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The scheme of Section 37 reveals that the exercise of power to grant bail is subject to the limitations contained under Section 439 of the CrPC: High Court of Tripura

The underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, was its liberal approach in the matter of bail under the NDPS Act was indeed uncalled for. Such an opinion was held by The Hon’ble High Court of Tripura before The Hon’ble Mr. Justice S.G. Chattopadhyay in the matter of Shri Bikash Ray Vs. The State of Tripura [A.B. No. 78 of 2021].  The facts of the case were associated with an application for granting a pre-arrest bail under section 438 Cr.P.C to the petitioner. It was reported that a similar application was submitted previously but was rejected. The Counsel representing the petitioner contended that no contraband item was found physically from the petitioner and thereby he urged the court for anticipatory bail to the petitioner. It was stated by the counsel, representing the petitioner that he was granted a pre-arrest bail on the same allegations by an order dated 20.08.2021.  The Counsel for the opposition opposed the statements of the petitioner’s counsel and contended that according to the CDR reports, it was found that the petitioner was in regular touch with the carrier of the contraband and that he is the principal accused of this case. The counsel for the opposition also stated that according to the stringent parameters laid down by the Apex Court regarding bail under NDPS Act, the petitioner does not deserve pre-arrest bail in this case.  The Hon’ble Court considering all the facts stated that “In view of the parameters laid down by the Apex Court in several judicial pronouncements for granting anticipatory bail particularly in NDPS cases and all other facts and circumstances of the case, this court is of the view that the benefit of custodial immunity by granting pre-arrest bail cannot be allowed to the accused in the present case. Therefore, his bail application stands rejected and in terms of the above, the matter is disposed of.”

HIGH COURT OF TRIPURA A.B. No. 721 ..Petitioner(s) ..Respondent(s) Shri Bikash Ray The State of Tripura For Petitioner(s) For Respondent(s) Mr. S. Lodh Adv. Mr. R. Datta P.P. HON’BLE MR. JUSTICE S.G. CHATTOPADHYAY This is an application under section 438 Cr.P.C for granting pre arrest bail to Bikash Ray petitioner who is apprehending arrest in Bishalgarh PS case No.2021 BLG 059 which has been registered under sections 20(b)(ii)(C) 25 27A 29 and 32 of the NDPS Act 1985. 2] Similar application was earlier considered by this court in A.B 66 of 2021 and after consideration of the grounds advanced by the petitioner as well as the submissions of learned P.P the said application was rejected by an order dated 17.09.2021. 3] The facts of the case may be reproduced from the said order dated 17.09.2021 which is as under: “[3] The bare facts essential for disposal of the bail application is as under: Sri Parthanath Bhowmik Inspector of Police of Bishalgarh police station lodged suo motu written FIR with the Officer in Charge of Bishalgarh police station alleging inter alia that on 24.07.2021 he received an information from own source that a truck bearing registration No. TN47 AT 4858was coming towards Bishalgarh from Udaipur and the said vehicle was carrying dried ganja. Sri Bhowmik recorded the said information in the general diary of the police station vide GD entry No. 8 dated 24.07.2021 and procured permission from the jurisdictional Superintendent of Police to step into action. Then he along with required number of Officers and Staff left the police station vide GD entry No. 10 dated 24.07.2021 and started noticing the vehicles which were coming from the said direction. The suspected vehicle arrived in front of Bishalgarh police station at 05.45 am and the same was detained by the police team. Driver Selvaraj K of Tamil Nadu told the police team that the vehicle was carrying rubber sheet. When police undertook a search in the said vehicle the driver tried to flee away. He was however detained and brought to police station for interrogation. With the help of interpreter police interrogated him for about three hours and came to know that during the previous night rubber sheet was loaded in his vehicle from a place called Madhab Bari at Jirania. Thereafter he was taken to a place between Tepania and Killa in Gomati Tripura for loading dried ganja where he noticed huge quantity of dried ganja stored in a place and he learnt from the conversation of the people that Bishu Kumar Tripura was the owner of the said contraband. 3390 Kg dried ganja wrapped in rubber sheets was recovered from the said vehicle and the same was seized in presence of witnesses. 4] Pursuant to the said FIR lodged by Inspector Parthanath Bhowmik Bishalgarh PS case No. 2021 BLG 059 under Sections 20 25 27A 29 and 32 of the NDPS Act 1985 was registered and investigation of the case was taken 4] Heard Mr. S. Lodh learned counsel appearing for the petitioner. Also heard Mr. R. Datta learned P.P. representing the State 5] It is contended by Mr. Lodh learned counsel that on the same set of allegations and on the same set of incriminating materials accused Bishu Kumar Tripura was granted pre arrest bail by this court by an order dated 20.08.2021 passed in A.B 58 of 2021 and another accused namely Naithak Jamatia was also granted anticipatory bail by the Additional Sessions Judge Sepahijala District Bishalgarh by his order dated 31.08.2021 in Bail Application No. 33 of 2021. Counsel contends that the learned Additional Sessions Judge considered the materials available against the accused at length and by a detailed and reasoned order he granted anticipatory bail to Naithak Jamatia accused petitioner. Counsel therefore submits that the present accused namely Bikash Ray deserves equal treatment and his bail application may be considered by this court on the ground of parity. Counsel submits that no contraband was recovered from the physical possession of the present petitioner and the materials collected by the investigating agency do not even remotely connect him to the alleged crime. Learned counsel therefore urges the court to grant anticipatory bail to the 6] Opposing the contention of Mr. Lodh learned counsel Mr. R. Datta learned P.P. contends that the CDR analysis demonstrates that the petitioner was in regular touch with the carrier of the contraband namely Selvaraj K and the other accused persons involved in the case. Learned P.P submits that he is the principal accused of this case against whom there are genuine materials with regard to his involvement in the case. It is contended by Mr. Datta learned P.P that he is also involved in Manu PS case No. 2021 004 for similar offence in which he has been charge sheeted. Learned P.P submits that the racket consisting of the present petitioner and the other accused of this case is the most active racket in the state involved in drug peddling within the state and drug smuggling across the border. Learned P.P. submits that serious charges have been brought against the petitioner and therefore the petitioner does not deserve the extra ordinary relief under section 438 Cr.P.C. Learned P.P further refers to section 37 of the NDPS Act which puts strict restrictions with regard to grant of bail under the NDPS Act. In support of his contention Mr. Datta learned P.P has relied on the decision dated 22.09.2021 of the Apex Court in Criminal Appeal No. 10421wherein the Apex Court has held as “20 Based on the above precedent the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug trafficking in the country stringent parameters for the grant of bail under the NDPS Act have been prescribed.” 7] Learned P.P urges that in view of the stringent parameters laid down by the Apex Court with regard to grant of bail under NDPS Act petitioner does not deserve pre arrest bail in this case. 8] The detailed submissions of learned P.P and the defence counsel were also recorded by this court when similar application of bail is as under: was considered by this court in A.B 62 relevant extract of which “[6] Mr.J.Bhattacharjee learned counsel appearing for the petitioner contends that there is no material to justify arrest and detention of the present petitioner. The petitioner is not even named in the FIR. Only from the submission of the learned PP in the course of hearing of AB No.58 of 2021 his name transpired when learned PP submitted before the court that the investigating agency was also looking for the present petitioner. Therefore petitioner Bikah Roy is apprehending his arrest in the case for which he has moved this application under Section 438 Cr.P.C. 7] It is contended by Mr. Bhattacharjee learned counsel that even the FIR named accused persons have been released on bail in this case. The driver of the vehicle from whose physical possession the contraband was seized has also been released on bail. Counsel therefore submits that the present petitioner cannot be treated differently and he may also be released on bail. Counsel refers to the order dated 20.08.2021 of this court passed in AB 521 whereby accused Bishu Kumar Tripura of this case was released on anticipatory bail under similar circumstances. Learned counsel therefore urges for release of the petitioner on bail on any condition whatsoever. 8] Appearing for the prosecution Mr. Ratan Datta learned PP vehemently opposes the bail application and submits that the petitioner is a habitual drug peddler who has been charge sheeted for similar offences in Manu P.S. Case No. 2021 MANU 004. Relying on the case diary Mr.Ratan Datta learned PP also contends that it would emerge from the CDR collected by the investigating agency that the petitioner was having frequent conversation over cell phone with accused driver Selvaraj K when the said driver was proceeding towards Bishalgarh with the contraband in his vehicle. According to learned PP the said circumstance demonstrates that he was an active collaborator in smuggling the said contraband. 9] Relying on the decision of the Apex Court in STATE OF KERALA AND OTHERS Versus RAJESH AND OTHERS reported in 12 SCC 122 Mr.Datta learned PP submits that in the said case the Apex Court has succinctly held that liberal approach in the matter of bail under NDPS case is indeed uncalled for. Counsel submits that where the offence involves commercial quantity Section 37 of the NDPS Act will come into play and the restrictions put under Section 37 of the Act with regard to grant of bail shall apply. According to learned PP the Apex Court has laid down broad parameters with regard to grant of bail in NDPS cases in the said judgment which are as under: “19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application and the second is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied the ban for granting bail 20. The expression “reasonable grounds” means something more than prima facie for believing that the probable causes accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC or any in force regulating the grant of bail approach in the matter of bail under the NDPS Act is indeed uncalled for. law for the time being 21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS 22. The submission made by learned counsel for the respondents that in Crime No. 14 of 2018 the bail has been granted to the other accused persons and no steps have been taken by the prosecution to challenge the grant of post arrest bail to the other accused persons is of no consequence the consideration prevailed upon the court to grant bail to the other accused persons will not absolve the act of the respondent accusedfrom the rigour of Section 37 of the NDPS Act.” 10] Also relying on the decision of the Apex Court in SATPAL SINGH Versus STATE OF PUNJAB reported in 13 SCC 813 Mr.Datta learned PP contends that in view of the restrictions under Section 37 NDPS Act bail cannot be granted to an accused under NDPS Act involving commercial quantity without recording the required level of satisfaction of the court about the innocence of the accused. Counsel has relied on paragraph 14 of the judgment which is as under: “14. Be that as it may the order dated 21 09 2017 passed by the High Court does not show that there is any reference to Section 37 of the NDPS Act. The quantity reportedly commercial. In the facts and circumstances of the case the High Court could not have and should not have passed the order under Section 438 or 439 CrPC without reference to Section 37 of the NDPS Act and without entering a finding on the required level of satisfaction in case the Court was otherwise inclined to grant the bail. Such a satisfaction having not being entered the order dated 21 09 2017 is only to be set aside and we do so.” 11] Leaned PP further argues that investigation is under progress and materials against the petitioner are forthcoming. Under these circumstances his release on anticipatory bail will frustrate the investigation of the case. It is contended by learned PP that in view of the growing number of cases of drug trafficking in the state and the materials available on record his bail petition may be turned down. to record the present context commercial quantity of 12] In investigating agency. contraband was seized by Prosecution has brought the past criminal antecedent of the petitioner. The fact that he has been charge sheeted in Manu P.S. Case No.2021 004 for similar offence is not disputed. The case diary also contains incriminating materials supporting the charges against him. The CDR investigating agency collected and produced by demonstrates that the accused had frequent and long telephonic conversation with the accused driver of the offending vehicle prior to seizure of the contraband from his vehicle. The materials available on record has thus made out a good prima facie case against the accused. There is merit in the submission of learned public prosecutor that if the accused is bailed out at this stage fair investigation would be impaired and collection of evidence against the accused would be obstructed. 13] In view of the legislative mandate of Section 37 of the NDPS Act and the judgments of the Apex Court cited to supra this court is of the view that in the facts and circumstances of the case it would not be appropriate to allow pre arrest bail to the accused.” 9] Learned P.P has produced the updated case diary in two volumes. Perused the case diary and all other materials available on record. Considered the submissions of the counsel representing the In the case of Union of India through Narcotics Control Bureau Lucknow the matter came up before the Hon’ble Supreme Court against the judgment of the learned Single Judge of the Lucknow bench of High Court of Judicature at Allahabad whereby the High Court granted bail to the accused who was charged with several offences under the NDPS Act. In this case while setting aside the order of the Hon’ble Allahabad High Court one of the crucial circumstances which was assessed by the Apex Court was that the CDR analysis of the mobile number used by the accused respondent indicated that the respondent was in regular touch with the other accused persons. Relying on the said observation of the Apex Court learned P.P has also referred to the CDR analysis made by the investigating agency in the case in hand from which it appears that the accused made several calls from his mobile to the other accused persons of the present case particularly Selvaraj K who was the carrier driver of the contraband and he also received several calls to his mobile from those accused persons. Contraband which has been seized in this case is dried ganja weighing 3390 Kg. The quantity is no doubt commercial quantity and the incriminating materials available against the petitioner has made out a good prima facie case against him. In view of the parameters laid down by the Apex Court in judicial pronouncements for granting anticipatory bail particularly in NDPS cases and all other facts and circumstances of the case this court is of the view that the benefit of custodial immunity by granting pre arrest bail cannot be allowed to the accused in the present case. Therefore his bail application stands rejected and in terms of the above the matter is disposed of. Return the case diary to Mr. R. Datta learned P.P. Rudradeep

The petitioner was released on bail after being arrested under Sections 341, 353, 384, 504, 506, 379, and 427IPC as the FIR was not reliable: High court of Patna

The petitioner was arrested under sections 341 IPC, “Punishment for wrongful restraint”, section 353 “Assault or criminal force to deter public servant from discharge of his duty”, section 384 “Punishment for extortion”, section 504 “Intentional insult with intent to provoke breach of the peace”, section 506 “Punishment for criminal intimidation”, section 379 “Punishment for theft”, section 427 IPC, “Mischief causing damage to the amount of fifty rupees.” This is in connection with Dhaka PS Case No. 438 of 2019 dated 21.11.2019. This judgment was given in the high court of Judicature at Patna by honorable Mr. Justice Ahsanuddin Amanullah on the 5th   of August 2021 in the case of Zahid Anwar Alias and others versus the state of Bihar criminal miscellaneous No. 37157 of 2020, Mr. Zaki Haider Represented as the advocate for the petitioner and Ms. Asha Devi represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held via video conference. The following are the facts of the case, the petitioner was accused of abusing the informant who is the Executive Officer of Nagar Parishad, Dhaka. As the informant went to remove the encroachment, the petitioner snatched the key from the informant’s vehicle and tore the papers in his office, and threatened the employees that if they came into the office they would be killed. The counsel for the petitioner held that the petitioner is a fruit seller and owns a licensed shop and has been falsely implicated under this scenario. This incident was said to have taken place on 21.11.2019 however the informant was the one who visited the shop of the petitioner and demanded Rs. 4 lakhs for his marriage when the petitioner refused, he snatched various fruit packets and the employees have lodged a complaint Case No. 363 of 2019, before the Sub Divisional Judicial Magistrate, Sikrahana at Dhaka on 23.11.2019. Further, the petitioner has no criminal antecedent and after investigation no such allegations against the petitioner were true. The three witnesses who support the claim made by the informant are his assistances and driver. According to the FIR, it states that the petitioner tore the documents and caused a ruckus however the employees don’t state the same which proves the prosecution case also has mala fide intention. The additional public prosecutor held that the petitioner created an obstacle while the informant was performing his duty of removing the encroachment and was also accused of threatening the employees who have filed a complaint however it is not controverted that no mention about torn documents was made initially later such allegations were developed. The court held that, after considering the facts and circumstances of the case, the prosecution story contradicts itself with regard to the petitioner tearing up the documents as the written complaint does not disclose the same, the fact that a single man can create such a nuisance during daylight In the office of the informant seems unrealistic, and the FIR is unreliable. Thus, the Court is inclined to allow the prayer.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 371520 Arising Out of PS. Case No. 438 Year 2019 Thana DHAKA District East Champaran Zahid Anwar Alias Jahid Anwar Alias Dabloo Male aged about 30 years Son of Dabir Ahamad Resident of Village Chainpur Dhaka PS Dhaka District East Champaran The State of Bihar ... Petitioner s For the Petitioner s For the State Mr. Zaki Haider Advocate Ms. Asha Devi APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ... Opposite Party s ORAL JUDGMENT Date : 05 08 2021 The matter has been heard via video conferencing 2. Heard Mr. Zaki Haider learned counsel for the petitioner and Ms. Asha Devi learned Additional Public Prosecutorfor the State 3. The petitioner apprehends arrest in connection with Dhaka PS Case No. 438 of 2019 dated 21.11.2019 instituted under Sections 341 353 384 504 506 379 and 427 of the Indian 4. The allegation against the petitioner is that when the informant who is the Executive Officer of Nagar Parishad Dhaka went to remove encroachment he was abused and the key of his vehicle was forcibly snatched and he had come to the Patna High Court CR. MISC. No.371520 dt.05 08 2021 office and had torn papers and had threatened the employees not to come to the office otherwise they would be killed 5. Learned counsel for the petitioner submitted that he is a fruit seller and has a licensed shop allotted to him by the Nagar Parishad Dhaka and has been falsely implicated. It was submitted that the incident is said to have taken place on 21.11.2019 but on that day the informant had come to the shop of the petitioner when he was not there and had demanded Rs. 4 lakhs as he was getting married and on refusal he had threatened him and had also forcibly taken away packets of various fruits for which the employee of the petitioner has lodged Complaint Case No. 363 of 2019 before the Sub Divisional Judicial Magistrate Sikrahana at Dhaka on 23.11.2019. It was submitted that the petitioner has no criminal antecedent. He submitted that during investigation it has come that no such incident had taken place and the allegations are false. It was submitted that during investigation only three witnesses have supported the case and all are interested witness inasmuch as two are Assistants in the office of the informant who is the Executive Officer of the Nagar Parishad Dhaka and the third one is his driver. It was submitted that the incident is said to have taken place during day time in the presence of many persons Patna High Court CR. MISC. No.371520 dt.05 08 2021 of the public and according to learned counsel many independent witnesses who were there had also given their statement which did not support the prosecution story but the same has not been incorporated by the police in the case diary with mala fide intention and oblique reasons just to support the case filed by the Executive Officer. Learned counsel submitted that though in the FIR it has been stated that the petitioner had gone to the office of the informant and had threatened and also torn papers which was reported to the informant but the complaint of the employees which is part of the FIR does not state that any document was snatched much less torn which clearly falsifies the prosecution case and also proves that with mala fide intention the case has been lodged. It was submitted that because the three witnesses examined are all office employees of the informant they have developed the story before the police in their statement and have added that papers were torn by the petitioner but there also there is contradiction as the informant has stated that the papers were torn and thrown in the water but the witness has stated that the papers were torn but he was not aware where it was thrown 6. Learned APP from the case diary submitted that the petitioner has not only created obstacle in the duty of the informant while he had gone there to remove encroachment but Patna High Court CR. MISC. No.371520 dt.05 08 2021 had also gone to the Nagar Parishad Dhaka and had threatened the employees and they had given a written complaint to the informant which is part of the FIR. However it was not controverted that in the complaint there is no mentioning about any tearing of papers and also that later in the statement they have developed the allegation of the petitioner having torn papers in the office of the Nagar Parishad Dhaka 7. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds that there are contradictions in the prosecution story especially with regard to the role of the petitioner of tearing the official papers where the written complaint does not disclose such fact and still it has been incorporated in the FIR and later the signatories to the complaint have also developed the story to include the allegation of the petitioner tearing papers and moreover the fact that one person could go and create such nuisance both at the site as well as in the office of the Nagar Parishad Dhaka when obviously there would have been a police force for removing encroachment and even in the office all the employees were there indicate that the allegations as made in the FIR may not be reliable. However the Court would not like to give a finding as it is for the trial Court to go into such details Patna High Court CR. MISC. No.371520 dt.05 08 2021 when evidence would be produced but for the purposes of forming a tentative view the Court finds that the petitioner has been able to make out a case for interference. Thus the Court is inclined to allow the prayer 8. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioner be released on bail upon furnishing bail bonds of Rs. 25 000 twenty five thousand) with two sureties of the like amount each to the satisfaction of the learned SDJM Sikrahana at Dhaka District East Champaran in Dhaka PS Case No. 438 of 2019 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further and further that one of the bailors shall be a close relative of the petitioner that the petitioner and the bailors shall execute bond and give undertaking with regard to good behaviour of the petitioner andthat the petitioner shall co operate with the Court and police prosecution Any violation of the terms and conditions of the bonds or the undertaking or failure to co operate shall lead to cancellation of his bail bonds 9. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioner to the notice of the Court concerned which shall take immediate Patna High Court CR. MISC. No.371520 dt.05 08 2021 action on the same after giving opportunity of hearing to the 10. The petition stands disposed of in the (Ahsanuddin Amanullah J

Any candidate who is overweight or underweight may be put on notice to correct this defect to retain candidacy; High Court Of New Delhi

The present writ petition has been filed challenging the action of the Respondents of not granting sufficient time to him for appearing in the review medical examination conducted by the Respondents, and the same issue was held in the judgement passed by a Division bench judge HON’BLE MR. JUSTICE MANMOHAN & HON’BLE MR. JUSTICE NAVIN CHAWLA, in the matter  KRISHAN YADAV  V. UNION OF INDIA AND ANR dealt with an issue mentioned above. In this case, the petitioner seeks directions to the Respondents to grant ten days to the petitioner for reduction of his weight and subsequently conduct his re-examination and also consider his candidature for appointment to the post of Sub Inspector (GD) in CAPF along with all consequential benefits. Learned counsel for the Petitioner states that the respondents issued an Advertisement for appointment to the post of Sub Inspector in W.P. (C) 12553/2021 Delhi Police, CAPFs and assistant sub-inspector in the CISF examination 2019 and the petitioner upon fulfilling all the eligibility criteria, applied for the post of sub-inspector (GD) in CAPF. He states that after being successful in the written examination and PST /PET, the petitioner was issued an admit card to appear for medical examination on 20th October 2021, on which date he was declared unfit on grounds of being overweight as the weight of the petitioner was 80 Kg. Later Petitioner applied for review medical examination and requested the medical authorities to grant him at least ten days to reduce his weight, meanwhile, the petitioner was referred for specialist opinion and the review medical board vide order dated 26th October 2021, again declared him medically unfit on having determined his weight is 79 Kg. It should be settled law that this Court in writ jurisdiction only examines the decision-making process to ensure that the petitioner is treated fairly and reasonably by the respondent which was stated by the learned counsel of the petitioner, Admittedly, the Petitioner was over-weight on both days i.e. the date when Initial Medical Board was held as well as on the date when Review W.P. (C) 12553/2021 Medical Board was held. There is also no allegation of wrongdoing against the respondents. The court perused the facts and argument’s presented, it thought that- “Keeping in view the aforesaid, this Court finds no ground to interfere in the present proceedings. Accordingly, the present writ petition along with the pending application is dismissed’.

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 12553 2021 & C.M.No.39528 2021 KRISHAN YADAV ..... Petitioner Through Mr.A.K.Trivedi Advocate. UNION OF INDIA AND ANR ..... Respondents Through Mr.Rajnish Kumar Gaind Advocate. Date of Decision: 10th November 2021 HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA JUDGMENT MANMOHAN Jin CAPF along with all consequential benefits. Learned counsel for the Petitioner states that the respondents issued an Advertisement for appointment selection to the post of Sub Inspector in W.P.12553 2021 Delhi Police CAPFs and assistant sub inspector in the CISF examination 2019 and the petitioner upon fulfilling all the eligibility criteria applied for the post of sub inspectorin CAPF. He states that after being successful in the written examination and PST PET the petitioner was issued an admit card to appear for medical examination on 20th October 2021 on which date he was declared unfit on ground of being overweight as the weight of the petitioner was 80 Kg whereas as per his height and age the weight of the petitioner ought to have been between 59 72 Kg + 5 Kg. He states that on the same day the Petitioner applied for review medical examination and requested the medical authorities to grant him at least ten days time to reduce his weight. However on the very next day that st October 2021 the petitioner was referred for specialist opinion is on 21 and the review medical board vide order dated 26th October 2021 again declared him medically unfit on having determined his weight being 79 Kg. Today learned counsel for the Petitioner contends that the Petitioner was not given sufficient time to reduce his weight as his review medical examination was conducted on the very next day i.e. 21 October 2021. It is a settled law that this Court in writ jurisdiction only examines the decision making process to ensure that the petitioner is treated fairly and reasonably by the respondent. Further the purpose of a Review Medical Board is not to grant time to the Petitioner to cure any deficiency or remove the ground of unfitness but to verify whether the finding of the Initial Medical Board is correct or not. Admittedly the Petitioner was over weight on both days i.e. the date when Initial Medical Board was held as well as on the date when Review W.P.12553 2021 Medical Board was held. There is also no allegation of wrong doing against the respondents. 10. Keeping in view the aforesaid this Court finds no ground to interfere in the present proceedings. Accordingly the present writ petition along with pending application is dismissed. MANMOHAN J NAVIN CHAWLA J NOVEMBER 10 2021 W.P.12553 2021

Depending on the facts and circumstances of the case, an extramarital affair could be considered “mental cruelty” under section 498(A) IPC – Madras High Court

Be that as it may, victim, categorically stated that the petitioner/husband was having extramarital relationship with one Datchayani, who was also prosecuted as accused/A6 for the offence under Section 494 of IPC., but, however, the Trial Court acquitted the said Datchayani as well as the petitioner for the offence of Section 494 of IPC. These were upheld by the High Court of Madras through single bench of Hon’ble Mr.Justice D.Bharatha Chakravarthy in the case of Nakkeeran @ JeroanPandy v. State & Anr. (Crl.R.C.No.333 of 2014). The crux of the case is Thamarai Selvi, lodged a complaint Ex.P2, thereby alleging that she got married with the petitioner/accused 02.03.2000 and after the marriage, the first accused was not maintaining a proper relationship with the complainant and the first accused always used to hit her and other accused also abused her physically and ill-treated her. She also alleged that the first accused/petitioner herein committed bigamy and contracted a marriage with one Datchayani and thereafter, he totally neglected her, hence, the complaint. A case was registered in All Women Police Station against the petitioner herein and his mother Joshvin, who is the second accused, his brother / Maran as the third accused, One Lakshmi, wife of Maran as the fourth accused, his sister Juliee as the fifth accused and Datchayani, the alleged lady, who married the petitioner at the second time, as the sixth accused, for the offences under Sections 498(A), 406, 494 and 506(ii) of IPC. The led investigation proposed all the above accused guilty of the above-mentioned offenses, before the learned Judicial Magistrate. The Trial Court found that the other offences including that of the bigamy as not proved beyond reasonable doubt and therefore acquitted accused 2 to 6 in toto and the petitioner/accused for the other offenses of 406, 494 and 506(ii) but, convicting the petitioner/accused for the offence under Section 498(A) of IPC and sentenced him as aforesaid. Learned counsel for the petitioner, stated there are three sets of allegations, which are there on record to drive home the charge of cruelty. First, Thamarai Selvi alleged that she has been subjected to physical torture and torture of demanding more dowry between the years 2000 to 2005. Those allegations are to be negated because, she herself in legal notice has said that Datchayani and her husband are living happily during the year 2000 to 2005. The second limb of allegations is regarding the specific incident dated 16.11.2005 and upon cross-examination, she herself went back on the said allegations and admitted in the cross-examination that the incident on 16.11.2005 did not happen. Therefore, what remains is the third limb of allegations of cruelty on account of the extramarital relationship of the petitioner. According to the Learned Counsel, the mere allegation of having extramarital relationship will not amount to mental cruelty so as to constitute an offence under Section 498(A) of IPC. In support of his submissions, the learned counsel relied upon the Hon’ble Supreme Court Judgment of Jogi & Ors., Vs. The State of Madhya Pradesh (Crl.A.No.1350 of 2021), and K.V.Prakash Babu Vs. State of Karnataka(2017 (11) SCC 176). The Learned counsel appearing for the first respondent would submit that the evidence of Thamarai Selvi, coupled with her father, who witnessed the second marriage of the first accused/petitioner in Velanganni Temple & who had also witnessed the second marriage of the petitioner with the sixth accused, would conclusively prove that there was cruelty unleashed by the petitioner/accused against PW.1. Just because, the Trial Court acquitted the accused for the offence under Section 494 of IPC., the same would not be a reason for interfering with the finding of mental cruelty inflicted on PW.1 by the petitioner/accused having extramarital relationship. would submit that on a careful consideration of evidence of PW.1, it would be clear that she has categorically deposed in detail about the various physical and mental torture meted out to her by the first accused. As a matter of fact, the evidence of other witnesses would corroborate the said facts. The contents in the legal notice were not specifically put to her in the cross-examination and therefore, the allegations cannot be negated, on the strength of legal notice alone. He would also rely upon the Judgment of the Hon’ble Supreme Court of India in Munna Devi Vs. State of Rajasthan and another((2001) 9 SCC 631) and D.Stephens Vs. Nosibolla (AIR 1951 SC 196). The single bench of Hon’ble Mr.Justice D.Bharatha Chakravarthy while relying on the case of K.V.Prakash Babu Vs. State of Karnataka(2017 (11) SCC 176) stated that “Therefore, looking at the evidence, which is on record, it is clear that there was extramarital relationship. It has caused such an effect on the mental health of Thamarai Selvi, which resulted in serious domestic discord and her leaving the matrimonial home. As a matter of fact, as per the evidence on record, Thamarai Selvi went out of the matrimonial home on 16.11.2005. Considering all the factors cumulatively, I hold that the action of the petitioner/accused in having extramarital relationship, which has further caused grave mental trauma and affected the mental health of Thamarai Selvi, leading to serious circumstances, in conjunction with the act of Thamarai Selvi being forced to leave the matrimonial home, would amount to cruelty to her within Section 498(A) of IPC. However, considering the facts and circumstances of the case I am inclined to modify the sentence of imprisonment alone imposed on the petitioner/accused by reducing it as six months imprisonment from that of one year. The Criminal Revision Case is accordingly partly allowed.”

Crl.R.C.No.3314IN THE HIGH COURT OF JUDICATURE AT MADRASReserved on : 02.12.2021Pronounced on : 07.12.2021CORAM : THE HON BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHYCrl.R.C.No.3314Nakkeeran @ JeroanPandy ... Petitioner Versus1.State rep.by The Inspector of Police All Women Police Station Arani Thiruvannamalai District. 2.M.Thamarai Selvi ... RespondentsPrayer: Criminal Revision Petition is filed under Section 397 r w 401 of Criminal Procedure Code to set aside the Judgment made in Crl.A.No.211 on the file of the Sessions Judge Tiruvannamalai dated 30.01.2014 confirming the Judgment made in C.C.No.3707 on the file of the Judicial Magistrate Court Arani dated 25.11.2011.For Petitioner: Mr.B.M.Subash For Respondent: Mr.L.Bhaskaran Govt. Advocate1 16 https: www.mhc.tn.gov.in judis Crl.R.C.No.3314ORDERThis Criminal Revision Case is filed by the petitioner accused No.1 against the Judgment of the Learned Judicial Magistrate Arani in C.C.No.3707 dated 25.11.2011 thereby convicting him for the offence under Section 498(A) of IPC. and imposing a sentence of two years Rigorous Imprisonment and a fine of Rs.3 000 in default of payment of fine to undergo three months Simple Imprisonment even while acquitting the petitioner accused of the offence under Section 406 494 and 506(ii) of IPC. as also the other accused 2 to 6 in this case and the conviction and sentence being confirmed by the Learned Sessions Judge Thiruvannamalai by Judgment dated 30.01.2014 in Crl.A.No.211.2.On 17.02.2006 PW.1 Thamarai Selvi lodged a complaint Ex.P2 thereby alleging that she got married with the petitioner accused on 02.03.2000 and after the marriage the first accused was not maintaining a proper relationship with the complainant and the first accused always used to hit her and other accused also abused her physically and ill treated her. Apart from mentioning specific incidents she also alleged that the first accused petitioner herein committed bigamy and contracted a marriage 2 16 https: www.mhc.tn.gov.in judis Crl.R.C.No.3314with one Datchayani and thereafter he totally neglected her hence the complaint. 3.PW.10 Inspector of Police All Women Police Station registered a case in Crime No.06 against the petitioner herein and his mother Joshvin who is the second accused his brother Maran as the third accused One Lakshmi wife of Maran as the fourth accused his sister Juliee as the fifth accused and Datchayani the alleged lady who married the petitioner at the second time as the sixth accused for the offences under Sections 498(A) 406 494 and 506(ii) of IPC. 4.After completing the investigation. On 10.03.2007 PW.10 laid a final report proposing all the above accused guilty of the above mentioned offenses before the learned Judicial Magistrate Arani who took the case on file as C.C.No.3707 and issued summons to the accused. Upon being questioned the accused denied the charges and stood trial. The prosecution examined the first informant Thamarai Selvi as PW.1. her father Chinnasamy as PW.2 one Venkatesan who is the sister s husband as PW.3 the mother of PW.1 Ellammal as PW.4 One Vincent the sister of PW.1 as PW.5 One Father Bathros of Kaanikkai 3 16 https: www.mhc.tn.gov.in judis Crl.R.C.No.3314Madha Temple as PW.6 One Alex who is the common friend of both the accused and PW.1 who witnessed the second marriage of the first accused petitioner in Velanganni Temple as PW 7 One Anbu who is also known by both PW.1 and the first accused who had also witnessed the second marriage of the petitioner with the sixth accused as PW.8 One Kalaiselvi the Sub Inspector of Police as PW.9 Another Kalaiselvi wife of A.V.Chandiran the Inspector of Police the Investigating Officer in this case as PW.10. 5.The prosecution marked the marriage invitation between the petitioner and PW.1 as Ex.P1 the complaint of PW.1 is Ex.P2 a letter that was given by PW.1 to keep the proceedings in abeyance pursuant to her complaint as Ex.P3 the CSR receipt for the counter claim by the father of the sixth accused as Ex.P4 and the First Information Report as Ex.P5 and the prosecution rested its case. 6.Upon being questioned under Section 313 of Cr.P.C. about the evidence let in against them and the incriminating circumstances against them all the accused denied the same as false. On behalf of the defence while cross examining the prosecution witnesses the legal notice issued 4 16 https: www.mhc.tn.gov.in judis Crl.R.C.No.3314by PW.1 to the petitioner accused was marked as Ex.D1 the order passed in the Divorce petition filed by PW.1 in the Sub Court Arani is marked as Ex.D2 and the Divorce petition filed by PW.1 before the District Court Thiruvannamalai as Ex.D3. No oral evidence was let in on behalf of the defence. 7.The Learned Judicial Magistrate proceeded to hear the arguments of the Learned Assistant Public Prosecutor and the learned counsel appearing for the accused. By Judgment dated 25.11.2011 it found that there is a valid marriage between PW.1 and the petitioner first accused. As per the evidence of PW.1 coupled with PW.2 the accused had tortured PW.1 after getting her salary to get more money from her parents and because of the vagabond life led by the first accused he has been inflicting cruelty on PW.1. Therefore PW.1 had to come out of the matrimonial home. PW.1 was harassed by demands of more dowry and found that the accused had been committing cruelty from the years 2000 to 2005. The Trial Court found that the other offences including that of the bigamy as not proved beyond reasonable doubt and therefore acquitted accused 2 to 6 in toto and the petitioner accused for the other offenses of 406 494 and 506(ii) but convicting the petitioner accused for the offence 5 16 https: www.mhc.tn.gov.in judis Crl.R.C.No.3314under Section 498(A) of IPC and sentenced him as aforesaid.8.Aggrieved by the findings and sentence the petitioner herein filed an appeal in Crl.A.No.211 before the learned Sessions Judge Thiruvannamalai and by Judgment dated 30.01.2014 after considering the evidence on record in paragraph Nos.12 and 13 the Appellate Court confirmed the findings and conclusions reached by the Trial Court. As a matter of fact in paragraphs Nos.15 & 16 the appellate court held that even A2 to A5 are liable to be punished but the prosecution had not filed any Cross Appeal. Therefore the appellate court confirmed the conviction as well as the punishment against the petitioner. Thereupon this Criminal Revision is laid before this Court.9.Heard Mr.B.M.Subash learned counsel for the petitioner. According to him there are three sets of allegations which are there on record to drive home the charge of cruelty. First PW.1 alleged that she has been subjected to physical torture and torture of demanding more dowry between the years 2000 to 2005. Those allegations are to be negated because she herself in Ex.D1 legal notice has said that Datchayani and her husband are living happily during the year 2000 to 2005. The second limb 6 16 https: www.mhc.tn.gov.in judis Crl.R.C.No.3314of allegations is regarding the specific incident dated 16.11.2005 and upon cross examination she herself went back on the said allegations and admitted in the cross examination that the incident on 16.11.2005 did not happen. Therefore what remains is the third limb of allegations of cruelty on account of the extramarital relationship of the petitioner. According to the Learned Counsel the mere allegation of having extramarital relationship will not amount to mental cruelty so as to constitute an offence under Section 498(A) of IPC. Therefore according to the learned counsel for the petitioner both the Trial Court as well as the First Appellate Court committed a grave error in considering the evidence in a perverse manner and therefore this Court should interfere in exercise of revisional jurisdiction. He would further submit that the Lower Appellate Court as a matter of fact has not independently considered and applied its mind to the evidence relied and as in one sentence confirmed the Trial Court Judgment and therefore the same is bad in law.10.In support of his submissions the learned counsel relied upon the Hon ble Supreme Court Judgment in Jogi & Ors. Vs. The State of Madhya Pradesh1 in Crl.A.No.13521 for the proposition that the 1LL 2021 SC 6397 16 https: www.mhc.tn.gov.in judis Crl.R.C.No.3314Appellate Court erred in not giving detailed reasons. The learned counsel also relied upon Manju Ram Kalita Vs. State of Assam2 for the proposition that cruelty has to be understood and given a specific statutory meaning as provided under Section 498(A) of IPC. and gravity and seriousness of the act have to be weighed. The learned counsel relied upon another Judgment of K.V.Prakash Babu Vs. State of Karnataka3 for the proposition that extramarital relationship per se would not be mental cruelty within the ambit of Section 498(A) of IPC. The learned counsel further relied upon a Judgment in Manikkam Vs. State of Tamil Nadu4 for the proposition that mental cruelty for the purposes of Section 498 A has nothing to do with the demand of dowry. The learned also relied upon the Judgment of the Hon ble Supreme Court of India in Tahsildar Singh And Another vs The State Of Uttar Pradesh5 for the proposition when a document is shown to the witness in the cross examination and if the witness admits the document it is not necessary to further question the witness on the contents of the document.22009SCC 33032017SCC 17642018MWN560 : CDJ 2018 MHC 57195AIR 1959 SC 10128 16 https: www.mhc.tn.gov.in judis Crl.R.C.No.331411.Mr.L.Bhaskaran learned Government Advocateappearing for the first respondent would submit that the evidence of PW.1 coupled with PW.2 PW.7 & PW.8 would conclusively prove that there was cruelty unleashed by the petitioner accused against PW.1. Just because the Trial Court acquitted the accused for the offence under Section 494 of IPC. the same would not be a reason for interfering with the finding of mental cruelty inflicted on PW.1 by the petitioner accused having extramarital relationship. He would further submit that on 17.09.2006 itself through the sixth accused the petitioner has begotten a child and placed a copy of the birth certificate before this Court. He would point out that the divorce proceedings between the PW 1 and the petitioner first accused are still pending he would impress upon this Court that there is no error in the finding by the Trial Court or the First Appellate Court so as to interfere in revisional jurisdiction.12.Mr.B.Sri Ram learned counsel appearing for the victim second respondent PW.1 would submit that on a careful consideration of evidence of PW.1 it would be clear that she has categorically deposed in detail about the various physical and mental torture meted out to her by the first accused. As a matter of fact the evidence of other witnesses would 9 16 https: www.mhc.tn.gov.in judis Crl.R.C.No.3314corroborate the said facts. The contents in the legal notice were not specifically put to her in the cross examination and therefore the allegations cannot be negated on the strength of Ex.D1 alone. He would rely upon the Judgment of the Hon ble Supreme Court of India in Munna Devi Vs. State of Rajasthan and another6 and in D.Stephens Vs. Nosibolla7 for the proposition finding of the Trial Court and the Lower Appellate Court cannot be lightly interfered with by the revisional Court and nature of the revisional jurisdiction is one of limited judicial review and re appreciation of the entire evidence in revision is impermissible.13.I have considered the material evidence on records and the submissions of the learned counsel on either side. As far as the first set of allegations of physical torture and mental cruelty during the period 2000 2005 is concerned when the petitioner herself has caused Ex.D1 legal notice wherein it is specifically avered that PW 1 and the petitioner accused were living happily during 2000 2005. Ex D1 is caused by the PW 1 and therefore once she admits in the cross examination that the notice is given on her instructions and the same being marked it throws doubt on the allegations leveled.6(2001) 9 SCC 63171951 SCR 284 : AIR 1951 SC 196 :52 Cri LJ 510s10 16 https: www.mhc.tn.gov.in judis Crl.R.C.No.331414.Secondly I am also in agreement with the learned counsel for the petitioner that as far as the alleged incident occurred on 16.05.2012 is concerned PW.1 has categorically admitted in her cross examination that the incident did not happen. 15.Be that as it may PW 1 categorically stated that the petitioner husband was having extramarital relationship with one Datchayani who was also prosecuted as accused A6 for the offence under Section 494 of IPC. but however the Trial Court acquitted the said Datchayani as well as the petitioner for the offence of Section 494 of IPC. In this regard the evidence cannot be looked into in piecemeal. This Court has to read the evidence of PW.1 PW.7 & PW.8 as a whole and a proper reading would convey the essence that cruelty predominantly mental cruelty was unleashed on PW.1 on account of the extramarital affairs developed by the petitioner herein. To this the learned counsel would rely on paragraph No.15 of the Judgment of the Hon ble Supreme Court in K.V.Prakash Babu case mentioned supra. Which is extracted hereunder:"15.The concept of mental cruelty depends upon the milieu and the strata from which the persons come from and definitely has an individualistic perception regard being had to one s endurance and sensitivity. It is difficult 11 16 https: www.mhc.tn.gov.in judis Crl.R.C.No.3314to generalise but certainly it can be appreciated in a set of established facts. Extra marital relationship per se or as such would not come within the ambit of Section 498(A) of IPC. It would constitute a criminal offence. There is no denial of the fact that the cruelty need not be physical but a mental torture or abnormal behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case. To explicate solely because the husband is involved in an extra marital relationship and there is some suspicion in the mind of wife that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 of IPC."But the perusal of the above dictum would itself make it clear that the Court has to take into consideration the said abnormal behaviour with the facts and circumstances of the case and it has to be decided whether the conduct amounted to cruelty. Therefore looking at the evidence of PW.1 PW.7 & PW.8 which is on record it is clear that there was extramarital relationship. It has caused such an effect on the mental health of PW.1 which resulted in serious domestic discord and her leaving the matrimonial home. As a matter of fact as per the evidence on record PW.1 went out of the matrimonial home on 16.11.2005. 12 16 https: www.mhc.tn.gov.in judis Crl.R.C.No.331416.During the course of the hearing of the learned Government Advocateappearing for the first respondent also produced the Birth certificate evidencing the birth of a child for the petitioner accused and the said A6 Datchayani which was born on 17.09.2006 itself. Therefore the Court cannot close its eyes to the hard evidence and the facts of this case. It is pertinent to point out even the Appellate Court has taken an exception to the prosecution in non filing of Cross Appeal as against the acquittal of A2 to A6 in this case. 17.Considering all the factors cumulatively I hold that the action of the petitioner accused in having extramarital relationship which has further caused grave mental trauma and affected the mental health of PW.1 leading to serious circumstances in conjunction with the act of PW.1 being forced to leave the matrimonial home would amount to cruelty to her within Section 498(A) of IPC. 18.During his arguments the Learned Counsel replied by pointing out that PW.1 was also in an extramarital relationship with one Ramu and that they have cross examined her. Except throwing allegations on PW.1 in the cross examination the defence has not done anything 13 16 https: www.mhc.tn.gov.in judis Crl.R.C.No.3314towards the proof of allegations and under the said circumstances I reject the said submission without merits.19.In view of my aforesaid findings there is no any illegality or any error in the conclusion of the Trial Court and the Lower Appellate Court that the petitioner is guilty of the offence under Section 498(A) of IPC.20.However considering the facts and circumstances of the case I am inclined to modify the sentence of imprisonment alone imposed on the petitioner accused by reducing it as six months imprisonment from that of one year.21.The Criminal Revision Case is accordingly partly allowed. 07.12.2021Index: YesSpeaking orderklt14 16 https: www.mhc.tn.gov.in judis Crl.R.C.No.3314To1.The learned Sessions Judge Tiruvannamalai.2.The Judicial Magistrate Court Arani.3.The Public Prosecutor High Court of Madras.15 16 https: www.mhc.tn.gov.in judis Crl.R.C.No.3314D.BHARATHA CHAKRAVARTHY. J. kltPre Delivery Order inCrl.R.C.No.331407.12.202116 16

Indiscriminate use of sedition against media personnel who air their grievances about the Government, must be checked: Supreme Court

Indiscriminate use of the sedition law against critics, journalists, social media users, activists and citizens for airing their grievances about the governments COVID-19 management, or even for seeking help to gain medical access, equipment, drugs and oxygen cylinders, especially during the second wave of the pandemic, must be interpreted in the context of the right of electronic and print media to communicate news and information, even those that may be critical of the prevailing regime in any part of the nation. A three-judge bench of Justice DY Chandrachud, Justice L Nageshwar Rao and Justice SR Bhat, while adjudicating the matter in M/S Aamoda Broadcasting Company Pvt Ltd & Anr v. The State of Andhra Pradesh & Ors; [W.P.(Crl.) No. 216/2021 (X)]; dealt with the issue of aimless slapping of sedition law against the media. Media plays an important role in a democracy. It is well-known that media is the fourth pillar of democracy and its freedom must be protected at all costs. On May 14th 2021, the Andhra Pradesh police station lodged an FIR against Telugu TV Channels TV5 and ABN, under Section 124A for sedition, Section 153 A for promoting enmity between different groups, and Section 505 for defamation under the Indian Penal Code. Apparently, these Telugu TV channels were critical of Chief Minister YS Jagan Mohan Reddy for mis-managing the Covid-19 crisis. In response to this, the Telugu TV Channels challenged Andhra Pradesh police’s decision to file a case against them. The TV channels were represented by advocates Vipin Nair and G Pramod Kumar. They argued that the sedition FIR against them was an “unfortunate assault”. The State had accused them of sedition for reporting news about the pandemic in an “unbiased manner”. “Merely because the content of the news reported in an unbiased manner is critical of a government or not to its liking, it cannot be said that the news outlet has committed an act of sedition or inciting hatred. To do so would be directly contrary to the freedom of Press,” ABN, represented by Guntur Pramod Kumar, said in the petition.TV5 said the “vague” FIR had a chilling effect on free speech in the media. “The attempt of the FIR is to create a chilling effect for news channels in the State, so that every news channel is wary of hosting any content which is critical of the government. By filing a vague FIR and abusing the process of law, the State intends to silence its critics and the media,” TV5 said.

ITEM NO.329 Court 5SECTION PIL W S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Writ Petition(s)(Criminal) No(s).217 2021 M S AAMODA BROADCASTING COMPANY PRIVATE LIMITED & ANR. Petitioner(s VERSUS THE STATE OF ANDHRA PRADESH & ORS. WITH IA No.62627 2021 EX PARTE STAY W.P.(Crl.) No. 216 2021TV5 andABN. They are aggrieved by a First Information Report being FIR No 121 registered on 14 May 2021 under the provisions of Sections 124 153A 505 read with Section 120B of the Indian Penal Code 1860. The FIR indicates that it is a “suo motu case” based on an enquiry report of the DIG CID AP Mangalagiri Guntur District dated 13 May 2021. The gravamen of the allegation against the news channels arises from certain programmes which have been broadcast by them. During the programmes Mr Raghurama Krishnam Raju Member of Parliament is alleged to have expressed views critical of the State Government and the Chief Minister Besides Mr Raju who has been named as the first accused TV5 and ABN have been named as the second and third accused Mr Shyam Divan and Mr Sidharth Luthra learned Senior Counsel appearing on behalf of the petitioners have submitted that the FIR constitutes an attempt to muzzle the electronic media and is an assault on the freedom of speech and expression under Article 19(1)(a) of the Constitution. It has been submitted that read as they stand the allegations in the FIR do not establish any offences under the provisions which have been invoked against them. The jurisdiction of this Court under Article 32 has been invoked on the ground that while dealing with the suo motu Covid 19 case1 this Court in its order dated 30 April 2021 has made categoric observations in regard to the need for restraint on the invocation of the coercive arm of the law against persons voicing comments critical to matters of governance which arise in the context of the Covid crisis. The SMW(C) No 21 Member of Parliament has been granted bail by the Court Having heard learned counsel we are of the view that the ambit and parameters of the provisions of Sections 124A 153A and 505 of the Indian Penal Code 1860 would require interpretation particularly in the context of the right of the electronic and print media to communicate news information and the rights even those that may be critical of the prevailing regime in any part of the nation Issue notice returnable in six weeks Dasti in addition is permitted Liberty to serve the Standing Counsel for the State of Andhra Pradesh Counter affidavit shall be filed within a period of four weeks from the date of Till the next date of listing there shall be a stay on the respondents adopting any coercive proceedings in pursuance of FIR No 121 dated 14 May 2021 against the two television channels which are the petitioners before the Court namely TV5 and ABN as well as their personnel AR CUM PS COURT MASTER SAROJ KUMARI GAUR

The court cannot modify the terms of a Consent Decree or a settlement except by consent of the parties to the Decree- High Court of Delhi.

Consent decrees can be modified by a court only when there is revised consent of the parties to the decree, or when the consent was obtained by fraud, misrepresentation, or mistake, or where a few clerical or arithmetical corrections need to made in the consent decree. Other than these conditions, a court cannot modify the terms of a consent decree or the terms of a settlement. A single judge bench comprising of Hon’ble Mr. Justice C. Hari Shankar in the matter of Connaught Plaza Restaurant Pvt. Ltd Vs. Capital Boot House(I.A. 7647/2021), dealt with an issue where the petitioner has filed an application under Section 151 of CPC, 1908 seeking extension/enlargement of time and under Order XXXIX, Rules 1 and 2, read with section 151 of CPC, 1908 for restraining the respondent from interfering with peaceful possession of the petitioner. In the present case, the petitioner had approached the court with an application for seeking an extension of time to vacate the premises of the respondent. The counsel for the petitioner argued only on the ground that because of intervening of the Covid-19 pandemic and the restrictions due to the lockdowns imposed by the government authorities, it became impossible for the petitioner to vacate the premises before 30th June 2021, as such date was stated in the terms and conditions of the settlement deed, which the parties agreed on. Further, the counsel of the petitioner submitted that the present Covid-19 situation was not within the contemplation of the parties when they entered into the settlement agreement. Thereby, the petitioner would require at least 3 months to remove the fixtures, furniture, and the effluent treatment plant situated on the roof of the premises. The counsel of the petitioner requested the court to grant the petitioner the required time to vacate the premises and asked that till then the respondent be restrained from forcibly evicting the petitioner from the premises. The counsel for the respondent questioned the bona fides of the petitioner’s application. The counsel also submitted that the respondent wrote twice on 12th May 2021 and 13th June 2021 making it clear that no time beyond 30th June 2021 would be provided to the petitioner to retain the premises. Further, the counsel submitted that the respondent is unwilling to allow the petitioner to continue on the premises.

IN THE HIGH COURT OF DELHI AT NEW DELHI OMP(COMM) 129 2016 & I.A. 7647 2021 I.A. 7648 2021 CONNAUGHT PLAZA RESTURANTS PVT. LTD. Petitioner Through: Dr. N. Pradeep Sharma & Mr. Abhinav S. Raghuvanshi Advs. CAPITAL BOOT HOUSE Respondent Through: Mr. Rajesh Yadav Sr. Adv. With Ms. Ruchira Yadav Adv. HON BLE MR. JUSTICE C. HARI SHANKAR 01.07.2021 I.A. 7647 2021 & I.A. 7648 2021 These are connected applications which essentially seek a modification of the terms of settlement between the petitioner and the respondent on the basis where of OMP (COMM) 129 2016 was disposed of by this Court on 4 November 2016. It is not necessary to enter into the details of controversy between the parties. Suffice it to state that the settlement deed dated 3rd November 2016 in which the respondent was the “first party” and OMP(COMM) 129 2016 the petitioner was the “second party” specifically envisaged inter alia thus: terms and conditions of the previous agreements between the parties shall be binding on them as also directed by the Hon’ble High Court of Delhi in orders is however and 10.08.2015. clarified agreed between the parties that in view of changed circumstances the franchise agreement dated 11.10.2000 shall expire with the efflux of time on 30.06.2021 when all the agreements between the parties shall automatically come to an end. There shall be no further extension enlargement for any reason whatsoever of time beyond 30.06.2021. The Second Party shall remove all its installations fittings and fixtures on or before 30.06.2021. The Second Party shall not be entitled to seek any extension enlargement under any Emphasis supplied) Vide order dated 4th November 2016 OMP (COMM) 129 2016 was disposed of by this Court on the basis of the afore extracted settlement deed which was directed to form part of the order and by which the parties were explicitly made bound. By the present application the petitioner seeks extension of time to vacate the premises of the respondent. The only ground urged in the petition and argued before the Court by Dr. Sharma learned Counsel for the petitioner is the intervening COVID 19 pandemic and the restrictions put in place by the lockdowns imposed by the governmental authorities from time to time. Dr. Sharma submits that these lockdowns have made it impossible for the petitioner to vacate the premises before 30 June 2021 as required by the afore extracted clause in the settlement deed between the parties. OMP(COMM) 129 2016 4. Dr. Sharma learned Counsel for the petitioner applicant submits that at the time when the settlement deed was executed neither party could foresee the COVID 19 pandemic or the hardships that would result as a consequence thereof. He submits that his client has no intention of continuing in the premises in question but would take at least three months’ time to remove the fixtures and furniture as well as the effluent treatment plant situated on the roof of the premises to another location. In as much as the present situation was not within the contemplation of the parties when they entered into the aforesaid settlement agreement Dr. Sharma submits that the interests of justice would require that further time be granted to the petitioner to vacate the premises and that in the interregnum the respondent be restrained from forcibly seeking to evict the petitioner therefrom. 5. Mr. Rajesh Yadav learned Senior Counsel appearing for the respondent on the other hand seriously questions the bona fides of the present application. He submits that the respondent wrote not once but twice to the petitioner on 12th May 2021 and 13th June 2021 making it clear that no time beyond 30th June 2021 would be granted to the petitioner to retain the premises in question. He submits that despite these communications the respondent has at the nth hour and a day before 30th June 2021 sought to invoke the jurisdiction of this Court to frustrate the agreement between the parties. He submits on instructions that his client is unwilling to allow the petitioner to continue in the premises in question any further. He also places reliance on the recent judgment of the Supreme Court in Compack OMP(COMM) 129 2016 Enterprises India Pvt. Ltd. vs. Beant Singh1 in this regard. In the opinion of this Court no relief whatsoever can be granted to the petitioner in either of these applications. The terms of settlement between the petitioner and the respondent are clear and explicit. The parties have taken care to clarify in the afore extracted Para 3 of the terms of settlement not once but twice that “there shall be no further extension enlargement for any reason whatsoever of time beyond 30.06.2021” and that the petitioner would “not be entitled to seek any extension enlargement under any circumstances”. The paragraph requires the petitioner to remove all installations fittings and fixtures on or before 30th June 2021. Once the parties have consciously and between themselves agreed that no extension of time beyond 30th June 2021 to vacate the premises would be available to the petitioner for any reason whatsoever and under any circumstances it is not open to the petitioner to contend before the Court that extension was justified as the circumstances in which the petitioner finds itself were not foreseeable when the settlement agreement was executed. That would amount to requiring the Court to pass an order in violation of the terms of settlement between the parties on the basis of which OMP(COMM) 129 2016 was disposed of. This quite obviously is not permissible at all. The plea of the petitioner that it would need further time to 13 SCC 702 OMP(COMM) 129 2016 remove the furniture fixtures and effluent treatment plant located on the premises is also without merit as the afore extracted para 3 of the terms of settlement expressly requires the petitioner to remove all furniture fixtures and other equipment on or before 30th June 2021. This settlement was executed almost five years back. It was for the petitioner to take steps to ensure that the furniture fixtures and other equipment including the effluent treatment plant were removed before June 2021. No extension of time can be granted therefore even for the said purpose. There is also prima facie substance in the contention of Mr. Yadav that the present application lacks bona fides. Though the respondent was under no duty to do so it nevertheless placed the petitioner on notice regarding its responsibility to vacate the premises on 30th June 2021 vide its communications dated 12th May 2021 and June 2021. There was no want of clarity therefore at all regarding the stand of the respondent. It does therefore appear disquieting that a day before the time for vacating the premises was to expire the petitioner has sought to move this Court and obtain injunctive orders. The manner in which the petitioner has invoked the Court’s jurisdiction also operates as a fetter to grant of any relief to the petitioner in this case. 11. The reliance by Mr. Yadav on the decision in Compack Enterprises1 is also well placed. The Supreme Court has also made it absolutely clear that consent decrees are not to be lightly interfered OMP(COMM) 129 2016 with by Court save and except by consent of the parties to the decree. The only circumstances in which consent decrees can be modified by a Court are where there is revised consent of the parties to the decree the consent was obtained by fraud misrepresentation or mistake or clerical or arithmetical errors in the consent decree were required to be corrected. Absent these exigencies the Court cannot modify the terms of a consent decree or a settlement on the basis of which the petition was disposed of. At the unilateral request of one of the parties to the settlement it is obvious that the Court cannot pass an order which is violative of the terms of settlement. Were it to do so the Court would be acting in flagrant excess of the jurisdiction vested in it. 12. Paras 19 and 20 of the report in Compack Enterprises1 may for this purpose be reproduced thus: Before adverting to the specific contentions raised by the learned Senior Counsel for the petitioner it may be useful to briefly summarise the law governing consent decrees that shall inform our conclusions on the present matter. It is well settled that consent decrees are intended to create estoppels by judgment against the parties thereby putting an end to further litigation between the parties. Resultantly this Court has held that it would be slow to unilaterally interfere in modify substitute or modulate the terms of a consent decree unless it is done with the revised consent of all the parties thereto. 2 Gupta Steel Industries v. Jolly Steel Industries Ltd Suvaran Rajaram Bandekar v. Narayan R. Bandekar3 However this formulation is far from absolute and does not apply as a blanket rule in all cases. This Court in has held that Byram Pestonji Gariwala v. Union Bank of India 211 SCC 678 310 SCC 255 41 SCC 31 OMP(COMM) 129 2016 a consent decree would not serve as an estoppel where the compromise was vitiated by fraud misrepresentation or mistake. Further this Court in the exercise of its inherent powers may also unilaterally rectify a consent decree suffering from clerical or arithmetical errors so as to make it conform with the terms of the compromise.” Emphasis supplied) In view of this legal position it is not possible for this Court to come to the aid of the petitioner or accommodate any of the prayers contained in either of these applications. 14. Both applications are therefore dismissed. C. HARI SHANKAR J. VACATION JUDGE) JULY 01 2021 OMP(COMM) 129 2016

Court is empowered to examine the existence as well as validity of an arbitration agreement: High Court of Delhi

The Court has to consider the existence as well as the validity of the arbitration agreement in the present proceedings under Section 11 of the Arbitration and Conciliation Act. An agreement enforceable by law is a contract defined in Section 2 (h) of the Indian Contract Act whereas an agreement not enforceable in law is void as per Section 2 (g) of the Indian Contract Act. This was held in BANGA ELECTRONICS PVT. LTD. v. JAGMOHAN SINGH[ARB.P.1/2019] in the High Court of Delhi by a single bench consisting of JUSTICE J.R. MIDHA. Facts are that the petitioner had entered a purchase agreement for an undivided share in the property from the respondent. Against the same property which is the subject matter of purchase, a stay order had been passed by the family court in a separate matrimonial case between the respondent and his wife. The petitioner is seeking the appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act. The counsel for the petitioner submitted that the agreement is valid and enforceable. The arbitration agreement between the parties is contained in clause 14 of the agreement. The petitioner was not aware of the stay order at the time of execution of the agreement dated the same was vacated when the respondent’s wife withdrew the petition with liberty to file a fresh one and there is no impediment to the enforcement of the agreement and petitioner cannot be denied specific performance. The counsel for the respondent submitted that the alleged agreement is in contravention of the stay order. The respondent vehemently disputes that the stay order has been vacated and it can be confirmed that the stay order is still continuing. The agreement has not been signed by the petitioner and was not a concluded contract. The court discussed the scope of Section 11 of the Arbitration and Conciliation Act, which has been explained by the Supreme Court in the case of  Vidya Drolia v. Durga Trading Corporation, the following observations were made, “Exercise of power of prima facie judicial review of existence as including validity is justified as a court is the first forum that examines and decides the request for the referral. Absolute ―hands off‖ approach would be counterproductive and harm arbitration, as an alternative dispute resolution mechanism. Limited, yet effective intervention is acceptable as it does not obstruct but effectuates arbitration. 147.7. Exercise of the limited prima facie review does not in any way interfere with the principle of competence– competence and separation as to obstruct arbitration proceedings but ensures that vexatious and frivolous matters get over at the initial stage.” The court also made reference to the case of  Subrata Roy Sahara v. Union of India, from which the court had drawn the following observations, “Exercise of prima facie power of judicial review as to the validity of the arbitration agreement would save costs and check harassment of objecting parties when there is clearly no justification and a good reason not to accept plea of non-arbitrability.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 04th May 2021 JAGMOHAN SINGH Respondent BANGA ELECTRONICS PVT. LTD. Petitioner ARB.P. 1 2019 HON BLE MR. JUSTICE J.R. MIDHA O R A L JUDGMENT The petitioner is seeking appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act. On 13th August 2018 the petitioner agreed to purchase 50% undivided share in property bearing No.C 41 Rajouri Garden New Delhi 110027 from the respondent for Rs.8 90 00 000 . The petitioner paid Rs.1 50 00 000 to the respondent 20 2018 against the respondent which he withdrew on 21st December 2018. On 12th November 2018 the petitioner invoked the arbitration by On 21st December 2018 the petitioner instituted this petition for appointment of an arbitrator under Section 11 of the Arbitration and legal notice. Conciliation Act. The respondent is opposing this petition on the ground that the impugned agreement dated 13th August 2018 is null and void being in violation of the stay order dated 09th March 2018 and therefore not enforceable in law. Submissions of the petitioner The agreement dated 13th August 2018 is valid and enforceable. The arbitration agreement between the parties is contained in clause 14 of the agreement dated 13th August 2018. The petitioner invoked the arbitration vide notice dated 12th November 2018. 10. With respect to the stay order dated 09th March 2018 it is submitted that the petitioner was not aware of the stay order dated 09th March 2018 at the time of execution of the agreement dated 13th August 2018. 11. The stay order was vacated on 27th August 2019 when the respondent’s wife withdrew the petition with liberty to file a fresh one and there is no impediment to the enforcement of the agreement dated 13th August 2018. 12. Even if the stay order is continuing the petitioner is entitled to the specific performance. It is submitted that the petitioner may be guilty of contempt for violation of the stay order but the petitioner cannot be denied the relief of specific performance. Submissions of the respondent 13. The respondent is 70 years old and he executed the agreement dated 13th August 2018 to get rid of the matrimonial disputes by selling of his one half share to the petitioner at a lower price just to buy peace of mind. 14. The respondent was not aware of the stay order dated 09th March 2018 at that time. The respondent was not present before the Family Court on 09th March 2018 when the stay order was passed restraining the respondent from selling the subject property. The respondent’s counsel was present before the Family Court on 09th March 2021 but there was a communication gap with his counsel and he was unaware of the stay order. 15. The respondent appeared before the Family Court on 29th September 2018 when he came to know of the stay order dated 09th March 2018. The respondent immediately contacted the petitioner and informed him about the stay order. The respondent sent a written intimation to the petitioner by e mail on 19th October 2018. The respondent transferred Rs.1 40 00 000 to the petitioner on 18th October 2018 and Rs.10 00 000 in January 2019. The respondent also offered Rs.10 00 000 as interest for two months but the respondent demanded Rs.40 00 000 towards interest for keeping Rs.1 50 00 000 for two months. 16. The alleged agreement dated 13th August 2018 is in contravention of the stay order. The learned counsel for the respondent vehemently disputes that the stay order has been vacated on 27th August 2019. According to the respondent the matter was listed before the Family Court on 18th November 2019 when the ld. Court adjourned the matter to 19th December 2019 for awaiting the record from this Court. The original record of the Family Court dispute was requisitioned by this Court and it can be confirmed that the stay order is still continuing. 17. The agreement dated 13th August 2018 has not been signed by the petitioner and was not a concluded contract. There was no Board Resolution of the petitioner company at the relevant time for execution of the agreement. Discussion and Analysis 18. The first question arises for consideration Whether the stay order dated 09th March 2018 is continuing as alleged by the respondent or it was vacated on 27th August 2019 as alleged by the petitioner 19. Vide order dated 03rd July 2019 this Court requisitioned the record of the maintenance case bearing M.T.No.222 2017 titled Manjeet Sahni v. Jagmohan Sahni pending before the Family Court Vs. JagmohanPetitioner in person with her son Harpal Singh with counsel Mr.Imran Counsel Sh. Sameer Diwan for the respondent. V N by Sh. Diwan filed. Petitioner submits that the respondent has sold few properties and he may be restrained from selling the matrimonial home at Rajouri Garden where the parties are residing. Admittedly both the parties are getting the rental income of Rs.2 48 000 per month each. In the given facts and circumstances till NDOH both the parties are directed not to create any third party interest in the matrimonial home at Rajouri Garden. Both the parties are directed to file their affidavit on their assets income and expenditure along with documents. The affidavit shall be in format at Annexure A1 which can be downloaded from the website: www.delhicourts.nic.in july17 27x.pdf. by the male spouse to be paid to the female spouse. 26.03.2018 in court no.8 Tis Hazari Delhi. The divorce case of the male spouse is stated to be fixed on Towards litigation costs sum of Rs.11 000 in cash be brought Put up on 26.03.2018. Sd ) ADDL.PRINCIPAL JUDGE FAMILY COURT TIS HAZARI DELHI Emphasis supplied) 21. The record of the Family Court reveals that the respondent had filed a petition for divorce against his wife in 2014 and the maintenance case was transferred and listed before the Family Court along with the divorce petition on 11th May 2018 30th May 2018 09th July 2018 16th July 2018 30th August 2018 and 28th September 2018 30th October 2018 06th February 2019 and 04th April 2019 when the respondent was present along with his counsel. On 28th September 2018 the learned Family Court extended the interim order dated 09th March 2018 till further orders. 22. The record of the Family Court requisitioned by this Court on 03rd July 2019 is still with this Court along with this case and there is no order dated 27th August 2019 as alleged by the petitioner. The stay order dated 09th March 2018 is still continuing and the submission of the petitioner that the stay order was vacated on 27th August 2019 is false and incorrect. 23. The second question arises for consideration Whether agreement dated 13th August 2018 is not enforceable in view of the stay order dated 09th March 2018 passed by the Family Court 24. According to the petitioner the agreement dated 13th August 2018 is enforceable whereas according to the respondent the agreement dated 13th August 2018 is not enforceable by law. 25. The law with respect to the scope of Section 11 of the Arbitration and Conciliation Act has been settled by three Judges Bench of the Supreme Court in Vidya Drolia v. Durga Trading Corporation 2 SCC 1. The Supreme Court held that the Court is empowered to examine the existence as well as validity of an arbitration agreement in proceedings under Section 11 of the Arbitration and Conciliation Act. The relevant portion of the Supreme Court judgment is reproduced hereunder: ―21. The term ―agreement‖ is not defined in the Arbitration Act albeit it is defined in Section 10 of the Contract Act 1872 [―10. What agreements are contracts.—All agreements are contracts if they are made by the free consent of parties competent to contract for a lawful consideration and with a lawful object and are not hereby expressly declared to be void.Nothing herein contained shall affect any law in force in India and not hereby expressly repealed by which any contract is required to be made in writing or in the presence of witnesses or any law relating to the registration of documents.‖] as contracts made by free consent of parties competent to contract for a lawful consideration and with a lawful object and are not thereby expressly declared to be void. Section 10 of the Contract Act also stipulates that aforesaid requirements shall not affect any law in force in Indiaby which a contract is required to be made in writing in presence of witnesses or any law relating to registration of documents. Thus an arbitration agreement should satisfy the mandate of Section 10 of the Contract Act in addition to satisfying other requirements stipulated in Section 7 of the Arbitration 22. Sections 12 to 18 of the Contract Act state when a person can be said to be of a sound mind for the purpose of contracting and define the consent‖ ―coercion‖ ―undue expressions ―consent‖ ―free influence‖ ―fraud‖ and ―misrepresentation‖. Sections 19 to 23 relate to voidability of agreements the power to set aside contracts induced by undue influence when both the parties are under mistake as to a matter of fact effect of a mistake as to the law effect of a mistake by one party as to a matter of fact and what considerations and objects are lawful and unlawful. Sections 24 to 30 relate to void contracts and Sections 26 and 27 therein state that agreements in restraint of marriage and agreements in restraint of trade respectively are void albeit Exception to Section 27 saves agreements for not carrying out the business of which goodwill is sold. Section 28 of the Contract Act states that agreements in restraint of legal proceedings are void but Exception specifically saves contracts by which two or more persons agree that any dispute or one which may arise between them in respect of any subject or class of subjects shall be referred to 23. Arbitration agreement must satisfy the objective mandates of the law of contract to qualify as an agreement. Clauses and of Section 2 of the Contract Act state that an agreement not enforceable in law is void and an agreement enforceable in law is a contract. As a sequitur it follows that an arbitration agreement that is not enforceable in law is void and not legally valid. 146. We now proceed to examine the question whether the word ―existence‖ in Section 11 merely refers to contract formationand excludes the question of enforcement and therefore the latter falls outside the jurisdiction of the court at the referral stage. On jurisprudentially and textualism it is possible to differentiate between existence of an arbitration agreement and validity of an arbitration agreement. Such interpretation can draw support from the plain meaning of the word ―existence‖. However it is equally possible jurisprudentially and on contextualism to hold that an agreement has no existence if it is not enforceable and not binding. Existence of an arbitration agreement presupposes a valid agreement which would be enforced by the court by relegating the parties to arbitration. Legalistic and plain meaning interpretation would be contrary to the contextual background including the definition clause and would result in unpalatable consequences. A reasonable and just interpretation of ―existence‖ requires understanding the context the purpose and the relevant legal norms applicable for a binding and enforceable arbitration agreement. An agreement evidenced in writing has no meaning unless the parties can be compelled to adhere and abide by the terms. A party cannot sue and claim rights based on an unenforceable document. Thus there are good reasons to hold that an arbitration agreement exists only when it is valid and legal. A void and unenforceable understanding is no agreement to do anything. Existence of an arbitration agreement means an arbitration agreement that meets and satisfies the statutory requirements of both the Arbitration Act and the Contract Act and when it is enforceable in law. 147.1.. ….Existence and validity are intertwined and arbitration agreement does not exist if it is illegal or does not satisfy mandatory legal requirements. Invalid agreement is no agreement. 147.2. The court at the reference stage exercises judicial powers. ‗Examination‘ as an ordinary expression in common parlance refers to an act of looking or considering something carefully in order to discover something 8 SCC 470 this Court has ―191. The Indian judicial system is grossly afflicted with frivolous litigation. Ways and means need to be evolved to deter litigants from their compulsive obsession towards senseless and ill considered claims. One needs to keep in mind that in the process of litigation there is an innocent sufferer on the other side of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and restlessness whilst the litigation is pending without any fault on his part. He pays for the litigation from out of his savings worrying that the other side may trick him into defeat for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work or with his family is lost for no fault of his. Should a litigant not be compensated for what he has lost for no fault The suggestion to the legislature is that a litigant who has succeeded must be compensated by the one who has lost. The suggestion to the legislature is to formulate a mechanism that anyone who initiates and continues a litigation senselessly pays for the same. It is suggested that the legislature should consider the introduction of a ―Code of Compulsory Costs‖. 147.11. The interpretation appropriately balances the allocation of the decision making authority between the court at the referral stage and the arbitrators‘ primary jurisdiction to decide disputes on merits. The court as the judicial forum of the first instance can exercise prima facie test jurisdiction to screen and knockdown ex facie meritless frivolous and dishonest litigation. Limited jurisdiction of the courts ensures expeditious alacritous and efficient disposal when required at the referral stage. 153. Accordingly we hold that the expression ‗existence of an arbitration agreement‘ in Section 11 of the Arbitration Act would include aspect of validity of an arbitration agreement albeit the court at the referral stage would apply the prima facie test on the basis of principles set out in this judgment. In cases of debatable and disputable facts and good reasonable arguable case etc. the court would force the parties to abide by the arbitration agreement as the arbitral tribunal has primary jurisdiction and authority to decide the disputes including the question of jurisdiction and non arbitrability.” Emphasis supplied) 26. Applying the well settled principles of law laid by the Supreme Court this Court has to consider the existence as well as validity of the arbitration agreement in the present proceedings under Section 11 of the Arbitration and Conciliation Act. An agreement enforceable by law is a contract defined in Section 2 of the Indian Contract Act whereas an agreement not enforceable in law is void as per Section 2of the Indian Contract Act. In the present case the agreement dated 13th August 2018 is in violation of the stay order dated 09th March 2018 which is continuing. The agreement dated 13th August 2018 is therefore not enforceable and is void in terms of Section 2(g) of the Contract Act. This Court is of the view that an arbitrator cannot be appointed to enforce a void agreement. 28. This petition for appointment of an arbitrator is dismissed. J.R. MIDHA J. MAY 04 2021

Attributing fraud, collusion, suppression or wilful mis-statement to the Scientists and Academicians, will have a demoralizing effect, would not be in public interest: Telangana High court

On 14-06-2021, the two judge bench comprising of Hon’ble Sri Justice M.S Ramachandra Rao and Hon’ble Sri Justice T. Vinod Kumar adjudged “though the respondent is established as an autonomous body, the same for all purposes like administrative control, its financial needs etc., looks only to the Government. This is on account of the fact the services of the respondent are utilized for functioning of various Government agencies under different Ministries and is not run like a private commercial organization with a profit motive”, in a matter concerned with tax evasion in the case The Commissioner, Customs & Central Excise Vs. M/s. National Remote Sensing Agency [CEA NO.2 OF 2021]. The facts of the case are, respondent is an autonomous body under the department of space and research. The appellant directed the respondents to register themselves under the provisions of Finance Act, 1994 for certain services namely, 1) photography service, (2) scientific and technical consultancy service and (3) commercial training and coaching service which are categorised as taxable services under the act. The respondent obtained the registration as guided. On 23-10-2006, a show cause notice was issued by the appellant to the respondent with respect to the non-payment of service tax. The respondent submitted that the services provided by them is not under the scope of taxable services since they are not providing it to a third party. Aggrieved by this, both the appellant and the respondent filed separate appeals before a tribunal. The tribunal ruled in favour of the respondents and thus the appellant has appealed before the High Court. To deal with the issue whether there was tax evasion was intended, the court first analysed the nature and scope of operation of the respondent by upholding the findings of the tribunal which was, “we find that the assessee in this case is an autonomous organization under the Department of Space, Government of India. It is not a private business entity. By not paying service tax the assessee is not gaining anything. It is a Governmental organization run by Bureaucrats and Scientists, none of whom have any personal interest in evading service tax. In fact, by evading service tax, nothing would be gained either by anyone individually or by their organization” . It was also observed that the services provided by the respondent was in interest of the national security and the services were given to the central and state governments. Thus, such activities wouldn’t be under the purview of the act and hence cannot be liable to tax. The learned judges upheld the decree by the tribunal and dismissed the appeal. Click here to read this judgement.  

THE HIGH COURT OF JUDICDATURE FOR THE STATE OF TELANGANA : HYDERABAD CEA NO.2 OF 2021 The Commissioner Customs & Central Excise Hyderabad IVMedchal GST Bhavan 11 4 649 B Lakdikapool Hyderabad. Vs. Appellant M s. National Remote Sensing Agency Balanagar Hyderabad. .. Respondent DATE OF THE JUDGMENT PRONOUNCED: 14.06.2021 SUBMITTED FOR APPROVAL: HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO HONOURABLE SRI JUSTICE T.VINOD KUMAR Whether Reporters of Local newspapers may be allowed to see the judgment Whether the copies of judgment may be marked to Law Reporters Journals Whether Their Lordships wish to see the fair copy of the judgment M.S.RAMACHANDRA RAO J T.VINOD KUMAR J HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO HONOURABLE SRI JUSTSICE T.VINOD KUMAR CEA NO.21 DATED 14th JUNE 2021 The Commissioner Customs & Central Excise Hyderabad IVMedchal GST Bhavan 11 4 649 B Lakdikapool Hyderabad. .. Appellant Vs. M s. National Remote Sensing Agency Balanagar Hyderabad. ... Respondent Head Note: Counsel for the Appellant: Sri B. Narayan Reddy Learned Senior Standing Counsel appearing for the appellant Revenue Counsel for Respondent: CASES REFERRED: THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO AND THE HON’BLE SRI JUSTICE T. VINOD KUMAR CEA No.21 ORDER :This appeal under Section 35H of the Central Excise Act 1944is directed against the common order No.A 30898 30899 2020 dated 29.06.2020 in Service Tax Appeal Nos.4008 and 4008 passed by the Customs Excise and Service Tax Appellate Tribunal Regional Bench Hyderabadthe respondent assessee had not resorted to willful suppression with an intent to evade payment of service tax and thus the extended period of limitation prescribed under Section 73(1) of the Finance Act cannot be invoked and since there is no evidence of willful suppression of facts provisions of Section 80 of Finance Act 1994 can be invoked to waive the penalties imposed. 5. The Respondent assessee National Remote Sensing Agency is an autonomous body under the Department of Space and Research. The respondent is an organization established with the object of capturing Satellite Data Reception Processing Dissemination and application of Satellite Data in harnessing natural resources and also supporting various agencies of Government which are involved in launching of Satellite like ISRO and other Space centres concerned with designing of Satellite launch vehicles by receiving data from the Satellites launch processing and disseminating the same to the user agency including Defence establishments on behalf of the Government of India. 6. It is on record that authorities of Revenue directed the respondent NRSA to obtain registration in respect of the three services viz. photography service scientific and technical consultancy service and commercial training and coaching service as these services are taxable services under Chapter V of the Finance Act 1994 and NRSA is providing above services for consideration and is required to discharge service tax. Upon such direction of the authorities of the Revenue NRSA obtained registration under the provisions of Finance Act 1994 with effect from 14.02.2005. 7. On the respondent NRSA obtaining registration as guided by the appellant Revenue authorities the respondent was issued notices calling for certain records and documents for the period 16.07.2001 to 31.03.2005 in respect of above three categories of services for which registration was obtained. In response to the notice issued by the appellant the respondent submitted Annual Reports for the year 2001 to 2004 2005 detailed project wise list the working of respondent with regard to Satellite Data dissemination and other activities undertaken for user agencies. 9. Upon the submission of the above information the appellant Revenue issued show cause notice dt. 23.10.2006 in O.R. No.84 2006 Adjncalling upon the respondent NRSA to show cause as to why service tax of Rs.19 89 66 570 should not be demanded and recovered on the photography service scientific and technical consultancy service and commercial training and coaching service from it for the period 16.07.2001 to 31.03.2005 and on advances received during the period of 16.06.2005 to 31.12.2005 under Section 73(1)(a) of the Finance Act 1994 read with Section 68 of the said Act and Rule 6 of Service Tax Rules 1994 along with Education Cess leviable thereon under Section 91 read with Section 95 of the Finance Act 2004. In addition to demand of service tax the respondent was also directed to show cause as to why penalty should not be imposed on them under Sections 76 77 and 78 of the Finance Act 1994. The respondent had submitted its reply dt. 02.02.2007 inter alia contending that the respondent is not providing photography services as defined under sub clause of Section 65(105) of the Act that the respondent cannot be considered as photography studio or agency in as much as it is not in the profession of rendering service in relation to photography as defined under clause of Section 65 of the Finance Act. Similarly with regard to the other activities undertaken by the respondent which are sought to be classified under the category of scientific or technical consultancy services it was contended that the activity of collection of data processing and supplying the same to various user agencies of the Government relating to Geological Geophysical Prospecting surface sub surface or Aerial surveying or mapping of the earth cannot be considered as providing advice technical consultancy or assistance service. On the other hand it is contended that the activity undertaken by the respondent NRSA is in the nature of survey and map making. It also contended that various projects or jobs which are entrusted to it by various departments of Central and State Governments involve survey and map making which information provided by the respondent is further processed and used by the said Government agencies that the scope of the work under various job orders given is composite in nature with the primary object of the survey map making of the earth surface or sub surface Reception Processing Dissemination and application of Satellite Data and the same cannot be vivisected to apply different category of services as defined under the Finance Act 1994 that since all its customers are departments of Central Government or State Government or its undertakings they do not have any intention not to pay service tax if due thereon nor there is any intention on its part to evade the same and that being a Government department it did not resort to suppression with an intent to evade payment of service tax and as such the extended period of five years cannot be invoked in this case for demanding the service tax for the period 16.07.2001 to 31.03.2005 and on advances received during the period 16.06.2005 to 31.12.2005. The respondent further claimed that it received certain grants from Department of Space for upgradation of its facilities for carrying out research projects like remote sensing application machine integrated machine for sustainable development and large scale mapping of the country provided to ISRO development of payload for future Satellites identification of earth quake affected area carrying out aerial photography over the flood affected area and fertilizer requirement using remote sensing. Thus it is contended that there is no service to third party as these are in house projects for the same department under which they are working. 13. The above said submissions of the respondent did not find favour with the Commissioner viz. appellant Revenue who by his order dt. 27.03.2008 in Order in OriginalNo.05 2008 confirmed the proposals made in the show cause notice in relation to demand of service tax under the category of photography services and scientific and technical consultancy services rendered including penalties and interest while accepting the contention of the respondent NRSA in relation to non liability to service tax on consideration received as grant for in house project. Being aggrieved by the said Order in Original both the Revenue as well as the respondent NRSA preferred separate appeals before Tribunal. The Revenue preferred appeal STA. No.4008 to the extent the respondent was granted benefit of exemption from levy of service tax on the grant received for in house project. The respondent NRSA filed appeal being STA. No.401 of 2008 disputing its liability to service tax under the category of photography services and scientific or technical consultancy services during the period in dispute invocation of extended period of limitation and imposition of penalties. Both the appeals filed by the appellant and the respondent NRSA were taken up for hearing together and disposed of by the Tribunal by its common order dt. 24.06.2020. The Tribunal by its common order dt. 24.06.2020 held that the respondent is liable to pay service tax under the category of photography services and scientific or technical consultancy services that having regard to the fact that the respondent NRSA is a Governmental organization run by Bureaucrats and Scientists none of whom have any personal interest in evading service tax it cannot be concluded that the respondent had committed fraud or collusion or willful misstatement or suppression of facts with an intent to payment of evade service of tax. Thus the Tribunal held that the extended period of limitation cannot be invoked and demand for the normal period of limitation would only survive. In so far as imposition of penalty under Section 78 of the Finance Act 1994 the Tribunal also held that there is no evidence of willful suppression of facts with an intent to evade payment of service tax and it is a fit case to invoke Section 80 of the Finance Act to waive penalties imposed under Section 78 of the Act. 16. Aggrieved by the said order passed by the Tribunal in holding that the extended period of limitation is not invocable and also waiving the penalties the Revenue has filed the present According to the appellant Revenue the Tribunal ought not to have interfered with the Order in Original since the respondent did not comply with the statutory tax provision but for the intervention of the department the respondent did not come forward for paying service tax thus there was suppression of material facts a pre condition for invoking the extended period of limitation under Section 73(1) of the Finance Act. Similarly it is also contended that the Tribunal ought not to have invoked the provisions of Section 80 of the Act suo motu to waive all the penalties imposed without existence of a reasonable cause for failure to pay service tax. 18. Heard Sri. B. Narayan Reddy Learned Senior Standing Counsel appearing for the appellant Revenue. On behalf of appellant Revenue written arguments are also filed. 19. As seen from the Order in Original as well as the order of the Tribunal the main contention of the respondent NRSA was that the nature of activity carried on by it is primarily is of survey and map making as defined under sub clause of Section 65(105) of the Finance Act that in the course of execution performing the above said nature of composite activity capturing images and the geographic information in the fields of agriculture forestry geology oceanography and water resources and the data acquired and processed and disseminated to the user agencies of both in Central and State governments cannot be vivisected to fall under different category services as enumerated under the Finance Act 1994 and that since the said activity of survey and map making undertaken by the respondent being an agency under the control or authorized by the Government not being considered as a service the same would not be liable to tax. 20. As an alternative the respondent also contended as to how each of the category of service under which the service tax is sought to be demanded from it would not be applicable. 21. From a reading of the impugned order it is to be seen that the Tribunal had taken note of the primary contention urged by the respondent NRSA that the activity carried on by the respondent would be classifiable as a service covered by Section 65(104)(b) being a taxable service as defined under Section 65(105)(zzzc) of the Finance Act 1994 liable to service tax if at all only w.e.f 16.06.2005 and no service tax can be demanded by classifying the activity under the heads of i) photography service and ii) scientific and technical consultancy service. However there is neither a discussion nor a finding recorded by the Tribunal on the primary contention raised by the respondent NRSA. On the other hand the Tribunal proceeded to consider as to whether the demand of service tax under the heads of photography service scientific and technical service can be sustained and also as to invocation of extended period of limitation and imposition of penalty. 22. Having said so the only issue which this Court is now required to consider is as to whether the respondent NRSA had any intent to evade service tax on its activities during the period 16.07.2001 to 31.03.2005 and on advances received during the period 16.06.2005 to 31.12.2005 justifying the action of the appellant Revenue invoking the extended period of limitation for demanding of service tax as contended. From the Order in Original it is evident that the respondent had applied and obtained registration under various categories of services as guided by the authorities of the appellant Revenue. It is also evident that the authorities who informed the respondent that its activities would get covered by photography service scientific or technical constancy service and commercial training and coaching service etc. are guided by Revenue considerations alone and they have not kept in mind the nature of activity undertaken by the respondent NRSA and area of operation of its activities apart from the important role it plays in the affairs of this nation. 23. The appellant Revenue authorities initially directed the respondent NRSA to obtain registration under the above three categories which was duly adhered to by obtaining registration on 14.02.2005. Upon obtaining registration the appellant Revenue saddled the respondent NRSA with the show cause notice for the period prior to registration by invoking the provisions of Section 73(1)(a) of the Finance Act. To justify the action of invocation of extended period of limitation it has been stated that since the respondent has been rendering taxable service and failed to observe statutory provisions for registration and payment of service tax there was suppression of material facts. 24. The Tribunal while considering the above said aspect had observed as under: “we find that the assessee in this case is an autonomous organization under the Department of Space Government of India. It is not a private business entity.” “By not paying service tax the assessee is not gaining anything. It is a Governmental organization run by Bureaucrats and Scientists none of whom have any personal interest in evading service tax. In fact by evading service tax nothing would be gained either by anyone individually or by their organization. Revenues argument is that the assessee had not come forward to disclose all their activities and therefore they have suppressed the facts which is sufficient to invoke extended period of limitation. We do not agree with this contention. The assessee could have genuinely believed that they were not liable to pay service tax and not disclosed facts to the department or sought any advice or guidance from the department regarding taxability of their services. In this factual matrix by no stretch of imagination can we hold that the assessee has committed fraud or collusion or willful misstatement or suppression of facts can intend to evade payment of service tax”. 25. By observing as above the Tribunal held that the extended period of limitation cannot be invoked in this case and the demand if any can only be survived within the normal period of limitation. 26. The finding as recorded by the Tribunal in our view is justified for the reason that though the respondent is established as an autonomous body the same for all purposes administrative control its financial needs etc. looks only to the Government. This is on account of the fact the services of the respondent are utilized for functioning of various Government agencies under different Ministries and is not run like a private commercial organization with a profit motive. 27. Thus there is no incentive for the respondent NRSA to resort to evasion of tax which could result either in the profits soaring higher or any individual being benefited. On the other hand if there existed a liability the respondent could have factored the same in its budget proposals and sought for release of more funds from the Government to discharge its liability. Thus it is only flow of funds from one pocket to the other pocket of the Government and would not result in any gain either to the organization or to any individual. In this view of the matter it is absurd to even suggest that the respondent had suppressed facts with an intent to evade payment of tax and mulct it with payment of service tax by invoking the extended period of limitation. It also needs to be noted that organizations like respondent NRSA are run by Scientists Academicians and Administrators. Even if there has been any non payment of service tax the same cannot be alleged to be by fraud collusion or willful misstatement or suppression of facts. Attributing fraud collusion suppression or willful mis statement to the Scientists and Academicians will have a demoralizing effect would not be in public interest. On the contrary it could contribute to Brain drain from the country. 29. The focus of the organizations like the respondent NRSA is definitely not on either resorting to tax evasion or tax planning which would benefit the establishment but is focused in its core activity of research and assisting the other agencies of Government in various projects. The said fact was completely lost sight by the appellant Revenue while passing the Order in Original which however has been rightly taken note by the Tribunal. 30. This court also records its displeasure in the manner in which the approval was accorded by the authority for filing this appeal without due consideration of the fact that the activity of the respondent NRSA involves Nations Safety and Security and that it is not a private commercial concern. 31. Thus this court is of the view that in the given facts and circumstances the Tribunal has given cogent reasons for holding that the extended period of limitation under Section 73(1)(a) of Finance Act 1994 would not be invocable. 32. Similarly the order of the Tribunal waiving all penalties by invoking Section 80 of the Finance Act is also rightly justified. In view of the above this Court is of the opinion no substantial question of law arises for consideration in this appeal. 34. Accordingly the appeal of the Revenue is dismissed at the stage of admission with Costs. The appellants shall pay costs of Rs. 10 000 to Telangana High Court Legal Services Committee within six weeks. closed. 35. The miscellaneous petitions pending if any shall stand M.S. RAMACHANDRA RAO J T. VINOD KUMAR J Note: L.R. copy to be marked. B o MRKR THE HON’BLE SRI JUSTICE M.S.RAMACHANDRA RAO THE HON’BLE SRI JUSTICE T. VINOD KUMAR CEA No.21 Division Bench Judgment prepared by Hon’ble Sri Justice T. Vinod Kumar)

Once the plaintiff proves his title then the defendant has to plead and establish the plea of adverse possession: High Court of Chhattisgarh

Any suit governed by Article 65 of the Limitation Act, 1963, is for the plaintiff to aver, plead and establish his / her title over the suit land and it would not be obligatory for him to prove that he was in possession within 12 years preceding he filing of suit, and rather it is for the defendant to plead and establish the plea of adverse possession to non-suit the plaintiff. This was held by the Hon’ble Justice Shri Justice Sanjay K. Agrawal in the case of Radheshyam Pathak (dead) through legal representatives Vs. Kanhaiyaa Gond and ors. [Second Appeal No.49 of 2011] on the 13th of July before the Hon’ble High Court of Chhattisgarh at Bilaspur. The brief facts of the case are, Plaintiff Radheshyam Pathak filed suit through power of attorney Vijay Prakash Pathak, for recovery of possession based on title stating inter alia that the suit house was purchased by the plaintiff on 27-11-1976 from Shesh Narayan Lal Agrawal and obtained possession of the suit land and immediately thereafter, it was given on license to Mahesh Gond – father of defendants No.1 & 2. The defendants are sons and widow of Mahesh Gond. In the year 1990, license was terminated and the suit house was sought to be vacated by serving notice dated 3-9- 2007 which has not been vacated leading to filing of suit for decree for recovery of possession of the suit house. The defendants filed written statement stating inter alia that they are in possession for long time uninterruptedly and without interference and Shesh Narayan Agrawal has no right to alienate the suit property in favour of the plaintiff, they are not licensee and the plaintiff’s suit is barred by limitation. The trial Court after appreciating oral and documentary evidence available on record decreed the suit in favour of the plaintiff which was appealed by the defendants before the first appellate Court and the first appellate Court reversed the decree of the trial Court and dismissed the suit which has been called in question by the plaintiff in this second appeal before the hon’ble High Court. The learned counsel for the appellants submits that, he trial Court and the first appellate Court, both, have concurrently held the plaintiff to be the title holder of the suit house, therefore, since the defendants have not pleaded and established their plea of adverse possession, decree for possession passed by the trial Court could not have been interfered and reversed by the first appellate Court. He further submitted that, asper Article 65 of the Limitation Act, 1963 once title is proved by the plaintiff in a suit for possession based on title, it is for the defendant who has to plead and prove the plea of adverse possession and suit cannot be dismissed holding it barred by limitation, unless the defendant pleads and establishes the plea of adverse possession. Furthermore, The defendants have taken the plea of title and adverse possession, both, which cannot dwell together in view of the decision of this Court. Thus, he impugned decree be set-aside and that of the trial Court be restored. The counsel for the respondents submitted that, plaintiff was required to prove his title over the suit land. He also submitted that, non-examination of the plaintiff is fatal. The learned judge heard the submissions of both the parties and analysed the case in light of Article 65 of the Limitation act. Asper this act, is quite vivid that when the suit is based on title for possession, once the title is established on the basis of relevant document and other evidence, unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. The court relied on the judgement in Saroop Singh v. Banto and others (2005) 8 SCC 330 wherein, the supreme court held that, “in the light of Article 65 of the Limitation Act, 1963, the plaintiffs have to prove their title and it is for the defendant to prove title by adverse possession and in terms of Article 65 of the Limitation Act, 1963 starting point of limitation does not commence from the date when the right of ownership arises to the plaintiffs, but commences from the date the defendant’s possession becomes adverse.” In C. Natarajan v. Ashim Bai and another [AIR 2008 SC 363] the court held that, “By reason of the Limitation Act, 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Article 65 of the 1963 Limitation Act, the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908, that he was in possession within 12 years preceding the filing of the suit. On the contrary, it would be for the defendant so to prove if he wants to defeat the plaintiffs claim to establish his title by adverse possession”. Applying the rationales in the above mentioned cases, the court set aside the judgement by the first appellate court and reinstated the judgement held by the trial court and decreed that, “The plaintiff’s suit was for recovery of possession based on title and the plaintiff has proved his title as held by the trial Court and duly affirmed by the first appellate Court. According to Article 65 of the Limitation Act, 1963, as noticed herein-above, once the plaintiff proves his title then the defendant has to plead and establish the plea of adverse possession, but in this case, the defendants have asserted that they are title holders and in case they are not found to be title holders, they have perfected their title by way of adverse possession. Plea of title and adverse possession, both, are mutually destructive plea and inconsistent as well. Therefore, the defendants cannot be permitted to raise mutually destructive plea. However, since the plaintiff has claimed and proved his title over the suit house as held by both the Courts below, it was incumbent on the part of the defendants to plead and establish the plea of adverse possession which they have neither seriously pleaded nor established.”

1AFRHIGH COURT OF CHHATTISGARH BILASPURSecond Appeal No.411Judgment reserved on: 6 7 2021Judgment delivered on: 13 7 2021Radheshyam Pathakthrough legal representatives(Plaintiff)1A. Smt. Usha Mishra W o Late Shri R.A. Mishra R o Chhoti Koni Bilaspur1B. Smt. Nisha Sharma W o A.P. Sharma R o Ganganagar Bilaspur(C.G.) 1C. Smt. Shandhya Dube W o Shri Roopchandra Dube R o 1008 Kaveri Vihar Jamnipali Korba1F. Smt. Rekha Dwivedi W o Shri R.K. Dwivedi Opp. ITI Koni Bilaspur1G. Shri Prabhat Pathak S o Late Radheshyam Pathak R oDevendra Nagar Phase II Seepat Road Bilaspur1H. Shri Jay Prakash Pathak S o Late Shri Radheshyam Pathak R oNear Baghwa Mandir Purana Sarkanda Bilaspur1I. Shri Vijay Prakash Pathak S o Late Shri Radheshyam Pathak R oNear Baghwa Mandir Purana Sarkanda Bilaspur1J. Shri Prasun Pathak S o Late Shri Radheshyam Pathak R o NearBaghwa Mandir Purana Sarkanda BilaspurAppellantsVersus1.Kanhaiyaa Gond S o Late Mahesh Gond Aged about 32 years 2.Nandlal Gond S o Late Mahesh Gond Aged about 26 years 3.Smt. Beha Bai W o Late Mahesh Gond Aged about 60 years All three R o Village Ghutku Tahsil Takhatpur District Bilaspur(Defendants) Respondents 2 For Appellants:Mr. Arvind Shrivastava Advocate. For Respondents:Mr. Ravindra Agrawal Advocate. Hon ble Shri Justice Sanjay K. AgrawalC.A.V. Judgment1.Proceedings of this matter have been taken up through videoconferencing.2.This second appeal preferred by the plaintiff appellants hereinwas admitted for hearing on 29 11 2013 by formulatingthe following substantial questions of law: “1.Whether the first appellate Court was justified inreversing the finding of the trial Court on the basis of thedefendants perfecting their right by adverse possession 2.Whether the case of the plaintiffs was establishedbefore the trial Court through the power of attorney holder was proper or not ”(For the sake of convenience parties hereinafter will be referredas per their status shown and ranking given in the plaint before thetrial Court.)3.Plaintiff Radheshyam Pathak filed suit through power of attorney VijayPrakash Pathak for recovery of possession based on title stating interalia that the suit house was purchased by the plaintiff on 27 11 1976from Shesh Narayan Lal Agrawal and obtained possession of the suitland and immediately thereafter it was given on license to MaheshGond father of defendants No.1 & 2. The defendants are sons andwidow of Mahesh Gond. In the year 1990 license was terminated andthe suit house was sought to be vacated by serving notice dated 3 9 2007 which has not been vacated leading to filing of suit for decree forrecovery of possession of the suit house. The defendants filed writtenstatement stating inter alia that they are in possession for long timeuninterruptedly and without interference and Shesh Narayan Agrawal 3has no right to alienate the suit property in favour of the plaintiff theyare not licensee and the plaintiff’s suit is barred by limitation. 4.The trial Court after appreciating oral and documentary evidenceavailable on record decreed the suit in favour of the plaintiff which wasappealed by the defendants before the first appellate Court and thefirst appellate Court reversed the decree of the trial Court anddismissed the suit which has been called in question by the plaintiff inthis second appeal in which substantial questions of law have beenformulated and which have been set out in the opening paragraph ofthis judgment for the sake of completeness. 5.Mr. Arvind Shrivastava learned counsel appearing for the appellantsherein LRs of the plaintiff would submit as under: 1.The trial Court and the first appellate Court both haveconcurrently held the plaintiff to be the title holder of the suithouse therefore since the defendants have not pleaded andestablished their plea of adverse possession decree forpossession passed by the trial Court could not have beeninterfered and reversed by the first appellate Court.2.In view of Article 65 of the Limitation Act 1963 once title isproved by the plaintiff in a suit for possession based on title it isfor the defendant who has to plead and prove the plea ofadverse possession and suit cannot be dismissed holding itbarred by limitation unless the defendant pleads andestablishes the plea of adverse possession. 3.The finding of the first appellate Court that Mahesh Gond andthereafter the defendants are not licensee of the plaintiff isperverse and even otherwise has no adverse bearing to the 4decree passed by the trial Court. Once the title of the plaintiff isproved non examination of the original plaintiff has no bearingin view of the finding recorded by the first appellate Court thatthe plaintiff is title holder of the suit house. As such theimpugned decree be set aside and that of the trial Court berestored. 4.The defendants have taken the plea of title and adversepossession both which cannot dwell together in view of thedecision of this Court in S.A.No.112 2004decided on 15 10 2019. 6.Mr. Ravindra Agrawal learned counsel appearing for the respondentsherein defendants would support the judgment & decree of the firstappellate Court and submit that the plaintiff was required to prove histitle over the suit land in view the decision rendered by the M.P. HighCourt in the matter of Daryasingh Harisingh and another v. KalmaNihala1. He would further submit that non examination of the plaintiffis fatal in view of the decision rendered by the Supreme Court in thematter of Mohinder Kaur v. Sant Paul Singh2.7.I have heard learned counsel for the parties and considered their rivalsubmissions made herein above and also went through the recordwith utmost circumspection.8.Article 65 of the Limitation Act 1963 states as under: Description of suitPeriod oflimitationTime from whichperiod begins to run65.For possession of immovableproperty or any interest thereinbased on title.Explanation.—For theTwelveyearsWhen the possessionof the defendantbecomes adverse tothe plaintiff.1AIR 1961 MP 1792(2019) 9 SCC 358 5purposes of this article—(a) where the suit is by aremainderman a reversioner(other than a landlord) or adevisee the possession of thedefendant shall be deemed tobecome adverse only whenthe estate of theremainderman reversioner ordevisee as the case may befalls into possessionwhere the suit is by aHindu or Muslim entitled to thepossession of immovableproperty on the death of aHindu or Muslim female thepossession of the defendantshall be deemed to becomeadverse only when the femaledieswhere the suit is by apurchaser at a sale inexecution of a decree whenthe judgment debtor was outof possession at the date ofthe sale the purchaser shallbe deemed to be arepresentative of thejudgment debtor who was outof possession.9.From a careful perusal of the above stated provision of law it is quitevivid that when the suit is based on title for possession once the titleis established on the basis of relevant document and other evidence unless the defendant proves adverse possession for the prescriptiveperiod the plaintiff cannot be non suited. 10.The Supreme Court in the matter of Saroop Singh v. Banto andothers3 has held that in the light of Article 65 of the Limitation Act 1963 the plaintiffs have to prove their title and it is for the defendantto prove title by adverse possession and in terms of Article 65 of theLimitation Act 1963 starting point of limitation does not commencefrom the date when the right of ownership arises to the plaintiffs but3(2005) 8 SCC 330 6commences from the date the defendant s possession becomesadverse. Paragraphs 28 29 and 30 of the report are as under: “28.The statutory provisions of the Limitation Act haveundergone a change when compared to the terms ofArticles 142 and 144 of the Schedule appended to theLimitation Act 1908 in terms whereof it was imperativeupon the plaintiff not only to prove his title but also to provehis possession within twelve years preceding the date ofinstitution of the suit. However a change in legal positionhas been effected in view of Articles 64 and 65 of theLimitation Act 1963. In the instant case plaintiff respondents have proved their title and thus it was for thefirst defendant to prove acquisition of title by adversepossession. As noticed hereinbefore the first defendant appellant did not raise any plea of adverse possession. Inthat view of the matter the suit was not barred.29.In terms of Article 65 the starting point of limitationdoes not commence from the date when the right ofownership arises to the plaintiff but commences from thedate the defendant s possession becomes adverse. 30.“Animus possidendi” is one of the ingredients ofadverse possession. Unless the person possessing theland has a requisite animus the period for prescription doesnot commence. As in the instant case the appellantcategorically states that his possession is not adverse asthat of true owner the logical corollary is that he did nothave the requisite animus. 3 SCC 3765(2004) 1 SCC 2716(2007) 3 SCC 114 712.Similarly in the matter of C. Natarajan v. Ashim Bai and another7 the Supreme Court has held that in a suit governed by Article 65 of theLimitation Act 1963 the plaintiff would succeed if he proves his titleand it would be for the defendant to plead and establish his title byadverse possession. It was observed as under: “15.The law of limitation relating to the suit forpossession has undergone a drastic change. In terms ofArticles 142 and 144 of the Limitation Act 1908 it wasobligatory on the part of the plaintiff to aver and plead thathe not only has title over the property but also has been inpossession of the same for a period of more than 12 years.However if the plaintiff has filed the suit claiming title overthe suit property in terms of Articles 64 and 65 of theLimitation Act 1963 burden would be on the defendant toprove that he has acquired title by adverse possession. 16.In Md. Mohammad Aliby LRs. v. JagdishKalita and Ors.1 SCC 271] it was held : “By reason of the Limitation Act 1963 the legalposition as was obtaining under the old Act underwenta change. In a suit governed by Article 65 of the 1963Limitation Act the plaintiff will succeed if he proves histitle and it would no longer be necessary for him toprove unlike in a suit governed by Articles 142 and144 of the Limitation Act 1908 that he was inpossession within 12 years preceding the filing of thesuit. On the contrary it would be for the defendant soto prove if he wants to defeat the plaintiffs claim toestablish his title by adverse possession”. {See also P.T. Munichikkanna Reddy & Ors. v. Revamma &Ors.6 SCC 29] Binapani Paul v. Pratima Ghosh &Ors.6 SCC 100] Kamakshi Builders v. AmbedkarEducational Society & Ors.andBakhtiyar Hussaithrough LRs v. Hafiz Khan & Ors.[CA Nos.497 498 01 decided on 24.09.2007]}.”13.Thus the legal position as stands today is that in a suit governed byArticle 65 of the Limitation Act it is for the plaintiff to aver plead andestablish his her title over the suit land and it would not be obligatoryfor him to prove that he was in possession within 12 years preceding7AIR 2008 SC 363 8the filing of suit and rather it is for the defendant to plead andestablish the plea of adverse possession to non suit the plaintiff. 14.Reverting to the facts of the present case in the light of the aforesaidlegal position it is quite vivid that the trial Court has held that theplaintiff is the title holder of the suit land and finding the defendants tobe the licensee granted decree for delivery of possession in favour ofthe plaintiff which was set aside by the first appellate Court in theappeal preferred by the defendants. Though the first appellate Courtin para 15 of its judgment held that the plaintiff is registered owner ofthe suit land and defendants are not licensee but further held that theplaintiff’s suit for possession based on title is barred by limitation asthe suit ought to have been preferred within 12 years from the date ofexecution of sale deed and consequently allowed the appeal and setaside the decree granted in favour of the plaintiff. 15.The plaintiff s suit was for recovery of possession based on title andthe plaintiff has proved his title as held by the trial Court and dulyaffirmed by the first appellate Court. According to Article 65 of theLimitation Act 1963 as noticed herein above once the plaintiff proveshis title then the defendant has to plead and establish the plea ofadverse possession but in this case the defendants have assertedthat they are title holders and in case they are not found to be titleholders they have perfected their title by way of adverse possession.Plea of title and adverse possession both are mutually destructiveplea and inconsistent as well. Therefore the defendants cannot bepermitted to raise mutually destructive plea. However since theplaintiff has claimed and proved his title over the suit house as held byboth the Courts below it was incumbent on the part of the defendants 9to plead and establish the plea of adverse possession which theyhave neither seriously pleaded nor established. 16.The first appellate Court without noticing the provisions contained inArticle 65 of the Limitation Act 1963 came to a wholly erroneousfinding that suit ought to have been filed within 12 years from 26 11 1976i.e. the date when the sale deed was executed by theerstwhile seller in favour of the plaintiff. Once the plaintiff has provedtitle over the suit land it was for the defendants to plead and establishthe plea of adverse possession which they have halfheartedly takenand did not plead the essential ingredients of adverse possession thatare nec vi nec clam nec precario and failed to establish the same yet the first appellate Court held that the suit is barred by limitation. 17.In the considered opinion of this Court the plaintiff having pleadedand proved title over the suit house as held by both the Courts belowby virtue of Article 65 of the Limitation Act 1963 the defendants arerequired to plead and establish adverse possession which they haveneither pleaded expressly nor proved to the satisfaction of the Courtand thus the suit could not have been held to be barred by limitationby the first appellate Court. The first appellate Court has failed tonotice that the law of limitation relating to the suit for possession hasundergone a drastic change and Article 65 of the Limitation Act 1963is differently worded than Articles 142 & 144 of the Limitation Act 1908 and in Articles 142 & 144 of the Limitation Act 1908 the plaintiffwas required to show that he was in possession within 12 yearspreceding the filing of the suit and it has changed by introduction ofArticle 65 of the Limitation Act 1963. However non examination of theplaintiff is no adverse bearing as two Courts below have already heldthat the plaintiff is title holder of the suit land and as such the 10judgment cited on this point by learned counsel for therespondents defendant is clearly inapplicable. The substantialquestions of law are answered accordingly. 18.As a fallout and consequence of the aforesaid discussion judgmentand decree passed by the first appellate Court are hereby set asideand that of the trial Court are restored. The second appeal is allowedto the extent indicated herein above. No order as to cost(s). Appellatedecree be drawn up accordingly. Sd JudgeSoma

While consideration for grant of pre-arrest bail is concerned, the nature and gravity of the accusation and the exact role of the accused must be completely comprehended before any appropriate order is passed.: High Court of Meghalaya

It is well settled that though the power to grant pre-arrest bail is a discretionary power to be exercised by the Courts, however, the power cannot be exercised whimsically or without any basis outside the relevant materials on record as upheld by the High Court of Meghalaya through the learned bench lead by Justice W. Diengdoh in the case of Md. Saminur Sheikh Vs. State of Meghalaya & 2 Ors (AB. No. 9 of 2021). The brief facts of the case are that the applicant has averred that he used to help his father who is a vegetable vendor where, in the course of his father’s business a friendship developed between his father and one Shri Ponindro Sangma who is also a petty businessman. The applicant then learned that the said Shri Ponindro Sangma had lodged an FIR alleging that his daughter was missing from home without any information and for the police to take necessary action in this regard. It is also stated that the alleged missing girl had come voluntarily to the applicant father’s house on and when asked whether she had informed her family she replied in the negative. The father of the applicant then tried to call the family members of the girl but could not contact them and as such, the girl stayed the night with the family. When the family members of the girl came to pick up the girl from the applicant’s house, the father of the applicant and the father of the girl executed a written agreement to the effect that the girl’s family has received their daughter back in good health and they have no grievance against the applicant’s family. However, since the applicant is aware of the FIR filed, he is therefore apprehensive that he may be arrested in connection with the said Case No. 02/2021 and has accordingly approached this Court with this instant application seeking pre-arrest bail. Having heard the learned counsels, the Hon’ble Court held, “What could be understood from the factual presentation in the case diary is that the young girl who is a minor was apparently abducted and forced to marry the applicant and was also sexually assaulted which is clearly a violation of the relevant provision of law and amounts to a crime against women and children. This has led this Court to believe that there is a prima facie case against the applicant herein. Accordingly, this petition is hereby dismissed as devoid of merits.”

Serial No. 01 Regular List AB. No. 21 HIGH COURT OF MEGHALAYA AT SHILLONG Date of Decision: 24.09.2021 Md. Saminur Sheikh Vs. State of Meghalaya & 2 Ors. Hon’ble Mr. Justice W. Diengdoh Judge For the Petitioner Appellant(s) : Mr. A. H. Hazarika Adv. For the Respondent(s) i) Whether approved for reporting in Law journals etc.: Mr. K.P. Bhattacharjee GA. ii) Whether approved for publication in press: 1. Matter is taken up via video conferencing. This is an application u s 438 Cr.PC preferred by the applicant herein with a prayer to grant pre arrest bail in connection with Mendipathar Women PS Case No. 02 2021 u s 366 A 343 376(2)(i)(n) IPC r w Section 3 4 POCSO Act. From the application in hand it is seen that the applicant has averred that he used to help his father who is a vegetable vendor operating in Bajengdoba Mendipathar Resubelpara and some other places in North Garo Hills where in the course of his father’s business a friendship developed between his father and one Shri Ponindro Sangma who is also a petty businessman and in this way acquaintance was established between the two families. The applicant then learned that the said Shri Ponindro Sangma had lodged an FIR at the Bajengdoba PS on 02.01.2021 alleging that his daughter was missing from home without any information and for the police to take necessary action in this regard. Accordingly the police registered a criminal case being Mendipathar Women PS Case No. 02 2021 u s 366 A 343 376(2)(i)(n) IPC r w Section 34 POCSO Act. It is also stated that the alleged missing girl had come voluntarily to the applicant father’s house on 01.01.2021 and when asked whether she had informed her family she replied in the negative. The father of the applicant then tried to call the family members of the girl but could not contact them and as such the girl stayed the night with the family. 6. When the family members of the girl came to pick up the girl from the applicant’s house the father of the applicant and the father of the girl executed a written agreement to the effect that the girl’s family has received their daughter back in good health and they have no grievance against the applicant’s family. However since the applicant is aware of the FIR filed he is therefore apprehensive that he may be arrested in connection with the said Mendipathar Women PS Case No. 02 2021 and has accordingly approached this Court with this instant application seeking pre arrest bail. Heard Mr. A. H. Hazarika learned counsel for the Petitioner who has submitted that as far as the knowledge of the applicant is concerned the complainant had filed an FIR only with regard to the fact that his daughter was missing and could not be traced however since she was eventually located with no physical or mental injury therefore the matter ought to have been disposed of at the relevant time. However the applicant has learned that the police has added some other sections of law including those under the POCSO Act and the police were also on the lookout for him. It is therefore prayed that there being a reasonable apprehension of being arrested in connection with non bailable section of law the applicant prays for pre arrest bail to be granted to him with any conditions to be imposed by this Court. 10. Also heard Mr. K.P Bhattacharjee learned GA who has submitted that the case diary has been called for by this Court has been duly produced. It is also further submitted that the Investigating Officer has examined the victim girl and her statement u s 164 Cr.PC was also recorded by the Judicial Magistrate First Class and is part of the case diary. What appears on record is that the victim girl who is a minor was abducted by the applicant herein and she was forced to perform a sham marriage ceremony after which the applicant had violated her chastity. Thereafter the applicant had taken her to his father’s house where she was re united with her family. 11. This being the case the learned GA has submitted that pre arrest bail may not be allowed at this juncture and instead the Investigating Officer may be allowed to question the applicant in connection with this case. 12. Upon hearing the learned counsels of the parties and on perusal of the case diary duly produced before this Court what could be understood from the factual presentation in the case diary is that the young girl who is a minor was apparently abducted and forced to marry the applicant and was also sexually assaulted which is clearly a violation of the relevant provision of law and amounts to a crime against women and children. This has led this Court to believe that there is a prima facie case against the applicant herein. It is well settled that though the power to grant pre arrest bail is a discretionary power to be exercised by the Courts however the power cannot be exercised whimsically or without any basis outside the relevant materials on record. It is also well settled that while consideration for grant of pre arrest bail is concerned the nature and gravity of the accusation and the exact role of the accused must be completely comprehended before any appropriate order is passed. this juncture. In view of the observations of this Court and the materials on record particularly the case diary this Court is not inclined to allow this petition at 15. Accordingly this petition is hereby dismissed as devoid of merits. 16. The interim bail granted is hereby discharged. 17. The I.O is directed to take necessary steps in this regard. 18. Registry is directed to send back the case diary. 19. Matter disposed of. No cost. Judge “N. Swer Stenographer”

A convict who fulfills the requirements of HPC guidelines, can be granted interim bail: High Court of Delhi.

Where a convict has applied for interim bail, and the court finds out that such convict has fulfilled the requirements of HPC guidelines, then he will be granted interim bail. A single Judge bench comprising of Hon’ble Justice Subramonium Prasad, in the matter of Mudassir Habib Vs. State of NCT of Delhi (BAIL APPLN. 2094/2021), dealt with an issue where the petitioner is alleged of having committed the offences under Section 420,468,471,506,120B and 34 IPC, on the ground of HPC guidelines, for grant of interim bail. The counsel for the petitioner had submitted that the petitioner was in custody since 03.03.2021 and drew the attention of the court to a HPC guideline dated 11.05.2021, which stated that where a under trial prisoner had three or more cases pending against him, then his case shall not be considered for the grant of interim bail. The counsel for the petitioner contended that the said resolution squarely covers the petitioner. Further, the counsel referred to a case and stated that a similar exclusion clause had been made in the earlier HPC guidelines also and when identical objections were raised, this Court, by an order dated 13.08.2020, had rejected those objections and had granted the benefit of HPC guidelines to the petitioner in Mohsin Khan v. State of NCT of Delhi. The counsel for the petitioner had submitted that the petitioner was covered under clause II of the HPC guidelines dated 04.05.2021. To that, the APP for the state contended that the HPC guidelines dated 04.05.2021 would not be applicable to the petitioner as he was involved in one more case and also pointed out that cases investigated by the Crime Branch were excluded from the operation of the HPC guidelines. After hearing both the sides and going through the cases referred by the Counsel for the petitioner, the court held that the petitioner fulfilled the requirements of the HPC guidelines and hence he was granted interim bail for 90 days from the date of his release, on furnishing of a personal bond of ₹25,000/ – with one surety of like amount to the satisfaction of the Jail Superintendent. Also, the petitioner was asked to provide all his mobile numbers to the Investigating Officer and keep them operational at all times and, was directed to report to the concerned Police Station on every Monday, Wednesday, and Saturday.  Moreover, he was directed not to interfere or influence the investigation or inquiry process. Lastly, the petitioner was directed to surrender to the custody immediately on the expiry of the interim bail before the concerned Jail Superintendent. Click Here For The Judgement  

$~2 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 09th JULY 2021 IN THE MATTER OF: BAIL APPLN. 2094 2021 MUDASSIR HABIB Petitioner Through Mr. Ashutosh Kumar Advocate STATE OF NCT OF DELHI Through Ms. Meenakshi Dahiya APP Respondent Mr. Sourabh Shaoukeen Advocate for the complainant. HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J.(ORAL) This petition under Section 439 Cr.P.C is for grant of interim bail to the petitioner in FIR No. 02 2021 dated 02.01.2021 registered at Police Station Crime Branch for offences under Section 420 468 471 506 120B and 34 IPC on the ground of HPC guidelines. The learned counsel for the petitioner states that the petitioner is in custody since 03.03.2021 and is squarely covered under clause II of the HPC guidelines dated 04.05.2021. Notice has been issued on 18.06.2021. Status Report has been filed. 4. Ms. Meenakshi Dahiya learned APP for the State states that the HPC guidelines dated 04.05.2021 would not be applicable to the petitioner because BAIL APPLN. 2094 2021 he is involved in one more case. She further states that cases investigated by the Crime Branch are excluded from the operation of the HPC guidelines. The learned counsel for the petitioner draws the attention of this Court to the HPC guidelines dated 11.05.2021 the relevant portion reads as under: If the Under Trial Prisoner falling in one of the Eleven criteria laid down by this Committee in the Minutes of Meeting dated 4th May 2021 and or in any of the Two criteria laid down today hereinabove has three or more criminal cases pending against him then his case shall not be considered for grant of interim bail." The learned counsel for the petitioner contends that the said resolution squarely covers the petitioner. The learned counsel for the petitioner states that a similar exclusion clause had been made in the earlier HPC guidelines also and when identical objections were raised this Court by an order dated 13.08.2020 had rejected those objections and had granted the benefit of HPC guidelines to the petitioner in Mohsin Khan v. State of NCT of Delhi MANU DE 1547 2020. The learned counsel for the petitioner relies on para 11 and 12 of the said order which reads as under: “11. In my view the applicant cannot be denied interim bail on the ground of exception in the High Powered Committee recommendations dated 18th May 2020 or as revisited on 20th June 2020. The category of cases excepted at Serial No. are “cases investigated by CBI ED NIA Special Cell of Delhi Police Crime Branch SFIO Terror related Cases Riot cases cases under and Unlawful BAIL APPLN. 2094 2021 company Prevention) Act etc.” I am in agreement with Mr. Lal Singh Thakur learned Counsel for the applicant that the expression “riot cases” as employed is to be read ejusdem generis with the other categories of cases with which it CBI ED NIA Special Cell of Delhi Police investigated by the Crime Branch cases investigated by the SFIO Terror related Cases Riot cases and cases under Anti National Activities and Unlawful Activities Prevention) Act. The use of the concluding “et cetera” supports this view as it clearly indicates that the categories of cases envisaged as falling under the said head constitute a broad genus. It is obvious that the intention of the High Powered Committee was essentially to except from the facility of interim bail cases where there was large scale rioting as would render them analogous to the other categories of cases visualised in category supra and would not apply to the cases where a group of six to seven persons came together in a common act of assault consequent on a sudden altercation resulting in the death of the person assaulted. Such a case cannot be treated in my view as a “riot case” as envisaged by categoryof the excepted categories of cases in the recommendations of the High Powered Committee though Section 147 may have been invoked against the accused. 12. Apart from my judgment in Behruddin a Coordinate Bench of this Court has also granted interim bail to an accused against whom Section 147 of the IPC inter alia was invoked in order dated 27th May 2020 in Bail Application 275 2020The petitioner therefore fulfils the requirements of the HPC guidelines BAIL APPLN. 2094 2021 dated 04.05.2021 and 11.05.2021 and is granted interim bail for 90 days from the date of his release on the following conditions: a) The petitioner shall furnish a personal bond in the sum of Rs.25 000 with one surety of the like amount who should be a relative of the petitioner to the satisfaction of Jail Superintendent Duty Magistrate. b) The petitioner shall report to the concerned Police Station on every Monday Wednesday and Saturday. c) The petitioner is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times. d) The petitioner is directed to provide his address to the IO and if he changes the address he shall intimate the same to the IO. e) The petitioner shall not directly or indirectly tamper with evidence or try to influence the witnesses. The petitioner is directed to surrender on the expiry of the interim bail before the concerned Jail Superintendent. g) Violation of any of these conditions will result in the cancellation of the bail given to the petitioner and will also have a bearing on the future bail applications of the petitioner. The petition is disposed of in the abovementioned terms. Let a copy of the order be transmitted to the concerned Jail SUBRAMONIUM PRASAD J Superintendent. JULY 09 2021 Rahul BAIL APPLN. 2094 2021

Willful disobedience by the contemnor undermining the dignity and authority of the Courts and outraging the majesty of law shall be punishable in the court of law: High Court of New Delhi.

Willful disobedience by the contemnor undermining the dignity and authority of the Courts and outraging the majesty of law shall be punishable in the court of law: High Court of New Delhi. Willful disobedience to any judgment, or other process of a court, or willful breach of undertaking given to the court, the contempt court shall take note of such violation that needs to be punished. A contempt petition can be filed under the Contempt of the courts Act 1971 and alleging the non-compliance of the respondent to order passed by the competent courts. The judgement passed by the division bench of HON’BLE JUSTICE VIPIN SANGHI & HON’BLE MR. JUSTICE JASMEET SINGH in SONALI VATIA VS ABHIVANSH NARANG (CONT.CAS(C) 429/2021) dealt with the issue mentioned above. The parties were married under Hindu customs. The respondent filed a divorce petition under section 13(1) of the Hindu Marriage Act, 1955. The petitioner filed for interim maintenance. The Hon’ble Family Court directed the respondent to pay a monthly maintenance and litigation expenses to the petitioner. Aggrieved by the order the respondent filed an application to seek stay of the aforesaid order which was later withdrawn by him, the present court issued a notice stating the respondent to comply with the directions of family court but the respondent failed to do so stating incapability to the pay the maintenance amount which resulted in the filling of the this petition for contempt. The learned counsel for the petitioner highlighted the discrepancies in the compliance affidavit filed by the respondent and stated that the respondent is sole proprietor of a company with high turnover but according to the bank statement after the dispute arose the deposit amount stated decreasing from lakhs to some thousands also the respondent hasn’t submitted statements of all his bank accounts, he has all sources to pay the maintenance nut failed to do so “by willful deliberate disobedience of the said order – leading to civil contempt.” Further the learned counsel for the respondent submitted that the respondent has no means to comply with the order of Family Court and there is no question of civil contempt. The division bench of the Hon’ble High Court of Delhi took note of the Supreme Court Judgement in Rama Narang v. Ramesh Narang & Ors , (2006) 11 SCC 114, which stated that “it would neither be in consonance with the statute nor judicial authority or principle or logic to draw any distinction between the willful violation of the terms of a consent decree and a decree passed on adjudication.” The hon’ble Court perused the facts and arguments presented in the present case and opined that “the present is not a case of mere inability on the part of the respondent in complying with the order passed by the Court respondent has obstinately refused to comply with the said orders on completely false premise of financial inability which satisfies the elements of section 2(b) of Contempt of Court therefore a fine of 2000 was imposed along with a term of 3 months imprisonment, however if the respondent pays the full amount of arrear within two weeks and exhibits an apology we shall consider recalling the punishment.”

4. IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: Pronounced on: 25.11.2021 CONT.CAS(C) 429 2021 SONALI BHATIA Petitioner Through: Ms. Priya Hingorani Senior Advocate with Mr. Himanshu Yadav & Mr.Anirudh Jamwal Advs. ABHIVANSH NARANG Respondent Through: Respondent in person. HON BLE MR. JUSTICE VIPIN SANGHI HON BLE MR. JUSTICE JASMEET SINGH JUDGMENT OF THE COURT The present contempt petition has been filed by the Petitioner under Sections 10 11 and 12 of the Contempt of Courts Act 1971 alleging contempt of order dated 22.12.2020 passed by the Family Court in HMA No. 638 2018 and order dated 11.02.2021 passed in MAT. APP.No. 20 2021 by this Court. petition are as under. Briefly stated the facts giving rise to the filing of the present contempt The marriage between the Petitioner and respondent was solemnized on 18.11.2013 following Hindu rituals and customs. CONT.CAS(C) 429 2021 The Respondent filed a Divorce Petition bearing no. 638 2018 under Section 13(1)(ia) andof the Hindu Marriage Act 1955 on 03.04.2018. The said petition is still pending adjudication. On 07.08.2018 the Petitioner filed an application under Section 24 of the Hindu Marriage Act 1955 alongwith her Financial Affidavit seeking interim maintenance pendente lite at the rate of Rs. 1 02 000 per month and sum of Rs. 1 00 000 towards litigation expenses. In addition the Petitioner also claimed a sum of Rs. 2 50 000 towards furnishing the individual household and an independent car. The Family Court vide the order dated 22.12.2020 partially allowed the said Application of the Petitioner. The operative portion of the said order reads as under: ―14. Considering the totality of facts and circumstances of the case social and financial position and status of the parties in my view it is appropriate if the respondent wife is granted a monthly maintenance of Rs.35 000 per month. Accordingly the petitioner husband is ordered to pay an amount of Rs.35 000 per month to the respondent wife as maintenance from the date of filing of the application. The amount of maintenance received by the respondent wife in this case or under any proceedings is liable to be adjusted. The petitioner husband may clear arrears of maintenance by way of installments within six months. The petitioner husband is further ordered to pay Rs.75 000 to the respondent wife towards litigation expenses.” The Respondent being aggrieved by the said interim maintenance order filed an appeal bearing no. MAT. APP.No. 20 2021 along with an application to seek stay of the operation of the said order. This Court vide order dated 11.02.2021 passed in MAT. APP.CONT.CAS(C) 429 2021 No. 20 2021 issued notice and directed the respondent to comply with the interim maintenance order dated 22.12.2020 passed by the Family Court. The operative portion of the order dated 11.02.2021 passed by this Court reads as under: ―….List on 14.07.2021. On the next date the parties should remain personally present in Court. The appellant shall in the meantime comply with the order passed by the Family Court without prejudice to his rights & The Respondent has however failed to comply with the directions passed by this court and the family court. Consequently the Petitioner has preferred the present Contempt Case. Notice was issued to the respondent on 14.07.2021 which was accepted by the Respondent‟s counsel on his behalf. Two weeks time was granted to file a reply requiring him to make a full and complete disclosure of his income and expenditure in the last 12 months from all sources. The Respondent filed his reply dated 10.08.2021. 10. Vide orders dated 12.08.2021 and 08.09.2021 we directed the respondent to remain personally present in the court. However the Respondent did not appear before this Court on 09.09.2021 the date fixed. Different excuses were furnished by the Respondent and his counsel for his absence. Whereas his counsel stated that the Respondent had undergone an eye surgery the Respondent himself stated while appearing virtually that he had not undergone any eye surgery. In view of the same on 09.09.201 we were constrained to issue bailable warrants for his production returnable on 13.09.2021. 11. The respondent when the matter was listed on 09.09.2021 chose to CONT.CAS(C) 429 2021 accordingly. withdraw his matrimonial appeal and the same was dismissed as withdrawn 12. On 13.09.2021 the Respondent appeared and we heard submissions of learned counsels. The relevant extract of our order dated 13.09.2021 reads as follows: ―2. The present contempt petition has been preferred on account of the alleged and deliberate non compliance of our order dated 11.02.2021 passed in MAT.APP.(F.C.) 20 2021 and also the Order dated 22.12.2020 passed by the Ld. Principle Judge Family Court Patiala House New Delhi in HMA No. 638 2018. Upon issuance of notice the respondent has filed reply. Along with the reply the respondent has placed on record the statement of account of his bank account maintained with State Bank of India in the name of his firm M s. Equal Minerals for the period 01.08.2020 to 01.09.2020 to 31.01.2021 to 31.12.2020 01.01.2021 01.02.2021 to 04.03.2021 and 01.03.2021 to 31.03.2021. 3. At this stage we may observe that the petitioner has filed a rejoinder wherein the petitioner has brought on record the fact that the respondent deliberately did not disclose either before the Family court or before us the status of several other bank accounts maintained by him particulars of which could be gathered from the respondent’s Income Tax Return. The relevant averments of the petitioner contained in the rejoinder read as follows: Bank Accounts of the Respondent Whether declared by Respondent in his Financial Affidavit Periods for which bank statements not filed SBI A c no. I April 15 to May Oct. 18 CONT.CAS(C) 429 2021 SBI A c no. Sept 15 to March 16 Sept 16 to March 17 April 17 to March 18 June 18 to Oct 18 M s Equal Indian Overseas A c no not known) Axis Bank A c A c no not known) Joint A c no SBI Joint A c no. Not a single revealed from his statement filed Not a single revealed from his statement filed Not a single statement filed Not a single statement filed from his compliance affidavit dated 23.07.2019) The petitioner has also pointed out the incomes reflected by the respondent in his own ITR for Assessment Year 2012 2013 upto Assessment Year 2017 2018 which also reflect the capital invested by the respondent with his firm and the particulars therefore as follows: Capital with Firm AY 2012 13 21 37 273 AY 2013 14 16 49 789 AY 2014 15 13 35 444 7 90 789 8 54 211 9 86 539 AY 2015 16 14 26 106 11 59 548 42 18 674 43 99 247 48 91 038 59 23 317 CONT.CAS(C) 429 2021 AY 2016 17 16 16 538 AY 2017 18 15 79 540 10 12 947 10 35 994 63 81 379 70 81 702 The petitioner points out that the respondent purportedly advanced huge amounts of loan for his parents which are also reflected in his ITRs and the particulars thereof are as follows: Loan given by Respondent to his fatherApril 16 to Aug 16 5 months) 29 85 000 19 74 000 CONT.CAS(C) 429 2021 April 18 to May 18 24.8.2020 2 months) 8 92 000 1 50 000 1 00 000 2 00 000 2 00 000 50 000 50 000 50 000 50 000 50 000 50 000 50 000 50 000 The petitioner has also pointed out that the respondent is a Director in M s. Euro Polymers Pvt. Ltd. and he has been receiving Director’s remuneration which is also reflected in his ITRs for AY 2012 2013 to AY 2016 2017 particulars whereof are as follows: AY 2012 13 AY 2013 14 AY 2014 15 AY 2015 16 AY 2016 17 Director s Remuneration Commission Received 2 40 000 3 00 000 3 00 000 3 90 000 2 13 200 CONT.CAS(C) 429 2021 The petitioner points out that the respondent is the sole proprietor of M s. Equal Minerals and is a Director in M s. Euro Polymers Pvt. Ltd. which is a family owned concern. He and his mother are the only two Directors in the said company. He is also a Director in M s Equal Plastics Pvt. Ltd. which is admittedly the company of the Petitioner’s father. Various trademarks are held by M s Equal Minerals and M s Euro Polymers Pvt. Ltd. The petitioner has also pointed out that the respondent is leading a lavish lifestyle. The family owns a four storey bungalow at C 63 Inderpuri New Delhi of which three floors are owned by the respondent s family valued at over Rs. 15 crores. He also has a rented accommodation at House No. 1816 First Floor Sector 34 D Chandigarh. He also owns Plot No. 212 Phase 2 Industrial Area Panchkula Haryana. The petitioner claims that the respondent has beneficial interest in the family property at 3780 82 Reghar Pura Karol Bagh New Delhi. The respondent is driving two cars namely a Corolla Altis and a Ford Ecosport. He also owns two motorbikes i.e. Royal Enfield. The petitioner points out that the respondent has disclosed in his ITR for the AY 2017 18 that he has sold gold weighing 474.10 grams valued at Rs. 8 72 748 and 143.95 Crt. of diamond valued at Rs. 15 94 000 . The petitioner submits that it is her jewelry which was kept by the respondent when the petitioner was turned away from her matrimonial home and this jewelry was evidently sold by the respondent. The petitioner has also pointed out that when the parties were together they were leading luxurious lifestyle. They travelled abroad to celebrate new year’s and took holidays to different parts of the world such as Canada Malaysia Singapore. 10. Coming back to the bank statements filed by the respondent along with his reply it is seen from these statements of account that even if one were to ignore other bank accounts that the respondent may be holding and operating particulars of some of which disclosed by the CONT.CAS(C) 429 2021 petitioner on the basis of the information gathered by her from respondent‟s ITRs the respondent was continuously maintaining a healthy balance in the aforesaid bank account i.e. the State Bank of India which continuously is in the range of Rs. 2 lakhs and more. Despite having sufficient liquidity the respondent did not comply with the orders passed by the Family Court on 20.12.2020 as well as our order dated 11.02.2021. On our query the respondent who is present in person states that he preferred to maintain the balance and not pay the amount payable to the petitioner on account of his business. Ms. Raju submits that since notice had been issued in MAT.APP.(F.C.) 20 2021 wherein the respondent had challenged the order granting maintenance to the petitioner herein the amount was not paid. At the same time she does not deny the fact that we had ourselves directed while passing order dated 11.02.2021 in the respondent‟s MAT.APP.(F.C.) 20 2021 that he shall continue to comply with the order passed by the Family Court during the pendency of the appeal….” 13. After noting the aforesaid violations we found the Respondent guilty of contempt and issued show cause notice to him requiring him to show cause why he should not be punished. We also directed him to file an affidavit making a complete and full disclosure of his bank accounts including those highlighted by the petitioner having not been disclosed. The operative portion of the order dated 13.09.2021 passed by this Court reads as 10….It is therefore clear to us that the respondent is in deliberate intentional and conscious breach of inter alia our order dated 11.02.2021 passed in MAT.APP.(F.C.) 20 2021 which the respondent has also withdrawn. Therefore the order passed by the Family Court on 20.12.2020 in so far as the respondent is concerned has now attained finality. We therefore find the respondent guilty of contempt and issue notice to him to show cause as to why he should not be CONT.CAS(C) 429 2021 punished. The respondent is directed to file an affidavit making full and complete disclosure of all his bank accounts including those highlighted by the petitioner as not having been disclosed. He shall also provide complete list of the loans which he granted to his parents and which are reflected in his own ITRs. The statement of all the bank accounts shall be filed from 01.04.2017 onwards. He shall also place on record the statement of accounts of the account held in State Bank of India in the name of his firm M s. Equal Minerals for the months for which they have not been placed on record and up to date till 31.08.2021. The affidavit along with the documents shall be filed by the respondent within two weeks. It is made clear that no further time shall be granted. On the next date the respondent is bound down to be personally present before the Court. emphasis supplied) 14. The Respondent filed his compliance affidavit dated 28.09.2021 pursuant to the order dated 13.09.2021 passed by this Court. The Respondent annexed copies of bank statements along with the affidavit and categorically stated that he does not have any other accounts except the ones of which the statements were filed. The Respondent does not state that he does not or did not have the three accounts mentioned in the Rejoinder filed by the Petitioner of which he had not filed any Statement of Account. These three Accounts were forming part of the Tabulation contained in the Rejoinder extracted by us in our order dated 13.09.2021. The Respondent has not filed the Statements of Account of any of these two accounts despite our specific direction. He also does not deny having a Joint Bank Account with Punjab National Bank A c No.3063000100444407. However he has not filed any statement of account of the said Bank Account. 15. The Respondent has further stated that he had taken a home loan for his father in his own name for an amount of Rs. 1 50 00 000 429 2021 Crore and Fifty Lakhs only) through Axis Bank and another home loan in his own name for a sum of Rs. 1 Crore on his father‟s asking from Citi Bank. The respondent has stated that the said loan amounts have been entirely repaid by his father through his own personal funds and through his personal Bank Accounts. Another affidavit reiterating the same has been filed by the father of the respondent which forms a part of the compliance affidavit of the respondent as Annexure B. The Father of the respondent in his affidavit has further refused to disclose any of his bank statements. The respondent has also stated that he has outstanding loan liability of Rs. 8 lakhsto be repaid to various banks and has also stated to have a balance of Rs.1 10 000 cumulatively in all his bank accounts. 16. We had taken note of the stand of the Respondent his father that he his father are not obliged to disclose their Bank accounts statements from which such large amounts of loan taken by the Respondent had been repaid. On 30.09.2021 the Respondent was put to notice in the following 3. We may notice that along with the affidavit of the respondent he has also filed an affidavit of Mr. Ashok Kumar Narang his father wherein Mr. Narang has stated that he is not willing to disclose his bank statements. We may make it clear that we have not asked him to disclose his bank statements. However the respondent has sought to make out a case that loans to the tune of Rs. 2.5 crores taken in his name were taken for the benefit of the father and that the loans have been repaid by the father. Since the loans have been taken in the name of the respondent it would be for the respondent to satisfy us that they were repaid by his father and not by him otherwise we would be entitled to draw our conclusions. CONT.CAS(C) 429 2021 4. We have made it clear to the respondent that non production of the relevant documents will lead to drawl of adverse inference against him.17. The petitioner has filed her objections dated 22.10.2021 to the compliance affidavit dated 28.09.2021 filed by the respondent. Ms. Priya Hingorani learned Senior Advocate representing the petitioner has highlighted discrepancies the compliance affidavit filed by respondent. The objection of the petitioner is that the respondent has failed to comply with the order dated 13.09.2021 passed by this court. The Petitioner has placed on record a chart outlining the discrepancies with respect to the two home loans availed of by the respondent and his father and the repayment of the said loans. The petitioner has relied on the loan statement dated 01.03.2017 addressed to the respondent by Citi bank and has submitted that the said limited loan statement for Citibank mortgage loan no. 132579 does not disclose who re paid the loan of Rs. 1 Crore. Another loan bearing loan no. 132579 from Axis bank which was taken by the respondent in his individual capacity was repaid on 22.09.2016. However not a single statement has been produced to show who repaid the same and how. The respondent has failed to produce any document to establish that the repayment of the said loans was done by his father and not by him. In addition to the above the Petitioner has also pointed out that the self proprietary concern of the respondent namely „Equal Minerals‟ has a huge clientele to whom he supplies his products i.e. packaged drinking water packaged carbonated water soda pet bottles soda and plastic containers etc. It is pointed out by the petitioner that the said business of the CONT.CAS(C) 429 2021 respondent is stable and he predominantly deals in cash. It is further pointed out that the cash deposits reflected in the respondent‟s bank account have dropped drastically after the dispute arose between the parties. The petitioner has pointed out that the respondent deposited in his bank account cash between the period of 5 months from April 2015 to August 2015 to the tune of Rs 29 85 000 between April 2016 to August 2016 to the tune of Rs. 19 74 000 and between the period of 2 months from April 2018 to May 2018 Rs. 8 92 000 . However after the petitioner filed the application for maintenance on 07.08.2018 the cash deposits into the bank account by the respondent dropped significantly to an average of Rs. 1 lakh per month or less. 19. The petitioner has further placed reliance on a tabulated chart showing analysis of Bank Statements of the respondent provided by the respondent himself to corroborate her submission that even post lockdown the business of the respondent has been running well. It is pointed out that within the period of 18 months i.e. from March 2020 till August 2021 a sum of Rs. 1 05 29 687 was credited into the bank account of the respondent. It is further pointed out that in the said bank account at the end of every month there remained an average balance of Rs. 1 62 572 . 20. On 11.11.2021 the respondent stated that he has filed another response to our order dated 13.09.2021 and to the Petitioner‟s objection dated 22.10.2021. Even though the same was not on record a copy was handed over to us by the Respondent and we have taken the same on record. 21. The respondent has also tendered copies of communications dated 08.03.2017 from Citi Bank mortgages communication dated 20.10.2016 CONT.CAS(C) 429 2021 from Axis Bank communications from DLF Limited in relation to property No. ULT 141 PL2034 2033 PL2032 in the Ultima and in respect of property no. UTL 151 PL2035 2036 2037 in the Ultima dated 24.11.2016 another three communications from DLF Limited which have also been taken on record. We have gone through the same as well. 22. We have heard Ms. Hingorani learned senior counsel for the petitioner. The respondent is present in person. The respondent has informed us that he has discharged his counsel and would like to make submissions. We have heard him as well. His defence is that he does not have the means to comply with the order dated 22.12.2020 passed by the Family Court and our order dated 11.02.2021. Therefore there is no question wilful and deliberate disobedience of the said order by him leading to civil contempt. 23. Before we examine the facts of this case we consider it appropriate to take note of the law relating to contempt particularly civil contempt. Section 2(b) of the Contempt of Courts Act 1971 defines „Civil Contempt‟ to mean ―wilful disobedience to any judgment decree direction order writ or other process of a court or wilful breach of an undertaking given to a court.” Section 10 of the said act empowers the High Court to punish contempt‟s of subordinate Courts. It reads “Every High Court shall have and exercise the same jurisdiction powers and authority in accordance with the same procedure and practice in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself”. Section 12 of the act prescribes the punishment for contempt of court in so far as it is relevant it read: ―12. Punishment for contempt of court.—(1) Save as otherwise CONT.CAS(C) 429 2021 expressly provided in this Act or in any other law a contempt of court may be punished with simple imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees or with both: Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court. Explanation.—An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide. 2) Notwithstanding anything contained in any law for the time being in force no court shall impose a sentence in excess of that specified in sub section for any contempt either in respect of itself or of a court subordinate to it. 3) Notwithstanding anything contained in this section where a person is found guilty of a civil contempt the court if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall instead of sentencing him to simple imprisonment direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.” 24. The Supreme court in T. Sudhakar Prasad v Govt. of A.P. 1 SCC 516 has held that the powers of contempt are inherent in nature. The Supreme Court and the High Courts are courts of record and by virtue of being courts of record have inherent jurisdiction to punish for contempt of themselves and the provisions of the Constitution Article 129 and Article 215 only recognise the said pre existing situations. The Supreme Court has also made similar observations in Supreme Court Bar Association v. Union of India 4 SCC 409 and recently in Suraz India Trust V Union of India 2021 SCC OnLine SC 833. 25. We may also take note of the judgment Supreme Court in Rama Narang v. Ramesh Narang & Ors. 11 SCC 114. In this decision the CONT.CAS(C) 429 2021 Supreme Court held that merely because an order or decree would be executable would not take away the Court‟s jurisdiction to deal with the matter under the Contempt of Courts Act provided the Court is satisfied with the violation is such that it would warrant punishment under Section 13 of the Act. The Supreme Court further held that it would neither be in consonance with the statute nor judicial authority or principle or logic to draw any distinction between the wilful violation of the terms of a consent decree and a decree passed on adjudication. It would be seen from the facts that we have already taken note of hereinabove and the further aspects that we would now proceed to take notice that the present is not a case of mere inability on the part of the respondent in complying with the order passed by the Family Court and by this Court. The situation is that the respondent has stubbornly and obstinately refused to comply with the said orders on completely false premise of his financial inability. Despite our repeated orders he has failed to make a clean breast of all his accounts incomes and expenditures. The loan document from Citi bank with regard to UTL 151 The Ultima DLF Garden City Sector 81 Gurgaon in which the respondent is shown as to be the applicant and his father to be the co applicant and another loan document from the Axis Bankpertaining to the property bearing No. UTL 141 the Ultima DLF Garden City Sector 8 Gurgaon disclose that the loan has been taken on the behalf of the father of the respondent. 28. There is no document on record to rebut the presumption that the loan was primarily taken by the Respondent and therefore he repaid the same. CONT.CAS(C) 429 2021 Pertinently in the past transactions disclosed by the respondent he claims to have advanced large amounts of loans to his parents. Thus it cannot be accepted that his father had repaid the loans taken by him from the above two banks. He has flatly refused to place on record the bank account details of himself his father to substantiate his plea that his father had repaid these loans from his own resources. It therefore emerges that the respondent has sought to acquire the said properties by his own funds and only with a view to evade his liability towards the petitioner he has used the name of his father benami. The sale deeds or the agreements to sell with the builder have also not been filed. This leaves us with no option but to draw an adverse inference against the respondent with regard to the funding and ownership of the said properties in favour of the respondent. 29. The bank statements of the respondent clearly show that the respondent was continuously maintaining a decent balance in the range of Rs. 1 1.5 Lakhs and more. The same was observed by us in our earlier order dated 13.09.2021. On our pointed query the Respondent stated that he has chosen to give precedence to his business over compliance of the orders passed by the Family Court as well as this Court. Ms. Hingorani counsel for the petitioner has been able to demonstrate that the respondent has falsely deposed in his compliance affidavit and has blatantly failed to comply with the orders passed by this Court as well the family Court. 30. The respondent has falsely claimed that he maintains only those bank accounts of which he has filed his statement of accounts with his compliance affidavit. Pertinently he does not dispute or deny the fact that he owns the other accounts taken note of hereinabove namely Indian Overseas Bank CONT.CAS(C) 429 2021 Axis Bank and SBI Joint Account No. 10211443836. With his compliance affidavit he has only filed a statement of Indian Overseas Bank for the period 07.08.2016 to 25.09.2021. However the said statement is not continuous and complete. He has not filed a single statement of joint account maintained by him with Punjab National Bank bearing Account No. 306300010044407. The cash incomes of the respondent have substantially over the years and remarkably dropped ever since disputes arose between the parties. The respondent has therefore stopped depositing the cash being generated in his income. It was for him to explain this phenomenon which he has not even bothered to address despite grant of opportunity. It is obvious to us that the respondent is suppressing his true income only with a view to evade compliance of the orders passed by the Family Court and by this Court requiring him to pay maintenance to the petitioner of entire arrears of maintenance. In view of the aforesaid facts it is abundantly clear to us that the Respondent is guilty of intentionally and deliberately violating and not complying with the order dated 22.12.2020 passed by the Family Court and order dated 11.02.2021 passed by this Court. 32. More than adequate indulgence has been shown to the Respondent but he chooses to be adamant and obstinate. The actions omissions of the Respondent in choosing to show complete disregard to the orders of the Court cannot be countenanced. If such action is permitted it will lead to anarchy and the Rule of Law would become a casualty. The orders of the Courts would be taken lightly and breached at the own sweet will of the individual concerned. There has been no effort on the part of the respondent CONT.CAS(C) 429 2021 to comply with the aforesaid orders. If he had acted bona fide he would have paid or deposited at least a portion of the outstanding amount to the petitioner. However the Respondent has chosen not to pay a penny. It is the dignity and majesty of the court which needs to be preserved. The judiciary as an institution has garnered faith of the common masses as a trusted institution only because judicial orders are enforced in an appropriate case even at the pain of contempt. The faith posed by the people in the judiciary has to be protected in the interest of society and also to meet the ends of observed as under: 33. The Supreme Court in Ashok Paper Kamgar Union v. Dharam Godha 11 SCC 1 dealt with civil contempt wherein the Court “17. Section 2(b) of Contempt of Courts Act defines „civil contempt‟ and it means wilful disobedience to any judgment decree direction order writ or other process of a Court or wilful breach of undertaking given to a Court. „Wilful‟ means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done that is to say with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore in order to constitute contempt the order of the Court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extra ordinary effort nor should be dependent either wholly or in part upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case ” It has been time and gain reiterated by the Supreme Court that the CONT.CAS(C) 429 2021 orders of Courts have to be obeyed unless and until they are set aside in appeal revision. The onus is on the party to establish and satisfy the court that the order is null and void and therefore not executable or enforceable. However in the present case the respondent has withdrawn his appeal against the order of the Family Court. Thus there is no question of his establishing that the order passed by the Family Court granting maintenance to the petitioner or the order passed by this Court in the respondent‟ matrimonial appeal was null and void. Even otherwise they cannot be considered as null and void since they were passed by Courts of competent jurisdiction after hearing the respondent herein. The Respondent has not shown any regard towards the majesty of the court by obeying its orders. He has shown no remorse or regret for non compliance of the aforesaid orders. If there is wilful disobedience to any judgment decree direction order writ or other process of a court or wilful breach of undertaking given to the court the contempt court shall take note of such violation that needs to be punished. The wilful disobedience by the contemnor undermines the dignity and authority of the Courts and outrages the majesty of law. In Ram Kishan vs. Tarun Bajaj & Ors 16 SCC 204 the Court has delineated the contours for initiating civil contempt action. The Court observed thus: 12. Thus in order to punish a contemnor it has to be established that disobedience of the order is “wilful”. The word “wilful” introduces a mental element and hence requires looking into the mind of a person contemnor by gauging his actions which is an indication of one s state of mind. “Wilful” means knowingly intentional conscious calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual accidental bona fide or unintentional acts or genuine inability. Wilful acts does not encompass involuntarily or negligent actions. The act has to be CONT.CAS(C) 429 2021 done with a ―bad purpose or without justifiable excuse or stubbornly obstinately or perversely‖. Wilful act is to be thoughtlessly from an act done carelessly heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order the contemnor cannot be punished. ―Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct.‖ 35. The conduct of the respondent taken note of hereinabove shows that he has tried to act over smart with the Court by concealing his true income and expenditure and the channels into which his incomes are flowing and the manner in which they have been utilised. He has not come clean despite grant of repeated opportunities. His conduct shows that he his defiantly disobeying the orders of the Court despite being called upon to comply with them repeatedly. 36. The Supreme Court in the case of Supreme Court Bar Association vs Union Of India & Anr 4 SCC 409 observed the object of punishment in the case of civil contempt and also remarked upon the jurisdiction exercised by the contempt court to protect the administration of justice from maligned. The Court observed thus: 34. The object of punishment being both curative and corrective these coercions are meant to assist an individual complainant to enforce his remedy and there is also an element of public policy for punishing civil contempt since the administration of justice would be undermined if the order of any court of law is to be disregarded with impunity. Under some circumstances compliance of the order may be secured without resort to CONT.CAS(C) 429 2021 the earnings of coercion the contempt power. For example disobedience of an order to pay a sum of money may be effectively countered by attaching contemner. In the same manner committing the person of the defaulter to prison for failure to comply with an order of specific performance of conveyance of property may be met also by the court directing that the conveyance be completed by an appointed person. Disobedience of an undertaking may in the like manner be enforced through process other than committal to prison as for example where the breach of undertaking is to deliver possession of property in a landlord tenant dispute. Apart from punishing the contemner the Court to maintain the Majesty of Law may direct the police force to be utilised for recover of possession and burden the contemner with costs exemplary or 42. The contempt of court is a special jurisdiction to be exercised sparingly and with caution whenever an act adversely effects the administration of justice or which tends to impede its course or tends to shake public confidence in the judicial institutions. This jurisdiction may also be exercised when the act complained of adversely effects the Majesty of Law or dignity of the courts. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the Courts of law. It is an unusual type of jurisdiction combining "the jury the judge and the hangman" and it is so because the court is not adjudicating upon any claim between litigating parties. This jurisdiction is not exercised to protect the dignity of an individual judge but to protect the administration of justice from being maligned. In the general interest of the community it is imperative that the authority of courts should not be imperiled and there should be no unjustifiable interference in the administration of justice. It is a matter between the court and the contemner and third parties cannot intervene. it is exercised in a summary manner in aid of the administration of justice the majesty of law and the dignity of the courts. No such act can be permitted which may have the tendency to shake the public confidence in the fairness and impartiality of the administration of justice. CONT.CAS(C) 429 2021 37. We therefore impose a fine upon the respondent of Rs. 2 000 . We punish him with simple imprisonment for a term of 3 months. 38. We have considered the aspect that mere imposition of a fine of Rs.2 000 would not meet the ends of justice and that a sentence of imprisonment is necessary considering the fact that the arrears owed by him are far in excess of the fine imposed and the fact that he has deliberately wilfully intentionally and defiantly disobeyed the directions issued to him by the Family Court and by this Court despite grant of opportunities. 39. However in case the respondent exhibits his apology by complying with the orders passed by the Family Court and by this Court in his matrimonial appeal and makes payment of entire arrears of maintenance within two weeks and undertakes to continue to pay the same during pendency of HMA No. 638 2018 or till the time the order dated 22.12.2020 continues to remain in force and tenders an unconditional apology to this Court we shall consider recalling the punishment of him undergoing simple imprisonment provided he complies with the aforesaid direction within the next two weeks. However in case he does not comply with this direction in the next two weeks he is directed to surrender before the Jail Superintendent Central Jail Tihar New Delhi on 09.12.2021. VIPIN SANGHI J JASMEET SINGH J NOVEMBER 25 2021 CONT.CAS(C) 429 2021

Challenging the Negligent driving on the Reasonable doubt: Ranchi High Court

The petitioner has undergone simple imprisonment for 10 days for an offence under Section 279 of IPC and further imprisonment of one year with a fine of Rs. 500/- and in default of payment of fine, he will have to undergo simple imprisonment for 10 days for an offence under Section 304-A of IPC. Both the sentences were directed to run concurrently held in the case Hon’ble Justice Anubha Rawat Choudhary in the matter of Budheswar Das v. The State of Jharkhand. [ Cr. Revision No. 845 of 2012].  The background of the case arises from the petitioner submits that the petitioner has been convicted for an offence under Sections 279 and 304-A of the Indian Penal Code alleged to be the driver of the offending vehicle, but there is no evidence of record and no findings of the petitioner being driving the vehicle. No witness has identified the petitioner as being the driver of the offending vehicle at the time of the alleged accident. No definite findings that the petitioner was driving the said truck at the time of the accident in a negligent manner. The truck was left by the driver at the spot and investigating the place of the accident took place right before the truck. The investigating officer started investigating and submitted a charge sheet against the driver stating that the accident took place by the said truck. No material in record to show as to how and in what manner the petitioner is involved with the alleged offence and even the investigation officer in a deposition has not stated the manner in which the petitioner has been implicated in the case. The petitioner has been convicted of the offence under Sections 279 and 304-A of the Indian penal Code and sentenced to undergo simple imprisonment for two months and to pay a fine of Rs. 500/-.    During the cross-examination, the eyewitness to the occurrence started that the truck was on high speed and dashed one scooter and the rider fell down on the left side of the road and died on the spot. The driver of the truck ran away from the truck. But the witness stated that he didn’t see the driver of the offending vehicle.  The Hon’ble Court finds “that the prosecution has not been able to prove the case against the petitioner beyond a shadow of all reasonable doubts, as they have not been able to produce any evidence that the petitioner was driving the at the time and place of occurrence. Therefore, the petitioner is acquitted and discharged from the liabilities under the bail bond”. 

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 8412 Budheswar Das Son of late Nilkant Das Resident of Village Roladih P.O. P.S. Potka District East Singhbhum. Petitioner … … Versus The State of Jharkhand … Opp. Party CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY Through: Video Conferencing 1. Heard Mr. Saurav Kumar learned counsel appearing on behalf of the petitioner. 2. Heard Mr. Shailesh Kumar Sinha learned counsel appearing on behalf of the opposite party State. The present revision application has been filed against the judgment dated 06.10.2007 passed by the learned 4th Additional Sessions Judge East Singhbhum at Jamshedpur in Cr. Appeal No. 184 2006 whereby the appeal filed by the petitioner has been dismissed against the judgment of conviction and order of sentence dated 12.06.2006 passed by the learned Judicial Magistrate 1st Class Jamshedpur in G.R. Case No. 1202 1998 T.R. No. 72 2006. The learned trial court has convicted the petitioner for offence under Sections 279 and 304 A of the Indian penal Code and sentenced to undergo simple imprisonment for two months and to pay a fine of Rs. 500 and in default of payment of fine he will have to undergo simple imprisonment for 10 days for offence under Section under Section 279 of IPC and further imprisonment of one year with a fine of Rs. 500 and in default of payment of fine he will have to undergo simple imprisonment for 10 days for offence under Section 304 A of IPC. Both the sentences were directed to run concurrently. Submissions on behalf of the petitioner Learned counsel for the petitioner submits that the petitioner has been convicted for offence under Sections 279 and 304 A of Indian Penal Code alleged to be driver of the offending vehicle but neither there is any evidence on record nor there is any finding by the learned court below that it was the petitioner who was driving the offending vehicle. He further submits that a specific plea was raised before the learned appellate court that no witness has identified the petitioner as a driver of the offending vehicle at the time of alleged accident and there was no definite finding of the learned court below that the petitioner was driving the said truck at the time of accident in a negligent manner. He submits that the learned appellate court has recorded at para 8 of the impugned judgment that though P.W. 1 Arun Kumar says the number of said truck as BR 16B 9890 whereas the informant P.W. 2 Bhupendra Singh Bhatiya says the number of said truck as BR 16B 9809. The learned appellate court held that it is simply a numerical error. The truck was left by the driver at the spot and the investigating officer P.W. 3 who investigated the place of occurrence says that the accident took place in front of Tata Pigment where the deceased was lying dead and the said truck bearing Registration No. BR 16B 9809 was also standing and therefore it was very much clear that the truck bearing Registration No. BR 16B 9809 was involved in the said accident. It is submitted that P.W. 3 the investigating officer has stated that after investigation he submitted charge sheet against the accused driver of the said truck as the accident took place by the said truck. The learned counsel submits that there is no material on record to show as to how and in what manner the petitioner is involved with the alleged offence and even the investigating officer in his deposition has not stated the manner in which the petitioner has been implicated in the case. The learned counsel submits that in absence of any materials on record to show that it was the petitioner who was driving the offending vehicle conviction of the petitioner for the alleged offence is ex facie perverse and is fit to be set aside. Apart from this he has also submitted that there is no finding by the learned trial court that the vehicle was being driven in rash and negligent manner. He submits that if the first point finds favour for the petitioner the second point need not be gone into as it is the case where there is no evidence that the petitioner was driving the said Submissions on behalf of the opposite party State Learned counsel appearing on behalf of the opposite party State on the other hand while responding to the argument of the learned counsel for the petitioner on the point of no evidence so far as involvement of the petitioner being the driver of the offending truck is concerned he is not in a position to show any material that it was the petitioner who was driving the offending vehicle at the time and place of occurrence either from the impugned judgments or from the evidences on record including the evidence of the investigating officer which was fully read over by the learned counsel appearing on behalf of the petitioner during the court proceedings. Findings of this Court The prosecution case is based on a written reportsubmitted to the Officer in charge of Jugsalai Police Station by the informant that on 27.06.1998 at about 9:30 A.M. while one Ravindra Kumar Singh an employee of the bear bar shop of the informant was going to Sakchi he was dashed by a truck bearing No. BR 16B 9809 near pigment road and he died at the place of occurrence and after the accident the driver of the truck ran away. On the basis of the written report Jugsalai P.S. Case No. 125 1998 was instituted and P.W. 4 was entrusted with the task of investigating the case who upon completion of investigation submitted charge sheet against the petitioner under Sections 279 and 304 A of IPC and cognizance was taken on 25.08.1998 and charges were also framed under the same sections. After completion of prosecution evidence statement of the petitioner was recorded under Section 313 of Cr.P.C. wherein the petitioner had denied the allegations levelled against him. During the course of trial the prosecution produced altogether four witnesses out of them P.W. 1 Arun Kumar is the eye witnesses to the occurrence P.W. 2 is the informant of the case P.W. 3 is the Doctor who conducted post mortem upon the body of the victim and P.W. 4 is the investigating officer of the case. During trial the prosecution has also produced some documentary evidences. Ext. 1 is the written report Ext. 2 is the signature of the informant on the post mortem report Ext. 3 is the post mortem report Ext. 4 is the formal F.I.R. and Ext. 5 is the inquest report. 10. P.W. 2 the informant of the case in his evidence stated that on 27.06.1998 his staffwas going to Sakchi on scooter bearing No. BPH 7781. After hearing the news when P.W. 2 reached the place of occurrence he found his staff dead lying on the road and also found that one truck bearing Registration No. BR 16 B 9809 was standing there. This informant was told by the persons who were present there and that the truck was being driven rashly and negligently by the driver who dashed the scooter rider. Admittedly P.W. 2 is not an eye witness to the occurrence. 11. P.W. 1 Arun Kumar who claims to be an eye witness to the occurrence has stated that on 27.06.1998 while he was going to Bistupur and when he reached the bridge which was near Tata Pigment he found that one truck bearing Registration No. BR 16 B 9890 dashed one scooter as a result of which scooter rider fell down on the left side of the road and died on the spot. This witness has stated that the speed of the truck was high and the driver of the said truck ran away from the truck. During his cross examination this witness has stated that he had seen the occurrence but he could not see as to who was the driver of the offending vehicle. 12. P.W. 3 is the Doctor who has conducted the post mortem report upon the dead body of the victim. He has opined that the injuries sustained by the victim were caused by hard and blunt substance and death was caused due to injury of vital organs and such death is possible by way of road accident. 13. P.W. 4 is the investigating officer of the case who in his examination in chief has admitted that after getting task of investigating the case he went to the place of occurrence and prepared inquest report which was marked as Ext. 5. This witness has stated that at the place of occurrence there was one truck bearing Registration No. BR 16 B 9809 and after 5 7 feet the damaged scooter bearing registration No. BPH 7781 was there. In his cross examination he has stated that the scooter was in the left side of the truck. 14. The petitioner was examined under section 313 of Cr.P.C and he was in total denial of the prosecution case but has not led any defence evidence. It was specifically argued by the defence counsel before the learned trial court that the sole eye witness of the occurrence i.e. P.W. 1 has not identified the driver of the offending vehicle and also that P.W. 1 had stated a different truck number which by itself creates doubt so far as the case of the petitioner is concerned. After considering the materials on record the learned trial court gave the following finding: “After hearing the submissions of both the parties and after going through materials available on record I find that it is a fact that the informant is hearsay in this case but he has clearly stated that when he went to the P.O. he saw Ravindre Kumar Singh lying dead on the road. P.W.1 Arun has also stated that he saw that the truck dashed the scooter rider as a result of which scooter rider fell on the ground and he died. Moreover post mortem report clearly shows that the accused was brough for postmortem. In his opinion the doctor who conducted the post mortem has clearly stated that death is caused by hard and blunt substance due to which he died in road accident. In this way I find that the occurrence of dashing the scooter by the truck is well proved and the prosecution has been able to prove the charges levelled against the accused beyond the shadow of all reasonable doubts. So in light of discussion made above the accused needs to be convicted u s 279 and 304A of I.P.C.” 15. This Court finds that admittedly the solitary eye witness of the occurrence P.W. 1 has clearly admitted in his cross examination that he could not see who was driving the offending vehicle. In the entire judgment passed by the learned trial court there is no discussion of any evidence indicating that any of the witnesses had stated that the petitioner was driving the vehicle at the time and place of occurrence and that it was the petitioner who ran away from the truck after the accident. But the learned trial court without any discussion and without any evidence on the point came to a finding that the prosecution has been able to prove the case against the petitioner beyond shadow of all reasonable doubts. Further the learned trial court has not recorded any finding that the truck was being driven in rash and negligent manner. So far as the learned appellate court is concerned it also considered all the materials on record and also recorded the submissions of the learned counsel appearing on behalf of the appellant wherein specific plea was raised that neither any witness has identified the petitioner as a driver of the offending vehicle nor there is any definite finding by the learned court below that the petitioner was driving the truck at the time of accident in negligent manner. The learned appellate court after considering the materials on record gave a finding that it was very clear from the evidences on record that the offending truck was in speed and dashed the scooter in which the victim was riding. However so far as identity of the petitioner as driver of the truck is concerned no finding as such has been recorded. The appellate court recorded that it was very much clear that the truck bearing Registration No. BR 16 B 9809 was involved in the accident and the investigating officer of the case had stated that after investigation he submitted charge sheet against the petitioner who was the driver of the said truck and so the accident took place by the said truck. The learned appellant court recorded that the prosecution has been successful in proving the charges against the petitioner under Sections 279 and 304 A of IPC. 17. The learned counsel appearing on behalf of the petitioner has placed the materials on record during the course of hearing to satisfy this Court that there is no evidence on record that the petitioner was driving the offending vehicle. It is not in dispute that the P.W. 1 had clearly stated that he had not seen the driver of the offending vehicle though he was an eye witness to the occurrence .So far as P.W. 4 investigating officer of the case is concerned in his entire evidence he has not referred or stated as to how he has made the petitioner an accused in the case and has submitted charge sheet against him. So far as P.W. 2 is concerned he is admittedly not an eye witness to the occurrence and he had reached the place after the accident and by that time the driver of the offending vehicle had already run away and so far as P.W. 3 is concerned he was the Doctor who conducted the post mortem on the body of the informant. 18. This Court further finds that although it was stated by the informant that a number of persons had gathered at the place of occurrence after accident who had informed him about the manner in which the accident had taken place but no such person was produced before the trial court to give evidence who could have thrown some light on the point of identity of the petitioner as the driver of the offending vehicle. From the records of the case it appears that the petitioner had surrendered before the learned court below and was taken into custody on 30.06.1998 and after he was taken into custody and even before the police he had denied the allegation. As already recorded above the investigating officer of the case has not disclosed a word as to how and on what basis he has submitted charge sheet against the petitioner. 19. Considering the totality of facts and circumstances of the case and after going through the materials on record including deposition of the witnesses this Court finds prosecution has not been able to prove the case against the petitioner beyond shadow of all reasonable doubts as they have not been able to produce any evidence that the petitioner was driving the vehicle at the time and place of occurrence. In view of the aforesaid facts and circumstances this Court finds that judgment of conviction passed by the learned trial court and confirmed by the learned appellate court suffers from perversity calling for interference in revisional jurisdiction to secure the ends of justice. Accordingly the petitioner is acquitted and he is discharged from the liability under his bail bond. Consequently the impugned judgment of conviction and order of sentence dated 12.06.2006 passed by the learned Judicial Magistrate 1st Class Jamshedpur in G.R. Case No. 1202 98 T.R. No. 72 06 and also the judgment dated 06.10.2007 passed by the learned 4th Additional Sessions Judge East Singhbhum Jamshedpur in Cr. Appeal No. 184 06 are hereby set aside. 20. Accordingly the present revision application is allowed. 21. Pending interlocutory application if any is closed. 22. Let the lower courts record be sent back to the court 23. Let a copy of this order be communicated to the learned court below through ‘E mail FAX’.

