AppellantDue to globalization boundaries of nations have disappeared.During olden days certain relations were considered as sacrosanct.That is to say relationship in between brother and sister relationship inbetween mother and son relationship in between father and daughterand so on were considered as sacrosanct. However due to passage oftime these relationships have no more remained sacrosanct and thereare various instances of overstepping the sacrosanct relationship by thenear relationship. on 03 04 2021 on 12 04 Cri.Appeal 831.2015 22. One of such instance took place when the present appellantsexually abused his own daughter victim. Though there are twoviews that is to say whether the victim was a real daughter or a stepdaughter. But the fact remains that she is victim3. The Special Judge under the The Protection of Children fromSexual OffencesAct 2012 and the Additional Sessions Judge Nashik had come across the case wherein there was grievance of suchsexual abuse by the father the present appellant. After the trialTrial Court convicted the appellantfor the offence of section 376(i) 506 of IPC and under section 4 ofPOCSO. By taking re course to the provision of section 42 of the saidAct separate sentence was not imposed for the offence under section 4of the said Act. As the appellant had obtained nude photographs of thevictim on his mobile handset on various dates the trial Court convictedhim for the offence punishable under section 67 B of The InformationTechnology Act 2000. The trial Court acquitted him for the offencepunishable under section 323 of IPC. The correctness of the saidjudgment is challenged on behalf of the appellant. 4. We have heard Mr. Wagal the learned Counsel for theappellant and Mrs. Deshmukh the learned Addl. P.P. for theRespondent. Both of them have assisted us in going through the record.5. Prosecution has in all examined 8 witnesses. Defence ofappellant is that of denial. As the victim has not deposed the actual on 03 04 2021 on 12 04 Cri.Appeal 831.2015 3incident which took place the appellant thought it comfortable and hehad chosen to take only defense of denial.6.. O n the point of actual incident victim PW 1 was the solewitness. It is but natural. Such incidents always take place in secrecy.Prosecution has not attempted to examine any witness on the point ofpost incident narration to near and dear ones by the victim. Prosecutionthought it fit not to do that futile exercise. No one could havesupported. Because during perusal of record we find one affidavit dated1 6 9 2011 sworn by S mt. Bhuri Imran Gauri mother of the victim. This was filed at the stage ofhearing of bail application of the accused. Trial Court has taken note ofthe said affidavit and was pleased not to consider it while rejecting bailrequest on 24 9 2014.7. On this background prosecution does its best to prove theoffence by adducing legal evidence. The investigating agency wasconscious of their responsibilities. Investigating Officer S mt. Naik PW 7arranged for recording statement of the victim under section 164 of theCode of Criminal Procedure. During trial also learned APP in chargehas taken pains in examining the learned Magistrate Smt. Gaikwad PW 2 who recorded the statement.8. She has deposed to the fullest extent on the point of complianceof procedure and also about what victim deposed before her. LearnedAdditional Sessions Judge accepted her evidence o n t he point of examination of the victim. Prosecution examined medical officer D r. on 03 04 2021 on 12 04 Cri.Appeal 831.2015 4Nareshkumar Bagul PW 6 and lady police constable S mt C haure PW 4 was examined on the point of overall investigationcarried out.12. Several contentions are raised on behalf of the appellant. Itincludes the act of resiling by the victim while giving evidence beforethe Court. It includes wrong approach of the trial Court in believing thestatement of the victim recorded under section 164 of Cr.P.C. It includesnot establishing the link in between the conclusion drawn by theForensic Science Expert2.Whether learned Additional Sessions Judge was right inaccepting the evidence of learned Magistrate3.Whether learned Sessions Judge was right in concluding aboutguilt of the accused for the offence punishable under section376(i) 506 of IPC on the basis of other corroborativeevidence 4.Whether learned Additional Sessions Judge was right inconvicting the appellant for the offence under section 67 B ofIT Act particularly when victim has not supported 14. The present case is based on direct and corroborative evidence.Unfortunately the victim had chosen not to speak about the incidentbefore the Court. So the crucial question is whether we can concludeabout guilt of the accused on the basis of all sorts of corroborative on 03 04 2021 on 12 04 Cri.Appeal 831.2015 6evidence. While arriving at the guilt of the accused trial Court referredto following circumstances in its judgment.a)Though the victim has not supported the case of prosecution the trial Court has considered the evidence of lady PoliceConstable PW 4 Naman Bhila Chaure and evidence ofMedical Officer PW 6 Dr. Nareshkumar Bagul and inferredthat why the victim was referred for medical examination(even though she was not sexually abused) b)The trial Court further observed that the accused has notgiven any explanation. Though the victim has resiled trialCourt has referred to the evidence of Judicial Magistrate PW 2 Janabai Gaikwadand further referred to thedates incidents narrated by the victim in such statement. c)The trial Court was fully aware of the legal provisionspertaining to evidentiary value of Section 164 of Cr. P. C. stillwhile arriving at the final conclusion referred to avernmentsin such statement.d)From the 4 mobile handsets seized from the person ofaccused the Forensic Expert has opined about pornographicimages found in them and the trial Court has relied upon thesame even though there is no substantive evidence.e)Trial Court on the basis of finding that hymen was torn thetrial Court arrived at an opinion that it is but natural for a on 03 04 2021 on 12 04 Cri.Appeal 831.2015 7Medical Officer to give an opinion about the absence ofrecent sexual intercourse. f)Trial Court considered the time gap in between the dates ofincidents and date of examination bythe Doctor on 27 5 2014.EVIDENTIARY VALUE OF STATEMENT UNDER SECTION 164 OF CR.P.C.15.When we have read the judgment we find that the trial Courtwas fully conscious of legal provision about the evidentiary value of thestatement under section 164 of Cr.P.C. At more than one place trial Courtobserved “such statement can be used for corroboration or forcontradiction". Use for the purpose of contradiction can be by both thesides that is to say the party who has called witness and the party against whom the witness entered intowitness boxto sub sectionof Section 164 of Code of CriminalProcedure cross examination is not contempalted. Amendment carriedout in the year 2013 by incorporating subsection(a) mandates thejudicial Magistrate to record the statement of a witness under certainprescribed offences. Whereas sub section(b) gives status to suchstatement in lieu of examination in chief as specified under section 137 ofthe Indian Evidence Act. However such upgradation is not madeuniversal. It is only when the maker is disable either mentally orphysically. This is not a case before us.18.Whereas section 26 of the Protection of Children from SexualOffences Act 2012 says about audio video graphic exercise of recordingthe statement. There are also safeguards under section 24 and 25 of thesaid Act. Still we have got no provision wherein the statement undersection 164 of Cr.P.C. has been given status of examination in chief. One on 03 04 2021 on 12 04 Cri.Appeal 831.2015 9does not know how much time it will take for legislatures to bring anamendment in the Act. We say so because Hon’ble Supreme Court in thecase of State of Karnataka by Nonavinakere Police vs. Shivanna @ TarkariShivanna1 has expressed a wish for giving status to statement as anexamination in chief."5. What we wished to emphasize is that therecording of evidence of the victim and other witnessesmultiple times ought to be put to an end which is theprimary reason for delay of the trial. We are of the viewthat if the evidence is recorded for the first time itselfbefore the Judicial Magistrate under section 164 Cr.P.C.and the same be kept in sealed cover to be producedand treated as deposition of the witnesses and henceadmissible at the stage of trial with liberty to thedefence to cross examine them with further liberty tothe accused to lead his defence witness and otherevidence with a right to cross examination by theprosecution it can surely cut short and curtail theprotracted trial if it is introduced at least for trial ofrape cases which is bound to reduce the duration oftrial and thus offer a speedy remedy by way of a fasttrack procedure to the Fast Track Court to resort to."19.Still as per our knowledge no such amendment has come intoeffect. Learned Advocate Vagal for the Appellant relied upon certainjudgments on the point of evidentiary value of such statement:1.Ram Kishan Singh vs. Harmit Kaur and another22.T. Diwakara & Ors. vs. State of Karnataka3 3.R. Palaniamy vs. State by Inspector of Police418 Supreme Court Cases 9132 AIR 1972 Supreme Court 46832006 Cri. L. J. 48134 Criminal Appeal No.1513 on 03 04 2021 on 12 04 Cri.Appeal 831.2015 104.Pankaj vs. State of Himachal Pradesh520.We have perused those situations. On reading them it is clearthat the Court has taken a consistent view “that section 164 Statementcan be used only for the purpose of corroboration or contradiction and itcannot be treated as substantive evidence" Some of the judgmentsreferred above involves commission of offence under section 376 of IPC.Law on the point of “sole testimony of prosecutrix is sufficient withoutcorroboration” is well settled. So the Court can rely upon the soletestimony of prosecutrix even without looking for corroboration. 21.It is one thing to say that "sole testimony withoutcorroboration is sufficient" and other thing to say that "section 164Statement is not substantive evidence and it can be used for contradictionor corroboration” . We have to understand that the Court gives a verdicton the basis of evidence before the Court. Whatever material is collectedduring investigation can be converted into an evidence only when certain witnessdeposes before the Court. This can be same logic when the maker givesstatement before the Magistrate that is the exercise involving the makerand the Magistrate only. Persons against whom such statement is going tobe used has no locus standi at that time. Even in case of T. Diwakara(cited supra) the High Court at Karnataka has opined about institution ofprosecution for forgery if the maker refuses to abide to section 164Statement. 22.High Court at Madras in case of R. Palanisamy of IPC. While convicting the appellant the trialCourt has taken into consideration the statement by the victim to theDoctor Statement made by the victim under section 164 of Cr. P.C. certain answers given by the accused and demeanor of the victim. Afterscrutinizing the evidence and necessary provisions of law conviction wasset aside.FACTS OF THE CASE23.So we have to analyze the evidence adduced by theprosecution in totality and to ascertain whether conclusion of the TrialJudge can be said to be legal and proper. Even though morally and legallywe can not think of a situation wherein father has raped his minordaughter but it is correct that Court is bound by rules of law. Even thoughsuch instances involving such relationship are on rise can Court take intoaccount the evidence which is not admissibleand convict the wrong doer just for thepurpose of sending a message in the society Though we agree that suchinstances are on rise unfortunately we can not take such a view bybypassing the provisions of law. Still we have to wait for the amendmentin the law. At the most we can express and direct that the concernedauthority may initiate the process for carrying out amendment in the law. on 03 04 2021 on 12 04 Cri.Appeal 831.2015 12EVIDENCE OF JMFC24.Trial Court considered the fact of "making preliminary enquiryby PW 2 Janabai Gaikwad with the victim" and got herself satisfied by thevoluntariness. Trial Court was conscious about the purpose of recordingstatement under section 164 of Cr.P.C. There cannot be any dispute aboutit. "Witness should not change the stand by denying the statement" is oneof the purpose and second purpose is to tie over immunity from theprosecution by the witness. Trial Court was conscious of the limited use ofsuch statement. One of that is corroborative use. Trial Court observed "iflegal position is considered definitely it will corroborate circumstancesthat pornographic images are found in the mobile phone of the accusedwhich are recovered from his person"there exist a fact. Inother words there is one principal fact which is in existence and forsupporting that fact another evidence is adduced. So evidence given byway of corroboration cannot be said to be the substantive evidence. on 03 04 2021 on 12 04 Cri.Appeal 831.2015 13 CORROBORATION26.So when the trial Court opined that section 164 statement canbe utilized by way of corroboration we fail to understand what the trialCourt mean to say corroboration of which fact If the evidence ofprincipal fact is not there the evidence adduced of subsequent fact how itcan be used for corroboration. Trial Court has failed to consider thisdifference and infact has considered section 164 statement as asubstantive evidence itself. This is not permissible. We are inclined to setaside that observation.EVIDENCE ABOUT SEIZURE OF MOBILE PHONES27.On the point of seizure we have got the evidence of panchwitness PW 5 Jifran Shabbir Guari and the Investigating Officer PW 7 Mrudula Manoj Nayik. Panch witness Jifran Shabbir Guari is the brotherof the accused. It is but natural for him not to depose against his ownbrother. The prosecution could have examined another panch witnessTanveer Sayyed who has witnessed the seizure as per form at Exhibit 43.On certain aspects the trial Court has believed the Investigating Officer. Itis true that even if the witness has not supported the prosecution case theevidence of Investigating Officer can be believed upon. The logic is whythe Investigating Officer will tell lie. However this proposition cannot besaid to be correct proposition every time. When the Investigating Officerhas witnessed the seizure from the person of the accused what hedeposes before the Court is about the facts which he had seen personally.So the trial Court was right in believing the Investigating Officer. Sofar as on 03 04 2021 on 12 04 Cri.Appeal 831.2015 14seizure of 4 mobiles one sim card and one pendrive is concerned now wehave to see to what extent this will be useful to the prosecution. EVIDENCE OF VENDOR28.Out of these 4 mobiles the accused purchased Intex Acquamobile from PW 3 Beg Rayis Rustam. Invoice is at Exhibit 29 and it isproved through him. The trial Court refused to accept itThe identity of the victim shown in the DVDis not proved in the CourtSaid evidence cannot be said to be substantive evidence.36.Trial Court has accepted it against principles of appreciation ofevidence. Even when any article just like weapon clothes are sent to CA the Court uses the CA report but at the same time prosecution used toadduce evidence by way of producing those articles. No doubt question of on 03 04 2021 on 12 04 Cri.Appeal 831.2015 18identification of the articles is not in question. This example is given onlyfor the purpose of understanding under what circumstances the evidenceof CA report or FSL report is to be accepted in evidence.37.So we are not inclined to accept the report of FSL atleast forthe purpose of inferring that it is the accused only who has taken thoseimages or done recording. At the most it can only be said that in thearticles referred in FSL report some pornographic images were found.Except denial accused has not explained as to how they were found it it.SPOT PANCHANAMA38.It is true that the defence has admitted the spot panchanama.It is at Exhibit 21. It is not described as spot panchanama but it isdescribed as Crime Details Form. The contents are more or less just likethe spot panchanama. Spot is situated in the Laxmi Bunglow which issituated near Dwarka Circle Nashik. Trial Court has rightly drawn aninference on the basis of admitted spot panchanama. Police havecollected the sample of dried yellow liquid. It would be material toconsider the report of CA which is at Exhibit Nos.32 33 and 34. Exhibit32 is the report of analysis of blood pubic hair and nail clips of theaccused. No semen was found. However blood group from the sampleblood was found to be of "A" group whereas Exhibit 33 belongs to pubichair nail clips vaginal swabs and other articles. Blood group of the victimwas found to be of "A" group on the basis of analysis of nail clippings vulval swabs and vaginal swabs. No semen was detected. Whereas Exhibit34 is the report of analysis of scrapping of yellow liquid. It was driedsemen and of group "A". on 03 04 2021 on 12 04 Cri.Appeal 831.2015 1939.Trial Court in paragraph No.27 has referred to these CAreports and analysis. Furthermore trial Court has co related blood group"A" from the dried semen with the place where this yellow liquid wasfound that is to say in the Laxmi Bunglowof IPC accused was alsoconvicted under section 506 of IPC and was acquitted under section 323of IPC. We can find reasoning in paragraph No.15 and 51 of the impugnedjudgment. We fail to understand the logic for applying one yard stick forthe offence under section 323 and different yard stick for the offenceunder section 506 of the IPC. While acquitting the accused for the offenceunder section 323 of IPC the trial Court observed "she has left loyaltytowards the prosecution and therefore there is no evidence regarding theassault on victim girl by the accused". Admittedly she was examined after7 8 days and therefore there would not be any evidence about the assault.43.However while convicting the accused for the offence undersection 506 of IPC trial Court had chosen to take help of recitals insection 164 Statement of Cr.P.C. There is reference of threatening by theaccused( Paragraph 51). As said above and even by the trial Court section164 statement is not a substantive evidence still the trial Court cannotresist herself from using recitals in the statement and considered it assubstantive evidence. We disagree with the approach of the trial Courtand conclusion drawn on that basis.OFFENCE UNDER THE INFORMATION AND TECHNOLOGY ACT44.On the basis of nude photographs of the victim girl andpornographic images found in the mobile phone trial Court has convictedthe appellant accused for the offence punishable under section 67 B ofthe Information Technology Act. We agree to this finding to certain extent.We have already discussed the evidence on the point of seizure of the on 03 04 2021 on 12 04 Cri.Appeal 831.2015 22mobile phones during personal search of the accused and analysis done ofthese mobiles by the Forensic Laboratory. We have already referred topornographic images of victim and certain jpeg. image files of the girlvictim found in the memory card. We are not inclined to connect theseimages to the victim for want of identification. Whatever the Expert hasmentioned is on the basis of information given to them by the police.However we are inclined to accept the analysis to certain extent that is tosay pornographic images were found in it. 45.Section 67 B of the Information & Technology Act defines andlays down punishment for sexually explicit act depicting children inelectronic form. It is true that there is no evidence that these images wereuploaded anywhere. There is no evidence that it is transmitted to anyother person in any manner. However depicting the children in obscene orindecent or sexually explicit manner in electronic form is punishableunder section 67 Bof the Information Technology Act. We feel that theact of the accused certainly falls within clauseto sub section 5A to Section 164 ofCr.P.C.). Though Hon ble Supreme Court in case of Shivanna @ TarkariShivannahas expressed desire to consider the statement asexamination in chief amendment to that effect is not brought to ournotice. So with all pains we have no alternative but to set aside convictionof the appellant for the offence punishable under section 376(2)(i) of IPCand under section 506 of IPC. We are maintaining conviction undersection 67 B of the Information & Technology Act.48.We take this opportunity to opine that the concernedauthorities of the State Government or Central Government will takesome initiative in incorporating certain amendments under relevant lawsso as to give status to section 164 statement as that of examination in chief in all eventualities. We hope that legislatures will also consider thepractical realities of the life which the victim has to face. The traumawhich victim has to undergo after the incident does not stop there andwhen it comes to facing the real life issues there may be occasion for thevictim to forego all the trauma which she had undergone and to take U on 03 04 2021 on 12 04 Cri.Appeal 831.2015 24turn. We feel that similar thing has happened in this case. At the sametime we have recognized the accepted principles of appreciation ofevidence and in the zeal of protecting the interest of the victim we cannotgive go bye to these accepted principles. In order to avoid similar situationin future we feel that appropriate authorities will speed up the process ofmaking amendment as mentioned above. Hence the following order ispassed:ORDERa)Appeal is partly allowed.b)The judgment dated 15 7 2015 passed by Special Judge &Additional Sessions Judge 3 Nashik in Sessions CaseNo.207 2014 thereby convicting the appellant for the offencepunishable under section 376and 506 of IPC is setaside.c)Conviction under section 67 B of the Information &Technology Act is maintained.d)The accused be set at liberty if he has already undergone thesentence for the offence punishable under section 67 B of theInformation & Technology Act and if not required in anyother case.e)Registrar Judicial I is directed to send a copy of this judgmentto the Secretary of Law and Justice Department Governmentof Maharashtra and the Central Government forconsideration and appropriate action about the viewsexpressed above. on 03 04 2021 on 12 04 Cri.Appeal 831.2015 25 f) Rest of the order is maintained. (PRASANNA B. VARALE J.) |
Commercial Quantity – Quantity Greater than the Quantity Specified in the NDPS Act : High Court of Shimla | The NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule. S. 2 (xxiii-a) defines a small quantity as the quantity less than the quantity specified in the table of the NDPS Act. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. This remarkable judgement was passed by Shimla High Court in the case of Pratyush Thakur v. State of [H.PCr.MP(M) No.390 of 2021] by The Hon’ble Mr. Justice Anoop Chitkara. The Petitioner filed petition for anticipatory bail, apprehending arrest under Section 438 CrPC, for joint possession of 704 grams of Charas, which is an intermediate quantity. The police had recovered 704 gms of Charas from petitioner. In the investigation, the accused told that when they had gone to purchase the Charas, they used to call him and asked him to procure the contraband for him as well. The incarceration before the proof of guilt would had caused grave injustice to the petitioner and family. While opposing the bail, the alternative contention on behalf of the State is that if this Court is inclined to grant bail, such a bond must be subject to very stringent conditions. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule. Commercial quantity mandates minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act. The contraband involved is 704 grams of Charas, which prima facie is not a Commercial quantity. As such, the rigors of Section 37 of the NDPS Act shall not apply in the present case. In Sami Ullaha v Superintendent Narcotic Control Bureau, and In Sunny Kapoor v State of HP, Court observed that when the quantity is less than commercial, the rigors of Section 37 of the NDPS Act will not attract. In Sumit Mehta v. State of N.C.T. of Delhi, Court holds that while exercising power Under Section 438 of the Code, the Court is duty-bound to strike a balance between the individual’s right to personal freedom and the right of investigation of the police. The court was of the opinion that, ‘the petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Twenty-five thousand (INR 25,000/-), and shall furnish two sureties that in case the accused fails to appear in Court, then such sureties are capable to produce the accused before the Court, In the alternative, the petitioner may furnish aforesaid personal bond and fixed deposit(s) for Rs. Twenty-five thousand only (INR 25,000)’ The petition was disposed of by honourable court stating, ‘ 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 such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even to the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition.’ Click here to read more- | Hig h C o urt of H.P on 20 03 HCHP 1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACr.MP(M) No.3921Date of Decision: 19 th March 2021.Pratyush Thakur ...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. Rajiv Rai and Mr. Mukesh Sharma Advocates. For the respondent:Mr. Nand Lal Thakur Additional Advocate General and Mr. Rajat Chauhan Law Officer for the State. FIR No.DatedPolice StationSections29 of202129.1.2021Sundernagar District Mandi H.P.20 and 29 of the ND&PS Act. Anoop Chitkara Judge wherein the Full bench holds that a person can directly apply for an anticipatorybail or regular bail to the High Court without first invoking the jurisdiction of theSessions Judge.1Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 20 03 HCHP 2 3.Mr. Rajiv Rai learned counsel for the petitioner submits that the petitioner hasno criminal history. The status report also does not mention any criminal past of theaccused.4.Briefly the allegations against the petitioner are that the police had recovered704 gms of Charas fromAyush BhartiArvind Sharma which led toregistration of FIR mentioned above. In the investigation the accused told to theinvestigator that when they had gone to purchase the Charas the present petitionerused to call him and asked him to procure the contraband for him as well. Theinvestigation also reveals some bank account transactions to the same effect. Thestatus report does not mention about any criminal history. Given above the petitionis allowed with a strict condition that the petitioner shall join the investigation as andwhen called upon to do so. 5.Ld. Counsel for the petitioner contends that the custodial investigation wouldserve no purpose whatsoever. The incarceration before the proof of guilt would causegrave injustice to the petitioner and family.6.While opposing the bail the alternative contention on behalf of the State is thatif this Court is inclined to grant bail such a bond must be subject to very stringentconditions.7.Section 2of the NDPS Act defines commercial quantity as the quantitygreater than the quantity specified in the schedule. S. 2defines a smallquantity as the quantity less than the quantity specified in the table of the NDPS Act.The remaining quantity falls in an undefined category which is now generally calledas intermediate quantity. All Sections in the NDPS Act which specify an offense also mention that minimum and maximum sentence depending upon the quantity ofthe substance. Commercial quantity mandates minimum sentence of ten years ofimprisonment and a minimum fine of Rupees One hundred thousand and bail issubject to the riders mandated in S. 37 of NDPS Act.8.The contraband involved is 704 grams of Charas which prima facie is not aCommercial quantity. As such the rigors of Section 37 of the NDPS Act shall notapply in the present case. Resultantly the present case is similar to other instances of Hig h C o urt of H.P on 20 03 HCHP 3 the grant of bail in a penal offence. In the facts and circumstances peculiar to thiscase the petitioner makes out a case for release on bail.9.In Sami Ullaha v Superintendent Narcotic Control Bureau 16 SCC471 the Hon’ble Supreme Court holds that in intermediate quantity the rigors of theprovisions of Section 37 may not be justified. In Sunny Kapoor v State of HP CrMPM 21620 this Court observed that when the quantity is lessthan commercial the rigors of Section 37 of the NDPS Act will not attract andfactors become similar to bail petitions under regular statutes. Thus when themaximum sentence cannot exceed ten years and the accused is yet to be provedguilty the grant of bail is normal unless the Prosecution points towards theexceptional circumstances negating the bail. 10.The possibility of the accused influencing the investigation tampering withevidence intimidating witnesses and the likelihood of fleeing justice can be takencare of by imposing elaborative and stringent conditions. In Sushila Aggarwal5 SCC 1 Para 92 the Constitutional Bench held that unusually subject to theevidence produced the Courts can impose restrictive conditions. In Sumit Mehta v.State of N.C.T. of Delhi and shall furnish two sureties of a similar amount to the satisfaction of theInvestigator. Before accepting the sureties the Attesting Officer must satisfy that incase the accused fails to appear in Court then such sureties are capable to producethe accused before the Court keeping in mind the Jurisprudence behind the sureties which is to secure the presence of the accused. 14.In the alternative the petitioner may furnish aforesaid personal bond andfixed deposit(s) for Rs. Twenty five thousand onlymade in favour of"Chief Judicial Magistrate District Mandi H.P. " a)The arresting Officer shall give a time of ten working days to enable theaccused to prepare a fixed deposit.b)Such Fixed deposits may be made from any of the banks where the stakeof the State is more than 50% or any of the stable private banks e.g. HDFCBank ICICI Bank Kotak Mahindra Bank etc. with the clause of automaticrenewal of principal and liberty of the interest reverting to the linked account. c)Such a fixed deposit need not necessarily be made from the account ofthe petitioner and need not be a single fixed deposit. d)If such a fixed deposit is made in physical form i.e. on paper then theoriginal receipt shall be handed over to the concerned Court. e)If made online then its printout attested by any Advocate and ifpossible countersigned by the accused shall be filed and the depositor shallget the online liquidation disabled. f)The petitioner or his Advocate shall inform at the earliest to theconcerned branch of the bank that it has been tendered as surety. Suchinformation be sent either by e mail or by post courier about the fixed deposit whether made on paper or in any other mode along with its number as well asFIR number. g)After that the petitioner shall hand over such proof along withendorsement to the concerned Court. h)It shall be total discretion of the petitioner to choose between suretybonds and fixed deposits. It shall also be open for the petitioner to apply forsubstitution of fixed deposit with surety bonds and vice versa. i)Subject to the proceedings under S. 446 CrPC if any the entire amountof fixed deposit along with interest credited if any shall be endorsed returned Hig h C o urt of H.P on 20 03 HCHP 5 to the depositor(s). Such Court shall have a lien over the deposits up to theexpiry of the period mentioned under S. 437 A CrPC 1973 or until dischargedby substitution as the case may be. 15.The furnishing of the personal bonds shall be deemed acceptance of thefollowing and all other stipulations terms and conditions of this bail order:a)The petitioner to execute a bond for attendance in the concernedCourt(s). Once the trial begins the petitioner shall not in any manner try todelay the proceedings and undertakes to appear before the concerned Courtand to attend the trial on each date unless exempted. In case of an appeal onthis very bond the petitioner also promises to appear before the higher Court interms of Section 437 A CrPC.b)The attesting officer shall on the reverse page of personal bonds mention the permanent address of the petitioner along with the phonenumber(s) WhatsApp numbere mailand details of personalbank account(s)and in case of any change the petitioner shallimmediately and not later than 30 days from such modification intimate aboutthe change of residential address and change of phone numbers WhatsAppnumber e mail accounts to the Police Station of this FIR to the concernedCourt.c)The petitioner shall not influence browbeat pressurize make anyinducement threat or promise directly or indirectly to the witnesses thePolice officials or any other person acquainted with the facts of the case todissuade them from disclosing such facts to the Police or the Court or totamper with the evidence.d)The petitioner shall join the investigation as and when called by theInvestigating Officer or any Superior Officer and shall cooperate with theinvestigation at all further stages as may be required. In the event of failure todo so it will be open for the prosecution to seek cancellation of the bail.Whenever the investigation occurs within the police premises the petitionershall not be called before 8 AM and shall be let off before 5 PM and shall notbe subjected to third degree indecent language inhuman treatment etc.e)In addition to standard modes of processing service of summons theconcerned Court may serve or inform the accused about the issuance ofsummons bailable and non bailable warrants the accused through E Mailand any instant messaging service such as WhatsApp etc.No. 3 2020 I.A. No. 48461 2020 July10 2020]: i.At the first instance the Court shall issue the summons. ii.In case the petitioner fails to appear before the Court on the specified Hig h C o urt of H.P on 20 03 HCHP 6 date in that eventuality the concerned Court may issue bailablewarrants. iii.Finally if the petitioner still fails to put in an appearance in thateventuality the concerned Court may issue Non Bailable Warrants toprocure the petitioner s presence and may send the petitioner to theJudicial custody for a period for which the concerned Court may deemfit and proper to achieve the purpose.16.During the trial s pendency if the petitioner repeats or commits any offencewhere the sentence prescribed is more than seven years or violates any condition asstipulated in this order the State may move an appropriate application before thisCourt seeking cancellation of this bail. Otherwise the bail bonds shall continue toremain in force throughout the trial and after that in terms of Section 437 A of theCrPC.17.Any Advocate for the petitioner and the Officer in whose presence thepetitioner puts signatures on personal bonds shall explain all conditions of this bailorder in vernacular and if not feasible in Hindi.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 formodification of such term(s) the petitioner may file a reasoned application beforethis Court and after taking cognizance even to the Court taking cognizance or thetrial Court as the case may be and such Court shall also be competent to modify ordelete any condition.19.This order does not in any manner limit or restrict the rights of the Police orthe investigating agency from further investigation per law.20.Any observation made hereinabove is neither an expression of opinion on themerits of the case nor shall the trial Court advert to these comments.21.In return for the protection from incarceration the Court believes that theaccused shall also reciprocate through desirable behavior.In the facts and circumstances peculiar to this case the petition stands allowed Hig h C o urt of H.P on 20 03 HCHP 7 in the terms mentioned above.Copy Dasti. Anoop Chitkara Judge.March 19 2021 |
