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Company may continue arbitration despite approval of CIRP : Supreme Court
The issue whether a company involved in arbitration proceedings may continue the arbitration proceedings even after CIRP has been been approved by COC of the company was considered by the division bench of Supreme Court consisting of Justice AM Khanwilkar and Dinesh Maheswari in the matters between  Fourth Dimension Solutions Ltd. v. Ricoh India Ltd. Civil Appeal No. –5908 of 2021 decided on 21.1.2022. The facts of this are defendant Ricoh owed the appellant Rs.511 crores. It is stated that NCLT has approved a resolution plan that dismisses the appellant’s (Fourth Dimension Solutions Ltd.) claims, even though the appellant is the highest operational creditor of the respondent company Ricoh India. The Supreme Court also upheld the resolution plan, despite the appellant’s objection that the same decision was pending before NCLAT. However, while the higher court approved the plan, it directed NCLAT to decide on the merits of appellant’s objection to the substantive resolution plan. Despite this, NCLAT said it would be impossible for the court to do so, as the Supreme Court approved the resolution plan. The NCLAT took a contrary position and rejected the appellant’s objection to the resolution plan. Thus forcing the appellant approached the Supreme Court. The counsel on behalf of the Appellant contended  that they would be left with no “recourse to satisfy his legitimate claims” even though it is the highest operational creditor and has Rs. 511 crores owed to it. It has also invoked arbitration proceedings against Ricoh but it was adjourned sine die after filing insolvency petition. The counsel on behalf of the Respondent contended  that the operational creditors of the company seek permission under the insolvency proceedings to continue the arbitration proceedings even though the COC of the company have already approved the CIRP. The Supreme Court held continuance of arbitration proceeding is permitted and dismissed the appeal, giving the parties the freedom to pursue all claims brought to them in the proceedings pending at the relevant time. It was stated that arbitration proceeding are continuing between the parties. If so, all disputes available to both parties will be settled on its own merits in accordance with the law in the proceedings in question.
IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5908 OF 2021 FOURTH DIMENSION SOLUTIONS LTD. Appellant(s VERSUS RICOH INDIA LTD. & ORS. Respondent(s O R D E R Heard learned counsel for the parties. It is indisputable that the Resolution Plan approved by the Committee of Creditors has been finally upheld by this Court vide judgment dated 10.03.2021 in Civil Appeal Nos. 2943 29420 titled as "Kalpraj Dharamshi & Anr. vs. Kotak Investment Advisors Ltd. Anr.” and connected cases reported in 2021 SCC During the hearing of the stated appeal it was brought to the notice of the Court that the appellant had preferred some appeal before the National Company Law Appellate Tribunal and it was still pending at the relevant time. This Court in paragraph 160 of the judgment therefore directed that the said appeal shall proceed on merits. Pursuant to that liberty the concerned appeal has now been decided by the NCLAT vide impugned judgment. In our opinion it was sufficient for the NCLAT to dispose of the appeal before it by restating the factual position noted while considering the Plan submitted for approval before the Committee of Creditors. In paragraph 48 of the impugned judgment the NCLAT has noted thus "... The name of the Appellant was mentioned in the list of Operational Creditors. On 29.11.2018 the RP published updated list of Creditors of the Corporate Debtor wherein the admitted claims of the Appellant was indicated as Nil with an appended note: "2. The claims pertaining to FDSL have been disputed and are proceedings before the Arbitrators Appellate Authorities. The liability is subjected to outcome of these proceedings". In light of this factual position in our opinion the appeal needs to be disposed of by restating the said fact with liberty to the parties to pursue all contentions available to them in the proceedings pending at the relevant time if any. It is stated that some arbitration proceedings were pending between the parties. If so all contentions available to both sides be decided in the said proceedings on its own merits in accordance with The civil appeal is disposed of accordingly. Pending applications 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(s). 5908 2021 FOURTH DIMENSION SOLUTIONS LTD. Appellant(s VERSUS RICOH INDIA LTD. & ORS. Respondent(s IA No.122022 2021 EXEMPTION FROM FILING C C OF THE IMPUGNED JUDGMENT and IA No.122020 2021 EX PARTE STAY and IA No.122021 2021 Date : 21 01 2022 This appeal was called on for hearing today CORAM : HON BLE MR. JUSTICE A.M. KHANWILKAR HON BLE MR. JUSTICE DINESH MAHESHWARI For Appellant(s) Mr. Kapil Sibal Sr. Adv Mr. P.P. Chaudhary Sr. Adv Mr. David Rao Adv Mr. M.S. Vishnu Sankar Adv Mr. Koshy John Adv Mr. Sanjeet Purohit Adv Mr. Sriram Parakkat Adv Ms. Athira G. Nair Adv Mr. Atul Sharma Adv Mr. Michael Rao Adv M S Lawfic AOR Ms. Ruby Singh Ahuja Adv Ms. Hancy Maini Adv Mr. Ashutosh P. Shukla Adv M S. Karanjawala & Co. AOR For Respondent(s) Mr. Mukul Rohatgi Sr. Adv M S. Khaitan & Co. AOR UPON hearing the counsel the Court made the following O R D E R The civil appeal is disposed of in terms of the signed order. Pending applications if any stand disposed of DEEPAK SINGH) COURT MASTER (NSH Signed order is placed on the file
Arbitration, Conciliation and Mediation are the Alternative Dispute Resolution for solving civil nature disputes: High court of Allahabad
 The objective of Arbitration is to settle the dispute which arose between the parties by one or more arbitrators appointed by them by going through the documents and evidence and the same issue was held in the judgement passed by a single bench judge Hon’ble Rajeev Singh, J. In the matter Ishwar Singhal Versus State Of U.P. Thru. Prin. Secy. Home. Lko & Others Counsel [- U/S 482/378/407 No. – 1979 of 2020] dealt with an issue mentioned above. Learned A.G.A. raised a preliminary objection that in the present case, First Information Report and its consequential proceedings are challenged as the investigation is still pending, therefore, application (u/s 482 Cr.P.C.) is not maintainable in terms of law laid down by Full Bench of this Court in the case of Ram Lal Yadav and Others vs. The State of U.P. and Others reported in 1989 Cr. LJ 1013, decided on 01.02.1989 and answered that after lodging the FIR, no interference is permissible by this Court in the exercise of its inherent powers, hence, no relief can be granted despite the issue is already resolved in the Mediation Centre. Learned counsel for the applicants has submitted that mediation was successfully concluded and opposite party No.4 join her matrimonial home with her husband and children on 07.07.2021 and settlement agreement was signed at the Mediation and Conciliation Centre of this Court by the applicant  (husband) and opposite party No.4 (wife) along with their respective counsels of the parties and they also agreed to withdraw the proceeding of Case. The counsel for the applicants has submitted that in the law laid down by the Full Bench of this Court in the case of Ram Lal Yadav (supra) relied upon learned A.G.A. is wrongly interpreted as in the aforesaid judgment, it is held that after lodging the FIR, which discloses the commission of a cognizable offence, statutory powers of Police, under Section 156 Cr.P.C. The court perused the facts and arguments presented in the case  Law Commission in its 40th report observed that the statutory power under Section 561 A Cr.P.C. is extended only the inherent power of to High Court. One may compare it with the recognition of the inherent powers of all civil courts by Section 151 Cr.P.C. Later on, Law Commission in its 41st reports recommended that inherent power of Section 561-A Cr.P.C. be extended to all Criminal Courts to prevent abuse of process of any Court or otherwise to secure the ends of justice, but the legislature did not accept the recommendation of commission to extend the inherent power as mentioned in Section 561-A of Criminal Procedure Code, 1898.
AFR Judgment reserved on 01.11.2021 Judgment delivered on 11.01.2022 Case : U S 482 378 407 No. 19720 Applicant : Ishwar Singhal @ Tinu & Others Opposite Party : State Of U.P. Thru. Prin. Secy. Home. Lko & Counsel for Applicant : Durgesh Kumar Singh Counsel for Opposite Party : G.A. Vinod Kumar Hon ble Rajeev Singh J Heard Sri Durgesh Kumar Singh learned counsel for the applicant Shri Anirudh Singh learned A.G.A. for the State and Shri Vinod Kumar learned counsel for the opposite party No.4. This applicationhas been filed with request that the matter may be referred to the Mediation and Conciliation Centre of this Court in relation to FIR No.5019 under Sections 323 354 498A 504 I.P.C. and Section 3 4 of Dowry Prohibition Act 1961 Police Station Mandion District Lucknow and also quashed the entire proceeding in relation to FIR No.5019is not maintainable in terms of law laid down by Full Bench of this Court in the case of Ram Lal Yadav and Others vs. The State of U.P. and Others reported in 1989 Cr. LJ 1013 decided on 01.02.1989 and answered that after lodging the FIR no interference is permissible by this Court in exercise of its inherent powers hence no relief can be granted despite the issue is already resolved in the Learned counsel for the applicants has submitted that marriage of applicant No.1 was solemnized with the opposite party No.4 on 01.07.2009 and they were enjoying their matrimonial life and out of their wedlock two children were born namely Shourya and Tejal but due to some trivial issues FIR in question was lodged on 14.06.2019 by the opposite party No.4. In the present case investigation was started and mediation was also initiated before the court below but the applicant No.1 was not satisfied with the mediation proceeding initiated before the court below hence present applicationwas filed and with the consent of learned counsel for the applicant as well as learned counsel for the opposite party No.4 matter was sent to the Mediation and Conciliation Centre of this Court on 31.07.2020. The order dated 31.07.2020 reads as under: Vakalatnama filed by Shri Vinod Kumar Advocate on behalf of opposite party No.4 is taken on record. Heard learned counsel for the applicants as well as learned A.G.A. for the State and Shri Vinod Kumar learned counsel for opposite party No.4. The present 482 Cr.P.C. application has been filed to quash the entire proceedings arising out of F.I.R. dated 14.06.2019 lodged by the complainantagainst the applicants in Case Crime No. 5019 under Sections 323 354 498 A 504 of I.P.C. and 3 4 Dowry Prohibition Act 1961 Police Staton Madiaon District Lucknow and to refer this matter to the Mediation and Conciliation Center High Court. The instant dispute is the outcome of strained matrimonial relations between applicant No.1 and opposite party No.4. It has been submitted by learned counsel for the applicant that earlier the mediation process was started to amicably settle the dispute between applicant No.1 and opposite party No.4 however due to some wrong advice given by the Advocate of the applicants they could not take part in the mediation process and therefore one more opportunity be provided to the parties to settle their disputes amicably if possible through the process of mediation. Learned counsel for the opposite party No.4 is not having any objection to the request of learned counsel for the applicants. Having regard to the submissions advanced by learned counsel for the applicants and learned counsel for opposite party No.4 the matter is referred to the Mediation Center of this Bench on deposit of Rs. 15 000 which shall be deposited by the applicants within a week from today with the Senior Registrar of this Bench. When the Mediation Center will start functioning a communication will be sent by the Mediation Center of this Bench to the parties and on the first appearance of opposite party No.4 before the Mediation Centre Rs. 13 000 out of Rs. 15 000 which shall be deposited by the applicants shall be paid to her to meet out her expenses of travelling etc. Mediation Center will try its best to persuade the parties to arrive at a settlement and will submit a report to this Court within two months from the start of mediation. List this case in the Ist week of November 2020. Till then no coercive measure shall be taken against the applicants in the Learned counsel for the applicants has submitted that mediation was successfully concluded and opposite party No.4 join her matrimonial home with her husband and children on 07.07.2021 and settlement agreement was singed at the Mediation and Conciliation Centre of this Court by the applicant No.1and opposite party No.4along with their respective counsels of the parties and they also agreed to withdraw the proceeding of Case i.e.Case Crime No.5019and6 SCC 466. The relevant part of the judgment reads as under: 29.7. While deciding whether to exercise its power under Section 482 of the Code or not timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation the High Court may be liberal in accepting the settlement to quash the criminal proceedings investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed Likewise those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage the High Court can show benevolence in exercising its powers favourably but after prima facie assessment of the circumstances material mentioned above. On the other hand where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument normally the High Court should refrain from exercising its power under Section 482 of the Code as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not Similarly in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and therefore there is no question of sparing a convict found guilty of such a crime Jitendra Raghuvanshi And Others vs. Babita Raghuwanshi and another reported in 4 SCC 58. The relevant part of the judgment reads as under: 8. It is not in dispute that matrimonial disputes have been on considerable increase in recent times resulting in filing of complaints under Sections 498 A and 406 IPC not only against the husband but also against the relatives of the husband. The question is when such matters are resolved either by the wife agreeing to rejoin the matrimonial home or by mutual settlement of other pending disputes for which both the sides approached the High Court and jointly prayed for quashing of the criminal proceedings or the FIR or complaint by the wife under Sections 498 A and 406 IPC whether the prayer can be declined on the sole ground that since the offences are non compoundable under Section 320 of the Code it would be impermissible for the Court to quash the criminal proceedings or FIR or complaint 9. It is not in dispute that in the case on hand subsequent to the filing of the criminal complaint under Sections 498 A and 406 IPC and Sections 3 and 4 of the Dowry Prohibition Act 1961 with the help and intervention of family members friends and well wishers the parties concerned have amicably settled their differences and executed a compromise settlement Pursuant thereto the appellants filed the said compromise before the trial court with a request to place the same on record and to drop the criminal proceedings against the appellants herein. It is also not in dispute that in addition to the mutual settlement arrived at by the parties the respondent wife has also filed an affidavit stating that she did not wish to pursue the criminal proceedings against the appellants and fully supported the contents of the settlement deed. It is the grievance of the appellants that not only the trial court rejected such prayer of the parties but also the High Court failed to exercise its jurisdiction under Section 482 of the Code only on the ground that the criminal proceedings relate to the offences punishable under Sections 498 A and 406 IPC which are non compoundable in nature 12. After considering the law laid down in State of Haryana v. Bhajan Lal 1992 Supp SCC 335 : 1992 SCC 426] and explaining the decisions rendered in Madhu Limaye v. State of Maharashtra4 SCC 551 : 1978 SCC 10] Surendra Nath Mohanty v. State of Orissa5 SCC 238 : 1999 SCC998] and Pepsi Foods Ltd. v Judicial Magistrate5 SCC 749 : 1998 SCC1400] this Court held:4 SCC 675 : 2003 SCC848] SCC p 680 para 8 “8. … We are therefore of the view that if for the purpose of securing the ends of justice quashing of FIR becomes necessary Section 320 would not be a bar to the exercise of power of quashing. It is however a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power.” Considering matrimonial matters this Court also held:4 SCC 675 : 2003 SCC848] SCC p. 682 para “12. The special features in such matrimonial matters are evident It becomes the duty of the court to encourage genuine settlements of matrimonial disputes.” 17. In the light of the above discussion we hold that the High Court in exercise of its inherent powers can quash the criminal proceedings or FIR or complaint in appropriate cases in order to meet the ends of justice and Section 320 of the Code does not limit or affect the powers of the High Court under Section 482 of the Code Parbatbhai Aahir and Others vs. State of Gujrat and Another reported in9 SCC 641. The relevant part of the judgment reads as under : 16. The broad principles which emerge from the precedents on the subject may be summarised in the following propositions 16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court 16.2. The invocation of the jurisdiction of the High Court to quash a first information report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure 1973. The power to quash under Section 482 is attracted even if the offence is non compoundable 16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482 the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power 16.4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercisedto secure the ends of justice orto prevent an abuse of the process of any court 16.5. The decision as to whether a complaint or first information report should be quashed on the ground that the offender and victim have settled the dispute revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated 16.6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are truly speaking not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences 16.7. As distinguished from serious offences there may be criminal cases which have an overwhelming or predominant element of a civil dispute They stand on a distinct footing insofar as the exercise of the inherent power to quash is concerned 16.8. Criminal cases involving offences which arise from commercial financial mercantile partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute 16.9. In such a case the High Court may quash the criminal proceeding if in view of the compromise between the disputants the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice and 16.10. There is yet an exception to the principle set out in propositions 16.8. and 16.9. above. Economic offences involving the financial and economic well being of the State have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance B.S. Joshi And Others vs. State of Haryana And Another reported in 2003) 4 SCC 675. The relevant part of the judgment reads as under : 8. It is thus clear that Madhu Limaye case4 SCC 551 : 1978 SCC10] does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in Section 482 of the Code or extraordinary power under Article 226 of the Constitution of India. We are therefore of the view that if for the purpose of securing the ends of justice quashing of FIR becomes necessary Section 320 would not be a bar to the exercise of power of quashing. It is however a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power. Considering matrimonial matters this Court also held 12. The special features in such matrimonial matters are evident. It becomes the duty of the court to encourage genuine settlements of 15. In view of the above discussion we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code Gian Singh vs. State of Punjab and Another reported in 10 SCC 303. The relevant part of the judgment reads as under: 61. the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz. :to secure the ends of justice orto prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However before exercise of such power the High Court must have due regard to the nature and gravity of the crime Heinous and serious offences of mental depravity or offences like murder rape dacoity etc. cannot be fittingly quashed even though the victim or victim s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc. cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing particularly the offences arising from commercial financial mercantile civil partnership or such like transactions or the offences arising out of matrimony relating to dowry etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases the High Court may quash the criminal proceedings if in its view because of the compromise between the offender and the victim the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative the High Court shall be well within its jurisdiction to quash the criminal proceeding Learned counsel for the applicants has also relied on the recent judgment of Hon ble Supreme Court in the case of Ramawatar vs State of Madhya Pradesh reported in 2021 SCC Online SC 966. The relevant part of the judgment reads as under: 19. Having considered the peculiar facts and circumstances of the present case in light of the afore stated principles as well as having meditated on the application for compromise we are inclined to invoke the powers under Article 142 and quash the instant Criminal proceedings with the sole objective of doing complete justice between the parties before us. We say so for the reasons that Firstly the very purpose behind Section 3(1)(x) of the SC ST is to deter caste based insults and intimidations when they are used with the intention of demeaning a victim on account of he she belonging to the Scheduled Caste Scheduled Tribe community. In the present case the record manifests that there was an undeniable pre existing civil dispute between the parties. The case of the Appellant from the very beginning has been that the alleged abuses were uttered solely on account of frustration and anger over the pending dispute. Thus the genesis of the deprecated incident was the afore stated civil property dispute Considering this aspect we are of the opinion that it would not be incorrect to categorise the occurrence as one being overarchingly private in nature having only subtle undertones of criminality even though the provisions of a special statute have been attracted in the present case Secondly the offence in question for which the Appellant has been convicted does not appear to exhibit his mental depravity. The aim of the SC ST Act is to protect members of the downtrodden classes from atrocious acts of the upper strata of the society. It appears to us that although the Appellant may not belong to the same caste as the Complainant he too belongs to the relatively weaker backward section of the society and is certainly not in any better economic or social position when compared to the victim. Despite the rampant prevalence of segregation in Indian villages whereby members of the Scheduled Caste and Scheduled Tribe community are forced to restrict their quartes only to certain areas it is seen that in the present case the Appellant and the Complainant lived in adjoining houses. Therefore keeping in mind the socio economic status of the Appellant we are of the opinion that the overriding objective of the SC ST Act would not be overwhelmed if the present proceedings are quashed Thirdly the incident occurred way back in the year 1994. Nothing on record indicates that either before or after the purported compromise any untoward incident had transpired between the parties. The State Counsel has also not brought to our attention any other occurrence that would lead us to believe that the Appellant is either a repeat offender or is unremorseful about what transpired Fourthly the Complainant has on her own free will without any compulsion entered into a compromise and wishes to drop the present criminal proceedings against the accused Fifthly given the nature of the offence it is immaterial that the trial against the Appellant had been concluded Sixthly the Appellant and the Complainant parties are residents of the same village and live in very close proximity to each other. We have no reason to doubt that the parties themselves have voluntarily settled their differences. Therefore in order to avoid the revival of healed wounds and to advance peace and harmony it will be prudent to effectuate the present Learned counsel for the applicants has submitted that in the law laid down by the Full Bench of this Court in the case of Ram Lal Yadav relied by learned A.G.A. is wrongly interpreted as in the aforesaid judgment it is held that after lodging the FIR which discloses the commission of a cognizable offence statutory powers of Police under Section 156 Cr.P.C. to investigate the case registered on the basis of information no interference is permissible in the investigation in the exercise of its inherent powers under Section 482 Cr.P.C. and this Court has no jurisdiction to direct a police officer not to arrest the accused during the pendency of investigation of the case but High Court can always issue a writ of mandamus under Article 226 of the Constitution restraining the police officer for misusing his legal power in relation to arrest. 