The Court may decline the claim to be referred to arbitration only where there isn’t even a vestige of doubt that it is ex facie time-barred: High Court of Delhi

The limitation for filing an application under Section 11 arises when there is a failure to make an appointment of the arbitrator within a period of 30 days from the issuance of the notice invoking arbitration. In other words, an application under Section 11 can be filed only after a notice of arbitration in respect of the particular claim(s)/dispute(s) to be referred to arbitration as contemplated by Section 21 of the Act is made. It is only in the very limited category of cases, where there is not even a vestige of doubt that the claim is ex facie time-barred, or that the dispute is non-arbitrable, that the court may decline to make the reference. These were stated by High Court of Delhi, consisting Justice Suresh Kumar Kait in the case of Huawei Telecommunications (India) Co. Pvt. Ltd. & Anr. vs. Wipro Limited [ARB.P. 365/2019] on 24.01.2022. The facts of the case are that the petitioners were engaged in the business of designing, developing, manufacturing, marketing and/or sale of telecommunications related products worldwide. According to the petitioners, Bharat Sanchar Nigam Limited (BSNL) invited bids for planning, supply, installation and commissioning of IMPCS 20/30 Combo Network (Phase V) vide tender and B&CCS (Billing and Customer Care System including DR) and COTS Solution, which were part of the overall project. It was to be delivered to the BSNL as per tender specifications and requirements. For this purpose, petitioners entered into a Cooperation Agreement with the respondent. However, the respondent breached the said agreement by not following the project timeline. The learned Counsel for the petitioners submitted that Clause 4.4 of the Agreement clearly stipulated that time is of the essence under the agreement and the respondent was obligated to follow the project time line and ensure that no delay is there in supply and implementation. It was also submitted that respondent was responsible for bearing all the expenses for repair and replacement of the supplied solution and providing the same free of charge to the petitioners during the subsistence of the warranty period. It was, therefore, submitted that respondent was in direct breach of its contractual obligation and did not rectify/resolve certain issues. Several e-mails and communications were made by the petitioners to the respondent during that one year requesting respondent to fix the issues. However, the said communication was not replied to and therefore, this petition has been filed seeking appointment of sole Arbitrator by this Court. The learned Counsel for the respondent submitted that the disputes between the parties are not at all arbitrable and hence, the present petition deserves outright rejection. It was contended that the claims raised by the petitioners are highly time-barred, which purportedly pertain to Agreements dated 20.03.2009, according to which respondent were to provide warranty services for three years and the cause of action in the present case is not a continuous cause of action and also that the maximum period of three years under the limitation expired in December 2017 and, therefore, the present petition deserves to be rejected on the point of limitation alone. It was further submitted that even if it is assumed that the purported e-mails were exchanged between the parties, yet the e-mail was written by the respondent in the year 2016, and notice invoking arbitration by the petitioners is of the year 2019 and thereby, this petition fails on limitation. The High Court of Delhi stated that the provisions of Section 11(4) and Section 37(3) of the Act provides that for the purpose of the Limitation Act. An arbitration is deemed to have been commenced when one party to the arbitration agreement serves on the other party thereto, a notice requiring the appointment of an arbitrator. The limitation for filing an application under Section 11 arises when there is a failure to make an appointment of the arbitrator within a period of 30 days from issuance of the notice invoking arbitration. In other words, an application under Section 11 can be filed only after a notice of arbitration in respect of the particular claim(s)/dispute(s) to be referred to arbitration as contemplated by Section 21 of the Act is made, and if there is a failure to make the appointment. It is only in the very limited category of cases, where there is not even a vestige of doubt that the claim is ex facie time-barred, or that the dispute is non-arbitrable, that the court may decline to make the reference. However, if there is even the slightest doubt, the rule is to refer the disputes to arbitration, otherwise it would encroach upon what is essentially a matter to be determined by the tribunal. Pertinently, the Court held that execution of Cooperation Agreement between the parties and invocation of arbitration by virtue of notice dated 14.03.2019 is not disputed.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: January 11 2022 Pronounced on: January 24 2022 ARB.P. 365 2019 HUAWEI TELECOMMUNICATIONSCO. PVT. LTD. Petitioners ANR. Through: Mr. Devashish Bharuka Mr. Ravi Bharuka Ms. Jaya Bharuka& Mr. Ankit Agrawal Advocates WIPRO LIMITED Respondent Through: Mr. Gaurav Bahl Advocate HON BLE MR. JUSTICE SURESH KUMAR KAIT Petitioners claim to be engaged in the business of designing developing manufacturing marketing and or sale of telecommunications related products worldwide. According to petitioners Bharat Sanchar Nigam Limited invited bids for planning supply installation and commissioning of IMPCS 20 30 Combo Network vide tender No.: MM CMTS 032006 000301 dated 22.03.2006 and B&CCS Billing and Customer Care System including DR) and COTS Solution which were part of overall IMPCS 20 30 network solution ARB.P. 365 2021 designed by petitioners were to be delivered to the BSNL as per tender specifications and requirement. For this purpose petitioners entered into Cooperation Agreement Nos. PACIND3009032002RUB & PACCHNHW09032002 RUA dated 20.03.2009 with the respondent. During the course of hearing learned counsel for the petitioners submitted that Clause 4.4 of the Agreement clearly stipulated that time is of the essence under the agreement and the respondent is obligated to follow the project time line and ensure that no delay is there in supply and implementation Clause 4.5 of Agreement stipulated that the respondent was to provide year Operation and Maintenance support Clauses 4.6 and 10.3 of the Agreements read with Clause 1.2.1 stipulated that respondent was required to provide three years’ 7X24 warranty services from the date of commissioning of the complete network in the service area. It was also submitted that respondent was responsible for bearing all the expenses for repair and replacement of the supplied solution and provide the same free of charge to the petitioners during the subsistence of the warranty period. It was also stipulated in both the Agreements that in case BSNL imposes any penalty on the petitioners due to delay in restoration replacement fixing of the fault with ARB.P. 365 2021 B&CCS and COTS solution the respondent shall pay the complete penalty imposed and also if the respondent has to get the defects remedied from a third party that shall be at complete risk and expense of the respondent. Learned counsel for the petitioners further submitted that based on the aforesaid agreements and assurances the petitioners issued four purchase orders to respondent for hardware implementation integration of B&CCS and other components integration of new element with billing system and performance tuning with expanded billing system disaster recovery and business continuity system application software drives modem printer web based application with customizable OUI for data analysis and COTS package. According to petitioners the aforesaid work was commissioned after a delay on 25.06.2012 and was valid till 24.06.2013 and the associated warranted for complete solution products supplied was valid till 24.06.2015. Learned counsel next submitted that during the subsistence of warranty period under the said agreements BSNL raised several issues with regard to solution and products supplied by the respondent however respondent in direct breach of its contractual obligation did not ARB.P. 365 2021 rectify resolve certain issues. Several e mails and communications were made by the petitioners to the respondent during that one year requesting respondent to fix the issues and admittedly in a few of the communications respondent acknowledged the pending issues and assured the petitioners that all the issues will be resolved rectified. In order to rectify the defects and due to inaction of respondent petitioners engaged a Third Party Vendor and in terms of the agreements the third party vendor was wholly at the risk and cost of respondent and the same was informed to the respondent. According to counsel for petitioners thereafter meetings were held between petitioners and respondent on 26.10.2016 06.12.2016 15.11.2018 and 27.11.2018 wherein respondent always assured the petitioners that their team will check the claims of petitioners and revert however respondent failed to perform its contractual obligation. Learned counsel further submitted that due to non resolution rectification of open pending issues with the Servers and Storage BSNL imposed penalty amounting to INR3 62 46 055 on petitioners for the period 2015 2017 which accrued only due to voluntary inaction breach of warranty terms and non adherence to contractual obligations by the ARB.P. 365 2021 respondent. Additionally BSNL has withheld Huawei s Bank Guarantee BG) amounting to INR7 72 23 487 which may be encashed by BSNL due to inaction of respondent. Further during subsistence of the Agreements respondent did not avail technical support from ORACLE and petitioners got to know about it only when it demanded the complete payment of Technical Support charges from December 2010 onwards from the petitioners before providing any further service which respondent is solely liable to pay. Learned counsel for petitioners next submitted that due to respondent’s inaction to resolve the issues with BSNL and upon failure of discussions between the parties petitioners sent Legal Notice dated 21.12.2018 to respondent to come up with resolution plan within seven days. Though the said letter was replied by the respondent vide communication dated 03.01.2019 however it only stated that the detailed response shall follow which respondent never did. Thereafter petitioners were constrained to send legal notice dated 14.03.2019 to respondent invoking arbitration under Clause 18 of the Agreements and proposed name of Justice R.C. Chopra as the sole arbitrator to adjudicate the disputes and called upon the respondent to consent to the ARB.P. 365 2021 same. However the said communication was not replied to and therefore this petition has been filed seeking appointment of sole Arbitrator by this On the other hand learned counsel appearing on behalf of respondent submitted that the disputes between the parties are not at all arbitrable and hence the present petition deserves outright rejection. Learned counsel submitted that the claims raised by the petitioners are highly time barred which purportedly pertain to Agreements dated 20.03.2009 according to which respondent were to provide warranty services for three years and the cause of action is not a continuous cause of action and also that the maximum period of three years under the limitation expired in December 2017 and therefore the present petition deserves to be rejected on the point of limitation alone. Learned counsel submitted that even if it is assumed that the purported e mails were exchanged between the parties yet the e mail was written by the respondent in the year 2016 and notice invoking arbitration by the petitioners is of the year 2019 and thereby this petition fails on limitation. ARB.P. 365 2021 10. Reliance was placed upon Hon’ble Supreme Court’s decision dated 06.03.2021 in BSNL Vs. Nortel Networks(P) Ltd. 5 SCC 738 to submit that merely by exchange of letters and discussions period of limitation for issuing of notice invoking arbitration shall not be extended and also that Section 5 to 20 of the Limitation Act do not exclude the time taken on settlement discussions. Reliance was also placed upon another decision of Hon’ble Supreme Court in Geo Miller Vs. Chairman Rajasthan Vidyut Utpadadan Nigam Limited2020 SCC 643 to submit that petition under Section 11(6) of the Act was rejected as the claims were hopelessly time barred. It was submitted by learned counsel for respondent that by filing this petition petitioners are trying to revive the dead claims and there is no continuing cause of action in the present case. Reliance was also placed upon Hon’ble Supreme Court’s decisions in Balkrishna Savalram Pujari &Ors. Vs. Shree Dnyaneshwar Maharaj Sansthan&Ors. AIR 1959 SC 798 and M. Siddique Vs. Mahant Suresh Das 2019 SCC OnLine SC 1440 in support of above submissions. 12. Learned counsel next submitted that neither Agreement was executed nor any breaches were committed within the territorial ARB.P. 365 2021 jurisdiction of this Court therefore this Court has no jurisdiction to entertain the present petition under the provisions of Section 11 of the Arbitration and Conciliation Act. It was next submitted that neither of the parties work for gain at New Delhi the cause of action has not accrued at New Delhi the agreement was not executed in New Delhi but in Gurgaon and none of the payments has been received in New Delhi moreover no breached were committed within the territorial jurisdiction of this Court therefore this Court has no jurisdiction to adjudicate this petition under Section 11 of the Act. 13. Learned counsel further submitted that the arbitration clause contained in Para 18.2.1 notes that the place of arbitration shall be New Delhi and this would not confer any jurisdiction upon this Court to entertain this petition. It was submitted that seat and venue are two different legal issues and place of arbitration cannot give the status of the juridical seat. 14. Learned counsel submitted that all disputes between the parties were settled in a meeting dated 21.12.2015 whereunder petitioners and respondent had agreed to liquidate the damages at 6.5% of total Purchase Order value and thereby differential amount of INR 16 151 717.51 was ARB.P. 365 2021 paid by respondent to petitioners on 11.03.2016 which fact is concealed by the petitioners. 15. To refute petitioners’ claim that the defects were got rectified by a third party on 19.05.2017 at the risk and cost of respondent learned counsel placed reliance upon decision of a Division Bench of this Court in Ancient Infratech Vs. NBCC wherein it was held that the cause of action has to have a cut off date of determination irrespective of letters demanding completion of work and therefore rectification of work by a third party cannot renew the period of limitation. 16. Reliance was also placed upon Hon’ble Supreme Court’s decision in Sundaram Finance Vs. NoorjhanBiwi 2003 SCC 1 to submit that where there was a breach in payment of instalments the limitation ran from the date of the first default of payment. 17. Learned counsel further submitted that both the Agreements in question are independent of each other and cannot be bound for the purpose of Section 11 of the Act. With regard to claims raised by the petitioners learned counsel submitted that these are false baseless and without any merit. Hence dismissal of the present petition is sought. In rebuttal learned counsel for petitioners submitted ARB.P. 365 2021 respondent’s plea seeking dismissal of the present petition on the ground of limitation is to be rejected as even though the warranty period got over by 24.06.2015 thereafter petitioners and respondent have been in continuous exchange of e mails and holding meetings on regular intervals from 2015 till 2018. It is only when on 27.11.2018 that the respondent for the first time declined to rectify the pending issues the petitioners sent a legal notice on 21.12.2018 and finally invoked arbitration on 14.03.2019. Hence the claims raised by petitioners cannot be treated as “dead wood” as stated by respondent. Reliance was placed upon decisions in BSNL v. Nortel Networks (P) Ltd. 5 SCC 738 and Vidya Drolia Vs. Durga Trading Corpn.2 SCC 1. 19. The arguments advanced by both the sides were heard at length and the material placed on record as well as decisions relied upon have been perused. 20. The foremost question which is first required to be answered is whether this Court has jurisdiction to entertain the present petition. In reply to the present petition it is averred by the respondent that since one of the parties to the Agreements is not an Indian national therefore disputes if any shall be governed under the international ARB.P. 365 2021 arbitration as defined under Section 2(f) of the Act and also that the provisions of Section 11(4) of the Act make it clear that in case where international commercial arbitration has to take place only the Hon’ble Supreme Court shall have the exclusive jurisdiction to appoint the arbitrator. However during the course of hearing no submission was made in this regard and therefore this Court has not gone into this 22. Relevantly it is not disputed that the Cooperation Agreement dated 20.03.2009 in question contains the arbitration clause which reads as under: “18.2 Resolution of disputes 18.2.1 The Agreement will be governed by the laws of India All disputes. controversies or claims arising out of or in connection with or in relation to this Contract or itsnegotiation performance breach existence or validity whether contractual or tortuous shall be referred accordance with the Arbitration and Conciliation Act 1996 and conducted by a single Arbitrator to be appointed by the Parties by mutual consent. The cost of the arbitration shall be shared by the Parties. The place of the arbitration shall be New Delhi India. The arbitration proceedings shall be conducted in English language. The award of the arbitration shall be final and binding against the Parties hereto. to arbitration ARB.P. 365 2021 23. The Hon’ble Supreme Court in BGS SGS SOMA JV Vs. NHPC 2020) 4 SCC 234 has held as under: “82. On a conspectus of the aforesaid judgments it may be concluded that whenever there is the designation of a place of arbitration in an arbitration clause as being the “venue” of the arbitration proceedings the expression “arbitration proceedings” would make it clear that the “venue” is really the “seat” of the arbitral proceedings as the aforesaid expression does not include just one or more individual or particular hearing but the arbitration proceedings as a whole including the making of an award at that place. This language has to be contrasted with language such as “tribunals are to meet or have witnesses experts or the parties” where only hearings are to take place in the “venue” which may lead to the conclusion other things being equal that the venue so stated is not the “seat” of arbitral proceedings but only a convenient place of meeting. Further the fact that the arbitral proceedings “shall be held” at a particular venue would also indicate that the parties to a particular place signifying thereby that that place is the seat of the arbitral proceedings. This coupled with there being no other significant contrary indicia that the stated venue is merely a “venue” and not the “seat” of the arbitral proceedings would then conclusively show that such a clause designates a “seat” of the arbitral proceedings. In an international context if a supranational body of rules is to govern the arbitration this would further be an indicia that “the venue” so stated would be the seat of the arbitral proceedings. In a national context this would be replaced by the Arbitration Act 1996 as applying to the “stated venue” which then becomes the “seat” for the purposes of to anchor arbitral proceedings ARB.P. 365 2021 arbitration.” 24. Hence the contention of respondent that seat and venue are two different legal issues and place of arbitration cannot give the status of the juridical seat is liable to be rejected and this Court is well within its jurisdiction to entertain this petition. 25. Another question which is raised in the present petition is that the claims raised by the petitioners are ex facie highly time barred. To seek dismissal of present petition on this ground respondent has placed reliance upon various decisions and this Court has gone through the In Geo Miller Vs. Chairman relied upon by the respondent the final bill was handed over on 10.08.1989 three years period ended on 10.08.1992 notice invoking arbitration was sent in 2002 and petition under Section 11 was filed in the year 2003 and thereby the Hon’ble Supreme Court observed that there was inordinate delay of 14 years and upheld the decision passed by High Court of Rajasthan dismissing petition under Section 11 of the Act. ARB.P. 365 2021 27. The decision of Hon’ble Supreme Court in Balkrishna Savalram Pujari relied upon by the respondent are distinguishable on facts and is of no assistance to the case in hand. In Vidya Drolia relied upon by the petitioners the Hon’ble Supreme Court has dealt with the scope of judicial review under Sections 8 and 11 of the Act. 29. The Hon’ble Supreme Court in BSNL Vs. Nortel NetworkP) Ltd. dispute(s) to be referred to arbitration is made and there is failure to make the appointment. 16. The period of limitation for filing a petition seeking appointment of an arbitrator(s) cannot be confused or conflated with the period of limitation applicable to the substantive claims made in the underlying commercial contract. The period of limitation for such claims is prescribed under various Articles of the Limitation Act 1963. The limitation for deciding the underlying substantive disputes is necessarily distinct from that of filing an application for appointment of an arbitrator. This position was recognised even under Section 20 of the Arbitration Act 1940. Reference may be made to in J.C. Ltd.2 SCC 444 :1 SCC582] wherein it was held that Section 37(3) of the 1940 Act provides that for the purpose of the Limitation Act an arbitration is deemed to have commenced when one party to the arbitration agreement serves on the other party a notice requiring the appointment of an arbitrator. Para 26 of this judgment reads as follows :of the Act provides that for the purpose of the Limitation Act an arbitration is deemed to have been commenced when one party to the arbitration agreement serves on the other party thereto a notice requiring appointment of an arbitrator. Such ARB.P. 365 2021 invoking a notice having been served on 4 6 1980 it has to be seen whether the claims were in time as on that date. If the claims were barred on 4 6 1980 it follows that the claims had to be rejected by the arbitrator on the ground that the claims were limitation. The said barred by period has nothing to do with the period of limitation for filing a petition under Section 8(2) of the Act. Insofar as a petition under Section 8(2) is concerned the cause of action would arise when the other party fails to comply with the Therefore the period of limitation for filing a petition under Section 8(2) seeking appointment of an arbitrator cannot be confused with the period of limitation for making a claim. The decisions of this Court in Inder Singh Rekhi v. DDA2 SCC 338] Panchu Gopal Bose v. Port Bose v. Port of Calcutta 4 SCC 338] and Utkal Commercial Corpn. v. Central Coal Ltd.2 SCC 571] also make this position clear.” CalcuttaR.C.Chopra was proposed for appointment as Arbitrator which was not replied to. The period of limitation of three years will be counted from the expiry of refusal to reply to appointment of Arbitrator within 30 days of invoking arbitration by notice which in ARB.P. 365 2021 this case shall be 13.04.2019. The present petition was filed before this Court on 24.05.2019 and in this manner there is no delay in filing the present petition. 32. On the second question raised in the present petition by the respondent that the claims raised by the petitioners are ex facie highly time barred reliance was again placed by respondent upon decision in BSNL Vs. Nortel Networkthe Hon’ble Supreme Court had dealt with a case where the notice invoking arbitration was issued after 5½ years of rejection of claims and there was no averment either in the notice of arbitration or the petition filed under Section 11 of the Act or before the Supreme Court any intervening facts which would have extended the limitation period. However in the said case the Hon’ble Supreme Court on this question has observed as under: “47. It is only in the very limited category of cases where there is not even a vestige of doubt that the claim is ex facie time barred or that the dispute is non arbitrable that the court may decline to make ARB.P. 365 2021 the reference. However if there is even the slightest doubt the rule is to refer the disputes to arbitration otherwise it would encroach upon what is essentially a matter to be determined by the tribunal.” In view of afore noted observations of Hon’ble Supreme Court this court has once again tested the minute details of this case to find out whether the claims raised by the petitioners are stale and ex facie time barred and liable to be rejected. 34. Pertinently with regard to Agreement dated 20.03.2009 work was commissioned after a delay on 25.06.2012 and respondent was required to give one year maintenance and three years operation warranty and so the Operation and Maintenance period was valid till 24.06.2013 and the warranty was valid till 24.06.2015. With regard to issues raised by their client BSNL petitioners had written several e mails dated 1.09.2015 23.09.2015 17.11.2015 21.12.2015 25.01.2016 03.02.2016 08.03.2016 27.04.2016 and 26.10.2016 to respondent for rectification and resolution of pending issues and a few of them were replied by the respondent vide e mail dated 28.12.2015 07.01.2016 03.02.2016. Besides both sides held meetings on 15.11.2018 and 27.11.2018. The first legal notice was sent on 21.12.2018 which was replied by the respondent 03.01.2019 stating that the detailed response shall be given ARB.P. 365 2021 and thereafter on 14.03.2019 notice invoking arbitration was sent by the petitioners nominating its Arbitrator. However since the said notice was not replied to within 30 days petitioners filed the present petition on 24.05.2019. Without going into the details of these e mails and minutes of meeting held between the parties this Court finds that there has been continuous cause of action and persistent demand raised on the part of petitioner and thereby the claims raised cannot be said to be decayed. 35. So far as plea of respondent that the claims raised by respondent that all disputes stood already settled in terms recorded in the Minutes of Meeting dated 21.12.2015 or that there are two distinct agreements which cannot be consolidated or that the defects which were got rectified by a third party at the risk and cost of respondent are questions of claims which shall be considered and decided by the learned 36. Pertinently execution of Cooperation Agreement dated 20.03.2009 between the parties existence of arbitration Clause 18.2 therein and invocation of arbitration by virtue of notice dated 14.03.2019 is not disputed. Also terms of Clause 18.2 the disputes have to be referred to a single Arbitrator ARB.P. 365 2021 37. Accordingly the present petition is allowed and Mr. Justice G.S. SistaniMobile: 9871300034 is appointed the sole Arbitrator to adjudicate the dispute between the parties. 38. The fee of the learned Arbitrator shall be governed by the Fourth Schedule of the Arbitration and Conciliation Act 1996. 39. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act 1996 before commencing 40. The present petition and pending application if any are SURESH KUMAR KAIT) JUDGE arbitration. accordingly disposed of. JANUARY 24 2022 ARB.P. 365 2021

Bail conditions should be a balance of justice and right – Supreme Court

In the case of Parvez Noordin Lokhandwalla Vs State of Maharashtra [Criminal Appeal No. 648 of 2020] Supreme Court held that the conditions which a court imposes for the grant of bail have to balance the public interest in the enforcement of criminal justice with the rights of the accused. A private complaint was filed in January 2014 by Mehraj Rajabali Merchant in the court of the JMFC Thane alleging that the appellant has fabricated a Power of Attorney by forging the signature of his brother, Shalin Lokhandawalla. The appellant and the co-accused, Arun Fatehpuria, had preferred an application for grant of anticipatory bail before the Sessions Court Thane, which granted interim protection from arrest to both the accused. However, the interim order protecting the appellant was cancelled because the counsel representing the appellant withdrew the application on his behalf. The appellant is an Indian citizen and holds an Indian passport. He holds a Green Card, enabling him to reside in the US. He has resided in the US since 1985. However, between last five years, the appellant visited India on sixteen occasions. The appellant arrived in India in January 2020. He was arrested on 21 February 2020 at the point of departure in Mumbai in pursuance of a look-out notice which appears to have been issued on the basis of the FIR. The High Court declined to permit the appellant to travel to the US for a period of eight weeks. The appellant sought the leave of the High Court to do so since as a Green Card holder, it was mandatory for him to return to the US within a stipulated period of his departure from that country, failing which the conditions for revalidation of the Green Card would not be fulfilled. The High Court declined to relax the conditions imposed by it for the grant of interim bail on the ground that an FIR has been registered against the appellant. The appeal raised an interesting issue about the interface between the fundamental right to travel abroad and its curtailment under a judicial order as an incident to regulate conditions governing the grant of bail. The Appellant submitted that he would undertake to come to India on every hearing of the criminal cases before the concerned courts and he has no intention to evade the process of law. The respondent-state submitted that the conduct of the appellant has been improper as on the grant of anticipatory bail by the Sessions Court in 2018, the appellant left for the US, without seeking permission, though as a matter of fact, he returned subsequently to India on several occasions until 2020, when he was arrested. It was urged that the appellant has not complied with the conditions on which he was granted interim bail for eight weeks and he ought to have, but has not, surrendered after the period was over. Court referred the case of Dataram Singh v State of Uttar Pradesh [(2018) 3 SCC 22] where it was held that, “The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.”

IN THE CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 648 of 2020 Arising out of SLP(Crl) No 34220) JUDGMENT Parvez Noordin Lokhandwalla State of Maharashtra & Anr. Dr Dhananjaya Y Chandrachud Leave granted. This appeal arises from a judgment and order of a Single Judge of the High Court of Judicature at Bombay1 dated 23 July 2020. The High Court by its order which is in appeal declined to modify its earlier order dated 19 May 2020 so as to permit the appellant to travel to the US for a period of eight weeks from 25 July 2020 to 6 September 2020. The appellant sought the leave of the High Court to do so since as a Green Card holder it was mandatory for him to return to the US within a stipulated period of his departure from that country failing which the conditions for revalidation of the Green Card would not be fulfilled. The High Court declined to relax the conditions imposed by it for the grant of interim bail on the ground that an FIR has been registered against the appellant. Though the period during which the appellant sought to travel abroad has lapsed the cause survives. The appeal raises interesting issues about the interface between the fundamental right to travel 1 “High Court” abroad and its curtailment under a judicial order as an incident to regulate conditions governing the grant of bail. The genesis of the present case arises from a private complaint which was filed in January 2014 by Mehraj Rajabali Merchant in the court of the JMFC Thane alleging that the appellant has fabricated a Power of Attorney dated 19 December 2011 by forging the signature of his brother Shalin Lokhandawalla. On 10 April 2014 the JMFC passed an order by which he directed an investigation under Section 156(3) of the Code of Criminal Procedure 19732 in terms of the following directions: “1. The Kapurbavdi police station is directed to register the crime and investigate into the matter. Further it is hereby directed to submit the report before the court for taking action if any u s.340 of Cr.P.C.” 2. A First Information Report was registered against the appellant on 22 April 2014 in which the appellant is alleged to be involved in offences punishable under Sections 420 467 468 469 470 471 and 474 of the Indian Penal Code 18603 read with the provisions of Section 34. The appellant and the co accused Arun Fatehpuria had preferred an application for grant of anticipatory bail before the Sessions Court Thane which granted interim protection from arrest to both the accused on 17 February 2018. On 16 April 2018 the Sessions Court at Thane confirmed the interim order and granted anticipatory bail to the co accused Arun Fatehpuria primarily on the basis that the allegations in the complaint depend largely on documentary material rendering custodial interrogation unnecessary. However the interim order protecting the appellant was 2 3 cancelled because the counsel the appellant withdrew application on his behalf. The appellant is an Indian citizen and holds an Indian passport. He holds a Green Card enabling him to reside in the US. He has resided in the US since 1985. However between 10 March 2015 and 10 January 2020 the appellant visited India on sixteen occasions details of which have been filed on an affidavit dated 7 August 2020 in these proceedings. A tabulated chart contains details of his travel history and is extracted below: Arrival Date Departure Date “Sr. New Delhi New Delhi New Delhi New Delhi New Delhi New Delhi Indiain C.R. No.I 156 of 2014 The applicant be released on temporary bail for a period of eight weeks registered with Kapurbavadi Police Station Thane on his furnishing P.R. Bond of Rs.25 000 with one or more sureties to make up the amount. b) Till the procedure for furnishing sureties is completed the applicant is permitted to furnish cash bail. c) Before his actual release from jail the Applicant is directed to surrender his Passport and or Green Card issued by the United States of America with the Investigating Agency if not earlier seized by it or other Government Authorities. d) After his release from jail the applicant is directed not to leave jurisdiction of Thane Police Commissionerate without prior permission of the trial Court. e) Place the Application for regular bail before the regular Court after normal functioning of the Court begins.” On 10 June 2020 the appellant filed an IA before the High Court seeking permission to visit the US for a period of eight weeks. The High Court was hearing only urgent applications during the course of the lock down occasioned by the outbreak of Covid 19. The Registry of the High Court informed him on 15 June 2020 that no urgency was found in the praecipe for urgent listing. The appellant filed fresh praecipes for urgent listing on 17 June 2020 and 19 June 2020. On 26 June 2020 a Single Judge expressed his inability to take up the IA for relaxation of the conditions attached to the grant of interim bail since the order dated 19 May 2020 had been passed by Justice A. S. Gadkari. The contention of the appellant it may be noted has been that under the conditions prescribed by the US Immigration and Nationality Act 1952 he has to return for a short period for revalidating the Green Card. Among them are the following: “(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an into the United States for purposes of the immigration laws unless the alien i) has abandoned or relinquished that status ii) iii) has been absent from the United States for a continuous period in excess of 180 days has engaged in illegal activity after having departed the United States iv) v) has departed from the United States while under legal process seeking removal of the alien from the United States including removal chapter and extradition proceedings has committed an offense identified in section 1182(a)(2) of this title unless since such offense the alien has been granted relief under section 1182(h) or 1229b(a) of this title or is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration The High Court by its order dated 26 June 2020 rejected the application for considering his prayer for relaxing the conditions attaching to the grant of interim bail following which the appellant moved this Court4. By an order dated 13 July 2020 this Court requested the High Court to take up the IA filed by the appellant seeking permission to travel to the US at an early date. This Court in its order dated 13 July 2020 noted the submission of the learned counsel for the appellant in paragraph 2 of its order and then issued the following directions: “2. Mr Subhash Jha learned counsel appearing on behalf of the petitioner submitted that in the event that the petitioner is unable to arrive in the US by 29 July 2020 he will not be in a position to retain his Green Card as he is required to return to the US within 180 days of his departure and his status will then be that of an alien seeking entry into the US. 3. Since the interim application which has been filed by the petitioner is pending before the High Court we request the High Court to take it up at an early date having regard to the timeline which has been set out in the submissions which have been recorded above. We clarify that since the interim application is still pending before the High Court we have not expressed any view on the merits of the matter. The observations contained in the order declining to entertain the praecipe shall not come in the way of the disposal of interim application. The Special Leave Petition 4 SLPNo 30320 accordingly disposed of. 4. The Registry of the Bombay High Court may obtain if required administrative directions of the Hon ble Chief Justice for the assignment of the interim application.” In pursuance of the order of this Court the High Court heard the IA and has declined to grant permission to the appellant to visit the US for a period of eight weeks by its order dated 23 July 2020. 11 Mr. Subhash Jha learned counsel appearing on behalf of the appellant submits that: The appellant is a resident of the US since 1985 holds a Green Card since 2010 and has not violated any provision of law in the US The appellant and the members of his family have been involved in a long drawn out litigation against the complainant both of a civil and criminal nature occasions In the private complaint that was instituted by the complainant in January 2014 the co accused was granted anticipatory bail by the Sessions Judge Thane on the ground that the complaint essentially turns upon documents Between 2015 and 2020 the appellant has visited India on as many as sixteen The family of the appellant which includes him his brother Shalin and two sisters jointly owns properties at Thane and Panvel worth more than Rs 100 crores and the appellant is the only member of the family who is looking after the litigation Far from being a fugitive from justice the appellant has consistently travelled to India and the mere filing of the private complaint and the registration of an FIR should not preclude him from travelling to the US failing which he would incur serious consequences of the invalidation of his Green Card vii) While the court which grants bail under Section 439 of the Code of Criminal Procedure 1973 can impose conditions which ensure the presence of the accused to face trial the conditions must balance the liberty of the accused and not result in the arbitrary deprivation of the right to livelihood and viii) The order of the JMFC dated 10 April 2014 has been passed as a matter of routine course without application of mind and has been misused by the police machinery to harass and arrest the appellant at the behest of an adversary. Mr Jha further submitted that the appellant would undertake to come to India on every hearing of the criminal cases before the concerned courts and he has no intention to evade the process of law. Mr. Jha has stated that in pursuance of the notice issued by this court the complainant has been served. On the other hand Mr. Sachin Patil learned counsel appearing on behalf of the State of Maharashtra who appeared in pursuance of the notice issued by this Court on 29 July 2020 submitted that the conduct of the appellant has been improper. Mr. Patil stated that on the grant of anticipatory bail by the Sessions Court in 2018 the appellant left for the US without seeking permission though as a matter of fact he returned subsequently to India on several occasions until 2020 when he was arrested. It was urged that the appellant has not complied with the conditions on which he was granted interim bail for eight weeks and he ought to have but has not surrendered after the period was over. Mr. Patil submitted that since the appellant is facing a criminal trial the Court may expedite the course of the trial but not permit him to leave for the US at this stage there being no guarantee of his return. 14 The language of Section 437(3) of the CrPC which uses the expression “any condition… otherwise in the interest of justice” has been construed in several decisions of this court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437and 439(a) of the CrPC the discretion of the court has to be guided by the need to facilitate the administration of justice secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail. In Kunal Kumar Tiwari v The State of Bihar5 the appellant who was alleged to have committed offences under Sections 498 A 341 323 379 and 506 read with Section 34 IPC and Sections 3 and 4 of the Dowry Prohibition Act 1961 was denied anticipatory bail by the High Court. However the High Court directed that if the appellant was willing to treat his wife with dignity and care but she refuses to live with him or both parties prefer to obtain a divorce by mutual consent the court below would release the appellant on provisional bail. The trial court was permitted to confirm the provisional bail after one year and was directed to monitor the relationship between the parties who would appear before it every three months. This Court while holding that the conditions imposed by the High Court on grant of 5 2018) 16 SCC 74 bail were onerous and arbitrary observed: “9. …Sub clause of Section 437(3) allows Courts to impose such conditions in the interest of justice. We are aware that palpably such wordings are capable of accepting broader meaning. But such conditions cannot be arbitrary fanciful or extend beyond the ends of the provision. The phrase interest of justice as used under the Sub clause of Section 437(3) means "good administration of justice" or "advancing the trial process" and inclusion of broader meaning should be shunned because of purposive 10. … from the perusal of the impugned order it is clear that the court exceeded its jurisdiction in imposing such arbitrary conditions. Some of the conditions imposed are highly onerous and are absurd. Such onerous anticipatory bail conditions are alien and cannot be sustained in the eyes of law. The conditions imposed the good administration of justice or advancing the trial process rather it is an over zealous exercise in utter disregard to the very purpose of the criminal justice system. In view of the above the impugned order passed by the High Court is set aside and the interim protection granted to the Petitioner by this Court… is made to have no nexus with In Dataram Singh v State of Uttar Pradesh6 this Court observed that: “7. ….The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered it must be exercised judiciously and in a humane manner and compassionately. Also conditions for the grant of bail ought not to be so strict as to be incapable of compliance thereby making the grant of bail illusory.” In Sumit Mehta v. State of the CrPC this Court observed that a balance has to be struck between the rights of the accused and the enforcement of the criminal justice system while 6 7 2018) 3 SCC 22 2013) 15 SCC 570 imposing conditions on the grant of bail: “11. While exercising power Under Section 438 of the Code the Court is duty bound to strike a balance between the individual s right to personal freedom and the right of investigation of the police. For the same while granting relief under Section 438(1) appropriate conditions can be imposed Under Section 438(2) so as to ensure an uninterrupted investigation. The object of putting such conditions should be to avoid the possibility of the person hampering the investigation. Thus any condition which has no reference to the fairness or propriety of the investigation or trial cannot be countenanced as permissible under the law. So the discretion of the Court while imposing conditions must be exercised with utmost restraint.” This Court also discussed the scope of the discretion of the court to impose “any condition” on the grant of bail and observed: “15. The words "any condition" used in the provision should not be regarded as conferring absolute power on a Court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the pragmatic sense and should not defeat the order of grant of bail.” in the circumstance and effective In Barun Chandra Thakur v. Ryan Augustine Pinto8 this Court restored a condition mandating that the respondent seek prior permission from a competent court for travel abroad. The condition which was originally imposed by the High Court while granting anticipatory bail was subsequently deleted by it. This Court made the following observations with respect to imposing restrictions on the accused’s right to travel: “9. ….There could be no gainsaying to that the right to travel abroad is a valuable one and an integral part of the right to personal liberty. Equally however the pre condition of securing prior permission before travelling abroad is a crucial ingredient which undoubtedly was engrafted as a condition for the grant of anticipatory bail in this case. At best the condition for seeking 8 Criminal Appeal No. 16119No. 98719) order dated 21 October 2019. permission before travelling abroad could have been regulated not deleted altogether.” This Court has passed multiple orders previously allowing an accused enlarged on bail to travel abroad. In Ganpati Ramnath v State of Bihar9 this Court allowed an accused applicant to travel abroad for medical treatment modifying its earlier bail order noting that the applicant had travelled abroad on the ground of medical necessity on six occasions with the permission of the court and had returned. In K. Mohammed v The State of Kerala10 this Court allowed the accused appellant to travel abroad to meet in the exigencies of a family situation. In Tarun Trikha v State of West Bengal11 this Court allowed the accused petitioner to travel to Indonesia in connection with his employment and to return once the work was completed. In Pitam Pradhan v State of A P12 this Court while granting anticipatory bail permitted the petitioner to travel abroad noting that his job required him to travel abroad at frequent intervals and may lose his employment if he were not permitted to travel 20. Having heard the learned counsel appearing on behalf of the appellant and the learned counsel for the State of Maharashtra it is necessary for the Court to notice at the outset that a large amount of litigation is pending between the appellant and the complainant Mehraj Rajabali Merchant. The appellant has furnished details of the litigation between the parties as well as of the criminal prosecutions in his affidavit dated 7 August 2020. This has been summarised in a tabular statement: 9 Crlmp. Nos. 6304 & 6305 2017 in Criminal Appeal Nos. 1187 2004 order dated 4 May 2017. 10 Criminal Appeal Nos. 547 2012 order dated 2 March 2020. 11 Special Leave to Appeal Crl. Nos. 4643 2015 order dated 29 May 2015. 12 Special Leave to AppealNo(s).9664 2013 order dated 26 February 2014. Cases initiated by Merchants Sr.No. Court & Case “I. Civil SD. Court Ms. Lokhandwala Weigh Bridge Vs. M s Asam Transport 4th Civil Judge JMFC Thane Firdaus Rajabali Merchant Vs. Farida Firoz Lokhandwala 1st C J Magistrate Firdaus Rajabali Merchant Vs. Parvez Noor Lokhandwala 4th Joint Civil Judge Sr. Division Thane Add. Dist. Judge Civil MA 286 2019 Firoz Pirbhai Lokhandwala Vs Nooruddin Pirbhai Mehraj Rajabali Merchant Vs. 1. Parvez Noor 2. Farida Noor 3. Faizmin Amin 4. Dinaz Akbar 5. Shalin Noor 6. Arun Fathepuria 7. Firadaus Rajabali 8. Municipal Comr. of Thane II. Cases initiated by Lokhandwallas Sr.No. Court & Case Disposal Date 4th Civil Judge S D Parvez Noor. Lokhandwala Vs Firdaus Rajabali Dist & Session Court Thane Shalin Noor. Lokhandwala Vs. 2nd Joint Civil Judge SD Thane Hindustan Petroleum Farida Noor. Lokhandwala Vs. Farida Firoz 4th Joint Civil Judge SD Thane Farida Noor. Lokhandwala Vs. Farida Firoz III. Cases initiated by MerchantsCourt & Case Next date 2nd Joint Judge Sr. Division Thane Firdaus Rajabali Merchant Vs. Farida Firoz Argument 3.8.2020 2nd Civil Judge JD JMFC Thane Misc. Cr. 8th Dist. Judge Notice Firdaus Rajabali Merchant Vs. 1. Parvez N. 2. Farida N. Mehraj Rajabali Merchant Vs. 1. Parvez Noor. 2. Farida Noor. 3. Faizmin Amin 4. Dinaz Akbar 5. Shalin Noor. 6. Arun 7. Firdaus 8. Thane 5th Court Joint Civil Judge Sr. Mehraj Rajabali Merchant Vs. File of Stay 19.8.2020 Div. Thane 1. Parvez Noor. 2. Farida Noor. 3. Faizmin Amin 4. Dinaz Akbar 5. Shalin Noor. 6. Arun 7. Firdaus Merchants 8. Thane 9. Ganesh 10. Sanjay Salvi 11. Amarjit Singh Dhri Civil Judge Senior Division Thane Farida Firoz Vs. Farida Noor. 5th Court Joint Civil Judge Sr. Div Thane 3rd Joint Civil Judge Sr. Division Mehraj Rajabali Merchant Vs. Mehraj Rajabali Merchant Vs. Parvez Noor Evidence 3.9.2020 Summons 17 09 2020 IV. Cases initiated by LokhandwallasCourt & Case Next date 4th Joint Civil Judge Sr. Division Farida Noor. Vs. Farida 1st CJM Thane Cri M.A. 91 2014 Arg on Exh. Farida N. Vs. Firdaus Merchant & Court & Case Next date V. Misc Cases Supreme Court SLPNo. SLP3. High Court ASDB LD VC No.1020 along with 2. High Court carried out Parvez N. Vs. State of Parvez N. Vs. State of Parvez N. Vs. State of Maharashtra & The private complaint which is the genesis of the present proceedings was instituted in January 2014. The gravamen of the allegation is that the appellant has forged and fabricated the Power of Attorney of 19 December 2011 of his brother Shalin. Mr. Jha submits that as a matter of fact the Power of Attorney has not been used at any point his brother was present in India at the time when conveyance was entered into and that his brother has never raised any objection. However we are not inclined to go into these factual aspects at the present stage. It would suffice to note that the co accused was granted bail by the Sessions Judge Thane on 16 April 2018. We are called upon to decide only whether the appellant should be permitted to travel to the US for eight weeks. In evaluating this issue we must have regard to the nature of the allegations the conduct of the appellant and above all the need to ensure that he does not pose a risk of evading the prosecution. The details which have been furnished to the Court by the appellant indicate that he has regularly travelled between the US and India on as many as sixteen occasions between 2015 and 2020. He has maintained a close contact with India. The view of the High Court that he has no contact with India is contrary to the material on record. The lodging of an FIR should not in the facts of the present case be a bar on the travel of the appellant to the US for eight weeks to attend to the business of revalidating his Green Card. The conditions which a court imposes for the grant of bail in this case temporary bail have to balance the public interest in the enforcement of criminal justice with the rights of the accused. The human right to dignity and the protection of constitutional safeguards should not become illusory by the imposition of conditions which are disproportionate to the need to secure the presence of the accused the proper course of investigation and eventually to ensure a fair trial. The conditions which are imposed by the court must bear a proportional relationship to the purpose of imposing the conditions. The nature of the risk which is posed by the grant of permission as sought in this case must be carefully evaluated in each case. Mr. Sachin Patil submitted that the appellant was granted temporary bail for a period of eight weeks by the High Court by its order dated 19 May 2020 and the appellant has neither furnished surety nor he has surrendered after the expiry of the period of eight weeks. As far as the furnishing of sureties is concerned Mr. Jha stated on instructions that the directions of the High Court have been complied with. In regard to the surrender of the appellant the Court has been apprised of the fact that as a result of the lock down occasioned by the outbreak of Covid 19 the High Court on the judicial side passed successive orders13 on 26 March 2020 15 April 2020 and 15 June 2020 extending its interim orders. In the meantime to establish his bona fides the appellant states that he had moved the High Court in successive praecipes for early hearing while instituting an IA for modification of the conditions imposed on 19 May 2020 and eventually it was on the direction of this Court that the High Court passed the impugned order. Having regard to the genesis of the dispute as well as the issue as to whether the appellant is likely to flee from justice if he were to be permitted to travel to the US we find on the basis of the previous record of the appellant that there is no reason or justification to deny him the permission which has been sought to travel to the US for eight weeks. The appellant is an Indian citizen and holds an Indian passport. While it is true that an FIR has been lodged against the appellant that in our view should not in itself prevent him from travelling to the US where he is a resident since 1985 particularly when it has been drawn to the attention of the High Court and this Court that serious consequences would ensue in terms of the invalidation of the Green Card if the appellant were not permitted to travel. The record indicates the large amount of litigation between the family of the appellant and the complainant. Notwithstanding or perhaps because of this the appellant has frequently travelled between the US and India even after the filing of the complaint and the FIR. We accordingly are of the view that the application for modification was incorrectly rejected by the High Court and the appellant ought to have been allowed to travel 13 Writ Petition Urgent 20 to the US for a period of eight weeks. We accordingly permit the appellant to do so subject to his furnishing an undertaking to this Court before the date of travel that he will return to India after the expiry of a period of eight weeks and that he shall be available on all dates of hearing before the court of criminal jurisdiction unless specifically exempted from personal appearance. The undertaking shall be filed in this court before the appellant undertakes travel. On the return of the appellant after eight weeks and if it becomes necessary for him to travel to the US the appellant shall apply to the concerned court for permission to travel and any such application shall be considered on its own merits by the competent court. The appellant shall travel only upon the grant of permission and subject to the terms imposed. The passport of the appellant shall be handed over to the appellant to facilitate his travel subject to the condition that he shall deposit it with the investigating officer immediately on his return. Accordingly the order of the High Court dated 23 July 2020 shall stand set aside and the appeal shall stand disposed of in terms of the above directions. ...…...…....... ........J. [Indira Banerjee] New Delhi October 01 2020 S

The principle of distributive justice aims to bridge the gap between “have and have nots: Karnataka High Court

In a civilised society, it was unfortunate that an innocent child was left un-breasted because the lactating mother was unable to access her child. Such an opinion was held by The Hon’ble High Court of Karnataka, at Bangaluru before the Hon’ble Mr. Justice Krishna S. Dixit in the matter of  Smt Husna Banu V/S State Of Karnataka [WP No. 16729 of 2021(GM Police) C/W WP No. 15044 of 2021(GM Police)].  The facts of the case are associated with the petitioner who had filed a writ petition under articles 2206 and 227 of the Indian Constitution, prayed to the respondents to hand over the child Mohammed Arhaan’s custody to the petitioner as she’s her biological mother. In such a case, it appeared that there was an involvement of rivalry between the foster mother and the biological mother. The child was with the foster mother for about a year. A writ petition was also filed by the foster mother and her husband [WP No. 15044 of 2021] dated 12.08.2021. Further, both the petitions, by the appeal of the Bar, were taken together. The learned counsel, representing the foster mother contended that the allegations made against the foster mother were fallacious and that the foster mother was a victim of circumstances. Further, the learned counsel stated that the child was fostered well with ample love and care; also the biological mother have two children while the foster mother had none.  The learned counsel, who represented the biological mother submitted that the claim of biological was literal. He also stated that his client had suffered agony for a year because of her child being kept away from her. Stating the difficulties that a mother could face when her suckling child was kept away, the counsel sought for dismissal of the appeal made by the foster mother. The Hon’ble Court after considering all the facts mentioned by both the parties held that the biological mother should be given custody of the minor child. The Hon’ble Court also stated that the foster mother can see the child whenever her heart desires. The Hon’ble Court mentioned that the kind gestures from both the women hailed from two different religious backgrounds were a rarity.   The Hon’ble High Court of Karnataka, at Bangaluru before the Hon’ble Mr. Justice Krishna S. Dixit, pronounced “In above circumstances, these Writ Petitions are disposed of; there is and shall be no cause of action against the foster parents in civil or concerning the alleged kidnapping of the child. The observations hereinabove made being confined to the disposal of these two Writ Petitions shall not influence the collateral proceedings taken and/or to be taken against others.”

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF SEPTEMBER 2021 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.16729 OF 2021WRIT PETITION NO.15044 OF 2021IN W.P.NO.16729 2021: BETWEEN: SHO CHAMARAJPET POLICE STATION HIGH COURT BUILDINGS BANGALORE 560 001. SMT. HUSNA BANU W O JAVEEN PASHA AGED ABOUT 28 YEARS R AT NO.32 1ST CROSS SUBHANIYA MASJID JJR NAGAR BANGALORE SOUTH 560 026. …PETITIONER BY SRI. SIRAJUDDIN AHMED ADVOCATE) 1 . STATE OF KARNATAKA 2 . CHAIRMAN CHILD WELFARE COMMITTEE BY SRI. VINOD KUMAR AGA FOR R1 SRI. S.SUBRAMANYA ADVOCATE FOR R3) SMT. ANUPAMA DESAI W O RAO SAHEB DESAI R AT NO.98 WARD NO.3 MALAGITTI KOPPAL 584 116. VIDE COURT ORDER DATED 20 9 2021) DR. MH MARIGOWDA ROAD NEAR KIDWAI HOSPITAL BANGALORE 560 029. 2 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS TO HANDOVER THE CUSTODY OF THE TRACED OUT CHILD MOHAMMED ARHAAN TO THE PETITIONER AS SHE IS THE BIOLOGICAL MOTHER WITHOUT ANY FURTHER DELAY. IN W.P.NO.15044 2021: BETWEEN: WIFE OF RAOSAHEB DESAI AGED ABOUT 38 YEARS SON OF SWAMYRAO DESAI AGED ABOUT 46 YEARS BOTH RESIDING AT NO.98 WARD NO.3 MALAGITTI KOPPAL. …PETITIONERS 1 . SMT. ANUPAMA DESAI 2 . SRI. RAOSAHEB DESAI BY SRI. VENKATESH PRASAD.R ADVOCATE AND SRI. S. SUBRAMANYA ADVOCATE) 1 . THE STATE OF KARNATAKA REPRESENTED BY ITS CHIEF SECRETARY VIDHANA SOUDHA BANGALORE 01. 2 . DEPARTMENT OF WOMEN AND 3 . CHILD WELFARE COMMITTEE DR. M.H. MARIGOWDA ROAD NEAR KIDWAI HOSPITAL BANGALORE 29 REP. BY ITS CHAIR PERSON. …RESPONDENTS CHILD DEVELOPMENT FIRST FLOOR MS BUILDING DR. B.R. AMBEDKAR VEEDHI BANGALORE 01. REP. BY ITS SECRETARY. THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR ENTIRE RECORDS PERTAINING TO THE PETITIONER FILED IN THE SAID 3 HUMNA BANU ON THE FILE OF R 3 QUASH THE IMPUGNED NOTICE DTD. 12.08.2021 ISSUED BY THE R 3 THROUGH THE JURISDICTIOINAL POLICE TO THE PETITIONERS WITH OUT CONSIDERING THE APPLICATION FILED BY THEM AND PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE PETITIONERS VIDE ANNX B AND ETC. THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY THE COURT MADE THE FOLLOWING: These two cases involve rival claims for the custody of a toddler between a genetic mother and a foster mother this child is christened by the genetic parents as “Master Mohammed Arhaan” and later named by the foster mother as “ADWIK”. In a sense this matter reminds of the Jewish King Solomon who resolved such a dispute centuries ago and handed the child to the true mother after wisely identifying her and sent the pseudo mother to the gaol however that is not much the case here and what pleasantly surprises the Court is the grace with which these two gentle women two different religious backgrounds conducted themselves during the course of proceedings. 2. With the above prelude let me advert to the brief facts now. The case in W.P. No. 16729 2021 is 4 filed by the genetic mother of the child namely Smt. Husna Banu it is essentially for the custody of the child which has been with the foster mother Smt. Anupama Desai for a year or so there was a Habeas Corpus case filed by the genetic mother in W.P.(H.C.) 60 2020 which eventually resulted in the child being traced at the lap of foster mother the Chamrajpet Police Bengaluru having registered Crime No. 54 2020 are investigating into the matter is not much relevant for adjudication here. 3. The companion case in W.P.No. 15044 2021 is filed by the foster mother & her husband wherein they lay a challenge to the Police Notice dated 12.08.2021 whereby they have been directed to produce the child before the Child Welfare Committee on 18.08.2021 this notice owes its origin to the instruction of the said Committee issued to the Police on the eve strangely the genetic parents of the child do not figure as respondents in this case however both the battling parties being 5 before the Court the “clubbed cases” the arguable ground of non impleadment of proper necessary party pales into insignificance. 4. Both the writ petitions are taken together for disposal at the request of Bar this Court vide interim order dated 21.09.2021 had issued the direction keeping in view the concerns expressed by the genetic parents: .... Learned counsel appearing for the petitioner in the connected case Sri. Subramanya S submits that his client and the baby shall be present before the Court on 24.09.20021 at 10:30 a.m. This Court very reluctantly adjourns the matter to Friday with the rider that in the event the respondent No.3 is not here with the baby she runs the risk of being arrested and brought before the Court since the question of child s safety is involved in the matter. The jurisdictional Child Welfare Officer shall keep vigilance on the movement of respondent No.3 her family and the baby in question the said Officer will have all powers as are required for accomplishing this task. Registry to hand a copy of this order to the learned AGA who in turn shall hand it to jurisdictional Police with instructions to keep co vigilance with the Child Protection Officer as mentioned above." 6 In due obedience to the above direction the foster mother appeared before the Court along with the child this day. 5. The counsel for foster mother passionately argues for the dismissal of writ petition of the genetic parents and for allowing the one filed by his client the gist of his argument is that: his client is absolutely innocent of the allegations made against her she is only a victim of circumstances she having fostered the child all these months abundant with love affection & care should retain & rear it that the genetic mother already has two children whereas the foster mother has none a child well fostered for long cannot be parted away to the genetic mother without causing enormous violence to it in matters of custody interest of the child is paramount and therefore the claims founded on genealogy per se do not merit favour in support of his submission he cites episodes from Bhaagavatam and mentions about Devaki i.e. the genetic mother of Lord Krishna permitting 7 Yashoda i.e. the foster mother to retain custody of Infant Krishna. 6. The learned advocate appearing for the genetic mother per contra contends that in matters of custody of the child as between the parents the above argument of foster mother may be true however as between a genetic mother and a foster one the claim of the latter should yield to that of the former he also notifies to the Court the agony which the genetic parents of the child have undergone since a year or so he also highlights the difficulties of a lactating mother from whom the suckling infant is kept away thus he seeks dismissal of the other petition and allowing of his clients’. 7. I have heard the learned advocates appearing for the parties and perused the petition papers peculiarity of the case had generated a charged atmosphere in the Court Hall for some time learned members of the Bar namely Smt. Rashmi Patel Smt. Shahida Shehnaz Smt. Sunanda Rathod M s C.S.Prasanna Kumar Shridhar Pradhu & B.S 8 Nagaraj on request rendered a valuable assistance in the matter. This Court is of a considered opinion that the custody of the minor child needs to be given to the genetic mother for the following reasons: a) The child in question took birth in a maternity home in Bengaluru city in the last summer and thus it is only a toddler as yet this child having been lifted from the cradle of the hospital allegedly by some unscrupulous persons ultimately landed on the lap of foster mother is not in dispute shorn of the pleadings it is submitted at the Bar that the foster mother is only an innocent victim of circumstances that was her case too whatever be the epicenter of the lis the undisputed fact remains that Smt. Husna Banu is the DNA tested genetic mother of the child as between the genetic mother and the foster mother the claim of the former should have priority over the latter subject to all just exceptions into which argued case of the foster mother is not shown to fall this augers well with reason with law and with justice. 9 The trouble with the case at hand is that it is of a kind not frequently recurring so as to enable any given Judge to profit merely by experience and thereby enable him to lay down thumb rules especially when the elements involved are so complex however a broadnorm that in the matters of child custody the claim of the strangers should yield to that of the genetic parents gains support from TEJASWINI GAUD vs. SHEKAR JAGADISH PRASAD TEWARI 7 SCC 42 the Apex Court in the said case observed as under: the passage of Taking away the child from the custody of the appellants and handing over the custody of the child to the first respondent might cause some problem initially but in our view that will be neutralized with However till the child is settled down in the father’s house the appellants No.2 and 3 shall have access to the child initially for a period of three months for the entire day i.e. 08.00 AM to 06.00 PM at the residence of the first respondent. The first respondent shall ensure the comfort of appellants No.2 and 3 during such time of their stay in his house. After three months the appellants No.2 and 3 shall visit the child at the first respondent’s house from 10.00 AM to 04.00 PM on Saturdays and Sundays. After the child completes four years the appellants No.2 and 3 are permitted to take the child on every Saturday and Sunday from the residence of the father from 11.00 AM to 05.00 PM and shall hand over the 10 custody of the child back to the first respondent father before 05.00 PM. For any modification of the visitation rights either parties are at liberty to approach the High Court". In all civilized jurisdictions the rules of international law animate the norms of domestic law unless they are inconsistent: vide JOLLY GEORGE VERGHESE vs. BANK OF COCHIN 2 SCC 360 the principle of “the best interest of the child” is enshrined in the International Convention on the Rights of the Child 1989 Article 3of this Convention provides: …in all actions concerning children whether undertaken by public or private social welfare institutions law administrative authorities or legislative bodies the best interests of the child shall be a primary consideration . . .” Similarly Article 7(1) of the Convention says: “The child shall be registered immediately after birth and shall have the right from birth to a name the right to acquire a nationality and as far as possible the right to know and be cared for by his or her parents”. Article 8&of the Convention provide for the State Parties to respect the right of child inter alia to preserve its identity ‘name and family relations as recognized by 11 law’. It also provides that where a child is illegally deprived of some or all of the elements of its identity State Parties shall provide appropriate assistance and protection with a view to re establishing speedily its identity. d) Article 25 of the Universal Declaration of Human Rights provides: “Motherhood and childhood are entitled to special care and assistance…”. Article 24(1) of the International Covenant on Civil and Political Rights ICCPR 1966) recognizes right of the child to the measures of protection as are required by its status as a minor and the correlative duty resting on the shoulders of its family society and the State. In October 1979 a Joint WHO UNICEF Meeting on Infant & Young Child Feeding adopted the following statement: is an integral part of the reproductive process the natural and ideal way of feeding the infant and unique biological and emotional basis for child development. … It is therefore a responsibility of society to promote breastfeeding and to protect pregnant and lactating mothers to many influences that would disrupt it”. 12 e) Further Section 3(ix) of the Juvenile Justice Care and Protection of Children) Act 2015 which enacts inter alia the above principle of paramount interest of the child reads as under: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential." Section 2(9) of the said Act defines the term the best interest of the child to mean "…The basis for any decision taken regarding the child to ensure fulfillment of his basic rights and needs identity social well being and physical emotional and intellectual development." The modern Medical Science says breastfeeding is the best way to give babies all the necessary nutrients & antibodies which provide a vital shield of protection the experts in the field of neo natal science are of a considered opinion that the interaction between the lactating mother and the suckling infant involves a world of messages which is essential for the intellectual & emotional development of the child WHO recommends exclusive breastfeeding until the baby 13 attains the age of at least six months the research also shows that the adolescents & adults who were breastfed have less chance to be overweight & obese and that they demonstrate better IQ test results breastfeeding lowers the risk of breast & ovarian cancers diabetes & post partum depression according to Yukie Mokuo of the UNICEF. g) In the light of domestic law and the international law as briefly discussed above breastfeeding needs to be recognized as an inalienable right of lactating mother similarly the right of the suckling infant for being breastfed too has to be assimilated with mother’s right arguably it is a case of concurrent rights this important attribute of motherhood is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution of India it is unfortunate that this pretty child for no fault remained un breastfed its lactating mother having had no access to it till now in a civilized society such things should never happen. 14 h) The contention of learned counsel appearing for the foster mother that his client should be permitted to retain the custody of the child consistent with what Devaki Maa allegedly did qua Yashoda Maa as in Bhaagavatam is bit difficult countenance no authoritative text of the episode is produced to show that there was any dispute of the kind between these two Women of Grace in the era that is long gone by in such matters unsubstantiated episodes from some history or mythology do not much guide the decision making process ordinarily scriptures cannot be cited as precedents or as instruments having force of law notwithstanding the light they throw when the path we tread is shrouded in darkness in matters like this scriptural texts are not treated as edicts of law unless they are legislated expressly or by necessary implication or otherwise recognized what a great American Judge of yester century Justice Oliver Wendell Holmes Jr. had profoundly observed Lochner v. New York 198 US 45 is worth 15 . .This case is decided upon an economic theory which a large part of the country does not entertain. . .It is settled by various decisions of this court that State Constitutions and State laws may regulate life in many ways which we as legislators might think as injudicious . . . The Fourteenth Amendment does not enact Mr. Herbert Spencer s Social Statics . . . " i) As to what great poets said about motherhood: It is not impertinent to quote the poem My Mother penned by a Victorian poetess Ann Taylor 1782 1866) of the "Twinkle Twinkle Little Star" fame it touchingly expresses what a true mother means to a Who sat and watched my infant head When sleeping on my cradle bed tears of sweet affection shed My Mother. When pain and sickness made me cry Who gazed upon my heavy eye And wept for fear that I should die My Mother . . ." Similarly a 1860 poem of Oliver Wendell Holmes Sr. “A Mother’s Secret” is worth mentioning for its brevity 16 beauty & emotive content: “ …Youth fades love droops the leaves of friendship fall A mother’s secret hope outlives them all”. j) The contention of counsel for the foster mother that she does not have any children whereas the genetic mother has already two at home and therefore the custody of this child should be allowed to continue with his client is ludicrous children are not chattel for being apportioned between their genetic mother and a stranger on the basis of their numerical abundance the principle of distributive justice which intends to bridge the gap between “haves and have nots” is not invocable at least in this case it is a matter of common knowledge consistent with out experience that a genetic mother treats all her children as being an integral part of her body & soul regardless of what the children do to her this contention of foster mother is abhorrent to the very notion of motherhood. 17 k) The foster mother now being convinced of legitimacy & priority of the claim of genetic mother has filed a Memo dated 24.09.2021 in the open court which reads as under: The Third Respondent has this date handed over the custody of the child Adwik to the petitioner herein. Therefore the above case may be closed handing over of custody may be taken note off in the interest of justice" She also gracefully delivered the custody of the child to its genetic parents the genetic mother too with equal grace states that the foster mother may see the child whenever her heart so desires such kind gestures coming from two women hailing from two different religious backgrounds are marked by their rarity nowadays thus this legal battle for the custody of the pretty child is drawn to a close with a happy note once for all. In the above circumstances these Writ Petitions are disposed off there is & shall be no cause of action 18 against the foster parents in civil or criminal law concerning the alleged kidnapping of the child. The observations hereinabove made being confined to the disposal of these two Writ Petitions shall not influence the collateral proceedings taken and or to be taken against others. Before parting with this matter this Court places on record its deep appreciation for the able assistance rendered by its official Research Assistant cum Law Clerk Mr. Faiz Afsar Sait and the Law Intern Mr. Rithvik Mathur. Costs made easy. Sd JUDGE

Stealing a minor’s innocence by abducting her forcibly from her home: Patna High Court.

Section 363 of the Indian Penal Code which is a central government Act deals with kidnapping which is a non-bailable offence. Section 366 (A) of the Indian Penal Code states that “Whoever, by any means whatso­ever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable.” The punishment for the same is imprisonment extending up to 10 years along with a fine. Section 372 of the Indian Penal Code says that, “Whoever sells, lets to hire, or otherwise disposes a person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be shall be punished.” The punishment for this section includes imprisonment up to 10 years along with fine. A single bench comprising of Justice Ahsanuddin Amanullah adjudicating in the matter of Jai Kishore Kumar & ors v The State of Bihar (CRIMINAL MISCELLANEOUS No. 35482 of 2020) dealt with an issue in connection with Section 363, 366(A) and 373 of the Indian Penal Code. Mr. Pushpendra Kumar Singh represented the petitioners and Mr. Pramod Kumar Pandey referred to as APP (Additional Public Prosecutor) represented the State. This case was in connection with the arrest in the Sitamarhi PS Case No. 142 of 2020 dated 29.02.2020. Satyam Kumar was in relationship with the minor and they were in love. He even used to visit the house of the informant, to which no objections were raised.  The petitioners were alleged that they were party to the process of abduction of the grand daughter of the informant who was a minor. They alleged that she was abducted for the purposes of either killing her or for immoral trafficking. To this, the petitioners representator submitted the fact that Petitioner number 1 (Jai Kishore Kumar) who is the husband of the sister of Satyam Kumar and Petitioner number 2 (Mausam Devi) is the sister of Satyam Kumar and that they have no role in the affair of Satyam Kumar and since the allegation was against Satyam Kumar. The learned counsel submitted that there was no criminal antecedent as they had no concern with the affairs of Satyam Kumar. The APP in response stated that when the girl was recovered, her statement under Section 164 of the Code of Criminal Procedure, 1973 was recorded before the court, in which she clealy stated that the petitioners were a party to her abduction. She was with force taken far away from her house. The reasoning given was that abducting someone with such force would require the support of family and hence, they had a role to play in the process of abduction of the minor girl.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 354820 Arising Out of PS Case No. 142 Year 2020 Thana SITAMARHI District Sitamarhi 1. Jai Kishore @ Jai Kishore Singh Male aged about 40 years Son of Late Chandeshveri Prasad Singh 2. Mausam Devi @ Masum Kumari @ Pooja Kumari Female aged about 25 years wife of Jai Kishore @ Jai Kishore Singh Both Resident of Village Ratanpur Ward No. 13 PS Majorganj District Sitamarhi at present residing at Ward No. 1 Vinama Tola Mehsaul Pashchimi PS Sitamarhi District Sitamarhi The State of Bihar ... Petitioner s For the Petitioner s For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH Mr. Pushpendra Kumar Singh Advocate Mr. Pramod Kumar Pandey APP ... Opposite Party s ORAL JUDGMENT Date : 29 06 2021 The matter has been heard via video conferencing 2. Heard Mr. Pushpendra Kumar Singh learned counsel for the petitioners and Mr. Pramod Kumar Pandey learned Additional Public Prosecutor (hereinafter referred to as the ‘APP’ for the State 3. The petitioners apprehend arrest in connection with Sitamarhi PS Case No. 1420 dated 29.02.2020 instituted under Sections 363 366A and 372 34 of the Indian Penal Code 4. The allegation against the petitioners is that they were party to the abduction of the minor grand daughter of the Patna High Court CR. MISC. No.354820 dt.29 06 2021 informant and it is alleged that the same was for the purpose of immoral trafficking or to kill her 5. Learned counsel for the petitioners submitted that the petitioner no. 1 is the husband of the sister of Satyam Kumar and petitioner no. 2 is the sister of Satyam Kumar and they have no role in the affairs of Satyam Kumar as the main allegation is against him. It was submitted that Satyam Kumar and the girl were in love and that Satyam Kumar used to visit the house of the informant without any objection. Learned counsel submitted that the petitioners have no concern with the affairs of Satyam Kumar and have no criminal antecedent 6. Learned APP submitted that the girl after having been recovered has recorded her statement before the Court under Section 164 of the Code of Criminal Procedure 1973 in which she has clearly stated that the petitioners were also party to her abduction when she was forcibly taken away from her house. It was submitted that the role of the family members of the boy is always there as without their support no person would be able to manage such forced abduction with ulterior motives. It was further submitted that the girl being a minor the petitioners being adults and mature persons and being the sister and brother in law of Satyam Kumar it was their responsibility to have intervened and Patna High Court CR. MISC. No.354820 dt.29 06 2021 prevented such abduction of a minor girl knowing full well the consequences and not doing so clearly indicates that they had an active role in the occurrence 7. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court is not inclined to grant pre arrest bail to the petitioners 8. Accordingly the application stands dismissed. 9. However in view of submission of learned counsel for the petitioners it is observed that in the event the petitioners appear before the Court below and pray for bail the same shall be considered on its own merits in accordance with law without being prejudiced by the present order (Ahsanuddin Amanullah J

The post-mortem report does not, prima facie, show that there was the involvement of any other person or it was murder: High court of Patna

The petitioner was arrested under Section 304-B IPC, “Dowry death, where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or har­assment by her husband or any relative of her husband”, section 34 IPC, “Acts done by several persons in furtherance of common intention”. This present petition is in connection with Sitamarhi PS Case No. 261 of 2020 dated 25.05.2020. In the high court of Judicature at Patna, this judgment was given by honorable Mr. Justice Ahsanuddin Amanullah on the 17th of August 2021 in the case of Vinod Ram versus the state of Bihar criminal miscellaneous No.8930 of 2021, Mr. Uday Kumar Represented as the advocate for the petitioner and Mr. Ajay Kumar Jha represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held via video conference. The following are the facts of the case, the petitioner was accused of being party to the killing of his sister-in-law (brother’s wife) due to nonfulfillment of demand of motorcycle as dowry. The counsel representing the petitioner held that according to the FIR the brother was the one who informed the informant who is the brother of the deceased on the 24th of May 2020 at 6 PM in the evening that the deceased had run away from her matrimonial home and when they searched for her, she was found dead in a pond the next morning having a scratch on the right eye and swelling above her left eye. It was held that this case has been lodged merely on suspicion and there has been no event where the petitioner has demanded a motorcycle as he is only the brother. The marriage took place only two years back. It was later transpired that the husband himself called the informant regarding the same proves that the petitioner had no role in the same and the injuries resulted due to the fall in the pond and therefore the deceased had either committed suicide or met with an accident the same is also proved in the post-mortem report where no injury on the body was found. Further, the petitioner has no other criminal antecedent. The additional public prosecutor held that the death took place just two years after the marriage which falls within seven years according to the law. therefore, is a presumption in the law of foul play. Just because the petitioner is only the brother of the husband of the deceased, he cannot shirk from the accusation of dowry death. After considering  the facts and circumstances of the case the court held that “the fact that husband of the deceased had informed the informant about the deceased having run away indicates that there may have been some issue between the couple and further that the body being recovered the next morning from the pond only with one scratch on the right eye and one lump above the left eye, does not, prima facie, show that there was the involvement of any other person or it was murder, as it could have resulted from fall also.” The court concluded that “the Court is persuaded to allow the prayer for pre-arrest bail. the petitioner will be released on bail upon furnishing bail bonds of Rs. 25,000 to the Judicial Magistrate, in connection to PS Case No. 261 of 2020, under Section 438(2) Cr.P.C. 1973  (i) that one of the bailors shall be a close relative of the petitioner and (ii) that the petitioner shall co-operate with the Court and police/prosecution. Failure to cooperate shall lead to the cancellation of his bail bonds. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioner, to the notice of the Court concerned, which shall take immediate action on the same after giving the opportunity of hearing to the petitioner. The petition stands disposed of in the aforementioned terms.” Click here to read the judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.89321 Arising out of PS. Case No. 261 Year 2020 Thana SITAMARHI District Sitamarhi Vinod Ram aged about 38 years Male Son of Yogendra Ram Resident of Village Mehsaul Ward no. 3 P. S. Sitamarhi District Sitamarhi The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH Mr. Uday Kumar Advocate Mr. Ajay Kumar Jha APP Date : 17 08 2021 The matter has been heard via video conferencing. 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioner on 09.08.2021 which was allowed. 3. Heard Mr. Uday Kumar learned counsel for the petitioner and Mr. Ajay Kumar Jha learned Additional Public Prosecutorfor the State. 4. The petitioner apprehends arrest in connection with Sitamarhi PS Case No. 2620 dated 25.05.2020 instituted under Sections 304(B) 34 of the Indian Penal Code 5. The allegation against the petitioner who is the brother of the husband of the deceased and others is of killing her due to non fulfilment of demand of motorcycle as dowry Patna High Court CR. MISC. No.89321 dt.17 08 2021 6. Learned counsel for the petitioner submitted that it was his brother who is the husband of the deceased who had informed the informant who is the brother of the deceased on 24.05.2020 at 6 PM in the evening that the deceased had run away from the house and thereafter when the informant reached the matrimonial home upon search next morning at 6 AM body of the deceased was found in a pond on which there was scratch on the right eye and above the left eye there was swelling. It was submitted that only on suspicion the present case has been lodged as there was no occasion for the petitioner to demand a motorcycle as it could have been used only by the husband of the deceased Further it was submitted that the marriage had taken place about two years prior to the incident. Learned counsel submitted that the fact is that that the informant himself accepts that the husband of the deceased had called to inform that the deceased had gone away which indicates that there was some difference between the couple due to which she had run away and the petitioner had no role and further that the deceased had either committed suicide or could have met with an accident for the injuries indicate that it could result from a fall also. Learned counsel submitted that the post mortem discloses cardio respiratory failure without any other injury found on the body except for what has been stated in the FIR as has been noted in the order of the learned Additional Patna High Court CR. MISC. No.89321 dt.17 08 2021 Sessions Judge IV Sitamarhi in order dated 18.08.2020 in ABP No. 6620 by which the prayer of anticipatory bail of the petitioner was rejected. It was submitted that the petitioner has no other criminal antecedent 7. Learned APP submitted that the death occurred within two years of marriage when the deceased was in the matrimonial home and thus there is a presumption in law of foul play. Further it was submitted that the petitioner being the brother of the husband of the deceased cannot shirk from the responsibility of the deceased being killed by his brother due to non fulfilment of demand for a motorcycle. 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the fact that husband of the deceased had informed the informant about the deceased having run away indicates that there may have been some issue between the couple and further that the body being recovered the next morning from the pond only with one scratch on the right eye and one lump above the left eye does not prima facie show that there was involvement of any other person or it was murder as it could have resulted from fall also. Thus taking an overall view of the matter the Court is persuaded to allow the prayer for pre arrest bail Patna High Court CR. MISC. No.89321 dt.17 08 2021 9. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioner be released on bail upon furnishing bail bonds of Rs. 25 000 with two sureties of the like amount each to the satisfaction of the Chief Judicial Magistrate Sitamarhi in Sitamarhi PS Case No. 2620 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and furtherthat one of the bailors shall be a close relative of the petitioner and that the petitioner shall co operate with the Court and police prosecution. Failure to cooperate shall lead to cancellation of his bail bonds. 10. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioner to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the 11. The petition stands disposed of in the (Ahsanuddin Amanullah J

Mere commonality of ownership of participating firms, is not sufficient to record any conclusion about bid rigging in the absence of any material indicating collusion among such bidders: Competition Commission of India

Unless there is material on record to justify the claims of price fixing by collusion, mere commonality of ownership does not indicate violation of the provisions of Section 3(3)(d) of the Competition Act. This was held by the CCI in the matter of In Re: Alleged Cartelization in Road Construction work in the State of Uttar Pradesh, [ Suo Motu Case No. 03 of 2018] before Hon’ble Chairperson Mr. Ashok Kumar Gupta, Hon’ble Members; Ms. Sangeeta Verma and Mr. Bhagwant Singh Bishnoi. On the basis of a report from the Comptroller and Auditor General, the Commission acted on its own initiative upon becoming aware of the possibility of bid rigging by contractors engaged in road construction in the State of Uttar Pradesh. The Public Works Department (PWD) is in charge of the state’s road, building, bridge construction and maintenance. The CAG analysed 802 contract bonds undertaken by PWD in selected districts and found significant discrepancies from the criteria for technical evaluation of bids. The CAG noted a lack of competition in the tendering process, stating that 110 contract bonds were awarded on the basis of a single bid out of a total of 802 test-checked contract bonds implemented between 2011 and 2016. There was no re-tendering in any of these cases. As a result, only a small percentage of tenders received competitive bids. Based on the above, the Commission on 26th June 2018, held that there was a contravention of Sections 3(3)(a) and 3(3)(d) read with Section 3(1) of the Act. Additionally, it also asked the Director General (DG) to conduct an investigation and submit its report. The DG observed the following, that the PWD replied to the findings of the CAG report saying that, proper tender promotion and publicity had been made, that no bid rigging arrangements had been made with bidders, and that the tendering process was unbiased. There were no restrictions on bidders participating in the bidding process if they were registered with the Department as autonomous units, even if two or more bidding enterprises shared partners or ownership. It was also pointed out that there was no clause in the tender conditions for rejecting a tender if only one bid was received. The DG ascertained that identical bids in a tender and then during negotiation may indicate collusion between two bidders.  However, no proof to support or substantiate such suspicion was found.  When two bidders submit identical bids, the work is divided between them. This guaranteed that the quality of work was accomplished at a lower cost than was authorised, that the Department had not suffered any loss or litigation, and that the work was in accordance with previous practises. The Commission with regards to the aforementioned and referring In Re: Ved Prakash Tripathi v. Director General Armed Forces Medical Services and Ors [ C.No. 10 of 2020] and In Re: Reprographics India v. Hitachi Systems Micro Clinic Pvt. Ltd. & Ors. [C.No. 41 of 2018] held that, “mere commonality of ownership of participating firms, in itself, is not sufficient to record any conclusion about bid rigging in the absence of any material indicating collusion amongst such bidders while participating in tenders. The Commission has consistently held that mere common ownership is not sufficient to record any findings of contravention of the provisions of Section 3 of the Act………that in the absence of any rule regarding a single bid, it would have been difficult for the Department to cancel a tender merely because there is only one responsive bid, much less to draw any inference of anti-competitive conduct in the absence of any material on record in this regard………the investigation has not brought out any material which warrants further inquiry into the matter. The material brought forth by the DG are not sufficient to record any finding of contravention of the provisions of Section 3(1) of the Act read with Section 3(3) thereof.”

COMPETITION COMMISSION OF INDIA Suo Motu Case No. 018 In Re: Alleged cartelization in road construction work in the State of Uttar Pradesh Mr. Ashok Kumar Gupta Ms. Sangeeta Verma Mr. Bhagwant Singh Bishnoi Order under Section 26(6) the Competition Act 2002 1. The present case was initiated by the Commission suo motu after taking cognizance of possible instances of bid rigging by contractors engaged in road construction in response to the various tenders floated by the State of Uttar Pradesh on the basis of a report of the Comptroller and Auditor General titled “Performance Audit of Construction Management in Road Worksis responsible for the construction and maintenance of roads buildings and bridges in the state. The PWD had established two public sector corporations namely the Uttar Pradesh State Bridge Corporation Limited in 1972 and the Uttar Pradesh Rajkiya Nirman Nigam Limitedin 1976 for the construction and maintenance of major bridges and buildings respectively in the State. The road works are executed by PWD by awarding work to various contractors. Chapter 7 of the report talked about cartelization in various tenders floated bids submitted for road construction undertaken in the state during the period 2011 2016. In this regard CAG Suo Motu Case No. 018 examined 802 contract bonds executed by PWD in selected districts and noted large scale deviations from the laid down criteria for the technical evaluation of bids. 3. The CAG analyzed data of bids received during 2011 2016 with respect to various tenders floated by the PWD and observed that a majority of the tenders were not competitive as only one or two bids were received despite large number of registered contractors in each district. CAG also noted lack of competition in the tendering process and observed that out of the total 802 test checked contract bonds executed during 2011 2016 110 contract bonds were awarded on the basis of a single bid. In none of these cases were re tendering done. Further 488 contract bonds were awarded in test checked districts to bidders where only two bids were received. In all these cases also re tendering was not done in any of the test checked districts. The audit observed that out of the total 802 cases three or more bids were received in only 204 cases. Thus competitive bids were received only for a small fraction of tenders. 4. On analysis of data furnished by divisions circles pertaining to 2011 2016 CAG noted that there was an increasing trend of only two bids being received against the works. Further in various instances the contractors who submitted the bids were found to be related to each other. 5. Considering the CAG report and the observations made therein the Commission vide its order dated 26.06.2018 passed under Section 26(1) of the Competition Act 2002prima facie opined that the contractors have engaged in practices to determine the prices in respect of various tenders of road works and construction of bridges floated by PWD in the State of UP and there appeared to be a contravention of the provisions of Sections 3(3)(a) and 3(3)(d) of the Act read with Section 3(1) thereof. However considering the large number of contracts that were examined by CAG the Commission initially decided to take up limited number of tenders for examination having a value of above Rs. 10 Crore as detailed and specified in the said order. Suo Motu Case No. 018 6. Accordingly vide the aforesaid order the Commission directed the Director General “DG”) to cause an investigation and submit an investigation report. The DG submitted the investigation report on 30.07.2021. 7. To investigate the matter the DG sent notices to the Engineer in Chiefand HoD Uttar Pradesh Public Works Department seeking information regarding the tenders floated in respect of Gorakhpur and Basti circles including copies of complete file noting(s) wherein decisions in respect of the tenders had been taken. The DG also summoned contractors who had participated in the bidding for the impugned 8. To begin with the DG examined the issue of common partners or related ownership and found that UP PWD in its response to the comments of the CAG report stated that entities firms with related ownership were separately registered with the UP PWD proper advertisement and publicity had been made with regard to tenders no bid rigging arrangements were made with the bidders and the process of tendering was unbiased. It was further stated that as per the terms of the tenders there was no restriction on bidders or contractors to take part in the bidding process if they were registered with the Department as independent entities even if two or more bidding entities had common partners or related ownership. 9. The DG also called for the response of UP PWD regarding tenders with only one bidder where no re tendering was done. In this regard the Chief Engineerpointed out that the tender conditions did not have any provision to cancel a tender if only one bid was received in response. 10. Further the DG called for the tender documents in respect of Basti circle where identical percentage rates were submitted by the bidders. The DG noted that works were awarded to bidders who quoted the same percentage rate in relation to the estimated cost calculated by the Department. Similarly the DG noted that in Gorakhpur circle even after negotiation two bidders who participated had quoted equal rates. The DG had called for Suo Motu Case No. 018 these tender documents and found that these works were awarded to bidders who quoted the same percentage rates in relation to the estimated cost calculated by the Department. 11. The DG observed that identical bids in a tender and thereafter during negotiation may be indicative of collusion among two bidders in that work. However investigation could not find any evidence to corroborate and substantiate such suspicion. 12. With regard to sole bidder participation the DG noted that the Department gives adequate publicity to the tenders so that more bidders can respond to it. Further it was noted that in the absence of any rule regarding a single bid it would have been difficult for the Department to cancel a tender merely because there is only one responsive bid. In this regard it was found by the DG that the Department usually proceeds to award the work in such situations if it finds that the bid rate is in line with the estimated cost. 13. With regard to Basti and Gorakhpur circle investigation on identical bids and percentage rate the DG observed from the reply of Chief Engineerthat in the case of identical bids by two bidders the work is divided between the bidders. This ensured the quality of work being completed below the approved cost and that the Department had not suffered any loss or any litigation and the work was in line with past practices. 14. The DG noted in the investigation report that bids in any tender quoting a rate higher than the estimated price of the Department is not anti competitive by itself. Pertinently the DG noted that in the works awarded in respect of Basti and Gorakhpur circles there was not one case where the work was awarded at a cost above the cost estimated by the Department. As such it was noted by the DG that awarding a work at a higher than the estimated cost does not appear to be the norm in UP PWD tenders. 15. Having examined the DG report and the material available on record the Commission at the outset notes that as regards related parties submitting bids or parties having common ownership the Commission is of the opinion that mere commonality of ownership of participating firms in itself is not sufficient to record any conclusion about bid rigging in the absence of any material indicating collusion amongst such bidders while Suo Motu Case No. 018 participating in tenders. The Commission has consistently held that mere common ownership is not sufficient to record any findings of contravention of the provisions of Section 3 of the Act. In this regard reference may be made to a few of such previous orders passed by the Commission. In Re: Ved Prakash Tripathi v. Director General Armed Forces Medical Services & Ors. the Commission held that: “…mere commonality of directors or ownership of participating firms in itself is not sufficient to record any prima facie conclusion about bid rigging in the absence of any material indicating collusion amongst such bidders while participating in the impugned tender…. Further In Re: Reprographics India v. Hitachi Systems Micro Clinic Pvt. Ltd. Ors. the Commission held that: “...merely having common business linkages between the OPs as projected by the Informant cannot be the basis to suggest collusion in the bidding process. Moreover there is no material on record to suggest that the OPs were engaged in Bid Rotation etc. Therefore the allegation of supportive bid does not find favour with the Commission....”. Resultantly mere commonality of ownership does not imply contravention of the provisions of Section 3(3)(d) of the Act unless there is material on record to substantiate the allegations of bid rigging by way of collusion. 16. The Commission agrees with the DG’s finding with respect to sole bidder(s) that in the absence of any rule regarding a single bid it would have been difficult for the Department to cancel a tender merely because there is only one responsive bid much less to draw any inference of anti competitive conduct in the absence of any material on record in this regard. In such cases the procurer may consider reviewing its procurement processes and norms to ensure that the procurement parameters do not impose entry barriers or restrictions upon potential bidders. In case of suspicion of cartel formation the same can be reported to the Commission with relevant material. 17. On a careful reading of the material on record the Commission is of the considered opinion that the investigation has not brought out any material which warrants further inquiry into the matter. The material brought forth by the DG are not sufficient to record any finding of contravention of the provisions of Section 3(1) of the Act read with Section Suo Motu Case No. 018 3(3) thereof. Resultantly the present matter is ordered to be closed forthwith in terms of the provisions of Section 26(6) of the Act. Sd Ashok Kumar Gupta) Sd Sangeeta Verma) Sd Bhagwant Singh Bishnoi) Date: 11 11 2021 Place: New Delhi Suo Motu Case No. 018

It is the duty of the Tribunal to examine the relevancy and applicability of any documents before any considerations: High Court of Gauhati

Since the citizenship of the petitioner had come under a cloud, he would remain on bail during the proceedings. Such an opinion was held by The Hon’ble High Court of Gauhati before The Hon’ble Mr. Justice N. Kotiswar Singh and The Hon’ble Mrs. Justice Malasri Nandi in the matter of Md. Bahar Ali Vs. The Union of India and Ors [WP(C) No. 874/2019].  The facts of the case were associated with a petition where it was pleaded by the petitioner that a vital document Exbt.-3 was exhibited by him on the opinion of Foreigners’ Tribunal (IMDT) of Lakhimpur, North Lakhimpur wherein the Tribunal declared Sahar Ali, the father of the petitioner to be not a foreigner. The counsel representing the petitioner stated that since the father was declared as not a foreigner, naturally his son, the petitioner would be an Indian and not a foreigner. However, the Tribunal was non-considerate of this and due to which an important piece of evidence, the opinion of the learned Tribunal has been vitiated and is liable to be set aside, as submitted by the said counsel.  The documents furnished in Exbts.-1, 2, 3 and 4 had extracts of voters list, voter’s identity card and copy of the opinion of Foreigners’ Tribunal (IMDT). In the voter list, the Tribunal did not find Sahar Ali, the name of the petitioner’s father but Mahar Ali which was not relevant.  The Hon’ble High Court after considering all the submissions stated that “… we allow this petition by setting aside the impugned opinion dated 29.11.2018 passed by the learned Foreigners’ Tribunal, Lakhimpur (1st), North Lakhimpur in Lakhimpur FT(1st) Case No.2677/2011. The petitioner will accordingly, appear before the aforesaid Tribunal on or before 29.11.2021 and thereafter, the learned Tribunal will proceed with the matter and pass a fresh opinion in accordance with law… The concerned Superintendent of Police (B) shall also take necessary steps for capturing the fingerprints and biometrics of the iris of the petitioner. It is also made clear that the petitioner shall not leave the jurisdiction of the Lakhimpur district without obtaining permission from the Superintendent of Police (B), Lakhimpur.”

IN THE GAUHATI HIGH COURT The High Court of Assam Nagaland Mizoram and Arunachal Pradesh PRINCIPAL SEAT AT GUWAHATI WP(C) No. 874 2019 Md. Bahar Ali S O Md. Sahar Ali @ Mahar Ali R O Village Balijan PS Laluk District Lakhimpur Assam Versus Petitioner The Union of India represented by the Secretary to the Ministry of Home Affairs Government of India Sastri Bhawan New Delhi Pin 110001 The State of Assam represented by the Commissioner & Secretary to the Government of Assam Home Department Dispur Guwahati 781006 The Superintendent of PoliceLakhimpur District Lakhimpur Assam Pin 787001 The Deputy Commissioner Lakhimpur PO Lakhimpur District Lakhimpur Assam The Election Commission of India represented by the Chief Election Commission of India Nirvachan Ashoka Road New Delhi India Pin 110001 The National Register of Citizen represented by the State Coordinator Ashyut Plaza Bhangagarh Kamrup(M) Assam Pin 781006 Smt. Susismita Dutta Advocate North Lakhimpur Bar Association Page C O Secretary North Lakhimpur Bar Association PO North Lakhimpur District Lakhimpur Assam Pin 787001 HON BLE MR. JUSTICE N. KOTISWAR SINGH HON’BLE MRS. JUSTICE MALASRI NANDI For the Petitioner: For the Respondents Mr. M.A. Sheikh Dr. K.U. Ahmed Mr. M. Hossain Ms. F. Intaz Mr. S.H. Rahman Advocates Mr. P.S. Lahkar CGC Mr. J. Payeng SC FT Mr. A.I. Ali SC ECI Ms. K. Phukan Jr. GA Assam Ms. L. Devi SC NRC Date of Hearing & Judgment : 27th October 2021 JUDGMENT AND ORDERof Lakhimpur North Lakhimpur dated 04.02.2000 in IM(D)T NL|227 90 wherein one Sahar Ali was declared to be not a foreigner by the Tribunal in the present proceeding before the Foreigners Tribunal Lakhimpur(1st) North Lakhimpur in Lakhimpur FT(1st) Case No.2677 2011 the same was not considered by the Learned counsel for the petitioner submits that the aforesaid opinion of the earlier Foreigners Tribunal rendered on 04.02.2000 would clinch the issue in favour of the petitioner in as much as once his father was declared not a foreigner as a natural consequence the petitioner would be an Indian and not a foreigner. However unfortunately the learned Tribunal though referred to the said opinion of the Tribunal did not make any observation as regards the applicability reliability of the said opinion while determining the fate of the petitioner in the impugned opinion dated 29.11.2018. Accordingly it has been submitted that because of the non consideration of a vital piece of evidence Page the opinion of the learned Tribunal has been vitiated and is liable to be set We have heard the learned counsel appearing for the parties and also perused the impugned opinion dated 29.11.2018. On perusal of the impugned opinion what we have noted is that the learned Tribunal referred to 4(four documents which were exhibited as Exbts. 1 2 3 and 4 as mentioned in paragraph 8 of the impugned opinion. Exbt. 1 is the extract of Voters List for the year 1965 Exbt. 2 is the extract of Voters List of 1971 Exbt. 3 is the order of the copy of the IM(D)T case in IM(D)T NL|227 90 and Exbt. 4 is the Voter Identity Card of the proceedee The learned Tribunal discussed about the Exbts. 1 and 2 by holding that the said Voters Lists do not mention the name of Sahar Ali whom the petitioner claims to be his father but mentions the name of Mahar Ali and accordingly did not find it relevant However as regards Exbt. 3 the learned Tribunal did not make any observation as to the relevancy or reliability or applicability of the said document. Similarly as regards Exbt. 4 the learned Tribunal merely stated that this is only a document in proceedee s name by which the citizenship of a person cannot be determined at all From the above what is clearly evident is that while the learned Tribunal Page considered Exbts. 1 2 and 4 the learned Tribunal did not consider the Exbt. 3 at all. In our view the learned Tribunal ought to have considered the relevancy and applicability of the aforesaid document marked as Exbt. 3 by which according to the petitioner the citizenship of his father was decided We take this view for the reason that on perusal of the aforesaid opinion dated 04.02.2000 in IM(D)T NL|227 90 while deciding the said case the learned Tribunal also referred to two voters lists namely voters list in respect of Nowboicha LAC of 1965 and 1971 which documents the petitioner is also relying in the instant proceeding before the learned Tribunal in Lakhimpur FT(1st) Case No.2677 2011. Therefore it cannot be said that the aforesaid opinion which was rendered based on same set of documents are not relevant Accordingly we are of the view that this is a vital piece of evidence which will be highly relevant for determining the status of the petitioner as to whether he is a citizen of India or not As regards Exbt. 4 we would like to observe that the Exbt. 4 in which the name of the proceedee has been clearly mentioned though cannot be the sole piece of evidence to determine his citizenship it in conjunction with other materials can be relevant to determine the citizenship. To that extent this is also relevant and could not be ignored Accordingly we are of the view that the matter requires re consideration by the learned Tribunal and the learned Tribunal will pass a fresh opinion by Page appreciating all the documents and exhibits by considering these holistically and not in isolation before arriving at the opinion as to whether the petitioner is a foreigner or not in terms of the reference made by the competent authority Accordingly we allow this petition by setting aside the impugned opinion dated 29.11.2018 passed by the learned Foreigners Trubunal LakhimpurNorth Lakhimpur in Lakhimpur FT(1st) Case No.2677 2011. The petitioner will accordingly appear before the aforesaid Tribunal on or before 29.11.2021 and thereafter the learned Tribunal will proceed with the matter and pass a fresh opinion in accordance with law However since citizenship of the petitioner has come under cloud he will remain on bail during the proceedings for which he will appear before the Superintendent of PoliceLakhimpur within 15(fifteen) days from today by furnishing a bail bond of ` 5 000 with one local surety of the like amount to the satisfaction of the said authority. The concerned Superintendent of Police B) shall also take necessary steps for capturing the fingerprints and biometrics of the iris of the petitioner. It is also made clear that the petitioner shall not leave the jurisdiction of the Lakhimpur district without obtaining permission from the Superintendent of PoliceLakhimpur Sd Malasri Nandi Sd N. Kotiswar Singh Page

In order to not refer matters to Arbitration, prima-facie case of non-existence of arbitration agreement must be made: Delhi High Court

In case of doubt regarding non-existence of arbitration agreement, the Court has to refer the matter to Arbitration. Further, the court was of the opinion that there must be some prima-face case of non-existence of valid arbitration agreement to not refer a dispute to arbitration. The Delhi High Court presided over by J. J. Nath laid down this ratio in the case of Knowledge Podium System Pvt. Ltd. Vs. S M Professional Services Pvt. Ltd., [CS(COMM) 377/2020]. The brief facts of the case are that the defendant leased a property to the plaintiff on certain conditions and the plaintiff further deposited an interest-free refundable deposit of Rs. 1,90,14,720. Another fresh agreement was arrived between the parties regarding the use and occupation of the premises and maintenance with effect from April 2018. But later it became commercially unviable for the Plaintiff to retain the premises rented and hence began negotiations with the defendant to reduce the rent. However, even before a formal termination of the agreement between the parties or giving a chance to the Plaintiff to remove his movables, the defendant took possession of the premises. The Plaintiff asked for his security deposit, but the defendant invoked arbitration under Section 8 of the Arbitration and Conciliation Act, 1996. The Plaintiff in the case submitted that there was a new agreement signed between the parties in 2018 that did not contain any arbitration agreement and so it superseded and novated the previous agreement. Further, the defendant contended that the main lease agreement contained an arbitration clause, and the new agreement was with respect to certain conditions about the premise. Hence the defendant contended that arbitration under Section 8 of the Act should be allowed. The Court in this case observed that it could not be prima-facie be stated that the new contract entirely superseded the old registered lease deed between the parties. The Court further was of the opinion that the matter would require deep consideration, therefore the court allowed the arbitration application under Section 8 of the Act. The court further observed that, “A novation takes place only when there is a complete substitution of a new contract in place of the old. Do the facts of the present case warrant a conclusion that there was a novation of contract? I may first see the scope of Section 8 of the Arbitration Act.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 12.01.2021 Pronounced on: 25.01.2021 CS(COMM) 377 2020 KNOWLEDGE PODIUM SYSTEMS PVT. LTD...... Plaintiff Through Mr.Shyam Kapadia Mr.Vikram B.Trivedi Mr.S.R.Trilokchandani Ms.Priya Diwadkar and Mr.Kartik Nagarkatti Ads. S M PROFESSIONAL SERVICES PVT. LTD...... Defendant HON BLE MR. J USTICE J AYANT NATH Through Mr Saurav Agrawal Mr Madhav Misra Mr Harshavardhan Singh Rathore Advs. J AYANT NATH J . IA No.8471 2020 This application is filed under Section 8 of the Arbitration and Conciliation Act 1996 read with Order 7 Rule 11 CPC for rejection of the plaint and for referring the parties to arbitration. The present suit is filed by the plaintiff for recovery of Rs.2 58 24 648 being refund of the available interest free refundable security deposit together with interest. A decree of mandatory injunction is also sought to handover the movables of the plaintiff which it is stated have been illegally detained by the defendant. Alternative relief of Rs.91 05 539 by way of damages or compensation is also sought. CS(COMM) 377 2020 Some of the relevant facts are that vide a Lease Deed dated 21.02.2017 the defendant leased to the plaintiff the office premises on the First Floor and Second Floor at 21 IT Park Sahastradha Road Dehradun Uttarakhand admeasuring 39 614 sq.ft. super built up area with 22 car parking slots the building for nine years from 01.01.2017. Simultaneously a Maintenance Agreement was also executed between the parties which was co terminus with the Lease Deed for payment of fit out and maintenance charges for the said premises. As per the lease deed there was a lock in period from 01.01.2017 to 31.12.2022. The plaintiff deposited with the defendant an interest free refundable deposit of Rs.1 90 14 720 being 12 months rental under the Lease Deed Rs.1 04 58 096 being 12 months monthly fit out charges and Rs.57 04 416 being annual maintenance charges respectively under the Maintenance Agreement. It is the case of the plaintiff that a Fresh Agreement was arrived at between the parties in respect of use and occupation of the said premises and maintenance thereof with effect from April 2018. It is stated that the terms and conditions of the Fresh Agreement were captured and agreed upon in emails dated 26.09.2018 and 15.10.2018 exchanged between the parties. Hence it is the case of the plaintiff that the Lease Deed and the Maintenance Agreement stood substituted novated on account of the said Fresh It is stated that later it became commercially unviable for the plaintiff to retain the rented premises. It is stated that the plaintiff initiated negotiations with the defendant for reduction of rentals and maintenance with effect from April 2019. However it is stated that the defendant did not budge. On 17.01.2020 it is stated the defendant illegally disconnected the CS(COMM) 377 2020 electricity connection of the rented premises as means to coerce the plaintiff to make payments. It is stated that before the plaintiff could formally terminate the Fresh Agreement and remove its movables assets furniture etc lying in the rented premises and hand over vacant physical possession of the premises to the defendant one of the employees of the plaintiff who was present at the rented premises at that time acting in concert with the defendant handed over the keys of the rented premises to the defendant without seeking authorization of the plaintiff. On 03.02.2020 the plaintiff sent a legal notice to the defendant whereby it terminated the Fresh Agreement for the reasons stated therein and also requested defendant No. 1 to adjust a sum of Rs. 61 02 584 from the available interest free refundable security deposit of Rs. 3 19 27 232 and to refund the remaining interest free refundable security deposit of Rs.2 58 24 648 . The legal notice also sought grant of access to the authorised representative of the plaintiff to remove the movables and the server. Hence the present suit. In the present application the defendant applicant has taken the stand that the plaintiff has failed to place on record the fact that the plaintiff was on 10.08.2020 served with an advance copy of the petition filed under Section 11 of the Arbitration and Conciliation Act which has since been registered as Arbitration Petition No. 360 2020. The said arbitration petition is said to be pending. Essentially the case of the defendant is that the registered Lease Deed dated 21.02.2017 and the Maintenance Agreement had a lock in period of six years and was valid up to 31.12.2022. It is the case of the defendant that in terms of the Lease Deed dated 21.02.2017 and the Maintenance CS(COMM) 377 2020 Agreement of the same date the plaintiff is obliged to pay the outstanding rents and maintenance charges for the lock in period i.e. upto 31.12.2022. It is further pleaded in the present application that the parties to the present lis have already chosen their forum for the resolution of disputes i.e. arbitration and as such the present suit is not maintainable. It is pleaded that the Lease Agreement dated 21.02.2017 and the Maintenance Agreement of the same date contain arbitration clauses and hence the present application under Section 8 of the Arbitration and Conciliation Act. I have heard learned counsel for the parties. 11. Learned counsel for the plaintiff has pointed out that the plaintiff and the defendant at the time of execution of the Lease Deed and the Maintenance Agreement were family held companies. The family has exited from the plaintiff company sometimes in September 2018 and a new management has taken over charge of the plaintiff company. It is strongly urged that there is a novation of Agreement and the original Lease Deed and the Maintenance Agreement dated 21.02.2017 stand superseded and novated in view of the terms and conditions settled upon in the emails dated 26.09.2018 and 15.10.2018. In the novated contract there is no arbitration agreement and hence the present application is misplaced. 12. Learned counsel for the plaintiff has also relied upon the judgments of the Supreme Court in the case of Young Achievers vs. IMS Learning Resources Pvt. Ltd. 10 SCC 535 Sukanya Holdings Ltd. Vs. Jayesh H. Pandya & Anr. 5 SCC 531 and Booz Allen and Hamilton INC. vs. SBI Home Finance Ltd. & Ors. 5 SCC 532. 13. Learned counsel for the defendant has argued to the contrary. He states that only the agreed rental amount was agreed to be reduced in terms CS(COMM) 377 2020 of the emails that were exchanged and all the other terms and conditions of the Lease Deed dated 21.02.2017 and the Maintenance Agreement remained unchanged. It is stated that the parties remain bound by the arbitration agreement. Learned counsel for the defendant has relied upon the latest judgment of the Supreme Court in the case of Vidya Drolia & Ors. vs. Durga Trading Corporation 2020 SCC OnLine 1018 to plead that in these circumstances this court need not dwell deep into the arguments of the plaintiff and the matter be referred to arbitration. It is also stated that in the petition filed under Section 11 of the Arbitration Act for appointment of an arbitrator the plaintiff keeps taking adjournments on the ground that the present application is pending in the present suit. Hence he stresses that this court may decide the present application and appoint a learned Arbitrator to adjudicate the dispute between the parties I may first look at the arbitration clause in the Lease Deed dated 21.02.2017. Clause 9.1 of the Lease Deed reads as follows: “9.1 The Parties shall attempt in the first instance to resolve any dispute or difference arising in any way or manner out of in relation to or in connection with this Lease Deed by conciliation. If such a dispute is not resolved through conciliation within thirty days after commencement of discussions the same shall be decided by arbitration by a sole arbitrator appointed by the mutual consent of the Parties. The decision of the sole arbitrator shall be final and binding on the parties. The arbitration proceeding shall be conducted in accordance with the Arbitration and Conciliation Act 1996. Arbitration proceedings shall be conducted in English Language. The place of arbitration shall be New Delhi.” 15. A similar arbitration clause namely Clause 10.1 also exists in the Maintenance agreement dated 21.02.2017. CS(COMM) 377 2020 It undoubtedly follows that in the original lease deed and the maintenance agreement the parties have agreed to settle their disputes through arbitration. I may now look at the defence of the plaintiff to the present application. It has strongly been urged that on account of the subsequent novation of the contract through exchange of the emails dated 26.09.2018 and 15.10.2018 a new contract has come into being superseding the Lease Deed dated 21.02.2017 and the Maintenance Agreement of the same date. I may now look at the correspondence exchanged between the parties on the basis of which it is pleaded by the plaintiff that there was a novation of contract. On 26.09.2018 the plaintiff had written an e mail to the defendant which reads as follows: “Anil ji and Rajendra ji Refer the discussion last evening again where is was agreed that SM will reduce billing from April 18 in view of the financial constraints that KP is going thru and the slow down of its growth plans as it was originally envisaged . All other points were agreed and it was asked that the fitout charges should also reduce. Hence I am documenting the Understaning for confirmation so that billing could be closed in September and GST compliance be done. SM shall Bill only upto 60% of the 2nd floor area of 22172 sq ft. @ 42 rent fixed fit out amortisation shall be billed For the above area 15 rupees per sq ft on 8 year basis CAM shall be billed @ rs 8 per sq ft For cafeteria rs 20 per sq ft would be billed for the cafeteria services of the cafeteria space. Electricity will be paid directly at actuals Since KP is not using campus parking no billing shall be billed . CS(COMM) 377 2020 SM shall not separate divide the 2nd floor at the moment but shall try and continue its search to find a suitable tenant to make up for the loss of rent and KP shall have no objections to it. However before bringing in any new client on 2nd floor KP shall have a first right of refusal to expand . KP shall not be using the FF other than the cafeteria on shared basis and SM shall try and find out other tenements to cover up on loss of Regards Mukul” 19. On 15.10.2018 the defendant replied to the said e mail stating as follows: “Hi Mukul Following are the agreed terms for your convenience. We will get an addendum created as per the below.... • KP will use the second floor up to 60% of the area. SM shall bill KP for the usage of the second floor as per the following... o Rent for 13 300 sq. ft.@ Rs. 42 sq. ft. o Fit out amortization on 8 year basis for 13 300 sq. ft.@ Rs. 15 sq. ft. o CAM for 13 300 sq. ft.@ Rs. 8 sq. ft. • KP will use only the cafeteria on the first floor on the shared basis. SM shall bill @ Rs. 20 sq. ft for the area of cafeteria as per actual floor area. • KP will not use the campus parking. SM shall not bill KP for the parking. • KP will pay for electricity as per consumption. SM will ensure that a dedicated meter is installed for measure the electricity usage of KP. CS(COMM) 377 2020 We still need to discuss and finalize the following two items. Can we have a quick chat tomorrow whenever convenient • Lock in period • Deposit Thanks and regards Rajendra” It is admitted by the parties that based on these two documents there was an adjustment of rents. The question is can it be said that on account of the exchange of these communications the parties have rescinded the old agreement being the registered Lease Deed dated 21.02.2017 and the Maintenance Agreement of the same date and completely novated the contract. 21. As noted above the submission of the plaintiff is that on account of these two communications exchanged between the parties the old contract got novated and was substituted by a new contract which does not have an arbitration agreement. In this context reference may be had to Section 62 of the Contract Act which defines novation as follows: “62. Effect of novation rescission and alteration of contract.—If the parties to a contract agree to substitute a new contract for it or to rescind or alter it the original contract need not be performed. In this context reference may be had to the judgment of the Supreme Court in Lata Construction and Ors. vs. Dr.Rameshchandra Ramnikalal Shah and Anr. 1 SCC 586 where the Supreme Court held as follows: CS(COMM) 377 2020 “9. We may at this stage refer to the provisions of Section 62 of the Indian Contract Act which provides as under: “62. If the parties to a contract agree to substitute a new contract for it or to rescind or alter it the original contract need not be performed.” This provision contains the principle of “novation” of 10. One of the essential requirements of “novation” as contemplated by Section 62 is that there should be complete substitution of a new contract in place of the old. It is in that situation that the original contract need not be performed. Substitution of a new contract in place of the old contract which would have the effect of rescinding or completely altering the terms of the original contract has to be by agreement between the parties. A substituted contract should rescind or alter or extinguish the previous contract. But if the terms of the two contracts are inconsistent and they cannot stand together the subsequent contract cannot be said to be in substitution of the earlier contract.” 24. Hence a novation takes place only when there is a complete substitution of a new contract in place of the old. Do the facts of the present case warrant a conclusion that there was a novation of contract I may first see the scope of Section 8 of the Arbitration Act. Section 8 of the Arbitration Act reads as follows: “8. Power to refer parties to arbitration where there is an arbitration agreement.— 1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall if a party to the arbitration agreement or any person claiming CS(COMM) 377 2020 through or under him so applies not later than the date of submitting his first statement on the substance of the dispute then notwithstanding any judgment decree or order of the Supreme Court or any court refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement 2) The application referred to in sub sectionshall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub sectionand the said agreement or certified copy is retained by the other party to that agreement then the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that court. 3) Notwithstanding that an application has been made under sub section and that the issue is pending before the judicial authority an arbitration may be commenced or continued and an arbitral award made.” I may look at the latest judgment of the Supreme Court on Section 8 of the Arbitration Act in the case of Vidya Drolia and Ors. vs. Durga Trading Corporation meaning of non arbitrability and when the subject matter of the dispute is not capable of being resolved through arbitration and CS(COMM) 377 2020 ii) the conundrum “who decides” whether the court at the reference stage or the arbitral tribunal in the arbitration proceedings would decide the question of non arbitrability. The second aspect also relates to the scope and ambit of jurisdiction of the court at the referral stage when an objection of non arbitrability is raised to an application under Section 8 or 11 of the Arbitration and Concilliation Act 1996Ratio of the decision in Patel Engineering Ltd. on the scope of judicial review by the court while deciding an application under Sections 8 or 11 of the Arbitration Act post the amendments by Act 3 of 2016 and even post the amendments vide Act 33 of 2019 is no b) Scope of judicial review and jurisdiction of the court under Section 8 and 11 of the Arbitration Act is identical but extremely limited and restricted. c) The general rule and principle in view of the legislative mandate clear from Act 16 and Act 319 and the principle of severability and competence competence is that the arbitral tribunal is the preferred first authority to determine and decide all questions of non arbitrability. The court has been conferred power of “second look” on aspects of nonarbitrability post the award in terms of sub clausesii) or of Section 34(2)(a) or sub clause of Section 34(2)(b) of the Arbitration Act. d) Rarely as a demurrer the court may interfere at the Section 8 or 11 stage when it is manifestly and ex facie certain that the CS(COMM) 377 2020 arbitration agreement is nonexistent invalid or the disputes are non arbitrable though the nature and facet of non arbitrability would to some extent determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably ‘non arbitrable’ and to cut off the deadwood. The court by default would refer the matter when contentions relating to non arbitrability are plainly arguable when consideration in summary proceedings would be insufficient and inconclusive when facts are contested when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the arbitral tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism. 223. At the cost of repetition we note that Section 8 of the Act mandates that a matter should not be referred to an arbitration by a court of law unless it finds that prima facie there is no valid arbitration agreement. The negative language used in the Section is required to be taken into consideration while analyzing the Section. The Court should refer a matter if the validity of the arbitration agreement cannot be determined on a prima facie basis as laid down above. Therefore the rule for the Court is ‘when in doubt do 229. Before we part the conclusions reached with respect to question no. 1 are: a. Sections 8 and 11 of the Act have the same ambit with respect to judicial interference. CS(COMM) 377 2020 b. Usually subject matter arbitrability cannot be decided at the stage of Sections 8 or 11 of the Act unless it s a clear case of deadwood. c. The Court under Sections 8 and 11 has to refer a matter to arbitration or to appoint an arbitrator as the case may be unless a party has established a prima faciecase of non existence of valid arbitration agreement by summarily portraying a strong case that he is entitled to such a finding. d. The Court should refer a matter if the validity of the arbitration agreement cannot be determined on a prima facie basis as laid down above i.e. ‘when in doubt do refer’. e. The scope of the Court to examine the prima facie validity of an arbitration agreement includes only: a. Whether the arbitration agreement was in writing or b. Whether the arbitration agreement was contained in exchange of letters telecommunication etc c. Whether the core contractual ingredients qua the arbitration agreement were fulfilled d. On rare occasions whether the subject matter of dispute is arbitrable ” 27. Hence for rejection of a Section 8 application a party has to make out a prima facie case of non existence of valid arbitration agreement by summarily portraying a strong case. But when in doubt the court has to refer the matter to arbitration. The court should refer the matter if the validity of the arbitration agreement cannot be determined on a prima facie basis. CS(COMM) 377 2020 In the present case in my opinion as the facts noted above show it cannot be prima facie said that there is a completely new contract and that the old registered Lease Deed dated 21.02.2017 read with the Maintenance Agreement of the same date have been novated and substituted by a completely new contract. The e mail dated 15.10.2018 sent by the defendant merely agrees to reduction of rent. It does not specifically state that all the terms and conditions of the Lease Deed and the Maintenance Agreement stand superseded or novated. The issue would require deeper consideration and is best left to the arbitral tribunal to adjudicate upon. I accordingly allow the present application. I appoint Mr. Justice G. S. Sistani (Mobile No.+91 9871300034) as the Sole Arbitrator to adjudicate the dispute between the parties. The plaintiff will be at liberty to raise the plea about non existence of an arbitration agreement before the Learned Arbitrator. It is left to the discretion of the Learned Arbitrator to fix his fees. The learned Arbitrator shall comply with mandatory stipulations. 31. The application stands disposed of. In view of the above the suit and pending applications if any also J AYANT NATH J CS377 2020 stand disposed of. J ANUARY 25 2021 CS(COMM) 377 2020

The Plastic Waste Management Rules need to be given effect to ensure that the “Polluter Pays” principle is fully implemented: High Court of Delhi

There is no doubt that the Plastic Waste Management Rules need to be given effect to, in order to ensure that the “Polluter Pays” Principle is fully implemented and the industries do take care of the pollution that is being created by their actions, and their responsibilities qua the same are also duly prescribed and managed. This was held in CEMENT MANUFACTURERS ASSOCIATION & ORS. v. UNION OF INDIA THROUGH: SECRETARY MINISTRY OF ENVIRONMENT FORESTS CLIMATE CHANGE [W.P.(C) 5191/2021] in the High Court of Delhi by a single bench consisting of JUSTICE PRATHIBA M. SINGH. Facts are that the Petitioners are an association of several cement manufacturers, they have filed a petition challenging the Standard Operating Procedure, for Registration of Producers, Importers & Brand-Owners, under the Plastic Waste Management Rules 2016 (as amended from time to time), dated March 2021, issued by the Central Pollution Control Board as according to them, the impugned SOP and the notice for registration are impractical as there are various obligations imposed on the Petitioners. The counsel for the petitioners submitted that a Draft Guidelines Document was also put up in 2020 by the Ministry of Environment, Union of India, wherein various industries have given their representations including the Petitioners. Since the final platform and the modalities for implementation of the said Rules have not yet been finalized, the issuance of the SOP and bringing the same into effect is not justified. The counsel appearing for the counsel for defendants submitted that,  the CPCB is merely a regulatory body. Under Rule 9(2) of the Plastic Waste Management Rules 2016, the responsibility is of the producers and they are under an obligation to file their Form-1’s for registration as producer or as brand owners. The court made reference to the Plastic Waste Management Rules that were notified, by the Government who had constituted a committee in October 2017, to evaluate the implementation of the said Rules. The government had notified a clarification in regards to the same which had stated as under, “Since the committee constituted by the Ministry has yet to finalize its report and submit to the Ministry, SPCBs/PCCs are advised not to initiate further action against ‘producers’ pursuant to the notice issued by them until further orders of the Ministry. This issue with the approval of the Competent Authority.” On inspection of the draft guidelines notified by the Union of India in 2020, the court made the following observation, “The Draft Guidelines contemplate the creation of a national platform for registration of the producers, importers and brand owners, as also other stakeholders. It also contemplates the creation of a uniform EPR framework for the entire country which ought to be brand and geography neutral. The Draft Guidelines also provide for a graded approach to be taken in respect of the plastic waste management.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 12th May 2021 W.P.(C) 5191 2021 & CM APPL. 15949 2021 CEMENT MANUFACTURERS ASSOCIATION ORS. Through: Dr. Abhishek Manu Singhvi & Petitioners Mr. Pinaki Misra Sr.Advocates with Ms. Vanita Bhargava Advocate. UNION OF INDIA THROUGH: SECRETARY MINISTRY OF ENVIRONMENT FORESTS CLIMATE CHANGE ANR. Respondents Through: Ms. Nidhi Raman CGSC with Ms. Nidhi Mohan Parashar GP Mr. Zubin Sengh and Mr. Vikrant Kumar Advocate for Respondent No.1 UOI. Mr. Balendu Shekhar Advocate for Respondent no.2 CPCB with Ms. Divya Sinha Scientist from CPCB JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.This hearing has been done through video conferencing. The Petitioners have filed the present petition challenging the impugned Standard Operating Procedure hereinafter “SOP”) Registration of Producers Importers & Brand Owners under the Plastic Waste Management Rules 2016 dated March 2021 issued by the Central Pollution Control Board hereinafter ‘CPCB’). The notice for registration under the SOP issued on 6th April 2021 by the CPCB is also under challenge. W.P.(C) 5191 2021 The case of the Petitioners is that it is an association of several cement manufacturers who together have a market share of more than 87% in India. According to them the impugned SOP and the notice for registration dated 6th April 2021 are impractical inasmuch as there are various obligations imposed on the Petitioners. Vide order dated 6th May 2021 this court had issued notice in the matter and directed the ld. Counsel for the Union of India to place their stand in the matter on record. The counter affidavit has been received and is on record. Rejoinder to the same has also been filed by the Petitioners which is stated to be under objections however the same has been emailed to the Court Master. The Registry to bring the same on record. Today Dr. Abhishek Singhvi along with Mr. Pinaki Misra learned Senior Counsels submit that under the Plastic Waste Management Rules 2016 an Action plan was issued in 2019. However thereafter for the purpose of implementing the said Rules by prescribing the EPR i.e. Extended Producers Responsibility a Draft Guidelines Document was also put up in 2020 by the Ministry of Environment Union of India. They submit that various industries have given their representations and comments on the same including the Petitioners. The said Draft is currently under the consideration of the Union of India. Though it there was an Action plan of 2019 under the Plastic Waste Management Rules 2016 since the final platform and the modalities for implementation of the said Rules have not yet been finalised the issuance of the SOP and the action of the Respondents of bringing the same into effect from 15th May 2021 is not justified and is onerous on the W.P.(C) 5191 2021 Petitioners. Ld. Senior Counsels submit that there is a huge difference between the Draft Action Plan of 2019 and the present notified SOP and hence bringing the same into effect puts an enormous responsibility upon the Petitioner as there is a lack of clarity in the SOP itself. On the other hand on behalf of the CPCB Mr. Balendu Shekhar ld. counsel submits that the CPCB is merely a regulatory body. Under Rule 9(2) of the Plastic Waste Management Rules 2016 the responsibility is of the producers and they are under an obligation to file their Form 1’s for registration as producer or as brand owners. He further submits that as a part of the Form 1 an action plan for collection of the plastic waste has to be submitted by the Petitioners and other industries and the SOP does not notify anything new. He submits that since 2016 when the Plastic Waste Management Rules were framed for one reason or the other the Plastic Waste Management Schemes are continuously being postponed by the industry and proceedings are also pending before the National Green Tribunal in this regard. In order to expedite and give effect to the Rules the CPCB exercising its powers under the Act has notified the present SOP. On behalf of the Union of India Ms. Nidhi Raman ld. counsel submits that the clarification which was issued by the Ministry of Environment dated 17th January 2018 was merely directing that the regulatory body CPCB would not take any action till further orders of the Ministry of Environment. However thereafter a Committee was constituted which had submitted a report and had given its recommendations. 10. She submits that pursuant to the said report the Draft Guidelines of 2020 had been put up. Insofar as the Draft Guidelines are concerned the W.P.(C) 5191 2021 Ministry of Environment had a meeting on 24th March 2021 with various stakeholders including the Petitioner and the Ministry would require two more months to finalise the same. 11. Heard ld. senior counsels and for ld. Counsels appearing for the parties concerned and perused the record. 12. There is no doubt that the Plastic Waste Management Rules need to be given effect to in order to ensure that the “Polluter Pays” Principle is fully implemented and the industries do take care of the pollution that is being created by their actions and their responsibilities qua the same are also duly prescribed and managed. 13. However there ought to be clarity in the manner in which the implementation of the Plastic Waste Management is to take place. The chronology of events in this case clearly shows that in 2016 i.e. when the Plastic Waste Management Rules were notified the Government had constituted a committee in October 2017 to evaluate the implementation of the said Rules. It was in the context of the said committee being constituted that the clarification dated 17th January 2018 was issued. The same reads as “OFFICE MEMORANDUM Sub: Notices being issued by State Pollution Producer Importer Brand owners under Extended Producers Responsibility of the Plastic Waste Management Rules 2016. The Ministry of Environment Forest and Climate Change has Notified Plastic Waste W.P.(C) 5191 2021 Management Rules 2016 vide notification dated 18th March 2016. 2. Ministry has received a number of suggestions comments regarding the Rules and also requests for clarifying a number of issues related to the Rules. The Ministry has constituted a committee to deliberate on the issues raised by the plastic waste Management Rules 2016 and solid Waste Management Rules 2016. 3. It has come to the notice of the Ministry that several State Pollution Control Boards Pollution Control Committee have issued notices to the “Producers” for not submitting modalities for waste collection system based on EPR Action Plan for setting up plastic waste management system obtaining authorization registration etc. Since the committee constituted by the Ministry has yet to finalize its report and submit to the Ministry SPCBs PCCs are advised not to pursuant to the notice issued by them until further orders of the Ministry. Competent Authority” further action against the approval of issue with Thereafter as per the Union of India’s submission the Committee had submitted its report in 2018 pursuant to which the PWA Amendment of 2018 was notified. The Draft Guidelines have now been issued in 2020. It is not in dispute that comments have been received on the said Draft from the industry and various stakeholders. 14. The Draft Guidelines contemplate the creation of a national platform for registration of the producers importers and brand owners as also other W.P.(C) 5191 2021 stakeholders. It also contemplates creation of a uniform EPR framework for the entire country which ought to be brand and geography neutral. The Draft Guidelines also provide for a graded approach to be taken in respect of the plastic waste management. 15. Since the Union of India’s stand today clearly is that the Draft Guidelines which are published are still to be notified by the Ministry of Environment and stakeholders consultation is going on the following directions are issued: i) Insofar as the Draft Guidelines are concerned the Ministry of Environment shall after interacting with all the stakeholders within a period of two months i.e. by 31st July 2021 notify the Plastic Waste Management Amendment Rules 2021. The said Rules would take into consideration the suggestions made by the various stakeholders and shall also establish a framework for Plastic Waste Management ii) Insofar as the Petitioner’s members are concerned the Action plan in terms of Form 1 for collecting and for the disposal of plastic waste etc. shall be submitted in terms of the Rules which are currently existing and in compliance with the Action plan of 2019. iii) To the extent that there is any inconsistency between the Action plan of 2019 and the present SOP all members of the Petitioner association would make an endeavour to submit their plans to the best extent possible. However until and unless the final Waste Management Rules 2021 are notified by the Ministry of Environment no coercive steps shall be taken against the Petitioner and their members for violation of the SOP under challenge. W.P.(C) 5191 2021 16. At this stage it is submitted by Mr. Balendu Shekhar ld. Counsel for CPCB duly instructed by Ms. Divya Sinha from the CPCB that there are only 4 cement industries that have submitted their action plan as of today. Ld. counsel for the Petitioner disputes the same and submits that 16 cement manufacturers have submitted their Action plans. 17. Considering the same the Petitioner association as also its members shall submit their respective Action plans on or before 1st July 2021 under the existing regime sans the SOP under challenge. If any manufacturers have already submitted their Action plan the same shall be processed for registration under the existing regime without insisting upon the additional conditions as imposed in the SOP. 18. The submission of an action plan by the Petitioners members would be without prejudice to their rights and contentions in the present petition. 19. A status report shall now be filed by 10th August 2021 by the Petitioners its members and the Ministry of Environment showing the progress in terms of the directions given above. Responses thereto shall be filed at least two weeks before the next date. 20. List on 24th August 2021. The digitally signed copy of this order duly uploaded on the official website of the Delhi High Court www.delhihighcourt.nic.in shall be treated as the certified copy of the order for the purpose of ensuring compliance. No physical copy of orders shall be insisted by any authority entity or litigant. PRATHIBA M. SINGH MAY 12 2021 W.P.(C) 5191 2021

Monetary relief u/s 12 of the DV Act shall be in consistence with the standard of living to which the aggrieved person is accustomed: High Court of Delhi

The monetary relief granted under Section 12 of the Protection of Women from Domestic Violence Act, 2005 shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. There is no straitjacket formula to determine the quantum of maintenance, it could be presumed that an able-bodied husband is capable of earning sufficient money to maintain his wife and children, and whether the wife was educated, earning money and could support herself is no answer to a claim of maintenance and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE SUBRAMONIUM PRASAD in the case of SWANEET KUKREJA vs. JASPREET SINGH [CRL.REV.P. 194/2021] on 28.02.2022. The facts of the case are that marriage between Jaspreet Singh (Husband) and Swaneet Kukreja (Wife) was solemnized as per Sikh rites and customs, and a girl child was born to them. Due to differences that cropped up between the husband and wife, the wife has been residing separately from the husband since along with their minor child. An application u/s 12 of the DV Act was filed by the wife against the husband. An application seeking interim maintenance had been also been filed by the wife. Aggrieved by the Order, the husband and wife have approached this Court by way of cross-appeals seeking revision of the impugned Order. The plaintiff’s Counsel submitted that that till date he has paid about Rs. 27 lakhs by way of interim maintenance to the wife and his daughter, despite not having access to the education of the daughter. It was further stated that Ld. Appellate Court has failed to appreciate the material on record and has arrived at an enlarged figure of income of the husband only on the basis of the wife’s pleadings. The respondent’s Counsel submitted that the impugned Order is bad in law as it fails to take into account the true earning of the husband and has only calculated the interim maintenance based on the lower level of the income in the ITR documents of the husband. It was further submitted that the assessment is significantly on the lower side and does not consider the fact that, for the year 2020-21, the minimum disposable income of the husband was Rs. 41,38,894/- per annum, with the husband receiving Rs. 3,44,907/- per month in hand. The Court found no merit in the submissions of either the wife or the husband challenging the said Order and, therefore, did not deem it fit to interfere in the impugned Order. The Court observed, “the monetary relief granted under Section 12 of the DV Act shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. There is no straitjacket formula to determine the quantum of maintenance, it could be presumed that an able-bodied husband is capable of earning sufficient money to maintain his wife and children, and whether the wife was educated, earning money and could support herself is no answer to a claim of maintenance.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 28th FEBRUARY 2022 IN THE MATTER OF: CRL.REV.P. 162 2021 & CRL.M.As. 5576 2021 8691 2021 JASPREET SINGH ..... Petitioner Through Mr. Inder Bir Singh Advocate SWANEET KUKREJA ..... Respondent Through Mr. Sudarshan Rajan Mr. Rohit Bhardwaj Mr. Hitain Bajaj Mr. Ramesh Rawat and Mr. Mahesh Kumar Advocates. CRL.REV.P. 194 2021 SWANEET KUKREJA ..... Petitioner Through Mr. Sudarshan Rajan Mr. Rohit Bhardwaj Mr. Hitain Bajaj Mr. Ramesh Rawat and Mr. Mahesh Kumar Advocates. Through Mr. Inder Bir Singh Advocate ..... Respondent JASPREET SINGH SUBRAMONIUM PRASAD J. HON BLE MR. JUSTICE SUBRAMONIUM PRASAD CRL.REV.P.162 2021 has been filed by the husband challenging the Order dated 06.03.2021 passed by the learned Additional Sessions Judge 5 South East District Saket Courts New Delhi wherein interim maintenance of Rs. 1 25 000 was awarded to the wife and minor child from the date of filing of the petition i.e. September 2016. CRL.REV.P.194 2021 has been filed by the wife challenging Order dated 06.03.2021 passed by the learned Additional Sessions Judge 5 South East District Saket Courts New Delhi seeking an enhancement of the interim maintenance that was awarded. The facts in brief leading up to the filing of both the petitions are as It is stated that marriage between Jaspreet Singh and Swaneet Kukreja was solemnized on 12.12.2010 as per Sikh rites and customs and on 17.02.2014 a girl child was born to them. Due to differences that cropped up between the husband and wife the wife has been residing separately from the husband since July 2016 along with their minor child. b) On 20.09.2016 an application under Section 12 of the Protection of Women from Domestic Violence Act 2005 hereinafter “DV Act”) was filed by the wife against the husband. An application seeking interim maintenance had been also been filed by the wife. Vide order dated 21.02.2018 the Ld. M.M. granted interim maintenance of Rs. 45 000 per month in addition to education expenses of the minor child. c) Both the parties filed cross appeals against this Order dated 21.02.2018 before the Ld. ASJ. Vide impugned Order dated 06.03.2021 the Ld. ASJ allowed the appeal of the wife and enhanced the interim maintenance from Rs. 45 000 per month to a total of Rs. 1 25 000 per month Aggrieved by the Order dated 06.03.2021 the husband and wife have approached this Court by way of cross appeals seeking revision of the impugned Order. 4. Mr. Inder Bir Singh learned Counsel for the husband at the outset submits that that till date he has paid about Rs. 27 lakhs by way of interim maintenance to the wife and his daughter despite not having access to the education of the daughter. He states that the fresh income affidavits that had been filed by the husband were not taken into consideration by the Ld. Appellate Court while passing the impugned Order dated 06.03.2021. Mr. Singh further submits that the said Order is bad in law as well as facts 5. Mr. Singh submits that the enhancement of interim maintenance by the Ld. Appellate Court has been done solely on the basis of the husband’s “capacity to earn” and not his actual earning. He submits that the Ld. Appellate Court has failed to take into account the fact that the husband had lost his job during the COVID 19 pandemic. Furthermore not only was the impugned Order erroneous on facts but as per the learned Counsel it was also erroneous on law because it disregarded the criteria for deciding the quantum of interim maintenance that had been laid down by the Supreme Court in Rajnesh v. Neha 2 SCC 324. The learned Counsel for the husband argues that the wife has adopted various delaying tactics before the Ld. Appellate Court and has resorted to filing allegedly false complaints against the husband and the Ld. Appellate Court has failed to record the same in its impugned Order. Mr. Singh states that the interim maintenance amount of Rs. 1 25 000 per month is an oppressive amount especially in view of the fact that the husband has been CRL.REV.P.162 2021 & CRL.REV.P. 194 2021 unemployed since August 2020 and has been unable to secure a job. He states that the impugned Order has only been rendered so as to cater to the timeline for disposal that had been set by this Court and is biased against the husband. He further submits that Ld. Appellate Court has failed to appreciate the material on record and has arrived at an enlarged figure of income of the husband only on the basis of the wife’s pleadings. Per contra Mr. Sudarshan Rajan learned Counsel appearing for the wife submits that the impugned Order dated 06.03.2021 is bad in law as well as facts as it fails to take into account the true earning of the husband and has only calculated the interim maintenance of Rs. 1 25 000 based on the lower level of the income in the ITR documents of the husband. He submits that the assessment is significantly on the lower side and does not consider the fact that for the year 2020 21 the minimum disposable income of the husband was Rs. 41 38 894 per annum with the husband receiving Rs. 3 44 907 per month in hand. He states that the ITR of the husband for the assessment years 2019 2020 in fact shows that the husband had an income of over Rs. 50 lakhs in the said year. 8. Mr. Rajan argues that the calculation for interim maintenance must take into account the prospective increase of the husband’s income as well the yearly inflation. He submits that the impugned Order does not reflect the yearly increase of 10% and thus renders the wife and minor child with a fixed sum which may not be sufficient considering the future costs of living. Furthermore he informs this Court that the husband does not have any other liabilities or dependents and therefore he has the means to sustain the wife and minor child. He states that the husband is a man of means and lives a lavish lifestyle and that the income affidavits that have been filed by the CRL.REV.P.162 2021 & CRL.REV.P. 194 2021 husband are falsified as they do not reflect the same. Mr. Rajan submits that the Ld. Appellate Court has erred in quantifying the husband’s salary at Rs. 2.38 lakhs and has also not correctly taken into consideration the criteria that has been laid down by the Supreme Court in Rajnesh v. Neha for calculating the quantum of interim maintenance. In view of this the learned Counsel for the wife prays for an enhancement of the interim maintenance that has been awarded vide impugned Order dated 06.03.2021. 9. Mr. Rajan further brings to the attention of this Court that this Court had previously directed the husband to make payment of a certain amount of interim maintenance to the wife vide orders dated 07.04.2021 and 12.10.2021. He submits that however the orders have not been complied with and the husband has failed to pay the wife. He states that accordingly a contempt application has been moved by the wife against the husband. 10. Heard Mr. Inder Bir Singh learned Counsel for the husband Mr. Sudarshan Rajan learned Counsel for the wife and perused the material on record. 11. At the outset it is pertinent to note that on 07.04.2021 this Court had directed the husband to pay a sum of Rs.10 00 000 to the wife within a period of two weeks from the date of the order. The husband was further directed to pay a sum of Rs.45 000 plus educational expenses to the wife during the pendency of the revision petition. In order dated 12.10.2021 this Court had noted that order dated 07.04.2021 had not been complied with to the extent that out of Rs.10 00 000 only a sum of Rs.2 75 000 had been paid. This Court therefore directed the husband to pay a sum of Rs.11 00 000 to the wife on or before 01.12.2021. Material on record also shows that the since the husband was not paying the amount an order of CRL.REV.P.162 2021 & CRL.REV.P. 194 2021 been paid. attachment had been passed. Consequently an application had been filed by the husband to vacate the said order of attachment so that the order of this Court could be complied with. This Court notes that this amount has yet not 12. Section 20 of the DV Act stipulates that a Magistrate hearing an application under Section 12 of the DV Act may direct the Respondent to pay certain monetary relief to the aggrieved person. It further delineates the contours of the monetary relief that is to be paid to the aggrieved person including the criteria governing it as well as the manner in which the payment is to be made. For ease of comprehension Section 20 of the DV Act has been reproduced as under: 20. Monetary reliefs: While disposing of an application under sub sectionof section 12 the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to loss caused due the loss of earnings the medical expenses a) b) c) destruction damage or removal of any property from the control of the aggrieved person and d) the maintenance for the aggrieved person as well as her children if any CRL.REV.P.162 2021 & CRL.REV.P. 194 2021 including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure 1973or any other law for the time being in The monetary relief granted under this section shall be adequate fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance as the nature and circumstances of the case may require. xxx............................"(emphasis supplied) 13. Flowing from the criteria laid down in Section 20 of the DV Act the Supreme Court had observed that while there was no straitjacket formula to determine the quantum of maintenance it could be presumed that an able bodied husband was capable of earning sufficient money to maintain his wife and children and whether the wife was educated earning money and could support herself was no answer to a claim of maintenance. A careful and just balance is to be drawn between all the relevant factors and the test for determination of maintenance in matrimonial disputes depends on the financial status of the husband and the standard of living that the applicant was accustomed to in her matrimonial9 SCC 460. The relevant portion of the said judgement has been reproduced as under: “12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well founded error and it may not be appropriate for the court to scrutinise the orders which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous there is no compliance with the provisions of law the finding recorded is based on no evidence material evidence is ignored or judicial CRL.REV.P.162 2021 & CRL.REV.P. 194 2021 discretion is exercised arbitrarily or perversely. These are not exhaustive classes but are merely indicative. Each case would have to be determined on its own 20. The jurisdiction of the court under Section 397 can be exercised so as to examine the correctness legality or propriety of an order passed by the trial court or the inferior court as the case may be. Though the section does not specifically use the expression “prevent abuse of process of any court or otherwise to secure the ends of justice” the jurisdiction under Section 397 is a very limited one. The legality propriety or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error non compliance with the provisions of law the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand Section 482 is based upon the maxim quando lex aliquid alicui concedit concedere videtur id sine quo res ipsa esse non potest i.e. when the law gives anything to anyone it also gives all those things without which the thing itself would be unavoidable. The section confers very wide power on the Court to do justice and to ensure that the process of the court is not permitted to be abused.” 16. A perusal of the impugned Order dated 06.03.2021 passed by the Ld. Appellate Court reveals that the Ld. ASJ has patiently weighed the settled law pertaining to the criteria that must be adopted while calculating interim maintenance under the DV Act. Furthermore the Ld. ASJ has correctly noted that even if it is proved that the wife is capable of earning and is a CRL.REV.P.162 2021 & CRL.REV.P. 194 2021 working professional it is still no ground to deny her interim maintenance. The impugned Order also appreciates the income tax returns of the husband for the assessment years 2016 17 2017 18 2018 19 and 2019 20 to arrive at the conclusion that the average monthly income of the husband over the last four years is Rs. 2 38 383 and thus notes that the same is sufficient to enhance the interim maintenance being paid to the wife and minor child to Rs. 1 25 000 . 17. This Court also observes that the Ld. Appellate Court has carefully arrived at the aforesaid conclusion pertaining to the average monthly income of the husband after carefully considering both the Order of the Ld. Trial Court dated 21.02.2018 as well as the material placed before it. The Ld. Appellate Court has further applied the principle of apportionment and observed that the interim maintenance granted to the wife and minor child must be commensurate with the income of the husband. Therefore the direction of Rs. 1 25 000 being paid per month as interim maintenance with the wife and minor child receiving Rs. 62 500 each is an appropriate amount considering the income of the husband. 18. This Court does not deem it appropriate to delve into the contentions raised by both the parties regarding the date when the husband lost his job for the reason that it will prejudice the rights of both the parties at the time of determining the amount for final maintenance. This Court is of the opinion that the observations of the Ld. Appellate Court do not betray any legal or factual infirmity. It complies with the law of the land and has taken into account the material on record before arriving at its decision to enhance the interim maintenance to wife and minor child to Rs. 1 25 000 per month. This Court finds no merit in the submissions of either the wife or the CRL.REV.P.162 2021 & CRL.REV.P. 194 2021 husband challenging the said Order and therefore does not deem it fit to interfere in the impugned Order dated 06.03.2021. 19. With the above observations the petitions are dismissed along with pending application(s) if any. FEBRUARY 28 2022 SUBRAMONIUM PRASAD J. CRL.REV.P.162 2021 & CRL.REV.P. 194 2021

Bail cannot be refused as an indirect method of punishment before conviction: Orissa High Court

Bail, as it has been held in a catena of decisions, is not to be withheld as a punishment. Bail cannot be refused as an indirect method of punishing the accused person before he is convicted. These were upheld by the High Court of Orissa through the learned bench of Justice S.K. Panigrahi in the case of Smruti Ranjan Mohanty v. State of Odisha (BLAPL No. 776 of 2021) The crux of the case is both the applicants and the other suspects, allegedly involved in the formation and operation of 12 fake / fraudulent companies on behalf of the people who are not in contact with them and abusing their identity proofs. The same is done without their knowledge, in order to obtain and use a counterfeit tax credit amounting to Rs. 20.45 crores in the capacity of counterfeit invoices without any real receipt or actual purchase of goods. Therefore, both defendants alleged that they were part of a tax evasion plan rated at Rs. 42 crores, therefore, are liable for the same payment under Section 132 of the Odisha Property Tax and Services Act, 2017 (“the Act”). Proponents of her case have been working to make the actual transcript of this statement available online. It was argued that Petitioner 1 was just an employee who followed the instructions and instructions of his superiors. Similarly Petitioner 2 was not involved in the case as he is the sole owner of the shop and has nothing to do with the allegations of fraud and has been caught in the matter simply because he is the brother of Applicant 1. It was also alleged that the allegations of fraud were made by someone else and that the fraudsters present were just pawns, they had been made  scrapegoats even though they were not involved in these fraudulent activities. It is further alleged that the applicants co-operated with the authorities and often came from the OGST offices to assist the authorities with the investigation, but despite their actual actions, they were remanded in custody at. 21.12.2020 and he remained in custody since then. The learned bench of Justice S.K. Panigrahi while relied upon the judgments of the Apex Court in Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281; Moti Ram v. State of M.P., (1978) 4 SCC 47, to discuss the importance bail and grave consequences of pretrial detentions held that refusal of bail cannot be used as a method for punishing the accused persons before they are actually convicted. It noted that no doubt, the offence alleged against the Petitioners is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, however, should not deter the Court from enlarging them on bail when there is no serious contention of the Respondent that the Petitioners, if released on bail, would interfere with the trial or tamper with evidence. And stated “As a side note it observed that more and more such cases are brought to the fore where the mere pawns who have been used as a part of larger conspiracy of tax fraud have been brought under the dragnet by the prosecution. It is perhaps time that the prosecution will do well to follow the trail upstream and bring the “upstream” parties who are the ultimate beneficiaries who are the gainers in these evil machinations.”

IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.7721 Smruti Ranjan Mohanty Petitioner versus State of Odisha Opp. Party Advocates appeared in both the cases through Hybrid Mode: versus For Petitioner Ajaya Kumar Moharana Adv. For Opp. Party Mr. Sunil Mishra ASC CT & GST) And BLAPL No.66821 Petitioner Rajeev Mishra State of Odisha Advocates appeared in both the cases through Hybrid Mode: For Petitioner Mr. Gouri Mohan Rath Opp. Party versus versus For Opp. Party Mr. Sunil Mishra ASC CT & GST) CORAM: JUSTICE S.K. PANIGRAHI DATE OF HEARING: 24.12.2021 DATE OF JUDGMENT: 18.02.2022 S.K. Panigrahi J. 1. The present Petitioners who are in custody since 21.12.2020 have filed the instant bail application under Section 439 of Cr.P.C. corresponding to 2(C)CC Case No.020 pending in the court BLAPL Nos.776 & 66821 of the Learned J.M.F.C(R) Cuttack for commission of offences under Sections 132(1) 132(1)(b) and 132(1)(i) of the OGST Act 2017. Prior to the instant application the Petitioners had approached the learned District and Sessions Judge Cuttack vide Bail Application No. 11023 of 2020 which was rejected on 25.01.2021. 2. Shorn of unnecessary details the prosecution’s case is that both the Petitioners alongwith other accused were involved in the creation and operation of 12 fictious bogus firms in the name of unconnected persons by misutilizing their identity proof. The same was done behind their back in order to avail and utilize bogus input tax credit of an amount of Rs. 20.45 crores on the strength of fraudulent purchase invoices without any physical receipt or actual purchase of goods. As such both of them are alleged to be part of a collusion to evade taxes to the tune of approximately Rs. 42.00 crores and therefore are liable for the payment of the same under Section 132 of the OGST Act 2017. 3. Per contra the Ld. Counsel for the Petitioners earnestly submitted that the allegations made against the Petitioners in the prosecution report are bald allegations which are completely false and baseless. It was contended that the Petitioner No. 1 was a mere BLAPL Nos.776 & 66821 employee who has dutifully followed the directions and orders of his superiors. Similarly Petitioner No. 2 was in no way connected to the case as he is a mere paan shop owner and has no nexus to the alleged fraud in any way whatsoever and has been embroiled in the matter merely because he is the brother of Petitioner No. 1. It has bene submitted that the alleged fraud has been perpetrated by someone else and the present Petitioners who are mere pawns have unduly been made scapegoats despite having no involvement in the alleged fraudulent activities. It is further submitted that the Petitioners have been duly cooperating with the authorities and have on multiple occasions appeared in the OGST offices to assist the authorities with the investigation but despite their bonafide actions they were forwarded into custody on 21.12.2020 and have remained in custody ever since. The Petitioners have wives young children and a widowed mother who are completely dependent on the Petitioners and are on the brink of starvation due to the absence of the only two earning members in the family especially given the pandemic situation. The Ld. Counsel for the Petitioners finally urged that given that there is no risk of the Petitioners fleeing given that they reside locally and that they shall not tamper with BLAPL Nos.776 & 66821 evidence they should be released on bail as even trial has not commenced and they have been in custody for over a year. 4. Heard learned counsel for both parties and perused the records. The core concept and philosophy of bail was discussed by the Hon’ble Supreme Court in Vaman Narain Ghiya v. State of Rajasthan1 wherein it was observed that: “6. ‘Bail’ remains an undefined term in CrPC. Nowhere else has the term been statutorily defined. Conceptually it continues to be understood as a right for assertion of freedom against the State imposing restraints. Since the UN Declaration of Human Rights of 1948 to which India is a signatory the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression ‘bail’ denotes a security for appearance of a prisoner for his release. Etymologically the word is derived from an old French verb ‘bailer’ which means to ‘give’ or ‘to deliver’ although another view is that its derivation is from the Latin term ‘baiulare’ meaning ‘to bear a burden’. Bail is a conditional liberty. Stroud s Judicial Dictionaryspells out certain other details. It states: ‘… when a man is taken or arrested for felony suspicion of felony indicted of felony or any such case so that he is restrained of his liberty. And being by law bailable offereth surety to those which have authority to bail him which sureties are bound for him to the King s use in a certain sums of money or body for body that he shall appear before the justices of goal delivery at the next sessions etc. Then upon the bonds of these sureties as is aforesaid he is bailed—that is to say set at liberty until the day appointed for his appearance.’ 1(2009) 2 SCC 281 BLAPL Nos.776 & 66821 Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners and at the same time involves participation of the community in administration of justice. 7. Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands namely on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime and on the other the fundamental canon of the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to wholesome restraint the more restraint on others to keep off from us the more liberty we have. 4 SCC 47 BLAPL Nos.776 & 66821 “14. The consequences of pretrial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important the burden of his detention frequently falls heavily on the innocent members of his family.” Furthermore the Hon’ble Supreme Court in Sanjay Chandra v. CBI3 dealing with a case involving an economic offence of formidable magnitude touching upon the issue of grant of bail had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is jurisprudentially neither punitive nor preventive. Although the Hon’ble Supreme Court sounded a caveat that any imprisonment before conviction does have a substantial punitive content. It was elucidated therein that the seriousness of the charge is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or 3(2012) 1 SCC 40 BLAPL Nos.776 & 66821 6. It would also be apposite at this juncture to reproduce the denial of such privilege is regulated to a large extent by the facts and circumstances of each particular case. It was also held that detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was Hon’ble Delhi High Court’s succinct elucidation of the legal position in matters pertaining to bail as laid down in Anil Mahajan v. Commissioner of Customs4 and H.B. Chaturvedi v. CBI5 whereinthe Hon’ble High Court after considering the judgments inter alia in Gurcharan Singh v. State and Gudikanti Narasimhulu v. Public Prosecutor7 observed as follows: “14. The legal position emerging from the above discussion can be summarised as follows: Personal liberty is too precious a value of our Constitutional System recognised under Article 21 that the crucial power to negate it is a great trust exercisable not casually but judicially with lively concern for the cost to the individual and the community. Deprivation of personal freedom must be founded on the most serious considerations relevant to the welfare objectives of society specified in the 484DLT 854 5 CRL.M459 2010 6(1978) 1 SCC 118 7(1978) 1 SCC 240 BLAPL Nos.776 & 66821 As a presumably innocent person the accused person is entitled to freedom and every opportunity to look after his own case and to establish his innocence. A man on bail has a better chance to prepare and present his case than one remanded in custody. An accused person who enjoys freedom is in a much better position to look after his case and properly defend himself than if he were in custody. Hence grant of bail is the rule and refusal is the The object of bail is to secure the attendance of the accused at the trial. The principal rule to guide release on bail should be to secure the presence of the applicant to take judgment and serve sentence in the Court punishing him with the event of Bail is not to be withheld as a punishment. Even assuming that the accused is prima facie guilty of a grave offence bail cannot be refused in an indirect process of punishing the accused person before he is Judges have to consider applications for bail keeping passions and prejudices out of In which case bail should be granted and in which case it should be refused is a matter of discretion subject only to the restrictions contained in Section 437(1) of the Criminal Procedure Code. But the said discretion should be exercised judiciously. The powers of the Court of Session or the High Court to grant bail under Section 439(1) of Criminal Procedure Code are very wide and unrestricted. The restrictions mentioned in Section 437(1) do not apply to the special powers of the High Court or the Court of Session to grant bail under Section 439(1). Unlike under Section 437(1) there is no ban imposed under Section 439(1) against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. However while considering an application for bail under Section 439(1) the High Court or the Court of Sessions will have to exercise its judicial BLAPL Nos.776 & 66821 discretion also bearing in mind among other things the rationale behind the ban imposed under Section 437(1) against granting bail to persons accused of offences punishable with death or imprisonment for There is no hard and fast rule and no inflexible principle governing the exercise of such discretion by the Courts. There cannot be an inexorable formula in facts and the matter of granting bail. The circumstances of each case will govern the exercise of judicial discretion in granting or refusing bail. The answer to the question whether to grant bail or not depends upon a variety of circumstances cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail. While exercising the discretion to grant or refuse bail the Court will have to take into account various considerations like the nature and seriousness of the offence the circumstances in which the offence was committed the character of the evidence the circumstances which are peculiar to the accused a reasonable apprehension of witnesses being influenced and evidence being tampered with the larger interest of the public or the State the position and status of the accused with reference to the victim and the witness the likelihood of the accused fleeing from justice the likelihood of the accused repeating the offence the history of the case as well as the stage of investigation etc. In view of so many variable factors the considerations which should weigh with the Court cannot be exhaustively set out. However the two paramount considerations are:the likelihood of the accused fleeing from justice and ii) the likelihood of the accused tampering with prosecution evidence. These two considerations in fact relate to ensuring a fair trial of the case in a Court of justice and hence it is essential that due and proper weight should be bestowed on these two BLAPL Nos.776 & 66821 necessary. Unless there are sufficient reasons While exercising the power under Section 437 of the Criminal Procedure Code in cases involving non bailable offences except cases relating to offences punishable with death or imprisonment for life judicial discretion would always be exercised by the Court in favor of granting bail subject to Sub section 3) of Section 437 with regard to imposition of conditions circumstances are brought to the notice of the Court which might defeat proper investigation and a fair trial the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. If investigation has not been completed and if the release of the accused on bail is likely to hamper the investigation bail can be refused in order to ensure a proper and fair investigation. to have a If reasonable apprehension that the accused will flee from justice or will tamper with prosecution evidence he can be refused bail in order to ensure a fair trial of the case. The Court may refuse bail if there are sufficient reasons to apprehend that the accused will repeat a serious offence if he is released on bail. For the purpose of granting or refusing bail there is no classification of the offences except the ban under Section 437(1) of the Criminal Procedure Code against grant of bail in the case of offences punishable with death or life imprisonment. Hence there is no statutory support or justification for classifying offences into different categories such as economic offences and for refusing bail on the ground that the offence involved belongs to a particular category. When the Court has been granted discretion in the matter of granting bail and when there is no statute prescribing a special treatment in the case of a particular offence the Court cannot classify the cases and say that in particular classes bail may be granted but not in others. Not only in the case of economic offences but also in the case of other offences the Court will have BLAPL Nos.776 & 66821 to consider the larger interest of the public or the State. Hence only the considerations which should normally weigh with the Court in the case of other non bailable offences should apply in the case of economic offences also. It cannot be said that bail should invariably be refused in cases involving serious economic offences. Law does not authorise or permit any discrimination between a foreign National and an Indian National in the matter of granting bail. What is permissible is that considering the facts and circumstances of each case the Court can impose different conditions which are necessary to ensure that the accused will be available for facing trial. It cannot be said that an accused will not be granted bail because he is a foreign national.” 7. This court has also had the prior occasion of dealing with a similar application for grant of bail in a case relating to prosecution under the provisions of the OGST Act 2017 the case of Pramod Kumar Sahoo v State of Odisha8 wherein this court had the occasion to elaborately deal with the view taken by various other High Courts in such matters. 8. Bail as it has been held in a catena of decisions is not to be withheld as a punishment. Bail cannot be refused as an indirect method of punishing the accused person before he is convicted. Furthermore it has to be borne in mind that there is as such no justification for classifying offences into different categories such as economic offences and for refusing bail on the ground that the 8BLAPL No. 41220 BLAPL Nos.776 & 66821 9. Having regard to the entire facts and circumstances of the case offence involved belongs to a particular category. It cannot therefore be said that bail should invariably be refused in cases involving serious economic offences. It is not in the interest of justice that the Petitioners should be in jail for an indefinite period. No doubt the offence alleged against the Petitioners is a serious one in terms of alleged huge loss to the State exchequer that by itself however should not deter this Court from enlarging the Petitioners on bail when there is no serious contention of the Respondent that the Petitioners if released on bail would interfere with the trial or tamper with evidence. especially the fact that both the bread earning sons of a family have been in custody for over a year now I do not find any justification for detaining the Petitioners in custody for any longer. As a side note it observed that more and more such cases are brought to the fore where the mere pawns who have been used as a part of larger conspiracy of tax fraud have been brought under the dragnet by the prosecution. It is perhaps time that the prosecution will do well to follow the trail upstream and bring the “upstream” parties who are the ultimate beneficiaries who are the gainers in these evil machinations. BLAPL Nos.776 & 66821 10. In view of the above discussion it is directed that the Petitioners in both the BLAPLs be released on bail by the court in seisin over the matter in the aforesaid case on such terms and conditions as deemed fit and proper by him her with the following conditions: The Petitioners shall co operate with the trial and shall not seek unnecessary adjournments on frivolous grounds to protract the trial The Petitioners shall not directly or indirectly allure or make any inducement threat or promise to the prosecution witnesses so as to dissuade them from disclosing truth before the Court In case of their involvement in any other criminal activities or breach of any other aforesaid conditions the bail granted in this case may also be cancelled. The Petitioners shall submit their passports if any before the learned trial court and shall not leave India without prior permission of this Court. Any involvement in similar offences of under the GST Act will entail cancellation of the bail. BLAPL Nos.776 & 66821 11. With the above directions the instant bail applications are allowed. However expression of any opinion hereinbefore may not be treated as a view on the merits of the case and that the assessment of the tax liability of the Petitioners shall be carried out strictly in accordance with the applicable provisions of applicable law. 12. The bail applications are accordingly disposed of along with any pending applicationsJudge Orissa High Court Cuttack Dated the 18th Feb. 2022 B. Jhankar BLAPL Nos.776 & 66821

Anticipatory bail granted to women alleged of obstructing a police officer: Patna High Court

In the present case, the Petitioner apprehends arrest under section 212/216A/120B/353/34 of the Indian Penal Code.  A single-judge bench comprising of Justice Ahsanuddin Amanullah adjudicating in the matter of Mangla Devi v. State of Bihar (CRIMINAL MISCELLANEOUS No.4371 of 2021) dealt with the issue of whether to grant anticipatory bail or not to the accused. The Petitioner is alleged that when police had gone to her to arrest her husband and his associates, she obstructed and had also torn the uniform of a constable. The Petitioner submitted that she is a lady and she has been falsely implicated in the present case. In the house of the Petitioner, it was alleged that a notorious criminal Vijay Rathor, and his associates had assembled. It is also submitted that the allegations are not believable that a lady would obstruct a police officer who is armed. The allegations of harboring the criminals are blatant and frivolous because she had no knowledge or role in regards to any activity of her husband. It was submitted that the present case has been filed separately as the case with regard to the arrest of others, including the petitioner’s husband, and recovery of firearms from them, is the subject matter of a separate case lodged by the police. Learned counsel submitted that the petitioner has no criminal antecedent. The counsel on behalf of the Respondent submitted is of obstructing the police in the raid and also of getting into a  scuffle with them and tearing the uniform of a constable.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.43721 Arising Out of PS. Case No. 59 Year 2020 Thana BAUSI District Araria Mangli Devi age 45 years W O Shivlal Rathor resident of Village Vinodpur P.S. Bausi District Araria ... Petitioner s The State Of Bihar Appearance : For the Petitioner s For the State Mr. Nafisuzzoha Advocate Mr. Satya Nand Shukla APP ... Opposite Party s CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 15 06 2021 The matter has been heard via video conferencing. 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioner yesterday which was allowed. 3. Heard Mr. Nafisuzzoha learned counsel for the petitioner and Mr. Satya Nand Shukla learned Additional Public Prosecutor for the 4. The petitioner apprehends arrest in connection with Bausi PS Case No. 59 of 2020 dated 06.06.2020 instituted under Sections 212 216A 120B 353 34 of the Indian Penal Patna High Court CR. MISC. No.43721 dt.15 06 2021 2 4 5. The allegation against the petitioner is that when the police had gone to her house to arrest her husband and his other associates she had obstructed and had also torn the uniform of a 6. Learned counsel for the petitioner submitted that she is a lady and has been falsely implicated. It was submitted that just because she is the wife of Shivlal Rathor in whose house it is alleged that a notorious criminal Vijay Rathor and his associates had assembled she has been made an accused. It was submitted that it is not believable that a lady would obstruct the police force which is armed. Further it was submitted that even though the allegation is that she was harboring the criminals in her house but she had no knowledge or role with regard to any activity of her husband and also that the allegation of having torn the uniform of a constable is a bald allegation. It was submitted that the present case has been filed separately as the case with regard to arrest of others including the petitioner’s husband and recovery of firearms from them is the subject matter of a separate case lodged by the police. Learned counsel submitted that the petitioner has no criminal antecedent. 7. Learned APP submitted that the allegation is of obstructing the police in the raid and also of getting into a Patna High Court CR. MISC. No.43721 dt.15 06 2021 3 4 scuffle with them and tearing the uniform of a constable. 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in the event of arrest or surrender before the Court below within six weeks from today the petitioner be released on bail upon furnishing bail bonds of Rs. 25 000 with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate Araria in Bausi PS Case No. 59 of 2020 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that one of the bailors shall be a close relative of the petitioner ii) that the petitioner and the bailors shall execute bond with regard to good behaviour of the petitioner that the petitioner shall also give an undertaking to the Court that she shall not indulge in any illegal criminal activity or act in violation of any law statutory provisions and that the petitioner shall cooperate with the Court and police prosecution. Any violation of the terms and conditions of the bonds or the undertaking or failure to cooperate shall lead to cancellation of her bail bonds. 9. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioner to Patna High Court CR. MISC. No.43721 dt.15 06 2021 4 4 the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the 10. The application stands disposed off aforementioned terms. Ahsanuddin Amanullah J) Anjani

It is not necessary for the appellant to adduce any direct or positive evidence to establish his defense: Gauhati High Court

It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lies upon the accused person is to prove his case by a preponderance of probability. The judgment was passed by the High Court of Gauhati in the case of Radharaman Bhowmik v. State of Assam [CRL.A(J)/5/2018] by Division Bench consisting of Hon’ble Justice Mir Alfaz Ali & Justice Manish Choudhury. The facts of the case are that the appellant married the victim and they were also blessed with two children, however, their conjugal life was not very happy and eventually on the date of occurrence, the appellant assaulted the victim being his wife demanding money whereby caused serious injury, to which the victim succumbed, FIR was lodged, on the basis of which police registered Case under Sections 498(A)/304(B), IPC and on completion of the investigation, submitted charge sheet against the appellant. Learned Amicus Curiae while assailing the judgment does not contest the finding of the learned trial Court holding that the injury leading to the death of the victim was caused by the present appellant. However, the contention of the learned Amicus Curiae is that there was no intention to cause death and, as such, the ingredients of the offence of murder as defined under Section 300, Cr PC was not present. Therefore, the learned trial Court ought not to have recorded conviction under Section 302, IPC. At best, according to the learned Amicus Curiae, it was a case of culpable homicide not amounting to murder punishable under Section 304 Part II, IPC. Counsel for defence is sought to be raised by the appellant to the effect that, the injury to the victim was caused accidentally and he did not have any intention to assault his wife, no evidence could be brought on record to substantiate the stand taken by the appellant.