Plea to treat officer at par with the other colleagues upheld by the court: Delhi High Court | The Delhi High Court, in a matter, upheld the plea of the petitioners filed to be placed at par and demanded equal treatment like all his batch-mates as per Central Civil Service (Temporary Services) Rules, 1965. The same was observed in a recent matter of Kamlesh Singh Kushwaha v. The Director (RL) and Ors. [W.P. (C) 3248 /2019]. The proceedings of the above case were held on 10th September 2021, and the proceedings were presided by a division bench, consisting of Justice Rajiv Shakdher & Justice Talwant Singh. The comprehensive facts of the case concerning are as follows. The writ petition had been filed impugning the order of the Central Administrative Tribunal. As per petitioners, he was re-instated in the service, of which he was terminated after 10 years of service. However, the reinstatement was contended to be in violation with the Recruitment Rules as instituted under Central Civil Service (Temporary Service) Rules, 1965. The petitioner also submitted that that the order was passed after hearing the submissions advanced by learned counsel for the respondents and those submissions were also recorded and considered in the said order by Central Administrative Tribunal. Thus, it could not be said that the respondents did not get the opportunity to defend themselves. The tribunal considered that petitioners had given 10 years of services without any complaint. Further his work wasn’t even unsatisfactory to endorse his disqualification from the service. The Tribunal ordained that “there is no allegation of any misconduct against the petitioner which makes it undesirable to permit him to continue to serve the respondent. Accordingly, we direct the respondents to, without prejudice to the rights and contentions of either of the parties, reinstate the petitioner in service forthwith.” The matter was again reinstituted in the Delhi High Court. The court, after observing the facts, evidences scrutinized and hearing the counsels, opined that “Insofar as the petitioner’s grievance is concerned, that respondents have taken steps, in the interregnum, which are detrimental to his interest, the Tribunal, inter alia, will examine this grievance as well, and grant relief, if it falls within the purview of the pending OA. In case, the grievance articulated by the petitioner does not fall within the purview of the pending OA, the petitioner will have liberty to file a separate action, as per law.” | 12W.P.(C) 3248 2019 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 10.09.2021 KAMLESH SINGH KUSHWAHA Through: Mr. Bimlesh K. Singh Adv. ..... Petitioner THE DIRECTORAND ORS. ..... Respondents Through: Mr. Amit Sinha for Mr. R.V. Sinha Sr. G.C Mr. A.S.Singh & Mr. Sharanya Sinha Advs. HON BLE MR. JUSTICE RAJIV SHAKDHER HON BLE MR. JUSTICE TALWANT SINGH RAJIV SHAKDHER J.: PHYSICAL COURT HEARING] CM APPL. 30653 2021 The substantive prayers made in the application are as follows: the aforesaid writ petition “a) allow the present application and grant early Virtual physical hearing direct the respondent to treat the petitioner at par with any other Chemical Assistants of batch 2008 and also send them for special “instrumental training” along with other Chemical Assistants ” 2. Mr. Bimlesh K. Singh who appears for the applicant petitioner has broadly taken us through the backdrop in which the writ petition came to be filed in this Court. W.P.(C) 3248 2019 Accordingly the prayer made for early hearing is allowed. Insofar as the other prayer is concerned which is that the petitioner should be treated at par with his batchmates and sent for special ‘instrumental training’ is an aspect qua which observations are made The application is accordingly disposed of. W.P.(C) 3248 2019 & CM No. 14907 2021in Review Application preferred by the Union of India in respect of the order dated 23.07.2018. By the order dated 23.07.2018 the Original Application preferred by the petitioner had been allowed and he had been directed to be reinstated in service from which he was terminated after about 10 years of service on the ground that when he was appointed he was not qualified in terms of the Recruitment Rules. This wisdom has dawned on the respondent after 10 years of the petitioner rendering service. The respondent had then preferred writ petitions before this court in the present case as well as other connected cases being WP(C) Nos. 10235 2018 10239 2018 10240 2018 & 10241 2018. The said writ petitions were initially taken up on 27.09.2018. On that day the submission advanced on behalf of the respondents herein was that in case the petitioners herein are reinstated the said respondents would have the right to take fresh action W.P.(C) 3248 2019 after putting the petitioner herein to notice and after conducting fresh enquiry. We may observe that the termination of the services of the petitioner herein had taken place without any enquiry against him by resort to the Central Civil ServiceRules 1965. Subsequently on 28.09.2018 respondents sought to withdraw the writ petitions with liberty to prefer a review application. Consequently the respondents herein preferred their review application before the Tribunal which has been allowed by the impugned order. The ground on which the review application has been allowed is that the initial order allowing the Original Application had been passed without granting an opportunity to the respondent to file their The submission of the petitioner is that the petitioner has been left high and dry on account of the sudden termination of services without any prior notice or hearing on the ground that the petitioner did not meet the eligibility criteria when the petitioner was appointed 10 years ago. The petitioner submits that with passage of time the petitioner has become over age and would not be able to take up any employment and he has a family to support. He further submits that the respondents could not have kept the sword hanging on the petitioner s head and arbitrarily invoked the power under the Central Civil Service Temporary Service) Rules 1965 to terminate the services of the petitioner without any prior notice or hearing. The petitioner submits that the order dated 23.07.2018 was passed after hearing the submissions advanced by learned counsel for the respondents and those submissions are also recorded and considered in the said order. Thus it could not be said that the respondents did not get the opportunity to defend themselves. The further submission is that even if the Original Applications were to be restored and heard the services of the petitioner be protected in the meantime. Considering the aforesaid pleas we prima facie find merit in the submission of learned counsel for the petitioner. Pertinently the petitioner had been serving the respondent for about 10 years without any complaint. It was not that his working was found unsatisfactory on account of the alleged lack of qualification experience in terms of the Recruitment Rules. There is no allegation of any misconduct against the W.P.(C) 3248 2019 petitioner which makes it undesirable to permit him to continue to serve the respondent. Accordingly we direct the respondents to without prejudice to the rights and contentions of either of the parties reinstate the petitioner in service forthwith. We however make it clear that such reinstatement shall not create any equity in favour of the petitioner and shall not be construed as an expression of the view of this Court on the merits of the dispute. The same shall not entitle the petitioner to claim any back wages from the date of his termination till date. He shall however be allowed to discharge his duties henceforth and shall be paid the salary accordingly. This order shall continue to operate either till the disposal of the present writ petition or till the disposal of the Original Application whichever is earlier and the same shall merge with the orders that may be passed finally by the Court Tribunal. In the meantime we make it clear that the pendency of this petition shall not come in the way of the Tribunal hearing the Original Application and deciding the case. Neither party shall seek nor be granted any undue adjournment by the Tribunal. List on 08.11.2019”. 6.1. As would be evident on a plain reading of the aforesaid extract of this Court’s order dated 01.04.2019 a direction has been issued to the Central Administrative Tribunal to continue with the hearing of the original application i.e. OA No.2457 2018. 6.2. Counsel for the parties inform us that the pleadings are complete in the aforementioned OA and the matter is ripe for hearing. 6.3. As is apparent from the record the petitioner had approached the Tribunal by filing the aforementioned OA to assail the order of termination dated 12.06.2018.6.4. The basic grievance of the petitioner was that after he had been in service for nearly 10 years he was removed from service based on the investigation conducted by the Directorate General of Vigilance in 2009 W.P.(C) 3248 2019 writ petition. No.2457 2018. directions: concluding that there was a doubt with regard to his qualification. 6.5. The Tribunal in the first round agreed with the petitioner and via order dated 23.07.2018 passed in the aforementioned OA had set aside the order of removal as also the consequential orders. It appears that thereafter the respondents preferred a review application qua the aforementioned order dated 23.07.2018 which was allowed by the Tribunal vide order dated 22.02.2019. It is against this order which is dated 22.02.2019 that the petitioner has instituted the instant Having regard to the fact that the Tribunal is hearing the original application of the petitioner once again in our view the best course forward would be to allow the completion of hearing in that matter i.e. OA 7.1. Therefore the writ petition is disposed of with the following The Tribunal is requested to dispose of the original application i.e. O.A. No. 2457 2018 at the earliest though not later than 2 months from the date of receipt of a copy of the order. ii) Pending disposal of the aforementioned OA the interim directions issued by this Court vide order dated 01.04.2019 will continue to operate. In case the Tribunal were to pass an order which is adverse to the interest of the petitioner the interim directions contained in the order dated 01.04.2019 will operate for further 4 weeks commencing from the date of the order. Insofar as the petitioner’s grievance is concerned that respondents have taken steps in the interregnum which are detrimental to his interest the Tribunal inter alia will examine this grievance as well and grant relief W.P.(C) 3248 2019 if it falls within the purview of the pending OA. In case the grievance articulated by the petitioner does not fall within the purview of the pending OA the petitioner will have liberty to file a separate action as per law. iv) Parties and or their counsel will appear before the Registrar of the Tribunal on 17.09.2021 to enable the matter being placed before the concerned bench for appropriate orders. 7.2. As addendum to what we have said in paragraph 7.1 above we may observe that the petitioner’s grievance appears to be that he is not placed at par with officers in his batch i.e. 2008 batch therefore it may be possible to grant this relief to the petitioner in the pending OA as part of consequential relief provided the petitioner succeeds in the main matter. The writ petition and the pending application are disposed of in the aforesaid terms. All concerned will act on the digitally signed copy of this order. RAJIV SHAKDHER J TALWANT SINGH J SEPTEMBER 10 2021 nk Click here to check corrigendum if any W.P.(C) 3248 2019 |
Compromise Petition could be treated as the main proof for granting Bail: High Court of Patna | Petitioner was granted bail alleged of giving the wrong medicinal injection to the informant’s nephew. The informant later filed a compromise petition to take back the petition filed previously. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter of Chandra Prakash Gupta[Criminal Miscellaneous No. 97 of 2021].
The facts of the case were that the petitioner was arrested in connection with a case under Section 304 of the Indian Penal Code. It was alleged that the petitioner administered an injection to the informant’s nephew making the condition deteriorated. He on the way died while being taken to another hospital. It was alleged that due to the wrong medicinal injection, the death occurred. It was submitted by the informant later that he wasn’t in a proper mental state and has no grievance against the petitioner. The Petitioner said he had no ill intentions to take the life of the innocent boy while his work is of saving the patients from illness and easing their pain. Witnesses also submitted that the petitioner was innocent.
The Learned Counsel submitted that petitioner had no mens rea or any reason to commit such a crime. It was the petitioner who had arranged to send the informant’s nephew to hospital after seeing his bad health.
Learned Appellant submitted that there has been nothing in the post-mortem report but the petitioner has injected the wrong medicinal injection. The informant said that they had no intention of holding the petitioner responsible for the death and that’s why they later on filed a compromise petition in the court. It was later proved in the court that the informant filed the FIR against the petitioner under the misconception and grief of losing his nephew. To rectify their action they later filed the compromise petition.
The Hon’ble High Court of Patna held,”…in the event of arrest or surrender before the Court below within six weeks from today, the petitioner be released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty five thousand) with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate, 1st, Bhojpur, Arrah in Shahpur PS Case No. 210 of 2020, subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure, 1973 and further, and further, (i) that one of the bailors shall be a close relative of the petitioner and (ii) that the petitioner shall co-operate with the Court and police/prosecution. Failure to co-operate shall lead to cancellation of his bail bonds.”
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Judgment Reviewed By Nimisha Dublish
The facts of the case were that the petitioner was arrested in connection with a case under Section 304 of the Indian Penal Code. It was alleged that the petitioner administered an injection to the informant’s nephew making the condition deteriorated. He on the way died while being taken to another hospital. It was alleged that due to the wrong medicinal injection, the death occurred. It was submitted by the informant later that he wasn’t in a proper mental state and has no grievance against the petitioner. The Petitioner said he had no ill intentions to take the life of the innocent boy while his work is of saving the patients from illness and easing their pain. Witnesses also submitted that the petitioner was innocent. The Learned Counsel submitted that petitioner had no mens rea or any reason to commit such a crime. It was the petitioner who had arranged to send the informant’s nephew to hospital after seeing his bad health.
Learned Appellant submitted that there has been nothing in the post-mortem report but the petitioner has injected the wrong medicinal injection. The informant said that they had no intention of holding the petitioner responsible for the death and that’s why they later on filed a compromise petition in the court. It was later proved in the court that the informant filed the FIR against the petitioner under the misconception and grief of losing his nephew. To rectify their action they later filed the compromise petition.
The Hon’ble High Court of Patna held,”…in the event of arrest or surrender before the Court below within six weeks from today, the petitioner be released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty five thousand) with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate, 1st, Bhojpur, Arrah in Shahpur PS Case No. 210 of 2020, subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure, 1973 and further, and further, (i) that one of the bailors shall be a close relative of the petitioner and (ii) that the petitioner shall co-operate with the Court and police/prosecution. Failure to co-operate shall lead to cancellation of his bail bonds.”
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Judgment Reviewed By Nimisha Dublish
Learned Appellant submitted that there has been nothing in the post-mortem report but the petitioner has injected the wrong medicinal injection. The informant said that they had no intention of holding the petitioner responsible for the death and that’s why they later on filed a compromise petition in the court. It was later proved in the court that the informant filed the FIR against the petitioner under the misconception and grief of losing his nephew. To rectify their action they later filed the compromise petition.
The Hon’ble High Court of Patna held,”…in the event of arrest or surrender before the Court below within six weeks from today, the petitioner be released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty five thousand) with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate, 1st, Bhojpur, Arrah in Shahpur PS Case No. 210 of 2020, subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure, 1973 and further, and further, (i) that one of the bailors shall be a close relative of the petitioner and (ii) that the petitioner shall co-operate with the Court and police/prosecution. Failure to co-operate shall lead to cancellation of his bail bonds.”
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Judgment Reviewed By Nimisha Dublish
The Hon’ble High Court of Patna held,”…in the event of arrest or surrender before the Court below within six weeks from today, the petitioner be released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty five thousand) with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate, 1st, Bhojpur, Arrah in Shahpur PS Case No. 210 of 2020, subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure, 1973 and further, and further, (i) that one of the bailors shall be a close relative of the petitioner and (ii) that the petitioner shall co-operate with the Court and police/prosecution. Failure to co-operate shall lead to cancellation of his bail bonds.” | IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 921 Arising Out of PS. Case No. 210 Year 2020 Thana SAHPUR District Bhojpur Chandra Prakash Gupta @ Bablu aged about 50 years Sex Male Son of Jagdish Gupta Resident of village Shahpur Police Station Shahpur District Bhojpur The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State For the Informant Mr. Choubey Jawahar Advocate Ms. Suman Kumari Singh APP Mr. Nitya Nand Tiwary Advocate CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 24 09 2021 The matter has been heard via video conferencing 2. Heard Mr. Choubey Jawahar learned counsel for the petitioner Ms. Suman Kumari Singh learned Additional Public Prosecutor for the State and Mr. Nitya Nand Tiwary learned counsel for the 3. The petitioner apprehends arrest in connection with Shahpur PS Case No. 2120 dated 04.07.2020 instituted under Section 304 of the Indian Penal Code 4. The allegation against the petitioner who is the owner of a medicine shop is that when the informant went to his shop with his nephew who was ill he had administered an Patna High Court CR. MISC. No.921 dt.24 09 2021 injection due to which his condition deteriorated and despite him having been taken to the Referral Hospital from where he was asked to go to a better hospital and on the way he died. Thus it is alleged that due to administration of wrong medicine the death had occurred 5. Learned counsel for the petitioner submitted that he is running a medicine shop from the year 2004 and there has been no complain and the present allegation is false as no such act has been committed by him. It was submitted that later the informant himself has filed compromise petition before the Court below stating that due to him not being in proper state of mind the name of the petitioner has been taken and that he has no grievance against him. Learned counsel submitted that the petitioner has no reason or motive to commit any crime that too of such a serious nature of taking the life of a young boy when he sells medicine for easing the illness and pain of others. It was further submitted that during investigation witnesses have stated with regard to the petitioner being 6. Earlier the Court had asked learned APP to obtain the up to date legible photo copy of the entire case diary of Shahpur PS Case No. 2120 from the Superintendent Patna High Court CR. MISC. No.921 dt.24 09 2021 of Police Bhojpur along with the postmortem report. Learned APP submitted that the same has been received 7. Learned counsel submitted that there cannot be any reason or motive for the petitioner to commit the crime as he runs a medicine shop i.e. his livelihood and also that there was no enmity or mens rea or even any reason to have commited the crime. In fact it was submitted that when the condition of the nephew of the informant did not improve it has been stated in the FIR that it was the petitioner who arranged for sending him to a 8. Learned APP submitted that the postmortem report does not disclose anything. However it was submitted that as per the allegation the petitioner had administered a wrong injection 9. Learned counsel for the informant submitted that because of some misconception and non recognition of the petitioner his name was taken in the FIR but he is not aggrieved and does not hold the petitioner responsible for the death of his nephew and that is why he has filed a compromise petition in the 10. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties as there does not appear to be any reason for the petitioner to commit Patna High Court CR. MISC. No.921 dt.24 09 2021 the crime being only the proprietor of a medicine shop and later on the informant himself filing a compromise petition before the Court stating that due to misconception and being told by somebody present there he had named the petitioner and alleged certain things against him but having realized that he has no role in the death of his nephew he has filed compromise petition which has been supported by learned counsel for the informant the Court is inclined to allow the prayer for pre arrest bail 11. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioner be released on bail upon furnishing bail bonds of Rs. 25 000 twenty five thousand) with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate 1st Bhojpur Arrah in Shahpur PS Case No. 2120 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further and further that one of the bailors shall be a close relative of the petitioner andthat the petitioner shall co operate with the Court and police prosecution. Failure to co operate shall lead to cancellation of his bail bonds 12. It shall also be open for the prosecution to bring any violation of the foregoing conditions by the petitioner to the Patna High Court CR. MISC. No.921 dt.24 09 2021 notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the petitioner 13. The petition stands disposed of in the (Ahsanuddin Amanullah J |
Writ Petition under Article 226 of the Constitution against a Judicial Order of High Court is not maintainable | The Hon’ble Supreme Court of India in Neelam Manmohan Attavar V. Manmohan Attavar (R) held that a writ petition under Article 226 of the Constitution is not maintainable if filed to challenge a Judicial order of a High court. The division bench comprising of Hon’ble Justice DY Chandrachud and KM Joseph observed that, “we are of the view that a writ petition under Article 226 of the Constitution would not be maintainable in order to challenge an order which has been passed by the High Court in the exercise of its judicial powers. In the present case, the High Court has exercised its revisional jurisdiction. Merely assailing the order as an order which is void would not enable a litigant to avoid the consequences which emanate from the order, by instituting a writ petition under Article 226. A litigant is not without her remedies. An order which has been passed by the High Court can either be assailed in a Letters Patent Appeal (in those cases where the remedy of a Letters Patent Appeal is available in law) or by way of a review (where the remedy of a review is available in a certain class of matters). A remedy is available to a litigant against a judicial order of the High Court passed in revisional proceedings, under Article 136 of the Constitution before this court.” | IN THE CRIMINAL ORIGINAL JURISDICTION Transferred CaseNo 20 Neelam Manmohan Attavar Manmohan AttavarThr LRs O R D E R The petitioner instituted a writ petition1 under Article 226 of the Constitution seeking to challenge a judgment dated 31 July 2018 delivered by a Single Judge of the High Court of Karnataka in the exercise of the criminal revisional jurisdiction. The relief which was sought in the writ petition was that the judgment of a Single Judge of the High Court dated 31 July 2018 in Criminal Revision Petition 282 of 2018 “may be declared void disabled recalled”. For convenience of reference the prayers in the writ petition are extracted below The Writ may be permitted.” Judgment dt 31.7.2018 passed in Crl RP 282 2018 may be declared void disabled recalled to protect rights and secure probity in public life De novo Fresh Free hearing may be recommended before a higher full Bench.” Writ Petition 442318 The writ petition before the High Court has been transferred to this Court on 13 December 2019 under Article 139A of the Constitution in Transfer Petition Criminal) No 3419. The order of transfer reads thus “Having heard the petitioner in person and the learned counsel appearing for the respondents and gone through this transfer petition filed under Article 139A of the Constitution of India and considering the facts and circumstances of the case we deem it fit and proper to transfer W.P. No. 44237 2018 titled as “Neelam Manmohan Attavar Vs. Manmohan Attavarthrough LRs” from the High Court of Karnataka to this Court. We order accordingly. The Registry is directed to immediately transmit a copy of this order to the High Court forthwith.” The proceedings which have culminated in the institution of a writ petition under Article 226 of the Constitution before the High Court need to be summarized briefly at this stage. The petitioner instituted proceedings 2 under Section 12 of the Protection of Women from Domestic Violence Act 20053. On 30 July 2015 the petition was dismissed by the Metropolitan Magistrate Traffic Court II Bengaluru. On 5 November 2015 in an appeal 4 arising out of the dismissal of the proceedings the interim relief seeking residence and expenses was initially refused by the Additional Sessions Judge Bengaluru. Subsequently on 19 September 2016 in a petition5 under Article 226 filed by the petitioner the Single Judge recognised a right of residence to the petitioner in a house situated at Bengaluru and on 24 October 2016 directed the withdrawal of the appeal to the High Court. These orders of the High Court became the subject matter of Criminal Misc Petition No 1713 renumbered as Criminal Misc Petition No 1315 4 Criminal Appeal No 10715 Writ Petition No 491516 proceedings before this Court in Civil Appeal Nos 2500 and 25017. On 14 July 2017 this Court set aside the orders passed by the High Court in regard to residence and for the withdrawal of the appeal to itself. On 17 August 2017 this Court also dismissed a petition seeking a review of its judgement dated 14 July 2017. As a consequence of the judgment rendered by this Court the appeal filed by the petitioner before the Additional City Civil and Sessions Judge was heard on merits and was eventually dismissed by an order dated 17 February 2018. The petitioner carried the matter in revision6 which was dismissed by the High Court on 31 July 2018. Challenging the order of the High Court the petitioner filed a writ petition under Article 226 of the Constitution. The writ petition has been transferred to this Court under Article 139A by an order of this Court dated 13 December 2019 The petitioner who has appeared in person has submitted that the writ petition under Article 226 is maintainable on the ground that the order dated 31 July 2018 of the High Court is void ab initio. Elaborating her submissions the petitioner has urged that the order has not been written by the Judge of the High Court. Moreover the petitioner submits that the High Court while disposing of the criminal revision has not exercised its jurisdiction in a manner consistent with the provisions of Section 397 of the Code of Criminal Procedure 1973. On merits the petitioner has assailed the correctness of the findings of the High Court which affirmed the judgment of the appellate court and held that the original respondent with whom the petitioner claims to have entered into a relationship ‘in the nature of marriage’ had a subsisting marriage and hence such an alleged relationship could not have been legitimately recognized in law 6 Criminal Revision Petition No 2818 The petitioner has challenged this finding of the High Court together with the other findings to the effect thatthere was no shared household andthere was no proof of marriage. The petitioner challenges these findings on the ground that they are erroneous The petitioner has further submitted that in order to put forth a claim based on a relationship in the nature of marriage it is not necessary under the law that neither of the parties should have a subsisting marriage and that notwithstanding the fact that the respondent was in a subsisting marriage a valid claim under the Act would be maintainable in a situation such as the one which has been set up by the petitioner as the foundation for the grant of relief She urged that in a situation such as the present if the respondent who had a subsisting marriage entered into a relationship with her there is no reason why a woman in the relationship should be left without a remedy At the outset and since the petitioner has appeared in person we have made her conscious of the fact that she has instituted a writ petition under Article 226 of the Constitution to challenge an order which has been passed on the judicial side by a Single Judge of the High Court exercising revisional jurisdiction against proceedings which originated from a claim under the Act Urging that the writ petition is maintainable under Article 226 the petitioner has highlighted the pleadings contained in the writ petition as the basis for her grievance that the order has not as a matter of fact been scribed by the Single Judge of the High Court. The allegations which have been made in the writ petition are extracted below Grave Injustice and Serious Prejudice Evidence Act S 44 reads fraud or collusion in obtaining judgment or incompetency of court may be proved Judgment passed in Crl RP 282 2018 dated 31.7.2018 is the culminating evidence and testimony to trail of grave injustice and serious prejudice in the instant case where Courts themselves are complicit As submitted to Hon’ble CJ Kar vide CJC 1694 2018 dt 3.8.2018 and instructions dt 21.8.2018 on the evidence placed before Lordship issued on 23.8.2018 the Petitioner is resubmitting the two judgments passed by Hon’ble Sitting Judge of HC in her matters on 31.7.2018 and as PCCJ on 16.2.2016. Also another Judgment passed by “same” Hon’ble Sitting Judge of HC on 27.6.2018 in another matter as material proof of language of the Sitting Judge even on date Judgment in question dt 31.7.2018 is not written by Sitting Judge although it bears his authorship That such a situation was foreseen after claims of Adv Vasudevan N prior commencement of hearing was duly reported to Ld RG. It is a verifiable fact and prima facie evidence Language of the Hon’ble Sitting Judge of HC is self speaking testimony to the fact. It is impropriety and the judgment should have no values in eyes of Litmus test amplifies further…PS to Director WCD was casually asked to read a free flowing para from each judgment passed in Petitioner’s case Q: Is it written by the same person This was enough to strengthen petitioner’s belief.” The original respondent has died on 12 December 2017. His Legal Representatives have been impleaded as parties to the writ petition Having heard the petitioner who appears in person and Mr. Balaji Srinivasan learned counsel appearing on behalf of the Legal Representatives of the original respondent we are of the view that a writ petition under Article 226 of the Constitution would not be maintainable in order to challenge an order which has been passed by the High Court in the exercise of its judicial powers. In the present case the High Court has exercised its revisional jurisdiction. Merely assailing the order as an order which is void would not enable a litigant to avoid the consequences which emanate from the order by instituting a writ petition under Article 226. A litigant is not without her remedies. An order which has been passed by the High Court can either be assailed in a Letters Patent Appeal in those cases where the remedy of a Letters Patent Appeal is available in law or by way of a reviewSECTION XVI A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Transferred CaseNo.1 2020 NEELAM MANMOHAN ATTAVAR Petitioner(s VERSUS MANMOHAN ATTAVARTHR LRS Respondent(s WITITH IA No.84373 2020 APPROPRIATE ORDERS DIRECTIONS & IA No 31910 2020 APPROPRIATE ORDERS DIRECTIONS Date : 03 09 2020 This case was called on for hearing today CORAM : HON BLE DR. JUSTICE D.Y. CHANDRACHUD HON BLE MR. JUSTICE K.M. JOSEPH Petitioner in person Mr. Balaji Srinivasan AOR UPON hearing the counsel the Court made the following O R D E R The Transferred Case is disposed of in terms of the signed order Pending applications if any stand disposed of AR CUM PS COURT MASTER Signed order is placed on the file SAROJ KUMARI GAUR |