10. Learned counsel for the applicants has submitted that provisions of anticipatory bail under Section 438 Cr.P.C. was omitted in the State of U.P. vide U.P. Act No.176 w.e.f. 28.11.1975 the protection of pre arrest was not available therefore application u s 482 Cr.P.C.) was being filed restraining the police from arrest during investigation and in the case of Ram Lal Yadav this controversy was decided that under Section 482 Cr.P.C. Police Officer cannot be restrained from arresting the accused persons during the course of investigation but by way of writ of mandamus this power can be used. This question is already settled in the case of State of Haryana and Others vs. Bhajan Lal and Others reported in 1992) Supp 1 SCC 335 that First Information Report can be quashed either under Section 482 Cr.P.C. or under Article 226 of the Constitution. The relevant part of the judgment reads as under: 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice though it may not be possible to lay down any precise clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be 1) Where the allegations made in the first information report or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.(2) Where the allegations in the first information report and other materials if any accompanying the 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 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused 4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non cognizable offence no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code 5) 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 6) 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 7) Where a criminal proceeding is manifestly attended with mala fide and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge Learned counsel for the applicants has submitted that in the case of Ramawatarthe Hon ble Supreme Court has held that even at the stage of appeal against the conviction order power of inherent jurisdiction can be invoked to do the complete justice therefore in the present case First Information Report and its consequential proceedings may be quashed in terms of settlement agreement executed before the Mediation and Conciliation Centre of this Court. Learned A.G.A. as well as learned counsel for the opposite party No.4 fairly conceded this fact that matter was sent to the Mediation and Conciliation Centre of this Court on 31.07.2020 and it was successfully concluded and presently opposite party No.4 is residing with her husbandand children 13. Considering the arguments of learned counsel for the applicants learned counsel for the opposite party No.4 as well as learned A.G.A. and going through the record it is evident that FIR was lodged by the opposite party No.4due to some trivial issues and during the course of investigation First Information Report and its consequential proceedings were challenged before this Court and thereafter matter was referred to the Mediation and Conciliation Centre of this Court with the consent of counsel for the opposite party No.4 on the first date and it was successfully concluded and settlement agreement was executed between the parties and opposite party No.4 join her matrimonial home on 07.03.2021 and enjoying her life with her husbandand children. 14. As in the case of Ram Lal Yadavthere is no bar from interference in the FIR in applicationas this question was already decided in the case of Bhajan Lal that inherent powers can be invoked in seven conditions which reads as under: Where the allegations made in the first information report or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused 2) Where the allegations in the first information report and other materials if any accompanying the 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 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused 4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non cognizable offence no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code 5) 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 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Actto the institution and continuance of the proceedings and or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party 7) Where a criminal proceeding is manifestly attended with mala fide and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge 15. As in Criminal Procedure Code 1898 there was no such provision in relating to inherent jurisdiction of High Court but the legislature added Section 561 A by inserting in 1923 Act No.XVII of 1923. Section 561 A of the Criminal Procedure Code 1898 which reads as under: Saving of inherent power of High Court Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as ma be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice The Law Commission in its 40th report observed that the statutory power under Section 561 A Cr.P.C. is extended only the inherent power of High Court. One may compare it with the recognition of the inherent powers of all civil courts by Section 151 Cr.P.C. Later on Law Commission in its 41st reports recommended that inherent power of Section 561 A Cr.P.C. be extended to all Criminal Courts to prevent abuse of process of any Court or otherwise to secure the ends of justice but the legislature did not accept the recommendation of commission to extend the inherent power as mentioned in Section 561 A of Criminal Procedure Code 1898. Para 46.2st report of Law Commission is reproduced as under: Section 561 A recognises the inherent powers of the Section 561 A High Court to do real and substantial justice between parties. Assuming its existence the Section provides that nothing in the Code shall be deemed to limit or affect the inherent power of the High Court to give effect to any order under the Codeor otherwise to secure the ends of justice. Fourteenth Report. Vol. II page 829 the Law Commission observed: This statutory recognition however extends only to the inherent powers of the High Court. One may compare it with the recognition of the inherent powers of all civil courts by Section 151 Criminal Procedure In a number of decisions before and after the enactment of Section 561A various High Courts have also recognised the existence of such power in subordinate Courts. We would therefore recommend a statutory recognition of such inherent power which has been recognized as vesting in all subordinate criminal courts. However the general principle of law is that the inherent power of a court can be exercised only to give effect to orders made by it or to prevent abuse of its own processes We agree with this recommendation. We do not however consider it necessary or desirable to go further and recognise and inherent power in Courts of Session and other Courts of Appeal to pass appropriate orders to prevent the abuse of the process of any We propose that the Section may be expanded as follows: 561 A. Nothing in this Code shall be deemed to limit or saving of inherent powers of Criminal Courts affect the inherent power a) of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice or b) of any Criminal Court to make such orders as may be necessary to prevent abuse of its process or otherwise to secure the ends of justice In the case of Ram Lal Yadav the provision of anticipatory bail under Section 438 Cr.P.C. was not existing therefore there was a delima to get the remedy of pre arrest during investigation then it was clarified by this Court that High Court has no inherent powers under Section 482 Cr.P.C. to interfere with the arrest of accused persons during the course of investigation but it was clarified that High Court can always issue a writ of mandamus under Article 226 of the Constitution restraining the police officer for misusing his legal power in relation to arrest and FIR can be quashed under Section 482 Cr.P.C. which is covered under the principle laid down by Hon ble Supreme Court in the Case of Bhajan Lal this Court held that Investigating Officer can not be restrained from arresting the accused of a cognizable offence. The Hon ble Supreme Court in the case of Bhajan Lal and Ramawatar already held that FIR and its consequential proceedings can be quashedtherefore this Court is of the view that impugned FIR and its consequential proceedings is liable to be quashed in terms of settlement agreement of parties before Mediation and Conciliation Centre of this Court. 19. For the discussions made above the present application is allowed and First Information Report No.5019 under Sections 323 354 498A 504 I.P.C. and Section 3 4 of Dowry Prohibition Act 1961 Police Station Mandion District Lucknow is 20. Office is directed to communicate this order to the Chief Judicial Magistrate concerned forthwith. Order Date : 11.01.2022
The petitioner was at best consuming narcotics drugs which he used to buy from the sellers in the group: High Court Of Delhi
It is directed that the petitioner be released on bail on his furnishing a personal bond in the sum of ₹1 lakh with two surety bonds of the like amount each, subject to the satisfaction of the learned Trial Court/CMM/Duty Magistratewas upheld by the High Court Of Delhi through the learned bench led by HON’BLE MS. JUSTICE MUKTA GUPTA in the case of NAMAN SHARMA Vs STATE THROUGH NARCOTICS CONTROL BUREAU (BAIL APPLN. 3673/2021) on March 04, 2022. Brief facts of the case are that the petitioner seeks regular bail in case No. VIII/46/DZU/2021 under Sections 8(c)/20/22/29 of the NDPS Act on a complaint filed by the respondent-NCB. Learned counsel for the petitioner contended that as per the statement recorded under Section 67 of the NDPS Act which is inadmissible in evidence, the best case of the respondent is that the petitioner used to consume Ganja in the year 2017 and the payments thereof were made in the year 2021. Even as per the investigation, the group was created by Mohd. Aslam and Parichay Arora and merely because the petitioner was also made an Admin of the group, the liability of the entire group cannot be fastened on the petitioner. Learned counsel for the respondent stated that in view of the embargo under Section 37 of the NDPS Act, no case for grant of bail to the petitioner is made out as there is every possibility that on being released on bail, the petitioner will again indulge in same kind of activities The Court observed “it is evident that the petitioner was at best consuming narcotics drugs which he used to buy from the sellers in the group. Complaint has already been filed by the respondent; the petitioner is in judicial custody since 4th September 2021 and is no more required for investigation. Consequently, this Court deems it fit to grant bail to the petitioner.” The Court held that it is directed that the petitioner be released on bail on his furnishing a personal bond in the sum of ₹1 lakh with two surety bonds of the like amount each, subject to the satisfaction of the learned Trial Court/CMM/Duty Magistrate, out of which, one surety would be a family member of the petitioner; further subject to the conditions that the petitioner will not leave the country without the prior permission of the Court concerned. The petitioner will appear before the NCB office at Kolkata on the first Monday of every calendar month at 6.00 P.M. Click here to read the Judgement
IN THE HIGH COURT OF DELHI AT NEW DELHI NAMAN SHARMA Reserved on: February 24 2022 Decided on: March 04 2022 BAIL APPLN. 3673 2021 ….. Petitioner Represented by: Mr. Anurag Bindal Mr. Ankur Gupta and Mr. B. Khan Advocates. STATE THROUGH NARCOTICS CONTROL ..... Respondent Represented by: Mr. Rajesh Manchanda Special P.P. for the NCB. HON BLE MS. JUSTICE MUKTA GUPTA MUKTA GUPTA J. By this petition the petitioner seeks regular bail in case No. VIII 46 DZU 2021 under Sections 8(c) 20 22 29 of the NDPS Act on a complaint filed by the respondent NCB. Learned counsel for the petitioner contends that even as per the statement recorded under Section 67 of the NDPS Act which is inadmissible in evidence the best case of the respondent is that the petitioner used to consume Ganja in the year 2017 and the payments thereof were made in the year 2021. Even as per the investigation the group was created by Mohd. Aslam and Parichay Arora and merely because the petitioner was also made an Admin of the group the liability of the entire group cannot be fastened on BAIL APPLN. 3673 2021 the petitioner. Even from the transactions of payments made to Mohd. Aslam and Neil Singhvi by the petitioner at best four or five transactions have been shown wherein amounts transferred are ₹11 000 ₹5700 ₹1000 ₹2000 etc. The petitioner is not a drug trafficker. Though not admitting even if at some stage the petitioner consumed the drugs the same would not amount to dealing in a drug trafficking racket. He further states that the similarly placed co accused namely Devesh Vasa has been granted bail by this Court and Aashray Pandey has been granted bail by the learned Special Court and hence on parity the petitioner be also granted bail. The petitioner was working after completing his studies at Kolkata when he was picked up by the officers of the respondent and implicated in this case. The complaint has been filed and the petitioner is no more required for investigation. Learned counsel for the respondent states that in view of the embargo under Section 37 of the NDPS Act no case for grant of bail to the petitioner is made out as there is every possibility that on being released on bail the petitioner will again indulge in same kind of activities and the petitioner being a part of the larger drug network his role cannot be segregated from the other accused. Case of the prosecution in nutshell is that on the basis of an information Guhan Sarvothaman was intercepted at the IGI Airport on 4th August 2021. On his search 30 gms. of ganja and 0.45 gms. of Ecstasy were recovered. In the interrogation he revealed about his friend Rahul Mishra his address and the possibility of recovery of contraband from his house. Search was made at the house of Guhan Sarvothaman at Greater Noida resulting in recovery of 1 kg of ganja and ₹15.5 lakhs in cash. Search was also made at the house of Rahul Mishra at Faridabad from where 1.05 kg of ganja was recovered. Guhan Sarvothaman further BAIL APPLN. 3673 2021 disclosed about one accused Aashray Pandey who was intercepted at Ambience Mall with a parcel containing 410 gms. of ganja. Guhan Sarvothaman also informed about one Tareena Bhatnagar who had promised to get him high quality ganja and for which she had paid a sum of ₹6 lakhs to Jasbir Singh. Thus the links of Jasbir Singh were sought to be traced and it was found that Jasbir Singh operated under the pseudo name Optims Prime and Sharadha Surana operated under the pseudo name Beanskey on Telegram App in Orient Express Group. The Orient Express Group wherein number of people were indulging in sale and purchase of narcotics was created by Parichay Arora and Mohd. Aslam and the petitioner was one of the Admins of the said social media group. On the disclosure of Jasbir Singh and Sharadha Surana search was conducted at the house of Suvashish Roy at Greater Noida from where 1.250 kgs. of Ganja 16 gms. Ecstasy pills 6 gms. Heroine 40 gms. of Charas and 130 gms. of suspected psychotropic substance in different coloured little pills were found and 39.700 gms. concentrate of cannabis and 2.530 gms. liquid cannabis from a parcel at Foreign Post Office Kolkata. One more accused Raghunath Kumar was identified who was recognized as Shopper stop on Wicket App who used to arrange narcotics drugs. According to the investigation the contraband was marketed on social media platforms and then delivered to the customers consumers through parcels. Admittedly even as per the prosecution no recovery of contraband was made from the petitioner and the only evidence against him is that he was one of the Admins of Orient express group which was created by Mohd. Aslam and Parichay Arora and that the petitioner had transferred certain sums of money. As per the statement of accounts placed on record a sum of ₹11 000 was transferred by the petitioner to Mohd. Aslam on 21st June BAIL APPLN. 3673 2021 2020 ₹5700 to Neil Singhvi on 9th October 2020. Further two transactions of ₹1000 each and a transaction of ₹2300 have been made to Parichay Arora. Even in the statement of the petitioner recorded under Section 67 of the NDPS Act which is not admissible in evidence in view of the decision of the Hon’ble Supreme Court reported as 4 SCC 1 Tofan Singh Vs. State of Tamil Nadu it is stated that in August 2020 during the lockdown the petitioner was looking to buy weed for his consumption through telegram thus used the keywords like ‘weeds marijuana’ when he entered into two groups where he got scammed of ₹3500 . In the same group there was a user named Chico who asked the petitioner to join another group where there was a seller with the user name Pptheplugwho sent him some weed for the first time in advance without paying him which made him believe that he was a real seller. Later Aslam and Parichay Arora started adding more people in the group and made it a group of 200 members. In the group there were 5 7 sellers who used to send weed parcels via courier services and the petitioner was one of them who used to buy for his consumption. From the facts of the complaint as noted above and even based on the statement under Section 67 of the NDPS Act and the money transactions it is evident that the petitioner was at best consuming narcotics drugs which he used to buy from the sellers in the group. Complaint has already been filed by the respondent the petitioner is in judicial custody since 4th September 2021 and is no more required for investigation. Consequently this Court deems it fit to grant bail to the petitioner. It is therefore directed that the petitioner be released on bail on his furnishing a personal bond in the sum of ₹1 lakh with two surety bonds of the like amount each subject to the satisfaction of the learned Trial BAIL APPLN. 3673 2021 Court CMM Duty Magistrate out of which one surety would be a family member of the petitioner further subject to the conditions that the petitioner will not leave the country without the prior permission of the Court concerned and in case of change of residential address and or mobile number the same will be intimated to the Court concerned by way of an affidavit. Further the petitioner will appear before the NCB office at Kolkata on the first Monday of every calendar month at 6.00 P.M. Petition is disposed of. Order be uploaded on the website of this Court. MUKTA GUPTA) MARCH 04 2022 BAIL APPLN. 3673 2021
Cases of Two Petitioners Identical Will Be Barred By Limitation And Laches: Patna High Court
The two orders issued in exaltedly similarly qualified cases when the cases of the two petitioners are identical to the petitioners in the two cases is barred by limitation and laches is upheld by the High Court of Patna through the learned bench led by HONOURABLE MR. JUSTICE P. B. BAJANTHRI in the case of Md. Ushman Ansari Vs. State Of Bihar (Civil Writ Jurisdiction Case No.6586 of 2020). Brief facts of the case are that on August 17, 1995, the petitioners’ services were terminated. Similarly situated individuals approached the Court, and on July 25, 2007 decisions were issued in favour of petitioners’ colleague. Following that, on 02.12.2010, decided in favour of similarly situated persons. The petitioners are the fence sitter, as evidenced by the record that they submitted representation for the first time on February 10, 2012. After that he hasn’t come back to the Court in approximately eight years. As a result, in accordance with the Supreme Court’s decision in the matter of State of Jammu and Kashmir vs. R.K. Zalpuri and others, the current petition is hopelessly barred by limitation and laches. The petitioners in this writ petition seek indulgence before this Hon’ble Court for the purpose of disposing of the present writ petition in accordance with the two orders issued in exaltedly similarly qualified cases because the cases of these two petitioners are identical to the petitioners in the two cases, i.e., Prem Prakash Singh and another Versus The State of Bihar and others , Sanjay Kumar and others Versus The State of Bohar and others. The court also stated that, while exercising its jurisdiction under Article 226 of the Constitution, the Court must evaluate whether adjudication of a writ petition involves any complicated and disputed factual issues and whether they may be satisfactorily resolved, and whether the petition discloses all material facts. Moreover, the Court must also evaluate the petitioner has any other or effective remedy for resolving the dispute, and the person invoking the jurisdiction is guilty of unexplained delay and laches; and ex facie barred by any statutes of limitation; and grant of relief is against public policy or barred by any valid law among other factors. The court hence disposed the petition.