Page No.# 1 5 HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) THE GAUHATI HIGH COURT Case No. : CRL.A(J) 5 2018 RADHARAMAN BHOWMIK S O. LT. ANIL CH. BHOWMIK R O. SHYAMAPRASAD ROAD P.S. KARIMGANJ DIST. KARIMGANJ ASSAM THE STATE OF ASSAM GHC GHY. Advocate for the Petitioner DR. B N GOGOI AMICUS CURIAE Advocate for the Respondent : PP ASSAM HONOURABLE MR. JUSTICE MIR ALFAZ ALI HONOURABLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT & ORDER Heard Dr. B.N. Gogoi learned Amicus Curiae and Mr. M. Phukan learned Additional Public Prosecutor Assam. This jail appeal is directed against the judgment and order dated 25.09.2017 passed Page No.# 2 5 by the learned Sessions Judge Karimganj in Sessions Case no. 20 2015 whereby the learned Sessions Judge convicted the appellant under Section 302 Indian Penal Code and sentenced to rigorous imprisonment for life and fine of Rs. 500 with default stipulation. The prosecution case as reflected in the FIR in brief was that the appellant married the victim and they were also blessed with two children however their conjugal life was not very happy and eventually on the date of occurrence the appellant assaulted the victim being his wife demanding money whereby caused serious injury to which the victim succumbed. Exhibit 1 FIR was lodged by Munna Das on the basis of which police registered Karimganj Police Station Case no. 604 2014 under Sections 498(A) 304(B) IPC and on completion of the investigation submitted charge sheet against the appellant. In course of trial learned Sessions Judge framed charge against the appellant under Section 302 IPC which was abjured by him. The prosecution examined 9witnesses to substantiate the charge framed against the accused. On conclusion of the prosecution evidence the appellant was examined under Section 313 CrPC wherein the appellant had taken a plea that when quarrel ensued between him and his wife on family issues one Joy Dhar came to interfere whereupon he got agitated and dealt a blow aiming at Joy Dhar. In the meantime the victim came between them and the blow given by the appellant landed on the head of the victim which caused the injury. Thus the plea of the appellant in the statement recorded under Section 313 CrPC was that he had no intention to cause any injury to his wifeand the injury to the victim was caused accidentally. Upon appreciation of the evidence and materials brought on record the learned Sessions Judge convicted the appellant and awarded sentence as indicated above. Learned Amicus Curiae while assailing the impugned judgment does not contest the finding of the learned trial Court holding that the injury leading to death of the victim was caused by the present appellant. However the contention of the learned Amicus Curiae is that there was no intention to cause death and as such the ingredients of the offence of murder as defined under Section 300 CrPC was not present. Therefore the learned trial Court ought not to have recorded conviction under Section 302 IPC. At best according to the learned Amicus Curiae it was a case of culpable homicide not amounting to murder punishable under Section 304 Part II IPC. Page No.# 3 5 On our assessment of the evidence we find that the learned Sessions Judge basically relied upon the oral testimony of P.W.4 and P.W.5 who are the children of the deceased besides the medical evidence as well as the statement of the accused appellant recorded under Section 313 CrPC. P.W.4 deposed that in the morning when she woke up she had noticed that her parents were quarrelling. The victim sent her to wash her face. Accordingly she came out and her mother started cleaning the utensils. At that point of time she heard the scream of her mother and immediately rushed to the place of occurrence and found her mother falling on the ground. She had also noticed her father running away from the place of occurrence throwing away the rod which was in his hand. Immediately she informed the P.W.1 her maternal uncle about the occurrence. The evidence of P.W.4 who is none but the daughter of the accused and also the victim remained unshaken. P.W.5 the son of the victim also stated in the same tune that he had noticed his parents quarrelling in the morning and when he went to wash his face he heard the scream of his mother and immediately came into the room and found the victim falling on the ground. He also stated to have seen the appellant hurriedly leaving the room by throwing the rod which was in his hand. P.W.8 the Doctor who conducted the autopsy found a single injury on the head which in the opinion of the Doctor was caused by a blunt object. As already indicated above the stand taken by the appellant in his statement recorded under Section 313 CrPC was that when there was quarrel between the husband and wife one Joy Dhar intervened whereupon he got angry and dealt a blow aiming at Joy Dhar with a rod which accidentally landed on the victim. It is the trite law that statement recorded under Section 313 CrPC though not evidence stricto sensu such statement can be used for or against the accused in view of sub Section of Section 313 CrPC. Therefore the evidence of P.W.4 and P.W.5 coupled with the own admission of the appellant in his statement recorded under Section 313 CrPC clearly established that the injury sustained by the victim Page No.# 4 5 was inflicted by the appellant. The medical evidence further reinforced the evidence of P.W.4 and P.W.5 with regard to the weapon used and that the injury was inflicted by none other than the appellant himself. Though a defence is sought to be raised by the appellant to the effect that the injury to the victim was caused accidentally and he did not have any intention to assault his wife no evidence could be brought on record to substantiate the stand taken by the appellant with regard to presence of Joy Dhar at the place of occurrence. We are aware of the legal proposition that it is not necessary for the appellant to adduce any direct or positive evidence to establish his defence. The same can also be proved by the evidence and material brought on record by the prosecution. But we find nothing in the record to substantiate the plea taken by the accused during examination under Section 313 CrPC with regard to the presence of Joy Dhar. Therefore in our considered view the evidence of P.W.4 and P.W.5 as well as the medical evidence coupled with the statement of the victim recorded under Section 313 CrPC leaves no room for doubt that the appellant inflicted the injury to the victim which caused her death. What is however evident from the records and the evidence of P.W.4 and P.W.5 is that there was a quarrel between the husband and wife. In the statement recorded under Section 313 CrPC also the appellant admitted that there was quarrel between him and the victim. The admission of the accused and the explanation put forward by him regarding the cause of quarrel ensued between them coupled with the testimony of the P.W.4 and P.W.5 demonstrate that the appellant inflicted the injury to his wife with the rod which was available in his house in course of quarrel at the heat of passion. Evidently the appellant did not give the second blow. The nature of weapon used single blow given and that there was quarrel which led to the assault speaks loud and clear that there was no intention on the part of the accused to cause death of the victim being his wife or to cause such injury as to likely to cause her death. Evidently the injury was inflicted in course of quarrel at the heat of passion. Therefore the present case in our considered view squarely comes within the sweep of Exception 4 to Section 300 IPC and as such the offence committed by the accused by inflicting the injury to his wife which caused her death comes only within the definition of culpable homicide not amounting to murder. When there was no intention to cause death or any intention to cause such injury which is likely to cause death the conviction under Section Page No.# 5 5 302 IPC recorded by the learned Sessions Judge cannot be sustained. Accordingly we set aside the conviction of the appellant recorded under Section 302 IPC. Instead we convict him under Section 304 Part II IPC. It reveals from the record that the appellant has been in jail for about 7years and as such we are of the view that the period which the accused had already undergone in custody would commensurate with the gravity of offence. Accordingly we modify the sentence of imprisonment and sentence the appellant to imprisonment for the period which he has already undergone during the investigation and trial. We also reduce the default sentence for non payment of fine to 15 days. Upon due payment of fine or after completing the default sentence the appellant shall be released if not required in any other case. The appeal stands partly allowed. Appreciating the assistance rendered by Dr. B.N. Gogoi learned Amicus Curiae we hereby provide that he will be entitled to Rs. 7 500 as professional fee which shall be paid to him by the Gauhati High Court Legal Services Committee upon production of a copy of this Send down the LCR. Comparing Assistant

Full Rent to be paid by tenants when a suit for lease termination is sub judice: High Court of Calcutta

When a case determining the legality of the termination of a lease agreement is in the judicial machinery, the tenants, while occupying the same premises cannot escape from paying the required rent to the landlord. This was decided in the case of Green Band Apartments Private Limited & Ors.  vs. The Mint Matrix & Ors. [C.O. No. 1460 of 2020] in the High Court at Calcutta by Justice Shampa Sarkar. The facts of the case are that the petitioners have challenged the order passed by the Civil Judge (Junior Division), 2nd Court at Alipore, The petitioners as plaintiffs filed suit against for a decree of recovery of vacant possession of the suit property, for a decree of a sum of Rs. 4,50,000/- as profits, tentatively calculated up to the date of filing of the suit, further mesne profits @ Rs. 50,000/- per day from September 9, 2016 till the delivery of vacant possession, damages, compensation and permanent injunction. The petitioners are the joint owners of premises in a building Kolkata. The petitioners were interested to start a business of running a guest house it into a guest house consisting of 36 rooms. Then they entered into an agreement with the opposite party, to lease out the said floors for the purpose of running a guest house with effect from December 15, 2014. According to the lease agreement, it was the obligation of the opposite parties/defendants to obtain necessary licences and registration for running and operating the said business. During the course of running and operating the business, the petitioners came to know that the requisite licences, permissions and approvals when after repeated reminders, the opposite parties failed to comply with the terms of the said agreement and continued with their illegal activities. Thus the petitioners terminated the agreement. Subsequently the petitioners filed an application, seeking direction upon the opposite parties to deposit Rs. 48 lakh with interest @ 15% per annum on such amount before the court. The lower court relied on the decision of this court in the matter of K.K. Saha & Co. Pvt. Ltd v. Ashok Agarwal reported in 2018 (1) CHN (CAL) 497, the Judge held that an order for payment of occupational charges could be passed only when a tenant having suffered a decree of eviction had preferred an appeal along with a prayer for a stay of the execution of the 4 decree. In the decision of the Delhi High Court in the aforementioned matter, it was held as follows: “. The combined effect of Order 12 Rule 1 and Order 39 Rule 10 of the Code of Civil Procedure is that a Court can, in a case of this kind, in fair exercise of its judicial discretion order for deposit of money pending decision of a suit.” The court observed that such claims will be subject to the final decision of the suit but the defendants cannot avoid payment of the contracted rent and enjoy the premises for free during the pendency of the suit. The relationship of landlord and tenant is admitted saying “In my opinion, the opposite parties/defendants Nos.1 to 4 are liable to pay the agreed monthly rent at the last paid rate with all arrears payable.”

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF FEBRUARY 2021 THE HON’BLE MR. JUSTICE ALOK ARADHE THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY W.A. NO.16925 OF 20111. WORKMEN OF MYSORE LAMP WORKS LTD REPRESENTED BY THE MYSORE LAMP STAFF & EMPLOYEES UNIONA REGISTERED TRADE UNION REGISTERED UNDER THE INDIAN TRADE UNIONS ACT) REP. BY ITS PRESIDENT HAVING ITS OFFICE AT OLD TUMKUR ROAD MALLESHWARAM WEST BANGALORE 560055. THE MYSORE LAMP WORKS LIMITED APPELLANT 2 REP. BY THE MANAGING DIRECTOR OLD TUMKUR ROAD MALLESHWARAM WEST BANGALORE 560055. BY SRI. K. SUBBA RAO SR. COUNSEL FOR M S. SUBBA RAO & CO. FOR R1 SRI. UDAYA HOLLA SR. COUNSEL FOR SMT. ANUPARNA BORDOLOI ADV. FOR R2) RESPONDENTS THIS W.A. IS FILED U S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NOS.3190 2002 C W W.P. NOS.8259 2002 37142 2002 AND 757 2003 DATE THIS W.A. HAVING BEEN HEARD AND RESERVED ON 08.02.2021 FOR HEARING AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY ALOK ARADHE J. DELIVERED THE FOLLOWING: This intra court appeal under Section 4 of the Karnataka High Court Act 1961 has been filed by the Government of Karnataka being aggrieved by the order dated 14.01.2011 passed by learned Single Judge in W.P.No.3190 2002 and other connected matters by which learned Single Judge has quashed the orders 3 dated 04.01.2002 as well as 30.08.2002 by which Mysore Lamp Works Ltd.by which operation of the company was closed by the State Government and subsequently an order was passed by the Labour Department under Section 25 O of the Industrial Disputes Act 1947 hereinafter referred to as the Act for short) granting permission to close the company under Section 25 O(2) read with Section 25 O(8) of the Act. Brief facts necessary for adjudication of this appeal are that the company is a public sector undertaking. In the year 1992 93 the company was operating on profitable basis. However since 1993 94 the company started incurring losses. On 11.07.1996 the State Government decided to prioritize the company. The company in the month of December 1996 was registered with Board of Industries and Financial Reconstruction granting permission to close the company under Section 25 O(2) read with Section 25 O(8) of the Act. The aforesaid orders were subject matter of challenge before the learned Single Judge. The learned Single Judge vide order dated 14.01.2011 5 allowed the writ petitions and the matter was remitted to the Government for fresh consideration of the application under Section 25 O of the Act after affording reasonable opportunity to the workmen of the company to put forth their case and thereafter to consider the case of the workmen in the light of observations made in the order. In the aforesaid factual background this appeal has been filed. 3. During the pendency of this appeal a bench of this court vide order dated 08.12.2016 passed in O.S.A.No.36 2014 in view of consensus arrived at between the parties directed the Additional Chief Secretary to the Government Commerce and Industries Department to ensure that the M s Mysore Minerals Ltd. shall convene a meeting of Board Of Directors as per decision dated 07.12.2006 for the absorption of the workmen within two weeks and further directed to identify the places where the services of the workmen of the company are to be absorbed in M s Mysore Minerals 6 Ltd. and the details shall be produced on the next date of hearing. It was further directed that each of the workmen shall be paid a sum of Rs.1 25 000 subject to proper identification. Admittedly in pursuance of the order passed by a bench of this court a sum of Rs.1 25 000 has been paid to the workmen who had filed the writ petition. Thereafter by an order dated 13.11.2020 a bench of this court directed Karnataka Minerals to make adhoc payment of Rs.15 000 per month to the workmen for past three years within a period of four weeks from the date of passing of the order. However the aforesaid payment was made subject to result of the appeal and the orders that may be passed on the merger by the appropriate government and also subject to future adjustment that can be made. Learned Senior counsel for the workmen of the company submitted that pursuant to the order 7 passed by State Government on 01.12.2020 the company had filed a memo dated 02.01.2021 along with which the report of the Task Force which was constituted to arrive at appropriate notional pay fixation and arrears of the workmen of the company was placed on record. It is further pointed out that the aforesaid Task Force has made the recommendations in favour of the workmen which are yet to be implemented. 6. However it is contended that the aforesaid Committee has not taken into account the fact that the workmen are entitled to back wages for a period from 2003 till the date of their absorption i.e. in the year 2017. It is further submitted that the Committee has not taken into account the past services rendered by the workmen in the company and the issue with regard to fitment pay scale and promotion and seniority as well as consequential benefits. In this connection our attention has been invited to statement of revised wages from 1994 to 2019 as per the settlement between the 8 Management and the Workers Union in respect of Mysore Electrical Industries Karnataka Soaps and Detergents Ltd. It is submitted that the workmen who are approximately 55 in number are also entitled to parity in treatment and are entitled to arrears of wages as well as consequential benefits at par with Mysore Electrical Industries Karnataka Soaps and Detergents Ltd. In support of aforesaid submissions reliance has been placed on decision of the Supreme Court in B.K.MOHAPATRA VS. STATE OF ORISSA AND ANOTHER 1987 SCC 553 S.M.PANDIT AND OTHERS VS. STATE OF GUJARAT AND OTHERS 4 SCC 778 and in HARJINDER SINGH VS. PUNJAB STATE WAREHOUSING CORPORATION 3 SCC 192. Learned Senior counsel has also reminded us of our constitutional obligation while reading out paragraphs from the HARJINDER SINGH VS. PUNJAB STATE WAREHOUSING CORPORATION supra. 9 7. On the other hand learned Additional Advocate General submitted that notwithstanding the order passed by the State Government on 01.12.2020 still the validity of the order passed by the learned Single Judge needs to be adjudicated to ascertain the date of closure of the company. It is also contended that provisions of Section 25 O does not contemplate recording of evidence and in the instant case neither the workmen had adduced any evidence in its case nor had sought for an opportunity to cross examine the witnesses. Therefore the learned Single Judge erred in law in setting aside the order of closure on the ground that the workmen were not afforded an opportunity of cross examination. In support of aforesaid submissions reliance has been placed on decision of Bombay High BRITANNIA INDUSTRIES LTD. VS. MAHARASHTRA GNERAL KAMGAR UNION AND ANOTHER 3 LLJ 275. However learned Additional Advocate General fairly submitted that the 10 recommendations made by Task Force Committee shall be given effect to within a period of three months and the amount due to the workmen approximately to the tune of Rs.6 Crores who are before this court shall be paid to them within a period of three months. Learned Senior Counsel for the company submitted that the company had already announced VRS scheme on 31.12.2001 prior to 04.01.2002 and 1046 employees had already opted for the scheme and the company had closed its production on October 2002 itself. It is also pointed out that services of 48 employees have already been absorbed in Boards and Corporations where they were deputed by the company and services of 79 employees have been absorbed in Karnataka Mineral Corporation Ltd. Therefore in the fact situation of the case the Government rightly took a decision to close the company. It is also submitted that the learned Single Judge erred in setting aside the order 11 dated 04.01.2002 and in remitting the matter to the State Government for fresh consideration. Learned Senior counsel for the Karnataka Mineral Corporation Ltd. has invited our attention to paragraph 16 of the constitution bench decision of the Supreme Court ANAKAPALLE CO OPERATIVE AGRICULTURAL AND INDUTRIES SOCIETY LTD VS. WORKMEN AND OTHERS AIR 1963 SC 1489 and submitted that the constitution bench of the Supreme Court has laid down the principles with regard to retrenchment with regard to Section 25 FF of the Act and the workmen are either entitled to compensation or absorption and they cannot claim both the reliefs. However it is submitted that the Corporation shall implement the recommendation of the Task Force Committee within a period of three months and shall grant the benefits to the workmen due under the recommendations within a period of three months from 12 10. We have considered the submissions made by learned counsel for the parties and have perused the record. It is well settled in law that this court while passing the order may take into account the subsequent events. In this connection reference may be made to decision of the Supreme Court in ANDHRA BANK VS. OFFICIAL LIQUIDATOR AND ANOTHER 5 SCC 75. However it is well equally well settled proposition in law that the court should not answer the academic or hypothetical question. 1 SCC 147]. Now we may advert to the subsequent developments which have taken place the pendency of this appeal. The State Government during the pendency of this writ appeal took a conscious decision by an order dated 01.12.2020 which reads as under: 13 GOVERNMENT ORDER NO:CI 108 CMI 2020BENGALURU DATED 01.12.2020 In the circumstances explained in the preamble Government is pleased to accord approval for utilization of land assets of M s Mysore Lamp Works Ltd. for Experience Bengaluru Project as below: i) To develop Experience Bengaluru Project on the land assets of MLQWL as a novel concept showcasing both the culture of Karnataka but also maintaining lung space in the heart of the city as per the National Green Tribunal Act. ii) Withdrawal of Government Order dated 20.03.2020 according approval the Scheme of Amalgamation of the Mysore Lamp Works Limited with Karnataka State Minerals Corporation Limited and empowering Mysore Lamp Works Limited to implement Experience Bengaluru Project by making necessary changes the Memorandum of Association and Article of iii) BDA to consider for change of land use from industrial to public and semi public of MLWL land to suit the proposed Experience Bengaluru Project. iv) In principal approval to initiate process of buy out minority shareholders of 5.6% and settle liabilities and make the MLWL to 100% Government Shareholding The above approval is accorded subject to the following terms and conditions 1) A detailed valuation of the company is to be done after the change in nature of the company and after the change in nature of ht eland. The value of each share is then assessed and shared with GoK. b) The liability with respect to employees will continue to be the responsibility of the KSMCL as decided in the previous amalgamation order. c) MLWL board decision is taken as mandated by the companies act wherever necessary. d) Hon ble High Court is briefed of the new developments before hand since a case is still pending in the court with respect to employees issue. e) Since majority of the employees are already absorbed in KSMCL they will continue to work there and employees issues with respect to fitment payment of arrears etc will be handled by KSMCL. 14 f) On the liabilities since MLW will continue to be in existence the liabilities need not be retired as of now. A decision on this can be taken at a later date. This order is issued with the concurrence of Finance Dept. vide its Note No. FD 320 Exp 1 2020 dated 25.11.2020 Commerce and Industries Departmentvide File No. CI 108 CMI 2020(E) dated 26.11.2020 & Urban Development Department vide File No .CI 108 CMI 2020 (E) and Cabinet approval in its meeting held on 27.11.2020 vide subject No.C:612 2020. By Order and in the name of the Governor of Karnataka Sd Under SecretaryCommerce & Industries Department. 11. Thus from perusal of the aforesaid Government Order it is evident that the Government has taken a conscious decision to approve for utilization of the land assets of the company for experience Bengaluru Project and has withdrawn the Government Order dated 20.03.2020 according approval to the scheme of amalgamation of Company with Karnataka State Minerals Corporation Limited and empowering the company to implement experience Bengaluru Project by making necessary changes in its Memorandum of Association and Articles of Association. In Principal 15 approval has also been accorded to initiate the process of buy out minority shareholders of 5.6% and settle liabilities and make the company to a 100% government share holding company and the aforesaid decisions have been taken subject to the terms and conditions which have been mentioned in the order. 12. Thus it is axiomatic that the company is still in existence therefore in view of the subsequent development viz. the conscious decision taken by the State Government it is not necessary for us to adjudicate the validity of the order passed by the learned Single Judge as the issue with regard to validity of the order of closure has been rendered academic as the State Government has subsequently taken a conscious decision to permit the company to be in existence and has converted the same as 100% Government Company. It is relevant to mention here that pursuant to interim order dated 08.12.2016 passed by a bench of this court directing absorption of the 16 employees of the company the State Government had constituted the special task force committee. The committee has made a representation in favour of the workmen which is reproduced below for the facility of i) The Task Force is of the unanimous view that the pay scales fixed by KSMCL AND MLWL employees on absorption is better than the notional pay worked out with MLWL pay scales. Hence the fixed by KSMCL on absorption of MLWL employees is appropriate and reasonable. ii) Monetary relief may be provided to MLWL employees from 12.06.2003 to the date of absorption in KSMCL or the date of death or the date of superannuation as per the Scheme of Financial Relief already approved vide Government Order No.CI 14 CMC 2019 dated 20.03.2020 and Government Order No.CI 108 CMI 2020(E) dated 1.12.2020. 17 iii) The above may be submitted before the Hon ble Court by MLWL AND KSMCL through their senior counsels. 13. Learned Additional Advocate General as well learned Senior counsel for Karnataka Mineral Ltd. have recommendations made by the Task Force Committee shall be given effect to within three months. The aforesaid statement is placed on record. It is not in dispute that services of the workmen who are before us have been absorbed in the year 2017 in Karnataka Mineral Corporation Ltd. and they are in service and in the peculiar facts of the case bearing in mind the interest of the workmen as well who have been litigating before this court for past approximately two decades we deem it appropriate to mould the relief and to direct the State Government as well as Karnataka Mineral Corporation Ltd. to ensure that the benefits of the recommendation made by the Task Force Committee are 18 given effect to and the payment of amount of approximately Rs.6 Crores as stated by Additional Advocate General shall be paid to the workmen within a period of three months from today who are before us in the light of recommendations made by the Task Force Committee subject to proper identification. However we may hasten to add that we have not quantified the amount due to the workmen. 14. This court is conscious of its constitutional obligation it is trite law that case is an authority for what it decides and not for what logically follows from it. The ratio decidendi of the case has to be read in the factual context. It is pertinent to note that in none of the cases relied upon by the learned Senior counsel for the workmen the Supreme Court was dealing with the matter arising out of an order of winding up or closure of a company. Therefore the decisions relied upon by the learned Senior counsel for the workmen have no application to the fact situation of the case. The court 19 while deciding a controversy has to bear in mind the scope of the proceeding as well and jurisdiction of this court in this appeal is confined to examining the validity of the order passed by the learned Single Judge and this court is not oblivious of its constitutional obligations which can only be discharged in an appropriate proceeding. 15. The grievance of the workmen with regard to their fitment fixation of pay scales and grant of consequential benefits cannot be gone into in this appeal as the same requires adjudication of the facts which can be done in an appropriate forum. Apart from this the aforesaid adjudication would be outside the scope of the present proceeding therefore we refrain ourselves from entering into the arena of disputed questions of fact which can only be adjudicated in an appropriate forum. Therefore the workmen would be at liberty to take recourse to such remedy which may be available to them in accordance with law. All questions in this regard 20 are kept open to be adjudicated in an appropriate forum. It is trite law that life of an interim order is co terminus with the main proceeding therefore the interim orders dated 08.12.2016 as well as 20.02.2020 do not survive in view of the fact that order dated 08.12.2016 has already been implemented and controversy in this appeal has already been adjudicated. With the aforesaid directions the appeal disposed of. Sd Sd

There should be strict compliance of procedures enumerated in the NDPS Act: Karnataka High Court

There must be strict compliance of procedure enumerated in the Narcotic Drugs and Psychotropic Substances Act, 1985 so as to convict an person under the same. The single judge bench consisting of J. H.P. Sandesh set aside the decision of the Trial Court in the matter of Channabasappa S/o Kalappa v. State of Karnataka [Criminal Appeal No. 101/2011], wherein the accused was convicted for illegally planting ganja. On receiving credible information, a police inspector raided a land and found that the accused had cultivated 15 ganja plants without any license or permit. After investigation, a charge sheet was filed against the accused for the offence punishable under Section 20(a) and 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985. On appearing in the Trial Court, the accused denied all the allegations on which he was convicted and sentenced to 3 months of rigorous imprisonment and a fine of Rs.2,000/- . The learned counsel of the accused, relying on Shanthappa and Others v. State by Arehalli Police Station [(2001) Crl.L.J. 2822], contended that the investigating officer himself cannot be permitted to file the charge sheet. Hence, the officer had some vested interest in the proceedings. Witnesses were also called upon who did not support the prosecution and stated on cross-examination that the gazetted officer was not present at the spot and hence, the evidence was not to be relied upon. The HC government pleader appearing for the State said that the evidence could not be discarded in toto just because the witnesses had turned hostile. The High Court held that “The non-compliance of Section 42 and 43 of the NDPS Act is fatal to the case of the prosecution. It has to be noted that special enactment was brought into force to combat the menace in the society. At the same time, in order to book a person, it requires strict compliance of the procedures. Hence, the absence of non-compliance of strict procedure envisaged under the NDPS Act, amounts fatal to the case of the prosecution”. The court said that the prosecution had failed to prove that the ganja was seized in the presence of the gazetted officer. Additionally, the court held that the trial court had not considered the legal evidence available on record and had hence, erred in convicting the accused and sentencing him for offence punishable under Section 20(a) of the NDPS Act.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER 2020 THE HON BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL No.101 2011 CHANNABASAPPA S O KALAPPA AGED ABOUT 70 YEARS AGRICULTURIST R AT BEERUT SHAGYA VILLAGE KOLLEGALA TALUK CHAMARAJNAGAR DIST. STATE OF KARNATAKA BY HANUR POLICE STATION REP. BY SPP HIGH COURT BUILDINGS BANGALORE 1. BY SRI Y.S. SHIVA PRASAD ADVOCATE… APPELLANT ... RESPONDENT BY SRI DIWAKAR MADDUR HCGPTHIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE INCLUDING FINE AMOUNT IN SPL.C.NO.6 08 DATED 20.12.2010 03.01.2011 PASSED BY THE DISTRICT AND SESSIONS JUDGE CHAMARAJANAGAR CONVICTING THE APPELLANT ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 20(a)(i) OF THE NDPS ACT. DAY THE COURT DELIVERED THE FOLLOWING: THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS 2 JUDGMENT This appeal is filed challenging the judgment of conviction and sentence dated 20.12.2010 passed in Special Case No.06 2008 on the file of the District and Sessions Judge at Chamarajanagar challenging the conviction of the accused for the offence punishable under Section 20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act 1985 and sentencing him for rigorous imprisonment for a period of three months and to pay a fine of Rs.2 000 . The factual matrix of the case is that on 24.12.2007 at about 7.15 a.m. P.W.5 Police Inspector had received the credible information and based on that information along with the panchas and his staff he raided the land bearing Survey No.421 1 of Berut Shagya Village Kollegal Taluk and found that the accused had cultivated 15 ganja plants in the midst of chilli plants without any licence or permit. Hence a case has been registered and thereafter investigation has been conducted and charge sheet has been filed against the accused for the offence punishable under Sections 20(a) and 20(b) of the NDPS Act. The accused appeared before the Trial Court and denied the charges leveled against him and hence the prosecution relied upon the evidence of P.Ws.1 to 7 and got marked the documents at Exs.P.1 to 11. The accused has not led any defence evidence. The sample ganja was marked as M.O.1. The Trial Judge after considering both oral and documentary evidence placed on record convicted the accused and sentenced him and hence the present appeal. The main ground urged in the appeal is that P.W.5 who conducted the raid he himself investigated the matter and filed the charge sheet and the same is not permitted. He ought not to have conducted the investigation and filed the charge sheet. The learned counsel appearing for the accused relies upon the judgment of this Court in the case of SHANTHAPPA AND OTHERS v. STATE BY AREHALLI POLICE STATION reported in 2001 Crl.L.J. 2822. Referring this judgment the learned counsel would contend that P.W.5 himself registered the FIR and conducted the investigation and filed the charge sheet. Hence the inspector is having vested interest in proceeding and hence the same has to be set aside. 4 The learned counsel would also submit that P.Ws.1 and 2 who are the independent witnesses have not supported the case of the prosecution. With regard to the presence of the gazetted officer the witnesses have admitted in the cross examination that in Exs.P.4 to 7 photographs the gazetted officer is not found and hence it is clear that gazetted officer was not present at the spot and hence his evidence cannot be believed. The Trial Judge failed to consider this aspect. P.W.3 FSL witness the cross examination categorically admitted that he has not separated the ganja leaves stems fruiting and flowering tops. Hence it cannot be held that the same is ganja. P.Ws.5 to 7 are the official witnesses and their evidence cannot be believed. They categorically admitted that in the photographs they cannot see the crop of turmeric and only small chilli plants are found and have not complied with the provisions of Section 57 of the NDPS Act. Hence the entire material placed before the Trial Court is not enough to convict the accused. Hence it requires interference of this Court. Per contra the learned High Court Government Pleader appearing for the State would submit that though both P.Ws.1 and 2 have turned hostile they have admitted their signatures available on Ex.P.1 mahazar. The photographs Exs.P.4 to 7 clearly discloses that these panch witnesses were also present at the time of conducting the raid and seizing M.O.1. Hence the evidence of P.Ws.1 and 2 cannot be discarded in toto though they turned hostile. The learned High Court Government Pleader would also submit that the FSL report was received and P.W.3 categorically deposed that M.O.1 is ganja. P.W.4 is the gazetted officer and he categorically deposes that he accompanied the panch witnesses and also the police and ganja M.O.1 was seized in his presence. Nothing is elicited from the mouth of P.W.4 to disbelieve his evidence. The learned counsel would submit that P.Ws.5 to 7 are the official witnesses and they were present at the time of seizing the same. Nothing is elicited in the cross examination to disbelieve the case of the prosecution. Hence it does not require any interference. Having heard the arguments of the learned counsel for the appellant and the learned High Court Government Pleader appearing for the State and on perusal of the material available on record the points that arise for the consideration of this Court are: i) Whether the Trial Judge has committed an error in convicting the accused appellant for the offence punishable under Section 20(a) of the NDPS Act ii) What order Point Nos.(i) andand 20(b) of the NDPS Act the charge has been framed for the offence punishable under Section 20(a)(i) of the NDPS Act. The prosecution relied upon the evidence of P.Ws.1 to 7 and got marked the documents at Exs.P.1 to 11. According to the prosecution P.Ws.1 and 2 have accompanied while visiting the spot and in their presence they have seized the ganja plants. P.Ws.1 and 2 have turned hostile. However in the cross examination P.W.1 and P.W.2 admits that the sample packet bears their signatures. 11. P.W.3 Chief Chemist and Public Analyst in his evidence says that he has examined the seized articles which was sent to him and given the report in terms of Ex.P.2. In the cross examination he admits that he has not separated the ganja leaves stems fruiting and flowering tops. The P.W.4 doctor in his evidence says that on 24.11.2007 at about 7.40 a.m. when he was in his residence he was called to the police station and he was requested to be present at the time of seizure of the ganja as the gazetted officer. Accordingly he accompanied P.Ws.5 to 7. P.Ws.1 and 2 were also present. The police took out the sample of the ganja from all the plants and sealed the same and also conducted the mahazar in terms of Ex.P.1 and he has signed Ex.P.1 and identifies his signatures as Ex.P.1(c). He was subjected to cross examination. In the cross examination a suggestion was made that he has not visited the spot and no mahazar was conducted in his presence and he has signed the mahazar in the police station and the said suggestion was denied. It is suggested that no panchas were taken to the spot and the same was denied. 8 12. P.W.5 CPI conducted the raid based on the information after obtaining the permission in terms of Ex.P.3. P.W.5 in his evidence says that he has secured two panchas and also the gazetted officer and found the accused in the house and the accused only led them to the spot where he had planted the ganja and the same was seized. He identifies M.O.1 and through this witness Exs.P.4 to 7 photographs are marked. P.W.5 was subjected to cross examination. In the cross examination he admits that he has not stated in the report about the turmeric crop grown in the said land. He admits that in terms of Exs.P.4 to 7 the said turmeric plants were not grown. But he admits that they had taken the photographs at the spot. He further admits that in the photographs Medical Officer is not seen. It is suggested that there were no panchas present at the time of mahazar and they have not seized any article and the same was denied. However he admits that the land was standing in the name of wife of the 14. P.W.6 is the PSI who accompanied P.W.5 and his evidence is replica of the evidence of P.W.5. In the cross examination he admits that except the accused no other persons were there in the land and no revenue officials accompanied them. P.W.7 is the Police Constable and his evidence is also replica of the evidence of P.W.5. He was subjected to cross examination. In the cross examination he admits that there are lands of other persons by the side of the land of the accused and he does not remember the names of the panchas. It is suggested that M.O.1 sample of ganja was not seized at the spot and the same was denied. 15. Having considered both oral and documentary evidence placed on record there is no doubt that P.W.5 Police Inspector took the permission to conduct the raid in terms of Ex.P.3. On the basis of that permission only he conducted the raid. Ex.P.1 is the mahazar which contains the signature of P.Ws.1 2 4 and so also P.Ws.5 to 7. The FSL report is Ex.P.2 and it contains the signature of P.W.3. Exs.P.4 to 7 are the photographs. The FIR was registered in terms of Ex.P.9. RTC Ex.P.10 stands in the name of wife of the accused. Apart from the documentary evidence the prosecution relies upon the evidence of P.Ws.1 2 and 4 who are the independent witnesses. P.Ws.1 and 2 have turned hostile. However in the cross examination they have admitted their signatures available on sample packet and they identified the signatures on Ex.P.1. It is also important to note that the prosecution relied upon the photographs which are marked as Exs.P.4 to 7. On perusal of those photographs it discloses that the Investigating Officer and the panch witnesses P.Ws.1 and 2 were present at the spot. In the cross examination of P.Ws.1 and 2 the Public Prosecutor did not confront those photographs to P.Ws.1 and 2 and those photographs are marked through P.W.5 subsequent to the examination of P.Ws.1 and 2. Hence it is clear that P.Ws.1 and 2 were present at the spot on the date of conducting the spot mahazar in terms of Ex.P.1. P.Ws.1 and 2 have admitted their signature available on Ex.P.1. It is important to note that the panch witnesses have turned hostile and the prosecution relies upon the evidence of P.W.4. It is the evidence of the prosecution that P.W.4 was secured to the police station and thereafter P.W.4 accompanied them and in the presence of the gazetted officer P.W.4 ganja was seized. It is important to note that P.W.5 Investigating Officer the cross examination categorically admits that P.W.4 is not appearing in the photographs at Exs.P.4 to 7 and looking into the photographs there is no doubt that P.Ws.1 and 2 were present but P.W.4 was not present. It is important to note that the narcotic substance has to be recovered in compliance of Sections 42 and 43 of the NDPS Act. The gazetted officer though deposed before the Court that in his presence ganja was seized I have already pointed out that in Exs.P.4 to 7 photographs he is not appearing and P.W.5 also categorically admits that he is not seen. Hence the prosecution has not proved the fact that the same was seized in the presence of the gazetted officer. Though the prosecution claims that the gazetted officer was secured before seizing the same no material is placed before the Court to prove the same. The very admission of P.W.5 that the gazetted officer is not seen in the photographs clearly depicts that the signature of P.W.4 was taken somewhere else and not at the spot. The other official witness P.W.6 and 7 though deposes that P.W.4 was present at the spot no material is placed before the Court to prove the same. Hence the very presence of P.W.4 has not been proved and also no material that the same was seized in the presence of P.W.4. 17. The non compliance of Sections 42 and 43 of the NDPS Act is fatal to the case of the prosecution. It has to be noted that special enactment was brought into force to combat the menace in the society. At the same time in order to book a person it requires strict compliance of the procedures. Hence the absence of non compliance of strict procedure envisaged under the NDPS Act amounts fatal to the case of the prosecution. No doubt the Trial Court having taken note of the presence of P.Ws.1 and 2 in the photographs though they turned hostile they have admitted the signatures available on Ex.P.1 and also considering the evidence of P.Ws.4 and 5 to 7 comes to a conclusion that the same was seized. No doubt Exs.P.4 to 7 discloses the presence of the accused at the spot. But the Trial Judge has committed an error in not considering the legal evidence available on record. The Trial Judge has not discussed anything about compliance of Sections 42 and 43 of the NDPS Act with regard to the seizure and the same was seized in the presence of the gazetted officer. The evidence of the prosecution with regard to the presence of P.W.4 does not inspire the confidence of the Court to come to the conclusion that the same was seized in the presence of gazetted officer. The 13 legal evidence has not been considered by the Trial Court. The Trial Court gone into considering the fatal aspects of the case and strict compliance as envisaged under the special enactment has not been considered by the Trial Court. No doubt in the cross examination of P.Ws.5 to 7 nowhere it is elicited that these official witnesses were having ill will against the accused to book the case against the accused. The evidence of the official witnesses cannot be brushed aside when the defence failed to elicit any answers from the mouth of the official witnesses. However this Court has to take note of the legal evidence available on record and I have already discussed with regard to legal evidence regarding seizure of the narcotic substance and non compliance of Sections 42 and 43 of the NDPS Act while seizing the narcotic substance. Hence I am of the opinion that benefit of doubt goes in favor of the accused with regard to non compliance of the provisions enumerated in the NDPS Act. First of all the seizure of ganja plant was not proved by adducing any legal evidence. Hence the Trial Court has committed an error in convicting the accused and sentencing him for the offence punishable under Section 20(a) of the NDPS Act. 18. In view of the discussions made above I pass the The appeal is allowed. ii) The impugned judgment of conviction and sentence dated 20.12.2010 passed in Special Case No.06 2008 is hereby set aside. iii) The accused is acquitted for the offence punishable under Section 20(a) of the NDPS iv) Fine amount if any deposited before the Trial Court is ordered to be refunded to the v) The Registry is directed to transmit the Trial Court records forthwith. Sd

Sending a summons in a picture format over WhatsApp does not amount to overreaching the judicial system: Delhi High Court

The plaintiff sent the photograph of the summon through WhatsApp, hence the Delhi High Court set aside an order that was passed by commercial court that issued a show cause notice of criminal contempt. The following order was passed by Hon’ble Justice Amit Bansal while dealing with a plea that challenged the order of commercial court in the case of ICICI BANK V. RASHMI SHARMA[CM(M) 36/2022. In the present case, the accused person sent the photograph of the summon to the person who was summoned through WhatsApp, on this subject the commercial court initiated criminal contempt proceedings against the accused. The accused hence filed a writ petition under article 226 impugning the order dated 02.12.2021 that was passed by the district judge at Tis Hazari court for criminal proceedings for sending summons over WhatsApp and in this case the other party had not received any summon from the side of the court even after the plaintiff paying all the required fees. The commercial court on this subject held that this is nothing but “overreaching the judicial system” and said no party can start their own “parallel system”. Delhi High Court on this matter “In the considered view of this Court, there was no occasion at all for the Commercial Court to issue show cause notice for initiating criminal contempt against the plaintiff. Just because the photograph of the summons was sent by the plaintiff to the defendant through WhatsApp cannot amount to overreaching the judicial system or running a parallel system with the judicial system. The aforesaid observations were completely uncalled for”. The Delhi High Court also gave the reasoning that especially when the plaintiff had paid the fees and taken all the steps for ensuring the summons is also sent through ordinary method such proceedings cannot take place. The court further observed “There is nothing malafide in the same and it cannot be said that that was an attempt to overreach the judicial proceedings. It was not that the plaintiff had sought to send the summons through WhatsApp in substitution of the ordinary service to the defendant” hence setting aside the commercial court order. Further on the subject of commercial court’s jurisdiction to pass such an order the Delhi High Court observed “A subordinate court can only make a reference to the High Court for initiating contempt proceedings. Therefore, the impugned order is clearly in excess of jurisdiction vested with the commercial court” so it also held that the court was not even empowered to pass such orders. In such cases what we should see is whether the accused tried to stop the administration of justice or not, because if the accused has taken all the required steps to get the summon served and as an additional measure to get the summon served sent a photo of it via WhatsApp then how is the administration of justice being hindered. Further in line with the judgment of Dr. Prodip Kumar Biswas V. Subrata Das and Ors. the Supreme Court also observed that proceedings for criminal contempt can be initiated only when the act prejudices or interferes or tends to interfere with the course of judicial proceeding or administration of justice.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 12th January 2022 CM(M) 36 2022 ICICI BANK LIMITED Petitioner Through: Mr. Dayan Krishnan Sr. Advocate with Mr. Ripu Daman Bhardwaj Mr. Deepak Kaushik and Mr. Sanjeev Bakshi Advocates. RASHMI SHARMA Through: None. Respondent HON BLE MR. JUSTICE AMIT BANSAL VIA VIDEO CONFERENCING] AMIT BANSAL J. CM No. 2057 2022Allowed subject to all just exceptions. The application stands disposed of. CM(M) 36 2022 & CM No. 2056 2022The present petition under Article 227 of the Constitution of India impugns the order dated 2nd December 2021 passed by the District Judge Commercial Court) 06 Central District Tis Hazari Courts New Delhi Commercial Court) in CSNo. 2857 2021 whereby show cause notice has been directed to be issued to the petitioner Bank to be answered and endorsed through the Chairman as to why CM(M) 36 2022 criminal contempt should not be initiated against him for overreaching the The facts giving rise to the filing of the commercial suit leading to the process of the Court. present petition are as follows: i) The respondent approached the plaintiff for grant of a car loan cum hypothecation scheme of Rs.5 01 000 for the purchase of a vehicle. The loan documents were executed and the loan was duly sanctioned to the defendant on 21st November 2019. ii) The defendant defaulted in payments of monthly instalments towards repayment of the loan and consequently issued a notice dated 16th April 2021 to the defendant to recall the loan facility available to the defendant. iii) In August 2021 the plaintiff filed a commercial suit for recovery against the defendant which was registered as CS No. The summons were issued in the commercial suit on 16th August 2021. The relevant part of the order is set out below: “Issue notice of suitas well as the the annexed accompanying applications with all documents to the defendants on filing of the process fee by the plaintiff. In case any address of the defendant(s) is of outstation the ordinary process be sent through the District Judge concerned. Process be also sent through registered speed post AD. The sealed covers containing the summons and complete paperbook of the case be handed over dasti to the plaintiff counsel for putting the same in the postal CM(M) 36 2022 transmission. The original postal receipt(s) along with the downloaded tract report from the site of India Post be placed on record by the plaintiff counsel on the next date. In case the plaintiff has any e mail fax ID and mobile numberof the defendant defendant be served under Rule12 of the Delhi Court Services of Process By Courier FAX and Electronic Mail Service Rule 2010. The plaintiff shall file the affidavit qua the same. In terms of Rule 13 plaintiff is directed to place on record a copy of the plaint and· documents in electronic format scanned images in compliance of Rule 13 for process. Requisite process fee for sending process by e mail in compliance of Rule 14 be also filed alongwith the copies as above for onward transmission to Nazarat Branch Tis Hazari Courts for service through e mail.” same with In terms of the aforesaid order passed by the Commercial Court the plaintiff took steps for affecting service on the defendant through ordinary process as well as speed post by filing process fee and sealed covers containing the summons and paper book respectively. Pursuant thereto steps were taken for affecting service on the defendant by ordinary process as well as through speed post. In this regard reference may be made to the speed post notices issued and the speed post tracking report as also the report of the Ahlmad attached to the Commercial Court. In addition to the service through the above modes the plaintiff also sent the photograph of the summons issued by the Commercial Court to the defendant by means of WhatsApp since the plaintiff had the phone number of the defendant provided in the loan documents. 7. When the matter came up before the Commercial Court on 2nd CM(M) 36 2022 December 2021 the contention of the defendant was noted by the Commercial Court that the defendant had received a private notice of appearance for the said date through WhatsApp on 30th November 2021 and further that the defendant had not received any notice summons from the Court. The contention of the plaintiff was also noted that the plaintiff had filed the process fee and in addition thereto photograph of the summons was also sent through WhatsApp to the defendant. On the basis of the above the Commercial Court passed the impugned order issuing show cause notice to the plaintiff as to why criminal contempt proceedings be not initiated against the plaintiff. Relevant observations of the Commercial Court are set out below: “Today this kind of debacle was seen in other cases of ICICI Bank Ltd. also but it was ignored. Now it appears that that plaintiff has adopted this kind of practice on a regular basis for the reasons best known to it and it certainly amounts to over reaching the judicial system. No party has a right to start a parallel system along with the judicial proceedings. The plaintiff has been called upon to explain the same. XXX XXX Plaintiff to show cause as to why the action be not recommended against it for the criminal contempt of the court for over reaching the process of the court. Show cause notice be replied forwarded or endorsed through the Chairman of the plaintiff bank for the next date of CM(M) 36 2022 Senior counsel appearing on behalf of the plaintiff assails the impugned order on the following grounds: There was no violation of the order dated 16th August 2021 passed by the Commercial Court inasmuch as the plaintiff had taken steps for the ordinary service as well as service through speed post upon the defendant. ii) Process fee was duly filed in terms of which the summons were prepared for ordinary service by the process server and summons in respect of service through speed post were handed over to the plaintiff to be sent through speed post. iii) Even though steps were not taken by the plaintiff for service through email but the photograph of the summons were duly sent to the defendant through WhatsApp as provided in the order dated 16th August 2021. iv) The photocopy of the summons were sent through WhatsApp only to ensure presence of defendants before the Commercial Court on the next date of hearing. v) Reliance has been placed on the order dated 10th July 2020 of the Supreme Court in Suo Moto W.P.(C) No. 3 2022 to contend that the Supreme Court itself during the period of lockdown had directed service to be affected through various electronic means including WhatsApp. vi) Even if the photograph of the summons were sent to the defendant through WhatsApp no case of contempt has been made out much less 10. None appears on behalf of the respondent despite advance service. In the facts and circumstances of the case no notice is required to be issued to In the considered view of this Court there was no occasion at all for criminal contempt. the respondent. CM(M) 36 2022 the Commercial Court to issue show cause notice for initiating criminal contempt against the plaintiff. Just because the photograph of the summons were sent by the plaintiff to the defendant through WhatsApp cannot amount to overreaching the judicial system or running a parallel system with the judicial system. The aforesaid observations were completely uncalled for. As noted above the plaintiff had duly filed process fee and taken steps for issuance of regular summons to the defendant through the ordinary process as well as speed post. The photograph of the summons were sent through WhatsApp only as an additional measure so as to ensure the appearance of the defendant before the Commercial Court. There is nothing malafide in the same and it cannot be said that that was an attempt to overreach the judicial proceedings. It was not that the plaintiff had sought to send the summons through WhatsApp in substitution of the ordinary service to the defendant. It was only sent as a secondary measure to ensure the presence of the defendant on the next date. Therefore Commercial Court has completely gone overboard in issuing notice for initiating contempt proceedings. 12. The Supreme Court in its judgment in Dr. Prodip Kumar Biswas Vs. Subrata Das and Ors. 4 SCC 533 while dealing with the issue of criminal contempt has observed that proceedings for criminal contempt can be initiated only when the act prejudices or interferes or tends to interfere with the course of judicial proceeding or administration of justice. Contempt of court is a special jurisdiction which ought to be exercised sparingly and with great caution. Contempt proceedings should not be initiated lightly. In any case in view of Sections 10 and 15 of the Contempt of Courts Act 1971 only High Courts have the power to take cognizance in respect of contempt of courts subordinate to it. Subordinate courts cannot assume CM(M) 36 2022 jurisdiction and issue show cause notice as to why contempt proceedings be not initiated. A subordinate court can only make a reference to the High Court for initiating contempt proceedings. Therefore the impugned order is clearly in excess of the jurisdiction vested with the Commercial Court. In view of the above the order passed by the Commercial Court suffers from patent illegality and is also without jurisdiction and hence cannot be sustained. 15. Accordingly the petition is allowed and the impugned order is set aside to the extent show cause notice for initiating criminal contempt proceedings has been directed to be issued to the plaintiff. JANUARY 12 2022 Sakshi R. AMIT BANSAL J CM(M) 36 2022

Execution proceedings can be stayed by High Court only after money is deposited: High Court of Delhi

When a court has ordered for stay in execution proceedings, such stay cannot remain unconditional and is subject to the amount of money being deposited as decided by the judge. This was decided in the case of Brijesh Kumar Agarwal & Ors. V. IFCI Factors Limited & Anr [RFA (OS) (COMM) 10/2020] in the High Court of Delhi by double bench consisting of Hon’ble Justice Manmohan  And. Justice Asha Menon. The facts of the case are that the learned Predecessor Division Bench had admitted the present appeal and directed it to be listed in due course. With regard to the present stay application, learned counsel for respondent no.1 had stated that he shall not institute or prosecute any application seeking execution of the impugned judgment till the disposal of the present application. Now, learned counsel for appellant states that the learned Single Judge without framing any issues and permitting admission July, 2020, the learned Predecessor Division Bench had admitted the present appeal and directed it to be listed in due course. With regard to the present stay application, learned counsel for respondent had stated that he shall not institute or prosecute any application seeking execution of the impugned judgment till the disposal of the present application. The counsel for the respondents also referred to Chapter XA of Delhi High Court (Original Side) Rules to submit that at the time of Case Management hearing, a Court may of its own, decide a claim pertaining to any dispute, by a summary judgment, without recording oral evidence. On the other hand, lcounsel for the appellants states that since in the present appeal, the appellants have shown sufficient cause and prima facie case, the impugned decree should be stayed in its entirety. The court observed that Order XLI CPC gives power and jurisdiction to the Appellate Court to pass interim orders. It further stated in the case of Praveen Davar and Ors. Vs. Harvansh Kumari and Ors; 2008 SCC Online Del 821 the court has held “the Appellate Court can put the appellant on such reasonable terms as would in the opinion of the Court reasonably compensate the decree holder for loss occasioned by delay in execution of the decree by the grant of a stay order”. Further in Atma Ram Properties (P) Ltd. vs. Federal Motors Pvt. Ltd. (2005) 1 SCC 705, wherein it has been held as under:- “9..The power to grant stay is discretionary and flows from the jurisdiction conferred on an appellate Court which is equitable in nature. To secure an order of stay merely by preferring an appeal is not the statutory right conferred on the appellant. So also, an appellate Court is not ordained to grant an order of stay merely because an appeal has been preferred and an application for an order of stay has been made”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Suppl. 51 RFA(COMM) 10 2020 BRIJESH KUMAR AGARWAL & ORS. Through: Mr.Sanjeev Sagar with Ms.Nazia Parveen Advocates. IFCI FACTORS LIMITED & ANR. .....Respondents Through: Mr.Anupam Srivastava Date of Decision: 11th February 2021 HON BLE MR. JUSTICE MANMOHAN HON BLE MS. JUSTICE ASHA MENON JUDGMENT MANMOHAN J(COMM) 10 2020 denial of documents and also without allowing parties to lead evidence had passed the impugned decree and that too without any application being filed under Order XIIIA CPC. He submits that steps under order XVA CPC regarding case management hearing have to be mandatorily followed which have not been followed by the learned Single Judge. He submits that in a similar case a decree had been set aside by the Division Bench of this Court in Clues Network Pvt. Ltd. Vs. L’oreal 2019 SCC Online Del 7984 wherein it was held that a civil suit in particular a commercial suit had to proceed strictly in accordance with the procedure outlined in the Code of Civil Procedure 1908 read with the Commercial Courts Commercial Division and Commercial Appellate Division of High Courts Act 2015 Commercial Courts Act 2015). The relevant portion of the judgment relied upon by the learned counsel for appellant is reproduced “20. xxx ….. i) Whether the learned Single Judge could have merely on the basis that counsel for both parties agreed to the ‘final disposal of the suit’ dispensed with the further stages of framing of issues and recording of evidence as mandated by the CPC as further modified by the Commercial Courts Act 2015xxx 36. Consequently questionhas to be answered in the negative. It is held that could not have merely on the basis that counsel for both parties agreed to the ‘final disposal of the suit’ dispensed RFA(COMM) 10 2020 with the further stages of framing of issues and recording of evidence as mandated by the CPC as further modified by the Commercial Courts Act 20153 SCC 49 wherein it has been held that a perverse decision going to the root of the matter constitutes a patent illegality as well as a public policy violation. The relevant portion of the said judgment relied upon by learned counsel for the appellants is reproduced hereinbelow: “31.The third juristic principle is that a decision which is perverse or so irrational that no reasonable person would have arrived at the same is important and requires some degree of explanation. It is settled law that where: i) a finding is based on no evidence or an arbitral irrelevant to the decision which it arrives at or ignores vital evidence in arriving at its decision such decision would necessarily be perverse.” into account something Per contra learned counsel for respondents submits that in the present case the written statement had been filed by the appellants without enclosing an affidavit of admission denial of the documents. Therefore according to him the written statement filed by the appellants defendant nos.2 to 5 was not in accord with Chapter VII Rule 4 of the Delhi High Court Rules 2018 and the said written statement filed by the appellants should be deemed not to be on record and the documents filed by the respondents plaintiffs should be deemed to be admitted. In support of his submission he RFA(COMM) 10 2020 relies upon the judgment of a learned Single Judge of this Court in Unilin Beheer B.V. vs. Balaji Action Buildwell 2019 SCC OnLine Del. 8498 wherein it has been held as under: “31. I thus hold that in the event of the written statement being filed without affidavit of admission denial of documents not only shall the written statement be not taken on record but the documents filed by the plaintiff shall also be deemed to be admitted and on the basis of which admission the Court shall be entitled to proceed under Order VIII Rule 10 of the CPC.” He also refers to the impugned order to contend that the appellants defendant nos.2 to 5 had vehemently urged the learned Single Judge to summarily dismiss the plaint filed by the respondents and that too without framing of issues and without filing an application under Order XIIIA CPC. Learned counsel for respondent no.1 plaintiff further contends that having succeeding in the Court below the respondents should not be deprived of the fruits of the decree merely because defeated party has invoked the jurisdiction of the Superior Court. In support of his submission he relies upon a judgment of the Supreme Court in Atma Ram PropertiesLtd. vs. Federal Motors Pvt. Ltd.1 SCC 705 wherein it has been held as under: “9......The power to grant stay is discretionary and flows from the jurisdiction conferred on an appellate Court which is equitable in nature. To secure an order of stay merely by preferring an appeal is not the statutory right conferred on the appellant. So also an appellate Court is not ordained to grant an order of stay merely because an appeal has been preferred and an application for an order of stay has been made. Therefore an applicant for order of RFA(COMM) 10 2020 stay must do equity for seeking equity. Depending on the facts and circumstances of a given case an appellate Court while passing an order of stay may put the parties on such terms the enforcement whereof would satisfy the demand for justice of the party found successful at the end of the appeal. .................... In our opinion while granting an order of stay under Order 41 Rule 5 of the CPC the appellate court does have jurisdiction to put the party seeking stay order on such terms as would reasonably compensate the party successful at the end of the appeal insofar as those proceedings are concerned. Thus for example though a decree for payment of money is not ordinarily stayed by the appellate Court yet if it exercises its jurisdiction to grant stay in an exceptional case it may direct the appellant to make payment of the decretal amount with interest as a condition precedent to the grant of stay though the decree under appeal does not make provision for payment of interest by the judgment debtor to the decree holder. ....." Learned counsel for the respondents also refers to Chapter XA of Delhi High Court Rules to submit that at the time of Case Management hearing a Court may of its own decide a claim pertaining to any dispute by a summary judgment without recording oral evidence. He submits that the said provision had not been considered by the Division Bench while passing the judgment in Clues Network Pvt. Ltd(COMM) 10 2020 already been admitted be listed according to its seniority in the 10. Consequently this Court at the present stage has only to make an 11. Order XLI CPC gives power and jurisdiction to the Appellate Court to pass interim orders. The relevant portion of Order XLI CPC is ‘Regular Matters’. interim arrangement. reproduced hereinbelow: Order XLI CPC “1. Form of appeal What to accompany memorandum...... Where the appeal is against a decree for payment of money the appellant shall within such time as the Appellate Court may allow deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.] xxx 5. Stay by Appellate Court 1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree but the Appellate Court may for sufficient cause order stay of execution of such 3) No order for stay of execution shall be made under sub ruleor sub ruleunless the Court making it is a) that substantial loss may result to the party applying for stay of execution unless the order is made RFA(COMM) 10 2020 b) that the application has been made without unreasonable delay and c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. 5) Notwithstanding anything contained in the foregoing sub rules where the appellant fails to make the deposit or furnish the security specified in sub rule of rule 1 the Court shall not make an order staying the execution of the decree.]” 12. A Division Bench of this Court in Praveen Davar and Ors. Vs. Harvansh Kumari and Ors 2008 SCC Online Del 821 has held that the Appellate Court can put the appellant on such reasonable terms as would in the opinion of the Court reasonably compensate the decree holder for loss occasioned by delay in execution of the decree by the grant of a stay order. 13. The Supreme Court in M s Malwa Strips Pvt. Ltd. Vs. Jyoti Ltd 2009) 2 SCC 426 has held that in money decree normally there shall be no stay till the decretal amount is deposited or security is given for the said amount. It has been also held that an exceptional case has to be made for stay of execution of a money decree. It has been further held that for a stay to be granted cogent and adequate reasons must be given. The relevant portion of the said judgment is reproduced hereinbelow: “12. ......But while granting stay of the execution of the decree it must take into consideration the facts and circumstances of the case before it. It is not to act arbitrarily either way. If a stay is RFA(COMM) 10 2020 granted sufficient cause must be shown which means that the materials on record were required to be perused and reasons are to be assigned. Such reasons should be cogent and adequate.” xxx xxx 14. ........An exceptional case has to be made out for stay of execution of a money decree. The Parliamentary intent should have been given effect to. The High Court has not said that any exceptional case has been made out. It did not arrive at the conclusion that it would cause undue hardship to the respondent if the ordinary rule to direct payment of the decreetal amount or a part of it and or directly through the judgment debtor to secure the payment of the decreetal amount is granted. A strong case should be made out for passing an order of stay of execution of the decree in its entirety.” 14. This Court is also of the prima facie view that the learned Single Judge has power and jurisdiction under Chapter XA of the Delhi High CourtRules 2018 to pass a summary judgment without recording oral evidence. Unfortunately the said Rule was not brought to the notice of the Division Bench while passing the judgment in Clues Network Pvt. Ltd (COMM) 10 2020 under the Factoring Agreement which had been guaranteed by the appellants defendant nos.2 to 5. 16. This Court is also of the prima facie opinion that since the appellants’ written statement was not accompanied by admission denial of the documents it should not have been looked into by the learned Single Judge in view of the judgment in Unilin Beheer B.V. vs. Balaji Action Buildwell and Chapter VII Rule 4 of the Delhi High CourtRules 2018. 17. Keeping in view the aforesaid this Court is of the view that no cogent and adequate reason is made out for grant of unconditional stay of the execution proceedings. 18. Consequently this Court directs the appellants to deposit the principal decreed amount i.e. Rs.4 78 37 930.22 with the Registry of this Court within six weeks from today. Upon deposit the amount shall be kept in a fixed deposit by the registry of this Court. In case the amount is deposited there shall be stay of execution proceedings failing which the respondent is free to proceed in accordance with law. 19. With the aforesaid directions the present application stands disposed of. MANMOHAN J ASHA MENON J FEBRUARY 11 2021 RFA(COMM) 10 2020

The crowd accused of violating government promulgated guidelines and alleged to have attacked the Police Personnel granted bail by the Court: High Court Of Patna

The Crowd of people was accused of violating the COVID 19 guidelines promulgated by the government and attempting to harm the police personnel by controlling the fight and crowd. The Court after considering the facts and circumstances granted bail to the Petitioner. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Md. Mustufa Nadaf and others v. The State of Bihar[Criminal Miscellaneous No. 38239 of 2020].  The facts of the case were that the petitioner was apprehended arrest concerning a case instituted under Section 147-149, 323, 324, 333, 337, 307, 353, 188 of the Indian Penal Code. It was alleged that the petitioner along with 17 others and 100-150 unknown people was present during the immersion of Lord Krishna’s image and they were quarrelling amongst themselves and also had organized the same in violation of COVID 19 guidelines as promulgated and circulated by the government. On reaching the informant who is the Sub-Inspector of Police, he was attacked by the brick-bats, lathi, and swords and prevented the inspectors from discharging their duties which also resulted in injuries to the personnel and two accused were arrested on the spot. Learned Counsel of the Petitioners submitted that it has been falsely implicated as they were not doing any overt act and have been named with ulterior motive by the Chukidaar. It was submitted that even as per the FIR, a large mob was there and the three police personnel, who have been injured, have received simple injury. It was submitted that the petitioners have no other criminal antecedent. Few other petitioners were granted anticipatory bail by a coordinate bench and further other co-accused have also been granted bail by a judge. It was submitted that the petitioners are similarly situated to the aforesaid accused who have been granted anticipatory bail. The Additional Public Prosecutor submitted that the petitioners as per the FIR have been identified by the Chaukidar and hence have been named accordingly in the documentations of the FIR. The Hon’ble High Court Of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, in view of the petitioners having no criminal antecedent and there being a mob of almost 150 persons and without there being any specific overt act alleged against any person and the injuries on three police personnel being simple as also the fact that many similarly situated co-accused have been granted anticipatory bail, the Court is inclined to grant pre-arrest bail to the petitioners.”  It was further added by the court that the bail procedures shall be followed as per provisions mentioned down in Section 438(2) of the Code Of Criminal Procedure, 1973. The Petitioner shall not engage in any illegal/criminal activity or any other act in violation of the law provisions or attempt to temper the evidence. The petition was disposed of on the aforementioned terms.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 382320 Arising Out of PS. Case No. 332 Year 2020 Thana BAJPATTI District Sitamarhi 1. Md. Mustufa Nadaf @ Bholu @ Md. Mustafa Nadaf @ Md. Mustufa aged about 52 years Gender Male son of Late Safi Nadaf. Tamanna @ Tamanne Sah @ Md. Tamanna aged about 31 years Gender Male son of Md. Sam Diya @ Yusuf Sah Both are resident of Village Muraul @ Moraul PS Bajpatti District The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State Dr. Alok Kumar Alok Advocate Mr. Ashok Kumar Singh No. 1 APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 06 08 2021 The matter has been heard via video conferencing. 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioners on 03.08.2021 which was allowed 3. Heard Dr. Alok Kumar Alok learned counsel for the petitioners and Mr. Ashok Kumar Singh No. 1 learned Additional Public Prosecutor for the 4. The petitioners apprehend arrest in connection with Bajpatti PS Case No. 332 of 2020 dated 16.08.2020 instituted Patna High Court CR. MISC. No.382320 dt.06 08 2021 under Sections 147 148 149 341 323 333 337 324 307 353 188 of the Indian Penal Code 5. The allegation against the petitioners who are named along with 17 others and 100 150 unknown persons is that at the time of immersion of image of God Krishna they were quarreling amongst themselves and they had also organized the same in violation of the COVID 19 guidelines promulgated by the government and when the informant who is a Sub Inspector of Police arrived with force at the place and tried to restore peace and order the accused attacked the force by brick bats lathi danda and sword and prevented them from discharging their official duty which also resulted in injuries to the police personnel in which two accused persons were arrested at the spot 6. Learned counsel for the petitioners submitted that they have been falsely implicated as they were not doing any overt act and have been named with ulterior motive by the Chukidaar. It was submitted that even as per the FIR a large mob was there and the three police personnel who have been injured have received simple injury. It was submitted that the petitioners have no other criminal antecedent. Learned counsel submitted that co accused Ismail Nadaf @ Md. Ismail Md Patna High Court CR. MISC. No.382320 dt.06 08 2021 Anwarul @ Md. Anwar Md. Kashif @ Kashif Hussain and Md Mahboob @ Mahfooj Shafi have been granted anticipatory bail by a coordinate Bench by order dated 22.06.2021 passed in Cr Misc. No. 40722 of 2020 and further that co accused Vinay Mahto Bhushan Kumar Govind Kumar Mithu Kumar Babloo Chaudhary and Chhathu Mahto @ Chhato Bhagat have also been granted anticipatory bail by judgment and order dated 16.07.2021 passed in Cr. Misc. No. 408721. Learned counsel submitted that the petitioners are similarly situated to the aforesaid accused who have been granted anticipatory bail 7. Learned APP submitted that the petitioners have been identified by the Chaukidar and have been named in the 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in view of the petitioners having no criminal antecedent and there being a mob of almost 150 persons and without there being any specific overt act alleged against any person and the injuries on three police personnel being simple as also the fact that many similarly situated co accused have been granted anticipatory bail the Court is inclined to grant pre arrest bail to the petitioners Patna High Court CR. MISC. No.382320 dt.06 08 2021 9. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioners be released on bail upon furnishing bail bonds of Rs. 25 000 twenty five thousand) each with two sureties of the like amount each to the satisfaction of the learned SDJM Pupri Sitamarhi in Bajpatti PS Case No. 3320 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that one of the bailors shall be a close relative of the petitioners that the petitioners and the bailors shall execute bond with regard to good behaviour of the petitioners and (iii that the petitioners shall also give an undertaking to the Court that they shall not indulge in any illegal criminal activity act in violation of any law statutory provisions tamper with the evidence or influence the witnesses. Any violation of the terms and conditions of the bonds or the undertaking shall lead to cancellation of their bail bonds. The petitioners shall cooperate in the case and be present before the Court on each and every date Failure to cooperate or being absent on two consecutive dates without sufficient cause shall also lead to cancellation of their bail 10. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioners to Patna High Court CR. MISC. No.382320 dt.06 08 2021 the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the 11. The petition stands disposed of in the (Ahsanuddin Amanullah J

Sec. 164-A Cr.P.C. can be assessed and evaluated by Trial Court during framing of charges: High Court Of Jammu & Kashmir And Ladakh

The Petitioners had sought quashing of the criminal proceedings, initiated against them on the basis of the challan laid before the trial court. The Hon’ble High Court Of Jammu & Kashmir And Ladakh, at Srinagar before the Hon’ble Mr. Justice Sanjay Dhar, held such an opinion in the matter of Jalal-ud-din Mir & Others Vs. State Of J&K Through Sho P/S Sumbal [CRMC No.279/2017].  The facts of the case were related to a challenge of criminal challan by the petitioner for offences under Section 366, 376, 109 RPC registered with Police Station, Sumbal. It was stated that the case presented before the Court of Judicial Magistrate, 1st Class, Sumbal. It was argued by the petitioners that a false FIR bearing No.104/2009 was registered against them under offences of Section 366, 376, 109 RPC, with Police Station, Sumbal, Sonawari. In this case, wedlock happened between petitioner no. 1 and the prosecutrix, in accordance with Muslim Law on 30.05.2009. Petitioner no.1 and the prosecutrix executed a Nikah Nama and a marriage agreement. Both of them lived together as husband and wife for two months. However, the parents of the prosecutrix being not happy filed a false FIR against the petitioner.  The statement recorded under Section 164-A Cr. P. C by the prosecutrix did not give rise to confidence and sounded absurd. The State being the respondent filed its status report wherein the Sumbal Police Station received a complaint from the father of the prosecutrix where it was alleged that the petitioner kidnapped his minor daughter and two more persons. However, after conducting their medical examination, it was found out that the prosecutrix was more than 18 years. Petitioner no.1 was arrested on  24.07.2009.  The prosecutrix’s statement was recorded under Section 164-A Cr. P. C, wherein she has implicated all the petitioners. Her recording stated that she was taken to Rajasthan in a vehicle and was kept there for 2 months. During the said time span, she was raped by petitioner no.1 six or seven times. After two months she was recovered by the police when she was brought back to Srinagar.  The Hon’ble High Court had viewed “… The contention of the petitioners that the petitioner No.1 had entered into wedlock with the prosecutrix cannot be gone into in these proceedings. The validity of the alleged marriage is a question which cannot be gone into in these proceedings.”  After considering all the facts and submissions, the Hon’ble High Court pronounced that “The power under Section 561-A of J&K Cr. P. C is not to be exercised as a matter of routine. Such power has to be exercised sparingly with great circumspection so as to avoid miscarriage of justice. The material on record of the charge sheet clearly suggests that it is not a case where it can be stated that no offence is made out against the petitioners or that there has been miscarriage of justice. Therefore, I am of considered view that this is not a fit case where inherent power under Section 561-A of J&K Cr. P. C can be exercised.  For the foregoing reasons, no ground is made out which would warrant exercise of power under Section 561-A of J&K Cr. P. C. Petition being devoid of merit is dismissed.”

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on:21.09.2021 Pronounced on:24.09.2021 CRMC No.279 2017 JALAL UD DIN MIR & OTHERS ... PETITIONER(S) Through: Mr. Syed Manzoor Advocate. STATE OF J&K THROUGH SHO P S SUMBAL …RESPONDENT(S) Through: Mr. Hakim Aman Ali Dy. AG. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE JUDGMENT Petitioners have challenged criminal challan arising out of FIR No.104 2009 for offences under Section 366 376 109 RPC registered with Police Station Sumbal which is stated to have been presented before the Court of Judicial Magistrate 1st Class Sumbal. According to the petitioners a false and frivolous FIR bearing No.104 2009 for offences under Section 366 376 109 RPC came to be registered against them with Police Station Sumbal Sonawari and after investigation of the case a challan came to be presented against them before the Court of Judicial Magistrate 1st Class Sumbal. It is the case of petitioners that petitioner No.1 had entered into wedlock with the prosecutrix on 30.05.2009 as per Muslim rites. A Nikah Nama and a marriage agreement was executed by petitioner No.1 and the prosecutrix copies whereof have been placed on record. It is alleged that petitioner No.1 2 CRMC No.279 2017 and the prosecutrix lived together as husband and wife for about two months but thereafter parents of the prosecutrix being not happy with the marriage lodged a false FIR against the petitioners. It is further alleged that the parents of the prosecutrix took away her custody from petitioner No.1 against her will and wish whereafter she entered into a wedlock with another person. It is further averred in the petition that in her statement recorded under Section 164 A Cr. P. C after about two and a half months of registration of the case the prosecutrix implicated the petitioner by speaking falsehood just to wreak vengeance upon them. According to the petitioners the statement of the prosecutrix recorded under Section 164 A Cr. P. C does not inspire confidence and contents thereof sound preposterous and absurd. On these grounds petitioners have sought quashment of the criminal proceedings initiated against them on the basis of the challan laid before the trial court. The respondent State has filed its status report wherein it has been averred that on 12.06.2009 a written complaint was received by Police Station Sumbal from the father of the prosecutrix wherein it was alleged that his minor daughter had been kidnapped by the petitioners and two other persons. The FIR came to be registered on the basis of this report and investigation of the case was set into motion. Statements of witnesses under Section 161 Cr. P. C were recorded whereafter on 24.07.2009 the prosecutrix was recovered from the possession of petitioner No.1. After conducting her medical examination commission of offence under Section 376 RPC was disclosed and it was also found that the prosecutrix was aged more than 18 years and as such instead of offence under Section 363 RPC 3 CRMC No.279 2017 offence under Section 366 RPC was added. Petitioner No.1 came to be arrested on 24.07.2009 and the statement of the prosecutrix under Section 164 A Cr. P. C was also recorded. After completion of investigation of the case offences under Section 366 109 RPC were found established against one Tariq Ahmad Mir and petitioners No.2 to 4. Besides this offence under Section 366 376 RPC was found established against petitioner No.1. Accused Tariq Ahmad Mir is stated to have died on 29.10.2013. I have heard learned counsel for the parties and perused the material on record including the record of the challan. A perusal of the statement of the prosecutrix recorded under Section 164 A Cr. P. C reveals that she has in clear terms implicated all the petitioners. According to her she was kidnapped by the petitioners from the house of her aunt which is located at Trehgam. She has gone on to state that she was taken in a vehicle to a place somewhere in Rajasthan and was kept there for about two months during which period petitioner No.1 committed rape upon her at least six or seven times. She has gone on to state that the petitioners would keep on changing her location from time to time and after two months she was brought back to Srinagar where police recovered her. She has further stated that petitioner No.1 was interested in marrying her. From the aforesaid statement of the prosecutrix it is clear that she has implicated all the petitioners and has levelled allegations of kidnapping and rape against them. So far as the contention of petitioners that statement of the prosecutrix was recorded after two months of registration of FIR is 4 CRMC No.279 2017 concerned the merits of the same cannot be determined in these proceedings. The evidentiary value of a statement recorded under Section 164 A Cr. P. C can be assessed and evaluated by the trial court at the time of framing of the charges and the same cannot be done in these proceedings. Similarly the contention of the petitioners that the petitioner No.1 had entered into wedlock with the prosecutrix cannot be gone into in these proceedings. The validity of the alleged marriage is a question which cannot be gone into in these proceedings. The power under Section 561 A of J&K Cr. P. Cis not to be exercised as a matter of routine. Such power has to be exercised sparingly with great circumspection so as to avoid miscarriage of justice. The material on record of the charge sheet clearly suggests that it is not a case where it can be stated that no offence is made out against the petitioners or that there has been miscarriage of justice. Therefore I am of considered view that this is not a fit case where inherent power under Section 561 A of J&K Cr. P. C can be exercised. For the foregoing reasons no ground is made out which would warrant exercise of power under Section 561 A of J&K Cr. P. C. Petition being devoid of merit is dismissed Judge “Bhat Altaf PS” Whether the order is speaking: Yes No Whether the order is reportable: Yes No

Mere circumstantial evidence cannot be a basis for conviction: Sikkim High Court

Circumstantial evidence cannot be the basis for conviction, and if it is to be the basis for so, then it must successfully rule out every other possibility, beyond reasonable doubt, wherein the accused is innocent. The High Court of Sikkim bench, consisting of Hon’ble Chief Justice Arup Kumar Goswami and Hon’ble Justice Bhaskar Raj Pradhan, decided upon the matters of reasonable doubt and circumstantial evidence under Section 25, 26 and 27 of the Evidence Act, in the case of Mani Kumar Rai @ Tere Naam v. State of Sikkim [Crl. A. No. 04 of 2020]. On 15.06.2017, complaint was registered under Section 174 of the Cr.P.C. regarding the death  of Krishna Prasad Rai, whose dead body was found in a forest area. After the investigation and post mortem was held the next morning, it was concluded that the death of the person was unnatural and homicidal. An FIR was registered under Section 302 IPC against an unknown person. After the examination of the witnesses and based on the revelations made, the appellant was arrested. Based on the Disclosure Statement made by the accused under Section 27 of the Evidence Act, the weapon of offence, a Khukuri (kind of knife) was seized. On completion of the investigation, the accused was framed under Section 302 IPC by the Sessions Court, to which the accused pleaded not guilty and claimed to be tried. The Sessions Judge opined that the circumstantial evidence clearly pointed out that the accused had committed the crimes with pre-mediation, intention and knowledge. It was also recorded that it was proved that the accused had confessed the crime to a few witnesses, upon which the Trial Court held him guilty as reasonable doubt was established. The learned counsel for the appellant submitted in the High Court that the Trial Court had erred in its findings since the evidence of witnesses suffered from major contradictions. The Public Prosecutor, placing reliance on Sahoo v. State of U.P. [AIR 1963 SC 40], submitted that the witness and the weapon had established beyond reasonable doubt that the accused was with the deceased before his death.

IN THE HIGH COURT OF SIKKIM : GANGTOK Criminal Appellate Jurisdiction) Crl. A. No. 020 Mani Kumar Rai @ Tere Naam Upper Wok South Sikkim at present State Central Prisons Rongyek East Sikkim State of Sikkim. … Respondent HON’BLE MR. JUSTICE ARUP KUMAR GOSWAMI CJ. HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN J. For the appellant : Ms. Gita Bista AdvocateDr. Doma T. Bhutia Public Prosecutor Sikkim For the respondent: Date of hearing Date of judgment : : Arup Kumar Goswami CJ) This appeal is directed against the judgement dated 28.11.2019 passed by the learned Sessions Judge South Namchi in S.T Case No.05 2017 convicting the appellant under Section 302 IPC and sentencing him to suffer imprisonment for life and to pay a fine of Rs.10 000 . By the judgement under appeal compensation of Rs.50 000 was also directed to be paid to the wife of the deceased under Sikkim Compensation to Victims or his Dependants Scheme 2016 by the Sikkim State legal Service Authority. On 15.06.2017 Kinga T. Bhutiawho at the relevant point of time was posted as Station House OfficerJorethang Police Station P.S) registered Jorethang P.S U.D case No.07 2017 under Section 174 Crl. A. No.020 Mani Kumar Rai vs State of Sikkim) Cr.P.C on the basis of a complaint made by Kharga Maya Manger Ward Panchayat Upper Wok to the effect that one Krishna Prasad Rai was found lying dead with face downwards at Forest Area Upper Wok and he endorsed the U.D Case to Sub Inspector Prashant Rai and had started investigation. However as it was about 09.00 pm being dark no further investigation could be carried out on that day. P.O was cordoned off and inquest was conducted over the dead body of the deceased on the morning of 16.06.2017 in presence of Kharka Maya Manger and Mani Kumar Subba. Inquest Report was prepared indicating the injuries noticed. A rough sketch mapwas drawn. Blood stains found in the kutcha foot path and some items found near the P.O were seized vide Exhibit 16 in presence of Prakash Manger and Dhan Bahadur Rai PW 18). After inquest was done PW 20 forwarded the dead body for post mortem examination initially to District Hospital Namchi and later on to STNM Hospital Gangtok because of non availability of Medico Legal Specialist at District Hospital Namchi. Post mortem on the deceased was conducted on 16.06.2017 by Dr. O.T Lepchaand Medico Legal Autopsy Report Exhibit 10) was prepared by him and he had also handed over to the Investigating Officer clothing blood in filter paper hair and nail clippings of the deceased to the Investigating Officer. Coming to the conclusion that cause of death of Krishna Prasad Rai was unnatural and homicidal an FIR was lodged by PW 20 before the SHO Jorethang P.S stating the above facts. Accordingly Jorethang P.S case No.30 2017 under Section 302 IPC was registered against unknown persons and the case was endorsed to Jigmee W. Bhutia PW 24). PW 20 handed over the seized articles and the related documents to SHO Jorethang P.S and charge of investigation was taken over by PW 24. Crl. A. No.020 Mani Kumar Rai vs State of Sikkim) He examined witnesses and based on the revelations made the appellant was arrested vide Exhibit 31 on 16.06.2017 at 06.50 p.m. After arrest the accused was examined under Police custody on 16.06.2017 by Dr. Anand Subba the Medical Officer of Jorethang PHC. No injury was noticed on his body by him and he had prepared a Medical Report who examined him found no past or present history of mental illness and he noted that the accused had given a history of alcohol addiction for the past 15 years. On 22.06.2017 the accused was brought to Jorethang CHC and his blood sample was collected in presence of Om Prakash Gupta PW 8) who had gone there for his own treatment and Rinku Raiwho had gone for treatment of his ailing son. Based on a statement stated to be a Disclosure Statementmade by the accused under Section 27 of the Evidence Act in presence of Rajesh Sarkar and Pravesh Lohagan the weapon of offence a khukuri was seized by PW 24 on 18.06.2017 under Seizure Memo and on the basis of his application dated 31.07.2017 statement of Sarika Raiand Himalaya Raiand Laxuman Thapawere recorded by the Magistrate under Section 164 Cr.P.C. Crl. A. No.020 Mani Kumar Rai vs State of Sikkim) On completion of investigation PW 25 had submitted a Charge Sheet on 06.09.2017. After receipt of RFSL report dated 17.09.2017 he had also submitted a supplementary charge sheet. In the Court of learned Sessions Judge South S.T Case No.05 2017 was registered. On consideration of materials on record charge was framed against the appellant under Section 302 IPC. The same being read over and explained to the appellant he pleaded not guilty and claimed to be tried. During trial prosecution examined 25 witnesses and after closure of the evidence of the prosecution statement of the accused was recorded under Section 313 Cr.P.C where he had taken a plea of denial. However no witness was examined on his behalf. The learned Sessions Judge opined that the circumstantial evidence produced by the prosecution in the form of evidence of PW 1 PW 9 PW 10 PW 11 PW 12 Pw 14 PW 19 and PW 21 unerringly pointed out that it was the accused who had committed the crime with pre mediation intention and knowledge. The learned Trial Court noted that the evidence of PW 11 PW 12 and PW 14 proved that the deceased and the accused were with them at a labour camp in the evening of the day before the discovery of the body of the deceased. It was also recorded that it is proved by PW 21 that accused had confessed in his presence as well as in the presence of PW 24 and another witness that he had stabbed the deceased with his khukurievidence on record clearly proved that it was the accused who had killed the deceased. She submits that the evidence of PW 1 and PW 10 upon which much reliance was placed by the learned Trial Court suffers from gross contradictions. She submits that according to PW 5 dead body was first noticed by Suresh Chettri but he was not examined without any explanation. Similarly Bari in whose residence the accused was working as a helper was not examined. Such non examination of material witnesses casts doubt about the prosecution case she contends. It is submitted that approximate time of death of the deceased was also not indicated in the Autopsy Report Exhibit 10 and therefore in any view of the matter last seen theory sought to be projected by the prosecution has no legs to stand. It is submitted by her that though in the remarks column of Exhibit 22 the Seizure Memo it is indicated that one khukuri was recovered from the kitchen of the accused as per his Disclosure Statement recorded under Section 27 of the Evidence Act such recovery is belied by the evidence of PW 22 and therefore no reliance can be placed on the said so called Discovery Statement more so when it was impossible for the accused to have pointed out the place where the khukuri was kept as the hands of the appellant was tied from behind by a rope. She has placed reliance on the judgment in the case of Pulkuri Kotayya and others vs. The King Emperor reported in AIR 1947 PC Dr.Doma T. Bhutia learned Public Prosecutor submits that evidence of PW 1 and PW 10 goes to show that the appellant had made an ominous statement two days before the deceased was found dead that they would have to observe religious rites and the evidence of PW 1 further goes to show that the appellant had stated before her that he would eliminate a person who had annoyed him. Such utterances as the events unfolded are pointer to the fact that the appellant was contemplating to murder the deceased she submits. It is contended by her that the evidence of PW 3 Crl. A. No.020 Mani Kumar Rai vs State of Sikkim) PW 4 PW 11 PW 12 and PW 14 establishes beyond reasonable doubt that the accused was in the company of the deceased before his death. She asserts discovery of khukuriat the instance of the accused is firmly established on the evidence on record and therefore the learned Trial Court was justified in convicting the appellant. She has placed reliance on the judgements in the cases of Sahoo vs State of U.P reported in AIR 1963 SC 40 Himachal Pradesh Administration vs. Om Prakash reported in AIR 1972 SC 975 Kishore Bhadke vs. State of Maharashtra reported in AIR 2017 SC 279 and Gajoo vs. State of Uttarakhand reported in 2012SCC 532. We have considered the submissions of the learned Counsel for the parties and have examined the materials on record. That the deceased had died a homicidal death is not in dispute. PW 9 who conducted autopsy had found the following ante mortem injuries on the deceased: “1. Incised chop wound 10 who was then in the kitchen. According to her the accused told PW 10 in her presence the English translation of which is something to the effect that after about two days the family members would have to observe “Chhak Barnu”recorded on 04.08.2017 she had stated in similar lines. In cross examination however she admitted that she was not present in the kitchen but was present in another room adjacent to the PW 10 the wife of the deceased had stated in her evidence that the accused had told PW 1 that they have to observe death rituals in two days. According to her the accused failed to notice her as she was in the extreme corner of the kitchen and she had heard the accused asking PW 1 about her whereabouts. She stated that as the accused and her husband used to be together on previous occasions PW 1 had asked the accused the whereabouts of her husband and as stated by PW 1 she also deposed that PW 1 had made telephone calls but the phone was found to be switched off. PW 10 in her statement under Section 164 Cr.P.C had given the same version. PW 2 stated that the accused used to work in her household as a domestic helper earlier and the deceased used to go to his house taking the Crl. A. No.020 Mani Kumar Rai vs State of Sikkim) foot path in front of her house. She stated that on his last visit to her house the deceased was accompanied by four friends from Rabangla but the accused was not with them though subsequently the accused had come and left after some time. PW 3 who is a petty contractor deposed that the deceased was working as a petty contractor at a different site under a different contractor. The evidence of PW 3 is to the effect that on 14.06.2017 he had met and talked with the deceased who is also known as Dilay. He had gone to the house of one Bariand the accused had also come there after about 5 minutes. He did not know where the deceased had gone and was also not aware after how much time the accused had left the house of Bari. In his cross examination he stated that the accused used to stay in the house of Bari. PW 4 is also a petty contractor who had taken the work of construction of a retaining wall of a newly constructed road along with PW 3 PW 16 and three others. He deposed that all of them used to go to the house of Bari for tea milk after work. The deceased was also a petty contractor in respect of a different site one kilometre away and his labour camp was on the way to the house of Bari. On 14.06.2017 the deceased had accompanied him to the house of Bari and on being asked to return a measuring tape which he had taken earlier the deceased had left the house of Bari but he did know where the deceased had gone. He deposed that after about 5 6 minutes the accused came to the house of Bari and had left again after 5 minutes. in the house of Bari. He also deposed in cross examination that the accused was staying PW 5 deposed that on 14.06.2017 at about 2.00 3.00 pm he had received a call from Prakash Rai brother of the deceased informing him Crl. A. No.020 Mani Kumar Rai vs State of Sikkim) about the recovery of the dead body of his brother and requesting him to accompany Jorethang police to the P.O as he resided in Jorethang. According to him he had reached the P.O on his own as the police had already left. He had remained in the P.O with police the whole night and he was a witness to Inquest Report Exhibit 5. He stated that he came to learn at the P.O that one Suraj Chettri who was residing with the family had seen some blood stains on the foot path and he discovered the dead body after following the trail of blood stains. PW 11 stated that he had taken a contract along with PW 12 and deceased from PW 14 for construction of a retaining wall of a new road and while he and PW 12 used to stay in the labour shed the deceased used to work from his house which is located at a distance of 20 minutes. On the relevant day at around 04.30 to 5.00 pm PW 14 had brought some meat and liquor and at around 05.30 pm the accused had come and had some food. After 15 20 minutes of the deceased having left the shed the accused had also left. Thereafter they had taken meal and had gone to the house of the accused where there were four other labourers also. While he along with PW 12 went inside PW 14 left for his house. But neither the accused nor the deceased was present in the house of the accused. On the evening of the following day they learnt from Bari the owner of the house where the accused used to reside during the relevant time that the deceased died as a result of a fall from a height. In cross examination PW 11 stated that in the kitchen of Bari they used to play carrom and charge mobile phones. There are two houses and a separate kitchen of Bari and an old man used to reside in the wooden house where the accused also resided. He stated that the house of the deceased was located below the house of the accused and house of PW 14 is located below the house of deceased and all of them have to take the same road to Crl. A. No.020 Mani Kumar Rai vs State of Sikkim) go to their respective houses. He stated that PW 14 had left the shed after the deceased had left. PW 12 deposed in similar lines as PW 11. He further stated that when he had reached the house of Bari neither the deceased nor the accused was present there. He also deposed that PW 14 had left the house by the same route after the deceased had left for his house. As noted earlier PW 13 is a witness to the Inquest ReportPW 17 is a cook and he had come for a short visit to join his uncle who is a petty contractor. Name of the uncle is however not indicated. His evidence does not throw any light and therefore his cross examination also declined. PW 21 deposed that in the month of June 2017 there was a fight between the accused and deceased at Wok Chemchey and that he had confessed in his presence as well as in presence of PW 24 and another witness that he had stabbed the deceased with his khukuri which was carried by him and that he had also stated that he can show the place where he had kept the weapon of offence. Accordingly he along with another witness and PW 24 accompanied by the accused had gone to the house of the accused where he used to live and on reaching there the accused pointed out the place in the kitchen where he had kept the khukuri. Accordingly the khukuri was recovered and seized and he had affixed his signature in the Seizure Memoto which he was a witness. He also identified the material objects seized vide Exhibit 23. He stated that after the Disclosure Statement Exhibit 25) was recorded they had recovered materials objects including the khukuri. In cross examination he admitted that when the accused was taken to P.O his hand was tied with rope from behind. PW 22 had also accompanied PW 24 and PW 21 along with the accused to the house of the accused. He stated that the accused showed them the weapon of offence which was kept by him above the „chulha‟ inside Crl. A. No.020 Mani Kumar Rai vs State of Sikkim) the kitchen. He was also witness to Exhibit 22 and Exhibit 23. He had also identified the material objects seized by the Police. In cross examination he stated that he went to Jorethang Police station to stand as witness on being called by his brother in law. He stated that PW 24 and his brother in law had told him that the accused had killed a boy. He stated that Exhibit 25 was prepared after completion of search and seizure and that he had signed in Exhibit 25 after the recovery of alleged weapon of offence at Chemchey. He stated that the hand of the accused was tied with a rope when he was taken to his residence. He also stated that accused used to stay in the house as a helper. PW 23 is a Junior Scientific Officer working in the Central Forensic Science Laboratory Kolkata. On the basis of result of examination of specimen it was concluded by her as follows: “1.The human blood stains present on exhibit B2 MO XI belongs to Mr. Mani kumar Rai. 2.The human blood stains present on exhibit D MO XXIII(Blood stained mud) exhibit G MO XIX and exhibit H MO XXIbelongs to the deceased. 3.Human blood present on exhibit B5 MO XII(Quilt cover) is from another male individual. 4.The genetic profile could not be developed from exhibit A MO VI B1 MO IX B3 MO X B4 MO XIV and E MO XXV. But presence of XY peak shows male individual(s).” From the conclusion as indicated above it appears that blood of the deceased was not detected in any of the aforesaid items belonging to the accused. Though blood stain of the accused is found in Exhibit B2 MO 11 it is to be noticed that when the accused was examined on 16.06.2017 by PW Crl. A. No.020 Mani Kumar Rai vs State of Sikkim) 7 no injury was detected on his body and therefore blood stain in Exhibit B2 MO 11 is not of any consequence. In Sharad Birdhichand Sarda vs. State of Maharashtra reported in4 SCC 116 the following observations were made: “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: 1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra2 SCC 793 : 1973 SCC1033 1973 Crl LJ 1783] where the observations were made: p. 1047] “Certainly it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between „may be‟ and „must be‟ is long and divides vague conjectures from sure conclusions.” 2) the facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say they should not be explainable on any other hypothesis except that the accused is guilty tendency 3) the circumstances should be of a conclusive nature and Crl. A. No.020 Mani Kumar Rai vs State of Sikkim) 4) they should exclude every possible hypothesis except the one to be proved and 5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” The evidence adduced by the prosecution is circumstantial in nature with no direct proof of the perpetration of the alleged offence by the appellant. It is no longer res integra that circumstantial evidence if is to form the basis of conviction must be such so as to rule out every possible hypothesis of innocence of the accused and must without any element of doubt unerringly point to such culpability. A careful analysis of the evidence of PW 3 PW 4 PW 11 PW 12 and PW 14 would indicate that though at some point of time along with them the deceased and the accused were present their evidence does not even remotely suggest that both of them were seen together alone in the evening of 14.06.2017 or any point of time thereafter. The accused leaving them after the deceased had left cannot lead to an inference that the accused had followed the deceased more so when there is contradiction with regard to time that had separated their respective departures. While PW 11 and PW 12 had stated that the accused left after 15 20 minutes of departure of the deceased PW 14 stated that the accused had left almost immediately. Having regard to the evidence on record the theory of “last seen together” as an incriminating factor qua the appellant is thus of no avail to the PW 3 PW 4 PW 11 PW 12 and PW 14 had not deposed that there was any fight or ill feeling between the deceased and the accused. They were most likely persons who could have known if there was a fight Crl. A. No.020 Mani Kumar Rai vs State of Sikkim) between the accused and the deceased. However PW 21 referred to a fight without amplifying whether he had witnessed the fight. He did not depose that he was at Chemchey on the day when there was a fight. PW 21 is a resident of Jorethang and distance between Jorethang and the P.O. is 38 kms. Even PW 1 and PW 10 did not say that there was enmity between the accused and deceased. Therefore in absence of any corroboration we are not inclined to place any reliance with regard to the fight as deposed by PW 21 who for reasons not known was called to the Police Station to stand witness by PW 24. The Disclosure Statement Exhibit 25 reads as follows. “This is my true statement that on 14 06 2017 at evening time at around 07.30 there had been an argument between me and Krishna Prasad Rai just below my house. I took out the „khukhuri‟ that had been strapped on my waist and attacked Krishna Prasad Rai on his neck. That „‟khukhuri‟I have kept in a corner of the wooden kitchen which is just beside my house and I can show the place where I have kept the „khukhuri‟the scope and ambit of Section 27 of the Evidence Act had been stated and the relevant portion of the same is extracted herein below: “it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user or the past history of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I Crl. A. No.020 Mani Kumar Rai vs State of Sikkim) will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the The Apex Court in Anter Singh vs. State of Rajasthan reported in 10 SCC 657 summed up various requirements of Section 27 of Evidence Act as follows: “(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of fact discovered must be established according to prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. The fact must have been discovered. The discovery must have been in consequence of some information received from the accused and not by the accused s own act. The person giving the information must be accused of any offence.He must be in the custody of a police officer. The discovery of a fact in consequence of information received from an accused in custody must be deposed to. Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.” Crl. A. No.020 Mani Kumar Rai vs State of Sikkim) The policy underlying Section 25 and 26 of the Evidence Act is to make it a substantive rule of law that confession whenever and wherever made to the police or while in the custody of the police to any person whosoever unless made in the immediate presence of a Magistrate shall be presumed to have been obtained under the circumstances mentioned in Section 24 and therefore inadmissible except so far as provided by Section 27 of the Act. Section 27 of the Indian Evidence Act is based on the view that if a fact is actually discovered in consequence of information given some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. The only portion of the Disclosure Statement which is admissible under Section 27 of the Evidence Act is the statement of appellant that he had kept the “khukuri” in the corner of the kitchen which is beside his house and he can show the place where he had kept the “khukuri”. The rest of the Disclosure Statement is inadmissible being confessional and prohibited by Section 25 and 26 of the Evidence Act. The Disclosure Statement Exhibit 25 which is reduced to in the form of a Memorandum shows that the place of Memorandum is Jorethang Police Station and the time shown as 11.20 am. Under the heading „details of further Memorandum‟ at Sl. No. 8 recording the time as 3.40 pm it is stated that as per the Disclosure Statement recorded under Section 27 of the Evidence Act one khukuri with description indicated therein was recovered from the wooden kitchen of the accused. In the Seizure List Exhibit 22) also time was shown as 3.40 pm of 18.06.2017. In Sl. No. 13 of Exhibit 22 under the heading „remarks of Investigating Officer‟ it is noted that the seized exhibit i.e. the khukuri was disclosed and recovered as per the Disclosure Statement recorded under Section 27 of the Evidence Act. However evidence of PW 22 goes to show that Exhibit 25 was prepared after completion of search and seizure which negates that recovery was Crl. A. No.020 Mani Kumar Rai vs State of Sikkim) made after recording of Disclosure Statement. It is also seen from the evidence of PW 22 that he had signed in Exhibit 25 after recovery of the alleged weapon of offence at Chemchey though the Memorandum was written at Jorethang Police Station. Evidence of PW 22 casts a serious doubt about the Disclosure Statement and the alleged discovery of the khukuri. It is also surprising that two witnesses had been taken by PW 24 to a distance of 38 kms as if there would be no witness available there. It is also to be noted that genetic profile could not be detected from Exhibit A the khukuri. PW 3 PW 4 and PW 11 had all stated that the accused was staying in the house of Bari. The accused in his statement under Section 313 Cr.P.C stated that the khukuri belongs to his landlady and that the police took out the khukuri of his landlady from the kitchen. It is to be stated that khukuri is a very common household implement in these areas. It is surprising that Bari was not even cited as a witness in the Charge Sheet. PW 3 PW 4 PW 7 PW 10 PW 11 PW 12 and PW 14 have all referred to regularly going to the house of Bari. It appears that PW 2 is the daughter in law of Bari‟ whose name is Nar Maya Mangar. PW 2 deposed that the accused used to work in her house as domestic help and after he had left their house he had started working as a labourer. From her evidence it does not appear whether she was residing with the Bari or living separately. In the circumstances of the case it is also very surprising that Suraj Chettri who had discovered the dead body was not examined as a witness. In Gajoo the Hon‟ble Supreme Court had observed that while in case of defective investigation the Court has to be circumspect while evaluating the evidence it would not be right in acquitting an accused person solely on account of defect as to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. Crl. A. No.020 Mani Kumar Rai vs State of Sikkim) In Sahoo the Hon‟ble Supreme Court had held that a confessional soliloquy is a direct piece of evidence and Dr. Doma T. Bhutia sought to contend that the statement made by the accused as deposed by PW 1 and PW 10 fall into the category of a confessional soliloquy. We are unable to accept the aforesaid contention. There is a serious contradiction in the evidence of PW 1 and PW 10. While PW 1 stated that the statement was made to PW 10 PW 10 on the contrary stated that accused was talking to PW 1 and the accused had not even noticed her. It is not possible to reconcile such a contradiction. It is also established that PW 1 and PW 10 were not in the same room. Furthermore it is also noticed that PW 1 and PW 10 did not refer to any conversation between them consequent upon the statement allegedly made by the accused that they have to perform death ritual which would have been the normal course of conduct if the statement was really alarming. Moreover the statement even if accepted on face value is not an admission of guilt. 44. In Omprakash the Hon‟ble Supreme Court had observed that benefit of doubt to which the accused is entitled is reasonable doubt — the doubt which rational thinking men will reasonably honestly and conscientiously entertain. It is further held that it does not mean that the evidence must be so strong as to exclude even a remote possibility that the accused could not have committed the crime. If that were so the law would fail to protect society as in no case such a possibility can be excluded .It will give room for fanciful conjectures or untenable doubts and will result in deflecting the course of justice if not thwarting it altogether. The mere fact that there is only a remote possibility in favour of the accused is itself sufficient to establish the case beyond reasonable doubt. On due appreciation of the evidence on record we are of the opinion that that the prosecution has not been able to establish the guilt of the Crl. A. No.020 Mani Kumar Rai vs State of Sikkim) accused beyond reasonable doubt and in the given facts and circumstances of the case the appellant is entitled to benefit of doubt. Resultantly the appeal is allowed. The impugned conviction and sentence is set aside. The appellant is set at liberty. Lower Court record be sent back. Bhaskar Raj Pradhan) Judge Chief Justice

An information seeker cannot be allowed to expand the scope of his RTI enquiry at appeal stage.: Appellate Authority, SEBI.

The appellate authority under the RTI (Right to Information) Act of the Securities and Exchange Board of India comprising of Mr. Anand Baiwar adjudicated in the matter of Sudikhya Misra v CPIO, SEBI, Mumbai (Appeal No. 4292 of 2021). The appellant, Mr Sudikhya Misra had filed an application via RTI MIS Portal on the 4th of June, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 3rd of June, 2021, filed by the appellate. After receiving a letter from the respondent on 3rd of June, 2021 on his application, the appellate decided to file an appeal on the 4th of June 2021. In his application, the appellate was seeking the following information with respect to his refund application in the matter of Sahara India Real Estate Corporation Ltd. (SIRECL) and/or Sahara Housing Investment Corporation Ltd. (SHICL): (1) What is the status of my refund ? (2) When will I get my refund ? The respondent, in response to the queries, informed that SEBI has approved his application for refund and the same has been referred to Sahara India Real Estate Corporation Ltd. for their confirmation and informed that SEBI may release the eligible amount in due course, directly into the bank account (through NEFT/RTGS), after receipt of confirmation from Sahara. Further, a credit initiation letter intimating the credit of amount into the bank account will also be issued after initiating transfer of eligible amount. The appellant did not mention any specific grounds for filing the appeal. However, the appellant, in his appeal sought the following information: (1) Why is it delay for refund (since 8 months after reply from me)? (2) What is the eligible amount? (3) When money will be refunded? The appellant authority found no deficiency in the response provided by the respondent in providing information regarding the status of appellant’s refund application (Query 1). In this, Mr Baiwar noted that the appellant has not made any specific submission with respect to the response provided by the respondent and hence their queries were adequately responded to. For query number 2, the appellate authority, Mr Anand Baiwar, made reference to the matter of Hon’ble CIC, in the matter of Shri Shantaram Walavalkar vs. CPIO, SEBI (Decision dated January 17, 2013), held: “… we would also like to observe that, under the Right to Information (RTI) Act, the citizen has the responsibility to specify the exact information he wants; he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO…”. In view of the same, he found that the respondent did not have an obligation to provide such clarification or opinion under the Right to Information Act, 2005. Notwithstanding the same, he also noted that the respondent provided information regarding the steps that will be taken for transferring the amount, after receipt of confirmation from Sahara. Upon this, he found that the query has been adequately addressed and hence, did not find any deficiency in the response provided.

Appeal No. 42921 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 42921 Sudikhya Misra CPIO SEBI Mumbai The appellant had filed an application dated June 04 2021under the Right to Information Act 2005and or Sahara Housing Investment Corporation Ltd.What is the status of my refund 2) When will I get my refund The respondent in response to the queries informed that SEBI has approved his application for refund and the same has been referred to Saharas for their confirmation. It was also informed that SEBI may release the eligible amount in due course directly into the bank accountafter receipt of confirmation from Saharas. Further a credit initiation letter intimating the credit of amount into the bank account will also be issued after initiating transfer of eligible amount. 4. Ground of appeal The appellant has not mentioned any specific ground for filing the appeal. The appellant in his appeal has sought the following information: “(1) Why is it delay for refund2) What is the eligible amount 3) When money will be refunded ” Appeal No. 42921 5. Query number 1 On consideration I find that the respondent has provided information regarding the status of appellant’s refund application. I note that the appellant has not made any specific submission with respect to the response provided by the respondent. In view of the same I find that the respondent has adequately addressed the query by proving the information available with him. Accordingly I do not find any deficiency in the response. 6. Query number 2 Further the appellant in his appeal sought information as to when he would get refund in the matter. I find that the same is in the nature of eliciting a clarification or opinion regarding a future event which cannot be construed as an information available on record. In this regard I note that the Hon’ble CIC in the matter of Shri Shantaram Walavalkar vs. CPIO SEBI held: “... we would also like to observe that under the Right to InformationAct the citizen has the responsibility to specify the exact information he wants he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO…”. In view of the same I find that the respondent did not have an obligation to provide such clarification or opinion under the RTI Act. Notwithstanding the same I note that the respondent has provided information regarding the steps that will be taken for transferring the amount after receipt of confirmation from Saharas. I find that the query has been adequately addressed and I do not find any deficiency in the response. I note that the appellant in his appeal inter alia sought information regarding reason for delay in refund and the eligible amount to be refunded. I find that the said requests were raised by the appellant for the first time in this appeal. As held by the Hon’ble CIC in Harish Prasad Divedi vs. Bharat Petroleum Corporation Limited decided on January 28 2014) an information seeker cannot be allowed to expand the scope of his RTI enquiry at appeal stage. In view of the same I find that these requests do not warrant consideration at this In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed. ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA stage. Place: Mumbai Date: July 02 2021

‘Other person’ under section 401 of the CrPC does not include the complainant: Delhi High Court

Asper sub-section 2 to Section 401 CrPC no order shall be passed to the prejudice of the accused or ‘other person’ unless he has a liberty of being heard either personally or through pleader. The words ‘other person’ refers to person akin to the accused and it does not include the complainant. This was held by the Hon’ble Justice Yogesh Khanna in the case of Vipul Gupta and S.P. Gupta Vs. State and Anr. [CRL.M.C. 1163/2021 & CRL.M.A.5948/2021; and CRL.M.C. 1186/2021, CRL.M.A.6061 and 6251 of 2021] on the 06thof August before the Hon’ble High Court of Delhi at New Delhi. The brief facts of the case are, the learned Revisional Court had directed the petitioner herein to file an amended memo of parties by impleading the complainant defacto as respondent No.2, whereas the complainant has no role to play before learned Revisional Court and it’s only the learned Public Prosecutor for the State, who has to take realm of the case before learned Session’s Court. It is argued per sub-section 2 to Section 401 Cr P C no order shall be passed to the prejudice of the accused or other person unless he has a liberty of being heard either personally or through pleader. It is argued the words other person refers to person akin to the accused and it does not include the complainant and hence the learned Revisional Court erred to make the complainant defacto as respondent No.2. These petitions are filed to assail an impugned order dated 05.04.2021 by the learned Principal District and Sessions Judge (HQs), Delhi (hereinafter referred to as the Revisional Court), against the orders dated 01.02.2021, 22.02.2021 and 06.03.2021 passed by the learned Additional Chief Metropolitan Magistrate, Tis Hazari Courts, Delhi in case State vs S.P.Gupta & Others. The counsel for the petitioner submits Section 401(2) Cr P C does not give any right to the complainant to be heard in revision before the learned Session’s Court and hence the impugned order suffers from illegality. The counsel referred to the decision in Mahabunnisa Begum vs. State of Telangana and Ors. MANU/AP/1128/2017, wherein, the crux of the decision “(i) the word other person under Section 401(2) Cr P C is either an accused or a person similarly placed to the accused; (ii) in a Session’s trial, the complainant can only assist the learned Public Prosecutor at the stage of enquiry, trial or appeal and may submit written arguments only after the evidence is closed; (iii) the complainant cannot be given an opportunity of being heard in an anticipatory bail application; (iv) in a case filed on a police report, the public person has no locus standi after the cognizance is taken; (v) in a Magistrate triable case, permission may be granted to the person concerned to appoint any counsel to conduct the prosecution on his behalf; (vi) the prosecution in Session’s case cannot be conducted by any person other than the learned Public Prosecutor; and (vii) the reason need be given if an order Section 401(2) Cr PC is passed to the prejudice of the accused.” The arguments of the respondent is the impugned order is perfectly justified and petitions need to be dismissed at the outset. The judges heard the submission of both the parties and referred to the judgment in the case of A.K.Subbaiah & Ors vs. State of Karnataka & Ors. 1987 SCC (4) 557, wherein it was held that, “Sub-clause 2 of this Sec. talks of a situation where an order is being passed against any person and it was contended by the learned counsel that the section not only talks of accused persons but also of “or other person unless he has had an opportunity of being heard.” Apparently this sub- clause contemplates a situation where a person may not be an accused person before the court below but one who might have been discharged and therefore if the revisional court after exercising jurisdiction under Sec. 401 wants to pass an order to the prejudice of such a person, it is necessary that that person should be given an opportunity of hearing but it does not contemplate any contingency of hearing of any person who is neither party in the proceedings in the court below nor is expected at any stage even after the revision to be joined as party. Learned counsel for the appellants was not in a position to contend that even if any contention of the appellants is accepted and the High Court accepts the revision petition as it is, there will be any situation where an order may be passed against these two respondents or they may be joined as parties to the proceedings. Reference to Section 401 clause 2 is of no consequence so far as these two respondents are concerned. In the light of the discussions above therefore it is clear that the question about anyone else being instrumental in getting the prosecution launched or questions which are foreign are not to be considered in a revision where the issue of process is being challenged and therefore the further question as to whether the party against whom an allegation is made is or is not a necessary party in the proceedings also is of no avail. The scope of the revisional jurisdiction of the High Court as we have discussed earlier clearly indicates that the High Court is only expected to see the legality, correctness or the propriety of the order, which is an order of issue of process, these things could only be seen by looking into the complaint and the accompanying papers and evidence if any which were before the court below. In our opinion, the High Court was right in deleting the names of the two respondents.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 30th July 2021 Decided on : 06th August 2021 CRL.M.C. 1163 2021 & CRL.M.A.5948 2021 and CRL.M.C. 1186 2021 CRL.M.A.6061 and 62521 VIPUL GUPTA and S. P.GUPTA ..... Petitioner s Through : Sethi Mr.Sandeep Advocate with Mr.Vijay Kumar Aggarwal Mr.Ashul Aggarwal Mr.Hardik Sharma Mr.Shekhar Pathak and Mr.Parth Parashar ..... Respondents Through : Mr.M.S.Oberoi APP for the State. Mr.Dayan Krishnan Mr.Mohit Mathur Aggarwal Senior Advocates with Mr.Narender Mann Mr.P.S. Singhal Mr.Ashok Kumar Sharma and Mr.Jai Allagh Advocates for respondent No.2. STATE & ANR. HON BLE MR. JUSTICE YOGESH KHANNA YOGESH KHANNA J. These petitions are filed to assail an impugned order dated 05.04.2021 passed in Crl.Revision No.77 2021and Crl.Revision No.76 2021 by the learned Principal District and Sessions Judge Delhi against the orders dated 01.02.2021 Crl.M.C.Nos.1163 2021 and 1186 2021 22.02.2021 and 06.03.2021 passed by the learned Additional Chief Metropolitan Magistrate Tis Hazari Courts Delhi in case State vs S.P.Gupta & Others. It is the grievance of the learned senior counsel for the petitioners vide the impugned order the learned Revisional Court had directed the petitioner herein to file an amended memo of parties by impleading the complainant defacto as respondent No.2 whereas the complainant has no role to play before learned Revisional Court and its only the learned Public Prosecutor for the State who has to take realm of the case before learned Session’s Court. It is argued per sub section 2 to Section 401 Cr P C no order shall be passed to the prejudice of the accused or other person unless he has an liberty of being heard either personally or through pleader. It is argued the words other person refers to person akin to the accused and it does not include the complainant and hence the learned Revisional Court erred to make the complainant defacto as respondent No.2. The main issue thus raised is qua locus standi. It is argued by respondents the power of revision admittedly is a suo moto power of correction and supervision over the subordinate Courts to call for the records and to correct orders. One can say it is discretion of the revisional Court to hear any one whom it needs to hear. It is argued Cr P C when amended in 2009 victim was given right to have a say in criminal proceedings. The question is if such right can be extended to revisions before the learned Session’s Court. Reference was made to Crl.M.C.Nos.1163 2021 and 1186 2021 Pandharinath Tukaram Raut vs. Manohar Sadashiv Thorve MANU MH 1823 2014 wherein the Court held: further issue regarding the order passed 7. Before going maintainability of the Criminal Revision Application as raised by Mr. Bhushan Deshmukh the learned Counsel for the Respondent Nos. 1 2 5 and 9 be dealt with. Mr.Deshmukh placed reliance on the decision of the Supreme Court of India in the case of Subramanian Swamy and Ors. V s. Raju Through Member Juvenile Justice Board and Anr. reported in MANU SC 0849 2013 :10 SCC 465 to support his contention that in a prosecution initiated by the State a third party stranger would not have any right to participate. I have gone through the said reported judgment and I am unable to hold that this judgment lays down a proposition that in a prosecution initiated by the State a private party has no right to the course of said prosecution by filing an application for revision. Moreover in this case the Applicants are the victims of the alleged offences and by no stretch of imagination can be said to be strangers to the proceedings. Mr. Deshmukh also placed reliance on a decision rendered by a learned Single Judge of the Karnataka High Court in the case of M s. Kerala Transport Co. Vs. D.S. Soma Shekar and Ors. reported in MANU KA 0027 1981 : 1982 CRI. L.J. 1065 in support of his contention that the First Informant has no locus standi to file a revision in a prosecution initiated by the State. Indeed it appears that the observations made by the learned Single Judge support the contention advanced by Mr. Deshmukh but with respect I am unable to agree with the view expressed by the learned Judge in the said judgment. It is clear from the scheme of the relevant provisions that the revisional power belongs basically to the Court. The Court can call for the record and proceedings even suomotu and revise the order. When the court has been given powers to revise an order suo motu it would be rather futile to raise the issue of locus standi. In fact a party applying for revision is only drawing the attention of the court to a particular alleged illegality impropriety or irregularity. Moreover as aforesaid in this case the Applicants are not strangers to the prosecution in as much as though the prosecution has been initiated by the State the Applicants are the victims of the offence. The Applicant No. 1 is the one who initiated the process of Crl.M.C.Nos.1163 2021 and 1186 2021 criminal law against the accused persons. The contention that the Criminal Revision Application is not maintainable as the Applicants have no locus standi to file the same is therefore untenable and is rejected. Gyan Singh vs. Respondent: State of M.P. and Ors. MANU MP 0212 2017 wherein the Court noted: 10. In view of the specific provision of section 401 of CrPC it is clear that no order prejudicial to the interest of any other person shall be passed unless he had an opportunity of being heard either personally or through his Counsel. Thus when a criminal revision is filed by an accused against the order taking cognizance or against the order framing charges the complainant is required to be heard. Whenever any order which is in favor of the complainant is challenged by the accused then the complainant is required to be heard. Himanshu Adya vs. State of MP & Ors. MANU MP 0213 2017 wherein the Court noted: “12. This Court in the case of Gyan Singh v. State of M.P. 2017(2) JL J 71 : Criminal Revision No. 1215 of 2015 order dated 28.2.2017] has held as under: In view of the specific provision of section 401 2) of CrPC it is clear that no order prejudicial to the interest of any other person shall be passed unless he had an opportunity of being heard either personally or through his Counsel. Thus when a criminal revision is filed by an accused against the order taking cognizance or complainant is required to be heard. Whenever any order which is in favor of the complainant is challenged by the accused complainant is required to be heard. Isa Khan & Ors. framing charges the order vs. State of Rajasthan & Ors. MANU RH 0985 2006 wherein the Court noted: 8. xxxx The expression "other person" in Sub sectionof Section 401 of the Code includes a complainant. Learned Counsel Crl.M.C.Nos.1163 2021 and 1186 2021 Niranjan Lal vs. Attar Singh Supp SCC 57 wherein the Court noted: has placed reliance on a decision of this Court in Hazi Mohd. Shafi v. State of Rajasthan & Anr. 2002RCrD 172 wherein this Court held that no order under Section 401of the Code shall be made to prejudice the accused or other person unless he has had an opportunity of being heard either personally or through Counsel in his own defence. The word "other person" includes the complainant. Thus without affording an opportunity of hearing to the complainant the revisional Court committed apparent error in setting aside the order passed by the learned trial Court. 2. We are distressed that the High Court has allowed the revisional application preferred by Attar Singh and Satvir Singh s o Mani Ram respondents 1 and 2 and reduced the sentence imposed on them by the lower appellate court from one of rigorous imprisonment of 18 months to that of sentence undergone is the judgment on a revision pending before the High Court and not before the Session’s Court. Further Gian Singh supra) and Himanshu Adya were the orders in the revision in private cases and not in the cases filed by the State but whereas present one is a State case. No doubt when this Court has to deal with the revision under Section 482 Cr P C the victim can of course join the proceedings but this position of law is different in revision before the Session’s Court viz in a State case because of bar under Sections 401(2) Cr.P.C. Section 401(2) and 403 CrP C are as under: “401. High Court s Powers of revisions. 1) xxxx 2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. 3) toxxxx 403. Option of Court to hear parties. Save as otherwise expressly provided by this Code no party has any right to be heard either personally or by pleader before any Court exercising its powers of revision but the Court may if it thinks fit when exercising such powers hear any party either personally or by pleader. A bare perusal of Section 401(2) Cr P C would show other person must be akin to an accused who can participate in the proceedings. The phrase in his own defence in clause 2 of Section 401 Cr P C strengthens this belief. The complainant is never heard in his defence and hence the word „other person‟ referred to in Section 401 Cr P C is a person akin or Crl.M.C.Nos.1163 2021 and 1186 2021 similarly placed to an accused. Section 403 Cr P C is also to be read in consonance with Section 401 Cr P C as it starts with the word „otherwise expressly provided by this Code‟. I may here refer to submissions made by the learned senior counsel for the petitioners stating interalia Section 401(2) Cr P C does not give any right to the complainant to be heard in revision before the learned Session’s Court and hence the impugned order suffers from illegality. In support of their arguments they relied upon Kerala Transport Co. vs. D.S.Soma Shekar and Ors. MANU KA 0027 1981 Indu Bala & Ors. vs. Delhi Administration and Ors. 1991 CRL.J.1774 L.K.Jain and another vs. State 2001 CRL.J. 259 Shiv Kumar vs. Hukam Chand & Anr. 1999 2) JCC466 Mahabunnisa Begum vs. State of Telangana and Ors. MANU AP 1128 2017 The State of Andhra Pradesh vs. Mahabunnisa Begum and Ors. Special Leave to Appeal 2240 2018 and Dhariwal Industries Ltd. vs. Kishore Wadhwani & Ors. 2016(8) SCALE 735. 10. The crux of the aforesaid decisions is the word other person under Section 401(2) Cr P C is either an accused or a person similarly placed to the accused in a Session’s trial the complainant can only assist the learned Public Prosecutor at the stage of enquiry trial or appeal and may submit written arguments only after the evidence is closed the complainant cannot be given an opportunity of being heard in an anticipatory bail application in a case filed on a police report the public person has no locus standi after the cognizance is taken in a Magistrate triable case permission may be granted to the person Crl.M.C.Nos.1163 2021 and 1186 2021 concerned to appoint any counsel to conduct the prosecution on his behalf the prosecution in Session’s case cannot be conducted by any person other than the learned Public Prosecutor andthe reason need be given if an order Section 401(2) Cr PC is passed to the prejudice of the accused. 11. Further I may also refer to A.K.Subbaiah & Ors vs. State of Karnataka & Ors. 1987 SCC557 wherein the Court held as under: 12. It is not in dispute that these two respondents Nos. 2 and 3 were not parties before the court below. Learned counsel for the appellants contended that the proceedings have been launched by the State Govt. on behalf of respond ent No. 2 and therefore indirectly respondent No. 2 being the complainant is a party to the proceedings. That is too tall a proposition. The prosecution is launched by the State Government and before the court below i.e. the trial court the only parties are the petitioners who are accused persons and the State Govt. which stands in the place of a complain ant. There are prosecution witnesses and there may even be defence witnesses. But the witnesses are not parties the proceedings and admittedly these two respondents who have been deleted by the impugned order of the High Court were not parties before the court below. 13. xxxx Sub clause 2 of this Sec. talks of a situation where an order is being passed against any person and it was contended by the learned counsel that the section not only talks of accused persons but also of "or other person unless he has had an opportunity of being heard." Apparently this sub clause contemplates a situation where a person may not be an accused person before the court below but one who might have been discharged and the revisional court after exercising jurisdiction under Sec. 401 wants to pass an order to the prejudice of such a person it is necessary that that person should be given an opportunity of hearing but it does not contemplate any contingency of hearing of any person who is neither party in the proceedings in the court below nor is expected at any stage even after the revision to be Crl.M.C.Nos.1163 2021 and 1186 2021 joined as party. Learned counsel for the appellants was not in a position to contend that even if any contention of the appellants is accepted and the High Court accepts the revision petition as it is there will be any situation where an order may be passed against these two respondents or they may be joined as parties to the proceed ings. Reference to Section 401 clause 2 is of no consequence so far as these two respondents are concerned. 16. In the light of the discussions above therefore it is the question about anyone else being instrumental in getting the prosecution launched or questions which are foreign are not to be considered in a revision where the issue of process is being challenged and therefore the further question as to whether the party against whom an allegation is made is or is not a necessary party in the proceedings also is of no avail. The scope of the revisional jurisdiction of the High Court as we have discussed earlier clearly indicates that the High Court is only expected to see the legality correctness or the propriety of the order which is an order of issue of process these things could only be seen by looking into the complaint and the accompanying papers and evidence if any which were before the court below. In our opinion the High Court was right in deleting the names of the two respondents.” the State “7 In M s. Kerala Transport Co .v.D.S.Soma Shekar and others 1982 Cr. L. J. 1065 the question which was considered was whether the complainant in a police case could seek revision of the sentence. It was held by a Single Judge of the Karnataka High Court that after filing the final report under Section 173 of the Code of Criminal Procedure Magistrate and it becomes the duty of the State to prosecute the accused. While analysing the provisions of Sections 397 to 401 of the Code of Criminal Procedure it was observed that the complainant has no right whatsoever beyond the right to bringing it to the notice of the court the facts as to whether there has occurred any illegality or impropriety in the finding sentence or order recorded by a criminal court and while referring to Section 403 of the said Code the complainant before Crl.M.C.Nos.1163 2021 and 1186 2021 In Hindustan Times Limited vs Ashok Kumar Aggarwal and Others96 Crl L J 1563 wherein the Court noted as under: it was held that there is no right of hearing to be given to a complainant. There is no legal right of hearing conferred on the complainant. However the question which has arisen for decision before this Court was not raised in this judgment. It is true that if the sentence awarded by the Magistrate is to be held to be totally wrong this Court has power to modify the order of the Magistrate. I have come across a judgment of the Punjab & Haryana High Court in Harjinder Singh v. State of Punjab 1980 PLR 435 where a Single Judge for offences punishable under Sections 408 and 409 of the Indian Penal Code thought it fit to give benefit of Probation of Offenders Act. However in that case the accused was aged about 25 years at the time of commission of the offence. 13. Now Babloo Pasi vs. State of Jharkhand and Ors. 2008SCC 133 relied upon by the respondent is also misplaced as revision in Babloo Pasicase was filed under Section 53 of the Juvenile Justice Act and not under Section 401 Cr.P.C. The relevant paras of the judgment would clarify this : “8. Section 52 of the Act provides that any person aggrieved by an order made by a competent authority under the Act may prefer an appeal to the Court of Sessions. Section 53 of the Act confers on the High Court the revisional jurisdiction to satisfy itself as to the legality or propriety of any order passed by the competent authority or Court of Sessions. The Section reads as 53. Revision. The High Court may at any time either of its own motion or on an application received in this behalf call for the record of any proceeding in which any competent authority or Court of Session has passed an order for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it thinks fit: Provided that the High Court shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard. 9. From a bare reading of proviso to the Section it is plain that in exercise of its revisional jurisdiction the High Crl.M.C.Nos.1163 2021 and 1186 2021 Court cannot pass an order prejudicial to any person without affording him a reasonable opportunity of being heard. At this juncture it would be profitable to note that Section 54 of the Act also prescribes the procedure to be followed while dealing with inquiries appeals and revisions under the Act. Sub sectionthereof stipulates that save as otherwise expressly provided under the Act the procedure to be followed in hearing revisions under the Act shall be as far as practicable in accordance with the provisions of the Code of Criminal Procedure 1973 for short `the Code ). Sub sectionof Section 401 of the Code contemplates that no order under the said Section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.” 14. Thus as is seen above „other person‟ doesnot include a complainant in revision. This is a State prosecution and at the highest the complainant can be a witness to the proceedings and can participate through learned APP for the Sate but cannot be a party to the revision petition. The judgments relied upon by the respondents did not consider A.K.Subhaiah‟s hold good even for today. The judgments referred to by the respondent No.2 are mostly under Section 482 Cr.P.C. wherein the High Court may even implead the complainant in revision. The power under Section 482 Cr.P.C. is quite different than the one under Section 401 Cr.P.C. as nothing limits such power of the Court under Section 482 Cr.P.C. and it is far wider than Crl.M.C.Nos.1163 2021 and 1186 2021 under Section 401(2) Cr.P.C. but Session’s Court does not have such parallel power and it cannot implead anyone except those mentioned under Section 401(2) Cr.P.C. Thus in the circumstances the impugned order passed by the learned Revisional Court is set aside. However this shall not disentitle the complainant to appear before the learned Revisional Court in the pending revision petitions and to assist the learned APP for the State and or plead their case through the learned APP. 17. The petition(s) stand disposed of in above terms. Pending application if any also stands disposed of. AUGUST 06 2021 YOGESH KHANNA J. Crl.M.C.Nos.1163 2021 and 1186 2021

Appointments to public posts should be strictly in accordance with Articles 14 and 16 of the Constitution of India: Supreme Court of India

Eligibility criteria for appointments to public posts should be uniform and there cannot be the scope of arbitrary selections by unfettered discretion being vested in the authorities as held by the Hon’ble Supreme Court while approving the decision of a Division Bench of the High Court of Jammu and Kashmir, in the case of The State of Jammu And Kashmir & Ors Vs Shaheena Masarat & Anr [Civil Appeal No. 4991 of 2012]. Brief facts of the case are that a scheme, namely Rehbar-e-Taleem (Re-T), was floated by the State of Jammu and Kashmir under which teaching guides (referred to as ‘Re-T’ hereinafter) in primary and middle schools were to be appointed to cover for the deficiency of the staff. A candidate seeking an appointment as Re-T should ‘as far as possible’ fulfil the age qualification as prescribed by the State Government. The selection under the scheme for the primary school at Bundook Khar Mohalla Rainawari was conducted pursuant to the Notification dated 29.11.2002. Respondent No. 2 was selected for appointment as Re-T. Respondent No. 1 filed a writ petition before the High Court of Jammu and Kashmir at Srinagar under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir for quashing order No.12-DDC of 2003 dated 14.05.2003 by which Respondent No. 2 was appointed as Re-T. A learned Single Judge of the High Court dismissed the writ petition. Aggrieved thereby, the First Respondent filed an appeal which was allowed by the Division Bench of the High Court. The Division Bench directed the appointment of Respondent No. 1 as Re-T within a period of one month from the date of the judgment. The High Court further directed 2 continuance of Respondent No. 2 also. The state of Jammu and Kashmir has filed this appeal challenging this judgment and final order dated 13.4.2010 passed by Division Bench of High Court of Jammu and Kashmir. The main grievance of the State of Jammu and Kashmir (Appellant) is that the High Court committed an error in directing the appointment of Respondent No. 1 and also the continuance of Respondent No. 2. The Respondents were vying for one post of teacher and the High Court could not have directed the appointment of both the Respondents. It was contended on behalf of the First Respondent that the second Respondent had crossed the maximum age limit of 35 years and was not eligible to even apply for an appointment as a teacher. The learned counsel for the first Respondent submitted that SRO 30 of 2003 which relaxed the maximum age for appointment of teacher by 2 years is not applicable to the instant case. Respondent No. 2 contended that her appointment was strictly in terms of the advertisement and the maximum age was 3 relaxed as per SRO 30 of 2003 which applied to all selections. It was contended on behalf of Respondent No. 2 that the words ‘as far as possible’ are directory and the authorities had the power to relax the maximum age beyond 35 years. After hearing the appellant and both the respondents, the hon’ble court was of the opinion that the eligibility criteria for appointment as Re-T by the scheme as well as the advertisement include a condition that a candidate shall ‘as far as possible’ fulfill the age qualification as prescribed by the State Government. There is no dispute that the upper age limit for appointment as Re-T is 35 years and held that “Construing the provision relating to upper age limit as directory would be conferring unbridled power in the executive to choose persons of their choice by relaxing the age beyond 35 years. In such a case, the provision would have to be declared as unconstitutional. Therefore, we are of the opinion that 35 years is the upper age limit for appointments as Re-T. The 2nd Respondent who has crossed 35 years on the cut-off date was not 8 eligible for appointment.”

IN THE CIVIL APPELLATE JURISDICTION Civil Appeal No. 49912 The State of Jammu And Kashmir & Ors. ....Appellant(s Shaheena Masarat & Anr. ….Respondent(s JUDGMENT L. NAGESWARA RAO J 1. Rehbar e Taleemscheme was floated by the State of Jammu and Kashmir on 28.04.2000 for promoting and decentralizing management of elementary education with community participation and involvement. The further object of the scheme was to ensure accountability and responsiveness through a strong backup and supervision through the community and to operationalize effectively the schooling system at the grass roots level. According to the scheme teaching guides referred to as ‘Re T’ hereinafter) in primary and middle schools were to be appointed to cover for the deficiency of the staff as per existing norms. An advertisement was published in daily newspaper ‘Aftab’ on 29.11.2002. According to the scheme and the advertisement a candidate seeking appointment as Re T should be a permanent resident of the State and belong to the village where the deficiency of the staff was assessed. He she should possess the minimum qualification of 10+2 and the candidate should ‘as far as possible’ fulfill the age qualification as prescribed by the State Government. The selection under the scheme for the primary school at Bundook Khar Mohalla Rainawari was conducted in which 11 candidates applied pursuant to the Notification dated 29.11.2002. Respondent No. 2 was selected for appointment as Re T. Respondent No. 1 filed a writ petition before the High Court of Jammu and Kashmir at Srinagar under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir for quashing order No.12 DDC of 2003 dated 14.05.2003 by which Respondent No. 2 was appointed as Re T. A learned Single Judge of the High Court dismissed the writ petition by a judgment dated 08.09.2008. Aggrieved thereby the first Respondent filed an appeal which was allowed by the Division Bench of the High Court. The Division Bench directed the appointment of the Respondent No. 1 as Re T within a period of one month from the date of the judgment. The High Court further directed continuance of the Respondent No. 2 also. State of Jammu and Kashmir has filed this appeal challenging this judgment and final order dated 13.4.2010 passed by Division Bench of High Court of Jammu and Kashmir. 2. The main grievance of the State of Jammu and Kashmir Appellant) is that the High Court committed an error in directing the appointment of Respondent No. 1 and also continuance of Respondent No. 2. The Respondents were vying for one post of teacher and the High Court could not have directed the appointment of both the Respondents. It was contended on behalf of the first Respondent that the second Respondent had crossed the maximum age limit of 35 years and was not eligible to even apply for appointment as a teacher. The learned counsel for the first Respondent submitted that SRO 30 of 2003 which relaxed the maximum age for appointment of teacher by 2 years is not applicable to the instant case. According to the Respondent No. 1 the learned Single Judge of the High Court dismissed the writ petition erroneously by holding Respondent No. 2 as being eligible for appointment as Re T on a misinterpretation of the condition relating to upper age limit 3. Respondent No. 2 contended that her appointment was strictly in terms of the advertisement and the maximum age was relaxed as per SRO 30 of 2003 which applied to all selections The learned counsel for the Respondent No. 2 argued that she was appointed on 17.05.2003 and she has been continuing since then. As her remuneration was not being paid since May 2008 Respondent No.2 filed an interlocutory application in this Court for suitable directions. During the course of hearing of the appeal this Court was informed that Respondent No. 2 has been paid her salary. It was contended on behalf of Respondent No. 2 that the words ‘as far as possible’ are directory and the authorities had power to relax the maximum age beyond 35 years. In any event according to Respondent No. 2 her appointment should not be disturbed at this stage as she has already served for 18 years 4. The Central Government launched Sarva Shiksha Abhiyan SSA) scheme to improve literacy by providing more teachers in areas where there are deficiencies. To give effect to the SSA scheme the State Government launched a scheme for appointment of Re T teachers in primary and middle schools Village Level Committees were constituted under the scheme The Zonal Education Officer was designated to be the convenor of the Village Level Committee. The Village Level Committee has to prepare a panel after conducting the selection process for appointment as Re T. The Deputy Commissioner along with the representative of the Director School Education shall finalise the selections. The Zonal Education Officer would have to issue appointment letters. According to the scheme Re T is appointed initially for period of 2 years and thereafter his her services can be extended for a further period of 3 years. There is a provision in the scheme for absorption of Re T as a General Line Teacher Absorption of Re T is made on the basis of recommendation made by the Village Level Committee regarding the satisfactory performance of the teacher 5. Upper age limit notified in the advertisement for appointment as Re T is 35 years as on 01.01.2002 which is the cut off date for determining eligibility of a candidate who has applied in response to the advertisement dated 29.11.2002 Admittedly the date of birth of second Respondent is 28.12.1965 and therefore she was more than 35 years on 01.01.2002. The learned Single Judge relied upon SRO 303 by which the upper age limit was relaxed from 01.01.2003 to 31.12.2004 Thereafter Rule 17 of the Jammu and Kashmir Civil Services Classification Control and Appeal) Rules 1956 was amended and upper age limit was relaxed from 01.01.2003 to 31.12.2004 As the second Respondent was less than 37 years as on 01.01.2002 the learned Single Judge held that she was eligible to be considered for appointment as Re T. The Division Bench of the High Court held that Respondent No. 2 was not entitled to seek benefit of SRO 303 as she completed 37 years of age as on 01.01.2003. We are in agreement with the Division Bench SRO 30 of 2003 giving relaxation of upper age limit from 01.01.2003 to 31.12.2004 cannot be made applicable to a selection which commenced by issuance of the advertisement 6. Re T scheme provides that a candidate shall ‘as far as possible’ fulfill the qualification as prescribed by the State Government. The eligibility criteria stipulated by the advertisement dated 29.11.2002 is that a candidate shall ‘as far as possible’ fulfill the age qualification as prescribed by the State Government i.e. the candidate should not be above 35 years of age. The learned Single Judge of the High Court interpreted the words ‘as far as possible’ appearing in the scheme as well as the advertisement in respect of the upper age limit as directory by relying upon judgment of this Court in Iridium Indian Tele Communication V. Motorola In Charge 1 whereas the Division Bench was of the opinion that the judgment of this Court 1 2005SCC 145 in Iridium Indian Tele Communication is not applicable to the facts of the instant case 7. In Iridium Indian Tele Communicationthis Court was concerned with the interpretation clause 37 of Letters Patent which provided that in making rules and orders under this clause the High Court shall be guided “as far as possible” by provisions of the Code of Civil Procedure. A Full Bench of High Court of Calcutta in Manickchand Durgaprasad V. Pratabmull Rameswar2 considered the scope of clause 37 of Letters Patent and observed that the rules framed under clause 37 would prevail over the corresponding provisions of the Code of Civil Procedure if there is any inconsistency. This Court in Iridium Indian Tele Communicationupheld the view of the Full Bench of the Calcutta High Court in Manickchand Durgaprasad (supra in so far as it related to interpretation of the words ‘as far as possible’ in clause 37 of the Letters Patent by holding that the words ‘as far as possible’ are merely directory 8. As stated above the eligibility criteria for appointment as Re T by the scheme as well as the advertisement includes a condition that a candidate shall ‘as far as possible’ fulfill the age qualification as prescribed by the State Government. There is no 2 AIR 1961 Cal 483 dispute that the upper age limit for appointment as Re T is 35 years. The Division Bench examined the scheme and noticed that there is no minimum age limit specified and if the words ‘as far as possible’ for upper age limit are interpreted as directory the officers would have discretion to select candidates even after they cross 45 years. Further the Division Bench was of the opinion that there will be no uniformity in selection of Re Ts in the State. The scheme would be rendered unconstitutional as being violative of Articles 14 and 16 of the Constitution of India Therefore the High Court construed the provision relating to upper age limit as mandatory. We approve the conclusion of the Division Bench. Appointments to public posts should be strictly in accordance with Articles 14 and 16 of the Constitution of India Eligibility criteria should be uniform and there cannot be scope of arbitrary selections by unfettered discretion being vested in the authorities. Construing the provision relating to upper age limit as directory would be conferring unbridled power in the executive to choose persons of their choice by relaxing the age beyond 35 years. In such case the provision would have to be declared as unconstitutional. Therefore we are of the opinion that 35 years is the upper age limit for appointment as Re T. The 2nd Respondent who has crossed 35 years on the cut off date was not eligible for appointment. The High Court has correctly directed the appointment of the 1st Respondent as Re T 9. Now the question that remains to be answered is the continuance of Respondent No. 2. While referring to the scheme in detail the High Court took note of the fact that the Government can relax the upper age limit for regularization of Re Ts. The scheme was discontinued and Re Ts appointed under the scheme were considered for absorption as General Line Teachers. Even if a Re T teacher was overaged he she would be eligible for formal appointment in the Government by relaxation of age. In view of the above the Division Bench directed the continuance of Respondent No. 2. 10. The advertisement in question relates to appointment to a post of Re T to which either Respondent No.1 or Respondent No. 2 could have been appointed. The High Court ought not to have directed the appointment of both the Respondent Nos. 1 and 2 Having set aside the judgment of the learned Single Judge the High Court committed no error in directing the appointment of Respondent No.1. The direction issued by the High Court to continue Respondent No.2 is set aside. Respondent No.2 has been continuing to work from 2004. Therefore the Appellant is directed to accommodate her in any other vacancy. She shall not be entitled for any benefits prior to the date of her appointment afresh other than the salary and other allowances already paid for her services. 11. The appeal is disposed of accordingly. .....................................J [ L. NAGESWARA RAO .....................................J [SANJIV KHANNA New Delhi September 29 2021.

Accused cannot be arrested in any case till the extradition request is not warranted: Delhi High Court

The petitioner’s contention that he cannot be arrested in any other case till the pending extradition requests are acceded to by the Republic of Indonesia, is merited held by Justice Vibhu Bakhru in Vinay Mittal vs. Union of India & Ors. [WR (CRL) 562/2019]. The petitioner was charge-sheeted in 7 separate cases for siphoning off funds and during the course of the trial the petitioner fled to Indonesia and extradition request was sent to Indonesian Authorities which was accepted and the petitioner was extradited and brought to India, however the extradition request for the remaining 6 cases was still pending before the Indonesian authorities. The petitioner contended that since the extradition was approved in only one matter he could not be prosecuted in other cases filed against him while placing reliance on the Rule of Specialty in Article 14 of the extradition treaty between the Republic of India and the Republic of Indonesia. The Hon’ble Court took the views of  Daya Singh Lahoria Vs. Union of India [2001 4 SCC 516] where the Hon’ble Apex Court held while applying the ‘Doctrine of Specialty’ that the petitioner cannot be arrested in any other case till the pending extradition requests are acceded to by the Republic of Indonesia is merited. The Hon’ble Court observed that “It is clear from the language of Section 21 of the Extradition Act, 1962 that a person who has been extradited and returned by the foreign state cannot be tried in India for an offence other than the extradition offence in relation to which he was surrendered or returned”. It was further clarified by the Hon’ble Court that there will be no impediment on the authorities in prosecuting the petitioner in cases where the extradition is warranted. It was also clarified that there would be no impediment in the CBI prosecuting the petitioner in other cases once the extradition requests in respect of those cases were acceded to by the Republic of Indonesia. Hence, the pending application has been also disposed of. Click here to read the judgement

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Judgment: 18th August 2020 W.P.(CRL) 562 2019 & CRL.M.A. 3920 2019 VINAY MITTAL UNION OF INDIA & ORS Petitioner Through: Mr Mohit Mathur Sr. Advocate with Mr Tarun Sharma Mr Misbah Khan and Mr Gautam Sharma Advocates. Respondents Through: Mr Ripudaman Bhardwaj SPP for Mr Rajeev Sharma Advocate for R 2. HON BLE MR. JUSTICE VIBHU BAKHRU O R D E R Hearing held through video conferencing] VIBHU BAKHRU J.The petitioner has filed the present petition inter alia praying as under: “I. the nature of Issue writ order directions certiorari or any other appropriate writ order directions thereby quashing the order of arrest in RC NO.220 2014 E 0010 20 11 2018 passed in RC NO. 220 2014 E 005 02 11 2018 passed W.P.(CRL.) 562 2019 in RC NO. 220 2014 E 006 CBI EOU V EO II D) 14 11 2018 passed in RC NO. 220 2014 E 0009 CBI EO II EOU V NEW DELHI 220 2014 E 0013 EOU V EO II NEWDELHI ORDER DATED 22 01 2019passed in RC NO. 220 2016 E 0012 CBI EOU V EO II NEW DELHI and all other consequential proceedings in the aforesaid matters and or in RC NO. Pass any other order(s) as this Hon’ble Court may deem fit and proper in the circumstances of the The petitioner claims that he was an employee of one Mr Bharat Rana Chaudhary drawing a salary of ₹25 000 to 30 000 and has been falsely implicated by the Central Bureau of Investigation hereafter ‘CBI’) in various cases alleging siphoning of funds of Punjab National Bank(PNB). The petitioner claims that initially he had joined the investigation and cooperated with the prosecution. He submits that he is neither the prime accused nor the prime beneficiary of the alleged offences. However the CBI disregarded his role and in the year 2014 filed chargesheets against him in various cases. Although the petitioner was being investigated in several cases he was not arrested in those cases. The petitioner left this country in May 2015 and failed and neglected to appear before the Courts in the proceedings instituted by the CBI. In view of the petitioner’s failure to attend the court W.P.(CRL.) 562 2019 proceedings a red corner notice was issued against the petitioner on 21.10.2016 Red Corner Notice No. Control: A 9525 10 2016 dated 21.12.2016. Pursuant to the said notice the Indonesian Authorities arrested the petitioner on 16.01.2017in Denpasar Indonesia. The petitioner was extradited in terms of a decree dated 04.06.2018 passed by the President of the Republic of Indonesia pursuant to an extradition request made by the Government of India. The petitioner was brought to India by the CBI on 20.09.2018. He was produced before the Special Judicial Magistrate Ghaziabad on 22.09.2018 and was remanded to judicial custody. The petitioner contends that his arrests in other cases are illegal and violate Section 21 of the Extradition Act 1962. It is contended on behalf of the petitioner that since he was extradited only in one matter RC 220 2013 E0014 CBI EQU V E0 II New Delhi) he could not be prosecuted in other cases filed against him. It is contended that the same is not permissible in view of the Rule of Speciality as embodied in Article 14 of the extradition treaty between Republic of India and Republic of Indonesia. The petitioner is involved in seven separate cases instituted by the CBI RC 220 2013 E 0014 RC 220 2014 E 0005 RC 220 2014 E 0006 RC 220 2014 E 0009 RC 220 2014 E 0010 vi) RC 220 2016 E 0012 &RC 220 2014 E 0013. The W.P.(CRL.) 562 2019 alleges that the petitioner was a proprietor of two firms namely M s Krishna and Krishna Enterprises and M s Mittal Metals. And the bank account of these firms were used to siphon off funds from the banks. It is alleged that an aggregate amount of funds involved in the seven cases is approximately ₹4319.56 lacs. After completion of the investigations chargesheets were filed in all seven cases against the petitioner in different courts in Delhi and Ghaziabad. 10. During the course of the trial the petitioner absconded from this country and was thereafter declared a proclaimed offender. CBI claims that after the petitioner was located in Indonesia and accordingly an extradition request in CBI RC 220 2013 E 0014 was through proper channels the Indonesian Authorities. Thereafter six separate extradition requests in the remaining six cases were also made through diplomatic channels. 11. Admittedly the petitioner has been extradited in CBI RC 220 2013 E0014. It is stated that the CBI has taken up matters through the Ministry of External Affairs to expedite the other extradition requests but a decision is awaited. 12. A copy of the extradition request sent by the CBI in case no. RC 220 2013 E 0014 has been placed on record and the same indicates that it was limited to the First Information Report which was registered on 23.12.2013 on the basis of a written complaint dated 20.11.2013 received from one Mr Anjan Chattopadhyay Assistant General W.P.(CRL.) 562 2019 Manager Punjab National Bank. It is alleged in the said complaint that one Mr Ramesh Suri and some unknown persons had committed the offence punishable under Sections 419 420 467 468 471 read with section 120B of the Indian Penal Code. The complainant alleged that Mr Ramesh Suri proprietor of M s Orient Trading Company had availed of a loan of ₹ 325 lacs and had offered immovable property bearing no. 383 Sector 15A Noida Uttar Pradesh India as a collateral to secure the payment obligations. The loan account of M s Orient Trading Company was classified as a non performing asset on 31.12.2012. The amount outstanding and payable to PNB on that date was ₹389 lacs. The officials of PNB made efforts to contact the borrower as well as the guarantor at their given address but found that they were unavailable. The Punjab National Bank also found that the collateral provided as security for the said loan was also disputed. Investigations were conducted by the CBI. It is alleged that the petitioner was part of a criminal conspiracy to defraud Punjab National Bank and their actions had resulted in a wrongful loss of approximately ₹389 lacs to the Punjab National Bank. 14. Undisputedly in terms of the extradition treaty entered into between India and Republic of Indonesia a person extradited in accordance with the treaty cannot be proceeded against for any offence committed by that person before he was surrender or extradited other than the offence for which the extradition is granted. W.P.(CRL.) 562 2019 set out below: Article 14 of the said Treaty which sets out the Rule of Speciality is “ARTICLE 14 RULE OF SPECIALITY The person extradited in accordance with this Treaty shall neither be proceeded against nor subjected to the execution of sentence in the Requesting State for an offence committed by that person before his surrender other than the offence for which the extradition is granted not shall that person be re extradited to a third Country unless: a. the Requested State has consented advance. For the purpose of such consent the Requested State may information mentioned in Article 6 of this b. that person has not left the Requesting State within 30days after having been free to do so or that person has voluntarily returned to the Requesting State after leaving it. However this period of time shall not include the time during which that person fails to leave the Requesting State for reasons beyond his control: or c. any lesser offence disclosed by the facts for the purpose of securing his return other than an offence for which extradition could not lawfully be made.” It is also relevant to refer to Section 21 of the Extradition Act 1962. The said Section reads as under: W.P.(CRL.) 562 2019 “21. Accused or convicted person surrendered or returned by foreign State not to be tried for certain offences.―Whenever any person accused or convicted of an offence which if committed in India would be an extradition offence is surrendered or returned by a foreign State such person shall not until he has been restored or has had an opportunity of returning to that State be tried in India for an offence other than― a) the extradition offence in relation to which he was surrendered or returned or b) any lesser offence disclosed by the facts proved for the purposes of securing his surrender or return other than an offence in relation to which an order for his surrender or return could not be lawfully made or c) the offence in respect of which the foreign State has given its consent.” It is clear from the language of Section 21 of the Extradition Act 1962 that a person who has been extradited and returned by a foreign State cannot be tried in India for an offence other than the extradition offence in relation to which he was surrendered or returned. In Daya Singh Lahoria v. Union of India and Ors.:(2001) 4 SCC 516 the Supreme Court had explained the ‘Doctrine of Speciality’ as follows: “The doctrine of specialty is yet another established rule of international law relating to extradition. Thus when a person is extradited for a particular crime he can be tried for only that crime. If the requesting State deems it desirable to try the extradited fugitive for some other W.P.(CRL.) 562 2019 crime committed before his extradition the fugitive has to be brought to the status quo ante in the sense that he has to be returned first to the State which granted the extradition and a fresh extradition has to be requested for the latter crime. The Indian Extradition Act makes a specific provision to that effect. In view of Section 21 of the Indian Extradition Act 1962 an extradited fugitive cannot be tried in India for any offence other than the one for which he has been extradited unless he has been restored to or has had an opportunity to return to the State which surrendered him. The doctrine of specialty is in fact a corollary to the principles of double criminality and the aforesaid doctrine is premised on the assumption that whenever a State uses its formal process to surrender a person to another State for a specific charge the requesting State shall carry out its intended purpose of prosecuting or punishing the offender for the offence charged in its request for extradition and none other.In the book International Law of D.P. O’Connell the principle of specialty has been described According to this principle the State to which a person has been extradited may not without the consent of the requisitioned State try a person extradited save for the offence for which he was extradited. Many extradition treaties embody this rule and the question arises whether it is one of international law or not.” In view of the above the petitioner’s contention that he cannot be arrested in any other case till the pending extradition requests are acceded to by the Republic of Indonesia is merited. 19. Mr Bhardwaj learned SPP appearing for CBI does not counter the contentions advanced on behalf of the petitioner however he submits that it ought to be clarified that in the event Republic of W.P.(CRL.) 562 2019 Indonesia accedes to the extradition requests in respect of other cases that are pending with the Indonesian Authorities there would be no impediment in arresting the petitioner in those cases. In view of the above the present petition is allowed. The flowing arrest orders are set aside:order dated 02 11 2018 passed in RC NO.220 2014 E 0010 order dated 20 11 2018 passed in RC NO. 220 2014 E 005 order dated 02 11 2018 passed in RC NO. 220 2014 E 006 CBI EOU V EO II order dated 14 11 2018 in RC NO. 220 2014 E 0009 CBI EO II EOU V NEW DELHI v) order dated 20 11 2018 passed in RC NO. 220 2014 E 0013 EOU V EO II NEWDELHI and order dated 22 01 2019passed in RC NO. 220 2016 E 0012 CBI EOU V EO II NEW DELHI. It is however clarified that there would be no impediment in the CBI prosecuting the petitioner in other cases ones the extradition requests in respect of those cases are acceded to by the Republic of Indonesia. 22. The pending application is also disposed of. AUGUST 18 2020 VIBHU BAKHRU J W.P.(CRL.) 562 2019

Party should not suffer because of the negligence of the Counsel: High Court of Delhi

A party should not to suffer in person or in purse without an opportunity of being heard. The question as to setting aside a Court’s decree if an adequate opportunity of being heard was not provided to a party because of the negligence of their Counsel was examined by High Court of Delhi, consisting Justice Suresh Kumar Kait in the matter of Inter Ikea Systems B V vs. Italica Floor Tiles Pvt. Ltd. & Anr. [CS(COMM) 628/2019] on 03.01.2022. Facts of the case are that the defendants were in the business of making Floor tiles in Gujrat under the name and style of “Italica”. According to the defendants “Italica” came into existence in the year 2004 for manufacturing and distributing, and has established a large distribution network which consists of more than 300+ dealers all over the world. It is further claimed on behalf of applicants/defendants that the trademark “Italica” is registered under Clause-19 in favor of defendant under the name Italica Floor Tiles Private Limited since the year 2005 and under Clause-11 since the year 2017. It is next submitted that defendant No.2- Ikaa Granito Private Limited was incorporated in the year 2016 and its first invoice was issued in July, 2017, which bore the trademark “Italica”, since permitted by defendant No.1 for promotion of defendant No.2 Company. With regard to defendants being proceeded ex parte, the defendants received summon of the suit on or about 20.11.2019, and the matter was listed on 05.12.2019 and thereby, they had engaged the services of an Advocate and had also made payment of Rs.25,000/- to the said counsel, which was duly encashed on 07.12.2019. Thereby, defendants were under the bonafide impression that the Advocate so engaged by them was keeping track of the matter. Though it was fairly conceded that the defendants were unable to keep track and follow up the matter but it is only in January 2020 that the defendants received copy of the contempt petition and they thereafter engaged services of another counsel and since defendants are based in Gujarat, they took some time to track the matter in Delhi High Court. However, in compliance of order dated 05.12.20219, the defendants have removed the name of Ikaa Granite Private Limited from the Linkedin Account and also from the Italica Granite Private Limited Website. The Counsel for the defendants contended that defendant No.2 is not using the mark IKAA but it is a part of corporate name of the company, which had been duly approved by the Registrar of Companies as the name of the company and thereby, there is no deliberate attempt to pass of the plaintiff’s trademark and also the spellings and pronouncement of plaintiff’s and defendants’ trade name and trade mark were different. It was also contended that there cannot be any confusion between the two trade names i.e. “IKEA” and “Italica”. It was submitted that the mark in question “IKAA: is the name of the company duly registered by the ROC and “ITALICA” is the Trade mark of the defendants, hence, name of company cannot be changed. It was strenuously submitted that defendants have a good prima facie case in their favour and for the negligence and default of the counsel, defendants be not made to suffer. The Counsel for the plaintiff contended that IKEA retailers specifically deals in products sold under and marked with the IKEA trademark. Learned counsel submitted that defendants were provided with the papers of the suit on advance service on 20.11.2019, however, they chose not to appear before the Court and thereby, the order dated 05.12.2019 was passed by this Court. They were also served with the injunction order by email on 10.11.2019 and were further served on 28.01.2020 with the injunction application and were also in touch with the plaintiff showing intention to settle the matter, however, did not appear before the Court. It was submitted that defendants cannot take the plea of ignorance and seek setting aside of the decree passed in favour of plaintiff though they themselves chose not to appear before the Court. Next submitted that the plea of negligence of the counsel cannot be permitted as the same has been repeatedly rejected by various judgments of this Court.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 04th January 2022 IN THE MATTER OF: BAIL APPLN. 2115 2021 Petitioner Through Mr. Sudhir Mendiratta Advocate STATE OF NCT OF DELHI Through Ms. Meenakshi Chauhan APP for the Respondent State with SI Sunil PS Model Town HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. This petition under Section 438 Cr.P.C. is for grant of bail to the petitioner in the event of arrest in FIR No. 82 2021 dated 12.03.2021 registered at Police Station Model Town for offences under Sections 420 467 468 471 IPC. Facts in brief leading to the present petition are as under: Complaint was given by one Parv Mittal S o Prem Mittal R o 73 B Block Shalimar Bagh Delhi and one Mool Chand Mittal S o Late Ram Kishan Dass R o H.No. 54 A Kamla Nagar Malka Ganj Delhi stating that they are the owners of property bearing No. R 5 2 Model Town Delhi admeasuring 31 Sq. Yards and property bearing No. R 5 3 admeasuring 75 Sq. Yards situated at Rishab Nagari Model Town Delhi 110009. It BAIL APPLN. 2115 2021 is stated that they purchased the abovementioned properties on 07.12.2019 from one Kamal Kishore Jain R o R 5 1 Model Town Mohan Park Delhi 110009. It is stated that the said Kamal Kishore Jain gave the possession of property bearing No. R 5 2 Model Town Delhi on 17.12.2019 but he could not give the possession of property bearing No. R 5 3 Model Town Delhi stating that 5 6 persons are staying in the said property and they will vacate the premises by 13.04.2020. It is stated that in March 2020 when Kamal Kishor Jain asked the occupants of the property in question to vacate it they threatened him with dire consequences. It is stated that the occupants told Kamal Kishor Jain that they are the owners of the said property and they have valid documents of the same. It is stated that the occupants of the property in question also the complainants herein. The complainants thereafter approached the Police and gave a complaint stating that Sunil and his family members are trying to grab the property on the basis of forged documents. On the basis of this complaint FIR No. 82 2021 was registered at Police Station Model Town for offences under Sections 420 467 468 471 IPC. The petitioner approached the Trial Court by filing an application for anticipatory bail being Bail Application No.1037 2021. The learned ASJ directed the petitioner to place BAIL APPLN. 2115 2021 on record the documents of ownership of the property in question. When the petitioner was not able to produce any document of ownership the learned ASJ vide order dated 05.04.2021 dismissed the anticipatory bail of the petitioner. The petitioner once again approached the Trial Court by filing another application being Bail Application No.1183 2021 stating that the father of the petitioner had purchased the property in question from one Mrs. Chander Kala Jain in the year 1971 but the documents of ownership were misplaced in the floods. The learned ASJ dismissed the said application vide The petitioner has thereafter approached this Court by filing the order dated 09.04.2021. instant petition. 3. Mr. Sudhir Mendiratta learned counsel appearing for the petitioner submits that the father of the petitioner purchased the property bearing No. R 5 3 Model Town Delhi from one Chandra Kala Jain. He states that the family of the petitioner is in possession of the property from the past 25 years. He states that electricity connection Aadhaar Cards ration cards and Voter ID cards of the family members of the petitioner are issued on the same address i.e. R 5 3 Model Town Delhi which shows that the aforementioned property was in continuous possession of the petitioner s family. The learned counsel for the petitioner further submits that the petitioner has also filed a document i.e. electricity connection of the said premises which is in the name of the petitioner to show that the petitioner and his family members are the owners of the said premises. He therefore BAIL APPLN. 2115 2021 states that the present FIR is only a ruse to evict the petitioner and his family members from the premises by putting pressure. Per contra Ms. Meenakshi Chauhan learned APP for the State submits that the property in question belonged to one Narayan Singh Nambardar S o Pirthi Singh R o Dheerpur who sold the property in question to late Chandra Kala Jain through a registered sale deed bearing No. 212 Additional Book No.1 Volume No.2798 on pages 67 to 71. She further submits that late Chandar Kala Jain sold the property in question to Kamal Kishor Jain vide a registered sale deed dated 28.08.2001 and Kamal Kishor Jain sold the property in question to the complainants herein through a registered sale deed dated 28.08.2001 vide Registration No. 11220 in Volume 1788 Book No.1 on pages 182 to 187. She further states that the electricity connection of the property in question was obtained by the petitioner herein on the basis of a GPA executed between one Neeraj Khandelwal S o Kailash Khandelwal R o F 152 JJ Colony Wazirpur Delhi and the petitioner herein. She states that during investigation Neeraj Khandelwal was not found at the given address and statement of one Anju D o Lt. Sh. Gyan Singh Age 55 years and one Rajender Singh Rawat S o Lt. Sh. Gyan Singh who are residing at the given address were recorded wherein they stated that they are residing at the given address from the last twelve years and they don t know any Neeraj Khandelwal. She states that Police has not been able to find the said Neeraj Khandelwal who purportedly executed the GPA in favour of the petitioner herein. She further states that the GPA has only been signed by the petitioner herein and there is no signature of Neeraj Khandelwal on it. She therefore states that the said GPA is a forged document. She further contends that though the GPA was BAIL APPLN. 2115 2021 the petitioner. in question: executed on 24.12.2013 the stamp paper was purchased on 12.09.2013. She further states that the custody of the petitioner is required to verify as to how the petitioner and his family members got the possession of the property in question and to discover further documents which might be in possession of Heard Mr. Sudhir Mendiratta learned counsel for the petitioner Ms. Meenakshi Chauhan learned APP for the State and perused the material on The petitioner has produced the following documents to substantiate that he and his family members are in continuous possession of the property a) Copy of Aadhaar Card of Usha Aunt of the petitioner. b) Copy of Ration Card of the father of the petitioner dated c) Copy of the Voter ID card of Sunita S o the petitioner. d) Copy of the Voter ID card of Kamlesh Paswan. e) Copy of Voter ID card of Parmanand Manjhi B o the petitioner. f) Copy of Ration Card of the father of the petitioner dated There is no document of the petitioner showing that he is in possession of the property in question. The fact that these documents at best show that the father of the petitioner was in possession of the property in question up to 1998 but it is not known as to on what basis they continued beyond 1998 in the said property. The material on record also indicates that the petitioner got electricity connection on the basis of a GPA which was executed by Neeraj BAIL APPLN. 2115 2021 Khandelwal in favour of the petitioner herein. A copy of the said GPA has been filed by the petitioner. The GPA does not indicate as to on what basis Neeraj Khandelwal executed the GPA in favour of the petitioner herein. Moreover the GPA has not been signed by Neeraj Khandelwal it has only been signed by the petitioner. There is no document to show that Neeraj Khandelwal was the owner of the property in question or whether he was given a Power of Attorney by the owners of the property in question to execute a GPA in favour of the petitioner herein. Neeraj Khandelwal has not been produced by the petitioner before the investigating authorities. The learned APP for the State has contended that investigation has revealed that no person by the name Neeraj Khandelwal resides at the address mentioned in the GPA. It is also stated by the learned APP for the State that the GPA is forged and sanction has been obtained from the Electricity Department on the basis of forged documents. The Status Report also reveals that notice was sent to the petitioner to join investigation on 18.03.2021 but the petitioner has not joined the investigation. It is further stated that the notices were sent to the father and brother of the petitioner to give information about the petitioner but they have refused to give the whereabouts of the petitioner. It is also stated that Non Bailable Warrants issued against the petitioner have been returned un executed and proceedings under Section 82 Cr.P.C have been initiated against the petitioner. 10. There is no document showing semblance of title in favour of the petitioner or any of his family members. Rather the electricity connection has been obtained on that basis of a forged document. The petitioner has BAIL APPLN. 2115 2021 premises. only been able to show that his family members were in possession of the 11. Undoubtedly the petitioner or his family members cannot be dispossessed of the property in question by the complainants on the basis of this FIR. They can be evicted only by following the procedure established by law i.e. by filing a proper suit for eviction. However that does not mean that the petitioner who is accused of forging documents will not even co operate in the investigation and will not even present himself before the investigating agencies. It is well settled that the power exercisable under Section 438 Cr.P.C is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty. It is also well settled that ordinarily arrest is a part of the process of investigation intended to secure several purposes and it may be necessary to curtail the freedom of an accused in order to enable the investigation to proceed without hindrance and prevent the disappearance of the accused. 13. The GPA which has been placed on record is only signed by the petitioner herein and not by the alleged executant Neeraj Khandelwal. There is discrepancy in the date on which stamp paper was purchased. These documents have been used to obtain the electricity connection. The petitioner is accused of the offence of forgery and if convicted the petitioner can be punished with life imprisonment. In view of the fact that the petitioner has been evading avoiding to join investigation since March 2021 his family members have refused to disclose his whereabouts and the fact BAIL APPLN. 2115 2021 that proceedings under Section 82 Cr.P.C have been initiated against the petitioner indicates that there is all likelihood of the petitioner fleeing from justice and not being available during trial. This Court is therefore not inclined to grant protection to the petitioner under Section 438 Cr.P.C. Accordingly the petition is dismissed along with all the pending application(s) if any. JANUARY 04 2021 SUBRAMONIUM PRASAD J BAIL APPLN. 2115 2021

Claimant can be entitled to an additional compensation in a case of 100% bodily injury: High Court of Karnataka

In respect of the disability suffered by the claimant for throughout his life, double compensation under ‘Permanent Physical Impairment’ and ‘Loss of Amenities and Comfort’ has twice been awarded by the tribunal earlier. In the matter of, The New India Assurance Co. Ltd vs. Sri, Chandra Kumar [M.F.A. NO.3861 OF 2016 (MV-I)], the insurance company was directed to pay the amount of compensation to the claimant for which they were held liable according to the established facts of negligence. The matter was addressed in the presence of The Hon’ble Mr. Justice Alok Aradhe and The Hon’ble Mr. Justice Nataraj Rangaswamy.  The petition was filed under Section 166 of the Motor Vehicles Act, 1988 on the ground that the accident took place due to rash and negligent driving of the lorry driver, due to which, the claimant suffered grievous injuries. The claimant was 35 years of age at the time and suffered a loss of income due to permanent disability. He was granted compensation under ‘Permanent Physical Impairment’ and ‘Loss of Amenities and Comfort’. The judgement of the Motor Accident Claims Tribunal was challenged by the insurance company, on the basis of the mode and manner of the accident. The company claimed that the accident occurred due to negligence of the claimant himself and that his claims were exaggerated. It was also pleaded that the driver of the lorry did not hold a valid driving license at the time of the accident hence the liability of the insurance company must be subject to terms and conditions of the insurance policy. The reports indicated that the car sustained heavy damage as compared to the damage caused to the lorry. The quantum of compensation was thus accessed based on the evidence and facts. It was established that both the parties were equally accountable for negligence in light of the view of the Supreme Court held in RAJ RANI Supra. However, the fact that the claimant suffered functional disability to the extent of 100% of the whole body, remained undisputed. In the view of Pappu Deo vs Naresh Kumar and Ors [AIR 2020], it was held that “the claimant is entitled to Rs.29,09,200/- in all as total compensation and the insurance company is directed to pay Rs.14,54,600/- (50%) of the aforesaid compensation to the claimant. Since the accident is of the year 2014, the prevailing rate of interest for the year 2014 in respect of fixed deposits for one year in nationalized banks being 8%, the aforesaid amounts of compensation shall carry interest at the rate of 8% from the date of filing of the petition till the realization of the amount of compensation.” To the aforesaid extent, the judgement passed by the Claims Tribunal is modified. The amount in deposit, if any, is ordered to be transmitted to the Tribunal for disbursement. The matter was disposed thereof.   Click here to read judgement.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY 2021 THE HON’BLE MR. JUSTICE ALOK ARADHE THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY M.F.A. NO.3861 OF 2016SRI. CHANDRA KUMAR AGED ABOUT 37 YEARS S O NARAYANASWAMY NO.16 2ND CROSS SUBRAMANYA LAYOUT RAMAMURTHY NAGAR BENGALURU 560016. R AT. NO.12 1ST CROSS MUTAMMA EXTENSION LAYOUT VIJINAPUR BENGALURU 16. SRI. SANJAN SHIVAJI KOLEKAR MAJOR S O SRI SHIVAJ KOLEKAR APT POST ZEDKEY TALUK BHIWANDI DISTRICT THANE MAHARASHTRA 421302 OWNER OF LORRY NO.MH 04 EY 4452). BY MR. R. SHASHIDHARA ADV. FOR R1 R2 SERVED) ... RESPONDENTS THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.04.2016 PASSED IN MVC NO.873 2014 ON THE FILE OF THE 13TH ADDITIONAL SMALL CAUSE JUDGE & MEMBER MACT BENGALURU AWARDING COMPENSATION OF RS.22 09 000 WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL THE REALIZATION. THIS M.F.A. COMING ON FOR ORDERS THIS DAY ALOK ARADHE J. DELIVERED THE FOLLOWING: This appeal under Section 173(1) of the Motor Vehicles Act 1988has been filed by the insurance company against the judgment dated 11.04.2016 passed by the Motor Accident Claims Tribunal. Facts giving rise to the filing of the appeal briefly stated are that on 30.09.2013 at about 11.30 PM the claimant Chandra Kumar was driving a car bearing registration No.KA 01 AA 7252. When he reached near Madanayakanahalli Village a lorry bearing registration No.MH 04 EY 4452 which was being driven by its driver in a rash and negligent manner applied the brakes suddenly without giving any indications due to which the car driven by the claimant dashed against the lorry. As a result of the aforesaid accident the claimant sustained grievous injuries and was immediately shifted to Premier Sanjeevini Hospital T Dasarahalli where he was treated as inpatient. The claimant thereupon filed a petition under Section 166 of the Act inter alia on the ground that the accident took place on account of rash and negligent driving of the lorry by its driver in which the claimant sustained grievous injuries. It was pleaded that at the time of accident the claimant was aged about 35 years and was employed as a driver and was earning a sum of Rs.16 000 per month. It was also pleaded that the accident occurred due to the rash and negligent driving of the lorry by its driver and that on account of the injuries sustained by him in the accident the claimant is unable to work as normal and has lost his source of income. The insurance company filed written statement in which the mode and manner of the accident was denied. It was pleaded that the accident occurred due to the rash and negligent driving of the car by the claimant himself as the lorry was parked on the extreme left side of the road. It was also pleaded that the driver of the lorry did not hold a valid and effective driving license at the time of accident and that the liability of the insurance company if any would be subject to the terms and conditions of the insurance policy. The age avocation and income of the claimant was also denied and it was pleaded that the claim of the claimant is exorbitant and excessive. The Claims Tribunal on the basis of the pleadings of the parties framed the issues and recorded evidence. The claimant in order to prove his case examined himself as PW1 Dr.PN Prakashand Dr.Vasudha Kand got exhibited documents viz. Ex.P1 to Ex.P16. The insurance company Examined CK Suryaprakash Ikram Pasha RW2) and Jayaramaiah and got exhibited namely Ex.R1 to Ex.R4. The Claims Tribunal by the impugned judgment inter alia held that the accident took place on account of rash and negligent driving of the lorry as well as the car by their respective drivers to the extent of 80% and 20% respectively. It was further held that as a result of aforesaid accident the claimant sustained injuries and that claimant was entitled to a compensation of Rs.22 09 000 along with interest at the rate of 9% per annum. Being aggrieved this appeal has been filed. 6. Learned counsel insurance company submitted that the Tribunal erred in holding that the accident occurred on account of negligence of the driver of the lorry as well as the driver of the car to the extent of 80% and 20% respectively. It is further submitted that the Tribunal ought to have attributed negligence on the part of the claimant atleast to the extent of 50% as the offending lorry was parked on the left side of the road and the claimant failed to exercise care in noticing the parked lorry and in driving his car cautiously. In support of his aforesaid submission reliance has been placed on RAJ RANI Vs ORIENTAL INSURANCE CO. LTD 2009(13) SCC 654. It is also submitted that the Tribunal has awarded compensation for disability suffered by the claimant under the head of Permanent physical Impairment" as well as under the head Loss of Amenities" which would amount to the claimant receiving double benefit in respect of the disability suffered. It is also urged that the income of the claimant assessed by the Tribunal as well as the interest awarded by the Tribunal are on the higher side. 7. We have considered the submissions made by the learned counsel for the parties and have perused the record. The claimant who is an eye witness to the accident has stated in his evidence that the driver of the offending lorry suddenly applied the brakes without giving any indications thereby causing the accident. The claimant has produced Ex.P1 FIR and Complaint as well as Ex.P5 Chargesheet which have been filed against the driver of the lorry disclose that the driver of the lorry suddenly applied brakes and caused the accident. Ex.P3 Spot sketch indicates that the road is a 30 feet wide road and the offending lorry was located on the extreme left side of the road. Ex.P4 IMV report indicates that the car has sustained heavy damage to the front portion whereas the lorry has sustained slight damage to the rear portion. It is pertinent to note that the claimant in his pleading has stated that the lorry was parked on the road without any indications. The insurance company in order to prove its plea of contributory negligence that the lorry was parked on the left side of the road and the driver of the car negligently hit the hind side of the lorry has examined RW2 Ikram Pasha and RW3 Jayaramaiah. However no material inferences can be drawn from their statements. It is pertinent to note here that the insurance company has not examined the driver of the offending lorry or any other eye witness to prove its version of the manner of the accident. It is also pertinent to mention here that the insurance company neither in the pleadings nor through oral evidence has demonstrated that the lorry was parked with parking lights or other any form of indications. It is also apparent from the evidence on record suggests that the road was 30 feet wide and that the claimant has also contributed to the causing of the accident by failing to exercise due care in noticing the lorry which appears to have been parked on the left side of the road and also in driving the car in a rash and negligent manner as is evident from the damage sustained by the car as per Ex.P4 IMV Report. Therefore on the basis of the evidence on record and in view of the decision of the Supreme Court in RAJ RANI Supra we deem it appropriate to hold that the accident occurred on account of negligence of the driver of the lorry as well as the driver of the car equally to the extent of 50% each. 8. Now we may advert the quantum of compensation. The Tribunal has assessed the notional income of the deceased at Rs.9 000 per month. It is not in dispute that the claimant was a employed as a driver at the time of accident. No serious challenge has been made to the nature of his avocation in the pleadings as well as the his cross examination. Therefore the Tribunal has rightly assessed the income of the deceased at Rs.9 000 per month taking into account the age avocation and standard of living of the claimant. The claimant has suffered functional disability to the extent of 100% to the whole body. In view of the law laid down by the Supreme Court in PAPPU DEO YADAV VS NARESH KUMAR AND ORS AIR 2020 SC 4424 the claimant who is aged about 35 years is entitled to an addition of 40% to his income on account future prospects which would amount to Rs.12 600 per month. Therefore the compensation under the head loss of earning capacity is quantified at Rs.24 19 200 of the aforesaid compensation to the claimant. Since the accident is of the year 2014 the prevailing rate of interest for the year 2014 in respect of fixed deposits for one year in nationalized banks being 8% the aforesaid amounts of compensation shall carry interest at the rate of 8% from the date of filing of the petition till the realization of the amount of compensation. To the aforesaid extent the judgment passed by the Claims Tribunal is modified. The amount in deposit if any is ordered to be transmitted to the Tribunal for disbursement. In the result the appeal is disposed of. Sd Sd

In case of Alternative Remedy available, Petition under Article 226 not to be entertained: Delhi High Court

The High Court, in exercise of discretion under Article 226, will not entertain a petition under Article 226 when the statutory alternate remedy is available was held by the Delhi High court in case of RAJNI PARMAR V. DIRECTOR GENERAL ARMED FORCES MEDICAL SERVICES & ORS. [W.P. (C) 11149/2020] Facts of the case are, the petitioner, a Junior Hindi Translator with the respondent No.1 Director General Armed Forces Medical Services (DGAFMS), has filed this petition impugning the order dated 17th December, 2020 and seeking a direction to the respondents to consider the case of the petitioner on compassionate grounds at the post of Junior Hindi Translator at Respondent no. 3 Armed Forces Medical Store Depot (AFMSD) Delhi Cantt., which is stated to be lying vacant. Importantly, the petition was found to be in abuse of the process of the Court.  HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW AND HON’BLE MS. JUSTICE ASHA MENON stated that, “What shocks us is that a transferable employee has been able to, by abusing the process of the court, stall transfer for so long. However, the petitioner, being a civilian employee, has the remedy of approaching the Central Administrative Tribunal (‘CAT’) and has in the past in fact approached the CAT. However, his contention is that the petitioner “can always approach the High Court under Article 226 of the Constitution of India” Also, the counsel for the petitioner does not dispute that the job of the petitioner is transferrable. The counsel for the petitioner however contends that since there is a vacancy at Delhi, the petitioner, owing to her family circumstances, should be posted against that vacancy. However, he again agrees that merely because there is a vacancy, there is no right to be appointed at that vacancy. As far as, the family circumstances of the petitioner are concerned, the same are not found by us to be of such nature which any of the other government employee, also desiring to be posted at Delhi, would not have. Nonetheless, the counsel for the petitioner stated that the petitioner is willing to join at AFMSD Lucknow within two weeks of the transfer order being issued. He stated that the transfer order has not been issued till now and without the transfer order, the petitioner cannot proceed to Lucknow. Moreover, the undertaking of the petitioner that she will, on or before 30th December, 2020, join at AFMSD Lucknow, is accepted and the W.P. (C) 11149/2020 Page 5 of 5 petitioner, through counsel, is made aware of the consequences of breach of undertaking given to the Court.