Health insurance claim agents to be considered as rendering essential services whilst lockdown: Delhi High Court | The present petition before the Delhi High Court deals with mobility issues arising out of the current Covid-19 scenario in India where numerous states are imposing lockdown. The matter before the bench of Pratibha M. Singh J. dealt with the allowance of insurance agents to move around as insurance claims form an unavoidable part of the current situation; which was duly observed in Max Bupa Health Insurance Co. Ltd v Government of NCT Delhi [W.P.(C) 5179/2021]. The Petitioner, in the present petition, is a leading insurance company which is engaged in the business of health insurance plans and mediclaim policies. As part of its everyday operations, the employees of the Petitioner deal with issuance of medical/healthcare policies, cashless claims requests and claims from policy-holders. These claims are filed through online platforms as also through courier, post, by hand and are stated to be submitted by policy holders, their family members or their agents even at hospitals & like establishments as also at the Petitioner’s branch offices. It is the case of the Petitioner that the outbreak of the COVID-19 pandemic has seen an upsurge in claims being filed which are being handled at its various branch offices. Lockdown was declared by the GNCTD on 19th April 2021 and only some essential services have been exempted from the lockdown in terms of the order issued. The present petition has been necessitated due to the rejection of e-pass by the Delhi Government, to the employees of the Petitioner, who are required to move from place to place for clearance of the insurance claims etc. It was argued on behalf of the petitioners that the Govt. of NCT of Delhi through the Delhi Disaster Management Authority (`DDMA’) in its order dated 19th April, 2021 has classified insurance companies under category 4 (l) and persons in the said categories require an e-pass in order to be able to move freely during the lockdown. The employees of the company, pursuant to the said requirement, applied to the GNCTD for an e-pass. However, all their applications have been ‘rejected’ without any reasons. The bench perused the notification/order dated 19th April, 2021, imposing curfew, as extended vide order dated 1st May, 2021, issued by the DDMA GNCTD, there were two classes of individuals who were granted exemption from the curfew restrictions. The category of individuals was those who were rendering services as specified in categories 4(a) to 4(k). Persons falling in these categories were exempted from the movement restrictions upon producing a valid Identity card/ photo entry pass/permission letters. The Respondent- GNCTD, trreated all the employees of the Petitioner under clause 4(l)(ii). The court was of the opinion that, to the extent that the employees of the Petitioner were dealing with processing and clearing of claims relating to health insurance policies or Mediclaim policies and like policies, the said services would be incidental to the other services as mentioned in clause 4(d), and ought not to be treated as equivalent to general insurance services which are being given. Medical insurance and health insurance services are essential services during the COVID-19 pandemic situation. Thus, the employees of the Petitioner company, who were dealing with medical and health insurance services, ought to be permitted to move freely between hospitals and their own offices, in order to expedite the processing of medical insurance claims. | IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 06th May 2021 W.P.(C) 5179 2021 MAX BUPA HEALTH INSURANCE CO LIMITED ..... Petitioner Through Ms. Gurmeet Bindra Advocate. GOVERNMENT OF NCT DELHI & ANR. ..... Respondents Through Mr. Santosh Kumar Tripathi Standing Counsel GNCTD with Mr. Aditya P Khanna Advocate. JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.This hearing has been done through video conferencing. CM APPL. 15898 2021 5179 2021 & CM APPL. 15897 2021The Petitioner in the present petition is a leading insurance company which is engaged in the business of health insurance plans and mediclaim policies. As part of its everyday operations the employees of the Petitioner deal with issuance of medical healthcare policies cashless claims requests and claims from policy holders. These claims are filed through online W.P.(C) 5179 2021 platforms as also through courier post by hand and are stated to be submitted by policy holders their family members or their agents even at hospitals & like establishments as also at the Petitioner’s branch offices. It is pleaded that in Delhi the Petitioner has various branch offices from where the receipt processing and approval of claims is carried out after collating the documents. The case of the Petitioner is that the company has approximately 35 personnel for the purposes of clearance of claims and processing of cashless claims etc. relating to health insurance and mediclaim policies for various patients who are primarily suffering from COVID 19 and are admitted in various hospitals. The Petitioner has branches all over Delhi with approximately 256 employees however only around 30 to 35 officials are required to attend offices in order to process the claim documents of these It is the case of the Petitioner that the outbreak of the COVID 19 pandemic has seen an upsurge in claims being filed which are being handled at its various branch offices. Lockdown was declared by the GNCTD on 19th April 2021 and only some essential services have been exempted from the lockdown in terms of the order issued. The present petition has been necessitated due to the rejection of e pass by the Delhi Government to the employees of the Petitioner who are required to move from place to place for clearance of the insurance claims etc. Reference is also made to the order dated 28th April 2021 in WP(C) 5026 2021 titled Vinay Jaidka v. Chief Secretary wherein this Court had directed that all insurance companies ought to process the insurance claims within a period of 30 to 60 minutes so that the discharge of patients is not W.P.(C) 5179 2021 delayed and hospitals beds are not blocked due to the said delay in processing the claims. It is stated that the IRDAI has also issued directions vide circular dated 29th April 2021 which reads as under: “1. Reference is invited to Order dated 28.4.2021 passed by Hon’ble High Court of New Delhi in WP(C) No. 5026 2021 wherein IRDAI was directed to advise Insurers to communicate their cashless approvals to the concerned hospitals establishments within a maximum time period of 30 to 60 minutes so that there shall not be any delay in discharge of patients and hospital beds do not 2. In this regard attention is invited to circular IRDAI HLT MISC CIR 95 04 2020 dated 18.4.2020 wherein a fixed turnaround timeof two hours for granting both cashless pre authorization and for final discharge of the insured patient was specified. 3. In the wake of prevailing conditions of COVID 19 cases in the form of second wave and in line with aforesaid directions of the Hon’ble High Court the following directions are issued to all insurers: a. Decision on authorization for cashless treatment for COVID 19 claims shall be communicated to the network provider within a period of 60 minutes from the time of receipt of authorization request along with all necessary requirements from the hospital. b. Decision on final discharge of patients covered in COVID 19 claims shall be communicated to the network provider within a period of ONE hour from the time of receipt of final bill along with all necessary requirements from the hospital. 4. Notwithstanding limits of timelines specified the insurers are advised to the above outer W.P.(C) 5179 2021 process such requests promptly so that both authorization for cashless treatment and discharge of the patient can be hastened to the maximum 115 1 Financial District Nanakramguda 8. Ms. Bindra ld. counsel appearing for the Petitioner submits that the Govt. of NCT of Delhi through the Delhi Disaster Management Authority DDMA’) in its order dated 19th April 2021 has classified insurance companies under category 4and persons in the said categories require an e pass in order to be able to move freely during the lockdown. The employees of the company pursuant to the said requirement applied to the GNCTD for an e pass. However all their applications have been ‘rejected’ without any reasons. 9. Mr. Tripathi ld. Counsel appearing for GNCTD submits that there are various discrepancies in the documents which have been submitted by these employees. For example the employee is residing in one district and he has applied for an e pass in a different district and such other discrepancies due to which the issuance of e passes is still pending. As per his submission the same have not been rejected. 10. Heard ld. Counsels for the parties and perused the record. 11. A perusal of the notification order dated 19th April 2021 imposing curfew as extended vide order dated 1st May 2021 issued by the DDMA GNCTD there are two classes of individuals who are granted exemption from the curfew restrictions. The first category of individuals are those who are rendering services as specified in categories 4(a) to 4(k). Persons falling in these categories are exempted from the movement restrictions upon producing a valid Identity card photo entry pass permission letters. The W.P.(C) 5179 2021 second category of individuals are those who fall under categories 4(l) and 4(m) for whom movement is permitted only after applying and obtaining an e pass. Insofar as the present case is concerned category nos. 4(d) and 4(l)(ii) are relevant and are set out below: “4. Now therefore in exercise of powers conferred under section 22 of the Disaster Management Act 2005 the undersigned in his capacity as Chairperson State Executive Committee DDMA GNCTD hereby directs that there shall be curfew on movement of individuals except for exemptions given below in this order) in the territory of NCT of Delhi with effect from 10:00 pm on to 5:00 am on 26.04.2021 19.04.2021 Monday). Following categories of individuals are however exempted the above restriction of movement during curfew: d): All private medical personnel such as Doctors nursing staff paramedical etc and other hospital services on production of valid I l) Movement of persons related to commercial and private establishments offices providing the following services commodities shall only be allowed: …... ii. Banks Insurance offices and ATMs SEBI Stock related offices.” 12. The Respondent GNCTD is treating all the employees of the Petitioner under clause 4(l)(ii). 13. However this Court is of the opinion that to the extent that the W.P.(C) 5179 2021 employees of the Petitioner are dealing with processing and clearing of claims relating to health insurance policies or Mediclaim policies and like policies the said services would be incidental to the other services as mentioned in clause 4(d) and ought not to be treated as equivalent to general insurance services which are being given. 14. Medical insurance and health insurance services are essential services during the COVID 19 pandemic situation. Thus the employees of the Petitioner company who are dealing with medical and health insurance services ought to be permitted to move freely between hospitals and their own offices in order to expedite the processing of medical insurance claims. 15. Moreover a perusal of the screenshot of the Respondent’s website which has been placed on record shows that the information with respect to the Petitioner s application for e pass has been rejected. The message in the said screenshot of the Respondent’s website states as under: “ePass for NGLS7BW NOT Generated Approved yet Current Status: Rejected” 16. The above message is extremely ambiguous as it does not reflect the stand taken before the court today i.e. that there were deficiencies in the documents. During the pandemic if issuance of e pass can be made a complex process for persons dealing with health insurance policies and claims thereunder it would result in enormous delays. Employees of insurance companies cannot be restrained in this manner from free movement as their movement is essential during the situation of a pandemic where many are dependent on the clearance of health insurance claims for discharge from the hospitals. Accordingly the following directions are W.P.(C) 5179 2021 i) The employees of the Petitioner who are dealing with health insurance claims as also mediclaims etc. and are processing the claims of patients who are admitted in hospitals or otherwise shall be considered as rendering essential services and shall be deemed to be covered under Entry No. 4(d) of the order passed by the DDMA GNCTD dated 19th April 2021. ii) However in order to ensure that there is a proper record of the said employees the Petitioner shall today itself give a complete list of the employees along with their Aadhar Card ID numbers and one common certificate certifying that all the said employees would be dealing with processing and clearance of claims relating to health insurance or mediclaim policies. The said letter and certificate along with the Aadhar card of the concerned employees shall be emailed to [email protected]. iii) By return email the official concerned of the GNCTD shall acknowledge the receipt of the said documents. In accordance with this order the said employees after the documents having been submitted to the official concerned shall be exempted from the curfew restrictions as they would be deemed to be covered under entry no.4(d) of the order dated 19th April 2021 passed by the GNCTD. 18. With these observations the present petition and all pending application are disposed of. PRATHIBA M. SINGH MAY 6 2021 W.P.(C) 5179 2021 |
Proceedings initiated under Rule 43(b) of the Bihar Pension Rules cannot be converted under Rule 139(b): Jharkhand High Court | It is a settled legal proposition that if a proceeding has been initiated or not completed in course of service under Rule 43(b) of the Bihar Pension Rules, the same cannot be converted under Rule 139(b) of the Bihar Pension Rules, rather the same will be deemed to have been converted under Rule 43(b) of Bihar Pension Rules. The High of Court Jharkhand in the case of Jagannath Prasad Sah vs The State of Jharkhand [W.P. (S) No. 6876 of 2019] by Single Bench consisting of Hon’ble Shri Justice DR. S. N. Pathak. The facts of the case are that petitioner was initially appointed as Assistant Engineer on attaining the age of retirement, A departmental proceeding was initiated against him under Rule 43(B) of the Pension Rules, alleging therein that there was a violation of departmental rules in Tender invitation wherein it was disclosed that petitioner shall be imposed punishment of deduction of 5% of pension under Rule 139 of the Pension Rules. Following this petitioner has approached this court. The Learned counsel for the petitioner submits that from the Enquiry Report it clearly reveals that though the petitioner was exonerated from the charges the same has been given go bye and he has been given harsh punishment at his old age. The impugned orders of punishment and appellate orders are cryptic and liable to be quashed. The deviation from the enquiry report mandates specific show cause to that effect but the same was never served upon the petitioner in total violation of principles of natural justice. “Even prior to awarding punishment, the respondents had already disclosed their mind that they are going to inflict punishment and identical punishment was inflicted to him, which shows bias ness.” Learned counsel on the other side, argues that the petitioner was supposed to be a responsible government servant. During his service period, the Chief Engineer, Department of Water Resources, Government of Jharkhand issued a letter vide memo to the Engineer-in-Chief. Learned counsel further submits that though the enquiry was started but, in the meantime, the petitioner retired and as such appropriate action could not be taken. In view of irregularities committed by the petitioner, the action of the respondents is justified. There is no infirmity in the impugned order and as such instant writ petition is fit to be dismissed. Relying on the apex court judgment Shambhu Saran Vs. The State of Bihar was held that “in our opinion, once such proceeding is started, even if the person concerned retires from service, such proceeding can be continued and it is not required that there must be any Government order to that effect before it can be allowed to continue.” | W.P.No. 68719 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.No. 68719 Jagannath Prasad Sah … … Petitioner V E R S U S 1. The State of Jharkhand 2. The Principal Secretary Water Resources Department Government of 3. The Deputy Secretary Water Resources Department Government of Jharkhand Ranchi Jharkhand Ranchi 4. The Under Secretary Water Resources Department Government of Jharkhand Doranda Ranchi 5. The Accountant GeneralJharkhand. CORAM: HON BLE MR. JUSTICE DR. S. N. PATHAK For the Petitioner For the Respondents: For the Accountant General: Mr. Prabhash Sinha Advocate Mr. Amit Kumar Sinha Advocate Mr. Shivam Singh AC to AAG III 06 22.03.2021 In view of outbreak of COVID 19 pandemic case has been taken up through Video Conferencing and heard at length. Concerned lawyers have no objection with regard to the proceeding which has been held through Video Conferencing and there is no complaint in respect to audio and video clarity and quality and after hearing at length the matter is being disposed of finally. PRAYER Petitioner has approached this Court with a prayer for quashing of order issued vide Memo No. 1543 dated 19.02.2014 under the signature of the Under Secretary Department of Water Resources Government of Jharkhand by which decision has been taken by the respondents for deduction of 5% of pension of petitioner for the next fifteen years. Petitioner has further prayed for quashing of memo no. 47 dated 07.01.2019 issued under the signature of Under Secretary Department of Water Resources Government of Jharkhand by which appeal preferred by petitioner against the order issued vide memo no. 1543 dated 19.02.2014 has been dismissed. Petitioner has further prayed for a direction upon the respondents to pay full pension after quashment of impugned orders. 2 W.P.No. 68719 FACTUAL MATRIX The factual exposition as has been narrated in the writ petition is that petitioner was initially appointed as Assistant Engineer at Bhagalpur in the erstwhile State of Bihar on 26.01.1979 and on attaining age of retirement he superannuated from the service on 29.02.2008 from the post of Executive Engineer. After his retirement a departmental proceeding was initiated against him under Rule 43(B) of the Pension Rules vide Resolution No. 445 dated 05.02.2009 alleging therein that there was violation of departmental rules in Tender invitation tender disposal work allocation and back dating by the petitioner with regard to works of Tender Invitation Information No. 1 05 06. After enquiry the report was submitted by the enquiry officer on 10.07.2011 wherein none of the charges against the petitioner was found proved and noting was given to exonerate the petitioner from the charges. However thereafter petitioner was served with a letter no. 5748 dated 30.09.2013 issued by Under Secretary Department of Water Resources Government of Jharkhand wherein he has been informed that allegations levelled against him has been found true and Government is in consideration for imposing punishment of deduction of 5% of Pension under Rule 139 of Pension Rules and 15 days’ time was granted to the petitioner to file show cause. Petitioner denied the allegations and submitted his reply on 28.10.2013. Without any second show cause petitioner was served memo no. 5748 dated 30.09.2013 wherein it was disclosed that petitioner shall be imposed punishment of deduction of 5% of pension under Rule 139 of the Pension Rules. After departmental proceeding an order vide memo no. 1543 dated 19.02.2014 was issued wherein petitioner was informed that he has been inflicted with punishment of deduction of 5% from his pension under Rule 139 of Pension Rules. Accordingly the Accountant General Jharkhand was also intimated vide letter no. 2198 dated 11.03.2014 recommending deduction of 5% of Pension of the petitioner for the fifteen years from the date of his superannuation. Petitioner preferred an appeal but the same was also dismissed vide memo no. 47 dated 07.01.2016. 3 W.P.No. 68719 ARGUMENTS ON BEHALF OF THE PETITIONER Mr. Amit Kumar Sinha learned counsel appearing on behalf of the petitioner submits that from the Enquiry Report it clearly reveals that though petitioner was exonerated from the charges but the same has been given go bye and he has been given harsh punishment at his old age. The impugned orders of punishment and appellate orders are cryptic and liable to be quashed. The deviation from the enquiry report mandates specific show cause to that effect but the same was never served upon the petitioner in total violation of principles of natural justice. Even prior to awarding punishment the respondents had already disclosed their mind that they are going to inflict punishment and identical punishment was inflicted to him which shows biasness. Learned counsel further submits that during service period of the petitioner no departmental proceeding was ever initiated against him and surprisingly after his retirement impugned action has been taken against him which is totally against the settled principles. The impugned proposal of deduction from pension of the petitioner is totally in violation of principles of natural justice. Learned counsel further submits that letter proposing deduction from pension under Rule 139 of the Jharkhand Pension Rules is wholly unlawful improper unjust and without authority of law. Learned counsel further argues that it is settled principle of law that if no departmental proceeding was ever initiated against an employee in respect of irregularities there is no justification to issue impugned notice against a retired employee. In the instant case the alleged irregularities relates to the year 2005 06 whereas petitioner retired on 29.02.2008 and impugned proceeding was initiated vide resolution dated 05.02.2009 and impugned orders have been passed on 19.02.2014 and 07.01.2019 respectively which are fit to be quashed ARGUMENTS ON BEHALF OF THE RESPONDENTS Mr. Shivam Singh AC to learned AAG III argues that petitioner was supposed to be a responsible government servant. During his service period the Chief Engineer Department of Water Resources Government of Jharkhand issued a letter vide memo no. 1107 dated 13.05.2008 to the 4 W.P.No. 68719 Engineer in Chief Department of Water Resources Ranchi for framing charges against the petitioner for violation of departmental rules in tender invitation tender disposal work allocation and back dating by the petitioner with respect to works of tender invitation notice no. 1 05 06. In the meantime petitioner retired from the service and after his superannuation vide memo no. 445 dated 05.02.2009 the department passed a resolution to initiate departmental proceeding against him under Rule 43(B) of the Jharkhand Pension Rules. After due process and giving opportunity to the petitioner impugned orders have been passed which are fully justifiable. Learned counsel further submits that though the enquiry was started but in the meantime petitioner retired and as such appropriate action could not be taken. In view of irregularities committed by the petitioner action of the respondents is justified. There is no infirmity in the impugned order and as such instant writ petition is fit to be dismissed FINDINGS OF THE COURT I have heard counsel for the parties and gone through the records. To decide the issue involved in this case it is important to refer to the provisions as contained in Rule 43(b) Rule 139(a) andof the Bihar Pension Rules which are being quoted herein below: further reserve 43(b) The State Government themselves the right of withholding or withdrawing a pension or any part of it whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to Government by misconduct or negligence during his service including service rendered on re employment after retirement: Provided that a) Such departmental proceedings if not instituted while the Government servant was on duty either before retirement or during re employment. i) shall not be instituted save with the sanction of the State Government ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings and iii) shall be conducted by such authority and at 5 W.P.No. 68719 such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made b) judicial proceedings if not instituted while the Government servant was on duty either before retirement or during reemployment shall have been instituted in accordance with sub clauseof clauseand c) Bihar Public Service Commission shall be consulted before final orders are passed.” 139 The full pension admissible under the rules is not to be given as a matter of course or unless the service rendered has been really approved. b) If the service has not been thoroughly satisfactory the authority sanctioning the pension should make such reduction in the amount as it thinks proper. c) The State Government reserve to themselves the powers of revising an order relating to pension passed by subordinate authorities under their control if they are satisfied that the service of the pensioner was not thoroughly satisfactory or that there was proof of grave misconduct on his part while in service. No such power shall however be exercised without giving the pensioner concerned a reasonable opportunity of showing cause against the action proposed to be taken in regard to his pension nor any such power shall be exercised after the expiry of three years from the date of the order sanctioning the pension was first passed.” It has been specifically provided under Rule 43(b) of the Bihar Pension Rules that a departmental proceeding if instituted in course of service of a Government employee that will be deemed to be a departmental proceeding even after retirement of the delinquent employee for the purpose of imposing punishment of withholding of part or full amount of pension subject to certain limitations as contained in proviso to Rule 43(b). Foremost requirement under Rule 43(b) of the Bihar Pension Rules is that there must be pecuniary loss caused to the Government and if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct. Under Rule 139(b) of the Bihar Pension Rules it has been provided that if the service of a delinquent employee is not found to be thoroughly satisfactory the sanctioning authority of pension has got power to make reduction in the amount of pension. Under Rule 139(c) of the Bihar Pension Rules the State Government has been vested with the 6 W.P.No. 68719 revisional power against the order passed by the sanctioning authority subject to limitation of 3 years from the date of the order of the sanctioning authority by providing a reasonable opportunity of showing cause against the action proposed to be taken in regard to his pension. Admittedly petitioner retired from the service on 29.02.2008 and during his service tenure no proceeding was ever initiated against him. It is settled legal proposition that if a proceeding has been initiated or not completed in course of service under Rule 43(b) of the Bihar Pension Rules the same cannot be converted under Rule 139(b) of the Bihar Pension Rules rather the same will be deemed to have been converted under Rule 43(b) of Bihar Pension Rules as has already been held in the case of Shambhu Saran Vs. The State of Bihar reported in 2000(1) PLJR 665 FB) wherein at Paragraph 8 it has been held as follows : In our opinion once such proceeding is started even if the person concerned retires from service such proceeding can be continued and it is not required that there must be any Government order to that effect before it can be allowed to continue." As a sequel of the aforesaid guidelines judicial pronouncements and facts and circumstances this writ petition stands allowed. The impugned orders issued vide Memo No. 1543 dated 19.02.2014 issued under the signature of the Under Secretary Department of Water Resources Government of Jharkhand as also the memo no. 47 dated 07.01.2019 issued under the signature of Under Secretary Department of Water Resources Government of Jharkhand are hereby quashed. Respondents are directed to pay full pension as also arrears thereof to the petitioner. The writ petition stands allowed. |