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.65820 1. Md. Ushman Ansari Son of Md. Siddque Ansari Resident of Village Khapra P.O. and P.S. Akorhigola District Rohtas at Sasaram 2. Krishna Singh Son of Sri Moti Lal Singh Resident of Laxman Bigha P.S Indrapuri District Rohtas at Sasaram ... Petitioner s The State of Bihar through Principal Secretary Road Construction Department Govt. of Bihar Patna The Engineer in Chief cum Chief Engineer Road Construction Department Govt. of Bihar Patna The Superintending Engineer Road Construction Department Bhojpur Circle Ara District Ara The Executive Engineer Road Construction Department District Ara The District Magistrate Cum Collector Ara District Ara ... Respondent s For the Petitioner s Mr. Arun Kumar No. 1 Advocate For the Respondent s Mr.contained in Annexure 1 and order dated 02.12.2010 passed in C.W.J.C. No. 7772 2006contained in Annexure 2 because case of these two petitioners are exactly similar to the cases of the petitioners of aforementioned two cases contained in Annexure 1 and 2 as they have been terminated by the same letter contained in Annexure 5 Patna High Court CWJC No.65820 dt.20 12 2021 And further for issuance of any other wit or writs direction or directions as it may be deceased fit and proper to the facts and circumstances of this case.” Petitioners’ services were terminated on 17.08.1995 Similarly situated persons have approached this Court and orders were passed in favour of petitioners’ colleague on 25.07.2007 in C.W.J.C No. 11776 on 2006. Thereafter C.W.J.C. No. 77706 decided on 02.12.2010 in respect of similarly situated persons. The petitioners are fence sitter as is evident from the record that they have submitted representation for the first time on 10.02.2012. Thereafter he has not approached this Court for about eight years. Therefore the present petition is hopelessly barred by limitation and laches in terms of the Apex Court decision in the case of State of Jammu and Kashmir V s R.K. Zalpuri and others reported in AIR 2016 SC 3006 paragraph 20 has held as under “20. Having stated thus it is useful to refer to a passage form City and Industrial Development Corporation V s. Dosu Aardeshir Bhiwandiwala and others {(2009) 1 SCC 168} wherein this Court while dwelling upon jurisdiction under Article 226 of the Constitution has expressed thus: “The Court while exercising its jurisdiction under Article 226 is duty bound to consider whether a) Adjudication of writ petition involves any complex and disputed question of facts and whether they can be satisfactorily resolved b) The petition reveals all material facts Patna High Court CWJC No.65820 dt.20 12 2021 c) The petitioner has any alternative or effective remedy for the resolution of the dispute d) Person invoking the jurisdiction is guilty of unexplained delay and laches e) Ex facie barred by any laws of limitation f) Grant of relief is against public policy or barred by any valid law and host of other factors” Accordingly petition stands dismissed. P. B. Bajanthri J GAURAV S.
Swachh Bharat Mission’s objective is to ensure open defecation free cities and scientific collection and processing of solid waste: Bombay High Court
The guidelines of Swachha Bharat Mission (Urban) Scheme of the Government envisages that beneficiary households will be targeted irrespective of whether they lived in authorized / unauthorized colonies of notified / non-notified slums under SBM (Urban) scheme. A single-judge bench of Milind Jadhav J., while adjudicating the matter Municipal Corporation of Mumbai v. Nirmal Nagar Co-op Housing Society; [APPEAL FROM ORDER (ST) NO. 9596 OF 2021]; dealt with the issue of responsibility of Municipal Corporation. Plaintiff is a federation of several cooperative housing societies. The learned counsel appearing for the plaintiff contended that the Corporation was redeveloping and reconstructing an already existing dilapidated toilet block standing on an open portion / space. This is the factual position and the Plaintiff has suppressed the same while approaching the trial court. He submitted that the original toilet block having 40 toilet seats was in a very bad condition and practically unusable pursuant to which several complaints were received. The WC pans were in broken condition; bottoms of the doors were corrugated and damaged completely; vent pipes were damaged at many places and the overall condition was filthy and bad. The photographs of the original toilet block which are part of the paper book were also referred to and attention of the Court was drawn thereto. The same has not been denied by the learned counsel for the Plaintiff which is material. Further, he stated that the toilet block reconstruction is being done under the Central Government’s Swachha Bharat Abhiyaan Scheme. He submitted that construction of latrines did not require permission of the local bodies in as much as the land holding authorities did not have the authority to disallow construction of latrines under the Swachha Bharat Mission (Urban) for censused. In any event, it was submitted that reconstruction of the toilet block was in place of the old toilet block and not a new construction; it was in the larger public interest and would serve the population of the slum areas of Deepakwadi and Nirmalnagar who were using the earlier toilet block and who would now be benefited by the new toilet block structure; it was in the interest of residents of the locality and in absence of a clear right, title and interest, the Plaintiff Federation could not oppose the same.
on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docR.M. AMBERKAR(Private Secretary) IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONAPPEAL FROM ORDERNO. 9596 OF 2021WITHINT. APPLICATIONNO. 9597 OF 2021Municipal Corporation of Greater Mumbaithrough Assistant MunicipalCommissioner H East Ward...Appellant VersusNirmal Nagar 1 Co operative HousingSociety Association Ltd & Ors...Respondents...................Mr. N.V. Walawalkar Senior Advocate a w Ms. Madhuri More i byMrs. A.K. Savla for the Appellant Mr. Sachin Kadam for Respondent No. 1 ................... CORAM : MILIND N. JADHAV J. RESERVED ON : MAY 7 2021. PRONOUNCED ON : MAY 18 2021.JUDGMENT: Heard Mr. N.V. Walawalkar learned SeniorAdvocate for the Appellant Original Defendant No. 1 and Mr.Sachin Kadam for Respondent No. 1 Plaintiff.2. This Appeal from Order is filed to challenge theorder dated 09.03.2021 passed by City Civil Court Dindoshi Mumbai in Notice of Motion No. 21 in S.C. Suit No. 7 of2021 whereby the trial Court has made the said Notice ofMotion absolute in terms of prayer clauses(b) and(b) andof the Notice of Motionreads thus: "(a) That pending hearing and final disposal of the above suit thisHon ble Court be pleased to direct the Defendant No. 1 to stay itshands and remove the partly carried out construction activity at thesuit plot of land bearing C.T.S. No. 418 being red portion shown inlay out planThat pending hearing and final disposal of the above suit thisHon ble Court be pleased to direct the Defendant No. 3 toimplement the Hon ble Court s order and restrain any person fromcarrying out any construction on the suit plot of land bearing C.T.S.No. 418 as shown in red colour in the lay out plan bearing Exhibit"E" hereto and also to maintain law and order at siteThat pending hearing and final disposal of the above suit thisHon ble Court be pleased to grant temporary order and injunctionrestraining the Defendant No. 1 its officers servants agents andperson or persons claiming through or under them from carrying outany construction activities of public toilet in the suit premises shownin red colour in the lay out plan on plot bearing C.T.S. No. 418 beingExhibit "E" hereto."3. By consent of the parties the Appeal from Orderis taken up for hearing. For the sake of convenience weshall refer to the parties as they were referred to before thetrial Court i.e Appellant will be referred to as Defendant No.1 Respondent No. 1 herein will be referred to as Plaintiff andRespondent Nos. 2 & 3 will be referred to as Defendant No. 2& Defendant No. 3 respectively.4. Briefly stated Plaintiff is a Federation of severalCo op. housing societies in Nirmal Nagar Area BandraMumbai. Suit bearing L.C. Suit No. 21 has been filedby the Plaintiff for the following reliefs: on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.doc"(a) That this Hon ble Court be pleased to declare that the work beingcarried out at the said site more particularly described in lay out planin red ink on the plot of land bearing C.T.S. No. 418 of constructionof toilet by the Defendant No. 1 is illegal bad in law null and voidand is without proper permission of Competent Authority or of thePlaintiffThat this Hon ble Court be pleased to direct the Defendant No. 1 tostay its hands and remove the partly carried out construction activityat the suit plot of land bearing C.T.S. No. 418 being red portionshown in the lay out planThat this Hon ble Court be pleased to direct the Defendant No. 3 toimplement the Hon ble Court s order and restrain any person fromcarrying out any construction on the suit plot of land bearing C.T.S.No. 418 as shown in red colour in the lay out plan being Exhibit "E"hereto and also to maintain law and order at siteThat this Hon ble Court be pleased to grant permanent order andinjunction restraining the Defendant No. 1 its officers servants agents and person or persons claiming through or under them fromcarrying out any construction activities of public toilet in the suitpremises shown in red colour in the lay out plan on plot bearingC.T.S. No. 418 being Exhibit "E" hereto."5. Mr. Walawalkar learned Senior Advocateappearing for the Appellant Defendant No. 1 Corporationhas assailed the impugned order dated 09.03.2021 andcontended that the Corporation was redeveloping andreconstructing an already existing dilapidated toilet blockstanding on an open portion space in C.T.S. No. 418.This is the factual position and the Plaintiff has suppressedthe same while approaching the trial court. He submittedthat the original toilet block having 40 toilet seats was in avery bad condition and practically unusable pursuant towhich several complaints were received from the localMunicipal Councillor of Beat 95 and a local organization on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.doccalled Prabhati Nirmal Sudhar Samitee. Thereafter theofficers of the Corporation jointly visited and inspected theoriginal toilet block structure along with the local Councillorand local residents from Nirmalnagar and Deepakwadi theoriginal toilet block was constructed in the year 2010 11from the MLA fund of then MLA Mr. PrakashSawant the WC pans were in broken condition bottoms of the doorswere corrugated and damaged completely vent pipes weredamaged at many places and the overall condition was filthyand bad. The photographs of the original toilet block whichare part of the paper book were also referred to andattention of the Court was drawn thereto. The same has notbeen denied by the learned counsel for the Plaintiff which ismaterial.5.1. Mr. Walawalkar submitted that considering thepopulation of the locality in Deepakwadi and Nirmalnagar asurvey was carried out by appointing CBO called PrathaSamajik Sanstha which reported that 57 toilet seats were therequirement considering that there were 788 ladies and 873gents residing in the said area. Accordingly estimation planning designing and construction of the RCC communitytoilet block was planned and executed to have 67 toiletseats. The Competent Authority for administrative sanction on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docapproved the proposal submitted by the Assistant Engineer(Maintenance department) H East ward on 19.03.2020 workorder was issued to Defendant No. 3 on 14.07.2020 andimmediately thereafter during the last monsoon the oldtoilet block was demolished and reconstruction workcommenced. Though Defendant No.2 MHADA had inquiredwith Defendant No. 1 Corporation about the permission itwas put to the notice of MHADA that the Secretary of UrbanDevelopment Department had directed that no NOC wouldbe required from the land holding authorities. NeverthelessMr. Walawalkar submitted that the Corporation shallapproach MHADA if so required and complete the formalitiesas both the Corporation and MHADA being instrumentalitiesof the State are planning authorities and carry out similarfunctions. 5.2. He submitted that the toilet block reconstructionis being done under the Central Government s SwachhaBharat Abhiyaan Scheme. He submitted that construction oflatrines did not require permission of the local bodies in asmuch as the land holding authorities did not have theauthority to disallow construction of latrinesunder the SwachhaBharat Missionfor censused structures noted in on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.doc2011 census. In any event it was submitted thatreconstruction of the toilet block was in place of the oldtoilet block and not a new construction it was in the largerpublic interest and would serve the population of the slumareas of Deepakwadi and Nirmalnagar who were using theearlier toilet block and who would now be benefited by thenew toilet block structure it was in the interest of residentsof the locality and in absence of a clear right title andinterest the Plaintiff Federation could not oppose the same.5.3. While referring to the impugned order Mr.Walawalkar submitted that the finding given in paragraphNo. 14 is prima facie on the face of record incorrect. Hesubmitted that it has been held in the impugned order thatDefendant No. 1 cannot enter on private land by any privateperson even though the work of construction of public toiletis in the larger public interest. He submitted that this findingand terming Defendant No. 1 as an encroacher on theprivate land owned by Defendant No. 2 MHADA forunauthorized construction of public toilet is incorrect in factand law. He submitted that the impugned order is passedon the basis that the Corporation is constructing a freshstructure toilet block without looking into the record thatthere existed an earlier toilet block of 40 seats. This aspect on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docis missing in the entire impugned order. The impugned orderproceeds on the basis that the Plaintiff is the owner of C.T.S.No. 418 and this is incorrect and erroneous in as much asthe Plaintiff does not have any conveyance in its favour.Merely on the basis of a lay out it cannot be assumed thatthe Plaintiff becomes the owner of C.T.S. No. 418 and morespecifically of the open space where other constructionshave been in place since long. He submitted that theargument of the Plaintiff that there are two other toiletblocks within 30 meters of the said site cannot becountenanced as proper estimation planning and executionof the present toilet block has been done based upon thepopulation of the area on the basis of the 2011 census. Hetherefore persuaded the Court to set aside and quash theimpugned order and allow the Appeal from Order filed by theCorporation in the larger public interest.6. PER CONTRA It is the case of the Plaintiff thatDefendant No. 1 Corporation suddenly started carrying outwork of construction of a public toilet block on an openportion of land in C.T.S No. 418. The case pitched by thelearned counsel appearing for the Plaintiff is that DefendantNo.1 Corporation suddenly out of blue started constructionwork of a public toilet structure on a portion of open plot of on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docland in C.T.S. No. 418. Plaintiff has asserted that the openspace where the toilet is being constructed is being used bythe members of the Plaintiff s Federation of Socieities for thepast several years Plaintiff is in settled possession of thesaid open space and is the owner of the said open space ofland Defendant No.1 Corporation has no right or permissionfrom Defendant No. 2 MHADA to construct or startconstructing on the said open space of land. This case isstated in paragraph Nos. 14 and 15 of the plaint.6.1. At the outset Mr. Kadam on a query put by theCourt has very candidly admitted that the case stated inparagraph No. 15 is incorrect in as much as there wasalready an old dilapidated toilet structure standing on thesaid open portion space in C.T.S. No. 418 for several yearsand since it was in a precarious condition the Corporationdemolished the same and started construction of a newtoilet block with 67 seats for the benefit of the slumdwellers users. On the issue of title Mr. Kadam is not in aposition to show any document or evidence of title to thesaid open portion space where the public toilet blockstructure is being reconstructed and redeveloped by theCorporation save and except agitating that the entire C.T.S.No. 418 comprises of several buildings who are members of on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docthe Plaintiff Federation and the said buildings haveapproached MHADA for the purpose of redevelopment andMHADA has granted permission to the Plaintiff forredevelopment of the said lay out subject to conditions.Thus it is the case of the Plaintiff that by virtue of the layout being sanctioned by MHADA and the offer letter beinggiven to the Plaintiff Plaintiff has become the owner of landi.e C.T.S. No. 418 which includes the open portion spacewhere Defendant No. 1 Corporation is constructing thetoilet block. Therefore it is imperative on the part ofDefendant No. 1 Corporation to obtain permission andsanction from Defendant No. 2 MHADA as well as seekpermission of the Plaintiff Federation. Apart from the abovesubmission admittedly there is no documentary evidence ofany registered conveyance of C.T.S. No. 418 in favour of thePlaintiff Federation. 6.2. Mr. Kadam submitted that most of the societies inthe lay out are owners of their respective structures as thesame has been conveyed to them by Defendant No. 2MHADA. In view thereof several societies have becomeowners of the open land appurtenant to their respectivestructures and the land beneath their respective structures.Hence the Plaintiff has become owner of C.T.S. No. 418 in on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docits entirety. Mr. Kadam finally submitted that if the toiletblock is constructed on the said open portion space it willgive a reduced return of FSI to the various flat occupiers andmembers of the societies after redevelopment. Therefore he supported the impugned order and stated that it wascorrectly passed and the same needs to be upheld bydismissing the Appeal from Order and the Interim Applicationfiled by the Corporation.7. Submissions of the parties have been on pleadedlines. Perused the material on record and pleadings. 8. In its pleadings Plaintiff has not produced anydocumentary evidence of its title to C.T.S. No. 418.Therefore to accept the case of the Plaintiff that theFederation is the owner of C.T.S. No. 418 is difficult.Although the Plaintiff has produced an offer letter andsanctioned lay out of C.T.S. No. 418 the same does notcertify that the Plaintiff is the owner of C.T.S. No. 418.Certainly the members of the societies of the PlaintiffFederation are the owners of their respective buildings andthe land beneath the buildings and the area appurtenantthereto but to claim ownership of the open space portion1 on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docwhere the original toilet block existed or any other structurestanding on C.T.S. No. 418 without any documentaryevidence of tile of transfer and conveyance from DefendantNo. 2 MHADA cannot be accepted by the Court. Thus it isproved that the Plaintiff lacks title in respect of C.T.S. No.418. 8.1. That apart the critical fact which determines thecase of the parties is the fact that construction of the presentpublic toilet block is not a fresh construction. Admittedly theold toilet block of 40 seats was already present at the site onthe open portion space in C.T.S. No. 418. It wasdilapidated unusable and therefore under the SwachhaBharat Abhiyaan Scheme after following the due process oflaw reconstruction and redevelopment of the old toilet blockis contemplated executed and implemented. Thus thecase of the Plaintiff therefore cannot be countenanced thatthe Corporation is an encroacher of C .T.S. No. 418 andstarted construction of toilet block suddenly withoutpermission from MHADA or without permission from thePlaintiff. 8.2. The construction of the toilet block is a sociallybeneficial project for the residents of Deepakwadi and1 on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docNirmalnagar under the Swachha Bharat Abhiyaan Scheme. Itis surprising that despite the old toilet block being in placetill the last monsoon the averments of the Plaintiff that theopen space has been in existence since development and layout and also used by all the societies forming part andparcel of the said lay out is on the face of record false. It isan admitted position that C.T.S. No. 418 is surrounded byhutments and the old toilet block provided succour to thesehutments. Since it was in an unusable state of affairs thesame is now being remodelled reconstructed andredeveloped for the benefit of the existing slum dwellers whowere originally using the old toilet block. The affidavit dated19.01.201 filed by the Junior Engineerof theCorporation on behalf of Defendant No.1 Corporation exhibitsthe aforesaid facts. For the purpose of reference paragraphNo. 