VC 13 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 24th December 2020 RAJNI PARMAR W.P.11149 2020 Petitioner Through: Mr. Yash Mishra with Ms. Nidhi Jaswal Mr. Ruchi Kohli and Mr. Pronoy Chatterjee Advocates DIRECTOR GENERAL ARMED FORCES MEDICAL SERVICES & ORS. Through: Mr. Jivesh Kumar Tiwari Senior panel counsel HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON BLE MS. JUSTICE ASHA MENON VIA VIDEO CONFERENCING] RAJIV SAHAI ENDLAW J. CM APPL. No.34786 2020 11149 2020 W.P.11149 2020 CM APPL. No.34785 2020The petitioner a Junior Hindi Translator with the respondent No.1 Director General Armed Forces Medical Servicesand being a civilian employee has filed this petition impugning the order dated 17th December 2020 and seeking a direction to the respondents to consider the case of the petitioner on compassionate grounds at the post of Junior Hindi Translator at Respondent no. 3 Armed Forces Medical Store DepotDelhi Cantt. which is stated to be lying vacant. The petitioner being a civilian employee has the remedy of approaching the Central Administrative Tribunaland has in the past in fact approached the CAT and the counsel for the petitioner also does not controvert the same. However his contention is that the petitioner “can always approach the High Court under Article 226 of the Constitution of India”. Undoubtedly so but it is also a settled principle of law that the High Court in exercise of discretion under Article 226 will not entertain a petition under Article 226 when the statutory alternate remedy is available. Reference in this regard may be made to Sudhana Lodh Vs. National Insurance Co. Ltd.3 SCC 524 U.P. State Bridge Corporation Ltd. Vs. U.P. Rajya Setu Nigam S. Karamchari Sangh4 SCC 268 A.P. Foods Vs. S. Samuel 2006) 5 SCC 469 and Bela Rani Bhattacharyya Vs. Union of India213 DLT 111149 2020 6. The petitioner in the present case was issued a Movement Order dated 12th May 2017 asking her to move from Delhi to AFMSD Lucknow. We are aghast that the petitioner has been able to stall her order of transfer movement for the last more than 3 ½ years first by approaching the CAT in OA 1695 2017 which application was eventually withdrawn and thereafter by filing W.P.(C) 5331 2017 and W.P.(C)1304 2018 in this court and thereafter again by filing another miscellaneous application before the CAT. The counsel for the petitioner does not dispute that the job of the petitioner is transferrable. What shocks us is that a transferable employee has been able to by abusing the process of the court stall transfer for so long. The counsel for the petitioner however contends that since there is a vacancy at Delhi the petitioner owing to her family circumstances should be posted against that vacancy. However he again agrees that merely because there is a vacancy there is no right to be appointed at that vacancy. As far as the family circumstances of the petitioner are concerned the same are not found by us to be of such nature which any of the other government employee also desiring to be posted at Delhi would not have. The petitioner cannot claim a right to remain posted at Delhi. The counsel for the petitioner then states that vide the impugned order the petitioner has been asked to join at AFMSD Lucknow and that her representation for being posted against the vacancy would be considered thereafter. He contends that the W.P.11149 2020 petitioner will join at AFMSD Lucknow but a direction for decision on her representation in a time bound manner be granted. However when we asked the counsel for the petitioner whether the petitioner is willing to give an undertaking to this court that she will join at AFMSD Lucknow it is conveniently said that the counsel has no instructions. In the circumstances since there is no certainty of the petitioner still joining at AFMSD Lucknow the question of issuing any direction for time bound decision of the representation after the petitioner has joined at AFMSD Lucknow also cannot be given. The petition is found to be in abuse of the process of the At this stage the counsel for the petitioner states that the petitioner is willing to join at AFMSD Lucknow within two weeks of the transfer order being issued. He states that the transfer order has not been issued till now and without the transfer order the petitioner cannot proceed to Lucknow. The counsel for the respondents after taking telephonic instructions states that the transfer order has already been issued. The counsel for the petitioner states that on the basis of the said statement the petitioner will join at AFMSD Lucknow on or before 30th December 2020. The undertaking of the petitioner that she will on or before 30th December 2020 join at AFMSD Lucknow is accepted and the W.P.11149 2020 petitioner through counsel is made aware of the consequences of breach of undertaking given to the Court. Subject to the petitioner complying with the undertaking and performing her duties at AFMSD Lucknow the writ petition be treated as a representation of the petitioner for being transferred from AFMSD Lucknow to a unit in Delhi and the said representation be decided on or before 31st March 2021. The petition is disposed of in terms of the above. RAJIV SAHAI ENDLAW ASHA MENON DECEMBER 24 2020 mw W.P.11149 2020

Proceedings may be quashed even in non-compoundable offences if the parties have compromised: High court of Himachal Pradesh

Judicial proceedings if the offence is non-compoundable can be quashed if the interest of justice will be ultimately met. Such an option is available only if there is a compromise between the parties and the chances of conviction are bleak even if the trial is allowed to continue. This was decreed by the single judge bench comprising of The Hon’ble Mr. Justice Chander Bhusan Barowalia in Smt. Sagari Devi and ors. Vs. State of H.P. & ors. [Cr. MMO No. 291 of 2021. Decided on: 2nd July, 2021]. The brief facts of the case are, respondent No.4 got married to petitioner No.2 on the 30th of January 2020. It was later reported that the petitioners started maltreating and harassing her for the reasons of insufficient dowry. Based on the same, an FIR was registered against the petitioners. However, on 17.06.2021, the parties entered into a compromise deed and did not want to pursue this case against each other and have thus filed a petition before this court to quash the proceedings. The learned counsel for the petitioners submitted that the parties have compromised and there would be no purpose in going forward with the proceedings and thus this must be quashed. The learned additional advocate however submits that, the offence is not compoundable and in case of a non-compoundable offence, the petition cannot be quashed but only dismissed. The learned judge after listening to both the parties has opined that, for the purpose of securing the ends of justice, it is necessary to quash an FIR. He relied on the judgement by the Hon’ble supreme court in B.S. Joshi and others vs. State of Haryana and another, (2003) 4 SCC 675, where in it was held that, “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.” The court also placed heavy reliance on Preeti Gupta and another vs. State of Jharkhand and another, (2010) 7 SCC 667, where the court held that, “the ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. The tendency of implicating the husband and all his immediate relations is also not uncommon. At times, even after the conclusion of the criminal trial, it is difficult to ascertain the real truth. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. The criminal trials lead to immense sufferings for all concerned. Their Lordships have further held that permitting complainant to pursue complaint would be abuse of process of law and the complaint against the appellants was quashed.”

Hig h C o urt of H.P on 03 07 CIS IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MMO No. 2921. Decided on: 2nd July 2021. _________________________________________________________ Smt. Sagari Devi and ors. ...Petitioners. Versus State of H.P. & ors. …Respondents. _______________________________________________________________ Coram The Hon ble Mr. Justice Chander Bhusan Barowalia Judge. 1 Whether approved for reporting Yes. _________________________________________________________ For the petitioners: Mr. Pawanish Kumar Shukla Advocate. For the respondents: Mr. P.K. Bhatti Additional Advocate General for respondents No.1 to 3. Mr. Abhay Kaushal Advocate for respondent No.4. _________________________________________________________ Chander Bhusan Barowalia Judge The instant petition under Section 482 of the Code of Criminal Procedurehas been maintained by the petitioners for quashing of F.I.R No. 1120 dated 05.08.2020 under Sections 498 A 323 504 read with section 34 of the Indian Penal Coderegistered at Police Station Hatali Baldwara Sarkaghat District Mandi H.P. alongwith all 1 Whether reporters of Local Papers may be allowed to see the judgment Yes. Hig h C o urt of H.P on 03 07 CIS 2 consequent proceedings arising out of the said F.I.R. pending before the learned trial Court. 2. Briefly stating the facts giving rise to the present petition as per the prosecution story are that on 30.1.2020 respondent No.4 solemnized marriage with petitioner No.2 at Village Matoli Post Office Smaila Tehsil Baldwara District Mandi according to Hindu Rites and ceremonies. After sometime petitioners started maltreating respondent No.4 regarding insufficient dowry and started treating her with cruelty. Consequent upon the statement of respondent No.4 Police registered an FIR against the petitioners. Now the parties have entered into a compromise vide Compromise Deed dated 17.6.2021 Annexure P 2 and they do not want to pursue the case against each other hence the present petition. 3. Learned counsel for the petitioners has argued that as the parties have compromised the matter no purpose will be served by keeping the proceedings against the petitioners and the FIR Challan may be quashed and set aside. 4. On the other hand learned Additional Advocate General has argued that the offence is not compoundable so the petition may be dismissed. Hig h C o urt of H.P on 03 07 CIS 3 5. Learned counsel for respondent No.4 submits that the parties have entered into compromise and so the proceedings pending before the learned Court below may be quashed. 6. To appreciate the arguments of learned counsel appearing on behalf of the parties I have gone through the entire record in detail. 7. Their Lordships of the Hon’ble Supreme Court B.S. Joshi and others vs. State of Haryana and another 4 SCC 675 have held 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 well settled that the powers under section 482 have no limits. Of course where there is more power it becomes necessary to exercise utmost care and caution while invoking such powers. Their Lordships have held as under:In Pepsi Food Ltd. and another v. Special Judicial Magistrate and others5 SCC 749) this Court with reference to Bhajan Lal s case observed that the guidelines laid therein as to where the Court will exercise jurisdiction under Section 482 of the Code could not be inflexible or laying rigid formulae to be followed by the Courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is well settled that these powers have no limits. Of course where there is more power it becomes necessary to exercise utmost care and caution while invoking such powers. Hig h C o urt of H.P on 03 07 CIS 4 It is thus clear that Madhu Limaye s case 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. 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. 8. Their Lordships of the Hon’ble Supreme Court in Preeti Gupta and another vs. State of Jharkhand and another 7 SCC 667 have held that the ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. The tendency of implicating the husband and all his immediate relations is also not uncommon. At times even after the conclusion of the criminal trial it is difficult to ascertain the real truth. Experience reveals that long and protracted criminal trials lead to rancour acrimony and bitterness in the relationship amongst the parties. The criminal trials lead to immense sufferings for all concerned. Their Lordships have further held that permitting complainant to pursue complaint would be abuse of process of law and the complaint against the appellants was quashed. Their Lordships have held as under:A three Judge Benchof this Court in Inder Mohan Goswami and Another v. State of Uttaranchal & Others 2007 12 SCC 1 comprehensively examined the legal position. The court came to a definite conclusion and the relevant observations of the court are reproduced in para 24 of the said judgment as under: "Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute." We have very carefully considered the averments of the complaint and the statements of all the witnesses recorded at the time of the filing of the complaint. There are no specific allegations against the appellants in the complaint and none of the witnesses have alleged any role of both the appellants. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times even after the conclusion of criminal trial it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband s relations had to remain in jail even for a few days it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful. Before parting with this case we would like to observe that a serious relook of the entire provision is warranted by the legislature. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. Hig h C o urt of H.P on 03 07 CIS 6We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary Government of India who may place it before the Hon ble Minister for Law & Justice to take appropriate steps in the larger interest of the society. 9. Their Lordships of the Hon’ble Supreme Court in Jitendra Raghuvanshi and others vs. Babita Raghuvanshi and another 4 SCC 58 have held that criminal proceedings or FIR or complaint can be quashed under Section 482 Cr. P.C. in appropriate cases in order to meet ends of justice. Even in non compoundable offences pertaining to matrimonial disputes if court is satisfied that parties have settled the disputes amicably and without any pressure then for purpose of securing ends of justice FIR or complaint or subsequent criminal proceedings in respect of offences can be quashed. Their Lordships have held as under: As stated earlier it is not in dispute that after filing of a complaint in respect of the offences punishable under Sections 498A and 406 of IPC the parties in the instant case arrived at a mutual settlement and the complainant also has sworn an affidavit supporting the stand of the appellants. That was the position before the trial Court as well as before the High Court in a petition filed under Section 482 of the Code. A perusal of the impugned order of the High Court shows that because the mutual settlement arrived at between the parties relate to non compoundable offence the court proceeded on a wrong premise that it cannot be compounded and dismissed the petition filed under Section 482. A perusal of the petition before the High Court shows that the application filed by the appellants was not for compounding of non compoundable offences but for the purpose of quashing the criminal proceedings. The inherent powers of the High Court under Section 482 of the Code are wide and unfettered. In B.S. Joshi this Court has upheld the powers of the High Court under Section 482 to quash criminal proceedings where dispute is of a private nature and a compromise is entered into between the parties who are willing to settle their differences amicably. We are satisfied that the said decision is directly Hig h C o urt of H.P on 03 07 CIS 7 applicable to the case on hand and the High Court ought to have quashed the criminal proceedings by accepting the settlement arrived at. In our view it is the duty of the courts to encourage genuine settlements of matrimonial disputes particularly when the same are on considerable increase. Even if the offences are non compoundable if they relate to matrimonial disputes and the court is satisfied that the parties have settled the same amicably and without any pressure we hold that for the purpose of securing ends of justice Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR complaint or the subsequent criminal proceedings. There has been an outburst of matrimonial disputes in recent times. The institution of marriage occupies an important place and it has an important role to play in the society. Therefore every effort should be made in the interest of the individuals in order to enable them to settle down in life and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law in order to do complete justice in the matrimonial matters the courts should be less hesitant in exercising its extraordinary jurisdiction. It is trite to state that the power under Section 482 should be exercised sparingly and with circumspection only when the court is convinced on the basis of material on record that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. We also make it clear that exercise of such power would depend upon the facts and circumstances of each case and it has to be exercised in appropriate cases in order to do real and substantial justice for the administration of which alone the courts exist. It is the duty of the courts to encourage genuine settlements of matrimonial disputes and Section 482 of the Code enables the High Court and Article 142 of the Constitution enables this Court to pass such orders. 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. Under these circumstances we set aside the impugned judgment of the High Court dated 04.07.2012 passed in M.C.R.C. No. 28712 and quash the proceedings in Criminal Case No. 41611 pending on the file of Judicial Magistrate Class I Indore.” 10. Similarly Hon’ble Supreme Court in Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur and others vs. State of Gujarat and another 9 Supreme Court Cases 641 wherein it has been held as under : “16. The broad principles which emerge from the Hig h C o urt of H.P on 03 07 CIS 8 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 exercised to 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 in so far 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 Hig h C o urt of H.P on 03 07 CIS 9 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. Even if the trial is allowed to be continued as the parties have compromised the matter there are bleak chances of conviction to secure the ends of justice. 11. Thus taking into consideration the law as discussed hereinabove I find that the interest of justice will be met in case the proceedings are quashed as the parties have already compromised the matter 12. Accordingly looking into all attending facts and circumstances I find this case to be a fit case to exercise jurisdiction vested in this Court under Section 482 of the Code and accordingly F.I.R No. 1120 dated 05.08.2020 under Sections 498 A 323 504 read with section 34 of IPC registered at Police Station Hatali Baldwara Sarkaghat District Mandi H.P is ordered to be quashed and consequently the proceedings pending before the learned Trial Court arising out Hig h C o urt of H.P on 03 07 CIS 10 of the aforesaid FIR are also ordered to be quashed. 13. The petition is accordingly disposed of alongwith pending applications if any. Judge 2nd July 2021

Insurance company is not liable to pay Compensation if the Driver does not possess a Valid Driving Licence

The Hon’ble Supreme Court of India in Beli Ram V. Rajinder Kumar and Anr. [CIVIL APPEAL NOS. 7220-7221 OF 2011] held that an Insurance Company cannot be made liable in the event there was an expired licence held by the driver who was driving his employer’s insured vehicle. The three-judge bench comprising of Hon’ble Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari were examining the question of “whether an insured employer would be absolved of liability in a case where his employee drives a vehicle owned by the employer and meets with an accident while holding an expired driving licence.” The Hon’ble court observed that “We are of the view that once the basic care of verifying the driving licence has to be taken by the employer, though a detailed enquiry may not be necessary, the owner of the vehicle would know the validity of the driving licence as is set out in the licence itself. It cannot be said that thereafter he can wash his hands off the responsibility of not checking up whether the driver has renewed the licence. It is not a case where a licence has not been renewed for a short period of time, say a month, as was considered in the case of Swaran Singh where the benefit was given to a third party by burdening the insurance company. The licence in the instant case, has not been renewed for a period of three years and that too in respect of commercial vehicle like a truck. The appellant showed gross negligence in verifying the same.” The Hon’ble Court referred to Delhi High Court judgment in the case Tata AIG General Insurance Co. Ltd. v. Akansha & Ors where the onus to prove that there was no breach of insurance policy was shifted to the owner/insured after the insurance company showed that valid licence did not exist on the day of the accident. A similar position was taken by the The Allahabad High Court in The Oriental Insurance Co. Ltd. v Manoj Kumar & Ors where the High Court opined that the “owner was supposed to be aware that the driving licence of the driver had expired and, thus, it was held that it was the duty of the owner to have ensured that the driver gets the licence renewed within time.“ The third judgment Hon’ble Supreme Court placed reliance on was Himachal Pradesh High Court’s verdict in the National Insurance Co. Ltd. v. Hem Raj & Ors where the driver was said to not hold a duly valid licence considering that the licence had been expired and was not renewed in thirty days. It was held by the Hon’ble Court that “When we turn to the facts of the present case there is almost an identical situation where the appellant has permitted to let the first respondent driver drive the truck with an expired licence for almost three (3) years. It is clearly a case of lack of reasonable care to see that the employee gets his licence renewed, further, if the original licence is verified, certainly the employer would know when the licence expires. And here it was a commercial vehicle being a truck. The appellant has to, thus, bear responsibility and consequent liability of permitting the driver to drive with an expired licence over a period of three (3) years.” Click to read Judgement The three-judge bench comprising of Hon’ble Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari were examining the question of “whether an insured employer would be absolved of liability in a case where his employee drives a vehicle owned by the employer and meets with an accident while holding an expired driving licence.” The Hon’ble court observed that “We are of the view that once the basic care of verifying the driving licence has to be taken by the employer, though a detailed enquiry may not be necessary, the owner of the vehicle would know the validity of the driving licence as is set out in the licence itself. It cannot be said that thereafter he can wash his hands off the responsibility of not checking up whether the driver has renewed the licence. It is not a case where a licence has not been renewed for a short period of time, say a month, as was considered in the case of Swaran Singh where the benefit was given to a third party by burdening the insurance company. The licence in the instant case, has not been renewed for a period of three years and that too in respect of commercial vehicle like a truck. The appellant showed gross negligence in verifying the same.” The Hon’ble Court referred to Delhi High Court judgment in the case Tata AIG General Insurance Co. Ltd. v. Akansha & Ors where the onus to prove that there was no breach of insurance policy was shifted to the owner/insured after the insurance company showed that valid licence did not exist on the day of the accident. A similar position was taken by the The Allahabad High Court in The Oriental Insurance Co. Ltd. v Manoj Kumar & Ors where the High Court opined that the “owner was supposed to be aware that the driving licence of the driver had expired and, thus, it was held that it was the duty of the owner to have ensured that the driver gets the licence renewed within time.“ The third judgment Hon’ble Supreme Court placed reliance on was Himachal Pradesh High Court’s verdict in the National Insurance Co. Ltd. v. Hem Raj & Ors where the driver was said to not hold a duly valid licence considering that the licence had been expired and was not renewed in thirty days. It was held by the Hon’ble Court that “When we turn to the facts of the present case there is almost an identical situation where the appellant has permitted to let the first respondent driver drive the truck with an expired licence for almost three (3) years. It is clearly a case of lack of reasonable care to see that the employee gets his licence renewed, further, if the original licence is verified, certainly the employer would know when the licence expires. And here it was a commercial vehicle being a truck. The appellant has to, thus, bear responsibility and consequent liability of permitting the driver to drive with an expired licence over a period of three (3) years.” Click to read Judgement The Hon’ble court observed that “We are of the view that once the basic care of verifying the driving licence has to be taken by the employer, though a detailed enquiry may not be necessary, the owner of the vehicle would know the validity of the driving licence as is set out in the licence itself. It cannot be said that thereafter he can wash his hands off the responsibility of not checking up whether the driver has renewed the licence. It is not a case where a licence has not been renewed for a short period of time, say a month, as was considered in the case of Swaran Singh where the benefit was given to a third party by burdening the insurance company. The licence in the instant case, has not been renewed for a period of three years and that too in respect of commercial vehicle like a truck. The appellant showed gross negligence in verifying the same.” The Hon’ble Court referred to Delhi High Court judgment in the case Tata AIG General Insurance Co. Ltd. v. Akansha & Ors where the onus to prove that there was no breach of insurance policy was shifted to the owner/insured after the insurance company showed that valid licence did not exist on the day of the accident. A similar position was taken by the The Allahabad High Court in The Oriental Insurance Co. Ltd. v Manoj Kumar & Ors where the High Court opined that the “owner was supposed to be aware that the driving licence of the driver had expired and, thus, it was held that it was the duty of the owner to have ensured that the driver gets the licence renewed within time.“ The third judgment Hon’ble Supreme Court placed reliance on was Himachal Pradesh High Court’s verdict in the National Insurance Co. Ltd. v. Hem Raj & Ors where the driver was said to not hold a duly valid licence considering that the licence had been expired and was not renewed in thirty days. It was held by the Hon’ble Court that “When we turn to the facts of the present case there is almost an identical situation where the appellant has permitted to let the first respondent driver drive the truck with an expired licence for almost three (3) years. It is clearly a case of lack of reasonable care to see that the employee gets his licence renewed, further, if the original licence is verified, certainly the employer would know when the licence expires. And here it was a commercial vehicle being a truck. The appellant has to, thus, bear responsibility and consequent liability of permitting the driver to drive with an expired licence over a period of three (3) years.” Click to read Judgement

REPORTABLE IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 7220 7221 OF 2011 …Appellant RAJINDER KUMAR & ANR …Respondents JUDGMENT SANJAY KISHAN KAUL J The sole question of law for consideration in the present appeals is whether in case of a valid driving licence if the licence has expired the insured is absolved of its liability The facts are in a very narrow compass. The first respondent herein met with an accident on 20.5.1999 while driving a truck owned by the appellant herein under whom he was gainfully employed. The consequence for the first respondent was 20 per cent permanent disability. The first respondent herein filed a petition under the Workmen’s Compensation Act 1923 before the Commissioner Sadar Bilaspur on 17.2.1999 seeking compensation of an amount of Rs.5 00 000 impleading the appellant and second respondent herein the insurance company which had insured the vehicle. These proceedings resulted in an award by the Commissioner on 8.12.2004 granting Rs. 94 464 for the injuries suffered and Rs.67 313 towards medical expenses of the first respondent. The amounts awarded were to carry interest @ 9 per cent per annum from the date of filing of the application till the date of payment. The compensation amount was mulled on to the second respondent as insurer while the interest was directed to be paid by the The parties to the proceedings all filed appeals aggrieved by different aspects of the award. An intrinsic part of the consideration by the High Court was the issue raised about the validity of the driving licence of the first respondent at the time of the accident. The driving licence was endorsed by the Superintendent of R&LA Office Udaipur but the licence expired on 6.9.1996 and there was no endorsement for renewal thereafter. Thus the first respondent was driving the vehicle as the driver of the appellant herein for almost three years without the licence being renewed The aforesaid aspect of the non validity of the driving licence weighed with the High Court while passing the impugned judgment dated 3.3.2009 absolving the insurance company of any liability and fastening the same upon the appellant herein on account of there being a material breach of the insurance policy The High Court after the aforesaid finding took note of Section 4 of the Compensation Act more specifically the following aspect “4. Amount of compensation 1) Subject to the provisions of this Act the amount of compensation shall be as follows namely: a) Where death results from the An amount equal to fifty per cent of the monthly wages of the deceased workman multiplied by the relevant factor Where permanent disability results from the injury An amount of eighty thousand whichever is more An amount equal to sixty per cent of the monthly wages of the injured workman multiplied by the relevant factor An amount of ninety thousand rupees whichever is more Explanation I. For the purposes of clause and clause relevant factor" in relation to a workman means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due.” On consideration of the aforesaid provision the High Court opined that there was no provision under the Compensation Act for payment of medical expenditure incurred by the claimant for treatment. The accident having taken place in the year 1999 the monthly wages stated to be Rs.4 500 it was found that the maximum amount of wages permissible under the Compensation Act for determining the compensation could be Rs.2 000 . Compensation was liable to be paid within thirtydays of the accident and the owner could have recovered the amount from the insurer if ultimately it was established that the insurer was liable to have indemnified the insured. The appellant was found to be in breach of the statutory duty of a benevolent legislation i.e. the Compensation Act and thus the appellant was burdened to pay interest as also maximum penalty of 50 per cent. The amount of compensation was thus quantified as “1. Amount of compensation Rs. 83 968 2. Penalty @ 50% on the amount of Rs. 41 984 3. Interest w.e.f. 20.6.1999 to 3.3.2009 9 years & 257 days) on the amount of Rs. 73 335 ” The result was that the appeals of the insurer and the claimant were allowed. The endeavour to seek review of the judgment on the basis of pronouncement of this Court in National Insurance Co. Ltd. v. Swaran Singh and Ors.1 failed and the application was dismissed on 8.7.2009. The only question which has been debated before us is as set out at the inception of the judgment. The appellant sought to rely upon the 13 SCC 297 recent judgment of this Court Nirmala Kothari v. United India Insurance Company Limited.2 The question of law examined in this judgment was as to what is the extent of care diligence expected of the employer insured while employing a driver. The legal position regarding the liability of the insurance company when the driver of the offending vehicle possessed an invalid fake driver’s licence was adverted to for answering this question by referring to earlier judicial pronouncements and the same was culled out in para 12 as under “12. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the insurance company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However if the insurance company is able to prove that the owner insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive the insurance company would no longer continue to be liable.” 9. We have heard learned counsel for the parties and on a query being 24 SCC 49of the Motor Vehicles Act 1988licence not held fake licence held licence held but validity whereof has expired licence not held for type of vehicle being driven andlearner’s licence held. We may note here that the facts of the present case relate to eventualityabove. A liberal view was taken considering the intent of the legislation in question and that it was a case of a third party claim. In an endeavour of the insurance company to absolve itself of liability the following observations were “41. However clauseopens with the words "that there has been a breach of a specified condition of the policy" implying that the insurer s defence of the action would depend upon the terms of the policy. The said sub clause contains three conditions of disjunctive character namely the insurer can get away from the liability when a) a named person drives the vehicle it was being driven by a person who did not have a duly granted licence anddriver is a person disqualified for holding or obtaining a driving licence 42. We may also take note of the fact that whereas in Section 3 the words used are effective licence it has been differently worded in Section 149(2) i.e. duly licensed . If a person does not hold an effective licence as on the date of the accident he may be liable for prosecution in terms of Section 141 of the Act but Section 149 pertains to insurance as regard third party risks 43. A provision of a statute which is penal in nature vis a vis a provision which is beneficent to a third party must be interpreted differently. It is also well known that the provisions contained in different expressions are ordinarily construed differently 44. The words “effective licence” used in Section 3 therefore in our opinion cannot be imported for sub sectionof Section 149 of the Motor Vehicles Act. We must also notice that the words duly licensed used in sub sectionof Section 149 are used in past 45. Thus a person whose licence is ordinarily renewed in terms of the Motor Vehicles Act and the rules framed thereunder despite the fact that during the interregnum period namely when the accident took place and the date of expiry of the licence he did not have a valid licence he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefor. Proviso appended to Section 14 in unequivocal term states that the licence remains valid for a period of thirty days from the day of its expiry.” “48. Furthermore the insurance company with a view to avoid its liabilities is not only required to show that the conditions laid down under Section 149(2)(a) or are satisfied but is further required to establish that there has been a breach on the part of the insured. By reason of the provisions contained in the 1988 Act a more extensive remedy has been conferred upon those who have obtained judgment against the user of a vehicle and after a certificate of insurance is delivered in terms of Section 147(3) a third party has obtained a judgment against any person insured by the policy in respect of a liability required to be covered by Section 145 the same must be satisfied by the insurer notwithstanding that the insurer may be entitled to avoid or to cancel the policy or may in fact have done so. The same obligation applies in respect of a judgment against a person not insured by the policy in respect of such a liability but who would have been covered if the policy had covered the liability of all persons except that in respect of liability for death or bodily injury.” 12. We may next advert to the judgment in the Nirmala Kothari4 case The judgment was sought to be canvassed in support of the proposition by learned counsel for the appellant and we reproduce the relevant paragraphs in addition to the one reproduced above as under “10. While the insurer can certainly take the defence that the licence of the driver of the car at the time of accident was invalid fake however the onus of proving that the insured did not take adequate care and caution to verify the genuineness of the licence or was guilty of willful breach of the conditions of the insurance policy or the contract of insurance lies on the insurer 11. The view taken by the National Commission that the law as settled in the PEPSU case is not applicable in the present matter as it related to third party claim is erroneous. It has been categorically held in the case of National Insurance Co. Ltd. vs Swaran Singh & Ors.that “110.2 TAC 52 Manoj Kumar & Ors.7 again dealt with the case of an expired driving licence. The endeavour to rely on the principle set forth in a fake licence case was held not applicable in the case of an expired licence since the owner was supposed to be aware that the driving licence of the driver had expired and thus it was held that it was the duty of the owner to have ensured that the driver gets the licence renewed within time. In the absence of a valid driving licence the vehicle was being driven in breach of the condition of the policy requiring the vehicle to be driven by a person who is duly licensed and thus there was breach of Section 149(2 a)(ii) of the MV Act the consequence being that the insurance company could not he held liable The last judgment is of the Himachal Pradesh High Court in National Insurance Co. Ltd. v. Hem Raj & Ors.8 This was once again a case of an originally valid licence which had expired there was no question of a fake licence. It was opined that the conclusions to be drawn from the observations of the judgment in the Swaran Singh9 case of this Court were that the insurance company can defend an action on the 7 111 ALR 275 days of the expiry of the licence as provided in Sections 14 & 15 of the MV Act. In this context it was observed that the Swaran Singh.10 case did not deal with the consequences if the licence is not renewed within the period of thirtydays. If the driving licence is not renewed within thirty 30) days it was held the driver neither had an effective driving licence nor can he said to be duly licenced. The conclusion thus was that the driver who permits his licence to expire and does not get it renewed till after the accident cannot claim that it should be deemed that the licence is renewed retrospectively The learned Judge debated the question of the consequences of the MV Act being a beneficial piece of legislation. Thus if two interpretations were possible it was opined that the one which is in favour of the claimants should be given but violence should not be done to the clear and plain language of the statute. Thus while protecting the rights of the claimants by asking the insurance company to deposit the amount the recovery of the same from the insured would follow as the sympathy can only be for the victim of the accident. The right which has to be protected is of the victim and not the owner of the vehicle. It was thus observed in para 18 as under “18. When an employer employees a driver it is his duty to check that the driver is duly licensed to drive the vehicle. Section 5 of the Motor Vehicles Act provides that no owner or person incharge of a motor vehicle shall cause or permit any person to drive the vehicle if he does not fulfil the requirements of Sections 3 and 4 of the Motor Vehicles Act. The owner must show that he has verified the licence. He must also take reasonable care to see that his employee gets his licence renewed within time. In my opinion it is no defence for the owner to plead that he forgot that the driving licence of his employee had to be renewed. A person when he hands his motor vehicle to a driver owes some responsibility to society at large. Lives of innocent people are put to risk in case the vehicle is handed over to a person not duly licensed. Therefore there must be some evidence to show that the owner had either checked the driving licence or had given instructions to his driver to get his driving licence renewed on expiry thereof. In the present case no such evidence has been led. In view of the above discussion I am clearly of the view that there was a breach of the terms of the policy and the Insurance Company could not have been held liable to satisfy the claim.” 22. We have reproduced the aforesaid observations as it is our view that it sets forth lucidly the correct legal position and we are in complete agreement with the views taken in all the three judgments of three different High Courts with the culmination being the elucidation of the correct legal principle in the judgment in the Hem Raj11 case 23. When we turn to the facts of the present case there is almost an identical situation where the appellant has permitted to let the first respondent driver drive the truck with an expired licence for almost three 3) years. It is clearly a case of lack of reasonable care to see that the employee gets his licence renewed further if the original licence is verified certainly the employer would know when the licence expires And here it was a commercial vehicle being a truck. The appellant has to thus bear responsibility and consequent liability of permitting the driver to drive with an expired licence over a period of threeyears The only thing we note is that fortunately there has been no accident with a third party claimant but the person who has caused the sufferance and sufferer are one and the same person i.e. the first respondent driver. We are however dealing with the determination under the Compensation Act and those provisions are for the benefit of the workmen like the first respondent even though he may be at fault by determining a small amount payable to provide succor at the relevant stage when the larger issues could be debated in other proceedings The only exception is in the provisos to Section 3 of the Compensation Act which is not the factual situation in the present case The relevant provision reads as under “3. Employer s liability for compensation. 1) If personal injury is caused to a workman by accident arising out of and in the course of his employment his employer shall be liable to pay compensation in accordance with the provisions of Provided that the employer shall not be so liable a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceedingin respect of anyan accident which is directly attributable to i) the workman having been at the time thereof under the influence of drink or drugs or ii) the wilful disobedience of the workman to an order expressly given or to a rule expressly framed for the purpose of securing the safety of workmen or iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of We are not aware whether any other proceedings have been initiated or not at least none that have been brought to our notice. The aforesaid findings of the initial lack of care by the first respondent in not renewing the driving licence would be present but the lack of care of the appellant as the employer would also arise. We have penned down the aforesaid views as such a situation is quite likely to arise in proceedings under the MV Act where a third party is claiming the amount Proceedings here being under the Compensation Act the consequences are not flowing to the first respondent as the initial negligent person In view of the aforesaid the appeals are dismissed by settling the aforesaid question of law and leaving the parties to bear their own costs Sanjay Kishan Kaul September 23 2020

Bhupinder Singh V/s U.T Of Chandigarh

The high court found that the case at hand was covered by clause “FOURTHLY” of section 375 IPC and, therefore, the accused-appellant was guilty of the offence and was liable for punishment under section 376 IPC [Case Brief] Bhupinder Singh V/s U.T Of Chandigarh Case name: Bhupinder Singh V/s U.T Of Chandigarh Case number: S.L.P. (Crl.) No.1411 of 2007 Court: The Supreme Court Of India Bench: Justice Arijit Pasayat, Justice P. Sathasivam Decided on: JULY 10, 2008 Relevant Act/Sections: Section 376, 420 and 498-A IPC, 1860 ➢ Complainant Manjit Kaur filed a case against Bhupinder Singh stating that she was employed as a clerk in bank employee’s thrift credit society. Bhupinder Singh was employed as data entry operator in state bank of Patiala at Chandigarh. He used to come to her office and developed intimacy and then asked her to marry after disclosing himself as an unmarried person. Bhupinder Singh insisted her to get married at the earliest in the gurudwara following a simple ceremony and the permission of the parents will be taken later on and thereafter marriage would be solemnized with great pomp and show. She accepted the proposal. On 4-12-1990 Bhupinder Singh and Manjit kaur got solemnized their marriage by exchanging garlands before the holy granth sahib. Then she stayed with accused in sector 22C Chandigarh. Accused has also taken loan of Rs.5000 from a society at Panchkula in May 1991 where he had nominated as her wife.She became pregnant and accused got her aborted from Kaushal nursing home against her wishes. Then she again became pregnant in July 1993 and their relations remained cordial till march 1994 4. On 6-3-1994 when she had gone to rose garden, she met Devinder bansal and Vinod Sharma who were friends of the accused. They told her that the accused was already married with Gurinder kaur and having children from the said wedlock. She was shocked to know this and after reaching the home, she asked about Bhupinder Singh who on the same day left for Patiala on the pretext of attending some training course and did not return till 13-3-1994. 5. On 16-4-1994 she was admitted in general hospital and gave birth to female child. She told accused about the child as he was the father but he did not turn up. ➢ PROCEDURAL HISTORY: Challenge in these appeals is the judgment of a learned Single Judge of the Punjab and Haryana High Court in Criminal Appeal No.698-SB/1999. The appellant Bhupinder Singh (hereinafter referred to as the ‘accused’) had filed the appeal before the High Court against the judgment dated 20.9.1999 passed by learned Additional Sessions Judge, Chandigarh, convicting him for offences punishable under Sections 376 and 417 of the Indian Penal Code, 1860 (in short ‘the Code’). He was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- with default stipulations for the first offence and rigorous imprisonment for nine months in respect of the second offence. The High Court found that Bhupinder Singh and Manjit kaur living as husband wife together for pretty long time at different places. There had been sexual intercourse for which Manjit kaur has given consent treating Bhupinder Singh as husband and Manjit kaur had become pregnant. Bhupinder Singh very well knew that he was married to Gurinder Kaur. Present case will squarely be covered under the description “fourthly” of Section 375 IPC and therefore, the accused was guilty of the offence and was liable for punishment under Section 376 IPC. Accordingly, the conviction, as done, was upheld. The High Court also found that by the statements of Gurinder Kaur and other defence witnesses it cannot be said that Manjit Kaur did not know about the fact that Bhupinder Singh was already married with Gurinder Kaur and held that the case was a fit one for reduction of sentence and award of adequate compensation. Therefore, case for the offence under Section 417 IPC was not made out and the appellant was acquitted of that offence. Accordingly, custodial sentence of three years rigorous imprisonment was imposed in place of seven years rigorous imprisonment as was done by the trial court. The compensation was fixed at Rs. 1,00,000/- which was directed to be paid within three months. It was indicated that in case the compensation amount was not paid, the reduction in sentence would not be given effect to. ➢ ISSUE BEFORE THE COURT: Whether the high court was erroneous in its decision to reduce the sentence of accused appellant to 3 years?Whether the case was within the scope of Section 375(4) of the IPC?➢ RATIO OF THE COURT:The Counsel for the appellant submitted that when the complainant knew that he was a married man and yet consented for sexual intercourse with him, Clause “Fourthly” of Section 375 IPC would have no application. It was also submitted that the fact that the complainant knew about his being a married man, is clearly established from the averments made in a suit filed by her where she had sought for a declaration that she is the wife of the accused. Though it is urged with some amount of vehemence that when complainant knew that he was a married man, Clause “Fourthly” of Section 375 IPC has no application, the stand is clearly without substance. Even though, the complainant claimed to have married the accused, which fact is established from several documents, that does not improve the situation so far as the accused-appellant is concerned. Since, he was already married, the subsequent marriage, if any, has no sanctity in law and is void ab-initio. In any event, the accused-appellant could not have lawfully married the complainant. A bare reading of Clause “Fourthly” of Section 375 IPC makes this position clear. It is pointed out by learned counsel for the appellant that the date of knowledge claimed by the complainant is 6.3.1994, but the first information report was lodged on 19.9.1994. The complainant has explained that she delivered a child immediately after learning about the incident on 16.4.1994 and, therefore, was not in a position to lodge the complaint earlier. According to her she was totally traumatized on learning about the marriage of the accused appellant. Though the explanation is really not satisfactory, but in view of the position in law that the accused was really guilty of the offence punishable under Section 376 IPC, the delayed approach of the complainant cannot, in any event, wash away the offence.➢ DECISION HELD BY COURT: In this case the judgment was given by JUSTICE ARIJIT PASAYAT that the appeal filed by the accused is dismissed. The High Court has reduced the sentence taking note of the peculiar facts of the case, more particularly, the knowledge of the complainant about the accused being a married man. The High Court has given sufficient and adequate reasons for reducing the sentence and awarding compensation of Rs.1,00,000/-. The reasons indicated by the High Court do not suffer from an infirmity and, therefore, the appeal filed by the complainant is without merit and is dismissed. Both the appeals are, accordingly, dismissed.

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 Arising out of S.L.P.No.14107 U.T. of Chandigarh With Crl. Appeal No .of 2008JUDGMENT DR. ARIJIT PASAYAT J Heard learned counsel for the parties Though in SLP No.6796 of 2006 notice has not been issued at the request of and with the consent of the parties the same was taken up along with SLPNo.14107 where notice had been issued Challenge in these appeals is to the judgment of a learned Single Judge of the Punjab and Haryana High Court in Criminal Appeal No.698 SB 1999. The appellant Bhupinder Singhhad filed the appeal before the High Court against the judgment dated 20.9.1999 passed by learned Additional Sessions Judge Chandigarh convicting him for offences punishable under Sections 376 and 417 of the Indian Penal Code 1860Chandigarh where accused was residing jointly with one J.P. Goel who was working in the same bank. Then they had gone to Kasauli for honeymoon on 27.12.1990 and stayed in a hotel. Then her office was shifted from Sector 17 to Sector 42 Chandigarh She and the accused shifted to H.No.1110 Sector 42 B Chandigarh and stayed in a rented accommodation owned by one Pritam Singh. Even landlord had lodged a report in Police Station Sector 36 Chandigarh showing them as husband and wife and prior to that a form was duly filled by Bhupinder Singh and same was handed over to the landlord to establish the fact of their being husband and wife. Accused had also taken a loan of Rs.5000 from a society at Panchkula in May 1991 where he had nominated her as his wife. She became pregnant. But accused got her aborted from Kaushal Nursing Home against her wishes. She had left the service in September 1991 under the pressure of the accused. In the year 1992 accused Bhupinder Singh was transferred from Chandigarh to Ropar and they shifted to Ropar and stayed in House No.111 Street No.8 Malhotra Colony Ropar. They came back to Chandigarh again and started living in H.No.859 Sector 38 Chandigarh and accused Bhupinder started going to Ropar daily from Chandigarh. She got re employment in May 1993 in Punjab University Chandigarh on daily wages as Clerk and visited H.No. C 146 Sector 14 Punjab University Chandigarh on the eve of Diwali in 1993 She again became pregnant in July 1993 and their relations remained cordial till March 1994. On 6.3.1994 when she had gone to Rose Garden she met Devinder Kumar Bansal and Vinod Sharma who were friends of her husband Bhupinder Singh. Those persons told her that accused Bhupinder Singh was already married with one Gurinder Kaur and was having children from the said wedlock. She asked them as to why they had not told her about the previous marriage of her husband. But they avoided answering. She was shocked to learn this and after reaching the residence she asked about Bhupinder Singh who on the same day had left for Patiala on the pretext of attending some training course and did not return till 13.3.1994. She went to the house of Devinder Bansal to know whereabouts of accused Bhupinder Singh and there Bhupinder Singh along with his wife Gurinder Kaur came and started fighting and then Manjit Kaur tried to inform the police. But Daljit husband of sister of Bhupinder Singh brought her and left her in her house. On 16.4.1994 she was admitted in General Hospital and gave birth to a female child. She informed Bhupinder Singh about this as he was father of the child. But Bhupinder Singh did not turn up. On this complaint case was registered for the offence punishable under Sections 420 376 498 A IPC. It was investigated. Investigating Officer during investigation collected many documents showing the accused Bhupinder Singh and prosecutrix Manjit Kaur as husband and wife. After investigation challan was presented Accused appellant faced trial. After trial he was convicted and sentenced as aforesaid. He filed an appeal before the High Court. On behalf of the complainant a Criminal Revision was filed for enhancement of sentence. Further a Crl. Misc Application was also filed for awarding compensation under Section 357 of the Code of Criminal Procedure 1973the Registrar Births Death U.T. of Chandigarh wherein it was recorded that complainant Manjit Kaur had delivered a female child on 16.4.1994 in General Hospital Sector 16 Chandigarh and accused appellant’s name was mentioned as the father Reference was also made to the evidence of Mal Singhstated that he knew the complainant prior to her marriage. Documents were also produced to show that in official documents accused appellant had shown the complainant as his wife and nominee. The High Court found that the case at hand was covered by Clause “Fourthly” of Section 375 IPC and therefore was guilty of the offence and was liable for punishment under Section 376 IPC. Accordingly the conviction as done was upheld. But taking into account the fact that the complainant had knowledge about his marriage and had yet surrendered to him for sexual intercourse held this to be a fit case for reduction of sentence and award of adequate compensation Accordingly custodial sentence of three years rigorous imprisonment was imposed in place of seven years rigorous imprisonment as was done by the trial court. The compensation was fixed at Rs.1 00 000 which was directed to be paid within three months. It was indicated that in case the compensation amount was not paid the reduction in sentence would not be given effect to. Learned counsel for the accused appellant submitted that when the complainant knew that he was a married man and yet consented for sexual intercourse with him Clause “Fourthly” of Section 375 IPC would have no application. It was also submitted that the fact that the complainant knew about his being a married man is clearly established from the averments made in a suit filed by her where she had sought for a declaration that she is the wife of the accused. The sentence imposed is stated to be harsh. It was however pointed out that the compensation as awarded by the High Court has been deposited and withdrawn by the complainant Learned counsel for the State submitted that it is a clear case where Clause “Fourthly” of Section 375 IPC is applicable Learned counsel for the complainant submitted that this was a case where no reduction in sentence was uncalled for. The High Court proceeded on an erroneous impression that the complainant knew that the accused was a married man. It was also submitted that the compensation as awarded is on the lower side. 10. Clause “Fourthly” of Section 375 IPC reads as follows “375 Rape A man is said to commit “rape” who except in the case hereinafter excepted has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: Fourthly With her consent when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married xxx” 11. Though it is urged with some amount of vehemence that when complainant knew that he was a married man Clause “Fourthly” of Section 375 IPC has no application the stand is clearly without substance. Even though the complainant claimed to have married the accused which fact is established from several documents that does not improve the situation so far as the accused appellant is concerned. Since he was already married the subsequent marriage if any has no sanctity in law and is void ab initio. In any event the accused appellant could not have lawfully married the complainant. A bare reading of Clause “Fourthly” of Section 375 IPC makes this position clear. It is pointed out by learned counsel for the appellant that the date of knowledge claimed by the complainant is 6.3.1994 but the first information report was lodged on 19.9.1994. The complainant has explained that she delivered a child immediately after learning about the incident on 16.4.1994 and therefore was not in a position to lodge the complaint earlier. According to her she was totally traumatized on learning about the marriage of the accused appellant. Though the explanation is really not satisfactory but in view of the position in law that the accused was really guilty of the offence punishable under Section 376 IPC the delayed approach of the complainant cannot in any event wash away the offence. 12. The appeal filed by the accused is dismissed. The High Court has reduced the sentence taking note of the peculiar facts of the case more particularly the knowledge of the complainant about the accused being a married man. The High Court has given sufficient and adequate reasons for reducing the sentence and awarding compensation of Rs.1 00 000 . The reasons indicated by the High Court do not suffer from any infirmity and therefore the appeal filed by the complainant is without merit and is dismissed. Both the appeals are accordingly dismissed. (Dr. ARIJIT PASAYAT New Delhi July 10 2008

If a Patient suffers complications during a surgery not contemplated normally, the principle of ‘Res Ipsa Loquitor’ will apply: Kerala High Court

The principle of ‘Res Ipsa Loquitor’ (rule of presumption that a particular act points towards negligence of another) applies in cases of medical negligence. If a patient suffers an complication which was not contemplated in the normal course of treatment/operation/surgery the above said principle will apply. The ration was laid down by the Kerala High Court presided over by J. S.V. Bhatti & J. B.K. Thomas, in the case of M/s. PRS Hospital & Anr. Vs. P. Anil Kumar [ RFA No. 131 of 2020]. The facts of the case are that a 29 year old was undergoing a surgery for removal of kidney stones and after the surgery he lost his sound and became a paraplegic. A suit for medical negligence was filed by the patient in the Sub-Court of Thiruvananthapuram, and the court affirmed that the patient suffered the complication due to medical negligence and awarded a compensation of Rs. 20,40,000/- along with interest and cost of the suit. The Hospital and doctor filed an appeal in the High Court only challenging the contention of Medical Negligence and not challenging the compensation. The High Court observed that before the surgery the patient was fit and came walking into the hospital 30 minutes after the surgery he suffered these two complications and hence this is a result of medical negligence. The court relied on the landmark judgment of V.Kishan Rao v. Nikhil Super Speciality Hospital & Anr. [(2010) 5 SCC 513]. The Court stated that, “As a patient, when one lies on the operation table, that too under general anesthesia, it is impossible for the patient to comprehend what happens around him. When the patient is under general anesthesia, he is unaware of the processes that are being carried out. Admittedly, the plaintiff was being operated upon under general anesthesia. it was not possible for the plaintiff to specify the nature of acts done or performed on him, that could be depicted as negligent. Plaintiff, as a patient undergoing a procedure, can never claim knowledge of the niceties of the procedure and actual omissions, if any, by the professional, whom he relied upon for treatment.” The court dismissing the appeal stated that, “Defendants failed to prove the cause of the injury sustained by the plaintiff. Even though he deposed that the cardiologist of the Hospital and two other Doctors had seen the plaintiff when the injury occurred, none of them were examined as witnesses or even cited as witnesses. Even the anesthetist who was inside the operation theater throughout was not examined. These are all direct witnesses who were not examined. Even the vague and indirect reference to a possible lack of oxygen supply to the brain and its cause has not been explained by the defendants. They have miserably failed to discharge their onus or explain the cause of the injury.” Click here to view the judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE S.V.BHATTI THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY THE 18TH DAY OF DECEMBER 2020 27TH AGRAHAYANA 1942 RFA.No.131 OF 2020 AGAINST THE DECREE AND JUDGMENT IN OS No.1111 2011 OF PRINCIPAL SUB COURT THIRUVANANTHAPURAM M S PRS HOSPITAL KILLIPALAM THIRUVANANTHAPURAM 695002 REPRESENTED BY ITS ADMINISTRATIVE OFFICERwith Endopyelotomy. The defendants averred that after consulting the Cardiologist and after controlling hypertension the plaintiff was taken for surgery under general anesthesia. While the track dilation was done with coaxial metal dilators the plaintiff developed cardiac problems and the procedure had to be abandoned. As advised by the Chief Cardiologist ECG was taken and the patient was put on ventilators and given proper treatment. Though he was moving both his upper limbs his lower limbs could not be moved. In short defendants denied that the disability of the plaintiff was caused due to the injury sustained on the spinal cord. The allegation that the incident occurred due to the negligence of the 2nd defendant was denied and on the other hand according to the defendants the problems arose either because of a pre R.F.A. No.131 20 :5: existing aneurysm rupture or because of cardiac arrest that occurred while the plaintiff was inside the operation theater and in either case there was no negligence on the part of the 2 nd defendant while performing the operation and that the operation was abandoned to treat the unexpected complication that arose to the plaintiff 5. Plaintiff examined himself as PW1 through an Advocate Commissioner along with four other witnesses as PWs 2 to 5 and marked Ext.A1 to Ext.A9(a) to Ext.A9(cd) while the defendants examined the 2nd defendant as DW1 and marked Ext.B1 and Ext.B2. PW4 and PW5 were expert witnesses who were examined pursuant to summons issued for their evidence 6. The issues raised for consideration by the trial Court included whether any injury was caused to the plaintiff if so who was negligent and also as to the quantum and the person liable to pay the compensation if any 7. The Sub Court Thiruvananthapuram by judgment dated 27.07.2019 decreed the suit holding that the facts circumstances and the evidence adduced proved that negligence on the part of the 2nd defendant was the cause of paraparesis sustained to the plaintiff that the 1st defendant was vicariously liable for the negligent act of the 2nd defendant that the R.F.A. No.131 20 :6: defendants were liable to compensate the plaintiff to the extent of Rs.20 40 000 with interest at 6% per annum from the date of suit till realization along with costs after exonerating the plaintiff from paying the court fee. Rs.40 323 was awarded as treatment expenses Rs.10 00 000 towards loss of future earning and Rs.10 00 000 towards pain and suffering and the total was rounded off to Rs.20 40 000 . Aggrieved by the judgment and decree the defendants have preferred this appeal 8. We have heard the learned counsel for the appellants Sri. C.R.Shyamkumar and the learned counsel for the plaintiff Sri. Anoop Bhaskar. 9. Adv. C.R.Shyamkumar submitted at the outset itself and quite fairly too that the appellants are not disputing the quantum of compensation awarded in the judgment under appeal and that they are questioning only the findings on negligence recorded by the trial court in the judgment under 10. Adv. Sri. C.R.Shyamkumar questioned the correctness of the impugned judgment by submitting that the trial court had traveled beyond the pleadings to enter the finding of negligence of the 2nd defendant and also that the plaintiff had miserably failed to prove negligence on the part of the 2nd defendant for the R.F.A. No.131 20 :7: incapacity the plaintiff suffered post operation. He further contended that reliance upon the principle of res ipsa loquitor was misplaced and undue reliance by the trial court upon the said principle caused prejudice to the appellants. It was also argued that the surgery performed or attempted to be performed and the injury alleged to have been caused on the spinal cord as pointed out by the plaintiff had no rationale or anatomical connection to infer negligence. He further argued that the procedure alleged to have been done by the 2nd defendant would not under any circumstances cause any injury as deep as to harm the spinal cord and there was absolutely no evidence whatsoever to show that the 2nd appellant was negligent. The learned counsel for the appellants further argued that the refusal by the court below to accept Ext.B1 as admissible evidence after marking it without any objection has caused prejudice to the defendants evidence. The decisions in Mohammed Sageer v Prakash ThomasKLT 400) Kalyan Singh Chouhan v. C.P.Joshi 11 SCC 786] were relied upon for the proposition regarding pleadings while the decisions in R.V.E.Venkatachala Gounder v. Arulmigu Viswesaraswami V.P.Temple and Another 8 SCC 752] Mohammed Aynuddin Alias Miyam v. State of A.P.7 SCC 72] and R.F.A. No.131 20 :8: Gourikutty v. Raghavan KLT 332) were referred for the proposition canvassed on the consideration of medical 11. On the other hand Adv. Sri.Anoop Bhaskar contradicted the arguments of the appellants and submitted that this is a classic instance of the maxim res ipsa loquitor to be applied and the trial court was perfectly justified in applying the said maxim to the instant case. He further argued that the uncertain and wavering defense case showed that the defendants were trying to build up a case especially after PW4 was examined. According to the learned counsel for the plaintiff in the written statement the defendants did not have a case of any cardiac arrest having occurred during the operation. He further submitted that the defendants during cross examination had admitted the case of the plaintiff. The learned counsel for the plaintiff further submitted that Ext.B1 though marked through the cross examination of PW1 its admissibility was rightly rejected by the Sub Court. It was pointed out that the production of a photocopy of the medical records of the plaintiff that too just before the evidence commenced made the said document not only inadmissible in evidence but also unreliable. It was contended that a document marked during the cross examination of the R.F.A. No.131 20 :9: opposite party can be utilized only to contradict the witness. The statutory requirement of laying down the foundation for producing secondary evidence was not done in the instant case and the failure to lay foundation rendered Ext.B1 unreliable and inadmissible in law. The learned counsel further relied upon the decisions in Gourikutty v. Raghavan KLT 332) V.Kishan Rao v. Nikhil Super Speciality Hospital and Another5 SCC 513] and H.Siddiquiby Lrs. v A. Ramalingam4 SCC 240 12. In view of the submissions as above the points that arise for consideration are i) Whether the plaintiff pleaded the material facts to constitute negligence ii) Whether Ext.B1 is admissible in evidence iii) Whether the defendants were negligent during the surgery resulting in injury to the plaintiff and whether the plaintiff is entitled to claim damages iv) Whether the damages awarded by the Subordinate require Thiruvananthapuram Judges Court interference If so to what extent 13. It is the admitted case of all parties to the instant lis that the plaintiff was a healthy person who drove his motorbike to the hospital two days before the operation and within half an hour of commencement of the operation the doctors were R.F.A. No.131 20 :10: compelled to abandon the operation. Plaintiff was under general anesthesia inside the operation theater. He was brought out of the operation theater within half an hour with loss of mobility of limbs and his ability of speech absent. He could move out of the hospital only after three months of treatment that too with the help of support. It is not in dispute that the plaintiff has become crippled for life and his condition is referred to in medical terms as postrio paresis Point No:1 14. Order 6 rule 2 of the Code of Civil Procedure 1908 states that every pleading shall contain and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defense as the case may be but not the evidence by which they are to be proved. As observed by Courts far too often pleadings are to be interpreted not with formalistic rigour but with the full awareness of the legal literacy levels of the litigants and also the nature of the case 15. A perusal of paragraph 6 to 9 of the plaint shows that the plaintiff has averred that he was given anesthesia and taken to the operation theater and within thirty minutes he was taken out after abandoning the operation and that he developed postrio paresis and became crippled for life. It was averred that R.F.A. No.131 20 :11: the injury sustained by the plaintiff on his spinal cord during keyhole surgery performed on him by the 2nd defendant was in a most callous negligent and irresponsible manner as a result of which the plaintiff had paraplegia from D4 level. It is further pleaded that the plaintiff was at his prime of youth and as a result of the negligent and callous keyhole surgery done on him he became disabled and bedridden and that the 2nd defendant is responsible for the negligence 16. The purpose of pleadings is to intimate the opposite party about the nature of the case that is set up against him. As held by the Supreme Court in Shyam Narayan Prasad v Krishna Prasad and Others7 SCC 646] pleadings are meant to give to each side an intimation of the case of the other so that it may be met to enable courts to determine what is really at issue between the parties. In the case of medical negligence alleged to have occurred under anesthesia and inside the operation theater the injured may be able to specify in his pleadings only the material fact of nature of injury caused Detailed or specific acts of negligence are not within the domain of the plaintiff’s knowledge since admittedly the plaintiff was under general anesthesia. 17. Further the pleading that due to the negligence of the R.F.A. No.131 20 :12: defendant’s the injury was caused to the plaintiff along with the other averments in the plaint constitute sufficient material pleading in cases where legal presumptions also get attracted At this juncture we bear in mind Order 6 rule 13 of the CPC which entitles that the parties need not plead any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side. In view of the above we find that the plaintiff had put the defendants to notice about the case set by him. The plaintiff had not traveled beyond the pleadings as argued by the learned counsel for the appellants and on the contrary he had pleaded in a concise form the material facts which he relied upon for his claim. 18. The decision relied upon by the defendants in Mohammed Sageer v. Prakash Thomas KLT 400 has no application to the instant case. In the aforecited decision the tenant claimed express consent for subletting the tenanted premises while in evidence he claimed implied consent. It was in such instance the court held that the claim was never made earlier and the tenant cannot travel beyond the pleadings. The decision in Kalyan Singh Chowhan v. C.P. John 11 SCC 786) though a case arising under the election laws the proposition stated therein cannot be disputed. Suffice to state R.F.A. No.131 20 :13: we are of the view that the pleadings in the plaint in the instant case constitute sufficient material pleading to put the defendants in the knowledge of the case of the plaintiff. The point is answered accordingly Point No.is a photocopy of the consent letter given by the plaintiff before the operation which bears his signature. The manner in which Exts.B1 and B1(a) were marked through PW1 is as follows: ആശ(cid:3)പത(cid:6)(cid:7)യ(cid:7)ൽ വ(cid:12)ച(cid:14) test കള(cid:17)(cid:18) മറ(cid:17)(cid:18) നടത(cid:24)ന(cid:24)യ(cid:7)ട(cid:14 ഉള സമ(cid:6)(cid:18) വക(cid:24)ട(cid:3)ത(cid:7)ട(cid:17)ണ(cid:31)(cid:24)എഴ(cid:3)(cid:6)(cid:7 ‌ഒപ(cid:7)ട(cid:7)ര(cid:7)ക(cid:3)നത ഞ(cid:24)ന(cid:24)ണ. Case sheet of PRS hospital relating to Anil Kumar P marked as exhibit B1since that alone contained the signature of the plaintiff. Plaintiff has no knowledge of the contents of Ext.B1 nor can he vouchsafe the truth of the facts stated in Ext.B1. By the mere marking of a document the person bound to prove that document cannot be absolved of the burden to prove it. Marking of a document is different from proof of the contents of a document. In this context it is necessary to refer to the decision in Sait Tarajee Khimchand and Others v. Yelamarti Satyam Alias Satteyya and Others4 SCC 562] where the Supreme Court held that mere marking of a document does not dispense with the proof of a document. Similarly in Ramji Dayawala and Sons P) Ltd. v. Invest Import 1 SCC 80] it was held that the truth or otherwise of the facts or contents of a document ought to be proved by admissible evidence. i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue. Thus the mere marking of Ext.B1 does not enable the court to look into the contents of the said document unless the said document is admissible in evidence. R.F.A. No.131 20 :16: 24. The mode in which proof of documents can be given as mentioned earlier is by primary or secondary evidence. When the primary evidence is not available or in cases where the original document is not produced at any time in order to establish the right to adduce secondary evidence a proper foundation is required to be laid. When the original of a document is not produced nor any factual foundation laid for giving secondary evidence it is not permissible for the court to allow a party to adduce secondary evidence. 25. In the decision in H.Siddiqui by Lrs. v. A Ramalingam4 SCC 240] it was held as follows “10. Provisions of S.65 of the Act 1872 provide for permitting the parties to adduce secondary evidence However such a course is subject to a large number of limitations. In a case where original documents are not produced at any time nor any factual foundation has been laid for giving secondary evidence it is not permissible for the court to allow a party to adduce secondary evidence. Thus secondary evidence relating to the contents of a document is inadmissible until the non production of the original is accounted for so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.” R.F.A. No.131 20 :17: 26. There are four stages before a Court of law can rely upon a document. They are marking of a document proof of contents of the document andevaluation of the document. Reliance upon a document can be made by the court only if all the above four stages are complied with or satisfied. By the mere marking of a document it does not become admissible in evidence. Further the marking of a document and being admissible in evidence will still not render the contents of a document as proved . When a document admissible in evidence is marked still to be relied upon by the courts its contents will have to be proved. For the contents of a document to have a probative value the person who wrote the contents or is aware of the contents and its veracity must be invited to give evidence about it. It is thereafter the last stage i.e. evaluation takes place. Evaluation of the document is a judicial exercise. Unless all these stages are done a court of law cannot rely upon any document produced or marked before it. 27. In the instant case except for marking Ext.B1 during the cross examination of the plaintiff no foundation has been laid by the defendants to produce secondary evidence. The decisions in R.V.E.Venkatachala Gounder v. Arulmigu R.F.A. No.131 20 :18: Viswesaraswami & V. P.Temple and Another 8 SCC 752] and Malaykumar Ganguly v. Dr. Sukumar Mukherjee and Others 9 SCC 221] are also relevant in this context. Ext.B1 is not only inadmissible in evidence its contents are also not of any probative value. The finding of the learned Sub Judge that Ext.B1 is inadmissible in evidence is correct and justified in the circumstances and therefore warrants no interference. Hence the point held accordingly Point No.5 SCC 513] it has been held in paragraph 48 as "In the treaties on Medical Negligence by Michael Jones the learned author has explained the principle of res ipsa loquitor as essentially an evidential principle and the learned author opined that the said principle is intended to assist a claimant who for no fault of his own is unable to adduce evidence as to how the accident occurred. The principle has been explained in the case of Scott v London & St. Katherine Docks Co.by Chief Justice Erle in the following manner R.F.A. No.131 20 :21: where the thing is shown to be under the management of the defendant or the servants and accident such as in the ordinary course of things does not happen if those who have the management use proper care it affords reasonable evidence in the absence of explanation by the defendants that the accident arose from want of care 32. In the above decision the Supreme Court referred to the illustrations given by the learned author Michael Jones which were based upon decided cases. The illustrations were referred to in paragraph 49 of the aforesaid judgment of which three are similar to the present case. Those three illustrations are “(i) Where following an operation under general anesthetic a patient in the recovery ward sustained brain damage caused by bypoxia for a period of four to five minutes. 2 Med.LR 301 Where following a routine appendicectomy under general anesthetic an otherwise fit and healthy girl suffered a fit and went into a permanent coma 2 IR 147] at p.181 iii) Where an infection following surgery in a well staffed and modern hospital" remained undiagnosed until the patient sustained crippling injury36 0R 2d 669] at 33. The decision in Gourikutty v. Raghavan reported in 2001KLT 332) can also be of useful reference to the facts of this case. R.F.A. No.131 20 :22: 34. Ext. A1 discharge certificate issued by defendant no.1 shows that plaintiff was admitted on 25 09 2005 and was discharged only on 22 12 2005. Though Ext. A1 was prepared at the time of discharge of the plaintiff from the hospital still it mentions that right PCNL and Endopyelotomy under general anesthesia was planned on 27 09 2005 the patient was put to a prone position pelvicalicine was opacified with contrast injected through the ureteric catheter sub coastal mid posterior calyceal puncture and track dilation done and amplatz sheath introduced over the dilators. During the process the patient developed a cardiac problem and the procedure was abandoned and he was shifted immediately to ICCU and that both his lower limbs were not moving. Ext. A2 CT scan report dated 28 09 2005 at the Sree Uthradom Thirunal Hospital shows that cerebral oedema is present on the next day. Ext.A4 MRI of the brain shows findings that can represent hypoxic ischaemic encephalopathy. It also shows compression of D4 D6 level suggestive of subdural haemorrhage. Ext. A5 certificate issued by the Medical Board constituted by the Government of Kerala shows that the plaintiff suffers from a permanent disability of 50%. 35. From the above discussed documentary evidence coupled with the oral evidence of PW1 to PW3 and even that of R.F.A. No.131 20 :23: DW1 and the pleadings in the case it can be safely concluded that the plaintiff had sustained serious injuries during the operation performed by the 2nd defendant at the 1st defendant hospital. the maxim res ipsa loquitor applies in the instant case In the list of cases referred to as illustrations in V.Kishan Rao’s caseit would not be out of place to add the present case as an illustration as follows: "a healthy young man undergoing an operation for kidney stone removal under general anesthesia sustains paralysis and becomes crippled for life 36. The explanation offered by defendant no.2 falls way short of a plausible or valid explanation. In fact other than some vague suggestions no specific explanation was given by DW1 as to the cause of injury. Defendants failed to prove the cause of the injury sustained by the plaintiff. Even though he deposed that the cardiologist of the Hospital and two other Doctors had seen the plaintiff when the injury occurred none of them were examined as witnesses or even cited as witnesses. Even the anesthetist who was inside the operation theater throughout was not examined. These are all direct witnesses who were not examined. The absence of any independent oral evidence of the happenings inside the operation theater failure to produce the original of Ext.B1 the failure to examine anyone associated with R.F.A. No.131 20 :24: the preparation of Ext.B1 or who can vouchsafe the veracity of the contents of Ext. B1 all results in the defendants failing to prove that there was no negligence in the surgery performed on 27 09 2005. Even the vague and indirect reference to a possible lack of oxygen supply to the brain and its cause has not been explained by the defendants. They have miserably failed to discharge their onus or explain the cause of the injury 37. In this context it may be of relevance to refer to Ext.B1(a) which is the photocopy of the consent given by the plaintiff for the surgery. Even though the said document has many of the flaws that could be attributed to Ext.B1 still since the signature in Ext.B1(a) is admitted the same is looked into for the limited purpose of identifying the possible mishaps which were in contemplation for which consent was given. In none of the possible outcomes referred to in Ext.B1(a) is there a complication referred to or mentioned of the nature that occurred to the plaintiff. The disability now suffered by the plaintiff is not seen referred to as an expected complication from a procedure of this nature. This also indicates that it is not a normal complication that has occurred to the plaintiff. Thus by the application of the principle of res ipsa loquitor the defendants alone could have answered or explained the R.F.A. No.131 20 :25: allegation of negligence. In the nature of the evidence adduced the defendants have failed to prove the absence of negligence The findings of the learned Sub Judge regarding the negligence of the defendants was perfectly justified in the facts and circumstances of the case and calls for no interference in this appeal. Hence the point is held in favour of the plaintiff and against the defendants Point No. (iv 38. As mentioned in the earlier part of this Judgment the learned Counsel for the appellant had fairly submitted that the appellants are not challenging the quantum of damages awarded. Having stated so in the absence of any challenge against the quantum of damages awarded we affirm the judgment dated 27.07.2019 in O.S. No.1111 of 2011 of the Principal Subordinate Judge’s Court Thiruvananthapuram The appeal is therefore dismissed with costs Sd S.V.BHATTI JUDGE BECHU KURIAN THOMAS JUDGE vps

“Appellate Authority remits the matter to the respondent for de novo consideration of the queries of the appellant’s application.”: SEBI, Part 2.

V. Still better, in continuation of (III) & (IV) above, pl. give/ cite number, date etc. etc. of Hon’ble Court (Hon’ble SC of India or any other Judicial authority) directive (if any) over the issue of sealing the bank accounts of all Sahara group companies and in particular coop society as at Annexure No. 1. VI. If names (companies/ coop societies) were identified by SEBI and its competent authority then pl. furnish details such as designation of officer of SEBI, his Dept/ Sectors & complete postal address. This information (sought) is in continuation of (III) and (IV) above. VII. In respect to process/ procedure to be followed for sealing bank accounts (Sahara group companies coop societies) whether SEBI had done so (a) directly by contacting such companies/ coop societies (b) banks (its nodal authority) & branches directly. (c) through c/o Hon’ble Central Registrar of Coop societies New Delhi or Hon’ble Joint Secretary (credit and cooperative), concerned GOI Ministry new Delhi. VIII. Please quote or cite number, dates of SEBI directive/ letter to VII (a), (b) (c) above. The respondent, vide response dated June 07, 2021, informed that the request for providing the reply within 48 hours cannot be accepted, as the request has not been corroborated with substantive evidence warranting the invocation of proviso to section 7(1) of the RTI Act. For the queries, the appellate authority, Mr Anand Baiwar, made reference to the matter of Hon’ble CIC, in the matter of the Office Memorandum dated November 28, 2013 issued by Ministry of personnel, Public grievances & Pensions, Department of Personnel & Training, stated that “If the applicant belongs to below poverty line (BPL) category, he is not required to pay any fee. However, he should submit a proof in support of his claim as belonging to the below poverty line category. The application not accompanied by the prescribed application fee or proof of the applicant’s belonging to below poverty line category, as the case may be, shall not be a valid application under the Act.” It is understood that soon after receiving the application, the CPIO should check whether the applicant has made the payment of application fee or whether the applicant is a person belonging to a BPL category. If application is not accompanied by the prescribed fee or the BPL Certificate, it cannot be treated as an application under the RTI Act. In the extant matter, it was noted that the appellant has already submitted the requisite fees prescribed under the RTI Act. Further, the appellant has not provided any document along with her application to show as to why she should be considered as a person below poverty line. In view of this, it cannot be said that the respondent has erred in not considering the appellant as a person below the poverty line. Mr Baiwar found that the request of the appellant for returning the IPO of Rs. 10, does not warrant consideration at this stage. In view of these observations, the appellate authority found no deficiency in the response. 

Appeal No. 43421 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43421 Devkaben N. Kumbhare CPIO SEBI Mumbai The appellant had filed an application dated May 27 2021under the Right to Information Act 2005against the respondent’s response dated June 07 2021. On perusal of the said appeal it appears that the appellant is not satisfied with the response provided by the respondent. In view of the submissions made in the said appeal the queries and the response provided thereto are discussed in the following paragraphs. 3. Query of the application On perusal of the application dated May 27 2021 it appears that the appellant has filed the same under “life and liberty” provision of the RTI Act. Further the appellant has requested that the IPO of Rs. 10 may be returned back since she has no source of income. Further the appellant vide her application sought the following information I. Kindly let us know whether the cooperative societyas at annexure No 1A enclosed herewith is one of the companiesand or Cooperative society of which bank accounts are sealed or seizedby SEBI as per directions of Hon’ble Judiciary. II. Kindly quote cite the relevant excerpt of reason for doingwhat is mentioned at 1 above. III. Kindly let us knowwhether directive if any of Hon’ble Judiciary clearly categorically mentions the name above cooperative societyin its order directiveas mentioned in Court order or as compiled by SEBI or competent authority or which bank accounts are to be sealed seized or freezed V. Still better in continuation of&above pl. give cite number date etc. etc. of Hon’ble Courtdirectiveover the issue of sealing the bank accounts of all Sahara group companies and in particular coop society as at Annexure No. 1. VI. If nameswere identified by SEBI and its competent authority then pl. furnish details such as designation of officer of SEBI his Dept Sectors & complete postal address. This informationis in continuation ofandabove. VII. In respect to process procedure to be followed for sealing bank accountswhether SEBI had done sodirectly by contacting such companies coop societiesbanks& branches directly.through c o Hon’ble Central Registrar of Coop societies New Delhi or Hon’ble Joint Secretaryconcerned GOI Ministry new VIII. Please quote or cite number dates of SEBI directive letter to VII(b)above. The respondent vide response dated June 07 2021 informed that the request for providing the reply within 48 hours cannot be accepted as the request has not been corroborated with substantive evidence warranting the invocation of proviso to section 7(1) of the RTI Act. Further with respect to query numbers I II III IV V VI VII and VIII the respondent informed that the entity Stars Multipurpose Cooperative Society Limited is registered under the Multi State Cooperative Societies Act 2002 as a Multi Purpose Cooperative Society. Fund raising by cooperative societies does not fall under SEBI’s purview and the complaints received by SEBI in this regard are being forwarded to Central Registrar Department of Agriculture Cooperation & Farmers Welfare Ministry of Agriculture farmers Welfare Krishi Bhavan New Delhi 110001. Further the respondent informed that the Hon’ble Supreme Court vide its order dated August 31 2012 inter alia directed SEBI to refund to the subscribers the moneys invested by them in the Optionally Fully Convertible Debenturesissued by two companies namely Sahara India Real Estate Corporation Appeal No. 43421 Ltd. and or Sahara Housing Investment Corporation Ltd. after verifying their genuineness. It was also informed that SEBI vide last round of advertisements published in newspapers on March 26 2018 and addendum published on June 19 2018 had given the last and final opportunity to the above stated OFCD holders of SIRECL and or SHICL to apply to SEBI for claiming refund by July 02 2018. It was also clarified that no application would be accepted entertained after the cut off date i.e. July 02 2018. Further the respondent mentioned that the orders passed by the Hon’ble Supreme Court were available on the SEBI Website and guided the appellant for accessing the same. 9. Grounds of Appeal On perusal of the appeal it appears that the appeal was filed on the ground that the reply provided by the respondent was devoid of information sought by the appellant. Further the appellant inter alia submitted that the respondent has not provided point wise information to her application. 10. Firstly I note that the appellant has filed the same under “life and liberty” provision i.e. proviso to section 7(1) of the RTI Act. I have perused the application. On consideration I am inclined to agree with the observation of the respondent that the request has not been corroborated with substantive evidence warranting the invocation of proviso to section 7(1) of the RTI Act. Accordingly no interference of this forum is warranted. 11. Further the appellant has requested that the IPO of Rs. 10 may be returned back since she has no source of income. In this context I note that the Office Memorandum dated November 28 2013 issued by Ministry of personnel Public grievances & Pensions Department of Personnel & Training stated that “If the applicant belongs to below poverty linecategory he is not required to pay any fee. However he should submit a proof in support of his claim as belonging to the below poverty line category. The application not accompanied by the prescribed application fee or proof of the applicant’s belonging to below poverty line category as the case may be shall not be a valid application under the Act.” It is understood that soon after receiving the application the CPIO should check whether the applicant has made the payment of application fee or whether the applicant is a person belonging to a BPL category. If application is not accompanied by the prescribed fee or the BPL Certificate it cannot be treated as an application under the RTI Act. In the extant matter I note that the appellant has already submitted the requisite fees prescribed under the RTI Act. Further the appellant has not provided any document along with her application to show as to why she should be considered as a person below poverty line. In view of this it cannot be said that the respondent has erred in not Appeal No. 43421 considering the appellant as a person below the poverty line. I find that the request of the appellant for returning the IPO of Rs. 10 does not warrant consideration at this stage. 12. On perusal of the queries raised in the application the reply given by the respondent and the submissions made in the appeal I note that the queries pertain to various issues related to the status of Stars Multipurpose Cooperative Society Limited orders mentioning name of the said Co operative Society among other co op Societies and group companies) and process procedure to be followed for sealing bank accounts. I find that the queries have not been examined point wise in the response. Without going into the merits of the matter I find it appropriate for the respondent to reconsider the request and provide a response thereon. 13. Considering the above observations I remit the matter to the respondent for de novo consideration of the queriesof the appellant’s application dated May 27 2021 and to send appropriate response to the appellant in terms of RTI Act within 15 working days from the date of receipt of this order. 14. The Appeal is accordingly disposed of. Place: Mumbai Date: July 16 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

Suba Singh & Anr. V/s Davinder Kaur & Anr.

The mother and Daughter were contesting the case just to get justice and maintainability amount as compensation on the death of her husband. [Case Brief] Suba Singh & Anr. V/s Davinder Kaur & Anr. Case name: Suba Singh & Anr. V/s Davinder Kaur & Anr. Case number: Civil Appeal No.  5197 Of 2003. Court: Hon’ble Supreme Court of India. Bench:  J. Aftab Alam  J. R.M. Lodha Decided on: 6 July 2011 Relevant Act/Sections: Fatal Accident Act,1846 Indian Penal Code,1860 Arms Act,1959   Surinder Singh was 25-year-old when died, he was a peasant and a motor vehicle driver by vocation. As a professional driver, he was in private service of certain persons. He also used to help his father in agricultural operations and his income from all the sources was about Rs.16,000/- per annum.That on July 1, 1991 Surinder Singh, deceased person died due to the gunshot injuries. FIR was filed by Balvinder Singh father of the deceased u/s 302, 307, 34 of IPC and u/s 25, 27 of Arms act.On 16 November 1991, the case was filed on behalf of widow and 4 yrs old daughter of the deceased against the defendant. Appellant claiming damages of Rs.3 lakh. In the plaint, it was alleged that Suba Singh and his son Shingara Singh had committed the murder of Surinder Shingara Singh came to the place of occurrence armed with the licensed gun of his father and urged by him, he fired a shot killing Surinder Singh on the spot. At the time of death, the age of Surinder Singh was about 25 years.Surinder Singh was claiming for common wall of their houses and meanwhile he started throwing brickbats on defendants named as Suba Singh and Shingara Singh in relation to father and son respectively. Suba shot Surinder with his licensed gun resulting in his death.That the widowed wife got married to his younger brother in 1998 and had 2 children with him.The procedural history is as follows: – First case was filed on 16 November 1991 on behalf of widow and 4 yr old daughter claiming damages of Rs 3 Lakh as they are dependent.Accused were tried and convicted by ASJ during the pendency of case on 6 March 1992, Son was acquitted of all charges and Father was found guilty of 304(i) of IPC as they have exceeded the right of private defense and sentenced him 10 years of rigorous imprisonment and fine of Rs 50,000.Same matter has gone to High Court, the appeal was allowed and held both the accused with Life Imprisonment.On 27 November 1999, Civil Judge of Sirsa awarded them with Rs 3 Lakh compensation with 12% interest per annum from date of filing of suit.Appellant filed an appeal before District Judge stating that Compensation amount should be reduced to Rs 2 Lakhs. On 27 November 1999, Civil Judge of Sirsa awarded them with Rs 3 Lakh compensation with 12% interest per annum from date of filing of suit.Appellant filed an appeal before District Judge on 7 March 2002, stating that Compensation amount should be reduced from Rs 3 Lakh to Rs 2,32,700 being the interest amount unchanged.Appellant took the Second Appeal in High Court on but got dismissed by impugned judgement & order Dated: 3 October 2002 as it does not raise any substantial question of law.The matter goes to Supreme Court by way of Special Leave Petition. ISSUE BEFORE THE COURT: Whether the Special Leave Petition for compensation of damages and deciding the matter on the criminal matter on the criminal liability of the accused person is maintainable or not? RATIO OF THE COURTThe contention made on behalf of the appellants is fully answered by clauses (b) and (c) of sub-section (1) and sub-section (5) of section 357 of the Code. In those provisions there is a clear and explicit recognition of a civil suit at the instance of the dependents of a person killed, against his/her killers. In sub-section (1)(c) of section 357 there is clear indication that apart from the punishment of fine, the person convicted of any offence of having caused the death of another person or of having abetted the commission of such an offence may also be liable to face a civil action for damages under the Fatal Accidents Act, 1855 in a suit for damages and sub-section (5) of section 357 of the Code makes it all the more clear by stipulating that at the time of awarding compensation in a subsequent civil suit relating to the same matter the court shall take into account any sum paid or recovered as compensation under that section.The court observed that It is a matter of grave concern that such sensitive matters like payment of compensation and damages for death resulting from a wrongful or negligent act are governed by a law which is more than one and a half centuries old. Twenty one years ago a Constitution Bench of this Court in Charan Lal Sahu Union of India, (1990) 1 SCC 613, a case arising from the Bhopal Gas Tragedy, had taken note of this antiquated law and in paragraph 168 made the following observations: The contention made on behalf of the appellants is fully answered by clauses (b) and (c) of sub-section (1) and sub-section (5) of section 357 of the Code. In those provisions there is a clear and explicit recognition of a civil suit at the instance of the dependents of a person killed, against his/her killers. In sub-section (1)(c) of section 357 there is clear indication that apart from the punishment of fine, the person convicted of any offence of having caused the death of another person or of having abetted the commission of such an offence may also be liable to face a civil action for damages under the Fatal Accidents Act, 1855 in a suit for damages and sub-section (5) of section 357 of the Code makes it all the more clear by stipulating that at the time of awarding compensation in a subsequent civil suit relating to the same matter the court shall take into account any sum paid or recovered as compensation under that section.The court observed that It is a matter of grave concern that such sensitive matters like payment of compensation and damages for death resulting from a wrongful or negligent act are governed by a law which is more than one and a half centuries old. Twenty one years ago a Constitution Bench of this Court in Charan Lal Sahu Union of India, (1990) 1 SCC 613, a case arising from the Bhopal Gas Tragedy, had taken note of this antiquated law and in paragraph 168 made the following observations: The Fatal Accidents Act, on account of its limited and restrictive application, is hardly suited to meet such a challenge. We are, therefore, of the opinion that the old antiquated Act should be drastically amended or fresh legislation should be enacted which should, inter alia, contain appropriate provisions in regard to the following matters. In the facts of the case, we are satisfied that simple interest at the rate of 6% per annum from the date of the filing of the suit till payment would meet the ends of justice. the court accordingly, modify and reduce the rate of interest to 6% per annum.It was observed that the Petitioner No. 1 got free from the liabilities as she got married to the deceased younger brother and had 2 children with him. DECISION HELD BY COURT: The Special Leave Petitions stands dismissed as the court observations have gone so far unheeded and told Union Government would at least now take note of the urgent need to bring a contemporaneous and comprehensive legislation on the subject and proceed to act in the matter without any further delay and the Rate of Interest is decided @6% per annum from filing of suit.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 51903 Suba Singh & Anr. Davinder Kaur & Anr. JUDGMENT AFTAB ALAM J This appeal by special leave arises from a suit for damages filed by the plaintiffs respondents the widow and the minor daughter of one Surinder Singh claiming a sum of rupees three lakhs as damages from the defendants appellants for causing the death of Surinder Singh by their In an occurrence that took place on July 1 1991 Surinder Singh died as a result of gun shot injuries. An F.I.Rwas lodged by his father Balbir Singh under sections 302 307 34 of the Penal Code and section 25 27 of the Arms Act in which the two appellants Suba Singh and Shingara Singh father and son respectively were named as accused. On November 16 1991 respondent no.1 filed a suit on behalf of herself and on behalf of her minor daughter who was at that time about 4 5 years old against the defendants appellants claiming damages for the death of her husband and the father of the young child. In the plaint it was alleged that Suba Singh and his son Shingara Singh had committed the murder of Surinder Singh. Shingara Singh came to the place of occurrence armed with the licensed gun of his father and urged by him he fired a shot killing Surinder Singh on the spot. At the time of death the age of Surinder Singh was about 25 years. He was a peasant and a motor vehicle driver by vocation. As a professional driver he was in private service of certain persons named in the plaint. He also used to help his father in agricultural operations and his income from all the sources was about Rs.16 000 per annum. It was stated that after the death of Surinder Singh the plaintiffs did not have any source of income to maintain themselves. Hence the claim for compensation by way of damages of rupees three lakhs from the defendants. The defendants contested the suit questioning its maintainability. They denied the allegations made in the plaint and stated that they were in no way responsible for causing the death of Surinder Singh. It was alleged that Surinder Singh claimed the common wall between their houses and at the time of the occurrence he was throwing brickbats at the defendants causing injuries to them. In that situation Suba Singh fired a shot and a stray pellet hit Surinder Singh who was sitting on the wall resulting in his death During the pendency of the suit the defendants were tried by the Additional Sessions Judge Sirsa in Sessions Trial No.491 charged variously of offences under sections 302 307 302 34 307 34 IPC and under section 25 27 of the Arms Act. The learned Additional Sessions Judge by his judgment and order dated March 6 1992 acquitted Shingara Singh of all the charges leveled against him but found Suba Singh guilty of the offence under section 304 Part I holding that he had exceeded his right of private defence. Accordingly he sentenced Suba Singh to rigorous imprisonment for 10 years and a fine of Rs.50 000 and in default to rigorous imprisonment for a further period of 2 years. The matter was taken to the High Court in appeals preferred both by the State and by Suba Singh besides a revision preferred by the informant Balbir Singh the father of the deceased. The High Court by a common judgment and order allowed the appeal filed by the State and held Shingara Singh guilty of the offence under section 302 and 307 of the Penal Code. Suba Singh was found guilty and convicted under sections 302 34 307 34 of the Penal Code. Shingara Singh was also found guilty of the offence under section 27 of the Arms Act. Both Suba Singh and Shingara Singh were sentenced to life imprisonment and to pay fines with default clauses While the suit was pending before the trial court the widow of Surinder Singh plaintiff no.1 got married to his younger brother in the year 1998 and from him she has two children. On November 27 1999 the learned Civil Judge Sirsa decreed the suit and awarded compensation of rupees three lakhs to the plaintiffs respondents along with interest @ 12% per annum from the date of the filing of the suit. The appellants filed an appeal before the District Judge The District Judge partly allowed the appeal and by judgment dated March 7 2002 reduced the amount of compensation from rupees three lakhs to rupees two lakhs thirty two thousand seven hundred leaving the rate of interest unchanged. The appellants took the matter in second appeal before the High Court but the same was dismissed by the impugned judgment and order dated October 3 2002 holding that it did not raise any substantial question of law. The matter is now brought before this Court by grant of special leave. To complete the facts it may be stated that shortly after leave was granted in the present appeal the appellants’ criminal appeals against the judgment and order passed by the Punjab and Haryana High Court registered as Criminal Appeal Nos.682 6896 with Criminal Appeal Nos.1345 13403) came to be heard by this Court. By the judgment and order dated November 4 2003 the appeal of Shingara Singh was allowed and he was acquitted of all the charges and the conviction of Suba Singh was converted from one under section 302 to section 304 Part I of the Penal Code. In other words this Court set aside the judgment of the High Court and restored the judgment passed by the trial court though giving Suba Singh a reduced sentence of 5 years rigorous imprisonment and a fine of Rs.10 000 and in default of payment of fine to further imprisonment for a period of 1 year Now coming back to the present appeal the judgments of the High Court and the courts below were assailed by the counsel for the appellants on the plea of double jeopardy. It was submitted that the appellants were being punished twice over for the same offence. Learned counsel also referred to section 357 of the Code of Criminal Procedure and submitted that there being a specific provision there for payment of compensation a suit for damages would not be maintainable 10. The rule against double jeopardy is contained in sub article of Article 20 of the Constitution of India which mandates that “no person shall be prosecuted and punished for the same offence more than once”. Now it is elementary that an action for civil damages is not prosecution and a decree of damages is not a punishment. The rule of double jeopardy therefore has no application to this case. The submission based on section 357 of the Cr.P.C. is equally without substance. Section 357 of the Code reads as under “357. Order to pay compensation. When a Court imposes a sentence of fine or a sentenceof which fine forms a part the Court may when passing judgment order the whole or any part of the fine recovered to be applied a) in defraying the expenses properly incurred in the b) in the payment to any person of compensation for any loss or injury caused by the offence when compensation is in the opinion of the Court recoverable by such person in a Civil c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence in paying compensation to the persons who are under the Fatal Accidents Act 1855 155) entitled to recover damages from the person sentenced for the loss resulting to them from such death d) when any person is convicted of any offence which includes theft criminal misappropriation criminal breach of trust or cheating or of having dishonestly received or retained or of having voluntarily assisted in disposing of stolen property knowing or having reason to believe the same to be stolen in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto 2) If the fine is imposed in a case which is subject to appeal no such payment shall be made before the period allowed for presenting the appeal has elapsed or if an appeal be presented before the decision of the appeal 3) When a Court imposes a sentence of which fine does not form a part the Court may when passing judgment order the accused person to pay by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced 4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision 5) At the time of awarding compensation in any subsequent civil suit relating to the same matter the Court shall take into account any sum paid or recovered as compensation under this section.” andof sub sectionand sub sectionof section 357 of the Code. In those provisions there is a clear and explicit recognition of a civil suit at the instance of the dependents of a person killed against his her killers. In sub sectionof section 357 there is clear indication that apart from the punishment of fine the person convicted of any offence of having caused the death of another person or of having abetted the commission of such an offence may also be liable to face a civil action for damages under the Fatal Accidents Act 1855 in a suit for damages and sub sectionof section 357 of the Code makes it all the more clear by stipulating that at the time of awarding compensation in a subsequent civil suit relating to the same matter the court shall take into account any sum paid or recovered as compensation under that section In the end counsel for the appellants rather feebly submitted that the widow of Surinder Singh was not entitled to any compensation because she had remarried during the pendency of the suit. We find no substance in this submission either. It may be noted that the first appellate court has taken the sum of Rs.12 400 as the annual input by the deceased towards the maintenance of his wife and the minor child. The remarriage of plaintiff no.1 took place after seven years of filing of the suit. The amount of compensation reckoned for 7 years at the rate of Rs.12 400 per annum would be Rs.86 800 . The balance being Rs.1 45 900 would be a modest and reasonable amount as compensation for defendant no.2 the minor child of the deceased till she attained majority and got married. We therefore see no scope for any interference with the amount of compensation awarded by the first appellate court. It is indeed true that the courts below have awarded interest at the rather higher rate of 12% per annum. In the facts of the case we are satisfied that simple interest at the rate of 6% per annum from the date of the filing of the suit till payment would meet the ends of justice. We accordingly modify and reduce the rate of interest to 6% per annum. 15. Having thus considered and disposed of all the contentions raised on behalf of the appellants we would like to advert to another issue that is a cause of no little concern to us. 16. We are constrained to observe that a suit for damages for murder of a person like the present one is filed under the Fatal Accidents Act 1855. As the year of its enactment shows the Act dates back to the period when the greater part of the country was under the control of the East India Company with the last Mughal “Emperor” Bahadur Shah Zafar as the ineffective though titular monarch on the throne of Delhi. The Act is based on the Fatal Accidents Act 1846 and according to the short title given to it by the Indian Short Titles Act 1897 it is “An Act to provide compensation to families for loss occasioned by the death of a person caused by actionable wrong”. Its Preamble reads as follows “Whereas no action or suit is now maintainable in any Court against a person who by his wrongful act neglect or default may have caused the death of another person and it is often times right and expedient that the wrong doer in such case should be answerable in damages for the injury so caused by It originally consisted of three sections but the original section 1 was renumbered as section 1A by the Part B StatesActS. 3 and Schedule with effect from April 1 1951. Section 1A of the Act provides as follows “1A. Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong.— Whenever the death of a person shall be caused by wrongful act neglect or default and the act neglect or default is such as wouldhave entitled the party injured to maintain an action and recover damages in respect thereof the party who would have been liable if death had not ensued shall be liable to an action or suit for damages notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony or Every such action or suit shall be for the benefit of the wife husband parent and child if any of the person whose death shall have been so caused and shall be brought by and in the name of the executor administrator or representative of the person deceased and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought and the amount so recovered after deducting all costs and expenses including the costs not recovered from the defendant shall be divided amongst the before mentioned parties or any of them in such shares as the Court by its judgment or decree shall direct.” Later on the operation of the Act was extended to different parts of the country and as on date it extends to the whole of India except the State of Jammu and Kashmir. It is a matter of grave concern that such sensitive matters like payment of compensation and damages for death resulting from a wrongful or negligent act are governed by a law which is more than one and a half centuries old. Twenty one years ago a Constitution Bench of this Court in Charan Lal Sahu v. Union of India 1 SCC 613 a case arising from the Bhopal Gas Tragedy had taken note of this antiquated law and in paragraph 168 made the following observations “168. While it may be a matter for scientists and technicians to find solutions to avoid such large scale disasters the law must provide an effective and speedy remedy to the victims of such torts. The Fatal Accidents Act on account of its limited and restrictive application is hardly suited to meet such a challenge. We are therefore of the opinion that the old antiquated Act should be drastically amended or fresh legislation should be enacted which should inter alia contain appropriate provisions in regard to the following i) The payment of a fixed minimum compensation on a "no fault liability" basispending final adjudication of the claims by a prescribed forum ii) The creation of a special forum with specific power to grant interim relief in appropriate cases iii) The evolution of a procedure to be followed by such forum which will be conducive to the expeditious determination of claims and avoid the high degree of formalism that attaches to proceedings in regular courts and iv) A provision requiring industries and concerns engaged in hazardous activities to take out compulsory insurance against third party risks.” (emphasis supplied It is unfortunate that the observations of the Supreme Court have so far gone completely unheeded. We hope and trust that the Union Government would at least now take note of the urgent need to bring a contemporaneous and comprehensive legislation on the subject and proceed to act in the matter without any further delay. Let a copy of this judgment be brought to the notice of the Attorney General for India. A copy of the judgment may also be sent to the Law Commission of India In the result the appeal is dismissed subject to the modification in the rate of interest. There will be no order as to costs. J New Delhi July 6 2011

Track CBI probe in Hathras case: Supreme court directs Allahabad High Court

The Supreme Court directs Allahabad High Court to keep an eye on the CBI probe into the matter of Hathras gang-rape and murder case. This judgement was headed by the Honorable Chief Justice of India S. A. Bobde, Justice A. S. Bopanna and Justice V. Ramasubramanian in the case of Satyama Dubey & ors versus Union of India & Ors. [WRIT PETITION (CRIMINAL) No. 296 of 2020]. The petitioner and other appealing parties were mainly disturbed with the fact that how brutally the girl was killed after being raped and was not cremated by her religious rites. Later the appeal was made to this court to have a fair investigation and seek justice for the 19-year-old girl residing in Hathras, Uttar Pradesh and the case to be transferred from U.P to Delhi for a fair trial. The court requested Allahabad High Court remove the facts from the order passed by the high court which disclose the details of the victim’s family. Further the Senior Advocate Indira Jaising submitted that “Investigation has been botched up completely and the FIR does not even have a number”, so a fair trial was not proceeded by the State of Uttar Pradesh. The court opinioned that it was open to the view of transferring the matter in future but for now the matter is to be monitored by the Allahabad High Court under the CBI probe. Before the case was taken up by the Supreme Court, the high court already made an appeal for a CBI investigation in the concerned matter for a fair trial “which is not within the administrative control of the State administration”. Thus they were of the view to transfer the matter to the CBI or to form an SIT under a sitting or retired Judge of the Supreme Court/ High Court from the plea which contended that the “Petitioner herein is demanding justice for the victim for the brutal attack, rape and murder of the victim”.

The petitioners and all the intervening applicants in these matters have raised concern with regard to the WPNo.296 2020 etc Uttar Pradesh is alleged to have been raped brutally assaulted due to which she lost her life and also the In the meanwhile the remaining petitions and the applications were filed in respect of the same incident to Cr. M.P. No. 10597 Ramu alias Ram Kumar seeking indulgence of Court for ordering CBI investigation or formation of SIT to investigate the matter under a sitting or retired Justice of SC or HC. Further transfer of trial to Delhi is prayed for Prayer for impleadment as necessary party in the array of intervention and Seeking investigation to CBI 2. Protection of witnesses by central para military I.A. No. 101799 of Crl. M.P. No. 102148 India Women through its General Secretary Ms. Kuljeet Citizens for Justice and WPNo.296 2020 etc Crl. M.P. No. 105463 Radhika Vemula & Ors. Praying SC 3. Appointment of a retired Judge of circumstances which led to the cremation of the 1. Transfer of all connected cases of gang rape and death from U.P. to Delhi 2. Constitution of SIT for investigation into the gang rape and death tragedy in order to avert conducting polygraph test narco analysis or brain mapping on the 4. Protection to victim’s family and other 5. Directing respondents to strictly implement SC ST Prevention of Atrocities) Act 1989 1. Constitution of SIT to investigate the gang rape and murder case under the Court’s own to protection 3. Transfer of trial from U.P to SC ST Special Court in Delhi subject to consent from the victim’s 4. Appointment of a Senior Advocate as special prosecutor u s 15 of the SC ST Act 1989 I.A. No. 103488 of By Members of Delhi High Court and Supreme Court Bar Seeking orders for I.A. No. 106081 of impleadment as respondent in WPNo. 2920 or in the alternative seeking WPNo.296 2020 etc 55441 2020 etc D.No. 54893 2020 Letter petitions received by through E Mail Letter petitions received through e mail by post IA No. 105728 of Crl MP No. 1053620 Dalit Bachao Andolan Through its President O.P Shukla and Others Crl MP No. 105458 and 1054620 Vermula and Others permission to intervene in the For Appropriate directions being sought for by SC in the gang rape and murder case For Appropriate directions being sought for by SC in the gang rape and murder case seeking permission intervene to make appropriate submissions and suggestions as the matter is of extreme as he himself belongs to the SC community and direction to R to ensure dignified cremation of all the victims of crime and no discrimination to be made toward SC ST investigation against the officials who were cremation and illegal detention of the family to be monitored by upholding the rights of the SC and ST community and that of society at large  seeking CBI and SIT probe into the case as investigation was being conducted by the UP police. Crl MP No. 1054520 Samrakshana Munnani through its President Application for intervention seeking an investigation in the case against the accused and into the alleged lapses in the administration into the case. WPNo.296 2020 etc WP(Crl) No. 304 of Prayer for Bhan Singh Chandra Bhan Singh vs State of UP and Connected: WP(Crl No. 308 of 2020 Motilal Maurya vs State of UP and Others Connected: Petitioner Sushma Motilal Maurya WPNo. 3120 Public mail through its publisher vs Union of India Petitioner Public mail through its publisher investigation of the role of R3 R7 for mishandling of body of the victim to 2. Direction Investigating agency to get statement of the and brother of the victim before the magistrate and if the allegation made by the family are true to register FIR against the guilty Connected: Direction to take cognizance constitution of the HC monitored Investigation inquiry and suspension of the erring police medical etc trying to manipulate the evidence charges to be framed against police who cremation of the Victim 1. Mandamus to R to fix the responsibilities of the Police officials who burnt the girl in midnight and to punish them 2. Transfer the case to Delhi from Hathras 3. Direction to R to make special forum or frame guidelines for such rape 1. Register offence u s 166 A 193 201 202 203 212 217 153A and 339 of the IPC and 3(2 and 4 of the SC and ST Act 1989 against Govt officials destruction of evidence 2. Investigation by Special involved Task Force No. 316 of Janardhan Kamble Vs Union of India WPNo.296 2020 etc CBI and UP police 3. Deposit all the evidence collected at Safdarjung hospital for independent forensic lab protection by CRPF to the witnesses and members of the family of Crl.) No.296 2020 is referred. In the Writ Petition filed are praying that the Union of India and concerned arise by transferring the case to the Central Bureau of the matter. It is also prayed that a sitting or retired look into the matter. The petitioners have further prayed The case as put forth is that a 19­year­old girl resident of Hathras village in Uttar Pradesh was brutally WPNo.296 2020 etc gang­raped. The manner in which she was assaulted is referred to in the petition. Though she was shifted to was cremated in the middle of the night without the which the entire incident had taken place the petitioners The pleadings in the other writ petitions and the though different reliefs have been sought which in any up by this Court on 16.10.2020 Mr. Tushar Mehta learned Solicitor General had fairly submitted that the instant and the respondents are also interested that a fair Court Lucknow Bench having taken note of the incident WPNo.296 2020 etc registration of suo moto petition being of the prima facie view that the petitions filed before this Court need not be entertained at this stage since the victim’s family members and the witnesses. Having found Solicitor General was requested to secure instructions on to by the Special Secretary Home Department Uttar brothers one sister­in­law and grandmother of the victim who are residing at village Chandpa District Hathras Uttar Pradesh have been provided protection under a three­fold protection mechanism through Armed Constabulary WPNo.296 2020 etc of CCTV cameras lights. The details of each of the component is also stated in the affidavit and it is further stated that the Inspector of Police Station arrangement to deploy suitable police force for the same The Circle Officer Sadabad is to ensure robust security arrangements provided to them. The affidavit also states learnt that they have engaged Ms. Seema Kushwaha and Mr. Raj Ratan Advocates on behalf of the family as their The affidavit also indicates that the investigation by the CBI would be conducted under the supervision of the Court in a time bound manner. The Director General of Police State of Uttar Pradesh has also filed an affidavit indicating that the State Government itself has sought investigation by the CBI to be conducted under the supervision of the Court and on 10.10.2020 the CBI WPNo.296 2020 etc accepted the request of the State and has started investigation in respect of the crime on 11.10.2020. The orders dated 01.10.2020 and 12.10.2020 passed by the High Court and the fact that the High Court has been In addition to hearing Mr. Tushar Mehta learned Solicitor General who appeared for the State Mr. Harish Salve learned Senior Counsel for DGP and Smt. Seema Mr. Colin Gonsalves learned Senior Counsel who raised petitions and applications we have taken note of the submission made by Mr. Sidharth Luthra learned senior 10. Though various contentions were urged the undisputed fact is that the investigation has in fact been entrusted by the State Government itself to the CBI on WPNo.296 2020 etc of the crime on 11.10.2020. Therefore the apprehensions no proper investigation if the Uttar Pradesh Police conducted the same would not remain open for stands redressed. Though the petitioners had sought and the respondent­State also through their affidavit had referred to above a PIL(C)No.16150 2020 has been registered in the Allahabad High Court Lucknow Bench presence of the father mother brother and sister­in­law of the victim and appropriate orders are being passed including securing reports from various quarters. In that Court of the proceedings and take upon this Court to monitor the proceedings investigation. That apart the WPNo.296 2020 etc Court and all particulars being available it would be appropriate for the High Court to proceed to monitor the view it would be open for the writ petitioners applicants herein to seek to intervene in the matter before the High contentions to be urged by the petitioners applicants in witnesses the limited purpose for which this Court had filed no doubt indicates that sufficient steps have been taken by the State Government to provide protection. Ms Indira Jaising learned Senior Counsel would however be directed to be provided by the Central Reserve Police WPNo.296 2020 etc Public Prosecutor be appointed and the monitoring be Having taken note of the contentions and having the present nature it is necessary to address the normal perception and pessimism which cannot be said as being without justification. In that view without casting any order to allay all apprehensions and only as a confidence security to the victim’s family and the witnesses shall be 13. On the aspect relating to the investigation since we have indicated that the High Court would look into that in the manner as would be directed by the High Court WPNo.296 2020 etc Special Public Prosecutor we see no need to pass any by the High Court in the light of the provisions of the Scheduled Castes and the Scheduled Tribes Act 1989. In the circumstance wherein the family members of the victim have chosen to engage Ms Seema Kushwaha and Mr. Raj Ratan Advocates they would 14. Therefore without expressing any opinion on the left open to be considered by the High Court in PIL(C With regard to the protection to the victim’s family and witnesses the respondent No.2 in WP(Crl) No.296 2020 shall bring this order to the WPNo.296 2020 etc by the petitioners applicants Ms. Seema Kushwaha learned counsel for the victim’s family indicated that the need for transfer would arise after the investigation is complete. On this aspect we are also of the view that it would be appropriate for investigating agency to complete out the investigation there would be no room for apprehensions at this stage. However the issue as to 16. Before parting we take note of the submission of the the family members with the victim being depicted in the to avoid such disclosure the High Court is requested to WPNo.296 2020 etc delete the same and also morph the same in the digital WPNo.296 2020 etc

It is necessary in the interest of justice that the arbitrator appointed is independent from the influence of any of the parties: The High Court of Delhi

The learned arbitrator should ensure the compliance of Section 12 of Arbitration and Conciliation Act, 1996 before commencing the arbitration and should be independent of both the parties in order to ensure integrity and neutrality. The aforementioned has been established by the Delhi High Court in the case of Monica Khanna & Ors. v. Mohit Khanna & Anr. [ARB.P. 202/2021] which was decided by a single judge bench comprising Justice J.R. Midha on 18th June 2021. The facts of the case are as follows. The arbitration agreement between the parties is contained in clause XIII of the Memorandum of Family Arrangement-cum-Deed of Relinquishment dated 09th June, 2020 according to which the parties agreed for reference of disputes to the sole arbitrator, Mr. Sachin Dev Sharma, Chartered Accountant. Learned counsel for the petitioner submits that the sole arbitrator named in the arbitration agreement is not competent to act as an arbitrator in terms of Section 12(5) read with the Seventh Schedule of the Arbitration and Conciliation Act as the named arbitrator is a consultant/advisor to the respondent; and is a director and shareholder in PEB Steel Lloyd (India) where the respondent is also a director and the same has been confirmed in the affidavit filed by the arbitrator. Learned counsel for the petitioner submitted that the petitioner had claims to the tune of over Rs.5 crores against the respondent. On the contrary it was submitted by the counsel for respondent that this Hon’ble Court should not appoint other Arbitrator for adjudication of dispute/differences between the parties particularly when there is no doubt on the integrity and neutrality of the Mr. S.D.Sharma as an Arbitrator, who has been appointed with the consent and at the instance of Petitioners. Thus, Petitioner cannot now for false and frivolous reasons challenge him being appointed as Arbitrator. The petitioner under the instant case sought the appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 18th June 2021 ARB.P. 202 2021 MONICA KHANNA & ORS. Through: Mr. Abhay Mahajan Advocate Petitioners MOHIT KHANNA & ANR. Through: Mr. Amit Mishra Advocate Respondents HON BLE MR. JUSTICE J.R. MIDHA JUDGMENT The petitioner is seeking appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act. The arbitration agreement between the parties is contained in clause XIII of the Memorandum of Family Arrangement cum Deed of Relinquishment dated 09th June 2020 according to which the parties agreed for reference of disputes to the sole arbitrator Mr. Sachin Dev Sharma Chartered Accountant. The arbitration agreement between the parties is not disputed. The respondents have no objection to the reference of disputes to the sole arbitrator named in the arbitration agreement. Learned counsel for the petitioner submits that the sole arbitrator named in the arbitration agreement is not competent to act as an arbitrator in terms of Section 12(5) read with the Seventh Digitally SignedBy:RAJENDER SINGHKARKISigning Date:19.06.202113:31:20Signature Not Verified Schedule of the Arbitration and Conciliation Act as the named arbitrator is a consultant advisor to the respondent and is a director and shareholder in PEB Steel LloydLtd. Reference is made to para 9 of the petition which is reproduced hereunder: said Memorandum in PEB Steel Lloyd “9. That the Petitioners have become aware that the proposed IS a Arbitrator named Consultant Advisor to the Respondents in his capacity as a professional Chartered Accountant IS a Director and India) Ltd. an affiliate subsidiary company of Lloyd Insulation India Limited a family concern of Late Chander Prakash Khanna) has contacted Petitioners No. 1 and 2 indicating that they are not entitled to any amounts other than release of the Fixed Deposits already standing in their names. All of the foregoing to be has rendered Mr.Sachin Dev Sharma appointed and act as an Arbitrator in terms of Section 12(5) read with the Seventh Schedule of the Arbitration and Conciliation Act 1996. Consequently the Petitioners herein pray unto this Hon ble Court to appoint an independent Arbitrator for adjudication of disputes differences between the parties arising out of the said Memorandum.” The respondents have filed the reply in which they have admitted that the named arbitrator is a consultant advisor to the respondents in his capacity as a professional Chartered Accountant and is a director and shareholder of PEB Steel Lloyd Ltd. Para 9 of the reply of the respondents is reproduced hereunder: The contents of para 9 of the petition as stated are wrong and denied. It is denied that petitioners have become aware now that the proposed Arbitrator named in the said Memorandum is a consultant Advisor to the Respondents in his capacity as a professional chartered Accountant is a Director and Shareholder in PEB Steel LloydLtd. an affiliate subsidiary company of Lloyd Insulation Ltd. Digitally SignedBy:RAJENDER SINGHKARKISigning Date:19.06.202113:31:20Signature Not Verified In this regard it is submitted that petitioners have themselves agreed to the name of Mr. S.D. Sharma as an Arbitrator in case of any dispute differences between the parties in the Memorandum for the reason that he knew both Late Mr. Chander Prakash Khanna and Late Mrs. Nirmal Khanna and know all the family for last 40 years. Further it was at the insistence of the petitioners that name of Mr. S. D. Sharma was decided as Arbitrator in the said Memorandum. In fact on earlier occasion also in 2014 while the Late Mr. Chander Prakash Khanna and Late Mrs. Nirmal Khanna both were alive at that time also the name of Mr. S.D. Sharma was agreed by all the family members including Petitioners to appoint him as a sole arbitrator to settle all the disputes with respect to various assets and properties owned by the family. However the said proceeding did not initiate proceeded further at that time. Petitioners were well aware of the fact that Mr. S. D sharma named Arbitrator in the said Memorandum is an independent Director of the PEB Steel LloydLtd. since 24.9.2018 while signing the said Memorandum in June 2020. He is not the Director or Shareholder in PEB steer Lloyd Ltd. as has been alleged. It is denied for want of knowledge that Arbitrator has contacted Petitioner No.1 & 2 indicating that they are not entitled to any amounts other than release of the Fixed Deposits already standing in their names. It is submitted that Petitioners are falsely and frivolously raising these issues with regard to appointment of Arbitrator while there is already a named arbitrator in the Memorandum just to delay performing the said Memorandum and harass the Respondents particularly when Respondents have honored their obligation. It is denied that for the any reason much less as alleged has rendered Mr. Sachin Dev Sharma ineligible to be appointed and act as Arbitrator in terms of Section 12(5) read with Seventh Schedule of the Arbitrator and Conciliation Act 1996. It is thus prayed to this Hon ble Court to not to appoint other Arbitrator for adjudication of dispute differences between the parties particularly when there is no doubt on the their obligation under Digitally SignedBy:RAJENDER SINGHKARKISigning Date:19.06.202113:31:20Signature Not Verified integrity and neutrality of the Mr. S. D.Sharma as an Arbitrator who has been appointed with the consent and at the instance of Petitioners. Thus Petitioner cannot now for false and frivolous reasons challenge him being appointed as Vide order dated 26th March 2021 this Court directed the named arbitrator Mr. Sachin Dev Sharma Chartered Accountant to file an affidavit with respect to his relationship between the parties in terms of the Seventh Schedule under Section 12(5) of the Arbitration and Conciliation Act. The named arbitrator Mr. Sachin Dev Sharma has filed the affidavit in which he has admitted that he is an independent director in PEB Steel LloydLtd. in which respondent No.1 is also a director. He has further admitted that he had acted as a mediator between the parties. Learned counsel for the petitioner urged at the time of the hearing that the named arbitrator is not competent to act as an arbitrator under the Seventh Schedule read with Section 12of the Arbitration and Conciliation Act. Learned counsel for the respondent urged at the time of the hearing that the named arbitrator be appointed as an arbitrator to adjudicate the disputes between the parties. It is further submitted that the named arbitrator is an independent arbitrator in PEB Steel LloydLtd. in which respondent No.1 is also a director. It is further submitted that the petitioner having agreed to the named arbitrator cannot wriggle out of the arbitration agreement. 10. On careful consideration of the rival contentions of the parties Digitally SignedBy:RAJENDER SINGHKARKISigning Date:19.06.202113:31:20Signature Not Verified this Court has serious doubt to the independence of the named arbitrator and therefore it would be appropriate and in the interest of justice to appoint an independent arbitrator to adjudicate the disputes between the parties. 11. Learned counsel for the petitioner submits that the petitioner has claims to the tune of over Rs.5 crore against the respondent. 12. The petition is allowed and Mr. Saurabh Kirpal Senior Advocate Mobile: 9811027511 is appointed as a sole arbitrator to adjudicate the disputes between the parties. 13. The learned arbitrator shall ensure the compliance of Section 12 of Arbitration and Conciliation Act 1996 before commencing the 14. The fees of the arbitrator shall be according to Fourth Schedule of the Arbitration and Conciliation Act 1996. 15. Copy of this order be sent to the learned Arbitrator. JUNE 18 2021 J.R. MIDHA J. Digitally SignedBy:RAJENDER SINGHKARKISigning Date:19.06.202113:31:20Signature Not Verified

ITAT application should be heard afresh if the applicant was not given a fair chance to represent his case: High Court of Delhi

In an Income Tax Appellate Tribunal application where the applicant did not have adequate notice or a fait opportunity to represent his case, the Tribunal will be directed to set aside the order and hear the application afresh. This was held by a two member bench of the High Court of Delhi consisting of Justice Manmohan and Justice Navin Chawla in the case of Ankit Kapoor v the Income Tax Officer, Ward 63 & Another [W.P.(C) 6370/2021 & APPL .20030/2021] on the 23rd of Jult 2021. The application was heard on the 14th of February 2020 and then listed for further hearing on the 28th of February 2020. However on 28th February, the matter was not listed on the cause list and the petitioner was informed by the registry that his matter had already been heard on 21st February 2020 and was dismissed on 27th February 2020. The petitioner, Ankit Kapoor stated that the impugned order was passed by The Income Tax Appellate Tribunal who is Respondent No.2 without mentioning it the matter on the cause list this has therefore caused grave prejudice against him. Accordingly the petitioner contends that the impugned order deserves to be quashed as he did not get an adequate and fair opportunity to represent his case. The petitioner further contended that he was under a bonafide belief that his case will be taken up for hearing on 28th February as pronounced in the court on the previous hearing and had no reason to believe otherwise. The counsel representing Respondent No.2 submitted that not reflecting the matter in the cause list of 21st February 2020 was due to a clerical error but since the case was noted by the counsel before the bench, the matter was taken up early and as no one appearied on behalf of the petitioner, the matter was heard and dismissed. It was also added that the Income Tax Appeal Tribunal is not interested in the outcome of the writ appeal and will carry out the orders of the High Court, whatever it may be. The senior standing counsel for revenue accepts notice and stated that the non-publication of daily cause list would indeed cause inconvenience for the litigants.

S 12 IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 6370 2021 & CM APPL.20030 2021 ANKIT KAPOOR Petitioner Through: Mr. P. Roychaudhari Advocate. THE INCOME TAX OFFICER WARD 63 4 & ANR. Respondents Through: Mr. Zoheb Hossain Sr. Standing Counsel for Revenue. Mr. Ripudaman Bhardwaj CGSC with Mr. Kushagra Kumar Advocate for R 2 ITAT. Date of Decision: 23rd July 2021 HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA JUDGMENT MANMOHAN J:The petition has been heard by way of video conferencing. Present writ petition has been filed challenging t he order dat ed 27 th February 2020 passed by the Income Tax Appellate Tribunalin Miscellaneous Application No. 183 2019. Petitioner also seeks a direction to W.P.(C) 6370 2021 the ITAT to hear the said Miscellaneous Application afresh. Learned counsel for the Petitioner states that the impugned order was passed by Respondent No. 2 without mentioning the matter in the cause list because of which the Petitioner was unable t o present h is case an d it h as caused grave prejudice to the Petitioner. He states that the Miscellaneous Application was heard on 14th February 2020 and it was listed for further hearing on 28th Febru ary 2020. He further points out that on 28th February 2020 the Petitioner did not fin d his matter in the cause list and was informed by the Registry that his m atter had already been heard on 21st February 2020 an d was dism issed on 27 th February 2020. Learned counsel for the Petitioner st ates t hat t he Im pugned Order deserves to be quashed as the Petitioner did not get adequate and fair opportunity to represent his case. He contends that Pet itioner was u n der a bonafide belief that his case will be taken up for hearing on 28 th Febru ary 2020 as pronounced in the Court on the last date of hearing i.e. 14th February 2020. Issue notice. 7. Mr. Zoheb Hossain learned senior standing counsel for Revenue accepts notice. He states that he has no instructions in the matt er. He however states that non publication of daily cause list is causing inconvenience to the litigants. 8. Mr. Ripudaman Bhardwaj learned standing counsel for Respon dent No.2 ITAT has placed on record a letter dated 15th July 2021 containing the instructions that he has received. The relevant port ion of t h e said let ter is reproduced herein below: W.P.(C) 6370 2021 this connection “…. Sub: Writ Petition filed before the Hon ble High Court of Delhi. W.P. 6370 2021 & CM APPL.2030 2021 in the case of Shri Ankit Kapoor vs The Income Tax Officer Ward 63(4) & ANR Sir With reference to the captioned matter I am directed to narrate the facts of the case to you to appraise the Hon ble Court of the same which are as under: 1. In the aforesaid MA No. 183 Del 2019 was filed on 8 3 19 and put up before the bench on 13.6.19. The bench directed to register the M.A. on 17.9.19. The case was listed on 20.9.19 for 18.10.19 and adjourned for 1.11.19 on which day the matter was adjourned for 13.12.19 at the request of the counsel. The case was again listed for hearing on 07.02.2020 on which date Shri Raj Kumar Gupta Advocate appeared on behalf of the assessee before the Bench. On the said date the counsel sought time from the bench for filing an affidavit of Shri P. Roychaudhuri Advocate . The case was adjourned by the bench to 21.02.2020 copy of order sheet is enclosed for kind perusal. is submitted that 2. It is intimated that due to clerical error the matter was not reflected in the cause list of 21.02.2020 but since the case was noted by the counsel before the Bench the matter was taken up by the bench on 21.02.2020 and since none appeared on the behalf of the assessee even after noting the case the matter was heard and order pronounced by the bench on 27.02.2020. Although the matter was not listed in the Friday list published before the date of hearing due to oversight the same was included in the revised list displayed on the notice board and mentioned in the revised list before the bench comprising Shri Bhavnesh Saini JM and Shri BRR Kumar AM6370 2021 4. Your goodself is requested to appraise the Hon ble High Court of the facts of the case. 5. You are further requested to make a submission before the Hon ble Court that the Tribunal is not interested in the outcome of the assessee s Writ Appeal and will respectfully carry out the orders which may ultimately be passed by the Hon’ble High Court. Sd Assistant Registrar ITAT New Delhi” Though from the aforesaid letter it is apparent that t he pet itioner’s matter had been adjourned to 21st February 2020 on 07th February 2020 yet this Court is of the view that the petitioner did not have adequ ate n otice or fair opportunity to represent his case as neither the daily order sheets nor the revised cause list had been uploaded on the website of the ITAT. Consequently the impugned order dated 27th February 2020 passed by t h e ITAT in Miscellaneous Application No.183 2019 is set aside and t he ITAT is directed to hear the said Miscellaneous Application afresh. 10. This Court is also of the view that non publication of daily order sheets as well as the revised cause list on the website by the ITAT results in inconvenience to the litigants in general and to the lawyers in particular. 11. Accordingly this Court directs the ITAT to u pload t he daily order sheets and revised cause list on its website. System in this regard be pu t in place by the ITAT if not already there as expeditiously as possible preferably within three months. 12. With the aforesaid direction the present writ petition along with pending application stands disposed of. W.P.(C) 6370 2021 13. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e mail JULY 23 2021 MANMOHAN J NAVIN CHAWLA J W.P.(C) 6370 2021

The College authorities are fully within their power and jurisdiction to discipline students resorting to indiscipline and misconduct: High court of Sikkim

The Disciplinary Committee further resolved that if the students were found to be violating the rules and regulations of the College, stringent disciplinary action would be taken. was upheld by the High court of Sikkim through the learned bench led by MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE. In the matter, Praveen Basnet V/s State of Sikkim [ W. P. (C) No. 11 of 2021 ] dealt with an issue mentioned above. The petitioners were pursuing their Bachelor of Arts Degree from the College. Praveen Basnet was a student of B.A. (Political Science Honours). Pravin Sharma was a student of B.A. (Sociology Honours). Lok Nath Chettri was a student of B.A. (English Honours). Nakul Sharma was a student of B.A. (Physical Education) Honours. The petitioners took their grievances before various authorities who gave them certain assurances. However, since no progress was made, a video clip was prepared to highlight the infrastructural deficiencies of the College and uploaded to social media platforms. Show cause notices were issued alleging that a press conference was held by them on 19.11.2020 within the College premises. The petitioners replied to the show cause notices clarifying that they had prepared a video clip and not held a press conference. According to the petitioners, there were no further communications thereafter. The court perused the facts and arguments presented in the case  court is also of the view that the College authorities shall be fully within their rights to issue show cause notice upon the petitioners on ascertained facts giving them an opportunity to explain themselves and after following the principles of natural justice to take such measured disciplinary action as befitting the indiscipline and as per rules and regulations of the College Click here to read the judgment Judgment review by Sakshi Mishra  

THE HIGH COURT OF SIKKIM: GANGTOK Civil Extra Ordinary Jurisdiction) SINGLE BENCH: HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE ….. Petitioner W. P.No. 121 Praveen Basnet Son of Shri Mohan Singh Basnet Resident of Middle Gyalshing P.O & P.S Gyalshing West Sikkim. State of Sikkim Through the Chief Secretary Government of Sikkim Gangtok 737101. Education Department Through the Additional Chief Secretary cum Principal Secretary Government of Sikkim Gangtok 737101. The Principal Sikkim Government College Gyalshing Gyalshing 737111. ….. Respondents and W. P.No. 121 Pravin Sharma Son of Shri Khara Nanda Sharma Resident of Aarigoan P.O. Langang & P.S. Gyalshing West Sikkim. State of Sikkim Through the Chief Secretary Government of Sikkim Gangtok 737 101. ….. Petitioner W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. Education Department Through the Additional Chief Secretary cum Principal Secretary Government of Sikkim Gangtok 737101. The Principal Sikkim Government College Gyalshing Gyalshing 737 111. ….. Respondents and W. P.No. 121 Lok Nath Chettri Son of Shri Abi Keshor Chettri Resident of Upper Hathidunga Rinchenpong P.O. Rinchenpong and P.S. Kuluk West Sikkim. ….. Petitioner State of Sikkim Through the Chief Secretary Government of Sikkim Gangtok 737101. Education Department Through the Additional Chief Secretary cum Principal Secretary Government of Sikkim Gangtok 737101. The Principal Sikkim Government College Gyalshing Gyalshing 737111. and W. P.No. 121 Nakul Sharma Son of Shri Ghana Shyam Sharma R o Aarigaon P.O. Langang and P.S. Gyalshing West Sikkim. ….. Respondents ….. Petitioner W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. State of Sikkim Through the Chief Secretary Government of Sikkim Gangtok 737101. Education Department Through the Additional ChiefSecretary cum Principal Secretary Government of Sikkim Gangtok 737101. The Principal Sikkim Government College Gyalshing Gyalshing 737111. ….. Respondents Petitions under Article 226 of the Constitution of India. Mr. Debasish Banerjee Mr. Madhukar Dhakal Mr. Sunder Basnett and Mr. Krishna Bhandari Advocates for the Petitioners. Mr. Sudesh Joshi Additional Advocate General with Mr. Yadev Sharma Government Advocate Mr. Sujan Sunwar Assistant Government Advocate and Mr. Zigmee Bhutia Standing Counsel Education Department for the Respondents. JUDGMENT(14.12.2021) Bhaskar Raj Pradhan J. W.P.(C) No. 121 W.P.(C) No. 121 W.P.(C) No. 13 of 2021 and W.P.(C) No. 14 of 2021 are being disposed of by this common judgment. W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. The writ petitions have been filed by four students of the Sikkim Government College Gyalshingwho challenges their expulsion orders all dated 19.02.2021 bearing identical reference no. 276 SGC GYAL EDN W 2021No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. The petitioners allege that on 02.02.2021 they along with other students of the College met the Respondent no. 2 regarding their grievances. Although they sought for an appointment with the Minister in charge the meeting could not take place. On 05.02.2021 they were arrested. The petitioners alleged that the allegations in the FIR were false. They were released on 06.02.2021. On 06.02.2021 some students submitted a written complaint at the Sadar Police Station against the respondent no.2 for alleged misbehaviour. After the petitioners were released on bail they held a press conference giving details of the assurances given by the State Government on 19.03.2020 and till the time of their arrest and release. On 07.02.2021 some other students filed yet another complaint against the respondent no.2. Thereafter on 17.02.2021 18.02.2021 the respondent no.3 asked the father guardian of the petitioners to be present in his office at 2 p.m. along with the petitioners for having violated the rules and regulations of the College. The petitioners along with their relatives went to the office of the respondent no.3 where they requested the authorities to take them back. On 19.02.2021 the petitioners were expelled. On 02.03.2021 the counsel of the petitioners served a legal notice to the respondents. Under such circumstances the petitioners have sought for quashing of the impugned expulsion orders as well as the decision taken by the General Body Meeting held on 10.02.2021. W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. The respondents no.1 2 and 3 have filed their counter affidavits. It is contended by the respondents that the impugned expulsion orders are the culmination of several failed attempts aimed at ensuring that the petitioners and other students of the College maintain discipline as expected of them. They assert that despite several instances of misconduct on the part of the petitioners the respondents have condoned them with the hope that the petitioners would mend their ways. However emboldened by the lack of stringent action against them the petitioners on 02.02.2021 not only entered the State Secretariat at Gangtok without permission of the authorities but also threatened attempted to assault and browbeat the respondent no.2. Pursuant to which he was compelled to lodge the FIR. It is contended that the petitioners were made aware of the rules and regulations published in the prospectus of the College which are critical for the maintenance of discipline. The petitioners were aware of the rules and regulations and the consequences of flouting them. Attention was drawn to rules 1 2 3 7 8 9 12 and 16. It is alleged that the petitioners in the month of February 2020 had uploaded a false and derogatory post in Facebook questioning the legality and authenticity of the College’s accreditation by the National Assessment and Accreditation Council No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. repeat their mistakes in future. With regard to their misbehaviour with the College authorities the students expressed their desire to meet them for further discussion and clarification and the matter was forwarded to the College for information and action. On 19.11.2020 without any discourse with the College authorities and their consent the petitioners held a press conference and circulated disparaging and defamatory contents amongst the media personnel including the social media outlets regarding the progress of construction activities of the College while giving an ultimatum that construction should be completed within three months. It is the respondents’ case that the petitioners have violated the rules and thus they were served with a show cause notice on 24.11.2020. Further on 26.11.2020 a new Disciplinary Committee for the period 2020 2022 was constituted comprising of all Heads of Departments and faculties of the College as members of the Committee. Praveen Basnet Pravin Sharma and Lok Nath Chettri submitted their reply to the show cause notice on 26.11.2020. Nakul Sharma did not submit his reply on 26.11.2020. On 30.11.2020 the Disciplinary Committee resolved to ask Praveen Basnet Praveen Sharma and Lok Nath Chettri to submit an apology letter for their misconduct but they did not do so. Nakul Sharma was suspended for a month. The Disciplinary Committee decided to suspend Praveen Basnet Praveen Sharma and Lok Nath Chettri for a month as well. Thereafter the Dean of the College vide a letter dated 11.12.2020 requested the Disciplinary Committee to grant the petitioners a final chance and revoke the suspension. On 11.12.2020 the Disciplinary Committee resolved to grant the petitioners one final chance thereby W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. withholding any disciplinary action against the petitioners with the hope that the petitioners would resume their academic activities. The Disciplinary Committee further resolved that if the students were found to be violating the rules and regulations of the College stringent disciplinary action would be taken. Thereafter the petitioners emboldened by the leniency shown by the College authorities travelled to Gangtok without the consent of the College authorities entered the State Secretariat and staged dharna without permission of the authorities attempted to threaten assault and browbeat the respondent no.2 culminating in the lodging of the First Information Report. Thereafter the petitioners conducted another unauthorized press conference and filed a complaint against the respondent no.2 false and baseless allegations. On 10.02.2021 another Disciplinary Committee meeting was held which resolved to take action against the students and also to expel the petitioners. It is the respondents’ case that they had granted numerous opportunities and hearing to the petitioners to comply with the rules and regulations of the College to which the petitioners have repeatedly engaged in a conduct subverting the very foundation and discipline which is needed for a conducive academic environment. The petitioners have filed a rejoinder contesting the factual averments made in the counter affidavits by the respondents no.1 2 and 3. W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. Heard the learned counsel for the petitioners as well as the learned Additional Advocate General. The format of the impugned expulsion orders reads thus “Ref. No. 276 SGC Gyal EDN W 2021 Date: 19.02.2021 OFFICE ORDER while initially joining this college was made aware of the Rules and Regulations of the college vide the prospectus. And whereas ........................ had signed the undertaking dated: ................... stating that he would abide by the rules and Regulations of the college and would submit himself to the disciplinary jurisdiction of the Disciplinary Committee and other authorities of the college who may be vested with the authority to exercise discipline under Rules and Regulations that have been framed by the college. And whereas .................... despite having signed the undertaking dated: ...................... violated Sl. No. 1 2 3 7 8 9 12 & 16 of the Rules and Regulations of the Now therefore after taking into account of the aforesaid instances of repeated breach of institutional Rules and Regulations based on common consensus vide General Body Meeting dated 10.02.2021) the Disciplinary Authority is satisfied that all the allegations levelled against you are correct and expel you from the college with immediate effect.” A perusal of the impugned expulsion orders reflects that not a single instance of any breach of the rules has been mentioned in it. On a pointed question to the learned Additional Advocate General as to whether the impugned expulsion order was preceded by a show cause notice he very fairly stated that there was no show cause notice issued highlighting the various instances of the breach of the rules. The learned Additional Advocate General pointed out the minutes of the meeting dated 10.02.2021 in reply to the query as to what were the breaches that were alleged in the impugned expulsion orders. A W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. perusal of the minutes of the meeting reflects that the meeting was of the Head of Departments alleging that the students had violated the rules by staging dharna. Neither the petitioners nor other students were part of the meeting convened on 10.02.2021 in which it was recorded that 21 students named therein were identified for violating the institutional rules and regulations by staging dharna without seeking prior permission from the institution inappropriate and indecent use of language instigating other students to take part in such acts and disrupting the teaching learning environment. The Disciplinary Committee seems to have thereafter decided to issue a show notice to those students who breached the institutional norms for the first time as deterrent and expelled those who had violated the rules on multiple occasions. It was in this meeting that a resolution was taken to expel the petitioners for engaging themselves in such activities bringing disrepute to the institution conducting press conferences in the College campus without seeking permission from College administration on multiple occasions staging dharna at the Education Department Headquarters at Gangtok without the consent of the administration and disrupting the teaching and learning environment of the College. Besides these minutes there is nothing on record placed as proof of evidence to establish the allegations made against the In the present case the petitioners are seeking for setting aside the impugned expulsion orders and the decision at the General Body Meeting dated 10.02.2021 passed against them by the College. W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. In Dr. Ambedkar Institute of Hotel Management Nutrition & Catering Technology Chandigarh vs. Vaibhav Singh Chauhan1 the Supreme Court held that there should be strict discipline in academic matters and malpractices should be severely punished. High educational standards have to be maintained if the country is to progress. The High Court should not ordinarily interfere with the functioning and order of the educational authorities unless there is clear violation of some statutory rule or legal principle. In M.D. Mobashashir Sarwar vs. Jamia Millia Islamia2 the Delhi High Court examined an expulsion of a student. It held that when it comes to maintenance of academic standards court should ordinarily refrain interfering with matters relating to the internal working of educational institutions for the reason that the decisions taken by such academic bodies are largely in the nature of policy decisions and the rules and regulations made by the institutions are based on their day to day experience. As long as such a decision rule regulation is on the face of it unreasonable arbitrary or in violation of the principles of natural justice the courts ought not to interfere therein as every institution has a right to set its own benchmark for achieving academic excellence. There should be strict discipline in academic matters and to maintain such discipline an academic institution is well empowered to take disciplinary action against a delinquent and or rusticating a student. The bottom line is that if the tussle is between the interest of an 11 SCC 59 2 2012 SCC Online Del 1289 W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. educational body and a student the former ought to prevail over the latter and further that the head of the institution is the best judge of a prevailing situation and wherever a student is found to be acting in an indisciplined manner or is found to be indulging in violent criminal acts and or in moral turpitude he is empowered to take a decision taking into consideration the past conduct of the student and the prevalent situation. There is a difference in jural interference in academic standards and judicial review of the punishment. When an order of punishment is examined the court must satisfy itself that the order is a reasoned one. The court is required to examine whether it ought to interfere in the decision and consider whether there is any arbitrariness in the action taken or whether the rules of natural justice have been violated or not or the decision taken is so unreasonable and or discriminatory that it requires interference. The punishment of expulsion and campus ban has serious implications and ought to be inflicted on a student only in cases of grave offences. An earlier decision of the Delhi High Court in Amir Jamia vs Desharath Raj3 was also referred to where it was held that when a student is expelled by an educational authority on the allegations that he is guilty of indiscipline such an action is in the nature of an adjudication and therefore a student against whom such a serious action is proposed to be taken must be afforded a reasonable opportunity of being heard against the proposed action and that rules of natural justice ought to be observed before exercising the drastic powers of expulsion and if they failed to do so then the court 3 ILR 1969 Delhi 2002 W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. would be constrained to intervene though reluctantly. The Delhi High Court held in paragraph 29 as follows: “29. The impugned order passed by the respondents have far reaching consequences. Expulsion from the school and the ban imposed on the petitioner from entering the school campus is a grave punishment to be inflicted. While it is true that no leniency ought to be in academic matters and the educational institutions ought to be very strict in maintaining high academic standards and academic discipline but at the same time the rules of audi alteram partem cannot be thrown to the winds. Following the principles of natural justice is the first filter of a judicial act. Turning a blind eye to the said rule is close to being sacrilegious to the rule of law. The circumstances notes hereinabove do not justify dispensing completely with the procedure prescribed under Ordinance 14 by invoking Statute 31.” The averments in the writ petitions as well as the counter affidavits filed by the respondents no.1 2 and 3 make it evident that the allegations levelled against the petitioners were not without any reason. The allegations if true may amount to indiscipline which ought to be disciplined. The College authorities are fully within their power and to discipline indiscipline and misconduct. Students are enrolled in colleges to pursue education which is fundamental to their growth. Students must always ensure that they take this opportunity of being enrolled in an institute to educate themselves and make them better citizens. is the educated enlightened students which makes the back bone of our nation. Having said that on examination of the records of the present cases it is noticed that there has been a complete violation of the principles of natural justice. The impugned expulsion orders have been passed without giving an opportunity to the petitioners to show cause as to why such an action as was resorted to ought not to be W.P.No. 121 Praveen Basnet vs. State of Sikkim & Ors. with W.P.No. 121 Pravin Sharma vs. State of Sikkim & Ors. with W.P.No. 121 Lok Nath Chettri vs. State of Sikkim & Ors.with W.P.No. 121 Nakul Sharma vs. State of Sikkim & Ors. taken. There is no material even at this stage on perusal of the counter affidavits which reflect that the authorities applied their mind to the evidence to establish the allegations and thereafter to pass the impugned expulsion orders after affording an opportunity to them. The impugned expulsion orders as well as the decision for their expulsions taken at the General Body Meeting dated 10.02.2021 in such circumstances cannot be sustained. They are accordingly set aside. In the facts of the case this court is also of the view that the College authorities shall be fully within their rights to issue show cause notice upon the petitioners on ascertained facts giving them an opportunity to explain themselves and after following the principles of natural justice to take such measured disciplinary action as befitting the indiscipline and as per rules and regulations of the College. The writ petitions are allowed to the extent above and disposed of accordingly. The Interlocutory Applications also stand disposed of. No order as to costs. Bhaskar Raj Pradhan ) Judge Approved for reporting: Yes No : Yes No Internet

Local residents can use the road locked in the Army area as there is no alternative route to connect residence to main road: Sikkim High Court

The local residents of the area of Syari suffered great difficulties and harassment as their single route to connect their place of residence to the main road had been locked because of the fencing by the Army personnel and was assigned to the army. The court allowed for a collaborative approach with both the local residents and Army personnel resolving this amicably. The Hon’ble High Court of Sikkim took cognizance of the matter as a Public Interest Litigation (hereinafter referred to PIL). This matter has been treated as a PIL on the basis of a letter dated 3rd March 2020 by the Petitioner, Mr S.S Hamal on behalf of the Public of Syari, East Sikkim, Gangtok who were barred from using the footpath along with the entry point from the Army area, Ganju Lama Dwar, Ward no. 01, 02, 03 and 04 under Syari, East Sikkim. The Hon’ble Court of Sikkim through the division bench led by Chief Justice Biswanath Somadder and Justice Meenakshi Madan Rai, in the Public of Syari v. Union of India(UoI) & Ors. [W.P. (PIL) No. [02/2020]]. The local residents of the above-mentioned wards were using the footpath for many years. Later, because of the fencing of the entire Army area by the Army personnel, it locked the area and barred the residents from commuting through the said route. As there was no alternative route for them to connect their residence from the main road, this issue led to harassment and great difficulties for the public. As this matter had been long-awaited, several affidavits had been filed. The court specifically took notice of the affidavit affirmed by the Special Secretary of Land Revenue and Disaster Management Department, Government of Sikkim, Gangtok, East Sikkim dated 21st September 2021. Paragraph 4 of the affidavit passed certain resolutions. The court took cognizance of the following resolutions. Firstly, the road from ‘VC Ganju Lama Dwar’, Deorali to Syari, falling under the jurisdiction of the Indian Army will remain open for commuters and for Public Transport till an alternative solution is worked out. “There will be no restrictions for transportation of essential commodities, milk supply and others necessary items from this road/route. The contact no. of concerned person (Army) will be displayed on the Ganju Lama Dwar in case any sort of permission is required for emergency entry and exit. An Alternative road will be constructed subject to NOC from the landowners. Principal Chief Engineer, Roads and Bridges Department, GOS will facilitate to carry out the survey of the proposed alternative road in consultations with the public of the area if NOC for the same is obtained. Also, the village Panchayat will work on the modalities for the identification of genuine vehicles/persons entering the gate. These resolutions were agreed by all concerned parties including the representatives from the Army, the court took notice that the parties have arrived at an amicable solution. The High Court of Sikkim directed “We are of the view that this Public Interest Litigation can be disposed of with a direction upon all concerned to adhere to the Resolution which was agreed upon by all and passed on 29th July 2021, in a meeting held under the Chairmanship of the Hon’ble Minister, Shri Kunga Nima Lepcha, at the Hon’ble Minister’s chamber.” The Hon’ble High of Sikkim disposed of this PIL accordingly.