Provide opportunity to vindicate before denying provisional affiliation: Kerala High Court | The colleges must be provided with an opportunity to vindicate before they are denied provisional affiliation. An affiliation is denied when the college fails to meet basic standards of achievement set by the university. The colleges must be provided with a chance to substantiate their stand while fulfilling the deficiencies during the inspection. This proclamation was made by the Kerala High Court in the case of Principal, Century International Institute of Denstal Sciences vs. Kerala University of Health Sciences and othrs. [W.A. 155/2021] presided by C.J. S. Manikumar and J. Shaji P. Chaly. In the present case, the appellant college was denied affiliation to the Kerala University on the grounds that there were major deficiencies found while inspecting the college. 3 of the Medical staff were not present, without due authorization. Out of 3 Dental staff deputed for valuation duty, only one had reported for duty and other 2 had not. Judicial notice can be taken that deputation of faculty for valuation duty can be done only when the University directs the respective colleges to depute for such duty. The appellant contended, admittedly, one Dental staff has attended the valuation duty and the two staff would have to explain to the college, as to why they did not attend the duty. Thus, all the three Dental staff cannot be said to be absent. Further, the appellant college cannot be held responsible for their absence in not attending the valuation duty. There was no Reader in the Department of Orthodontics and no substitute had been made. Appellant college submitted that current reader had taken a long leave for personal reasons and was replaced by promoting Dr. Ajeesha to the post of Reader, who had completed 4 years of service as per DCI norms; and there is no deficiency in the post of Reader. | IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY THE 22ND DAY OF JANUARY 2021 2ND MAGHA 1942 WA. No.155 OF 2021 AGAINST THE JUDGMENT DATED 05.01.2021 IN WP(C) 26923 2020(M CENTURY INTERNATIONAL INSTITUTE OF DENTAL SCIENCE AND RESEARCH CENTRE POINACHI KASARAGODE 671 541 BY ADVS.SRI.KURIAN GEORGE KANNANTHANAMNo.269220 by which a learned single Judge of this Court declined to grant the reliefs sought for by the writ petitioner appellant and dismissed the writ petition by ordering thus “32. In view of the law laid down in the decisions referred to supra no mandamus can be issued directing the 1st respondent University to grant continuation of affiliation or to direct the 3rd respondent to include the name of the petitioner s college for centralised allotment process for allotting students for BDS course for the academic year 2020 21 since no mandamus can be issued to direct an authority to do something contrary to law. In the result the petitioner is not entitled to any of the reliefs sought for. The writ petition fails and the same is 2. Facts leading to the filing of the instant appeal are that appellant writ petitioner is the Principal of an unaided Dental College. He has filed the writ petition against the refusal of Kerala University of Health Sciences respondent No.1 to grant extension of affiliation to the Institute of Dental Science and Research Centre for the year 2020 2021. 3. Appellant has filed the writ petition stating that the College was established in the year 2003 on the Letter of Permissionissued by the W.A. 155 2021 Central Government on the recommendation of the Dental Council of India DCI). At that time the College was affiliated to Kannur University 4. As per the provisions of the Dentists Act 1948 and the regulations of DCI LOP has to be renewed year till the College gets recognition Recognition is granted by the Central Government at the time when the first batch passes out and this is done after a thorough inspection by the DCI According to the appellant once recognition is granted no further LOP of the Central Government is needed to make admissions and the said recognition has to be renewed every five years 5. Appellant college has further stated that after coming into existence of the Kerala University of Health Sciences affiliation of the college stood transferred to the new University. The University has been renewing the affiliation of all the unaided schools under the University on an year to year basis only and affiliation of the College was periodically renewed upto and including the last year i.e. 2019 20. Appellant has applied to the University for continuation of affiliation for 2021. According to the appellant there is no provision in the University Act or the Statutes which lay down the conditions under which continuation of affiliation can be granted or refused. 6. Appellant has further stated that the University has issued a letter dated 10.01.2020 to the petitioner directing production of clearance certificate from the Pollution Control Board and the licence obtained from the Grama Panchayat. Appellant has submitted a reply on W.A. 155 2021 22.01.2020 wherein it was mentioned that an arrangement is in existence for collection and disposal of bio medical waste with the Indian Medical Association Goes Eco Friendlyand that the application with the Pollution Control Board was pending. 7. Appellant has further stated that the Dental College was registered with the Panchayat in the name of the parent hospital of the College. Two weeks later Pollution Control Board has issued "Consent to Operate" dated 12.02.2020 to admit students every year till the College gets recognition. Once the College is recognized no further LOP is required W.A. 155 2021 There is no power vested with the University to issue LOPfrom year to year. This is specifically mentioned in Section 51(3) of the Kerala University of Health Sciences 2010. What is mentioned therein is no student shall be admitted by the College unless the “first time” affiliation is granted by the University. Therefore the embargo for admission is still “the first time affiliation”. To have a total picture we will have to go to the definition of an “affiliated college” mentioned in Section 2(b) of the Act. Here the affiliation is to the College and it is a one time affair. The only rider in Section 53(1) of the Act 2010 says that the College may apply for continuation of affiliation for the course of study for which affiliation “was” granted. Therefore the continuation of affiliation is a process in totality of the course and the college. Continuation of affiliation is not for a course batch yet to start but to which it was already granted Therefore the power under Section 53(1) cannot be confined to the Course admission yet to start. Nowhere in the Act statute it is provided that no admission shall be effected unless renewal of affiliation for that course is given by the University for any particular year F. It is further contended that none of the decisions referred to in the impugned judgment are applicable to the facts on hand The writ court has not considered the scope and power of the University in granting extension of affiliation to an existing course in an existing college especially in the light of Sections 51(3) & 53(1) of the KUHS Act 2010 read with St.10 of Chapter 21 of the First Statutes. The rejection of extension of affiliation to the appellant College by the University is beyond the scope of powers under Chapter 21 of the K.U.H.S W.A. 155 2021 10. Inviting the attention of this Court to Exhibit P8 dated 22.01.2020 letter of the Registrar Kerala University of Health Sciences Thrissur addressed to the appellant college Mr. Kurian George Kannanthanam learned Senior Counsel appearing for the appellant submitted that though the inspection team recorded that some of the teaching staff were found to be absent that the clinical requirements like Dental Extractions and RCT were not done according to the requirement that there was no proper documentation of details of attendance absence of staff for valuation duty and satellite clinic and that the college was informed that the application for continued affiliation would be considered on submission of a compliance report rectifying the deficiencies noted along with an affidavit on stamp paper worth Rs.200 to the effect that the deficiencies noted by the scrutiny committee are rectified within a fortnight by satisfying that there are major deficiencies a replydated 4.2.2020 was submitted by the appellant college along with documents annexed thereto explaining the reasons for their absence. As regards clinical requirements like dental extractions and RCT and documents of attendance etc. a suitable reply was also given by the college. 11. Learned Senior Counsel appearing for the appellant further submitted that thereafter on 4.5.2020 Kerala University of Health Sciences without considering the compliance report 4.2.2020 in proper perspective taking note some complaints addressed to the Governor of Kerala that the W.A. 155 2021 college is running without the permission and licence from the Chemmenad Grama Panchayat and Pollution Control Board and taking note of some feedback from some students rejected the request for continuation of provisional affiliation for the academic year 2020 21. 12. Learned Senior Counsel for the appellant further submitted that the complaint given by some of the students the inspection said to have been conducted by the Dental Council of Indiaand the report forwarded by them to the University were never a part of the deficiencies pointed out in Exhibit P8 letter dated 22.01.2020 sent to the appellant college for rectification and fresh reasons have been assigned by the Kerala University of Health Sciences for rejecting the application for continuation of provisional affiliation. 13. As regards the 1st deficiency that the Principal of the college was on leave on the inspection day and that there was no transfer of charge learned Senior Counsel for the appellant submitted that as per the procedure followed just for one days leave charge would not be transferred and that is done only if the Principal is on long leave. 14. Learned Senior Counsel further submitted that the appellant college has been running for fifteen years and that for mere absence of a few staff on the day of inspection continuation of provisional affiliation cannot be denied. He further submitted that it is not the case of Kerala University of Health Sciences that the appellant college did not appoint the W.A. 155 2021 required staff faculty for the purpose of imparting education and training and thus not satisfied the norms prescribed by the DCI the absence of staff teachers were duly explained in the compliance report. 15. Learned Senior Counsel further submitted that as per the rejection order dated 4.5.20201st respondent University has concluded that out of 6 medical staff who were on leave 3 of them have been sanctioned leave by the Principal of the appellant college. Among the 3 dental staff only one person has attended the valuation duty. If the other persons have not attended the valuation duty then the college can only take appropriate action if their absence from attending the valuation duty is not satisfactorily explained by them. As regards Mr. Sanjay Bhat Reader in the Department of Orthodontics explanation has also been submitted that he is on leave that the college has one Professor and two Readers in the Department of OMFC as per the requirement Regular Dental camps are arranged in the surrounding remote places and mobile dental van is routinely deployed for students to do adequate treatment. 16. Learned Senior Counsel further submitted that absence of a few staff faculty on a particular day in the case on hand inspection cannot be said to be a major deficiency for rejecting the request of the appellant college for continuation of provisional affiliation. He also submitted that the appellant college has been running for 15 years with recognition of the Dental Council of India. W.A. 155 2021 17. He further submitted that as per the norms of Kerala University of Health Sciences even if there is a shortage of 10% attendance continued affiliation cannot be denied. 18. He further submitted that without proper consideration of the compliance report 1st respondent University has erred in arriving at the conclusion that there was shortage of 10 Dental and 6 Medical Staff on the day of inspection and this amounted to shortage by 17% out of 92 staff faculty and on that basis denied the request for continued affiliation 19. Per contra Mr. P. Sreekumar learned standing counsel for the respondent University submitted that the deficiencies found are major in nature and were not rectified during inspection. Placing reliance on the decision in Medical Council of India v. Kalinga Institute of Medical Sciences reported in 11 SCC 530 learned standing counsel further submitted that inspection reports cannot be discarded. He prayed to sustain the orders impugned in the writ petition declining the request of the appellant college for continuation of provisional affiliation and consequently the impugned judgment. the material available on record 20. Heard the learned counsel for the respective parties and perused 21. Material on record discloses that by Exhibit P8 letter dated 22.01.2020 Registrar of Kerala University of Health Sciences respondent No.1 has rejected the application submitted by the appellant College for W.A. 155 2021 continuation of provisional affiliation on the basis of certain deficiencies Said letter reads thus “No.18534 29019 AC 1 Dent A1 KUHS Dated:22 01 2020 Century International Institute of Dental Sciences Research Kasaragod Sub: KUHS Academic Dental Continuation of Provisional Affiliation for the year 2020 21 Inspection report Deficiencies pointed out by the Scrutiny Committee rectification sought for reg Ref: 1. Report of the Inspection Commission dated 05 12 2019 2. Report of the Scrutiny Committee dated 07 01 2020 Attention invited to the references cited I am to inform you that on verification of the report of the inspection conducted at Century International Institute of Dental Sciences & Research Kasaragod for granting Continuation of Provisional Affiliation for the academic year 2020 21 the Scrutiny Committee pointed out the 1. The Principal was on leave on the day of inspection without transferring charge to Vice Principal 2. Five faculty were on leave on the day of inspection 3. Four faculty were unauthorised absent 4. Deficiency of one reader in the department of OMFS 5. The Clinical requirements like Dental extractions and RCT were not done according to the requirement 6. No proper documentation of the details of attendance valuation duty and satellite clinic Further the college has not submitted renewed MoU with District Taluk Hospital Kanhangad for the year 2020 21 In the circumstances your application for continuation of provisional affiliation for the year 2020 21 cannot be considered favourable. In order to consider your application for Continuation of Provisional W.A. 155 2021 Affiliation you are requested to submit a compliance report rectifying the above deficiencies along with an affidavit on stamp paperto the effect that the deficiencies noted by the scrutiny committee are rectified within a fortnight Yours faithfully Approved for Issue 22. Exhibit P9 is the compliance report dated 04.02.2020 with annexures and the same is reproduced hereunder Kerala University of Health Sciences Respected Sir Sub: KUHS Academic Dental 7 Continuation of Provisional Affiliation for the year 2020 21 Inspection report Deficiencies pointed out by the Scrutiny Committee rectification sought for reg Ref: Your letter No. 18534 2019 AC 1 Dent A1 KUHS dated the compliance report. We acknowledge the receipt of your letter No 18534 2019 AC 1 Dent A1 KUHS dated on 22 01 2020 by post on We refer to the letter under reference and respectfully submit 1. The Principal was on leave on the day of inspection without transferring charge to vice principal. Compliance: The inspection was a surprise inspection as per order and myself had no prior information about it and had taken casual leave for my personal works. The same was informed to W.A. 155 2021 inspectors on the phone. The transferring of authority to vice principal was done. The copy of it is being resubmitted as annexure 1. 2. Five faculty were on leave on the day of inspection. Compliance: the leave forms of the staffs who were on leave have been submitted as Annexure 2. 3. Four faculty were unauthorised absent. Compliance: The leave forms of four faculties have been attached in annexure 2. Total 9 staffs were on leave. There was no unauthorised absence. 4. Deficiency of one reader in the department of OMFS Compliance: We have one professor and two readers in the department of OMFS as per requirements. 1. Dr. Prashanth hegede2. Dr. Dheeraj3. Dr. Akshatha(reader) All these staffs are enrolled in the faculty enrollment programme and have numbers allotted by KUHS as respectfully submitted. However one reader Dr. Dheeraj was on leave on the day of inspection and leave form is attached Annexure 3 5. The clinical requirements like dental extractions and RC were not done as per requirements. Compliance: Adequate number of patients clinical material is there for student and interns training. Extractions are being done by students interns under supervision of staff. Also regular dental camps are arranged in surrounding remote places so that patients avail adequate dental care. Mobile dental van is routinely deployed for students to do adequate treatments. RCTs are done by interns and staff as per appointments on a given day Institution is taking various measures to further increase OP on a day to day basis. W.A. 155 2021 6. No proper documentation details of attendance valuation duty and satellite clinics. Compliance: Biometric attendance marking is used for all staff. The copy of it on the day of inspection is attached Annexure 4. Staffs have attended valuation as per university requirements. Valuation duty list is submitted as annexure 5. We are in the process of establishing a new satellite clinic and will be fully compliant as per university requirements. 7. Renewed MoU with district hospital Kanhangad for 2020 21. Compliance: The college has MoU signed for the academic year 2019 20. We have applied for the renewal of the permission from DHS for the year 2020 21. It will be submitted as soon as we receive it. Meanwhile our own 100 bedded hospital is almost complete and is being made fully functional within campus. In view of these we humbly request you to consider our application for continuation of provisional affiliation for BDS course for the year 2020 21. We comply with norms set by university and will work towards achieving higher standards of academic excellence. Respectfully submitted with annexures Thanking you 23. Exhibit P10 order dated 4.5.2020 passed by the 1st respondent is “KERALA UNIVERSITY OF HEALTH SCIENCES KUHS Academic Continuation of provisional affiliation for the academic year 2020 21 Century International Institute of Dental Sciences and Research Centre Kasaragode rejected orders W.A. 155 2021 ACADEMIC SECTION U.O.No 18534 Ac 1 Dent A112019 KUHS Date : 04 05 2020 Read : 1. Notification No. 30 AC B KUHS 2016 dated 23 07 2019 2. Letter No. ClIDS RC KUH Affi 2019 dated 17 09 2019 3. Report of the inspection commission dated 05 12 2019 4. Minutes of the Scrutiny Committee held on 07 01 2020 5. Report of the inspection commission dated 05 03 2020 6. Minutes of the Scrutiny Committee held on 18 03 2020 7. Decision no 59.38 of the Governing Council meeting held on 25 04 2020 University vide paper readabove invited application for continuation of provisional affiliation from colleges for courses affiliated to the University for the academic year 2020 21. The Principal Century International Institute of Dental Sciences and Research Centre Kasaragode vide paper readabove has submitted an application for continuation of provisional affiliation for BDS course with an intake of 100 seats for the academic year 2020 21. University has processed the application and the inspection commission has been appointed to verify the facilities available in the college for conducting the course. The inspection commission vide paper read above has submitted the inspection report. The Scrutiny Committee vide paper readabove has submitted the inspection report. The Scrutiny Committee vide paper read above after verifying the W.A. 155 2021 inspection report has pointed out the following deficiencies a. The faculty status on the day of inspection was mentioned that 6 Medical staff and 8 Dental staff were on leave. Apart from this 3 faculty were on duty leave for theory paper valuation at KUHS Headquarters and one reader in the Dept of Orthodontics was absentonly 1 person Dr. Avinash Dept. of Orthodontics had attended valuation duty at KUHS on 05.03.2020. The other 2 persons Dr. Ranjith Madavan and Dr. Anusha Oral Medicine & Radiology) had not attended valuation duty on the day of Inspection as per university records. iii. It was also noticed that one of the staff Dr. Shahanas Conservative Dentistry) whose sanctioned leave application submitted had signed in the attendance sheet. iv. Dr. Sajay Bhat Reader in the Dept of Orthodontics was not present on the day of previous inspection as well as on the day of current inspection. It was reported by the college that he is on long leave. But no substitute has been arranged so far. b. Satellite Clinics No satellite clinic facilities are provided by the college which is against the norms of KUHS as well as that of DCI. This deficiency was pointed out during the previous inspection also. c. Student Feedback: d. On interaction with students the Inspection team has reported that there are malpractices in the conduct of university examinations. They also mentioned that proper checking of students before entering the examination hall is not done Besides they have complained that the stipend given to the Interns is not as per KUHS norms. e. Hence there is a total shortage of 10 Dental and 6 Medical staff on the day of inspection. This amounts to 16 out of 92 that is around 17%. The shortage of one reader in the Dept of Orthodontics mentioned In the previous Inspection is still not W.A. 155 2021 3. The whole matter along with the recommendations of the Scrutiny Committee has been placed before the Governing Council and the Governing Council vide paper readabove has decided to reject the application of Century international institute of Dental Sciences and Research Centre Kasaragode for Continuation of provisional affiliation for the year 2020 21 considering the major deficiencies. 4. The Hon ble Vice Chancellor has accorded sanction to implement the decision of the Governing Council readabove and to reject the application of Century International Institute of Dental Sciences and Research Centre Kasaragode for Continuation of provisional affiliation for the year 2020 21 .eased on the major deficiencies The Principal Century International Institute of Dental Sciences and Research Centre Kasaragod.” 24. Exhibit P11 is the appeal filed by the appellant against Exhibit P10 order dated 04.05.2020 issued by the 1st respondent University wherein it was stated thus “Sub: Appeal for granting Continuation of Affiliation BDS Course academic year 2020 21. Ref: KUHS communication U.O. No 18534 AC1 Dent A1 2019 KUHS dtd.4th May 2020. It is respectfully submitted that Century Dental College was established in the year 2001 at Poinachi village Kasaragod District. The BDS course with 100 intake per year conducted by the Institution is recognized by the Central Government and renewed every 5 years thereafter as published in the official Gazette of the Ministry of Health &FW. The Institution is affiliated W.A. 155 2021 to KUHS from its inception. During the past 18 years the University conducted yearly inspection and have accorded continuation of affiliation. For the academic year 2020 21 we applied for Continuation of Affiliation for BDS course and a surprise inspection was conducted by the University on 5.12.2020. Vide letter dated 22.01.2020 the University directed the college to submit a compliance report by rectifying the deficiencies pointed out by the scrutiny committee. A Compliance report dated 4.02.2020 was duly submitted to KUHS. Thereafter the University conducted yet another surprise inspection on 5.3.2020 No further communication was received from the University after that regarding deficiency noted by the 2nd Inspection commission Instead we received a letter dated 4.5.2020 rejecting our application for continuation of affiliation without according any venue for explanation or appeal. In the said letter of rejection the deficiency pointed out in the 1st inspection dated 5.12.2019 and a complaint lodged by one Dr. Jayprasad as well as new deficiencies pointed out in 2nd inspection are narrated. Therefore in appeal for reconsideration of our application for continuation of affiliation for the academic year 2020 21 we submit the following point wise explanation compliance on deficiency noted in the rejection letter 1. Deficiency pointed out in 1 inspection report are ● Principal was on leave on the Inspection day without transferring charge to the Vice Principal. Five faculty were on sanctioned leave and four faculty were on unauthorized leave. ● Deficiency of one Reader in the Department of OMFS Dental extraction and RCT were not done as per ● No proper documentation details of attendance University valuation duty & satellite clinic W.A. 155 2021 A compliance report dated 4.2.2020 was duly submitted to KUHS along with copies of leave forms for Faculty on eligible leave Further the deficiency of one Reader in OMFS do not exist as we have one Professorand two Readers Dr Dheeraj Devadiga & Dr.Akshatha) as per DCI norms registered under FEP list and regularly attending KUHS exam duties. Copy of the KUHS letter dated 22.01.2020 and compliance report dated 4.02.2020 submitted by the College are 2. Reference is made to a complaint lodged by one Dr Jayprasad a former disgruntled employee of this Institution alleging that the College is functioning without local Grama Panchayat License and certificate of Pollution control board. The said allegation is totally baseless. Local Grama Panchayat is not an appropriate Authority to issue a License to operate a Dental college in India as per DCI regulation. However the College was registered with the Grama panchayat on 16.09.2010 as per their request. We had obtained an affiliation with IMAGE dated 14.12.2019 for Bio medical waste management and the permission of the Pollution Control Board valid till 2024. Century Hospital functioning in the College Campus had its own incinerator from the time inception for bio medical waste management. The said hospital was taken over by the Government for National Highwayroad widening purpose Copies of registration with local Grama Panchayat dated 16.09.2010 certificate of Affiliation with IMAGE for Bio medical waste management dated 14.12.2019 and the permission of PCB valid till the year 2024 are attached. 3. The new deficiency pointed out in the rejection letter which was not in the 1st inspection report are the following: W.A. 155 2021 a.Of the 6 Medical staff on leave applications for leave of only 3 staff were previously sanctioned by the Principal ii) Among 3 Dental staff reportedly attending valuation duty only Dr. Avinash attended valuation duty at KUHS campus on the inspection day and two others Dr. Ranjith Madhavan& Dr.Anusha(OMR) have not attended valuation duty as per the University Records iii) It was noticed that Dr. Shahanas whose leave application was sanctioned had also signed in the attendance register iv) Dr. Sanjay Bhat Reader had taken a long leave. But no replacement is made so far. b). No satellite clinic was provided by the college. c&d). Students feedback: Inspection team has reported about malpractice in conducting examinations and proper checking are not done before entering examination. e). Hence there is a total shortage of attendance of 10 dental staff and 6 Medical staff on the day of inspection which amount 17% and a shortage of Reader in Dept. of Orthopedics mentioned in 1st Inspection. Compliance: a All 3 Dental staff were on paper valuation duty at KUHS Campus in Thrissur and had attended valuation duties as per KUHS direction. The reference w.r.t Dr. Ranjith Madhavan and Mrs. Dr. Anusha were not present for valuation duty on inspection day is correct. However KUHS valuation duty schedule for both of them was till 4.03.2020. In fact both of them completed their paper valuation work the previous day and started their journey back on 4.03.2020 from KUHS campus in Thrissur to Kasaragod which is about a 12 hour journey. As they were already on sanctioned duty leave from the college to attend university valuation duty they did not attend the college next day 5.3.2020 Inspection day). They have marked their attendance in KUHS attendance register and duty certificates were issued by iii) Dr. Shahnas(Reader) was on sanctioned leave. However he came to the College upon hearing about the surprise inspection. iv). Dr. Sanjay Bhat Readerhad taken a long W.A. 155 2021 leave for personal reasons. He was replaced by promoting Dr Ajeeshato the post of Reader who had completed 4 years of service as per DCI norms. There is no deficiency in the post of Reader. Copy of the Promotion order is attached. b. The college is conducting regular treatment camps at various locations including satellite clinics by the Faculty Students and Interns. The Satellite clinics adopted by the Institution are Smile Dental care Kuttikol Kasaragod 671541 & Smile Dental care Kasaragod 671316. C & d. The information obtained from students regarding malpractice in examination are not substantiated. There are internal squads of senior staffs to check for any devices to prevent malpractice. Students are properly checked before entering the examination hall. In the event of any malpractice by students Internal and External examiners duly report such incidents to the University and strict actions are taken against them as per University direction. During the university examinations held in January & February 2020 no case of malpractice was reported by any observer or by the University appointed squad present at the venue in the college. So the allegations that examination malpractice is happening in the institution is without any basis. e. All Faculty including the Principal are eligible to avail leave as per Norms and there is no shortage of Faculty. All Faculty are regularly attending examination duties assigned by KUHS and all are registered with the University under FEP program. A copy of the Faculty list downloaded from the KUHS website is attached In view of the above we most humbly request to give continuation of affiliation for BDS course with 100 student intakes for the academic year 2020 21 for Century Dental College which is one and only Dental College in the remote District of Yours faithfully Dr. Prashanth The PRINCIPAL” 25. Exhibit P12 order dated 27.11.2020 passed by the 1st respondent on Exhibit P11 appeal dated 20.09.2020 submitted by the appellant is W.A. 155 2021 “No. 18534 2019 Ac 1 Dent A1 KUHS Date: 27 11 2020 Century International Institute of Dental Sciences Poinachi Kasaragod Sub: KUHS Academic Dental Continuation of Provisional Affiliation for the year 2020 21 rejected reconsideration Ref: 1. U.O. No.18534 AC1 Dent A1 2019 KUHS dated 2. Your letter No.CDC KUHS Affiliation 2020 21 dated Attention is invited to the reference cited. I am to inform you that your request to reconsider the decision of the University rejecting the application for Continuation of Provisional Affiliation to your institution to conduct BDS course for the Academic year 2020 21 cannot be considered favourably since the application was rejected based on the grave deficiencies found in your institution during the two inspections conducted in your institution by University related to the grant of Continuation of Provisional Affiliation for 2020 21. Yours faithfully 26. Order dated 15.05.2019 issued by the Kerala University of Health Sciences Academic I Branch as regards implementation of the decision of Governing Council is extracted hereunder “KERALA UNIVERSITY OF HEALTH SCIENCES KUHS Academic non compliance of Council University norms W.A. 155 2021 Conduct of Re inspection modification of existing norms Decision of the Governing Council implemented orders issued ACADEMIC I BRANCH Thrissur Dated. 15.05.2019 No. 6296 AC B KUHS 2013 Read: 1. U. O. No.6296 AC B KUHS 2013 Dated 28.11.2018 2. Decision No.52.41 of the 52nd Governing Council meeting held on 11.04.2018 1. As per the order read 1st above the norms for conducting re inspection and rate of fee to be levied for each re inspection from the colleges who failed to comply the norms fixed by University and Central Councils. 2. While implementing the B point in the order based on the scrutiny reports of inspections conducted at various institutions under different streams certain clarification are required regarding the shortage of Faculties. The Medical Council of India is permitting 10% Faculty deficiency during inspection for Government Medical Colleges and 5% for Private Medical Colleges. For AYUSH colleges 10% deficiency is permissible by CCIM. Where as for Nursing colleges INC is not permitting such relaxations. The Paramedical courses are not controlled by anyApex councils. 3. A proposal for modifying the University orderwhich may be verified during the next years surprise inspections. No re inspection fee may be levied for Those colleges where a re inspection is required due to major deficiencies including IP strength and faculty deficiency above the limit have to remit a re inspection fee of Rs. 20 000 and submit an affidavit from the Principal to the effect that the college has rectified all the deficiencies noted by the inspection team and decision based on the findings of the re inspection conducted by the University to verify this claim shall be final" C) remain unaltered. Other conditions in the University Orderis implemented and orders are issued accordingly. 