7 of the said affidavit which is relevant is extracted asunder: "7. Without prejudice to the aforesaid contentions which are withoutprejudice to another the true facts pertaining to the present case are asfollows :(a) I say and submit that the plaintiff herein has filed the presentsuit praying therein that this Hon ble Court be pleased to granttemporary order and injunction restraining the Defendant No.1 itsofficers servants agents and person or persons claiming throughthem from carrying out any construction activities of public toilet inthe suit premises shown in red colour in the lay out plan on plotbearing C.T.S.No.418 being Exhibit "E" and further prayed that theDefendant No.1. To stay its hands and remove the partly carriedout construction activity at the suit plot of land bearing C.T.S.No.418 red portion shown in the lay out plan.1 on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.doc(b) I say and submit that oral complaints were received fromlocal Municipal Councilor of Beat 95 as he had received complaintletter from local organization naming Prabhati Nirmal SudharSamitee regarding bad condition of toilet block at Nirmalnagar.Hereto annexed and marked as Exhibit A is the copy ofcomplaint letter dt. 30.07.2019 from local organization namingPrabhati Nirmal Sudhar Samitee regarding bad condition oftoilet block at Nirmalnagar to the local Municipal Councilor ofBeat 95.(c) I say and submit that the accordingly the Defendant No.1had jointly inspected the site along with Local Councilor and localresidents from Nirmalnagar and Deepakwadi then it was observedthat the existing toilet block which had name board of MHADAAuthority stating that the said toilet is constructed through MLAfund of Hon ble MLA Shri. PrakashSawant in the year 2010 11 WC pans are in broken condition GI Doors bottoms corrugatedand damaged vent pipes got damaged at many places of said toiletblock overall it was in bad condition. Hereto annexed and markedas Exhibit B is the copy of photographs.(d) I say and submit that accordingly these Defendants hadcarried out survey at Deepakwadi by appointed CBO naming PrathaSamajik Sanstha which had reported that the total 57 numbers toiletseats were required as per the present population in that locality i.e.total 788 nos. of ladies and 873 nos of gents. Therefore theseDefendants had prepared estimate for planning designing andconstruction of RCC Community toilet block under LOT 11R inwhich it is proposed to reconstruct the above mentioned toilet inG+2 RCC structure having total nos. of 67 seats against the existing40 seats as per surveyed by appointed CBO. Hereto annexed andmarked as Exhibit C is the copy of survey conducted by CBO.(e) I say and submit that thereafter the Assistant Engineer(Maintenance Department) H East ward had submitted the saidproposal tot he Competent Authority for administrative sanction andsame was obtained u no. DMC Z III 8214 dated 19 03 2020.Hereto annexed and marked as Exhibit D is the copy ofsanction u no. DMC Z III 8214 dated 19 03 2020.(f) I say and submit that after obtaining administrative sanctionfrom Competent Authority the Defendant No.3 had issued workorder having P.O. no. 4100061615 dated 14.07.2020 to theappointed contractor M s API Civilcon Pvt Ltd for the construction ofRCC Community toilet block under LOT 11R at Nirmal Nagar inBeat 95 H East ward. Hereto annexed and marked as Exhibit Eis the copy of work order having P.O.no. 4100061615 dated14.07.2020 to the appointed contractor M s API Civilcon Pvt Ltdfor the construction of RCC Community toilet block under LOT11R at Nirmal Nagar in Beat 95 H East ward.(g) I say and submit that after the demolition of old toilets the1 on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docreconstruction work was started after monsoon that was from01.11.2020. Hereto annexed and marked as Exhibit F is thecopy of photographs of reconstruction of toilet work.(h) I say and submit that the Defendant No.1 received letterfrom Defendant No.2 i.e. MHADA dt. 09.12.2020 stating that theongoing toilet construction work is on vacant MHADA land andinformed to stop the work. Hereto annexed and marked asExhibit G is the copy of letter from Defendant No.2 i.e. MHADAto Defendant No.1 MCGM.(i) I say and submit that however the Defendant No.1 i.e.MCGM replied to Defendant No.2 i.e. MHADA on 21.12.2020 statingthat the construction work of toilet block is going on by demolishingexisting old toilet block and also as there are directions fromSecretary of Urban Development Department stating that No NOCshould be required from land holding authorities . Hereto annexedand marked as Exhibit H is the copy of the Defendant No.1 i.e.MCGM replied to Defendant No.2 i.e. MHADA on 21.12.2020.(j) I say and submit that the work of LOT 11R is under CentralGovernments SWACHHA BHARAT ABHIYANN SCHEME.However as per the clarification received from Chief Secretary ofUrban Development Department regarding NOC Permissionsrequired by the Urban Local Bodies it clearly mentioned that landholding authorities do not have the authority to disallow constructionof latrines on their land and therefore no NOC should be requiredfrom land holding authorities such as Railways Ports CRZ Environment Customs NHAI Archaeology Forest etc. forconstruction of latrinesfor census structure notedin 2011 census. Hereto annex and marked as Exhibit I is thecopy of the letter from Chief Secretary of Urban DevelopmentDepartment to the Additional Municipal Commissioner dt.21.09.2015 along with Circular dated 04.06.2015.(k) I say that the above mentioned toilet at Nirmalnagar wastaken for construction of G+2toilet block is not on openland it has being constructed by demolishing existing old 40 seatedtoilet block under same scheme. I say and submit that theDefendant No.3 reconstructing toilets block as per letter received toteh Defendant No.1 from Chief Secretary of Urban LandDevelopment Department under the scheme of the CentralGovernments SWACHHA BHARAT ABHIYANN. I say and submitthat the said construction of toilets is in the larger public interesttherefore the Plaintiff as well as Defendant No.2 cannot obstruct theconstruction of toilet blocks as it is in the interest of residents of thatlocality."8.3. From the above it is discernible that theCorporation has not encroached upon C.T.S. NO. 418 as a1 on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docrank encroacher to construct the toilet block and there is ahistory to the construction of the new toilet block whichcannot be lost sight of. Under the Brihanmumbai MahanagarPalika Swachha Bharat Abhiyaan Scheme it is contemplatedthat toilet block should be constructed in various slums ofMumbai through the concerned ward office and accordingly after following the due process of law the same has beendone. The total number of residents who would be using theredeveloped public toilet block to be constructed by theCorporation would be as follows: "Total House : 420Total Adults: 1461Female 696Male 765Total of above 10 yrs.Boys 33Girls 40Total of below 10 yrs.Boys 75Girls 52Total Public : 1661"8.4. A budget of Rs. 2 09 61 500 has been sanctionedfor this work and technically verified by the ExecutiveEngineer H East Ward and the work order has been given.Apart from the aforesaid issues it is important to understandthe need and necessity of the hour. What is significant tonote is the fact that the new toilet block will be coming up onthe same place where the old existing toilet block wasstanding. The Plaintiff had never objected to the old existing1 on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.doctoilet block which was constructed in the year 2010 11 anddetails of the same is placed on record and it is only now thatthe Plaintiff has sought to object on the ground of title andentitlement to C.T.S. No. 418. Not a single documentevidencing title or entitlement of the Plaintiff has beenplaced before the Court to support the impugned orderthough it has been admitted that Defendant No. 2 MHADA isthe owner of C.T.S. NO. 418. 8.5.The primary objective of construction of toiletblock is required to be considered. The State of Maharashtraunder the Swachha Bharat Missionhas maintainedthat the scheme is implemented with the objective ofensuring open defecation free cities and scientific collectionand processing of solid waste. The guidelines of SwachhaBharat MissionScheme of the Governmentenvisages that beneficiary households will be targetedirrespective of whether they lived in authorized unauthorized colonies of notified non notified slums underSBMscheme. When the Plaintiff does not have titleto C.T.S. No. 418 merely on the basis of the lay out it cannotclaim entitlement to the land where the old toilet blockexisted which does not belong to the Plaintiff. The old toiletblock and the land beneath it never belonged to the Plaintiff1 on 18 05 2021 on 22 03 civil ao st 9596 21 & ia st 9597 21.docFederation and was on an open portion space of C.T.S. No.418 with a definitive purpose and what has been done now isto redevelop and reconstruct the original dilapidated toiletblock at the same place. Therefore the Plaintiff cannot claimentitlement to the land beneath the original toilet block orthe area of the original toilet block or the structure of theoriginal toilet block. The case of the Plaintiff therefore fails. 9. In view of the above discussion and findings theimpugned order dated 09.03.2021 needs to be interferedwith and is quashed and set aside. The Appeal from Order(St) No. 95921 stands allowed with no order as tocost.10. In view of the Appeal from Order being allowed no orders are required to be passed in Interim Application(st) No. 95921. The same stands disposed of. 1
Confession made in police custody cannot be used in trial for offence under NDPS Act: High Court of Delhi
When no circumstantial evidence is found and person is arrested merely under Section 67 for recording of NDPS Act for confession statement, such arrest holds no legal validity, and the accused shall be granted bail. This was decided in the case of by Mohit Aggarwal vs. Narcotics Control Bureau [BAIL APPLN. 2585/2020 & Crl.M.(B) 8044/2020] Hon’ble Justice Suresh Kumar Kait in the High Court of Delhi. The facts of the case are that petitioner was business in the name of Madhav Pharma for sale, purchase and transport of various medicines while holding valid drug license under Form 20B & 21B of Drugs & Cosmetics Act, 1945. pleaded that no contraband was recovered from his possession and he has been falsely implicated in this case. He got involved into the case after secret information was given to the an Intelligence officer of the a parcel containing NRX tablets.  Thereafter, as per law, search was conducted, and drugs were seized after sending legal notice to the owner to accompany the raiding team. After a series of investigations , upon recovery of contraband and based on voluntary statements, petitioner was arrested under Sections 8,22 and 29 NDPS Act. His application for bail was dismissed and hence this petition. The counsel for petitioner submitted that the rejection of bail by the trial court is without application of mind, as the learned trial court has failed to appreciate that name of petitioner popped up. Also, the person on whose voluntary statement, the arrest was made, has not named the petitioner herein and he has retracted from his statement. Also, no other material evidence has been placed on record to establish petitioner’s involvement in the offence in question. Special Public Prosecutor contended that court shall support the rejection of bail application as the offence committed by the petitioner comes under the category of recovery of commercial quantity and since there is an embargo of Section 37 of NDPS Act. He further submitted that the analysis of call detail records of petitioner and other co-accused in this case shows criminal conspiracy for their involvement in illicit trafficking of drugs. The court considered the contentions put forth by both the parties. It observed that he solitary ground to involve petitioner in the present case is his statement made under Section 67 of NDPS Act, which he had retracted at the first opportunity available to him. The court also reproduced Section 67 of NDPS Act which empower the concerned authorities to ‘examine any person acquainted with the facts and circumstances of the case. The court referred to the case of Tofan Singh Vs. State of Tamil Nadu 2020 SCC Online SC 882 where it was held “That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.”  
IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 04.03.2021 Pronounced on: 16.03.2021 BAIL APPLN. 2585 2020 & Crl.M.(B) 8044 2020 MOHIT AGGARWAL Through: Mr. Ramesh Gupta Senior Advocate Petitioner with Mr.S.P.Singh Rathore & Mr. Shailendera Singh Advocates NARCOTICS CONTROL BUREAU ..... Respondent Through: Mr. Rajesh Manchanda Standing Counsel for NCB with Mr. Rajat Manchanda HON BLE MR. JUSTICE SURESH KUMAR KAIT In case SC No. SC 1334 2020 titled as NCB Vs. Gaurav Aggarwal & Ors petitioner is facing trial for the offences under Sections 8 22 & 29 of Narcotic Drugs and Psychotropic Substances Act 1985. Petitioner was arrested by the officials of Narcotic Control Bureauon 11.01.2020 and is in judicial custody since 11.01.2020. Vide present petition petitioner is seeking bail while claiming to be innocent and of having been falsely implicated in the present case. The present petition has been filed on the ground that petitioner is a BAIL APPLN. 2585 2020 law abiding citizen and is running business in the name of Madhav Pharma for sale purchase and transport of various medicines while holding valid drug license under Form 20B & 21B of Drugs & Cosmetics Act 1945. Petitioner has pleaded that he has maintained all records complying with all the terms and conditions of the license. Petitioner has further pleaded that no contraband was recovered from his possession and he has been falsely implicated in this case. The crux of the prosecution case as per complaint dated 09.01.2020 is that upon receipt of secret information by Chetan Sharma Intelligence Officerthat one parcel bearing Airway Bill No. D90471207 booked by one Gaurav Kumar from Agra for delivery to one Manoj Kumar at Ludhiana Punjab is lying at DTDC Khasra No. 16 06 Smalakha Kapasehra New Delhi is suspected of containing NRX tablets and if captured huge quantity of narcotic tablets can be recovered. This information was reduced into writing and was placed before Amit Kumar Tiwary Superintendent who directed Manoj Kumar Junior Intelligence Officer to constitute a team and take further action as per law. Thereafter Manoj Kumar Junior Intelligence Officer along with other members of the constituted raiding team namely Raj Kumar Maurya Intelligence Officer BAIL APPLN. 2585 2020 Ajay Kumar Speoy and N.P. Singh Driver collected the DD kit weighing machine I.O. kit and other related seizing material and seal of Narcotic Control Bureau DZU 2. The team left the Delhi office and reached at above mentioned address and met Durgesh Prasad Vigilance Senior Executive of DTDC. After introducing themselves by showing their identify cards informed about their purpose of coming and requested him and his colleague one Aas Mohd. Khan to become independent witnesses for the search and seizure proceedings to which they accepted. Manoj Kumar Junior Intelligence Officer offered these independent witnesses to search him and his team members to which they declined. Thereafter the suspected article was opened in the presence of these two independent witnesses. On opening the said parcel it was found to be jute bag on which and on the bill the name of the consignor was written as Gaurav Kumar Agra and consignee was written as Manoj Kumar Campa Cola Chowk Ludhiana 141003. 4. When the said jute bag was opened a brown card box was found which contained 50 000 tablets of Tramadol weighing 20 kg. Since these were being sent as mis declared item without bill and were in contravention of the NDPS Act therefore seizure proceedings were initiated after due BAIL APPLN. 2585 2020 procedure. A notice under Section 67 of NDPS was issued to independent witnesses Durgesh Prasad and Aas Mohd. Khan. Thereafter Manoj Kumar Intelligence Officer collected relevant information about Gaurav Kumar of Agra and Manoj Kumar of Ludhiana from DTDC office and as mentioned on Airway Bill and prepared disclosure to this effect. The disclosure statement of Manoj Kumar Yadav Intelligence Officer was placed before Amit Kumar Tiwary Superintendent who directed Sh. Sachin Kumar Intelligence Officer to take action against Gaurav Kumar of Agra and Manoj Kumar of Ludhiana as per law. On the next day i.e. 10.01.2020 after making relevant entries in the test memo form the samples seized from the office of DTDC on 09.01.2020 were sent to Chemical Engineer CRCL Pusa Road New Delhi through Sh. Yogesh Kumar Sharma Sepoy. On the same day i.e. 10.01.2020 Manoj Kumar Yadav Junior Intelligence Officer gave his seizure report to Amit Kumar Tiwary Superintendent. Consequent upon marking of aforesaid disclosure Manoj Kumar Yadav Junior Intelligence Officer on 10.01.2020 along with members of his fresh constituted raiding team reached at the office of DTDC Mathura Road Agra and Gaurav Kumar Aggarwal was called at the DTDC office by their staff members and there he was served BAIL APPLN. 2585 2020 with notice under Section 67 of NDPS Act. On the same day i.e. 10.01.2020 Gaurav Kumar Aggarwal in the office of DTDC office gave his voluntary statement under Section 67 of NDPS Act before Anand Kumar Intelligence Officer. He was fully apprised of the procedure prescribed under Section 67 of NDPS Act however Gaurav Kumar Aggarwal accepted his guilt and stated that on 06.01.2020 he had booked a parcel in the name of Manoj Kumar Campa Cola Chowk Ludhiana Punjab with DTDC courier Sikandra Road Agra containing 50 000 tablets of Tramadol which was purchased by him from Mohit Aggarwal without bill. He admitted that the said parcel contained 50 000 tablets of Tramadol which fall under contraband narcotic drugs were without prescription and bill therefore on the parcel it was mentioned “surgical items”. The said Gaurav Kumar Agarwal further stated that Mohit Aggarwal purchased these medicines from Pramod Jaipuri @ Davinder Khandelwal and gave their mobile numbers. He further disclosed that Pramod Jaipuria lives in Jaipur but his son in law Gaurav Khandelwal used to look after his business in Agra and he had a godown of drugs in Agra and that whenever Pramod Jaipuria visited Agra he lived in Hotel Chanderlok Raja Mandi. He BAIL APPLN. 2585 2020 further disclosed that he knew house and shop of Mohit Aggarwal and can identify them and their places if NCB officials ask him to accompany. Thereafter Gaurav Kumar took the raiding team to Mohit Kumar Aggarwal on whose disclosure raiding team reached the house of Doji Ram where Pramod Kumar Jaipuria @ Davinder Khandelwal was running his godown there the raiding team met one Rambir the watchman who disclosed that the godown belonged to Pramod Kumar Jaipuria @ Davinder Khandelwal who was doing business of medicines and he called him up on his mobile and informed that the NCB team has come to his godown and after hearing this Pramod Kumar Jaipuria @ Davinder Khandelwal disconnected the phone and switched off his mobile. Thereafter upon following the due procedure as per law the search was conducted at the godown and huge quantity of drugs covered under the NDPS Act was seized. On the said day itself notice under Section 67 of the NDPS Act was served upon Mohit Aggarwal. Both Gaurav Kumar Aggarwal and Mohit Aggarwal voluntarily agreed to accompany the raiding team to Delhi. On 10.01.2020 Sachin Kumar Intelligence Officer along with his raiding team headed towards office of DTDC at Ludhiana. When Manoj Kumar reached at DTDC office and asked for his parcel Sachin Kumar BAIL APPLN. 2585 2020 Intelligence Officer spoke to him and told him their purpose of coming there and on asking about the parcel Manoj Kumar stated that he is a whole seller of medicines and is involved in the sale and purchase of medicines and he accepted to have placed an order for 50 000 tablets of Taramol from Gaurav Kumar Aggarwal and that he had come to collect the parcel and also that he had all the relevant documents at his shop Tredwell Health Care and if the NCB officials accompany him to the shop he can show the entire documents. The NCB team members along with local police officials visited his shop and Manoj Kumar showed certain documents which were found to be not relating to narcotics. On verification of those documents it revealed that Manoj Kumar did not have any document with regard to sale and purchase of narcotic drugs. Upon further inspection of stock available at his shop it was further revealed that a huge quantity of different narcotic drugs were available at his shop without any relevant document in that regard and Manoj Kumar admitted to have sold a few without any prescription and bill and so the medicine stock was sealed under the provisions of NDPS Act. On that day i.e. 10.01.2020 Manoj Kumar was served with Notice under Section 67 of NDPS Act and he gave his voluntary statement before Sachin Kumar Intelligence Officer. BAIL APPLN. 