COURT NO.1 HIGH COURT OF SIKKIM Record of Proceedings through Video Conferencing WPNo. 02 2020 IN RE : CLOSURE OF ENTRY POINT FOR THE PUBLIC OF SYARI BY THE ARMY AT GANJU LAMA DWAR SYARI. For Petitioner For Respondent No.1 Mr. S.S. Hamal Legal Aid Counsel. Ms. Sangita Pradhan Asst. Solicitor General of Mr. Sudesh Joshi Addl. Advocate General. Mr. Sujan Sunwar Asst. Govt. Advocate. For Respondent No.2 Date: 21 10 2021 HON’BLE MR. JUSTICE BISWANATH SOMADDER CHIEF JUSTICE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI JUDGE JUDGMENT:(Oral) This matter has been treated as a Public Interest Litigation on the basis of a letter dated 3rd March 2020 received from the public of Syari East Sikkim Gangtok stating that the public of Syari East Sikkim were facing problem after they were barred from using the footpath along the entry point from the Army area Ganju Lama Dwar Ward no. 01 02 03 and 04 under Syari East Sikkim. As per the said letter local residents of the above mentioned Wards were using the footpath for many years. There is no alternative route connecting their residence from the main road. The fencing of the entire Army area by the Army personnel and locking the area and barring the residents of the said area from commuting through the said route had led to harassment and difficulties. In such circumstances the applicants requested for a Public Interest Litigation to be initiated by this Court. Thereafter the matter has been taken up for consideration by this Court several times. The first order in the matter was passed on 18th March 2020 and the last order was passed on 7th October 2021. During COURT NO.1 HIGH COURT OF SIKKIM Record of Proceedings through Video Conferencing the pendency of this matter several affidavits have been filed. We however wish to focus on the affidavit affirmed by the Special Secretary of Land Revenue and Disaster Management Department Government of Sikkim Gangtok East Sikkim on 21st September 2021. Paragraph 4 of this affidavit is required to be noticed and is therefore setout hereinbelow: I say that after thorough discussions the following resolutions were passed and agreed upon by all: The road from ‘VC Ganju Lama Dwar’ Deorali to Syari falling under the jurisdiction of Indian Army will remain open for commuters and for Public Transport till an alternative solutions is worked out. There will be no restrictions for transportation of essential commodities milk supply and others necessary items from this road route. The contact no. of concerned person will be displayed on the gate in case any sort of permission is required for emergency entry and exit. Alternative road will be constructed subject to NOC from the landowners. Principal Chief Engineer Roads and Bridges Department GOS will facilitate to carry out the survey of the proposed alternative road in consultations with the public of the area if NOC for the same is obtained. The village Panchayat will work on the modalities for identification of genuine vehicle person entering the A copy of the minutes of the meeting held on 29.07.2021 is filed herewith and marked as Annexure R Considering the fact that an amicable solution has been arrived at by all concerned including representatives from the Army we are of the view that this Public Interest Litigation can be disposed of with a direction upon all concerned to adhere to the Resolution which was agreed upon by COURT NO.1 HIGH COURT OF SIKKIM Record of Proceedings through Video Conferencing all and passed on 29th July 2021 in a meeting held under the Chairmanship of the Hon’ble Minister Shri Kunga Nima Lepcha at the Hon’ble Minister’s chamber. The Public Interest Litigation stands disposed of accordingly. Meenakshi Madan Rai) Judge Chief Justice

Presence of nexus between the act of instigation and the ensuing suicide is mandatory for the offence under Section 306 of IPC: Gujarat High Court

It also prima facie appears from the FIR and connected material that neither any meeting took place between the deceased and the applicant and other accused persons nor the deceased was summoned by the police after 30.6.2020 till the deceased committed suicide. It thus prima facie appears that there was no proximate cause for the deceased to commit suicide after 38 days of the last meeting on 30.7.2020. This was said in the case of Kiransinh Babarsinh Parmar Versus State Of Gujarat [R/CRIMINAL MISC.APPLICATION NO. 1425 of 2021] by Mr. Justice A.G.Uraizee in the High Court of Gujarat The facts of the case are that the applications under section 439 of the Code of Criminal Procedure, 1973 are preferred by the applicants for being enlarged on bail in connection with an FIR for the offence punishable under sections 306, 506(2), 386, 270, 271, 201, 120(B) and 114 of the Indian Penal Code. The leaned counsel for the applicants submitted that the applicants are not named in the suicide note. It is his further submission that there is no allegation against the applicant regarding monetary gain or personal animosity with the deceased. He submits that section 386 of IPC states in respect of offence of extortion of putting a person in fear of death or grievance is not prima facie made out against the applicants. He submits that the deceased committed suicide on account of circumstances created by himself. The learned counsel for de facto complainant submitted that applicants are police personnel and they had given threats to the deceased on 30.7.2020 in the farmhouse. Therefore, the applicants cannot claim parity with the accused 1 who has been released on bail. He submits that the applicants are involved in a serious offence. Hence, considering the gravity of offence, they may not be enlarged on bail. The Court opined that “It is trite that abetment is a mental process of instigating a person or intentionally aiding a person in doing of a thing. There has to be prima facie evidence to indicate that the accused person had intentionally with full knowledge of consequence of his act aided or induced a person to do or not to do a particular thing Hence, without a positive act on the part of the accused to instigate or aid in committing suicide, the necessary requirement of section 107 cannot be said to have been fulfilled. As a consequence, a person cannot be held responsible for offence under section 306 of IPC”.

on : Thu May 06 21:33:02 IST 2021 R CR.MA 1425 2021 JUDGMENTIN THE HIGH COURT OF GUJARAT AT AHMEDABADR CRIMINAL MISC.APPLICATION NO. 14221With R CRIMINAL MISC.APPLICATION NO. 14521 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE A.G.URAIZEE ==========================================================1 Whether Reporters of Local Papers may be allowed to see the judgment NO2 To be referred to the Reporter or not NO3 Whether their Lordships wish to see the fair copy of the judgment NO4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder NO==========================================================KIRANSINH BABARSINH PARMAR VersusSTATE OF GUJARAT ==========================================================Appearance:JM PANCHAL with MR VIRAT G POPAT(3710) for the Applicant(s) No. 1MEET R MODI(8744) for the Respondent(s) No. 1MR. BHADRISH S RAJU(6676) for the Respondent(s) No. 1MR RONAK RAVAK APPfor the Respondent(s) No. 1==========================================================CORAM: HONOURABLE MR. JUSTICE A.G.URAIZEE Date : 05 05 2021 COMMON ORAL JUDGMENT1.Both these applications emanate from the selfsame FIR hence they are being disposed of by this common judgment.Page 1 of 12 on : Thu May 06 21:33:02 IST 2021 R CR.MA 1425 2021 JUDGMENT2.Both these applications under section 439 of the Code of Criminal Procedure 1973are preferred by the applicants for being enlarged on bail in connection with an FIR being C.R. No.A 112140322016420 registered with Mandvi Police Station District Surat for the offence punishable under sections 306 506(2) 386 270 271 201 120(B) and 114 of the Indian Penal Code.3.The facts as could be gathered from the impugned FIR and connected material can be summed up as under: 3.1The first informant is the son of the victim deceased and engaged in the business of road construction and stone quarry which is situated in Khanjroli Gam in Mandvi Taluka and is in the name of first informant’s father since 1982. As per the prosecution case on 07.09.2020 at around 04:30 a.m. In the morning the first informant got a call from his brother informing that the Manager I.e. Sandeepbhai has informed that his father was not found and therefore the first informant went to the quarry in his car and reached there by 05:45 a.m. And his brother also reached. Thereafter the first informant on searching the quarry along with the Manager and other friends a torch slippers and mobile of the father were found. While searching for the father of the first informant the Manager had informed him that at 03:45 a.m. in the morning the father of the first informant had called the Manager and told him that when the first informant comes to the office he will give him the note which is kept in the diary of his father. Therefore the first informant asked that if the Manager had read the note to which he denied and handed over the note to the first informant which was written by the father of the first informant. It was written in the note that father of the first informant had a property of 10 218 sq. mtrs. in Adajan Surat which was sold to accused no.6 viz. Page 2 of 12 on : Thu May 06 21:33:02 IST 2021 R CR.MA 1425 2021 JUDGMENTKishorbhai Bhurabhai on 17.03.2015 based on an agreement to sell on a note at Rs.24 03 88 687 and accused nos.6 and 5 i.e. Kishorbhai Bhurabhai and Kanaiyalal Narola had paid worth Rs.18 00 00 000 in cash to the father of the first informant on different dates and Rs.3 09 30 584 by cheques of different banks. Accused no.6 was the owner of Star Group and on 17.08.2016 an income tax raid was made on his premises and based on the note of agreement to sell there was a tax inquiry on the first informant as well. As a result of the tax inquiry all the truth was told by the father of the first informant however accused no.6 had hidden names of his partners and therefore the liability of paying tax of Rs.8 49 49 020 was on the head of the father of the first informant and further due to sale deed on the original value there was additional capital gain tax of Rs.4 80 00 000 to be paid by the father of the first informant and there was total liability of Rs.13 00 00 000 incurred on the father of the first informant. 3.2 The father of the first informant had talked to accused no.6 whereby he had assured to pay the same. Thereafter on 30.01.2019 accused no.6 had sent a legal notice against the promise and statement given in the income tax to which the father of the first informant had replied through his advocate on 04.02.2019. Thereafter on 02.01.2020 at around 7 8 p.m. the police officers came to the house of the first informant and asked the father to come to the Police Station as Police Inspector had called him immediately to which the father of the first informant denied as it was late and his time to have dinner and told that he will come tomorrow. However the police officials forced him to come and therefore the first informant along with his father went to the Police Station where in the office of the Police Page 3 of 12 on : Thu May 06 21:33:02 IST 2021 R CR.MA 1425 2021 JUDGMENTInspector there were two persons viz. Rajubhai Lakhabhai Bharwad and Hetal Natvarlal Desai who started abusing the father of the first informant and by then accused no.4 viz. Bhavesh Savani came and forced him to give a notarized document immediately in relevance to the disputed land and took them to a notary viz. Hitesh Kanji Solanki at 11:00 p.m. At night and thereby threatened them to sign the said documents. The first informant was forced to be the witness therein. 3.3 Thereafter on 03.01.2020 they had made a notarized document of declaration before the Notary viz. Bharat R. Chauhan. However due to fear it was not produced anywhere and the partner of accused no.6 i.e. accused no.5 had told the father of the first informant that if the said land is transferred in the name of accused no.2 or any person he has no objection and had given a written notarized document to that extent. Thereafter accused no.2 had asked for the same in the end of January at that time the first informant had asked for a detailed document in those regards which was denied and told that only plain document will be given. Thereafter on 04.02.2020 4 5 police officers had come to the house to call the father of the first informant but the mother had denied as the father was not well and was asleep. 3.4The brother of the first informant had sent an application to the Superintendent of Police against the same through WhatsApp after which the police officers had returned back. Thereafter on 18.02.2020 accused nos.2 3 8 and accused no.7 had come at his house of the first informant with ready document of satakhat along with possession and showed the signature and videography of the father of the first informant and had told to prepare for sale deed and gave cheques amounting to Rs.7 55 00 000 Page 4 of 12 on : Thu May 06 21:33:02 IST 2021 R CR.MA 1425 2021 JUDGMENTof different banks and had taken back the prior cheques of other party worth Rs.7 48 00 000 and told to give paper notice that the said land is not sold to anyone. The same were denied by them as proper documentation was required in order to avoid tax disputes. Therefore dispute had arisen again and on 30.07.2020 in Bhesna Gam in a farm house the Police Inspector who was home quarantined had called them by sending WhatsApp location and on reaching at the location other accused nos.2 4 9 and 10 were present and the first informant and his brother were threatened and a notarized agreement of even lesser value was made and sent to the house of the first informant along with accused nos.2 3 4 9 and other police officials for signature of father of the first informant along with authority to do newspaper publication. Therefore the said publication was done in the newspaper on 01.08.2020. Thereafter due to less payment and improper documentation the sale deed was denied by the first informant and accused Police Inspector had kept the documents with him informing that if he makes the sale deed then only he will give back the papers. Thereafter the first informant and his father and brother got notice from Rander Police Station and got called for giving reply but due to fear they did not go to the Police Station and gave reply in writing. The first informant had told his father on 06th September to come early next day so as to go to the Commissioner to make a complaint in the matter of land dispute. However due to the pressure created by the accused persons named in the FIR since past months the father of the first informant had committed suicide according to the first informant in the morning. Therefore the said F.I.R. came to be filed subsequently against accused persons as narrated in the F.I.R. In detail.4.Heard Mr. J.M. Panchal learned advocate with Mr. Virat Popat Page 5 of 12 on : Thu May 06 21:33:02 IST 2021 R CR.MA 1425 2021 JUDGMENTlearned advocate for the applicant Mr. Ronak Raval learned APP for State and Mr. Bhadrish Raju learned advocate for defacto complainant.5.Mr. Panchal submits that investigation is over and chargesheet is filed. He submits that PI Laxmansinh Pratapsinh Bodanais released on bail by coordinate bench vide order dated 28.4.2021 passed in Criminal Misc. Application No.34621. It is his further submission that the applicants are the police constables who were working under the instructions of PI Bodana. He further submits that Kishorebhai Bhurabhai Kosiyahas preferred an application under section 482 of the Code for quashing of the petition being Criminal Misc. Application No.142620 wherein by order dated 5.10.2020 he is protected. It is his further submission that Kanaiyalal Narolais also protected by this court vide order dated 6.11.2020 passed in Special Criminal Application No.59320 under section 482 of the Code. He would also submit that Vijay Baburao Shindeand Mukesh Padmakaranbhai Kulkarniare also released on regular bail by this court by judgment dated 16.3.2021 passed in Criminal Misc. Application No.8021 and Criminal Misc. Application No.2721 respectively. 5.1He submits that the applicants are not named in the suicide note. It is his further submission that there is no allegation against the applicant regarding monetary gain or personal animosity with the deceased. He submits that section 386 of IPC states in respect of offence of extortion of putting a person in fear of death or grievance is not prima facie made out against the applicants. He further submits that the applicants are Government servants and have no criminal antecedents. He submits that the deceased committed suicide on account of circumstances created by himself. He therefore urges that the applicants may be enlarged on bail.5.2He has relied upon the following decisions: Page 6 of 12 on : Thu May 06 21:33:02 IST 2021 R CR.MA 1425 2021 JUDGMENT1. Lalita Kumari v. Government of Uttar Pradesh 2 SCC 12. State of Telangana v. Habib Abdullah Jeelani 2 SCC 779 3. Gurcharan Singh v. State of Punjab 10 SCC 200.6.Mr. Bhadrish Raju learned advocate for the defacto complainant has opposed this bail application. He submits that the allegations against the present applicant are not comparable with the allegations made against PI Laxmansinh Bodanahad entered into an agreement to sell dated 17.3.2014. The area of the land was 10218 sq. meters and it was agreed to be sold at a consideration of Rs.24 03 88 687 . The present applicant is referred to as the partner of Kishorebhai Bhurabhai Koshiyaand the applicant and Kanaiyalal Narolahad paid a sum of Rs.18 00 00 000 in cash to the deceased and Rs.3 09 30 584 by cheques drawn on different Page 7 of 12 on : Thu May 06 21:33:02 IST 2021 R CR.MA 1425 2021 JUDGMENTbanks.9.There was an income tax inquiry on the premises of Kishorebhai Bhurabhai Koshiyaon 17.8.2016. There was in income tax inquiry in respect of agreement to sell between the deceased and Kishorebhai Bhurabhai Koshiyaat the place of the deceased. Upon the information provided by the deceased to the income tax officials in respect of the agreement to sell between him and Kishorebhai Bhurabhai Koshiyaa total income tax liability of Rs.13 00 00 000 was fastened on the deceased. The deceased had approached Kishorebhai Bhurabhai Koshiyain connection with the said income tax liability and he was assured by Kishorebhai Bhurabhai Koshiyathat he would make good the liability.10.As per the allegations in the FIR Kishorebhai Bhurabhai Koshiyadid not honour his promise of making good the income tax liability of Rs.13 00 00 000 fastened on the deceased which ensued the subsequent events between the deceased and the accused persons. There was police complaint in respect of the agreement to sell entered into between the deceased and the Kishorebhai Bhurabhai Koshiyaon regular bail. Detailed reasons are assigned in that order. It is pertinent to note that the name of the said accused No.1 is mentioned in the suicide note whereas the names of the present applicants do not find place in the suicide note. In my considered view the role played by the present applicants and accused No.1 is similar and therefore the present applicants deserve to be enlarged on bail on the principle of parity. 17.I do not deem it expedient to burden this judgment with the discussion of the authorities relied upon by Mr. Panchal learned advocate for the applicant and Mr. Bhadrish Raju learned advocate for the defacto complainant as the ratio expounded in these authorities is well known.18.In view of the above having perused the FIR and connected material and having taken into consideration the facts of the case nature of allegations and the evidence against the applicant without discussing evidence in detail at this stage I am of the view that the present one is a fit case to exercise discretion vested in this court under section 439 of the Code in favour of the applicants. I have also considered the following aspects:(i)The role attributed to the accused each with one local surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that they shall surrender his passport if any to the lower court within a week Z.G. SHAIKHPage 12 of 12

Every breach of contract would not give rise to an offence of cheating and only those cases breach of contract would amount to cheating, where there was any deception played at the very inception: Gauhati High Court

Any breach of contract would not give rise to a cheating offence and it would only be the cheating in those circumstances where any disappointment was played at the very start. The same can’t mean cheating if the purpose of cheating emerges afterwards. In other words, the complaint has to establish, in order to be a fraudulent or dishonest intention at the time of the promise or representation, to constitute a misuse offence. The judgment was passed by the High Court of Gauhati in the case of Subrata Urmimala Baruah and 2 Ors. v. State of Assam & Anr. [Crl.Pet./222/2019] by Single Bench consisting of Hon’ble Justice Mir Alfaz Ali. The respondent lodged a complaint against the petitioners alleging commission of offence u/s 120(B)/420/506/34 of IPC. On receipt of the complaint, learned Judicial Magistrate took cognizance and having examined two witnesses u/s 200 CrPC issued process against the petitioners. Aggrieved by the action of the Magistrate the petitioners have approached this Court for invoking the inherent power u/s 482 CrPC to quash the complaint and the criminal proceeding. Learned counsel for the petitioners submitted that the averment made in the complaint did not make out any ingredient of criminal offence and disclosed only a civil dispute pertaining to breach of contract. He further, submits, that the complainant has taken recourse to criminal action only to harass the petitioners and to pressurize them for resolution of the civil dispute, and as such, the criminal proceeding against the petitioners is an abuse of the process of court, which is required to be quashed. Learned counsel for the respondents submitted, referring to the allegations made in the complaint, the complaint prima facie makes out the criminal offence, and as such, the criminal proceeding cannot be quashed. He further, contends that in a proceeding u/s 482 CrPC for quashing a criminal proceeding at the initial stage, the High Court cannot embark upon an enquiry as to the merit of the case or to find out whether the criminal proceeding would end in conviction or not. The court is only required to see whether the allegations made in the complaint in its face value prima facie make out any offence.

Page No.# 1 11 HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) THE GAUHATI HIGH COURT Case No. : Crl.Pet. 222 2019 URMIMALA BARUAH AND 2 ORS. W O LATE SHYAMAL BARUAH PERMANENT R O CITY REGENCY SHYAMAL BARUAH ASSOCIATES R.K.B. PATH DIBRUGARH P.S. DIBRUGARH DIST DIBRUGARH ASSAM PIN NO 786001 PRESENTLY RESIDING AT D 13 SECOND FLOOR PANCHSEEL ENCLAVE NEW DELHI 110017 INDIA 2: RITURAJ HAZARIKA S O LATE NARENDRA NATH HAZARIKA R O GANOHI NAGAR P.O. NIZ KADOMONI P.S. DIBRUGARH DIST DIBRUGARH PIN 786001 3: AMIT ROY S O SRI SUNIL ROY R O SANTOSHI MAA MANDIR PATH CHIRING CHAPORI P.O. DIBRUGARH P.S. DIBRUGARH PIN 78600 THE STATE OF ASSAM AND ANR. REPRESENTED BY THE PUBLIC PROSECUTOR ASSAM 2:NIZAMUDDIN AHMED S O LATE ANWARUDDIN AHMED Page No.# 2 11 R O KHANIKAR TEA ESTATE NEAR T.V. CENTRE P.O. C.R. BUILDING PIN 78600 Advocate for the Petitione r MR. S SARMA Advocate for the Respondent : PP ASSAM HONOURABLE MR. JUSTICE MIR ALFAZ ALI JUDGMENT & ORDERLearned counsel for the petitioners Mr. S. Sharma and learned senior counsel for the respondents Mr. N. Dutta were heard. By this application u s 482 CrPC the petitioners have prayed for setting aside the order dated 17 11 2018 whereby the learned Judicial Magistrate took cognizance of offence u s 120(B) 420 506 34 IPC against the petitioners and also for quashing the criminal proceeding in CR Case No. 145 2018. The complainant respondent No. 2 lodged a complaint against the petitioners alleging commission of offence u s 120(B) 420 506 34 IPC. On receipt of the complaint learned Judicial Magistrate took cognizance and having examined two witnesses u s 200 CrPC issued process against the petitioners. Aggrieved by the action of the Magistrate in taking cognizance and issuing process on the basis of the complaint lodged by the respondent the petitioners have approached this Court for invoking the inherent power u s 482 CrPC to quash the complaint and the criminal Mr. S. Sharma learned counsel for the petitioners would submit that the averment made in the complaint did not make out any ingredient of criminal offence and disclosed only a civil dispute pertaining to breach of contract. Mr. Sharma further submits that the complainant has taken recourse to criminal action only to harass the petitioners and to pressurize them for resolution of the civil dispute and as such the criminal proceeding against the petitioners is abuse of the process of court which is required to be quashed. To bolster his submission Mr. Sharma has placed reliance on the following decisions : Page No.# 3 11 i) Pratibha Rani Vs. Suraj Kumar2 SCC 370 ii) V.Y. Josh and Anr. Vs. State of Gujrat and Anr.3 SCC 78 iii) Devendra Vs. State of U.P.7 SCC 495. Mr. Niloy Dutta learned senior counsel appearing for the respondents would submit referring to the allegations made in the complaint more particularly the paragraph 5 & 6 that the complaint prima facie makes out criminal offence and as such the criminal proceeding cannot be quashed. Mr. Dutta further contends that in a proceeding u s 482 CrPC for quashing a criminal proceeding at the initial stage the High Court cannot embark upon an enquiry as to the merit of the case or to find out whether the criminal proceeding would end in conviction or not. The court is only required to see whether the allegations made in the complaint in its face value prima facie makes out any offence. Mr. Dutta in support of his contention strongly relied upon a decision of the Supreme Court in Sau Kamal Shivaji Pokarnekar Vs. State of Maharashtra and Anr. reported in 2019SCC 350 as well as two decisions of this Court viz. Promod Adhikari and Ors. Vs. State of Assam reported in MONU GH 0724 2018 and Achyut Gogoi and Ors. Vs. State of Assam reported in There is no dispute at the bar on the legal proposition as contended by Mr. Dutta that if the averments made in the complaint or FIR taken at its face value and accepted in its entirety makes out a criminal offence the inherent power u s 482 CrPC cannot be invoked to quash a criminal proceeding at the initial stage and that the High Court while exercising inherent jurisdiction u s 482 CrPC cannot embark upon an enquiry as to the merit of the case or truthfulness of the allegations made in the complaint which is an exercise to be undertaken only by the trial court at the appropriate stage. It is therefore felt unnecessary to burden the judgment by discussing the authorities cited by Mr. Dutta. In Pratibha Rani Vs. Suraj Kumarthe Apex Court observed that there may not Page No.# 4 11 be any doubt that only because civil law can be taken recourse to would not necessarily mean criminal proceeding should be barred. In V.Y. Josh and Anr. Vs. State of Gujrat and Anr.(supra) the Apex Court observed that there exists a distinction between pure contractual dispute of a civil nature and an offence of cheating. Although breach of contract per se would not come on the way of initiation of criminal proceeding there cannot be any doubt that in absence of averment made in the complaint wherefrom the ingredients of offence can be found out the court should not hesitate to exercise the jurisdiction u s 482 CrPC. 10. In Devendra Vs. State of U.P.(supra) the Apex Court held that a distinction must be made between civil wrong and criminal wrong. When dispute between the parties constitute only a civil wrong and not criminal wrong the court would not permit a person to be harassed although no case for taking cognizance has been made out. 11. Thus on the basis of averment and allegations made the FIR or the complaint can be broadly divided into two categories. The first category consists of the FIR or complaint which contains direct allegations of criminal acts constituting offence without involvement of any civil transaction associated with the ingredients of offence. The second category consists of the complaint or the FIR containing the averment and allegations which ex facie discloses a civil dispute like breach of contract and alike and at the same time it may also contains the ingredients of criminal offence. Needless to say that the same set of facts may constitute both civil wrong as well as criminal wrong and both civil remedy and criminal remedy may be available simultaneously. In the second category of complaint which basically discloses civil dispute the court is required to see whether the allegation made in the complaint though ex facie discloses civil dispute also contains the ingredients of criminal offence. If the ingredients of criminal offence are available in the complaint which though prima facie appears to be a dispute of civil nature the complaint cannot be quashed only because civil remedy is available. 12. The test to be applied for quashing of a criminal proceeding at the threshold having been found well settled as indicated hereinbefore. Let us now examine the complaint of the present case in the touchstone of the settled principle. Page No.# 5 11 13. The gravamen of the allegations made in the complaint is that the husband of the accused petitioner No. 1 Shymal Baruah(since deceased) who was a builder by profession had cordial relationship with the respondent complainant. Lt. Shymal Baruah offered to sell two flats viz. Flat No. 2B and Flat No. 3A on the 2nd and 3rd floor of the building called “City Residency” and the respondent complainant initially entered into a verbal agreement with Shymal Baruah to purchase the two flats. Despite insistence of the respondent complainant Lt. Shynal Baruah delayed the process of written agreement on various pretext and upon pressure of the complainant Shymal Baruah ultimately produced a written agreement on 07 06 2014 for sale of only one flat out of two flats proposed to be sold and the complainant paid almost 70% of the price for both the flats to Shymal Baruah. It was also alleged in the complaint that despite receiving the 70% of the sale price of the two flats Shymal Baruah was neither interested to complete the construction of the flat nor took necessary sale permission etc for transferring the flats in favour of the complainant. Having realized the bad intention of Shymal Baruah and associates the complainant sent a legal notice on 21 09 2016 to the accused No. 3 Amit Kumar Ray who was accountant of Shymal Baruah requesting to honour the terms and conditions of the agreement and to provide the copy of the agreement of both the flats. Symal Barauh died sometime in the year 2017 leaving behind his wife Urmila Baruah as his sole legal heir who took control over the building along with two flats proposed to be sold to the complainant. It was also alleged in the complaint that the petitioner No. 2 Rituraj Hazarika who is the brother of the petitioner No. 1 Urmila Baruah started a guest house on the 2nd floor of the building and dilapidated the Flat No. 2 B in the process of his business. It was also stated that notice dated 21 09 2016 was addressed to petitioner No. 3 Amit Kumar Ray as Shymal Baruah was suffering from illness and was hospitalized and Amit Ray was handling the financial matters of Shymal Baruah as his accountant. It was further alleged in the complaint that though the complainant intended to occupy the Flat No. 2B he could not do so as the kitchen of the said flat was not constructed. The complainant made several verbal requests to Shymal Baruah to build the kitchen but he failed to construct the kitchen on various excuses. Therefore the complainant himself spent Rs. 1 94 476 for construction of the kitchen and the entire cost for construction of the kitchen was borne by the complainant though it was the duty of Lt. Page No.# 6 11 Symal Baruah and associates to complete the construction of the building including the kitchen and deliver possession thereof to the complainant. It was further alleged in the complaint that the petitioner No. 2 Rituraj Hazarika converted the Flat No. 2B i nto two rooms Room No. 208 and 209) as it was a two bedroom flats with two separate entry doors and thereby changed the nature of the rooms. Further allegation made in the complaint was that the complainant was dishonestly induced to part with huge amount of money by the accused persons by entering into a criminal conspiracy for making unlawful gain. 14. A perusal of the complaint as well as the statement of the complaint recorded u s 200 CrPC would show there was oral agreement between complainant respondent no.2 and Lt. Shymal Baruah for purchasing two flats in the five storied building to be constructed by Shymal Baruah under the name and style “City Residency” and the complainant paid about 70% of the total sale price of the two flats to said Shymal Baruah but Shymal Baruah was not interested to construct the house or to make a written agreement. However upon insistence of the complainant a written agreement was made in the month of June 2014 between the complainant and Shymal Baruah and associates in respect of only one flat. Admittedly despite several request and demand of the complainant Shymal Baruah during his life time did not complete the construction of the building nor handover the possession of the two flats proposed for sale to the complainant and eventually Shymal Baruah died in the year 2017 leaving behind the petitioner No. 1 as his legal heir in respect of his property including the building in question. Therefore admittedly there was no contract between the present petitioners and the complainant nor any money was paid to the present petitioners on the basis of the agreement between the complainant and Shymal Baruah. Evidently as per averment made in the complaint Shymal Baruah during his live time violated the contract being reluctant to fulfill the promise. Further it was alleged in the complaint that the petitioner No. 1 Rituraj Hazarika made some changes in the Flat No. 2B proposed to be sold to the complainant and he was running a business of the guest house on the third floor and caused damaged to the two flats proposed to be sold to the complainant. If the allegation made in the complainant is taken in its face value admittedly there was no agreement or contract between the complainant and the petitioners nor any money was paid to the petitioners by the complainant. Evidently initial agreement of the Page No.# 7 11 complainant was with Shymal Baruah to whom the complainant paid the money and during his lifetime Shymal Baruah did not comply with the terms and conditions of the agreement entered into with the complainant and thereby allegedly violated the contract. 15. It is no doubt true that breach of contract may contain the ingredients of cheating. If from the allegations made in the complainant it can be discerned that at the time of making promise or entering into agreement there was dishonest intention on the part of the accused not to honour the contract and with such dishonest intention induced the complainant to deliver the property or money to the accused such breach of contract may constitute an offence of cheating. Admittedly in the instant case there was neither any contract between the complainant and the present petitioners nor any money was delivered to them pursuant to any contract between them. Rather the contract was between Late Shymal Baruah and the complainant and money was also paid to Shymal Baruah. Admittedly Shymal Baruah during his lifetime failed to honour the contract inspite of repeated demands of the complainant. Therefore even if the entire allegation made in the complaint is accepted to be true there was no question of attributing any fraudulent intention or deception to the present petitioners at the beginning or inducing the complainant by the present petitioners to deliver the property by fraudulent inducement. Therefore the basic ingredient of the offence u s 420 IPC is totally absent against the petitioners. 16. Even if it is assumed for the sake of argument that the petitioner No. 1 Urmila Baruah the wife of Lt. Shymal Baruah who inherited all the properties of Late Shymal Baruah as his legal heir may be liable to shoulder the civil liability of her husband Lt Shymal Baruah in respect of property left by him but no criminal liability can be saddled even with the petitioner No.1 Urmila Baruah being the wife of late Shymal Baruah for the wrong if committed by her husband. Though allegations were made in the complaint that the petitioner No. 2 Rituraj Hazarika made some changes in the construction of the two Flat No. 2B proposed to be sold to the complainant or he has been running business in the said building such allegation does not disclose any ingredient of cheating against the petitioner No. 2 Rituraj Hazarika. 17. The Apex Court in V.Y. Josh and Anr. Vs. State of Gujrat and Anr.(supra) held in paragraph 14 of the judgment that an offence of cheating cannot be said to have been made out unless the following ingredients are satisfied : Page No.# 8 11 “(i) deception of a person either by making a false or misleading representation or by other action or omission ii) fraudulently or dishonestly inducing any person to deliver any property or to consent that any person shall retain any property and finally and intentionally inducing that person to do or omit to do anything which he would not do or omit. For the purpose of constituting an offence of cheating the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise in the absence of a culpable intention at the time of making initial promise being absent no offence under Section 420 of the Penal Code can be said to have been made out”. 18. In Anil Mahajan Vs. Bhor Industries reported in 10 SCC 228 the Apex Court observed that from mere failure of a person to keep up promise subsequently a culpable intention right at the beginning i.e. when he made the promise cannot be presumed. A distinction has to be kept in mind between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent dishonest intention is shown at the beginning of the prosecution. The substance of the complaint is to be seen. Mere use of the expression “cheating” or “deception” in the complaint is of no consequence. 19. In Vesa Holdings Pvt. Lts. and Anr. Vs. State of Kerala & Ors. reported in8 SCC 293 the Apex Court held that the settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat develops later on the same cannot amount to cheating. In other words for the purpose of constituting an offence of cheating the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or Page No.# 9 11 20. In Uma Shankar Gopalika Vs. State of Bihar and Anr. reported in10 SCC 336 the Apex Court observed that “it is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat develops later on the same cannot amount to cheating. 21. Though the learned Magistrate has taken cognizance u s 120B IPC against the petitioners I find no allegation in the complaint that the petitioners entered into a conspiracy with Shymal Baruah for making the agreement for sale of the flat or to deceive the complainant nor there is any averment at all in the complaint to indicate that the petitioners were part or partner of Shymal Baruah and associates as mentioned in the agreement. Cognizance was also taken against the petitioners u s 506 IPC which provides punishment for the offence of criminal intimidation defined in Section 503 IPC. The complaint also did not contain any averment to disclose the ingredients of any offence u s 506 IPC. Therefore this Court is of the view that the complaint in the instance case does not disclose any criminal offence against the present petitioners. 22. What is therefore abundantly clear from the averment made in the complaint as indicated above is that the complaint did not disclose any offence u s 420 or 506 IPC or 120 B IPC against the present petitioners though the petitioner No. 1 Urmila Baruah may be saddled with civil liability. Therefore the present complaint appears to be an endeavor on the part of the complainant to exert pressure on the petitioners to resolve the civil dispute or civil claim by giving criminal flavor to an out and out civil dispute so far the present petitioners are 23. In Indian Oil Corporation Vs. NEPC India Ltd. and Ors. reported in6 SCC 736 the Apex Court deprecated the growing tendency in the business circles to convert purely a civil dispute into a criminal wrong for exerting pressure to resolve the civil dispute and observed that “any effort to settle civil dispute and claims which do not involve any criminal offence by applying pressure through criminal prosecution should be deprecated and Page No.# 10 11 24. In Indra Mohan Singh Goswami Vs. State of Uttaranchal reported in12 SCC 1 the Apex Court observed that the court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior m otive to pressurize the accused. 25. The oftquoted judgment of the Supreme Court in State of Haryana Vs. Bhajanlal 1992) 1 Suppl. 1 SCC 335 the Apex Court has laid down the following categories of cases by way of illustration in paragraph 102 where the criminal proceeding can be quashed : i) where the allegations made in the First Information Report or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused ii) where the allegations in the First Information Report and other materials if any accompanying the F.I.R. do not disclose a cognizable offence justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code iii) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused iv) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non cognizable offence no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code v) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused vi) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act to the institution and continuance of the proceedings and or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party vii) where a criminal proceeding is manifestly attended with mala fide and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal 26. The criminal proceeding in the instant case squarely falls under the clause(iii) and the set out in paragraph 102 of the judgment in Bhajanlal’s case and therefore this Court is of the view that this is a fit case where the complaint and the criminal proceeding in CR Case No. 145 2018 deserves to be quashed to secure the ends of justice. Accordingly the complaint and the proceeding in CR Case No. 145 2018 is hereby quashed. Page No.# 11 11 27. The petition is allowed. 28. Send down the LCR. Comparing Assistant

Age can be Considered as One of the Determining Factor to Grant Bail: High Court of Shimla

The age as well as the entire facts and circumstances along with stage of the investigation of the petitioner, there isn’t any fruitful purpose going to be served by keeping the accused behind the bars. This honorable judgement was passed by High Court of Shimla in the case of Akhil Katoch Versus State of Himachal Pradesh [Cr.M.P. (M) No. 611 of 2021] by The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. The petition was filed, wherein it was stated that petitioner after remaining in Police custody has been sent in judicial custody and since, he was in judicial custody. As per status report investigation was almost complete and challan after preparation had been checked by learned Assistant Public Prosecutor and now it was to be presented in the Court after getting checked by District Attorney. The petitioner was registered under Sections 452, 323, 504, 364, 382, 325 and 34 IPC, in Police Station Palampur, District Kangra. The court opinioned that, “Considering the entire facts and circumstances and stage of the investigation as well as age of the petitioner, it was found that no fruitful purpose is going to be served by keeping the petitioner behind the bars, therefore, petitioner is directed to be enlarged on bail stating that The petitioner was registered under Sections 452, 323, 504, 364, 382, 325 and 34 IPC, in Police Station Palampur, District Kangra, subject to his furnishing personal bond in the sum of `50,000/- with one surety in the like amount to the satisfaction of trial Court within two weeks from today.”

Hig h C o urt of H.P on 05 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.P.No. 6121 Date of decision: 5.4.2021 Akhil Katoch. …Petitioner. Versus State of Himachal Pradesh. …Respondent. Coram The Hon’ble Mr. Justice Vivek Singh Thakur Judge. Whether approved for reporting 1 For the Petitioner: Mr.Suneel Awasthi Advocate. For the Respondent: Mr.Raju Ram Rahi Deputy Advocate General. ASI Narender Singh Police Station Palampur District Kangra H.P. present along with record. Vivek Singh Thakur JudgeStatus report stands filed wherein it is stated that petitioner after remaining in Police custody has been sent in judicial custody and since 11th March 2021 he is in judicial custody. As per status report investigation is almost complete and challan after preparation has been checked by learned Assistant Public Prosecutor and now it is to be presented in the Court after getting checked by District Attorney. 2. Considering the entire facts and circumstances and stage of the investigation as well as age of the petitioner I find that no fruitful purpose is going to be served by keeping the petitioner behind the bars therefore petitioner is directed to be enlarged on bail in case FIR No. 42 dated 27.2.2021 registered under Sections 452 323 504 364 382 325 and 34 IPC in Police Station Palampur District Kangra Whether the reporters of the local papers may be allowed to see the Judgment Yes Hig h C o urt of H.P on 05 04 HCHP Cr.M.P.No. 4621 2H.P. subject to his furnishing personal bond in the um of `50 000 with one surety in the like amount to the satisfaction of trial Court within two weeks from today and also subject to the following conditions: That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required that he shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him her from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not in any manner try to overawe or influence or intimidate the prosecution witnesses that he shall not obstruct the smooth progress of the investigation trial that he shall not commit the offence similar to the offence to which he is accused or suspected that he shall not misuse his liberty in any manner that he shall not jump over the bail that he shall keep on informing about the change in address landline number and or mobile number if any for his availability to Police and or during trial he shall not leave India without permission of the Court. 3. It will be open to the prosecution to apply for imposing and or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice. 4. In case the petitioner violates any conditions imposed upon him his bail shall be liable to be cancelled. In such eventuality prosecution may approach the competent Court of law for cancellation of bail in accordance with law. Hig h C o urt of H.P on 05 04 HCHP Cr.M.P.No. 4621 35. Learned trial Court is directed to comply with the directions issued by the High Court vide communication No.HHC.VIG. Misc. Instructions 93 IV.7139 dated 18.03.2013. 6. Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application. 7. The petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order however it may verify the order from the High Court website or otherwise. The petition stands disposed of in the aforesaid terms. Dasti copy on usual terms. 5th April 2021 Judge.

All grounds in respect of existence and validity of the arbitration clause can be raised by the petitioner before the Arbitral Tribunal: Delhi High Court

The intent of the Arbitration and Conciliation Act, 1996 is that existence and validity of the arbitration agreement can be raised by a party before the Arbitral Tribunal and therefore, finality has been given to the orders passed by the court allowing application under Section 8 of the Act as upheld by the High Court of Delhi through the learned bench led by Hon’ble Mr. Justice Amit Bansal in the case of Arun Srivastava v. M/S Larsen & Toubro Ltd. (CM(M) 1520/2018) The brief facts of the present petition are that on 20th October, 2019, a Letter of Intent was issued by the respondent to the petitioner for supply, installation and commissioning of electric works at the District Hospital Project at Gurgaon, Bhiwani and Hissar in Haryana. Letter of Intent was duly executed and signed between the parties at New Delhi. It was the contention of the petitioner that the respondent wrongly withheld an amount of Rs.12,24,181/- in respect of bills raised by the petitioner on the respondent which led to filing of a recovery suit for an amount of Rs.17,26,000/- before the court of ADJ on 22nd September, 2017. In the said suit, an application under Section 8 of the Act was filed on behalf of the respondent seeking that the parties may be referred to arbitration in terms of the arbitration clause contained in the Letter of Intent. On 22nd December, 2017, an application under Order 12 Rule 6 of the Code of Civil Procedure, (CPC), 1908, was filed on behalf of the petitioner seeking decree on the basis of admissions made by the respondent. The application filed on behalf of the respondent under Section 8 of the Act was allowed by the impugned order. In view of the Section 8 application filed by the respondent being allowed, the application filed by the petitioner under Order 12 Rule 6 of CPC was dismissed as being infructuous. After the perusal of the facts and arguments, the Hon’ble Court held, “The present petition under Article 227 of the Constitution of India against the impugned order allowing the Section 8 application would not be maintainable. All grounds in respect of existence and validity of the arbitration clause can be raised by the petitioner before the Arbitral Tribunal. Even on the merits of the case, no grounds have been made for interference with the impugned order. The only case put by the petitioner is that in light of the admission made by the respondent, there is no arbitrable dispute to be referred for arbitration. No merit is found in the petition. Dismissed.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : 22nd October 2021 Decided on : 09th November 2021 CM(M) 1520 2018 ARUN SRIVASTAVA Petitioner Through: Mr. Randhir Jain with Mr. Bhoop Singh Advocates M S LARSEN & TOUBRO LTD. Respondent Through: Mr. Ankit Chaturvedi with Mr.Neeraj Sood Advocates HON BLE MR. JUSTICE AMIT BANSAL The present petition under Article 227 of the Constitution of India impugns the judgment dated 04th August 2018 passed by the Additional District Judge 05 South East Saket Courts New Delhi in Suit No.1462 2017 whereby the application filed on behalf of the respondent defendant under Section 8 of the Arbitration and Conciliation Act 1996 hereinafter referred to as ‘Act’) has been allowed. This matter came up for hearing before this Court on 11th December 2018 when notice was issued. Subsequently an application for early hearing was filed on behalf of the petitioner which was allowed by this Court on 9th September 2021. The respondent has filed a reply and the petitioner has also filed a rejoinder. CM(M) 1520 2018 Digitally SignedBy:MAMTA ARYASigning Date:09.11.202115:23:17Signature Not Verified The brief facts leading to the filing of the present petition are set out 3.1 On 20th October 2019 a Letter of Intent was issued by the respondent to the petitioner for supply installation and commissioning of electric works at the District Hospital Project at Gurgaon Bhiwani and Hissar in Haryana. Letter of Intent was duly executed and signed between the parties at New Delhi. It was the contention of the petitioner that the respondent wrongly withheld an amount of Rs.12 24 181 in respect of bills raised by the petitioner on the respondent which led to filing of a recovery suit for an amount of Rs.17 26 000 before the court of ADJ on 22nd September 2017. In the said suit an application under Section 8 of the Act was filed on behalf of the respondent seeking that the parties may be referred to arbitration in terms of the arbitration clause contained in the Letter of Intent. On 22nd December 2017 an application under Order 12 Rule 6 of the Code of Civil Procedure 1908 was filed on behalf of the petitioner seeking decree on the basis of admissions made by the respondent. 3.2 The application filed on behalf of the respondent under Section 8 of the Act was allowed by the impugned order observing holding as There was a comprehensive arbitration clause between the parties in terms of which the clear intention of the parties was reflected that the disputes between them had to be resolved through arbitration. CM(M) 1520 2018 Digitally SignedBy:MAMTA ARYASigning Date:09.11.202115:23:17Signature Not Verified ii) The application under Section 8 of the Act was filed by the respondent before filing the written statement. iii) The petitioner had admitted the receipt of Annexures 1 2 and 3 to the Letter of Intent and therefore a legally binding contract was entered into between the parties even if the said annexures did not bear the signatures of the petitioner. iv) Petitioner has nowhere denied the existence of arbitration agreement contained in the documents annexed with the Letter of Intent. In a similar matter being CS(COMM) 601 2017 titled as A.S. Nutech Electrical Pvt. Ltd. v. M s. Larsen & Toubro Ltd. this Court has already referred the matter for arbitration and the petitioner is one of the directors in the said plaintiff company. vi) The petitioner had deliberately withheld the proceedings in CS(COMM) 601 2017 as well as the complete documents that were annexures to the Letter of Intent. vii) Judgment of this Court in Fenner India Ltd. V. Bhramputra Valley Fertilizer Corporation Ltd. 227DLT 285 is not applicable to the facts of the case as there is no specific admission on the part of the respondent. In view of the Section 8 application filed by the respondent being allowed the application filed by the petitioner under Order 12 Rule 6 of CPC was dismissed as being infructuous. CM(M) 1520 2018 Digitally SignedBy:MAMTA ARYASigning Date:09.11.202115:23:17Signature Not Verified Counsel appearing on behalf of the petitioner has drawn attention of this Court to an email dated 10th November 2016to contend that the same constitutes an acknowledgement of liability of the respondent of a sum of Rs.12 24 181 and that all documents as sought by the respondent had already been supplied by the petitioner to the respondent and therefore there was no reason to withhold the aforesaid amount. Counsel for the petitioner has placed reliance of the judgment of this Court in Fenner India Ltd. to contend that when no disputes exist between the parties and the amount claimed by the plaintiff is admitted by the defendant the same cannot be subject matter of arbitration Counsel appearing on behalf of the respondent questions the maintainability of the present petition under Article 227 of the Constitution of India by placing reliance on the judgment of this Court dated 26th July 2017 in CM(M) 84 2017 titled as Asha Saini v. Omaxe Limited. Counsel also places reliance of the judgment of the Supreme Court in Hindustan Petroleum Corporation Ltd. v. Pinkcity Midway Petroleums 6 SCC 503 to contend that when an arbitration agreement exists between the parties it is obligatory for the courts to refer the parties to arbitration in terms of the arbitration agreement. The counsel for the respondent further contends that whether the documents as sought by the respondent from the petitioner vide email dated 10th November 2016 were supplied by the petitioner to the respondent is to be decided by the Arbitrator in the Arbitration Proceedings. Coming first to the maintainability of the present petition counsel for the respondent has rightly placed reliance on the judgment of this Court in CM(M) 1520 2018 Digitally SignedBy:MAMTA ARYASigning Date:09.11.202115:23:17Signature Not Verified Asha Sainiwherein it has been observed that though Article 227 is a constitutional remedy and is not barred by a prohibition contained in statute ordinarily the High Court would refrain from exercising this jurisdiction where the language of the statute gives a finality to the order. Unlike an order refusing an application under Section 8 of the Act for which statutory remedy of appeal has been provided under Section 37 of the Act no remedy has been provided in respect of an application allowing a Section 8 application. The intent of the Act is that existence and validity of the arbitration agreement can be raised by a party before the Arbitral Tribunal and therefore finality has been given to the orders passed by the court allowing application under Section 8 of the Act. In Deep Industries Ltd. v. Oil and Natural Gas Corporation Limited 2020) 15 SCC 706 the Supreme Court observed that though petitions can be filed under Article 227 against judgments allowing or dismissing first appeals under Arbitration Act yet the High Court would be extremely circumspect in interfering with the same taking into account the statutory policy so that interference is restricted to orders which are patently lacking in inherent jurisdiction. It was further observed in the Deep Industries Ltd. supra) that if petitions under Articles 226 and 227 of the Constitution of India against orders passed in appeals under Arbitration Act were entertained the entire arbitral process would be derailed and would not come to fruition for many years. The reasoning given by the Supreme Court in Deep Industries Ltd. would be equally applicable in the context of orders passed by courts allowing application under Section 8 of the Act. CM(M) 1520 2018 Digitally SignedBy:MAMTA ARYASigning Date:09.11.202115:23:17Signature Not Verified The Division Bench of this Court in Black Dimond Track Parts Private Limited vs. Black Diamond Motors Parts Private Limited 2021 SCC Online Del 2630 applying the ratio of the Supreme Court in Deep Industries Ltd. observed that jurisdiction under Article 227 of the Constitution of India has to be sparingly exercised in respect of orders passed by the commercial court so that the legislative intent and purpose behind the Commercial Courts Act of expeditious disposal of commercial suits is not defeated. In view of the aforesaid position of law the present petition under Article 227 of the Constitution of India against the impugned order allowing the Section 8 application would not be maintainable. All grounds in respect of existence and validity of the arbitration clause can be raised by the petitioner before the Arbitral Tribunal. 11. Even on the merits of the case no grounds have been made for interference with the impugned order. In this regard reference may be made to the observations of the Supreme Court in Hindustan Petroleum Corporation Ltd.in paras 14 and 16 which are set out as under: “14. This Court in the case of P. Anand Gajapathi Raju v. P.V.G. Raju4 SCC 539] has held that the language of Section 8 is peremptory in nature. Therefore in cases where there is an arbitration clause in the agreement it is obligatory for the court to refer the parties to arbitration in terms of their arbitration agreement and nothing remains to be decided in the original action after such an application is made except to refer the dispute to an arbitrator. Therefore it is clear that if as contended by a party in an agreement between the parties before the civil court there is a clause for arbitration it is mandatory for the civil court to refer the dispute to an arbitrator. In the instant case the existence of an CM(M) 1520 2018 Digitally SignedBy:MAMTA ARYASigning Date:09.11.202115:23:17Signature Not Verified arbitral clause in the Agreement is accepted by both the parties as also by the courts below but the applicability thereof is disputed by the respondent and the said dispute is accepted by the courts below. Be that as it may at the cost of repetition we may again state that the existence of the arbitration clause is admitted. If that be so in view of the mandatory language of Section 8 of the Act the courts below ought to have referred the dispute to arbitration. 16. It is clear from the language of the section as interpreted by the Constitution Bench judgment in Konkan Rly. 2 SCC 388] that if there is any objection as to the applicability of the arbitration clause to the facts of the case the same will have to be raised before the Arbitral Tribunal concerned. Therefore in our opinion in this case the courts below ought not to have proceeded to examine the applicability of the arbitration clause to the facts of the case in hand but ought to have left that issue to be determined by the Arbitral Tribunal as contemplated in clause 40 of the Dealership Agreement and as required under Sections 8 and 16 of the Act.” 12. The entire case of the petitioner is based on the admission made by the respondent in respect of its alleged liability towards the petitioner. Nowhere has the petitioner disputed the existence of the arbitration clause. The impugned order has correctly noted that there is no specific admission made by the respondent. Therefore the judgment of this Court in Fenner India Ltd. has been correctly distinguished. It may also be noted here that the Order 12 Rule 6 application was filed by the petitioner only after the Section 8 application had been filed by the respondent. As is being observed by the Supreme Court in Hindustan Petroleum Corporation Ltd. supra) once there is an arbitration clause in the agreement it is obligatory for the court to refer the parties to arbitration in terms of the said agreement. In the present case the petitioner has not denied the existence of the arbitration agreement. The only case put by the petitioner is that in light of CM(M) 1520 2018 Digitally SignedBy:MAMTA ARYASigning Date:09.11.202115:23:17Signature Not Verified the admission made by the respondent there is no arbitrable dispute to be referred for arbitration. 13. No merit is found in the petition. 14. Dismissed. NOVEMBER 09 2021 AMIT BANSAL J. CM(M) 1520 2018 Digitally SignedBy:MAMTA ARYASigning Date:09.11.202115:23:17Signature Not Verified

Certification u/s 65 B(4) of the Evidence Act must be available for relying upon the WhatsApp messages: Punjab and Haryana High Court

Investing authorities can only rely upon the WhatsApp messages during the investigation if such messages are certified u/s 65 B of the Evidence Act. Punjab and Haryana High Court gave this judgment in the case of Rakesh Kumar Singla vs. Union of India [CRM-M no. 23220 of 2020] by the single bench of Hon’ble Justice Jaishree Thakur. In the above-cited case, HC was hearing a plea for granting bail under Narcotics Drugs and Psychotropic Substances Act, 1987. For the purpose of opposing the bail application, the Narcotics Control Bureau had contended that they have WhatsApp chats against the accused, connecting the petitioner with the contraband. NCB stated that the Drugs were transferred between the accused and a few other people were also involved in the sale and purchase of the said drugs and it was evident from the screenshots of the WhatsApp Messages. High Court enquired NCB if they had a certificate for proving that the Whatsapp messages have any evidentiary value u/s 65 B (4) of the Evidence Act. But NCB didn’t have the certificate for proving the same and hence, High Court opined that on the basis of the statements of the accused, they could prima facie be allowed bail. HC relied on the Supreme Court judgment of  Arjun Pandit Rao Khotkar vs. Kailash Kushanrao Gorantyal and Tofan Singh vs. State of Tamil Nadu where the statements to Narcotics officers were not confessional statements and could not by themselves be relied upon during trial. Relying upon the previous judgments HC said that “ Supreme Court in the matter of Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and others [(2020) 7 SCC 1] has held that a certificate Section 65B of the Indian Evidence Act is required when reliance is being placed upon electronic record. Needless to say that the Narcotics Bureau will always be at liberty to rely upon the WhatsApp messages after due compliance with provisions of Section 65-B”. HC stated that the messages without the certificate do not have any evidentiary value and hence, cannot be relied upon. HC opined that Section 65-B requires electronic records to be certified by a person occupying a responsible official position for the same to be admitted as evidence in court proceedings.

on 16 01 CRM M No.2322201 IN THE HIGH COURT FOR THE STATES OF PUNJAB ANDHARYANA AT CHANDIGARHCRM M No.232220Date of Decision.14.01.2021Reserved on 06.01.2021(Heard through VC)Rakesh Kumar Singla ...PetitionerVsUnion of India ...RespondentCORAM:HON BLE MS. JUSTICE JAISHREE THAKURPresent:Mr. R.S. Rai Senior Advocate with Ms. Rubina Vermani Advocate for the petitioner.Mr. Sanjay Vashisth AdvocateSenior Panel Counsel for NCB. . JAISHREE THAKUR J. 1.The instant petition has been filed for grant of regular bail tothe petitioner in case bearing Crime No.33 2020 dated 12.06.2020 underSections 8 21 22 29 of NDPS Act at Police Station NCB Zonal Unit Sector 25(W) Chandigarh.2.The facts in brief as alleged are that two consignments werebooked by one Paramjit Kaur proprietor of Brioshine Pharma a licensedchemist at SCO No.38 Cabin 2 1st Floor Sector 11 Panchkula in the nameof Balaji Traders Shop No.158 A Near DAV Girls School Bazar No.1 Ferozepur Cantt 152001 through DTDC Courier Agency. The firstconsignment was booked on 10.06.2020 and the second consignment wasbooked on 12.06.2020. 3.On receipt of secret information that two consignmentscontained contraband the Narcotics Bureau Headquarters Chandigarh on 16 01 CRM M No.2322202 arrived at the Regional Office of DTDC Courier Agency at Panchkula andcalled Paramjit Kaur on 12.6.2020whoconfirmed that she had booked the parcels herself. One parcel was openedat Panchkula and 20 000 tablets of Tramadol Hydrochloride 100 mgwere recovered. Simultaneously on 12.06.2020 the Narcotics Bureau Amritsar arrived at DTDC Office at Court Road Ferozepur and arrested one Bhavnish s o Prem Kumar Dutta the person towhom the consignment had been sent on 10.06.2020 and recovered 37 000tablets of Tramadol Hydrochloride 100 mg3 It is submitted that he has been implicated only on the basis of a disclosurestatement made by a co accused Paramjit Kaur under Section 67 of theNDPS Act and also on the basis of his own self inculpatory statementrecorded under Section 67 of the NDPS Act while he was in custody. It issubmitted that such a statement can not be relied upon. In order to buttresshis arguments learned Senior Advocate relies upon the judgment passed bythe Hon’ble Supreme Court in Tofan Singh Vs. State of Tamil Nadupassed in Criminal Appeal No.1513 decided on 29.10.2020. 5.Per contra Mr. Sanjay Vashisth learned Advocate appearingon behalf of the Narcotics Bureau submitted that there has been a recoveryof almost 57 000 tablets of Tramadol Hydrochloride 100 mgwhich is of commercial quantity. Paramjit Kaur hasadmitted to sending the consignment to Bhavnish Kumar under her ownsignatures at the behest of the petitioner. She stated that she was totallyunaware of the contents of the parcel sent to Balaji Traders at Ferozepur. Itis also argued that there are screen shots of Whatsapp messages availablewith the NCB which would connect the petitioner with the said contraband as there is a message available showing transfer of an amount by thepetitioner into the account of Harjinder Singh husband of Paramjit Kaur. Itis also argued that there are other persons involved in the sale and purchaseof contraband as would be evident from the Whatsapp messages. 6.Mr. Sanjay Vashisth also submitted that the petitioner hasadmitted before the Investigating Officer that he knew Paramjit Kaur whoran Brioshine Pharma at Panchkula and she booked the said consignmentson his asking and therefore once having recorded his involvement in hisown handwriting he would not be entitled to the concession of regular bail. on 16 01 CRM M No.2322204 7.I have heard learned Advocate for the parties and with theirassistance have gone through the paper book as well as the case laws cited.8.The facts are not in dispute regarding seizure of twoconsignments sent by Paramjit Kaur to Bhavnish Kumar at Ferozpuer. Admittedly both the consignments contained contraband of TramadolHydrochloride 100 mgwhich is ofcommercial quantity. The parcel that was sent on 10.06.2020 contained37 000 tablets whereas the parcel that was seized on 12.06.2020 atPanchkula contained 20 000 tablets of aforesaid contraband. It is alsoadmitted fact that Paramjit Kaur in her disclosure statement named RakeshKumar Singla petitioner herein as the person who asked her to forwardboth the consignments to Bhavnish Kumar at Ferozepur however thelearned Senior Advocate for the petitioner has urged that the said disclosurestatement cannot be relied upon nor can any statement made by him in thejudicial custody be relied upon as incriminating evidence against him. 9.A Division Bench of Hon ble Supreme Court in Tofan SinghVs. State of Tamil Nadu16 SCC 31 while discussing the ratio laiddown in decisions of Raj Kumar Karwal Vs. Union of India2SCC 409 and Kanhiyalal Vs. Union of India4 SCC and certainother judgments observed that the ratio laid down in the case of KanhiyalalVs. Union of Indiais required to be re looked and thus referred thematter to a Larger Bench. The matter was referred to a Larger Bench ofthree judges who culled out following two issues for determination: “1. Whether an officer “empowered under Section 42 of theNDPS Act” and or “the officer empowered under Section 53 ofthe NDPS Act” are “Police Officers” and therefore statements on 16 01 CRM M No.2322205 recorded by such officers would be hit by Section 25 of theEvidence Act and 2. What is the extent nature purpose and scope of the powerconferred under Section 67 of the NDPS Act available to andexerciseable by an officer under Section 42 thereof andwhether power under Section 67 is a power to recordconfession capable of being used as substantive evidence toconvict an accused.”The Larger Bench in its judgment has concluded in para 152that “a confessional statement made before an officer designated underSection 42 or Section 53 can be the basis to convict a person under theNDPS Act without any non obstante clause doing away with Section 25 ofthe Evidence Act and without any safeguards would be a directinfringement of the constitutional guarantees contained in Articles 14 20(3) and 21 of the Constitution of India.’’ It was further held that thejudgments rendered in Kanhiyalal and Raj Kumar Karwal(supra) do not state the correct law and are thus overruled. The referencewas therefore answered by stating: “(i) That the officers who are invested with powers underSection 53 of the NDPS Act are “police officers” within themeaning of Section 25 of the Evidence Act as a result of whichany confessional statement made to them would be barredunder the provisions of Section 25 of the Evidence Act andcannot be taken into account in order to convict an accusedunder the NDPS Act.(ii) That a statement recorded under Section 67 of the NDPS on 16 01 CRM M No.2322206 Act cannot be used as a confessional statement in the trial of anoffence under the NDPS Act.”10.In the instant case the Narcotics Bureau is relying not onlyupon the statement given by a co accused implicating the petitioner hereinbut also upon a statement given under Section 67 of the NDPS Act by thepetitioner. The petitioner has been nominated as an accused on thedisclosure statement of co accused Paramjit Kaur who had sent theconsignment to Ferozepur. The complicity of the petitioner will have to bedetermined by the quality of evidence led during trial. As far as the selfinculpatory statement relied upon this Court is prima facie of the opinionthat the ratio as laid down in the reference order in Tofan Singh s casewould come to the aid of the petitioner to allow him the benefit of regularbail. 11.Learned counsel for the NCB has also placed reliance onWhatsapp messages by which the petitioner could be implicated. However on the asking of this Court whether a certificate under Section 65B of theIndian Evidence Act is available at the present moment to authenticate thesaid messages the answer is in negative. The recent judgment rendered bythe Supreme Court in the matter of Arjun Panditrao Khotkar Vs. KailashKushanrao Gorantyal and others7 SCC 1 has held that acertificate Section 65B of the Indian Evidence Act is required when relianceis being placed upon electronic record. Therefore the said message wouldbe of no evidentiary value as on date. 12.The investigation in the matter is complete and the challanstands presented and therefore this Court is of the opinion that no usefulpurpose would be served in keeping the petitioner behind bars. The instant on 16 01 CRM M No.2322207 petition is allowed and the petitioner is directed to be released on regularbail on execution of adequate personal surety bond of an amount of Rs.10Lakhs to the satisfaction of concerned trial Court Duty Magistrate. However any observation made herein shall not be construed to be anexpression on merits of the case. 13.Needless to say that the Narcotics Bureau would always be atliberty to rely upon the Whatsapp messages after due compliance ofprovisions of Section 65 B of the Indian Evidence.(JAISHREE THAKUR) JUDGE January 14 2021Pankaj Whether speaking reasoned Yes NoWhether reportable Yes No

No prima facie for the interim relief sought during the pendency of the petition: High Court of New Delhi

The appellant College had no  prima facie case for the interim relief sought during the pendency of the petition and even the elements of irreparable injury and balance of convenience were also not in their favour. This remarkable judgement was passed by New Delhi High Court in the case of Aditya Ayurved College and Research Centre Ltd v. Union of India and Anr [LPA 84/2021 & CM No.7910/2021] by Hon’ble Mr. Justice Rajiv Sahai and Hon’ble Mr. Justice Amit Bansal The Intra-Court Appeal was filed by the writ petitioner for seeking an interim direction to the respondents to grant permission to the appellant College for admitting 100 students. The appeal came up first before this Court on 26th February, 2021, then on 12th March, 2021 but could not be taken up for hearing, Supreme Court requested this Court to take up the appeal immediately. The appeal came up before this Bench on 16th March, 2021. The appellant College claims, to have been established in the year 2007, to impart education in Ayurveda System of Indian Medicine. The appellant College sought permission to increase the intake capacity in the Undergraduate Course of BAMS, from 50 to 100 students annually, from the Academic Session 2019-2020; respondent No. 1 forwarded the said application to respondent No.2 (CCIM) for the purposes of inspection etc, that a team visited the College on 14th February, 2019 for inspection and submitted its report recommending denial of increase in admission capacity to the appellant College, the reasons set out in the said notice and to appear before the designated Hearing Committee that the Central Government notified the Establishment of New Medical College, College would have made an application before 31st August, 2019 for enhancement of admissions from the Academic Session 2020-2021. The Single Judge impugned order stating that, “the reasoning (i) that the appellant College did not make any application at all for increase of intake capacity of students from 50 to 100 from the Academic Session 2020-2021; (ii) that the reasoning for having not been able to so apply, was not acceptable; (iii) that the delay on the part of the respondents in deciding the application, did not come in the way of the College applying for enhancement of seats (iv) that the counseling for admission to the Academic Session 2020-2021 was underway and, (v) that it was not possible for the inspection of the appellant College to be carried out in the short time.” The counsel for the respondents has referred titled Shri Krishna Ayush University Kurukshetra v. J.R.K. (Jage Ram Kissan) that there was an accrual of deemed permission and setting aside the order of the High Court, the senior counsel for the appellant College has referred us to Royal Medical Trust Vs. Union of India (2015) and Shri Ram Krishan Parmhans Shiksha Parishad Vs. Union of India & Anr.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 17th March 2021 LPA 84 2021 & CM No.7910 2021in W.P.(C) No.13031 2019 also filed by the appellant College The appeal came up first before this Court on 26th February 2021 when notice thereof was ordered to be issued. The appeal thereafter was listed on 12th March 2021 but could not be taken up for hearing owing to the Division Bench having not assembled on that date and was adjourned to 15th March 2021 when it was ordered to be listed before another Bench on 16th March 2021 In the meantime the appellant College filed SLPthat the appellant College vide application dated 29th August 2018 to the respondent No.1 Ministry of AYUSH being the Nodal Ministry of the Central Government qua all matters pertaining to Indian Medicine sought permission to increase the intake capacity in the Undergraduate Course of BAMS from 50 to 100 students annually from the Academic Session 2019 2020 that the respondent No. 1 Ministry of AYUSH on 20th November 2018 forwarded the said application of the appellant College to the respondent No.2 Central institutions colleges imparting education in various disciplines in Indian Medicines in India for the purposes of inspection etc. that a team from respondent No.2 CCIM visited the appellant College on 14th February 2019 for inspection of the teaching and infrastructure facilities that the respondent No.2 CCIM submitted its report dated 9th April 2019 to the respondent No. 1 Ministry of AYUSH recommending denial of increase in admission capacity to the appellant College that the respondent No.1 Ministry of AYUSH issued a notice dated 3rd May 2019 to the appellant College to show cause why enhancement in admissions should not be denied for the reasons set out in the said notice and to appear before the designated Hearing Committee on 8th May 2019 that the appellant College participated in the hearing pursuant to the notice to show cause vii) that though the respondent No.1 Ministry of AYUSH ought to have given its decision on the proposal of the appellant College for enhancement of admission capacity from the Academic Session 2019 2020 on or before 31st May 2019 but failed to do so that the Central Government on 11th July 2019 notified the Establishment of New Medical College Opening of New or Higher Course of Study or Training and Increase of Admission Capacity by a Medical College Regulations 2019 supersession of the 2003 Regulations that on 31st August 2019 the time period for making applications to the Central Government respondent No. 1 Ministry of AYUSH for the Academic Session 2020 2021 expired till then no decision on the application dated 29th August 2018 of the appellant College for enhancing the admission capacity of students from the Academic Session 2019 2020 had been given that had the respondents declined enhancement in admission capacity with effect from the Academic Year 2019 2020 prior to 31st August 2019 the appellant College would have made an application before 31st August 2019 for enhancement of admissions from the Academic Session 2020 2021 but owing to the respondents having not communicated any decision the appellant College could not make a fresh application for the Academic Session 2020 2021 either and that the respondents only on 3rd October 2019 rejected the application dated 29th August 2018 of the appellant College for enhancement of intake capacity from 50 to 100 seats from the Academic Session 2019 2020 Impugning the denial of enhancement of admission capacity from the Academic Session 2019 2020 W.P.(C) No.13031 2019 from which this appeal arises was filed by the appellant College The aforesaid writ petition was entertained and is still pending consideration before the Single Judge of this Court The appellant filed CM No.2632 2021 supra in the aforesaid writ petition seeking an interim direction to the respondents to grant permission to the appellant College for admitting 100 students for the Undergraduate Course in BAMS from the Academic Session 2020 2021 pleadingthat the application dated 29th August 2018 of the appellant for enhancement of admission capacity from 50 to 100 seats from the Academic Session 2019 2020 ought to have been decided by the respondents by 31st May 2019 that on 7th February 2020 the appellant College filed CM No.5659 2020 in the aforesaid writ petition seeking permission to allow the appellant College to apply for increase in admission capacity from 50 to 100 students from the Academic Session 2020 2021 after the last date prescribed therefor of 31st August 2019 notice of the said application was issued and the same was posted for hearing on 20th March 2020 that however owing to the prevalent Covid 19 pandemic neither the writ petition nor CM No.5659 2020 could be taken up for hearing that owing to the prevalent pandemic the respondent No.2 CCIM sought an opinion from all the Ayurveda Colleges whether physical visitation inspection of Colleges for granting permission for Academic Session 2020 2021 would be feasible and was informed by the majority that physical inspection was not desirable and permission for the Academic Session 2020 2021 be given on the basis of details of infrastructure teaching training facilities available with the Colleges that the appellant College also submitted its details online for enhancement in admission capacity from 50 to 100 students from the Academic Session 2020 2021 that the appellant College fulfills the requisite criteria for admitting 100 students that however the application of the appellant College for enhancement of admission capacity from the Academic Session 2020 2021 had not been considered and that the admission process for the Academic Session 2020 2021 was still underway and the respondents were still considering applications for inspection from Colleges which wanted to increase their intake capacity The Single Judge vide the impugned order has dismissed the aforesaid application being CM No.2632 2021 filed by the appellant the appellant College did not make any application at all for increase of intake capacity of students from 50 to 100 from the Academic Session 2020 2021 that the reasoning given by the appellant College for having not been able to so apply was not acceptable iii) that the delay on the part of the respondents in deciding the application of the appellant College for enhancement in admission capacity from the Academic Session 2019 2020 did not come in the way of the appellant College applying for enhancement of seats from the Academic Session 2020 2021 that the counseling for admission to the Academic Session 2020 2021 was underway and was about to conclude and that it was not possible for the inspection of the appellant College to be carried out in the The senior counsel for the appellant College before us has argued that had the appellant College been granted permission for enhancement of admission capacity from 50 to 100 students from the Academic Session 2019 2020 the appellant College would not have been required to apply afresh therefor from the Academic Session 2020 2021 that by the time the respondents rejected the aforesaid application of the appellant College on 3rd October 2019 the time for applying for enhancement of admission capacity from the Academic Session 2020 2021 had already expired on 31st August 2019 that all that the appellant College is seeking from this Court is consideration of its online application in this regard and along wherewith the appellant College has filed all the documents prescribed to be filed for such online permission under the 2019 Regulations aforesaid and f) that when the infrastructure for imparting education to 100 students and the faculty required to teach the 100 students is already in existence denial of consideration even of the application is an injustice to the appellant Per contra the counsels for the respondents have reiterated that the appellant College for the enhancement in the admission capacity from the Academic Session 2020 2021 was required to apply on or before 31st August 2019 but did not apply and thus cannot by way of an interim order in a writ petition challenging denial of enhancement of intake capacity from the Academic Session 2019 2020 get the relief for the Academic Session 2020 2021 that the relief claimed in the appeal is beyond the relief claimed in the writ petition that the appellant before the Single Judge did not even make out a case for online permission inspection from the Academic Session 2020 2021 and cannot make a new case in this appeal IV) that for the aforesaid reasons the reliefs claimed in this appeal are beyond the reliefs claimed in the writ petition that in any case the enhancement in admission capacity and is only for annual approval required for admitting students to the existing admission capacity also that merely because the application dated 29th August 2018 of the appellant College for enhancement of admission capacity from the Academic Session 2019 2020 was pending was no reason for the appellant College to not in any case apply before the prescribed date for enhancement of admission capacity from the Academic Session 2020 2021 and which the appellant did not do that the appellant College ought to have known from the notice to show cause dated 3rd May 2019 issued by the respondent No. 1 Ministry of AYUSH to the appellant College to show cause why the application for enhancement of admission capacity for the Academic Session 2019 2020 be not dismissed of the deficiencies in the application of the appellant College and that the appellant College without even applying cannot be granted permission for enhancement of seats from the Academic Session 2020 2021. The counsel for the respondents has referred to the order dated 30th August 2019 of the Supreme Court in Civil Appeal No.6720 2019 titled Shri Krishna Ayush University Kurukshetra v. J.R.K.10 SCC 19 to contend that the result of outcome of the inspection is required to be communicated leaving sufficient time to report compliance. It is argued that on parity the decision of rejection of enhancement in admission capacity should be made well before the prescribed time for making application for enhancement from the subsequent year The senior counsel for the appellant College has also drawn our attention to the consent order dated 1st March 2021 in W.P.(C No.2110 2021 titled Glocal College of Unani Medical Science Hospital and Research Centre Vs. Union of India & Ors. and other connected petitions. The senior counsel for the appellant College has also drawn our attention to CM No.5659 2020 filed by the appellant in the writ petition from which this appeal arises for permission to apply for increase in intake capacity from the Academic Session 2020 2021 beyond the prescribed The senior counsel for the appellant College has yet further drawn our attention to the communication dated 12th January 2021 of the respondent No.2 CCIM to the respondent No.1 Ministry of AYUSH to show that permissions for enhancement of admission capacity for the Academic Year 2020 2021 are still being considered. Attention is lastly also drawn to the judgment dated 21st January 2021 in Review Petition No.474 2018 in W.P.(C) No.7954 2017 titled Shri Ram Krishan Parmhans Shiksha Parishad Vs. Union of India & Anr. of this Court where finding that the application of the petitioner therein for approval submitted on 28th April 2016 was not decided within one year the petitioner was held entitled to the benefit of Section 13A(6) of the IMCC Act and approval was deemed to have been given 13. As far as the last of the aforesaid contentions is concerned the same is beyond the domain of this appeal. The writ petition making a claim of deemed approval of enhancement of admission capacity from the Academic Session 2019 2020 onwards is still pending and this appeal is concerned only with the denial of interim relief claimed vide CM No.2632 2021 14. Ordinarily once the appellant College has been declined permission for enhancement in admission capacity from the Academic Session 2019 2020 during the pendency of a challenge made thereto permission to enhance the admission capacity cannot be granted It cannot be forgotten that while in the event of denial of permission being held to be bad and the writ petition being allowed it would be the Medical College alone which would have suffered from denial of enhancement of admission capacity for one or more years but when pending such challenge admission capacity is permitted to be enhanced students not knowing of the said arrangement being interim take the admission and in the event of the writ petition being ultimately dismissed their careers suffer and they find themselves landed as persona non grata in a college which did not have the permission to admit them or to impart a degree to them. Careers of young ones especially students cannot be permitted to be played with in this fashion. For a case to be made out for grant of permission which has been denied as an interim measure the appellant College has to have more than a prima facie case and which is not so in the present case. It has been held in Medical Council of India v. Kalinga Institute of Medical Sciences11 SCC 530 that granting admission to students in an educational institution when there is a serious doubt whether admission should at all be granted is not a matter to be taken lightly what would a student do if his admission is found to be illegal or is quashed it is not enough for a student to be told that his or her admission is subject to outcome of pending litigation that it is better for the Courts to err on the side of caution rather than have the sword of Damocles hang over the students’ heads. Recently in Medical Council of India Vs N.C. Medical College and Hospital17 SCC 655 also it has been held that making students aware about pendency of the matter and making their admissions subject to result of litigation is not sufficient insulation and results in great hardship and wastage of academic years of students concerned and prejudice to them Perhaps realising so the senior counsel for the appellant College also has pegged his case on consideration of the online application for introduced permitted owing to the prevalent Covid 19 pandemic 16. We have however enquired from the senior counsel for the appellant College whether the said online approval i.e. without physical verification and trusting the affidavits and undertakings filed by the Medical Colleges is applicable only to annual permissions for existing capacity or also extends to enhancement in capacity and or to setting up of new Medical Colleges and granting permission for admission thereto as well 17. While the senior counsel for the appellant College answers in the affirmative the counsels for the respondents under instructions from the Officers present in Court deny and state that the online method and grant of permission believing the documents submitted by the Medial Colleges without physical inspection is applicable only for existing strength and 18. During the hearing we have been informed that the last date for admission to the Academic Session 2020 2021 is of 20th March 2021 i.e barely three days away. The said short time does not permit us to call for replies on affidavits to determine the aforesaid controversy i.e. whether though online method without physical inspection only existing seats and courses can be filled or enhancement of seats can also be ordered. Calling for reply would in any case make this appeal infructuous and the senior counsel for the appellant College also agrees 19. On a reading of the 2019 Regulations Notification we are unable to hold that the online inspection method is applicable for establishment of new colleges commencement of new courses and or for enhancement in admission capacity. The same appears to be applicable only to annual approvals permissions for admission to existing colleges in existing courses and on existing strength. It would be too grave a risk to through the online method without physical verification permit colleges to enhance admission capacity. If ultimately what the Medical Colleges claimed in the documents is found to be untrue and it is found that the requisite infrastructure and faculty did not exist the loss caused to the students so admitted would be irreparable and mar the career and future of such students Thus not only does the appellant College not have the prima facie case for the interim relief sought during the pendency of the petition but the elements of irreparable injury and balance of convenience are also not in favour of the appellant College There is no merit in the appeal RAJIV SAHAI ENDLAW J AMIT BANSAL J MARCH 17 2021 Page 1

Interference of courts in cases of answer sheet re-evaluation is allowed only in exceptional situations: High Court of Delhi

The court can interfere in evaluation of an answer sheet only in cases where there is an exceptional situation shown and to a limited extent. This was decided in the case Of Beem Singh Rawat vs. High Court Of Delhi [W.P. (C) 2784/2021, CM APPL. 9290/2021] by two bench consisting of Hon’ble Mr. Justice Manmohan and Hon’ble Justice Asha Menon. The facts of the case are that The petitioner appeared for the Junior Judicial Assistant/Restorer (Department) Examination, 2019 and when he didn’t qualify the same, he sought the answer sheet vide RTI application. He points out that the petitioner made a representation, citing five questions that had been erroneously marked wrong. The petitioner required minimum twenty marks in both Part A and Part B to qualify for English Typing Test. Petitioner has admittedly received sixteen out of fifty marks in Part A and thirty four out of fifty marks in Part B. Petitioner needs four more marks to qualify in Part A.  This writ petition was filed for issuance of directions to the respondent i.e. the concerned authorities of court to re-evaluate the answer sheet of the petitioner. For this the court relied upon the holding of the Supreme Court in Ran Vijay Singh & Ors. vs. State of Uttar Pradesh & Ors., (2018) 2 SCC 357, while discussing the law regarding judicial interference with the results of an examination. It held “the case law developed over the years admits of interference in the results of an examination but in rare and exceptional situations and to a very limited extent. If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it.” In another case being High Court of Tripura vs. Tirtha Sarathi Mukherjee, (2019) 16 SCC 663 the Supreme Court has held as under: In the event of a doubt, the benefit should go to the examination authority rather than to the candidate. ……. what the Court has laid down is that the Court may permit re-valuation inter alia only if it is demonstrated very clearly without any inferential process of reasoning or by a process of rationalization and only in rare or exceptional cases on the commission of material error.

Suppl. 19 W.P.2784 2021 CM APPL. 9290 2021 IN THE HIGH COURT OF DELHI AT NEW DELHI BEEM SINGH RAWAT Through: Mr. Hari Haran Advocate. HON’BLE HIGH COURT OF DELHI Through: Mr. Sanjay Ghose with Mr. Naman Jain Advocates. Date of Decision: 08th March 2021 HON BLE MR. JUSTICE MANMOHAN HON BLE MS. JUSTICE ASHA MENON JUDGMENT MANMOHAN JExamination 2019. Petitioner also prays for an interim order to allow him to appear for the English typing test to be held on 14th March 2021 Learned counsel for the petitioner states that the petitioner was recruited on the rolls of respondent establishment as process server and is presently posted with the Delhi High Court Establishment. He further states that the petitioner appeared for the Junior Judicial Assistant Restorer Department) Examination 2019 and when he didn’t qualify the same he sought the answer sheet vide RTI application. He points out that the petitioner made a representation dated 1st February 2021 citing five questionsthat had been erroneously marked wrong but the same have been rejected vide memorandum dated 1st March 2021. It is an admitted position that the petitioner required minimum twenty marks in both Part A and Part B to qualify for English Typing Test. Petitioner has admittedly received sixteen out of fifty marks in Part A and thirty four out of fifty marks in Part B. Petitioner needs four more marks to qualify in Part A. This Court has perused the chart showing the details of the questions in which revaluation has been sought. In our view the petitioner’s answers to question nos. two four and five are either incorrect or not the most appropriate. The relevant portion of the chart showing question nos. two four and five as well as petitioner’s answers are reproduced herein below: Question No. and question Answer claimed to xxx 2. Question No.5 Neither of them are coming this eveningNo right by xxx ‘A’ ‘None’ is also the right answer xxx Different websites ‘brainly.com’ and ii) Google search xxx xxx xxx 4. Question No.10 i.e. The new incumbent to the job proved his ________ in his very first assignment. 5. Question No.25 i.e. God is which is also the right answer ‘with’ which xxx Different websites Different websites In our view the correct most appropriate answers to question nos. two four and five are ‘No’ ‘Competence’ and ‘to’ respectively. In view of the aforesaid this Court is of the opinion that it would be futile to undertake a revaluation exercise. In fact the Supreme Court in The Supreme Court in Ran Vijay Singh Ors. vs. State of Uttar Pradesh & Ors. 2 SCC 357 while discussing the law regarding judicial interference with the results of an examination has held as under: “18. A complete hands off or no interference approach was neither suggested in Mukesh Thakur6 SCC 759 : 2 SCC286 : 3 SCEC 713] nor has it been suggested in any other decision of this Court—the case law developed over the years admits of interference in the results of an examination but in rare and exceptional situations and to a very limited extent. 30. The law on the subject is therefore quite clear and we only propose to highlight a few significant conclusions. They are: 30.1. If a statute Rule or Regulation governing an examination permits the re evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right then the authority conducting the examination may permit it 30.2. If a statute Rule or Regulation governing an examination does not permit re evaluation or scrutiny of an answer sheetthen the court may permit re evaluation or scrutiny only if it is demonstrated very clearly without any “inferential process of reasoning or by a process of rationalisation” and only in rare or exceptional cases that a material error has been committed 30.3. The court should not at all re evaluate or scrutinise the answer sheets of a candidate—it has no expertise in the matter and academic matters are best left to academics 30.4. The court should presume the correctness of the key answers and proceed on that assumption and examination authority rather than to the candidate. emphasis supplied) In another case being High Court of Tripura vs. Tirtha Sarathi In the event of a doubt the benefit should go to the Mukherjee 16 SCC 663 the Supreme Court has held as under: “23. ....... Even in the judgment of this Court in Ran Vijay Singh v. Rahul Singh2 SCC 357 which according to the first respondent forms the basis of the High Court s interference though does not expressly stated so what the Court has laid down is that the Court may permit re valuation inter alia only if it is demonstrated very clearly without any inferential process of reasoning or by a process of rationalisation and only in rare or exceptional cases on the commission of material error. ......” emphasis supplied) 11. Keeping in view of the aforesaid factual and legal scenario this Court finds no ground to interfere. Consequently the present writ petition being bereft of merit is 13. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e mail. MANMOHAN J ASHA MENON J MARCH 08 2021

Tobacco Addiction not a ground for seeking divorce: Bombay High Court

Tobacco addiction of spouse will not be considered as a valid ground for seeking a divorce and would not amount to mental cruelty. The Bombay High Court bench consisting of Hon’ble Justice Pushpa V. Ganediwala and Justice A.S Chandurkar gave the decision by stating the above-cited reasons in the case of Shri Shankar vs. Rina [Family Court Appeal no. 70 of 2016]. In the instant case, an appeal was filed by the appellant-husband challenging the judgment of the family trial court which had quashed his appeal for a decree of divorce on the grounds of cruelty u/s 13(1)(i-a) of the Hindu Marriage Act, 1955. Both the appellant and the respondent married each other on 15-6-2003 and had two kids out of wedlock. The appellant-husband had filed a petition in the trial court for seeking divorce on the ground of cruelty. He mentioned that his wife used to eat tobacco because of which a cyst developed in her stomach resulting in huge expenses for the treatment. The appellant-husband also mentioned that the respondent used to avoid the household work and never took care of the family. On the contrary, the respondent-wife alleged that the husband and his mother used to harass her mentally and physically. She also made allegations of dowry on the appellant and his family. Considering all the facts and the evidence, the trial court had dismissed the appeal of the husband for seeking divorce as he could not prove cruelty against him in the court. In the High Court, the appellant counsel argued that the family court didn’t consider the ill-treatment subjected to the appellant by the respondent/wife and the false allegations against the appellant/husband which amounted to mental cruelty. He further submitted that the learned Family Court ignored the bad habits of the respondent/wife while dismissing the appeal. While referring to the judgment of Samar Ghosh vs. Jaya Ghosh [(2007) 4 SCC 511], the High Court came to the conclusion that the cruelty suffered by the appellant was normal wear tear of the married life. The High Court bench stated that “The allegations that she was not doing household work, quarreling with his family members without any reason, visiting her parental home without his permission, not preparing his tiffin, etc., in the considered view of this Court, are not sufficient to form an opinion that the appellant/husband is undergoing acute mental pain, agony, suffering, disappointment, and frustration”.

on 12 02 2021 on 19 02 apl 70 16(j).odt 1 9 IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH NAGPURFAMILY COURT APPEAL NO. 70 OF 2016 Shri Shankar S o Haridasji Gajbhiye Aged about 37 Years Occ.: Service R o Pawanputra Nagar Dighori Behind P.M.B.S. College Nagpur : APPLICANT...VERSUS... Sau. Rina W o Shankar Gajbhiye C o Shri Pandhari Zambandhu Aged about 33 Years Occ. Household R o Bhankheda Near Library & Ekbal S.T.D. Kabrasthan Road Nagpur 440 017 : RESPONDENT= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = Shri D.R.Khandare Advocate for the applicant.Shri N.M. Kolhe Advocate for the respondent.= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = CORAM : A.S.CHANDURKAR & PUSHPA V. GANEDIWALA JJ. DATE : 10th FEBRUARY 2021.JUDGMENT of the HinduMarriage Act 1955 came to be dismissed. on 12 02 2021 on 19 02 apl 70 16(j).odt 2 9 2.The marriage between the appellant husband and therespondent wife was solemnised on 15 06 2003 at Nagpur as per theBuddhist rites and rituals. Out of the said wedlock the couple is blessedwith one son and one daughter. The daughter is in the custody ofappellant husband while the son is with the respondent wife. Theappellant husband sought divorce on the ground of cruelty. The factswith regard to cruelty as pleaded in his petition are as under :i.Respondent wife was not doing any household work properly.She used to quarrel with the appellant husband and his familymembers without any reason.ii.She used to visit her parental home without his permission andused to stay there for 15 30 days.iii.She was addicted to chewing tobacco and therefore she haddeveloped a cyst in her stomach. The appellant husband had toincur huge medical expenses for her treatment.iv.She was insisting for separate residence from the family of theappellant husband and therefore a house was purchased atDighori Nagpur. Despite this the respondent wife could notchange her behavior and she continued to visit her parentalhouse.v. She used to do household work in midnight. She was notpreparing tiffin box at proper time. vi.Lastly on 17 01 2012 she left the company of theappellant husband as she was not interested to cohabit withhim. on 12 02 2021 on 19 02 apl 70 16(j).odt 3 9 3.Appellant husband further states that in order toresume the cohabitation on 13.02.2012 he issued a legal notice tothe respondent wife. However she neither replied the said notice nor showed her inclination to resume cohabitation and hence hewas constrained to file a divorce petition on the ground of cruelty.4.The respondent wife in her written statement deniedall the adverse allegations of cruelty pleaded by theappellant husband. In her specific pleading the respondent wifepleaded about some instances of mental and physical harassmentmeted out to her at the hands of the appellant husband and hermother in law. She stated that her mother in law was quarrelingwith her and was doubting her character. She also madeallegations with regard to demand of two wheeler from her parentsby the appellant husband and on that count he gave beating toher. She also pleaded one incident of police complaint by her andthe settlement between the parties before the Mahila Cell atPanchpaoli Police Station and that the appellant husband hadgiven assurance of good treatment to her.5.The respondent wife further alleged that in the year2008 even though the appellant husband was suffering from thedisease H.I.V. she did not leave his company. However as she was on 12 02 2021 on 19 02 apl 70 16(j).odt 4 9 receiving continuous ill treatment at the hands of her in laws shewas constrained to leave the company of the appellant husband.6.The learned trial Court framed necessary issues andrecorded oral and documentary evidence as adduced by the parties.The appellant husband examined himself and two more witnessesi.e his mother and brother while respondent wife examined herselfonly.7.After hearing both the parties the learned trial Courtdismissed the petition for divorce as in the opinion of the trialCourt the appellant husband could not prove the cruelty at thehands of the respondent wife as contemplated in law. Thisjudgment is impugned in this appeal.8.We have heard Shri D.R.Khandare learned counsel forthe appellant husband and Shri N.M.Kolhe learned counsel forthe respondent wife.9. Shri Khandare learned counsel for the appellant husband submitted that the learned Family Court has not considered thepleadings and the evidence on record in its correct perspective.According to him the Family Court has failed to consider the ill treatment subjected to him by the respondent wife and the falseallegations against the appellant husband and his family members on 12 02 2021 on 19 02 apl 70 16(j).odt 5 9 amounts to mental cruelty. He further submitted that the learnedFamily Court has ignored the bad habits of the respondent wife and also not considered that she was not doing household workproperly and used to quarrel with the appellant husband and hisfamily members. Lastly he urged to allow the appeal in the interestof justice.10.Per contra Shri Kolhe learned counsel for therespondent wife supported the judgment and decree of the trialCourt and submitted that the learned trial Court while dismissingthe petition has properly appreciated the evidence on record andthat the appellant husband could not make out a case to interferewith the well reasoned judgment of the Court below.11.We have considered the submissions put forth on eithersides and perused the record.12. The following point arose for consideration of this Court:“Is the appellant husband is entitled for grant ofdecree of divorce on the ground of cruelty ”.13.At the outset the appellant husband has sought divorceon the ground of mental cruelty. Before adverting to examine theevidence on record to assess as to whether the appellant husbandcould make out a case of mental cruelty it would be advantageous on 12 02 2021 on 19 02 apl 70 16(j).odt 6 9 to refer to one of the landmark judgments of the Hon’ble ApexCourt in the case of Samar Ghosh vs. Jaya Ghosh reported in(2007) 4 SCC 511 wherein their Lordships have enumerated someinstances of mental cruelty. The relevant portion in para no. 101 inthe said judgment is reproduced below:"101. No uniform standard can ever be laid down for guidance yet we deem it appropriate to enumerate some instances ofhuman behavior which may be relevant in dealing with the casesof "mental cruelty". The instances indicated in the succeedingparagraphs are only illustrative and not exhaustive:(i) On consideration of complete matrimonial life of theparties acute mental pain agony and suffering as wouldnot make possible for the parties to live with each othercould come within the broad parameters of mentalcruelty.On comprehensive appraisal of the entirematrimonial life of the parties it becomes abundantlyclear that situation is such that the wronged party cannotreasonably be asked to put up with such conduct andcontinue to live with other party.Mental cruelty is a state of mind. The feeling of deepanguish disappointment frustration in one spousecaused by the conduct of other for a long time may leadto mental cruelty.A sustained course of abusive and humiliatingtreatment calculated to torture discommode or rendermiserable life of the spouse.Mere trivial irritations quarrels normal wear andtear of the married life which happens in day to day lifewould not be adequate for grant of divorce on theground of mental cruelty.The married life should be reviewed as a whole anda few isolated instances over a period of years will notamount to cruelty. The ill conduct must be persistent fora fairly lengthy period where the relationship hasdeteriorated to an extent that because of the acts andbehaviour of a spouse the wronged party finds itextremely difficult to live with the other party anylonger may amount to mental cruelty. on 12 02 2021 on 19 02 apl 70 16(j).odt 7 9 14. A careful perusal of the pleadings and the evidence insupport as adduced by the appellant husband would at oncereveal that the allegations with regard to cruelty as set out by theappellant husband are nothing but the normal wear and tear inmarried life. The couple lived together for around 9 years and theappellant husband could not bring on record specific instances ofmental harassment to enable this Court to adjudicate the case ofmental cruelty in favour of the appellant husband. The allegationsthat she was not doing household work quarreling with his familymembers without any reason visiting her parental home withouthis permission not preparing his tiffin etc. in the considered viewof this Court are not sufficient to form any opinion that theappellant husband is undergoing acute mental pain agony suffering disappointment and frustration and therefore it is notpossible for him to live in the company of the respondent wife. Allthe allegations levelled by the appellant husband are general andomnibus in nature. The major allegation amongst them is withregard to her habit of chewing tobacco kharra which alone is notsufficient to grant a decree of divorce. On the contrary theappellant husband has admitted that in the year 2008 he wasdetected with HIV positive and the respondent wife stayed withthe appellant husband till 2010. The instances of physical and on 12 02 2021 on 19 02 apl 70 16(j).odt 8 9 mental harassment as pleaded and proved by the respondent wife is on the better footing than the appellant husband.15.It is the specific allegations of appellant husband thatsince the respondent wife was having a habit of chewing tobacco he was required to spend lot of money for her medical treatment.However the learned trial Court has rightly observed that he failedto bring on record the medical papers and bills in support of thispleading.16.The Division Bench of this Court in the case of SanjanaSandip Pednekar Vrs. Sandip Sitaram Pednekar reported in2014(3) Mh.L.J 781 with regard to cruelty has observed that themarried life should be assessed as a whole and a few isolatedinstances over certain period will not amount to cruelty. It is furtherobserved that the ill conduct must be preceded for a fairly lengthyperiod where the relationship has deteriorated to an extent thatbecause of the acts and behaviour of a spouse one party finds itextremely difficult to live with the other party no longer mayamount to mental cruelty and mere trivial irritations quarrels normal wear and tear of married life which happens in day to daylife in all families would not be adequate for grant of divorce on theground of cruelty. on 12 02 2021 on 19 02 apl 70 16(j).odt 9 9 17.Apart from this it is rightly held by the learned trialCourt that the pleadings of the appellant husband are not so graveand weighty so as to dissolve the marriage. The learned trial Courthas rightly observed that the parties have two children and if themarriage is dissolved the children would suffer a great loss andtheir welfare will affect and in the best interest of daughterBhumika and son Akash the marital tie shall remain intact.18.In the given facts we are of the opinion that no case ismade out by the appellant husband to disturb the well reasonedfindings of the learned trial Court. The appeal thus being devoid ofmerits deserves to be dismissed and is accordingly dismissed. Theparties to bear their own costs.JUDGE JUDGEsknair

If material on record is a brazen attempt to persecute an innocent person, imperative upon Court to prevent abuse of process of law: Supreme Court

The High Court has committed jurisdictional error by not entertaining the revision petition on merits and overlooking the fact that ‘discharge’ is a valuable right provided to the accused. This was said in the case of Sanjay Kumar Rai vs The State Of Uttar Pradesh [CRIMINAL APPEAL NO.472 OF 2021] by Justice Surya Kant, J in the Supreme Court of India This   appeal   emanates   from   the   judgment   dated   28.11.2018 passed by the High Court  whereby a criminal revision against the order dated 13.03.2014 of  the Chief Judicial   Magistrate,   refusing   to discharge the appellant  under Sections 504 and 506 of IPC has been turned down Learned Counsel for the appellant urged that prima facie, the story of the complainant seems dubious, for he initiated the phone call, put it on speaker, and had two witnesses ready to listen to the conversation.  No call records had been sought by the police, affidavits of the witnesses were blindly accepted and no attempt was made to record their statements under Section 161 of CrPC.  The Investigating Officer proceeded with a closed mind and casually overlooked the credentials of the complainant who is involved in seven criminal cases including under Sections 323, 504, and 506 of IPC.   A letter from the Resident Editor of ‘The Pioneer’ was also produced, showing that the complainant was not employed with their newspaper around the time of the alleged incident. On the other hand, Learned State Counsel urged that the allegations make for a clear case under Sections 504 and 506 of IPC and that no error was committed by the High Court of the CMJ.  The Court referred to the case of Union of India v.  Prafulla   Kumar Samal [(1979) 3 SCC 4] wherein it was said that “it is well settled that the trial court while considering the discharge application is not to act as a mere post office. The Court has to sift through the evidence   in der  nd out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, the total effect of evidence and documents produced and the basic infirmities appearing in the case and so on. Likewise, the Court has sufficient discretion to order a further investigation in appropriate cases, if need be”. This brings us to the present case wherein the High Court has not gone into the merits of the case and did not analyze the case in light of the settled law referred to above.

2. This appeal emanates from the judgment dated 28.11.2018 criminal revision against the order dated 13.03.2014 of the Chief Judicial Magistrate Sant Kabir Nagar refusing to the present appeal. A complaint was lodged with the claimed to be a newspaper correspondent working for ‘The ‘Kalpana Indane Service’. He had also applied for certain conduct investigation on alleged black marketing of gas cylinders by the aforesaid agency. The appellant herein is a made by Respondent No.2 started calling him names and threatened to kill Respondent No.2. It is alleged that the 2) Cr.P.C. for conducting investigation in the aforesaid allegations. The Court accordingly directed investigation and 5. It may be noted that during the course of investigation statement of complainant was recorded by the police which enquire about the latest irregularities in the said gas agency. On mobile itself Sanjay Rai started to give filthy abuses to the applicant and threatened to kill him. At the same he also told that your right to information and intellectual concerns shall be kept back in your hands. I will shotsuch number of bullets that even your face could not be recognized. Mohd. Sahrif Kahn and Umesh Kumar Bhatt had also heard the threatening In any case on 21.07.2012 a charge sheet came to be filed 7. The CJM took cognizance of the matter on 08.11.2012 However well before for framing of the charges the appellant telephonic threats does not constitute an offence under investigation was not fair and was unilateral in its approach the truth and had instead relied on the statement of the complainant and other planted witnesses to fasten a case appellant’s plea and rejected his discharge application From perusal of record it is obvious that no affidavit or any documentary evidence has The fact that which word has been used as abuses and threatening by the applicant is a In view of the aforesaid facts and the application dated Kumar Rai U s­239 Cr.P.C. does not appear to 8. The appellant aggrieved by the aforesaid order approached the High Court through a Criminal Revision Petition seeking reversal of CJM’s order. The High Court relying on the Pvt. Ltd. v. Central Bureau of Investigation1 observed that interference in the order framing charges or refusing to 9. Dissatisfied with the aforesaid impugned order the appellant­ accused has approached this Court through Special Leave 10. Learned Counsel for the appellant urged that prima facie the and no attempt was made to record their statements under closed mind and casually overlooked the credentials of the under Sections 323 504 and 506 of IPC. A letter from the Resident Editor of ‘The Pioneer’ was also produced showing 11. On the other hand learned State Counsel urged that the 27 SCC 515 37 SCC 82 12. At the outset we may note that the High Court has dismissed the Criminal Revision on the ground of lack of jurisdiction the issue in detail to find out whether the continuation of charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition be it exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered. Thus considered the challenge to an order of charge 13. It appears to us that while limiting the scope of a criminal revision to jurisdictional errors alone the High Court apparently under­appreciated the Judgment in Asian 19884 SCC 551: 1978 SCC Cri) 10] still holds the field. Order framing charge may not be held to be purely an interlocutory order and can in a given situation be interfered with under Section 44 SCC 551 but the power of the High Court to interfere is to be exercised only in a exceptional and proceed with the trial that the issuance of that inherent power of the High Court cannot be exercises for stopping the criminal proceeding as up to the end The answer is obvious that the 15. The correct position of law as laid down in Madhu Limaye supra) thus is that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are apart this Court in the above­cited cases has unequivocally acknowledged that the High Court is imbued with inherent jurisdiction to prevent abuse of process or to secure ends of cases. As a caveat it may be stated that the High Court while justice system. This Court nonetheless does not recommend a complete hands off approach. Albeit there should be interference may be in exceptional cases failing which there is likelihood of serious prejudice to the rights of a citizen. For example when the contents of a complaint or the other innocent person it becomes imperative upon the Court to 16. Further it is well settled that the trial court while considering Court has to sift through the evidence in order to find out has to consider the broad probabilities total effect of evidence the case and so on. 3 SCC 4 case and other related aspects concerning improvement of witness statements it is necessary for the High Court to reconsider the entire matter and decide the revision petition afresh. Accordingly we set aside the impugned order dated All the pending application(s) if any also stands disposed of

The Petitioner’s Custody can not become ground for bail : High Court of Karnataka

The criminal petition filed under section 438 of Cr.P.C. (Direction for grant of bail to person apprehending arrest) for the enlargement on bail for the offence punishable under Sections 498A( husband or relatives of husband of a woman subjecting her to cruelty),304(b)( Dowry death), 302( punishment for murder), 212 (harboring offender) with Section 34 of IPC (acts done by several persons in furtherance of common intention) and under Sections 3( penalty for giving or taking dowry), 4( penalty for demanding dowry) and 6 ( Dowry to be benefits of the wife or her heirs ) Dowry prohibition Act by the petitioner. And the petition is rejected by the High court of Karnataka through the learned bench led by the Honorable MR. JUSTICE H P Sandesh in the case of Mujeeb Ahmed vs State of Karnataka ( criminal petition no.7676/2021) on 20th January 2022. Brief facts of the case are that at the time of marriage, the petitioner and his family members have demanded an amount of Rs.3,00,000/- as dowry and an amount of Rs.2,00,000/- along with gold articles were given at the time of marriage and marriage was performed in the year 2017 and the petitioner and the victim gave birth to a child and the dowry harassment was still continued. On the date of incident, the deceased was in her parental house with her child and the petitioner came there and took the victim to his house leaving the child in her parental house and started quarreling with her and committed murder by strangulating the deceased and escaped from the spot. Based on the complaint, the police have registered the case, investigated and filed the charge-sheet. Arguments presented by learned counsel appearing on behalf of the petitioner that though an allegation is made against this petitioner is that he has strangulated the victim and the medical evidence not corroborates with the same and the counsel also submits that as per the PM report of the deceased, the deceased not died due to any pressure over the neck and accused Nos.2 and 3 have been enlarged on bail and there is a delay in lodging the complaint and there is no explanation for the said delay and this petitioner is in custody from the last 1½ years and only based on the voluntary statement, the prosecution has build up the case hence, the petitioner is entitled for the bail. Arguments presented by the learned High court government pleader appearing on behalf of the respondent that the additional documents produced by the petitioner himself show that in terms of the opinion of department of Forensic Medicine dated 18thJune 2020, it is clear that the possibility of death resulting from cardiac arrest due to vagal inhibition cannot be ruled out considering the circumstances mentioned and such as pressure over the neck. Hence, it is clear that it is a case of strangulation. The learned High Court Government Pleader for the State submits that on the very same day, this petitioner took the victim to his house from her parental house leaving the child there itself and committed the murder and the witnesses that is , CW30 and 31 who have been witnessed to the incident stated that after committing the murder, this petitioner left the house in a motorcycle and apart from that the other witness that is CW8 also stated with regard to the panchayat held and hence, there is prima facie materials against this petitioner and hence, prayed to dismiss the petition. Finally the court concluded in favour of respondent and held that sole custody of the accused cannot be the ground for bail and rejected the bail petition of petitioner. And the bail petition is rejected by the court. Click here to read the judgement

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JANUARY 2022 THE HON BLE MR. JUSTICE H.P. SANDESH CRIMINAL PETITION NO.7676 2021 BETWEEN: MUJEEB AHMED S O MUEEB AHMED AGED ABOUT 25 YEARS R AT NO 318 8TH CROSS BEHIND AMEER HAZAM MUSJID ’C’ BLOCK GHOUSIYA NAGAR MYSORE CITY 570019 THE STATE OF KARNATAKA REP BY STATE PUBLIC PROSECUTOR BY UDAYAGIRI POLICE STATION MYSORE CITY 570019 AMBEDKAR VEEDHI HIGH COURT BUILDING BENGALURU 560001 BY SRI PRASANNA KUMAR P DAROJI ADVOCATE) … PETITIONER … RESPONDENT BY SRI K.K.KRISHNA KUMAR HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO.20 2020 REGISTERED BY THE UDAYAGIRI POLICE STATION FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498A 304(B) 302 212 READ WITH SECTION 34 OF IPC AND UNDER SECTIONS 3 4 AND 6 OF D.P. ACT AND ETC. THIS CRIMINAL PETITION COMING ON FOR ORDERS THROUGH VIDEO CONFERENCE THIS DAY THE COURT MADE THE FOLLOWING: O R D E R This petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail in Crime No.20 2020 registered by the Udayagiri Police Station for the offences punishable under Sections 498A 304(b) 302 212 read with Section 34 of IPC and under Sections 3 4 and 6 of D.P. Act. 2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the State. 3. The factual matrix of the case is that at the time of marriage the petitioner and his family members have demanded an amount of Rs.3 00 000 as dowry and an amount of Rs.2 00 000 along with gold articles were given at the time of marriage and marriage was performed in the year 2017 and the petitioner and the victim gave birth to a child and the dowry harassment was continued. On the date of incident the deceased was in her parental house with her child and this petitioner came there and took the victim to his house leaving the child in her parental house and started quarreling with her and committed murder by strangulating the deceased and escaped from the spot. Based on the complaint the police have registered the case investigated and filed the charge sheet. The learned counsel for the petitioner would submit that though an allegation is made against this petitioner is that he has strangulated the victim and the medical evidence not corroborates with the same and the counsel also submits that as per the PM report of the deceased the deceased not died due to any pressure over the neck and accused Nos.2 and 3 have been enlarged on bail and there is a delay in lodging the complaint and there is no explanation for the said delay and this petitioner is in custody from the last 1½ years and only based on the voluntary statement the prosecution has build up the case and hence the petitioner is entitled for the bail. Per contra the learned High Court Government Pleader appearing for the State would submit that the additional documents produced by the petitioner himself show that in terms of the opinion of department of Forensic Medicine dated 18.06.2020 it is clear that the possibility of death resulting from Cardiac arrest due to vagal inhibition cannot be ruled out considering the circumstances mentioned and such as pressure over the neck. Hence it is clear that it is a case of strangulation. The learned High Court Government Pleader for the State submits that on the very same day this petitioner took the victim to his house from her parental house leaving the child there itself and committed the murder and the witnesses i.e. CW30 and 31 who have been witnessed to the incident stated that after committing the murder this petitioner left the house in a motorcycle and apart from that the other witness i.e. CW8 also stated with regard to the panchayat held and hence there is prima facie materials against this petitioner and hence prayed to dismiss the petition. Having heard the respective counsel and also on perusal of the documents on record and taking into note of the factual aspects of the case it is clear that marriage was solemnized in the year 2017 and this petitioner was in the habit of demanding dowry and in that connection they quarreled each other on the date of incident also and a prima facie material discloses with regard to the strangulation of the deceased and the same was corroborates with the opinion of Forensic department that due to pressure over the neck there is a possibility of death resulting from Cardiac Arrest due to vagal inhibition. When such opinion is obtained and eye witnesses i.e. CW30 and 31 also speaks with regard to the alleged incident stating that after committing the murder of the deceased he escaped from the spot there is a prima facie material against this petitioner and hence it is not a fit case to exercise the discretion in favour of the petitioner. The contention of the petitioner’s counsel that this petitioner is in custody from 1½ years is not a ground to enlarge him on bail and accused Nos.2 and 3 who are the in laws of the deceased are also enlarged on bail is also not a ground to exercise the discretion in favour of In view of the discussions made above I pass the The bail petition is rejected. Sd this petitioner.

Scope of the Domestic violence act is to benefit and protect the rights of women: High Court of Allahabad

The ‘The Protection of Women from Domestic Violence Act, 2005 was enacted to provide for a more effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. Matters which deal with narrow interpretation of the act that would leave the women in distress must not be adopted since it would defeat the purpose of the act. This was decreed by the Hon’ble Justice Dr. Yogendra Kumar Srivastava in the case of Nivesh Gupta @ Ankur Gupta and 2 others vs. The State of U.P. and Anr. [APPLICATION U/S 482 No. ­ 6947 of 2021] on the 06th of July 2021 before the Hon’ble High court at Allahabad. The brief facts of the case are, the present application seeks to challenge the order dated 7.11.2020, by means of which, the complaint registered filed by the opposite party no. 2, has been directed to be registered fixing a date and the subsequent orders, in terms of which, further dates have been fixed in the case. The applicants have also sought quashing of the proceedings of the complaint case. The only ground, which is sought to be canvassed to challenge the order registering the case and also seeking quashing of the proceedings, is that the applicants are not living with the opposite party no. 2 in a ‘shared household’ and, therefore, the proceedings under ‘The Protection of Women from Domestic Violence Act, 2005’, would not be maintainable. The counsel for the state submits that, the contention, which is sought to be raised by the applicants with regard to the parties not living together in a shared household, would require adjudication by the competent court and the applicants can raise their defence in the proceedings before the court below. It was also submitted that, in the facts of the present case, the complaint filed by the opposite party no. 2 has merely been registered, and the present application seeking quashing of the proceedings, is clearly premature and is not liable to be entertained at this stage. The learned judge heard both the parties and observed that, the intent behind enacting the domestic violence act was to ensure protection for women from domestic violence. The provisions under the DV Act seek to cover those women, who are or have been in a relationship with the abuser, where both parties have lived together in a ‘shared household’ or related by consanguinity or marriage or through a relationship in the nature of marriage or adoption. The court observed that looking to the beneficial nature of the provisions contained under the DV Act, its interpretation should be in a manner to effectuate its objects and purpose. It relied on the judgement in the case of, Vaishali Abhimanyu Joshi vs. Nanasaheb Gopal Joshi (2017) 14 SCC 373 wherein, “Section 26 of the 2005 Act has to be interpreted in a manner to effectuate the very purpose and object of the Act. Unless the determination of claim by an aggrieved person seeking any order as contemplated by the 2005 Act is expressly barred from consideration by a civil court, this Court shall be loath to read in bar in consideration of any such claim in any legal proceeding before the civil court.”

Hon ble Dr. Yogendra Kumar Srivastava J The present application seeks to challenge the order dated 7.11.2020 by means of which the complaint registered directed to be registered fixing a date and the subsequent orders in terms of which further dates have been fixed in the case. The applicants have also sought quashing of the The only ground which is sought to be canvassed to challenge the order registering the case and also seeking quashing of the proceedings is that the applicants are not living with the opposite party no. 2 in a shared household and therefore the proceedings under The Protection of Women from Domestic Violence Act 2005 would not be Learned A.G.A. appearing for the State­opposite party a shared household would require adjudication by the the proceedings before the court below. Learned A.G.A further submits that in the facts of the present case the proceedings is clearly premature and is not liable to be the present case relate to The Protection of Women from Domestic Violence Act 20051 which was enacted to provide for a more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for contains reference to the Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action wherein domestic violence was acknowledged as a human of Discrimination Against Women also The provisions under the DV Act seek to cover those women who are or have been in a relationship with the abuser where both parties have lived together in a shared a relationship in the nature of marriage or adoption Relationship with family members living together as a joint family are also included. In addition women who are sisters widows mothers single women or living with the abuser are The expression domestic violence under the Act has been defined in a manner so as to include actual abuse or threat or abuse that is physical sexual verbal emotional or economic. Harassment by way of unlawful dowry demands have also been covered under the definition. In order to effectively ensure the protection of women the DV Act residence orders custody orders compensation orders and The DV Act was enacted keeping in view the rights the women from being victims of domestic violence and to was considered in Krishna Bhattacharjee v. Sarathi nature of the legislation the courts are expected to have a sensitive approach and before throwing a petition at the apposite discussion and thorough deliberation on the issues “3. Regard being had to the nature of the legislation a more sensitive approach is expected from the courts whereunder the 2005 Act no relief can be granted it should never be conceived of but before throwing a petition at the threshold on the ground of maintainability there has to be an apposite discussion be borne in mind that helpless and hapless “aggrieved to scrutinise the facts from all angles whether a plea legislation is not faced with a situation of non­ adjudication for the 2005 Act as we have stated is a Nanasaheb Gopal Joshi3 it was held that looking to the beneficial nature of the provisions contained under the DV Act is expressly barred from consideration by a civil court this Court shall be loath to read in bar in to claim protection of right in a shared household would be expression as defined under Section 2(s) of the Act which of the right to live in a shared household the words lives or at any stage has lived in a domestic relationship would have a claim for protection of right in a shared household can be sustained would have to be therefore based upon a 13. The DV Act has been held to be a beneficial and an affirmative legislation for more effective protection of become victims of any kind of domestic violence and while interpreting the provisions of the Act a sensitive approach grievance of the aggrieved person. The beneficial and the 15. Having regard to the aforesaid and looking to the at the threshold and the question of maintainability would require a proper appreciation of facts of the case and a Learned counsel for the applicants at this stage fairly submits that the applicants would appear before the court are prima facie in nature and the dismissal of the present objections which may be available to them including the Subject to the aforesaid observations the application

Commission report prepared, before the petitioner being brought in the party array, cannot legally bind them: Kerala High Court

Where any person is added as defendant under Order I Rule 10(5) CPC,, the proceedings shall be deemed to have begun against the supplemental party only from the date of service of summons on him. The commission report and plan prepared, before the petitioner, being brought in the party array, cannot legally bind her at all. This assertion was made by the Kerala High Court presided by J. T.V.ANILKUMAR in the case of SHARJA vs. SASIDHARAN & anr. [OP(C).No.1037 OF 2020]. The fourth defendant in O.S.No.12/2014 was aggrieved by order dated 16.03.2020, by which the learned Munsiff, Attingal, dismissed her application seeking appointment of Commissioner to survey and measure out the suit and counter claim properties in accordance with title deeds and revenue records. The plaintiffs opposed the application contending that there is already a commission report and plan in which the matters in dispute have already been ascertained and recorded, and hence a re-issue of commission was not in accordance with law. Accepting the objection raised by the plaintiffs, I.A.No.2/2020 filed by the petitioner was dismissed.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR FRIDAY THE 12TH DAY OF FEBRUARY 2021 23RD MAGHA 1942 OP(C).No.1037 OF 2020 AGAINST THE ORDER DATED 16.03.2020 IN IA 2 2020 IN OS 12 2014 OF MUNSIFF COURT ATTINGAL AGED 36 YEARS W O.NASEER SAINAM VEEDU PUTHUKKARI SARKARA CHIRAYINKEEZHU THIRUVANANTHAPURAM DIST. BY ADV. SRI.M.R.RAJESH S O.GOPINATHAN AKKARAVILAKOM VEEDU PUTHUKKARI SARKARA CHIRAYINKEEZHU THIRUVANANTHAPURAM DIST. PIN 695304 D O.SUBHASH AKKARAVILAKOM VEEDU PUTHUKKARI SARKARA CHIRAYINKEEZHU THIRUVANANTHAPURAM DIST. PIN 695304 R1 2 BY ADV. SRI.B.MOHANLAL THIS OP HAVING BEEN FINALLY HEARD ON 12.02.2021 THE COURT ON THE SAME DAY DELIVERED THE O.P.(C)No.1037 2020 2 Dated this the 12th day of February 2021 JUDGMENT The fourth defendant in O.S.No.12 2014 is aggrieved by Ext.P8 order dated 16.03.2020 by which the learned Munsiff Attingal dismissed her application seeking appointment of Commissioner to survey and measure out the suit and counter claim properties in accordance with title deeds and The plaintiffs opposed the application contending that there is already a commission report and plan in which the matters in dispute have already been ascertained and recorded and hence a re issue of commission was not in accordance with law. Accepting the objection raised by the plaintiffs I.A.No.2 2020 filed by the petitioner was dismissed I heard the learned counsel for the petitioner as well as the respondents Learned counsel for the petitioner O.P.(C)No.1037 2020 3 submitted that despite the commission report and plan dated 20.06.2019 showing that the properties of both parties were identified and surveyed the same are not binding on the petitioner in as much as the report and plan were prepared at a time when she was not made a party to the suit. It is a fact that the petitioner was impleaded as supplemental defendant subsequent to the submission of commission report and plan. Under Order I Rule 10(5) CPC where any person is added as defendant the proceedings shall be deemed to have begun against the supplemental party only from the date of service of summons on him. That means commission report and plan prepared before the petitioner being brought in the party array cannot legally bind her at all This being the legal position the finding of the court below that the petitioner cannot apply for issue of commission for ascertaining matters therein cannot sustain under law. The impugned O.P.(C)No.1037 2020 4 order is therefore liable to be interfered with In the result this original petition succeeds and the impugned order is set aside. I.A.No.2 2020 in O.S.No.12 2014 is allowed. It is directed that the same Advocate Commissioner shall survey the properties and submit report and plan. This being a suit of the year 2014 the court below is directed to dispose of the suit within a period of six months from the date of receipt of certified copy of this judgment. It will be open to parties to take their objections if any to the report and plan newly submitted on facts and law and the court below will decide the objections so raised in accordance with law All pending interlocutory applications are T.V.ANILKUMAR Sd JUDGE O.P.(C)No.1037 2020 PETITIONER S EXHIBITS 5 A TRUE COPY OF THE PLAINT IN O.S.NO.12 2014 OF THE MUNSIFF COURT ATTINGAL A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST DEFENDANT TO EXT.P1 PLAINT A TRUE COPY OF THE COMMISSION REPORT AND PLAN DATED 20.6.2019 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER TO EXT.P1 A TRUE COPY OF THE COUNTER CLAIM FILED BY THE PETITIONER TO EXT.P1 PLAINT A TRUE COPY OF THE COMMISSION APPLICATION A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS TO EXT. P6 A TRUE COPY OF THE ORDER DATED 16.3.2020 IN EXT.P6 PETITION BY THE MUNSIFF S COURT RESPONDENTS EXHIBITS THE TRUE COPY OF THE JUDGMENT DATED 30 01 2019 IN O.P(C) NO.116 2019 OF THIS HON BLE COURT THE TRUE COPY OF THE FIR IN CRIME NO. 1726 2016 OF CHIRAYINKIL POLICE STATION IN

Daughter caught in the crossfire of acrimony and matrimonial discord, domestic violence case filed against daughter quashed: Bombay High Court

The allegation levelled by the mother against the daughter are exaggerated and her anger and bitterness arising from matrimonial discord with her husband, is leading to serious impediment in the progress of her own daughter. This was said in the case of Vanisha v. XYZ & State of Maharashtra[WRIT PETITION NO.595 OF 2021] by Justice S.S. Shinde and Justice Manish Pitale in the High Court Of Judicature At Bombay The facts of the case are that the mother had filed a complaint before the Metropolitan Magistrate at Andheri, Mumbai under provisions of DV Act against her husband and their daughter. Assailing that, the daughter is seeking quashing of proceedings claiming that she is facing the ire of her mother due to matrimonial discord between her mother and her father. The Petitioner contended that she was unnecessarily made a party to the proceedings because she continued to reside with her father. The urgency for filing the proceedings was that the petitioner had completed her engineering course and wanted to undertake further studies in Australia which was to commence from May 2021 for which a declaration was required regarding pendency of criminal proceedings against the petitioner. Secondly, it was contended that the reliefs sought in the application were all maintainable only against the husband. On the other hand, the respondent opposing the plea contended that the petitioner was covered under the definition of ‘Respondent’ under Section 2(q) of the D.V. Act. The Bench observed from the evidence placed before it that “the single allegation made against the petitioner is an exaggeration and it has arisen out of anger of respondent (mother) against the petitioner, as she continued to reside with her father, i.e. the husband of respondent. Respondent has developed bitterness and anger, not only against her husband but her daughter i.e. the petitioner also”. After perusal of the application before the Magistrate, the Bench further observed that the entire grievance is raised against her own husband but it is only at one place that an allegation is made against the petitioner. The bitterness against her husband spilled over to her children, the Court said while also noting that though the younger daughter of the respondent had initially accompanied her, she was later disallowed to keep the younger daughter also with her.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.595 OF 2021 Ori. Respondent No.2 Age : 23 years Occ. : Service Residing at : 1. Age : 49 years Indian Inhabitant Occ. : Tuition Teacher Residing at : 2. State of Maharashtra Through Ld. Public Prosecutor P.W.D. Building Bombay High Court Mumbai Ms. Kenny V. Thakkar for Petitioner. Mr. M. Moses for Respondent No.1 Mr. Deepak Thakre P.P. a w Mr. J.P. Yagnik APP for State Coram : S.S. SHINDE AND MANISH PITALE JJ JUDGMENT RESERVED ON : 08.04.2021 JUDGMENT PRONOUNCED ON : 20.04.2021 on 20 04 2021 on 20 04 JUDGMENTRule. Rule made returnable forthwith with the consent of the parties and heard finally A daughter is before this Court seeking quashing of proceedings initiated by her mother under the provisions of the Protection of Women from Domestic Violence Act 2005claiming that she is facing the ire of her mother due to matrimonial discord between her mother and her father. According to the Petitioner she has been unnecessarily dragged into the said proceedings pending before the Court of Magistrate and that this is having a detrimental effect on her career as also her prospects of studying abroad. The Respondent No.1 is the mother of the Petitioner herein. She has filed an application under Sections 12 18 19 20 and 22 of D.V. Act before the Court of Metropolitan Magistrate at Andheri Mumbai against her husband i.e. the father of the Petitioner on 20 04 2021 on 20 04 herein as also the Petitioner. It is stated in the said application filed before the Magistrate that there is matrimonial discord between Respondent No.1 and her husband. The Respondent No. 1 has raised various grievances against her husband and on that basis she has sought relief in the form of protection order monetary relief residence order and order for grant of compensation. Although the Petitioner is arrayed as Respondent No. 2 in the said application there is only one allegation made against her in the entire application filed by Respondent No. 1 An interim order was passed by the learned Magistrate thereby issuing certain directions against husband of Respondent No.1. The said order has been challenged by way of appeal by him alongwith the Petitioner before the Sessions Court The Petitioner has filed the present petition stating that the proceedings under the D.V. Act were initiated by her mother i.e by Respondent No. 1 in the year 2018 when the Petitioner was in on 20 04 2021 on 20 04 the final year of her Engineering course. The Petitioner has submitted that she has completed her Engineering course and she plans to undertake further studies in Australia for which she has already initiated the process. According to the Petitioner in the application and forms that are required to be filled while seeking Visa before the Australian authorities a declaration is to be given regarding pendency of criminal cases against the Applicant Pendency of the said proceeding initiated under the D.V. Act by her mother are creating hurdles for the Petitioner to successfully seek Visa in order to visit Australia for undertaking higher studies. In these circumstances the Petitioner has filed the present writ petition seeking quashing of the said proceedings pending before the Magistrate under the DV Act insofar as she is concerned On 14th December 2020 this Court issued notice in the writ petition and granted interim stay of further proceedings in the DV Case bearing No.2418 pending before the Court of Magistrate. The Respondent No. 1 entered appearance through on 20 04 2021 on 20 04 counsel and filed reply to the writ petition. In the reply placed on record before this Court the said Respondent reiterated her grievances against her husband and she repeated the allegation made against the Petitioner which was stated before the Magistrate in the application filed under the DV Act. Apart from this said Respondent claimed that the Petitioner was not required to go abroad for studies and that this was only an excuse given by her to escape facing the proceedings pending before the Magistrate. The Respondent No.1 further stated that the Petitioner was interested in food blogging and that she had already completed her education in India. There are certain statements made about the character of the Petitioner and that she allegedly has many boyfriends. On this basis the Respondent sought dismissal of the writ petition Ms. Kenny Thakkar learned counsel appearing for the Petitioner submitted that the proceeding under the DV Act was initiated against the husband of Respondent No.1 and that the Petitioner was unnecessarily made a party. It was submitted that only because the Petitioner continued to stay with her father that on 20 04 2021 on 20 04 Respondent No.1. had joined the Petitioner as a party to the said proceedings. There was only one allegation made in the application before the Magistrate against the Petitioner which was general in nature and the anger of the Respondent No.1 was mainly directed against her husband. It was further submitted that perusal of the reliefs sought in the application before the Magistrate under the provisions of D.V. Act were all maintainable only against her husband and therefore the said proceeding did not deserve to be continued qua the Petitioner. The urgency of the matter was emphasized upon by the learned counsel for the Petitioner by stating that the course which the Petitioner desires to join in a University of Australia was likely to commence in the month of May 2021 and that therefore the proceeding pending before the Magistrate was required to be quashed at the earliest so that the Petitioner would apply for Visa and go to Australia to join the course of higher studies The learned counsel appearing for the Petitioner invited our attention to the application filed before the Magistrate as also the affidavit in evidence of Respondent No.1 to reiterate that there was on 20 04 2021 on 20 04 no substance in the pending proceedings atleast insofar as the Petitioner is concerned On the other hand Mr. Moses learned counsel appearing for Respondent No.1 submitted that the specific allegation regarding assault was made in the application filed before the Magistrate as well as the affidavit in evidence. It was submitted that the application filed under the D.V. Act before the Magistrate was maintainable because the Petitioner was clearly covered under the definition of “Respondent” as defined in Section 2(q) of the D.V. Act On this basis it was submitted that the prayer in the writ petition did not deserve to be granted We have heard the learned counsel appearing for the rival parties and perused the material on record. The statement of the objects and reasons for which the D.V. Act was enacted states that since the phenomena of domestic violence is widely prevalent and specific law was required to provide remedy to aggrieved women for ensuring their protection reliefs pertaining to protection on 20 04 2021 on 20 04 from physical and economic abuse as also shared household and adequate compensation were required to be provided for. It is in this backdrop that the D.V. Act was enacted. Section 2(a) defines an “aggrieved person” under the DV Act as a woman who is or has been in a domestic relationship with the Respondent and who alleges to have been subjected to any act of domestic violence by the Respondent. Section 2(q) defines “Respondent” to mean any adult male person who is or has been in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under DV Act. Proviso to Section 2(q) states that such aggrieved person may also file a complaint against a relative of the husband or the male partner Considering the aforesaid provisions the intent of the DV Act is to ensure that a woman who faces abuse at the hands of her husband or a male partner has an avenue to raise her grievance against such person and also any relative of such person. Ordinarily this would include the relatives on the side of the husband or male partner. In the present case it is contended on behalf of Respondent on 20 04 2021 on 20 04 No. 1 that the word relative used in proviso to Section 2(q) of the D.V. Act would cover the Petitioner also. It is significant that the Petitioner is the daughter of the Respondent No. 1 herself and yet she is raising a grievance against her alongwith raising grievance against her husband who is the father of the Petitioner Before dealing with the application filed by Respondent No. 1 under the provisions of D.V. Act it would be relevant to refer to a Full Bench judgment of this Court in the case of Nandkishor Pralhad Vyavhare Vs. Sou. Mangala w o Pratap Bansar passed in Criminal Applicationof the application that an allegation is made against the Petitioner that on the husband of Respondent No.1instigating the Petitioner she allegedly assaulted the Respondent No.1. This allegation is repeated in similar words in the affidavit of evidence filed before the Magistrate by Respondent No.1 Except the aforesaid allegation all allegations in the application as well as affidavit in evidence filed by Respondent No.1 before the Magistrate raise grievances only against the husband of Respondent No.1. It appears from the tenor of the said application and affidavit in evidence that the relationship between Respondent No. 1 and her husband is extremely bitter on 20 04 2021 on 20 04 The material on record indicates that the Petitioner continued to live with her father i.e. husband of Respondent No.1 and this was perhaps a reason why she added the Petitioner as party to the proceedings initiated under the DV Act. None of the reliefs sought by Respondent No. 1 in the said proceedings are against the Petitioner although the Petitioner is specifically added as a Respondent in the said proceedings. The Respondent No. 1 has specifically sought a protection order from the Magistrate further seeking monetary relief to the tune of Rs.80 000 per month a residence order to provide either rental accommodation or to purchase property for her apart from seeking compensation to the tune of Rs.85.00 Lacs. All these reliefs are clearly relatable to the husband of Respondent No. 1 particularly when allegations have been made and grievances have been raised by Respondent No. 1 against her husband Therefore it appears that the single allegation made against the Petitioner is an exaggeration and it has arisen out of on 20 04 2021 on 20 04 anger of Respondent No.1 against the Petitioner as she continued to reside with her father i.e. the husband of Respondent No.1. The material on record indicates that the bitterness in the matrimonial relationship between Respondent No.1 and her husband has spilled over to the children particularly against the Petitioner herein. This has resulted in the said exaggerated statement and single allegation levelled against the Petitioner about the alleged assault on The material on record also indicates that although initially the younger daughter had accompanied Respondent No.1 but thereafter the Respondent No. 1 could not keep the younger daughter with her as a result of which she is now raising her grievance before the Magistrate on her own It appears that due to these circumstances Respondent No.1 has developed bitterness and anger not only against her husband but her daughter i.e. the Petitioner also. This is evident from the tenor of the affidavit in reply filed before this Court wherein she has reiterated the allegation of assault and added that such on 20 04 2021 on 20 04 incident did occur including hot water allegedly poured on her foot by the Petitioner. A photograph is annexed to the reply. It is significant that the said allegation and the photograph placed before this Court are materials sought to be placed on record for the first time by Respondent No.1 before this Court. Neither the application before the Magistrate nor the affidavit in evidence of Respondent No 1 placed before the Magistrate refers to such pouring of hot water on the foot of Respondent No.1 and there is no reference to the said photographs. We refrain from commenting on the same because there is nothing to indicate the veracity of such allegation or genuineness of the said photograph. But the tenor of the reply does show that the Respondent No.1 is not positively disposed towards her own daughter i.e. the Petitioner and it is for this reason that she has levelled allegations against her own daughter pertaining to her character and other such things. We do not wish to comment upon the same. But it is evident that the Petitioner is caught in the crossfire of acrimony and matrimonial discord between Respondent No. 1 and her husband who is the father of the Petitioner herein on 20 04 2021 on 20 04 The other significant aspect of the present case is that the Petitioner having completed her graduation in engineering is now looking forward to join higher studies abroad. In this connection the pendency of the aforesaid proceedings under the DV Act before the Magistrate is creating hurdles for her to obtain Visa for Australia so as to join course of higher studies. The Petitioner is a young lady who has just graduated and her future depends upon how she is able to improve her educational qualifications and develop her personality. It is only in the interest of justice that this aspect of the matter is also taken into consideration. It is surprising that her own mother is hell bent upon creating obstructions in her progress. This is evident from the reply affidavit filed by Respondent No. 1 before this Court wherein it is stated that it is not necessary for the Petitioner to go abroad for higher education and that the said ground is being raised only as an excuse to avoid legal proceedings initiated by Respondent No.1. We find that the allegation levelled by the Respondent No.1 against the Petitioner are exaggerated and her anger and bitterness arising from matrimonial discord with her on 20 04 2021 on 20 04 husband is leading to serious impediment in the progress of her own daughter i.e. the Petitioner We are also of the opinion that the allegations seem to be made in a fit of anger and they could be said to be improbable in the peculiar facts and circumstances of the case. In the case of State of Haryana and Others vs. Bhajan Lal and Others reported in 1992 SuppSupreme Court Cases 335 the Hon’ble Supreme Court has identified certain categories as illustrations wherein this Court would exercise jurisdiction to quash the proceedings. In the said judgment it has been held as follows “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 of 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 illustrations wherein such power could be exercised either to prevent abuse of the process of any court or otherwise on 20 04 2021 on 20 04 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 exercised 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 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 on 20 04 2021 on 20 04 4)Where the allegations in 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 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 malafide and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the on 20 04 2021 on 20 04 accused and with a view to spite him due to private and personal grudge.” We are of the opinion that the facts and circumstances of the present case and the material brought to our notice show that the allegations levelled by Respondent No.1 against the Petitioner borne out of matrimonial discord with her husband can be said to be inherently improbable and therefore they fall in Category 5 laid down in the above quoted portion of the judgment of the Hon’ble Supreme Court. Hence this is a fit case to exercise jurisdiction to quash the proceedings initiated by Respondent No. 1 under the D.V Act insofar as they pertain to the Petitioner In view of above the Writ Petition is allowed in terms of prayer clausewhich reads as follows a) This Hon’ble Court be pleased to invoke and exercise its constitutional powers under Article 226 of the Constitution of India r w its inherent powers u s 482 of the Cr.P.C. and be on 20 04 2021 on 20 04 pleased to quash the DV case bearing No. 2418 pending before the 66th Court of the learned Magistrate at Andheri Mumbai insofar as it is filed against the present Rule made absolute in above terms MANISH PITALE J (S.S. SHINDE J on 20 04 2021 on 20 04

Section 31(1) of FERA did not require the foreign national to obtain permission at the time of entering into the agreement for sale per se: Calcutta High Court

The present application had been filed by the defendant before the bench of Moushumi Bhattacharya J. in a suit for specific performance of an agreement dated 2nd January, 1989 for sale of a premises situated at No.6, Chowringhee Lane, Calcutta-16. The application filed by the defendant in the matter of Jagannath Marothia v Norman William Wilson [C.S.576 of 1990], is for dismissal of the suit and rejection of the plaint under Order VII Rule 11 of The Code of Civil Procedure, 1908 (CPC) on the ground that the suit is barred by law. Defendant no.3/applicant submits that the mother of the defendant no.1, Mrs. Helen Wilson, since deceased, was a foreign national and failed to obtain the permission from the Reserve Bank of India under Section 31(1) of The Foreign Exchange Regulation Act, 1973 (FERA) Mrs. Helen Wilson was a foreign national would appear from a letter dated 14th December, 1989, which has been referred to in the plaint and further that the fact that the Reserve Bank o India has not granted any permission to Mrs. Helen Wilson save and except permitting her to hold the property would also be evident from a letter dated 8th October, 1993. Section 31(1) of FERA to submit that transfer of immovable property of a foreign national without prior or general or special permission of the Reserve Bank of India would be unenforceable in law The bench interpreted that Section 31(1) of FERA must be given an interpretation which is in line with the law decided on the subject. It is indisputable that a foreigner who is not a citizen of India can only acquire, hold, transfer or dispose of an immovable property situated in India by way of a sale, gift, etc. upon prior permission being granted by the Reserve Bank of India subject to the proviso to Section 31(1) concerning lease of immovable property for a period up to five years. The court sought a purposive interpretation of Section 31. The requirement of permission to be obtained from the Reserve Bank must be at the time of entering into the agreement for sale and before the immovable property is sought to be transferred or disposed of by execution of a registered conveyance. In other words, Section 31(1) of FERA did not require the foreign national to obtain permission at the time of entering into the agreement for sale per se; the material point of time for being granted the approval is before the foreign national takes steps to alienate the property in question in favour of a third party. This construction would also be in consonance with Section 54 of The Transfer of Property Act, 1882, which provides that transfer of ownership of a tangible immovable property of or in excess of Rs.100/- can only be made by a registered document. The bench referred to the decision in Rambhau Namdeo Gajre vs. Narayan Bapuji Dhotra (Dead) through LRS.; (2004) 8 SCC 614 while applying their interpretation.

IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE The Hon’ble JUSTICE MOUSHUMI BHATTACHARYA IA No. GA. 120 C.S.5790 Jagannath Marothia & Ors. Norman William Wilson & Ors. For the Respondents Mr. K.R. Thaker Adv. Ms. Sananda Ganguli Adv. Mr. Sanjib Dawn Adv. For the Petitioners Mr. Sudip Deb Adv. Mr. Vivek Basu Adv. Mr. P.K. Bagaria Adv. Last Heard on : Delivered on : Moushumi Bhattacharya J. This application has been filed by the defendant no.3 in a suit for specific performance of an agreement dated 2nd January 1989 for sale of a 2 premises situated at No.6 Chowringhee Lane Calcutta 16. This application filed by the defendant no. 3 is for dismissal of the suit and rejection of the plaint under Order VII Rule 11 of The Code of Civil Procedure 1908on the ground that the suit is barred by law. 2. Mr. Sudip Deb learned counsel appearing for the defendant no.3 applicant submits that the mother of the defendant no.1 Mrs. Helen Wilson since deceased was a foreign national and failed to obtain the permission from the Reserve Bank of India under Section 31(1) of The Foreign Exchange Regulation Act 1973 which is a mandatory requirement. Counsel submits that the fact that Mrs. Helen Wilson was a foreign national would appear from a letter dated 14th December 1989 which has been referred to in the plaint and further that the fact that the Reserve Bank of India has not granted any permission to Mrs. Helen Wilson save and except permitting her to hold the property would also be evident from a letter dated 8th October 1993 which is part of the application. Counsel relies on Section 31(1) of FERA to submit that transfer of immovable property of a foreign national without prior or general or special permission of the Reserve Bank of India would be unenforceable in law and relies on Asha John Divianathan vs. Vikram Molhotra in Civil Appeal No.9546 of 2010 in this regard. Counsel relies on Mayawanti vs. Kaushalya Devi 3 SCC 1 in support of the proposition that specific performance of a contract can only be in relation to existence of a valid and enforceable contract. It is also submitted that although FERA was subsequently repealed the said Act was in operation at the relevant point of time and hence required mandatory compliance of 3 Section 31(1) of the Act in the absence of which the agreement would become void under Sections 23 and 24 of the Indian Contract Act 1872. Counsel also refers to Section 6 of The General Clauses Act 1897on the effect of repeal to submit that unless a contrary intention appears repeal of a statute would not affect any right privilege obligation or liability accrued or incurred under the repealed statute. 3. Mr. Krishnaraj Thaker learned counsel appearing for the plaintiff submits that Section 31 of FERA does not require the foreign national to obtain permission at the time of entering into the agreement for sale since the permission contemplated under the said provision is required to be obtained before the transfer or disposal of immovable property by execution of a registered conveyance. Counsel submits the Foreign Exchange Regulation Act stood repealed by the Foreign Exchange Management Act 1999 Section 49(3) of which provides that no court shall take cognizance of an offence under Section 51 of the repealed Act after the expiry of two years from the date of commencement of the new Act FEMA. Counsel relies on S.K. Sinha Chief Enforcement Officer vs. Videocon International Ltd. 2008) 2 SCC 492 for the meaning of the expression to take “cognizance” of. Counsel submits that this application was filed by the defendant no.3 for an alleged contravention of FERA in September 2020 which is beyond the period stipulated in Section 49(3) of FEMA. It is further submitted that a purported violation of FERA more than 21 years after its repeal cannot be considered by this Court. The second limb of Mr. Thaker’s submissions is that under Section 31(1) of FERA transfer can only take place by execution of a registered Sale Deed. Counsel relies on Rambhau Namdeo Gajre vs. Narayan Bapuji Dhotra Dead) through LRS. 8 SCC 614 for the proposition that an agreement for sale does not create any interest of the proposed vendee in the suit property which can only be conveyed by execution of a registered Sale Deed. Counsel relies on Vishwa Nath Sharma vs. Shyam Shanker Goela 10 SCC 595to urge that the requirement of permission for sale cannot be a condition precedent for passing a decree for specific performance of a contract. Counsel submits that only the agreement for sale has been entered into in the present case and that the plaintiff was hence compelled to file a suit for specific performance for execution of the registered conveyance since admittedly no transfer of property has taken place. I have considered the submissions of learned counsel appearing for the parties. To put the matter in perspective the present suit has been filed by the plaintiff for specific performance of an agreement for sale dated 2nd January 1989. The vendor Helen Wilson died during the pendency of the suit and her legal heirs defendant nos.1 and 2 were substituted in place of the deceased Helen Wilson. The defendant nos. 2A and 2B are the legal representatives who were later substituted in place of the defendant no.2. The defendant no.3 claims to be the sole Executor of the Will of the deceased vendor Helen Wilson. Upon the demise of the original plaintiff on 22nd December 2020 the legal heirs of the original plaintiff have also been substituted in his place and stead. The present application has been filed by the defendant no.3 for dismissal of the suit and rejection of the plaint under Order VII Rule 11 of The Code of Civil Procedure on the ground that the suit is barred by law Order VII Rule 11(d). It is the case of the defendant no.3 that Helen Wilson since deceased had gifted the property in question by way of a Will to the defendant no.3. The defendant no.3 has applied for grant of probate on that basis. The application for grant of probate has been challenged by the The ground urged by the defendant no.3 for dismissal of the suit is that the agreement for sale is hit by Section 31 of FERA 1973 and is void which bars the suit filed by the plaintiff for specific performance of the said agreement for sale. The case of the defendant no.3 applicant rests on a letter dated 14th December 1989 which has been referred and annexed to in paragraph 10 of the plaint and was written on behalf of the plaintiff to Helen Wilson with reference to the subject premises situated at No.6 Chowringhee Lane Calcutta. The primary contention of the plaintiff’s lawyer in the said letter is that despite repeated requests Helen Wilson has failed to make over the title deeds of the said property to the plaintiff. The letter states that Helen Wilson is a foreign national and further that as on 14th December 1989 Helen Wilson as the vendor did not have the permission of the Reserve Bank of India under Section 31(1) of FERA. The factual position is clarified by a subsequent letter of 8th October 1993 from the Reserve Bank of India to 6 Helen Wilson stating that Helen Wilson has the permission to hold immovable property being the premises in question which has been acquired by Helen Wilson by way of inheritance subject to certain conditions. The letter clearly states that permission is being granted to Helen Wilson under Section 31(1) of FERA in respect of holding immovable property situated in India. This letter forms part of the application. Since this is an application for rejection of the plaint under Order VII Rule 11 the Court must restrict the canvas to the plaint and the documents forming part thereof. The issue which emanates however from the letter dated 14th December 1989 is whether Helen Wilson a foreign national could have entered into an agreement for sale of the property in question with the plaintiff without the requisite permission under Section 31(1) of FERA. 9. Section 54 of the Transfer of Property Act 1882 provides that transfer for tangible immovable property exceeding Rs.100 can only be made by a registered instrument. This position is reiterated in Rambhau Namdeo Gajre where the Supreme Court held that in view of Section 54 of the TP Act sale of property exceeding Rs.100 does not by itself create any interest in the property unless the property is registered by executing a Sale Deed. The stage at which permission from RBI is to be obtained under Section 31(1) of FERA would also be evident from “Form IP12” of the Forms prescribed by the RBI for application for permission under Section 31(1) to transfer or dispose of immovable property in India. This Court therefore agrees with the contention made on behalf of the plaintiff that general special permission of RBI under Section 31(1) of FERA is required to be obtained before execution of the Sale 7 Deed and registration of the same and not before entering into an agreement for sale. In Vishwa Nath Sharma a defence was taken by the vendor that the agreement for sale was void as prior permission of the concerned Officer had not been obtained in violation of a specific condition of the lease deed which provided that no transfer was permissible without prior permission of the Land and Development Officer. The Supreme Court relying on the decision of the Privy Council in Motilal vs. Nanhelal AIR 1930 PC 287 was of the view that if after the grant of the decree of specific performance of the contract the authority refused to grant permission for sale the decree holder may not be in a position to enforce the decree but disagreed with the view that such permission is a condition precedent for passing a decree for specific performance of the contract. The other relevant facet of the present case is Section 47(2) of FERA which provides that it shall be an implied term of every contract governed by the law of any part of India that anything agreed to be done by any term of that contract which is prohibited to be done by or under any of the provisions of FERA except with the permission of the Central Government or the Reserve Bank of India shall not be done unless such permission is granted. Section 47(2) significantly clarifies that the agreement shall not be invalid if it provides that something shall not be done without the permission of the Central Government RBI. To put it differently the agreement would be conditional and subject to permission being obtained from the RBI. 8 11. The letter dated 14th December 1989 written on behalf of the plaintiff to Helen Wilson thus has to be seen in this context where information as to the status of the permission from RBI under Section 31(1) of FERA was sought for. 12. The argument which has been made in the alternative is whether Section 31(1) of FERA can be raised at this stage of the proceedings by the defendant no.3 applicant to invalidate the transaction between the vendor Helen Wilson and the vendee plaintiff for having the suit dismissed on that ground. The Foreign Exchange Regulation Act 1973 was repealed by The Foreign Exchange Management Act 1989 is what is evocatively called a “sunset clause” stipulating a time limit for a repealed statute to remain operative. Hence in the present case the agreement for sale being in contravention of Section 31(1) of FERA would remain an offence under FERA for the purpose of taking notice of the contravention for a period of two years from 1st June 2000 when FEMA came into force. The FERA sun would thus statutorily set forever on 30th May 2002. Section 51 of FERA which is mentioned in Section 49(3) of FEMA in relation to the Court taking cognizance of a contravention under Section 51 relates to the power of the Adjudicating Officer to judge whether any person 9 has contravened any of the provisions of FERA other than those referred to in Section 50 of FERA. S.K. Sinha considered the effect of Section 49(3) of FEMA and held that to take cognizance of would mean “to take notice of judicially” and clarified that the expression “cognizance” indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence. The aforesaid decision assists the plaintiff respondent in limiting the Court’s power to take judicial notice of the contravention of Section 31(1) of FERA at the time of entering into the agreement for sale dated 2nd January 1989. It is relevant to state that Section 6 of the General Clauses Act 1897 “Effect of Repeal” relied on by the defendant no.3 enumerates certain instances which would remain untouched by the repeal of a Central Act or Regulation made after the commencement of the General Clauses Act of FEMA. Since this Court has been invited to take judicial notice of an offence under FERA in September 2020 almost 20 years after commission of the alleged offence this Court is powerless to do so under the limits stipulated under Section 49(3) of FEMA. 13. Since strong reliance has been placed by learned counsel appearing for the defendant no.3 on Asha John Divianathan on the mandatory requirement under Section 31 of FERA this decision should be dealt with in some detail. The Supreme Court in that decision held that a contract or agreement including a gift pertaining to transfer of immovable property of a foreign national would be unenforceable in law in the absence of previous general or special permission of the RBI. In that case the agreement for sale was entered into between the foreign national and the predecessors of the appellant before the Supreme Court after which the foreign national executed the gift deed in question in favour of the respondent without prior permission of the RBI. A supplementary gift deed was also made in favour of the respondent without prior permission of the RBI. A ratificatory agreement for sale in favour of the predecessors of the appellant was executed by the foreign national on 4th December 1982followed by a Power of Attorney after which permission from RBI was sought for and granted on 2nd April 1983. The first sale deed was registered on 9th April 1983 after permission was given by the RBI. The predecessors of the appellant sued the respondent for having the deed of gift declared void under Section 31(1) of FERA. On the suit being dismissed the issue before the Supreme Court was whether the deed of gifts which were registered without prior approval of RBI were void. The Supreme Court held that no title was transferred as the gift deeds were executed without prior permission and the same were void and that the appellant being the beneficiary of the transactions for sale was entitled to possession of the suit property. The facts of the decision makes it evident that the permission from RBI under Section 31 of FERA must be obtained after entering into an agreement for sale but before executing a registered conveyance as was done by the predecessors of the appellant in Asha John Divianathan. The registered gift deeds were declared void by the Supreme Court since they were executed for the purpose of transferring the property 11 without the permission of RBI. In the facts of this case the letter of 14th December 1989 makes it clear that only the agreement for sale had been into which thus necessitated the plaintiff seeking specific performance of the agreement or in other words for the execution of the registered conveyance by the original defendant. The subject matter of challenge by the defendant no.3 for dismissal of the suit is the agreement for sale. Since the suit is for specific performance of the agreement transfer of property had admittedly not taken place on the date of filing of the suit. Prayerof the plaint makes the aforesaid position clear. By this prayer the plaintiff has sought for a decree directing the original defendant and her assigns etc. to execute and register in due form of law the deed of conveyance in respect of the subject premises in terms of the agreement dated 2nd January 1989 in favour of the plaintiff. 14. The defendant no.3 has based his challenge to the filing and continuation of the suit on the premise that the original defendant no.1 Helen Wilson could not have agreed to sell the property in favour of the plaintiff in the absence of approval granted to Helen Wilson to sell the property to the plaintiff. According to the defendant no.3 the agreement dated 2nd January 1989 is rendered non est in view of the bar contained in Section 31 of FERA and no decree of specific performance can therefore be passed in favour of the plaintiff. This forms the crux of the present application for rejection of the plaint and dismissal of the suit. 15. Section 31(1) of FERA must be given an interpretation which is in line with the law decided on the subject. It is indisputable that a foreigner who is not a citizen of India can only acquire hold transfer or dispose of an immovable property situated in India by way of a sale gift etc. upon prior permission being granted by the Reserve Bank of India subject to the proviso to Section 31(1) concerning lease of immovable property for a period up to five years. For a purposive construction however Section 31 must be construed in the manner as follows. The requirement of permission to be obtained from the Reserve Bank must be at the time of entering into the agreement for sale and before the immovable property is sought to be transferred or disposed of by execution of a registered conveyance. In other words Section 31(1) of FERA does not require the foreign national to obtain permission at the time of entering into the agreement for sale per se the material point of time for being granted the approval is before the foreign national takes steps to alienate the property in question in favour of a third party. This construction would also be in consonance with Section 54 of The Transfer of Property Act 1882 which provides that transfer of ownership of a tangible immovable property of or in excess of Rs.100 can only be made by a registered document: Ref Rambhau Namdeo Gajre vs. Narayan Bapuji Dhotra through LRS. 8 SCC 614. It should be borne in mind that the defendant no.3 seeks dismissal of the suit under Order VII Rule 11(d) of The Code of Civil Procedure 1908 “where the suit appears from the statement in the plaint to be barred by any law”. The statement in the plaint has been made with reference to the letter dated 14th December 1989 from the lawyers of the plaintiff to Helen Wilson which reveals that Helen Wilson was a foreign national and hence came within the statutory requirement of Section 31(1) of FERA. This letter also reveals that Helen Wilson may not have had the permission of the RBI or communicated such permission to the plaintiff as on 14th December 1989 which would be corroborated by the letter of 8th October 1993 of the RBI granting permission to Helen Wilson under Section 31(1) of FERA. The letter of 8th October 1993 has been brought on record by the applicant defendant no.3 as a part of the application for dismissal of the suit. Order VII Rule 11(d) applies where the plaint on the face of it is barred by law and the contravention of the law must be clear and unambiguous from the plaint itself. A Court which is called upon to decide the issue cannot engage with the alleged statutory violation or the fact to be determined beyond the limits of what the plaint discloses. The letter dated 14th December 1989 would have served the objective of the defendant no.3 of having the suit dismissed if by such letter the Court could have come to an indisputable conclusion that Helen Wilson a foreign national had alienated the property by way of sale or gift or otherwise in favour of the plaintiff without first obtaining the permission from the Reserve Bank of India under Section 31(1) of FERA. This is obviously not the case since the plaintiff was constrained to file a suit on 18th July 1990 precisely because the agreement had not been executed hence necessitating a direction on the original defendant to execute and register the deed of conveyance in terms of the agreement for sale dated 2nd January 1989. The contention of the applicant in respect of Section 31(1) of FERA subject to Section 49(3) of FEMA setting the time limit for cognizance of any offence under FERA would have also been acceptable had Helen Wilson attempted to set the property in motion from herself to the 14 plaintiff without first complying with the statutory requirement as existed on the date of sale of the property. Since this is not the factual position this Court is not persuaded to dismiss the suit or reject the plaint for contravention of any law which existed on the date when the suit was filed. 16. The prayers in G.A.19 of 2020 must hence be rejected and the application for dismissal of the suit is accordingly dismissed without any order as to costs. The suit shall be listed for hearing after the summer Urgent Photostat certified copy of this Judgment if applied for be supplied to the parties upon compliance of all requisite formalities.

Grievance raised to seek preferential treatment is antithetical to the very norms and spirit of Competition Law: Competition Commission of India

The Informant was dissatisfied by the conduct of Hindustan Petroleum Corporation Limited (HPCL) as it chose Indane Gas Transporters and did not consider the HP Gas Transporters as per the tender floated to HPCL for procuring services of transportation of packed and sealed LPG cylinders from its bottling plant. It was concluded by the CCI that the dominance of the Opposite Party was not established, thus analyzing the abuse of such position is absurd. Moreover, through this complaint the Informant is only asking for preferential treatment from HPCL to choose HP Gas Transporters; this outrightly violates the principles of Competition Law. This was observed by the CCI in the case of, In Re: Ms. Sanyogita Singh and HPCL and Ors., [ C.No. 33 of 2021] before the Hon’ble Chairperson Ashok Kumar Gupta and Members, Sangeeta Verma and Bhagwant Singh Bishnoi. The brief facts of the dispute are as follows, Information u/s 19(1)(a) of the Competition Act was filed by the Informant, alleging that the OP intentionally didn’t consider the trucks of HPCL nor consider its bids or negotiate the prices as mentioned in the tender that was floated to HPCL, even though the distributors of HPCL invested in HPCL’s gas cylinders transportation market to accordingly appoint truck drivers, staff, incur maintenance costs and so on; but had accepted the bids of competitors, Bharat Petroleum Corporation Limited and Indane. The Informant claimed that they suffered an irreparable financial loss and that the OPs engaged in anti-competitive practices by favoring a particular group of bidders who used ‘cartel rates’ and accepted such forbidden rates without negotiating the prices as is required under law. The Commission stated that, the Informant has failed to provide any information regarding the dominance of OP in the relevant market. “Procurement of services of transportation of packed LPG cylinders by road in India” was defined as the relevant market of the OP by the Commission. After referring to the information available on publicly accessible domains the Commission found out that the OP does not enjoy a dominant position, and its requirements are also less when compared with BPCL and Indane. Therefore, it held that it is unreasonable to examine the conduct of its abuse when it is not a dominant company. It was also mentioned that, it is not necessary that HPCL distributors only should provide their transportation services to HPCL since there was no restriction on participation. Information w.r.t cartelization was also not provided by the Informant. Therefore, the Commission held that, “it appears that OP is not dominant in the relevant market. Given that OP is not a dominant firm, it is unnecessary to examine if the alleged conducts constitute an abuse of dominant position under the provisions of the Act. Even otherwise, the grievance raised by the Informant seeking preferential treatment for HPCL gas distributors in respect of the procured services, on the face of it, is antithetical to the very norms and spirit of competition law…. it cannot be the case that HPCL distributors are locked-in with HPCL only to provide their trucking services…. Informant has singularly failed to identify or array any cartel participants, much less indicate the modus and the details in respect of any such purported cartel…. Thus, the Commission concludes that the issues raised by the Informant in the present context do not involve any competition concerns…… no case is made out against the Opposite Parties for contravention of the provisions of Sections 3 and 4 of the Act, and the Information is ordered to be closed forthwith in terms of the provisions contained in Section 26(2) of the Act.” Click Here to Read the Judgement Judgement Reviewed by Vagisha Sagar        

COMPETITION COMMISSION OF INDIA Case No. 321 In Re: Ms. Sanyogita Singh 1st Floor Galaxy Tower Adjoining to KD Tower Block D Sector 44 Noida 201301. 1. Hindustan Petroleum Corporation Limited HPCL Loni LPG RO Village Tilla Shahabhjpur P.O. Loni District Ghaziabad 201 102 Uttar Pradesh 2. Hindustan Petroleum Corporation Limited Central Procurement Organization Mktg.) 9th Floor Marathon Futurex Building ‘A Wing’ Mafatlal Mills Compound N. M. Joshi Marg Mumbai 400 013 Maharashtra 3. Hindustan Petroleum Corporation Limited 3rd Floor UCO Bank Building Parliament Street New Delhi 110 001 4. Hindustan Petroleum Corporation Limited Petroleum House 17 Jamshedji Tata Road Mumbai 400 020 Maharashtra 5. Hindustan Petroleum Corporation Limited Hindustan Bhawan 8 Shoorji Vallabhdas Marg Ballard Estate Mumbai 400 001 Maharashtra 6. The Chairman & Managing Director Hindustan Petroleum Corporation Hindustan Bhawan 8 Shoorji Vallabhdas Marg Ballard Estate Mumbai 400 001 Maharashtra 7. Ministry of Petroleum & Natural Gas Shastri Bhawan Dr. Rajendra Prasad Road New Delhi 110 001 Opposite Party No. 1 Opposite Party No. 2 Opposite Party No. 3 Opposite Party No. 4 Opposite Party No. 5 Opposite Party No. 6 Opposite Party No. 7 Case No. 321 1 Ashok Kumar Gupta Chairperson Sangeeta Verma Bhagwant Singh Bishnoi Order under Section 26(2) of the Competition Act 2002 The present Information has been filed by Ms. Sanyogita Singhunder Section 19(1)(a) of the Competition Act 2002 against Hindustan Petroleum Corporation Limited through its various offices which have been arrayed as the Opposite Party Nos. 1 to 6. For felicity of reference they shall be collectively referred to as ‘HPCL’ ‘Opposite Party’ ‘OP’ hereafter. The Ministry of Petroleum and Natural Gas has been impleaded as Opposite Party No. 7 in the matter. The Informant has alleged inter alia contravention of the provisions of Sections 3 and 4 of the Act against the OPs. The Informant is stated to have devoted her life to serving the common public through her personal funds and resources. The Informant states that OP 1 is the Zonal Regional Office of HPCL and had organized a pre bid meeting in respect of the tender floated for the procurement of transportation of packed LPG gas cylinder by road from its Loni bottling plant. OP 2 is the Central Procurement Organization Division of HPCL and issued Tender No. 20000806 HD 10157 dated 30.12.2020. OP 3 is the Central Governing Office of OP 1 and OP 2. OP 4 is the Registered Office of OP 1. OP 5 is an Administrative Office of OP 1. OP 6 is the Chairman & Managing Director of HPCL. OP 7 is the governing Ministry of this Public Sector Undertaking. The Informant avers that OP had floated Tender No. 20000806 HD 10157 dated 30.12.2020 for transportation of packed LPG gas cylinders by road from its bottling Case No. 321 2 plant in Loni for a period of five years with effect from 01.07.2021 to 31.06.2026 and a total of 106 bidders participated in the said tender issued by OP. The Informant further avers that the distributors dealers of HPCL have invested their hard earned money in the “HPCL gas cylinders transportation market” to operate truck appointed drivers and other staff for the trucks incurring regular maintenance costs for the same and resulting in huge infrastructural costs to provide exemplary service to HPCL and its valued customers through the operation of the said trucks. The Informant states that in the said tender OP had sought LPG transporting trucks for the road transportation of packed LPG cylinders of different capacities such as 5kg 14.2 kg 19 kg 35 kg 47.5 kg 425 kg composite cylinders or any other capacity from its Loni LPG bottling plant to its distributors within the State of Uttar Pradesh and Union Territory of Delhi through trucks having a capacity of 342 or 504 cylinders each. The Informant further states that distributors of HPCL gas transporters also participated in the said tender. However OP intentionally avoided utilizing the trucks of distributors of HPCL gas transporters and it neither considered the bids of the distributors of HPCL gas transporters nor tried to negotiate the price(s) from the other bid participants to save government revenue in pursuance of the terms mentioned under Clause 11 of the said tender. The Informant alleges that OP accepted the bids from the HP gas distributors dealers’ competitors i.e. distributors dealers of Bharat Petroleum Corporation Limited and Indian Oil Corporation Limited in the aforesaid tender and disqualified rejected the bidding of HP gas distributors dealers during the evaluation process stating that they have quoted a higher rate. The Informant further alleges that OP selected a group of transporter(s) from the distributors dealers of Indane as an L 1 successful bidder without negotiating with other bidders and intentionally did not give preference to its distributor i.e. HP gas distributor’s dealer’s transporters in the said tendering process thereby causing irreparable financial loss to them. Case No. 321 3 10. Lastly the Informant alleges that OPs have adopted anti competitive activities in the said tender proceedings by favouring the group of transporter(s) bidder(s)who have quoted “cartel rates” in their bids and OP has intentionally concealed the fact and accepted the prohibited “cartel rate” quoted by the group of transporter(s) from the distributors dealers of IOCL without any price negotiation as required. 11. Accordingly the Informant has inter alia prayed to the Commission to cancel the selection of L 1 bidders and issue a fresh tender by incorporating a clause containing preferential terms in favour of the distributors dealers of HPCL LPG gas and pass any other appropriate orders in favour of the LPG gas distributors of OP. 12. The Commission considered the present Information in its ordinary meeting held on 11.11.2021 and decided to pass an appropriate order in due course. 13. Having considered the averments and allegations made in the Information the Commission notes that the Informant is primarily aggrieved by the conduct of HPCL in selecting Indane Gas transporters as its L 1 bidder without considering HP distributors dealers gas transporters in the tender floated for the procurement of service of transportation of packed LPG cylinders from its Loni bottling plant. 14. Before delving into issues raised by the Informant it would be appropriate to understand the LPG transportation market. The Commission notes that Liquefied Petroleum Gascomes from natural gas processing and crude oil refining. It is liquefied under modest pressure then stored and transported in bulk tanks or LPG gas cylinders. The transported LPG can be propane butane or a mixture of the two. LPG transportation is commonly done by ship rail pipeline truck and other smaller vehicles. Transporting gas cylinders is done by truck or LPG transport in bulk is done with tankers. LPG exists as either a gasor a liquid when it is under a modest amount of pressure in gas bottles cylinders tanks and larger LPG storage vessels. One of the key advantages of LPG is its portability and given that gaseous LPG has a volume 270x times that of liquid LPG it is almost always transported in its more compact liquid state. LPG can be supplied at virtually any place where people can go and delivery methods can be extremely basic requiring less capital investment compared to other forms of petroleum products. LPG is considered a Case No. 321 4 cleaner safer and more reliable energy form compared to other available energy In the aforesaid backdrop the Commission notes that the present case emanates from the tender floated by HPCL for the procurement of service of transportation of packed LPG cylinders from its Loni bottling plant by road. From the tender documents the Commission observes that OP had mentioned the estimated requirement of trucks for the entire sector to be around 262 trucks for the State of Uttar Pradesh and 71 trucks for the Union Territory of Delhi for a period of five years with effect from 01.07.2021 to 31.06.2026. 16. At the outset the Commission notes that the Informant has not provided any information with regard to the dominance of the OP in the relevant market. The Commission notes that the Informant has neither provided any data or material to show the dominance of OP nor defined the relevant market. 17. Be that as it may with regard to the relevant product market the Commission notes that the OP floated the tender for procurement of service of transportation of packed LPG cylinders from its Loni bottling plant by road. Further considering the allegations made by the Informant in respect of the impugned tender it would be appropriate to define the relevant product market in the present case as ‘procurement of service of transportation of packed LPG cylinders by road’. 18. With regard to the relevant geographic market definition it is noted that the tender was floated by OP for procurement of service of transportation of packed LPG cylinders by road from the Loni bottling plant in the State of Uttar Pradesh and the adjoining Union Territory of Delhi. However as per the tender conditions truck owners with required qualifications as mentioned in the said tender can also participate from all over India. Therefore the relevant geographic market would be the whole of India. Thus the relevant market in the present case can be considered as the “procurement of service of transportation of packed LPG cylinders by road in Case No. 321 5 19. Having identified the relevant market the Commission would now proceed to determine OP’s dominance in the relevant market. 20. The Commission further notes that public sector oil marketing companiestogether have 27.59 crore active LPG customers in the domestic category which are being served by 24 382 LPG distributors. They also have a total of around 195 LPG bottling plants all over India with a rated bottling capacity of around 18.9 million metric tonnes per annumand BPCL. 22. From the market construct and structure which is characterised by presence of three OMC PSUs players and considering the market share of OP in operating bottling plants as noted above the Commission is of the opinion that OP does not appear to be dominant in the relevant market as defined supra. In view of the foregoing the Commission concludes that prima facie it appears that OP is not dominant in the relevant market. Given that OP is not a dominant firm it is unncessary to examine if the alleged conducts constitute an abuse of dominant position under the provisions of the Act. Even otherwise the grievance raised by the Informant seeking preferential treatment for HPCL gas distributors in respect of the procured services on the face of it is antithetical to the very norms and spirit of competition law. 23. Further the Informant raised the issue of OP selecting Indane transporters as L 1 bidders. Upon perusing tender documents the Commission notes that there is no restriction of participation for HPCL gas transporters in the above tenders. Moreover from the information gathered from the public domain it appears that the procurement norms of other OMC PSUs such as IOCL and BPCL also similarly enable participation by distributors of any OMC PSUs and as such it cannot be the Case No. 321 6 case that HPCL distributors are locked in with HPCL only to provide their trucking services. In relation to the allegation of cartelization the Commission notes that the Informant has not only failed to elaborate even the details of the parties which have allegedly cartelized but has also failed to provide any details in support thereof. In fact out of seven OPs six are different offices of HPCL and the seventh OP is the administrative Ministry of OMC PSUs. The Informant has singularly failed to identify or array any cartel participants much less indicate the modus and the details in respect of any such purported cartel. 25. Thus the Commission concludes that the issues raised by the Informant in the present context do not involve any competition concerns. In view of the above the Commission is of the view that no case is made out against the Opposite Parties for contravention of the provisions of Sections 3 and 4 of the Act and the Information is ordered to be closed forthwith in terms of the provisions contained in Section 26(2) of the Act. 27. The Secretary is directed to communicate to the Informant accordingly. Sd Ashok Kumar Gupta) Sd Sd Date: 17 11 2021 New Delhi Case No. 321 7

“Proceedings in the disciplinary case initiated against him have not reached a logical conclusion…”: Hon’ble CIC.