6. The order read 1" above stands modified to the above 27. Perusal of the order dated 04.05.2020 shows that though the Kerala University of Health Sciences has stated that transfer of charge was not given in the compliance report dated 04.02.2020 it is explained that on the date of inspection the Principal was on casual leave and transferring of authority has been done. Presumably accepting the said explanation in the order of rejection of continued affiliation his absence and not effecting charge have not been mentioned. W.A. 155 2021 28. Out of the 6 Medical staff recorded as absent the appellant college has explained that they were on leave. University while considering the explanation found that for 3 of them leave applications have been sanctioned. For the rest it is for the appellant college to take appropriate decision. Therefore it can be concluded that only 3 of the Medical staff were not present without due authorisation. Absence can be only three 29. As regards the 2nd deficiency out of 3 Dental staff deputed for valuation duty only one has reported for duty and other 2 have not. Judicial notice can be taken that deputation of faculty for valuation duty can be done only when the University directs the respective colleges to depute for such duty. In the case on hand admittedly one Dental staff has attended the valuation duty and the two staff may require to explain to the college as to why they have not attended the duty. Thus all the three Dental staff cannot be said to be absent. At this juncture explanation offered by the appellant college is reproduced “(ii) All 3 Dental staff were on paper valuation duty at KUHS Campus in Thrissur and had attended valuation duties as per KUHS direction. The reference w.r.t Dr. Ranjith Madhavan and Mrs. Dr. Anusha were not present for valuation duty on inspection dayis correct. However KUHS valuation duty schedule for both of them was till 4.03.2020. In fact both of them completed their paper valuation work the previous day and started their journey back on 4.03.2020 from KUHS campus in Thrissur to Kasaragod which is about a 12 hour journey. As they were already on sanctioned duty leave from W.A. 155 2021 the college to attend university valuation duty they did not attend the college next dayUniversity has recorded that though Dr. Shahanas was sanctioned leave he had signed the attendance register for which the appellant college has replied that though he was sanctioned leave on coming to know that there was an inspection Dr. Shahanas had attended duty and accordingly signed the attendance register. 32. As regards the 4th deficiency in the rejection orderthat there was no Reader in the Department of Orthodontics and no substitute has been made appellant college has submitted that Dr. Sanjay Bhat Readerhad taken a long leave for personal reasons he was replaced by promoting Dr. Ajeeshato the post of Reader who had completed 4 years of service as per DCI norms and there is no deficiency in the post of Reader. 33. Perusal of the order of rejection further shows that there is no proper consideration to the explanation offered by the appellant college W.A. 155 2021 Nevertheless even taking it for granted that the said Reader was absent the total number of Medical as well as Dental Staff who can be said to be absent cannot be 16 on the day of inspection out of 92 staff faculty). That apart it is the specific case of the appellant college that out of six Medical staff three staff had obtained prior leave. Appellant college has further stated that they have enclosed the leave applications along with the compliance report. 34. Thus going through the material on record particularly the order of rejection of the application for continuation of provisional affiliation it is evident that the University itself has admitted that leave applications of three Medical staff out of six have been sanctioned. From the above it could be deduced that six staff were not available at the time of inspection and not 16 as concluded by the University out of 92 of the order of rejection is reproduced “e. Hence there is a total shortage of 10 Dental and 6 Medical staff on the day of inspection. This amounts to 16 out of 92 that is around 17%. The shortage of one reader in the Dept of Orthodontics mentioned In the previous Inspection is still not rectified.” 35. Said conclusion of the respondent University is erroneous. 36. As rightly pointed out by the learned Senior Counsel for the appellant college none of the averments in the order impugned in the writ petition relating to the complaints submitted to the Governor of Kerala W.A. 155 2021 Inspection done by the Dental Council of India and the students feedback were part of the deficiencies noticed by the Kerala University of Health Sciences for rectification and that the appellant college was not given an opportunity to substantiate their stand. Therefore the appellant cannot be denied continuation of provisional affiliation on those grounds 37. With respect to the other deficiencies noticed by the respondent University i.e. satellite clinic etc. appellant has stated that the college is conducting regular treatment camps at various locations including satellite clinics by the Faculty Students and Interns and that the Satellite clinic adopted by the institutions are Smile Dentalcare Kuttikol Kasaragod and Smile Dentalcare Periya Kasaragod. 38. It is not disputed that the appellant college is running for 15 years continuously. All the students have been admitted to the examinations periodically. It is not the case of the 1st respondent University that the college has not appointed adequate staff faculty for imparting teaching and practical training to the students and thus not adhered to the norms prescribed by the Dental Council of India. Deficiency noticed is regarding the absence of Medical Dental staff on the inspection day. 39. Attention of this court was also brought to the notice of an office order dated 15.05.2019 wherein continuation of affiliation is permissible subject to the rectification of insufficiency staff faculty upto 5 to 10%. As pointed out in the forgoing paragraphs if 6 staff were absent then the W.A. 155 2021 percentage would be 6 92 i.e. 6.5%. On the basis of the above said order the appellant college is entitled to seek for continuation of affiliation subject to rectification of faculty in the subsequent inspection. 40. Though Mr. P. Sreekumar learned standing counsel for the Kerala University of Health Science respondent No.1 placed reliance on the decision in Kalinga Institute of Medical Science a close scrutiny of the facts and material on record in particular the impugned order prima facie we are of the view that the appellant college has made out a case for interference with the orders impugned in the writ petition and consequently the judgment of the learned single Judge in W.P.(C) No.269220 dated 05.01.2021 41. Accordingly orders dated 4.5.2020 and 27.11.2020issued by the 1st respondent University and the impugned judgment are set aside. Court in normal circumstances would only direct the authorities concerned to reconsider the issue of continued affiliation However considering the totality of the case and in the light of the order dated 15.05.2019 passed by the Kerala University of Health Sciences University we deem it fit to direct the University to grant continued affiliation to the appellant college for the academic year 2020 21 for BDS course. As regards allotment of students by the 3rd respondent allotment procedure be In the result this Writ Appeal is allowed. W.A. 155 2021 Learned counsel for the respondents are directed to communicate this judgment to the respective parties for compliance S. Manikumar Chief Justice Shaji P. Chaly Judge P.A. TO C.J |
Court may grant bail application for offenses under Section 37 of the NDPS Act only after considering the prima facie merits of the appeal: Supreme Court of India | Section 37 of the NDPS Act contains stringent requirements before an application for bail can be allowed. The Courts can allow a bail application only if the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is
not likely to commit any offence while on bail. This auspicious judgment was recently passed by the Supreme Court of India in the matter of THE STATE (GNCT OF DELHI) NARCOTICS CONTROL BUREAU V LOKESH CHADHA [CRIMINAL APPEAL NO 257 OF 2021] by Honourable Justice Dr Dhananjaya Y Chandrachud. This appeal arises from the judgment of High Court of Delhi by which the application filed by the respondent seeking suspension of sentence under Section 389(1) of the Code of Criminal Procedure 1973 was allowed. The respondent was convicted under Sections 23(c) and 25A of the Narcotic Drugs and Psychotropic Substances Act 1985 and was sentenced to suffer rigorous imprisonment for ten years under Section 23(c) and for three years under Section 25A. The facts of the case are, on 2 December 2015, the IO of the Narcotics Control Bureau, Delhi Zonal Unit received a phone call from DHL Courier regarding two parcels that were lying in their office and were suspected to contain narcotic drugs. When the two parcels were seized, 325 grams of heroin and 390 grams of pseudoephedrine was found in them. The parcels were booked to a foreign destination, at the behest of a foreign national, by the co-accused who was an employee of the respondent and the respondent himself is a proprietor of the courier agency which had accepted the parcels initially for booking from the foreign national. Consequently, the Special Judge, came to the conclusion that the offence stood established as against the respondent but the benefit of doubt was granted to the co-accused on the ground that he was only an employee who was acting at the behest of the respondent. An appeal has been filed before the High Court of Delhi by the respondent for the suspension of
the sentence which was granted. The Court observed that “Section 37 of the NDPS Act stipulates that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Where the trial has ended in an order of conviction, the High Court, when a suspension of sentence is sought under Section 389(1) of CrPC, must be duly cognizant of the fact that a finding of guilt has been arrived at by the Trial Judge at the conclusion of the trial. This is not to say that the High Court is deprived of its power to suspend the sentence under Section 389(1) of CrPC. The High Court may do so for sufficient reasons which must have a bearing on the public policy underlying the incorporation of Section 37 of the NDPS Act.” The Court relied on Preet Pal Singh v State of Uttar Pradesh to state that, “The principles which must guide the grant of bail in a case under the NDPS Act have been reiterated in several decisions of this Court and the High Court unfortunately, in the present case, has not applied its mind to the governing provisions of the NDPS Act. On the basis of the material which emerged before the learned Special Judge and which forms the basis of the order of conviction, we are of the view that no case for suspension of sentence under Section 389(1) of CrPC was established. The order granting suspension of sentence under Section 389(1) of CrPC is unsustainable and would accordingly have to be set aside.” | Writ Petitionwere wrongly shifted to open category on different cadre i.e. PAC and Fireman without actually changing their cadre as they are all working on the said post for last 3 years. Had the aforesaid 958 seats were not wrongly overlapped then the Petitioners would have made their place in the list published on 11.11.2019 by the Board. II. Because admittedly the Respondents had filled up only 1650 seats out of 2016 seats meant for male general category candidates in various select list till date in Constable PAC Post and 446 seats out of 1038 seats meant for male general category candidates in various select list till date in Constable Fireman Post.” The facts leading to the filing of this petition in brief are as under: A) By issuing an advertisement on 20.06.2013 selection process was undertaken to fill up 41610 posts of Police ConstablesFireman]. The petitioners had participated in the selection process as candidates of General Category. Writ PetitionAfter the requisite examinations results were declared on 16.07.2015 in which 38315 candidates were successful. Thus as on that date there were vacancies which were not filled as no suitable candidates were available. C) In Saket Kumar and ors. Vs. State of U.P. and Ors.1 the High Court of Judicature at Allahabad was concerned with the process of selection for Sub Inspectors in U.P. Police which process was going on simultaneously with the instant selection. The High Court dealt with the issue where the candidates had used blades or whiteners while answering their answer papers of the main examination. By its order dated 29.05.2015 the High Court had disqualified all such candidates and directed that their names be deleted from the selection list. In the appeal arising therefrom this Court in its decision in Hanuman Dutt Shukla and Ors. Vs. State of U.P. and 1 2015 SCC OnLine Allahabad 1250 Writ PetitionThe same principles were adopted in the selection process for Police Constables and consequently the candidates who had used blades or whiteners were considered in the instant process of selection. The selection list was re worked and it was found that 216 SCC 447 Writ Petition4 2018ADJ 37 : Writ C. No. 34116 Writ PetitionNo. 20015 of 2018 issued following directions: “It is accepted by the learned counsel for the State that the State did not undertake any process of selection in respect of those 2312 vacancies. In the circumstances it is directed: A) The State shall within a month from today complete the entire process of selection in respect of 2312 vacancies strictly accordance with law. B) The State shall follow the principle of reservation while filling up these 2312 C) While filling up these vacancies the State shall adhere the minimum required qualifying marks as devised during the process of selection but subject to this the State shall consider all eligible candidates and go strictly in order of merit. D) The State shall before the next date of hearing shall file a list of all the selected It is also accepted that apart from these 2312 vacancies there are still 982 vacancies to be filled up in the original selection.” Writ PetitionTherefore further process of selection for 32955 posts was undertaken and the results were declared on 11.11.2019. The breakup of said 3295 posts was as under: Category Civil PAC Fireman Total H) In the affidavit of compliance filed on behalf of the State Government following details were submitted: “E. Details of result of selected 3295 candidates as per Hon’ble Supreme Court’s order In compliance of above order of Hon’ble Court following lists and details of last selected candidates are attached herewith. I) List 1 candidates selected in open category This list contains a) The names of candidates who have already been selected in their respective vertical category 5 Writ Petitionbut presently find their positions in open category after redrawing the merit on the basis of their merit irrespective of their social category and gender. b) New candidates purely on the basis of their merit irrespective of their social category. The composition of list as follows A) Already selected candidates OBC SC ST B) Now selected candidates Male Gen. Male Gen. DFF Female Gen. Female Gen. DFF Total Male Total Female Grand Total A copy of the List I is annexed hereto and marked as Annexure A 1 F. List 2 candidates selected in OBC category 1849Since 1118 candidates belonging to OBC category have already been selected and find their position in present open category list due to their higher merit hence 1118 unselected OBC candidates have been selected in lieu of selected candidates and 731 candidates have been selected afresh as against their respective 731 vacancies. It is submitted that this list contains 1849 names. Writ PetitionSince 132 candidates belonging to SC category have already been selected and find their position in present open category list due to their higher merit so 132 unselected SC candidates have been selected in lieu of selected candidates and 601 candidates have been selected afresh as against their respective 601 vacancies. It is submitted that this list contains 733 names. A copy of the List III is annexed hereto and marked as Annexure A 3 H. List IV candidates selected in ST category 59 Since 02 candidates belonging to ST category have already been selected and find their position in present open category list due to their higher merit so 02 unselected ST candidates have been selected in lieu of selected candidates and 57 candidates have been selected afresh as against their respective 57 vacancies. It is submitted that this list contains 59 names. A copy of the List IV is annexed hereto and marked as Annexure A 4” The present Writ Petition has been filed submitting inter alia that certain candidates coming from ‘Reserved Categories’ who were initially selected against Reserved Categories’ seats were now shown against the Writ Petitionbut depending on their merit were found entitled to be put in ‘Open Category’ and secondly new candidates who were selected on the basis of their merit in various categories. Break up of 1906 candidates who were considered in ‘Open Category’ was thus clearly set out. 7. It is not the grievance of the petitioners that any candidate who had secured marks lesser than the petitioners has been selected. The challenge is to the shifting of candidates who were earlier selected against posts meant for reserved categories to the open category. 8. Selection in respect of 3295 posts was undertaken in accordance with the directions issued by this Court in Ashish Kumar Yadav and Ors. vs. State Writ Petitionand the State Government and its functionaries were obliged to go strictly in order of merit and apply the principle of reservation. With the availability of 3295 additional posts in the re working exercise if the candidates who were already selected against reserved posts were entitled to be considered against open category posts that exercise cannot be termed as illegal or invalid on any count. These 3295 posts were part of the same selection process initiated in 2013 for filling up 41610 posts and as such the adjustment was rightly done by the State. 9. We therefore see no merit in this petition which is accordingly Uday Umesh Lalit] S. Ravindra Bhat] Hrishikesh Roy] New Delhi March 16 2021. |
Bail will not be granted when the accused has shown tendency to abscond or to threaten the complainant: High Court of Delhi | In a criminal trial where the accused person appears to have absconded or is likely to threaten the witnesses and tamper with the outcome of the trial, the court will not be inclined to grant bail to the accused. 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 Ishu v The State [Bail Application No. 2837 of 2021] pronounced on 16th August 2021. The petitioner, Ishu has filed the present petition for the grant of instant bail in the event of her arrest after being accused of causing hurt through poisoning and extortion and having an FIR against her under sections 328, 389 and 34 of the Indian Penal Code. The complainant, Rishab Jain runs a marble and tiles business in Mangolpur Kalan, New Delhi. On 1st April 2021, one Nikhil Bhattal visited the complainant’s shop and ordered for some marble stone to be delivered to his residence in New Delhi. When the complainant reached Nikhil Bhattal’s residence, he was introduced to Bhattal’s girlfriend, Ishu who is the petitioner in this case. It is alleged that the petitioner offered a drink to the complainant, which made him dizzy and eventually caused him to pass out. The complainant allegedly woke up to see the petitioner rubbing on his private parts. The complainant narrated this incident to Bhattal who threatened to file rape charges against the complainant unless he gave them Rs 2,00,000 in cash, a mobile phone and a television set. The petitioner and her boyfriend allegedly called and threatened the complainant more than 25 times with rape charges if their demands were not met. The complainant also submitted numerous voice recording indicating the same. The complainant reported the petitioner and her boyfriend to the police and the FIR was lodged on 10th April 2021 for the offences mentioned above. The petitioner’s boyfriend was arrested on 11th April 2021 and was granted bail by the High Court of Delhi on 22nd July 2021. However the petitioner switched off her phone, was missing to evade arrest until 30th July 2021 when she tried to apply for anticipatory bail which was refused to her. While pleading for instant bail, the petitioner’s counsel reasoned that the petitioner was only taking time to prepare her defense and not really absconding during the time when she could not be traced. | IN THE HIGH COURT OF DELHI AT NEW DELHI BAIL APPLN.2837 2021 Date of decision: AUGUST 16th 2021 IN THE MATTER OF: ISHU ..... Petitioner Through Mr. Viraj Datar Senior Advocate with Mr. Krishanu Adhikary ..... Respondent Through Ms. Kusum Dhalla APP for the State Mr. Rahul Chandlok Advocate for the complainant. THE STATE HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. The petitioner has filed the instant petition under Section 438 Cr.P.C. for grant of bail in the event of arrest in FIR No.118 2021 dated 10.04.2021 registered at Police Station South Rohini for offences punishable under Sections 328 389 and 34 IPC. The brief facts leading to this bail application are as under: a) A complaint was filed by one Rishab Jain stating that he has a business of marble and tiles and he runs a Shop at B 81 Marble market Mangolpur Kalan opposite Indian Bank New Delhi. He stated that on 01.04.2021 one Nikhil Bhattal whom the complainant knew came to his shop and asked for some good quality marble stones tiles for renovation of his residence and he BAIL APPLN. 2837 2021 insisted that the complainant must visit his house. It is stated that when the complainant visited the house of the said Nikhil Bhattal he introduced the complainant to his girlfriend lshu @ Bobby The co accused Nikhil Bhattal was arrested on 11.04.2021. He has been granted bail by this Court vide order dated 22.07.2021 in BAIL APPLN. 1520 2021. d) The petitioner filed an application for anticipatory bail being Bail application No.2776 2021 before the learned Sessions Judge North West District Rohini Courts which was rejected vide order e) The petitioner has thereafter approached this Court by filing dated 30.07.2021. the instant bail application. Notice was issued on 04.08.2021. Status Report has been filed. The Status Report indicates that in the voice recording the petitioner herein is also heard demanding a TV and a Mobile phone from the complainant. It is also mentioned in the Status Report that the petitioner is being heard threatening the complainant of dire consequences. It is stated in the Status Report that the petitioner has no permanent address and her mobile phone is also switched off. It is stated in the Status Report that despite making all efforts the Police has not been able to arrest find the petitioner and she is evading arrest. BAIL APPLN. 2837 2021 Heard Mr. Viraj Datar learned Senior Counsel for the petitioner Mr. Rahul Chandlok learned counsel for the complainant and Ms. Kusum Dhalla learned APP for the State and perused the material on record. 5. Mr. Viraj Datar learned Senior Counsel appearing for the petitioner states that the fact that the petitioner was trying to prepare her defence and therefore the fact that she did not join the investigation does not mean that the petitioner was absconding. He states that the petitioner had gone to the Police Station and her statement under Section 164 Cr.P.C was recorded in the complaint filed by her against the complainant onb allegations of rape. He states that the mere ipse dixit in the Status Report that the petitioner is absconding does not hold water. He states that the Police have not taken any steps action against the petitioner by filing applications before the concerned Court to declare the petitioner a proclaimed offender. He further states that other than taking voice samples there is no necessity for arresting the petitioner and therefore the petitioner should be granted anticipatory bail. Per contra Ms. Kusum Dhalla learned APP contends that the petitioner was not available at her residence when the Police went there and the petitioner had not joined the investigation. She also states that the FIR was lodged on 10.04.2021 and the Police did not rush to the court by moving an application without taking all efforts to ensure that the accused against whom allegations are made joins the investigation. She states that the present case is one of honey trap and the fact that the petitioner gave her statement under Section 164 Cr.P.C. would have no relevance because the first step in a case of rape is to record the statement of the prosecutrix under Section 164 Cr.P.C. She further states that the moment the complainant filed the instant FIR the petitioner has gone into hiding and she has surfaced only BAIL APPLN. 2837 2021 when the co accused Nikhil Bhattal was granted bail by this Court. She further states that the investigation is at a very nascent stage qua the petitioner the petitioner is alleged of an offence under Section 328 IPC for which the petitioner can be punished with up to ten years of imprisonment. She states that the conduct of the petitioner shows that she can abscond and therefore the petitioner ought not be granted anticipatory bail. 7. Mr. Rahul Chandlok the learned counsel for the complainant supports the case of the prosecution and states that the petitioner and the co accused have constantly threatened the complainant and have demanded money. He states that it is a case of honey trap and anticipatory bail ought not to be given to the petitioner. A reading of the FIR shows that this is a case of honey trap. The allegation against the petitioner is that she has threatened the complainant and has demanded money. Material on record shows that only when the complainant filed the instant FIR the petitioner filed her complaint under Section 376 IPC against the complainant herein. Investigation is at a very nascent stage. The petitioner is accused of an offence under Section 328 IPC which permits for imprisonment up to four years. The parameters that are necessary for consideration for grant of anticipatory bail are well settled. The Court while granting or rejecting to grant bail has to take into account several facts such as: a. The nature and gravity of the accusation and the exact role of the accused b. The antecedents of the applicant including the fact as to accused has previously undergone BAIL APPLN. 2837 2021 imprisonment on conviction by a court in respect of any cognizable offence c. The possibility of the applicant to flee from justice d. The possibility of the accused s repeating similar or other offences e. The court has also to take into account reasonable apprehension of tampering of the witness or apprehension of threat to the complainant It is well settled that while considering the prayer for grant of anticipatory bail a balance has to be struck between two factors a) no prejudice should be caused to the free fair and full investigation and b) there should be prevention of harassment humiliation and unjustified detention of the accused. 11. Charge sheet qua the petitioner is yet to be filed. The petitioner’s voice sample has to be taken and the investigation has also to be conducted as to whether there are any other cases in which the petitioner is involved and as stated earlier the investigation is at a nascent stage. The petitioner is accused of an offence under Section 328 IPC which is a serious offence. There is some justification in the contention of the learned APP that the conduct of the petitioner does show that there is a likelihood of her fleeing from justice and that she would not cooperate with the investigation. The probability of the petitioner and the co accused Nikhil Bhattal extending threats to the complainant cannot be ruled out at this stage. In view of the above this Court feels that this is not a fit case where BAIL APPLN. 2837 2021 the petitioner should be granted bail in the event of arrest. 13. Accordingly the petition is dismissed along with the pending applications if any. AUGUST 16 2021 SUBRAMONIUM PRASAD J. BAIL APPLN. 2837 2021 |
Implied Admission of Outstanding Debt gives rise to Liability: National Company Law Appellate Tribunal, Chennai Bench | Whether an admission contained within a reply, constituted an admission and gave rise to an outstanding liability, was considered by the NATIONAL COMPANY LAW APPELLATE TRIBUNAL, CHENNAI BENCH, before a bench consisting of Justice M. Venugopal, Member (Judicial); and Kanthi Narahari, Member (Technical), in the matter of Mrs. Jayanthi G. Ravi vs. M/s Chemizol Additives P Ltd. [COMPANY APPEAL (AT) (INSOLVENCY) NO. 553/2020], on 03.01.22. The Appellant/Applicant/Financial Creditor has preferred the present appeal before this Tribunal being dissatisfied with the order dated 28.01.2020 passed by the ‘Adjudicating Authority’ (National Company Law Tribunal, Bengaluru Bench) in dismissing the Application. In the instant case, the amounts are stated to be given at a time when the Petitioner was a Director in the Respondent Company, for the purpose of keeping the Company running and meeting the Company’s funding requirements. As per the Petition, the Petitioner herself informed the Board about the fund requirement. That was much in the interest of the Petitioner herself as of the Respondent Company, as she was a Director. She then advanced the amounts on 01.12.2016 and 18.01.2017 in two tranches, totalling Rs. 4.10 crore. In the Board Meeting of 23.02.2017, another Director Sri S Jairam, a close associate and statutory auditor in other Companies in which the Petitioner was a Promoter Director and later in the Respondent Company as well, only “informed” the Board that the amounts had been received and were to be repaid in 6 months and bore an interest of 7.5% pa. There was therefore no Agreement or prior approval for the borrowing or for any terms and conditions, nor any other document to establish the debt. The amounts contributed were for the operational expenses of the Company. The amounts were not demanded or borrowed by the Company from the Petitioner. In this entire period, the Petitioner herself was the key person in the Company, chairing the Board meeting, and signing its minutes. All the decisions were virtually taken by the Petitioner unilaterally –decision on requirement of funds, information of payments and terms and intimation of the same, and adoption of Resolutions about each of these events. It is also seen that in the Resolution adopted on 06.04.2017, when the Petitioner was still a Director, the period of return is stated to be 60 days as per the Petition, and not 6 months as mentioned elsewhere. Similarly, the two amounts of Rs. 50 lakh each diverted immediately after receiving the above amounts in the Company to another non-existent Company, in which the Petitioner had been a Director, without any approval, even though the amounts were stated to be given to the Respondent company to meet its expenses. It was argued that even though she may have given amounts as a Director, to meet the expenses of the Company, it does not necessarily make the amounts owed to her a ‘debt’ in the sense conceived in the Code. Debt, as defined under the Code in Section 3 (11) means a liability or obligation in respect of a claim which is due from any person, and includes a financial debt or an operational debt. Such a debt would arise from a claim, as also defined in Section 3 (6), i.e. from a right to payment in the hands of the Creditor. It was further asserted that it was also not a Financial Debt as per the definition given in section 5 (8) of the Code, as the amounts were not “money borrowed” by the Corporate Debtor. In addition, it was highlighted that there as lack of clarity as to whether it was in the nature of a Financial debt or an Operational debt. In light of precedents, it was argued that it is settled position of law that the provisions of the Code cannot be invoked for recovery of outstanding amount but can be invoked to initiate CIRP for justified reasons as per the Code. Challenging the order of dismissal dated 28.01.2020 passed by the Adjudicating Authority (NCLT, Bengaluru Bench) The Learned Counsel for the Appellant contents that the impugned order passed by the Adjudicating Authority dated 28.01.2020 is an invalid and illegal one and that the Adjudicating Authority wrongly came to the conclusion that there was a dispute as to the purpose for which the amount was given. In light of precedents, it was argued by the appellant that the question whether the Board of Directors of a company could subsequently ratify an invalid act and validate it retrospectively is no more res integra. It was further asserted that the instant case relates to a ‘Financial Debt’ and it does not pertain to the difference between a ‘Secured’ and an ‘Unsecured Creditor’. The Tribunal held that the Reply ‘clinchingly’ establishes that the Respondent/Company had admitted its liability to repay the ‘Principal sum’ and ‘Interest’, and held that ‘Admission’ is the best piece of evidence in Law. It was noted that especially the Respondent/Company had sought time to repay Loan and Interest thereon, in one payment by 30.04.2019 and taking into account all these cumulative facts in an integral manner, this ‘Tribunal’ comes to an inevitable, inescapable and consequent conclusion that the ‘Appellant/Financial Creditor’ had established the ‘Financial Debt’ and ‘Default’ being the pre-requisites for admitting the ‘Application’ (under Section 7 of the I & B Code, 2016), filed by the ‘Appellant’. Viewed in that perspective, the contra views arrived at by the ‘Adjudicating Authority’ that the ‘Loan’ was not a ‘Financial Debt’, as the amounts were not ‘money borrowed’ by the ‘Corporate Debtor’ and that the borrowing may not constitute a ‘Financial Debt’ that could be enforced as per the I & B Code, 2016 though the ‘Borrowing’ may be reflected in the ‘Balance Sheet’ as pointed out by the ‘Petitioner (Appellant)’ etc; are legally ‘invalid’ and ‘untenable’. Looking from that angle, this ‘Tribunal’ interferes with the ‘impugned order’ dated 28.01.2020 passed by the ‘Adjudicating Authority’ (National Company Law Tribunal, Bengaluru Bench) and set aside the same, to promote substantial cause of justice. Consequently, the appeal was held to succeed. | NATIONAL COMPANY LAW APPELLATE TRIBUNAL CHENNAI BENCH APPELLATE JURISDICTION) TA No. 117 2021 COMPANY APPEAL(INSOLVENCY) NO. 553 2020] Appeal filed under Section 61 of the I & B Code arising out of the impugned order dated 28.01.2020 passed by the ‘Adjudicating Authority’ National Company Law Tribunal Bengaluru Bench) in CP No. Appellant In the matter of: Mrs. Jayanthi G. Ravi No. 1629 31st Cross 16th Main Banashankari 2nd Stage Bangalore 560070 M s Chemizol Additives P Ltd. Having its Registered Office at Plot No. 19 E & F Bidadi Industrial Area 2nd Phase Sector I Talakuppe Village BidadiHobli Ramanagara District Bangalore Rural Karnataka 562109 Respondent For Appellant: Ms. Haripriya Padmanabhan ) Mr. Rahul Kripalani ) Mr. Rea Bhallo ) …. Advocates For Respondent: Mr. Dhritiman Bhattacharyya …Advocate. T.A. No. 117 2021No. 553 2020] 2 VIRTUAL MODE M. VENUGOPAL MEMBER(J) I.A. NO. 1415 OF 2020 The Applicant Appellant has preferred I.A. No 1415 of 2020 in Company Appeal 553 of 2020 seeking to condone the delay of 15 days in filing the instant ‘Appeal’ stating that her daughter was in a third and final trimester of pregnancy and hence she went to her daughter’s place at Mumbai and later there were certain socio religious events in her family etc and because of that the ‘delay’ in question had occurred which is neither ‘wilful’ nor ‘wanton’ but due to aforesaid reasons. Accepting the aforesaid reasons ascribed on behalf of the Appellant Applicant in preferring the instant Comp. Appeal5520with a delay of 15 days this ‘Tribunal’ in the interest of justice allows I.A. No. 14120. No costs. I.A. NO. 1414 OF 2020 2. According to the Learned Counsel for Applicant Appellant the Appellant has filed I.A. No. 14120 in Com. Appeal5520 T.A. No. 1121) seeking permission to bring on record the additional documentsNo. 