2585 2020 9. On the next day i.e. 11.01.2020 petitioner Mohit Kumar Aggarwal gave his voluntary statement under Section 67 of NDPS Act before Sh.R.K. Maurya Intelligence Officer wherein he admitted his guilt and complicity for the commission of offence of this case. He stated that two three years ago he took a shop on rent and started business of medicines and Gaurav Kumar Aggarwal used to buy medicines from his shop. He further stated that Gaurav Kumar Aggarwal had purchased five boxes of Tramodol out of which one box of 50 000 tablets was bought from Pramod Jaipuria. He also admitted that he can identify Pramod Jaipuria and his godown situated in Agra. 10. For the recovered narcotic substances i.e. 50 000 tablets of Tramadol from DTDC courier weighing 20 kgs 6 64 940 tablets capsules weighing 328.82kg 1400 injections amounting to 1.4 ltrs and 80 corex amounting to 8 ltrs syrup seized from Agra & 9 900 tablets weighing 990 gms the seizure memos were prepared by the Intelligence Officers concerned and sent for examination. 11. Consequent upon recovery of contraband and on the basis of voluntary statements Mohit Kumar Aggarwal was arrested on 11.01.2020 for the offences under Sections 8 22 and 29 NDPS Act as per procedure BAIL APPLN. 2585 2020 prescribed. On 12.01.2020 Shri R.K.Maurya Intelligence Officer gave the arrest report of Mohit Kumar Aggarwal under Section 57 of the NDPS Act to Amit Kumar Tiwary Superintendent NCB DZU. 12. Petitioner‟s application for bail was dismissed by the learned trial court vide order dated 21.07.2020 while observing as under: “In present case also the present accused is found connected as per the statement of co accused he purchased the said recovered drugs from the present accused and thereafter at the instance of both the accused huge recovery of contraband was effected. The accused persons were also found connected through mobile phones. The twin conditions envisaged u S 37 are required to be satisfied before granting the bail to the accused. At this stage it cannot be held that there are no reasonable grounds exist that accused is not guilty of the offence alleged. The reasonable ground mean something more than prima facie ground. Merely the factum that there is no documentary evidence is no ground that no prima facie case is made out. The judgment of Surender Khanna as relied by the Ld. Counsel for accused is not applicable at this stage. Apex Court in case titled as Mohd. Fasrin Vs. State Crl. Appeal No. 296 2014 dated 04.09.2019 held that even if confession made to the investigating officers are held to be admissible under Section 67 of Narcotic Drugs BAIL APPLN. 2585 2020 and Psychotropic Substances Act 1985 the Court has to be satisfied that it is a voluntary statement free from any pressure and also that the accused was apprised of his rights before recording the confession. Thus it cannot be held that at this stage statement u S 67 of NDPS Act cannot be looked to see the prima facie case. At this stage this Court is not supposed to appreciate the probative value of the material on record however only has to see the prima facie case. The recovered contraband is commercial in nature thus there is definite bar u S 37 NDPS Act over the release of accused on bail however it cannot be held at this stage there are reasonable grounds to believe that accused is not guilty of the offence and is not likely to commit any offence while on bail. Considering the material on record and in view of the above discussion I found no ground to release the applicant accused Mohit Aggarwal on bail. Hence the present application is dismissed.” 13. At the hearing learned senior counsel for petitioner submitted that the rejection of bail by the trial court is without application of mind as the learned trial court has failed to appreciate that name of petitioner popped up in this case when accused Gaurav Kumar Aggarwal in his voluntary statement took petitioner‟s name and the said voluntary statement was partly BAIL APPLN. 2585 2020 recorded in Agra and partly in Delhi and accused Gaurav Kumar Aggarwal has retracted from his statement at the first available opportunity itself. Learned senior counsel pointed out that accused Gaurav Kumar Aggarwal had taken the NCB team to the shop of petitioner and the shop was searched by the NCB team but nothing incriminating was recovered from the shop. It is next contended by learned senior counsel for petitioner that petitioner was served with notice under Section 67 of NDPS Act and his statement was recorded by R.K.Maurya Intelligence Officer and the petitioner had retracted from the said statement on the first available opportunity. 15. Learned senior counsel also submitted that in the statement of Manoj Kumar of Ludhiana recorded under Section 67 of NDPS Act he has not named petitioner herein and he has retracted from his statement. It has also been pointed out that the tablets and material seized on 09.01.2020 is different from the description of medical tablets details of which have been sought by prosecution vide summon dated 27.04.2020 under Section 67 of NDPS Act and also that details of batch number and manufacturer are not mentioned therein. 16. Leaned senior counsel for petitioner vehemently submitted that apart BAIL APPLN. 2585 2020 from retracted statements of co accused involved in this case no other material evidence has been placed on record to establish petitioner‟s involvement in the offence in question. In support of petitioner‟s case reliance has been placed upon decisions of Constitution Bench of Supreme Court in Hari Charan Kurmi Anr. Vs. State of Bihar6 SCR 623 Kashmira Singh Vs. State of Madhya Pradesh AIR 1952 SC 159 Mohd. Fasrin Vs. State 2019SCC 811 and Surinder Kumar Khanna Vs. Intelligence Officer Directorate of Revenue Intelligence 8 SCC 271. Reliance has also been placed upon recent decision of Hon‟ble Supreme Court in Tofan Singh Vs. State of Tamil Nadu 2020 SCC OnLine SC 882. 18. On the other hand learned Special Public Prosecutor appearing for respondent NCB supported the impugned order dated 21.07.2020 rejecting petitioner‟s bail application and submitted that the offence committed by the petitioner comes under the category of recovery of commercial quantity and since there is an embargo of Section 37 of NDPS Act the present petition deserves to be dismissed. Reliance was placed upon decision of Hon‟ble Supreme Court in State of Kerala & Ors. Vs. Rajesh & Ors.12 SCC BAIL APPLN. 2585 2020 19. Learned Special Public Prosecutor appearing for respondent NCB further submitted that petitioner has tendered his voluntary statement under Section 67 of NDPS Act before the competent officer wherein he has admitted his guilt. He further submitted that the analysis of call detail records of petitioner and other co accused in this case shows criminal conspiracy for their involvement in illicit trafficking of drugs. It was next submitted that statement tendered by petitioner under Section 67 of NDPS Act is admissible in evidence and has evidentiary value as per NDPS Act. Learned Special Public Prosecutor submitted that reliance placed upon various afore noted decision is of no help to the case of petitioner as in those cases the aspect of statement of accused recorded has not been dealt with. Thus dismissal of the present petition is sought by Special Public Prosecutor appearing for respondent NCB. 21. The rival contentions raised by both the sides have been considered. 22. As per the prosecution case 50 000 tablets of Tramadol weighing 20 kgs 6 64 940 tablets Capsules weighing 328.82kg 1400 injections amounting to 1.4 ltrs and 80 corex amounting to 8 ltrs syrup & 9 900 tablets weighing 990 gms were recovered in this case. It is an admitted case of both the sides that name of petitioner popped BAIL APPLN. 2585 2020 up in this case in the statement made by co accused Gaurav Kumar Aggarwal. It is also an admitted case that at the behest of Gaurav Kumar Aggarwal the NCB team visited the shop of petitioner and upon search nothing incriminating was recovered. The solitary ground to involve petitioner in the present case is his statement made under Section 67 of NDPS Act which he had retracted at the first opportunity available to him. 24. Pertinently Section 67 of NDPS Act reads as under: “67. Power to call for information etc. —Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may during the course of any enquiry in connection with the contravention of any provisions of this Act — a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder b) require any person to produce or deliver any document or thing useful or relevant to the enquiry c) examine any person acquainted with the facts and circumstances of the case.” 25. A perusal of petitioner‟s statement recorded under Section 67 of NDPS Act on 09.01.2020 reveals that Gaurav Kumar Aggarwal used to buy medicines from his shop and on the said day i.e. 09.01.2020 he along with BAIL APPLN. 2585 2020 NCB team came to his shop and introduced him to them and they told him that they had come to inquire about 50 000 tramadol tablets which were sent by Gaurav Kumar Aggarwal to Manoj in Ludhiana and he admitted that a few days ago he had purchased 05 boxes of tramadol tablets from Pradeep Jaipuria illegally which were bought by Gaurav Kumar Aggarwal out of which he had returned 03 boxes due to money crisis and those 03 boxes he had returned to Pradeep Japuria. In his statement petitioner admitted that he along with Gaurav Kumar Aggarwal had escorted the NCB team to the godown of Pradeep Jaipuria. Besides petitioner has admitted that on two three occasions he had sold narcotic tablets purchased from Pradeep Jaipuria to Gaurav Kumar Aggarwal for extra amount of Rs.2 000 . 26. The petitioner‟s statement was recorded for the second time on 10.01.2020 at the NCB office however its copy has not been placed on record. Petitioner had retracted from his statements on the first available opportunity made available to him. 27. Recently the Hon‟ble Supreme Court by majority view while answering to a reference with regard to the evidentiary value of Section 67 of NDPS Act in Tofan Singhhas held as under: “158. We answer the reference by stating: BAIL APPLN. 2585 2020 That the officers who are invested with powers under section 53 of the NDPS Act are “police officers” within the meaning of section 25 of the Evidence Act as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act and cannot be taken into account in order to convict an accused under the NDPS Act. ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.” In the aforesaid view of the matter the Hon‟ble Supreme Court sent back the appeals and special leave petitions to the Division Benches of the Hon‟ble Supreme Court to hear them in the light of aforesaid view. 29. Reciting a dissenting view in Tofan Singh Hon‟ble Ms. Justice Indira Banerjee observed that any statement made or document or other thing given to an authorised officer referred to in Section 42 of the NDPS Act or an officer invested under Section 53 with the powers of an Officer in Charge for the purpose of investigation of an offence under the said Act in the course of any inquiry investigation or other proceeding may be tendered in evidence in the trial of an offence under the said Act and proved in accordance with law. The Hon‟ble Judge also observed that she BAIL APPLN. 2585 2020 was unable to agree that a statement recorded under Section 67 of the NDPS Act cannot be used against an accused offender in the trial of an offence under the NDPS Act. On this aspect the aforesaid Bench of the Hon‟ble Supreme Court observed as under: “262. An officer empowered under Section 53 with the powers of an Officer in Charge of a Police Station for the investigation of an offence also has the power to make an inquiry. This is clear from the language used in Section 53A(1) of the NDPS Act. The words “A statement made and signed by a person before any officer empowered under Section 53 for the investigation of offences during the course of any inquiry or proceedings by such officer” clinches the issue. The officer empowered under Section 53 with the power of an Officer in Charge of a Police Station can obviously make an inquiry within the meaning of Section 67 to find out whether there has been any contravention of the NDPS Act. A statement made before such an officer in course of any inquiry or other proceeding which is taken down in writing and signed by the person making it may in certain circumstances be relevant for the purpose of proving in any prosecution for an offence under the NDPS Act the truth of the facts it contains.” 30. Further on the value of a confession made by a person Hon‟ble Ms.Justice Indira Banerjee held as under: BAIL APPLN. 2585 2020 “308. A confession made by an accused person is irrelevant in a criminal proceeding if it appears to the Court that the confessions may have been elicited by any inducement threat or promise from a person in authority and sufficient in the opinion of the Court to give the accused person reasonable grounds for supposing that by making the confession he would gain any advantage or avoid any disadvantage in respect of proceedings against him. 309. As observed by this Court the State of Rajasthan v. Raja Ram “confessions may be divided into two classes judicial and extra judicial. Judicial confessions are those which are made before a Magistrate or a Court in the course of judicial proceedings. Extra judicial confessions are those which are made by the party elsewhere than before a Magistrate or Court. Extra judicial confessions are generally those that are made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the Code or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. As to extra judicial confessions two questions arise :were they made voluntarily andare they true ”. xxx xxx xxx BAIL APPLN. 2585 2020 “An extra judicial confession if voluntary and true and made in a fit state of mind can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession like any other evidence depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra judicial confession is a weak type of It would depend on the nature of circumstances the time when the confession was made and the credibility of the witnesses who speak to such a xxx xxx xxx “If the evidence relating to extra judicial confession is found credible after being tested on the touchstone of credibility and acceptability it can solely form the basis of conviction. The requirement of corroboration as rightly submitted by the learned counsel for the respondent accused is a matter of prudence and not an invariable rule of law.” 31. With afore noted pertinent observations Hon‟ble Ms. Justice Indira Banerjee held that provisions of Cr.P.C. do not apply to an inquiry investigation under the NDPS Act except to the limited extent provided in BAIL APPLN. 2585 2020 Section 50(5) and 51 of the Act. It was further held that “the decision of Hon’ble Supreme Court in Raj Kumar Karwalwhich has reaffirmed the verdict of three Constitution Benches does not require reconsideration and nor does Kanhaiyalalrequire reconsideration.” 32. Keeping in mind the observations made in Tofan Singhand upon a bare reading of petitioner‟s statement recorded on 09.01.2020 it is apparent that petitioner has not admitted that he was a party to the transaction or in possession of recovered and seized contraband substance. Though he has admitted in custody to have illegally traded the tablets under the NDPSbut since no recovery has been affected from his person or shop in this case prosecution can only attempt to prove its case on the basis of circumstantial evidence that is to say by corroborating the call detail record or other material available and reliance cannot be solely placed upon disclosure statement of co accused to keep him behind bars especially when the recoveries of the instance were before the arrest of the petitioner and the statement given by co accused has been retracted at the first available opportunity. 33. Respondent NCB has placed reliance upon Hon‟ble Supreme Court‟s decision in State of Kerala Vs. Rajesh (ii)and Section 29 of NDPS Act and the High Court without noticing Section 37 of the NDPS Act granted bail to the accused on parity basis with other co accused in that case who were already on bail. The Hon‟ble Supreme Court observed that “the High Court had failed to record a finding under Section 37 of the NDPS which is a sine qua non for granting bail to the accused under the NDPS Act”. Appeal preferred by the prosecution was allowed and order of the High Court was set aside and bail granted to the accused was cancelled. 34. Pertinently the provisions of Section 37 of NDPS Act read as under: “37. Offences to be cognizable and non bailable — 1) Notwithstanding anything contained in the Code of Criminal Procedure 1973— every offence punishable under this Act shall be a) cognizable b) no person accused of an offence punishable for 2[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless — i) the Public Prosecutor has been given an opportunity to oppose the application for such release and BAIL APPLN. 2585 2020 where the Public Prosecutor opposes application 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. 2) The limitations on granting of bail specified in clauseof sub sectionare in addition to the limitations under the Code of Criminal Procedure 1973 or any other law for the time being in force on granting of bail.]” In the case in hand investigation is said to be complete. As per impugned order dated 21.07.2020 complaint charge sheet has already been filed however besides confessional statement recorded under Section 67 of NDPS Act no other material is forthcoming. Since no incriminating material was recovered at the instance of petitioner this strengthens the view of this Court that petitioner is not likely to commit offence if released on bail. Moreover nothing stops the prosecution to prove its case on merits during trial. In the aforesaid view of the case requirements under Section 37 of NDPS Act are fulfilled. In the peculiar facts and circumstances of the case without commenting on the merits petitioner is directed to be released forthwith on his furnishing personal bond in the sum of Rs.25 000 and one surety in the like amount to the satisfaction of trial court duty magistrate subject to the BAIL APPLN. 2585 2020 condition that: Petitioner shall not directly or indirectly tamper with the evidence or influence the witnesses of the case ii) Petitioner shall provide his mobile number to the IO and ensure that he is reachable. 37. The petition is allowed in aforesaid terms. Pending application also 38. A copy of this order be transmitted to the Jail Superintendent concerned and trial court for information and necessary compliance. SURESH KUMAR KAIT) JUDGE stands disposed of. MARCH 16 2021 BAIL APPLN. 2585 2020
A cheque is issued for consideration until the contrary is proved : Delhi High Court
Revisional power of the High Court cannot be equated with the power of an appellate court. The High Court bench consisting of J. Subramonium Prasad decided upon the power of the High Court and the burden of proof under Section 138 of the Negotiable Instruments Act, 1881, in the matter of G. D. Kataria v. AVL Leasing & Finance Ltd. [CRL. REV. P. 774/2018 & CRL. M. (B). 1392/2018]. The respondent financed a bus for the petitioner by giving a loan. In discharge of the liability the petitioner handed over three cheques drawn on Bank of Punjab Limited. When the respondent deposited these cheques they were returned as unpaid/dishonoured for the reason “Funds Insufficient”. Notice under Section 138 of the Negotiable Instruments Act was issued by the respondent asking the petitioner to make the payment within 15 days of the receipt of the notice. Upon failure of thus, a complaint was filed before the court of the Metropolitan Magistrate who convicted the accused. This was challenged before Additional Sessions Judge who imposed simple imprisonment for a period of 2 months along with a fine of Rs. 13 Lakhs. The counsel for the petitioner contended that the failure on part of the respondent to submit their books of accounts was fatal to the case of the respondent. He contended that the courts below ought to have drawn adverse inference against the respondent when the respondent deliberately did not produce the books of accounts even though the respondent had undertaken to produce the books of accounts. Relying on the case of M. S. Narayana Menon v. State of Kerala [(2006) 6 SCC 39], he argued that it was for the complainant/respondent herein to produce the books of accounts and without producing the books of accounts it cannot be said that there was a debt due and subsisting and the cheques have been issued for discharge of debt.
IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.REV.P. 774 2018 & CRL.M.(B).1392 2018 Date of decision: 03rd February 2021 G D KATARIA ..... Petitioner Through Mr. Medhanshu Tripathi Advocate IN THE MATTER OF: AVL LEASING & FINANCE LTD Respondent Through Mr. Anuj Soni Advocate HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. The instant revision petition is directed against the order dated 27.08.2018 passed by the Additional Session Judge Special JudgeWest District Tis Hazari Court Delhi in Criminal Appeal being CA No. 153 2018 whereby the Additional Session Judge has dismissed the appeal and has affirmed the order dated 26.04.2018 passed by the Metropolitan Magistrate in CC No.8073 2016 convicting the petitioner herein for offences punishable under section 138 of Negotiable Act 1881(Provisio) of N.I. Act read with Section 357(1)(3) of Cr.P.C. The facts leading to the instant revision petition are as under: a) The respondent is a leasing and financing company. The respondent financed a bus for the petitioner by giving a loan. In discharge of the liability the petitioner handed over three cheques drawn on Bank of Punjab Limited. Rajouri Garden Delhi bearing number 327226 dated 13.04.2003 for an amount of Rs. 1 lakh number 327227 dated 28.07.2003 for an amount of Rs. 3 lakhs and number 327338 dated 27.07.2003 for an amount of Rs. 2 84 000 in favor of the respondent. b) When the respondent deposited these cheques they were returned as unpaid dishonored reason "Funds c) Notice as required under Section 138 of the N.I. Act was issued by the respondent calling upon the petitioner herein to make the payment within 15 days of receipt of the notice. The payment was not received and a complaint was filed under Section 138 of the N.I. Act before the court of the Metropolitan Magistrate West District Tis Hazari Court d) Before the Metropolitan Magistrate it was contended by the petitioner herein that he took a loan for purchasing a bus with registration number DL1 PA 5798 and at the time of taking the loan 36 blank signed cheques were given as security towards CRL.REV.P. 774 2018 the repayment of the loan. It is stated that in October 2002 the petitioner herein handed over the vehicle to the respondent company for getting the vehicle converted to CNG and entered into a new lease agreement but neither was the said vehicle returned to the petitioner herein nor were the accounts related to the hire purchase agreement settled. It was stated before the Metropolitan Magistrate that as the vehicle is in the possession of the respondent herein and the cheque given by the petitioner accused had been misused. It was stated before the Metropolitan Magistrate that the bus No.DL1 PA 5798 was re possessed by the respondent. It was also stated the a No Objection Certificate dated 30.08.2003 along with form 35 was issued by the issuing authority and the respondent herein had given a No objection with regard to the bus bearing No.DL1 PA 5798. The Metropolitan Magistrate after examining the documents found that the deposition of the accused petitioner herein is inconsistent with the evidence on record. The Metropolitan Magistrate also found that in relation to bus number DL1 PA 5798 accused petitioner herein had deposed complainant respondent herein has already sold the bus but officer from Transport Department Delhi placed on record the RC which shows that the accused petitioner herein is the owner of the bus. As per the RC bus number DL1 PA 5798 is registered in the name of the accused and NOC has been issued by hypothecatee on 10.09.2003. The Metropolitan CRL.REV.P. 774 2018 Magistrate held that the averments of the accused petitioner herein in relation to the sale of this vehicle despite payment of 13 installments is incorrect as the ownership of the vehicle still vests with the accused petitioner herein. g) The Metropolitan Magistrate after examining the documents came to the conclusion that this case pertains to the bus bearing registration number DL1 P 7279. h) The Metropolitan Magistrate found that the accused petitioner herein and the complainant respondent herein had dealings in relation to two buses. It was found that the petitioner had another bus bearing No. DL1 P 7279 which was under the loan of the Motor & General Finance Ltd. Company in the year 1995. The loan was taken over by the respondent company. The Metropolitan Magistrate held that AR of the complainant deposed that a sum of Rs. 8 Lakhs was lent to the accused in the year 2001 wherein certain payments were made to the accused and the remaining payment was made to MGF India Limited. The Metropolitan Magistrate held that this was consistent with the testimony of the accused wherein he has admitted that he cleared his loan with MGF India Limited in 2001 CW 1 also deposed that one bus was in the name of the accused and the other bus was financed and the amount deposited by the complainant company was against the bus which was already in the name of the accusedThe Metropolitan Magistrate therefore held accused petitioner herein has not been able to rebut the presumption that the cheques had been paid for discharge of The Metropolitan Magistrate by an order dated 26.04.2018 convicted the petitioner herein for offences under Section 138 any liability. of the N.I. Act. m) The above said judgment was challenged before the Additional Session Judge in CA No. 153 2018. After going through the records the Additional Session Judge upheld the judgment dated 02.07.2018 passed by the Metropolitan Magistrate West District Tis Hazari Courts Delhi in CC No.8073 2016 convicting the petitioner and also the order on sentence dated 12.07.2018 passed by the Metropolitan Magistrate West District Tis Hazari Courts Delhi in CC No.8073 2016 imposing simple imprisonment for two months period and fine of Rs. 13 Lakhs. n) The Additional Session Judge after going through the material on record found that the three cheques were issued by the CRL.REV.P. 774 2018 petitioner towards legally enforceable debt due to respondent. Heard Mr. Medhanshu Tripathi learned counsel appearing for the petitioner and Mr. Anuj Soni learned counsel appearing for the respondent. 4. Mr. Medhanshu Tripathi learned counsel for the petitioner contends that the failure on part of the respondent to submit their books of accounts is fatal to the case of the respondent. He would contend that the courts below ought to have drawn adverse inference against the respondent when the respondent deliberately did not produce the books of accounts even though the respondent had undertaken to produce the books of accounts. 5. Mr. Medhanshu Tripathi learned counsel for the petitioner would rely on the judgment of the Supreme Court in M.S. Narayana Menon v. State of Kerala reported as 6 SCC 39 to contend that it was for the complainant respondent herein to produce the books of accounts and without producing the books of accounts it cannot be said that there was a debt due and subsisting and the cheques have been issued for discharge of debt. 6. Mr. Tripathi would further contend that the Metropolitan Magistrate had erred in relying upon the improved testimony of the respondent company. He would further contend that the vehicle had been re possessed and sold and therefore nothing was due and payable. On the other hand Mr. Anuj Soni learned counsel for the respondent would support the support the judgments of the courts below to contend that all the points now being raised have already been dealt with by the Metropolitan Magistrate in his judgment and which has not been disturbed by the appellate Court. Section 118 of the N.I. Act raises a presumption that a cheque is issued for consideration until the contrary is proved. It is well settled CRL.REV.P. 774 2018 position that the initial burden in this regard lies on the accused to prove the non existence of debt by bringing on record such facts and circumstances which would lead the court to believe the non existence of debt either by direct evidence or by preponderance of probabilities. In the present case other than mere ipse dixit of the petitioner that there was no debt due and payable nothing is on record to show that the cheques were not issued for discharge of liability for the bus. The second bus bearing registration No. DL 1 PA 5798 stood in the name of the accused. There is nothing to show that the liability for the first bus bearing registration No. DL1 P 7279 has been discharged. 10. The purpose of introducing Section 138 of the N.I. Act was to bring sanctity in commercial transactions. In Dalmia CementLtd. v. Galaxy Traders & Agencies Ltd. reported as 6 SCC 463 the Supreme Court observed as under: to negotiable “3. The Act was enacted and Section 138 thereof incorporated with a specified object of making a special provision by incorporating a strict liability so far as the cheque a negotiable instrument is concerned. The law law of commercial world legislated to facilitate the activities in trade and commerce making provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily passable from one person to another. In the absence of such instruments including a cheque the trade and commerce activities in the present day world are likely to be adversely affected as it is impracticable for the trading community to carry on with it the bulk of the currency in force. The negotiable instruments are in fact the instruments of credit being convertible on account of legality of being negotiated and are easily passable from one hand to CRL.REV.P. 774 2018 another. To achieve the objectives of the Act the legislature has in its wisdom thought it proper to make such provisions in the Act for conferring such privileges to the mercantile instruments contemplated under it and provide special penalties and procedure in case the obligations under the instruments are not discharged. The laws relating to the Act are therefore required to be interpreted in the light of the objects intended to be achieved by it despite there being deviations from the general law and the procedure provided for the redressal of the grievances to the litigants. Efforts to defeat the objectives of law by resorting to innovative measures and methods are to be discouraged lest it may affect the commercial and mercantile activities in a smooth and healthy manner ultimately affecting the economy of the country.” 12. Two courts below have looked into the entire records of the case and have come to the conclusion that the cheques have been given in discharge of debt. The petitioner only seeks to take advantage of the fact that the respondent did not produce the books of accounts to rebut the initial presumption which was for the petitioner to show that the amount of loan taken by him and the amount that should be repaid in order to discharge the initial burden and the petitioner has failed to discharge the initial onus of 13. The scope of the revision petition under Sections 397 401 Cr.P.C. read with Section 482 Cr.P.C. is extremely narrow. In State v. Manimaran reported as 13 SCC 670 the Supreme Court observed as under: “16. As held in State of Kerala v. Puttumana Illath Jathavedan Namboodiri2 SCC 452 : 1999 SCC275] ordinarily it would not be appropriate CRL.REV.P. 774 2018 In State of Haryana v. Rajmal reported as 14 SCC 326 the Supreme Court observed as under: the courts below recorded for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by Magistrate as well as by the Sessions Court in appeal. the concurrent findings of fact in our view the High Court was not right in interfering with the concurrent findings of fact arrived at by the courts below and the impugned order cannot be sustained.” in upsetting A.P. v. Pituhuk the exercise of the High Court “14. In State Rao9 SCC 537 : 2001 SCC 642] this the revisional Court held jurisdiction of concurrent finding of the facts cannot be accepted when it was without any reference to the evidence on record or to the finding entered by the trial court and the appellate court regarding the evidence in view of the fact that revisional jurisdiction is basically supervisory in nature. It has been also held by this Court in Amar Chand Agarwalla v. Shanti Bose4 SCC 10 : 1973 SCC Cri) 651 : AIR 1973 SC 799] that the revisional jurisdiction of the High Court under Section 439 CrPC is to be exercised only in an exceptional case when there is a glaring defect in the procedure or there is a manifest error on a point of law resulting in a flagrant miscarriage of justice. Report.)” In State of Kerala v. Puttumana Illath Jathavedan Namboodiri reported as 1999) 2 SCC 452 the Supreme Court observed as under: “5. Having examined the impugned judgment of the High CRL.REV.P. 774 2018 Court and bearing in mind the contentions raised by the learned counsel for the parties we have no hesitation to come to the conclusion that in the case in hand the High Court has exceeded its revisional jurisdiction. In its revisional jurisdiction the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness legality or propriety of any finding sentence or order. In other words the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily therefore it would not be appropriate for the High Court to re appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid standpoint we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by re appreciating the oral evidence. The High Court also committed further error in not examining several items of evidence relied upon by the Additional Sessions Judge while confirming conviction of the respondent. In this view of the matter the impugned judgment of the High Court is wholly unsustainable in law and we accordingly set aside the same. The conviction and sentence of the respondent as passed by the Magistrate and affirmed by the Additional Sessions Judge in appeal is confirmed. This appeal is allowed. Bail bonds furnished stand cancelled. The respondent must surrender to serve the sentence.” CRL.REV.P. 774 2018 14. Having gone through the material on record this court does not find that the judgment of the courts below require any interference. The learned counsel for the petitioner has not been able to demonstrate that the findings of the courts below are perverse. The fact that the respondent did not file the books of accounts is not fatal to the case of the respondent. It was open to the petitioner to produce his books of accounts to rebut the presumption and bring out a prima facie case that there was no debt due and payable on the date the cheques were dishonoured. The petitioner has not been able to discharge the initial burden on him to rebut the presumption under Section 118 of the N.I. Act. The fact that the petitioner took financial assistance from the respondent is admitted. The petitioner has not been able to show as to how there was no subsisting debt on the date when the cheques were dishonoured due to insufficiency of funds. 15. No case has been made out which would warrant interference under 16. Accordingly the revision petition is dismissed along with the pending Section 397 401 Cr.P.C. application. FEBRUARY 03 2021 SUBRAMONIUM PRASAD J. CRL.REV.P. 774 2018
Bail denied, prima facie materials showing involvement in deep-rooted conspiracy to cause such a huge loss to the Bank: Orissa High Court
Granting bail to the petitioner in economic offences of this nature would be against the larger interest of public and State as it involves criminal misappropriation and cheating of huge amount of public money and there is also reasonable apprehension of tampering with the witnesses. This was said in the case of Ashwini Kumar Patra vs Republic Of India [BLAPL No.214 of 2021] by Justice S.K. Sahoo in the High Court of Orissa.  The facts of the case date back to  07.01.2021 when the petitioners application for bail in the Court of learned Special Judge, CBI was rejected mainly on the ground that prima facie the petitioner appears not only to have illegally processed the housing loans in favour of the borrowers by abusing their official positions but also submitted invalid/ false post- sanction inspection reports in the Bank and that if the petitioner is enlarged on bail, there would be every chance of his influencing the prosecution witnesses and tampering with the prosecution evidence. Assailing the order of the Special Judge, the petitioners filed an application under Section 439 of Cr.P.C. for grant of bail. Petitioner contended that the petitioner’s job in the capacity of Assistant Marketing Manager was not to verify the documents provided by the builders rather it was the duty of the Manager, Advance and Chief Manager of the Bank to scrutinize such documents and to obtain prior approval of plan before disbursing the loan amounts. Secondly, it was contended that since investigation has been completed and the petitioner is a local man and he has been dismissed from the services of the Bank, there is no chance of his absconding or tampering with the evidence, therefore, the bail application may be sympathetically considered. Learned Special Public Prosecutor contended that the petitioner has mentioned false or fictitious statements while processing the credit information and net-worth assessment of the borrowers in the loan proposals, which clearly reflects his malafide intention of concealing the facts and deviating the procedures of the Bank. Secondly, it was contended that the quantum of misappropriation amount being very high and the petitioner being a local person, he is very likely to influence and gain over the witnesses in case he is enlarged on bail and therefore, the bail application should be rejected. The Court referred to the case of Prahalad Singh Bhati -Vrs.- NCT, Delhi [(2001) SCC 674] wherein it was said that “While granting the bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or state and similar other considerations”
IN THE HIGH COURT OF ORISSA CUTTACK BLAPL No.2121 In the matter of an application under section 439 of the Code of Criminal Procedure in connection with R.C. Case No.09(A) of 2019 pending in the Court of Special Judge CBI Court No.I Ashwini Kumar Patra Petitioner Mr. Devashis Panda versus Republic of India Opposite Party Mr. Sarthak Nayak Special Public ProsecutorS.K. SAHOO J. JUSTICE S.K. SAHOO Date of Hearing : 23.04.2021 Date of Judgment: 26.04.2021 The petitioner Ashwini Kumar Patra has filed this application under section 439 of Cr.P.C. for grant of bail in connection with R.C. Case No.09(A) of 2019 pending in the Court of learned Special Judge CBI Court No.I Bhubaneswar in which charge sheet has been submitted under sections 409 420 and 471 read with section 120 B of the Indian Penal Code and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act 1988 namely Shri Bhubaneswar Mohapatra the then Chief Manager Shri Ashwini Kumar Patra the then Marketing Officer and Shri Rajesh Kumar Patanga the then Manager entered into a criminal conspiracy with three private builders seven borrowers of housing loan and some unknown bank officials in the year 2017 and by abusing their respective official positions housing loans were sanctioned in favour of the borrowers on the basis of false fictitious documents information including fake fictitious ITRs defective KYC 3 documents information and without verifying the documents by violating the guidelines of the Bank. It is also alleged that the petitioner along with other accused Bank officials without obtaining approved plan legal scrutiny search report etc. released the entire loan amounts in favour of the accused builders on behalf of the borrowers without ensuring completion of construction of the houses BJB Nagar 02 Suryanagar 02 & Jaydeb Vihar 03 in Bhubaneswar reportedly sold by builders GDS Builders Pvt. Ltd. Surnag Builders Pvt. Ltd. and Mrs. Puspanjali Patro). It is also alleged that the disbursed loan amounts were allegedly diverted by the accused builders for other purposes and such act on the part of the petitioner along with others have caused undue wrongful loss to the tune of Rs.5 19 16 340 as on 31.05.2019 to the Bank and corresponding wrongful gain to themselves. The Superintendent of Police CBI ACB Bhubaneswar on receipt of the written complaint and on prima facie finding that the complaint disclosed commission of cognizable offence punishable under sections 120 B 420 467 468 and 471 of the Indian Penal Code and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act 1988 registered the same as R.C. No. 09(A) 2019 BBS dated 01.07.2019 and on getting prior approval from the competent authority of the Bank as per section 17 A of the Prevention of Corruption Act 1988 for initiating CBI investigation against the bank officials into the alleged matter 4 proceeded with the investigation. In course of investigation the investigating officer recorded the statements of the witnesses seized the incriminating documents and arrested the petitioner along with others and submitted charge sheet against the petitioner for commission of offences under sections 409 420 and 471 read with section 120 B of the Indian Penal Code and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act 1988 and the allegation that the petitioner conspired with the then Chief Manager of the Bank builder Uma Shankar Patro three other private builders and seven borrowers of housing loans and misappropriated Rs.5 19 16 340 and that all the loans were processed recommended and inspected by the petitioner is not at all correct. He further submitted that out of 6 twenty five charge sheet witnesses who are officials of the Bank I.T.Os Insurance officials GEQD and CBI I.O. only one private charge sheet witness i.e. C.S.W. No.19 namely Aswin Kumar Patro is related to the co accused Uma Shankar Patro who is to prove that all borrowers are either workers known persons relatives of the workers in GDS Builders Pvt. Ltd. or Dwaraka Jewellers in which the builder co