The appellate authority under the RTI (Right to Information) Act of the Securities and Exchange Board of India comprising of Mr. Anand Baiwar adjudicated in the matter of Geeta Khattar v CPIO, SEBI, Mumbai (Appeal No. 4302 of 2021) dealt with an issue in connection with Section 2 (f) and Section 8 (1) (h) of the Right to Information Act, 2005. The appellant, Ms Geeta Khattar had filed an application via RTI MIS Portal on the 20th of April, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 4th of May, 2021, filed by the appellate. After receiving a letter from the respondent on 4th of May, 2021, on her application, the appellate decided to file an appeal on the 9th of June, 2021. In her application, the appellate was seeking the copy of an Order which is issued by the Chief Vigilance official (CVO), SEBI under the Central Vigilance Commission, CVC case no. 17…5/2021/vigilance 5. The respondent, in response to the query, informed that subject matter of application is under examination and has not reached a logical conclusion. In view of the same, disclosure of details related to the matter may impede the process and is therefore exempt from disclosure in terms of Section 8(1)(h) of the RTI Act, 2005. The appellant filed the appeal on the grounds of that the information provided was incomplete, misleading or false information. The appellant, in her appeal, reiterated the query raised in her application. For the queries, the appellate authority, Mr Anand Baiwar, made reference to the matter of Hon’ble CIC, in the matter of Manjit Singh vs. Central Public Information Officer, Central Vigilance Commission (Order dated May 08, 2017) referred to its previous order dated July 10, 2007 in case Nos. CIC/AT/A/2007/00007, CIC/AT/A/2007/00010 and CIC/AT/A/2007/00011, wherein it was held that “17. ….. the term ‘investigation’ used in Section 8(1)(h), in the context of this Act should be interpreted broadly and liberally. We cannot import into RTI Act the technical definition of ‘investigation’ one finds in Criminal Law. Here, investigation would mean all actions of law enforcement, disciplinary proceedings, enquiries, adjudications and so on. Logically, no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that investigation is taken. In that sense, an investigation can be an extended investigation……..The respondents are, therefore, right in holding that it would be a misnomer to hold that investigation in matters such as this, the moment the Investigating Officer submits his report to the competent authority spells the end of investigation.“ While relying on the observations made in the said order dated July 10, 2007, the Hon’ble CIC, held that “In view of the above ratio, it is clear that the term “investigation” used in Section 8(1)(h) of the RTI Act has to be given a wider interpretation and will also include an enquiry conducted during disciplinary proceedings. Hence, the exemption of Section 8(1)(h) of the RTI Act would apply to the present case…… The Commission, in accordance with the above-mentioned precedents, is of the view that the information sought by the appellant cannot be disclosed as it is exempted from disclosure as per Section 8(1)(h) of the RTI Act, since the proceedings in the disciplinary case initiated against him have not reached a logical conclusion.” Further, the respondent has clearly informed that the subject matter of application is under examination and has not reached a logical conclusion. It is understood that disclosure of information prior to conclusion/completion of the proceedings would be premature to the process of examination and the disclosure of any information at any stage prior to such completion may hamper/compromise the objectivity of decision-making by the competent authority and may also harm the reputation of parties involved. In view of these observations, the appellate authority found no deficiency in the response.

Appeal No. 43021 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43021 Geeta Khattar CPIO SEBI Mumbai The appellant had filed an application dated April 20 2021 under the Right to Information Act 2005 SEBI under the Central Vigilance Commission CVC case no. 17…5 2021 vigilance 5. The respondent in response to the query informed that the subject matter of application is under examination and has not reached a logical conclusion. In view of the same disclosure of details related to the matter may impede the process and is therefore exempt from disclosure in terms of Section 8(1)(h) of the RTI Act 2005. 4. Ground of appeal The appellant has filed the appeal on the ground that the information provided was false misleading or false. The appellant in her appeal reiterated the query raised in her application. I have perused the application and the response provided thereto. It is observed that the requested information has been denied on the grounds of Section 8(1)(h) of the RTI Act. In this context the Hon’ble CIC in the matter of Manjit Singh vs. Central Public Information Officer Central Vigilance Commission Order dated May 08 2017) referred to its previous order dated July 10 2007 in case Nos. CIC AT A 2007 00007 CIC AT A 2007 00010 and CIC AT A 2007 00011 wherein it was held Appeal No. 43021 that "17. ..... the term investigation used in Section 8(1)(h) in the context of this Act should be interpreted broadly and liberally. We cannot import into RTI Act the technical definition of investigation one finds in Criminal Law. Here investigation would mean all actions of law enforcement disciplinary proceedings enquiries adjudications and so on. Logically no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that investigation is taken. In that sense an investigation can be an extended investigation........The respondents are therefore right in holding that it would be a misnomer to hold that investigation in matters such as this the moment the Investigating Officer submits his report to the competent authority spells the end of investigation." While relying on the observations made in the said order dated July 10 2007 the Hon’ble CIC held that “In view of the above ratio it is clear that the term "investigation" used in Section 8(1)(h) of the RTI Act has to be given a wider interpretation and will also include an enquiry conducted during disciplinary proceedings. Hence the exemption of Section 8(1)(h) of the RTI Act would apply to the present case The Commission in accordance with the above mentioned precedents is of the view that the information sought by the appellant cannot be disclosed as it is exempted from disclosure as per Section 8(1)(h) of the RTI Act since the proceedings in the disciplinary case initiated against him have not reached a logical conclusion.” Further the respondent has clearly informed that the subject matter of application is under examination and has not reached a logical conclusion. It is understood that disclosure of information prior to conclusion completion of the proceedings would be premature to the process of examination and the disclosure of any information at any stage prior to such completion may hamper compromise the objectivity of decision making by the competent authority and may also harm the reputation of parties involved. In view of these observations I do not find any deficiency in the response. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed. Place: Mumbai Date: July 08 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

FB Post Against General Bipin Rawat is an uncivil remark but no IPC Offence: Madras High Court

“Who ? What ? and Where?” test which is employed to determine whether the words amount to a hate speech or not can be invoked in the context of Section 153 of IPC also. The petitioner had only posted the text on his Face Book page. They are no doubt defamatory. These were upheld by Madras High Court through the learned bench of Honourable Mr. Justice G.R. Swaminathan in the case of G.Sivarajaboopathi v. State, rep.by The Inspector of Police & Dharmaraj (Crl MP(MD)No.78 of 2022). The petitioner’s act raised the hackles of the defacto complainant who brought it to the notice of the Inspector of Police, Cyber Crime Police Station, Nagercoil. Crime No.32 of 2021 was registered against the petitioner and another for the offences under Sections 153, 505(2) and 504 of IPC on 15.12.2021. The petitioner has filed this Original Petition to quash the same. The person who died was no ordinary person. He was the Chief of Defense Staff (CDS). The circumstances in which he died were extremely tragic. It was nothing short of a national calamity. The conduct of the petitioner would certainly outrage the moral sense of most persons. But the issue on hand must be adjudicated on the basis of an objective criteria. The only question that I should pose to myself is whether the act committed by the petitioner amounts to a cognizable offence. If the answer is in the negative, then the impugned FIR has to be quashed. The honorable court also took the reference of Muniswami Naicker Vs. (1949) 2 MLJ 767, it was held that the gravamen of the offence under Section 504 of IPC lies in the utterer provoking the victim by his words to commit an immediate breach of the peace. That can only occur if he utters the words in the presence of the victim or has them conveyed to him by letter or messenger. When the accused uttered the abuse in the absence of the complainant, he cannot be convicted under Section 504 of IPC unless he asked his hearers to convey it to the complainant.    The bench of Honourable Mr. Justice G.R. Swaminathan in this case concluded that the petitioner’s post does not involve two groups at all. There is no reference to religion, race, place of birth, residence, language, caste or community. It has been held that unless one group is sought to be pitted against the other on the aforementioned grounds, the penal provision is not attracted. Looked at from any angle, the essential ingredients constituting the offences of Sections 153, 504 and 505(2) of IPC are absent in this case. The impugned FIR is not maintainable. It is quashed. The criminal original petition is allowed.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED : 21.01.2022CORAMTHE HONOURABLE MR.JUSTICE G.R.SWAMINATHANCrl.O.P.(MD)No.1022andCrl MP(MD)No.722G.Sivarajaboopathi ... Petitioner Vs.1.State rep.by The Inspector of Police Cyber Crime Police Station Nagercoil. ...1st respondent complainant2.Dharmaraj ...2nd respondent defacto complainant Prayer: Criminal Original Petition filed under Section 482 Cr.P.C. to call for the records relating to the impugned FIR in Crime No.321 dated 15.12.2021 on the file of the first respondent and quash the same insofar as the petitioner is concerned. For Petitioner : Mr.G.Prabhu RajaduraiFor Respondents : Mr.T.Senthil Kumar Additional Public Prosecutor for R1 Mr.M.Karthikeya Venkatachalapathy for R2 1 10 https: www.mhc.tn.gov.in judis ORDER Following the demise of Gen.Bipin Rawat on 08.12.2021 the petitioner s Face Book page carried the following post : “ghrp] Lfspd iff $yp rh thjpfhhp gpgpDf fhf fz zPh rpe JtJ mtkhdk !.”(It is disgrace to shed tears for “Dictator Bipin Rawat” the mercenary of the fascists). It was shared by the co accused also. 2.The petitioner s act raised the hackles of the defacto complainant who brought it to the notice of the Inspector of Police Cyber Crime Police Station Nagercoil. Crime No.321 was registered against the petitioner and another for the offences under Sections 153 505(2) and 504 of IPC on 15.12.2021. The petitioner has filed this Original Petition to quash the same. 3.The person who died was no ordinary person. He was the Chief of Defense Staffof IPC. Section 153 of IPC reads as under : “153.Wantonly giving provocation with intent to cause riot—if rioting be committed—if not committed.—Whoever malignantly or wantonly by doing anything which is illegal gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed shall if the offence of rioting be committed in consequence of such provocation be punished with imprisonment of either description for a term which may extend to one year or with fine or with both and if the offence of rioting be not committed with imprisonment of either description for a term which may extend to six months or with fine or with both.”This provision came to be considered in Aroon Purie vs. H.L.Varma2 MLJ 767 it was held that the gravamen of the offence under Section 504 of IPC lies in the utterer provoking the victim by his words to commit an immediate breach of the peace. That can only occur if he utters the words in the presence of the victim or has them conveyed to him by letter or messenger. When the accused uttered the abuse in the absence of the complainant he cannot be convicted under Section 504 of IPC unless he asked his hearers to convey it to the complainant. In Vasireddi Sivalinga Prasad Vs. EmperorMWN31 where the accused abused the Zamindarini and her agents in the course of his speech on the inam legislation but neither the zamindarini nor her agents were present at the meeting the accused cannot be convicted under Section 504 of IPC. In S.Gopal Vs. State 60) it was held that the only two points necessary or that the person insulted must be present and such insult must give provocation to the person so insulted then or soon after to commit a breach of peace. Thus as per the aforesaid decisions in order to attract the offence of Section 504 IPC the accused must intentionally communicate an abuse or insult directly to the victim. In this case the petitioner had posted the offending text in his Face Book page. The contents of one s Face Book page are primarily meant for one s “Face Book friends” though any one can access the same. Even the defacto complainant must have seen it only by chance or some body must have drawn his attention to it. Though the 6 10 https: www.mhc.tn.gov.in judis post was made on 08.12.2021 the complaint was lodged on 15.12.2021. Section 504 of IPC is intended to cover only one to one interactions and not a case of this nature. 7.Section 505(2) of IPC is as follows: Statements creating or promoting enmity hatred or ill will between classes Whoever makes publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote or which is likely to create or promote on grounds of religion race place of birth residence language caste or community or any other ground whatsoever feelings of enmity hatred or ill will between different religious racial language or regional groups or castes or communities shall be punished with imprisonment which may extend to three years or with fine or with both.The petitioner s post does not involve two groups at all. There is no reference to religion race place of birth residence language caste or community. It has been held that unless one group is sought to be pitted against the other on the aforementioned grounds the penal provision is not attracted. 7 10 https: www.mhc.tn.gov.in judis 8.Looked at from any angle the essential ingredients constituting the offences of Sections 153 504 and 505(2) of IPC are absent in this case. The impugned FIR is not maintainable. It is quashed. The criminal original petition is allowed. 9.I want the petitioner to read the final Chapter of Mahabharata. All the characters are dead. Yudhishthira is the last to go. When he entered the heaven he was shocked to see Duryodhana seated happily. Filled with rage he uttered harsh words. Narada smilingly told him “It should not be so Yudhishthira!. While residing in Heaven all enmities cease. Do not say so about king Duryodhana”. I do not know the petitioner s ideological background. I guess that he must be allergic to the national epic. I therefore have a quotation for him from Thirukkural. “gifvd Dk gz gp yjid xUtd eifNaAk Ntz lw ghw W md W.” mjpfhuk 88. Fws 871. ”The evil of hatred is not of a nature to be desired by one even in sport.”While the petitioner is entitled to criticise the legacy of the late General the way he has reacted to the General s death is not in consonance with Tamil Culture. I have nothing more to say. 21.01.2022 Index : Yes NoInternet : Yes Noskm8 10 https: www.mhc.tn.gov.in judis Note: In view of the present lock down owing to COVID 19 pandemic a web copy of the order may be utilized for official purposes but ensuring that the copy of the order that is presented is the correct copy shall be the responsibility of the advocate litigant concerned.To1.The Inspector of Police Cyber Crime Police Station Nagercoil.2.The Additional Public Prosecutor Madurai Bench of Madras High Court Madurai. 9 10 https: www.mhc.tn.gov.in judis G.R.SWAMINATHAN J.skm Crl.O.P.(MD)No.1022andCrl MP(MD)No.72221.01.202210 10

Failed registration due to inactivity of E-Portal is not the fault of the Petitioner: High Court of Patna

The petitioners filed a writ petition in the nature of mandamus in which the petitioners pleaded to get the vehicles purchased by them registered by the respondents. Due to inactivity of the E-Portal the same was not done. The Hon’ble High Court accepted the petition and gave decision in favour of the petitioner under the light of all facts and circumstances. The Hon’ble High Court of Patna before Justice Mr.  S. Kumar in the matter of Khagaria Auto Agency and others v. The State of Bihar[Civil Writ Jurisdiction Case No.5165 of 2021]. The facts of the case were that the petitioner submitted in the court to issue an appropriate writ or order in the nature of Mandamus in order to make respondents issue appropriate orders to the respective DTO’s to register the vehicles as mentioned in the chart upon the verification of the authenticity of the transaction in accordance to law. The dealer has sold 10 vehicles to separate individuals. The Learned senior counsel stated that the petitioner should be allowed to approach the authority nominated for the vehicle’s registration. It was contended that if the materials shows the genuineness of the transactions happened then the appropriate authority should take decisions as per law and the vehicles would be registered. The petitioner further prayed to issue an order to the respondent to give effect to the various orders as passed by the Supreme Court whereby the Hon’ble Court granted the permission for registration of the vehicles purchased on date. The petitioners further added to command the respondents to accept the registration of the vehicles which were sold but the details of the same which could not be uploaded by the petitioner on the E-Portal because the Portal was inactive at that time. The Hon’ble High Court Of Patna held and directed,”…the petitioner to approach the authority i.e. District Transport Officer, Khagaria, as per particulars given by the learned counsel.” Further it was added that the said authority should process the application within a period of 4 weeks from the date of filing of the application. Hence, the liberty is reserved to the petitioner to avail appropriate remedies, if the need so arises. The petition stood disposed off on the aforementioned terms. Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The facts of the case were that the petitioner submitted in the court to issue an appropriate writ or order in the nature of Mandamus in order to make respondents issue appropriate orders to the respective DTO’s to register the vehicles as mentioned in the chart upon the verification of the authenticity of the transaction in accordance to law. The dealer has sold 10 vehicles to separate individuals. The Learned senior counsel stated that the petitioner should be allowed to approach the authority nominated for the vehicle’s registration. It was contended that if the materials shows the genuineness of the transactions happened then the appropriate authority should take decisions as per law and the vehicles would be registered. The petitioner further prayed to issue an order to the respondent to give effect to the various orders as passed by the Supreme Court whereby the Hon’ble Court granted the permission for registration of the vehicles purchased on date. The petitioners further added to command the respondents to accept the registration of the vehicles which were sold but the details of the same which could not be uploaded by the petitioner on the E-Portal because the Portal was inactive at that time. The Hon’ble High Court Of Patna held and directed,”…the petitioner to approach the authority i.e. District Transport Officer, Khagaria, as per particulars given by the learned counsel.” Further it was added that the said authority should process the application within a period of 4 weeks from the date of filing of the application. Hence, the liberty is reserved to the petitioner to avail appropriate remedies, if the need so arises. The petition stood disposed off on the aforementioned terms.

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.51621 Khagaria Auto Agency having its office at M.G. Road Khagaria 851204 Bihar through its authorised representative Shri Vinay Kumar aged about 50 S o Bhola Prasad Yadav R o Vill and P.O. Raghunathpur Ward No. 12 P.S. Sahebpurkamal District Begusarai 851217 Bihar ... Petitioner s The State of Bihar through the Principal Secretary Transport Department Govt. of Bihar Patna The Principal Secretary Transport Department Govt. of Bihar Patna The State Transport Commissioner Transport Department Govt. of Bihar The District Transport Officer Khagaria Bihar For the Petitioner s ... Respondent s Mr. Y.V.Giri Sr. Advocate Mr.Nikhil Kumar Agrawal Advocate Mr. Vaibhav Niti Advocate Ms. Aditi Hansaria Advocate For the Respondent s Mr. Anil Kr. Singh GP 26 Mr. Sarvesh Kumar GP 24 CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR Per: HONOURABLE THE CHIEF JUSTICE Date : 07 10 2021 Petitioner has prayed for the following relief(s): “(i) To issued an appropriate writ order direction in the nature of Mandamus directing the Respondents to issue appropriate orders to the respective DTO’s to register the vehicles enumerated in the chart annexed as Annexure 12 upon verification of the authenticity of the Patna High Court CWJC No.51621 dt.07 10 2021 sale purchase transaction in accordance with law ii) To issue an appropriate writ order direction in the nature of Mandamus commanding the Respondents to give effect to the various orders passed by the Hon’ble Supreme Court whereby and whereby the Hon’ble Court has granted permission for registration of BS IV vehicles purchased on or before 31.03.2020 iii) To issue an appropriate writ order direction in the nature of Mandamus commanding the respondents to accept registration of even those vehicles which were sold on or before 31.03.2020 but details of which could not be uploaded by the petitioner on the portal as the e Vahan portal was inoperative inactive on 29.03.2020 30.03.2020 Here we are dealing with a case where the dealer has sold 10 vehicles to separate individuals particulars whereof are mentioned in Annexure 12 page 129 of the writ petition. After the matter was heard for some time Sri Y.V.Giri learned senior counsel states that petitioner be allowed to approach the appropriate authority nominated for registration of Shri Anil Kumar Singh learned G.P. 26 states that if the petitioner places all materials showing the genuineness of transactions the appropriate authority shall take a decision expeditiously in accordance with law and if the sales are held to be genuine the vehicles would be registered. Patna High Court CWJC No.51621 dt.07 10 2021 Statement accepted and taken on record. As such we direct the petitioner to approach the authority i.e. District Transport Officer Khagaria as per particulars given by the learned counsel. We expect the said authority to decide the application expeditiously preferably within a period of four weeks from the date of filing of the application along with a copy of this order in accordance with law. remedies if need so arises. Liberty reserved to the petitioner to avail appropriate Petition stands disposed of with the liberty aforesaid Interlocutory application if any stands disposed of. Sanjay Karol CJ) ( S. Kumar J

Stolen Vehicle used for illegal purpose released on serving a Panchanama by the petitioner: High Court of Patna

Writ Petition in the form of mandamus was filed by the petitioner in order to release his vehicle which was confiscated in the matter of illegal transportation of liquor. The court heard the matter and passed an order to release the vehicle for a certain period on serving the panchnama with terms and conditions imposed till the time the matter of illicit liquor gets resolved. The Hon’ble High Court of Patna before Justice Mr.  S. Kumar in the matter of Awdhesh Kumar Tiwari v. The State of Bihar[Civil Writ Jurisdiction Case No.15405 of 2021]. The facts of the case were that a writ petition was filed by the petitioner in the nature of mandamus in order to direct and command the concerned respondent to release the Motorcycle that they took into possession as he is the rightful owner of the Vehicle. The Motorcycle was seized from the owner in the matter of Mairwa PS Case No. 201/2019 and was registered under Section 30(a) of Bihar Prohibition and excise Act, 2016. Some unknown thieves had stolen the vehicle for which the petitioner launched the FIR for the offense punishable under Section 379 of the Indian Penal Code and the same vehicle was used for illegal activities by the unknown thieves. It was further submitted that no illicit liquor was found from the vehicle and the same was seized on suspicion only. Confiscation proceedings were initiated in which the petitioner appeared and showed his cause for dropping the proceeding but no order was passed. The Hon’ble High Court of Patna directed the officer to release the vehicle of the petitioner after due identification of ownership of vehicle which was stolen and subsequently recovered and later on seized by the police in excise case. The release of the vehicle was allowed for 14 days from the submission date of the required sureties and their undertakings. The petition stood disposed of with said observations and directions.  The Hon’ble High Court of Patna said,”.. the petitioner shall not indulge in creating any third party right or interest in respect of the vehicle during the pendency of the confiscation proceeding and shall not alienate the vehicle during this period.” The court further added,” Prior to release of the vehicle, a Panchanama would be prepared wherein the photograph of the vehicle shall be taken and will be certified by the petitioner and same shall be kept on record so that in future if so required, it may be used as a secondary evidence. The petitioner shall furnish an undertaking not to challenge the said Panchanama.” Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The facts of the case were that a writ petition was filed by the petitioner in the nature of mandamus in order to direct and command the concerned respondent to release the Motorcycle that they took into possession as he is the rightful owner of the Vehicle. The Motorcycle was seized from the owner in the matter of Mairwa PS Case No. 201/2019 and was registered under Section 30(a) of Bihar Prohibition and excise Act, 2016. Some unknown thieves had stolen the vehicle for which the petitioner launched the FIR for the offense punishable under Section 379 of the Indian Penal Code and the same vehicle was used for illegal activities by the unknown thieves. It was further submitted that no illicit liquor was found from the vehicle and the same was seized on suspicion only. Confiscation proceedings were initiated in which the petitioner appeared and showed his cause for dropping the proceeding but no order was passed. The Hon’ble High Court of Patna directed the officer to release the vehicle of the petitioner after due identification of ownership of vehicle which was stolen and subsequently recovered and later on seized by the police in excise case. The release of the vehicle was allowed for 14 days from the submission date of the required sureties and their undertakings. The petition stood disposed of with said observations and directions.  The Hon’ble High Court of Patna said,”.. the petitioner shall not indulge in creating any third party right or interest in respect of the vehicle during the pendency of the confiscation proceeding and shall not alienate the vehicle during this period.” The court further added,” Prior to release of the vehicle, a Panchanama would be prepared wherein the photograph of the vehicle shall be taken and will be certified by the petitioner and same shall be kept on record so that in future if so required, it may be used as a secondary evidence. The petitioner shall furnish an undertaking not to challenge the said Panchanama.” Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish It was further submitted that no illicit liquor was found from the vehicle and the same was seized on suspicion only. Confiscation proceedings were initiated in which the petitioner appeared and showed his cause for dropping the proceeding but no order was passed. The Hon’ble High Court of Patna directed the officer to release the vehicle of the petitioner after due identification of ownership of vehicle which was stolen and subsequently recovered and later on seized by the police in excise case. The release of the vehicle was allowed for 14 days from the submission date of the required sureties and their undertakings. The petition stood disposed of with said observations and directions.  The Hon’ble High Court of Patna said,”.. the petitioner shall not indulge in creating any third party right or interest in respect of the vehicle during the pendency of the confiscation proceeding and shall not alienate the vehicle during this period.” The court further added,” Prior to release of the vehicle, a Panchanama would be prepared wherein the photograph of the vehicle shall be taken and will be certified by the petitioner and same shall be kept on record so that in future if so required, it may be used as a secondary evidence. The petitioner shall furnish an undertaking not to challenge the said Panchanama.” Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The Hon’ble High Court of Patna directed the officer to release the vehicle of the petitioner after due identification of ownership of vehicle which was stolen and subsequently recovered and later on seized by the police in excise case. The release of the vehicle was allowed for 14 days from the submission date of the required sureties and their undertakings. The petition stood disposed of with said observations and directions.  The Hon’ble High Court of Patna said,”.. the petitioner shall not indulge in creating any third party right or interest in respect of the vehicle during the pendency of the confiscation proceeding and shall not alienate the vehicle during this period.” The court further added,” Prior to release of the vehicle, a Panchanama would be prepared wherein the photograph of the vehicle shall be taken and will be certified by the petitioner and same shall be kept on record so that in future if so required, it may be used as a secondary evidence. The petitioner shall furnish an undertaking not to challenge the said Panchanama.” Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The Hon’ble High Court of Patna said,”.. the petitioner shall not indulge in creating any third party right or interest in respect of the vehicle during the pendency of the confiscation proceeding and shall not alienate the vehicle during this period.” The court further added,” Prior to release of the vehicle, a Panchanama would be prepared wherein the photograph of the vehicle shall be taken and will be certified by the petitioner and same shall be kept on record so that in future if so required, it may be used as a secondary evidence. The petitioner shall furnish an undertaking not to challenge the said Panchanama.”

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.154021 Awdhesh Kumar Tiwari @ Awdhesh Tiwari son of Kamal Tiwari resident of Village 166 Jyay P.O. and P.S. Siwan Muffasil District Siwan The State of Bihar through Principal Secretary Excise Department Govt. of ... Petitioner s The District Magistrate Siwan The Sub Divisional Magistrate Siwan Sadar Dist. Siwan The Officer in Charge Mairwa Police Station Siwan ... Respondent s The proceedings of the Court are being conducted by Hon’ble the Chief Justice Hon’ble Judges through Video Conferencing from their residential offices residences. Also the Advocates and the Staffs joined the proceedings through Video Conferencing from their residences For the Petitioner s For the Respondent s CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR Per: HONOURABLE MR. JUSTICE S. KUMAR Mr.Md. Aslam Ansari Adv Mr.Vivek PrasadA writ in the nature of mandamus for commanding and directing the respondents concerned to release passion Probearing registration no. BR 29N 2271 Engine No. HA10ENDGF 09512 Chesis No MBLHA10AWDGF03453 model no. 2013 in favour of the petitioner as he is rightful owner of the said vehicle which has been seized in connection with Mairwa PS Case No. 201 2019 dated 25.07.2019 registered u s 30(a) of Bihar Prohibition Excise Act 2016.” Patna High Court CWJC No.154021 dt.14 09 2021 It is submitted on behalf of petitioner that he is the owner of the seized vehicle which was stolen by unknown thieves on 20.06.2019 for which he has lodged FIR giving rise to Hussainganj P.S Case No. 180 of 2019 for the offence punishable under Section 379 of IPC and same was being used by the unknown miscreants for illegal activity. Petitioner claims to be owner of the seized vehicle and same was stolen on 20.06.2019 for which he had earlier instituted a case. It is further submitted that no illicit liquor was recovered from the vehicle and same was seized on suspicion only. Confiscation proceeding has been initiated by the Sub divisional Magistrate Siwan Sadar being Excise Case No. 361 of 2019 20 in which petitioner appeared and filed his show cause for dropping the confiscation proceeding and also to release his seized motorcycle but no order was passed. In the facts and circumstances of the case Sub divisional Magistrate Siwan Sadar Confiscating Officer Siwan is directed to provisionally release the vehicle of petitioner after due identification of ownership of the vehicle which was stolen and subsequently recovered and seized by the police in excise case on production of ownership and registration papers with respect to vehicle in question in his Patna High Court CWJC No.154021 dt.14 09 2021 name with two suretiesto the extent of the value of the vehicle as indicated in the insurance document The petitioner while submitting the sureties shall also furnish the following affidavits undertakings i) That the petitioner shall not indulge in creating any third party right or interest in respect of the vehicle during the pendency of the confiscation proceeding and shall not alienate the vehicle during this period ii) The petitioner shall furnish an undertaking to produce the vehicle before the confiscating authority as and when required iii)Prior to release of the vehicle a Panchanama would be prepared wherein the photograph of the vehicle shall be taken and will be certified by the petitioner and same shall be kept on record so that in future if so required it may be used as a secondary evidence. The petitioner shall furnish an undertaking not to challenge the said The release shall be allowed within a period of 14 days from the date of submission of the sureties and the undertakings as stated above which would however be subject to finalization Patna High Court CWJC No.154021 dt.14 09 2021 of the confiscation proceeding With said observations and direction this writ petition is disposed of (S. Kumar J

The documents and other material seized are deemed to be conclusively proved and shall be used against such person unless contrary is proved: High Court of Delhi

Per Section 66 of the NDPS Act, it is presumed the documents and other material seized and/or produced by the person are deemed to be conclusively proved and shall be used against such person unless contrary is proved as held by the Hon’ble High Court of Delhi through a learned bench of Justice Yogesh Khanna in the case of Sachin Makade Bablu Bhagwan Dangre Vs Narcotics Control Bureau [BAIL APPLN. 3487/2020 + BAIL APPLN. 3721/2020]. Brief facts of the case are that during the investigation, reports along with data and exhibited documents were received from SIFS India Forensic Laboratory and from the mobile phones seized from Sachin Makade, data was extracted from mirror image showing huge chatting regard to NRX tablets and chatting with Lutz at Singapore, Bitcoin transactions. Other incriminating documents were also found. Further from the Laptop seized from Sachin Makade, a mirror image of data extracted, showed shipping orders of Tramadols, customer list, rate list of medicine, huge shipping orders, transaction of bitcoins, dark net etc. The CDR show they were in constant touch with customers and were involved in illegal trading of narcotics medicines. Thus, it was urged by the prosecution the accused persons are involved in illegal trafficking of Tramadols and other medicines at international level and thus had violated Sections 24 and 27A of the NDPS and per Section 37 NDPS, could not be released on bail. The senior learned counsel for the petitioners submits there was no evidence of the petitioner being involved in the drug trafficking. It is argued the prosecution case as also the impugned order is based upon confessions recorded under Section 67 NDPS, but in view of Tofan Singh vs State of Tamil Nadu Criminal  such disclosure statements now are not admissible in evidence and cannot be relied upon. It was argued by the learned senior counsel for the petitioners that recovery of Tramadol tablets were effected from Dipu Singh and there is nothing incriminating on record to connect the petitioners with such recoveries and the only evidence is information extracted from laptops, mobile etc, are inadmissible under the Indian Evidence Act without the requisite certificate under Section 65B of the Indian Evidence Act. After gone through the submissions of counsels, the Hon’ble High Court stated that “The simplictor statement under Section 67 of the NDPS Act may not be admissible under Section 25 of the Indian Evidence Act, however the disclosure leading to discovery of facts within their knowledge that they were indulging in trade of narcotics, including Tramadol tablets in conspiracy with other accused persons coupled with other incriminating material seized on record is relevant in terms of Section 27 of the Indian Evidence Act. Even otherwise, per Section 66 of the NDPS Act, it is presumed the documents and other material seized and/or produced by the person are deemed to be conclusively proved and shall be used against such person unless contrary is proved.” Thus, the petition was dismissed.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : 12th November 2021 Delivered on : 29th November 2021 BAIL APPLN. 3487 2020 BAIL APPLN. 3721 2020 SACHIN MAKADE BABLU BHAGWAN DANGRE NARCOTICS CONTROL BUREAU ..... Petitioner s Through : Mr.Mohit Mathur Sr. Advocate with Mr.Vinayak Chitale and Mr.Abhay Pandey Advocates. Respondent Through : Mr.Subhash Bansal SPP for NCB Bansal HON BLE MR. JUSTICE YOGESH KHANNA YOGESH KHANNA J. On 31.01.2020 on the basis of the information recovery of 4200 tablets of Zolpidam6000 tablets of Alprazolamwas made from the parcel bearing No.535153356 destined to Great Britain lying at TNT India Private Limitednear Custom House IGI Airport which are narcotics medicine covered under the Narcotics Drugs and Psychotropic Substances Act 1985 was effected from his residence at Lucknow UP seized on 01.02.2020. Consequent upon the recovery from the parcel and from the Bail Application Nos.3487 2020 and 3721 2020 Digitally Signed By:VIJAYALAKSHMI DOBHALSigning Date:29.11.2021 17:07Signature Not Verified residence of Dipu Singh and based upon his voluntary statement under Section 67 of the NDPS he was arrested on 02.02.2020. He disclosed the names of Tejas patel Sachin Makade petitioner herein Barun Chauahn and Bablu Bhagwan Dangre petitioner in Bail Application No.3721 2020 all of them tendered their statements under Section 67 of the NDPS and their association in the commission of crime. On the basis of the information dated 09.02.2020 it came to the knowledge of prosecution that Tejas Patel and other persons of M s.Azesto Impex Private Limited Nagpur were involved along with Dipu Singh and he has made the shipments of Tramadol to them. Such persons were operating from Nagpur Maharashtra. Accordingly the team of NCB went to the Office of the firm M s.Azesto Impex Private Limited at Nagpur Maharashtra and it was found Sachin Makade and Barun Chauhan are the owners of the Firm and Tejas Patel was working with them though having a separate firm in the name of Krivi Impect. The computer kept in the office was checked and entries of sending narcotic medicines were found. On inquiry from staff Udit informed the main office of the firm is at Nagpur Maharashtra. The laptops containing entries documents relating to the illegal business of Tramadol the printout of the documents and the said Laptop were seized under Panchnama dated 11.02.2020. During further investigation on 11.02.2020 the team of NCB searched the Office of M s.Azesto Imprex Private Limited Nagpur Maharashtra and in said office Sachin Makade Barun Chauhan Tejas Patel Bablu and Amol were present. During investigations personal Bail Application Nos.3487 2020 and 3721 2020 Digitally Signed By:VIJAYALAKSHMI DOBHALSigning Date:29.11.2021 17:07Signature Not Verified mobile phones and laptop of Sachin Makade Barun Chauhan and Tejas Patel were checked and all were found to contain mail regarding orders of Narcotic tablets chat files were found. On inquiry they informed they book orders from Singapore for foreign countries through Lutz. Accordingly mobile phones and laptops of Sachin Makade Barun Chauhan and Tejas Patel were seized vide Panchnama dated 11.02.2020. The statements under Section 67 NDPS of the aforesaid person were recorded wherein they admitted their involvement in transportation shipping external dealings in Tramadol and other psychotropic substances drugs from India to USA UK and Singapore to and other European countries. Petitioner Sachin Makade was arrested on 12.02.2020 and Bhagwan Dangare on 21.02.2020. During the investigation reports along with data and exhibited documents were received from SIFS India Forensic Laboratory and from the mobile phones seized from Sachin Makade data was extracted from mirror image showing huge chatting regard to NRX tablets and chatting with Lutz at Singapore Bitcoin transactions. Other incriminating documents were also found. Further from the Laptop seized from Sachin Makade a mirror image of data extracted showed shipping orders of Tramadols customer list rate list of medicine huge shipping orders transaction of bitcoins dark net etc. The CDR show they were in constant touch with customers and were involved in illegal trading of narcotics medicines. Thus it was urged by the prosecution the accused persons are involved in illegal trafficking of Tramadols and other medicines at international level and thus had Bail Application Nos.3487 2020 and 3721 2020 Digitally Signed By:VIJAYALAKSHMI DOBHALSigning Date:29.11.2021 17:07Signature Not Verified violated Sections 24 and 27A of the NDPS and per Section 37 NDPS could not be released on bail. The senior learned counsel for the petitioners submits there is no evidence of the petitioner being involved in the drug trafficking. It is argued the prosecution case as also the impugned order is based upon confessions recorded under Section 67 NDPS but in view of Tofan Singh vs State of Tamil Nadu Criminal Appeal No.152 2013 decided on 29.10.2020 such disclosure statements now are not admissible in evidence and cannot be relied upon. It is argued no banned medical drug was found either in the office M s.Azesto Impex Private Limited or from residences of these petitioners or from their person and only evidence against them is information which NCB allegedly recovered from their laptops and or their mobile phones of some earlier dealings made by them. It is alleged the only evidence against the petitioner is the mobile chats etc the evidentiary value of it is already a subject matter of challenge before this Court in various petitions as to if these are admissible at this stage or not without any certificate under Section 65B of the Indian Evidence Act. Even otherwise it is submitted under Section 37 NDPS probability of committing crime in future needs to be seen. Reference is made to Mohit Aggarwal vs NCB Bail Application No.2585 2020 decided on 16.03.2021 wherein the Court observed: “32. Keeping in mind the observations made in Tofan Singh and 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 Bail Application Nos.3487 2020 and 3721 2020 Digitally Signed By:VIJAYALAKSHMI DOBHALSigning Date:29.11.2021 17:07Signature Not Verified 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 It was argued by the learned senior counsel for the petitioners that recovery of Tramadol tablets were effected from Dipu Singh and there is nothing incriminating on record to connect the petitioners with such recoveries and the only evidence is information extracted from laptops mobile etc are inadmissible under the Indian Evidence Act without the requisite certificate under Section 65B of the Indian Evidence Act. I have gone through the record of the case. 10. The facts stated in the charge sheet do show prima facie the petitioners were dealing with narcotics and psychotropic substances in large scale. The petitioner Bablu Bhagwan Dangre allegedly had a company under the name of Krivi Infotech which used to deal with narcotic tables and an bank account in HDFC Bank Nagpur and all the payments were received in this account in relation to the tramadol and other narcotic tablets were being used by petitioners along with Barun Chauhan. It is alleged all the orders of Tramadol tablets were received from India or other countries through mail or on phone were forwarded by Barun Chauhan for confirmation and thereafter to Mr.Lutz at Bail Application Nos.3487 2020 and 3721 2020 Digitally Signed By:VIJAYALAKSHMI DOBHALSigning Date:29.11.2021 17:07Signature Not Verified Singapore through mail. Petitioner Bablu Bhagwan Dangre disclosed the mail ID i.e. corewilliam001@gmail.com and petitioner Sachin Makade used to operate his laptop and had given the printout of mails in connection with orders of Tramadol tablets during the custody period with NCB. 11. Admittedly the incriminating material has been seized from the mobiles laptops of petitioners categorically demonstrate trafficking transportation shipping external dealings in Tramadol and other psychotropic substances drugs from India to UK and Singapore etc and petitioners are involved in external trading. 12. The simplictor statement under Section 67 of the NDPS Act may not be admissible under Section 25 of the Indian Evidence Act however the disclosure leading to discovery of facts within their knowledge that they were indulging in trade of narcotics including Tramadol tablets in conspiracy with other accused persons coupled with other incriminating material seized on record is relevant in terms of Section 27 of the Indian Evidence Act. 13. Even otherwise per Section 66 of the NDPS Act it is presumed the documents and other material seized and or produced by the person are deemed to be conclusively proved and shall be used against such person unless contrary is proved. 14. Qua the contention of obtaining a certificate under Section 65B Indian Evidence Act I may refer to Arjun Panditrao Khotkar vs. Kailash Bail Application Nos.3487 2020 and 3721 2020 Digitally Signed By:VIJAYALAKSHMI DOBHALSigning Date:29.11.2021 17:07Signature Not Verified Kushanrao Gorantayal and Ors. AIR 2020 SC 4908 wherein the Apex court observed: “49. On an application of the aforesaid maxims to the present case it is clear that though Section 65B(4) is mandatory yet on the facts of this case the Respondents having done everything possible to obtain the necessary certificate which was to be given by a third party over whom the Respondents had no control must be relieved of the mandatory obligation contained in the said Sub section.” Similar view was taken in Engineering Analysis Centre of Excellence Private Limited vs. The Commissioner of Income Tax and Ors. 2021 CCC 257. Nevertheless I have been told the NCB has collected Section 65B certificates from Cyber Forensic Expert who examined the instruments and extracted the data. In view of above no ground is made out to release the petitioners on bail at this stage. Both the petitions are dismissed with liberty to move afresh after examination of public witnesses qua recovery. Pending application if any also stands disposed of. 17. Nothing opined herein above shall be treated as an opinion on merits of the case. YOGESH KHANNA J. NOVEMBER 29 2021 Bail Application Nos.3487 2020 and 3721 2020 Digitally Signed By:VIJAYALAKSHMI DOBHALSigning Date:29.11.2021 17:07Signature Not Verified

In respect of public distribution commodities, ‘company’ does not come under the ambit of “a group of individuals as an entity”: Calcutta High Court

In pursuance of selecting distributors for the District Controller of Food & Supplies, a company cannot be said to be the same as a group of individuals forming a separate entity. It was observed by the single judge bench of Abhijit Gangopadhyay J. that the framers of the specified order did not include companies to be included in the ambit of distributors for food in the district in the case of M/s. Sonai Food Marketing Pvt. Ltd. v The State of West Bengal & Ors [WPA 4928 of 2021]. This writ application was directed against an order dated 28th January, 2021 issued by the District Controller, Food & Supplies, Purba Bardhaman, whereby the application of the petitioners dated 20.08.2018 was rejected. The application dated 20.08.2018 was for Distributorship license of public distribution commodities to the Fair Price Shops under the Public Distribution System. The three reasons disclosed for such rejection of the application of the petitioner were that no paper was submitted to prove the existence of any office of M/S Sonai Food Marketing Pvt. Ltd.. Further, the applicant was a company. However, applications were invited only from Self Help Groups/Registered Co-operative Societies/Semi-Government Bodies/Individuals/Group of Individuals as an entity. The proposed godown also failed to conform to the CWC norms owing to absence of the top ventilation and having little ancillary facility as required in eligibility criteria. It was argued by the petitioner that as a Company is included within the meaning of the expression “group of individuals as an entity” the word company need not be specified separately in 2013 Control Order by 2018 amendment or otherwise. State Trading Corporation case (AIR 1963 SC 1811), which has been relied upon by the petitioners the context was completely different while describing the characteristics of “company”. There, the context was enforcement of Article 19 of the Constitution of India by a Company as an entity consisting of individuals who have the right to enforce Article 19 of the Constitution. The context of holding a Company as an entity in that case and the context of the present situation as to being “a group of individuals as an entity” for making application for distributorship of public Distribution Commodities are wholly different. Being contextually different the observation of the above case made by the Supreme Court cannot be applied here The court was of the opinion that they did not want to include the word “company” within the expression “group of individuals as an entity” which was held to be a conscious omission of the framers of the 2013 Control Order including its amendment in 2018. The framers had in front of them the definition of “distributor” under 2013 Control Order as has been defined in Clause 2 (j) of the said Control Order whose definition includes “company” and despite having it in front of them the framers did not include the word “company” within the expression “group of individuals as an entity”. The court sounded judgment that “In the context of the 2013 Control Order in respect of supply and distribution of Public distribution Commodities „company‟ was not considered within the meaning of the said expression and the expression was always understood by the persons involved with the trade in its ordinary or natural meaning and not in its special (or technical) meaning.”

IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE PRESENT: HON’BLE MR. JUSTICE ABHIJIT GANGOPADHYAY WPA 49221 M s. Sonai Food Marketing Pvt. Ltd. & Anr. Versus The State of West Bengal & Ors. For the Petitioner : Mr. Kalyan Kumar Bandyopadhyay Sr. Advocate Mr. Ram Anand Agarwal Ms. Nibedita Pal Mr. Ramesh Dhara Mr. Ananda Gopal mukherjee Mr. Sushovan Sengupta Mr. Subir Pal For the State : Mr. Kishore Dutta Ld. Advocate General Heard on : 23.02.2021 25.02.2021 & 26.02.2021 Judgment on : 30.04.2021 Abhijit Gangopadhyay J .: 1. This writ application is directed against an order dated 28th January 2021 issued by the District Controller Food & Supplies Purba Bardhaman whereby the application of the petitioners dated 20.08.2018 was rejected. The application dated 20.08.2018 was for Distributorship licence of public distribution commodities to the Fair Price Shops under the Public Distribution System. 2. For filling up vacancy of Distributorship under the West Bengal Public Distribution System order 2013 in an area namely Surekalna Jamalpur Block in the District of Purba Bardhaman office of the District Controller of Food & Supplies Department Purba Bardhaman had published one notification dated 12.07.2018 relevant part of which was as follows : “In pursuance of the approval of the Government in Food & Supplies Department applications are invited from intending Self Co operative Societies Semi Government individuals group of individuals as an entity for filling up the vacancy of distributorship in terms of clause 26(i) of the West Bengal Public Distribution System Order 2013 in Surekalna Jamalpur Block in the district of Purba Bardhaman”. “Whereas in pursuance of the approval of the Government in Food & Supplies Department applications were invited from intending Self Help Groups Registered Co Semi Government bodies individuals group of individuals as an entity for filling up the vacancy of 3. The notification dated 12.07.2018 was superseded by a subsequent notification issued by the same office dated 03.01.2019. The first and third paragraph of the subsequent notification dated 03.01.2019are required to be reproduced: distributorship in terms of clause 26(i) of the West Bengal Public Distribution System Maintenance & Control) Order 2013 in Surekalna Jamalpur Block the district of Purba Bardhaman vide notification Dated ... ... ... ... ... ... ... ... ... ... ... ... “Now therefore it is notified for the general public that in supersession of the principal notification application is invited from intending Self Help Groups Registered Co operative Societies Semi Government bodies individuals group of individuals as an entity for filling up the vacancy of distributorship in terms of clause 26(i) of the West Bengal Public Distribution System Maintenance & Control) Order 2013 in Surekalna Jamalpur Block in the district of Purba Bardhaman in prescribed proforma From G) along with other requisite documents and Treasury Challan to be submitted in a sealed cover superscribed “Appliction for engagement as Distributor in Surekalna Jamalpur Block in the district of Purba Bardhaman” to the office of the District Controller food & Supplies Purba Bardhaman during working hours on any working day within 30(thirty)days from the date of publication of the notification”. In the said subsequent notification dated 03.01.2019 it was specified that the applicants who had applied earlier on the basis of the principal notification might opt to consider their application under the subsequent notification on submission of an undertaking by them to the concerned District Controller Food & Supplies within the last date of submission of application. 5. The petitioner‟s case is that in response to first notificationdated 17.07.2018 they applied for the vacancy in Surekalna Jamalpur Block in the district of Purba Bardhaman and in terms of the subsequent notification dated 03.01.2019 submitted the undertaking. 6. As there was delay in processing their application they filed writ application being WPO No. 3620 and in compliance with the order of this Court in the said writ application their application had been considered by the concerned authority and was rejected due to non fulfilment of certain criteria. The three reasons disclosed for such rejection of the application of the petitioner are as follows : “ i) As per application submitted M S Sonai Food Marketing Pvt. Ltd. has its registered office at 24 1 Bethune Row Kolkata 700 006. No paper has been submitted to prove the existence of any office of M S Sonai Food Marketing Pvt. Ltd. in Mr. Tamal Kundu Managing Director and Authorized Signatory of said company has submitted copy of his Aadhaar Card in which his address is recorded as 40 A W.C. Banerjee Street Kolkata 700 006. Further. Co operative This violates the eligibility criteria mentioned at Sl. No. 2 that “the applicant should be resident(s) of Purba Bardhaman ii) The applicant is a company. However applications were invited only from Self Societies Semi Government Bodies Individuals Group of Individuals as an entity. Thus the applicant is found not eligible to apply for MR Distributorship vacancy as per the instant notification. iii) The proposed godown failed to conform to the CWC norms owing to absence of the top ventilation and having little ancillary facility as required in eligibility criteria No. 6 of the instant vacancy notification”. 7. This rejection has been challenged in this writ application by the petitioners on the ground that those are wholly unreasonable and inconsistent with the 2013 Control Order. 8. The petitioners harped on the second reason of rejection which says that applications were invited only from self help groups etc. but the petitioner No. 1 applicant was a company and as applications were not invited from any company the application of the petitioner was rejected. The petitioner made submissions that a company comes within the meaning of the expression “group of individuals as an entity” and therefore a company was also eligible to apply for the distributorship and rejection of its application for it being a company is illegal. In reply the respondent has submitted that there was no illegality in rejecting the application of the petitioner as a company does not come within the meaning of “group of individuals as an entity”. The respondent further submitted that exclusion of company from the eligibility criteria was a conscious decision and if the Government wanted to include company as eligible for making application for distributorship it could say so but when it has not been said the only irresistible conclusion is companies are not eligible to apply for the distributorship. It has been noted that the 2013 Control Order has been amended by notification No. 3537 dated 18th December 2018 was inserted for inviting application from Self Help Groups Registered Co operative Societies Semi Government bodies individuals group of individuals as an entity Specifying the eligibility criteria etc. both for „resultant vacancy‟ and for „new vacancy‟. Before such amendment of 2013 Control Order in 2018 for „resultant vacancies‟ it was not mentioned from whom the applications were to be invited though for „new vacancies‟ the above persons were mentioned in clause 26(iii) of the 2013 Control Order. 11. Here the controversy starts. The petitioner submits that as a Company is included within the meaning of the expression “group of individuals as an entity” the word company need not be specified separately in 2013 Control Order by 2018 amendment or otherwise. In support of such submission the petitioner has relied upon a judgment reported in AIR 1963 SC 18116 SCC 6139 SCC 537 the petitioner submitted that there is no impediment in considering a company even if it is a transferred entity from a proprietorship farm. The separate entity principle has been emphasised again by the petitioner by referring to paragraph 15 of another Supreme Court judgment reported in4 SCC 458. Finally the petitioner submits that this rejection of the petitioner‟s application by the impugned letter is clearly a discrimination. To define what is discrimination the petitioner has referred to Supreme Court judgment reported in 7 SCC 639 here Supreme Court has stated that “discrimination means an unjust an unfair action in favour of one and against involves an element of intentional and purposeful differentiation and further an element of unfavourable bias Discrimination under Article 14 of the Constitution must be conscious and not accidental discrimination that arises from oversight which the state is really to rectify”. Referring to this judgment the petitioner submits that the order of rejection dated 28.01.2021 especially the second paragraph thereof suffers from each and every vices that has been mentioned in the above observation of the Supreme Court. 12. In reply the Learned Advocate General has relied upon two judgments one reported in 1 SCC 712 which says that right of a Company cannot be equated with the fundamental right of its members and has submitted that the decision of Narmada Bachao Andolan case cannot be applied here as it is not the case of the petitioners that some other company‟s application has been accepted whereas the petitioner company‟s application has been rejected. Thus there is no case of discrimination. Relying upon the other judgment reported in 1 SCC 678 paragraph 27) the Learned Advocate General submitted when a corporation is regarded as an association of persons. Referring to the well known case of United States and approval of the principle laid down there by our Supreme Court in the said judgment Learned Advocate General has submitted that a corporation is viewed as an association of 9 crime. persons when the legal entity namely „company‟ is used to defeat public convenience used to justify wrong used to protect fraud or used to defend Here reading „company‟ within the meaning of “group of individuals as an entity” does not arise as „company‟ is not in the context considered as an association of persons and therefore in no way it can be said that in the context of this 2013 Control Ordera Company is to be included within the meaning of „group of individuals as an entity‟. 13. After considering the submissions of the parties the pleading and the judgments cited from the bar I express my view in the following way: If „company‟ is included within the expression “group of individuals as an entity” a specialmeaning of the said expression is to be understood beside understanding the expression in its ordinary or natural meaning. Does the context or the intentions of the framers of the 2013 Control Order support the special “or technical” meaning also while understanding the said expression Is the said expression is to be understood as having special meaning in the realm of the 2013 Control Order which includes „company‟ Was the amendment of 2018 made with regard to the particular trade of Distribution of Public distribution Commodities company in the expression “group of individuals as an entity” Was everybody conversant with that trade knew and understood the special meaning in the said expression which includes company We have to find out the replies to the questions. It is to be kept in mind that before 2018 amendment of 2013 Control Order the expression “group of individuals as an entity” was there in the said Control Order in respect of eligibility of the persons who could apply in the „new vacancies‟ under Clause 26 ii). It has not been shown before this court that before 2018 amendment of 2013 Control Order the expression “group of individuals as an entity” was understood by the persons concerned with the trade of Essential Commodities as inclusive of the special or technical) meaning i.e. in the said expression „Company‟ was The expression “group of individuals as an entity” was there in 2013 Control Order and it is not the case of the petitioners that the above expression for the first time appeared in the 2013 Control Order after amendment made in 2018. By 2018 amendment the expression was also made applicable for applications for „resultant vacancies‟. Thus the expression “group of individuals as an entity” was known in the trade since 2013. It has not been shown to this court by the petitioner that from 2013 in respect of this particular trade relating to Public Distribution Commodities the said expression was inclusive of „company‟. Therefore I hold that in the context of the 2013 Control Order in respect of supply and distribution of Public distribution Commodities „company‟ was not considered within the meaning of the said expression and the expression was always understood by the persons involved with the trade in its ordinary or natural meaning and not in its specialmeaning. In the above referred State Trading Corporation case which has been relied upon by the petitioners the context was completely different while describing characteristics of „company‟. There the context was enforcement of Article 19 of the Constitution of India by a Company as an entity consisting of individuals who have the right to enforce Article 19 of the Constitution. In that case Supreme Court held though the individuals being members of a company have Fundamental Rights under Article 19 the separate entity formed by individuals by incorporation cannot have right to enforce Fundamental Rights under Article 19 of the Constitution of India. The context of holding a Company as an entity in that case and the context of the present situation as to being “a group of individuals as an entity” for making application for distributorship of public Distribution Commodities are wholly different. Being contextually different the observation of the above case made by the Supreme Court cannot be applied here. iv) The intention of the framers of the 2013 Control Orderis also clear. They did not want to included the word „company‟ within the expression “group of individuals as an entity” which I hold a conscious omission of the framers of the 2013 Control Order including its amendment in 2018. The framers has in front of them the definition of „distributor‟ under 2013 Control Order as has been defined Clause 2of the said Control Order which definition includes „company‟ and despite having it in front of them the framers did not include the word „company‟ within the expression “group of individuals as an entity”. This is clearly a conscious decision which shows the intention that companies would not be allowed to apply for distributorship of Public Distribution Commodities. What has not been included directly by the framers in the said expression cannot be held by this court as included indirectly in the said expression. It is evident from the above discussion that the context shows that the framers of the 2013 Control Orderintended to use the expression “group of individuals as an entity” in its literal sense and not in its legal special or technical Thus we get the answers to the questions framed above. 14. For the reasons as aforesaid I dismiss the writ application however without any costs. As affidavits were not called for as the parties agreed that the matter be heard finally the allegation made in the writ applications are deemed not to have been admitted. Abhijit Gangopadhyay J)

There is no constitutional right of those who have been working on a regular salary, briefly or contractually, to invoke the right to be absorbed in service: Gauhati High Court

There is no fundamental right of those who have been working on a regular salary, briefly or contractually, to invoke the right to be consumed in work. They cannot be said to be holders of a position since routine nominations may only be rendered in accordance with the provisions of Articles 14 and 16 of the Constitution. The desire to be handled fairly like all workers paid on a daily basis does not apply to a demand for fair care for others who were frequently working. The judgment was passed by The High of Court Gauhati in the case of Pradip Kr. Das vs The Karbi Anglong Autonomous Council and 3 Ors [WP(C)/4710/2015] by Single Bench consisting of Hon’ble Shri Justice JUSTICE KALYAN RAI SURANA. According to the allegations in this writ petition, the petitioner was authorized to collect taxes on behalf of the Bakalia Town Committee in 2008, and a formal appointment letter as Tax Collector was released. While the respondent authorities considered the petitioner’s accounts to be valid, it was discovered after the audit that an amount of Rs.79,721/- was not deposited in the accounts of the Government of Assam. The learned counsel for the petitioner has submitted that without conducting the departmental enquiry, the respondent authorities could not have determined any amount recoverable from the petitioner. It is also submitted that not only the Bakalia Town Committee had verified the accounts submitted by the petitioner and in its meeting, but it was also resolved that the accounts were correct. it is submitted that refusal to assign duty to the petitioner at the instance of respondent amounted to dismissal of the petitioner from service without holding any enquiry, depriving the petitioner of natural justice to be heard. The Learned Standing Counsel for the respondent has referred to the statements made in the affidavit in- opposition. It is submitted that Bakalia Town Committee had been constituted as per the provisions of Karbi Anglong District (Administration of Town Committee) Act, 1954. It is submitted that the petitioner was neither appointed after following any selection process nor his appointment was approved by the Karbi Anglong Autonomous Council. However, subsequently, the work of the petitioner was not continued.

Page No.# 1 8 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 4710 2015 PRADIP KR. DAS S O LT. PARITOSH KUMAR DAS R O BAKALIA BAZAR BASTI WARD NO. 3 P.O. BAKALIA GHAT P.S. BAKALIA DIST. KARBI ANGLONG ASSAM THE KARBI ANGLONG AUTONOMOUS COUNCIL and 3 ORS REP. BY ITS SECRETARY DEPARTMENT OF TOWN AND COUNTRY PLANNING AND SOCIAL WELFARE 2:THE BAKALIA TOWN COMMITTEE BAKALIA DIST. KARBI ANGLONG REP. BY ITS CHAIRMAN BAKALIA TOWN COMMITTEE DIST. KARBI ANGLONG 4:SRI MANDAN SINGH BEY UDA OF BAKALIA TOWN COMMITTEE DIST. KARBI ANGLONG ASSAM HON’BLE MR. JUSTICE KALYAN RAI SURANA Page No.# 2 8 For the petitioner : Mr. P.C. Dey Advocate For respondent nos.1 to 3 : Mr. J. Chutia : Ms. M. Kemprai Standing Counsel Date of hearing : 26.02.2021 Date of judgment : 08.04.2021 JUDGMENT AND ORDER Heard Mr. P.C. Dey learned counsel for the petitioner. Also heard Mr. J. Chutia assisted by Ms. M. Kemprai both being learned standing counsel for Karbi Anglong Autonomous Council respondent nos. 1 to 3. None appears for respondent no.4 2) By filing this writ petition under Article 226 of the Constitution of India the petitioner has prayed for directing the respondent authorities to allow the petitioner to do his duties as Tax Collector of Bakalia Town Committee pursuant to resolution no. 4 of Bakalia Town Committee dated 30.08.2013 and further direction to the respondent authorities not to appoint any other person till disposal of the writ petition and for setting aside the order under Memo no. BTC Audit Pt 1 83 2010 1239(A) dated 11.11.2013The case projected in this writ petition is that in the year 2008 the petitioner was allowed to collect tax on behalf of Bakalia Town Committee and a formal appointment letter as Tax Collector was issued on 17.06.2009. Although the respondent authorities found the accounts submitted by the petitioner to be correct but the audit conducted by the Office of the Accountant General of Assam for year ending 31.03.2010 found that a sum of Rs.79 721 was not deposited in the accounts of the Govt. of Assam. It is projected that four member Sub Committee of Bakalia Town Committee had made enquiry verified the accounts Page No.# 3 8 and submitted their report to the Chairman on 29.07.2013. The said report was discussed in the meeting of Bakalia Town Committee held on 30.08.2013 and allowed the petitioner to continue in service by depositing security amount of Rs.5 000 . However the respondent no.4 did not allow the petitioner to work as Tax Collector in terms of resolution dated 30.08.2013 as such the petitioner had submitted his representation dated 26.09.2013 Thereafter projecting that he had been threatened by respondent no.4 the petitioner had lodged an FIR on 26.09.2013 before the Officer In Charge of Bakalia P.S. Subsequently the Director of Municipal Administration Assam vide letter dated 28.10.2013 informed the respondent no.3 about the objection raised during the audit of accounts of Bakalia Town Committee and that no compliance report was received regarding steps taken with respect to non deposit of collection amounts to the Municipal Fund. Thereafter vide letter dated 11.11.2013 the respondent no. 3 wrote to the Director Municipal Administration Department Assam regarding action contemplated against the petitioner and by a copy of the said letter sent to the petitioner he was asked to deposit entire amount within 15 days The petitioner responded to the said letter by his reply dated 18.11.2013. Thereafter as the petitioner was not allowed to work the petitioner served his advocate’s notice on the respondent no. 4. Accordingly it is alleged that the petitioner has been made a scapegoat and that non assignment of work to the petitioner amounted to dismissal from service without complying with principle of natural justice the present writ petition has been filed 4) The learned counsel for the petitioner has submitted that without conducting departmental enquiry the respondent authorities could not have determined any amount recoverable from the petitioner. It is also submitted that not only the Bakalia Town Committee had verified the accounts submitted by the petitioner and in its meeting it was resolved that the accounts was correct which was again ratified by a fact finding Sub Committee of 4 Members which had exonerated the petitioner and that by resolution dated 20.08.2013 the service of the petitioner was extended. It is submitted that the respondent no.3 had charged the petitioner of not depositing collection amount vide letter dated 11.11.2011 and as such the non allotment of work to the petitioner amounted to punitive termination of petitioner from service. Accordingly it is submitted that refusal to assign duty to the petitioner at the instance of respondent nos. 3 and 4 amounted to dismissal of the petitioner from service without holding any enquiry depriving the petitioner of natural justice to be heard. In support of his submissions the learned counsel for the petitioner has placed reliance on the case of Om Prakash Goel Vs. Himachal Pradesh Tourism Development Corporation Ltd. 3 SCC Page No.# 4 8 5) Per contra the learned standing counsel for the respondent nos. 1 to 3 has referred to the statements made in the affidavit in opposition filed on behalf of respondent nos. 2 and 3. It is submitted that Bakalia Town Committee had been constituted as per the provisions of Karbi Anglong DistrictAct 1954. The Karbi Anglong Autonomous Council had framed the Karbi Anglong DistrictRules 1958Union of India & Ors. Vs. A.S. Pillai & Ors. 13 SCC 448 andMunicipal Corpn. Jabalpur Vs. Om Prakash Dubey 1 SCC 373 6) The materials available on record has been perused and the submissions made by the learned counsel for both sides have received due consideration of the Court. Page No.# 5 8 7) It is seen that the petitioner was appointed on a purely contractual and temporary basis as Tax Collector by the Bakalia Town Committee to collect rent from their commercial building market. The petitioner was not entitled to any salary but he was entitled to get 20% commission against total rent collected. The engagement of the petitioner as B.T.C. owned Building Rent Monthly Tax Collector vide order dated 17.06.2009 was purely temporary and terminable at any time. The petitioner has not been able to show that the post in which he was appointed was either a substantive or a sanctioned post Moreover there is nothing on record that the appointment was made in substantial compliance with the constitutional scheme of public employment as enunciated in the case of Secretary State of Karnataka Vs. Umadevi(2006) 4 SCC 1. Therefore the appointment of the petitioner cannot be said to be irregular. Hence the petitioner is not entitled to the relief of allowing the petitioner to do his duties as Tax Collector of Bakalia Town Committee pursuant to resolution no. 4 of Bakalia Town Committee dated 30.08.2013. 8) As regards projection that refusal to assign duty to the petitioner at the instance of respondent nos. 3 and 4 amounted to dismissal of the petitioner from his service without holding any enquiry depriving the petitioner of natural justice to be heard and in this regard reliance was placed on the case of Om Prakash GoelIt is the case of the petitioner that was not engaged on any salary but he was entitled to 20% commission on collection. Although the learned standing counsel for the respondents has submitted that the petitioner could not show any Rules framed by the Karbi Anglong Autonomous Council by which it was permissible for the Bakalia Town Committee to Page No.# 6 8 engage persons on commission basis but owing to the fact that in spite of coming to about existence of such practice the competent authority of the Karbi Anglong Autonomous Council appears to have acquiesced to such an arrangement without raising any demur. However the fact remains that petitioner was not holding any substantive or sanctioned post and that his appointment was not in accordance with the constitutional scheme of giving employment opportunity to the citizens by following due procedure in the matter of public employment The petitioner is not in regular appointment in any cadre and he does not receive any daily wages or any monthly salary and it appears that his engagement was part time field employment only to collect rent tax from building and other properties of the Bakalia Town Committee. Moreover as per the letter of initial appointment dated 17.06.2009 the service engagement was liable to be terminated without any notice. Hence in the opinion of the Court the petitioner does not have any right to continue to be engaged by the respondent authorities. 10) The Court is aware that the petitioner is claiming that directions be issued upon the respondents to allow him to continue to do his duties as Tax Collector of Bakalia Town Committee. However without establishing his right to continue to hold such a post the petitioner would not be entitled to any relief in this regard. It would be appropriate to be reminded of the observations made by the Constitution Bench of the Supreme Court of India in para 48 of the case of Umadevi(supra) which is quoted below: “48. … There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis to claim that they have a right to be absorbed in service. As has been held by this Court they cannot be said to be holders of a post since a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. …” Page No.# 7 8 11) However in this writ petition it is being alleged by the petitioner that the respondent authorities are contemplating to engage someone else for the work in which the petitioner was engaged. In this regard having seen that the stand by the learned standing counsel for the respondent nos. 1 2 and 3 is two fold to the effect thatRule 52 of the 1958 Rules empowers the Town Committee to employ and to fix the salaries allowances and conditions of service provided that the appointment of any person on pay exceeding Rs.50 per month shall have to be approved by the Karbi Anglong Autonomous District Council and ii) that appointment of the petitioner was not in accordance with law 12) Having regard to such stand the Court is of the considered opinion that it is not permissible for the respondent nos. 2 and 3 to remove the petitioner in his capacity as an ad hoc employee and replace it with another ad hoc appointment. In this regard the observations made by the Supreme Court of India in the case of Umadevi(supra) is quoted below: “26. With respect why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts This Court in our view is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent the distinction between regularization and making permanent was not emphasized here can only encourage the State the model employer to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete With respect the direction made in paragraph 50of Piara Singh4 SCC 118] is to some extent inconsistent with the conclusion in paragraph 45 therein. With great respect it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really it cannot be said that this decision has laid down the law that all ad hoc temporary or casual employees engaged without following the regular recruitment procedure should be made permanent. Page No.# 8 8 13) Thus from the above quoted observations it leaves no room for doubt that the practice of making ad hoc appointments by the instrumentalities of the State has been strongly deprecated. Therefore taking note ofthe stand taken by the learned standing counsel for the respondent nos. 1 2 and 3 the grievance of the petitioner andtaking note of the herein before referred observations made by the Supreme Court of India the Court is inclined to provide that having discontinued the engagement of the petitioner the respondent nos. 1 2 and 3 are directed to forthwith refrain from engaging any other ad hoc appointee to collect rent tax from building and other properties of Bakalia Town Committee without making regular and proper recruitment. This writ petition is allowed to the said limited extent. The rule is made absolute in terms of the relief as allowed herein 14) In light of the discussions above the petitioner is not found to have any legal or constitutional right to continue to work as Tax Collector of Bakalia Town Committee as such all other reliefs sought for by the petitioner stands rejected 15) Before parting with the records it would be appropriate to mention herein that in light of the discussions above there was no necessity for this Court to examine the merit or otherwise of the allegations made by the respondent nos. 2 and 3 against the petitioner or as regards merit or otherwise of the defence taken by the petitioner on such allegations. Therefore any Court or authority called upon to decide such matters may decide the same in accordance with law. The parties are left to bear their own cost JUDGE

Police records and FIR are not substantive piece of evidence: High Court of Karnataka

The records maintained by the Police during the course of their investigation cannot really be considered as substantive evidence and cannot be taken as proof the facts stated therein. This was held in SRI SRI. RAVI @ RAVINDRA V. THAMMANNA & ors and UNITED INDIA INSURANCE COMPANY LIMITED v. SRI. RAVI @ RAVINDRA & ors.[M.F.A.No.6863/2014 & M.F.A.No.1541/2015] in the High Court of Karnataka by single bench consisting of Justice N.S.SANJAY GOWDA. Facts are that the appellant, a pedestrian was struck by a motorcycle while walking by the road, he suffered a permanent disability and thus was granted compensation by the Tribunal. The claimant filed appeal seeking for enhancement of compensation, while the Insurance Company is challenging the award of the Tribunal on the ground that there was no motor vehicle accident. The counsel for the Insurance company contended that the police had investigated and concluded that the claimant fell from a tree and no motor accident took place. Police had filed a ‘B’ report, thus it was not open for the Tribunal to record a finding that the claimant suffered injuries due to a motor vehicle accident. The court made reference to the Supreme Court judgement in Baldev Singh & Another V. State of Punjab, wherein the following observations were made, “FIR is not a substantive piece of evidence, it is only relevant in judging the veracity of prosecution case and the value to be attached to it depends on the facts of each case. Only the essential or broad picture need be stated in the FIR and all minute details need not be mentioned therein. It is not a verbatim summary of the prosecution case.” The court relied on the judgment of the Apex Court in the case of Anita Sharma and Others Vs. The New India Assurance Company Limited to highlight evidentiary value of police records, wherein it was cited that, “It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pick-up van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt.”

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH 2021 THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA M.F.A.No.6863 2014 C W. M.F.A.No.1541 2015In M.F.A.No.6863 2014 SRI. RAVI @ RAVINDRA S O YAMAIAH AGED ABOUT 21 YEARS R O YALLADAHALLI VILLAGE MADDUR TQ MANDYA DISTRICT. BY SRI. RAJA.L ADV.) THAMMANNA S O LATE BORAIAH MAJOR R O UMMADAHALLI VILLAGE MANDYA 571 401. THE BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD. No.1119 B M.C.ROAD MANDYA 571 401. VIDE ORDER DATED:21.01.2015 NOTICE TO R 1 IS DISPENSED WITH SRI. O.MAHESH ADVOCATE FOR R 2) … APPELLANT … RESPONDENTS 2 THIS APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT PRAYING TO MODIFY JUDGMENT AND AWARD PASSED BY THE LEARNED SENIOR CIVIL JUDGE & MACT MADDUR IN MVC No.1282 2012 DATED 16.7.2014 FURTHER BE PLEASED TO ENHANCE THE COMPENSATION AS CLAIMED IN THE CLAIM PETITION BY ALLOWING THIS APPEAL IN THE INTEREST OF JUSTICE AND EQUITY In M.F.A.No.1541 2015 THE BRANCH MANAGER UNITED INDIA INSURANCE COMPANY LIMITED No.1119 B M.C.ROAD MANDYA CITY 571 401. … APPELLANT BY REGIONAL MANAGER UNITED INDIA INSURANCE CO. LTD. 5TH FLOOR KRISHI BHAVAN NRUPATHUNGA ROAD HUDSON CIRCLE BANGALORE 560 001. BY ITS MANAGER. BY SRI. O.MAHESH ADV.) SRI. RAVI @ RAVINDRA AGED ABOUT 21 YEARS S O SRI. YAMAIAH R AT YALADAHALLI VILLAGE MADDUR TALUK MANDYA DISTRICT 571 401. THAMMANNA S O LATE BORAIAH MAJOR R O UMMADAHALLI VILLAGE MANDYA 571 401. BY SRI. L.RAJA ADV. FOR R 1 R 2 IS SERVED AND UNREPRESENTED) … RESPONDENTS 3 THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:16.7.2014 PASSED IN MVC NO.1282 2012 ON THE FILE OF THE SENIOR CIVIL JUDGE & MACT MADDUR AWARDING COMPENSATION OF Rs.2 26 680 WITH INTEREST @ 6% P.A. ON RS.2 18 680 FROM THE DATE OF PETITION TILL THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT COMING ON FOR PRONOUNCEMENT THIS DAY THE COURT DELIVERED THE FOLLOWING: is by the claimant seeking enhancement while MFA.1541 2014 is by the Insurance Company challenging the award of the Tribunal on the ground that there was no motor vehicle accident at all. On 29.08.2012 a claim petition was filed under Section 166 of the Motor Vehicles Act 1988 by the claimant Mr.Ravi @ Ravindra. In the claim petition he basically stated that while he was returning to his village after finishing his work on 24.05.2012 a motorcycle bearing registration No.KA03 EJ 5126 hit him from behind and as a result he suffered grievous injuries. In other words it was his case that he was a pedestrian and while he was walking by the road he was struck by the 4 motorcycle. He contended that he had suffered a permanent disability and claimed a total sum of `9 75 000 as compensation. The 1st respondent i.e. the owner of the motorcycle entered appearance and contested the matter by denying all the claim averments. He further stated that his motorcycle was insured with the 2nd respondent and the policy was valid as on the date of the accident. He stated that if any compensation were to be awarded by the Tribunal the same will have to be satisfied by the Insurance Company. The 2nd respondent Insurance Company also entered appearance and filed objections. The Insurance Company initially denied all the claim averments. Subsequently by way of an amendment the Insurance Company put forth the plea that in an investigation conducted by it it had been found that there was no accident and a false story had been concocted for the purpose of the claim. They stated that the claimant had fallen from a tree and his grievous injuries were relatable to the said fall and not to any motorcycle accident. They also stated that the police authorities had also 5 investigated the matter and submitted a ‘B’ report and therefore it was clear that the injuries were not as a result of a motorcycle accident but due to a fall from a tree. In support of the claim petition the claimant examined himself as P.W.1 and also one Byresha Y.S. an eye witness to the accident as P.W.2 and one Dr.N.T.Ramesh as P.W.3. He produced in all 15 documents. The respondent Insurance Company examined one of its officials Sri C.A.Chandrashekar as R.W.1 and through him produced 7 documents. The Tribunal on consideration of the evidence came to the conclusion that an accident as stated by the claimant had occurred and the claimant was entitled to a total sum of 2 26 680 . The Tribunal as regards the occurrence of the accident stated as follows: “25. On perusal of Ex.R.5 the concerned police have submitted ‘B’ final report stating that no such accident was taken place and the petitioner had not sustained any injuries alleged to have been sustained in RTA. On careful perusal of Ex.P.12 case sheet wherein the history of injuries is mentioned as due to RTA. On perusal of Ex.P.4 wound certificate issued from PHC 6 K.M.Doddi which reveals that the history of injuries is mentioned as road traffic accident on 24.05.2012. It is significant to note that the respondent No.2 Insurance Company has not chosen to examine the concerned I.O. who submitted ‘B’ final report to disprove the fact that the accident was not due to RTA. Therefore the respondent No.2 Insurance Company has failed to prove that the injuries sustained by the petitioner are not the accidental injuries and the motorcycle bearing Reg.No.KA 03 EJ 5126 was not involved in the accident by adducing cogent and convincing evidence before the Court. All the medical records produced before the Court clearly go to show that the petitioner had sustained injuries in RTA. It is to be noticed that merely because the concerned police have submitted ‘B’ final report it cannot be said that the claimant injured person is not entitled for claiming compensation. Considering the cross examination of RW.1 materials placed on record and also for the foregoing reason I am of the view that the respondents No.1 and 2 being the owner and insurer of the offending vehicle are jointly and severally liable to pay the said compensation to the petitioner with interest at 6% per annum form the date of petition till realization. Accordingly issue No.2 is answered partly in the affirmative” Learned counsel for the claimant contended that the factum of the accident cannot be doubted since the entries in the medical records which had been made immediately after the accident consistently recorded that the claimant had stated that he suffered injuries as a result of the road traffic 7 accident. He submitted that the accident occurred at about 11.00 a.m. and the first entry regarding the injuries and the history of the road accident was made at 11.55 a.m. in the Community Health Centre K.M.Doddi as per Ex.P.4. He submitted that the claimant had also produced the entire case sheets of his hospitalization at the Government Hospital Mandya and these case sheets indicated that he was taken to the Hospital at 11.55 a.m. on the date of the accident itself and even in those records there was a clear reference to the road traffic accident made by the claimant. He therefore submitted that the contention of the Insurance Company that there was no motor vehicle accident and that it was a case of an injury caused by falling from a tree cannot be accepted. 10. As regards compensation he submitted that the Tribunal had erred in considering his income as `4 000 when even according to the chart prepared by the Karnataka State Legal Services Authority the notional income in respect of a motor vehicle accident victim was `7 000 for the year 2012. He submitted that the sums awarded towards pain and sufferings and loss of amenities were also on the lower side. 8 11. Sri O. Mahesh learned Senior Counsel appearing for the Insurance Company contended that the police had investigated the complaint of the claimant that a motor vehicle accident had occurred and after a investigation they had come to the conclusion that the claimant had actually fallen from a tree and had not met with any motor vehicle accident. He submitted that since the police had filed a ‘B’ report and the same was accepted by the Court it was not open for the Tribunal to record a finding that the claimant suffered injuries due to a motor vehicle accident. He submitted that the statements recorded by the police clearly indicate that the claimant and the other witnesses had admitted that the injuries had occurred due to a fall from the tree and that a complaint had been lodged only at the instigation of the villagers and the lawyers for the purpose of securing compensation. He submitted that in the light of the clear statement recorded by the police the Tribunal could not have come to the conclusion that the accident had occurred. Learned counsel has relied upon certain contradictions in the statements in order to substantiate his contention. 9 In reply learned counsel for the claimant contended that as a matter of fact acceptance of ‘B’ report was challenged by the claimant and the I Additional Civil Judge and JMFC. Maddur by an order dated 28.09.2017 rejected the ‘B’ report and directed the registration of a criminal case and ordered summons to the accused. He submitted that in view of this order reliance placed upon by the Insurance Company regarding ‘B’ report cannot be accepted. I have considered the submissions of the learned counsel and also perused the Trial Court records. 14. The records produced by the claimant indicate that he complained of injuries as a result of a road traffic accident on 24.05.2012 at 11.00 a.m. The wound certificate which has been produced as Ex.P4 records that injuries had been found on the claimant and the said injuries had been caused on 24.05.2012 at 11.00 a.m. due to a road traffic accident. The said wound certificate also records that the claimant was first seen by the Medical Officer on 24.05.2012 at 11.55 a.m. at the Community Health Centre K.M.Doddi and on examination he found several injuries on the claimant. It is 10 thus clear that at about 11.55 a.m. on 24.05.2012 itself the claimant did inform the Medical Officer that he had suffered a road traffic accident which had caused him grievous injuries. 15. Subsequently i.e. at about 1 p.m. on the same day the claimant was examined by the Doctors at the Government Hospital Mandya and even in this medical record there is a clear reference that he was referred from Primary Health Centre K.M.Doddi with a history of an alleged road traffic accident. Thus within a period of three hours from the accident there are multiple entries regarding claimant having suffered a road traffic accident. 16. Learned counsel for the Insurance Company however contended that these entries can be of no significance since they did not contain the registration number of the motorcycle which had caused the accident. It was his contention that as the details of the offending vehicle were not forthcoming in the medical records no cognizance of the statements can be taken by the Tribunal. He submitted that the statements recorded by the police pursuant to the investigation were the only credible evidence which were 11 relevant for the purpose of ascertaining whether an accident occurred or not. 17. He submitted that the accident had occurred on 24.05.2012 and the FIR was lodged only on 29.05.2012 i.e. after a period of five days. He submitted that the delay in lodging the FIR was by itself proof that a story was being concocted for the purposes of laying a claim under the motor vehicle accident. In order to appreciate the contentions of the learned counsel it would be necessary to examine the scheme of the Motor Vehicles Act in relation to the manner in which the occurrence of a motor vehicle accident is to be established. 19. Section 134 of the Act casts a duty on the driver in the event of an accident and injury to a person firstly to take all reasonable steps to secure medical attention to the injured and secondly thereafter to report the circumstances of the occurrence to the nearest police station as soon as possible at any rate within twenty four hours of the occurrence. 12 20. The driver is also required to give in writing to the insurer information about the occurrence of the accident and also the particulars of insurance obtained in respect of the vehicle. 21. Thus in law a duty is cast only on the driver of the motor vehicle or the person in charge of the vehicle to inform the police about the occurrence of the accident. There is no obligation imposed on the victim to inform the police. Consequently the information if any provided to the police cannot be attributed as a statement of the victim in all cases. 22. Section 158(4) of the Act mandates the owner of the motor vehicle is to give such information as may be required to a police officer for the purpose of determining whether the vehicle was or was not being driven in contravention of Section 146 of the Act. 23. Section 158(6) of the Act mandates that as soon as any information regarding any accident involving death or bodily injury to any person is recorded or reported to a police officer the police officer is required to forward a copy of the same within thirty days from the date of recording 13 information to the Claims Tribunal having jurisdiction and send a copy thereof to the concerned insurer. It is therefore clear that the scheme of the Act contemplates that primarily it is the duty of the driver of the motor vehicle to inform the police about the accident and for the police to thereafter inform the Claims Tribunal about the occurrence of the accident. 25. Rule 150 of the Central Motor Vehicles Rules hereinafter referred to as ‘the CMV Rules’ for short) imposes an obligation on the police to submit a report in Form 54. The police officer is required to furnish the required information to the person eligible to claim compensation under Section 160 of the Act within seven days from the date of receipt of request and on payment of a fee of rupees ten. 26. The prescribed Form 54 contains information which is relevant to the occurrence of the accident such as date time and place of the accident details of the injured or deceased details of the hospital to which the victim was transported the registration number of the vehicle driving licence 14 particulars and the name and address of the owner and the 27. A reading of Form 54 would indicate that these details are required to be furnished to the victim of the accident so as to entitle him to make a claim for compensation against the concerned persons i.e. owner driver and the insurer. 28. This would further lead to the conclusion that the claimant in law is not obliged to take any steps to investigate the manner in which the accident has occurred and all that he is required to do is to approach the police officer secure the Form 54 and file a claim petition on that 29. Having regard to the scheme of the Act the arguments advanced by Sri. O. Mahesh learned counsel for the Insurer that the First Information Report statements recorded by the police the charge sheet filed by the police would be vital pieces of evidence to prove or disprove the accident do not really hold water. 15 30. The First Information Report the statements recorded by the police during investigation or a charge sheet laid by the Police are all essentially documents which are necessary to be maintained by the police authorities while investigating a crime and for prosecuting the offender under the Code of Criminal Procedure. These documents are required to be proved even before the Criminal Courts. Therefore the mere production of a First Information Report or the statements recorded by the police or a charge sheet cannot be construed as proof of their contents. 31. To put it differently if the owner or the insurer were to rest their defence on the basis of materials collected by the prosecution they would have to prove the said documents in the same manner as is provided under the Indian Evidence Act and the documents of the prosecution cannot ipso facto become proof of contents therein in a proceeding under the Motor Vehicles Act. 32. The legal position regarding the evidentiary value of a First Information Report was stated and reiterated by the Apex Court in the case of Baldev Singh & Another Vs. 16 State of Punjab AIR 1996 SC 372. In paragraph 10 of the said judgment it has been observed as under: “State briefly FIR is not a substantive piece of evidence it is only relevant in judging the veracity of prosecution case and the value to be attached to it depends on the facts of each case. Only the essential or broad picture need be stated in the FIR and all minute details need not be mentioned therein. It is not a verbatim summary of the prosecution case. It need not contain details of the occurrence as if it were an “encyclopaedia” of the occurrence. It may not be even necessary to catalogue the overact acts therein. Non mentioning of some facts or vague reference to some others are not fatal.” 33. This has also been further reiterated by the Apex Court in the case of C.Magesh Vs. State of Karnataka 5 SCC 645. In paragraph 26 of the said judgment it has been observed as under: “It is settled law on the point that FIR is not a substantive piece of evidence. However the FIR cannot be given a complete go by since it can be used to corroborate the evidence of the person lodging the same. In the judgment of this Court titled Baldev Singh vs. State of Punjab reported in 4 SCC 692 it was held that 17 as far as the evidentiary value of the FIR is it can only be used corroboration of its maker but the FIR can not Crl.A.Nos.1028 1029 2008 ….(contd.) corroborating a statement of third party.” In fact in a recent judgment of the Apex Court in the case of Anita Sharma and Others Vs. The New India Assurance Company Limited in paragraph 22 it has been held as follows: “Equally we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non examination of some best eye witnesses as may happen in a criminal trial but instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant’s version is more likely than not true. A somewhat similar 18 situation arose in Dulcina Fernandes v. Joaquim Xavier Cruz wherein this Court reiterated that: It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pick up van as set up by the claimants was required to be decided by the learned Tribunal on the probabilities and certainly not on the basis of proof beyond reasonable doubt. Bimla Devi v. Himachal RTC 13 SCC 530: 5 SCC 189:(2010) 1 SCC Cri) 1101]).” In this view of the matter it is clear that the records maintained by the Police during the course of their investigation cannot really be considered as substantive evidence and cannot be taken as proof the facts stated therein. The reliance therefore placed upon by insurers on the documents which are essentially records of prosecution cannot be a determinative factor or actual proof of the occurrence of the accident. In this regard the Karnataka Motor Vehicles Rules hereinafter referred to as ‘the KMV Rules’ for short) is also required to be noticed. 19 37. Rule 232 C of the KMV Rules states that every application for compensation is to be accompanied by a Medical Certificate in Form KMV 64 or the Post mortem Report or Death Certificate and First Information Report in respect of the accident. 38. The requirement of producing a Medical Certificate or the Post mortem Report or a Death Certificate is obviously to establish the injuries or the death. The production of First Information Report is only for the purpose of notifying the Claims Tribunal about the occurrence of the accident and to evidence that it is recorded in the police station. 39. There is no provision either under the Motor Vehicles Act or under the Karnataka Motor Vehicles Rules which indicate that the police records are to be considered as formal proof of occurrence of the accident. It is to be noticed here that in the year 2013 the Karnataka Motor Vehicles Rules was amended. Though these Rules may not apply in the instant case as the accident occurred on 24.05.2012 nevertheless the amended Rules do shed light on the statutory scheme in relation to a proceeding 20 relating to claim of compensation for a victim of a motor vehicle accident. 41. Rules 232 232 A 232 B 232 C 232 D 232 E and 232 F of KMV Rules read as under: “232. Duties of Insurance Company. It shall be the duty of the Divisional Manager or the Branch Manager of the Insurance Company as expeditiously as possible to. move an application in Form 63 before Police Officer with prescribed fees if any and gather full information about the accident at the earliest after receiving information about it or on receipt of notice from the Claims Tribunals under Rule 235 ascertain and verify facts about insurance of motor vehicle(s) involved in the accident and confirm the same to the Claims Tribunal within thirty days of receiving notice of the claim case move application before the concerned in Form 63 A and registering authority the motor licence(s) held by the driver(s) thereof as per details mentioned in Form 63 B involved deposit with the written statement in the Claims tribunal the amount equivalent to the compensation awardable on the principle of no fault liability under Section 140 of the Act in such cases where the information received in Form 63 confirms death or permanent disability to have been caused as a result of the use of the motor certificate policy issued by it. 21 232 A. Presumption about reports. The Contents of reports submitted to the Claims Tribunal in Form 54 appended to the Central Motor Vehicles Rules 1989 Form 63 B and confirmation under clause of Rule 232 by the Insurance company shall be presumed to be correct and shall be read in evidence without formal proof till proved to the contrary. 232 B. Supply of information. Any person having an interest in any claims petition initiated to be initiated before any Claims Tribunal may make applications in Form 63 or Form 63 A before the Investigating Police Officer or the Registering Authority as the case may be for supply of information. 2) On receipt of applications under sub rule the Investigating Police Officer or the Registering Authority as the case may be shall provide to the applicant within 10 days of receipt of the application the information in Form 54 appended to central Motor Vehicles Rules 1989 or in Form 63 B as the case may 232 C. Applications. Every application for compensation arising out of accident of the nature specified in sub section(1) of Section 165 shall be made in Form 63 C by a person specified in sub section(1) of Section 166 to the Claims Tribunal having jurisdiction over the area in which the accident occurred. Every such application shall be presented in duplicate to the Claims Tribunal either in person or through an authorized agent or an Advocate and shall be signed by the applicant. There shall be appended to every such application the following documents. proof of identity and proof of address of the applicant(s) unless exempted from doing so for reasons to be recorded in writing by Tribunal applicant(s) duly attested by the Advocate on record Medical Certificate in Form KMV 64 or Post mortem Report or Death Certificate as the case may be 22 Copy of the First Information Report in respect of the accident. An affidavit of the applicant to the effect that the statement of facts contained in the application is true to the best of his her knowledge belief as the case may be and further if the applicant(s) has have earlier preferred any claim petition with regard to the same cause of action and if so what was the result thereof All the documents and affidavits for the proof thereof and affidavits in support of all facts on which the applicant relies in context of his claim entered in a properly prepared list of documents and affidavits. Provided that the Claims Tribunal may not allow the applicant to rely in support of his claim on any document or affidavit not filed with the application unless it is satisfied that for good or sufficient cause he was prevented from filing such document or affidavit earlier reports obtained in Form 54 appended to the Central Motor Vehicles Rules 1989 and in Form 63 B and if no such report(s) have been obtained reasons therefore h) medical certificate of injuries or the effect thereof other than those included in Form 54 appended to the central Motor Vehicles Rules 1989. The Claims Tribunal may also require the applicant to furnish the following information to satisfy itself that spurious or a collusive claim has not been preferred. full particulars of all earlier accidents in which the applicant or the person deceased as the case may be has been involved the amount of compensation paid in such earlier accidents name and particulars of the victim and of the person who paid the damages and 23 relation of persons mentioned in clauseif any with the applicant. Any application which is found defective on scrutiny may be returned by the Claims Tribunal for being re submitted after removing the defects within a specified period not exceeding two weeks. Notwithstanding anything contained in sub rules and every application for a claim under Section 140 shall be filed before the Claims Tribunal in triplicate and shall be signed by the applicant and the following documents be appended to every such application namely. Panchanama of the accident First Information Report Injury Certificate or in case of death post mortem report and insurance particulars of vehicle involved in the accident from the Regional Transport Officer or the police authorities. 232 D. Police Reports under sub section(6) of Section 158 of the Act and action thereon. On receipt of report mentioned in Form 54 appended to the Central Motor Vehicles Rules 1989 the Claims Tribunal shall go through the same and may call for such further information or material as considered necessary for proper and effective action in accordance with sub section(4) of Section 166 of the Act. The Claims Tribunal after examination of the report and further information material if any shall register the claim case thereon. Notice for appearance shall then be issued in Form 63 D to all parties concerned which shall include the names of victim(s) of the accident or his her their legal representative(s) as the case may be driver owner and insurer of the vehicle(s) involved. On receipt of notice the parties mentioned in the forgoing provision shall appear and declare through affidavit if any claim case had either been preferred or was being preferred in respect of the same cause of action and if so the police report treated as 24 claim case would be tagged to such claim case preferred independently by the parties. injured representative(s) of the person(s) deceased do not appear in response to the notice aforementioned in the manner indicated above the Claims Tribunal may presume that the said parties are not interested in pursuing the claim for any compensation in such proceedings and on such presumption it shall close the Unless the police report treated as claim case stands tagged to independent claim case preferred by the parties themselves the Claims Tribunal shall call upon the person(s) injured or legal representative(s) of the person(s) deceased as the case may be and who may have appeared in response to the notice to submit statement of facts regarding compensation if any claimed by them which statement of facts shall be along the lines required to be furnished in application inf Form 63 C. If statement of facts about compensation claimed and basis thereof are furnished by the parties in the manner indicated in sub rule(5) the case shall be further proceeded with in the same manner as required to deal with applications moved by the parties for compensation directly before the Claims Tribunal. compensation claimed has been furnished by the party which subsequently commits default in appearance the provisions of Order 9 of the Code of Civil Procedure 1908would apply: Provided that in case accident in question involves more than one vehicle and persons connected to all such vehicles stake claim for compensation the police report treated as claim case shall be presumed to be a claim case preferred by each of them and absence by any one or more of such parties shall not prejudice or affect the claim of the party which continues to appear. 232 E. Inspection of the vehicle. The Claims Tribunal may if it thinks fit require the motor vehicle involved in the accident to be produced by the owner for inspection at a particular time and place to be mentioned by it in consultation with the owner. 25 232 F. Power to direct medical examination. The Claims Tribunal may if it considers necessary direct in Form 63 E any Medical Officer or any Board of Medical Officers in a Government or municipal hospital to examine the injured and issue certificate indicating the degree an extent of the disability if any suffered as a result of the accident and it shall be the duty of such Medical Officer or Board to submit the report within fifteen days of receipt of direction.” 42. As could be seen from Rule 232 it is essentially the duty of the Insurance Company to gather and secure full information about the accident from the Investigating Police Officer and also gather full information about the accident on receipt of information or notice from the Claims Tribunal. 43. The Insurance Company is required to ascertain and verify facts about the insurance of the motor vehicles involved in the accident and confirm the same to the Claims Tribunal within the thirty days of receiving notice of the claim case Tribunal. 44. The Insurance Company is also required to move an application before the concerned registering authority and gather information about the motor vehicles involved and the driving licence held by the drivers. 26 45. The Insurance Company is also required to deposit along with written statement the amount equivalent to compensation awardable under the principle of no fault liability under Section 140 of the Act in such cases where the information received by it confirms death or permanent disabilities which have resulted due to the accident. It is thus clear that from the year 2013 at least the onus of establishing the accident is completely on the Insurance Company. The Insurance Company is required to gather full information of the accident ascertain and verify the fact of insurance of the vehicle involved in the accident and confirm the same to the Tribunal. 47. This salutary and solemn duty cast on the Insurance Company cannot be wished by the Companies and it cannot shirk this responsibility cast on them statutorily by simply collecting the documents of the prosecution such as the FIR Statements and the Charge sheet and contend that they had proved or disproved the occurrence of the accident. In fact Rule 232 A of the KMV Rules categorically states that contents of the Accident Information Reportand Information collected from the registering authority about the motor vehicle involved in the accident and the driving licence held by the drivershall be presumed to be correct and shall be read in evidence without formal proof till the contrary is proved. 49. Therefore if an Accident Information Report or a report of the Registering Authority is produced before the Claims Tribunal the Tribunal can presume their contents to be correct unless the contrary is proved. This therefore indicates that there is no burden cast upon the claimant at all to prove the occurrence of the accident and the entire onus on disproving the accident is on the Insurer. 50. The way in which the Rules are framed indicates that that the intent of the legislature was to basically ensure that a victim of a motor vehicle accident should be put to the least amount of difficulty in securing compensation and the entire duty to ascertain the facts relating to the accident would lie on the Insurance Company. 28 In my view if the Insurance Companies do not discharge the duties imposed upon them under Rule 232 of the KMV Rules it will have to be held that the Insurance Companies have accepted the occurrence of the accident and would be liable to pay compensation if they have issued a Certificate of Insurance. It is also to be noticed here that after the amendment of KMV Rules in 2013 as per Rule 232 D the Accident Information Report i.e. Form 54 is required to be examined by the Tribunal and the Tribunal may also call for such other information as it finds necessary and on receipt of the report the Tribunal is required to register a Claim Petition. 53. Thus after the year 2013 the Accident Information Report is itself to be treated as an initiation of a proceeding to claim compensation and an obligation is cast upon the Claims Tribunal to secure information and register a claim petition and notify all the persons concerned. In fact Rule 232 D of the KMV Rules states that if the Tribunal is informed of any claim case as already been preferred the case registered by the Tribunal on the basis of 29 Accident Information Report should be tagged along with the claim case preferred by the claimant. This Rule thereby indicates that virtually no burden is cast on the claimant to even seek for compensation let alone prove or establish the occurrence of the accident. 55. Unfortunately in all most all cases the claimants are called upon to prove and establish beyond all reasonable doubt that the accident had occurred. The Insurance Companies instead of following the procedure prescribed under the KMV Rules are merely in the habit of producing police records and contending that the accident did not occur in the manner stated in the claim petition or that there were severe discrepancies in the pleadings and evidence. It is therefore necessary that all the Insurers and the Claims Tribunals take note of the amendments made to the KMV Rules in 2013 and ensure that their respective obligations in ensuring the victims of motor vehicle accidents secure their compensation. 57. Keeping this scheme of the Act and Rules in mind if the facts of this case are to be analysed it is clear that the 30 claimant informed the Medical Officer within an hour of the occurrence of the accident that he had suffered a road traffic accident. This information was reiterated by the claimant when he was shifted to the Government Hospital. These two factors by themselves establish that a road traffic accident had occurred resulting in injuries to the claimant. 58. The assertion that the police had investigated the complaint and lodged a ‘B’ report and therefore the version of the claimant is to be disregarded cannot be accepted. 59. As noticed above the Insurance Company has an obligation to prove the accident or disprove the accident in a manner acceptable in law. The mere production of a ‘B’ report cannot lead to an inference that no accident occurred. The Insurance Company ought to have produced independent evidence to establish that the claimant had a fall from the tree and mere reliance on ‘B’ report which stated that the claimant had admitted as he had fallen from a tree cannot be In the instant case as pointed out by learned counsel for the claimant filing of a ‘B’ report has also been challenged 31 by him in First Information Report No.625 2012 and the learned I Additional Civil Judge and JMFC. Maddur by an order dated 28.09.2017 rejected the ‘B’ report and directed for registration of a criminal case and ordered summons to the accused. the claimant. 61. From the above narrated facts it is clear that there was positive evidence in the form of entries in the medical records that an accident had occurred and had resulted in injuries to In the light of this evidence the Tribunal was absolutely justified in coming to the conclusion that a motor vehicle accident did occur and the claimant did suffer injuries. The appeal of the Insurer is thus without merit and is dismissed. 63. As far as the appeal by the claimant for enhancement is concerned the Tribunal has recorded a finding that the claimant had sustained comminuted fracture shaft of left femur and he was operated on 30.05.2012 and ORIF with IMIL nailing was done. The Tribunal has taken note of the evidence of the Doctor which was to the effect that the claimant had surgical scar over the left thigh tenderness 32 over the left gluteal regions ROM left hip flexion up to 90 degree abduction and adduction decreased by 20 degree each rotations decreased by 20 degree each ROM left knee flexion up to 90 degree left thigh muscle power decreased by 64. The Tribunal having taken note of the Doctor’s assessment of permanent disability at 40% to the left lower limb has assessed the whole body disability at 12%. In my view this assessment of disability cannot be said to be in any way improper and hence the same is affirmed. 65. The Tribunal has further taken the notional income of the claimant at ````4 000 per month since there was no credible evidence to establish the actual income of the claimant. In my view in such a situation it would be appropriate to adopt the notional income determined by the Karnataka State Legal Services Authority which would be a sum of ````7 000 as the accident was of the year 2012. 66. Since the disability is maintained at 12% and the multiplier of 18 is adopted as the claimant was aged 19 years the claimant would be entitled to a sum of 33 1 81 440 towards loss of future 67. The Tribunal has awarded a sum of ````45 000 towards pain and sufferings and ````30 000 towards loss of amenities of life. The said award is just and proper and does not call for any enhancement. 68. The Tribunal has also awarded a sum of ````28 000 towards medical expenses and this assessment is based on documentary evidence and hence the said sum is also The Tribunal has awarded a sum of ````12 000 towards loss of income during the period of treatment for three months by considering the income of the claimant at 4 000 Since in this appeal the notional income is taken at ````7 000 the claimant would be entitled to ````21 000 under the said head. 70. The Tribunal has also awarded a sum of ````8 000 towards future medical expenses which in my view is just and proper. 34 71. Accordingly the appeal filed by the claimant is allowed in part. Claimant is held entitled for the compensation as under: 1 Loss of future earnings 1 81 440 2 Pain and Sufferings `45 000 3 Loss of amenities in life `30 000 4 Medical expenses `28 000 5 Loss of earnings during laid up `21 000 6 Future medical expenses `8 000 3 13 440 Thus the claimant is entitled for enhanced compensation of 3 13 440 with interest at 6% p.a. on `3 05 440 3 13 440 less `8 000 awarded towards future medical expenses) from the date of petition till realisation. The Insurance Company is directed to deposit the amount of compensation within a period of two weeks from the date of receipt of a certified copy of this judgment. 35 The amount if any deposited before this Court shall be transmitted to the Tribunal for disbursement in terms of the award of the Tribunal. Registry is directed to circulate the copy of this judgment to all the Motor Accident Claims Tribunals in the State for information and necessary action. Sd JUDGE

Witness must identify signatures on the will to prove its legitimacy: High Court of Delhi

When a will is presented before the court for grant of probate, the legitimacy of the will can be proved when the witness identifies the signatures of the other witness and the testator as per the procedure mentioned under Section 63 of the India Succession Act. This was decided in the case of Nikhil Nanda & Anr Vs. State of Nct Of Delhi [TEST.CAS. 40/201]  by Hon’ble Justice V. Kameswar Rao in the High Court of Delhi. This petition under Section 276 of the Indian Succession Act, 1925 was initially filed by two petitioners who are the children of the deceased with the prayer for grant of probate of the will in the favor of the petitioner. It is stated in the petition that petitioner being the appointed executor / administrator to the Will has distributed amongst the beneficiaries the immovable property(s) mentioned in the Will and also the movable properties. Affidavits supporting the petition / ‘No Objections’ had been filed by the petitioner to the effect that they do not have any objection if the relief as prayed for. After recording the contentions placed by both the parties, the court produced Section 68 of the Indian Evidence Act, 1872 wherein it is mentioned that proof of execution of document required by law to be attested. It observed that, If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. The said attesting witnesses have not been cross-examined neither by the Counsel for the State nor by the Counsel for respondent. From the contents of the affidavits of the attesting witness, the court has recorded that Late Rajan Nanda @ R.P. Nanda had executed the Will in their presence and they have signed the will as attesting witness in the presence of each other as well as the testator.  However the court highlighted the inconsistency of the witness by saying “But at no place, the attesting witnesses say that, they identify the signatures of the executant and the signature of the other attesting witness on the document and without which a document such as the Will cannot be said to have been proved. As per conjoint reading of Section 63 of the India Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, if a document is alleged to be signed by any person the sign must be proved. To prove the sign the witness has to identify the signatures on the document”

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: February 24 2021 TEST.CAS. 40 2019 NIKHIL NANDA & ANR. Petitioners Through: Mr. Gaurav Puri Mr. Sarthak Gupta and Mr. Rajesh Chugh STATE OF NCT OF DELHI & ANR. Respondents Through: Mr. Madhu Sudan Bhayana Adv. for R l Mr. Amit Baisoya Adv. for R 2 HON BLE MR. JUSTICE V. KAMESWAR RAO JUDGMENT V. KAMESWAR RAO J This petition under Section 276 of the Indian Succession Act 1925 was initially filed by two petitioners with the following prayers: “In view of facts and circumstances it is therefore prayed that this Hon ble Court may be pleased to: the above stated a. Grant in favour of the Petitioner being the named Executor Probate of the Will dated 04 01 2018 duly executed by the Testator Late Shri Rajan Nanda @ R P Nanda Son of Late Shri Har Prasad Nanda and b. Pass such other or further order s or such directions as this Hon ble Court may circumstances of the case and also to meet the ends of justice.” just and proper fit Test Cas. 40 2019 Page 1 In substance Nikhil Nanda petitioner No.1 is seeking Probate of the document purported to be the Will dated January 04 2018 of the deceased Rajan Nanda @ R.P. Nanda. It is stated in the petition that petitioner being the appointed executor administrator to the Will has distributed amongst the beneficiaries immovable property(s) mentioned in the Will and also the movable properties. It is stated in the petition that the testator Rajan Nanda @ R.P. Nanda who expired on August 05 2018 in Gurugam Haryana has executed a registered Will dated January 04 2018 duly attested by Vinod Dixit and Dr. S.R. Ahuja. It is the case of the petitioner No.1 and Ritu Nanda that the said Will was duly registered with the office of Sub Registrar V New Delhi as Document No.17 in Additional Book No.3 Vol. No. 42 at pages 72 to 83 on January 04 2018. In the present petition notice was issued to the State on May 27 2019 and citations had been published in the newspaper ‘The Statesman’Delhi edition and ‘Navbharat Times’Delhi edition. Objections have not been filed despite publication of the citations. Notice was duly served on the State and Valuation report has been filed by the SDM Badkhal regarding valuation of immovable property i.e. 2 Friends Colony and Asst. Collector Sub Division District South East New Delhi has submitted report dated August 08 2019 along with bank statement of Account in HSBC in the name of late R.P. Nanda. Affidavits supporting the petition ‘No Objections’ have been filed by the petitioner No.1 and the respondent No.2 to the effect that they do not have any objection if the relief as prayed for is granted in Test Cas. 40 2019 Page 2 favour of Ritu Nanda petitioners. Petitioner No.1 also entered the witness box and tendered the evidence by way of affidavit in examination in chief. Along with documents exhibited he has proved the petition as Ex. PW1 1A and the Death Certificate of the deceased as Ex. PW1 1dated January 04 2018 as the validly executed last Will of the deceased Rajan Nanda but not being an attesting witness thereto his evidence in that respect is irrelevant. Further the petitioner has proved the passport of the testator as Ex. PW 1 3has deposed thathe is one of the attesting witnesses of the Will dated January 04 2018 executed by the deceased testator the Will was executed by the deceased in his presence one Dr. S.R. Ahuja was also present when the Will dated January 04 2018 was executed he along with Dr. S.R. Ahuja signed the said Will in presence of each other as well as the Testator that the said Will was registered in the office of Sub Registrar V(l) New Delhi on January 04 2018 where the Deponent he along with the Testator as well as Dr. S. R. Ahuja the other Attesting Witness were also present. Appearing before the Joint Registrar on November 14 2019 PW 2 Vinod Dixit has tendered his evidence by way of affidavit Ex.PW2 X) in examination in chief and identified his signature at Point A & B on Ex. PW2 X. He relied upon the document which is Ex.PW1 2and identified his signatures at Point C on Will. Dr. S.R. Ahuja PW 3 in his evidence by way of affidavit Ex.PW3 X) has deposed thathe is one of the attesting witnesses of Test Cas. 40 2019 Page 3 the Will dated January 04 2018 executed by the deceased testator the Will was executed by the deceased testator in his presence one Vinod Dixit was also present when the Will dated January 04 2018 was executed he along with Vinod Dixit signed the said Will in presence of each other as well as the Testator that the said Will was registered in the office of Sub Registrar V(l) New Delhi on January 04 2018 where the Deponent he along with the Testator as well as Vinod Dixit the other Attesting witness were also present. Dr. S.R. Ahuja tendered his evidence by way of affidavit Ex.PW3 X) in examination in chief and he identified his signature at Point A & B on Ex.PW3 X. He relied upon the document which is already exhibited as Ex.PW1 2 and identified his signatures at Point D on Will. After the evidence was concluded the orders in this case were reserved on January 06 2020 for pronouncement on January 27 2020. In between the petitioner No.2 i.e. Ritu Nanda the wife of the testator and mother of Nikhil Nanda and Nitasha Nanda respondent No.2) expired. The petitioner No.1 filed an application being I.A. No.1140 2020 under Order XXII Rule 2 CPC read with Section 104 of Indian Succession Act 1925to bring on record the legal heirs of deceased petitioner No.2 Ritu Nanda. The said application though signed by the petitioner No.1 Nikhil Nanda was also supported by an affidavit of respondent No.2 Nitasha Nanda. It is stated that the petitioner No.2 Ritu Nanda was suffering from cancer and she expired on January 14 2020 and is survived by two legal heirs who are already parties in the present petition i.e. petitioner No.1 Nikhil Nanda and respondent No.2 Nitasha Nanda her son and Test Cas. 40 2019 Page 4 daughter respectively. It is further stated in the application that as per the Will of the Testator dated January 04 2018 the offshore account contents of the same were to be inherited by the petitioner No.2 since deceased and after her the contents of above said offshore account shall vest with her legal heirs who are petitioner No.1 and respondent No.2 in the present petition. It is averred in the petition that the funds lying in the offshore account were self owned funds earned by the Testator and he had full disposing power over the funds. It is further averred that the said offshore account has no nomination and as per the prevalent laws of Jersey the probate in the first instance has to be granted by the Courts where the deceased was ordinarily residing at the time of his death. It is stated that the value of moveable property namely Offshore Bank Account with HSBC Bank HSBC Expat Jersey HSBC House Explanade ST Helier Jersey JE11HS being Account No.406162 11997114 for which probate is required as mentioned in the Will dated January 04 2018 to which Ritu Nandais to succeed in terms of the said Will is approximately GBP 568 943.69. It is further stated that there is no liability of the Testator and therefore net value of the assets that Ritu Nandais likely to succeed in terms of the Will dated January 04 2018 is GBP 568 943.69. It is the submission of Mr.Puri that the death of Ritu Nanda during the pendency of the petition shall not affect the present petition inasmuch as the Court can still grant the prayer made by Nikhil Nanda petitioner No.1 in this petition as Ritu Nanda in her Will dated October 29 2018 has bequeathed the offshore account in favor of Nikhil Nanda Test Cas. 40 2019 Page 5 petitioner No.1) and her daughter Nitasha Nanda who is already a party to the proceedings impleaded as respondent No.2. That apart according to him in terms of Section 104 of the ISA “if a legacy is given in general terms without specifying the time when it is to be paid the legatee has a vested interest in it from the day of the death of the testator and if he dies without having received it it shall pass on to his representatives.” In support of his submissions he has relied upon the following three judgments: ii. Ramjee Pandit and Ors. v. Dhramdeo Pandit and Ors. MANU BH 1020 2007 iii. Raj On the other hand I may state that the learned counsel for the State has taken an objection with regard to the prayers made in the petition. According to him even though the petitioner is seeking probate with regard to only the offshore account but seeing the prayer it is general in nature. I may state that an application for amendment of the petition with regard to prayer clause was filed being I.A.11381 2020 which has been allowed by this Court vide order dated December 11 2020 to which the counsel for the State and respondent No.2 have given ‘No Objection’ for the grant of prayer as made in the amended petition which is reproduced in Para 23 below. That apart the counsel for the State also stated that report has been filed by the concerned Asst. Collector Grade I) Sub Division District South East New Test Cas. 40 2019 Page 6 Delhi vide status report dated August 08 2019 along with Bank statementhad filed an application being I.A. 1140 2020 for bringing the legal heirs of the original petitioner No.2 Ritu Nanda on record and the same was allowed vide Order dated December 11 2020 and the amended memo of parties was taken on record which reads as under: “AMENDED MEMO OF PARTIES Sh. Nikhil Nanda S o Late Sh. Rajan Nanda R o 12 Jor Bagh New Delhi 03. Smt. Ritu Nanda S oLate Sh. Rajan Nanda R o 2 New Friends Colony New Delhi 65. Through its Legal Heirs Sh. Nikhil Nanda S o Late Sh. Rajan Nanda R o 12 Jor Bagh New Delhi 03 2b) Ms. Nitasha Nanda D o Late Sh. Rajan Nanda R o 2 New Friends Colony New Delhi 65 …..Petitioners State of National Capital Territory of Delhi Through Secretary 6 Raj Niwas Marg Ludhlow Castle Civil Lines New Delhi 110054 2. Ms. Nitasha Nanda D o Late Sh. Rajan Nanda R o 2 New Friends Colony New Delhi 65 Test Cas. 40 2019 Page 7 Having heard the learned counsel for the parties and perused the record it is noted that initially the petition was filed with Nikhil Nanda as petitioner No.1 and Ritu Nanda as petitioner No.2. During the pendency of this petition after the orders were reserved on January 06 2020 Ritu Nanda the original petitioner No.2 expired. Accordingly an application under Order XXII Rule 2 CPC being IA 1140 2020 was filed to bring on record the legal heirs of petitioner No.2 i.e. Ritu Nanda. The said application was allowed on December 11 2020. I have already reproduced the amended memo of parties in para above. I may state here an issue was raised by the Court whether in view of the death of Ritu Nanda a fresh petition is required to be filed by petitioner No.1 and respondent No.2 based on the Will of Ritu Nanda. In that regard Mr. Puri had relied upon Section 104 of ISA along with three judgments of which reference has been made above in support of his contention that this Court can still grant the prayer made by the petitioner No.1 Nikhil Nanda in this petition as Ritu Nanda petitioner No.2 since deceased) also in her Will dated October 29 2018 has bequeathed the said offshore account in favour of Nikhil Nanda petitioner No.1 and 2(a)) and Nitasha Nanda and respondent No.2) and in any case Nikhil Nanda and Nitasha Nanda have stepped into the shoes of Ritu Nanda after her death. Suffice to state in terms of Section 104 of ISA if the legatee dies after testator without receiving the bequest it shall pass on to his her representatives. In Narendra Nath Mitra in Para 4 it was held by Calcutta High Court as under: “4. Before dealing with contention of the caveators some other provisions of the Act have to be examined. Test Cas. 40 2019 Page 8 Generally the legatee has a vested interest from the date of the death of the testator. If the legatee dies after the testator without receiving the bequest it shall pass to his representatives the above stated “In view of facts and circumstances it is therefore prayed that this Hon’ble Court may be pleased to: a. Grant in favour of the Petitioner being the named executor probate with regard to only Offshore Bank Account GBP) with HSBC Bank HSBC Expat Jersey HSBC House Explanade ST Helier Jersey JE 11HS being Account No. 406162 11997114 in the Will dated 04.01.2018 duly executed by the Testator Late Shri Rajan Nanda @ R.P. Nanda S o Late Shri Har Prasad Nanda and” I find that petitioner No.2(b) and respondent No.2 Nitasha Nanda has given her No Objection for the petitioner Nikhil Nanda seeking amendment of the prayer clause of the petition in the following manner: Test Cas. 40 2019 Page 9 So it is seen that respondent No.2 Nitasha Nanda has No Objection for the petitioner No.1 be granted probate of Will dated January 04 2018 of Testator Late Rajan Nanda @ R.P. Nanda with respect to Offshore Bank Account with HSBC Bank HSBC Expat Jersey HSBC House Explanade ST Helier Jersey JE11HS being Account No. 406162 11997114. Having said that it is to be seen whether the Will dated January 04 2018 is the duly executed Will of late Rajan Nanda. In order to prove the Will the petitioner has examined himself as PW1 in these proceedings and also had produced two attesting witnesses to the Will namely Vinod Dixitand Dr. S.R. Ahujaof the Indian Succession Act 1925 which reads as under: “63 The Will shall be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of his signature or mark or the signature of such other person and each of the witnesses shall sign the Will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary.” “68. Proof of execution of document required by law to be attested. If a document is required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence.” Section 68 of the Indian Evidence Act 1872 also states as under: Test Cas. 40 2019 Page 10 From the deposition of the two attesting witnesses the following position emerges: Evidence by way of Affidavit of Dr. S.R. Ahuja. I Dr. S. R. Ahuja S o S o Late P R Ahuja R o 1115 15 Faridabad Haryana. Aged 71 years do hereby solemnly affirm and declare as under: 1. That I am one of the Attesting Witnesses to the WILL dated 04 01 2018 of Late Sh. Rajan Nanda @ R P Nanda who expired on 05 08 2018 at Medanta The Medicity Hospital Gurugram Haryana. The WILL dated 04.01.2018 is exhibited as Exb. PW 1 2 and the signatures of the deponent are marked as Point C. 2. That I state that the said WILL was executed by Late Sh. Rajan Nanda @ R P Nanda in presence of the Deponent as well as the other Attesting Witness namely Mr. Vinod Dixit S o Sh. R.P. Dixit R o A 592 Sarita Vihar New Delhi 110 076. That the Deponent and Mr. Vinod Dixit signed the said WILL of Late Sh Rajan Nanda @ R P Nanda as Attesting Witnesses in the presence of each other as well as the Testator Late Sh. Rajan Nanda @ R P That the Deponent states that the WILL dated 04 01 2018 executed by Late Sh. Rajan Nanda @ R P Nanda was registered in the office of Sub Registrar V(1) New Delhi on 04 01 2018 where the Deponent alongwith the Testator as well as Mr. Vinod Dixit the other Attesting Witness were also present. 5. That the Petitioner No. 1 Sh. Nikhil Nanda S o Late Sh. Rajan Nanda was appointed by the Testator as an Executor of the WILL. Test Cas. 40 2019 Page 11 Evidence by way of Affidavit of Mr. Vinod Dixit. I Vinod Dixit S o Sh. R.P. Dixit R o A 592 Sarita Vihar New Delhi 110 076 Aged 57 years do hereby solemnly affirm and declare as under: 1. That I am one of the Attesting Witnesses to the WILL dated 04 01 2018 of Late Rajan Nanda @ R P Nanda who expired on 05 08 2018 at Medanta The Medicity Hospital Gurugram Haryana. The WILL dated 04.01.2018 is exhibited as Exb. PW 1 2 and the signatures of the deponent are marked as Point C. 2. That I state that the said WILL was executed by Late Sh. Rajan Nanda @ R P Nanda in presence of the Deponent as well as the other Attesting Witness namely Dr. S.R. Ahuja S o Late P R Ahuja R o 1115 15 Faridabad Haryana. 3. That the Deponent and Dr. S.R. Ahuja signed the said WILL of Late Sh. Rajan Nanda @ R P Nanda as Attesting Witnesses in the presence of each other as well as the Testator Late Sh. Rajan Nanda @ R P Nanda. 4. That the Deponent states that the WILL dated 04 01 2018 executed by Late Sh. Rajan Nanda @ R P Nanda was registered in the office of Sub Registrar V(1) New Delhi on 04 01 2018 where the Deponent alongwith the Testator as well as Dr. S. R. Ahuja the other Attesting Witness were also present. That the Petitioner No. 1 Sh. Nikhil Nanda S o Late Sh. Rajan Nanda was appointed by the Testator as an Executor of the WILL. That even in the deposition before the Joint Registrar on November 14 2019 the attesting witnesses have stated as under: Statement of Vinod Dixittender my affidavit of evidence in examination in chief which is Ex.PW2 X and the same bears my signature at Point A & B. Test Cas. 40 2019 Page 12 rely upon the document which is already Ex.PW 1 2 and my signatures are at Point C on Will.” Statement of Dr. S.R. Ahuja“I tender my affidavit of evidence in examination in chief which is Ex.PW3 X and the same bears my signature at Point A & B. I rely upon the document which is already Ex.PW 1 2 and my signatures are at Point D on Will.” The said attesting witnesses have not been cross examined neither by the Counsel for the State nor by the Counsel for respondent From the contents of the affidavits of the attesting witness it has come on record that Late Rajan Nanda @ R.P. Nanda had executed the Will in their presence They have signed the Will of Late Rajan Nanda @ R.P. Nanda as attesting witness in the presence of each other as well as the Testator The Will dated January 04 2018 as executed by Late Rajan Nanda @ R.P. Nanda was registered in the Office of Sub Registrar V(1) New Delhi on January 04 2018 where they were present. But at no place the attesting witnesses say that they identify the signatures of the executant and the signature of the other attesting witness on the document and without which a document such as the Will cannot be said to have been proved. As per conjoint reading of Section 63 of the India Succession Act 1925 and Section 68 of the Indian Evidence Act 1872 if a document is alleged to be signed by any person the sign must be proved. To prove the sign the witness has to identify the signatures on the document. Even while tendering evidence by way of affidavit in examination in chief before this Court on November 14 2019 attesting witnesses have only identified their own signatures on the Will dated January 04 2018 (OSR) but had neither Test Cas. 40 2019 Page 13 identified the other witness signature nor that of the testator. So the requirement of Section 63 ISA has not been fulfilled inasmuch as the said attesting witnesses to prove the document as Will were required to depose compliance of each of the three ingredients of Section 63 of ISA. Be that as it may a mistake of the witness or that of the counsel the petitioner must not be penalised. and respondent No.2 Nitasha Nanda has also supported the petition and gave her No Objection it is not deemed necessary to ask the petitioner to re examine the attesting witnesses. So it is held that petitioner No.1 Nikhil Nanda has succeeded in proving the document to be a validly executed Will of Rajan Nanda @ R.P. Nanda dated January 04 2018. Further the testator was the resident of Delhi at the time of his death as stated by the petitioner in para 14 of the amended probate petition as reproduced hereunder. Thus this Court has the jurisdiction to entertain this petition. “14. The Petitioners submits that the Testator had permanent places of abode in Delhi. The Testator used to reside at 2 Friends Colony West New Delhi 110065. The Testator expired in Medanta The Medicity Hospital Gurugram and most part of his estate is also situated in Delhi. Hence this Hon’ble Court has territorial and pecuniary jurisdiction to grant Probate to the Petitioners.” In view of the above the petitioners have made out a case for grant of probate in favour of petitioner No.1 Nikhil Nanda in respect of the Will dated January 04 2018 with regard to Offshore Bank Account with HSBC Bank HSBC Expat Jersey Test Cas. 40 2019 Page 14 HSBC House Explanade ST Helier Jersey JE11HS being Account No. 406162 11997114 he having been appointed as its executor under the said Will. Accordingly the petition is allowed and disposed of. Probate is granted of the Will dated January 04 2018(OSR) executed by late Rajan Nanda @ R.P. Nanda in favour of the petitioner No.1 Nikhil Nanda in respect of the above mentioned Offshore Bank Account GBP) with HSBC Bank HSBC Expat Jersey HSBC House Explanade ST Helier Jersey JE11HS being Account No. 406162 11997114 subject to the requisite Court fees stamp duty being furnished in accordance with the report dated August 08 2019 submitted by Asst. CollectorSub DivisionDistrict South East New Delhi and upon submission of administration bond and surety in accordance with law to the satisfaction of the Registrar General of this Court. FEBRUARY 24 2021 aky jg V. KAMESWAR RAO J Test Cas. 40 2019 Page 15

Court declined to interfere in the auction procedure on grounds of proper compilation of mandatory requirements of SARFAESI Act by the bank: High Court of Delhi

When the petitioners did not have the financial resources to repay the bank and wanted to sell the properties in question to repay the loan of the respondent bank, the petitioners cannot object to the auction conducted by the respondent bank in respect of the mortgaged properties. The aforesaid has been upheld by the High Court of Delhi while adjudicating the case of Franco Leone Limited And Ors V. Punjab And Sind Bank [CM(M) 684/2021 & CM No.35081/2021] which was decided upon by  single judge bench comprising Justice Amit Bansal on 29th October 2021. The facts of the case are as follows. The petitioners availed various credit facilities from the respondent bank. To avail such credit facilities, the petitioner company had mortgaged 12 properties with the respondent bank. The account of the petitioner company was declared to be Non Performing Asset (NPA) and a demand notice was issued to the petitioners by the respondent bank under Section 13(2) of the SARFAESI Act, calling upon the petitioners to make payment of Rs.46,13,45,410.39/-. The petitioners, sought permission of the respondent bank to sell a few of the properties to repay their dues. the petitioners proposed a One Time Settlement (OTS) payment of Rs.30,00,00,000/- in respect of their dues. respondent bank taking steps under Section 13(4) of the SARFAESI Act to take possession of the mortgaged properties, the petitioners, vide letter dated 29th November, 2018, handed over possession of the property. In response to the letter by the respondent bank, the petitioners requested a copy of the bank policy to improve their offer, however, the respondent bank issued the impugned auction notice to sell 8 out of the 12 mortgaged properties of the petitioners. The present auction notice was challenged by the petitioner by way of filing a Securitization Application before the Debts Recovery Tribunal-II (DRT). The court perused the facts and arguments presented. It was of the opinion that “ There is merit in the contention of the respondent that all mandatory provisions of the SARFAESI Act and the rules framed thereunder have been fully complied with by the respondent bank. There is no reason to disbelieve the respondent bank that the auction notice along with the enclosed newspapers was duly sent to the petitioners 30 days before the auction date. As regards the ground taken with respect to non-receipt of the OTS policy, the counsel for the respondent bank has contended that the said policy is not a public document and the bank is not bound to disclose the same. Yet, the relevant portions of the said policy have been reproduced in the reply filed by the respondent bank before this Court, wherein it is stated that the objective of the policy is to receive maximum amounts that can be recovered from the borrower. In view of the above, no grounds for interference are made out. The petition along with the accompanying applications are dismissed.”

CM(M) 684 2021 such credit facilities the petitioner company had mortgaged 12 properties directors availed various credit facilities from the respondent bank. To avail petitioner no.1 of which petitioners no. 2 to 4 are Brief facts leading up to the filing of the present petition are that the Act 2002VIA VIDEO CONFERENCING] HON BLE MR. JUSTICE AMIT BANSAL PUNJAB AND SIND BANK Through: Ms. Seema Gupta Advocate. Respondent Riya Gulati Advocates. Navneet Mr. Aditya Awasthi and Ms. with Mr. Sidharth Chopra Mr. Through: Mr. Kirti Uppal Senior Advocate Petitioners FRANCO LEONE LIMITED AND ORS No.38650 2021CM(M) 684 2021 & CM No.35081 2021 for Stay) CM Date of decision: 29th October 2021 IN THE HIGH COURT OF DELHI AT NEW DELHI Signed By:ARUNAKANWARSigning Date:31.10.202117:32:28Signature Not Verified CM(M) 684 2021 27th September 2021 the Presiding Officer was on leave and the matter was application was issued to the bank returnable for 27th September 2021. On Recovery Tribunal II on 24th September 2021. Notice on the said filing a Securitization Application being SA No.119 2021 before the Debts The present auction notice was challenged by the petitioner by way of properties of the petitioners. auction notice dated 1st September 2021 to sell 8 out of the 12 mortgaged improve their offer however the respondent bank issued the impugned respondent bank the petitioners requested a copy of the bank policy to Recovery Management Policy of the bank. In response to the letter by the requested the petitioners to improve their OTS proposal to match it with the Delhi 110005. Vide letter dated 23rd August 2021 the respondent bank of property bearing no. 11786 6 Ground Floor Sat Nagar Karol Bagh New petitioners vide letter dated 29th November 2018 handed over possession SARFAESI Act to take possession of the mortgaged properties the consequent to the respondent bank taking steps under Section 13(4) of the payment of Rs.30 00 00 000 in respect of their dues. In the meanwhile 24th February 2021 the petitioners proposed a One Time Settlementbank to sell a few of the properties to repay their dues. Finally on October 2018 to 31st February 2020 sought permission of the respondent to make payment of Rs.46 13 45 410.39 . The petitioners from 26th bank under Section 13(2) of the SARFAESI Act calling upon the petitioners notice dated 5th May 2018 was issued to the petitioners by the respondent company was declared to be Non Performing Asset and a demand with the respondent bank. On 31st March 2018 the account of the petitioner Signed By:ARUNAKANWARSigning Date:31.10.202117:32:28Signature Not Verified CM(M) 684 2021 certain newspapers as enclosures however the same has not been supplied auction. Even though there is a reference in the aforesaid auction notice to notice dated 01st September 2021 nowhere provides the time and place of present case has been sent to the petitioner. He further states that the auction upon the aforesaid judgment it is submitted that no individual notice in the be given to the borrower and the said provisions are mandatory. Relying 2014) 5 SCC 610 to contend that individual notice under Rule 8(6) has to the Supreme Court in Mathew Varghese v. M. Amritha Kumar and Ors. complied with. Reference in this regard has been made to the judgment of Enforcement) Rules 2002 which are mandatory in nature have not been the petitioner that Rule 8(6) and Rule 8(7) of the Security Interest It is contended by the learned senior counsel appearing on behalf of and 29th October 2021. been filed and both counsels for parties were heard on 28th October 2021 was not to be carried till the next date of hearing. Reply and rejoinder have are subject matter of the present petition however the sale conformation was directed that the respondent bank could auction the two properties that Notice was issued in the present petition on 06th October 2021 and it Presiding Officer at any of the Debt Recovery Tribunals in Delhi. aforesaid SA when both the parties confirmed that currently there is no parties to verify whether or not the DRT has a Presiding Officer to hear the Court on 5th October 2021 when it was adjourned for 6th October 2021 for the petitioner filed the present petition. The petition was listed before this Since there was no Presiding Officer available on 1st October 2021 30th September 2021. adjourned to 1st October 2021. The term of the Presiding Officer ended on Signed By:ARUNAKANWARSigning Date:31.10.202117:32:28Signature Not Verified CM(M) 684 2021 out of which 8 were put for auction and only in respect of two properties Rs.44 70 00 000 which was secured by way of mortgage of 12 properties iv) the total loan sanctioned to the petitioner was for a sum of cannot have any objection to the aforesaid properties being auctioned communication dated 29th November 2018. Accordingly the petitioners Karol Bagh property to the respondent bank as evidenced from the the petitioners themselves had handed over the possession of the petitioner or any other person could also participate any objection to the respondent bank holding a public auction in which the repay the outstanding amount and therefore the petitioner could not have 31st August 2021 and that they would be required to sell the properties to ii) the petitioners have admitted their account to be NPA vide letter dated as noted in the auction notice i) the total outstanding amount as on date is more than Rs.72 43 00 000 has drawn attention of this Court to various documents to show that: Per contra the counsel appearing on behalf of the respondent bank August 2021 was never provided to the petitioner. made a better offer. The said policy referred to in the letter dated 31st asked the respondent Bank to furnish its policy so that the petitioner could better offer. In response the petitioner vide letter dated 31st August 2021 Rs.30 00 00 000 was rejected and the petitioner was advised to make a Time Settlement proposal on behalf of the petitioner of letter dated 23rd August 2021 of the respondent bank whereby the One Next senior counsel for the petitioner has drawn my attention to the to the petitioner. Signed By:ARUNAKANWARSigning Date:31.10.202117:32:28Signature Not Verified CM(M) 684 2021 out by the respondent bank. record this Court is not inclined to interfere with the auction process carried 11. Having heard the counsels for the parties and having gone through the functioning of the DRT and the urgency of the relief sought. 10. The present petition is being entertained only on account of the non properties. reserved price fixed by the respondent bank in respect of the aforesaid in respect of the Noida property. Both the aforesaid bids are in excess of the have been received whereas the petitioner has offered only Rs.1 72 51 000 Karol Bagh property and Rs.2 83 65 000 in respect of the Noida property proceedings whereby the highest bids of Rs.42 48 000 in respect of the Attention of this Court has also been drawn to details of the e auction Bagh and Noida and at the residential premises of the petitioners in Meera vii) Sale banner was also affixed at the two properties in question at Karol notice was without enclosures and on 04th September 2021 and nowhere has it been stated that the aforesaid vi) it has been admitted in the petition that the auction notice was received publication was duly sent to the petitioner along with the sale notice respect of time place and date of the auction. The aforesaid newspaper publication have also been filed with the reply which gives full detail in relevant portions of the aforesaid newspapers with regard to the said Financial Express and Jansatta were enclosures to the aforesaid notice. The v) the auction notice specifically notes that the newspaper publications in at Karol Bagh and Noida bids have been received by the respondent bank namely properties located Signed By:ARUNAKANWARSigning Date:31.10.202117:32:28Signature Not Verified CM(M) 684 2021 object to the auction conducted by the respondent bank in respect of the question to repay the loan of the respondent bank the petitioners cannot financial resources to repay the bank and wanted to sell the properties in 14. The fact of the matter is that when the petitioners did not have the present case. Mathew Varghesewould not come to the aid of the petitioner in the the residential premises of the petitioners. Therefore the judgment in of auction were duly affixed not only at the properties in question but also at clearly demonstrate that the sale banners containing the time date and place 13. The photographs filed by the respondent bank along with its reply the enclosures. non receipt of the enclosures since the sale notice specifically mentioned if that were the case then the petitioner ought to have protested about the However counsel for the respondent bank is correct in her submission that was provided in the said newspaper and not in the aforesaid notice. accompanied by the newspapers as the date time and place of the auction date. Counsel for the petitioner has contended that the said notice was not September 2021 which was more than 30 days before the proposed auction dated 01st September 2021 was received by the petitioner on 04th page 17 of the electronic file has admitted that the impugned auction notice auction date. The petitioners themselves in paragraphof the petition at enclosed newspapers was duly sent to the petitioners 30 days before the disbelieve the respondent bank that the auction notice along with the fully complied with by the respondent bank. There is no reason to provisions of the SARFAESI Act and the rules framed thereunder have been 12. There is merit in the contention of the respondent that all mandatory Signed By:ARUNAKANWARSigning Date:31.10.202117:32:28Signature Not Verified CM(M) 684 2021 OCTOBER 29 2021 AMIT BANSAL J. Interim order passed on 6th October 2021 stands vacated. petition along with the accompanying applications are dismissed. In view of the above no grounds for interference are made out. The below the amount due. that the said proposal has been rejected by the bank as the same was well respondent bank. Counsel for the respondent bank on instructions states 2021 a fresh OTS proposal was made on behalf of the petitioners to the am also informed that after the conclusion of the hearing on 28th October the aforesaid two properties would recover only a sum of Rs.3 26 00 000 . I bank the amount due currently is more than Rs. 74 00 00 000 . The sale of recovered from the borrower. In the present case as per the respondent that the objective of the policy is to receive maximum amounts that can be the reply filed by the respondent bank before this Court wherein it is stated same. Yet the relevant portions of the said policy has been reproduced in policy is not a public document and the bank is not bound to disclose the policy the counsel for the respondent bank has contended that the said 15. As regards the ground taken with respect to non receipt of the OTS respect of the said properties was much less than the price fetched in the participate in the auction and the price which they were willing to offer in participated in the auction. However the fact remains that they did not aforesaid properties. If the petitioners so desired they could have Signed By:ARUNAKANWARSigning Date:31.10.202117:32:28Signature Not Verified

High Court issues stringent directions on oxygen supply, ICU beds, medicines and Remdesivir injections: Karnataka High Court

The Court agrees to have issued stringent directions from time to time against the State Government and the agencies and the instrumentalities of the State but also appreciates the efforts of all the instrumentalities of the State including BBMP, the doctors, nurses, and paramedical workers who are rendering valuable services to the society at large. It is widely known that in comparison to the legislature and the executive, what the judiciary can deliver in the realm of socio-economic rights is limited but the court addressed all issues concerning the shortage of instruments for specialized treatment required for COVID-19. In light of the worsened situation due to the Pandemic, this remarkable judicial order was passed by the Karnataka High Court in MOHAMMED ARIF JAMEEL V UNION OF INDIA [W.P.NO.6435/2020 AND OTHER CONNECTED MATTERS] by Honourable Chief Justice Abhay Shreeniwas Oka and Honourable Justice Aravind Kumar. This writ petition was filed considering the manner in which the surge of COVID-19 positive cases has continued and there is a paucity of all essentials related to healthcare; namely, oxygen beds, ICU beds, medicines, etc. Thus, the petitioner demanded a relief vide a judicial order from the High court. The High Court in this writ petition adopted a stricter stance and reminded the State and Central Governments as well as their agencies and instrumentalities, their obligations as specified under the Constitution. The HC asserted that as per the ratio of Devika Biswas Vs. Union of India And Others (2016) 10 SCC 726 and Bandhua Mukti Morcha Vs Union of India & Others (1984) 3 SCC 161, “right to health is an integral part under Article 21 of the Constitution of India and protection afforded by Article 21 of the Constitution of India is a protection to the health and strength of the workers, men, and women.” Therefore, it is the obligation of all the authorities to make the best possible efforts to provide medical treatment to all those who are infected with COVID-19 since they are dealing with the fundamental right of the citizens under Article 21 of Right to Life. Coronavirus Pandemic posed an extraordinary situation and such a disease requires specialized treatment whereas the availability of ICU beds, medicines and oxygen is a requirement in every disease. However, there has been only a marginal increase in ICU beds which is not any major relief to the patients since the figure of COVID-19 positive cases in the City has taken a sudden jump and it has crossed 22,000. It was stated by the learned counsel from Central Government the Army and Air Force will go out of the way to assist the civic administration by creating a large number of beds with oxygen and the concerned State Government shall take immediate steps.   In light of these submissions and contentions, Division Bench observed that “State Government will have to be in the state of preparedness by making an estimate of beds which may be required in the near future in Bengaluru and in all other major cities of the State. Unless the State Government prepares the estimate of the requirement of the beds in various categories, it may not be possible to provide effective relief to the patients of COVID-19.”   Therefore, the HC directed “the State Government to place on record, the steps taken to prepare a broad estimation of the number of beds required in near future and the steps taken to enhance the intake capacity of all the COVID-19 hospitals. Also, HC issued directions to State to set up helpdesks outside all the hospitals in the City of Bengaluru which are COVID hospitals and these helpdesks will also deal with the grievances of the citizens regarding the non-availability of beds.” Division Bench also heard about the issue of availability of Remdesivir drug and it was stated by the State Government that the orders for the supply of Remdesivir medicine are being enrouted only through the State Government and it is the State Government which decides the quantity of supply for each hospital. The issue raised was the restricted supply to private hospitals and it was contended that there has to be a rational criterion for this purpose which will stand the test of Article 14 of the Constitution of India. In this regard, HC directed the State Government “to make an estimate of the quantum of Remdesivir vials required in public hospitals in the State as well as for 50% beds reserved in private hospitals and submit a requisition to the Central Government accordingly. Also, the Central Government was directed to consider the requisition of the State Government for increase in the allocation to the State of Karnataka within three days.” Considering the availability of medical oxygen, it was pointed out that there is a cap of 802 metric tonnes per day. Thus, the Central and State Government were directed to “the State Government to immediately submit a representation to the concerned authority of the Central Government setting out the projected requirement of oxygen per day for at least 7 more days from tomorrow. We direct the Government of India to take an immediate decision on the requisition which may be submitted by the State Government.” For dealing with the issue of food security for the weaker sections of the society and the issue of relief to the workers the State was required to give urgent attention and plan out concrete steps, which they propose to take for helping the weaker sections of the society by providing them ration, etc. The response of the State shall be filed on the next date. In course of the hearing another alarming issue was raised where concern was expressed that even though no hospitalization was advised, there are many COVID-19 patients who are getting admitted into hospitals and therefore, the deserving patients are not getting beds. In this regard, the court considered the possibility of improper home isolation facilities being the reason for such excessive need for hospitalization and directed the State Government and BBMP to “consider creating more and more COVID Centres for those patients who do not require hospitalization. BBMP shall activate its Ward Level offices and ensure that those who do not require hospitalization but do not have proper isolation facilities at their homes, are shifted to the COVID Centres.”

1 CJ & AKJ: through video conferencing) W.P.No.6435 2020 and connected matters Before we go into the details it is necessary for the benefit of the State and Central Governments as well as for all the agencies and instrumentalities of the State to remind them of their obligations under the Constitution. In the case of DEVIKA BISWAS vs. UNION OF INDIA AND OTHERS1 the Apex Court has reiterated that right to life under Article 21 of the Constitution of India encompasses into it the right to live a dignified and meaningful life which will include right to health. The Apex Court has reiterated that right to health is an integral part under Article 21 of the Constitution of India. 2. Way back in the year 1984 in the case of BANDHUA MUKTI MORCHA VS UNION OF INDIA & OTHERS2 the Apex Court has held that protection afforded by Article 21 of the Constitution of India is a protection to the health and strength of the workers men and women. The same principles have been reiterated by 110 SCC 726 23 SCC 161 2 the Apex Court in the case of CONSUMER EDUCATION & RESEARCH CENTRE AND OTHERS vs. UNION OF INDIA & OTHERS3. RIGHT TO HEALTH UNDER ARTICLE 21 OF THE CONSTITUTION OF INDIA Today we are dealing with the extraordinary situation created by the second wave of COVID 19. Those who are infected with COVID 19 are looking upon the State and its agencies and instrumentalities to provide them the best possible medical treatment and best possible health care. COVID 19 is such a disease which requires specialised treatment. Therefore it is necessary for us to remind the State Government the Central Government and all the agencies and instrumentalities of the State that as right to health is an integral part of Article 21 of the Constitution of India it is the obligation all the authorities to make best possible efforts to provide medical treatment to all those who are infected with COVID 19. Let all the authorities remember that ultimately they are dealing with the fundamental right of the citizens under Article 21 of right to life. 33 SCC 42 3 AVAILABILITY OF COVID 19 BEDS Now we turn to the issue of availability of the beds. learned counsel appearing the Bruhat Bengaluru Mahanagara Palike has stated that in the City of Bengaluru after 27th April 2021 the bed capacity has been increased by adding beds as under: General beds ii) HDU beds ICU with ventilator 329 21 29 This marginal increase in two days may not be of any major relief to the patients. He states that today at 9.30 a.m the availability of beds in all the categories in the city of Bengaluru was as under: HDU beds ICU with ventilator 14 30 This is to be considered in the context of the fact that yesterday the figure of COVID 19 positive cases in the City has taken a sudden jump and it has crossed 22 000. The learned Standing Counsel appearing for the Central Government states that the South Western Railways is in 4 a position to provide approximately 300 beds in Bengaluru Mysuru and Hubballi. He states that the beds can be made available in railway coaches and these beds have facility of oxygen. As far as the City of Bengaluru is concerned we direct BBMP and the State Government to take immediate steps to contact the officers of the South Western Railways and take over all the beds which can be made available by the Railways in the City of Bengaluru. Similarly the State Government or the concerned Authority under the directions of the State Government shall take immediate steps to take over the beds available with Railways at Mysuru and Hubbali. As regards the availability of beds with the Army and Air Force in the City of Bengaluru the learned Standing Counsel appearing for the Central Government states that the beds which are available in the City are occupied by the families of the Army and Air Force personnel and they are not in a position to provide extra beds. There is already a letter addressed by the Additional Chief Secretary to the Health and Family Welfare Department of the State Government to the Air Vice Marshal requesting him to make available beds for COVID 19 patients. 5 In the situations created by the disasters the Army Air Force and Navy have always responded and rendered valuable help to the civic administration. The situation in Bengaluru is very critical. We therefore direct the Senior Officers of BBMP including Chief Commissioner and Senior Officers of the State Government to immediately hold a meeting with the officers of the Army and Air Force in the City. We hope and trust that the Army and Air Force will go out of the way to assist the civic administration by creating large number of beds with oxygen. As regards the bed strength in those districts where there are more than 5000 active COVID 19 cases the State Government has placed the figures on record. The State Government has also stated in the written submissions that within a span of 14 months the availability of beds in these districts has substantially increased. At this stage we must note the principles laid down in the Disaster Management Act 2005and 18(2)(h) will show that 6 all the authorities under the said Act of 2005 are under an obligation to be in the state of preparedness to deal with the disaster situation. In the context of the figures mentioned by the State Government in paragraph 16 of the written submissions filed today the State Government will have to be in the state of preparedness by making an estimate of beds which may be required in the near future in Bengaluru and in all other major cities of the State. Unless the State Government prepares the estimate of the requirement of the beds in various categories it may not be possible to provide effective relief to the patients of COVID 19. We therefore direct the State Government to place on record on or before the next date the steps taken to prepare a broad estimation of the number of beds required in near future and the steps taken to enhance the intake capacity of all the COVID 19 hospitals. 11. Dr.Prasanna H.M. the President of Private Hospitals and Nursing Homes Associationof Karnataka is present online. He states that within 24 hours a portal will be launched by the said organisation displaying the data of various categories 7 of beds available in all the categories including 50% quota reserved for the State Government. He states that instructions will be given to display the availability of the beds at conspicuous places including the entry points of the private hospitals in terms of the directions issued by this Court. He also states that instructions will be issued to all the hospitals to ensure that Remdesivir drug is prescribed only to those patients who need the same immediately. We take on record the aforesaid 12. We have already issued directions to set up helpdesks outside all the hospitals in the City of Bengaluru which are COVID hospitals. The State Government shall immediately report implementation of all the said directions as stated earlier. The helpdesks will also deal with the grievances of the citizens regarding the non availability of beds. AVAILABILITY OF REMDESIVIR 13. Now coming to the issue of availability of Remdesivir drug firstly the learned Advocate General and the learned Additional Government Advocate stated that there is a national 8 quota of allocation of Remdesivir vials. The quota for the State of Karnataka is of 1 22 000 vials for the period between 21st April to 30th April 2021. Dr.Prasanna makes a submission that the State Government will need at least 10 000 vials of Remdesivir per day in the city of Bengaluru in the present day situation. 14. As regards the supply of Remdesivir medicine to the patients admitted on beds reserved for private hospitals the State Government has stated that the orders for the supply of Remdesivir medicine are being enrouted only through the State Government and it is the State Government which decides the quantity of supply for each hospital. The learned Additional Government Advocate states that whenever such requests come from the private hospitals the State Government is not permitting placing of orders for the entire quantity claimed by the private hospitals. The quantity in the orders is restricted. The State Government must place on record the criteria applied for restricting the demands made by the private hospitals. There has to be a rational criteria for this purpose which will stand the test of Article 14 of the Constitution of India. 9 15. As regards the supply of Remdesivir medicine to patients admitted in public hospitals and the patients admitted in private hospitals in 50% quota of the State Government factual statements have been made in paragraph 14 of the written submissions. We may add here that Dr.Prasanna stated that as far as the supply of Remdesivir medicine to the patients who are admitted on 50% public quota of beds is concerned 90% of the requirement is being met by the State Government. 16. Paragraph 14 records the details of the orders placed for Remdesivir drug. We direct the State Government to make an estimate of the quantum of Remdesivir vials required in public hospitals in the State as well as for 50% beds reserved in private hospitals and submit a requisition to the Central Government accordingly. We direct the State Government to submit a representation for increasing the outer limit of the allocation fixed by the Central Government within two days from today. We direct the Central Government to immediately consider the requisition of the State Government for increase in the allocation to the State of Karnataka. Considering the seriousness of the situation in the State of Karnataka we direct the Central Government to take a 10 decision on the requisition submitted by the State Government within three days from the date of receipt of the requisition. 17. The learned Advocate General as well as the learned Additional Government Advocate stated that Remdesivir medicine is not available in the open market and for Government hospitals and 50% quota of Government beds in private hospitals the State Government is procuring the same through the Karnataka State Medical Supplies Corporation Limiteddated 27th April 2021. The report incorporates the excellent work done by the Committee of which two retired Hon ble Judges of this Court are a part. The learned Advocate General assures the Court that the Hon ble retired Judges and other members of the Committee as well as the Secretary of KSLSA will be invited to attend the meetings. We make it clear that when the recommendations made from time to time by the Monitoring Committee set up by KSLSA are forwarded to the learned Advocate General and all other stake holders the same shall be looked into by all the concerned authorities. In fact the learned Advocate General stated that some of the suggestions already made are most welcome which will be looked into. 15 23. Before we part this order we must record a clarification. We have issued stringent directions from time to time against the State Government and the agencies and the instrumentalities of the State. While we do so we must clarify that there are several Government officials the officials attached to various agencies and the instrumentalities of the State including BBMP the doctors nurses and paramedical workers who are rendering valuable services to the society at large which needs to appreciated by all. While we are passing various directions in the context of Article 21 of Constitution of India we must record our appreciation to the efforts made by all the stakeholders in the right direction. In our orders with emphasis we have referred to the situation in the city of Bengaluru and have issued directions. We make it clear that directions issued by the Court in relation to the city of Bengaluru will have to be implemented in its true letter and spirit even in the other districts where there are large number of COVID positive cases. 16 25. We direct that these petitions shall be listed on 5th May 2021 at 11.00 a.m. Sd CHIEF JUSTICE Sd JUDGE vgh AHB DR

In a Mandamus appeal, interference is usually warranted only when palpable infirmities or perversities are noticed: High Court of Meghalaya

In an IntraCourt Mandamus appeal, interference is usually warranted only when palpable infirmities or perversities are noticed as held by the Hon’ble High Court of Meghalaya after considering the respective submissions made by the learned advocates for the parties and upon perusing the impugned judgment and order passed by the learned Single Judge. It was held through the learned bench of Hon’ble Mr. Justice Biswanath Somadder, Chief Justice, and Hon’ble Mr. Justice W. Diengdoh in the case of Biolin Kurbah Vs. Hindustan Petroleum Corporation Ltd. & Anr [WA No.11/2021] on 01.10.2021. The instant writ appeal arose in respect of a judgment and order dated 9th December 2019, passed by a learned Single Judge in WP (C) No.466 of 2018. A plain reading of the impugned judgment and order reveals that the learned Single Judge heard out the matter extensively after an exchange of affidavits as observed by the Hon’ble High Court. The learned advocate representing the appellant (being the writ petitioner) essentially reiterated the submissions made before the learned Single Judge. He also took the court through the relevant documents including the letter of the Hindustan Petroleum Corporation Limited (HPCL) dated 12th January 2017, addressed to the appellant/writ petitioner, and her reply dated 21st January 2017. On the other hand, the learned advocate representing HPCL has also taken the court through various documents including HPCL‟s letter dated 29th March 2017, whereby, the appellant/writ petitioner was categorically informed regarding her letter dated 21st January 2017, wherein she had mentioned that the plot offered by her had a frontage of 125 meters, which was not matching with the frontage of the plot as given in her original application, sketch map as well as the lease deed. After considering the respective submissions made by the learned advocates for the parties and upon perusing the impugned judgment and order passed by the learned Single Judge dated 9th December 2019, the court stated that “All the points which have been raised before us have been meticulously considered by the learned Single Judge and have been extensively dealt with in the impugned judgment and order. In an IntraCourt Mandamus appeal, interference is usually warranted only when palpable infirmities or perversities are noticed. On a plain reading of the impugned judgment and order, we do not notice any such infirmity or perversity. Rather, we find that judgment and order is supported with cogent and justifiable reasons. There is no doubt – in the fact of the instant case – that the appellant/writ petitioner, by her representation dated 21st January 2017, was essentially seeking to redefine the original land dimensions and the same cannot come within the meaning of permitted rectification or an additional document. The learned Single Judge has even taken note of this fact, as also the fact that the appellant/writ petitioner, having participated in the evaluation conducted by a Land Evaluation Committee (LEC), had not raised any objection to its finding and as such it cannot be held that the concerned authority had acted unreasonably or arbitrarily in rejecting the application of the appellant/writ petitioner.”

Serial No.08 Regular List WA No.11 2021 HIGH COURT OF MEGHALAYA AT SHILLONG Date of Order: 01.10.2021 Biolin Kurbah Vs. Hindustan Petroleum Corporation Ltd. & anr Hon’ble Mr. Justice Biswanath Somadder Chief Justice Hon’ble Mr. Justice W. Diengdoh Judge For the Petitioner Appellant(s) Mr. K. Khan Sr.Adv For the Respondent(s) i) Whether approved for reporting in Law journals etc.: Mr. H.L. Shangreiso Sr.Adv with Ms. P. Biswakarma Adv for R 1 Mr. L. Lyngdoh Adv for R 2 ii) Whether approved for publication in press: JUDGMENT:(Oral) The instant writ appeal arises in respect of a judgment and order dated 9th December 2019 passed by a learned Single Judge in WP No.466 of 2018 on 5th November 2014 had put up an advertisement in the Local Dailies for appointment of Regular Rural Retail Outlet Dealerships in East Khasi Hills District Meghalaya. The writ petitioner accordingly had applied for the same and submitted the particulars which the respondents however found wanting and by letter dated 24th October 2016 the writ petitioner was requested to make some corrections in the documents which had been submitted earlier. The pleaded case of the writ petitioner is that even after submission of the corrected documents the respondent vide letter dated 12th January 2017 rejected the application of the writ petitioner on the ground that the writ petitioner‟s candidature was not found to be eligible for allotment of the Dealership as the land offered did not meet the National Highway norms. The writ petitioner thereafter against the said rejection had filed a representation on 21st January 2017 before the respondent No. 1 but the same was also rejected for reasons stated therein. Being aggrieved the writ petitioner assailed the impugned decision of the respondent No. 1 by filing a writ petition. A plain reading of the impugned judgment and order reveals that the learned Single Judge heard out the matter extensively after exchange of affidavits. After considering all aspects of the matter the learned Single Judge came to the following conclusion: “13. From the materials it is seen that the petitioner had preferred an appeal before the respondent No. 1 on 21.01.2017 and at Para 2 3 and 4 of the said appeal submitted that the plot had a frontage of 125 meter and distance of 17 meters from the 3.5 meters road from the edge of the frontage and projected therein that with the new permutation and combination of the measurements of the same location the same would come within the norms as stipulated by the Ministry of Road Transport and Highways. It is to be noted that this redefinition was not as per the submitted application wherein it was clearly stated that the frontage was 100 meters. The respondent No. 1 by letter dated 29.3.2017 rejected the said appeal for reconsideration citing the non compliance of Dealers Selection Guidelines 2014. 14. Another pertinent fact which is noted by this Court is the letter in which the petitioner has taken to be the foundation for her case which had allowed her to correct and file additional documents is dated 24.10.2016. The Land Evaluation Committee report dated 27.12.2016 which is subsequent to the said letter was based on an evaluation which was conducted in the presence of the petitioner and duly signed on that day itself by her which showed the frontage and size of land the same as had been submitted earlier in the application. The said report also indicated that the land was unsuitable as it did not meet the NHAI norms. The shifting stand of the petitioner therefore does not convince this Court as to the genuineness of her claim or that the respondent No. 1 arbitrarily rejected her application even after rectification. 15. As aforementioned the allotment of Retail Outlets is to be as per the stated guidelines coupled with the prescribed norms of NHAI. In the instant case firstly the contention of the petitioner that she had been allowed to submit additional documents with regard to the offered plot does not seem to be a valid ground inasmuch as the submission as far as it concerned the location was only limited to „the location name mentioned in the advocate‟s letter‟. The guidelines as given in Note „d‟ to Clause „L‟ has specifically stipulated that rectified or additional documents would be accepted only if they are pertaining to the information provided in the application form. The petitioner by her representation seeking to redefine the dimensions will not come within the meaning of the permitted rectification or an additional document. Further the petitioner having participated in the Evaluation conducted by the LEC and not having raised any objections as to the findings that too the same which was conducted on 27.12.2016 much after the letter dated 24.10.2016 had been communicated to the petitioner it cannot be held that the respondent No. 1 had acted unreasonably or arbitrarily in rejecting the petitioner‟s application. 16. The judgment so placed by learned counsel for the respondent No. 2 though more of persuasive value is relevant as the judgment was rendered in more or less similar facts in which the Bombay High Court had also taken into consideration the prescribed guidelines for allotment of Retail Outlets. 17. For the foregoing facts and circumstances there being no infirmity in the selection process this writ petition is accordingly 18. No order as to costs.” Before us the learned advocate representing the appellantessentially reiterated the submissions made before the learned Single Judge. He also took us through the relevant documents including the letter of the Hindustan Petroleum Corporation Limited HPCL) dated 12th January 2017 addressed to the appellant writ petitioner and her reply dated 21st January 2017. On the other hand the learned advocate representing HPCL has also taken us through various documents including HPCL‟s letter dated 29th March 2017 whereby the appellant writ petitioner was categorically informed regarding her letter dated 21st January 2017 wherein she had mentioned that the plot offered by her had a frontage of 125 meters which was not matching with the frontage of the plot as given in her original application sketch map as well as the lease deed. In the said letter dated 29th March 2017 the HPCL has further specifically stated as follows: “In this regard please note that no change in offered land dimension is Learned advocate representing HPCL has also taken us to the format of Land Evaluation conducted by a Land Evaluation Committee which had found the land to be not suitable. Learned advocate representing the HPCL has also referred to the typed copy of the original application signed by the appellant writ petitioner on 27th December 2016 which provides for the layout sketch of the land offered by her with the following declaration: “I hereby confirm that the above mentioned details of the plot offered by me are correct and site has been inspected by the Company Officials as mentioned below I also understand that in case any of the details mentioned above are found incorrect or the site is found unsuitable by the Corporation for any reason whatsoever then I would have no claim on the dealership of this location.” According to the learned advocate representing HPCL the letter written by the appellant writ petitioner dated 21st January 2017 tantamounts to effecting a change in the land dimension originally offered which is not permissible. After considering the respective submissions made by the learned advocates for the parties and upon perusing the impugned judgment and order passed by the learned Single Judge dated 9th December 2019 we are of the view that all the points which have been raised before us have been meticulously considered by the learned Single Judge and have been extensively dealt with in the impugned judgment and order. In an Intra Court Mandamus appeal interference is usually warranted only when palpable infirmities or perversities are noticed. On a plain reading of the impugned judgment and order we do not notice any such infirmity or perversity. Rather we find that the judgment and order is supported with cogent and justifiable reasons. There is no doubt in the fact of the instant case that the appellant writ petitioner by her representation dated 21st January 2017 was essentially seeking to redefine the original land dimensions and the same cannot come within the meaning of permitted rectification or an additional document. The learned Single Judge has even taken note of this fact as also the fact that the appellant writ petitioner having participated in the evaluation conducted by a Land Evaluation Committeehad not raised any objection to its finding and as such it cannot be held that the concerned authority had acted unreasonably or arbitrarily in rejecting the application of the appellant writ petitioner. For reason stated above we do not find any merit in the instant Intra Court Mandamus appeal which is liable to be dismissed and stands accordingly dismissed along with MCNo.521. W. Diengdoh) Judge Biswanath Somadder) Chief Justice “Lam DR PS”

Trail Court does not need to wait for cross examination to summon persons under Section 319 Cr.P.C: Supreme Court of India

Underlining the scope of Section 319 CrPC it was held that Trial Court  can summon the private respondents in exercise of powers under Section 319 CrPC on the basis of the evidence recorded which includes statements of both  the appellant and other eye witnesses ie on basis of examination in chief. This was decided in the case of Sartaj Singh v State of Haryana & Anr. [CRIMINAL APPEAL NOS. 298­299 OF 2021] in the Supreme Court of India division bench consisting of Hon’ble Justices DY Chandrachud and Hon’ble  Justice M R Shah. The appellant was attacked and severely injured on the basis of his statement,  FIR as lodged for the offenses under Sections 148,149, 341, 323, 324, 307 and 506 IPC against multiple respondents. Charge­-sheet was filed against only four accused, but not against the other private respondents. In his examination in chief appellant named the private respondents and on application before the learned Trial Court under Section 319 CrPC, the court passed order for summoning of the additional accused – private respondents. The High Court on basis of  revision applications preferred by the private respondents quashed and set aside the order passed by the learned Trial Court summoning the additional private respondents based on probability and likelihood of the accused getting convicted whilst appreciating the deposition of the injured eye witness. The Supreme court in order to establish the scope of Section 319 Cr.P.C referred to the the judgement of Hardeep Singh vs State Of Punjab wherein it was held “The power under Section 319 CrPC can be exercised at the stage of completion of examination­ in­ chief and the court does not need to wait till the said evidence is tested on cross­ examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence.”