1 BB 2019) in view of the fact that the said documents are very much essential for proper and effective adjudication of the ‘Appeal’. T.A. No. 117 2021No. 553 2020] 3 Because of the fact that the ‘Adjudicating Authority’ in the impugned order had there was ‘misrepresentation’ ‘misappropriation’ fabrication of documents and accounts the ‘additional documents’ admittedly which were not filed earlier in the Section 7 Application the Applicant Appellant has chosen to file the ‘additional documents’ to substantiate her case and these documents according the Learned Counsel for the Applicant Appellant will definitely assist this ‘Tribunal’ to deliver ‘Judgment’ in the instant ‘Appeal’ in and effective manner. Taking into account of the fact that the ‘additional documents’ projected on the side of Applicant Appellant are very much essential to proper and effective adjudication of the controversies revolving around the ‘Application’ in CPNo. 1 BB 2019 relating to ‘financial debt’ this ‘Tribunal’ allows I.A. No. 14120 to secure the ends of justice. No costs. Preamble The Appellant Applicant Financial Creditor has preferred the present CA(Ins) 5520 before this Tribunal being dissatisfied with the order dated 28.01.2020 in CP No. 1 BB 2019 passed by the ‘Adjudicating Authority’in dismissing the Application. ‘Adjudicating Authority’ National Company Law Tribunal Bengaluru Bench) while passing the ‘impugned order’ dated 28.01.2020 in CP IB) No. 1 BB 2019 at paragraph 8 to 14 had observed the following: T.A. No. 117 2021No. 553 2020] “In the instant case the amounts are stated to be given at a time when the Petitioner was a Director in the Respondent Company for the purpose of keeping the Company running and meeting the Company’s funding requirements. As per the Petition the Petitioner herself informed the Board about the fund requirement. That was much in the interest of the Petitioner herself as of the Respondent Company as she was a Director. She then advanced the amounts on 01.12.2016 and 18.01.2017 in two tranches totalling Rs. 4.10 crore. In the Board Meeting of 23.02.2017 another Director Sri S Jairam a close associate and statutory auditor in other Companies in which the Petitioner was a Promoter Director and later in the Respondent Company as well only “informed” the Board that the amounts had been received and were to be repaid in 6 months and bore an interest of 7.5% pa. There was therefore no Agreement or prior approval for the borrowing or for any terms and conditions nor any other document to establish the debt. The amounts contributed were for the operational expenses of the Company. The amounts were not demanded or borrowed by the Company from the Petitioner. In this entire period the Petitioner herself was the key person in the Company chairing the Board meeting and signing its minutes. All the decisions were virtually taken by the Petitioner unilaterally decision on requirement of funds information of payments and terms and intimation of the same and adoption of Resolutions about each of these events. It is also seen that in the Resolution T.A. No. 117 2021No. 553 2020] adopted on 06.04.2017 when the Petitioner was still a Director the period of return is stated to be 60 days as per the Petition and not 6 months as mentioned elsewhere. Similarly the two amounts of Rs. 50 lakh each diverted immediately after receiving the above amounts in the Company to a another non existent Company in which the Petitioner had been a Director without any approval even though the amounts were stated to be given to the Respondent company to meet its expenses. In view of the above facts even though she may have given amounts as a Director to meet the expenses of the Company it does not necessarily make the amounts owed to her a ‘debt’ in the sense conceived in the Code. Debt as defined under the Code in Section 3means a liability or obligation in respect of a claim which is due from any person and includes a financial debt or an operational debt. Such a debt would arise from a claim as also defined in Section 3i.e. from a right to payment in the hands of the Creditor. In the present context such a right could arise from some prior terms and conditions agreed to by the concerned opposite parties in the shape of a Contract or an Agreement between them prior to the loan being given so that the same could be enforced. It was also not a Financial Debt as per the definition given in section 5of the Code as the amounts were not “money borrowed” by the Corporate Debtor. All actions regarding the loans in question were taken unilaterally by the T.A. No. 117 2021No. 553 2020] Petitioner. In addition there as lack of clarity as to whether it was in the nature of a Financial debt or an Operational debt. A borrowing may be reflected in the Balance Sheet as pointed out by the Petitioner but the same may not constitute a Financial Debt that could be enforced as per the Code. As held by the Hon’ble NCLAT in the case of Dr. BVS Lakshmi v. Geometric Laser Solution Pvt. Ltd. dated 22.12.2017 in such circumstances it cannot be said the amounts stated to have been given acquired the nature of a ‘financial debt’ and the Petitioner cannot be termed as a Financial Creditor. The Petition becomes liable to be dismissed on this ground as well. 10. Proceedings under the Code are summary proceedings where even if there was debt the same should be undisputed and the default as defined under Section 3 of the Code should be clearly established. While the amounts had been given in December 2016 and January 2017 and became due by June 2017 the demand noticewas sent by the Petitioner only on 26.09.2018 that is after a lapse of more than a year. In the intervening period when she wielded full powers took all the decisions and signed all the minutes of the Meetings there were disputes that led to financial due diligence being undertaken by the Company through an independent Malaysian Financial Consultant at the behest of the Investing Company foreign Directors which led ultimately to T.A. No. 117 2021No. 553 2020] the resignation of the Petitioner in July 2017 from Company as it threw up issues of misrepresentation and misappropriation fabrication of documents and accounts etc. Issues were also raised earlier about the Petitioner and her husband selling their shares in the Company to foreign entities of Singapore and Samoa when they were Directors at exaggerated valuation in collusion with the Auditor. Payments totalling Rs one crore were made in December 2016 when the Petitioner was a Director and under her supervision to M s Chemizol Lubricants Private Limited a Company which had already been dissolved on 11.08.2016. Thus not only the purpose of giving the amounts but also the net amount payable came into dispute much prior to the demand notice issued the Petitioner. It is settled position of law that the provisions of the Code cannot be invoked for recovery of outstanding amount but can be invoked to initiate CIRP for justified reasons as per the Code. The Hon’ble Supreme Court in the case of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited has inter alia held that I&B Code 2016 is not intended to be a substitute to a recovery forum and cannot be used to jeopardize the financial health of an otherwise solvent company by pushing it into insolvency. The Hon’ble Supreme Court in the case of K. Kishan Vs. Vijay Nirman Company Pvt. Ltd. clarified that the Petitioners cannot use IBC either prematurely or for extraneous T.A. No. 117 2021No. 553 2020] considerations or a substitute for debt enforcement procedures. In Transmission Corporation of A.P. Ltd. Vs. Equipment Conductors and Cables Ltd. Hon’ble Supreme Court of India has inter alia held that existence of undisputed debt is sine qua non of initiating CIRP. While we shall not go into the dispute per se it is clear that the debt if any was not clear or free from dispute even prior to the issue of the legal notice and the Petitioner has attempted to use these proceedings only for recovery of its claimed amounts. Proceedings under the Code are for initiation of Insolvency proceedings when a Corporate Debtor is found to be completely unable to repay its debts a situation compelling enough for this Adjudicating Authority to order a CIRP. No case has been made out in the Petition that the Respondent Company is Insolvent. The Respondent Company is 99.99% wholly owned subsidiary of M s. OnChamp Investments Limited a foreign Company which has made huge Foreign Direct Investments in to the Corporate Debtor. Further it is a 100% Export Oriented Unit and is committed to continue its regular operations and also to support hundreds of its employees. It has total assets of Rs. 152 05 49 836 as at 31.03.2018 and net worth of Rs. 132.5 Crore with few liabilities. It has an investment in Land and Buildings of about Rs. 136 Crore. It was therefore a solvent Company though there may have been temporary cash flow issues. T.A. No. 117 2021No. 553 2020] Section 7of the Code uses the term “may” which gives this Adjudicating Authority the option to weigh the pros and cons of initiating a CIRP against the Corporate Debtor. In the circumstances stated above we do not consider it justifiable to send the Respondent into CIRP as that would have serious socio economic repercussions on an Export oriented Company with huge foreign funding and of the stature mentioned above especially on the hundreds of employees and other stakeholders and customers and that too when the Respondent Company is undergoing a temporary funding lull and expects to recover soon. Though we have held that the legal as well as factual position does not warrant initiation of a CIRP as per the provisions of the Code in respect of the Respondent Corporate Debtor we make it clear that the dismissal of this Petition will not come in the way of the Petitioner to settle its dispute if any with the Respondent Corporate Debtor and seek refund of any amount due to it by approaching any other forum or under any other Law.” and resultantly dismissed the filed by the Appellant Applicant Financial Creditor. Appellant’s Contentions Challenging the order of dismissal dated 28.01.2020 in CP No. 1 BB 2019 passed by the Adjudicating AuthorityThe Learned Counsel for the Appellant contents that the impugned order T.A. No. 117 2021No. 553 2020] 10 passed by the Adjudicating Authority dated 28.01.2020 is an invalid and illegal one and that the Adjudicating Authority wrongly came to the conclusion that there was a dispute as to the purpose for which the amount was given. According to the Learned Counsel for the ‘Appellant’ the ‘Adjudicating Authority’ had erroneously held in the ‘impugned order’ that a borrowing being reflected in the ‘Books of Account’ is not a ‘Financial Debt’. It is represented on behalf of the Appellant whether an amount Loaned by the Director to a ‘Company’ recorded as a Loan in the Minutes of the Meeting of the Board of Directors is not a ‘Financial Debt’ 10. The Learned Counsel for the Appellant proceeds to point out that even in September 2016 the ‘Board of Directors’ were aware of the fact that the Company was in the requirement of ‘Funds’ and it was discussed in the meeting of the Board of Directors. 11. The Learned Counsel for the Appellant brings it to the notice of this Tribunal that the loan of Rs. 4.10 Crores was disbursed by the Appellant to the Respondent Company in two tranches the first tranche of Rs. 2.50 Crores was made on 1.12.2016 and the second tranche of Rs. 1.6 Crores was made on 18.01.2017. 12. The Learned Counsel for the Appellant refers to clause 26 of the ‘Articles of Association’ which provides for the ‘Borrowing Powers’ of the ‘Board of Directors’ to the effect that ‘the Board of Directors may from time to time at their discretion borrow from individual Directors Members or other persons T.A. No. 117 2021No. 553 2020] any sum or sums of money for the purpose of the Company on such terms and conditions as the Board of Directors may agree in each case’. 13. The Learned Counsel for the Appellant comes out with a plea that the ‘Board of Directors’ is empowered to subsequently ratify an Act which was done earlier and to lend support to this contention cites the decision of the Hon’ble Supreme Court in ‘Goa Shipyard Ltd. v Babu Thomas’ reported in 2007) 10 SCC page 622 where in at paragraph 13 it is observed as under: “13….The question whether the Board of Directors of a company could subsequently ratify an invalid act and validate it retrospectively is no more res integra. The question has been considered by a three Judge Bench of this Court in Maharashtra State Mining Corpn. v. Sunil5 SCC 96 : 2006 SCC926]. In that case the respondent an employee of the Corporation was dismissed by the Manging Director preceded by an inquiry. A writ petition was filed challenging the dismissal order on the ground that the Managing Director of the Corporation was incompetent to pass such an order. During the pendency of the writ petition the Board of Directors of the Corporation passed a resolution ratifying the impugned action of the Manging Director and also empowering him to take decisions in respect of the officers and staff in the grade of pay the maximum of which did not exceed Rs. 4700 p.m. The Managing Director who dismissed the employee had earlier the power only in respect of those posts where the maximum pay did not exceed Rs. 1800 p.m. T.A. No. 117 2021No. 553 2020] The employee at the relevant time was drawing more than Rs. 1800 p.m. and therefore the Managing Director was incompetent to dismiss the employee. The High Court set aside the order of termination on the ground that the invalid act cannot be subsequently ratified by the Board of Directors. This Court after referring to various earlier decisions set aside the order of the High Court. This Court held as under:The High Court was right when it held that an act by a legally incompetent authority is invalid. But it was entirely wrong in holding that such an invalid act cannot be subsequently ‘rectified’ by ratification of the competent authority. Ratification by definition means the making valid of an act already done. The principle is derived Latin maxim ratihabitio mandato aequiparatur namely ‘a subsequent ratification of an act is equivalent to a prior authority to perform such act’. Therefore ratification assumes an invalid act which is retrospectively validated. 10. In the present case the ‘Managing Director’ order dismissing the respondent from the service was admittedly ratified by the Board of Directors on 20 02 1991 and the Board of Directors unquestionably had the power to terminate the services of the respondent. On the basis of the authorities noted it must follow that since the order of the Managing T.A. No. 117 2021No. 553 2020] Director had been ratified by the Board of Directors such ratification related back to the date of the order and validated it.” 14. Advancing the argument the Learned Counsel for the Appellant submits that even if there was no earlier approval for taking of the ‘Loan’ and the terms of ‘repayment’ was subsequently ratified by the Board of Directors in not one but two meetings of the Board of Directors i.e. on 23.02.2017 and on 06.04.2017. Furthermore the ‘Minutes of the Meeting’ was signed by the ‘Appellant’ but Mr. Ooi Boon Aun was present in the meeting. However the minutes of the meeting was signed by Mr. Ooi Boon Aun on 06.04.2017 as the ‘Chairman of the Meeting’ and that the ‘Appellant’ had not participated in the said meeting because of the fact that it related to a ‘Loan’ given by her. 15. The Learned Counsel for the Appellant adverts to the fact that Mr. Ooi Boon Aun also had signed the Ledger Book recording the Loan given by the Appellant and added further the ‘Balance Sheet’ of the Respondent Company for the period from 01.04.2016 to 31.03.2017 mentions the outstanding liability to the Appellant of Rs. 4.10 crores. 16. The Learned Counsel for the Appellant points out that the Balance Sheet of the Respondent Company for the period even after resignation i.e. for the period from 01.04.2017 to 31.03.2018 again mentions the outstanding liability to the Appellant. 17. The Learned Counsel for the Appellant brings it to the notice of this ‘Tribunal’ that the instant case relates to a ‘Financial Debt’ and it does not T.A. No. 117 2021No. 553 2020] pertains to the difference between a ‘Secured’ and an ‘Unsecured Creditor’. In this regard the Learned Counsel for the Appellant seeks in aid of the decision of the Hon’ble Supreme Court in Orator Marketing Pvt. Ltd. v Samtex Desinz Pvt. Ltd. reported in 2021 SCC Online SC 513 where in an expansive definition of ‘Financial Debt’ is laid down as under: “The definition of ‘financial debt’ in Section 5(8) of the IBC has been quoted above. Section 5(8) defines ‘financial debt’ to mean “a debt alongwith interest if any which is disbursed against the consideration of the time value of money and includes money borrowed against the payment of interest as per Section 5(8)of the IBC. The definition of ‘financial debt’ in Section 5(8) includes the components of sub clausetoof the said Section.” “At the cost of repetition it is reiterated that the trigger for initiation of the Corporate Insolvency Resolution Process by a Financial Creditor under Section 7 of the IBC is the occurrence of a default by the Corporate Debtor. ‘Default’ means non payment of debt in whole or part when the debt has become due and payable and debt means a liability or obligation in respect of a claim which is due from any person and includes financial debt and operational debt. The definition of ‘debt’ is also expansive and the same includes inter alia financial debt. The definition of ‘debt’ is also expansive and the dame includes inter alia financial debt. The definition of ‘Financial Debt’ in Section 5(8) of IBC does not expressly exclude an interest free loan. ‘Financial Debt’ would have to be construed to include interest free loan advanced to finance the business operations of a corporate body.” T.A. No. 117 2021No. 553 2020] 18. The Learned Counsel for the Appellant points out that because of the fact that ‘Repayment’ never took place the Appellant finally resigned as ‘Director’ of the Respondent Company on 25.07.2017. Besides this the Appellant had approached an Advocate requiring him to issue a legal notice for Repayment upon the Respondent Company. In this regard the Learned Counsel for the Appellant submits that the Advocate for the Appellant had issued a notice mistakenly claiming to be an ‘Operational Creditor’ and in fact the Appellant having realised the mistake had engaged a new Advocate who issued a legal notice dated 26.06.2018 to the Respondent Company as ‘Financial Creditor’. It is projected on the side of the Appellant that the Respondent Company gave a reply to the legal notice of the Appellant on 05.07.2018 admitting the loan given by the Appellant and requested the Appellant for to repay the amount. Indeed ‘Director’ of Respondent Companyon 25.10.2018 addressed a letter to the Appellant apologising and sought more time for repayment and also requested that legal action was not to be initiated. 20. The pivotal stand of the Appellant is that Mr. Weiqui wrote a letter on 07.06.2017 to the Appellant apologising for the breach of the repayment deadline 05.06.2017 and by an another letter dated 27.06.2017 addressed to the Appellant Mr. Weiqui promised that the loan would be repaid by 10 T.A. No. 117 2021No. 553 2020] 21. The Learned Counsel for the Appellant brings it to the notice of this Tribunal that the Respondent Company filed its Reply in March 2019 through its Company Secretary) thereby admitted its liability to repay the Appellant the Principal as well as Interest. On the same day Mr. Ooi Boon Aun wrote to the Appellant under the Letterhead of the Respondent Company which is extracted as under: “Thank you or your patience and co operation regarding your loan to Chemizol Additives Pvt. Ltd. Bangalore No. 553 2020] 23. The Learned Counsel for the Appellant advances an argument that the I & B Code 2016 does not give an option to a creditor to decide whether it wants to be a ‘Financial Creditor’ or an ‘Operational Creditor’. In this connection the learned Counsel refers to the decision in G. Sreevidhya v Karismaa Foundation’s Pvt. Ltd. 2019 SCC Online NCLAT 145 wherein a ‘Demand Notice’ was incorrectly issued under wrong ‘Legal Advice’ given by the ‘Advocate’ treating the ‘Debt’ as an ‘Operational Debt’. However this ‘Tribunal’ held that since the Respondent had committed default in discharge of ‘Financial Debt’ the ‘Appellant’ was within her Rights to initiate ‘Corporate Insolvency Resolution Process’ even the Civil Appeal No. 33719 filed against the aforesaid decision before the Hon’ble Supreme Court of India was dismissed as Withdrawn. 24. The Learned Counsel for the Appellant categorically contends that the ‘Adjudicating Authority’ had ignored the admission of the Respondent Companies’ response dated 05.07.2018 to the Appellant’s legal notice wherein the Company had not disputed the loan advanced but instead sought further time to repay the loan. 25. The Learned Counsel for the Appellant cites the decision in Vinayaka Exports v Colourhome Developers reported in 2019 SCC Online NCLAT 606 where in at paragraph 7 it is observed as under: 7. “The Adjudicating Authority was of the view that in view of pendency of the civil suit there exist a dispute in the amount of debt between both the parties is concerned. The said stand cannot be accepted. The application filed before the Adjudicating T.A. No. 117 2021No. 553 2020] Authority is under Section 7 of the IBC and not under Section 9 of the IBC where one can take a plea stating that there exists a dispute between the parties before issuing a Demand Notice under Section 8(1) of the IBC. Therefore we are unable to uphold such finding of the Adjudicating Authority.” 26. The Learned Counsel for the Appellant refers to the decision of the Hon’ble Supreme Court in Innoventive Industries Ltd. v ICICI Bank1 SCC 407 at paragraph 30 wherein it is held that in case the ‘Corporate Debtor’ commits default of a ‘Financial Debt’ the Adjudicating Authority is to merely see the evidence produced by the ‘Financial Creditor’ to satisfy itself that a ‘Default’ has occurred. As a matter of fact the Hon’ble Supreme Court had held as under: “It is of no matter that the debt is disputed so long as the debt is “due” i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority may reject an application and not 27. The Learned Counsel for the Appellant takes a stand that the ‘Dispute’ was raised only at a later point of time as an afterthought by way of conflicting ‘Second Affidavit’ filed before the ‘Adjudicating Authority’. Apart from this the ‘Audit Report’ notes Debts due to ‘Ex Directors’. 28. While summing up the Learned Counsel contends that the ‘impugned order’ of the ‘Adjudicating Authority’ in dismissing the Application in CPT.A. No. 117 2021No. 553 2020] No. 1 BB 2019 filed by the Appellant Applicant cannot be Countenanced in the eye of Law. Respondent’s Pleas 29. According to the Learned Counsel for the Respondent that the ‘Demand Notice’ dated 26.06.2018 issued by the Appellant indicates that the ‘Debt’ as an ‘Operational Debt’ but in the Application filed by the Appellant Applicant it is mentioned as ‘Financial Debt’ and as ‘Financial Creditor’ as per the Code. 30. The Learned Counsel for the Respondent Company points out that the Appellant was the Executive Director of the Company having unfettered powers in day today affairs and functioning of the Company. In fact all the Board Meetings held in the Financial Year 2016 2017 shows that the Appellant either had participated or ‘chaired’ including the meeting that took place on 23.02.2017 held under the Chairmanship of the Appellant which records a ‘Resolution’ to the effect that the Respondent Company had obtained a Loan from the Appellant to be repaid within Six Months from the date of the first disbursement with interest at 7.5%. It is the version of the Respondent Company that the ‘Appellant’ had stepped down from their position of ‘Executive Director’ and had agreed to continue as Non Executive Director and it was recorded that the loan Secured from the ‘Appellant’ was to be repaid within 60 days from the date of the meeting with interest at 7.5%. Moreover the ‘Minutes’ had recorded that the ‘Appellant’ as an ‘interested person’ had not taken part in the discussion of the ‘Resolution’. T.A. No. 117 2021No. 553 2020] 32. The Learned Counsel for the Respondent takes a stand that in the meeting that took place on 23.02.2017 a Resolution was recorded to the affect that it was passed in compliance with Section 179(d) of the Companies Act 2013 to ratify the ‘Loan’ obtained by the Respondent from the Appellant. The Learned Counsel for the Respondent adverts to Section 179 of the Companies Act 2013 which among other things mentions that certain ‘Resolutions’ is required to be passed in the Board Meeting. Apart from that Section 179(d) specifies that the Board of Director shall exercise its power ‘To Borrow Monies’ only through a Resolution passed at the meetings of the 33. The Learned Counsel for the Respondent comes out with a plea that Section 179 of the Companies Act 2013 vests the ‘Directors’ the ‘Power to Borrow’ after deliberating the Financial needs of the Company implications thereof rate of interest etc. in a properly convened ‘Board Meeting’ and the same cannot be passed in circulation. In this regard the stance of the Respondent is that the ‘Post Facto’ ratification is not envisaged under the 34. The Learned Counsel for the Respondent brings it to the notice of this tribunal that as per Section 73 read with Section 76 of the Companies Act 2013 and the Companies rules 2014 ‘Loans’ obtained from the Directors or excluded from the purview of ‘Deposits’ and does not require any compliance of the aforesaid provisions. Moreover it is pointed out on behalf of the Respondent that ‘non confirming Loans’ would T.A. No. 117 2021No. 553 2020] not enjoy such exemption and needs to comply with Section 73 read with Section 76 of the Companies Act 2013 and the Companies rules 2014. 35. The Learned Counsel for the Respondent submits that after the Appellant resigned from the Respondent Company she had no interest in the Company and issued a ‘Demand Notice’ dated 26.09.2018 after a year of her resignation to avenge her personal Vendetta and that to as an ‘Operational 36. The Learned Counsel for the Respondent cites the Judgment dated 19.10.2020 of this Tribunal in Volkswagen Finance Pvt. Ltd. v Balaji Printo Pack Pvt. Ltd. (Ins) No. 02 of 2020) wherein in it is held that non compliance of the provisions of the Act has ‘ramifications’ under the code. 37. On behalf of the Respondent the Judgment of the Hon’ble Supreme Court in Asha John Divianathan v. Vikram Malhotra and Others 2021 SCC online SC 147 is cited before this ‘Tribunal’ for the proposition that ‘where a contract express or implied is expressly or by implication forbidden by statute no court will lend its assistance to given it effect. See Mellis v. Shirley L.B.16 Q.B.D. 446: 55 LJQB 143 : 2 TLR 360]). Assessment 38. The Appellant Applicant in the Application filed by the financial Creditor under Section 7 of the Code read with rule 4 of the Insolvency and T.A. No. 117 2021No. 553 2020] Bankruptcyrules 2016 in December 2018 under part 4 ‘particulars of financial debt’ had mentioned that the total sum of debt which was granted by the Appellant Applicant was Rs. 4 10 00 000 . The date of disbursement was mentioned as 1.12.2016 Rs. 2 50 00 000 and on 18.01.2017 a sum of Rs. 1 60 00 000 was disbursed by the Appellant. 39. The Appellant Applicant in the ‘Application’ had mentioned that as on 31.11.2018 the ‘Corporate Debtor’ was liable to repay the Principal amount of Rs. 4 10 00 000 together with interest of Rs. 60 50 000 calculated at 7.5 p.a. from 1.12.2016 to 31.11.2018 thus aggregating to Rs. 4 70 50 000 . 40. The Respondent Company in its ‘Reply’ to the ‘Application’ filed by the Appellant CPNo.1 BB 2019 had stated that the ‘Demand Notice’ issued by the ‘Appellant’ shows that the ‘Debt’ as ‘Operational Debt’ but the Petition indicates that the ‘Debt’ as ‘Financial Debt’ and the ‘Appellant’ as ‘Financial Creditor’ as per the Code. It is further averred in the ‘Reply’ of the Respondent that in January February 2017 an ‘Audit’ was conducted relating to the affairs of the Respondent Company by a Malaysian Firm ‘VCus’ which found out that there was ‘Misrepresentation’ and ‘Misappropriation’ of funds as observed by the ‘Adjudicating Authority’ in the impugned order. Thereafter a meeting was held on 06.04.2017 wherein the ‘Appellant’ had stepped down from the post of ‘Executive Director’ and further that ‘New Directors’ were appointed and T.A. No. 117 2021No. 553 2020] given ‘Authority’ to sign ‘Cheques’ and other agreements on behalf of the Respondent Company. Finally the ‘Appellant’ resigned on 25.07.2017. 42. The stand of the Respondent is that during the year 2016 2017 the Respondent Company was under a ‘Liquidity’ crisis and an impression was made by the ‘Appellant’ that the purported loan was granted by the Appellant in order to meet the ‘Operational Expenses’ especially ‘Employees Salaries’. 