accused is a partner. It is further submitted that since investigation has been completed and the petitioner is a local man and he has been dismissed from the services of the Bank there is no chance of his absconding or tampering with the evidence therefore the bail application may be sympathetically considered. Mr. Sarthak Nayak learned Special Public Prosecutor CBI on the other hand filed his written note of argument along with copy of chargesheet and vehemently opposed the prayer for bail and argued that the petitioner had sourced processed and recommended the housing loan accounts in the names of ten borrowers on the basis of fake documents being in conspiracy with other co accused persons. The petitioner initiated the disbursement of the loan amounts from the respective housing loan accounts of the accused borrowers to the bank accounts of the accused builders without obtaining the consent of the borrowers and flouting the bank norms prescribed in respect of disbursement of the loans. It is further contended that the petitioner had made recommendations for the sanction of the loans mentioning the false net worth of the accused borrowers without obtaining 7 supporting documents of assets and liabilities misleading the sanctioning authority for which the Bank suffered a loss to the tune of Rs.2 33 71 963 and much work was pending at the construction site on date. Learned counsel further submitted that the Bank initiated disciplinary action against the petitioner and dismissed him from services of the Bank on finding his complicity and involvement in the alleged act of conspiracy. It is further submitted that though as per the Bank’s circular instructions it is mandatory to forward all the loans involving the mortgage of the property to a Centralized Processing Centre which is functioning in the premises of the Regional Office of the Bank but the petitioner processed the loans and recommended for sanction which was ultimately sanctioned and disbursed directly in the branch thereby entering into a criminal conspiracy. It is contended that the Bank’s Master Circular of Home Loans reveals that all the documents submitted by the borrowers need to be scrutinized verified and checked for their genuineness by the officers of the Bank 8 who will collect and process the loan proposals but in the case in hand all the loan proposals were processed by the petitioner himself in his user name through the Bank’s loan processing software and thus it is obvious that he should collect all the required documents check for their genuineness either directly or logically as per the Bank’s circular before making recommendation for sanction. It is further contended that the petitioner has not even obtained any such documentary proofs towards the assets and liabilities of the borrowers but had mentioned false or fictitious statements while processing the credit information and net worth assessment of the borrowers in the loan proposals which clearly reflects his malafide intention of concealing the facts and deviating the procedures of the Bank. Learned counsel for the CBI further urged that the quantum of misappropriation amount being very high and the petitioner being a local person he is very likely to influence and gain over the witnesses in case he is enlarged on bail and therefore the bail application should be rejected. four flats were in ready to occupy condition but three flats in the names of borrowers namely Smt. Swapna Sikha Shri Manoj Kumar Patra and Shri Ajay Kumar Parida were partially constructed but full loan amounts to the builder from the three loan accounts of the aforesaid borrowers were disbursed by the accused Bank officials. The that 9 further revealed that the aforesaid post sanction inspection reports in the case of three flats located at B. K. Sastry Enclave IRC Village and Jayadev Vihar Bhubaneswar are invalid false as the completed buildings mentioned in the said inspection reports had not yet completed and that full amount of the sanctioned limits in the loan accounts of the borrowers was disbursed by the Bank to the bank account of the company M s. GDS Builders Pvt. Ltd. through transfer mode. The investigation further revealed that Sri Bhubaneswar Mohapatra the then Chief Manager of the Bank had full knowledge of all the disbursements made in the alleged housing loan accounts of the accused borrowers to the bank accounts of the accused builders sellers as he along with the petitioner had signed initialed the respective disbursement vouchers and the signatures initials of Sri Bhubaneswar Mohapatra and the petitioner have been duly identified by the other bank officials who were acquainted with the same and are the chargesheet witnesses in the case. The investigation further revealed that no consent of the borrowers was obtained before debiting from their loan accounts and all the seven housing loan proposals were processed by the petitioner being the Asst. Manager of the Bank and Sri Bhubaneswar Mohapatra the then Chief Manager had sanctioned the loan in the capacity of Branch Manager basing on the recommendations of the petitioner. In the chargesheet it is mentioned that the Bank suffered a total loss of Rs.2 33 71 963 in such 10 act of conspiracy and cheating with a corresponding wrongful gain to the accused persons. So far as the accusation against the petitioner is concerned in the chargesheet it has been summarized as under: a) Non observance of due diligence: amount payments. The petitioner has not observed due diligence mandated by the circular instruction of the Bank) in respect of margin money KYC occupation net worth of the borrower property being purchased as well as income source of the borrower. The petitioner has not obtained any such document to show the payment of the margin money by the borrower. The bank account statements of the borrowers at no point of time has an amount more than Rs.10 000 which shows that they could not afford for such high b) Preparation of actually conducting the inspection: inspection reports without The petitioner has not followed the guidelines of the Bank while conducting the inspections. The pre sanction inspection reports are prepared sitting at the branch itself as admitted by the processing officer during investigation) without actually conducting the inspection. Further the details of occupation and net worth of the borrowers mentioned in the inspection reports are found false. The statements mentioned in the post sanction inspection reports are also found false as no such building structures are found at the site on date. c) Non forwarding of the loan proposals to ULP and sanction at the branch itself: 11 As per the circular instructions of the Bank issued during 2015 the petitioner should forward the loan proposals involving mortgage of property to a special designated loan processing centre Union Loan Pointand should not sanction at the branch without specific permission of the Regional Head. The petitioner has sanctioned all the loans at the branch itself ignoring the instructions of the Bank as specific permission of the Regional Head to sanction the loans is not held on record. Further the ULP is functioning in the premises adjacent to the branch in the same compound. The branch has to conduct due diligence part and submit all the relevant documents to ULP for necessary processing and sanction of the loans. This shows the willful ignorance towards the guidelines of the Bank and involvement of the petitioner in the criminal conspiracy with the builders and others. d) Disbursement of the loans without ensuring the progress of the constructions: The petitioner has not ensured the progress of the constructions and authorized for disbursement of the loan amounts violating the Bank’s instructions in respect of the disbursement of the loans. Further no such documents like consent of the borrower request of the builder are held on record. All the post sanction reports are found false. The processing officer has mentioned in the post sanction reports that a two storied building structure is completed in the project site and finishing work is going on but actually no such structures are found at the site as on date and the statements mentioned in the inspection reports are all false. The petitioner in spite of ensuring the 12 correctness of the reports and progress of the work has authorized for disbursal of the loans. The petitioner has also ignored to apply his mind while disbursing the loans because logically it is not possible to complete the construction within a period of three to eight weeks. But the loans are all disbursed within a period of three or eight weeks from the date of sanction. e) Processing of loans based on false income and net worth of the borrowers: The circular instructions of the Bank mandates the branch officers officials to ensure the genuineness of the income and net worth of the borrowers by supporting documents like Bank statements salary slips income computations balance sheets profit and loss statements documents related to the assets and liabilities and credit information bureau reports etc. The petitioner has not obtained any such documents from the borrowers in the instant case and relied upon the data submitted by the borrowers during the processing stage which is otherwise in violation of the laid down norms. The accusation against the petitioner commission of economic offences which are considered to be grave offences and are to be viewed seriously. Such offences affect the economy of the country as a whole and it involves deep rooted conspiracy and huge loss of public fund. It is committed with cool calculation and deliberate design solely with an eye on personal profit regardless of the consequence to the community. In such type of 13 offences while granting bail the Court has to keep in mind inter alia the larger interest of public and State. The nature and seriousness of an economic offence and its impact on the society are always important considerations in such a case and those aspects must squarely be dealt with by the Court while passing an order on bail applications. 7 Supreme Court Cases 439 State of Gujarat Vrs. MohanLal Jitamalji Porwal reported in 2 Supreme Court Cases 364). held as follows: In the case of Y.S. Jagan Mohan Reddy it is “34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 35. While granting bail the Court has to keep in mind the nature of accusations the nature of evidence in support thereof the severity of the punishment which conviction will entail the character of the accused circumstances which are peculiar to the accused reasonable possibility of securing the presence of the accused at the trial reasonable apprehension of the witnesses being tampered with the larger interests of public State and other similar considerations.” In case of Mohan Lal Jitamalji Porwalit is held as follows: 14 “5.......The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white colour crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest”. Law is well settled that detailed examination of evidence and elaborate discussion on merits of the case need not be undertaken for grant of bail. The Court has to indicate in the bail order reasons for prima facie conclusion why bail was being granted particularly when the accused is charged of having committed a serious offence. In the case of Kalyan Chandra Sarkar Vrs. Rajesh Ranjan alias Pappu Yadav reported in 2004 Supreme Court Cases1977 it is held as follows: “11....The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid 15 of such reasons would suffer from non application of mind. It is also necessary for the Court to consider among other circumstances the following factors also before granting bail: a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. c) Prima facie satisfaction of the Court in support of the charge.” the case of Ram Govind Upadhyay Vrs. Sudarshan Singh reported in 2002 Supreme Court Cases Criminal) 688 it is held as follows: “3. Grant of bail though being a discretionary order but however calls for exercise of such discretion in a judicious manner and not as a matter of course. Order of bail bereft of any cogent reason cannot be sustained. Needless to record however that the grant of bail is depended upon the contextual facts of the matter being dealt with by the court and facts however do always vary from case to case. While placement of the accused in the society though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of bail. The nature of the basic considerations for the grant of bail. More heinous is the crime the greater is the chance of rejection of the bail though however depended on the factual matrix of the matter.” the offence is one of 16 In the case of Prahalad Singh Bhati Vrs. NCT Delhi reported in 2001 Supreme Court Cases674 it is held as follows: conviction will entail “8.....While granting the bail the Court has to keep in mind the nature of accusations the nature of evidence in support thereof the severity of the punishment which character behaviour means and standing of the accused circumstances which are peculiar to the accused reasonable possibility of securing presence of the accused at the trial reasonable apprehension of the witnesses being tampered with the larger interests of the public or state and similar other considerations”. In the case of Sanjay Chandra Vrs. CBI reported in A.I.R. 2012 S.C. 830 it is held as follows: “25 …It is no doubt true that the nature of the charge may be relevant but at the same time the punishment to which the party may be liable if convicted also bears upon the issue. Therefore in determining whether to grant bail both seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated to a large extent by the facts and circumstances of each particular case. But at the same time right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment to relieve the State of the 17 burden of keeping him pending the trial and at the same time to keep the accused constructively in the custody of the Court whether before or after conviction to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required”. Adverting carefully tactical and enthralling contentions raised at the Bar by the learned counsel for the respective parties and looking at the oral as well as documentary evidence available on record I find that there is no dispute to the fact that the petitioner was working as Assistant Manager of the Bank at the relevant point of time. The accusation against him is very serious as it prima facie appears that he has not observed due diligence as mandated by the circular instructions of the Bank in respect of margin money KYC occupation the genuineness of the income and net worth of the borrowers i.e. assets and liabilities with supporting documents etc. status of their properties as well as income source of the borrowers. He has not ensured the progress of the constructions and authorized for disbursement of the loan amounts violating the Bank’s in respect of disbursement of the loans. He appears to have submitted pre sanction inspection reports without actually conducting the inspection and stated that construction of the site has been completed even though no such construction was undertaken. Further the details of the occupation and net worth of the borrowers mentioned in the 18 inspection reports are found to be false. He has sanctioned the loans ignoring the instructions of the Bank without specific permission of the Regional Head in that respect. He has relied upon the data submitted by the borrowers during the processing stage which was in violation of the norms of the Bank. The loans were disbursed within a period of three or eight weeks from the date of sanction. The willful ignorance towards the guidelines of the Bank prima facie indicates the criminal conspiracy of the petitioner with the builders and others. The Bank suffered a total wrongful loss of Rs. 2 33 71 963 excluding applicable interest as per the chargesheet. The contentions raised by the learned counsel for the petitioner for grant of bail to the petitioner are not at all convincing rather I find sufficient force in the argument of the learned counsel for CBI. In view of the foregoing discussions it appears that the crime was committed in a cool calculated and organized manner causing wrongful loss of crores to the Bank. There are prima facie materials showing involvement of the petitioner in the deep rooted conspiracy with other co accused persons to cause such a huge loss to the Bank. In my humble opinion granting bail to the petitioner in economic offences of this nature would be against the larger interest of public and State as it involves criminal misappropriation and cheating of huge amount of public money and there is also reasonable 19 apprehension of tampering with the witnesses. Accordingly the bail application sans merit and hence stands rejected. Before parting I would like to place it on record by way of abundant caution that whatever has been stated hereinabove in this order has been so said only for the purpose of disposing of the prayer for bail made by the petitioner. Nothing contained in this order shall be construed as expression of a final opinion on any of the issues of fact or law arising for decision in the case which shall naturally have to be done by the trial Court at the appropriate stage of the trial. As the restrictions due to resurgence of COVID 19 situation are continuing learned counsel for the parties may utilize a printout of the order available in the High Court’s website at par with certified copy subject to attestation by the concerned advocate in the manner prescribed vide Court’s Notice No. 4587 dated 25th March 2020 as modified by Court’s Notice No. 4798 dated 15th April 2021. S.K. Sahoo Judge Orissa High Court Cuttack The 26th April 2021 PKSahoo
Right to live with a person of his/her choice irrespective of religion professed by them, is intrinsic to right to life and personal liberty: Allahabad High Court
An individual on attaining majority has statutorily conferred a right to choose a partner, which if denied would not only affect his/her human right but also his/her right to life and personal liberty, guaranteed under Article 21 of the Constitution of India. We say so for the reason that irrespective of the conversion being under clout, the mere fact that the couple was living together, the alleged relationship can very well be classified as a relationship in the nature of marriage distinct from the relationship arising out of marriage, in view of the provisions of Protection of Women from Domestic Violence Act, 2005 was held by the Allahabad High Court in case of Salamat Ansari and Ors. Vs State of U.P [Crl. Mis. Writ Petition No- 11367 of 2020] by the bench comprising of Justice Pankaj Naqvi and Justice Vivek Agarwal. In the present case, Salamat Ansari and Priyanka Kharwar @ Alia along with two others have invoked the extraordinary jurisdiction of this Court for seeking quashing of an FIR under Sections 363, 366, 352, 506 IPC and Section 7/8 POCSO Act on the ground that the couple is of the age of majority, competent to contract a marriage, performed Nikah on 19.08.2019 as per Muslim rites and rituals, after Priyanka Kharwar renounced her Hindu identity and embraced Islam. It is further submitted that the couple has been living together as husband and wife for last one year peacefully and happily. It is finally submitted that the FIR lodged by the father of the petitioner, Priyanka Kharwar is prompted by malice and mischief only with a view to bringing an end to martial ties, no offences are made out, FIR is quashed. The Court held that, the judgment in Priyanshi @ Km. Shamren and others Vs. State of U.P. and Another, Smt Noor Jahan Begum @ Anjali Mishra and Another vs. State of U.P. and others, is laying a good law as none of these judgments dealt with the issue of life and liberty of two matured individuals in choosing a partner or their right to freedom of choice as to with whom they would like to live. The Court relied on Shafin Jahan v. Asokan K.M (2018). “Whatever may be the date of birth of the petitioner, the fact remains that she is at present more than 18 years of age. As the petitioner is sui juris no fetters can be placed upon her choice of the person with whom she is to stay, nor can any restriction be imposed regarding the place where she should stay. The court or the relatives of the petitioner can also not substitute their opinion or preference for that of the petitioner in such a matter.” The right to choose a partner irrespective of caste, creed or religion, is inhered under the right to life and personal liberty, an integral part of the Fundamental Right under Article 21 of the Constitution of India. The Apex Court in KS Puttaswamy vs Union of India (2017) while deciding the issue of the right to privacy. Click here to read the judgement