Feeling aggrieved and dissatisfied with the impugned and set aside the order dated 21.04.2018 passed by the learned accused persons on 27.07.2016. That the appellant got severely namely Palwinder Singh son of Ran Singh Satkar Singh son of Rajwant Singh Rajwant Singh son of Gurcharan Singh and answer the phone call Manjeet Singh son of Mahinder Singh who his side stopped his car next to him and after rolling down his him and gave lathi blows on the head. Thereafter 10­12 persons Singh Narvai Singh son of Tarlok Singh Sukhdev Singh son of Satnam Singh residents of Bandrala were holding lathies and opportunity to kill him”. On saying this Amarjeet Singh who was Rajwant Singh who was armed with Gandasi gave blow from its his knees. He thought that they will kill him today and he was running away upon his firing and while running away some persons gave blows on his right shoulder and due to which his revolver fell down and those assailants ran away and he also in order to save himself came back towards Adarsh School. He entered the Dera of Chhinna situated near the Adarsh School where Bhupinder Singh and his father were present whom he Assandh on his motor cycle and after sometime he became the meantime his family members also reached the Hospital considering the number of injuries the doctor referred him to PGI Chandigarh. That on the basis of the statement of the appellant 149 341 323 324 307 and 506 IPC. That thereafter the DSP Assandh submitted a report wherein it was found that only four persons were involved in the dispute and the respondents herein who were named were found not to be involved. That thereafter the Investigating Officer filed the charge­sheet against other accused but not against the private respondents herein. That thereafter during the trial the appellant herein came to be He named the private respondents herein in his evidence the Medical Officer Civil Hospital was also examined as P.W.2 That thereafter one Bhupinder Singh who took the injured appellant to the hospital was also examined as P.W.7. That thereafter the appellant herein filed an application before the thereafter filed two separate revision petitions against the order passed by the learned Trial Court summoning them before the summoning the private respondents herein was not stayed and summoning of the additional accused­private respondents herein 18 witnesses came to have been examined by the learned Trial Court. That by the impugned judgment and order the High Court has allowed the revision applications preferred by the private respondents herein and has quashed and set aside the order passed by the learned Trial Court summoning the additional Trial Court considering the evidence on record both documentary and oral allowed the application under Section 319 CrPC summoning the private respondents herein to face the trial the order passed by the learned Trial Court summoning the private 3.2 It is submitted that the High Court has failed to appreciate summoning the private respondents herein in exercise of powers 3.3 It is further submitted by the learned Senior Advocate setting aside the order passed by the learned Trial Court appellant is an injured eye witness. It is submitted that the therefore merely because there may be one witness and or statement of only one person is no ground not to summon the merits. It is submitted that the things which are required to be done during the trial have been done by the High Court at this under Section 319 CrPC. It is submitted that the aforesaid is wholly impermissible at the stage of considering an application 3.5 It is further submitted that by the time the High Court has was at the near end. It is submitted that therefore also the High order passed by the learned Trial Court summoning the private 3.6 Shri R. Basant learned Senior Advocate appearing on behalf case of Hardeep Singh v. State of Punjab 3 SCC 92 and State of Punjab 6 SCC 638 in support of his submission the statement made in examination­in­chief constitutes ‘evidence’ and the court exercising powers under Section 319 CrPC post commencement of trial need not wait for evidence against person of framing of charge but short of satisfaction to an extent that evidence if not rebutted may lead to conviction of person sought to 3.7 Making the above submissions and relying upon the above Shri Anil Kaushik learned AAG Haryana has supported the passed by the learned Trial Court summoning the private Learned counsel appearing on behalf of the private case so warrant. It is submitted that it is not to be exercised summoning of additional accused cannot be passed because the first informant or one of the witnesses seeks to implicate other reasons which are required to be assigned by the Trial Court It is submitted that in the present case the appellant herein said statement does not satisfy the test for adjudication for an 5.3 It is further submitted that in the examination in chief the injuries having been suffered by Manjeet Singh. It is submitted story of firing bullets in self defence. It is submitted that the given lathi blows on the head whereas Manjeet Singh Amarjeet Singh Rajwant Singh Narvair Singh and Sukdev Singh were seems to be not at all possible as rightly observed by the High against the private respondents herein was the statement of the appellant herein who in fact is an interested witness in entire grievously hurting and attempting to kill Manjeet Singh in the original and earlier FIR. It is submitted that therefore the High Court observing that there was no new evidence that had come detailed enquiry corroborating the innocence of the respondents Court has erred in exercising its jurisdiction in summoning the answering respondents. It is further submitted that even the light of the cross­examination of the witness Bhupinder Singh it 5.6 Making the above submissions it is prayed to dismiss the Heard learned counsel for the respective parties at length What is under challenge in the present appeals is the impugned and setting aside the order passed by the learned Trial Court 6.1 While considering the rival submissions the law on the scope consider in detail the scope and ambit of the powers of the Magistrate under Section 319 CrPC the object and purpose of incorporating the provisions of Section 319 CrPC. It is further appropriately codified and modified by the legislature under the truth and to ensure that the guilty does not go unpunished. In “8. The constitutional mandate under Articles 20 find out the truth so that an innocent does not get the Constitution and our laws that have led to several decisions whereby innovating methods and progressive of the land as every man is presumed to be innocent been raised against the accused whereby the law to prove himself to be innocent. These competing entire effort therefore is not to allow the real perpetrator very end that the legislature thought of incorporating does not dilute the intention of the statute conferring powers on the court to carry out the abovementioned avowed object and purpose to try the person to the satisfaction of the court as an accomplice in the commission of the offence that is the subject­matter of In the said case the following five questions fell for Whether the word “evidence” used in Section the said provision even on the basis of the statement made in the examination­in­chief of the witness iii) Whether the word “evidence” used in Section 319(1) CrPC has been used in a comprehensive sense can be exercised only if the court is satisfied that the 12. Section 319 CrPC springs out of the condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the 13. It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in 14. The submissions that were raised before us taken us through various provisions of CrPC and the xxx xxx xxx 17. Section 319 CrPC allows the court to proceed against any person who is not an accused in a case be an accused already facing trial. He can either be a person named in Column 2 of the charge­sheet filed under Section 173 CrPC or a person whose name has 18. The legislature cannot be presumed to have imagined all the circumstances and therefore it is the duty is cast upon it to uphold the rule of law and such powers with the courts in our criminal justice at times get away by manipulating the investigating himself absolved even at the stage of investigation or inquiry even though he may be connected with the xxx xxx xxx for also having committed the offence under trial. It is therefore in our opinion while answering the question referred to herein we do not find any conflict so as to delve upon the situation that was dealt with by this Court in Dharam Pal [Dharam Pal v. State of xxx xxx xxx 47. Since after the filing of the charge­sheet the court reaches the stage of inquiry and as soon as the court frames the charges the trial commences and therefore the power under Section 319(1) CrPC can be stage of Sections 207 208 CrPC committal etc. which is only a pre­trial stage intended to put the process into rather than a judicial application of mind. At this pre­ the nature of administrative work rather than judicial CrPC and committing the matter if it is exclusively triable by the Sessions Court. Therefore it would be stage of Sections 207 to 209 CrPC is forbidden by accused needs to be added or subtracted to face trial xxx xxx xxx power under Section 319 CrPC cannot be exercised. In fact this proposition does not seem to have been disturbed by the Constitution Bench in Dharam Pal AIR 2013 SC 3018] . The dispute therein was resolved with procedural delay and was of the opinion that the of Section 319 CrPC is reached to direct a person not 54. In our opinion the stage of inquiry does not contemplate any evidence in its strict legal sense nor the stage for evidence has not yet arrived. The only material that the court has before it is the material person who can be an accused has been erroneously omitted from being arraigned or has been deliberately the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is the legislature has consciously used separate terms the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as 56. There is yet another set of provisions which 319 CrPC i.e. provisions of Sections 200 201 202 etc criminal trial where some sort of evidence in the strict legal sense of Section 3 of the Evidence Act 1872 hereinafter referred to as “the Evidence Act”) comes before the court. There does not seem to be any preclude such evidence as coming before the court in sic or) for the purpose of Section 319 CrPC if so is that there should appear some evidence against a person not proceeded against and the stage of the proceedings is irrelevant. Where the complainant is circumspect in proceeding against several persons but as well Section 319 CrPC acts as an empowering provision enabling the court Magistrate to initiate that persons who ought to have been tried as well are also tried. Therefore there does not appear to be any While answering Questions namely whether the comprehensive sense and includes the evidence collected during investigation or the word “evidence” is limited to the evidence recorded during trial this Court in the aforesaid decision has “58. To answer the questions and to resolve the impediment that is being faced by the trial courts in has to be investigated by examining the circumstances powers. The circumstances that lead to such inference being drawn up by the court for summoning a person come up before the court and are made the basis for summoning such a person as an accomplice to the offence alleged to have been committed. The material should disclose the complicity of the person in the inquiry into or trial of offence. The words as used in Section 319 CrPC indicate that the material has to be “(1) all statements which the court permits or 2) all documents including electronic records xxx xxx xxx 78. It is therefore clear that the word “evidence” in before the court in relation to statements and as Magistrate or the court to decide whether the power xxx xxx xxx 82. This pre­trial stage is a stage where no adjudication on the evidence of the offences involved prosecution is asked to lead evidence and till that is done there is no evidence available in the strict legal sheet. In such situation the court only has the preparatory material that has been placed before the 83. It is therefore not any material that can be utilised rather it is that material after cognizance is inquiry into or trying an offence that the court can before the court who may be on the basis of such material which is not exactly evidence recorded before the court but is a material collected by the court can be accused. This would harmonise such material with the whose complicity in the offence may have either been 84. The word “evidence” therefore has to be and as discussed earlier even at the stage of inquiry as used under Section 319 CrPC. The court therefore should be understood to have the power to proceed any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after 85. In view of the discussion made and the conclusion drawn hereinabove the answer to the aforesaid question posed is that apart from evidence “evidence” used in Section 319(1) CrPC means as arising in 86. The second question referred to herein is in relation to the word “evidence” as used under Section 319 CrPC which leaves no room for doubt that the therefore is evidence which includes the statement during examination­in­chief. In Rakesh6 SCC stage would not arise while exercising the court s is recorded no doubt there being no cross­ would enable the Sessions Court to decide whether powers under Section 319 should be exercised or 87. In Ranjit Singhthis Court held that:13 SCC 608 : 1 Singh v. State of Punjab 16 SCC 785 : 2 SCC 355] seems to have misread the judgment in Mohd. Shafi14 and on complete appreciation of evidence come to the conclusion whether there is a need to proceed under Once examination­in­chief is conducted the statement in the true sense for at best it may be rebuttable. An evidence being rebutted or controverted becomes a matter of consideration relevance and belief which is the 90. As held in Mohd. Shafiand Harbhajan Singh13 SCC in the offence. The prerequisite for the exercise of this power is similar to the prima facie view which the the offence. Therefore no straitjacket formula can and should be laid with respect to conditions precedent for examination­in­chief it can exercise the power under Section 319 CrPC and can proceed against such other the words “such person could be tried” instead a mini­trial at this stage by having examination and it is this mini­trial that would affect the right of the not having any cross­examination at all for in light of including the right to cross­examine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. Therefore even on the can proceed against a person as long as the court is is such that it prima facie necessitates bringing such by cross­examination undoubtedly in itself is an 91. Further in our opinion there does not seem to time of exercise of power under Section 319 CrPC the person sought to be arraigned as an accused is in no way participating in the trial. Even if the cross­ sought to be arraigned as an accused cannot cross­ examine the witness(es) prior to passing of an order under Section 319 CrPC as such a procedure is not contemplated by CrPC. Secondly invariably the State an accused as it would only help the prosecution in is obliterating the role of persons already facing trial 92. Thus in view of the above we hold that power completion of examination­in­chief and the court does in respect of complicity of some other person(s) not While answering Questionnamely what is the degree 105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be is of the opinion that some other person may also be cogent evidence occurs against a person from the court not necessarily tested on the anvil of cross­ examination it requires much stronger evidence than applied is one which is more than prima facie case as satisfaction to an extent that the evidence if goes such satisfaction the court should refrain from CrPC the purpose of providing if “it appears from the evidence that any person not being the accused has words used are not “for which such person could be convicted”. There is therefore no scope for the court While answering Questionnamely in what situations FIR but not charge­sheeted or has been discharged this Court has 112. However there is a great difference with who has been discharged stands on a different footing judicial examination of the material collected during material existing against the person so discharged extraneous considerations. The court has to be exist evidence to proceed against the person so Section 398 CrPC without resorting to the provision of xxx xxx xxx 116. Thus it is evident that power under Section 319 CrPC can be exercised against a person not not been taken or a person who has been discharged However concerning a person who has been discharged under Section 319 CrPC without taking recourse to 6.2 Considering the law laid down by this Court in Hardeep Singh and the observations and findings referred to and the power under Section 319 CrPC even on the basis of the statement made in the examination­in­chief of the witness the accused proposed to be summoned to be tested by cross­ examination anda person not named in the FIR or a person though named in the FIR but has not been charge­sheeted or a evidence collected in the form of statement made in the “35. It needs to be highlighted that when a person is named in the FIR by the complainant but police after investigation finds no role of that particular person and not powerless and at the stage of summoning if the trial as accused even though not named in the charge­sheet it gone the Court is still not powerless by virtue of Section the trial some evidence surfaces against the proposed 6.4 In the case of Rajesh v. State of Haryana6 SCC 368 Singh referred to hereinabove this Court has further observed and held that even in a case where the stage of giving Applying the law laid down by this Court in the aforesaid that learned Trial Court was justified in summoning the private need not wait till his cross­examination. If on the basis of the as accused and summon him to face the trial. At this stage it is required to be noted that right from the beginning the appellant herein injured eye witness who was the first informant disclosed the names of private respondents herein and specifically named that the investigating officer did not find the case against the private respondents herein and therefore they were not charge­ are disclosed. It might be that whatever is stated in the same is bound to be there and ultimately the appellant herein contradictions in the FIR and the statement before the Court Therefore as such the learned Trial Court was justified in directing which has already been investigated into by the concerned DSPs was relied upon by the trial Court to summon which was not sufficient for exercising power and Satkar Singh gave him lathi blows on the head Manjeet Singh Amarjeet Singh Rajwant Singh Narvair Singh Amarjeet Singha and Rajwant Singh gave him stated to fall in the offence under Sections 323 324 326 as mentioned above were giving gandasi and lathies blows on the head Sartaj Singh was bound to have suffered more injuries which would not have left him He seems to have escaped with only such injuries as have invited offence only under Sections 323 324 326 341 read with Section 149 of IPC. Therefore the trial other accused where exaggeration and implication is 8.1 The aforesaid reasons assigned by the High Court are unsustainable in law and on facts. At this stage the High Court was not required to appreciate the deposition of the injured eye not and or whatever is stated by the injured eye witness in his are required to be considered during the trial and while appreciating the entire evidence on record. Therefore the High the trial in exercise of powers under Section 319 CrPC on the the High Court referred to hereinabove are on probability Court is not sustainable in law and on facts and is beyond the 8.2 In view of the above and for the reasons stated above the present appeals succeed. The impugned judgment and order the trial as summoned by the learned Trial Court. The present Dr. Dhananjaya Y. Chandrachud M. R. Shah New Delhi March 15 2021

The appellate court has to consider the entire evidence on record before declining a leave to appeal: High Court of Delhi

If upon careful consideration of the evidentiary basis and reasoning of the trial court, the High Court finds no infirmity as would warrant interference with the judgment of acquittal, leave to appeal should be declined. The appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded and Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and the same was upheld by High Court of Delhi through the learned bench led by Justice Siddharth Mridul in the case of STATE vs. SAMEER @ ALLAUDIN on 18.02.2022. The facts of the case that the medical evidence brought on record of the post-mortem examination of the deceased showed that the death was a consequence of haemorrhagic shock as a result of antemortem injury to chest produced by projectile from a firearm. The firearm, which was stated to be a country-made pistol, was alleged to have been recovered at the instance of the accused. The present petition has been filed by the State (NCT of Delhi) seeking grant of leave to appeal against judgment rendered by the learned Additional Sessions Judge. By way of the impugned judgment, the learned trial court acquitted the accused/respondent of all charges, being of the opinion that the prosecution failed to prove its case against the accused beyond reasonable doubt. The counsel appearing on behalf of the State submitted that the impugned judgment was based on evidence. The evidence, both oral and documentary, that has come on record during the course of the trial shows the accused respondent shot Firoz in a factory, and the latter subsequently died. In the view of facts and circumstances of the case, the Court was inclined to agree with the conclusions reached by the learned trial court in acquitting the respondent as the Court did not find any ground to grant of leave to appeal in the present case. Therefore, the petition seeking leave to appeal was dismissed. The Court observed that, “If upon careful consideration of the evidentiary basis and reasoning of the trial court, the High Court finds no infirmity as would warrant interference with the judgment of acquittal, leave to appeal should be declined. The appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded and Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 18th February 2022 CRL.L.P. 55 2021 Petitioner Through: Mr. Ashish Dutta APP for the State. SAMEER @ ALLAUDIN HON BLE MR. JUSTICE SIDDHARTH MRIDUL HON BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI Respondent J U D G M E N T ANUP JAIRAM BHAMBHANI J. The present petition under section 378(1)(b) read with section 378(3) of the Code of Criminal Procedure 1973has been filed by the State seeking grant of leave to appeal against judgment dated 31.01.2020 rendered by the learned Additional Sessions Judge 03 North East Karkardooma Courts Delhi in SC No. 03 2017 arising from case F.I.R. No. 625 2016 registered under section 302 of the Indian Penal Code 1860 and sections 25 and 27 of the Arms Act 1959at P.S.: Khajuri Khas Delhi. By way of the impugned judgment the learned trial court has been pleased to acquit the accused respondent of all charges being of the opinion that the prosecution had failed to prove its case against the accused beyond reasonable doubt. CRL. L.P.55 2021 2. Mr. Ashish Dutta learned Additional Public Prosecutor appearing on behalf of the State has taken us through the impugned judgment as also through the evidence both oral and documentary that has come on record during the course of the trial. The essential case of the prosecution against the accused respondent was that on 24.08.2016 the accused shot at one Firoz in a factory and the latter subsequently 3. We have carefully examined the evidence on record and we find that : i. The principal ocular witnesses in the case were : PW 9 Arshad Ali alias Lakki PW 10 Sonu Verma PW 16 Amit Kumar and PW 17 Abid Ali. A perusal of the testimony of the said ocular witnesses shows that all of them turned hostile on all critical and material aspects of the allegations against the respondent ii. Also the medical evidence brought on record by PW 1 Dr. Vishwajeet Singh who had conducted the post mortem examination of the deceased was to the effect that death was a consequence of haemorrhagic shock as a result of antemortem injury to chest produced by projectile from a firearm which was sufficient to cause death in the ordinary course. The firearm which was stated to be a country made pistol was alleged to have been recovered at the instance of the accused. However the ballistics expert PW 21 Ms. Babita Gulia said in her report that no opinion could be formed to link the cartridge recovered from the crime scene with the country made pistol CRL. L.P.55 2021 alleged to have been recovered at the instance of the respondent iii. Furthermore it also transpires that while cross examining the post mortem doctor the prosecution did not put the country made pistol to him and the investigating officer also did not seek any subsequent opinion from the doctor as to whether the country made pistol allegedly recovered could have been the weapon of offence. Now before proceeding further we must remind ourselves of the position of law as laid down by the Hon’ble Supreme Court as to grant of leave to appeal against a judgment of acquittal under sections 378 and 386 Cr.P.C. To begin with it would be in context to extract the relevant portions of the said two provisions for ease of reference. Section 378(1)(b) reads as under : “378. Appeal in case of acquittal. Save as otherwise provided in sub sectionand subject to the provisions of sub sectionsand— b) the State Government may in any case direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court or an order of acquittal passed by the Court of Session in revision. 3) No appeal to the High Court under sub section or sub section shall be entertained except with the leave of the High CRL. L.P.55 2021 Section 386Cr.P.C. reads as under : “386. Powers of the Appellate Court.—After perusing such record and hearing the appellant or his pleader if he appears and the Public Prosecutor if he appears and in case of an appeal under section 377 or section 378 the accused if he appears the Appellate Court may if it considers that there is no sufficient ground for interfering dismiss the appeal or may— in an appeal from an order of acquittal reverse such order and direct that further inquiry be made or that the accused be re tried or committed for trial as the case may be or find him guilty and pass sentence on him according to law ” The very fact that under section 378(3) Cr.P.C. the Legislature has mandated that leave of the High Court is required before an appeal against acquittal is entertained on behalf of the State makes it clear that a certain sanctity is to be attached to an accused being acquitted after trial. This additional stage introduced by the Legislature namely the stage requiring the State to obtain leave to appeal against an acquittal is of significance and the court must apply its mind before the State to cross threshold. If upon careful consideration of the evidentiary basis and reasoning of the trial court the High Court finds no infirmity as would warrant interference with the judgment of acquittal leave to appeal should be declined. In Babu vs. State of Kerala 1 the Hon’ble Supreme Court has summarised the position of law for the High Court to interfere with a judgment of acquittal passed by the trial court. This is what the Hon’ble Supreme Court says : 19 SCC 189 CRL. L.P.55 2021 “12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal the appellate court has to consider the entire evidence on record so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact the trial court had failed to take into consideration admissible evidence and or had taken into consideration the evidence brought on record contrary to law. Similarly wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court. “ … the High Court should and will always give proper weight and consideration to such matters asthe views of the trial Judge as to the credibility of the witnesses the presumption of innocence in favour of the accused a presumption certainly not weakened by the fact that he has been acquitted at his trial the right of the accused to the benefit of any doubt and the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. In Sheo Swarup v. King Emperor11 the Privy Council Missir v. State In Chandrappa v. State of Karnataka19 this Court reiterated “15. the legal position as under :“(1) An appellate court has full power to review reappreciate and reconsider the evidence upon which the order of acquittal is The Code of Criminal Procedure 1973 puts no limitation 2) restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion both on questions of fact and of law. Various expressions such as ‘substantial and compelling 3) reasons’ circumstances’ ‘distorted conclusions’ ‘glaring mistakes’ etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature grounds’ CRL. L.P.55 2021 there is double presumption of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own 4) An appellate court however must bear in mind that in case of acquittal accused. Firstly the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly the accused having secured his acquittal the presumption of his innocence is further reinforced reaffirmed and strengthened by the trial court. 5) If two reasonable conclusions are possible on the basis of the evidence on record the appellate court should not disturb the finding of acquittal recorded by the trial court.” favour of “17. In State of Rajasthan v. Naresh 21 the Court again examined the earlier judgments of this Court and laid down that : “20. … an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused.” In Babuthe Hon’ble Supreme Court also referred to an earlier judgment to illustrate circumstances in which the Supreme Court would be justified in interfering with a judgment of acquittal by the High Court which circumstances we think would applied equally when the High Court is assessing whether to interfere with a judgment of acquittal passed by the Trial Court. In paras 18 19 and 20 of Babu supra) the Hon’ble Supreme Court said this : “18. In State of U.P. v. Banne22 this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include :“(i) The High Court s decision is based on totally erroneous view of law by ignoring the settled legal position ii) The High Court s conclusions are contrary to evidence and documents on record CRL. L.P.55 2021 The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice iv) The High Court s judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case v) This Court must always give proper weight and consideration to the findings of the High Court vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.” in Dhanapal v. State23. A similar view has been reiterated by this Court in exceptional cases where “19. Thus the law on the issue can be summarised to the effect there are compelling circumstances and the judgment under appeal is found to be perverse the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided unless there are good reasons for interference. “20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant inadmissible material. The finding may also be said to be perverse if it is “against the weight of evidence” or if the finding so outrageously defies logic as to suffer from the vice of irrationality. 24 Excise and Vide Rajinder Kumar Kindra v. Delhi Admn. Taxation Officer cum Assessing Authority v. Gopi Nath & Sons24 Triveni Rubber & Plastics v. CCE26 Gaya Din v. Hanuman Prasad27 Aruvelu8 and Gamini Bala Koteswara Rao v. State of A.P. Since the present case is one of circumstantial evidence it would also be necessary to consider what the Hon’ble Supreme Court has said in Babu for cases based on circumstantial evidence. Para 23 of Babureads as under : CRL. L.P.55 2021 Birdhichand Sarda v. State “23. In Sharad Maharashtra32 while dealing with circumstantial evidence it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence must be fully established. They are :i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say they should not be explainable on any other hypothesis except that the accused is guilty iii) the circumstances should be of a conclusive nature and iv) they should exclude every possible hypothesis except the one tendency to be proved and v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. U.P. v. Satish33 and Pawan v. State of Uttaranchal34.” A similar view has been reiterated by this Court in State of emphasis supplied) If there is any doubt that guilt must be established with certainty beyond the threshold of reasonable doubt the following observation of the Hon’ble Supreme Court in Shivaji Sahabrao Bobade vs. State of Maharashtra2 may be re read : “19 … Certainly it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between “may be” and “must be” is long and divides vague conjectures from sure conclusions.” 22 SCC 793 CRL. L.P.55 2021 10. Accordingly while considering whether or not leave to appeal is to be granted under section 378(3) Cr.P.C. to impugn a judgment of acquittal this court must assess whether in light of the principles laid down in Babu which principles have also since been reiterated and relied upon by a 3 Judges Bench of the Hon’ble Supreme Court in its recent decision in Anwar Ali vs. State of Himachal Pradesh3 the case warrants grant of such leave paying special attention to the fact that the present case is one of circumstantial evidence. 11. We find that the learned trial court has acquitted the respondent on the basis firstly that all material witnesses in the matter had turned hostile secondly that forensic evidence did not unequivocally connect the country made pistol allegedly recovered at the instance of the accused with the cartridge recovered from the crime scene thirdly that there were material contradictions in the testimonies of the prosecution witnesses on various aspects of recovery of the country made pistol at the instance of the accused and lastly that no public witness was joined in the investigation although from the testimonies of prosecution witnesses it was evident that several public witnesses were present at the crime scene as also at the time of arrest of the accused all of which did not inspire confidence. 12. Having closely examined the evidentiary basis and the reasoning on which the learned trial court has acquitted the respondent we do not find any infirmity muchless any perversity in the conclusions and inferences drawn in the impugned judgment of acquittal. Since upon 310 SCC 166 CRL. L.P.55 2021 examining the evidence on record we are inclined to agree with the conclusions reached by the learned trial court in acquitting the respondent and there is nothing that would warrant reconsideration by us we do not find any ground to grant of leave to appeal in the present case. 13. Accordingly the petition seeking leave to appeal is dismissed. 14. Pending applications if any also stand disposed of. FEBRUARY 18 2022 SIDDHARTH MRIDUL J ANUP JAIRAM BHAMBHANI J CRL. L.P.55 2021

The State of Uttar Pradesh and Ors. V/s Babu Ram Upadhyay

If the prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for, such motive could then be counted as one of the circumstances. The case revolves around Babu Ram who was convicted for murdering 3 members of his family viz-a-vis his father, his mother and his brother and then buried the corpses in his own backyard. Babu Ram is the eldest son of Devi Dayal (father) and Champa Devi (mother).He had two brothers namely Sitaram and Radheshyam and two sisters Tarawati and Chakrawati. Sitaram lived with his parents and his brother Babu Ram and both the sisters lived in their nuptial homes, while Radheshyam lived separately.The prosecution had projected that Babu Ram wanted his share of property but his parents did not accept the demand. And this became a root cause for the murder on 25.11.90 he murdered his father, mother and brother with the help of his other 4 accompalices and buried the corpses in the backyard.Babu Ram told everyone who was worried about his parents and brothers had gone to a temple and haven’t returned since then and when continuously questioned he burst out and showed the spot where he buried corpses.Devi Dayal’s brother filed a FIR in Mohammedpur Police Station and lodged a complaint at 11.30 A.M. The Sessions Judge had convicted him with very harsh punishments under Sec 302 IPC but when the case was dragged to High Court, the hearings of the Sessions Court were reversed.The Sessions Court found the evidence sufficient to convict the appellant however the High Court differed by holding the evidence to be of purely circumstantial nature and held that mere motive cannot be a sufficient case for conviction where evidence is lacking.By the present appeal, the State of Uttar Pradesh challenged the acquittal. ISSUE BEFORE THE COURT:Whether motive can play an important role in cases where evidence is lacking?Whether the evidences had been properly entertained? RATIO OF THE COURTThe evidence in the present case was of highly circumstantial nature since the witnesses PW-1 and PW-5 had gone hostile. However, PW-6 and PW-7 stuck to their confessions that the respondent had confessed killing the three victims along with his four accomplices and had buried the bodies within the compound.The court differed with the High Court and held that the motive can be relied upon especially in cases of circumstantial evidence. No doubt, if the prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for, such motive could then be counted as one of the circumstances.However, it cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the Investigating Officer would have succeeded in knowing it through interrogations that cannot be put in evidence by them due to the ban imposed by law.The court relied on Nathuni Yadav vs. State of Bihar {1998 (9) SCC 238} and State of Himachal Pradesh vs. Jeet Singh {1999 (4 SCC 370}. it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it.The court observed that It is not possible to understand the rationale of the reasoning that if an Investigating Officer did not instruct the person who drew up the site plan to note down certain details that would render the testimony of material witnesses unreliable.When the prosecution succeeds in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution.The court established that an offender who attempts to mislead others need not necessarily arm with a ready foolproof explanation to any cross-question from his listeners. Quite often such offenders might try to advance explanations which strike them momentarily when they are compelled to explain incongruous aspects.When the respondent was tried under Sec. 313 of the Code of Criminal Procedure, he had answered he has stated that the three deceased had gone to the temple to participate in the festival. If that was his own stand even at the last stage, what is the need for the High Court to say that respondent would not have stated so to PW-6 and PW-7?The High Court has chosen to sidestep another incriminating circumstance which is based on Section 27 of the Evidence Act. On the strength of the statement made by the respondent two spades and a bloodstained “sadari” were recovered by the Investigating Officer.Investigating Officer had come to know that the accused had allegedly made extra judicial confession but for the reasons best known to him he did not think it proper to interrogate the accused, who was present throughout on the spot. The statement of DW-1 was also not taken into account.Court in Dudh Nath Pandey vs. State of Uttar Pradesh {1981 (2) SCC 166}held that Defence witnesses are entitled to equal treatment with those of the prosecution; and courts ought to overcome their traditional instinctive disbelief in defence witnesses. It was held that quite often the accused tell lies and the prosecution witnesses also do the same thing. The Hon’ble Supreme Court reversed the decision of the Hon’ble High Court. However, the court did not impose an extreme penalty on the convict, rather it ordered for life imprisonment under Sec 301 of IPC.It was ordered by the Sessions Judge to take the respondent in custody if it isn’t.

Appeal279 281 of 1995 STATE OF U.P Vs DATE OF JUDGMENT: 11 04 2000 K.T. THOMAS & Y.K. SABHARWAL THOMAS J Whoever was the assailant it was a hatrick for him when three persons of the same house were slaughtered in one operation. If respondent was the assailant it was a case of patricide cum matricide cum fratricide. In the realm of homicidal crimes such episodes rarely happen. So the task is heavy for the prosecution to carry conviction of the truth of the allegation against the respondent. That perhaps may be the factor which influenced the High Court in giving benefit of doubt to this respondent Babu Ram the respondent was found by the trial court to have committed such a triple murder of his father mother and brother and buried the corpses inside their own courtyard. The Sessions Judge chose the extreme penalty for him for the offence under Section 302 IPC. But he got a clean chit from the High Court of Allahabad when a Division Bench exonerated him of the offence. The State of U.P. now challenges the order of acquittal in this appeal filed by The victims of the triple slaughter were Devi Dayal and his wife Champa Devi and their son Sitaram. The ill fated parents Devi Dayal and Champa Devi had 5 children 3 sons and 2 daughters. Respondent Babu Ram was the eldest among the children and Sitaram was the second son. The third among the sons Radheshyam was not living with the parents during the tragic night. Two daughters of the parents were Tarawati and Chakrawati. Both of them were married away and they were living with their husbands in their respective nuptial homes. Devi Dayal and Champa Devi were living in their house at Kuri Lawa Barabanki. Babu Ram and his brother Sitaram were also staying with them in the same house. The third son Radheyshyam used to live in the house of his sister Chakrawati. Prosecution case is that Babu Ram was pestering his parents to part with a portion of their landed property in his favour but that demand was not acceded to. He therefore turned against his parents and the wicked thought of eliminating them burgeoned in his mind in due course of time. He nurtured it and it was on 25.11.1990 that he could accomplish his plan According to the prosecution case the respondent did the operation extermination with the help of 4 other companions and killed not only his parents but the other remaining brother who was staying with them. He buried the dead bodies in a pit on the verandah of his house and covered the pit with red sand and straws to make it appear differently The further case of the prosecution is that respondent held out to all others concerned that his parents had gone to a temple with his brother Sitaram on the previous day and that they did not return yet. PW 1 Ram Sahareyexpressed doubt as to the said version of the respondent. The same doubt was expressed by respondent’s sisters and brothers in law also. They therefore confronted the respondent with some inconvenient queries and then the respondent had burst out and made a shrift of the whole episode to his listeners. When he was asked to spot out the place where the corpses were interred he moved to the spot and disinterred all the three dead bodies Devi Dayal’s brotherwent to Mohammedpur Police Station and lodged a complaint at 11.30 A.M. and on its basis an FIR was made. PW 5 Police Officer reached the house without much delay and during interrogation of the respondent he knew about the concealment of two spades of different lengths. They were recovered by the police The case was sought to be built up only on the basis of circumstantial evidence. Prosecution presented the following circumstances against the respondent: Appellant told the neighbours as well as his kith and kin that all the 3 deceased persons had gone to attend the festival in a particular temple. later when he was cornered he told his siblings that the 3 deceased were killed by him in association with 4 other persons and the dead bodies were buried in a pit dug on the verandah. Respondent pointed out the spot wherefrom the dead bodies were disinterred 5) When PW 5 questioned the respondent he told him about concealment of the spades and a bloodstained cloth If the prosecution was able to establish the above circumstances with reliable evidence there is no scope for contending that the cumulative effect of those circumstances would be insufficient to point to the appellant as the culprit. So the task of the prosecution was to establish such circumstances which are enumerated above. No doubt Pw 1 Ram Saharey who lodged the FIR turned hostile and so was PW 2 Ram Sumiran who was cited to speak to an extra judicial confession. So their evidence became unavailable to the prosecution. However PW 6and PW 7and Fawara and another vestment and those articles were recovered by the police on being lead to the spot where they were concealed The Sessions Judge found that the said items of evidence were reliable but the Division Bench of the High Court expressed reservation in acting on the evidence of the same persons. The premier reason advanced by the Division Bench against the prosecution was the failure of the prosecution to make out a strong motive. Learned judges have stated thus on that aspect: "Existence of motive may not be very much material in a case which is based on direct evidence as it may be argued that motive is hidden in the heart and mind of the accused and it would be difficult for the prosecution in every case to extract the said motive and to bring the same on record. However in a case which is based on circumstantial evidence motive plays an important role and absence of motive would go a long way to weaken the prosecution case......... In this case the accused has been charged for committing murders of his parents and younger brother. The only whisper made in this case on behalf of the prosecution was that the accused wanted his father to give his share in the property but his father had told him that he would do so after marriage of his daughters and the younger son. There is however no convincing evidence on this point to hold that the accused wanted partition to which his father did not agree We are unable to concur with the legal proposition adumbrated in the impugned judgment that motive may not be very much material in cases depending on direct evidence whereas motive is material only when the case depends upon circumstantial evidence. There is no legal warrant for making such a hiatus in criminal cases as for the motive for committing the crime. Motive is a relevant factor in all criminal cases whether based on the testimony of eye witnesses or circumstantial evidence. The question in this regard is whether a prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt if the prosecution proves the existence of a motive it would be well and good for it particularly in a case depending on circumstantial evidence for such motive could then be counted as one of the circumstances. However it cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the Investigating Officer would have succeeded in knowing it through interrogations that cannot be put in evidence by them due to the ban imposed by In this context we would reiterate what this court has said about the value of motive evidence and the consequences of prosecution failing to prove it in Nathuni Yadav vs State of Bihar {1998SCC 238} and State of Himachal Pradesh vs. Jeet Singh {1999are flimsy and tenuous. It is apparent that the Division Bench had strained to ferret out some fragile grounds for sidelining such a highly incriminating circumstance. The very approach of the High Court in this regard does not merit approval It is not possible to understand the rationale of the reasoning that if an Investigating Officer did not instruct the person who drew up the site plan to note down certain details that would render the testimony of material Regarding the circumstance that respondent had first tried to mislead the people by saying that the three deceased persons had gone to attend the temple festival the Division Bench commented that as the said version was not believed by others as a probable version the respondent too would not have chosen to give such a version to the An offender who attempts to mislead others need not necessarily arm with a ready foolproof explanation to any cross question from his listeners. Quite often such offenders might try to advance explanations which strike them momentarily when they are compelled to explain incongruous aspects. If the explanation offered by the offender appeared incredible to the listeners that is hardly a ground to conclude that the offender would not have given such explanation. That apart in this case it is pertinent to point out that even when the respondent was examined by the trial court under Section 313 of the Code of Criminal Procedure he has stated that the three deceased had gone to the temple to participate in the festival. If that was his own stand even at the last stage what is the need for the High Court to say that respondent would not have stated so to PW 6 and PW 7 The High Court has chosen to sidestep another incriminating circumstance which is based on Section 27 of the Evidence Act. On the strength of the statement made by the respondent two spades and a bloodstained "sadari" were recovered by the Investigating Officer. The reason advanced by the Division Bench is the following "The Investigating Officer had come to know that the accused had allegedly made extra judicial confession but for the reasons best known to him he did not think it proper to interrogate the accused who was present throughout on the spot. The accused was interrogated after midnight i.e. in the night of 25 26.11.90 and on the basis of this statement the Investigating Officer had recovered the articles mentioned above. This conduct of the Investigating Officer creates grave doubt regarding the genuineness of extra judicial confession as well as the statement leading to the recovery of the articles We are unable to appreciate the said reasoning for dispelling the evidence which otherwise is a circumstance positively inculpating the respondent. An Investigating Officer may have his own reasons for not interrogating the accused as soon as he saw him. Court cannot overlook the realities that Investigating Officer who is otherwise a police officer has to attend to umpteen engagements and even in the investigation of the particular case itself he may have to observe a number of formalities even it is assumed that he had only one case to investigate at that The High Court in reaching a conclusion in favour of the accused took into account the post mortem findings regarding the condition of the stomach of the three deceased According to the prosecution murder took place in the night before 11 P.M. The post mortem reports indicated that the stomachs of the three deceased were empty large and small intestines contained faecal matter and gases According to the High Court these facts would go to indicate that "murder must have taken place in the very early morning and not in the night We bear in mind that prosecution has fixed up the time of murder as 11 P.M. on surmises. Perhaps the actual time of murder would have been later in the night or the last meals would have been consumed by the deceased much earlier By any stretch of imagination on the facts of this case absence of any food materials in the stomach cannot be counted as a circumstance in favour of the assailant Shri N.P. Midha learned counsel for the respondent submitted written submissions over and above the oral arguments addressed by him. One of the contentions adverted to by the learned counsel is pertaining to the evidence of the defence witnessSCC 166}: "Defence witnesses are entitled to equal treatment with those of the prosecution and courts ought to overcome their traditional instinctive disbelief in defence witnesses We may quote the succeeding sentence also from the said decision for the sake of completion of the observations of their Lordships on that score. It is this: "Quite often they tell lies but so do the prosecution witnesses Depositions of witnesses whether they are examined on the prosecution side or defence side or as court witnesses are oral evidence in the case and hence the scrutiny thereof shall be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses In this case DW 1 Moharam Ali claimed to have gone to the house of the deceased on getting information about the murders. He said that he found 3 dead bodies lying there but also saw the police beating the accused. This evidence of DW1 even if believed would not affect the core of the prosecution case or its evidence. Nonetheless we may consider his evidence from other angles In cross examination DW1 said that he did not divulge what he saw to any police officer or to any other officer He further admitted that he was affected by paralysis and could not move from one place to another on his own. The trial court declined to place any reliance on his evidence and the High Court also did not consider it worthy of credence. We also agree that the evidence of DW 1 could not inspire confidence in judicial mind. Hence the said evidence of DW1 does not affect the prosecution case at all The trial court rightly appreciated the circumstances presented by the prosecution through the evidence and found them reliable and on the basis of such circumstances reached the conclusion that the respondent was responsible for the murder of his parents and brother. We have no other option but to interfere with the unmerited acquittal passed by the High Court. Hence we do so and restore the conviction passed by the trial court. However we do not impose the extreme penalty which was chosen by the trial court. Hence the respondent is sentenced to imprisonment for life under Section 302 of the IPC We direct the Sessions Judge Barabanki to take necessary steps to get the respondent back into custody if he is not already in jail

It is extremely risky to convict the accused simply on the testimony of the prosecutrix: Sikkim High Court

It is extremely perilous to convict the accused based only on the prosecutrix’s testimony, especially when the prosecutrix is willing to wait seven months to file the FIR for rape, leaving the accused completely defenceless. If the prosecutrix had filed the complaint quickly after the occurrence, there would have been some supporting evidence, such as a medical report or any other harm on the prosecutrix’s body that would have indicated rape. The judgment was passed by The High Court of Sikkim in the case of Makraj Limboo V. The State of Sikkim [Crl. A. No. 17 of 2019] by a Single Bench consisting of Hon’ble Shri Justice Bhaskar Raj Pradhan. The facts of the case are that the victim lodged the FIR, alleging that she was raped by the appellant due to which she became pregnant and had to abort the baby on his advice. It was alleged that, thereafter, the appellant assured the victim that he would marry her. She further alleged that the appellant had taken her to his house after a month of the miscarriage in the pretext of changing his clothes and raped her again. Fast Track Court, convicted the appellant and sentenced him under section 376(1) of the IPC, 1860 to undergo seven years rigorous imprisonment and a fine of Rs.50,000. It was held that the case of repeatedly committing rape on the same woman under section 376(2)(n) IPC had not been made out. The learned Judge concluded that the appellant had committed rape upon the victim could not be ruled out. The learned Judge also held that the victim had explained the delay in lodging the FIR in detail. Learned Counsel for the appellant, challenges both the findings of the Learned Judge. He submits that even if this court were to believe the version of the victim, it would be seen that the act complained of may have been consensual and the FIR was lodged only because the appellant did not marry the victim. He further, submitted that the delay of five years in lodging the FIR have not been explained sufficiently. Learned Counsel, on the other hand, vociferously supported the judgment of conviction and order on sentence passed by the Learned Judge. He contended that the in FIR, the statement of the victim recorded under section 164 of the Code of Criminal Procedure, 1973 and her deposition in court had elaborately detailed the circumstances of how, when and why, the victim had been raped by the appellant which could not be demolished despite the exhaustive cross-examination. It was, therefore, contended that the judgment of conviction and order on sentence, need not be interfered with.

THE HIGH COURT OF SIKKIM : GANGTOK Criminal Appellate Jurisdiction) SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE Crl. A. No. 119 Makraj Limboo Aged about 45 years Son of Shri Mangal Singh Limboo Resident of Ralap Busty P.O. & P. S. Phodong Mangshila North Sikkim. Presently lodged at Central Prisons Rongyek East Sikkim. State of Sikkim ….. Respondent Appeal under section 374(2) of the Code of Criminal Procedure 1973. Mr. N. Rai Senior Advocatewith Mr. Sushant Subba Advocate and Ms Sushmita Gurung Mr. Yadev Sharma Additional Public Prosecutor for the Date of judgment : 07.06.2021 Bhaskar Raj Pradhan J. On 10.01.2018 the victimlodged the First Information Report(Exhibit 3) at Sadar Police Station Crl. A. No. 119 Makraj Limboo State of Sikkim Gangtok alleging that she was raped by the appellant on 17.08.2013 due to which she became pregnant and had to abort the baby on his advice. It was alleged that thereafter the appellant assured the victim that he would marry her. She further alleged that the appellant had taken her to his house after a month of the miscarriage in the pretext of changing his clothes and raped her again. In Sessions Trial Case No. 15 of 2018 the learned Judge Fast Track Court East and North Sikkim at Gangtok on 30.07.2019 convicted the appellant and sentenced him on 31.07.2019 under section 376(1) of the Indian Penal Code 1860 IPC) to undergo seven years rigorous imprisonment and a fine of Rs.50 000 . It was held that the case of repeatedly committing rape on the same woman under section 376(2)(n) IPC had not been made out. The learned Judge concluded that the appellant having committed rape upon the victim could not be ruled out. The learned Judge also held that the victim had explained the delay in lodging the FIR in detail. Mr. N. Rai learned Senior Counsel for the appellant challenges both the findings of the learned Judge. He further submits that even if this court were to believe the version of the victim it would be seen that the act complained of may have been consensual and the FIR was lodged only because the Crl. A. No. 119 Makraj Limboo State of Sikkim appellant did not marry the victim. According to Mr. N. Rai the delay of five years in lodging the FIR have not been explained He drew the attention of this court to the judgment of the Supreme Court in Sudhansu Sekhar Sahoo vs. State of Orissa1 to impress that the sole testimony of the victim can be the basis for conviction provided it is safe reliable and worthy of acceptance. It was held that the evidence of the prosecution should be cogent and convincing and if there is any supporting material likely to be available then the rule of prudence requires that evidence of the victim may be supported by such corroborative material. Court should be strict and vigilant to protect society from such evils and in the interest of society serious crimes like rape should be effectively investigated. It is equally important that there must be fairness to all sides and in a criminal case a court has to consider the triangulation of interest. It involves taking into account the position of the accused the victim and his or her family and the public. Mr. N. Rai relied upon Ramdas and Others vs. State of Maharashtra2 in which the Supreme Court found that the delay of eight days in lodging the FIR has not been satisfactorily 110 SCC 743 22 SCC 170 Crl. A. No. 119 Makraj Limboo State of Sikkim explained and the appellant therein was given the benefit of doubt. It was held: light of other “24. Counsel for the State submitted that the delay in lodging the first information report in such cases is immaterial. The proposition is too broadly stated to merit acceptance. It is no doubt true that mere delay in lodging the first information report fatal to the case of the is not necessarily prosecution. However the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be facts and circumstances of the case and in a given case the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence the court of fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even the absence of direct explanation there may be circumstances appearing on record which provide a reasonable explanation for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and therefore the witnesses find no time to lodge the report promptly. There may also be cases where on account of fear and threats witnesses may avoid going to the police station immediately. The time of occurrence the distance to the police station mode of conveyance available are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and legal action nor was any such advice available to them. In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family s reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence and the court must consider the delay in the background of the Crl. A. No. 119 Makraj Limboo State of Sikkim facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters and each case must rest on its own facts. It is settled law that however similar the circumstances facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. See Pandurang v. State of Hyderabad1 SCR 1083 : AIR 1955 SC 216] .) Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact.” He also relied upon Vijayan vs. State of Kerala3 in which the Supreme Court had considered a case solely based on the evidence of the prosecutrix. The complaint had been made after seven months after the alleged commission of rape. It was held that in cases where the sole testimony of the prosecutrix is only available it is very dangerous to convict the accused especially when the prosecutrix could venture to wait for seven months for filing the FIR for rape leaving the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix had willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it would be very hazardous to convict on such sole oral testimony. 314 SCC 763 Crl. A. No. 119 Makraj Limboo State of Sikkim Mr. Yadev Sharma learned Additional Public Prosecutor on the other hand vociferously supported the judgment of conviction and order on sentence passed by the learned Judge. It was his contention that the FIRthe statement of the victim recorded under section 164 of the Code of Criminal Procedure 1973(Exhibit 5) and her deposition in court had elaborately detailed the circumstances of how when and why the victim had been raped by the appellant which could not be demolished inspite of the exhaustive cross examination. It was therefore contended that the judgment of conviction and order on sentence need not be interfered. The prosecution has examined 18 witnesses including Shekhar Basnett the Investigating Officer and San Bdr. Limboo DW 2) raising a plea of alibi that on the date of the incident i.e. 17.08.2013 the appellant was in Nepal with them. The learned Judge disbelieved the plea of alibi as it was not cogently proved. The defence plea of alibi would be relevant if the prosecution discharged its burden of proof. The only direct evidence relating to the alleged rape by the appellant is that of the victim. The victim has in her FIR dated 10.01.2018 statement recorded under section 164 Cr.P.C dated 26.02.2018 and her deposition dated 13.02.2019 given a detailed account of what transpired Crl. A. No. 119 Makraj Limboo State of Sikkim with her before during the two incidents of alleged rape and thereafter. According to her deposition she knew the appellant whose wife used to be her teacher in her school. Sometimes in the year 2013 she had met the appellant at a funeral in the village where he had asked her about her future and promised to help her secure a government job. The victim was aware that the appellant had good political contacts and was an influential person. She was aware that he had helped other people of their village to secure government jobs. At the funeral the appellant told her that he would take her to Gangtok to get her a government job. He took her mobile number and told her that he would contact her in a few days regarding the job. The victim deposed that after two three months on 17.08.2013 the appellant called her over the phone and told her that he would take her to Gangtok for the job. Thereafter the victim along with her brother who also had to go to Ramthang North Sikkim went with the appellant in his vehiclewas the learned Judicial Magistrate who recorded the statement of the victim under section 164 Cr.P.C. on 26.02.2018. Bijay Subba was the Officer in Charge of the Police Station who registered the FIR and Shekhar Basnett was the Investigating Officer of the case. Dr. Samrat Singh Bhandari was the Associate Professor in Psychiatry at the Central Referral Hospital Manipal who examined the victim in August 2017 and January 2018 just before she lodged the FIR was the Gynaecologist at the STNM Hospital who examined the victim on 11.01.2018 a day after she lodged the FIR. Amongst the prosecution witnesses who spoke about the settlement talks PW 4 PW 7 and PW 8 were not related to the victim but lived in the same village as that of the victim and the appellant. PW 5 was the victim’s niece and classmate. PW 9 Crl. A. No. 119 Makraj Limboo State of Sikkim was the victim’s uncle. PW 10 was the victim’s elder brother. PW 15 was the victim’s distant relative and PW 16 the victim’s cousin. PW 12 was the appellant’s cousin. Their evidence reflects that the appellant and his wife were also involved in those settlement talks. The evidence suggests that at least two such meetings took place in the victim’s house. It is also apparent that two documents were prepared during these meetings. PW 12 the appellant’s cousin was the scribe of “Lena Dena Patra”and the “Milapatra” deposed that the victim had disclosed about the two incidents of rape to the victim’s family members after her treatment at the Central Referral Hospital in the year 2017 none of them deposed that she had in fact disclosed to them about the rape on two occasions in the year 2013. PW 9 the victim’s uncle deposed the appellant having admitted about the physical relationship he had with the victim and promising to marry her only. Even the victim’s brother did not depose that the victim had disclosed about the two incidents of rape. In fact he admitted that even in his statement to the police he had not stated that the appellant had raped his sister. PW 15 the victim’s distant relative admitted during cross examination that the victim used to admire the appellant since the time she was studying in Class XI. According to him the victim used to say that she wanted to marry the appellant. He also admitted that initially the family of the victim and the appellant shared a cordial relation. However after the appellant physically assaulted the brother of the victim their relationship strained. The victim’s Crl. A. No. 119 Makraj Limboo State of Sikkim cousin deposed that the victim had confided to PW 5 her relative about the sexual relationship between the victim and the appellant following which the victim had to abort the child. According to PW 4 the victim’s brother told him that the victim was suffering from depression due to the sexual relationship between the appellant and the victim. PW 8 also deposed that he learnt about the physical relationship between them from the family members. According to PW 12 she had heard about the love affair between the two. She also admitted during cross examination that she had gone to the appellant’s house in the year 2017 when he had met with an accident and found the victim along with PW 5 and another girl from their village there. The victim and PW 5 had gone to see the appellant. PW 7 deposed that he had learnt about the affair between the appellant and the victim during the meeting. He also admitted that he had heard few years ago about the altercation between the victim’s brother and the appellant. PW 5 admitted during her cross examination that she and the victim had studied together in Class X in the year 2010. According to her the victim had to drop her Class X examination due to her serious skin infection. She also admitted that the father of the victim was suffering from hypertension and the victim was bearing all the expenses of her parents for the past four five years. PW 8 and PW 9also Crl. A. No. 119 Makraj Limboo State of Sikkim corroborated these facts. The victim’s brother admitted that both their parents remained sick due to old age and the school expenses of their younger sister was borne by the victim as well. He admitted that his brother in law had expired two three years ago. He admitted that the victim had nerve problems for which she had undergone operation. He also admitted that during her school days the victim had skin allergy due to which she had to drop one year from school. PW 5 admitted that the brother in law of the victim had died three four years ago. She also admitted that the victim had become sad due to his death. Dr. Mani Gurung a Gynaecologist at the STNM Hospital examined the victim on 11.01.2018. This was five years after the alleged two incidents of rape. According to Dr. Mani Gurung the victim gave a history of two assaults by the appellant. She gave history of pregnancy and abortion. On local external genital examination he noticed old healed hymenal tear suggesting of blunt force injury of the hymen in the past. However during his cross examination he admitted that injury to the vagina could have been caused due to the impact of some material objects examined the victim on 10.08.2017 for the first time at Central Referral Crl. A. No. 119 Makraj Limboo State of Sikkim Hospital Manipal Tadong. The victim was brought by her family members with the complaint of sleep disturbance reduced interaction with family members irrelevant talks at times and crying spells. She was also making some gestures indicating hallucinatory behaviour. All the symptoms were since the past four to five days. On mental status examination of the patient he found that there was decreased psychomotor activity. There was decrease in rate volume and productivity of speech. Her affect was blunt with decrease intensity and restricted range. They were not able to elicit any disturbance in thought and perception at that time. The victim was provisionally diagnosed with acute transient psychotic disorder schizophrenia like with associated stress. The victim was put on antipsychotic olanzapine. The victim was again brought for review on 08.01.2018. At that time she had improved and had stopped taking her medicine. On mental status examination there were no significant findings except ideas of reference. During his cross examination Dr. Samrat Singh Bhandari accepted that the symptoms he had noticed on the victim was multifactorial and could be a result of bereavement in the family skin allergy family responsibility etc. The FIR was lodged on 10.01.2018 just two days after the victim was reviewed at the Central Referral Hospital. Exhibit 1 was the medical paper prepared by Dr. Samrat Singh Bhandari at the Central Referral Hospital on 08.01.2018 and exhibited by him. Although Crl. A. No. 119 Makraj Limboo State of Sikkim not deposed to by him it is important to note as per Exhibit 1 he had advised the victim to have tablet olanzapine 2.5 mg for two weeks and to follow up after two weeks. The learned Judge may have been correct in concluding that the appellant having committed rape upon the victim could not be ruled out. The victim’s vivid description of the two incidents does lead one to understand that it may have been so. However while it is important to be conscious about the trauma of the victim a victim of alleged sexual assault it is also important to be conscious about the well settled principle of criminal jurisprudence that more serious the offence the stricter the degree of proof. What happened on 17.08.2013 in the confines of the appellant’s room at Development Area and thereafter in his house would be known only to the victim and the appellant. The victim did not report the matter to the police immediately thereafter although she was fairly educated and a woman who wanted to stand on her own feet. The victim has given a detailed account of what happened five years ago in great detail about the two alleged incidents. However her deposition is conspicuously silent about the period thereafter till the year 2017 when she went into depression. There is a serious discrepancy in the FIR and the statement recorded under section 164 Cr.P.C on the one side and the deposition on the other. While she had alleged that in between the two rapes Crl. A. No. 119 Makraj Limboo State of Sikkim she had aborted the child in the statement recorded by the police and the magistrate in her deposition she alleged that she aborted her pregnancy after the second rape. The FIRwas lodged on 10.01.2018 after several deliberations between the victim’s family and the appellant’s well wishers. Although no definite date of the meetings has been given by the prosecution witnesses from the evidence of the victim and her brother it seems these meetings were held after she was discharged from Central Referral Hospital in September 2017 and just before she lodged the FIR on 10.01.2018. The FIR was lodged by the victim too close to the time of her depression when admittedly she had been suffering from transient psychotic disorder and schizophrenia and hallucinating and making irrelevant talks. Although the victim deposed as if she was aware of the meetings and what transpired there PW 4 on being questioned by the learned Judge deposed that she was in fact present during the meeting but was sick and unable to understand what was going on. PW 5 the victim’s niece and classmate also corroborated this fact. PW 10 the victim’s elder brother deposed that the victim was in his house a little above the main house where the meeting was held. According to PW 9 the victim’s uncle who had visited the victim at Central Referral Hospital and thereafter in her house the victim was very weak and frail and not in a normal state. He deposed that during the meeting the victim was bedridden in the next room. Crl. A. No. 119 Makraj Limboo State of Sikkim PW 16 also deposed that the victim was not in a proper state of In the circumstances this court is of the considered view that although the evidence led by the prosecution leads to grave suspicion that the appellant had in fact raped the victim it would not be judiciously prudent to convict the appellant on suspicion alone. None of what the victim deposed have been corroborated even by her family members. The victim s version of rape is not corroborated so is her version of pregnancy and abortion. There is evidence to suggest that the victim had been infatuated by the appellant and had expressed her desire to marry him. Some of the prosecution witnesses have deposed about their love affair. There is evidence to suggest that the victim had herself visited the appellant when he had an accident. The possibility of a relationship gone sour cannot be ruled out. Several of the prosecution witnesses had deposed hearing about their “physical relationship” and “sexual relationship” both of which would not amount to rape. In such circumstances this court is also of the considered view that the appellant must be given the benefit of doubt. The judgment of conviction dated 30.07.2019 and the order on sentence dated 31.07.2019 are set aside. He shall be released forthwith if not required in any other case. Fine if any Crl. A. No. 119 Makraj Limboo State of Sikkim deposited by him in terms of the impugned order on sentence shall be refunded to him. The appeal is allowed. Crl. A. No. 119 stands disposed of as also the pending Interlocutory Application. Copy of this judgment be sent to the learned trial court for information and records be returned forthwith. Bhaskar Raj Pradhan ) Approved for reporting: Yes No Yes No

V. Krishnamurthy Vs M/S Kasthuri& Sons

“In cases where the agent is personally liable, a person dealing with him may hold either him or his principal or both of them liable” The material averments made in the plaint are that the plaintiff is a publisher of the well-known English Daily, The Hindu and other publications like Frontline, Business Line, Sportstar etc. During course of its business, the plaintiff has to obtain advertisements for its publication. The defendant has been granted advertisement rights in connection with advertisement of VII South Asian Federation Games, 1995 by the Government of Tamil Nadu in its Letter No.5187-A/Advt/96-1 dated 20-02-1996.In pursuance of the said order, the defendant has issued release orders to the plaintiff on various dates for publication of certain advertisements and accordingly, the plaintiff has published the same. As per the agreement between the plaintiff and defendant, the defendant has been given a credit period of sixty days from the date of publication to pay the publication charges. If the defendant fails to pay charges within sixty days, he is liable to pay interest at 24%.The defendant contrary to the agreement has neglected to pay publication charges to the plaintiff. The amount of Rs.46,31,237.75p(Rupees Forty Six lakhs thirty one thousand two hundred thirty seven and seventy five paise only)is due from the defendant.The plaintiff has repeatedly issued reminders to the defendant, but no fruitful action has come out and ultimately, issued a legal notice and even after receipt of the same, the defendant has failed to settle the amount. Under the said circumstances, the present suit has been instituted for the relief sought therein. ISSUE BEFORE THE COURT:Whether the defendant is liable for not fulfilling the criteria of the agreement? RATIO OF THE COURT:Section 230 of Indian contract act is agent cannot personally enforce, nor be bound by, contracts on behalf of principal. – In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them. A mere perusal of the said section would go to show that if any contract is made by an agent on behalf of his principal, the agent cannot be made liable.To controvert the contentions put forth on the side of the appellant/defendant, the learned counsel appearing for the respondent/plaintiff has befittingly contended that the plaintiff has made advertisements only on the basis of release orders given by the defendant and therefore, the defendant is personally liable to pay the amount mentioned in the judgment and decree passed by the learned Single Judge. Under the said circumstances, the argument put forth on the side of the appellant/defendant is liable to be rejected.Section 233 of the Indian Contract Act, 1872 is Right of person dealing with agent personally liable In cases where the agent is personally liable, a person dealing with him may hold either him or his principal or both of them liable. A plain reading of the said section would clearly indicate that if contract is made where an agent is personally liable, the agent or principal or both liable to pay the amount, in question.The court observed the relationship between principal and agent in the context of section 182,230,233 of the Indian contract act ,1872 and held that the entire plaint proceeds on the basis of Exs-P3 and P4 series. Exs-P3 and P4 series are nothing but release orders and the same have been issued by the defendant to the plaintiff. Only on that basis, the advertisements, in question, have been published by the plaintiff. Ex-P5 series are nothing but reminder issued by the plaintiff to the defendant. Ex-P6 series are the letters from the defendant where the defendant has acknowledged the amount due from the plaintiff.The court also stated that it is easily discernible that a contract has been created in between the plaintiff and defendant with regard to publication of advertisements. Since the defendant itself has issued release orders to the plaintiff, the defendant is legally liable to pay the amount mentioned in the judgment and decree. The main contention put forth on the side of the appellant/defendant is that since the State Government has not been impleaded as one of the defendants in the present suit, the same is bad for non-joinder of necessary parties.Considering Exs-P3 and P4 series, this Court is of the definite view that impleadment of the State Government is totally unwarranted and further Section 230 of the Indian Contract Act, 1872 is not at all applicable to the facts and circumstances of this case.DECISION HELD BY COURT:At last the court stated that it is clear that the argument put forth on the side of the appellant/defendant is sans merit, whereas the argument put forth on the side of the respondent/ plaintiff is really having acceptable force.The learned Single Judge after considering the overall evidence available on record has rightly decreed the suit to the extent mentioned supra and this Court has not found any infirmity or illegality in the judgment and decree passed by the learned Single Judge and altogether, the present Original Side Appeal deserves to be dismissed. This Original Side Appeal is dismissed with costs.

IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 06 09 2016 Pronouncement Date: 19 09 2016 The Hon ble Mr.Justice A.SELVAM The Hon ble Mr. Justice P.KALAIYARASAN O.S.A.No.3608 Mr. V. Krishnamurthy Sole Proprietor & Chief Executive M s. Meena Advertisers 142 Eldams Road Teynampet Chennai 18 M s. Kasthuri & Sons Ltd. No.859 & 860 Anna Salai Chennai 600 002 rep. by its Joint Managing Director Mr. N. Murali Original Side Appeal preferred under Clause 15 of Letters Patent read with Order XXXVI Rule 1 of Original Side Rules against the order of this Court dated 22 08 2007 made in C.S.No.5298 For Appellant : Mr. G. Rajagopalan Senior Counsel for M s.G.R. Associates For Respondent : Mr.M.S. Murali for M s. R and P Partners JUDGMENT OF THE COURT WAS DELIVERED BY A.SELVAM J Challenge in this Original Side Appeal is to the judgment and decree dated 22 08 2007 made in C.S.No.527 of 1998 by the learned Single Judge of this Court 2. The respondent herein as plaintiff has instituted C.S.No.527 of 1998 on the file of this Court praying to pass a money decree to the tune of Rs.72 61 780.75pwherein the present appellant has been shown as sole defendant The material averments made in the plaint are that the plaintiff is a publisher of the well known English Daily “The Hindu” and other publications like Frontline Business Line Sportstar etc. During course of its business the plaintiff has to obtain advertisements for its publication. The defendant has been granted advertisement rights in connection with advertisement of VII South Asian Federation Games 1995 by the Government of Tamil Nadu in its Letter No.5187 A Advt 96 1 dated 20 02 1996. In pursuance of the said order the defendant has issued release orders to the plaintiff on various dates for publication of certain advertisements and accordingly the plaintiff has published the same. As per the agreement between the plaintiff and defendant the defendant has been given a credit period of sixty days from the date of publication to pay the publication charges. If the defendant fails to pay charges within sixty days he is liable to pay interest at 24%. The defendant contrary to the agreement has neglected to pay publication charges to the plaintiff. The amount of Rs.46 31 237.75p(Rupees Forty Six lakhs thirty one thousand two hundred thirty seven and seventy five paise only)is due from the defendant. The plaintiff has repeatedly issued reminders to the defendant but no fruitful action has come out and ultimately issued a legal notice and even after receipt of the same the defendant has failed to settle the amount. Under the said circumstances the present suit has been instituted for the relief sought therein In the written statement filed on the side of the defendant it is averred that at the outset the present suit is bad for non joinder of necessary party since the plaintiff has failed to implead the Government of Tamil Nadu. The Government of Tamil Nadu has failed to release the amount due to the defendant. Under the said circumstances the defendant is not able to pay the due amount to the plaintiff. The plaintiff is fully aware of the same. The defendant has filed a Writ Petition W.P.No.52597 against the Government of Tamil Nadu. Against the order passed therein Writ Appeal W.A.No.6697 has been filed and the same is pending and there is no merit in the suit and the same deserves to be dismissed. On the basis of the divergent pleadings raised on either side the learned Single Judge has framed necessary issues and after analysing both the oral and documentary evidence has decreed the suit to an extent of Rs.42 38 877.77p(Rupees Forty Two lakhs Thirty Eight thousand Eight hundred Seventy seven and seventy seven paise only). The judgment and decree passed by the learned Single Judge are being challenged in the present Original Side Appeal by the defendant The learned Senior Counsel appearing for the appellant defendant has contended to the effect that as per Ex P2 Government of Tamil Nadu has passed its order and there is no privity of contract between the plaintiff and defendant in respect of making advertisements and the Government of Tamil Nadu is liable to pay the amount due to the plaintiff since the plaintiff has failed to implead the Government of Tamil Nadu the present suit is bad for non joinder of necessary party and the learned Single Judge has failed to consider the same and therefore the judgment and decree passed by the learned Single Judge are liable to be set aside. In support of the contentions put forth on the side of the appellant defendant the decision rendered in A.S.No.446 of 2011 dated 23 08 2016(M s. Inter Asia Impex Vs. M s. Freightscan Global Logistics Pvt. Ltd.by the Division Bench of this Court is relied upon wherein this Court has dealt with Section 230 of the Indian Contract Act 1872. Section 230 of the Indian Contract Act 1872 reads as follows “230. Agent cannot personally enforce nor be bound by contracts on behalf of principal. In the absence of any contract to that effect an agent cannot personally enforce contracts entered into by him on behalf of his principal nor is he personally bound by them.” A mere perusal of the said section would go to show that if any contract is made by an agent on behalf of his principal the agent cannot be made liable To controvert the contentions put forth on the side of the appellant defendant the learned counsel appearing for the respondent plaintiff has befittingly contended that the plaintiff has made advertisements only on the basis of release orders given by the defendant and therefore the defendant is personally liable to pay the amount mentioned in the judgment and decree passed by the learned Single Judge. Under the said circumstances the argument put forth on the side of the appellant defendant is liable to be rejected In support of the contention put forth on the side of the appellant defendant Section 233 of the Indian Contract Act 1872 is relied upon and the same reads as follows “233. Right of person dealing with agent personally liable In cases where the agent is personally liable a person dealing with him may hold either him or his principal or both of them liable.” A plain reading of the said section would clearly indicate that if contract is made where an agent is personally liable the agent or principal or both liable to pay the amount in question In the instant case the entire plaint proceeds on the basis of Exs P3 and P4 series. Exs P3 and P4 series are nothing but release orders and the same have been issued by the defendant to the plaintiff. Only on that basis the advertisements in question have been published by the plaintiff. Ex P5 series are nothing but reminder issued by the plaintiff to the defendant. Ex P6 series are the letters from the defendant where the defendant has acknowledged the amount due from the plaintiff From the Exhibits referred to supra it is easily discernible that a contract has been created in between the plaintiff and defendant with regard to publication of advertisements. Since the defendant itself has issued release orders to the plaintiff the defendant is legally liable to pay the amount mentioned in the judgment and decree. The main contention put forth on the side of the appellant defendant is that since the State Government has not been impleaded as one of the defendants in the present suit the same is bad for non joinder of necessary parties 13. Considering Exs P3 and P4 series this Court is of the definite view that impleadment of the State Government is totally unwarranted and further Section 230 of the Indian Contract Act 1872 is not at all applicable to the facts and circumstances of this case In the light of the discussion made earlier it is clear that the argument put forth on the side of the appellant defendant is sans merit whereas the argument put forth on the side of the respondent plaintiff is really having acceptable force. The learned Single Judge after considering the overall evidence available on record has rightly decreed the suit to the extent mentioned supra and this Court has not found any infirmity or illegality in the judgment and decree passed by the learned Single Judge and altogether the present Original Side Appeal deserves to be dismissed In fine this Original Side Appeal is dismissed with costs. The judgment and decree dated 22 08 2007 passed in C.S.No.5298 by the learned Single Judge are confirmed. Index : Yes No (P.K. J) 19 09 2016 A.SELVAM J and P.KALAIYARASAN J O.S.A.No.3608 08 09 2016

The provision of IPC will not be applicable when there is a special procedure prescribed by law – Jharkhand high court

The provision of IPC will not be applicable when there is a special procedure prescribed by law decided by the -Jharkhand high court  The learned honorable MR. JUSTICE SANJAY KUMAR DWIVEDI in the case of Ashwini Kumar vs. The state of Jharkhand (criminal misellaneous petition No. 1012 of 2021),  on 20.12.2021 The petition was filed for quashing the entire criminal proceeding including the first information report Filed for the offenses punishable under section 304 of the Indian Penal Code for the death of the petitioner’s son by falling in the mine owned by the defendant. the learned Counsel for the petitioners argued that the case could not be proceeded under the provision of IPC as Section 5 of C.R.P.C states that “Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.” . and the allegation made in the FIR the case should not be allowed under section 304 IPC and should be heard undermines act. The court held that the FIR is concerning open cast mines and this attracts the provision of mines act. the mines act has overriding effect in the situation and according to section 79 of mines, no court shall take cognizance of any offense under this Act, unless a complaint thereof has been made within the prescribed period. The court found the FIR not in accordance with law and quashed the entire criminal proceedings in accordance with the case.

Cr.M.P. No. 10121 IN THE HIGH COURT OF JHARKHAND RANCHI Ashwini Kumar aged about 53 years son of Baldeo Sharma resident of House No.18 PTC Road Near SBI Bank Matwari Chowk Hazaribagh PO Hazaribagh PS Hazaribagh District Hazaribagh presently posted as Mines Manager Hindalco Industries Limited Kathuatia Open Cast Coal Mines ….. Petitioner Versus The State of Jharkhand …... Opposite Party CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner : Mr. Indrajit Sinha Advocate For the State : Mrs. Niki Sinha Advocate 5 20.12.2021 This petition has been filed for quashing of the entire criminal proceeding including the First Information Report in connection with Pandwa P.S. Case No.321 dated 30.04.2021 for the offences punishable under section 304 of the Indian Penal Code now pending in the court of learned Chief Judicial Magistrate Palamau at Daltonganj. On the limited statement of the informant the said FIR was registered stating therein that: The case of the informant in nutshell is that one Birmani Saw has given a statement before Pandwa Police at Pandwa Police Station stating inter alia that he is residing nearby at Kathuatia Open Cast Coal Mines of Hindalco Industries Limited where there is open mine in which water logging has been found. It is further alleged that inspite of several request the said water logging has not been cleared by the Management of Hindalco Industries Limited. On 30.04.2021 at about 08:30 a.m his son Aman Kumar Saw aged about 16 years went for natural call and due to slippery he fell down in the water logging of mine and later on died. 3. Mr. Indrajit Sinha the learned counsel appearing on behalf of the petitioner submits that petitioner is the mines agent of Kathuatia Open Cast Coal Mines of Hindalco Industries Limited. He further submits that the petitioner cannot be held liable to vicarious liability in the F.I.R. He further submits that Hindalco Industries Limitedis situated in the village Kathautia and presently there are four pits i.e. (b) and is not operational which is situated near Village Bagwanwa. He submits that since the mines is Open Cast Mine the local people residing nearby village are indulged in illegal mining of coal by the local people. He further submits that M s Hindalco Industries Limited had erected the fencing wire caution board and CCTV camera which has been thrown out for the purpose of illegal mining of coal by local people. He submits that in view of the allegations made in the F.I.R. no case under section 304 IPC is made out so far the petitioner is concerned. He further submits that if any action is required that is under the Mines Act as there is special provision for penalty and sentence. He refers to section 5 of the Cr.P.C and submits that this section is crystal clear on the point of any special procedure prescribed by any such law. He further submits that it is well settled that when there is a Special Act the provisions of the I.P.C will not be applicable. He relied in the case of “Hare Kant Jha v. The State of Jharkhand and Another” 2014 SCC Online Jhar 1560 and refers to paragraph no.8 of the said judgment which is as under: “8. Having heard counsels for both the sides and upon going through the FIR I find that there is allegation in the FIR that the accident had taken place in the mines as unauthorized persons were committing theft of coal in the mines. Accordingly even if allegations in the FIR are accepted in entirety the offence if any made out against the petitioner relates to contravention of the provisions of the Mines Act specially Sections 23 70 72 72 C of the Mines Act which relate to the accident in the mines causing loss of life. Section 79 of the Mines Act clearly lays down that no Court shall take cognizance of any offence under this Act unless complaint thereof is made by the competent authority within the prescribed period. Section 75 of the Act clearly lays down the persons who are authorized to make the complaint for the offence under the 4. He further relied in the case of “Sharat Babu Digumarti v. Government2 SCC 18 and refers to paragraph nos.31 32 and 37 of the said judgment which are as under: it has the provisions “31. Having noted to be recapitulated that Section 67 clearly stipulates punishment for publishing transmitting obscene materials in electronic form. The said provision read with Sections 67 A and 67 B is a complete code relating to the offences that are covered under the IT Act. Section 79 as has been interpreted is an exemption provision conferring protection to the individuals. However the said protection has been expanded in the dictum of Shreya Singhal and we concur with the same. 32. Section 81 of the IT Act also specifically provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. All provisions will have their play and significance if the alleged offence pertains to offence of electronic record. It has to be borne in mind that IT Act is a special enactment. It has special provisions. Section 292 IPC makes offence sale of obscene books etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated. We are inclined to think so as it is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent. This is the mandate behind Section 81 of the IT Act. The additional protection granted by the IT Act would apply. 37. The aforesaid passage clearly shows that if legislative intendment is discernible that a latter enactment shall prevail the same is to be interpreted in accord with the said intention. We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender he gets out of the net of IPC and in this case Section 292. It is apt to note here that electronic forms of transmission are covered by the IT Act which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form it covers the offence under Section 292 IPC.” 5. He further relied in the case of “A.K.Sen Gupta @ Alok Kumar Sen v. The State of Jharkhand” 2002 Cr.LJ 2272. Paragraph no.7 of the said judgment is as under: 7. Police had assumed jurisdiction on the ground of loss of life and bodily injury to persons and a number of persons might have lost life but when the loss of life notwithstanding the number of lives is due to an accident occurring due to non compliance of certain rules and regulations of the Act or the rules or the regulation made therein then all the offences notwithstanding the loss of life will be covered by various lives but for recklessness and negligence there sections of the Act and Rules and Regulations for which punishment has been prescribed under Section 72 of the Act. Mining operations are always hazardous and risky for life and serious bodily injuries to the employees and officers are always there and because of the nature of the work itself and the hazard ingrained therein if any loss of life occurs it does not mean that any person in fact had any intention to cause the death of the persons who ost their lives in courseof operation in which they had been engaged in. Thus necessary ingredients for an offence under Section 299 IPC and punishable under Section 304 IPC will be wanting in such cases and similarly the recklessness and negligence will remain as the cause of the loss punishment prescribed in the law 72 C itself. In this connection the reporteddecision of this Court in Cr. Misc. Nos. 4050 1997R and 4108 1997R has been referred to by the petitioner. In those cases similar situation was there and the Court had quashed the proceedings alter discussing all the aspects of the matter and agreeing with those arguments I also find that when the law is enshrined under Section 72 C of the Mines Act itself talks not of life but prescribes a punishment under that very section then in that circumstances for loss of life no separate prosecution can be there. In view of this I find merit in this application and consequently the FIR in Jharia P.S. Case No. 49 2001 pending in the Court of learned Chief Judicial Magistrate.Dhanbad is quashed so far the petitioner is concerned. This application is allowed. Mrs. Niki Sinha the learned counsel appearing on behalf of the respondent State submits the case has been rightly instituted and she further submits that the case is not fit to be interfered by this Court. 7. On perusal of the judgment in the case of “Sharat Babu Digumarti v. Governmentit transpires at its conclusion that the High Court has fallen into error that though the charge has not been made out under section 67 of the IT Act yet the appellant could be proceeded under Section 292 IPC. There is no doubt that when a special legislation has been enacted having special provisions in a specific cause of action the same would prevail over the general law. The F.I.R seems to be related with Kathautia Mines which is open cast mines which attract the penal provision under sections 23 70 72 and 72(C) of the Mines Act. The Mines Act held overriding effect of the I.P.C Section 79 of the Mines Act says that no court shall take cognizance of any offence under this Act unless complaint thereof has been made within the prescribed period. accordance with law. 9. In the light of Section 79 also this F.I.R. is not in In view of the above facts of the present case that the petitioner could not have been prosecuted under the I.P.C moreover in his individual capacity as the offence has been committed by the 10. As a cumulative effect of the above discussion the instant petition is allowed. The entire criminal proceeding the First Information Report in connection with Pandwa P.S. Case No.36 of 2021 dated 30.04.2021 pending in court of learned Chief Judicial Magistrate Palamau at Daltonganj is hereby quashed. 12. Cr.M.P.No.10121 stands allowed and disposed of. SI

Owner to be held vicariously liable for the negligence on the part of his driver : JAMMU AND KASHMIR HIGH COURT

If the owner has given charge of his vehicle to a duly licensed driver and the said driver, without express or implied knowledge consent of the owner, puts an unauthorized person in charge of the vehicle resulting in an accident, it would amount to negligence on the part of the licensed driver appointed by the owner and for this act of negligence, the owner will become vicariously liable. This was held in the judgment passed by a single judge bench comprising of HON’BLE MR. JUSTICE SANJAY DHAR,, in the matter United India Insurance Company Ltd v. Mst. Hanifa and others [IA No. 07/2009 [556/2009]], dealt with an issue where the petitioner filed a petition seeking setting an the Award dated 23.04.2009 passed by the Motor Accidents Claims Tribunal, Srinagar, whereby the Tribunal has awarded a sum of ₹5,03,000/- in favour of the claimants and against the respondents. Out of the awarded sum, an amount of ₹10,000/- each has been made payable by the driver and conductor of the offending vehicle, whereas the balance amount has been made payable by the insurance company. It is also provided that the awarded sum shall carry interest @ 6% per annum from the date of institution of the claim petition till realization of the awarded sum and if the awarded sum is not paid within two months, the interest has been made recoverable @ 9% per annum from the date of the default. Riyaz Ahmed Dar, a driver by profession, had parked his vehicle and was standing by the side of his vehicle. In the meanwhile, a truck that was being driven rashly and negligently by its driver knocked the deceased down, resulting in his death. The claimants happen to be the mother and siblings of the deceased. In the claim petition, compensation in the amount of ₹36 Lacs was sought. The insurance company contended that the vehicle in question, at the time of the accident, was being driven by its conductor, who was not authorized to do so and as such, the insurance company is not liable to pay any compensation to the claimants. On account of this, it is urged that there has been breach of policy conditions on the part of the insured and as such, the appellant-insurance company is not liable to indemnify the insured. After hearing both sides, the Hon’ble High Court of Jammu and Kashmir dismissed the petition and held that that the owner of the vehicle is vicariously liable for the accident caused by the conductor of the vehicle, provided the owner had appointed a duly licensed driver to take charge of the vehicle, who in turn allowed the unlicensed conductor to drive the vehicle. It also held that the insurer in such a case cannot escape its liability to indemnify the insured because there is no willful breach of policy condition on the part of the insured inasmuch as the insured himself has not put an unlicensed or unauthorized person incharge of the vehicle.

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Reserved on: 24.06.2020 Pronounced on: 03.07.2020 CMAM No. 170 2009 IA No. 07 2009United India Insurance Company Ltd. Through : Mr. N.A.Beigh Advocate. on Video conferencing from Srinagar) Mst. Hanifa and others. Through : None. Coram: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE The instant appeal is directed against the Award dated 23.04.2009 passed by the Motor Accidents Claims Tribunal Srinagarwhereby the Tribunal has awarded a sum of ₹5 03 000 in favour of the claimants and against the respondents. Out of the awarded sum an amount of ₹10 000 each has been made payable by the driver and conductor of the offending vehicle whereas the balance amount has been made payable by the insurance company. It is also provided that the awarded sum shall carry interest @ 6% per annum from the date of institution of the claim petition till realization of the awarded sum and if the awarded sum is not 2 CMAM No. 170 2009 a w connected IA. paid within two months the interest has been made recoverable @ 9% per annum from the date of the default. The facts that have led to the filing of the claim petition are that on 28.04.2014 the deceased namely Riyaz Ahmed Dar a driver by profession had parked his vehiclebearing Registration No. JK019 3255 near a workshop at Rawalpura Srinagar and was standing by the side of his vehicle. In the meanwhile a truck bearing Registration No. JK01E 5552 that was being driven rashly and negligently by its driver knocked the deceased down resulting in his death. The claimants happen to be the mother and siblings of the deceased. In the claim petition compensation in the amount of ₹36.00 Lacswas sought. Respondent No. 1 in the claim petition happens to be the insurer respondent No. 2 happens to be the owner respondent No.3 happens to be driver whereas respondent No. 4 happens to be the conductor of the offending vehicle. Only respondent No. 1contested the claim petition by filing its objections whereas other respondents were set ex parte. In its reply before the Tribunal the insurance company contended that the vehicle in question at the time of the accident was being driven by its conductorwho was not authorized to do so and as such the insurance company is not liable to pay any compensation to the claimants. On the basis of pleading of the parties the Tribunal in terms of order dated 19.05.2006 framed the following issues: 3 CMAM No. 170 2009 a w connected IA. i) Whether on 28.4.2004 Riyaz Ahmad Dar while standing sumo bearing No.JK0IG 3255 at by his parked mechanical shop near Govt. High School Bye Pass Rawalpora was hit by a truck bearing No. JKOIE 5552 being driven rashly and negligently by respondent No.3 Ab. Latief Khan and causing his death on spot whereas the vehicle belonged to respondent No.3 as its prospective owner In case the issue No. I is proved in affirmative whether the petitioners as the legal heirs of the deceased are entitled to compensation and if so to what extent and from whomiii) Whether the respondent No.1 is not liable to pay the compensation for the reason that the offending vehicle was actually driven by Showkat Ahmad Wani respondent No.4 who not having a driving license Relief. On the basis of the evidence led before the Tribunal the impugned award dated 23.04.2009 came to be passed by the Tribunal whereby compensation in sum of the ₹5 03 000 was awarded in favour of the claimants and the insurer was held liable to pay awarded sum minus ₹20 000 which was made payable by respondents No. 3 and 4 the driver and conductor of the vehicle in equal proportions. Aggrieved of this award the insurance company has come up by way of instant appeal mainly on the ground that the offending vehicle at the time of accident was being driven by its conductor respondent No. 6 herein who was not authorized to drive the vehicle and further he did not possess a driving licence. On account of this it is urged that there has been breach of policy conditions on the part of the insured and as such the appellant insurance company is not liable to indemnify the insured. 4 CMAM No. 170 2009 a w connected IA. I have heard learned counsel for the appellant and the claimants. I have also gone through the grounds of the appeal the impugned award and the record of the Tribunal. As already stated the only ground urged before this Court is that the vehicle in question at the time of the accident was being driven by an unauthorized person who was not holding a driving licence and as such the insurance company is not liable to indemnify the insured. The quantum of compensation awarded by the Tribunal in favour of the claimants is not in dispute and the policy of the insurance is also not in dispute. The finding of the Tribunal that Showkat Ahmad Wani respondent No. 6 herein of the offending vehicle was driving the said vehicle at the time of the accident and that he had been permitted by the driver of the offending vehicle namely Abdul Lateef Khan respondent No. 5 herein to do so is also not in dispute. In the backdrop of the aforesaid admitted position the question arises as to whether the insurer in this case is liable to indemnify the insured given the fact that the licensed driver appointed by the insured had permitted an unauthorized person to take charge of the vehicle as a result of which an accident was caused. The Tribunal has relied upon the judgment of the Allahabad High Court rendered in case titled “Baldeo Raj vs Smt. Deowati And Ors. reported as(1) ACC 390” to support its conclusion that the owner of the vehicle is vicariously liable for the accident caused by the conductor of the vehicle 5 CMAM No. 170 2009 a w connected IA. provided the owner had appointed a duly licensed driver to take charge of the vehicle who in turn allowed the unlicensed conductor to drive the vehicle. The Hon’ble Supreme Court has in a number of cases examined the issue at hand. In “Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan ors. reported as 1987SCC 654” the Hon’ble Supreme Court held that the owner becomes vicariously liable in a case where accident is caused by an unauthorized person when the owner had employed a duly licensed driver and the driver had left the vehicle unattended. The Hon’ble Supreme Court further went on to hold that the exclusion clause in the contract of insurance making the owner absolutely liable irrespective of the circumstances leading to driving by unlicensed driver must be ‘read down’ being in conflict with the main statutory provision. In “Kashiram Yadav & Anr vs Oriental Fire & Gen. Insurance Co. reported as 1989 SCC128” the Hon’ble Supreme Court reiterated the views expressed by it in case of Skandia Insurance Co. Ltd.’s casehad committed a breach of the condition incorporated in the certificate of insurance since the cleaner operated the vehicle on the fatal occasion without driving licence. This Court expressed the view that it is only when the insured himself entrusted the vehicle to a person who does not hold a driving licence he could be said to have committed breach of the condition of the policy. It must be 6 CMAM No. 170 2009 a w connected IA. established by the Insurance Company that the breach is on the part of the insured. Unless the insured is at fault and is guilty of a breach of the condition the insurer cannot escape from the obligation to indemnify the insured. It was also observed that when the insured has done everything within his power inasmuch as he has engaged the licensed driver and has placed the vehicle in his charge with the express or implied mandate to drive himself it cannot be said that the insured is guilty of any breach. We affirm and reiterate the statement of law laid down in the above case. We may also state that without the knowledge of the insured if by driver s acts or omission others meddle with the vehicle and cause an accident the insurer would be liable to indemnify the insured. The insurer in such a case cannot take the defence of a breach of the condition in the certificate of insurance." In “Sohan Lal Passi vs P. Sesh Reddy & Ors. reported as 1996 SCC21” the Hon’ble Supreme Court reiterated and reaffirmed the views expressed by it in case of Skandia Insurance Co. Ltd.’s caseSANJAY DHAR) JUDGE Whether the order speaking: Whether the order is reportable: Yes No

Injuries insufficient to cause death in ordinary course of nature, Life Imprisonment set aside: Supreme Court of India

Liability under the offence of murder does not arise if the injuries inflicted upon the deceased were insufficient in ordinary course of nature to cause death of a person was decided in the case of Mihir Gope Etc. vs. State of Jharkhand [Criminal Appeal No. 22-23 of 2021] presided over by J. N.V. Ramana, J. Surya Kant and J. Aniruddha Bose. In this case, a quarrel arose between the parties over an earthen hut constructed over a land in dispute which resulted in the deaths of two. The First Information Report was registered on the same day in Pindrajora police station, Bokaro district, Jharkhand. Further the Additional Session Judge, Fast Track Court-IV, Bokaro held the two appellants guilty for the murder of the deceased against which a special leave petition was filed by them. The third accused was sent to the Juvenile Justice Board on his plea of Juvenility and the fourth was let off as no allegations of assault were made against her. A medical examination revealed that the injuries caused by the appellants were simple form of lacerated wounds and were insufficient to cause death of a person in ordinary course of nature. The CT scan of one of the deceased did not show any intracerebral hemmorhage or fracture to reason the injuries inflicted upon him to be the cause of his death. The honorable bench contended, “Considering the weapons of assault the appellants were meant to have has used in inflicting such injuries, and the nature of injuries they caused on the deceased, we do not think the two appellants had the intention or knowledge that their acts could have had caused their deaths. We also do not find any evidence of commission of offence under section 341 of the Indian Penal Code, 1860. None of the eyewitnesses has stated in course of their examination that the appellants had wrongfully confined them. In our opinion, however, there is sufficient evidence against the appellants of voluntarily causing hurt by the instruments we have referred to. We have discussed the evidence based on which we come to this conclusion. We hold both the appellants guilty of committing offence under section 324 of the Code.”

…RESPONDENT received in consequence of assaults on them on 20th appellants are two sons of one Manohar Gope with with the members of the deceased victims’ family is specifically related to the construction of a hut. The No.8973 of 2019) and Prabhat Gope No.8974 of 2019). They have been held guilty by the Trial Court for committing offences under Sections 341 307 325 and offence under Section 302 of the Code simple imprisonment for a month in relation to offence under Section 341 of the Code rigorous imprisonment for 5 years for offence under Section 325 of the Code and rigorous imprisonment for 7 years for offence under Section 307 of the Code. The sentences had been directed to run concurrently by the Trial Court Ram Mahto on 20th August 2005 being the date of occurrence of the offence. In the depositions as Jatu Mahto has been referred to as Jadu Jethu Jattu and Indu by different witnesses. We shall however refer shall also be referring to the accused persons as also only. Kasi Ram himself was injured in the assault. He family particularly on Anil Jatu and Kasi Ram was attributed to Manohar in the fardbeyan and the prosecution witnesses have broadly corroborated the the four convicted accused persons sustained the accused persons Usha Deviwas set aside The fardbeyan was recorded at Bokaro General place of occurrence at Obra Mouza from their place of brother Premchand Prabhat and Kailash were supplied with a tangi Devi. Before the assault started Kasi Ram wanted Anil with towel then Manohar assaulted him on head with rod and he became injured”. The name “Indu” as sequence of events narrated by the other eye­witnesses being PW­2 PW­3 PW­4 PW­5 PW­7 and PW­11 this Prosecution evidence was accepted by the Trial Court on the aspect of description of assault by the accused persons which resulted in death of Anil and Jatu and also resulted in injuries to Kasi Ram Premchand and Puranchand. On his plea of juvenility the case of Kailash was separated and sent to the assault by her. Anil had passed away on 20th August 2005 itself at BGH whereas Jatu passed away on the next day i.e. 21st August 2005. The injured persons were initially taken to Chas General Hospital and after described as the referral hospital in course of the In the First Information Report Manohar and his three sons Mihir Prabhat and Kailash were named as accused persons. After investigation charge­sheet was accused persons. Records pertaining to Kailash were sent to the Juvenile Justice Board. All four were convicted and sentenced to imprisonment by the Trial The prosecution examined altogether sixteen witnesses. Seven among them being Puna DeviPuranchand Vijay Kumar Mukteshwar PW­5) DakshineshwarPremchandand leading to shock and cardio respiratory failure. On were found in between pia and dura mater i.e. the and vertebral column). External injury of Anil as per injuries were “fracture of occipital bone with swelling Premchand and found his injuries to be simple in nature caused by hard blunt found in case of Anil a stitched wound on occipital parietal area 4” long. In case of Jatu Dr. Rajak has deposed that he found “1 stitched wound on occipital to hard blunt object by the PW­14. In case of Premchand he referred to the following injuries in his Dr. Narendra Kumar Das was the head of the grievous. Injury of Premchand according to him was simple in nature and possibly caused by a hard and blunt object. So far as injuries of Kasi Ram are concerned Dr. Shishir Kumar Singh Munda and Gulichand Mahto seizure witness of blood­soaked soil. At this stage appeals as prosecution has relied upon other direct the wife of Prabhat Gope. She was presented as a the stick from Manohar’s house. In her deposition however she has stated that the paper on which she had Gope and Shambhu Gope. Both of them deposed as by them that the informant and his brothers had likes of which we have already referred to. When they tried to pull down the tiled hut the defence witnesses The appellants sought to buttress this defence by and PW­15 all medical professionals. They stated in accidental injuries caused by the informant’s side 10. The question in the given context which falls for victims but for that very reason we cannot disbelieve unintentionally inflicted by falling tiles when the members of the victims’ family were dismantling the structure does not inspire confidence. The prosecution witnesses have been consistent and uniform in their version that it was Manohar and his sons who had evidence of the seven prosecution witnesses who have deposed as eyewitnesses being Puna Deviwife of Kasi Ram Puranchand an injured witness Vijay KumarMukteshwarDakshineshwarPremchandand Kasi injured Anil. The seven witnesses are also uniform in saying that Manohar dealt the blows to these three Anil and Jatu to Manohar. At the same time she has whose conviction was set aside by the High Court had supplied an axe to Mihir sawal to Prabhat and a gupti Prabhat had assaulted Anil Jatu Premchand Kailash assaulted Anil with an axe on the back of his head. He also deposed that all the four accused had assaulted Anil Premchand and Jatu. To Mihir he attributed assault by an axe. Vijay Kumar has Jatu Premchand and Puranchand. He also referred to strikes by Manohar on Anil Kasi Ram and Jatu Anil and Jatu with the axe on their heads whereas Puranchand. Dakshineshwar’s narration of the rod. The depositions of the prosecution witnesses thus are not uniform on the aspect of the role of these two appellants in assaulting Anil and Jatu. Usha Devi against whom allegation was of supply of weapons to Mihir Prabhat and Kailash has been acquitted by the But from the depositions of the four medical practitioners injuries of Anil Jatu Kasi Ram and we find from his deposition that he had a fractured bone with lacerated wound. Dr. Shishir Kumar Singh Munda had examined Premchand and found Ram and found two injuries lacerated wound on right day of occurrence at about 11.30 a.m. in the casualty Jatu he found a 3” long stitched wound on the occipital area. As regards injuries of Premchand he observed stated that his CT scan showed multiple intracerebral haemorrhage in the left temporoparietal region with fracture of the left parietal bone. As regards probable cause of the injuries PW­9 stated that injury to Anil substance. Dr. Narendra Kumar Das on the other hand interpreted Jatu’s CT scan in the following “CT scan shows multiple intracelebral hemorrhage in the left lemproperietal region It would be apparent from the evidence of the tangi which are sharp edged weapons. Even if we fact cannot establish involvement of both Mihir and and Jatu so as to implicate them for murder under Section 302 read with Section 34 of the code. The eye apparent inconsistency in the eye witness account in Jatu to Manohar and all his sons. This is a very strike by Mihir on Jatu but he has not implicated transpires from the evidence of medical practitioners number of strikes made by Manohar Mihir and Prabhat cannot rely on the account of assault given by these Prabhat. Barring PW­12 the account of the incident overall impression of the strikes rather than factual evidence of PW­12 who has given specific and think the prosecution has been able to prove beyond reasonable doubt involvement of these two appellants Mihir and Prabhat in delivering the blows to Anil and 15. We also find that though there were assaults by Manohar Mihir and Prabhat prosecution has failed to establish on the basis of evidence that these two appellants shared common intention with Manohar assault on Anil and Jatu which forms the basis of conviction of the appellants under Section 302 of the 16. Relying on a decision of a coordinate Bench Manoj Kumar vs State of Himachal Pradesh 7 SCC offence of the appellants could be brought within exception 4 to Section 300 of the Code and Part II of 17. We accordingly set aside the judgment of conviction of Mihir and Prabhat under Section 302 read with the aforesaid provisions is also set aside. As we find on Kasi Ram and Premchand were simple in nature judgment of the High Court on their conviction and We also set aside the conviction and sentence of these so primarily on the basis of depositions of the three medical experts PW­13 PW­14and PW­15if any stand(s) disposed of.

Father obligated to maintain daughter’s expenses :Delhi High Court

The question whether unmarried daughters have right to get maintained and their expenses payed by their father was decided upon by a division bench of the Delhi High Court consisting of Justice Vipin Sanghi and Justice Jasmeet Singh in this appeal in the matters between Poonam Sethi v. Sanjay Sethi, Mat. App. (FC) 31 of 2021, decided on 7-1-2022.They also clarified the distinction between earning money and ability to maintain oneself with that money. The facts of this case are the appellant is a mother of two daughters and a son, who she has been raising them alone for 11 years with no financial support from their father.The family court ordered the father to pay maintenance to the minor son but did not pass any order to pay for the daughters who already are above the age of  majority.The mother appealed against this order by the family court  filed under Section 28(2) of the Hindu Marriage Act, 1955 read with Section 19(2) of the Family Courts Act, 1984. The counsel for the appellant contended that the mother was aggrieved because the maintainance amount was not allowed to her as well as her daughters. She had been supporting three children for 11 years and paying up for the needs and expenses, and it is the fathers obligation to maintain his wife and unmarried daughters.Since, she had been maintaining the daughters, she was entitled to claim maintenance for herself and her unmarried daughters. The counsel for the respondent contended that the maintenance is specifically for unemployed and dependent daughters.There is no provision in Hindu Marriage Act to obligate him to provide  maintenance to earning daughters and wife. The Delhi High Court clarified that although a person is earning it cannot assumed that the person can maintain themselves with the income.So father cannot deny his responsibility towards his unmarried daughters as it is a legal obligation and absolute in character and arises from the very existence of the relationship between the parties.The daughters who  have attained majority, are also entitled to maintenance amount for their wedding expenditures and hence quantum of maintenance for both were fixed by the court.The court held that “he cannot simply resile from that relationship, and the accompanying legal and moral obligation, and state that he will not take care of them. The father’s duty to maintain his unmarried daughters, including his duty to provide for their marriage is clearly recognized by the law.” The appeal was dismissed with the hope that the mother would further make efforts to bridge the relationship between the father and the children.

Poonam Sethi vs Sanjay Sethi on 7 January 2022 Delhi High Court Poonam Sethi vs Sanjay Sethi on 7 January 2022 $~2 IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: 01.12.2021 % Judgment delivered on: 07.01.2022 + MAT.APP.(F.C.) 31 2021 POONAM SETHI .....Appellant Through: Mr. Bhuvan Mishra Adv. with Appellant in person versus SANJAY SETHI ..... Respondent Through: Mr. Anshul Narayan and Mr. Sourabh Pahwa Advs. with Respondent in person CORAM HON BLE MR. JUSTICE VIPIN SANGHI HON BLE MR. JUSTICEJASMEET SINGH JUDGMENT JASMEET SINGH J 1. The present appeal has been filed under Section 28(2) of the Hindu Marriage Act 1955 read with Section 19of the Family Courts Act 1984 against the judgment and order dated 28.11.2020 passed by the Family Courtin the matter of Poonam Sethi Vs. Sanjay Sethi in HMA No 39 2017. In the impugned judgment the Family Court has allowed the petition filed by the Appellant wife under Section 13(1)(ia) of the Hindu Marriage Act 1955 for dissolution of marriage by a decree of divorce on the ground of cruelty and has Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 dissolved the marriage between the parties However the Appellant is aggrieved by the non grant of maintenance allowance for herself and the two major daughters of the parties 2. The Appellant has filed the present appeal seeking the following substantial the following prayer A) Set aside the Impugned Judgment and Order dated 28th November 2020 passed by the Ld Judge Family CourtTis Hazari Delhi in the matter of "Poonam Sethi v. Sanjay Sethi" bearing No. HMA 39 17to the extent that the same holds that a) the Appellantis not entitled to any maintenancefor herself the Appellantto the extent that the same dismisses the Application for Temporary Injunction dated 30.10.2019 filed by the Appellant Indian Kanoon Poonam Sethi vs Sanjay Sethi on 7 January 2022 B) Grant the consequential relief of Maintenance and Permanent Alimony to the Appellant as prayed for in the Applications filed before the Ld. Family Court C) Pass any such and other order s as this Hon ble Court may deem fit and proper in the facts and circumstances of the case 3. Briefly stating the facts giving rise to filing of the present appeal are as under 4. The Appellant got married to the Respondent on 11.10.1986 as per Hindu rites and ceremonies Since marriage the Appellant was residing with the Respondent at First Floor F 90 Kirti Nagar New Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 Delhi. Out of the wedlock 3 children were born namely SahibaAnanyaand Atharvso that matter of financial reliefs can also be decided together in the end 9. In the cross examination the Respondent admitted to the following facts: 1. That he does consultationfor a livingIndian Kanoon Poonam Sethi vs Sanjay Sethi on 7 January 2022 2. That he has been travelling abroad for work including USA in the year 2016and UAE in 2017where he had done consultations interviews etc.3. That he has been running a company by the name of "Pure Life"5. That he had purchased a Mercedes E 250 in the year 20177. That he has Medical Insurance in Apollo Munich premium payment for which is Rs. 5 00 000 Cross Examination dated 28.02.2019) Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 8. That he also has a Toyota Corolla Car purchased in 20139. That he has been advertising in Hindustan Timesfor his numerology business for which substantial payments to the tune of Rs. 1 Lakh every alternate month has been made10. That he had purchased an Office Space in May 2018 for a sum of Rs. 50 Lacs11. That he has been running a company called "Rudra Kripa since July 201812. That his personal expenses per month are to the tune of Rs 25 000 per month13. That expenses for running his office are to the tune of Rs 35 000 per month14. That credit limit for his Credit Cardis unlimited Indian Kanoon Poonam Sethi vs Sanjay Sethi on 7 January 2022 15. That he has also been selling products online through platforms like Flipkart Snap deal Amazon Shop clues and India mart16. That he is not sure if payments indicated in his bank statements are reflected in his ITR or not Cross Examination dated 21.08.2019 10. On Diwali of 2019 the Appellant visited her matrimonial home at First Floor F 90 Kirti Nagar New Delhi 110015 and found that the property was closed and covered with tarpaulin. When the Appellant asked around she found out that the property was closed for renovation and would be put up for sale. As a result of which the Appellant filed an application for temporary injunction on 30.10.2019 praying for directions restraining the Respondent from disposing off selling encumbering mortgaging or in any way alienating the Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 matrimonial home of the parties i.e. First Floor F 90 Kirti Nagar New Delhi 110015 11. The Appellant on 01.09.2020 also filed an application under Section 25 of the Hindu Marriage Act 1955 so that while deciding the main petition the learned Family Court if decreeing the petition may pronounce upon the permanent alimony at the time of passing the decree 12. It is the case of the Appellant that owing to the Respondent s abdication of duties since the year 2010 the Appellant was under extreme financial burden of having to support the 3 children on her own for such a long period. It was the Appellant s plea that she was entitled to at least a commensurate compensation from the father of the 3 children who ought to be responsible towards the needs of children in consonance with the social standing and income of the Respondent 13. The learned Family Court in the impugned order held: 19.7 Thus it is clear that the provisions of section 20 of the Hindu Adoption and Maintenance Act 1956 cannot be used to expand the provisions of section 26 of the Act. In view of the aforesaid it is considered that the major daughters of the parties are not entitled to maintenance in these proceedings. "19.8 Adverting to the issue of maintenance for the son of the parties their son Master Atharv born on 10.07. 1997 was minor at the time of filing of application dated 19.03.2015 A c c o r d i n g t o t h e p e t i t i o n e r o n t h e e d u c a t i o n o f m i n o r s o n s h e h a d b e e n s p e n d i n g aboutRs.10 000 per month his quarterly fees was Rs.37 000 and in the year 20l5 she had paid 1 3rd of Rs.5 60 000 for his three years film making degree course Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 which comes to Rs.1 86 667 She further stated that the expenditure on his bookstand stationery was Rs.5 000 private tuition wasRs.30 000 per month and medical expenses wasRs.15 000 per month. It can be seen that the copies of receipts for private tuition fees filed by her along with her affidavit areReceipt for Rs.3 72 000 from One Sunil Kaushik @ Rs 12 000 per month for the period May 2012 to November2014 andReceipt for Rs.5 94 000 @ Rs.18 000 per month w.e.f. March 2012 to November 2014 from one Mr Ravi. However she had notified any document with regard to medical Indian Kanoon Poonam Sethi vs Sanjay Sethi on 7 January 2022 expenses incurred on Master Atharv. It is well settled that the date from which maintenance is to be awarded is the date for filing the application for maintenance. In this regard reference can be made to Rajnesh vs. Neha 2020 SCC Online SC 903.Thus it appears that w.e.f. 19.03.2015 till the attainment of majority of minor son Master Atharv the petitioner had spent about Rs.50 000 per month towards the maintenance of her son. The Respondent ought to equally share the said expenses. In this regard reference can be made to Rupali Gupta vs. Rajat Gupta 2016 SCC Online DeL 5009 and Ashutosh Bandhopadhyay vs. Mukta Bandhopadhyay 2018 SCC Online Cal.5100 Thus it is considered that the petitioner is entitled toRs.25 000 per month towards maintenance allowance of her minor son w.e.f .filing of application i.e. 19.03.2015 till he attained the age of majority i.e. 11.07.2015. 19.9 In view of the aforesaid discussion it is held thatthe petitioner is not entitled to any maintenance allowance or permanent alimony for herselfshe is also not entitled to any maintenance allowance for the two major daughters of the parties in these proceedings andthe petitioner is entitled to Rs.25 000 per month towards maintenance allowance for her minor son w.e.f. filing of application i.e. 19.03.2015 till he attained the age of majority i.e. 11.07.2015 Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 Accordingly the Respondent is directed to pay a sum of Rs.25 000 per month towards maintenance allowance of his minor son w.e.f. filing of application 19.03.2015 till he attained the age of majority i.e. 11.07.2015. The said amount be paid directly in the bank account of the petitioner. He is directed to pay the said amount within three months. The application dated19.03.2015 under sections 24 & 26 of the Act application dated20.02.2017 under section 24 of the Act and application dated 01.09.2020u s 25 of the Act moved by the petitioner are disposed off accordingly. In view of the aforesaid discussion and findings application dated30.10.2019 for temporary injunction moved by the petitioner which has otherwise also become infructuous is dismissed."7 SCC 7 wherein the Supreme Court observed that the wife who is maintaining the unmarried major daughter of the parties would be entitled to maintenance for both herself and the major unmarried daughter. He submits the daughters must be treated as dependants under section 21(v) of the Hindu Adoption and Maintenance Act 1956 and as a result are entitled to receive maintenance from their father. The mother has been taking care and looking after all the expenses of the 3 children since the time of separation and the father cannot abdicate from his legal and moral duties 18. The learned counsel for the Appellant further argued that for the marriage of the daughters of the parties the mother cannot alone be responsible and be expected to incur the costs of their 19. While the family court has provided some relief for the then minor son of the parties it failed to consider that as the son turns major he will need to be supported for his daily expenditure and higher educational expenses which the Appellant will have to bear 20. Per contra Mr. Narayan learned counsel for the Respondent has argued that firstly the Appellant wife herein is earning a handsome income as shown by her income affidavits. Secondly the major unmarried daughters of the parties are earning their own independent incomes and thus able to maintain themselves. Thirdly that Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 maintenance does not need to be granted to a major son and as a result this appeal should be dismissed 21. Learned counsel for the Respondent has supported the judgment of the Family Court and has stated that: a) The gross income of the Appellant as disclosed by her is as under: It is pertinent to note that as per the Income Tax Returns filed by the petitioner her gross income for the assessment year 2012 13 was Rs.8 28 153 for the assessment y e a r 2 0 1 3 1 4 i t w a s R s . 1 6 7 6 8 2 4 f o r t h e a s s e s s m e n t y e a r 2 0 1 4 1 5 i t wasRs.20 09 029 for the assessment year 2017 18 it was Rs 9 72 407 for the assessment year 2018 19 it was Rs.11 48 114 and for the assessment year 2019 20 it was Rs. 11 66 770 per annum. As per the Income Tax Returns of the Respondent his gross income for the assessment year 2014 15 was Rs.2 26 865 for the assessment year 2015 16 it was Rs.2 65 520 for the assessment year 2016 17 it was Rs.2 90 390 for the assessment year 2017 18 it was Rs. 3 28 615 for the assessment year 18 19 it wasRs.4 03 279 and for the assessment year 2019 20 it was. Rs.3 31 966 Whereas the gross income of the Respondent is as under: Respondent has claimed a monthly maintenance allowance of Rs.20 000 However as per the Income Tax Returns filed by him his gross annual income for Indian Kanoon Poonam Sethi vs Sanjay Sethi on 7 January 2022 the assessment year 2019 20 was Rs.3 31 966 which comes to Rs.27 663.83 per 22. Hence it was claimed that the Appellant was earning more than 10 times than the Respondent Learned counsel for the Respondent has further submitted that the Appellant was earning crores of rupees as her annual expenditure as disclosed by her was Rs. 82 82 708 .She Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 has not been able to clarify the sources from which she has been able to meet the said expenditure incurred by her. There is gross mismatch between the income earned by her and expenditure stated to have been incurred 23. As far as the legal obligation of the Respondent is concerned it is argued by the learned counsel for the Respondent that all the children are majors and that Section 24 25 and 26 of the Hindu Marriage Act 1955 are not attracted in the facts of the present case. The only statutory provision that could be attracted is Section 20 of the Hindu Adoption and Maintenance Act 1956 which also restricts the maintenance only to the extent of providing the same to unemployed and dependent 24. Section 20 of the Hindu Adoption and Maintenance and Act reads as follows 20. Maintenance of children and aged parents. Subject to the provisions of this section a Hindu is bound during his or her lifetime to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents 2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor 3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter as the case may be is unable to maintain himself or herself out of his or her own earnings or other property. Explanation. In this section "parent" includes a childless step mother Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 25. It was argued by the counsel for the Respondent that in the present case none of the daughters are dependent on the Appellant and even Section 20(3) is not attracted as both are earning independently and maintaining themselves 26. Per Contra the learned counsel for the Appellant wife submits that there is nothing to substantiate this claim of the Respondent that the younger two children of the parties are earning 27. We have heard the learned counsels for the parties and have gone through their submissions Indian Kanoon Poonam Sethi vs Sanjay Sethi on 7 January 2022 28. The first and foremost question which needs to be answered in this appeal is "Whether unmarried daughters who have attained majority and are earning their own income are entitled for maintenance and expenses towards their marriage 29. Firstly we must take note that under Section 20 of the Hindu Adoption and Maintenance Act maintenance will only be paid to children or infirm parents if they are unable to maintain themselves. There is no section which states that the inability to maintain themselvesis equivalent to not earning an income. We must distinguish between the two categories. An individual could be earning an income but still not necessarily be able to maintain herself himself 30. Learned counsel for the Respondent has relied upon the judgments of Chaturbhuj v. Sita Bai 2008) 2 SCC 316 to state 7. Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. In the instant case there is no dispute that the appellant has the Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 requisite means. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It is has to be established that the wife was unable to maintain herself. The appellant has placed material to show that the Respondent wife was earning some income. That is not sufficient to rule out application of Section 125 Cr.P.C. It has to be established that with the amount she earned the Respondent wife was able to maintain herself 8. In an illustrative case where wife was surviving by begging would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 Cr.P.C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan v. Kamla Deviit was observed that the wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr.P.C."16 2014 decided on 28.05.2015) has held "6. Section 26of the HMA empowers the Court to make provisions for maintenance of only minor children and therefore to grant maintenance in favour of the adult child would be beyond the scope of Sections 24 and 26 of the Hindu Marriage Act 1955.Proper legal course in such a situation would be to seek maintenance under Section 20 of the Hindu Adoption and Maintenance Act 1956 and not under Section 24 Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 and 26 of the HMAvs A1992 Mh. LJ. 748 19.7 Thus it is clear that the provisions of section 20 of the Hindu Adoption and Maintenance Act 1956 cannot be used to expand the provisions of section 26 of the Act. In view of the aforesaid it is considered that the major daughters of the parties are not entitled to maintenance in these 32. In Jasbir Kaur Sehgal v. The District Judge Dehradunthe Supreme Court held Indian Kanoon Poonam Sethi vs Sanjay Sethi on 7 January 2022 6. ...............Section 24 of the Act no doubt talks of maintenance of wife during the pendency of the proceedings but this section in our view cannot be read in isolation and cannot be given restricted meaning to hold that it is maintenance of the wife alone and no one else. Since wife is maintaining the eldest unmarried daughter her right to claim maintenance would include her own maintenance and that of her daughter. This fact has to be kept in view while fixing the maintenance pendente lite for the wife Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 8. The wife has no fixed abode of residence She says she is living in a Gurudwara with her eldest daughter for safety. On the other hand husband has sufficient income and a house to him. The wife has not claimed and litigation expenses in this appeal. She is aggrieved only because of the paltry amount of maintenance fixed by the court. No set formula can be laid for fixing the amount of maintenance. It has in the very nature of things to depend on the facts and circumstance of each case. Some scope for leverage can however be always there. The court has to consider the status of the parties their respective needs capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time the amount so fixed cannot be excessive or extortionate. In the circumstances of the present case we fix maintenance pendente lite at the rate of Rs. 5 000 per month payable by Respondent husband to the appellant wife 9. The question then arises as to from which date the wife would be entitled to claim the enhanced amount of maintenance pendente lite. If wife has no source of income it is the obligation of the husband to maintain her and also children of the marriage on the basis of the provision contained in the Hindu Adoption and Maintenance Act 1956. Her right to claim maintenance fructifies on the date of the filing of the petition for divorce under the Act. Having thus fixed the date as the filing of the petition for divorce it is not always that the court has to grant the maintenance from that date The court has discretion Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 in the matter as to from which date maintenance under Section 24 of the Act should be granted. The discretion of the court would depend upon multiple circumstance which are to be kept in view. These could be the time taken to serve the Respondent in the petition the date of filing of the application under Section 24 of the Act conduct of the parties in the proceedings averments made in the application and the reply there to the tendency of the wife to inflate the income out of all proportion and that of the husband to suppress the same and the like. There has to be honesty of purpose for both the parties which unfortunately we find lacking in this case. We are therefore of the opinion that ends of justice would be met if we direct that maintenance pendente lite as fixed by this judgment to be payable from the date of impugned order of the High Court which is October 16 1996. We order accordingly. The impugned judgment of the High Court shall stand modified to that extent. All arrears of maintenance shall be paid within a period of two months from today and then regularly every month."wherein it was stated 29. In the circumstances there is good substance in the submission of Mr. Thakkar that nothing additionally be provided to the Appellant wife when acts of cruelty are alleged against her also and when she is also responsible for the breaking of the marriage. In any case she has been sufficiently provided and has good income therefrom. We have however to note that she is looking after her two daughters. The daughters are treated as "dependents" until they get married under section 21(v) of the Hindu Adoption and Maintenance Act 1956. They are entitled to get their maintenance from their father. Considering the fact that the Appellant has been Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 looking after these two daughters and she will be continuing to look after them hereafter until they get married. In our view that is a "circumstance" which has got to be considered when one decides the permanent alimony to be paid to the Appellant wife. Section 25 of the Hindu Marriage Act provides that a court exercising jurisdiction under the Act at the time of passing of the decree may direct the Respondent to pay the Applicant for her maintenance and support such gross sum or such monthly or periodical sum having regard to the Respondent s own income and other property if any the income and other property of the applicant the conduct of the parties and other circumstances of the case it may seem to the court to be just The court is empowered that such payment may be secured by a charge on the immovable property of the Respondent. In the circumstances of the case we have to note that the Appellant is looking after the two daughters. They have completed their education. They have become graduates in engineering and management respectively. They intend to further prosecute their studies and then get married They do not have any income of their own. The Appellant is undoubtedly spending for their education and will spend on their marriage. It will not be proper to drive the daughters to file an application under the Hindu Adoption and Maintenance Act 1956. In our view the phrase "other circumstances of the case" appearing in section 25 of the Hindu Marriage Act is quite elastic and while passing an order under that section the necessary provision can be appropriately made if the circumstances so 30. The Respondent has been made to make such payment from time to time and Mr. Thakkar has stated that he has been making additional payment for education of her daughters on his own. The fact however remains that the burden has been on the Appellant all throughout. The burden for further Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 education and thereafter marriage is much more. They are daughters of an industrialist who are being looked after by the mother. In the circumstances though we may not provide separately for the Appellant considering these circumstances we deem it just that separate provision should be made for the two daughters along with the Appellant. The provision of such an amount will take care of their future education and marriage. In our view it will be just and appropriate that an amount of Rs. 10 00 000 is provided for each of the daughters......"of the Hindu Adoption and Maintenance Act 1956 a father cannot abdicate his responsibility of looking after his unmarried daughters. A father has a duty and an obligation to maintain his daughters and to take care of their expenses including towards their education and marriage. This obligation is legal and absolute in character and arises from the very existence of the relationship between the parties. Kanya Daan is a solemn and pious obligation of a Hindu Father from which he cannot renege 35. Despite the applications of the Appellant being pending for claiming maintenance for the unmarried daughters the Family Court in the impugned order failed to advert to any of the contentions of the Appellant. The Family Court has not dealt with aspect of applicability of Jasbir Kaur Sehgalin the facts of the present case 36. The Family Court without adverting to the evidence and documents on record in a cryptic manner has held that Section 20 of the Hindu Adoption and Maintenance Act 1956 cannot be used to expand the Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 provisions of Section 26 and hence major daughters of the parties are not entitled to maintenance. This view is clearly not supported by the precedents taken note of hereinabove 37. As regards the minor son the Family Court has granted maintenance at the rate of Rs. 25 000 per month from 19.03.2015 till 11.07.2015 i.e. the date of attaining majority by the son 38. The purpose of Section 24 and 26 is not to equalize the incomes of the parties. We held in Mahima Chaturvedi v Deepak Malhotrathat 8. The Delhi High Court in case titled K.N. v. R.G.(as also been relied upon by the Ld. Family Court) has categorically held that where the spouse is qualified and is actually earning interim maintenance under Section 24 need not be granted. The provision of this section are not meant to equalize the income of the wife with that of the husband but are only to see that when divorce or other matrimonial proceedings are filed either of the party should not suffer because of paucity of source of income and the maintenance is then granted to tieover the litigation expenses and to provide a comfortable life to the spouse. Where however both the spouses are earning and have a good salary merely because there is some salary difference cannot be a reason for seeking maintenance 9. Hence we are clear that the appellant is a well qualified professional and is drawing a salary of 85 000 month which is adequate for a comfortable life. In K.N v. R.G. it has been held that the provision of section 24 are not meant to equalize the income of the spouses but only to see that no spouse should suffer due to paucity of income. The purpose to grant Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 maintenance is to tide over litigation expenses and to provide a comfortable life to the spouse Indian Kanoon Poonam Sethi vs Sanjay Sethi on 7 January 2022 39. The Family Court has held that the Petitioner is herself not entitled to any maintenance allowance or permanent alimony as she was doing well professionally and earning substantial sums of money. As far as the finding vis à vis the Appellant wife is concerned we uphold the judgment of the Family Court and are of the view that there is sufficient material on record as well as the income affidavit of the Appellant which shows her to be engaged in the profession of tarot reading. While her total resources as taken note by the learned Family Court amounted to Rs.67 lacs her income affidavit of the year 2019 2020 shows an income to the tune of Rs. 11 66 770 per 40. However as regards the daughters we are not in agreement with the learned Principal Judge Family Court when it holds that as the daughters were majors on the date of filing the application they were not entitled to any maintenance. The daughters may be of majority age today. However the Respondent is still their father. He cannot simply resile from that relationship and the accompanying legal and moral obligation and state that he will not take care of them. The father s duty to maintain his unmarried daughters including his duty to provide for their marriage is clearly recognized by the law 41. The argument of the learned counsel for the Respondent that the daughters should not receive any maintenance as they have an income cannot be accepted. In this regard Section 20(3) of the Hindu Adoption and Maintenance Act may be seen. It provides for the Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 maintenance of children and aged parents. An unmarried daughter even if employed and earning cannot be assumed to have sufficient resources to meet her matrimonial expenses. In the Indian context the marriage of a son or a daughter would be expected to be performed in keeping with the financial and social status of the parents. It is customary for the parents of the son daughter who is getting married to deploy their resources for the wedding to the best of their financial capacity. This is particularly true when marrying of a daughter as the parents try to ensure that she is well provided for in the matrimonial home when she would begin her new life. In the Indian society the marriage of a daughter is considered of paramount importance from the birth of the child. Parents from the very beginning start saving jewelry and money for the marriage of their daughters 42. It has been held in Ambika v. K. AravindakshanSCC Online Ker 22431 14. In Smt. Sneh Prabha v. Ravinder Kumar : 1995 SuppSCC 440 : AIR 1995 SC 2170 it has been held that even in case of daughters who are grown up and living with mother and maintained by mother who is employed and earning salary they are entitled to get financial assistance from their father at the time of their marriage Even in a case where the unmarried daughter is living with the mother who is getting some income and is being looked after by her she is entitled to claim maintenance from the father also which includes the educational expenses and marriage expenses Merely because the mother is looking after the affairs of the unmarried daughter including performance of marriage it will not Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 exonerate the father from his legal and personal obligation to contribute his share for that purposeKHC 340 Poonam Sethi vs Sanjay Sethi on 7 January 2022 15. Now we come to the question of quantum of the marriage expenses. As per Section 3(b)(ii) of the Act in the case of an unmarried daughter maintenance includes not only the reasonable expenses of marriage but also expenses incident to her marriage. Marriage expenses are of two types :which are directly incurred for marriage andwhich are incurred indirectly or incidentally to the marriage 43. While analyzing the provisions of the Hindu Adoption and Maintenance Act in Kusum v Krishnajiit was observed that 9. The question as to whether plaintiff s suit should completely fail simply because the evidence of borrowing money from these persons is found to be not worthy of credit. We have seen that defendant is admittedly the father of the three daughters whom the plaintiff got married. Every father is under an obligation to maintain his daughters and even to get them married. The obligation to maintain the daughter and get her married is said to be personal in character and arises from the very existence of the relationship. Under the Hindu Law a daughter is entitled to be maintained out of estate of her father even after the death of the father. In the instant case the father is alive and admittedly has source of income from salary and agriculture land. A father who lives separately from his wife therefore cannot escape the liability to maintain his daughters. Here it would be necessary to look into the definition of the word maintenance as given in the Hindu Adoptions and Maintenance Act 1956. The word has been defined as follows Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 maintenance" includes in all cases provision for food clothing residence education and medical attendance and treatment ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her 10. The definition is inclusive. It includes the provision of the reasonable expenses of and incident to marriage of daughter. It is thus clear that father who has deserted his wife and daughters is also liable to make provisions of reasonable expenses for the marriage of daughters. Thus not under the old Hindu Law but under the codified Hindu Law also the father is bound to make such a provision as can be seen from the definition of word maintenance."the Court has 19. But now the question arises what are the reasonable expenses in a marriage and to what extent can a wife or for that matter a daughter force her husband father to Indian Kanoon Poonam Sethi vs Sanjay Sethi on 7 January 2022 meet the expenditure on the marriage of the daughter. It may be noted that affluent people do spend huge amounts of money on building houses and solemnizing weddings in the family. If the Respondent can own a bungalow in Sainik Farm have a major stake in Talwar Hospitality Pvt. Ltd. which owns the earlier said resort and has various other properties he has the capacity and can spend a good amount on his daughter s wedding as well. The Petitioners have given various claims which total up just above Rs. 66 lacs 25. Hence it can safely be said that "reasonable expenditure" in the context of the expenditure on marriage of an unmarried daughter will mean that it is fair and not Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 However it will be difficult to calculate reasonable expenditure by precise mathematical calculations. The Court will have to reach to a sum primarily considering the financial status of the parties. For that purpose the Court also has to make some guess work 26. I have already observed above that the Respondent maintains luxury cars and is a major shareholder in Talwar Hospitality Pvt. Ltd. which runs a luxurious resort in Manali. This fact has not even been disputed by the Respondent. It is also evident from the record that the Respondent has pledged about 1 kg. of gold. to avail credit facility. It can also be presumed that the credit facility must have been obtained by the Respondent in connection with his business 30. Although it is very difficult to say as to what would be the reasonable expenditure on the marriage of a daughter but in case of a father who may have means and in the circumstances of this case the reasonable expenditure of marriage would approximately be Rs. 37 lacs."and Kusum v Krishnajinamely Ashutosh Hans. The payment of Rs.1 37 190 dated 20.02.2018 is also from a client. All payments which have been credited as NEFT MSWIPE are from clients as consultation fees. The payment which has been debited to NACH DE CTDAIMLFIN is towards car EMI for a Mercedes E 250 The payments reflected towards HDFC Kotak MF Franklin Templeton NSE MF ICICI HDFC are towards mutual fund investments. Further the payment debited to New India Assurance is towards the insurance of my Toyota Corolla car which was purchased in 2013. The said car was a pre used one. The payment debited for Apollo Munich for medical insurance for a sum of Rs.5 00 000 . I am not using any other car except for the aforesaid cars. The payment debited to HT Media is for advertisement for my numerology business. The payment debited to M3M Corner Walk is towards the payment for the booking of office spacewe note that a certain amount of guesswork is required for determining the financial status of the Respondent. In view of what has been stated by us hereinabove we direct that an amount of Rs. 35 lakhs be paid towards marriage expenses of the elder daughter namely Sahiba. As Sahiba is earning a certain income she will require a lesser sum than her sister as she herself would also be in a position to contribute to her 60. Further an amount of Rs. 50 lakhs to be paid for the marriage expenses of the younger daughter namely Ananya. As the younger daughter Ananya is not earning any income and is dependent on her parents for the expenses of her marriage that is already scheduled she will require the sum urgently 61. The amount of Rs. 50 lakhs for the younger daughter Ananya must be paid within 1 week from the date of this order and the amounts for the other daughter Sahibato be paid within 6 weeks from the date of passing of this order. The said amount shall be kept by Sahiba in a fixed deposit to be utilized at her wedding 62. Accordingly the present petition is allowed to the extent of granting a lump sum maintenance amount for the marriage expenses of the two daughters as aforesaid Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 63. It is unfortunate that the matrimonial dispute between the parties has also adversely impacted the relationship of the Respondent with his three children. When we interacted with the Respondent in Chamber we observed that he carried within himself some amount of hurt and anger in relation to his daughters. During our interaction he also claimed that he did not receive the respect that he was entitled to as a father. We could observe that his reluctance to provide for his unmarried daughters stemmed from his anger and ego more than anything else 64. The bond between a parent and his child particularly between a father and his daughter is one of the strongest bonds that any two human beings can have. Even when this bond is weakened due to unfortunate past incidents in our view there is nothing to prevent the said bond being restored because deep inside both the daughter and the father are bound to have that natural and inherent Indian Kanoon Poonam Sethi vs Sanjay Sethi on 7 January 2022 love for each other. It only requires the layers of anger hurt and ego to be brushed aside to expose the pure love & affection which a father and his daughter share. We sincerely hope that the Respondent and his daughters would make the required effort to restore their relationship even if their parents have fallen apart. The Respondent should realise that he is the only person whom his daughters can look upto as their father. To have a father and not to be able to talk to him or go to him for advice or financial or moral support and guidance must be very painful for the two daughters. Similarly it would be very depressing for the Respondent to have two daughters and not to be able to spend time with them and receive love care and affection from them. We Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 have no doubt that if the relationship between the parties had not soured the Respondent would have done everything for his daughters and would have dotted on them. We are hopeful that the appellant would also play a positive role in bridging the gap between the Respondent and his daughters who are now grown up and there is no reason for her to come in the way of the relationship of his daughters and their father. We therefore expect that as and when the daughters of the parties get married the Respondent would happily participate in the functions and the appellant the children and other family members would respectfully and gracefully with love & affection welcome him to the functions and facilitate his participation in the functions wholeheartedly. With these words we dispose of the present appeal JASMEET SINGH) JUDGEJUDGE JANUARY 07 2022 ms Signature Not Verified Digitally Signed By:AMIT ARORA Signing Date:08.01.2022 15:40:45 Indian Kanoon

POSH Act applicable even if girl student complains against teacher: Calcutta High Court

The issue whether applicability of POSH Act 2013, a statute enacted as per the guidelines in vishakha judgement,can be extended to complaints of sexual harassment by girl student against male school teacher was before consideration of a division bench of Calcutta High Court consisting of Justice Harish Tandon  and Justice Rabindranath Samanta in the matters between Pawan Kumar Niroula v. Union of India WP.CT. 86 of 2021 decided on 24.1.2022 The facts of the case are that the Jawahar Navodaya Vidyalaya is a government school who filed a police complaint after receiving complaints from several students that the petitioner was harassing them. Shortly after filing a complaint with the police, an internal complaints committee was set up by the school to investigate the complaints. The petitioner was informed that he was suspended through unofficial channels, although he was not informed of any disciplinary action against him. The stay order was extended several times over the course of a year, during which time the petitioner was briefed on the forming a committee that was to hold a summary trial for the petitioner. The counsel for the petitioner challenged that both the stay order and the summary proceedings before the Central Administrative Court (CAT). The court found no flaws in the proceedings and instructed the petitioner to cooperate with the authorities. This order of the CAT was challenged before the Supreme Court in the present case. It was the petitioner’s stance that school officials should form an internal complaints committee and that summary proceedings had no legal force in terms of the provisions of the POSH Act.It was alleged that the suspension decision was illegal as it was made while the petitioner was in custody for 24 hours, and a civil servant could only be suspended if the detention period exceeded 48 hours. The counsel for the respondent contended that because the allegations were made by the school’s female students, the POSH Act was not actually applicable to the facts of the case. This interpretation was flatly rejected by the judges, who discussed the definition of “aggrieved woman” under the law. The Calcutta High Court held the committee in question was not an internal complaints committee as required by the POSH Act. The court ruled that such an act exceeding 90 days without justification was illegal. The summary trial committee was found to lack legal force as it did not comply with the mandatory requirements of the law. The court debated the Supreme Court’s decision in the case of Ajay Kumar Choudhary v. Union of India. In this case, the higher court ruled that a suspension exceeding 90 days without justification was illegal. The Court therefore found the CAT decision upholding the committee’s legality unsustainable. School authorities were directed to allow the petitioner to rejoin their duties within one month and pay all retroactive fees due within two months of rejoining.

IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE THE HON’BLE JUSTICE HARISH TANDON THE HON’BLE JUSTICE RABINDRANATH SAMANTA WP.CT 86 OF 2021 Pawan Kumar Niroula Union of India and others. _ _ _ _ _ _ ….. for the Petitioner. ….. for the Respondent No.1. ….. for the Respondent Nos. 2 to 6. Mr.Suman Banerjee. Mr. Tapan Bhanja. Mr. Pulkesh Bajpayee. Heard On Judgment on Rabindranath Samanta J: 07.12.2021 24.01.2022 1. This writ petition has been preferred by the petitioner Pawan Kumar Niroula challenging the order dated 05.10.2021 passed by the Central Administrative Tribunal Kolkata Bench( hereinafter be referred to as the Tribunal) in O.A. No. 352 09 SKM 2021. 2. In the tribunal application the petitioner sought for the following reliefs : a) An order be passed directing the respondent authorities concerned to immediately allow the applicant to join his duties as TGT at Jawahar Navodaya Vidyalaya Ravangla South Sikkim b) An order be passed directing the respondent authorities forthwith set aside cancel withdraw rescind the decision of the respondent no. 2 to conduct summary trial into the allegation against the applicant vide reference no. PER 14032 2 2020 Estt III 13728 733 dated 16.06.2020 c) An order be passed directing the respondent authorities forthwith set aside cancel withdraw the order of suspension being Ref. No. PER.DP NVS PK Niroula 6170 dated 16.02.2020 and the subsequent orders of extension. 3. The Learned Tribunal by the order impugned permitted the respondent authorities to proceed with the order for summary trial and directed the petitioner to co operate with the authorities. 4. The seminal question involved in this writ petition is as to whether the order of suspension inflicted upon the petitioner is sustainable in law and the committee for summary trial pertaining allegations of sexual harassment against the petitioner has statutory force after enactment of The Sexual harassment of Women at Workplace Prevention Prohibition and Redressal) Act 2013 and amendment of relevant provisions of the Central Civil Services Classification Control and Appeal) Rules 1965 in the light of the Act. as under: 5. The background facts as projected by the petitioner and which are necessary for adjudication may be adumbrated The petitioner is a teacher and he was appointed by the respondent Navodaya vidyalaya Samiti on 17.11.1997 as TGT(Trained Graduate Teacher) Nepali. He was initially posted at Jawahar Navodaya Vidyalaya North Sikkim. Later he was transferred to Bihar in the year 2006 and in the year 2007 he was again transferred to North Sikkim. Lastly he was transferred to his present place of posting in the year 2011. On 15.02.2020 the respondent no. 4 the principal Jawahar Navodaya Vidyalaya Ravangla South Sikkim made a written complaint with the Officer in Charge of Ravangla Police Station to the effect that he received complaints from several students of Jawahar Navodaya Vidyalaya against the petitioner alleging commission of sexual harassment on 14.02.2020 and immediately thereafter he set up an internal committee to enquire into the complaints. It was also stated in the complaint that around 67 students complained in writing with the said committee that they were personally harassed by the petitioner. On such allegations the principal requested the Officer in Charge of the police station to take appropriate legal action against the On the basis of the aforesaid complaint Ravangla Police Station Case No. 02 of 2020 dated 15.02.2020 under Section 10 of the Protection of Children from Sexual Offences Act 2012 was registered against the petitioner for investigation. The petitioner was arrested by the Investigating Officer on 15.02.2020 but subsequently he was released on bail by the concerned Court. The petitioner was not informed about any disciplinary action taken against him but from unofficial sources he came to know that he was placed under suspension. However in reply to an Email dated 11.06.2020 seeking information regarding his status as he intended to join his duties the respondent no. 4 by communicating an order being No. PER.DP NVS(SHR) PK Niroula 6170 dated 16.02.2020 informed him that he was placed under suspension with effect from 15.02.2020 in terms of sub rule of Rule 10 of the Central Civil Services Classification Control and Appeal) Rules 1965. The petitioner being aggrieved by the order of suspension made an appeal before the Chairman of Navodaya Vidyalaya Samiti under Rule 23 of the Central Civil ServicesRules 1965 on 10.07.2020 but he is yet to know about its fate. 6. Initially the order of suspension inflicted upon the petitioner was from 15.02.2020 and it was extended for a period of 90 days. Even during the pendency of the appeal preferred by the petitioner before the Chairman of the said Samiti the order of suspension was extended for an another period of 90 days. Subsequently such suspension order was further extended for another term of 90 days and ultimately it was extended up to 10.02.2021. 7. By an order dated 16.06.2020 the respondent school authorities informed the petitioner that the respondent no. 2 constituted a committee for summary trial for into the allegations levelled against him dispensing with the regular disciplinary proceedings in terms of the Central Civil ServicesRules 1965. 8. It is contended by the petitioner that as the complaint against him is of the nature of sexual harassment at workplace the respondent school authorities should have constituted internal complaints committee and such committee shall be deemed to be the inquiring authority appointed by the disciplinary authority. Under such factual scenario the petitioner assails the impugned order on the grounds that the Learned Tribunal ought not to have directed the respondent authorities to proceed with the order of summary trial which has no in view of the advent of The Sexual Harassment of Women at Workplace Prevention Prohibition and Redressal) Act 2013. 9. Admittedly the Central Civil Services Rules 1965 are applicable to the teachers of Jawahar Nabadaya Vidayalaya Ravangla South Sikkim which is wholly financially aided by the Central Government. 10. As it is evident from the documents on record on a written complaint made by the respondent no. 4 with the local police station one Ravangla P.S Case no. 2 dated 15.02.2020 under Section 10 of POCSO Act was launched for investigation against the petitioner and he was arrested on 15.02.2020. On the following date i.e. on 16.02.2020 the school authority by an order dated 16.02.2020 placed the petitioner under suspension on the ground of his detention. 11. Learned Counsel appearing for the petitioner has argued that the order of suspension inflicted by the respondent school authorities smacks of illegality as the suspension order was passed while the petitioner was detained in custody for 24 hours. In such context Learned Counsel submits that in terms of Rule 10(a) of the Central Civil Services Rules 1965a government servant shall be deemed to have been placed under suspension by an order of appointing authority with effect from the date of his detention if he is detained in custody whether on a criminal charge or otherwise for a period exceeding forty eight hours. It is not in dispute that the respondent authorities placed the petitioner under suspension within 24 hours of his detention. That being so the order of suspension is illegal ab initio as it was made in gross violation of Rule 10(2) of the CCS CCA Rules. 12. What we find from the documents on record the order of suspension made on 16.02.2020 was extended from time to time and finally it was extended till 10.02.2021. Amid such continuing suspension the respondent school authorities by an order dated 16.06.2020 constituted the for summary trial to enquire into the allegations of sexual harassment against the petitioner. In the decision in the case of Ajay Kumar Choudhary Vs Union of India reported in7 SCC 291 the Hon’ble Apex Court has held as under: “Suspension specially preceeding the formulation of charges is essentially transitory or temporary in nature and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record this would render it punitive in nature. Departmental disciplinary proceedings invariably commence with delay are plagued with procrastination prior and posts the drawing up of the memorandum of charges and eventually culminate after even longer delay. Protracted periods of suspension renewal thereof have regrettably become the norm and not the exception that they ought to be. The suspended person suffering ignominy of insinuations the scorn of society and the derision of his department has to codure this excruciation even before he charged with misdemeanour indiscretion or offence. His torment is his knowledge that if and when changed it will take an inquisition or inquiry to come to its culmination that is to determine his innocence or inquiry. Hence it is directed that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges charge sheet is not served on the delinquent officer employee the memorandum charges charge sheet is served a reasoned order must be passed for the extension of suspension.” 14. After the petitioner was under suspension for more than 100 days he without being served with any charge sheet was handed down the order dated 16.06.2020 informing that a committee was constituted for summary trial to enquire into the complaints against him. In view of the law declared by the Hon’ble Apex Court in the case of Ajay Kumar Choudhary supra the order of suspension exceeding 90 days without any justifiable ground is vitiated with illegalities. It is not in dispute that the petitioner preferred an appeal against the order of suspension under Rule 23 of CCS CCA Rules on 09.07.2020 but the authority turned deaf ear to the appeal. Such acts on the part of the concerned respondent authority reek of malafides. Under such factual matrix the order of suspension which is illegal ab initio and its extension did not conform to the legal principles enunciated by the Hon’ble Apex Court in the decision of the Ajay Kumar Choudhary supra is liable to be quashed. 16. Learned Counsel appearing for the respondent school authorities has submitted that the notification dated 20.12.1993 issued by the Navadaya Vidyalaya Samiti prescribing the constitution of committee for summary trial to enquire into allegations of sexual harassment against any teacher of the school carries legal force as the notification has been upheld by the Hon’ble Apex Court in the decision in the case of Avinash Nagra Vs Navadaya Vidyalaya Samiti reported in JT 1996SC 461. 17. Be that as it may the legal scenario as to dealing with the complaints of sexual harassment at workplace has undergone a sea change after the law declared by the Hon’ble Supreme Court in the case of Vishaka Vs State of Rajasthan reported in 6 SCC 241 and after enactment of The Sexual Harassment of Women at Workplace Act 2013. In the decision in Vishaka the Hon’ble Apex Court directed that every organisation public or private shall have to constitute an internal complaints committee to enquire into any complaint of sexual harassment made by any aggrieved woman. In a later decision in the case of Medha Kotwal Lele and Others Vs Union of India and Ors reported in1 SCCC 297 the Hon’ble Supreme Court further passed the similar directive as to formation of internal complaints committee at every workplace. 18. However the Sexual Harassment of Women at Workplace Act 2013 which came into force on 09.12.2013 now occupies the field and the Act contains a mechanism to deal with complaints of sexual harassment. In this regard it will be apposite to refer to Section 4 of the Act. Section 4 of the Act reads as under: “4. Constitution of Internal Complaints Committee.Every employer of a workplace shall by an order in writing constitute a to be known as the “Internal Complaints Committee”. Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub divisional level the Internal Committee shall be constituted at all administrative units or offices. 2) The Internal Committee consist of the following members to be nominated by the employer namely: a) a Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees: Provided that in case a senior level woman employee is not available the Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in sub section(1) : Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organisation b) not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge one member from amongst non or associations committed to the cause of women or a person familiar with the issues relating to sexual Provided that at least one half of the total Members so nominated shall be women. 3) The Presiding Officer and every Member of the Internal Committee shall hold office for such period not exceeding three years from the date of their nomination as may be specified by the 4) The Member appointed from amongst the non governmental organisations or associations shall be paid such fees or allowances for holding the proceedings of the Internal Committee by the employer as may be prescribed. 5) Where the Presiding Officer or any Member of the Internal Committee a) contravenes the provisions of section 16 or b) has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him or he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him or d) has so abused his position as to render his continuance in office prejudicial to the public interest such Presiding Officer or Member as the case may be shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section.” In order to implement section 4 of the Act in letter and spirit and to make the internal complaints committee viable and independent the Hon’ble Apex Court in a recent decision in the case of Punjab and Sind Bank and Others Vs Durgesh Kuwar reported in SCC Online SC 774 has observed at paragraph 22 that clause of Section 4 indicates that one member of the internal complaints committee has to be drawn from amongst a non governmental organisation or association committed to the cause of women or a person familiar with issues relating to sexual harassment. The purpose of having such a member is to ensure the presence of an independent person who can aid advise and assist the committee and thereby it obviates an institutional bias. 20. The committee in question for summary trial as constituted by respondent school authorities comprises the following members: 1. Shri Vikram Joshi D.C(Pers) NVS Hqrs. Noida 2. Shri N. Haribabu AC NVS RO Shillong Member 3. Smt. Sarita AC NVS RO Lucknow Member 21. As discussed above it is axiomatic that the committee so formed by the respondent school authorities cannot be termed as an internal complaints committee as envisaged under the provisions of Section 4 of the Sexual Harassment of Women at Workplace Prevention Prohibition and Redressal) Act 2013. Though the committee was constituted in terms of the notification dated 20.12.1993 issued by Navadaya Vidyalaya Samiti but the committee dehors of the fundamental legal requirements under Section 4 of the Act has now lost its statutory force. 22. Learned Counsel for the respondent school authorities has further argued that since the allegations of sexual harassment have been made by the girl students of the school the provisions of the aforesaid Act will not be applicable to the respondent school. In this context the definition of ‘aggrieved woman’ as defined under Section 2of the Act may be referred. As per Section 2an aggrieved woman means in relation to a workplace a woman of any age whether employed or not who alleges to have been subjected to any act of sexual harassment by the respondent. That being so the provisions of the Act squarely apply to the students of the 24. Now we may advert to another relevant provision of the aforesaid Act. Section 11 of the Sexual Harrasment of Women at Workplace Prevention Prohibition and Redressal) Act 2013 inter alia provides that the internal complaints committee shall where the respondent is an employee proceed to make inquiry into the complaint in accordance with the provisions of the service rules respondent. After the Sexual Harrasment of Women at Workplace Prevention Prohibition and Redressal) Act 2013 came into force the relevant service rules viz Central Civil Services Conduct) Rules 1964 and the Central Civil Services Classification Control and Appeal) Rules 1965 were suitably amended. Rule 3C of Central Civil Services Conduct) Rules 1964 amongst others reads as under: 1. No Government servant shall indulge in any act of sexual harassment of any woman at any workplace. 2. Every government servant who is in charge of a workplace shall take appropriate steps to prevent sexual harassment of any woman at the workplace. 25. For the purpose of this rule ‘sexual harassment’ includes anyone or more of the following acts or behaviournamely: Physical Contact and advances or A demand or request for sexual favours or iii) Making sexually coloured remarks or iv) Showing pornography or Any other unwelcome physical verbal non verbal conduct of a sexual nature. 26. On the other hand the amended Rule 14 of the Central Civil Services Rules 1965 inter alia enjoins as follows: Where there is a complaint of sexual harassment within the meaning of Rule 3C of the Central Civil Conduct) Rules 1964 the complaints each ministry or department or office for inquiring into such complaints shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of this rule and the complaints committee shall hold if separate procedure has not been prescribed for the complaints committee for holding the enquiry into the complaints of sexual harassment the inquiry as far as practicable in accordance with the procedure laid down in these In view of the legal position as above the committee constituted for summary trial without adhering to the mandatory requirements of the law and the rules as quoted above loses its legal force. Therefore viewed from all aspects the impugned order passed by the Learned Tribunal holding the legality of the committee for summary trial is not sustainable in law. 28. Therefore in view of the observations as above the question as raised for resolution is answered in the negative. In the result the writ petition succeeds. 30. The impugned order dated 05.10.2021 passed by the Learned Central Administrative Tribunal Kolkata Bench in O.A.No. 352 9 SKM 2021 is hereby set aside. being No. O.A.No. 352 9 SKM 2021 is allowed. 31. The order of suspension against the petitioner vide order dated 16.02.2020 made by the respondent no. 4 and extended from time to time and the order dated 16.06.2020 by which the committee for summary trial was constituted are hereby quashed. 32. The respondent school authorities are directed to allow the petitioner to join his duties within one month from date. They are also directed to pay all the back wages to the petitioner within two months from the date of In view of the above the writ petition stands disposed joining of his duties. of. 34. No order as to costs. 35. Urgent certified website copies of this judgment if applied for be given to the parties upon compliance with all requisite formalities. Rabindranath Samanta J.) I agree Harish Tandon J.)

A person can be convicted under Section 307 IPC only when all the ingredients of murder exist, except the fact of death: Gauhati High Court

To convict a person for the attempt to murder under Section 307 IPC, it must be proved that he has done some act with such intention or knowledge, that if by the act done death would have been caused, he would have been guilty of murder. The judgment was passed by The High Court of Gauhati in the case of Sri Tankeswar Sarma Vs the State of Assam And Anr. [Crl.A./64/2020] by Division Bench consisting of Hon’ble Shri Justice Suman Shyam & Mir Alfaz Ali. The facts of the case according to the prosecution, in a nutshell, is that the accused shot his uncle with a pistol in front of his house and the victim died instantaneously. When the son of the victim came forward, the accused shot at him too and thereby caused a grievous injury. Nephew of the deceased, lodged an FIR under Sections 302/307 IPC read with Section 25(1)(A) of the Arms Act and upon completion of the investigation, laid a charge sheet against the appellant. Learned counsel for the appellant submitted that the deceased was the aggressor, and as the appellant attempted to defend himself against an assault by the deceased, a scuffle ensued between them and in the process of the scuffle, a bullet was shot unintentionally, and as such, the appellant is entitled to the privilege of the general exemption under Section 80 of the IPC. He further contended that since the injuries were sustained in the context of a spontaneous clash and scuffle, the claimant should not have been charged under Section 302 IPC; at most, he should have been kept responsible for culpable homicide not amounting to murder under Section 304 IPC. On the contrary, learned counsel supporting the impugned judgment submitted that the prosecution has brought on record overwhelming evidence to establish the charge against the accused and as such, the impugned judgment calls for no interference. He further submitted that multiple bullets were fired and as such the plea of accidental release of a bullet is not tenable. Relying on the Apex Court Judgment Manjeet Singh v. State of Himachal Pradesh, wherein it was held that “the conviction and sentence of the appellant under Section 307 IP to 308 IPC i.e., attempt to commit culpable homicide not amounting to murder, the reason being that a person can be convicted under Section 307 IPC only when all the ingredients of murder exist, except the fact of death. To put it differently, to convict a person for an attempt to murder under Section 307 IPC, it must be proved that he has done some act with such intention or knowledge, that if by the act done death would have been caused, he would have been guilty of murder”

Page No.# 1 12 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A. 327 2019 SRI TANKESWAR SARMA S O LATE BHADRESWAR SARMA R O SARUTHEKERABARI P.O. AND P.S. MANGALDAI DIST. DARRANG ASSAM THE STATE OF ASSAM AND ANR REP. BY THE P.P. ASSAM 2:SRI UMESH SARMA S O MANIK DEB SARMA R O SARUTHEKERABARI P.O. AND P.S. MANGALDAI DIST. DARRANG ASSAM Advocate for the Petitioner : MR. D HAZARIKA Advocate for the Respondent : MR. M PHUKAN ADDL. PP ASSAM HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE MIR ALFAZ ALI JUDGMENT & ORDER Mir Alfaz Ali J Learned counsel Mr. Samiron Sarma appearing for the appellant and Mr. M. Phukan Additional Page No.# 2 12 Public Prosecutor Assam were heard. 2. This appeal is directed against the judgment and order dated 30.05.2019 rendered by the learned Sessions Judge Darrang Mangaldai in Sessions Case No. 45(DM) 2015. By the said judgment learned Sessions Judge convicted the appellant under Sections 302 307 IPC and Section 27(1) of the Arms Act and sentenced him to undergo rigorous imprisonment for life and fine of Rs.10 000 with default stipulation under Section 302 IPC imprisonment for 10years and to pay fine of Rs.5 000 with default stipulation under Section 307 IPC and rigorous imprisonment for 3years and to pay fine of Rs.2 000 with default stipulation under Section 27(1) of the Arms Act. 3) Prosecution case in a nutshell is that at about 8 a.m. on 14.10.2011 the accused Tankeswar Sarma shot his uncle Panchanan Sarma with a pistol in front of his house and the victim died instantaneously. When the son of the victim came forward the accused shot at him too and thereby caused grievous injury. Nephew of the deceased lodged an FIR on the basis of which Officer in charge of the Mangaldai Police Station registered Mangaldai P.S. Case No. 713 2011 under Sections 302 307 IPC read with Section 25(1)(A) of the Arms Act and upon completion of the investigation laid charge sheet against the appellant. 4) Basing on the charge sheet and the materials produced therewith learned Sessions Judge framed charges against the appellant under Sections 302 307 IPC and Section 27(1) of the Arms Act to which the appellant pleaded not guilty. Prosecution examined 14witnesses in order to bring home the charges against the appellant. Upon completion of the prosecution evidence the accused was examined under Section 313 CrPC wherein he had taken the plea of innocence and examined a witness in his defence 5) The informant Umesh Sarma who lodged the FIR has been examined as PW 1. He deposed in Court that when he was coming home he had noticed deceased Panchanan Sarma lying dead on the road in front of the house of the appellant Tankeswar Sarma. According to him he came to know from the members of the family of Panchanan Sarma that the deceased Panchanan Sarma was shot dead by the accused Tankeswar. He also stated to have seen PW 2 Satish Sarma at the place of occurrence and on being asked by him Satish Sarma told that his fatherwas killed by Tankeswar Sarma. During cross examination this witness stated that there was long standing land dispute between the accused and the deceased. He also stated that accused Tankeswar Sarma used to reside most of the time at Guwahati. Page No.# 3 12 6) PW 2 Satish Sarma is the son of the deceased Panchanan Sarma. He stated in his deposition that the accused had retired from the service of Air Force and they had land dispute with him for long time. On 14.10.2011 at about 7.30 A.M. accused Tankeswar Sarma shot his father with his pistol on the road in front of their house. He also stated that at the time of occurrence Tankeswar Sarma and his father were standing face to face at a distance of 10 ft. and the bullet hit the chest of his father. When his father fell down receiving the bullet injury he raised alarm whereupon Tankeswar Sarma shot at him and consequently he sustained injury on his abdomen. Hearing alarm raised by him his wife Uttara Devicame to the place of occurrence followed by other people. During cross examination he deposed that there was no fencing in between his house and that of the appellant and the house of the accused is situated on the western side of their house. He further stated in his cross examination that in the morning when he saw Tankeswar Sarma he had charged himfor cutting their crops and also stated that he would lodge a complaint before the village headman whereupon Tankeswar Sarma had shown him his pistol and threatened to kill him. He further stated that when Tankeswar Sarma came out to the road the deceased also came out to the road and he PW 2) tried to bring him back. He also stated that when his father was shot by the appellant he did not come forward to help his father. 7) PW 3 Reba Kanta Sarma is the elder brother of the accused. According to him having heard that his uncle Panchanan Sarma was shot dead he rushed to the house of Panchanan Sarma and had seen Panchanan Sarma lying dead in front the house of Tankeswar Sarma. This witness was however declared hostile by the prosecution. It was elicited during his cross examination by the defence that he did not see any person near the body of the deceased. According to him Police arrived at the place of occurrence after half an hour 8) PW 4 Bolo Ram Sarma deposed that he was told by the village headman that Panchanan Sarma died and he accompanied the village headman to the house of Panchanan. According to him Police seized four nos. of empty cartridges vide Exihibit 2 Seizure List and he put his signature in the Seizure List as witness. He also stated that at the time of obtaining his signature in the Exhibit 2 Police did not show him the seized articles PW 5 Bhupen Sarma and PW 6 Uttam Kumar Sarma were witnesses to the Inquest Report. Both of them have proved their signature in the inquest reportPW 7 Sarat Chandra Sarma was also a witness to the seizure of pistol and empty 11) PW 8 Madhab Sarma stated that about 3 4 years ago he had seen the deceased Panchanan Sarma lying on the road near the house of Tankeswar Sarma. He also stated to have seen bullet injury on the body of Panchanan Sarma. 12) PW 9 Deben Ch. Gohain was the armourer who examined the arms and ammunition seized in the instant case. According to him one 17.65 mm pistol and four nos. of 7.65 mm empty cartridges were sent to him for examination. He examined the pistol and the empty cartridges and found the same to be factory made firearms. He also deposed that the pistol was serviceable at the time of examination. 13) PW 10 Dr. Deep Kr. Deka deposed that injured Satish Sarma was examined in Gauhati Medical College Hospital at about 12.15 p.m. on 14.10.2011 and during examination it was found that there was an entry wound near umbilicus which looks like gun shoot entry wound. There was also an exit wound on the flank and a small fracture over the right iliac crest. According to Doctor the nature of injury was grievous. During cross examination he stated that he did not examine the injured clinically and he only furnished the the Medico Legal 14) PW 11 Dr. Jitendra Kumar Saharia who conducted the post mortem examination on the body of the deceased found the following injuries “A. 1): A through injury at the left chest at 7th inter costal space. Size ½ x ½ cm into chest deep A. 2) : An everted margin injury seen over the left back at inter costal space scapular back. Size: 1 x 1 cm into chest deep. B. 3) : An injury seen on actero lateral aspect of right thigh at its middle part. Size ½ cm x ½ cm 4) : An injury seen on posterior aspect of right gluteal region. Margin is everted. Size: 1cm x 1 cm into deep to the thigh muscle.” In the opinion of the Doctor cause of death was due to shock and hemorrhage as a result of firearm injuries. In the opinion of the Doctor gunshot injuries sustained by the Page No.# 5 12 deceased was sufficient to cause death of a person instantaneously. 15) PW 12 Uttara Devi is the wife of Satish Sarmaand daughter in law of the deceased. She deposed that the occurrence took place on the path abutting their courtyard. According to her three days before the occurrence accused had cut their paddy and used the same as cattle feed. She also stated that on the day of incident having seen the accused washing his face at the tube well her husbandtold him that a complaint had been lodged before the village people against him for cutting the paddy and asked him to be present in the village meeting whereupon the accused came out with his pistol and started shouting at her father in lawby calling him dog and challenged him to come out of the house. He also threatened to kill him by his pistol. According to her the deceased was already in the courtyard and hehad asked the accused as to what had happened and why was he making noise. The accused then suddenly shot at himfrom a close range and receiving the bullet injury her father in law died at the spot. She further stated that the accused fired several round of bullet aiming her father in law Panchanan Sarma. She further stated that when her husband Satish Sarmaraised alarm the accused also shot him and consequently he sustained injury. As she raised hue and cry the neighboring people came and arranged a vehicle to shift the injured to hospital. It was elicited during her cross examination that earlier she lodged an FIR against the accused for insulting her. 16) PW 13 and PW 14 were the Investigating Officers. Their testimonies were more or less formal in nature. According to the PW 13 he took charge of the investigation after the earlier Investigating Officer retired. Having taken charge of the investigation he had sent the arms and ammunition for forensic examination. He also collected the medical report of the injured as well as the post mortem report. PW 14 stated that before lodging the formal FIR a GD entry was made on the basis of verbal information given by one Bhupen Sarma and he proceeded to the place of occurrence on the basis of the said GD entry. He also stated to have seized four nos. of empty cartridges from the place of occurrence. PW 14 also stated that during visit to the place of occurrence he had found the house of the accused and that of the deceased in the same boundary 17) The accused examined one Tomizul Rahman as DW 1. He deposed that he heard of a quarrel between the accused and the deceased. According to him on the day of occurrence at about 7 to 7.30 A.M. he came to the house of the accused for purchasing four nos. of bamboos. He also stated to have noticed the accused proceeding to the Police Station. According to him when the accused was going to Police Station the victim Panchanan Sarma deceased) and Satish Sarmaarmed with spade and axe respectively accosted the accused and a scuffle ensued amongst them and in course of the scuffle accidentally a bullet came out of the pistol. He also stated that having heard the sound of pistol he had left the Page No.# 6 12 place out of fear. indicated above. 18) Taking note of the above evidence learned Sessions Judge convicted the appellant under Sections 307 302 IPC and Section 27of the Arms Act and awarded sentence as 19) Learned counsel for the appellant Mr. S. Sarma submitted that the deceased was the aggressor and when the appellant tried to ward off an attack on him made by the deceased and Satish Sarma a scuffle ensued between them and in course of the scuffle accidentally the bullet got fired and as such the appellant is entitled to the benefit of the general exception under Section 80 of the IPC. Mr. Sarma further submitted that the injuries having been inflicted in course of sudden fight and scuffle without any intention and premeditation the appellant could not have been convicted under Section 302 IPC at the best he could have been held liable for an offence of culpable homicide not amounting to murder under Section 304 IPC. 20) Per contra supporting the impugned judgment learned Additional Public Prosecutor Assam Mr. Phukan submitted that prosecution has brought on record overwhelming evidence to establish the charge against the accused and as such the impugned judgment calls for no interference. Mr. Phukan further submitted that multiple bullets were fired and as such the plea of accidental release of bullet is not tenable 21) We have considered the submission made by the learned counsel for both the sides and also meticulously gone through the evidence and materials brought on record. 22) The fact that deceased Panchanan Sarma died due to the injuries caused by firearm and PW 2 Satish Sarma sustained a bullet injury are not in dispute. However the contention of the learned counsel for the appellant Mr. Sarma is that the injuries were caused by accidental firing and as such the appellant is entitled to the benefit of general exception under Section 80 of the Indian Penal Code. In fact the appellant took the plea of accidental firing during his examination under Section 313 CrPC while responding to the Question No. 3 put to him. He stated as follows: Page No.# 7 12 “The truth is that in the morning on the day of occurrence Satish Sarma and Panchanan Sarma entered my house and intended to kill me with spade and dao. When I was going to the PS to give information of the matter they confronted me on the road and when they tried to grab my pistol the pistol got fired in the ensuing scuffle and unfortunately they 23) In order to substantiate the plea of accidental firing the accused has examined one Tomizur Rahman as defence witnessFrom the medical evidence more particularly the testimony of the PW 10 Dr. Deep Kumar Deka as well as the injury reportit is evident that Satish Sarmasustained bullet injury on his abdomen and these testimonies remained unimpeached. PW 11 Dr. Jitendra Kumar Saharia who conducted the post mortem examination has found four injuries on the body of the victim of which Injury Nos. 1 and 2 were entry and exit wound caused by bullet. So far as the Injury Nos. 3 and 4 are concerned it is not clear whether those injuries were caused by bullet or not inasmuch as the Doctor has not stated clearly that those injuries were caused by bullet. During cross examination also nothing could be elicited as to the cause of those two injuries. Be that as it may the oral testimony of PW 2 that he sustained a bullet injury at the abdomen and the post mortem reportreflecting bullet injuries on the chest of the deceased coupled with the testimony of the doctors PW 10 and PW 11 leaves no room for doubt that at least two bullets were fired which caused injury to the deceased and PW 2. The PW 14 deposed that he seized a pistol from the possession of the accused and recovered four empty cartridges from the place of occurrence. The PW 9 stated that he has examined the 7.6 mm pistol bearing registration number 127278 and four nos. of empty cartridges. According to this witness arms and ammunitions examined by him were factory made. The PW 12 also stated that accused fired multiple round of bullet. Thus the testimony of the PW 11 PW 12 and PW 14 also Page No.# 8 12 demonstrates that multiple bullets were fired by the accused. Though from the injury sustained by the deceased and the PW 2 it cannot be said for certain that all the injuries were caused by bullets but what has been conclusively proved by the medical evidence and the oral testimony of PW 2 PW 12 and PW 14 is that multiple bullets were fired and at least one bullet hit the PW 2 and another hit the deceased. The testimony of the PW 14 regarding seizure of four cartridges from the place of occurrence and the testimony of the PW 12 to the effect that multiple bullets were fired as well as the medical evidence adduced by the prosecution remained unimpeached. Therefore it is hardly believable that multiple bullets got fired accidentally in course of scuffle. Admittedly the appellant is a responsible retired Air Force personnel. Though the pistol held by him was licensed one he was supposed to keep it under lock. Be that as it may in view of the candid evidence adduced by the prosecution as indicated above the plea of accidental firing taken by the accused and the testimony of the DW 1 to that effect hardly inspire confidence for the simple reason that multiple shot could not be accidental and as such the plea of accidental firing also suffers from the vice of the inherent improbabilities. It is the settle position that the burden to prove any general exception is upon the accused which can be discharged by him either by adducing defence evidence or from the evidence and materials adduced by the prosecution. The standard of proof is also not higher than that of the preponderance of probability. However from the evidence and materials alluded hereinbefore we find that the appellant has not been able to establish the plea of general exception under Section 80 IPC even in the touchstone of probability and as such the plea of general exception in our considered opinion had fallen 25) Let us now consider the alternative submission made by the learned defence counsel. Mr. Sarma learned counsel for the appellant contended that the appellant did not have any intention to cause death and the bullet injuries were inflicted in course of quarrel and scuffle in the heat of passion and as such the appellant at the best may be liable for lesser punishment under Section 304 Part II IPC. In support of his submission Mr. Sarma has placed reliance on the following decision i) Manjeet Singh v. State of H.P. reported in5 SCC 697 and ii) Rajender Singh v. State of Haryana reported in15 SCC 507. Learned counsel for the appellant referring to the oral testimony of PW 1 submitted that it was the deceased and PW 2 who were the aggressor inasmuch as the occurrence took Page No.# 9 12 place in front of the house of the accused. The PW 1 stated in his evidence that while returning home he had seen the deceased Panchanan Sarma lying dead in front of the house of the accused Tankeswar Sarma. PW 2 deposed that Tankeswar Sarma shot Panchanan Sarma on the road just in front of their home. He also stated in cross examination that there was no fencing in between their house and that of the accused. It is also in the evidence of the Investigating Officerthat house of the deceased and that of the accused were in the same boundary. Evidently both the accused and deceased are relations belonging to the same family. Therefore from the testimony of PW 1 & PW 2 and that of the Investigating Officer PW 14) it is clearly discernible that residential house of both the parties were located in the same compound having a common frontage. Therefore the fact that the occurrence took place in front of the house of the appellant or the body of the deceased was found lying in front of the house of the appellant does not necessarily raise an inference that the deceased was the aggressor 27) The PW 2 deposed in unambiguous term that they had land dispute with the appellant During cross examination this witness also stated that on the day of occurrence in the morning when he had seen the appellant Tankeswar Sarma he charged him of cutting their crops and also told that he would lodge a complaint with the village headman whereupon the appellant had shown him the pistol and threatened to kill him. He further stated that when the appellant Tankeswar Sarma came out to the road his fatheralso came to the road but he tried to take his father back. The oral testimony of PW 12 also assumes significance herein inasmuch as she also stated in her evidence that when the appellant was washing his face at the tube well in the morning her husband told the appellant that he had lodged a complaint with the village people for cutting their paddy by the appellant and also asked the appellant to attend the village meeting. According to her upon saying so by the PW 2 the accused came out with his pistol and started shouting at the deceased by calling him dog and also challenged him to come out of the house. He also threatened to kill him by shooting with his pistol. She further stated that when her father in lawwho was already in the courtyard challenged the accused as to why he was making the noise the accused suddenly fired several rounds of bullet from a close range causing injury to the deceased. Thus the testimony of the PW 2 and PW 12 clearly demonstrates that incidents of firing was preceded by a hot exchange and quarrel between the accused and the deceased. 28) Admittedly both the parties belonged to the same family and reside in the same Page No.# 10 12 campus and their relation was also not cordial due to property dispute. What is evident from the testimony of the PW 2 and PW 12 is that when the appellant was washing his face in the morning the PW 2initiated the quarrel by challenging the appellant to lodge complaint before the villagers for cutting their paddy whereupon the appellant came out with the pistol and challenged the deceased to come out and also hurled abuses at him deceased) and the deceased also came out and challenged him by saying as to why was he shouting and creating noise. From the testimony of the PW 12 it is also discernible that at the beginning when the PW 2 challenged the appellant for the previous incidence of cutting paddy the appellant did not have the armed with him and in course of the exchange of words he came out with the pistol. From the above evidence it has been established that the accused who was a retired Air Force personnel having a licensed pistol shot the deceased in the heat of passion in course of sudden quarrel and as such it is difficult to say that the act of the appellant causing death of the deceased was pre meditated. When evidently the appellant inflicted the injury causing death of the deceased without any pre meditation and in the heat of passion during sudden quarrel the appellant could not have been held liable for offence of murder. However the facts and circumstances under which the appellant inflicted the injury causing death of the deceased he shall be liable for committing an offence of culpable homicide not amounting to murder under Section 304 IPC. 29) In Rajender Singh v. State of Haryanain a similar facts situation the Apex Court converted a conviction under Section 302 IPC to 304 IPC held as under “19. Consequently we are convinced that since the death of Suraj Mal and Shri Ram had occurred due to the firing resorted to as part of his self defence the same would amount to culpable homicide not amounting to murder which was committed without any premeditation in a sudden fight in the heat of passion upon a sudden quarrel and that the offender did not take undue advantage or acted in a cruel or unusual manner which would normally fall under Exception 4 of Section 300 IPC. Consequently at best conviction of the appellant can only be under Part II of Section 304 IPC for which he could have been inflicted with a punishment of ten years. For the very same reason the conviction imposed under Section 27 of the Arms Act cannot also be sustained. It is stated that the appellant is suffering the sentence in jail and has so far suffered eleven years. The conviction is modified into one under Section 304 Part II and the sentence already suffered by the appellant is held to be more than sufficient.” In Manjeet Singh v. State of Himachal Pradeshthe Apex Court had converted a conviction under Section 302 IPC to one under Section 304 IPC observed as Page No.# 11 12 “25. The question now requires determining is as to what is the nature of offence that the accused has committed. The evidence produced against the accused does not show that the accused had any motive to cause death of the deceased or have intended to cause such bodily injuries which were sufficient in the ordinary course of nature to cause the death of the deceased. Evidence on record also does not establish that the injuries caused on the body of the deceased must in all probability cause his death or likely to cause his death. On the spur of the moment during the heat of exchange of words accused caused injuries on the body of the deceased which caused his death. Therefore the ingredients of the murder as defined in Section 300 IPC have not been established against the accused. In our opinion the accused was guilty of culpable homicide not amounting to murder under Section 304 IPC and considering the fact that the accused had no intention to either cause the death of the deceased or cause such bodily injury as is likely to cause death of the deceased it would be sufficient to impose on accused a sentence of seven years rigorous imprisonment and to impose on him a fine of Rs.5 000 and in default of payment of fine a further imprisonment of six months.” 31) Thus having regard to the facts that the appellant inflicted the injury in the heat of passion in course of sudden quarrel and scuffle without any pre meditation we set aside the conviction and sentence of the appellant under Section 302 IPC instead convict him under Section 304 Part 1 IPC and sentence him to rigorous imprisonment for 7years. 32) We also modify and alter the conviction and sentence of the appellant under Section 307 IP to 308 IPC i.e. attempt to commit culpable homicide not amounting to murder reason being that a person can be convicted under Section 307 IPC only when all the ingredients of murder exist except the fact of death. To put it differently in order to convict a person for attempt to murder under Section 307 IPC it must be proved that he has done some act with such intention or knowledge that if by the act done death would have been caused he would have been guilty of murder. In the present case we have already noticed that in the fact situation of the case the accused could not have been held liable for offence of murder. Therefore necessarily conviction under Section 307 IPC also shall not be sustainable. Accordingly we direct the appellant to undergo rigorous imprisonment for 3years under Section 308 IPC. Sentence of fine and default sentence of punishment awarded by the learned trial Court remain unaltered. 33) With the modification and alteration in the conviction and sentence to the extent indicated above the appeal stands partly allowed. 34) Send down the record of the trial Court. Page No.# 12 12 JUDGE JUDGE

A claim is not a matter of right unless eligibility criteria is fulfilled: Supreme Court

When the claim is under a particular scheme of the government, unless one fulfills the eligibility criteria for grant of pension, as mentioned in the scheme, no applicant can claim such pensions, as a matter of right. This proclamation was made by the honorable Supreme Court presided by J. ASHOK BHUSHAN & J. R. SUBHASH REDDY in the case of Union of India vs. A. Alagam Perumal Kone & Others [CIVIL APPEAL NO.680 OF 2021]. The Respondent had submitted his first application for grant of pension under Swatantrata Sainik Samman Pension Scheme which was forwarded by the 2nd Respondent through 3rd Respondent. In the said communication, which was received by the appellant it was observed that the application was not properly filled up and the certificate issued by one of the certifiers was vague. Non-Availability of Records Certificate (NARC) was not produced from the competent authority, as per the scheme. In absence of any categorical recommendation made by the 2nd Respondent, the application was rejected by the appellant. Thereafter, after a period of 13 years he again sent a communication to the appellant for grant of pension from 2011 under Pension Scheme, stating that he was imprisoned for more than six months 1944 during Quit India Movement. The appellant contended that as the said communication was not supported by any documents and the appellant forwarded the copies to the 2nd Respondent. At that stage, the 1st Respondent filed the Writ Petition before Madras High Court, seeking directions by way of mandamus to direct the appellant to grant pension. The writ petition was heard and disposed of without issuing a notice and without giving any opportunity to file counter affidavit to rebut the allegations, made in the petition. The appellant stated though specific grounds are raised before the Division Bench, inter alia, stating that no notice was issued in the writ petition; the application was not supported by required documents; and non-disclosure of the rejection of the first application for grant of pension, the High Court dismissed the appeal without assigning valid reasons and without considering any of the grounds raised in the appeal. The honorable court observed, “In the instant case, the appellant stands on a better footing, for the reason that although the application made by the respondent was rejected and the said order has become final, he again approached the appellant with the same request. Even before the Competent Authority considers the application, the 1st Respondent approached the High Court by filing Writ Petition and the High Court, not only entertained the petition, but disposed of the same without even notice and opportunity of filing counter affidavit to the appellant. We have also perused the order passed by the Division Bench. Even the Division Bench of High Court has not considered various grounds raised by the appellant, while confirming the order of the learned Single Judge.”  