43. The Respondent has assets worth Rs. 152.05 Crores and its Net worth is Rs. 132.5 Crores and total outside liabilities of the Company is Rs. 14.39 Crores No. 553 2020] It is to be pointed out that in order to prove an existence of debt the ‘Onus’ is on the concerned Applicant Petitioner. The ‘Adjudicating Authority’ must be satisfied as to the existence of ‘Default’ and in fact is not required to note any other criteria for ‘Admission of the Application’. In short where the Applicant Petitioner is able to establish the existence of a ‘Debt’ and the Corporate Debtor’s default and if the ‘Application’ is complete in all aspects necessarily the Application is to be admitted by the ‘Adjudicating Authority’ as opined by this ‘Tribunal’. IBC DEFINITIONS 47. Section 3(11) of the I & B Code 2016 speaks of ‘Debt’ meaning a liability or Obligation in respect of a claim which is due from any person and includes a financial debt and operational debt. Section 3 of the Code defines ‘ default’ meaning non payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not paid by the debtor or the Corporate Debtor as the case may be. 48. Section 5 of the Code enjoins ‘Financial Creditor’ meaning any person to whom a ‘Financial Debt’ is owed and includes a person to whom such debt has been legally assigned or transferred to. Section 5refers to ‘Financial Debt’ meaning a debt with interest if any which is disbursed against the consideration for the time value of money and includes a money borrowed against the payment of interest any amount raised by acceptance under any acceptance credit facility or its de materialised equivalent etc. T.A. No. 117 2021No. 553 2020] 49. Section 3(8) of the I & B Code 2016 defines “Corporate debtor means a corporate person who owes debt to any person. Section 3(6) of the I&B Code 2016 defines “claim” meaning: a) a right to payment whether or not such right is reduced to judgment fixed disputed undisputed legal equitable secured or unsecured b) right to remedy for breach of contract under any law for the time being in force if such breach gives rise to a right to payment whether or not such right is reduced to judgment fixed matured unmatured disputed undisputed secured or unsecured” It must be borne in mind that ‘Financial Debt’ under Section 5(8) of the I & B Code is an inclusive definition and even if a transaction which does not fall under any of those described under the provision can be classified as a ‘Financial Debt’. It is to be remembered that a ‘Financial Creditor’ is a person who has a right to the ‘Financial Debt’. 51. Section 3(10) if the I&B Code 2016 defines ‘creditor’ meaning any person to whom a ‘Debt’ is owed and includes a ‘financial creditor’ ‘operational creditor ‘secured creditor ‘un secured creditor’ and a ‘decree It is to be pointed out that where the record showed that an ‘Application’ was filed on the proforma specified under Rule 4(2) of the Insolvency and Adjudicating Authority) Rules 2016 and when ‘Adjudicating Authority’ was subjectively satisfied that a default had occurred T.A. No. 117 2021No. 553 2020] 26 the Application. the right course of action for the ‘Adjudicating Authority’ in law is to admit 53. Undoubtedly the ‘Adjudicating Authority’ deals with the matter of ‘Insolvency’ and firstly is to take steps for ‘Resolution’ of the ‘Corporate Debtor’. The ‘Resolution Process’ is not a ‘litigation’ and that the ‘proceedings’ under the I & B Code 2016 are of a ‘Summary Jurisdiction’ and it is not ‘Adversial’ in character. 54. At this juncture this ‘Tribunal’ relevantly points out that in respect of ‘Loan’ the ‘Borrowing’ is primarily is for the benefit of ‘Borrower’. In fact the ‘Lender’ is in receipt of benefit through ‘interest’. In case of ‘Loan’ the obligation to repay the sum arises immediately n receipt of ‘Loan’. It cannot be ignored that ‘Loan’ is payable only when the obligation to repay the money arises in terms of the ‘Agreement’. After all the stark reality is that ‘Loan’ is taken at the instance of a person requiring money. 56. Be it noted that Section 73 of the Companies Act 2013 deals with ‘Prohibition on acceptance of deposits from public. Section 76 of the Companies Act 2013 provide for the ‘Acceptance of deposits’ from public by certain Companies. reads as under: 57. Rule 2(1)(c) of the Companies Rules 2014 c) “deposit” includes any receipt or money by way of deposit or loan or in any other form by a company but does not include T.A. No. 117 2021No. 553 2020] any amount received from a person who at the time of the receipt of the amount was a director or the company or a relative of the director of the Private company Provided that the director of the company or relative of the director of the private company as the case may be from whom money is received furnishes to the company at the time of giving the money a declaration in writing to the effect that the amount is not being given out of funds acquired by him by borrowing or accepting loans or deposits from others and the company shall disclose the details of money so accepted in the Board’s report ” 58. The term ‘Deposit’ and ‘Loan’ they include ‘borrowing of money’ and in ‘Deposit’ the ‘Depositor’ is a prime mover. In ‘Loan’ the ‘Borrowing’ is to ultimately benefit the ‘person who borrows’. In the present case it is brought to the forefront that the ‘Appellant’ had issued the declaration under the proviso to Rule 2(c) of the Rules. There is no gainsaying of the fact that the ingredients of Sections 73 & 76 are not meant to protect the Company to whom the sum is given. In the present case it is to be pointed out that at no point of time the Respondent Company sought to avoid the ‘Loan Transaction’ with the ‘Appellant’. As a matter of fact the Respondent and its Officers had confirmed their obligations to repay the ‘Loan’ to the ‘Appellant’. As such the plea of ‘Voidability’ of the ‘Loan Transaction’ is not available to the Respondent Company in the considered opinion of this ‘Tribunal’. 61. On behalf of the ‘Appellant’ a reference is made to the ‘Order’ passed by ‘Adjudicating Authority’ NCLT Mumbai Bench) in CP No. T.A. No. 117 2021No. 553 2020] 66 IBC NCLT MB MAH 2018 between Anchor Leasing Pvt. Ltd. v. Euro Ceramics Ltd. wherein it is observed and held that the Code nowhere prescribed the compulsory existence of an express agreement to prove the loan and its disbursement. The Statement of Accounts produced on record were held enough to prove the disbursement of the loan amount. 62. Section 5(21) of I & B Code 2016 defines ‘Operational Debt’ meaning a claim in respect of provision of goods or services including employment or a debt in respect of theof dues arising under any law for the time being in force and payable to the Central Government any State Government or any local authority. In law for initiating the ‘Corporate Insolvency Resolution Process’ the ‘Debt’ in question is not to be a disputed one. In the present case on hand it is quite clear from the Minutes of the Meeting of the Board of Directors of the Respondent Company dated 23.03.2017 wherein at serial No. 5 it is mentioned as under: “Mr. Jairaj S Director of the company informed the board of the Company has obtained loan from one of its Director Madam Jayanthi G Ravi on an agreed terms and conditions and the Board need to ratify the same. The Board further agreed the interest rate of 7.5 percent annum on the drawn amount and further agreed for the loan term for a period of six months from the date of first T.A. No. 117 2021No. 553 2020] 29 It is seen from the Minutes of the 78th Meeting of the Board of Directors of the Respondent Company dated 06.04.2017 that ‘The Minutes of the previous Meeting of the Board were taken note and confirmed at the Meeting. It is evident from the ‘Receipt Voucher’ of the Respondent Company dated 01.12.2016 Mr. Ooi Boon Aun had signed the Ledger Book on 06.04.2017 wherein it was mentioned that Rs. 2 50 00 000 was mentioned to be the amount received from the ‘Appellant’ towards Loan vide transaction dated 01.12.2016. In fact the ‘Minutes of the Meeting’ was signed by the ‘Chairman’ of the Meeting Mr. Ooi Boon Aun on 06.04.2017. 67. Just because in the Lawyer’s Notice seeking repayment by the ‘Appellant’ it was wrongly claimed as an ‘Operational Creditor’ the same mistake after realisation the Appellant had engaged new Advocate who issued a Notice dated 26.06.2018 to the Respondent Company as ‘Financial Creditor’. The mistake that had crept in the First Legal Notice was corrected by the Second Legal Notice issued through a new Advocate is not a fatal one to the facts of the case which float on the surface. In fact Mr. Qi Wei through letter dated 07.06.2018 addressed to the Appellant had among other things mentioned that …’this will be last delay. It can only be earlier than the date I had promised. I can only deal with some urgent thing at noon time and at night. Again please understand my situation.’ In reality the Director of the Respondent Company Mr. Ooi Boon Aun had addressed a replyon 25.10.2018 to the ‘Appellant’ wherein deferring of any Legal Action was mentioned and a T.A. No. 117 2021No. 553 2020] 30 reiteration was made that the Respondent Company ‘will repay the entire Loan amount at an agreed interest rate of 7.5% per annum within sixty days from 6th April 2017 i.e. from 5th June 2017’. In the present case the Second transfer Rs. 1.60 crores was made to the Respondent Company on 18.01.2017 and the said transfer was effected from the Appellant’s personal Bank Account to the Current Account of the Respondent Company. In fact the first Transfer of Rs. 2.50 Crores was made on 01.12.2016 to the Respondent Company and these were recorded in the Minutes of the Board of Director’s on 22.03.2017 and 06.04.2017 respectively. 71. Be that as it may this ‘Tribunal’ taking note of the facts and circumstances of the instant case and also considering the fact that the first tranche of Rs. 2.50 Crores was disbursed by the ‘Appellant’ to the Respondent Company on 01.12.2016 and the second tranche of Rs.1.60 Crores was Transferred from the Appellant Applicant’s ‘personal Bank Account’ to the ‘Current Account’ of the Respondent Company and these transfers were recorded in the ‘Minutes of the Meeting of the Board of Directors’ on 23.02.2017 and 06.04.2017 that the Respondent Company had mentioned in its ‘Balance Sheet’ for 01.04.2016 to 31.03.2017 about the outstanding liability to the Appellant of Rs. 4.10 Crores the ‘Balance Sheet’ of the Respondent Company also mentions the factum of ‘outstanding liability’ to the ‘Appellant’ and in spite of several assurances made to the ‘Appellant’ the Respondent Company had not repaid the due outstanding sum to the ‘Appellant’and the correspondences between the parties T.A. No. 117 2021No. 553 2020] and even the ‘Reply’ of the Respondent Company filed before the ‘Adjudicating during March 2019) ‘clinchingly’ establishes Respondent Company had admitted its liability to repay the ‘Principal sum’ and ‘Interest’especially the Respondent Company had sought time to repay Loan and Interest thereon in one payment by 30.04.2019 and taking into account all these cumulative facts in an integral manner this ‘Tribunal’ comes to an inevitable inescapable and consequent conclusion that the ‘Appellant Financial Creditor’ had established the ‘Financial Debt’ and ‘Default’ being the pre requisites for admitting the ‘Application’filed by the ‘Appellant’. Viewed in that perspective the contra views arrived at by the ‘Adjudicating Authority’ that the ‘Loan’ was not a ‘Financial Debt’ as the amounts were not ‘money borrowed’ by the ‘Corporate Debtor’ and that the borrowing may not constitute a ‘Financial Debt’ that could be enforced as per the I & B Code 2016 though the ‘Borrowing’ may be reflected in the ‘Balance Sheet’ as pointed out by the ‘Petitioner in CPNo. 1 BB 2019) and set aside the same to promote substantial cause of justice. Consequently the ‘Appeal’ In fine the T.A. No. 1121No. 5520] is allowed. No costs. The ‘Adjudicating Authority’ No. 553 2020] 32 Tribunal Bengaluru Bench) is directed to restore the CP(IB) No. 1 BB 2019 to its file to admit the ‘petition’ and to proceed further in the manner known to Law and in accordance with Law. Justice M. Venugopal) MemberKanthi Narahari) Member3rd January 2022 T.A. No. 117 2021No. 553 2020] |
The Quantum of punishment depends on the circumstances of each case, no straight jacket way to determine punishment: Supreme Court of India | The quantum of sentence, all depends on background facts of the case, antecedents of the accused, whether the assault was premeditated and pre-planned or not, etc. There are no straight jacket formulae for the determination of the same in law. 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 Govindan vs State represented by The Deputy Superintendent of Police [CRIMINAL APPEAL NO. 1665 OF 2021].
The facts that gave rise to the instant appeal were that there was a civil dispute between the complaints and accused relating to a pathway that led to the land of the complainant from the land of the accused. In context, a civil suit was filed by the accused in which an injunction order was passed against the complainants which they violated and had undergone 30 days of civil prison for not abiding by the order. On the day of the incident, there was a quarrel between lady members of the families in which the family members of the accused were hurt, and the accused acted in self-defense and used a knife which resulted in the death of the deceased. The trial court by appreciating oral and documentary evidence on record has recorded a finding that the complainant’s family members were the aggressors and they have tried to disturb the peaceful possession of the accused. The Trial Court also found that the appellant stabbed the deceased, Kamsala with a knife, but there was no premeditation or pre-planning and it was a sudden quarrel and the appellant exercised his right of private defense, but exceeded the limit. The High Court also dismissed the appeal of the accused. Aggrieved the accused preferred the present appeal.
The Hon’ble Supreme Court observed that the Trial Court itself has found that there was a quarrel in front of the house of the accused by the complainant’s family members on the date of the incident. It is also clear from the evidence on record that on the day of occurrence of the incident the dispute was only on account of cart track from the land of the accused to reach the land of the complainant. There was no premeditation or preplanning and it was a sudden quarrel, where the appellant exercised his right of private defense, exceeded the limits.
Additionally, the Hon’ble Supreme Court referred to the case of Lakshmi Chand and Anr. v. State of Uttar Pradesh (2018) 9 SCC 704 & Madhavan and Ors. v. State of Tamil Nadu (2017) 15 SCC 582 wherein this court reduced the sentence on account that the occurrence of the incident had taken place on spur of the moment without any premeditation.
Furthermore, the Hon’ble Supreme Court held that the findings of the trial court that the de facto complainants were the aggressors and they have tried to disturb the peaceful possession of the accused from their land were never challenged or questioned by the state or the complainants and therefore it became final. Having this in mind this is a fit case to modify the sentence, to meet the ends of justice.
Finally, the Hon’ble Supreme Court partly allowed the instant appeal and modified the sentence to two years’ rigorous imprisonment and to pay a fine of Rs.5,000/-, in default to undergo three (03) months’ rigorous imprisonment.
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Judgment Reviewed by: Rohan Kumar Thakur
The facts that gave rise to the instant appeal were that there was a civil dispute between the complaints and accused relating to a pathway that led to the land of the complainant from the land of the accused. In context, a civil suit was filed by the accused in which an injunction order was passed against the complainants which they violated and had undergone 30 days of civil prison for not abiding by the order. On the day of the incident, there was a quarrel between lady members of the families in which the family members of the accused were hurt, and the accused acted in self-defense and used a knife which resulted in the death of the deceased. The trial court by appreciating oral and documentary evidence on record has recorded a finding that the complainant’s family members were the aggressors and they have tried to disturb the peaceful possession of the accused. The Trial Court also found that the appellant stabbed the deceased, Kamsala with a knife, but there was no premeditation or pre-planning and it was a sudden quarrel and the appellant exercised his right of private defense, but exceeded the limit. The High Court also dismissed the appeal of the accused. Aggrieved the accused preferred the present appeal.
The Hon’ble Supreme Court observed that the Trial Court itself has found that there was a quarrel in front of the house of the accused by the complainant’s family members on the date of the incident. It is also clear from the evidence on record that on the day of occurrence of the incident the dispute was only on account of cart track from the land of the accused to reach the land of the complainant. There was no premeditation or preplanning and it was a sudden quarrel, where the appellant exercised his right of private defense, exceeded the limits.
Additionally, the Hon’ble Supreme Court referred to the case of Lakshmi Chand and Anr. v. State of Uttar Pradesh (2018) 9 SCC 704 & Madhavan and Ors. v. State of Tamil Nadu (2017) 15 SCC 582 wherein this court reduced the sentence on account that the occurrence of the incident had taken place on spur of the moment without any premeditation.
Furthermore, the Hon’ble Supreme Court held that the findings of the trial court that the de facto complainants were the aggressors and they have tried to disturb the peaceful possession of the accused from their land were never challenged or questioned by the state or the complainants and therefore it became final. Having this in mind this is a fit case to modify the sentence, to meet the ends of justice.
Finally, the Hon’ble Supreme Court partly allowed the instant appeal and modified the sentence to two years’ rigorous imprisonment and to pay a fine of Rs.5,000/-, in default to undergo three (03) months’ rigorous imprisonment.
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Judgment Reviewed by: Rohan Kumar Thakur
The Hon’ble Supreme Court observed that the Trial Court itself has found that there was a quarrel in front of the house of the accused by the complainant’s family members on the date of the incident. It is also clear from the evidence on record that on the day of occurrence of the incident the dispute was only on account of cart track from the land of the accused to reach the land of the complainant. There was no premeditation or preplanning and it was a sudden quarrel, where the appellant exercised his right of private defense, exceeded the limits.
Additionally, the Hon’ble Supreme Court referred to the case of Lakshmi Chand and Anr. v. State of Uttar Pradesh (2018) 9 SCC 704 & Madhavan and Ors. v. State of Tamil Nadu (2017) 15 SCC 582 wherein this court reduced the sentence on account that the occurrence of the incident had taken place on spur of the moment without any premeditation.
Furthermore, the Hon’ble Supreme Court held that the findings of the trial court that the de facto complainants were the aggressors and they have tried to disturb the peaceful possession of the accused from their land were never challenged or questioned by the state or the complainants and therefore it became final. Having this in mind this is a fit case to modify the sentence, to meet the ends of justice.
Finally, the Hon’ble Supreme Court partly allowed the instant appeal and modified the sentence to two years’ rigorous imprisonment and to pay a fine of Rs.5,000/-, in default to undergo three (03) months’ rigorous imprisonment.
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Judgment Reviewed by: Rohan Kumar Thakur
Additionally, the Hon’ble Supreme Court referred to the case of Lakshmi Chand and Anr. v. State of Uttar Pradesh (2018) 9 SCC 704 & Madhavan and Ors. v. State of Tamil Nadu (2017) 15 SCC 582 wherein this court reduced the sentence on account that the occurrence of the incident had taken place on spur of the moment without any premeditation.
Furthermore, the Hon’ble Supreme Court held that the findings of the trial court that the de facto complainants were the aggressors and they have tried to disturb the peaceful possession of the accused from their land were never challenged or questioned by the state or the complainants and therefore it became final. Having this in mind this is a fit case to modify the sentence, to meet the ends of justice.
Finally, the Hon’ble Supreme Court partly allowed the instant appeal and modified the sentence to two years’ rigorous imprisonment and to pay a fine of Rs.5,000/-, in default to undergo three (03) months’ rigorous imprisonment.
Click Here To Read The Judgment
Judgment Reviewed by: Rohan Kumar Thakur
Furthermore, the Hon’ble Supreme Court held that the findings of the trial court that the de facto complainants were the aggressors and they have tried to disturb the peaceful possession of the accused from their land were never challenged or questioned by the state or the complainants and therefore it became final. Having this in mind this is a fit case to modify the sentence, to meet the ends of justice.
Finally, the Hon’ble Supreme Court partly allowed the instant appeal and modified the sentence to two years’ rigorous imprisonment and to pay a fine of Rs.5,000/-, in default to undergo three (03) months’ rigorous imprisonment.
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Judgment Reviewed by: Rohan Kumar Thakur
Finally, the Hon’ble Supreme Court partly allowed the instant appeal and modified the sentence to two years’ rigorous imprisonment and to pay a fine of Rs.5,000/-, in default to undergo three (03) months’ rigorous imprisonment. | SLP(Crl.) No. 938 of 2021 REPORTABLE IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1665 OF 20 Arising out of SLPNo.938 OF 2021 ...Appellant State represented by The Deputy Superintendent of Police ...Respondent JUDGMENT R. SUBHASH REDDY J. This Appeal is preferred by the sole appellant in Criminal Appeal No.1715 filed before the High Court of Judicature at Madras aggrieved by the judgment and order dated 16.08.2019 By the aforesaid judgment the High Court has confirmed the conviction of the appellant accused no.1 in Sessions Case No.411 on the file of the learned Principal Sessions Judge Dharmapuri by SLP(Crl.) No. 938 of 2021 which the appellant was convicted for offence under Section 304(ii) of IPC and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5 000 in default to undergo three months rigorous imprisonment The sole appellant was tried along with three other accused persons for offences under Sections 302 r w 34 307 of IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled TribesAct 1989. The accused nos.2 to 4 were acquitted of all the charges however the appellant alone was convicted for offence under Section 304(ii) of IPC and was sentenced to undergo rigorous imprisonment for ten years with a fine of Rs.5 000 The respondent complainant and the accused are having adjoining lands at Kolimekkanur. It is the case of the complainant that there is an existing pathway from the land of the accused to go to the land of the complainant party. A Civil Suit was filed by the appellant in O.S.No.1410 before the Pappireddypatti District Munsif Court and an injunction order was granted in favour of the SLP(Crl.) No. 938 of 2021 appellant. It was the case of the prosecution that on the date of occurrence the accused tried to put a fence so as to block the de facto complainant’s family members using the cart track. On the other hand the case of the appellant accused is that the de facto complainant tried to lay a new cart track from the patta land of the appellant. In view of such dispute about the cart track there was a quarrel in front of the appellant’s house by de facto complainant’s family members. In the said quarrel female family members of the appellant namely Ms.Kaliammal and Ms.Rajammal suffered injuries which provoked the appellant accused Govindan to attack on the deceased and cause knife injuries which resulted in death of the deceased The Trial Court by appreciating oral and documentary evidence on record has recorded a finding that the de facto complainant’s family members were the aggressors and they have tried to disturb the peaceful possession of the accused. The Trial Court also found that the appellant stabbed the deceased Kamsala with a knife but there was no SLP(Crl.) No. 938 of 2021 premeditation or pre planning and it was a sudden quarrel and the appellant exercised his right of private defence but exceeded the limit The High Court while dismissing the Criminal Appeal has observed that when the Civil Suit is pending between the parties and if at all the de facto complainant passed through their patta land the appellant accused should have availed a remedy before the Civil Court but should not have attacked We have heard Mr. S. Nagamuthu learned senior counsel appearing for the appellant and Dr. Joseph Aristotle S. learned counsel appearing for the State of Tamil Nadu This Court by order dated 29.01.2021 issued notice limited to the quantum of punishment. The Trial Court itself has found that there was a quarrel in front of house of the accused by the de facto complainant’s family members on the date of incident. It is also clear from the evidence on record that on the date of occurrence i.e 13.06.2010 the dispute was only on account of cart SLP(Crl.) No. 938 of 2021 track from the land of accused to reach the land of the complainant. When there was an interference with the land of the accused a Civil Suit was filed in which there were injunction orders issued by the competent Civil Court. In deposition PW 1 also admitted that he along with his father younger brother and mother were put in civil prison for 30 days for violating the orders of the Court. Learned senior counsel for the appellant has contended that the unfortunate incident happened only on account of civil dispute and when the complainant’s family members themselves have assaulted the female family members of the appellant it provoked the accused to retaliate on the family members of de facto complainant. The Trial Court itself has recorded a finding that the complainant’s family members are aggressors and there was no premeditation or pre planning and it was a sudden quarrel where the appellant exercised his right of private defence. It is also submitted that with regard to injuries caused on family members of the appellant in spite of complaint no steps were taken to prosecute the family of the complainant. On the other hand SLP(Crl.) No. 938 of 2021 learned counsel for the respondent State has submitted that as the appellant was convicted under Section 304(ii) of IPC as such no case is made out to modify the sentence also 10. In the judgment of this Court in the case of Lakshmi Chand and Anr. v. State of Uttar Pradesh1 relied on by the learned senior counsel for the appellant this Court has reduced the sentence from eight years to two years mainly on the ground that the occurrence had taken place on spur of the moment without any premeditation and the same was on account of a dispute between the neighbours with regard to straying cattle. Further in the judgment of this Court in the case of Madhavan and Ors. v State of Tamil Nadu2 this Court has reduced the sentence of the accused who was convicted for offence under Section 304(ii) of IPC to five years without disturbing fine amount mainly on the ground that incident in question happened all of a sudden without any premeditation and it was a free fight between the members of two families and both sides suffered injuries in the incident. Learned counsel 1 9 SCC 704 2 15 SCC 582 SLP(Crl.) No. 938 of 2021 for the respondent State opposing for modification of sentence placed reliance on the judgment of this Court in the case of Ram Pyare Mishra v. Prem Shanker and Ors.3. In the aforesaid judgment while reversing the judgment of the High Court this Court has convicted the accused for offence under Section 304(i) of IPC and imposed the sentence of eight 11. With regard to quantum of sentence it all depends on background facts of the case antecedents of the accused whether the assault was premeditated and pre planned or not etc. In this case on hand it is clear from the evidence on record that there was a dispute with regard to pathway which the complainant’s family members were claiming from the land of the accused. In view of such interference it appears that the accused filed a Suit and obtained injunction orders from Civil Court and in spite of the same for violation of Court orders the family members of the complainant were put behind bars for 30 days. The same is evident from the deposition of PW 1. The incident occurred in 3 14 SCC 614 SLP(Crl.) No. 938 of 2021 front of the house of the accused and when the female family members of the accused were assaulted the appellant in retaliation seems to have assaulted the family members of the complainant. Trial Court itself has recorded that the de facto complainant’s family members are the aggressors and they have tried to disturb the peaceful possession of the accused from their land. The said findings recorded by the Trial Court became final. The same was not questioned either by the State or by the complainant. It is also clearly held by the Trial Court that it was not a premeditated or preplanned incident. It happened in a sudden quarrel on the day of occurrence i.e. on 14.06.2010. 12. Having regard to such findings recorded by the Trial Court itself which have become final and further in view of the judgments relied on by the learned senior counsel for the appellant which support the case of the appellant for modifying the sentence we deem it appropriate that this is a fit case to modify the sentence to meet the ends of SLP(Crl.) No. 938 of 2021 13. For the aforesaid reasons while confirming the conviction for offence under Section 304(ii) of the IPC we modify the sentence to two years’ rigorous imprisonment and to pay a fine of Rs.5 000 in default to undergo three months’ rigorous 14. The Appeal is allowed in part to the extent as December 17 2021 J [R. Subhash Reddy [Hrishikesh Roy |