Court No. 43 Case : Crl. Mis. Writ Petition No 113620 Petitioner : Respondent : Counsel for Petitioner : Counsel for Respondent : G.A. Ritesh Kumar Singh Salamat Ansari & 3 Others State of U.P. & 3 Others Rakesh Kumar Mishra Hon ble Pankaj Naqvi J Hon ble Vivek Agarwal J Per Pankaj Naqvi J Heard Sri Rakesh Kumar Mishra learned counsel for the petitioners Sri Ritesh Kumar Singh learned counsel for the informant and Sri Deepak Mishra the learned A.G.A. Learned AGA and the learned counsel for the informant do not propose to file any counter affidavit. With the consent of all the petition is being heard and finally decided under the rules of the This writ petition has been filed seeking a writ of mandamus directing the respondent concerned not to arrest the petitioners with a further prayer for quashing the impugned F.I.R. dated 25.08.2019 registered as Case Crime No. 0199 of 2019 under Sections 363 366 352 506 I.P.C. and Section 7 8 POCSO Act Police Station Vishnupura District Kushi Nagar. 1. Salamat Ansari and Priyanka Kharwar @ Alia along with two others have invoked the extraordinary jurisdiction of this Court for seeking quashment of an FIR dated 28.08.2019 as Case Crime No. 0199 of 2019 under Sections 363 366 352 506 IPC and Section 7 8 POCSO Act Police Station Vishnupura Kushinagar on the premise that the couple is of the age of majority competent to contract a marriage performed Nikah on 19.08.2019 as per muslim rites and rituals after Priyanka Kharwar renounced her Hindu identity and embraced Islam. It is further submitted that the couple has been living together as husband and wife since last one year peacefully and happily. It is finally submitted that the FIR lodged by father of petitioner no. 4 Priyanka Kharwar @ Alia is prompted by malice and mischief only with a view to bring an end to martial ties no offences are made out FIR be quashed 2. Learned AGA and learned counsel for the informant vehemently opposed the submissions on the premise that conversion per se for contracting a marriage is prohibited said marriage has no sanctity in law thus this Court should not exercise its extra ordinary jurisdiction in favour of such a couple. They relied on a judgment of a Learned Single Judge in Writ C No. 570614 decided on 16.12.2014 and its recent reiteration in Writ C No. 142820decided on 23.09.2020 3. There is no dispute that the couple has attained the age of majority as Priyanka Kharwar @ Alia s date of birth as per High School Certificateis 07.07.1999 which is an enlisted document in Juvenile Justice Act 2015 for determining the age of an individual coupled with the fact that the entry of the date of birth is not under challenge. The mere fact that this petition is filed and supported by an affidavit of Priyanka Kharwar @ Alia alleged victim goes to show that she is voluntarily living with Salamat Ansari as a 4. Once age of Priyanka Kharwar @ Alia is not in dispute as she is reported to be around 21 years petitioner nos. 1 to 3 cannot be made accused for committing an offence under Section 363 IPC or 366 IPC as victim on her own left her home in order to live with Salamat Ansari. Similarly once Priyanka Kharwar @ Alia is found not to be a juvenile the offence under Seciton 7 8 POCSO Act is also not made out. Allegations relating to offence under Section 352 506 IPC qua petitioner no. 2 and 3 prima facie in view of above background appear to be exaggerated and malafidely motivated with a view to implicate the family of petitioner no. 1 as petitioner no. 2 and 3 are mother and brother of petitioner no. 1 5. We do not see Priyanka Kharwar and Salamat as Hindu and Muslim rather as two grown up individuals who out of their own free will and choice are living together peacefully and happily over a year. The Courts and the Constitutional Courts in particular are enjoined to uphold the life and liberty of an individual guaranteed under Article 21 of the Constitution of India. Right to live with a person of his her choice irrespective of religion professed by them is intrinsic to right to life and personal liberty. Interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals. We fail to understand that if the law permits two persons even of the same sex to live together peacefully then neither any individual nor a family nor even State can have objection to relationship of two major individuals who out of their own free will are living together. Decision of an individual who is of the age of majority to live with an individual of his her choice is strictly a right of an individual and when this right is infringed it would constitute breach of his her fundamental right to life and personal liberty as it includes right to freedom of choice to choose a partner and right to live with dignity as enshrined in Article 21 of the Constitution of India 6. The Apex Court in Shafin Jahan v. Asokan K.M16 SCC 368 decided on April 9 2018 held as under 74. The principles which underlie the exercise of the jurisdiction of a court in a habeas corpus petition have been reiterated in several decisions of the Court. In Gian Devi v Superintendent Nari Niketan Delhi31 a three judge Bench observed that where an individual is over eighteen years of age no fetters could be placed on her choice on where to reside or about the person with whom she could stay 7. Whatever may be the date of birth of the petitioner the fact remains that she is at present more than 18 years of age. As the petitioner is sui juris no fetters can be placed upon her choice of the person with whom she is to stay nor can any restriction be imposed regarding the place where she should stay. The court or the relatives of the petitioner can also not substitute their opinion or preference for that of the petitioner in such a matter 75. The ambit of a habeas corpus petition is to trace an individual who is stated to be missing. Once the individual appears before the court and asserts that as a major she or he is not under illegal confinement which the court finds to be a free expression of will that would conclude the exercise of the jurisdiction. In Girish v Radhamony a two judge Bench of this Court observed thus 3 In a habeas corpus petition all that is required is to find out and produce in court the person who is stated to be missing. Once the person appeared and she stated that she had gone of her own free will the High Court had no further jurisdiction to pass the impugned order in exercise of its writ jurisdiction under Article 226 of the Constitution." 76. In Lata Singh v State of U.P Bench of two judges took judicial notice of the harassment threat and violence meted out to young women and men who marry outside their caste or faith. The court observed that our society is emerging through a crucial transformational period and the court cannot remain silent upon such matters of grave concern. In the view of the court 17 This is a free and democratic country and once a person becomes a major he or she can marry whosoever he she likes. If the parents of the boy or girl do not approve of such inter caste or inter religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter caste or inter religious marriage. We therefore direct that the administration police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter caste or inter religious marriage with a woman or man who is a major the couple is not harassed by anyone nor subjected to threats or acts of violence and anyone who gives such threats or harasses or commits acts of violence either himself or at his instigation is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law." this Court adverted to the social evil of honour killings as being but a reflection of a feudal mindset which is a slur on the nation 78. In a more recent decision of a three judge Bench in Soni Gerry v Gerry Douglas this Court dealt with a case where the daughter of the appellant and respondent who was a major had expressed a desire to reside in Kuwait where she was pursuing her education with her father This Court observed thus 9 She has without any hesitation clearly stated that she intends to go back to Kuwait to pursue her career. In such a situation we are of the considered opinion that as a major she is entitled to exercise her choice and freedom and the Court cannot get into the aspect whether she has been forced by the father or not. There may be ample reasons on her behalf to go back to her father in Kuwait but we are not concerned with her reasons. What she has stated before the Court that alone matters and that is the heart of the reasoning for this Court which keeps all controversies at bay 10. It needs no special emphasis to state that attaining the age of majority in an individual s life has its own significance. She He is entitled to make her his choice The courts cannot as long as the choice remains assume the role of parens patriae. The daughter is entitled to enjoy her freedom as the law permits and the court should not assume the role of a super guardian being moved by any kind of sentiment of the mother or the egotism of the father. We say so without any reservation 79. These principles emerge from a succession of judicial decisions. Fundamental to them is the judgment of a Constitution bench of this Court in Kanu Sanyal v District Magistrate Darjeeling 7. A perusal of the aforesaid judgment manifests that the Apex Court has consistently respected the liberty of an individual who has attained the age of majority 8. The Apex Court in Shakti Vahini Vs. Union of India7 SCC 192 came down heavily on the perpetrators of "honour killings" which the Court found not only horrific and barbaric but also interfering with the right to choose a life partner and the dignity of an individual. The Apex Court held as under: 44. The concept of liberty has to be weighed and tested on the touchstone of constitutional sensitivity protection and the values it stands for. It is the obligation of the Constitutional Courts as the sentinel on qui vive to zealously guard the right to liberty of an individual as the dignified existence of an individual has an inseparable association with liberty. Without sustenance of liberty subject to constitutionally valid provisions of law the life of a person is comparable to the living dead having to endure cruelty and torture without protest and tolerate imposition of thoughts and ideas without a voice to dissent or record a disagreement. The fundamental feature of dignified existence is to assert for dignity that has the spark of divinity and the realization of choice within the parameters of law without any kind of subjugation. The purpose of laying stress on the concepts of individual dignity and choice within the framework of liberty is of paramount importance. We may clearly and emphatically state that life and liberty sans dignity and choice is a phenomenon that allows hollowness to enter into the constitutional recognition of identity of a person.Act 1994(See : Voluntary Health Association of Punjab v. Union of India and others12 and Voluntary Health Association of Punjab v. Union of India and 47. The first argument deserves to be rejected without much discussion. Suffice it to say the same relates to the recognition of matrimonial status. If it is prohibited in law law shall take note of it when the courts are approached Similarly PCPNDT Act is a complete code. That apart the concern of this Court in spreading awareness to sustain sex ratio is not to go for sex determination and resultantly female foeticide. It has nothing to do with the institution of marriage."that even if a marriage is prohibited in law same shall be taken note of only when the courts are approached for recognition of such marriage which finds further corroboration in the case of NandaKumar vs. State of Kerala 16 SCC 602 which after relying upon Shafin Jahanheld that on attaining majority an individual is entitled to make his her choice which is pivotal and cannot be infringed by anyone. The relevant paragraphs are quoted “7. A neat submission which is made by the learned counsel for the appellants is that the High Court has adopted an approach which is not permissible in law by going into the validity of marriage. It is submitted that when Thushara is admittedly a major i.e. more than 18 years of age she has right to live wherever she wants to or move as per her choice. As she is not a minor daughter of respondent No. 4 “custody” of Thushara could not be entrusted to him. 8. Learned counsel for the appellants is right in his submission. Even the counsel for the State did not dispute the aforesaid position in law and in fact supported this submission of the learned counsel for the 12. The Court also emphasised due importance to the right of an adult person which the Constitution accords to an adult person as under 10 SCC 1 while deciding the issue of right to privacy held as under: 298. Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet dignity and freedom are inseparably inter twined each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realization of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary state action. It prevents the state from discriminating between individuals. The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary state action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood The intersection between one s mental integrity and privacy entitles the individual to freedom of thought the freedom to believe in what is right and the freedom of self determination. When these guarantees intersect with gender they create a private space which protects all those elements which are crucial to gender identity The family marriage procreation and sexual orientation are all integral to the dignity of the individual. Above all the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised. An individual may perceive that the best form of expression is to remain silent Silence postulates a realm of privacy. An artist finds reflection of the soul in a creative endeavour. A writer expresses the outcome of a process of thought. A musician contemplates upon notes which musically lead to silence. The silence which lies within reflects on the ability to choose how to convey thoughts and ideas or interact with others. These are crucial aspects of personhood. The freedoms Under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21 liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat the way one will dress the faith one will espouse and a myriad other matters on which autonomy and self determination require a choice to be made within the privacy of the mind. The constitutional right to the freedom of religion Under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world. These are some illustrations of the manner in which privacy facilitates freedom and is intrinsic to the exercise of liberty. The Constitution does not contain a separate Article telling us that privacy has been declared to be a fundamental right. Nor have we tagged the provisions of Part III with an alpha suffixed right of privacy: this is not an act of judicial redrafting Dignity cannot exist without privacy. Both reside within the inalienable values of life liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self determination 299. Privacy represents the core of the human personality and recognises the ability of each individual to make choices and to take decisions governing matters intimate and personal. Yet it is necessary to acknowledge that individuals live in communities and work in communities. Their personalities affect and in turn are shaped by their social environment. The individual is not a hermit. The lives of individuals are as much a social phenomenon. In their interactions with others individuals are constantly engaged in behavioural patterns and in relationships impacting on the rest of society. Equally the life of the individual is being consistently shaped by cultural and social values imbibed from living in the community 323. Privacy includes at its core the preservation of personal intimacies the sanctity of family life marriage procreation the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being 12. We now propose to deal with the judgment passed by learned Single Judge of this Court in Noor Jahanin Writ C No. 581214 l kiFk c ku fd k fd esjk uke fdju iq=h t a=h izlkn fuoklh taxyhiqj Fkkuk Hkkokuhxat ftyk fl)kFkZuxjA kph la0 1 us le{k U k ky l kiFk c ku fd k fd vkt fnukWd 3&11&14 dks fuEufyf[kr c ku ns jgh gwWA esjs firk th dk uke t a=h izlkn gS eSa taxyhiqj ftyk fl)kFkZuxj dh jgus okyh gwWA eSa b.Vj ehfM V rd i<+h gwWA eSa bykgkckn fnukWd 20 vDVwcj lu 2014 dks 5 cts lk adky vkbZ FkhA eSa bykgkckn vdsyh vkbZ FkhA esjk fudkg ukS cts fnu esa bykgkckn esa vCnqy jghe us ccyw mQZ bjQku ds lkFk djk fn k A g fudkg vdcj iqj ftyk bykgkckn esa djk k x k FkkA esjk keZ ifjorZu vCnqy jghe fu0 vdcjiqj ftyk bykgkckn esa djk k x k FkkA g keZ ifjroZu mUgksaus kknh djus ds fy djk k FkkA g keZ ifjorZu mUgksaus ccyw mQZ bjQku tks fd kph la[ k nks gS ds dgus ij djk k FkkA keZ ifjorZu izek.k i= tks fd bl kfpdk dk layXud rhu gS eq>s vCnqy jghe us vdcjiqj bykgkckn esa fn k FkkA bl dkxt ds fo"k esa eSa dqN ugha tkurh gwWA bLyke ds ckjs esa eSa dqN ugha tkurh gwWA dfFkr fudkgukek tks kfpdk dk layXud pkj gS esa fudkg dk LFkku unZ gkbZdksVZ bykgkckn vFkkZr~ gkbZdksVZ ds djhc fy[kk gqvk gSA gkW esjk fudkg ugha gqvkA C ku i o lqudj rLnhd fd k^^ Statement of Petitioner No.1in Writ C No. 625814 kph la0 1 lksue mQZ fiz adk us le{k U k ky l kiFk c ku fd k fd vkt fnukWd 21&11&14 dks fuEufyf[kr c ku ns jgh gwWA esjk uke lksue mQZ fiz adk gSA esjs firk th dk uke Hkxoku flag gSA og d d`"kd gSA og uxyk yks kbZ xkao eseq>s kn ugh gSA Statement of Petitioner No.1in Writ C No. 604914 kph la0&1 us le{k U k ky l kiFk c ku fd k fd vkt fnukWd 13&11&14 dks fuEufyf[kr c ku ns jgh gwWA esjk uke vk lk csxe mQZ vuhrk fo odekZ esjs firk th dk uke Jh f ko lju yky gSA oks dq.Mk izrkix< esa jgrs gSaA eSa ch0 0 rd i<+h gwWA esjk keZ ifjorZu eks0 lyhe us djok k Fkk A s keZ ifjorZu Jh lyeku ds lkFk kknh djokus ds fy djok k FkkA esjk fudkg lyeku us dpgjh] esa djok k A fudkg esa D k gqvk eq>s ekywe ugha A eq>s bLyke ds ckjs esa irk ugha gSA Statement of Petitioner no. 1(girl) in Writ C No. 570614 : uwjtgkW csxe mQZ vatyh feJk oa d vU cuke LVsV vkQ w0ih0 oa vU kph la0 1 vatyh feJk le{k U k ky l kiFk c ku fd k & Jh vf[kys k feJk esjs ikik dk uke gSA g nsofj k esa jgrs gSa eSa bUgha ds lkFk jgrh FkhA eSa b.Vj rd i<+h gqbZ gwWA eSa bLyke keZ ds ckjs esa dqN ugha tkurh gwWA fn0 23 flrEcj 2014 dks esjk keZ ifjorZu eks0 lyhe kph la0 2 ds kj ij djk k x k FkkA tc g keZ ifjorZu djk k x k rc eSa vyx dejs esa cSBh Fkh vkSj ckgj ekSyoh futke vgen cSBs Fks mlh le fudkg gks x k Fkk ekSyoh lkgc us djk k FkkA Jh eks0 lyhe lkM+h dk C kikj djrs gSaA kknh djus ds fy g keZ ifjorZu gqvk FkkA^^ Statement of Petitioner no. 1(girl) in Writ C No. 589114 : esjk uke lksuh mQZ lkfc k] iRuh lxhj vgen gSA esjs firk dk uke jes k pUnz gSA eSa bl kfpdk esa kfpuh la0 1 gwWA eSa 217 lEHky xsV pankSlh ftyk lEHky dh jgus okyh gwWA eS l kiFk c ku djrh gwW fd& esjs firk th esaFkk QSDVzh esa ukSdjh djrs gSaA eSa Lukrd dh Nk=k gwWA eSa bLyke keZ ds ckjs esa ugha tkurh gwWA eq>s kknh ds fy bLyke keZ dqcqy djok k x kA eq>s lxhj vgen kph la0 2 ds mifLFkfr esa bLyke keZ dqcqy djok k x kA g dqcwyukek 15 tqykbZ 2014 dks gqvkA lxhj vgen th us esjs lkFk fudkg 1 vxLr 2014 dks fdlh dkth ls djk kA mUgksaus g fudkg ekSgEen gqlSu ds kj ij djok kA eq>s ugha ekywe fd fudkgukek tks kfpdk layXud la0 2 gS ds vuqlkj fudkg 10 vxLr 2014 dks djok k x k A lxhj vgen kh ks dk dke etnwjh ij djrs gSaA^^ 13. We find from the judgement in Noor Jahan’s case that no doubt the ladies in question could not authenticate their alleged conversion as they were unable to show the knowledge regarding the basic tenets of Islam the writ court against the above background held that the alleged marriage was illegal as it was performed after a conversion which could not be justified in law. 14. We lest not forget that couples in Noor Jahan and other cognate petitions preferred a joint petition on the basis of alleged conversion of one of the partners. Once the alleged conversion was under clout the Constitutional Court was obliged to ascertain the wish and desire of the girls as they were above the age of 18 years. To disregard the choice of a person who is of the age of majority would not only be antithetic to the freedom of choice of a grown up individual but would also be a threat to the concept of unity in diversity. An individual on attaining majority is statutorily conferred a right to choose a partner which if denied would not only affect his her human right but also his her right to life and personal liberty guaranteed under Article 21 of the Constitution of India. We say so for the reason that irrespective of the conversion being under clout the mere fact that the couple was living together the alleged relationship can very well be classified as a relationship in the nature of marriage distinct from the relationship arising out of marriage in view of the provisions of Protection of Women from Domestic Violence Act 2005. 15. The judgment in Priyanshi followed Noor Jahan supra). None of these judgments dealt with the issue of life and liberty of two matured individuals in choosing a partner or their right to freedom of choice as to with whom they would like to live. We hold the judgments in Noor Jahan and Priyanshi as not laying good law 16. We before parting wish to reiterate that we are quashing the FIR primarily on the ground that no offences are made out as discussed above as also the fact that two grown up individuals are before us living together for over a year of their own free will and choice. The ultimate contention on behalf of the informant was that he be afforded visiting rights to meet his daughter. Once petitioner no. 4 has attained majority then it is her choice as to whom she would like to meet. We however expect the daughter to extend all due courtseys and respect to her family 17. We clarify that while deciding this petition we have not commented upon the validity of alleged marriage conversion. 18. In view of above discussion the writ petition succeeds and is allowed. The F.I.R. dated 25.08.2019 registered as Case Crime No 01919 under Sections 363 366 352 506 IPC and Section 7 8 POCSO Act Police Station Vishunpura District Kushi Nagar as well as all consequential proceedings are hereby quashed. Order Date : 11.11.2020 (Vivek Agarwal J)(Pankaj Naqvi J
Suppression of facts in itself is sufficient to dismiss a writ petition: Delhi HC
"Suppression of material and vital facts by the petitioner can become a solid ground for dismissal o(...TRUNCATED)
"IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on: 05.02.2021 AMIT KUMAR SHRIVASTAVA Petitioner(...TRUNCATED)
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