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.680 OF 2021 Arising out of SLPNo.53419 Union of India ....Appellant(s vs A. Alagam Perumal Kone & Others ....Respondent(s JUDGMENT R.SUBHASH REDDY J This appeal is filed by the Union of India aggrieved by the judgment and order dated 29.08.2018 passed in W.A.(MD) NO. 9018 by Madras High Court Madurai Bench) whereby the appeal of the appellant is dismissed confirming the order of the learned Single Judge passed in W.P.(MD) NO. 172917. By Order dated 26.10.2017 passed in W.P.(MD No.17290 of 2017 filed by the 1st Respondent herein while disposing of the writ petition directions were issued to the appellant herein to grant Freedom Fighter’s Pension to the 1st Respondent under Swatantrata Sainik Samman Pension Scheme and pass suitable orders within a period of four weeks from the date of receipt of the order. Aggrieved by the order of the learned Single Judge the appellant herein preferred writ appeal under Clause 15 of the Letters Patent and the same is dismissed by the impugned order The Respondent No.1 herein has submitted his first application for grant of pension under Swatantrata Sainik Samman Pension Scheme on 10.04.1997 which was forwarded by the 2nd Respondent through 3rd Respondent. In the said communication which was received by the appellant on 26.07.2001 it was observed that the application was not properly filled up and the certificate issued by one of the certifiers was vague. Non Availability of Records Certificate NARC) was not produced from the competent authority as per the scheme. In absence of any categorical recommendation made by the 2nd Respondent the application made by the 1st Respondent at first instance on 10.04.1997 was rejected by the appellant vide its letter dated 27.02.2004. Thereafter for about a period of 13 years no steps have been taken by the 1st Respondent and on 29.08.2017 he again sent a communication to the appellant herein for grant of pension from 2011 under Swatantrata Sainik Samman Pension Scheme stating that he was imprisoned for more than six months from 05.01.1944 to 05.07.1944 during Quit India Movement. It is the case of the appellant that as the said communication was not supported by any documents the appellant herein sent a letter dated 27.10.2017 which is addressed to the 2nd Respondent with a copy to the 1st Respondent to send the claim application by completing all the required formalities as per Swatantrata Sainik Samman Pension Scheme. At that stage the 1st Respondent herein has filed the Writ Petition before Madras High Court seeking directions by way of mandamus to direct the appellant herein to grant Freedom Fighter’s Pension under the Swatantrata Sainik Samman Pension Scheme It is the case of the appellant that writ petition was heard and disposed of by order dated 26.10.2017 without issuing a notice and without giving any opportunity to file counter affidavit to rebut the allegations made in the petition Learned Single Judge referring to certain communications made by the 1st Respondent by recording a finding that the certificate issued by an approved certifier is sufficient for grant of pension has disposed of the petition by directing the appellant to grant pension under Swatantrata Sainik Samman Pension Scheme and to pass suitable orders in respect thereof It is the case of the appellant that even in the appeal though specific grounds are raised before the Division Bench inter alia stating that no notice was issued in the writ petition the application by the 1st Respondent for grant of freedom fighters’ pension was not supported by required documents and non disclosure of the rejection of the first application for grant of pension the High Court has dismissed the appeal without assigning valid reasons and without considering any of the grounds raised in the appeal 10. Before this Court the counter affidavit is filed by the 1st Respondent. While denying various allegations made by the appellant it is stated that as the appellant has not complied with the directions issued by the High Court he has already moved contempt petition and without disclosing the same the Special Leave Petition is filed before this Court. With reference to allegations made in the appeal it is stated that being a veteran freedom fighter in Indian freedom struggle he had suffered various losses and hardships including imprisonment as he was facing detention 11. Further it is stated that as he has actively participated in Quit India Movement as a consequence of his participation he was sentenced and was lodged in Alipuram Central Prison for more than six months from 05.01.1944 to 05.07.1944 12. While referring to his first application made in the year 1997 it is alleged that such application made by him was not dealt with due care by the appellant and the appellant adopted a lethargic approach in considering the application of the 1st Respondent. While referring to his earlier rejection it is stated that such a rejection made by the appellant on his first application was whimsical and arbitrary 13. In response to the letter dated 30.08.2017 addressed by the appellant it is stated that he has replied vide letter dated 07.09.2017 stating that all other veteran freedom fighters had passed away and except one Mr. A. M. Lakshmanan whose Co Prisoner Certificate has already been submitted along with the certificate of one Mr. A. C. Periasamy thus he has complied with all the requirements as contemplated under the scheme as such there are no grounds to interfere with the orders passed by the High Court 14. We have heard Ms. Madhavi Divan learned Additional Solicitor General appearing for the Union of India and Mr. Divyanshu Srivastav Advocate appearing for the respondent writ petitioner 15. It is contended by the learned Additional Solicitor General appearing for the Union of India that the learned Single Judge of the High Court has disposed of the petition without issuing any notice and without giving any opportunity of filing counter affidavit to rebut the allegations made in the writ petition. It is submitted that while exercising powers of judicial review under Article 226 of the Constitution of India the High Court has committed error in issuing positive directions for grant of 16. It is submitted that when the scheme is prepared for grant of pension with certain conditions unless compliance of such conditions is examined by the competent authority no directions ought to have been issued directing grant of pension. 17. It is submitted that at the first instance the 1st Respondent has applied for grant of pension in the year 1997 and the same was forwarded by the 2nd Respondent through 3rd Respondent without making any specific recommendations and the same was rejected after lapse of several years again application is made for grant of pension. Even before the same is considered by the competent authority the 1st Respondent has approached the High Court and the High Court has disposed of the petition without giving opportunity of filing counter 18. It is submitted that in spite of raising several grounds the Division Bench also failed to consider the same and confirmed the order of the learned Single Judge by dismissing the appeal filed by the appellant 19. Learned counsel in support of her arguments relied on judgment of this Court in the case of W.B.Freedom Fighters’ Organization v. Union of India and Others1 and also the judgment in the case of Union of India v Bikash R. Bhowmik and Others2 20. On the other hand Mr. Divyanshu Srivastav appearing for the 1st Respondent while refuting the submissions made by the learned counsel appearing for the appellant has contended that though the respondent has participated in the freedom struggle and suffered losses apart from his imprisonment during the period of 1. 2004(7)SCC 716 2. 2004(7)SCC 722 Quit India Movement he is unduly deprived of the pension which he is entitled to as per the scheme 21. While drawing our attention to the Order dated 26.04.2019 passed in Special Leave Petition it is submitted that similar petition is already dismissed by this Court and further relying on the judgment of this Court in the case of Union of India v. Sitakant S Dubhashi and Anr.3 learned Counsel has submitted that there is no illegality in the impugned order passed by the High Court and there are no grounds to interfere with the same 22. It is further submitted that the documents which are already filed are sufficient to grant pension as per the Swatantrata Sainik Samman Pension Scheme and as the appellant was not considering his application for grant of pension the learned Single Judge of the High Court has rightly issued directions for grant of pension. There are no grounds to interfere with the 3. 2020(3)SCC 297 23. It is not in dispute that at first instance the 1st Respondent herein has applied for grant of pension in the year 1997 and the application dated 10.04.1997 submitted by the 1st Respondent is placed on record. In the said application the 1st Respondent has stated that he was underground during the Quit India Movement of 1942 i.e. during the period from August 1942 up to a period of more than six months. At that time along with the first application the Non Availability of Records Certificate obtained from the Government was not produced and merely a certificate certified by the C.J.M. Madurai was produced. 24. The first application which was forwarded to the appellant was without any specific recommendation. On receipt of such communication from the 2nd respondent the claim of the 1st Respondent was considered and rejected. The said order has become final and the same was not questioned. Nearly after 13 years of such rejection on 29.08.2017 the 1st Respondent has again claimed pension under the Swatantrata Sainik Samman Pension Scheme on the plea of his imprisonment for more than six months for participating in the Quit India Movement. The application which is made for the second time is also placed on record as Annexure “P 5”. In the said application he has stated that he was imprisoned for more than six months i.e. from 05.01.1944 to 05.07.1944 which is clearly in variance to the period which he has mentioned in the first application. Though earlier rejection has become final and the particulars mentioned in the claim made by the 1st Respondent are in variance to the particulars mentioned at first instance without issuing notice and without giving opportunity to the appellant to file counter affidavit the learned Single Judge has disposed of the petition by granting a positive direction to grant pension. The claim of the 1st Respondent is under the scheme notified by the appellant Government. The scheme prescribes to file certain documents to authenticate the imprisonment of a claimant as a freedom fighter. 25. It is the case of the appellant that the documentary evidence filed by the 1st Respondent is not in compliance of the scheme. It is a matter which is to be left to the competent authority to consider. When the application of the 1st Respondent is already rejected in the year 1997 when such rejection order has become final it is not open for the 1st Respondent to make a claim for second time for pension again by way of fresh application. The 1st Respondent would be entitled to the benefits of this scheme if he produces the relevant material in support of his claim. As regards the sufficiency of proof the scheme itself mentions the documents which are required to be produced along with the application. Whether the claimant fulfills the criteria or not it is for the competent authority to examine it. Even before the application is considered by the competent authority in exercise of powers of judicial review the High Court should not have issued any directions for grant of pension. In this case it is also to be noticed that earlier the claim of the 1st Respondent is already rejected and the said order has become final. After perusal of the order passed by the learned Single Judge and the Division Bench we are of the view that no valid reasons have been assigned to grant relief to the 1st Respondent for grant of pension. It appears that the 1st Respondent has not disclosed his earlier rejection by producing the earlier orders while making the application for the second time before the appellant and also before the High Court 26. In any event when such serious factual disputes emerge for consideration the High Court ought not to have disposed of the petition filed by the Respondent without even issuing notice and giving opportunity to file counter affidavit to rebut the allegations made by the appellant. The judgments of this Court relied on by the learned Additional Solicitor General in the case of W.B.Freedom Fighters’ Organization v. Union of India and Others1 and in the case of Union of India v. Bikash R. Bhowmik and Others2 will support the plea of the appellant. In the case of W.B.Freedom Fighters’ Organization v. Union of India and Others this Court has held that when the competent committee has considered and opined that the applications were not supported by required documents and rejected the application this Court cannot interfere with the same and such findings cannot be said to be perverse or 27. Further in the case of Union of India vs. Bikash R. Bhowmik and Others2 this Court has held that the pension under Swatantrata Sainik Samman Pension Scheme of 1980 can be sanctioned as per the proof required under the scheme and in no other manner. In the said judgment this Court has reversed the order passed by the High Court. 28. In the instant case the appellant stands on a better footing for the reason that although the application made by the 1st Respondent on 10.04.1997 was rejected and the said order has become final he again approached the appellant with the same request. Even before the Competent Authority considers the application the 1st Respondent approached the High Court by filing Writ Petition and the High Court not only entertained the petition but disposed of the same without even notice and opportunity of filing counter affidavit to the appellant 29. We have also perused the order passed by the Division Bench. Even the Division Bench of High Court has not considered various grounds raised by the appellant while confirming the order of the learned Single Judge. 30. It may be true that the 1st Respondent is getting pension as per the scheme mooted by the State but at the same time to claim pension under the scheme of 1980 the 1st Respondent has to furnish the required proof as contemplated under the scheme. When the claim is under a particular scheme unless one fulfills the eligibility criteria for grant of pension as mentioned in the scheme no applicant can claim such pensions as a matter of right. 31. Though the learned Counsel appearing for the respondent Writ Petitioner has placed reliance on the order passed by this Court in rejecting the Special Leave Petition in limine and also further judgment of this Court in the case of Union of India v. Sitakant S Dubhashi and Anr.3 we are of the view that the order passed by this Court and also the judgment in the case of Union of India v. Sitakant S. Dubhashi and Anr would not render any assistance in support of his claim. Whether a particular applicant is entitled for pension under the Swatantrata Sainik Samman Pension Scheme of 1980 is a matter which is required to be considered having regard to facts and documentary evidence produced in each case as such the judgment relied on by the learned counsel is of no assistance to support his case. 32. In view of the reasons stated supra we allow this appeal and set aside the judgment dated 29.08.2018 passed in W.A.(MD) No.907 of 2018 by the Madras High Court and consequently the Writ Petition filed in Writ PetitionNo.172917 stands dismissed with no order as to costs. (ASHOK BHUSHAN (R. SUBHASH REDDY NEW DELHI February 22 2021 ..........................J

High Courts to appoint ad-hoc judge under Art. 224A if vacancies are more than 20% of the sanctioned strength: Supreme Court

The court intended to activate the dormant provisions for the appointment of ad hoc Judges to deal with the unprecedented situation arising from the backlog of cases pending in the High Courts in the matter of Lok Prahari Through Its General Secretary S.N. Shukla, IAS (Retd.) v Union Of India & Ors [W.P.(C) NO. 1236 OF 2019]. The bench comprising of the Chief justice of India, Sanjay Kishan Kaul J. and Surya Kant J. noted with caution the increase in backlog cases which has now crossed the figure of 57 lakh coupled with the consistent ratio of vacancies of almost 40percent in the High Courts. The petitioner in this public interest litigation has highlighted that a large number of vacancies of High Court judges coupled with mounting arrears is a scenario that requires urgent attention and one of the modes to deal with both these aspects is resorting to Article 224A of the Constitution of India. Article 224 deals with the appointment of additional and acting judges. The objective as set out in the Article is to take care of any temporary increase in business of the High Court, or by reason of arrears of work therein. The appointment of an additional judge duly qualify to be the judge of a High Court has to be for a period not exceeding two years, or as the President may specify. The ground reality, however, remains that while determining the strength of different High Courts, the practice that has been adopted is that about 25% of the strength consists of additional Judges. The court broke down the article and observed that it begins with a non-obstante clause and was placed so that a request can be made to any person who has held the office of a Judge of that Court or of any other High Court, to sit and act as a judge of the High Court for the state. The second aspect is that while sitting and acting, such a judge would be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers, and privileges of the High Court judge; but for all other purposes shall not be deemed to be a High Court judge. The bench revisited some prior judgments on the issue of entitlement of allowances of such an ad hoc judge, in Justice P Venugopal vs. Union of India and Ors 3 (2003) 7 SCC 726. It was opined that an ad hoc judge does not become a part of the High Court and thus there is no question of computing his pension for the period he is appointed as an ad hoc judge. However the court, in the present instance, on account of 40% vacancies and an immense amount of talent decided that there was a definitive need for activating the provision. There are differences of perception with respect to different aspects such as, the trigger point to activate the provision, suggestion of an embargo situation, the methodology of appointment, the role of ad hoc Judges, age limit, tenure of appointment.

REPORTABLE IN THE CIVIL ORIGINAL JURISDICTION WRIT PETITIONNO. 1236 OF 2019 LOK PRAHARI THROUGH ITS GENERAL SECRETARY S.N. SHUKLA .. PETITIONER(S UNION OF INDIA & ORS. .. RESPONDENT(S JUDGMENT The intent of our order today is to activate a dormant provision of the Constitution of India Article 224A for the appointment of ad hoc Judges to deal with the unprecedented situation arising from the backlog of cases pending in the High Courts which has now crossed the figure of 57 lakh coupled with the consistent ratio of vacancies of almost 40 per cent. Any Constitution has to be dynamic and thus even if the intent behind including the provisionwas slightly different nothing prevents it from being utilised to subserve an endeavour to solve an existing problem For as it is always said ‘change is the only constant’ India was fortunate to have some of the best minds work on the framing of our Constitution as members of our Constituent Assembly The Indian Constitution is an elaborate one taking cues from the experience of various democracies. One of the essential aspects of our Constitution has been the separation of powers between the Judiciary Executive and Legislature Chapter V of Part VI of the Constitution of India commencing from Article 214 upto Article 231 relates to the High Courts in the states. Article 217 provides for the appointment and conditions of the office of a Judge of the High Court wherein the current age of retirement is 62 years. We may say that broadly it is amongst the youngest ages of retirement of judges of the apex Court of a state in comparison with other democracies of the world Article 224 deals with the appointment of additional and acting judges. The objective as set out in the Article is to take care of any temporary increase in business of the High Court or by reason of arrears of work therein. The appointment of an additional judge duly qualified to be the judge of a High Court has to be for a period not exceeding two years or as the President may specify. The ground reality however remains that while determining the strength of different High Courts the practice that has been adopted is that about 25% of the strength consists of additional Judges. In the present case we are concerned with Article 224A which reads as under 224A. Appointment of retired Judges at sittings of High Courts Notwithstanding anything in this Chapter the Chief Justice of a High Court for any State may with the previous consent of the President request any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that State and every such person so requested shall while so sitting and acting be entitled to such allowances as the President may by order determine and have all the jurisdiction powers and privileges of but shall not otherwise be deemed to be a Judge of that High Court Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do." The aforesaid Article begins with a non obstante clause and was placed so that a request can be made to any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a judge of the High Court for the state. The second aspect is that while sitting and acting such a judge would be entitled to such allowances as the President may by order determine and have all the jurisdiction powers and privileges of the High Court judge but for all other purposes shall not be deemed to be a High Court judge. The proviso stipulates that consent has to be obtained from the judge concerned. It is the say of the petitioner before us in this public interest litigation that a large number of vacancies of High Court judges coupled with mounting arrears is a scenario which requires urgent attention and one of the modes to deal with both these aspects is resorting to Article 224A of the Constitution of India. The Historical Perspective Article 224A was numbered as Article 200 in the Draft Constitution and discussed by the Constituent Assembly on 7th June 1949. The debate focused on the purpose and duration of the appointment of retired High Court judges. Three other specific issues hoc judge 1) whether a retired judge must consent to his appointment 2) whether a retired judge draws salary after his appointment as an ad 3) whether the appointment of ad hoc judges was to be made with the concurrence of the President Some part of the debates indicate that the retired judge was to be invited back only for their expertise and experience to decide cases that were particularly difficult or important and that it may not be advisable to call retired judges and asked them to clear off the arrears pending before the High Court. On the other hand Dr. B.R. Ambedkar had clarified that the intent behind the appointment of ad hoc judges was as an alternative to the appointment of temporary or additional judges which suggestion had not been accepted by the Constituent Assembly Thus ad hoc judges were not intended to be appointed for an indefinite length of time. In his words It seems to me that if you are not going to have any temporary or additional judges you must make some kind of provision for the disposal of certain business for which it may not be feasible to appoint a temporary judge in time to discharge the duties of a High Court Judge with respect to such matters."1 10. The aforesaid provision it was emphasized by Dr. Ambedkar was borrowedfrom Section 8 of the Supreme Court of JudicatureAct 1925 in the UK and similar provisions in America. It was explained that the proviso was inserted to avoid a situation where the refusal of a retired judge to accept the invitation could be treated as remiss of his conduct. 11. Another important aspect as emerges from the debates was that it was the view of Dr. Ambedkar himself that the matter of salary and 1 Speech by Dr. B.R. Ambedkar on 7th June 1949 Constituent Assembly Debates Vol. VIII ¶181. benefits would be governed by the rules governing pension. Thus all benefits would be admissible minus the pension though the precise definition of "privileges" of an ad hoc judge was left to the Parliament to decide. The aspect of concurrence of the President was also debated and introduced to bring greater transparency in the process. The aforesaid provision for appointment of ad hoc judges was removed by the ConstitutionAct 1956. The objective of that Act clarifies that this was done as the provision for recalling retired judges for a short period had been found to be neither adequate nor satisfactory. It was sought to be replaced by the current Article 224 making provisions for appointment of additional judges to clear off arrears and for the appointment of acting judges in temporary vacancies There appears to have been a legislative re think as the provision for the appointment of ad hoc judges was reintroduced vide Article 224A by the ConstitutionAct 1963. The Lok Sabha debates did not specifically refer to the philosophy behind the re introduction but this can be extrapolated from the purpose behind introducing ad hoc appointments in the Supreme Court of India. The debates do reflect the two points of view i.e. a worry about a possible demon of patronage" and on the other hand views being expressed that it was possibly better to call back a retired judge instead of appointing a member of the Bar for a few months. The amendments seeking to restrict the term of ad hoc judges to three months was however negated while inserting this provision in the Constitution Judicial Views : 14. Now we turn to the aspects arising from the aforesaid provision being debated in certain judicial precedents. In Krishan Gopal vs. Shri Prakash Chandra & Ors.2 a Constitution Bench of this Court ruled on the issue of whether a person sitting and acting as a Judge of the High Court under Article 224A of the Constitution has the jurisdiction to try an election petition under Section 80 A of the Representation of the People Act 1951. Debate arose in the context of a judge of the Madhya Pradesh High Court who was sitting and acting as a judge of that Court under Article 224A of the Constitution and his appointment was to last for a period of one year or till the disposal of elections petitions entrusted to him whichever was earlier. In that context it was observed that if a person appointed under Article 224A of the Constitution was not considered to be a judge of the High Court for the purpose of jurisdiction powers and privileges the question of appointing such a person would never arise. The provision could not thus be rendered a 21 SCC 128 dead letter. It was clarified that the effect of the provision would create a deeming fiction and the Court observed “15.The person requested while so sitting and acting shall have all the jurisdiction powers and privileges of a judge of the High Court. Such a person shall not otherwise be deemed to be a judge of that Court. The words "while so sitting and acting show that the person requested not merely has the Jurisdiction powers and privileges of a Judge of the High Court he also sits and acts as a Judge of that Court. Question then arises as to what is the significance of the concluding words "but shall not otherwise be deemed to be a Judge of that Court". These words in our opinion indicate that in matters not relating to jurisdiction powers and privileges the person so requested shall not be deemed to be a Judge of that Court. The dictionary meaning of the word "otherwise" is "in other ways" "in other circumstances" in other respects". The word "otherwise" would therefore point to the conclusion that for the purpose of jurisdiction powers and privileges the person requested shall be a Judge of the concerned High Court and for purposes other than those of jurisdiction powers and privileges the person requested shall not be deemed to be a Judge of that Court. It would for example be not permissible to transfer him under Article 222 of the Constitution The use of the word "deemed" shows that the person who sits and acts as a Judge of the High Court under Article 224 A is a Judge of the said High Court but by a legal fiction he is not to be considered to be a Judge of the High Court for purposes other than those relating to jurisdiction powers and privileges.7 SCC 726 entitled to further pensionary benefits after he demits the Constitutional office that he holds in terms of Article 217. It may also be appropriate to turn to some of the opinions expressed on the requirement of consent of a retired Judge. In Union of India vs. Sankalchand Himatlal Sheth 4 it was observed that the reason for insisting on consent was that a retired Judge cannot be compelled to work as an ad hoc judge against his consent. This is because he ceases to be a judge of the High Court on demitting office at the prescribed age and is not bound by the conditions of service It is appropriate to refer to more opinions albeit of the High Court to know how this particular aspect had been dealt with in the opinion of the High Court. In Anna Mathew vs. N. Kannadasan though the issue was not directly in question the aspect of appointment of an ad hoc judge under Article 224A of the Constitution had been adverted to.5 The context of the view on the expression "ad hoc" is present only in Article 224A and Article 127. In that context a reference had been made to the Constitution Bench judgment of this Court in Ashok Tanwar and Anr. vs. State of H.P. and Others.6 Here there are observations to the effect that a consultation with the Collegium would 44 SCC 193 5 2009LW 87(¶ 47 62 SCC 104 not be necessary inasmuch as the Chief Justice is required to recommend the name of a sitting or a retired judge. However that was a case dealing with appointments to the Consumer Disputes Redressal Commission and in that context consultation with the Collegium was thought not necessary. However if we turn to the judgment in Ashok Tanwar s casewe find there was actually no real discussion on Article 224A. What was in question was whether Section 16 of the Consumer Protection Act 1986 a consultation with acting Chief Justice was sufficient compliance of the case. 19. The last judicial view we seek to refer to is of the Full Bench of the High Court of the Judicature at Allahabad in Indian Society of Lawyers vs. President of India which elaborately dealt with the interpretation of Article 224A of the Constitution.7 It was observed that an ad hoc judge does not fall within Article 216 and that he is not a judge of the High Court so sitting and acting. The President does not appoint him and only gives his consent to the Chief Justice to request a former judge to sit and act as a judge of the High Court. Thus the process of appointment under Clauseof Article 217 does not apply to him. This is also the reason why while dealing with the aspect of 75 All LJ 455over the last two years as we have already mentioned. A number of vacancies arising every year are barely filled in by fresh appointments. Thus it remains an unfulfilled challenge to bring the appointment process to such numbers as would be able to cover the vacancies existing and arising. Without endeavouring to blame anyone a ground reality remains that there are manifold reasons for the same. 21. The present system of appointments as envisaged by the Constitution and as elucidated in the Collegium system makes it clear that the first step is a recommendation from that High Court by a collegium of the three senior most judges presided over by the Chief Justice of the High Court. This process in turn requires wide consultation by the Chief Justice of the High Court to identify the requisite talent so as to make the recommendations. Contrary to some portrayed beliefs as if this is an extremely subjective system every Chief Justice is actually required to solicit names from different sources whether it be sitting judges retired judges or prominent members of the Bar. It is from this pool of talent that he selects after a discussion before the collegium the most suitable candidates. It is thus of utmost importance that the flow of recommendations continues for the appointment process to work successfully. The vacancies existing and arising are always known as a judge demits office in the High Court on his 62nd birthday. The only exception can be an unforeseen eventuality or an elevation to the Supreme Court of India. Thus every endeavour has to be made to see that the recommendations are made well in advance while maintaining a balance between recommendations from the Bar and the subordinate judiciary about six months in advance as per norms which were thought to be the appropriate time period within which the whole process of appointment ought to be concluded. This aspect has been emphasized by us in another connected matter i.e. TP(C) No. 2419 2019 22. We may also note that on the basis of talent available considering that the age profile for elevation from the Bar is between 45 to 55 years there may be situations where at one go all recommendations against vacancies may not be possible to be made. However nothing prohibits or rather the exigencies of the appointment process requires recommendations to be periodically made without unnecessarily waiting for the outcome of the first set of recommendations. If this continuing pipeline operates and even if some recommendations fall by the wayside over a reasonable period of time the vacancies can be filled up The current situation of vacancies especially in some of the larger courts with very few recommendations in the pipeline seems to be the genesis of this problem The data placed before us as drawn from the National Judicial Data Grid shows that five High Courts alone are responsible for 54% of the pendency of over 57 51 312 cases the High Courts of Allahabad Punjab & Haryana Madras Bombay and Rajasthan. The Madras High Court has among the highest arrears in the country of 5.8 lakh cases despite having fewer vacancies than most other High Courts but less than half the arrears as compared to Madrashow to make this process more efficacious and 2) till the vacancies are filled up what is it that can support a quicker adjudicatory process The latter undoubtedly requires more number of judges and thus the present debate has arisen for the purposes of utilization of the existing Article 224A of the Constitution to appoint ad hoc judges in the context of a large number of existing vacancies and pending arrears. Memorandum of Procedure The Union of India vide additional affidavit dated 13.04.2021 had placed before us a Memorandum of Procedure which was prepared in the year 1998 in pursuance to the judgment of the Supreme Court in Supreme Court Advocate on Record Association v. Union of India8read with the advisory opinion rendered in Special Reference No.1 19989 for “attendance of retired Judges at sittings of High Courts.” It is the say of the Union of India that the appointment of retired Judges under Article 224A should be a 84 SCC 441 97 SCC 739 collaborative process between the Executive and the Judiciary and the procedure prescribed in para 24 may be followed till it is amended. The relevant paragraph of the MoP reads as under “24. Under Article 224A of the Constitution the Chief Justice of a High Court may at any time with the previous consent of the President request any person who has held the office of a Judge of that court or of any other High Court to sit and act as a Judge of the High Court of that State. Whenever the necessity for such an appointment arises the Chief Justice of India will after obtaining the consent of the person concerned communicate to the Chief Minister of the State the name of the retired Judge and the period for which he will be required to sit and act as Judge of the High Court. The Chief Minister will after consultation with the Governor forward his recommendation to the Union Minister of Law Justice and Company Affairs. The Union Minister of Law Justice and Company Affairs would then consult the Chief Justice of India in accordance with the prescribed procedure. On receipt of CJI’s advice the same would be put up to the Prime Minister who will then advise the President as to the person to be appointed to it and act as a Judge of the High Court. As soon as the President gives his consent to the appointment the Secretary to the Government of India in the Department of Justice will inform the Chief Justice of the High Court and the Chief Minister(s) and will issue the necessary notification in the Gazette 31. We may notice that the subsequent endeavour to introduce the National Judicial Appointments Commission through a constitutional amendment could not withstand the constitutional challenge in Supreme Court Advocates on Record Association & Anr. v Union of India5 SCC 1 consultation with the Chief Justice of India. In this behalf the final view of the Judiciary was sent after discussion and there is no change in the aforesaid. The MoP has been circulated to the Chief Justices of the Law Commission Reports The path we seek to traverse is supported by the Law Commission Reports. In fact the 124th report of the Law Commission delivered in 1988 dealt with the aspect that a fresh look was required for High Court arrears. In that context it has been recognized that retired judges have several decades of adjudicatory experience and their talents could be utilized to dispose of mounting arrears. On account of their experience they would be quick in disposing cases and being unburdened with administrative or admission work they could spend their entire time hearing old matters. Thus the appointment of retired judges as ad hoc judges was seen as a part of a "multipronged attack on arrears and was strongly recommended This is not a first time that this aspect was noted. The 79 th Report of the Law Commission of 1979 had suggested recourse to this Article to sub serve the said objective. We may however notice that in 245th Report of 2014 some concerns were expressed about this process on account of the appointment being for a short period and the accountability in the functioning and performance of ad hoc judges. 34. We may notice that in the 188th Report of the Law Commission of 2003 that in the interest of clearing arrears in the High Court in various types of cases including criminal matters it was felt that it was the need of the hour to make appointments under Article 224A of the Constitution. The concern was to bring the arrears within manageable Some other views In the recently published treatise a view had been expressed that one great advantage of appointing ad hoc judges under Article 224 A is that it provides for a ready made pool of known judicial talent which can be relied upon to be competent clean and efficient. This can be an effective weapon to deal with the disposal of forgotten and pending cases more so in the context of inordinate delay in fresh judicial In the Chief Justices’ Conference held on 22nd and 23rd April 2016 a resolution was adopted dealing with filling up of vacancies in 11 A. M. Singhvi “Beating the Backlog Reforms in Administration of Justice in India ” in S. Khurshid et. al. Judicial Review Process Powers and Problems Essays in Honour of Upendra Baxi) page 53 High Courts and to address the problem of arrears in criminal and civil cases de hors Article 224A where it was perceived to be a course to follow. The Resolution states as under: Resolved further that keeping in view the large pendency of civil and criminal cases especially criminal appeals where convicts are in jail and having due regard the recommendation made by the 17th Law Commission of India in 2003 the Chief Justices will actively have regard to the provisions of Article 224A of the Constitution as a source for enhancing the strength of Judges to deal with the backlog of cases for a period of two years or the age of sixty five years whichever is later until a five plus zero pendency is achieved Article 224A earlier recourse 37. We have already noticed that Article 224A has largely been a dormant provision with only three recorded instances of its invocation Justice Suraj Bhan of the Madhya Pradesh High Court was appointed as an ad hoc Judge on 23.11.1972 after he had demitted office on 2.2.1971 His appointment was for a period of one year or till the disposal of election petitions entrusted to him whichever was earlier. Thus it was with a specific purpose Justice P. Venugopal of the Madras High Court was a Judge for a short period of less than three years and close to his retirement he was appointed to a Commission of Inquiry to inquire into certain incidents that took place in Coimbatore town on 23.7.1981 and again appointed to a one man commission to inquire into incidents of communal riots by order dated 22.3.1982. He was appointed to the post of ad hoc Judge in the year 1982 and yet again his term was renewed for a period of one year from 19.8.1983 39. Most recently in the year 2007 Justice O.P. Srivastava was appointed as an ad hoc Judge in the Allahabad High Court. He was one of the Members of the Special Bench constituted for hearing of the Ayodhya matter with the avowed object of facilitating continued and continuous hearing of the matter The Challenge Ahead 40. We have little doubt that challenge of mounting arrears and existing vacancies requires recourse to Article 224A of the Constitution to appoint ad hoc judges which is a ready pool of talent as a methodology especially for clearing the old cases. The existing strength of permanent and additional judges can be utilized for current and not so old cases. The ad hoc judges are absolved even from the administrative responsibilities. They can concentrate on old cases which are stuck in the system and may require greater experience. For example it is often perceived that a Regular Second Appeal is an area of concern and the more experienced judges are able to attend to this area with more promptness. We see no reason why there should be an unending debate of taking recourse to Article 224A when such a provision exists in the Constitution. It should not be made a dead letter more so when the need is so pressing 42. We are unable to accept the plea of the learned Attorney General that though the Government of India may not have any in principle opposition to the aforesaid first the existing vacancies should be filled in. In our view this would be a self defeating argument because the very reason why at present Article 224A has been resorted to is non filling up of vacancies and the mounting arrears. We may however hasten to add that the objective is not to appoint ad hoc judges instead of judges to be appointed to the regular strength of the High Court apprehension expressed by Mr. Vikas Singh Senior Counsel President of the Supreme Court Bar Association). The very provision makes it clear that it does not in any way constrain or limit the regular appointment process and consent of the retired judge is sought to sit and act as a judge of the High Court. One may say that this largely a transitory methodology till all the appointment processes are in place though that may not be the only reason to take recourse to the aforesaid 43. We also have no doubt that we would not like to encourage an environment where Article 224A is sought as panacea for inaction in making recommendations to the regular appointments. In order to prevent such a situation we are of the view that certain checks and balances must be provided so that Article 224A can be resorted to only on the process having being initiated for filling up of the regular vacancies and awaiting their appointments. We are thus of the view that there should not be more than 20% of the vacancies for which no recommendation has been made for this Article to be resorted to. We put this figure not out of the blue but looking to the entire scenario where sometimes it may be difficult to find the requisite talent at a particular stage which may have to await some time period. However certainly it cannot be countenanced that no or very few recommendations are made for a large number of vacancies by resorting to Article 224A 44. We may have to turn to the aspect of the process to be followed for making present appointments. The Constitution of India did not provide for a collegium system. This is an aspect which emerged from the cases of SP Gupta v. Union of India 12 Supreme Court Advocates on Record v. Union of India 13 and in Re: Special Reference 1 of 199814 and its modified forms has remained in existence since then. The endeavour of the Government to bring in the National Judicial Appointments Commission did not pass the muster of the constitutional mandate and was struck down in Supreme Court Advocates on Record Association and Anr. v. Union of India.15 Thus the collegium of the Supreme Court has an important role to play in the appointment of judges of the High Court. In the aforesaid conspectus the exercise by the Chief Justice of the High Court the authority vested under Article 224A of the Constitution would require a prior consent from the judge concerned and that recommendation in turn has to be routed through the collegium of the Supreme Court. Of course the previous consent of the President of Indiais necessary but looking to the very nature of this appointment which is of a retired judge who for his judicial appointment has gone through the complete process time period of maximum three months is more than sufficient to carry the process through all stages. This in turn would be facilitated if the Chief 122 SCR 365 134 SCC 441 14 AIR 1999 SC 1 15 2015 11 SCALE 1 Justice of the High Court takes the initial steps at least three months in advance so that there is no unnecessary delay in this regard 45. We may add here that we are quite conscious of the difference in the manner of appointment of permanent and additional Judges and ad hoc judges in the High Court. Thus two scenarios of appointment of Judges arise under Article 217 of the Constitution of India and the appointment has to be by the President by warrant under his hand and seal 1 SCC 226 parameters and is intended to facilitate a cogent flow to the guidelines sought from us. We may notice that it is a common case that the present proceedings are not adversarial but a method to make the provisions of Article 224A into a practical and working arrangement. We now proceed to issue the guidelines i. Trigger Point for activation The discretion of the Chief Justice of the High Court under Article 224A is not constrained but as stated some general guidelines are required to be laid so that power conferred under the said provision is exercised in a transparent manner. The Trigger Point cannot be singular and there can be more than one eventuality where the it arises a. If the vacancies are more than 20% of the sanctioned strength b. The cases in a particular category are pending for over five c. More than 10% of the backlog of pending cases are over five d. The percentage of the rate of disposal is lower than the institution of the cases either in a particular subject matter or generally in the Court e. Even if there are not many old cases pending but depending on the jurisdiction a situation of mounting arrears is likely to arise if the rate of disposal is consistently lower than the rate of filing over a period of a year or more ii. Embargo Situtation 54. We have already observed that the recourse to Article 224A is not an alternative to regular appointments. In order to emphasise this aspect we clarify that if recommendations have not been made for more than 20% of the regular vacancies then the trigger for recourse to Article 224A would not arise In this behalf we may take note of the data placed before us which would suggest that there are only ten High Courts having fewer than 20% vacancies as on 1.4.2021 seven High Courts having fewer than 10% vacancies in permanent appointments but then there may be additional Judges and there are cases which are in the pipeline. Thus the parameter we have adopted is that at least the recommendations should have been made leaving not more than 20% vacancies in order to take recourse to Article 224A iii. Pre recommendation process a. Past performance of recommendees in both quality and quantum of disposal of cases should be factored in for selection as the objective is to clear the backlog b. The Chief Justice should prepare a panel of Judges and former Judges. Naturally this will be in respect of Judges on the anvil of retirement and normally Judges who have recently retired preferably within a period of one year. However there can be situations where the Judge may have retired earlier but his expertise is required in a particular subject matter. There may also be a scenario where the Judge(s) may prefer to take some time off before embarking upon a second innings albeit a short one. In the preparation of panel in order to take consent and take into account different factors a personal interaction should be held with the Judge concerned by the Chief Justice of the High Court iv. Methodology of Appointment 56. We have already noticed that para 24 of the MoP lays down a procedure for appointment under Article 224A of the Constitution. We have also noticed that it is not law laid down in this behalf under Article 141 of the Constitution but as a first step it may be more appropriate to follow this procedure laid down in para 24 of the MoP to see the progress made and impediments if any. We may however notice that since the Judges are already appointed to the post through a warrant of appointment the occasion to refer the matter to the IB or other agencies would not arise in such a case which would itself shorten the time v. Time to complete the process The requirement that recommendations should be made six months in advance by the Chief Justice of the High Court emanates from the concept that the said period should be required to complete the process in case of a regular appointment of a Judge under Article 217 or 224 of the Constitution of India. In view of number of aspects not required to be adverted to for appointment under Article 224A we are of the view that a period of about three months should be sufficient to process a recommendation and thus ideally a Chief Justice should start the process three months in advance for such appointment vi. Tenure of Appointment The tenure for which an ad hoc Judge is appointed may vary on the basis of the need but suffice to say that in order to give an element of certainty and looking to the purpose for which they are appointed generally the appointment should be for a period between two to three vii. Number of Appointments Role of ad hoc Judges 59. We are also of the view that at least for the time being dependent on the strength of the High Court and the problem faced by the Court the number of ad hoc Judges should be in the range of two to five in a The primary objective being to deal with long pending arrears the said objective will be subserved by assigning more than five year old cases to the ad hoc Judges so appointed. However this would not impinge upon the discretion of the Chief Justice of the High Court if exigencies so demand for any particular subject matter even to deal with the cases less than five years old though the primary objective must be kept in mind 61. One of the issues raised is of constitution of Benches of an ad hoc Judge and sitting Judge in matters to be heard by Division Bench and as to who would preside. We are of the view that the Division Bench at present may be constituted only of ad hoc Judges because these are old cases which need to be taken up by them. We also make it clear that because of the very nature of the profile and work to be carried out by ad hoc Judges it would not be permissible for an ad hoc Judge to perform any other legal work whether it be advisory of arbitration or ix. Emoluments and Allowances 62. We have already discussed in the substantive part of the order that the emoluments and allowances of an ad hoc Judge should be at par with a permanent Judge of that Court at the relevant stage of time minus the pension. This is necessary to maintain the dignity of the Judge as also in view of the fact that all other legal work has been prohibited by us in terms of the aforesaid guidelines 63. We also make it clear that emoluments to be paid would be a charge on the Consolidated Fund of India consisting of salary and allowances. We may also clarify that it is a misconceived notion that there will be an additional burden on the State Government if some perquisites are made available to ad hoc Judges by the State Government. The trigger for appointment of ad hoc Judges is the very existence of vacancies and had these vacancies been filled in the State Government would have incurred these expenses anyhow. In any case there is a limit placed on the number of ad hoc Judges and thus the existence of vacancies actually results in the savings for the State Government(s) which would otherwise be amount expended as their allowances and perks 64. We make clear when we allowance perks perquisites all benefits as are admissible to the permanent additional Judge(s) would be given to the ad hoc Judge(s For clarity we may say that as far as housing accommodation is concerned either the rent free accommodation should be made available or the housing allowance should be provided on the same terms and conditions. For all practical purposes the ad hoc Judge would receive the same emoluments allowances and benefits as are admissible to the permanent additional Judges. We may note that the Second Schedule Part D of the Constitution of India stipulates the emoluments and benefits that have to be conferred on the judges of the Supreme Court and of the High Courts 65. We have taken the first step with the hope and aspiration that all concerned would cooperate and retiring retired Judges would come forth and offer their services in the larger interest of the Judiciary. The guidelines cannot be exhaustive and that too at this stage. If problems arise we will endeavour to iron them out. We must set aside apprehensions if any to chart this course and we are confident that there will be a way forward In view of the requirements of a continuous mandamus to see how a beginning has been made list after four months calling upon the Ministry of Justice to file a report in respect of the progress made [SANJAY KISHAN KAUL [SURYA KANT APRIL 20 2021

Inordinate delay in acquiring land not a ground for denying purchase rights to the land: Bombay High Court

In the matter of municipal administration and land acquired for public purposes, any inordinate delay by the authorities is not a ground for retaining any purchase rights of the prospective purchaser. This was recently concluded in the matter of Jayantilal Himmatlal Oswal v Lonawala Municipal Council & Ors [WP NO.205 OF 2021] before the bench constituting S.J. Kathawalla J & Surendra P. Tavade J. The petitioner is the owner of the land and the respondent manifests the State Town Planning authorities along with the Lonavla Municipal Council. Out of his land measuring 1946 Sq mtrs., 390 sq mtrs and 204.53 Sq. Mtrs was served by the development plan of the Lonavala Municipal Council was sanctioned by the Government of Maharashtra vide G.R. No. TPS/1876/940 dated 28th February 1978. Out of his land ad-measuring 1704.93 Sq. Mtrs. the Petitioner by a sale deed dated 10th November, 2009, sold 57.49 Sq. Mtrs. of land on and from 10th November, 2009, till date holds / owns the said land ad-measuring 1683.46 Sq. Mtrs. in place of the original 1945.46 Sq. Mtrs. The above reservations were continued even after the Development Plan underwent revision in 2005. It was contended that the Lonavala Municipal Council failed to acquire the said land which was kept under reservation for the purpose of Play Ground for Primary School in an inadvertent gap for a period of 40 years and even after the service of purchase notice under section 127 of the Maharashtra Regional and Town Planning Act, the statutory period of purchase of the land lapsed. The court observed in confirmation with the above contention that “It has not been denied that the Respondent has not taken any steps for acquisition of the said land for a period of 40 years i.e. from 28th February, 1978 when the development plan of the Lonavala Municipal Council was sanctioned and under which 390 Sq. Mtrs. of the Petitioner’s Land was reserved for the purpose of PlayGround for Primary School and which reservation continued even under the revised development plan which came into force on 27th August, 2005.” It was further observed that the petitioner issued a purchase notice on 21st July, 2018, the respondent failed to take any steps towards commencement of the acquisition. By the G.R. dated 4th June, 2020 issued by the State of Maharashtra under Section 154 of the MRTP Act, an extension of 9 months had also been granted only in respect of the permissions granted for development/construction work without recovering from the Applicants any tax or interest with regard to the extended period, and does not apply to the period prescribed in the provisions pertaining to acquisition.

on 13 04 2021 on 16 04 PA Nitin Jagtap 1 10 34 WP 205 2021.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONWRIT PETITION NO.205 OF 2021Jayantilal Himmatlal Oswal )Age : 64 years Occupation : Business )R of House No. 56 2 F Ward Lonawala )Taluka Maval District Pune)…Petitioner Versus1. The State of Maharashtra )Through its Urban Development Department )Mantralaya Mumbai )2.Director of Town Planning )State of Maharashtra Ofce at Commissioner of Pune )Pune)3.Lonawala Municipal Council )Through its Chief Ofcer Lonawala )Taluka Maval District Pune )...Respondents Mr.U.B.Nighot for the Petitioner. Mr.S.B.Kalel AGP for the State. Mr.A.A.Garge for Respondent No. 3. on 13 04 2021 on 16 04 PA Nitin Jagtap 2 10 34 WP 205 2021.docCORAM : S.J. KATHAWALLA &SURENDRA P. TAVADE JJ. DATE : 9TH APRIL 2021(THROUGH VIDEO CONFERENCING)ORAL ORDER:1.The Petitioner is the owner of land more particularly set out describedhereinafter. Respondent No.1 is the State of Maharashtra Respondent No.2 is theDirector of Town Planning Authority and Respondent No. 3 is the Lonavala MunicipalCouncil. 2.The Petitioner has fled the above Writ Petition inter alia seeking thefollowing reliefs :“(b) That by an appropriate writ order and or direction it isdeclared that the reservation designation or allotmentprovided under the development plan and reviseddevelopment plan of Respondent No. 3 LonavalaMunicipal Council in respect of 390 Sq. Mtrs. Land fromSurvey No. 21 Hissa 1 B Lonavala within the jurisdiction ofLonavala Municipal Council is lapsed and said land isavailable to Petitioner for the purpose of development orotherwise as is permissible That by an appropriate writ order and or direction it isdeclared that the said reserved land i.e. 390 Sq. Mtrs. Land on 13 04 2021 on 16 04 PA Nitin Jagtap 3 10 34 WP 205 2021.docfrom Survey No. 21 Hissa 1 B Lonavala within jurisdictionof Lonavala Municipal Council has been de reserved underthe provisions of Maharashtra Regional Town Planning Actas per the purchase notice dated 21.7.2018 for want of validsteps by Lonavala Municipal Council. ” 3.The facts and circumstances giving rise to the present petition are inbrief set out hereunder : 3.1.Under a registered sale deed dated 17th October 1986 the Petitioner andhis brother purchased a plot of land ad measuring 1945.46 Sq. Mtrs. bearing SurveyNo. 21 Hissa No. 1B alongwith a bungalow standing thereon bearing municipal houseNo. 92 ward Gto the Respondent No.3 and requested the Respondent No. 3 Lonavala on 13 04 2021 on 16 04 PA Nitin Jagtap 5 10 34 WP 205 2021.docMunicipal Council to take appropriate steps for acquisition of the said land of thePetitioner. 3.10. After serving the purchase notice on the Respondent No. 3 LonavalaMunicipal Council on 21st July 2018 under Section 127 of the said Act the Petitionerwaited for the statutory period of two years i.e. till 20th July 2020 during which nosteps in regard to the acquisition of the said land were taken by the Respondent No.3 Council. 3.11.The Petitioner is therefore compelled to fle the above Writ Petitionseeking reliefs set out in paragraph 2 hereinabove.4.Smt. Suvarna Ogale acting chief ofcer of Respondent No.3 LonavalaMunicipal Council has fled an Afdavit dated 23rd March 2021 on behalf ofRespondent No.3 stating as under :4.1.It is true that the Petitioner had on 21st July 2018 served a purchasenotice on the Respondent No. 3 Council under Section 127 of the MRTP Act.4.2.Since the Petitioner fled the above Writ Petition in December 2020 Respondent No. 3 wrote a letter dated 17th February 2021 to their Advocate andrequested him to seek an extension of 6 months from the Court on the ground that theissue is pending before the General Body of the Lonavala Municipal Council and sincea nationwide lockdown was declared from 24th March 2020 no decision could betaken.4.3.In the present matter the purchase notice under Section 127 of said Act on 13 04 2021 on 16 04 PA Nitin Jagtap 6 10 34 WP 205 2021.docwas issued on 21st July 2018 and the statutory period of 2 years expired on 21st July 2020 i.e. during the Pandemic.4.4.The State of Maharashtra has issued a G.R. dated 4th June 2020 underSection 154 of the MRTP Act 1966 by which extension of 9 months has been grantedfor completion of development work and other stipulated work. Though theacquisition matters are not included in the said G.R. the Court may give beneft of thesaid G.R. dated 4th June 2020 to the present Respondent No. 3 Council.5.The learned Advocate for the Petitioner took us through the facts in thepresent Petition which are already set out in paragraph 3 hereinabove. He pointed outthat the development plan under which the said land belonging to the Petitioner wasreserved was sanctioned on 28th February 1978. Since the said land was not acquiredwithin 40 years from the date on which the development plan came into force thePetitioner served a statutory notice dated 21st July 2018 under Section 127(1) of thesaid Act to the Respondent No.3 Council. Respondent No.3 admittedly failed toacquire the said land within the statutory period of two years. In the circumstances asprovided under Section 127 of the Act the reservation of the said land is deemed tohave been lapsed and the said land stood released from the reservation and becameavailable to the owner Petitioner for the purpose of development. However theRespondents failed to comply with the mandate provided in sub Section 2 of Section127 of the Act i.e. issuing a Notifcation in the ofcial gazette notifying the lapsing ofthe reservation of the said land thereby compelling the Petitioner to fle the above on 13 04 2021 on 16 04 PA Nitin Jagtap 7 10 34 WP 205 2021.docWrit Petition seeking the reliefs set out in paragraph 2 hereinabove. It is alsosubmitted that admittedly the extension granted by the Government by G.R. dated 4thJune 2020 pertains to the development work and other stipulated work required to becarried out by the Applicants and does not apply to matters pertaining to acquisition.Therefore the question of this Court granting the beneft of the extension to theRespondent No. 3 Council does not arise. It is submitted that even otherwise thesaid extension admittedly came to an end on 4th March 2021.6.The learned Advocate appearing for the Respondent No. 1 State hassubmitted to the Orders of this Court.7.The learned Advocate appearing for the Respondent No. 3 has reiteratedwhat is stated in the afdavit fled on behalf of the Respondent No. 3 Council thecontents of which are already set out in paragraph 4 hereinabove.8.We have perused the Writ Petition as well as the afdavits fled by theparties. We have considered the facts of the present case the submissions made by thelearned Advocates for the parties and the case law relied upon by the Advocate for thePetitioner.9.Chapter VII of the MRTP Act deals with “Land Acquisition”. Section125 of the MRTP Act deals with “Compulsory acquisition of land needed for purposeof regional plan development plan or town planning etc.” Section 126 of the MRTPAct deals with “Acquisition of land required for public purposes specifed in plans.”Section 127 of the MRTP Act pertains to “Lapsing of reservations”. Section 127 of the on 13 04 2021 on 16 04 PA Nitin Jagtap 8 10 34 WP 205 2021.docMRTP Act is relevant for deciding the issues raised in the present Writ Petition and istherefore reproduced hereunder :“127. Lapsing of reservationsIf any land reserved allotted or designated for anypurpose specifed in any plan under this Act is not acquiredby agreement within ten years from the date on which a fnalRegional plan or fnal Development Plan comes into force[or if a declaration under subsectionorof section 126is not published in the Ofcial Gazette within such period the owner or any person interested in the land may servenotice alongwith the documents showing his title orinterest in the said land on the Planning Authority theDevelopment Authority or as the case may be theAppropriate Authority to that efect and if within twelvemonths] from the date of the service of such notice the landis not acquired or no steps as aforesaid are commenced forits acquisition the reservation allotment or designationshall be deemed to have lapsed and thereupon the landshall be deemed to be released from such reservation allotment or designation and shall become available to theowner for the purpose of development as otherwise on 13 04 2021 on 16 04 PA Nitin Jagtap 9 10 34 WP 205 2021.docpermissible in the case of adjacent land under the relevantplan.On lapsing of reservation allocation or designation ofany land under sub sectionthe Government shall notifythe same by an order published in the Ofcial Gazette.]”10.The Respondent No. 3 has not denied that the Respondent No.3 has nottaken any steps for acquisition of the said land for a period of 40 years i.e. from 28thFebruary 1978 when the development plan of the Lonavala Municipal Council wassanctioned and under which 390 Sq. Mtrs. of the Petitioner’s Land was reserved forthe purpose of Play Ground for Primary School and which reservation continued evenunder the revised development plan which came into force on 27th August 2005.Though the Petitioner issued a purchase notice on 21st July 2018 the RespondentNo.3 failed to take any steps towards commencement of the acquisition. By the G.R.dated 4th June 2020 issued by the State of Maharashtra under Section 154 of theMRTP Act an extension of 9 months is granted only in respect of the permissionsgranted for development construction work without recovering from the Applicantsany tax or interest with regard to the extended period and does not apply to the periodprescribed in the provisions pertaining to acquisition. Therefore the question of thisCourt granting beneft of the G.R. dated 4th June 2020 to the Respondent No. 3 Council does not arise. In any event even if it is assumed that the extension of 9 on 13 04 2021 on 16 04 PA Nitin Jagtap 10 10 34 WP 205 2021.docmonths granted under the said G.R. dated 4th June 2020 applied to matters pertainingto acquisition the said extension has lapsed on 4th March 2021 by which time theRespondent No. 3 Council has not taken any steps to acquire the Petitioner’s landad measuring 390 Sq. Mtrs. 11.We are therefore convinced that in the instant case the LonavalaMunicipal Council not only failed to acquire the land of the Petitioner reserved underthe fnal development plan which came into force from 28th February 1978 and therevised development plan which came into force on 27th August 2005 but also failedto take steps towards commencement of the acquisition within two years from the dateof receipt of the purchase notice resulting in lapsing of the said reservation. 12.For the above reasons we allow the Writ Petition in terms of prayerclausesandreproduced in paragraph 2 hereinabove. However there shall be noOrder as to costs.13.The Writ Petition is accordingly disposed of.

The students who were not able to complete their degree for whatever reason,may be allowed two years’ periods beyond the normal period to clear the backlog to be qualified for the degree: High Court Of Calcutta

The prayer was all about the person to appear in the unclear Part-I examination, this was held in the judgement passed by a single bench judge comprising HON’BLE JUSTICE AMRITA SINHA, in the matter Safia Khatun Vs. The State of West Bengal & Ors [ WPA No. 9902 of 2021]. The petitioner was a student of a college affiliated with the University of Burdwan pursuing a BA in Hons. three-year degree course, She appeared in BA Part-I Hons. Examination wherein the year 2017 she couldn’t make it up and was supposed to give the same examination in the year 2018 accordingly she was passed but the issue was she was not able to attend the upcoming exams Part-I BNGG paper due to ill-health, And she gave the same exam has before to get into the upcoming exam Part-I BNGG paper but she couldn’t because she failed in the year 2020. Then she made a representation before the University praying for a direction to allow her to appear in the unclear Part-I examination. As the representation of the petitioner was not considered, she approached this Court by 2 filing a writ petition being [WPA 10436 of 2020] which stood disposed of by an order dated 21st January 2021. The order of the Court duly complied and the reasoned order was communicated to her. The reasoned order dated 31st March 2021 rejecting the prayer of the petitioner is impugned in the present writ petition. Also, The University believed that at present there is no scope for retaking any examination of the petitioner The petitioner draws the attention of the Court to the UGC guidelines on the determination of a uniform span period within which a student may be allowed to qualify for a degree. The guidelines mention that a student who, for whatever reasons, is not able to complete the programme within the normal period or the minimum duration prescribed for the programme, may be allowed two years’ periods beyond the normal period to clear the backlog to be qualified for the degree. In support of his submission, the petitioner has relied upon the judgment delivered by the Hon’ble Supreme Court in the matter of Delhi Air take Services Pvt. Ltd. & Anr. –vs- State of Uttar Pradesh & Anr.; (2011) [9 SCC 354 paragraphs 126, 129 and 132]. But, The learned advocate for the University of Burdwan relies upon the University Regulation 4(UG) of Undergraduate Examinations Regulations and submits that the Regulation categorically lays down that the outer limit for completing the course is seven years and a candidate has three consecutive chances to clear each part. The chances not availed of were deemed as lapsed and also refers to an unreported judgment dated 10th August 2021 passed by this Court in [WPA 7110 of 2021](Souvik Ghosh –vs- University of Burdwan & Ors.). It was submitted that at this stage the University can’t allow any further opportunity for the petitioner to appear in the examination for clearing her backlog paper. On the contrary, the judgment referred to by the respondents in the matter of Souvik Ghosh (supra) is apt and may be relied upon to decide the instant case.

IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Present : Hon’ble Justice Amrita Sinha WPA No. 99021 The State of West Bengal & Ors For the writ petitioner For Burdwan University Amrita Sinha J.: Mr. Biswarup Biswas Adv Mr. Nabankur Paul Adv Md. Apzal Ansari Adv Mr. N. C. Bihani Adv Mr. Soumyajit Ghosh Adv Mr. Anil Kumar Gupta Adv Mr. Manas Kuma Kundu Adv Mr. Sudip Sarkar Adv The petitioner was a student of a college affiliated to the University of Burdwan pursuing BA Hons. three year degree course under 1+1+1 pattern. She appeared in BA Part I Hons. examination 2017 and failed to obtain qualifying marks in BNGG. She appeared in the BA Part II Hons. examination 2018 and cleared the same. According to her she could not appear in the unclear Part I BNGG paper in 2018 due to her illness. She thereafter appeared and cleared the BA Part III Hons examination 2019 but again she failed to appear in the backlog BNGG paper Part I The petitioner made a representation before the University praying for a direction to allow her to appear in the unclear Part I examination. As the representation of the petitioner was not considered she approached this Court by filing a writ petition being WPA 104320 which stood disposed of by an order dated 21st January 2021 whereby the Court directed the Controller of Examinations University of Burdwan to consider the petitioner’s representation and pass a reasoned order after giving an opportunity of hearing to the petitioner and allow her to produce necessary documents in her support. The order of the Court was duly complied and the reasoned order was communicated to her The reasoned order dated 31st March 2021 rejecting the prayer of the petitioner is impugned in the present writ petition The University duly considered the prayer of the petitioner and noted that according to the University Regulation 4(UG) of Undergraduate Examinations Regulations 2016 a regular candidate shall have to complete Part I Part II and Part III Hons. General examinations within seven consecutive years including his her original enrolment in Part I examination subject to the condition that not more than three consecutive chances shall be allowed in each part. If any of the chances is not availed of by a candidate within a stipulated time the chance shall be deemed to have lapsed. The University was of the opinion that at present there is no scope for retaking any examination of the petitioner The petitioner draws attention of the Court to the UGC guidelines on determination of a uniform span period within which a student may be allowed to qualify for a degree. The guidelines mention that a student who for whatever reasons is not able to complete the programme within the normal period or the minimum duration prescribed for the programme may be allowed two years’ period beyond the normal period to clear the backlog to be qualified for the degree. During the extended period the student shall be considered as a private candidate and also not be eligible for ranking. The said guidelines are subject to the Rules and Regulations of the statutory bodies and universities governing the grant of degrees The learned advocate for the petitioner contends that as the petitioner has cleared all the papers barring one within the three consecutive years and the outer limit to complete the course being seven years the petitioner ought to have been permitted by the University to complete the course. It has been contended that a candidate is liable to be given three consecutive chances according to the University Regulations to clear the backlog papers. As the petitioner was not in a position to avail the two further opportunities which were available to her for the years 2018 and 2019 accordingly she ought to be given another chance to utilise the said benefit more so because she still has four years’ time left to complete the course The specific submission of the petitioner is that three consecutive chances ought to be read as three consecutive chances availed of The petitioner submits that since the Regulations have been made for the benefit of the students accordingly the benefit ought to be given to the petitioner for availing the opportunity to appear in the backlog paper to clear the same In support of his submission the petitioner has relied upon the judgment delivered by the Hon’ble Supreme Court in the matter of Delhi Airtake Services Pvt. Ltd. & Anr. vs State of Uttar Pradesh & Anr. 9 SCC 354 paragraphs 126 129 and 132 The petitioner has also relied upon the judgment delivered by the Hon’ble Supreme Court in the matter of JK Jute Mill Mazdoor Morcha vs Juggilal Kamlapat Jute Mills Co. Ltd. 11 SCC 332 paragraph 16 He also relies upon an order passed by the High Court of Delhi in the matter of Pijush Gupta vs University of Delhi reported in 1988 0 Supreme Del 337 paragraphs 6 9 The petitioner prays for a direction upon the University to give her one more chance to clear her backlog paper of Part I The learned advocate for the University of Burdwan relies upon the University Regulation 4(UG) of Undergraduate Examinations Regulations and submits that the Regulation categorically lays down that the outer limit for completing the course is seven years and a candidate has three consecutive chances to clear each part. The chances not availed of are deemed as lapsed According to the University the petitioner for reasons not known to the University chose not to avail the two extra opportunities that she had to clear the backlog paper. After she cleared her Part III examination mark sheet has been issued in her favour mentioning that she could not clear one paper in her Part I examination. The University has acted in accordance with their Regulations and there is no illegality on the part of the University The learned advocate refers to an unreported judgment dated 10th August 2021 passed by this Court in WPA 71121 of Undergraduate Examinations Regulations 2016 reads as follows “A regular candidate shall have to complete Part I Part II and Part III Hons. General examinations within seven consecutive years including his her original enrolment in Part I examination subject to the condition that not more than three consecutive chances shall be allowed in each part If any of the chances mentioned above is not availed of by a candidate within the stipulated period the chances shall be deemed to have lapsed.” UGC guidelines referred to by the petitioner lays down that normally a student is expected to complete his programme within the minimum period as laid down under the relevant Regulation of the University and the same should be in conformity with the UGC Regulations A student who for whatever reasons is not able to complete the programme within the normal period or the minimum duration prescribed for the programme may be allowed two years’ period beyond the normal period to clear the backlog to be qualified for the degree. During the extended period the students shall be considered as a private candidate and also shall not be eligible for ranking. The guidelines further mention that the guidelines are subject to the Rules and Regulations of the statutory bodies and universities governing the grant of degrees UGC guidelines in my opinion deal with the outer time limit within which a course is to be completed by a candidate. According to the UGC guidelines two extra years ought to be allowed for the candidate to complete the course. The guidelines are however subject to the Rules and Regulations of the concerned University In the instant case the University has a regulation which mentions that the outer limit to complete the course is seven years. The University Regulations further mention that three consecutive chances can be availed of by a candidate for clearing the backlog paper and further that if any chance out of the said three consecutive chances is not availed of by a candidate the said chance shall be deemed to have In the instant case the petitioner appeared in the Part I examination in the year 2017 and failed to clear one paper. The petitioner ought to have availed the opportunity to appear in the backlog paper in the year 2018 and lastly in 2019. The petitioner for reasons unknown did not avail the opportunity to clear her backlog paper in the next two chances which she had The submission of the petitioner that the term ‘consecutive’ ought to mean as ‘consecutive chances availed of’ cannot be accepted by the Court. The Court in the matter of Souvik Ghosh held that the dictionary meaning of the word ‘consecutive’ is following one after another in a series without interruption According to the petitioner she first appeared in the year 2017 and she may be allowed to appear in the year 2021 22 or thereafter. If the argument of the petitioner is to be accepted then it would mean that a candidate may avail the opportunity to clear the backlog paper in three chances any time as per his wish within the outer limit of seven years as prescribed The legislature in its wisdom has fixed two time limits for completion of the course. First one is the time limit for completion of the entire course and the second one is the time limit to clear a part of the said course. The time limits mentioned are distinct and run parallel to each other. Had it been the intention of the legislature that a candidate may be given three opportunities to clear a part within the outer limit of seven years then the expression ‘consecutive chances’ had not been used. It would have been mentioned that three chances may be availed of for clearing an examination within the seven years course. Adding words to the said expression will distort its meaning The Hon’ble Supreme Court in Delhi Airtake Services in paragraph 126 held that the basic purpose of interpretation of statutes is further to aid in determining either the general object of the legislation or the meaning of the language in any particular provision. The intention which appears to be most in accordance with convenience reason justice and legal principles should in all cases of doubtful interpretation be presumed to be a true one. In the instant case there is not ambiguity in the regulation of the University. There is absolutely no doubt in the mind of the Court that consecutive chances mean one after the other without any break in between The Hon’ble Supreme Court in JK Jute Millreiterated the observation that procedure is the handmaid of justice and is meant to serve justice. The Court while deciding the aforesaid matter referred to the judgment in the case of Kailash vs Nanhku 4 SCC 480 paragraph 28 wherein it was mentioned that the language employed by the draftsman of procedural law may be liberal or stringent but the fact remains that the object of prescribing procedure is to advance the cause In the instant case the Regulation of the University have been framed keeping in mind the interest of the students. The argument that has been advanced by the petitioner if accepted will in my opinion create uncertainty and the entire examination process will remain hanging for years together. The same is certainly not in the interest of the students neither is it in the interest of justice The Delhi High Court in Piyush Gupta was of the opinion that a candidate who failed in one of the papers of a semester is entitled to get only one more chance to pass in that paper as a regular student and if he fails in the second chance also he can appear in that paper as an ex student in the future examinations without any restrictions regarding the number of chances The aforesaid order was passed in respect of a student studying a course affiliated to the University of Delhi. In the present case the University of Burdwan does not have any provision to allow a candidate to appear in the examination as an ex student. Immediately after conclusion of a course the University of Burdwan issues the mark sheet mentioning the marks obtained by a candidate and the relationship between the University and the student severs. Accordingly there is no provision for permitting the petitioner to appear in the examination not as a regular candidate but as an ex student of the university. As such the judgment referred to by the petitioner does not come to her aid On the contrary the judgment referred to by the respondents in the matter of Souvik Ghosh is apt and may be relied upon for the purpose of taking a decision in the instant case The basic principle of interpretation is that if the language of the statute is clear and there is no ambiguity then the meaning which appears from the plain reading of the provision is to be applied. Burdwan University Examinations Regulations are crystal clear. There is hardly any ambiguity. The timelines mention that a backlog paper has to be cleared within three consecutive chances and if the chances are not availed of they shall be deemed to have lapsed. The petitioner unfortunately failed to avail her chances to clear the backlog paper. In such a situation no direction can be passed upon the University to permit the petitioner to appear in her backlog paper for clearing the same once again The writ petition fails and is hereby dismissed WPA 99021 is dismissed Urgent certified photo copy of this judgment if applied for be supplied to the parties expeditiously on compliance of usual legal formalities ( Amrita Sinha J.

Accused denied bail in tax fraud conspiracy: The High Court of Orissa

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 the public/State and other similar considerations. The Orissa High Court has followed the footsteps of the Apex Court and has sufficiently relied upon the aforesaid statement while adjudicating the case of Rajeev Mishra v. State of Odisha & Anr. [BLAPL No.958 of 2021] which was decided by the single judge bench comprising Justice S.K. Panigrahi on 8th June 2021. The petitioner in the present case had filed an instant bail application under Section 439 of the Code of Criminal Procedure under the accusations of committing offences punishable under Section 69 read with Sections 132(1)(b), 132 (1)(c) and 132(1)(i) of the Odisha Goods and Services Tax Act, 2017. The facts of the case are as follows. A large number of fraudulent business transactions were made using several fictitious firms which were found to have been wrongfully registered under OGST Act, 2017 by the present petitioner in collusion with other persons. Several persons have been beguiled into lending their name and documents for the purpose of registration of these 12 manikin firms on the false pretext of providing them gainful employment, arranging loans from commercial banks or providing them with monthly stipend. The petitioner along with others were engaged in pedalling of bogus input tax credit and these fake and fraudulent transactions have, amongst others, caused huge loss to the State exchequer to the tune of about Rs. 42.36 crores. Similarly, it is also alleged that they have also sold goods in the name of the fake firms and passed on bogus ITC running into crores of rupees to recipients both within and outside the State by raising fake sale invoices. As seen from the records, during the search, several incriminating documents, containing business transactions of such business entities, were unearthed and seized with due acknowledgement. It was submitted by the counsel for petitioner that the petitioner has been falsely implicated only on the basis of the statement of co-accused Smruti Ranjan Mohanty. It was submitted that as the maximum imputation against the petitioner is that he has transmitted user ID, password and other GST related information in case of three bogus entities only to Smruti Ranjan Mohanty at the instruction of Ankit Agarwal, and thus co-accused Ankit Agarwal is the main mastermind whereas the petitioner himself is a mere employee. Learned counsel for the State submitted that the petitioner actively colluded with the other accused to defraud the state exchequer to the tune of Rs. 42.36 crores. It was contended that the alleged offences are part of an organized tax fraud which necessitates a proper investigation as material evidences against the accused persons including the petitioner have been forthcoming and granting bail to the petitioner will lead to evidence and witness tampering and hence considering that the same is an economic offence and affects the very fabric of the society, the petitioner should not be enlarged on bail so as to ensure a proper investigation.

HIGH COURT OF ORISSA CUTTACK BLAPL No.9521 In the matter of an application under Section 439 of the Criminal Procedure Code 1973) Rajeev Mishra State of Odisha and another For Petitioner Versus … Opposite Parties M s. G.M. Rath S. Jena K. Ansari and A.S. Mohanty For Opposite Parties Mr. M.K. Mohanty Additional Standing Counsel for State Mr. Sunil Mishra Additional Standing Counsel for CT & GST PRESENT : HON’BLE SHRI JUSTICE S. K. PANIGRAHI Date of Hearing 17.05.2021 Date of Judgment 08.06.2021 S. K. Panigrahi J. 1. The petitioner presently in custody has filed the instant bail application under Section 439 of the Code of Criminal Procedure 1973 corresponding to 2(c) CC Case No.03 of 2020 pending in the Court of the learned Judicial Magistrate First Class Cuttack. The petitioner herein is the accused in connection with alleged commission of offences punishable under Section 69 read with Sections 132(1)(b) 132and 132(1)(i) of the Odisha Goods and Services Tax Act 2017. Prior to the instant application the petitioner had previously approached the court below vide Bail 2 Application No.1093 of 2020 arising out of 2(c)CC Case No.03 of 2020 which was rejected on 25.01.2021. 2. Bereft of meticulous details the facts of the matter canvassed are that a large number of fraudulent business transactions were made using several fictitious firms including M s. Nayak Enterprises M s. Sahoo Enterprises M s. Mohanty Sales Agencies M s. Maa Bhawani Enterprises M s. Binash Enterprises M s. Sangeet Hotels and others. These several functionally vacuous entities were found to have been fraudulently registered under the OGST Act 2017 by the present petitioner in collusion with other persons. Several persons have been beguiled into lending their name and documents for the purpose of registration of these 12 manikin firms on the false pretext of providing them gainful employment arranging loans from commercial banks or providing them with monthly stipend. These identity documents have been mis appropriated for the purpose of obtaining registration certificate under the GST Act in order to masquerading fake business transactions with an intention to defraud the state exchequer. 3. Such a modus operandi of creation of these dummy and sham firms has been highlighted on numerous occasions in the past. The petitioner and other accused were predominantly engaged in pedalling of bogus input tax credit secured on the strength of fake and fabricated invoices without supply of any physical goods to 3 other such existing and non existing firms thereby enabling the recipients to avail and utilize the same while discharging tax liabilities. These fake and fraudulent transactions have amongst others caused huge loss to the State exchequer to the tune of about Rs. 42.36 crores. 4. It is alleged that to evade payment of tax the petitioner in collusion with others arranged fake purchase invoices from non existent business entities created and controlled by them. While effecting sales of the goods purchased out of account without payment of tax they have taken adjustment of the tax mentioned in the fake purchase invoices. Similarly it is also alleged that they have also sold goods in the name of the fake firms and passed on bogus ITC running into crores of rupees to recipients both within and outside the State by raising fake sale invoices. The bogus ITC availed and passed on by the petitioner in collusion with others in the name of 12 fictitious entities aggregates to an amount of Rs. 42.36 crores and therefore they were all involved in willingly defrauding the State exchequer. On the basis of the aforesaid information a case was registered under section 69 r w Sec. 132(1)(b) 132 and 132(1)(i) of the OGST Act 2017 and investigation was commenced. 5. As seen from the records during the search several incriminating documents containing business transactions of such business entities were unearthed and seized with due acknowledgement. The 4 Petitioner was subsequently summoned by the authorities. On being subjected to interrogation and it appears that the petitioner initially denied any sort of involvement in any of the fictitious firms. The petitioner also categorically denied having any kind of financial business or personal relationship with the other accused. However upon subsequently being confronted with documents recovered from the whatsapp and email of the other accused the petitioner has admitted that he had sent received the documents and was in fact closely involved with another accused one Sri Smruti Ranjan Mohanty in some scrap related business. Upon being asked as to how the petitioner had come into the possession of confidential GST related information of the fictitious firms he has failed to provide any explanation for the same. It has further been brought to this Court’s notice that the statement by co accused Smruti Ranjan Mohanty reflects that the petitioner was in charge of the accounts for a few of the fake entities involved and used to send pdf copies of e way bills GST payment challans user IDs and passwords for the GST related information of the aforementioned fake business entities in close connivance with the other accused. However upon being presented with this section of the statement by co accused one Smruti Ranjan Mohanty the petitioner denied having any role in the abovementioned business entities. This therefore seems to 5 be a prima facie case which has more to it than meeting the eye and might need a deeper probe. 6. Pertinently the search and inspection conducted by the State authorities have revealed that no business was actually being conducted at the declared place of business the purchases and sales shown in the name of the fictitious firms were mostly paper transactions without any actual movement of goods. In some cases the goods were purchased from fictitious sources without payment of tax and the same has been fraudulently regularized by raising invoices in the name of the dummy firms. In many cases tonnes of good have been shown to have been dispatched to different States as well as within the State through scooters motor cycles tractors and cars which are practically not feasible. In conclusion the investigation report states that the petitioner in collusion with others has created 12 bogus firms and duped the state exchequer to the tune of Rs.42.36 crores by availing and passing on fictitious ITC. The accused is thereby alleged to have committed offences under Sections 69 r w Sec. 132(1)(b) 132and 132(1)(i) of the OGST Act 2017 which are non bailable and cognizable. 7. Learned counsel for the petitioner submits that the petitioner has been falsely implicated only on the basis of the statement of co accused Smruti Ranjan Mohanty. The petitioner used to share some details pertaining to GST credentials bills etc. over whatsapp and 6 email on the instruction of one co accused Ankit Agarwal and the same is not enough to determine that the petitioner was an accomplice. It is submitted that as the maximum imputation against the petitioner is that he has transmitted user ID password and other GST related information in case of three bogus entities only to Smruti Ranjan Mohanty at the instruction of Ankit Agarwal and thus co accused Ankit Agarwal is the main mastermind whereas the petitioner himself is a mere employee. 8. Per contra learned counsel for the State submits that the petitioner actively colluded with the other accused to defraud the state exchequer to the tune of Rs. 42.36 crores. It is contended that the alleged offences are part of an organized tax fraud which necessitates a proper investigation as material evidences against the accused persons including the petitioner have been forthcoming. There also exists the potential risk that the petitioner may manipulate or attempt to destroy the evidences alert other persons involved in this conspiracy in an attempt to derail the investigation cause further damage to the revenue alienate their properties so as to render recovery of dues from them impossible or attempt to flee. Considering that the same is an economic offence and affects the very fabric of the society the petitioner should not be enlarged on bail so as to ensure a proper investigation. 7 9. Heard learned counsel for the parties. The accusations against the petitioner relate to the commission of economic offences which are considered grave and therefore must be viewed seriously. Offences of this nature affect the economy of the country as a whole and usually involve a deep rooted conspiracy to cause huge loss of public funds wherein the individual would rather achieve personal gains through illicit means than act in the best interest of the society. Although this Court is cognizant of the fact that in some similar matters the accused persons have been admitted to bail however every case turns on the facts and circumstances of the case itself. In the instant case the aspect of conspiracy seems to be forthcoming inasmuch as the co accused persons have named each other an aspect which is of sanguine consequence. 10. The law relating to bail in cases of economic offences is more or less settled in view of the decisions of the Hon ble Supreme Court of India. At this juncture it is relevant to take note of the view expressed by the Hon’ble Supreme Court the case of Nimmagadda Prasad vs. Central Bureau of Investigation1 wherein it has been held that “23. Unfortunately in the last few years the country has been seeing an alarming rise in white collar crimes which has fiber of the country s economic structure. Incontrovertibly economic offences have serious repercussions on the development of the country as a whole. In State of 17 SCC 466 8 Gujarat v. Mohanlal Jitamalji Porwal and Anr.2 SCC 364 this Court while considering a request of the prosecution for adducing additional evidence inter alia observed as under: 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 collar crimes with a permissive eye unmindful of the damage done to the national economy and national 24. 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 the public State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected at this stage to have the evidence establishing the guilt of the accused beyond reasonable doubt. 9 25. 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 needs 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.” Furthermore in the case of Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation2 the Hon’ble Supreme Court opined that “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 the public State and other similar considerations.” 11. It is also observed that while investigation has begun the same is still going on as more evidence is being unearthed. There have been instances where the petitioner has rendered inconsistent statements and therefore securing his presence so that he does not try to sabotage the investigation or flee could be deemed necessary. In Adri Dharan Das v. State of W.B.3 the Hon’ble Supreme Court opined that 27 SCC 439 34 SCC 303 10 “19. Ordinarily arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive preparation commission and aftermath of the crime and the connection of other persons if any in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance… .For these or other reasons arrest may become an inevitable part of the process of investigation. … The role of the investigator is well defined and the jurisdictional scope of interference by the court in the process of investigation is limited. The court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. …” 12. Thus as the law stands in such type of offences while granting bail the Court has to keep in mind inter alia the larger interest of the public and State. The exchange of incriminating documents relating to the non existent firms between Smruti Ranjan Mohanty and the petitioner the contrasting statement rendered by the petitioner and the deposition given by Smruti Ranjan Mohanty prima facie leads this Court to form an opinion that the petitioner is hand in gloves with the other accused in creation and operation of the non existent business entities for availing and passing of bogus ITC thereby defrauding the state exchequer. 13. Considering the nature and gravity of the accusation the nature of supporting evidence availability of prima facie case against the petitioner coupled with the fact that a huge amount of public 11 money has been misappropriated and also the fact that further investigation of the case is under progress and taking into account the apprehension of the petitioner in tampering with the evidence in the larger interest of society I am not inclined to release the Accordingly the bail application sans merit and hence stands petitioner on bail. rejected. 15. Before parting is clarified that the observations made hereinabove are only for the purposes of the present application and that the learned Trial Court seisin over the matter shall proceed with the case uninfluenced by the observations made hereinabove. Judge Orissa High Court Cuttack The 8th day of June 2021 AKK LNB AKP

Compassionate Appointment Rejected by The District Education Officer – Not Challenged by The Petitioner Become Final: Chhattisgarh High Court

Petitioner’s first application for compassionate appointment was rejected, and that decision was not appealed; as a result, his second application could not be made because his first application had already been rejected on the merits by order is upheld by the High Court of Chhattisgarh through the learned bench led by Hon’ble Shri Justice Sanjay K. Agrawal in the case of Satish Rangari Vs. State Of Chhattisgarh (WP(S) 1242 of 2016). Brief facts of the case are that the petitioner’s father died on 5.2.2000, and the petitioner’s first application for compassionate appointment was rejected on 1.8.2013 , an order that the petitioner has not challenged and that has become final. When the petitioner became major in 2006, he filed an application for compassionate appointment on 19.8.2006, which was processed, but the District Education Officer, Jagdalpur, by order dated 1.8.2013  rejected the application, holding that it was filed after 8 years from the date of his father’s death, and that order was not challenged. So, the petitioner’s second application dated 17.6.2014 could not have been filed because his earlier application had already been rejected on merits by a judge. The court also stated that even if the petitioner had been present for the past 21 years after his father’s death, giving compassionate appointment to the petitioner would serve no meaningful purpose. As a result, court find no illegality or perversity in the order dismissing the petitioner’s compassionate appointment application. As a result, the writ petition, which lacks merit, is liable to be rejected and is accordingly dismissed, leaving the parties to bear their own costs.

1NAFRHIGH COURT OF CHHATTISGARH BILASPURWrit PetitionNo.12416Satish Rangari S o Late Shri Shatrughan Rangari Agedabout 28 years R o Vill. Badra Post Kerawahi Tahsil Makdi Civil & rev. Distt.Kondagaon­­­­ Petitioner Versus 1.State of C.G. Through the Secretary Education Department Mantralaya Naya Raipur Civil & Revenue Distt­Raipur3.The Block Education Officer Block Makdi Distt.Kondagaon ­­­­ RespondentsFor Petitioner :Mr.Prafull Bharat Senior Advocate with Mr.Keshav Dewangan Advocate For Respondents :Mr.Amrito Das Addl.A.G.Hon ble Shri Justice Sanjay K. AgrawalOrder on Board06 12 20211.Shri Shatrughan Rangari while working as Assistant Teacherdied in harness on 5.2.2000 at that time the petitionerwas minor therefore he could not move an application forcompassionate appointment. When the petitioner becamemajor in the year 2006 then ultimately he filed anapplication for compassionate appointment on 19.8.2006 which was processed and ultimately the District EducationOfficer Jagdalpur by order dated 1.8.2013which has beencalled in question by way of this writ petition statinginter­alia that the petitioner is entitled forcompassionate appointment.2.Return has been filed opposing the writ petition statingthat the petitioner s application for compassionateappointment has already been rejected by the DistrictEducation Officer Jagdalpur vide order dated 1.8.2013(Annexure R­3) which has become final and again theapplication dated 17.6.2014 has been rejected by theimpugned order dated 2.7.2014as such thewrit petition is liable to be dismissed. 3.Mr.Prafull Bharat learned Senior Counsel with Mr.KeshavDewangan learned counsel for the petitioner would submitthat the petitioner is entitled for compassionateappointment and the impugned order dated 2.7.2014(Annexure P­8) passed by the Collector Kondagaon deservesto be set aside. 4.On the other hand Mr.Amrito Das learned AdditionalAdvocate General for the respondents State would opposethe writ petition and submit that the order dated 1.8.2013(Annexure R­3) has become final and therefore thepetitioner is not entitled for compassionate appointment.Even otherwise the order dated 2.7.2014and that order has become final asit has not been challenged by the petitioner andthereafter again second application was filed on17.6.2014 which has been rejected by respondent No.2holding that in view of delay in making applicationcompassionate appointment cannot be granted. 7.The fact remains that the petitioner s father died on5.2.2000 and the petitioner s first application forcompassionate appointment was rejected on 1.8.2013(Annexure R­3) which has not been challenged by thepetitioner and that order has become final and thereafter second application dated 17.6.2014 could not have beenfiled as his earlier application has already been rejectedon merits by order dated 1.8.2013Judge B

The disqualification under Section 8(3) of the Representation of the People Act, 1951 will continue so long as there is no stay of conviction: Supreme Court

The bench in the present case consisting of Hon’ble Chief Justice Mr. S.A. Bobde, Hon’ble Justice Mr. A.S. Bopanna and Hon’ble Mr. Justice V. Ramasubramanian, upheld the decision of the Honorable HC of Kerala, thereby dismissing the SLP along with no further order as to cost, this remarkable stand was forwarded by the Honorable SC in the SLP case of Saritha S. Nair V. Hibi Eden, [SLP (Civil) No.10678 OF 2020]. In the Lok Sabha elections of 2019, the petitioner filed her nomination on 04.04.2019 in the Ernakulam Constituency. The petitioner was to contest as an independent candidate. On 06.04.2019 the nomination of the petitioner was rejected on the ground that she was convicted in 2 criminal cases. In the first case the petitioner was imposed with a punishment of imprisonment for 3 years, with a fine of Rs.45 lakhs, by a judgment dated 08.06.2015. In the second case she was imposed with a punishment of imprisonment for 3 years, with a fine of Rs.10 lakhs, by a judgment dated 16.02.2016. The Returning Officer, noted in his order dated 06.04.2019 that the petitioner stood disqualified in terms of Section 8(3) of the Representation of the People Act, 1951, as the period of disqualification had not lapsed. Aggrieved by the order of rejection of the nomination, the petitioner filed an appeal to the Chief Electoral Officer. Thereafter, the petitioner moved a writ petition in W.P.(C)No.11282 of 2019. But the Writ Petition was dismissed on 09.04.2019. The petitioner filed a writ appeal but the same was also dismissed on 12.04.2019. Therefore, after the elections were over, the petitioner filed an election petition in Election Petition No.4 of 2019, primarily contending that the rejection of her nomination was illegal and unjustified and that such rejection materially altered the outcome of the election in which the Respondent herein was declared elected. The main contention of the petitioner in her election petition was that she had simultaneously filed a nomination in the Amethi Constituency of Uttar Pradesh and that despite disclosure of the very same information about her conviction and pendency of appeals, her nomination was accepted there. Therefore, she contended that 2 different yardsticks cannot be applied and that in any case, so long as the sentence of imprisonment remained suspended, the disqualification under Section 8(3) of the Representation of the People Act, 1951, may not be attracted. It appears that lot of defects was noticed by the Registry of the High Court in both the election petitions. The defects noticed in both the election petitions were more or less the same. But in so far as Election Petition No.4 of 2019 is concerned, out of which the present SLP arises, the Registry noted one additional defect namely that the prayer of the petitioner was incomplete. As against a common order passed by the High Court of Kerala throwing out 2 election petitions filed by the petitioner herein, on the ground of incurable defects, the election petitioner has come up with the above Special Lseave Petition. After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble SC observed that, “In the case on hand, the petitioner could not obtain a stay of conviction but obtained only a stay of execution of the sentence. Hence her nominations were validly rejected by the Returning Officer. Merely because the Returning Officer in Amethi Constituency committed an error in overlooking this fact, the petitioner cannot plead estoppel against statutory prescription”

with the above Special Leave Petition. This SLP arises out of very same petitioner against the very same common order but Court on 02.11.2020 for non­prosecution. Therefore this order In the elections held to the Lok Sabha in April­May 2019 the petitioner filed her nomination on 04.04.2019 in the Ernakulam Constituency. The petitioner was to contest as an independent No.1300 of 2013 on the file of the JFMC­I Pathanamthitta and another in CC No.102 of 2014 on the file of the JFMC­I punishment of imprisonment for 3 years with a fine of Rs.45 lakhs by a judgment dated 08.06.2015. In the second case she was Sessions Court Pathanamthitta against her conviction in CC the sentence and enlarged the petitioner on bail subject to her Similarly the petitioner filed Criminal Appeal No.217 No.102 of 2014. The Appellate Court stayed the execution of the The Returning Officer noted in his order dated 06.04.2019 Representation of the People Act 1951 as the period of Aggrieved by the order of rejection of the nomination the the petitioner moved a writ petition in W.P.(C)No.11282 of 2019 Therefore after the elections were over the petitioner filed an election petition in Election Petition No.4 of 2019 primarily contending that the rejection of her nomination was illegal and that she had simultaneously filed a nomination in the Amethi Constituency of Uttar Pradesh and that despite disclosure of the very same information about her conviction and pendency of appeals her nomination was accepted there. Therefore she any case so long as the sentence of imprisonment remained suspended the disqualification under Section 8(3) of the Representation of the People Act 1951 may not be attracted It is to be noted at this stage that the petitioner filed her nomination from one more constituency namely Wayanad Constituency and her nomination was rejected even in the said Constituency for the very same reasons. Therefore she filed another election petition in Election Petition No.3 of 2019 as as Election Petition No.4 of 2019 is concerned out of which the 12. Therefore both the election petitions were posted before the Court without being numbered. However the Court by order dated the question of curability of the defects. Thereafter notices were issued to the Election Commission the respective Returning petitioner was convicted in 2 independent criminal cases and in both the cases the conviction was not suspended were all admitted by the petitioner herself. The case of the petitioner was framed a preliminary issue on 01.10.2019 as to whether the 15. Thereafter the High Court heard the learned counsel for the petitioner and learned counsel for the returned candidates and passed an order dated 31.10.2019 rejecting both the election that there were incurable defects in the election of the People Act 1951 and that the petitioner was disqualified in view of the 16. Aggrieved by the common order passed on 31.10.2019 in Petition No.3 of 2019 was dismissed for non­prosecution on 17. As pointed out above the election petition of the petitioner was dismissed on 2 grounds namely that it contained incurable defects andthat in any case the petitioner admittedly suffered 18. On the first issue the High court noted that some of the and that there was no semblance of any verification in terms of court held that there were 3 defects which were incurable. They ii) In verification portion in respect of Annexures affidavits and petitions it is stated that the index has been verified instead of Annexures affidavits and iii) Annexures are not verified by the petitioner as In addition to the above 3 defects which the High Court considered as incurable in both the election petitions the High sought was incomplete and meaningless. Prayer made in the election petition was “To declare that the election of the 5th respondent from Ernakulam Lok Sabha Constituency”. It actually meant nothing unless the word “void” had been added in a casual manner. Coupled with this was the fact that the against the former Chief Minister of Kerala. Therefore the High for the petitioner to escape at a later stage from owning up the iii) Allegations of serious nature made against the relied upon Sections 81 82 and 83 read with Section 86 of the Representation of the People Act 1951. Let us now test the 21. Chapter­II Part­VI of the Representation of the People Act petitions”. Section 86(1) with which Chapter­III begins obliges the 98(a). Section 98 speaks about 3 types of orders that could be A declaration that the election of the returned iii) A declaration not only that the election of the It is important to note that the above 3 different types of 86(1) to Section 98(a) makes it clear that the power of the High Court to dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or 23. As stated earlier the procedure for presentation of election petitions to the High Court are dealt with in Sections 80 to 84 81(3) 83(1) 83(2) and 84 are relevant many copies thereof as there are respondents The signature and verification of the election iii) The signature and verification of any schedule or a) shall contain a concise statement of the material b) shall set forth full particulars of any corrupt statement as possible of the names of the parties the date and place of the commission of each such affidavit in the prescribed form in support of the be signed by the petitioner and verified in the same that the election of all or any of the returned follow the procedure as applicable to the trial of suits under the Code of Civil Procedure 1908 as nearly as may be. This is by virtue “87. Procedure before the High Court.—(1) Subject to the provisions of this Act and of any rules made High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure 1908 to the trial of suits to refuse for reasons to be recorded in writing to material for the decision of the petition or that the on frivolous grounds or with a view to delay the of 1872) shall subject to the provisions of this Act be deemed to apply in all respects to the trial of an It is relevant to note that the Act keeps in two separate 29. This compartmentalization may be of significance as seen question except by an election petition presented in the Code of Civil Procedure 1908 in Chapter­II only in In so far as presentation of election petitions is concerned Chapter­II is a complete code. This is because the various iii) The types of different reliefs that can be sought iv) The grounds on which such reliefs could be sought vi) The court where the petition could be filed vii) Contents of such petition and viii) Format of the election petition and the manner in Code of Civil Procedure for verification of pleadings. Signing a petition and verifying the petition are 2 different aspects. While Order VI Rule 14 deals with the signing of the petition Order VI that every pleading shall be signed by the party as well as the pleader if any. But the proviso carves out an exception by “14. Pleading to be signed.­Every pleading shall be absence or for other good cause unable to sign the pleading it may be signed by any person duly 33. Order VI R.15 which speaks about verification of pleadings one of the parties pleading or by some other person the numbered paragraphs of the pleading what he verifies of his own knowledge and what he verifies 3) The verification shall be signed by the person permits the verification of pleading to be done by a person other than the party pleading provided it is proved to the satisfaction of the Court that such other person was acquainted its ambit. Therefore the question whether or not an election this case particularly with the requirement of Clause of Sub­ In Murarka Radhey Shyam Ram Kumar vs. Roop Singh Rathore1 a preliminary objection to the maintainability of the the petitioner and the averments in some other paragraphs were other sources. There was no statement that the advice and Tribunal. The Tribunal held the defect in the verification to be a Murarka Radhey Shyam Ram Kumar ordinarily it In F.A. Sapa this Court framed two questions in question was as to what is the consequence of a defective or incomplete verification. While answering the said question this i) A defect in the verification if any can be cured of the petition or the affidavit accompanying the same such averments or allegations he may call for the same facts will have to be dealt with subject to limitation involving corrupt practice must be viewed very seriously and the High Court should ensure compliance with the requirements of In Sardar Harcharan Singh Brar vs. Sukh Darshan corrupt practice to be accompanied by an affidavit the The Court reiterated that non­compliance with the provisions of a curable defect. The following portion of the decision is of Therefore an election petition is not liable to be dismissed in limine under Section 86 of the Act for alleged non­compliance with provisions of Section the verification and the affidavit is a curable defect. What other consequences if any may follow In K.K. Ramachandran Master vs. M.V. Sreyamakumar5 this Court followed F.A. Sapa and Sardar Harcharan The Court again reiterated that the consequences that may flow election petition and that such election petition cannot be lead to the conclusion that the provisions of Section 81 had not would remain incomplete. Such a view does not appear to be in paragraphs and hence P.A. Mohammed Riyas cannot be taken to lay down the law correctly. It appears from the penultimate paragraph of the decision in P.A. Mohammed Riyas that cure the defect but he failed to do so. Therefore P.A. Mohammed where resort to corrupt practices have been alleged against the matter of fact even the filing of a defective affidavit which is not in to be a curable defect and the petitioner was held entitled to an 43. The upshot of the above discussion is that a defective verification is a curable defect. An election petition cannot be 44. Therefore the High Court committed a grave error in holding The defects are curable and as rightly contended by the learned curability of defects. Thereafter notices were issued to the “210.Summons.­Immediately after registering the petition shall be placed before the Judge for such Section 86(1) of the Act a summons on the direction of the Judge shall be issued to the respondents to appear before the High Court on a fixed date and date shall not be earlier than three weeks from the 46. The manner in which Rule 210 has been worded gives an the Judge immediately after it is registered for passing Orders 86(1) summons should be issued to the respondents on the Judge before whom the election petition was listed as defective the petition. There is nothing to indicate in the Rules that the the election petitioner to disown the pleadings at a later stage Minister. If only the High Court had given an opportunity to the verification the High Court could have then held the petitioner 48. The defect in the prayer made by the petitioner was also a curable defect as the words “as void” were omitted to be included making the prayer as it existed meaningless. It is true that the election petitioner should have been more careful and diligent in 49. That takes us to the next issue regarding the punishments imposed upon the petitioner in two criminal cases and the suspension of execution of sentence alone granted by the imprisonment for a period not less than two years in two independent criminal cases. Therefore her case is covered by any offence referred to in sub­section or sub­ aspects namely the conditions for disqualification and the sectionsandand sentence of imprisonment for not less that the words “the date” appearing in Section 8(3) refers to the In other words the date of conviction is what determines 56. When viewed in that context it will be clear that the mere that under the said provision what is suspended is only the execution of the sentence and not the sentence itself. The Constitution Bench made it clear that the suspension of the Section 8(3). In fact in B.R. Kapur a person whose nomination was rejected on the ground of disqualification got elected as the leader of the party which secured majority in the of the Act with a protection against removal from office during the disadvantageous position than the class of persons who are convicted after getting elected to the Parliament or the State vires the Constitution. While declaring the said provision to be unconstitutional this Court held in Lily Thomas that a Member of Parliament or the State Legislature who suffers a frivolous conviction will not be remediless. Taking note of the decisions in Rama Narang vs. Ramesh Narang10 and Ravikant S. Patil vs. Sarvabhouma S. Bagali11 this Court held in Lily Section 389(1) of the Code to stay the conviction as well as the sentence and that wherever a stay of conviction itself has been challenge to Section 8(4) of the Act in Lily Thomas the led to another bout of litigation. In Lok Parhari vs. Election Commissioner of India12 the petitioner sought a declaration that effect of wiping out the disqualification. The contention of the But this Court rejected the challenge on the ground that the decisions in Rama Narang and Lily Thomas will hand the petitioner could not obtain a stay of conviction but obtained only a stay of execution of the sentence. Hence her because the Returning Officer in Amethi Constituency committed an error in overlooking this fact the petitioner cannot plead 62. Therefore in fine we hold that the petitioner was disqualified such circumstances she could not have maintained an election petition as “a candidate at such election” in terms of Section exercise in futility by taking up the election petition for trial

Bona-fide arrangements made to resolve family disputes are enforceable: Odisha High Court

The undisputed position of law states that, all the arrangements brought to resolve the family disputes, by its members are governed by a special equity, specific only to such family members. But, the Hon’ble bench of the Odisha HC, chaired by Justice D.Dash, in the matter of Natabar Padhan and others v. Lalita Padhan and another [S.A. No.243 of 1989] hold that only the bona-fide family arrangements, with fair & equitable distribution, are legally enforceable. The present case was originally filed by the plaintiff to recover the title, interest and possession of the suit land which was earlier a joint family property but was later upon a family arrangement given to Ghanashyam (plaintiff no.1). The case was originally brought before the trial court, which dismissed the case, thereby giving the decision in favor of the defendants. The matter was then brought before lower appellate court; here the sub-ordinate judge altered the judgment of the trial court and gave the decision in favor of the appellant. The aggrieved party of the case then went before the Odisha HC u/s 100 of C.P.C., where it challenged the legality of the judgment passed by the lower appellate court. Two main question of law that were framed by court for discussion, are produced hereinbelow: “(a)If the lower appellate court committed serious illegality in holding that the suit house was allotted to the share of Ghanashyam Padhan in view of the admission of Ext.2 into evidence without objection in spite of the evidence of P.Ws2, 3 and 4 to the effect that they are unable to say as to when item no.18 was included in Ext.2? and (b)If Ext.2 is admissible as a document of partition without being registered?”.  After examining all the documents and evidences forwarded in the trial court and the lower appellate court, the court observed that, “… the view taken by the lower appellate court that Ext.2 is acceptable to judge character as to ownership of the properties as stated under item no.18 therein from that time onwards is right more particularly when the evidence as to possession of the parties after Ext.2 is not so clarified in detail by the defendants so as to negate plaintiffs claim.” The court further stated that the family arrangement, which was made bona fide during the time of partition, is to be held justified, and hence enforceable.

HIGH COURT OF ORISSA : CUTTACK S.A. No.2489 In the matter of an appeal under section 100 of the Code of Civil Procedure assailing the judgment and decree dated 15.02.1989 and 02.03.1989 respectively passed by the learned Sub ordinate Judge Aska in T.A. No.13 of 1985 reversing the judgment and decree dated 29.04.1985 and 17.06.1985 respectively passed by the learned Munsif Kodala in T.S. No.482 Natabar Padhan and others VERSUS Lalita Padhan and another … Advocate(s) who appeared in this case by Video Conferencing mode: M s.N.C.Pati A.K.Nanda and S.K.SwainFor appellants For respondents M r.C.R. Misra B.N.Nayak and G.MisraP R E S E N T : THE HON’BLE MR. JUSTICE D.DASH Date of judgment:27.11.2020 The appellants by filing this appeal under section 100 of D.Dash J. the Code of Civil Procedure have assailed the judgment and decree passed by the the learned Sub Ordinate Judge Askain Title Appeal No.185. By the same the lower appellate court having set aside the judgment and decree passed by the learned Munsif Kodala in Title Suit No.42 of 1982 which had been called in question in 2 that appeal at the instance of the plaintiffsas against the dismissal of their suit has decreed the suit declaring the right title and interest of the plaintiffs over the suit land and for recovery of possession. For the purpose of convenience and clarity the parties hereinafter have been referred to in the same rank as assigned to them in the original suit namely the appellants as the defendants whereas the respondents as the plaintiffs in the same chronological order. It may be stated here that the appellant nos. 1 to 4 defendant nos. 1 to 4) having died during pendency of this appeal the same is being pursued by the appellant no.5 in the year 1952 and the remaining half had been purchased by Dambaru the father of the defendants in the year 1948 and that half has been given to Natabaras Jyesthansa and the rest half with the consent of other defendants who are his brothers. Still all the defendants are in occupation of the suit house by converting it into a chow shed. Although all the defendants have stated that defendant no.1 alone has the right title and interest over the suit site they assert that their joint possession still continues. Refuting the case of the plaintiffs as aforesaid the defendants prayed to non suit the plaintiffs. The trial court on the above rival pleadings framed as many as six issues. Taking up the issues concerning the allotment of the suit house in favour of the father of the plaintiff no.1 in a family partition vis à vis the issue as to if the father of the defendant had got the suit house in partition and then as his Jyesthansa upon consideration of the evidence in the backdrop of the rival pleadings culling out certain circumstances the trial court has rendered its finding that the property had been purchased in the name of different persons of the family and they were in joint possession. The defendant no.1’s claim that it is his property has been held in the negative. The final finding is that the suit 5 house is the joint family property of the family in the joint possession of the parties. Practically this has gone to provide the answer to the other important issue as to the claim of the plaintiffs’ exclusive right title and interest over the suit land and their possession in the negative. With such findings however the suit has been dismissed. Grieved by the said judgment and decree dismissing the suit the plaintiffs carried an appeal under section 96 of the Code before the learned Sub Ordinate Judge Aska. The lower appellate court on analysis the evidence both oral and documentary at its level and upon their examination has come to conclude that the finding rendered by the trial court on issue no.2 and 3 are not correct. Having said so it has substituted its finding in favour of the plaintiffs. Practically this finding has led to decide the fate of the appeal as the lower appellate court has simultaneously negated the claim of title by the defendants by way of adverse possession. Thus the suit has been decreed. The defendants are thus now questioning the above findings of the lower appellate court in opposition to the findings as had been rendered by the trial court. The appeal has been admitted on ground nos.1 and 4 having been said that those are the substantial questions of law which are reproduced hereinbelow: “(a)If the lower appellate court committed serious illegality in holding that the suit house was allotted to the share of Ghanashyam Padhan in view of the admission of Ext.2 into evidence without objection in spite of the evidence of P.Ws2 3 and 4 to the effect that they are unable to say as to when item no.18 was included in Ext.2 and b)If Ext.2 is admissible as a document of partition without being registered ” 6 I have heard the learned counsel for the appellants at length. None appeared respondents despite several opportunities. The judgments of the trial court and lower appellate court have been carefully gone through in the backdrop of the rival pleadings with simultaneous perusal of the evidence both oral and documentary let in by the parties. The written notes of submission by the learned counsel for the appellant the same has been taken on record and gone through. In the case at hand the findings rendered by the trial court have been reversed by the lower appellate court. The unsuccessful plaintiffs being the appellants before the lower appellate court had first of all raised the contention that the partition list admitted in evidence from their side and marked as Ext.2 is genuine and binding on the defendants and thus the factum of partition in the year 1972 between Ghanashyam and others with the allotment of properties as amongst the parties thereunder ought to have been upheld by the trial court. It was also contended that the gift deed executed by Ghanashyam marked as Ext.4 although was genuine the trial court has erred both in fact and law by rejecting the same. The conclusion of the trial court as to the inclusion of the property under item no.18 in that partition listto have been made later and as such manipulation was questioned to be against the weight of the evidence on record and for that it was urged that such a finding cannot be allowed to stand. Such contentions were refuted by the defendants before the appellate court and they strenuously urged in support of the findings rendered by the trial court. It is seen that the lower appellate court has first of all gone to address as to whether there was a partition between Ghanashyam 7 and his other brothers in the year 1972 in metes and bounds and if the suit house had fallen to the share of Ghanashyam who then gifted to the plaintiff no.1. Ext.2 is the document which has been admitted in evidence from the side of the plaintiffs and that is the list of properties with a mention that these are in the share of Ghanashyam. As regards this partition list of the year 1972 the defendants have averred in the written statement to be having no knowledge and then it has been stated that if that would be so proved by the plaintiffs the same being void is of no value and thus cannot form the foundation of the plaintiff’s claim. It has been further stated in paragraph 4 of the written statement that mention of the suit house in the property list of those documents is an act of manipulation and as such void and that has not clothed Ghanashyam with any title over the said property. The averments appear to be ambiguous. It was first contended by the learned court for the appellant that this Ext.2 being inadmissible in evidence ought not to have been looked into for any purpose whatsoever. Then he contended that this Ext.2 being rendered suspect especially as to inclusion of the property under item no.18 which is the crux issue here to decide the fate of the suit the lower appellate court’s conclusion in accepting that Ext.2 in decreeing the suit contrary to the finding of the trial court is faulty not only in law but on fact as that finding overruling the interpolation of item no.18 properly therein is based on perverse appreciation of evidence. The learned counsel for the appellant had taken this Court through the evidence of P.W.2 and 4 is showing as to how inconsistent their evidence on this score run. The pleadings laying down the claim of the defendants for non suiting the plaintiff shows that they instead of projecting any specific case find the averments like beating around the bush in 8 watching as to how far the plaintiffs are able to prove the same so as to heavily rely upon the failure of the plaintiffs on the score to that extent. The parties admit that preparation of the typed copies of the partition list one concerning the cultivable land and the other for the house. The execution of Ext.2 is not disputed by the defendants which is the list of properties allotted to Ghanashyam. So far as the houses are concerned the partition list has been admitted as Ext.3. The dispute lies in a narrow campus as to the property under item no.18 as finds mention in Ext.2. The defendants assert during trial that it was not there in the original list at the time of its preparation and is an act of subsequent insertion to suite the purpose. In order to provide justification support to the same the use of different carbon resulting appearance of deep coloured typed letters which in other words using new carbon paper is stressed upon in support of the challenge as to later inclusion. P.W.2 is the author of said documentnumbers of such list which had been prepared and each brother was given two copies one relating to the agricultural land and the other for the houses. His evidence is pin pointed that the suit house was given to Ghanashyam and that had been typed out by him to mentioning at the end which was within the knowledge of the defendants as also Ghanashyam. The defendants do not deny the status of this P.W.2 that he was one among those associated in the process. This P.W.2 was never asked to offer his explanation or confronted as to this item no.18 with its description in Ext.2 by deep coloured letters using new carbon papers. The defendants being in custody of these lists of properties as has been stated by P.W.2 have not produced any of the copy with them to show that item no.18 with its description has been an interpolation 9 and made subsequent to the preparation of Ext.2 by way of insertion without the knowledge of all the signatories thereto. Had it been so made on the face of available evidence clear conclusion would have emerged out. That being so this non production of the document to enable the court to have the concluded say in the matter leads the court to draw an adverse inference on the assertion of the defendants as to subsequent inclusion of item no.18 property in Ext.2 only to suit the plaintiffs claim. Ghanashyam has been examined as P.W.4. It is his evidence that when Ext.2 and 3 were prepared he claimed that the cost for the suit for partition that he had filed he made good of by the defendants so in lieu of that the suit house was allotted to him in his share. This explanation of P.W.4 for such item no.18 in Ext.2 has not been shaken by bringing placing any such surrounding circumstances so as to create doubt in mind. Therefore this Court is not in a position to hold that in the above conclusion arrived at by the lower appellate court suffers from the vice of perversity warranting interference. The document being the list of properties fallen to the share of Ghanashyam cannot be taken to be a document by which the partition of the properties amongst the parties has been made. The settled position of law is that when by virtue of a family settlement or arrangement members of a family descending from a common ancestor or any near relation seek to sink their differences and disputes settle and resolve their conflicting claims or disputed title once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family such arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. The object of such arrangement is to protect the family from long drawn litigation perpetual strifes which mars the unity and 10 solidarity of the family and create hatred and bad blood between the various members of the family. However the court is to see that the family arrangement is a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family. The registration of such a document is necessary only if the terms of the family arrangement are reduced into writing where also there lies distinction that the said document if is a mere memorandum prepared after the family arrangement already made and the document is made after that for the purpose of the record or for information of the court for making necessary changes in the record and other papers relating to the properties as in that case the memorandum itself does not create or extinguish any rights in immovable properties and thus is not required to be registered as the same would not fall within the mischief of section 17(2) of the Registration Act. So it is admissible in evidence without being so registered. In the given case the reasons for such settlement cannot be said to be non existent. Ghanashyam had filed the suit for partition and this settlement is subsequent to that. The other evidence as discussed also heavily lean in favour of the finding of the lower appellate court. On a seemly analysis of the principles as stated and the discussions made above this Court finds that the view taken by the lower appellate court that Ext.2 is acceptable to judge character as to ownership of the properties as stated under item no.18 therein from that time onwards is right more particularly when the evidence as to possession of the parties after Ext.2 is not so clarified in detail by the defendants so as to negate plaintiffs claim. In view of all the aforesaid this Court is unable to provide the answers to the substantial questions of law favouring annulment of 11 the judgment and decree as passed by the lower appellate court in finally decreeing the suit with the relief as ordered therein and thereby restoration of the judgment and decree passed by the trial court. Resultantly the appeal stands dismissed and in the facts and circumstances without cost. D. Dash J. Orissa High Court Cuttack Dated the 27th day of Nov 2020 B.Nayak

Woman cannot be treated like a slave just because she suffers from a psychological illness: Odisha High Court

The psychological illness of the woman does not give the husband and his family members the handle to treat her like slave. Odisha High Court dismissed the bail petition of the petitioner by stating the above-cited reasons in the case of Dipak Bhutia vs. State of Odisha [BLAPL no. 5701 of 2020] presided over by the bench of Hon’ble Justice SK Panigrahi. In the instant case, the petitioner (accused) had filed a bail application u/s 439 Cr.P.C from the conviction of offences u/s 498-A, 294, 323, 307, 506, 34 of I.P.C. The case was filed by the complainant against the petitioner for dowry and cruelty. The complainant stated that she got married to the petitioner on 20-2-2015; during which, her father had given Rs.5 lakhs and gold ornaments of about 200 gms and other household items in the form of dowry. But after two years of marriage, the husband (petitioner) and his family members demanded Rs 10 lacs as dowry and threatened to burn her alive in case of refusal of the same. Pursuant to consistent demand and cruelty meted out to the daughter, the complainant’s father gave Rs 3-4 lacs to the in-laws in few installments. It was observed that the matter was resolved in Tumusingha P.S. wherein the petitioner and his family members had admitted their fault and had promised not to repeat similar mistakes again in the future. But a few days later, the husband and the in-laws tried to assault the complainant by threatening to take her life. The mother-in-law and sister-in-law applied a poisonous plant on the complainant’s private parts and tried to set her on fire. But she somehow saved herself and then lodged an FIR in the Police Station. The Petitioner’s counsel had argued that the false allegations were put up against the petitioner and his family and contended that the complainant was a psychiatric patient and hence, bail should be granted to the petitioner. It was found that after the settlement between the parties on 25-5-2020, the complainant was subjected to cruelty within 10 days of the above-stated settlement. The High Court relied on the judgments of Neeraj Subhash Mehta vs. The State of Maharashtra, Shobha Rani v. Medhukar Reddi, and Noorjahan v. State for interpreting that what exactly amounts to cruelty and stated that “If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case if by ordinary sense in human affair the act complained of could otherwise be regarded as cruelty”.

HIGH COURT OF ORISSA: CUTTACK BLAPL No.5701 OF 2020 In the matter of an application under Section 439 of the Criminal Procedure Code 1973) Dipak Bhutia State of Odisha … Versus Petitioner Opposite Party For Petitioner Mr. Dharanidhar Nayak Senior Advocate and M s. S.K. Das B.K. Das B. Mishra and J. Mitra Advocates For Opposite Party : Mr. Karunakar Nayak Additional Standing Counsel Miss. Rajalaxmi Biswal and P. Jena Advocates THE HONOURABLE SHRI JUSTICE S.K. PANIGRAHI Date of Hearing: 21.01.2021 Date of judgment: 05.02.2021 The petitioner has filed the instant application under Section 439 of CrPC seeking bail in connection with Dhenkanal Tumusingha P.S. Case No.720 corresponding to G.R. Case No. 3120 pending before the court of the learned S.D.J.M. Kamakhyanagar. The petitioner herein is the accused in connection with the alleged commission of offences punishable under Sections 498 A 294 323 307 506 34 of I.P.C. The case of the prosecution is that the complainant got married to the present petitioner on 20.02.2015 as per cast and customary practices. At the time of marriage the complainant’s father had given Rs.5 lakhs and gold ornaments of about 200 gms. 20 bhari) and other household items in the form of dowry. After two years of marriage she was subjected to cruelty seeking demand for more dowry of Rs.10 lakhs and threatened to burn her alive in case of refusal of the same. The village gentry have tried to resolve the dispute between them on many occasions. Pursuant to consistent demand and cruelty meted out to the daughter the complainant’s father has given further Rs. 2 4 lakhs over a few instalments. The complainant has also emphasised that the matter has been resolved in the Tumusingha P.S. wherein the petitioner and his family members have admitted their fault and has promised not to repeat similar mistake again in future. It is further alleged that on 06.06.2020 at about 11 P.M. the petitioner along with mother in law and sister in law of the informant victim abused her and assaulted with her with a sharp wood threatening to take her life. Her mother in law and sister in law applied ‘baidanka’ to her private part which is heinous and inhuman. Subsequently the petitioner poured kerosene on her and set her to fire. However she threw the burning apparels and fled from the spot and somehow saved herself. 3 Station. Thereafter the complainant lodged the FIR in the Tumusingha Police Heard Mr. Dharanidhar Nayak learned Senior Counsel appearing for the petitioner learned Additional Standing Counsel and Miss. Rajalaxmi Biswal learned counsel for the Informant and perused the case records. Learned Senior Counsel for the petitioner Mr. Nayak has submitted that the petitioner has been falsely implicated in the case and the prosecution has failed to establish a prima facie case against the petitioner. The allegations as set out in the FIR are omnibus in nature and there is absolutely no allegation of any specific overt act against the present petitioner. Further on perusal of the FIR and the statement of the victim it can be seen that both are contradictory and apart from that offence under Section 307 of I.P.C may not be made out against the petitioner as no injury in the vital parts of the body of the victim and all the injuries including burn injury are simple in nature. Apart from that though there is allegation of setting fire to her body by pouring kerosene but no burnt clothes are seized by the Police and thus the FIR is concocted. Further the learned counsel has alleged that the complainant is a psychiatric patient which was mentioned when the village gentlemen settled a dispute with a condition that she will go to a doctor for treatment. Therefore the allegations in the FIR are completely false and fabricated. Hence the petitioner may be granted bail. The Investigating Officer has submitted the Case Diary along with the injury report of the complainant. The injury report shows: Burn injury of size 1 burn 2x1 cm2 right snuff box area dorsal thumb caused by fire. Incision 1x0.1x0.1 cm 3 left thumb ventral region simple Trauma and pain over right upper deltoid region and right zygomatic region due to hit by blunt object nature of caused by knife. injury simple. Inching wound of snuffle size on perineal region due to application of poisonous spore. The injury report further fortifies the allegations in the FIR. The document produced by the petitioner also shows that on 25.05.2020 there was settlement between the complainant and the petitioner at Tumusingha P.S. and show cases that the petitioner and his family members subjected the complainant to cruelty within 10 days of settlement. In the case of Neeraj Subhash Mehta Vs. The State of Maharashtra1 the Bombay High Court relied on Shobha Rani v. Medhukar Reddi2 and Noorjahan v. State3 and provided an explanation of cruelty. “10. By catena of judgments of this court as well as Apex Court what amounts to cruelty as envisaged by Explanation to Section 498A of IPC is explained. Cruelty 1(Criminal Application No. 12116 in Criminal Appeal No. 5516). 21988 SCR(1) 1010. 3[(2008) 11 SCC 55]. implies harsh and harmful conduct with certain intensity and persistence. It covers acts causing both physical and mental agony and torture or tyranny and harm as well as unending accusations and bitterness putting the victim miscarries….A wilful conduct of such a nature as is likely to propel or compel a married woman to commit suicide or to cause grave injury or danger to her life limb or health is required to be established.” In V. Bhagat v. Mrs. D. Bhagat4 the Supreme Court while dealing with the issue of cruelty in the context of Section 13 of the Hindu Marriage Act observed as under: “17. ...It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion regard must be had to the social status educational level of the parties the society they move in the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations regard must also be had to the context in which they were made.... The context and the set up in which the word cruelty has been used in the section seems to us that intention is not necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm harass or hurt could be inferred by the nature of the conduct or brutal act complained of cruelty could be easily established. But the absence of intention should not make any difference in the case if by ordinary sense in human affairs the act complained of could otherwise be regarded as cruelty.” Court held that In Manju Ram Kalita vs. State of Assam5 the Supreme “22. "Cruelty" for the purpose of Section 498A I.P.C. is to be established in the context of Section 498A IPC as it may be a different from other statutory provisions. It is to be determined inferred by considering the conduct of the man weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman continuously persistently or at least in close proximity of time of lodging the complaint.” In the case of Somnath Bharti vs State6 the Delhi High Court rejected the bail application stating the gravity of the allegations against the petitioner and relied on the following ratio: “42. In case of Preeti Gupta and Another Vs. State of Jharkhand and Another7 the Supreme Court held that the ultimate object of the justice is to find out the truth and punish the guilty and protect the innocent. The tendency of implicating husband and all his immediate 5(2009) 13 SCC 330. 6BAIL APPLN. 1952 2015 & Crl.M.(Bail).No.7749 2015. 7(2010) 7 SCC 667. relations is also not uncommon. At times even after the conclusion of criminal trial it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of the complaint are to be scrutinized with great care and circumspection. Experience long and protracted criminal trials lead to rancour acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband s relations had to remain in jail even for a few days it the chances of amicable settlement altogether. The process of suffering is extremely long and painful. Therefore it is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law.” In the instant case the investigation is still going on. From perusal of the FIR it appears that offences under the Indian Penal Code are prima facie definitely made out though it requires thorough trial. A perusal of the FIR and charge sheet filed in the present case shows that there are very specific allegations against each of the family members of the petitioner who are arrayed as accused. It is not as if the allegations are casual and sweeping against all the accused generally. 13. There are numerous other allegations as well in the charge sheet which are very detailed and need not be reproduced since the above extracts are sufficient to indicate that the allegations are specific and not of a general nature. Upon reading of the FIR and the charge sheet as a whole it is not possible to come to the conclusion that they do not make out even a prima facie case against the petitioner for the offences in question. While it is true that even the distant relatives of the husband have been roped in this must be viewed in the context of the fact that the extended family does live in villages within Odisha and the prevalent social milieu and that setting does facilitate their constant interaction. Moreover the allegations are specific qua each of them. The length of detention of the petitioner is not a ground for release him on bail in this kind of offence which shakes the social fabrics. Even the allegation of psychological illness of the complainant victim does not give the petitioner and his family members the handle to treat her like slave bereft of any mercy and human compassion. Therefore I am not inclined to enlarge the petitioner on bail. In view of the above this Bail Application is accordingly dismissed. However the petitioner will be at liberty to raise all the points already raised in this petition at the time of framing of the 9 charge which will be considered by the trial court concerned by passing a reasoned order. It is further made clear that any of the observations made in this judgment shall not come in the way of a fair trial of the case nor shall the trial Court be influenced by these S.K. PANIGRAHI J.] Orissa High Court Cuttack The 5th February 2021 AKK LNB AKP

Revision petition filed against the decision of appellate court demanding to seek  revisional jurisdiction dismissed – Jharkhand high court

Revision petition filed against the decision of appellate court demanding to seek  revisional jurisdiction dismissed – Jharkhand high court A criminal revision petition was filed against the order of the appellate court which dismissed the criminal appeal of the petitioner against the judgment of the sessions judge who convicted and sentenced the petitioner under sections 406 and 420 of the Indian Penal Code. The present appeal is filed to review this judgment . the appeal was heard and dismissed by a single judge bench of HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY in the case of Md. Kalim Versus The State of Jharkhand(Cr. Rev. No. 653 of 2002) The Learned counsel for the petitioner submitted that there is no element of entrustment proved from the records of this case for the conviction of the petitioner the matter relates to payment of the award to the awardees of land acquisition and admittedly the cheques were issued in the names of the awardees and the cheque amounts were deposited in their accounts but it has been alleged that withdrawn amount was taken by the accused petitioner and therefore entire amount was not handed over to the awardees and there is also an unexplained delay in filing the FIR. it is also submitted that the branch manager of the bank in which the money was deposited and the examination shows that has deposed that the amount was paid in cash to the awardees after the amount was credited in their bank accounts on proper identification with this the counsel submits that the basic ingredients for the offense under Section 420 of the Indian Penal Code are also missing in the present case. Hence, the revision petition should be allowed in the present case. The learned counsel appearing on behalf of the respondents opposes the prayer and submits that there are concurrent findings recorded by the learned courts below after scrutinizing the materials on record, which does not call for any interference. the council did not deny the fact that the Branch Manager of the Bank has been examined before the learned court below as court witness and he has also proved the entire documents relating to the opening of bank account, deposit of the cheques, and the withdrawal of the amounts by the awardees based on their withdrawal slips signed by them. The learned court after hearing both the sides reviews the judgment of lower courts and decides that the courts have considered all the relevant materials on record and have returned concurrent findings holding the petitioner guilty of an offense under sections 406 and 420 of IPC by well-reasoned judgment and confirms that the basic ingredients of an offense under section 406 and 420 are proved by the prosecution beyond the shadow of all reasonable doubts. The court relied on the case of Jagannath Choudhary and others reported in (2002) 5 SCC 659 and Ramesh Kumar Bajaj reported in (2009) 1 JCR 684 (Jhar) explaining the revisional jurisdiction of courts and the learned court decides that there is sufficient evidence in support of the finding of fact reached by the two subordinate courts and is of the view that the finding of fact is presentable and do not suffer from any perversity, illegality or material irregularity calling for any interference in revisional jurisdiction of this court and rightly upholds the sentence of the petitioner. Click here to read the judgment

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 6502 Md. Kalim son of Abdul Khalique resident of Kanke Road Bhitha P.S. Kanke District Ranchi The State of Jharkhand CORAM: HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY … … Opp. Party Versus … … For the Petitioner For Opp. Party State Mr. A.K. Sahani Advocate Mr. Tapas Roy A.P.P. 24 24.01.2022 Heard Mr. A.K. Sahani the learned counsel appearing on behalf of the petitioner. 2. Heard Mr. Tapas Roy the learned A.P.P. appearing on behalf of the Opposite Party State of Jharkhand. The present criminal revision petition is directed against the Judgment dated 08.08.2002 passed by the learned Sessions Judge Gumla in Criminal Appeal No.10 1999 whereby and whereunder the appellate court confirmed the conviction and sentence of the petitioner under Sections 406 and 420 of the Indian Penal Code passed by the learned trial court and dismissed the criminal appeal preferred by the petitioner. The learned trial court vide Judgment of conviction and the order of sentence dated 08.02.1999 passed by the learned Sub Divisional Judicial Magistrate Gumla in G.R. No.278 1990 T.R. No.291 1999 had convicted the petitioner under Sections 406 and 420 of the Indian Penal Code and had sentenced him to undergo Rigorous Imprisonment for 03 years and fine of Rs.5 000 for the offence under Section 420 of the Indian Penal Code and in default of payment of fine to undergo Rigorous Imprisonment for 06 months and Rigorous Imprisonment for 03 years and fine of Rs.5 000 for the offence under Section 406 of the Indian Penal Code and in default of payment of fine to undergo Rigorous Imprisonment for 06 months and both the sentences were directed to run concurrently. Arguments on behalf of the petitioner Learned counsel for the petitioner submitted that the petitioner has been convicted for the offences under Sections 406 and 420 of the Indian Penal Code although there is no element of entrustment proved from the records of this case. He submitted that the matter relates to payment of award to the awardees of land acquisition and it has been alleged that the petitioner was instrumental in taking the awardees to Ranchi for the purposes of payment. Admittedly the cheques were issued in the names of the awardees and the cheque amounts were deposited in their accounts. However it has been alleged that the withdrawn amount was taken by the accused petitioner and thereafter entire amount was not handed over to the awardees. The learned counsel submitted that even at the time of the alleged handing over of the cash to the awardees admittedly they did not count the money and when went back to Simdega they got the money counted and found that the money was less than the actual award amount. He also submitted that there has been unexplained delay in filing the F.I.R. The learned counsel further submitted that the court witness i.e. the Branch Manager of the Bank has been examined in the present case who has clearly deposed that the amount was paid in cash to the awardees after the amount was credited in their bank accounts on proper identification. The learned counsel submitted that the learned courts below have not considered the evidence of the court witness and have failed to consider that the court witness has clearly deposed that the mode of payment of the cash amount to the awardees was through the withdrawal forms duly signed by them. The learned counsel submitted that as there is no entrustment there is no question of criminal breach of trust for constituting the offence under Section 406 of the Indian Penal Code. The learned counsel further submitted that as the amount was withdrawn by the awardees themselves under their signatures on the withdrawal forms there is no occasion for any loss caused to the awardees and the basic ingredients for the offence under Section 420 of the Indian Penal Code are also missing in the presence case. Arguments on behalf of the Opposite Party State The learned counsel appearing on behalf of the Opposite Party State on the other hand opposed the prayer and submitted that there are concurrent findings recorded by the learned courts below after scrutinizing the materials on record which do not call for any interference. He submitted that the victims have fully supported the prosecution case. However during the course of argument he did not dispute the fact that the Branch Manager of the Bank has deposed before the learned court below as court witness and he has also proved the entire documents relating to opening of bank account deposit of the cheques and the withdrawal of the amounts by the awardees on the basis of their withdrawal slips signed by them. Findings of this Court The prosecution case is based on the written report of the Informant namely Dular Toppo lodged on 09.09.1990 before the Simdega police alleging inter alia that the land of his father and uncle were acquired by the Government for Ram Rekha Jalasay Pariyojna Simdega and the compensation for the land was to be paid at the Dam Panchayat Bhawan and some cheques were distributed in presence of the Mukhiya namely Laxmi Kant Prasad on 13.08.1990. When the Informant demanded the cheque he was told that the record of Sheet Nos. 4 and 5 was not brought and he was asked to come to Ranchi for taking the rupees otherwise the money will be deposited in the treasury. When the cousin of the Informant met the petitioner he asked them to come on 25.08.1990. It was further alleged that due to fear the Informant alongwith his father namely Junas Toppo uncle namely Amrujus Toppo cousin namely Ilias Toppo and other co villagers went to Ranchi on 25.08.1990 in the office of the Land Acquisition Department where they met the petitioner who took them in his house situated at Kanke Road and he arranged food and lodging of the Informant and his companions. Thereafter on 28.08.1990 the Special Land Acquisition Officer namely Anirudh Prasad Shrivastava came to the house of the petitioner in the night at about 08.00 P.M. and issued cheques to all the awardees and left after taking meal. On the next day on 29.08.1990 the petitioner demanded and took back the cheques of all the awardees and brought them to Bank of India Doranda Branch where he got the signatures of the awardees obtained on the cheques and withdrawal forms and deposited the same in the bank. After sometime he informed the awardees that payment is not likely to be made and took all of them again to his house where all of them stayed in the night after taking meal. On the next day i.e. on 30.09.1990 the petitioner went to the Bank of India alone and at about 02.00 P.M. he came back with the money in a cement bag. He went upstairs to his house and after half of an hour he got down and gave the bundles of the money wrapped in chadar or in gamchha one by one and he brought them in his car to bus stand and got them boarded on Mehta Bus. It was alleged when all of them reached Simdega at about 09.00 P.M. in the night they went to the house of Irius Toppo and counted their money they found shortage and as per the F.I.R. a sum of Rs.1 24 551.86 as short to Amrujus Toppo and Junas Toppo a sum of Rs.36 347.17 was short to Junas Toppo a sum of Rs.83 054.97 was short to Jowakim Kiro and Alkaria Kiro a sum of Rs.14 634.25 was short to Samuel Kharia a sum of Rs.28 939.19 was short to Hirmina Kerketta a sum of Rs.4 325.87 was short to Lajrus Kharia a sum of Rs.3 112.93 was short to Amrujus Toppo and a sum of Rs.7 423.50 was short to Albis Kharia. In this way a total amount of Rs.3 02 389.74 was short. 10. On the basis of the written report Kamdara P.S. Case No.73 1990 was registered and after completion of investigation charge sheet was submitted against the petitioner showing him absconder and also against Anirudh Prasad Shrivastava. 11. After hearing on the point of charge the learned A.C.J.M. Simdega vide order dated 13.01.1994 discharged Anirudh Prasad Shrivastava and took cognizance of the offence under Sections 406 and 420 of the Indian Penal Code against the petitioner but the order of discharge was set aside by this Court vide order dated 10.07.1996 passed in Cr. Misc. No.3257 1994(R) and Anirudh Prasad Shrivastava was directed to face the trial. The petitioner surrendered on 01.08.1996. On 27.08.1996 charges under Sections 409 420 and 120(B) of the Indian Penal Code were framed against Anirudh Prasad Shrivastava and the petitioner which were read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. In course of trial the prosecution examined altogether 13 witnesses to prove its case. P.W. 1 is Junas Toppo P.W. 2 is Jowakim Kindo @ Kharia P.W. 3 is Samuel Kharia P.W. 4 is Alkesia Kharia P.W. 5 is Amrujus Toppo P.W. 7 is Lajrus Kharia P.W. 8 is Albis Kharia and P.W. 9 is Hirmina Kerketta who were the different awardees and the victims of the case. P.W. 10 is Dular Toppo who is the Informant of the case and the son of Junas Toppo. P.W. 11 is Junas Kerketta who is the Sarpanch and he has identified the awardees at the time of giving of the cheques. P.W. 6 is Laxmi Kant Prasad who is the Mukhiya. P.W. 12 is Irius Toppo and P.W. 13 is A.C. Das who is the Investigating Officer of the case. 14. P.W. 1 Junas Toppo stated that on 28.08.1990 he got the cheque which remained with him for the whole night and in the morning Irius Toppo collected all the cheques and handed over to the petitioner who brought all of them in his car to Bank of India Doranda Branch. He also stated that the petitioner asked him to sign upon the cheque and withdrawal form and thereafter he signed upon the cheque and the withdrawal form. The petitioner said that money is not available in the bank and thereafter he brought all of them to his house. On 30.08.1990 the petitioner alone went to the bank and brought the money in a cement bag. He went upstairs to his house and after half an hour he came and distributed the encashed and withdrawn cheque money in Gamchha and Lungi. He brought them to bus stand and boarded them in Mehta Bus. They came to Simdega at 09.00 P.M. and stayed in the residence of Irius Toppo and counted the money. He found that out of Rs.1 71 000 he was given only Rs.60 000 . He deposited the entire amount in the bank. During cross examination he stated that on 25.08.1990 he had gone to the Land Acquisition Office at 10.00 A.M. and remained seated outside the office and Irius Toppo was doing everything for him in the office. He also stated that Irius Toppo had identified them at the time of opening the account. 15. Likewise P.W. 2 Jowakim Kindo @ Kharia also stated that the petitioner had not allowed him to count the money and had given him cash amount after wrapping it in his Gamchha and when he came to Simdega he counted the money and found that there was shortage. During cross examination he stated that he had signed upon the c.c. voucher and Sarpanch had identified him. He stated that on counting he found Rs.50 000 only which had deposited in the bank. He stated that he was given cheque of Rs.1 05 734 . He admitted that he had no account in Doranda Bank and his account was opened there and cheque was account payee one. 16. P.W. 3 Samuel Kharia deposed that he was to be paid a sum of Rs.23 800 but he was given Rs.10 800 only by the petitioner and his cheque was taken by the petitioner. During cross examination he stated that on 25.08.1990 he met the Land Acquisition Officer and on that date the cheques were prepared and the officer concerned had enquired about the identifier Sarpanch and had identified his L.T.I. on the counter foil of the cheque book and thereafter the cheque was given to him. 17. P.W. 4 Alkesia Kharia deposed that she had gone to Ranchi with Irius Toppo and stayed for taking compensation amount and she remained there for six days in the house of the petitioner. Though she had to get a sum of Rs.1 00 000 for the cheque amount but the petitioner had given her Rs.50 000 only. She further deposed that out of Rs.30 000 she was given Rs.15 000 only. During cross examination she stated that whatever compensation amount was payable to her cheque was issued to her on the identification of Sarpanch. 18. P.W. 5 Amrujus Toppo deposed that his land was acquired for which a sum of Rs.1 71 112 was to be given as compensation but only cheque for Rs.43 000 was given at Karbera Panchayat and for the remaining amount Irius had told him that the same will be paid at Ranchi. At Ranchi he was given cheque of Rs.1 71 000 and on 30th the money was paid by the petitioner in a bag but he did not allow him to count the money. When he came to Simdega he counted the money at the house of Irius Toppo and found that it was Rs.60 000 only. During cross examination he stated that the cheque was given in his hand and he had signed upon c.c. voucher. The officer who had made the cheque had not said him to deposit the cheque in the bank nor he had given any instruction and he had himself deposited the cheque in his account. 19. P.W. 6 Laxmikant Prasad is the Mukhiya of the Kerbera Panchayat and he deposed that first payment in respect of the acquired lands for Ram Rekha Dam was made on 13.08.1990 and on that day payment was not made for the lands acquired from Sheet Nos.4 and 5 for want of record. On account of this the awardees had gone to Ranchi but he had not gone to Ranchi. He stated that Dular Toppo informed him about the mischief done by the petitioner. 20. P.W. 7 Lajrus Kharia stated that out of Rs.8 000 the petitioner paid him Rs.3 000 only and the money was paid to his brother who is already dead and he had not counted the 21. P.W. 8 Albis Kharia deposed that she was paid a sum of Rs.6 000 . 22. P.W. 9 Hirmina Kerketta stated that out of Rs.49 939 a sum of Rs.21 000 only was given to her by the petitioner and on the previous occasion she was paid a sum of Rs.28 000 at Kerbera Panchayat. During cross examination she stated that she was given cheque of Rs.49 939.19 and she had signed upon the counter foil of the cheque and her signature was identified by the Sarpanch. She had gone to the bank and had deposited the cheque in the bank. She had not counted the money nor her husband had counted the money. 23. P.W. 10 Dular Toppo is the informant of the case and he deposed that his lands were acquired for the Ram Rekha Dam and for 05 acres of land the compensation was to be paid at Kerbera but no payment was made on 13.08.1990. The Land Acquisition Officer informed that the record of Sheet No.4 and 5 was not there and so the payment will be made at Ranchi. For this reason he alongwith others had been to Ranchi on 25.08.1990. They stayed at the house of the petitioner and the cheques were given on 28.08.1990 and thereafter account was opened. Irius had identified the photographs of all the awardees and the petitioner filled up the required forms of the bank for depositing the cheques. He has fully supported the prosecution case as narrated in the FIR and also stated that he had compared the payable amount and the paid amount and had noted the same on a paper and had handed over the same to the Mukhiya. During cross examination he admitted that after delivery of cheque he never met Anirudh Prasad Shrivastava and after finding shortage of money he never met Kalim Mian. He has supported the entrustment of cheques to the petitioner and less payment made by the petitioner. 24. P.W. 11 Junas Kerketta is the Sarpanch. He deposed that he had gone to Ranchi on Monday with Irius and had identified the different awardees there and had come back to Simdega and the entire cost was borne by the petitioner. He further deposed that when the awardees came to Simdega they informed him that lesser amounts have been paid to them. In cross examination he admitted that he had not signed upon any counter foil of the cheque. 25. P.W. 12 Irius Toppo who deposed about cheating of Rs.9 000 by the petitioner for which no case was filed. 26. P.W. 13 A.C. Das is the Investigating Officer of the case who had handed over to the investigation to another police officer upon his transfer. S.P. Sarkar has been examined as a court witness who was the Branch Manager of Bank of India posted in Shyamali Branch during the relevant period. He deposed about deposit of the cheques issued by the Land Acquisition Officer in respect of the different awardees. 28. The prosecution exhibited certain documents. Exhibit 1 the application dated 07.09.1990 submitted by the Informant to the Mukhiya Kairbera Gram Panchayat P.S. Simdega Exhibit 1 1 is the endorsement on the application dated 07.09.1990 in support of the allegation Exhibit 1 2 is endorsement of Jonas Kerketta on the application dated 07.09.1990 Sarpanch of Kerbera Panchayat Exhibit 2 is the written report Exhibit 2 1 is the endorsement of the Officer in charge Simdega on the written report Exhibit 3 is the formal F.I.R. and Exhibit 4 series are the statements of the awardees and witnesses recorded under Section 164 of Cr.P.C.. 29. After closure of prosecution evidence the statements of the petitioner and co accused were recorded under Section 313 of Cr.P.C. wherein the petitioner denied the evidences put to him and claimed to be innocent. 30. The defence examined one witness namely Onkar Nath Shrivastava as D.W. 1 who was the Cashier Special Land Acquisition Officer. He deposed about the manner in which compensation amount was paid to the awardees of the Land Acquisition Case No. 1 87 88 and 2 87 88 for the lands acquired under Ram Rekha Jalasya Pariyojna. He stated that they appeared after getting notice and the cheques were paid after obtaining their signatures and L.T.I. with identification on C.C. voucher and thereafter the cheques were prepared by him and the officer concerned Anirudh Prasad Shrivastava signed upon the cheques. All the awardees had signed upon the counter foil of the cheques and Sarpanch Jonas Kerketta had identified their signatures on 25.08.1990 and every awardee was given cheque in their hands. 31. Certain documents were also brought on record by the defence. Exhibit A is advice slip dated 27.09.1990 Exhibit A 1 is signature of Manager on the advice slip Exhibit B series are initial signatures of the accountant of the bank on the pay in slip Exhibit C series are different account payee cheques 16 in number Exhibit D series are bearer withdrawal forms Exhibit E is statement of account Exhibit F is the balance sheet of the Special Land Acquisition Officer Khunti Account No.70 and Exhibit G is cheque book. Letter of the Manager Shyamali Branch Bank of India sent to the Investigating Officer of the case has been marked as ‘X’ for identification carbon copy of advice slip issued from the Special Land Acquisition Officer has been marked as ‘X 1’ for identification duplicate copies of the land acquisition vouchers have been marked as ‘Y’ for identification signatures of the awardees on C.C. Vouchers have been marked as ‘Y 1’ for identification writings on cheques dated 25.08.1990 have been marked as ‘Y 2’ for identification signature of Jonus Kerketta has been marked as ‘Y 4’ for identification advice dated 27.08.1990 has been marked as ‘Y 5’ for identification and details of the cheques and its amounts have been marked as ‘Y 6’ for identification. 32. The learned trial court considered the evidence on record and with respect to the offence under Section 409 of the Indian Penal Code recorded its findings in Para 6 that the accused Anirudh Prasad Shrivastava in the capacity of Land Acquisition Officer was duly authorized to disburse the amount of compensation to the respective awardees. Oral and documentary evidences conspicuously convey that account payee cheques were handed over to the awardees on proper identification. This aspect has not been disputed that the awardees were given cheques for their complete compensation amount. It has also come in the prosecution and defence evidence that the cheques of the awardees were deposited in the bank through pay in slips where the awardees had opened their accounts and account payee cheques have been proved on record as Exhibits C to C 15. Pay in slips showing deposit of all those account payee cheques in the bank have been proved on record as Exhibits B to B 9. In this way the amounts covered under the relevant cheques handed over to the awardees had been transferred from Government account to the individual account of the awardees. As such transaction in between public servant entrusted with compensation money and the awardees came to an end when the compensation amount was credited in their respective accounts of individual awardees. Thereafter the awardees are not entitled to claim for payment in respect of the compensation amount which had already been paid to them by account payee cheques. The learned trial court observed that it is not a case of cash payment. The awardees were given account payee cheques. It is admitted in the first part of transaction that on 25.08.1990 all the awardees had gone to Land Acquisition Office at Ranchi. They received cheques relating to their compensation amount on 28.08.1990. The learned trial court recorded that after receipt of cheques of compensation amount the second part began when on 29.08.1990 Kalim Miantook back the cheques and deposited their cheques and withdrawal forms in Bank of India Doranda Branch. Almost all the awardee witnesses have supported this aspect of the prosecution case. They have further stated that from 29.08.1990 to 30.08.1990 they remained with the petitioner and acted as per his direction. They signed or put their L.T.I. upon the pay in slips and deposited their cheques in their respective accounts. They also signed or put their L.T.I. on the bearer withdrawal forms. None of the awardees have stated that either they had not signed upon the bearer withdrawal forms or put their L.T.I. upon the same. It is consistent prosecution case that the petitioner brought money from the bank and distributed among the awardees without allowing them to count the same. So whatever mischief has been done that has been done on 29.08.1990 and 30.08.1990 and not before that. Exhibit F is the statement of Account No.70 standing in the name of Special Land Acquisition Officer Khunti. It shows that all the sixteen cheques issued in the name of the awardees have been debited from the account of the Special Land Acquisition Officer Khunti played trickery by adopting foul means. He filled up the pay in slips and bearer withdrawal forms and later on drew the amount but misappropriated a big amount of their money. In the dealings of opening of account depositing of cheques and withdrawal of the cheques amounts Anirudh Prasad Shrivastava was not a party. Almost all the awardee witnesses have stated that after disbursing the cheques to them Anirudh Prasad Shrivastava never met them. So it is quite obvious that factum of entrustment of the cheques to Kalim Mian and its encashment by Kalim Mian is duly proved. The witnesses have stated that lesser amount as discussed above were paid to them by Kalim Mian in a hurried manner. The learned trial court found that that criminal breach of trust as defined U s. 405 I.P.C. and cheating has been proved in this case. The learned trial court further recorded in Para 13 that the awardees could have well deposited their account payee cheques at Simdega but due to inducement played upon by Kalim Mian they desired to take payment at Ranchi itself. 34. The learned trial court also considered the evidence of the court witness in Para 13 and recorded that the version of the court witness Branch Manager of Bank of India Doranda clearly indicates that the payment was made through account payee cheques and the cheque amount was credited to the account of the individual awardees. 35. The learned trial court also considered the evidence of the defence witness D.W. 1 who deposed about the manner in which compensation amount was paid to the awardees of the Land Acquisition Case No. 1 87 88 and 2 87 88 for the lands acquired under Ram Rekha Jalasya Pariyojna. 36. The learned trial court in Para 15 found that there is sufficient evidence of entrustment of cheque taking the signatures of the cheque bearers on pay in slips and on the bearer withdrawal slips by the petitioner and there is also sufficient evidence to indicate that the cheque holders were given lessor amount than the cheques entrusted to them and in this way the petitioner misappropriated a big amount and cheated the cheque holders. 37. The learned trial court convicted the petitioner under Sections 406 and 420 of the Indian Penal Code and sentenced him as stated above. However the learned trial court acquitted the co accused namely Anirudh Prasad Shrivastava from all the 38. The learned appellate court also considered the materials on record and recorded in Para 10 that 10 persons namely Junas ToppoDular ToppoAmrujus ToppoJowakim Kindo @ Kharia Alkesia Kharia Samuel Kharia Laxmi Kant Prasad Irius Toppo Hirmina Kerketta and Albis Kharia P.W. 8) were examined under Section 164 of Cr.P.C. during investigation and their statements have been marked as Exhibits 4 to 4 9 series and all the 10 persons have been examined during trial as prosecution witnesses and their statements are consistent and they have fully supported the prosecution case. They have clearly stated that the awardees were given cheque by the Land Acquisition Officer on 28.08.1990 in the house of Kalim Mian the petitioner and thereafter he left the place and be never came in picture and it was the petitioner who took back the cheques from all the awardees on 29.08.1990 and brought them to Bank of India Shyamali Branch Doranda Ranchi. The prosecution witnesses have also stated that the petitioner obtained the signatures of the awardees on the cheques and withdrawal forms and deposited the same in the bank and after sometime he informed the awardees that payment is not likely to be made that day and he took all of the them back to his house where they stayed in the night. The witnesses have further stated that on the next day on 30.08.1990 the petitioner went to the bank alone and returned at 02.00 P.M. with money in cement bag and he went upstairs to his house and got down after half an hour and gave the bundles of rupees wrapped in chadaror gamchha towel) and the witnesses have also stated that the petitioner did not allow themto count the rupees handed over to them and the petitioner carried them in a car upto the bus stand and asked them to board on Mehta Bus to go to Simdega. All the witnesses have clearly stated that when they counted the money in their village the shortage was found and the F.I.R. was lodged. The learned appellate court further found that it is apparent from the depositions of the above referred prosecution witnesses that the petitioner obtained the signature on the withdrawal forms as also on the cheques and deposited in the bank and on the same day the payment was not made and the payment was received by the petitioner on 30.08.1990. As on 30.08.1990 the petitioner alone went to the bank to receive the rupees from the bank as the withdrawal forms signed by all the awardees were already deposited in the bank. So it is apparent that the petitioner received the amount of compensation on the basis of the withdrawal forms signed by the awardees and the petitioner brought the entire rupees to his house and without distributing the same to the awardees he went upstairs and got down after half an hour. In the meantime when he was in his upstairs he committed the fraud and misappropriated the amount of compensation and after half an hour he distributed the less amount to all the awardees and he did not allow them to count which shows the guilty mind of the petitioner. The learned appellate court confirmed the conviction and sentence of the petitioner under Sections 406 and 420 of the Indian Penal Code passed by the learned trial court and dismissed the criminal appeal preferred by the petitioner. 39. This Court finds that the learned courts below have considered all the relevant materials on record and have returned concurrent findings holding the petitioner guilty of offence under section 406 and 420 of IPC by well reasoned judgements. The basic ingredients of offence under section 406 and 420 have been found to be proved by the prosecution beyond shadow of all reasonable doubts. 40. The Hon’ble Apex Court has explained the power of revisional court in the case of Jagannath Choudhary and others reported in5 SCC 659 at para. 9 as under: “Incidentally the object of the revisional jurisdiction as envisaged u s 401 was to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law irregularity of procedure neglect of proper precautions of apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order or on the other hand in some underserved hardship to individuals.. The main question which the High Court has to consider in an application in revision is whether substantial justice has been done. If however the same has been an appeal the application would be entitled to demand an adjudication upon all questions of fact or law which he wishes to raise but in revision the only question is whether the court should interfere in the interests of justice. Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order the revision cannot succeed. If the impugned order apparently is presentable without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice interference cannot be had in exercise of revisional jurisdiction.” 41. The revisional power is further explained in the case of Ramesh Kumar Bajaj reported in1 JCR 684at para. 13 as follows: “It is well settled that revisional interference may be justified where: i) the decision is grossly erroneous. ii) there is no compliance with the provisions of law. iii) the finding of fact affecting the decision is not based on evidence. iv) material evidence of the parties is not considered and v) judicial discretion is exercised arbitrarily or 42. There is no scope for reappreciating the evidences on record and coming to a different finding while exercising revisional jurisdiction in absence of any perversity illegality or material irregularity in the impugned judgements giving concurrent findings upon appreciating the materials on record. This Court has gone through the materials on record for the purpose of satisfying itself and found that there is sufficient evidence in support of the finding of fact reached by the two subordinate courts and is of the view that the finding of fact is presentable and do not suffer from any perversity illegality or material irregularity calling for any interference in revisional jurisdiction of this court. 43. This court is of the considered view that considering the nature and the manner in which the offence has been committed by the petitioner the learned appellate court rightly upheld the sentence of the petitioner. 44. As a cumulative effect of the aforesaid findings this criminal revision petition is hereby dismissed. 45. Bail bond furnished by the petitioner is hereby cancelled. Interim order if any stands vacated. 47. Pending interlocutory application if any is also dismissed 48. Let the lower court records be immediately sent back to the as not pressed. learned court below. 49. Let a copy of this order be communicated to the learned court below through ‘e mail FAX’. Anubha Rawat Choudhary J.)

In a contract, the party who suffers by any such breach is entitled to receive compensation for any loss which naturally arises: High Court Of New Delhi

Appellant had approached the learned Single Judge seeking a direction to the Respondent to extend the time for depositing 75% of LPA 419/2021 the balance amount and issue a fresh Demand Notice, and the same issue was held in the judgement passed by a Division bench judge HON’BLE THE CHIEF JUSTICE HON’BLE MS. JUSTICE JYOTI SINGH, in the matter JITIN GARG V. DELHI DEVELOPMENT AUTHORITY dealt with an issue mentioned above. In this case, the writ petition was dismissed by the learned Single Judge on a short ground that the DDA by its Circular dated 02.12.2020 had granted further time to all similarly placed persons to make payments by 31.12.2020, and also appellant did not take the benefit and make payment and instead chose to file a writ petition on 13.11.2020. The Respondent had issued an online advertisement for the e-auction of some residential properties on 10.08.2019. Appellant deposited 5% EMD i.e. Rs.7,00,859/- on 06.09.2019, On 11.09.2019, during the online bidding, Appellant emerged as the highest bidder for the plot in question and the total value of the plot was Rs.2,41,66,000/-. According to the Appellant, the balance payment could not be done because of the lockdown which was imposed by the Government on 23.03.2020 on account of Pandemic Covid-19. On 30.03.2020, Respondent issued a Public Notice for extension of time for making payment under different Housing Schemes, but there was no clarity of the notice related to the plot of the Appellant. However, Appellant was unable to arrange for the loan due to the Pandemic and the last date under the Demand Letter expired. The learned counsel for the Appellant contends that a limited relief was sought by the Appellant before the learned Single Judge for grant of extension of time so that the balance amount could be deposited as the Appellant had already deposited 25% towards the cost of the plot. It was argued that the payment could not be made within the time stipulated in the Demand Letter on account of Pandemic Covid-19. It was mentioned that the appellant made some representations to the DDA seeking extension of time but being unsuccessful in getting the relief, he preferred a writ petition being W.P. (C) No.10331/2020 on 13.11.2020 seeking extension of time to deposit remaining 75% of the value of the plot. Learned Single Judge had also observed in the impugned order that the Circular dated 02.12.2020 granting time for payment up to 31.12.2020, was duly notified on the DDA’s website and many persons have reaped the benefit of the extension. This aspect of the matter has been properly appreciated by the learned Single Judge while deciding the writ petition. Later it was decided that if the appellant ought to have known that if a plot was being auctioned and he succeeded as being the highest bidder, he was bound to deposit not only the initial 25% but also the balance 75% within the period stipulated in the Demand Letter. Not only did the Appellant not deposit the 75% within the stipulated schedule but also failed to pay during the extended period while many other similarly placed reaped the benefit of time extension. And also if the Appellant chose to remain silent and not act vigilantly or promptly, despite the Circular of the DDA being on the website, he must suffer for the laxity was also mentioned. The court perused the facts and argument’s presented, it thought that- “We find no infirmity or error in the impugned judgment. LPA 419/2021 Page 7 of 7 . There is no merit in the Appeal and the same is accordingly dismissed along with the pending application”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 10thNovember 2021 Through: Mr. Rajeev Kumar Advocate DELHI DEVELOPMENT AUTHORITY Counsel for DDA Prabhsahay Kaur HON BLE THE CHIEF JUSTICE HON BLE MS. JUSTICE JYOTI SINGH D.N. PATEL CHIEF JUSTICEwas already deposited by the Appellant original petitioner) on 10.12.2019 after receiving the Letter of Intent dated Appellant had made some representations to the DDA seeking extension of time but being unsuccessful in getting the relief he preferred a writ petition being W.P C) No.10331 2020 on 13.11.2020 seeking extension of time to deposit remaining 75% of the value of the plot 10. We find as a matter of record that Respondent vide communication dated 02.12.2020 had extended the time on its own volition upto 31.12.2020 perhaps keeping in view the difficulties faced by the public due to Pandemic Covid 19. It is an undisputed fact that the Appellant did not avail the benefit of extension of time granted by the DDA and instead of making payment during the extended time chose to file a writ petition and contest the case. In our view the learned Single Judge has rightly dismissed the writ petition on the ground that Appellant should have taken the benefit of the extended time as a vigilant claimant is expected to be aware of how to pursue his or her claims promptly. Learned Single Judge has also observed in the impugned order that the Circular dated 02.12.2020 granting time for payment upto 31.12.2020 was duly notified on the DDA’s website and many persons have reaped the benefit of the extension. Once the Circular was notified on the website we fail to understand why the Appellant did not seek the benefit of extension and deposit the balance 75%. Surely the Appellant cannot at this stage be given the relief of extension of time once he has failed to avail the benefit given by DDA In any event the plot in question was auctioned by the DDA and it is for the DDA to lay down the time schedules of the payments. This is really in the realm of a contract between two contracting parties and it is not in the domain of this Court to interfere and extend the time for depositing the balance 75%. We also do not find any merit in the contention of the Appellant that he was unable to arrange the loan for making the balance payment. The advertisement for e auction was issued on 10.08.2019 and the online bidding was on 11.09.2019 when the Appellant emerged as a highest bidder. At this stage it was well known to the Appellant that he was required to pay a sum of Rs.2 41 66 000 towards the total value of the plot and there was no reason for the Appellant not to have made arrangements to make the payment. A subsequent event of Pandemic in our view will not inure to the advantage of the Appellant though even this was factored in by the Respondent and extension of time was granted for nearly six months i.e from June 2020 to 31.12.2020 This aspect of the matter has been properly appreciated by the learned Single Judge while deciding the writ petition. We are in full agreement with the reasoning of the learned Single Judge and for ready reference paragraphs 2 3 & 4 of the impugned judgement are extracted hereunder : The petitioner was a successful bidder of Residential Plot No. 6 Pocket B 1 Sector 29 Rohini Delhi. 5% Earnest Money Deposit of Rs.7 00 859 had been paid on 06.09.2019. A Letter of Intent was issued on 04.12.2019 requiring another 25% to be paid within 7 days from date of its issuance. The said amount was deposited within time. A demand letter dated 19 03 2020 28 03 2020 was issued to the petitioner vide letter no. F 11(109) 2019 LSB(R)469 seeking to be paid by remaining 75% of 25.06.2020. The said monies were not paid. After the date got over the petitioner sought issuance of fresh demand letter from the DDA so that he could arrange for monies. The petitioner did nothing during the period of payment and is seeking to make out a case after the period got over The DDA by its Circular dated 02.12.2020 had granted further time to similarly situated persons to make the payments by 31.12.2020. The said circular was notified on the DDA s website but was not sent to the persons individually. While due notice of Circular is not challenged in the writ petition it did exist on DDA s website and many persons have reaped the benefit of DDA s policy decision. The writ petition itself was filed on 13.11.2020. A vigilant claimant litigant is expected to be well aware of the changes in policy and to pursue his her claims promptly. The petitioner should have taken benefit of the extended time. Surely a bank loan could have been arranged to pay the DDA. Simply because the petitioner wrote a letter to the DDA on 02.07.2020 seeking extension of time does not by itself grant locus to the petitioner for issuance of a fresh demand letter or for extension of No case is made out. The petition is without merit. Accordingly it along with pending applications Appellant ought to have known that if a plot was being auctioned and he succeeded as being the highest bidder he was bound to deposit not only the initial 25% but also the balance 75% within the time period stipulated in the Demand Letter. Not only did the Appellant not deposit the 75% within the stipulated schedule but also failed to pay during the extended period while many other similarly placed reaped the benefit of time extension Merely because the Appellant has approached this Court cannot be a reason enough to grant him further extension against the policy and decision of the Respondent. If the Appellant chose to remain silent and not acted vigilantly or promptly despite the Circular of the DDA being on the website he must suffer for the laxity 14. We find no infirmity or error in the impugned judgment There is no merit in the Appeal and the same is accordingly dismissed alongwith the pending application JYOTI SINGH J NOVEMBER 10 2021 Page