Access to clean drinking water is a Fundamental Right under the Constitution: Delhi High Court | The State Government has a duty under Article 21 of the Constitution to provide clean drinking water to all its citizens. Hence, the right to access to drinking water is fundamental right. The Delhi High Court presided over by J. Jayant Nath laid down this ratio in the case of Delhi Sainik Cooperative Housing Building Society Ltd. & Ors. Vs. Union of India & Ors., [W.P.(C) 8364/2018]. The brief facts of this case are that a Petition has been filed by a group of 53 people that include retired armed force personnel, veterans & war widows. In the year 1961 under a scheme formulated by the Defence Minister where residential facilities under the scheme were provided to all the Petitioners. Due to non-availability of land government had purchased lands in Revenue Estate of Khanpur and Khirkee but such lands were never notified as urban areas in 1966. The Petitioners contended that they have been paying all the taxes to the Municipal Corporation of Delhi for the past 30 years, but they have failed to provide the basic amenities like supply of clean drinking water, sewage connection, drainage system and security etc. There have been multiple petitions filed in this court but the directions in them have not been followed or the queries have been left unanswered. Hence, another Petition in the year 2018 has been filed in the Delhi High Court. The Respondents have submitted that, the Defence Services Enclave where the Petitioners reside is identified as one of the unauthorized colonies amongst the 1639 colonies falling in the list maintained by the NCT of Delhi. It was also argued that the colony falls in the category of “unauthorized affluent colony” and that most of the occupants are not necessarily ex-servicemen but are normal buyers. The High Court observed that the decision taken in earlier petitions to regularize the colonies was not taken forward and nothing has been done with respect to it. The Bench also observed that, “I also cannot help noticing that the petitioners are all retired defence personnel who have devoted the most productive period of their lives defending the nation’s borders and performing other dangerous and difficult tasks normally performed by defence service officers.” | J IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on: 11.01.2021 W.P.(C) 8364 2018 DELHI SAINIK COOPERATIVE HOUSING BUILDING SOCIETY LTD.(REGD.) AND ORS. ..... Petitioners Through Mr.Dushyant Dave Sr. Adv. with Mr.Bahar U. Barqi Advocate UNION OF INDIA AND ORS. Respondents Through Ms. Maninder Acharya ASG with Mr.Anurag Ahluwalia CGSC Mr.Abhigyan Siddhant and Mr.Sharuya Jain Advocates for Union of India R 1 Mr.Naushad Ahmed Khan ASC(CIVIL) GNCTD Ms.Puja Kalra Standing Counsel and Mr.Virendra Singh Advocate for SDMC Mr.AjayVerma Senior Standing Counsel with Ms.Ruchi Chopra Advocate for DDA. Ms.Puja Kalra Adv. for SDMC. Mr.Sumeet Pushkarma Standing Counsel with Mr.Devanshu Lohiya Advocate for Delhi Jal Board and Mr. L. L. MeenaHON BLE MR. JUSTICE JAYANT NATH JAYANT NATH J. This writ petition is filed seeking the following reliefs: “a) That this Hon’ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus directing W.P.(C) 8364 2018 respondents their servants and agents to grant all civic and other facilities to the petitioners which are available to other citizens occupying their land lawfully in the city of Delhi particularly in respect of supply of water connection of sewage drainage provision for roads and for security etc. as early as possible and to continue to maintain the same. b) That this Hon’ble Court may be pleased to issue a writ of prohibition or a writ in the nature of prohibition restraining the respondents their servants and agents from levying any additional or extra charges from petitioners acknowledging their authorised status like other illegal colonies in any manner. c) That this Hon’ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus directing respondents their servants and agents to include Defence Services Enclave area for the purpose of planned development in harmony with MPD 2020. d) That this Hon’ble Court may be pleased to issue a writ of prohibition or a writ in the nature of prohibition restraining the respondents their servants and agents in any manner treating the petitioners as illegal occupants in respect of their lands situated at Defence Services Enclave at Khanpur and Khirki Village and further prohibit them from acting in any arbitrary manner to demand any additional levies charges etc. except those which are legitimate levied and paid by lawful occupants in Delhi.” The case of the petitioners is that 53 of the petitioners before this court are veterans decorated officers war widows and Armed Forces Personnel belonging to all the three wings who were allotted plots in question for residential tenements by respondent No. 1 pursuant to a scheme formulated by respondent No. 1 in 1961. The area occupied by the petitioners is about 65 acres in the area called “Defence Services Enclave”. W.P.(C) 8364 2018 It is stated that they are legally authorised residents and must be recognized acknowledged by every respondent herein. The allotment of plots was by the Society formed by the Ministry of Defence which culminated into proper sale deeds registered with the office of Sub Registrar. The narration of facts starts from 1961. It is stated that the then Defence Minister Sh. V.K. Krishna Menon formulated a scheme in 1961 for creation of a chain of housing societies for resettlement of war widows disabled decorated soldiers and other servicemen in most major cities. The Army Forces Personnel were informed about this by an Army Order dated 06.05.1961. It is stated that in a meeting in Delhi between the Raksha Mantri the Home Minister and the Chief Commissioner of Delhi in 1965 the Ministry was advised that due to non availability of land in Delhi as a special case Ministry of Defence should purchase land in the green belt in South Delhi. Based on this advice the Ministry of Defence through its Society purchased lands in the Revenue Estate of Khanpur and Khirkee after both these were notified as urban areas in 1963 1966. It is claimed that the petitioners are paying tax to MCD at urban rates and that subsequently this was acknowledged as residential in the Master Plan of Delhi 2021. The petitioners’ lands fall in Zone ‘J’ and all the lands are residential. It is further stated that appreciating that the lands allotted did not have a direct access from Mehrauli Badarpur Road the Ministry of Defence in 1970 took a rear step of getting a special sanction of the President of India for transfer of a strip of Defence land measuring 1.61 acres from Army Camping Ground Khanpur to the Society to provide access to the members’ plots. It is stressed that the Defence land is never sold or sold only under extremely exceptional W.P.(C) 8364 2018 circumstances. It is further stated that when the petitioners tried to settle on the plots them and submitted building plans to MCD DDA the Commissioner of Lands and Building for sanction. In large number of cases these organizations refused to acknowledge receipt of the building plans. Those that were accepted were never replied to in spite of numerous reminders. and illegal. The grievance of the petitioners is that despite repeated attempts since last 30 years MCD has failed to provide a single facility to the petitioners till date under the garb of the petitioners allegedly being unauthorised. It is pleaded that such a stand of the authorities is completely untenable unjust It is stressed that ex servicemen resettled under this very scheme in many other stations in the country are living peacefully since the last 45 years. It is only in Delhi that war widows and disabled decorated ex servicemen resettled under the Government of India mooted scheme have been harassed and denied essential basic amenities of water electricity sewer road etc. for the last 55 years. It is pointed out that the petitioners have participated in all the wars of 1962 1965 and 1971 and have been decorated for the acts of valour on the battle field and awarded distinguished service medals for services recorded to the nation. It is stated that having exhausted all avenues of administrative redressal for 30 years the petitioners were compelled to file a writ petition being W.P.(C) No. 5804 2002 before this court on 11.09.2002. The Ministry of Defence in its affidavit dated 05.05.2003 in the said case had in para 8.2 stated as follows: W.P.(C) 8364 2018 “8.2 That in the present facts and circumstances it is very clear that the lands were given to the Society for construction of residential houses for residential purpose so that the Armed Forces are able to rehabilitate themselves in a proper and official manner in terms of the Army Order of May 1961.” This writ petition was disposed of on 11.02.2010 whereby the submission of Dr. M. Ramachandran Secretary Ministry of Urban Development who was present in the court was noted that a policy decision would be taken one way or the other by 31.12.2010: “i. Whether to regularise unauthorized colonies that is those inhabited by the affluent sections of society existing on public land as well as private land including Sainik Farms ii. the terms and conditions on which regularization if any will be effected and iii. in the event of a decision being taken not to regularise Sainik Farms the consequences thereof and further action on the decision.” Dr. Ramachandran stated that the affidavit dated 05.05.2003 filed by the Ministry of Defence in W.P.(C) 5804 2002 would also be taken into consideration while framing the policy pertaining to Sainik Farms. It is pleaded that despite the assurance of the Secretary Ministry of Urban development no steps have been taken and there is no end to the harassment being faced by the petitioners. It is further pointed out that Delhi Jal Board in their affidavit dated 05.03.2010 in W.P.(C) 9540 51 2005 had assured this court that the acute shortage of water of the petitioners’ colony would be solved and the water would be supplied from Malviya Nagar UGR which is under construction. W.P.(C) 8364 2018 facilities. However needful has not been done. It is admitted that with relentless effort the petitioners have been able to get BSES electricity connections telephone lines and other infrastructural It is stated that the petitioners’ modest dwelling units which were built with lime and mortar only due to cement control have become old and are in urgent need of repairs. Roofs are leaking floors are cracking and there is seepage in the walls. All the petitioners are old. The authorities including the local police do not allow the petitioners to repair build their boundary walls. The petitioners’ colony roads have become a thoroughfare for tens of thousands of people living in adjoining areas. This has also affected the security and the lands are open to encroachment. 13. The petitioners being aggrieved had no option but to file another writ petition being W.P. 8276 2014 before this court where the following reliefs were sought: “a. Affirmation of authorised status as a Govt. approved resettlement scheme initiated in 1961 and issue suitable instructions to all concerned authorities for provision of all basic amenities like water electricity roads sewerage security etc. which the Govt. is bound to provide at its expense within a stipulated time bound period. b. Provide relief to the original members of our society and their legal heirs by giving us the authorised status of regularized colony without additional charges as we have been resettled under a Govt. approved scheme and most of area development has already been carried out by us at our cost since last fifty years. Any charges cost levied on us would be grossly unjust and beyond our means. If levied it would defeat the very purpose of the GOI Resettlement Scheme of relieving Defence Forces Personnel from mental agony and offering them W.P.(C) 8364 2018 housing plots at very reasonable rates as stated by MOD in para 10 of their affidavit. c. Immediate implementation of the orders of the Division Bench of Delhi High court dt. 12 04 2010 in W.P. 9540 51 2005 for supply of water from Malviya Nagar UGR. d. Direct the concerned authorities to notify building norms and frame a policy for the planned development of Defence Services Enclave in harmony with the MPD 2021. e. Deemed sanctioned status of petitioners and its members existing dwellings in Defence Service Enclave since they have been in existence for decades. f. Early disposal as justice has eluded us since last 50 years Many original allottees have passed away. In additional to widows and those physically disabled while fighting for the nation almost all of us at present are in our Seventies and Eighties while some are in their nineties. We pray for relief and justice from the Honourable Court in our lifetime ” 14. On 04.04.2018 learned counsel appearing for the petitioners withdrew the petition with liberty to file detailed representations with respondent No. 4 and respondent No. 6. Pursuant to the said liberty the petitioners submitted detailed representations to respondent No. 4 and respondent No. 6 on 20.04.2008. It is the grievance of the petitioners that despite the said representations filed before the said respondents namely Municipal Corporation of South Delhi and Delhi Jal Board there has been no response. It is pleaded that the action of the said respondents is clearly contempt of court. It is in these circumstances having lost of all hopes the petitioners state that they have filed the present writ petition before court as they are being denied the basic amenities and the right to enjoy life with W.P.(C) 8364 2018 dignity. Hence the present writ petition. 15. Most of the respondents have filed their counter affidavits. Delhi Jal Board respondent No. 6 in its counter affidavit has stated that the Defence Services Enclave is an unauthorised colony mentioned in the Registration No. 453 in the list of total 1639 unauthorised colonies which have been identified by the Urban Development Department Govt. of NCT of Delhi. The Colony in question falls in the category of “Unauthorised Affluent Colony”. It is also stated that many of the occupants are not even ex servicemen but are subsequent buyers. It is also stated that pursuant to the order of this court dated 04.04.2018 passed in W.P. 8276 2014 the answering respondent had written a letter to the Department of Urban Development Govt. of NCT of Delhi to know the present status of the area. In response a letter was received on 25.05.2018 from the Department of Urban Development Govt. of NCT of Delhi that under Clause 3.6 of the regulations for Regularization of Unauthorised Colonies dated 24.03.2008 unauthorized colonies inhabited by affluent class cannot be considered for regularization and development works can be carried out only in the colonies which are considered for regularization. It is stated development work like laying water pipe lines in the area in question can only be executed by the answering respondent subject to clearance from the Urban Development Department Govt. of NCT of Delhi. It is stated that permission for installation of four number tube wells have been given to the RWA and at present water is being supplied for drinking purpose through the existing four tube wells as an interim arrangement which is being maintained and regulated by the RWA. 16. A status report has also been filed by South Delhi Municipal W.P.(C) 8364 2018 Corporation. The status report confirms that the Defence Services Enclave is an unauthorised colony and the respondent SDMC is not carrying out any development work pertaining to it. 17. Respondent No. 2 Ministry of Housing and Urban Affairs Govt. of India has also filed its counter affidavit. It is stated that the petitioners had earlier also filed a writ petition being W.P.(C) No. 8276 2014. It is stated that the relief sought in the present writ petition is more or less is similar to the relief sought in W.P.(C) No. 8276 2014. In fact this court by its order dated 04.04.2018 had allowed the petitioners to withdraw the said writ petition being W.P.(C) No. 8276 2014. It is further stated that the colony in question is an unauthorised colony and as per the regulations for regularization of unauthorised colonies the orders for regularization have to be issued by Govt. of NCT of Delhi who have to also coordinate and supervise the entire process of regularization. The reliefs sought in the present writ petition it is stated fall within the jurisdiction of the local bodies namely DDA South Delhi Municipal Corporation and Delhi Jal Board and that the answering respondent is only a performa party. 18. On behalf of Union of India namely Directorate General Resettlement Department of Ex Servicemen Welfare Ministry of Defence Govt. of India another counter affidavit has been filed. Respondent No. 1 claims to be a performa respondent. It is stated that in 1961 a proposal was mooted to form co operative housing societies in all the states. As a result of this initiative Sainik Co operative House Building Society was formed in Delhi. The lands were sold by the Society to allottees under individual registration of sale deeds. It is admitted that the lands purchased by the Society did not have a direct access from Mehrauli Badarpur Road. So as an W.P.(C) 8364 2018 exception a strip of Defence land measuring 1.613 acres from Army Camping Ground Khanpur was sold to the Society in September 1970 to provide access to the plots and to help the Society in resettlement of Armed Forces Personnel. Hence it is concluded that the lands were given to the Society for construction of houses for residential purposes so that the Armed Forces personnel are able to rehabilitate themselves in a proper and official manner in terms of the Army Order of May 1961. 19. DDA has also filed a counter affidavit which is a very short and cryptic affidavit which barely reiterates the submissions of the other respondents. 20. The Govt. of NCT of Delhi has also filed its counter affidavit. In the counter affidavit it is stated that the Defence Services Enclave squarely clearly falls within the ambit of definition of an “unauthorised colony”. It is stated that the contention of the petitioners essentially is that the establishment of the petitioner Society was with the help and support of the Ministry of Defence and for the purpose of resettlement of war widows disabled decorated soldiers and ex servicemen. However this itself does not bestow legitimacy upon the actions of the petitioner Society in setting up the colony. It is stated that no colony can be regarded as an “authorised colony” unless it is set up based on an approved lay out plan by the concerned It is further stated that the Society purchased the lands for its members pursuant to a meeting between the Defence Ministry Home Minister and the Chief Commissioner of Delhi. However the Minutes of the Meeting dated 10.05.1965 sets out that the petitioner Society cannot be given land for residential purposes the purchase of lands by the petitioner Society in Delhi W.P.(C) 8364 2018 will be confined to areas falling in and around the green belt of Delhi and will be for the purpose of farm houses within the agricultural area. It is stated that the allotment letter produced by the petitioners itself shows that the allotment was for the purpose of farm houses and not for residential purpose. However the subject colony does not comprise of any farm house but of the residential houses. It is stressed that no person has a vested right to claim regularization. Where any habitation colony is unauthorised or contrary to the sanctioned plan zonal plan master plan such habitation colonies cannot claim regularization as a matter of right. It is further stated that it is an admitted case that the petitioner society represents owners of only 54 plots out of 387 plots of the said colony. It is stated that it is an admitted case that the remaining members have sold their plots and do not own plots in the said colony any more. It is stated that an application was received for regularization of the colony in 2007 08. The application pertained to the entire 387 plots in the said colony. I have heard learned senior counsel appearing for the petitioners learned ASG for respondent Union of India and learned counsel for the other respondents. The petitioners have also filed their written submissions. 22. Learned senior counsel for the petitioners has pointed out that the aim of the scheme was to ease the agony of Armed Forces Personnel by providing them housing plots at reasonable rates to enable them to lead a peaceful retired life. Further it was on the advice of the Home Minister and the Chief Commissioner of Delhi the Ministry of Defence bought agricultural land from farmers in South Delhi. It is hence evident that the plots were allotted to the petitioners for residential purposes only. In fact W.P.(C) 8364 2018 Armed Forces Personnel resettled under this very scheme in many other cities in India are leading a peaceful retired life in their residential houses since the last fifty years. It is further pointed out that the building plans submitted to the concerned agencies for sanction were neither refused nor acknowledged in spite of numerous reminders. Since the applications were not turned down a deemed sanctioned status of the dwellings in existence is there in view of the lapse of more than 40 years. It is stressed that the petitioners have given their best years in the service of the nation. They have participated in the wars of 1962 1965 and 1971 and have been awarded medals for acts of valour. Having been resettled there over 50 years ago the petitioners who are at the fag end of their lives are entitled to basic 23. Reliance is also sought to be placed on the counter affidavit filed by the Director General of Resettlement Ministry of Defence in W.P.(C) No.5804 2002 where the affidavit notes that the lands were given to the Society for construction of houses for residential purposes so that Armed Forces Personnel are able to rehabilitate themselves in a proper and official manner. A reference was also made to the order of the Division Bench dated 25.03.2015 passed in W.P.(C) No.8276 2014. 24. Learned Additional Solicitor General has stressed that the colony is unauthorised and cannot be regularised as is sought to be urged. It was also stressed that the present writ petition does not lie as a similar writ petition had been filed earlier being W.P.(C) 8276 2014 which was withdrawn on 04.04.2018. Another writ petition seeking the same reliefs would not lie. 25. Learned counsel appearing for the Govt. of NCT of Delhi has stressed that the colony as per the policy of the Govt. of NCT of Delhi cannot be W.P.(C) 8364 2018 26. The first thing that strikes the court is that the writ petition seems to have completely ignored that the area in question as per the stipulated regulations is for agriculture purposes. This is also apparent from Annexure P 3 which is a copy of the sale deed executed sometimes in 1993 by Delhi Sainik Cooperative Housing Building Society Ltd. in favour of Col. A.K.Pandita. The third last para of the said document clearly states that the land is an agricultural land and is being used only for agricultural purposes. The counter affidavit of Delhi Jal Board clearly states that the Defence Services Enclave is an unauthorised colony mentioned in Registration No.453 in the list of total 1639 unauthorised colonies which have been identified by Urban Development Department Govt. of NCT of Delhi. South Delhi Municipal Corporation also in its counter affidavit has stated that the Defence Services Enclave is an unauthorised colony and SDMC is not carrying out any development work pertaining to it. Similarly Govt. of NCT of Delhi in its counter affidavit also states that Defence Service Enclave is an unauthorised colony. It has been clarified that the pleas of the petitioners to the contrary are misplaced as no colony can be regarded as authorised colony unless it is set up based on an approved layout plan by the concerned agency. The said counter affidavit also relies upon the letter of allotment produced by the petitioners from which it is clear that the allotment was made for the purpose of farmhouses and not for residential purposes. Merely because the petitioners were allotted the plots cannot be a ground to insist that the area is for residential purposes. The contention of W.P.(C) 8364 2018 the petitioners to the contrary claiming that the area is a residential area is a misplaced contention. DDA Act which read as follow: In this context reference may be had to Sections 7 8(1) and 14 of the “7.The Authority shall as soon as may be carry out a civic survey of and prepare a master plan for Delhi. 2) The master plan shall— a) define the various zones into which Delhi may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed to be usedand the stages by which any such development shall be carried out and b) serve as a basic pattern of frame work within which the zonal development plans of the various zones may be “8. Simultaneously with the preparation of the master plan or as soon as may be thereafter the Authority shall proceed with the preparation of a zonal development plan for each of the zones into which Delhi may be divided. “14. After the coming into operation of any of the plans in a zone no person shall use or permit to be used any land or building in that zone otherwise than in conformity with such plan: Provided that it shall be lawful to continue to use upon such terms and conditions as may be prescribed by regulations made in this behalf any land or building for the purpose and to the extent for end to which it is being used upon the date on which such plan comes into force.” W.P.(C) 8364 2018 28. Hence as per Section 7 of the said Act DDA has to prepare a Master Plan for Delhi which will indicate the manner in which the land in each zone is proposed to be used. Further Zonal Development Plans are to be prepared which will indicate the aspects stated in Section 8 of the said Act. As per Section 14 of the said Act no person shall use any land in a particular zone otherwise than in conformity with the plan. 29. Nowhere at any stage has it seriously been contended by the petitioners that the area of the plots in question falls in the area which as per the Master Plan Zonal Development Plan have a residential user. Some bald pleas have been made that the area is residential under Master Plan 2021 but no efforts was made to back this plea from the concerned documents. It is manifest that the area as per the plans is for agricultural use. Further all the respondents have described the colony in question as an unauthorised 30. Given the above facts it would follow that the plea raised by the petitioners about being a residential colony does not have any basis 31. However the matter cannot be put to rest given the peculiar facts and circumstances of this case which warrant a close look. There are certain admitted facts in this case which warrant a close look. The scheme under which the land was allotted to the petitioners had envisaged giving lands for residential purposes to members of the Armed Forces. Nobody has argued to the contrary that in other towns other than in Delhi under the same scheme defence personnel were given property land for the purpose of construction of the residential houses. 32. The Ministry of Defence in W.P.(C) 5804 2002 had filed a counter W.P.(C) 8364 2018 affidavit where the following averments were made: “11. That in the present facts and circumstances it is very clear that the lands were given to the Society for construction of residential houses for residential purpose so that the Armed Forces are able to rehabilitate themselves in a proper and official manner in terms of the Army Order of May 1961.” It is clearly the acknowledged case of the Ministry of Defence that the lands were given to the Society for construction of houses for residential following order: I may also note the two orders of the Division Benches which are relevant herein. On 11.02.2010 in W.P.(C) 5804 2002 this court passed the “Mr. Ramchandran Secretary in the Ministry of Urban Development is present in Court pursuant to our order dated 28th January 2010. He says that there a typographical error in paragraph 3(vi) of his affidavit dated 8th February 2010. He seeks leave to correct the typographical error. Leave granted. Mr. Ramchandran assures this Court that a policy decision will be taken one way or the other by 31st December i. whether to regularise unauthorized colonies that is those inhabited by the affluent sections of society existing on public land as well as private land including Sainik Farms ii. the terms and conditions on which regularization if any will be effected and iii. in the event of a decision being taken not to regularise Sainik Farms the consequences thereof and further action on the decision. Mr. Ramchandran says that affidavit dated 5th May W.P.(C) 8364 2018 2003 filed by the Ministry of Defence in WP(C) No.5804 2002 will also be taken into consideration while framing the policy pertaining to Sainik Farms. further survives in the matter. It is accordingly disposed of. In view of the statement of Mr. Ramchandran nothing It is clarified that the earlier orders passed by this Court have not been vacated with the disposal of the writ petition.” No party has pleaded that a policy decision was taken pursuant to the above direction dated 11.02.2010. passed the following order: 35. Similarly in W.P.(C) 8276 2014 on 25.03.2015 the Division Bench “The petitioners’ society and its members are stated to be either Armed Forces Officers or War Widows or descendants of Armed Forces Officers. A list of the allottees dependents owning the plots in the area known as Defence Services Enclave has been supplied to us. It is a list of 54 persons. The said list is taken on record. A copy of this list is given to the learned counsel for the Central Government. The petitioners seek regularisation of their colony. We are of the view that the petitioners in this case are to be treated differently from the persons who are residing in Sainik Farms which is the subject matter of WPC 1145 2014. The petitioners in the present petition belong to an entirely different class and category of persons and prima facie cannot be termed as affluent persons. It is also pointed out by the learned counsel for the petitioners that the land which has been allotted to the petitioners was allotted by the Central Government. It is therefore directed that the Central Government should take a clear decision on regularising Defence Services Enclave before the next date of hearing.” It is manifest from a reading of the above two orders that the Division Bench of this court took the view that the petitioners are to be treated differently from the persons residing in Sainik Farms which is the subject W.P.(C) 8364 2018 matter of another writ petition. The court noted that the present petitioners belong to an entirely different class and category of persons and prima facie cannot be termed as affluent persons. Thereafter a clear direction was passed to the Central Government to take a clear decision on regularising Defence Services Enclave before the next date of hearing. Again no progress appears to have been made despite the said directions of this court. 37. There is another aspect which is relevant namely the fact that the plots and lands were allotted to the petitioners sometimes in 1970s. The sale deed which is Annexure P 3 to the writ petition is of 1983. Hence roughly 40 to 50 years have passed since the petitioners have been in occupation of the lands in question and have been using it for residential purposes despite the colony being “unauthorised colony”. I also cannot help noticing that the petitioners are all retired defence personnel who have devoted the most productive period of their lives defending the nation’s borders and performing other dangerous and difficult tasks normally performed by defence service officers. 39. Keeping in view the above facts and circumstances in my opinion the respondents are duty bound to take an appropriate decision based on the cogent facts regarding the status of the said area known as “Defence Services Enclave”. I reiterate the directions made by the Division Bench on 25.03.2015 in W.P.8276 2014 which read as follows: “It is therefore directed that the Central Government should take a clear decision on regularising Defence Services In view of the above I request Secretary the Ministry of Defence respondent No. 1 to convene a meeting of functionaries who can W.P.(C) 8364 2018 take a decision in terms of the above directions of the court. If necessary the concerned Secretary Ministry of Urban Development respondent No. 2 and the Chief Secretary Govt. of NCT of Delhi may form part of the Committee. Such other officers may be nominated to the Committee as the Secretary respondent No. 1 may deem necessary. The said Committee so constituted by the Secretary respondent No. 1 is requested to take an appropriate decision as spelt out herein as per law expeditiously preferably within four months from today. The decision so taken shall be duly communicated to the petitioners. 41. There is another aspect which I would also like to touch upon. One of the pleas raised by the petitioners is that they have been deprived of the basic civic amenities namely drinking water sewerage etc. They have managed to get electricity connections from the concerned distribution company BSES Rajdhani Power Ltd. 42. As far as drinking water is concerned it has been stated in the counter affidavit of Delhi Jal Board that the development work like laying of water pipeline in the area in question can only be executed by the said respondent subject to clearance from the Urban Development Department Govt. of NCT of Delhi. It has also been stated that as the colony is unauthorised in this case permission for installation of four number tube wells has been given to the RWA and at present water is being supplied for drinking purposes through the existing tube wells as an interim arrangement. The said arrangement is said to be maintained and regulated by the RWA. It is settled position of law that an individual has a right to access to drinking water in quantum and quality equal to his basic needs. In this context reference may be had to judgment of the Supreme Court in the case W.P.(C) 8364 2018 of A.P. Pollution Control Board II vs. Prof.M. V. Nayudu& Ors. 2001) 2 SCC 62 where the Supreme Court held as follows “3. Drinking water is of primary importance in any country. In fact India is a party to the resolution of the UNO passed during the United Nations Water Conference in 1977 as under: “All people whatever their stage of development and their social and economic conditions have the right to have access to drinking water in quantum and of a quality equal to their basic needs.” Thus the right to access to drinking water is fundamental to life and there is a duty on the State under Article 21 to provide clean drinking water to its citizens. 4. Adverting to the above right declared in the aforesaid Resolution India10 SCC 664 :7 Scale 34]Kirpal J. observed: in Narmada Bachao Andolan v. Union “248. Water is the basic need for the survival of human beings and is part of the right to life and human rights as enshrined in Article 21 of the Constitution of India….” 44. Clearly it is settled legal position that right to access to drinking water is fundamental to life and there is a duty of the State under Article 21 of the Constitution to provide clean drinking water to its citizens. In the present case the petitioners have been staying in the said area for the last 50 years. Admittedly the respondent Delhi Jal Board is supplying drinking water to various other unauthorised colonies. This court in W.P. 8276 2014 on 25.03.2015 has held that the petitioners in the present case belong to an entirely different class and are to be treated differently from the persons who are residing in Sainik Farms. Further the petitioners in my W.P.(C) 8364 2018 opinion cannot be deprived of a right to access to drinking water merely on the ground that it is an unauthorised colony. The petitioners have been residing in the said area for the last 50 years and cannot continuously be deprived of this right to access to drinking and portable water. In the light of the above I direct the respondent Delhi Jal Board to make an appropriate scheme as per their normal procedure for supply of portable drinking water to the 54 petitioners in accordance with law. The scheme shall be framed and implemented expeditiously preferably within 9 46. Nothing further survives in this petition. The same is accordingly disposed of with the above directions. Pending applications if any also JAYANT NATH J months from today. stand disposed of. JANUARY 11 2021 rb W.P.(C) 8364 2018 |
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