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The tenant will pay or submit the amount provisionally assessed by the controller at the first hearing of the expulsion application: Tripura High Court

It will be for the tenant to pay or tender the amount provisionally assessed by the Controller on the first date of hearing of the application for ejectment. On compliance, the Controller would proceed to adjudicate upon the controversy arising for decision by reference to pleadings of the parties and by holding a summary enquiry for the purpose. The judgement was passed by the High Court of Tripura in the case of Sri Krishna Sudam Roy v. Sri Debasish Bhowmik [RSA No.37 of 2018] by Single Bench consisting of Hon’ble Justice S. Talapatra. The facts of the case are that the plaintiff entered into a rent agreement with the defendant for letting out his rooms situated in his premises, opposite to the Kamalpur Super Market. The plaintiff had put up the defendant in rooms as a temporary monthly tenant. At one point in time, a serious dispute broke out between the plaintiff and the defendant and with other tenants. The defendant and other tenants filed a writ petition before this court. The said writ petition was disposed of on compromise by recording the conditions, which had arisen from the said writ petition. Learned counsel has submitted that a notice for eviction as sent by the respondent is not noticed in terms of Section 106(1) of the Transfer of Property Act, 1882. The said notice has been issued under Section 108 of the Transfer of Property Act, 1882 which deals with rights and liabilities of lessors and lessees. Section 108 of the Transfer of Property Act, 1882 deals with the modalities, rights and liabilities of the lessor and lessee in particular, in two different parts. It has been provided in the said section that the lessee can also raise a notice to demand or remove any defects. Certain prohibitions have also made against the lessee. What has been provided in the agreement is that when the lease is determined, the lessee is bound to put the lessor in the possession of the property. Learned Counsel for the respondent has submitted that the decision of the apex court in Rakesh Wadhawan and Ors Vs Jagadamba industrial Corporation & Ors. was under the Rent Control Act and not Page under the Transfer of Property Act. He further, submitted that hence the ratio as laid by the apex court may not apply in the present case. He has stated that due notice was served, but the provision under which notice was served wrongly quoted in the notice. But all the ingredients of a notice under Section 106(1) of the Transfer of Property Act, 1882 are available and the demand has spelt out. Despite such notice, the defendant, the appellant herein, did not pay the arrear rent as claimed in the said notice.

HIGH COURT OF TRIPURA RSA No.318 Sri Krishna Sudam Roy son of late Jogesh Chandra Roy resident of Noagaon P.S. Kamalpur P.S. Kamalpur District: Dhalai Appellant(s) Respondent(s) Sri Debasish Bhowmik son of Sri Shanti Bhushan Bhowmik Kamalpur Town P. S. Kamalpur District: Dhalai For Appellant(s) For Respondent(s) Date of hearing Mr. S. Deb Sr. Adv. Mr. K. Nath Adv. Mr. H. Laskar Adv. Date of judgment & order : 04.06.2021 Whether fit for reporting HON’BLE MR. JUSTICE S. TALAPATRA Judgment & Order By means of this appeal under Section 100 of the CPC the defendant has challenged the judgment dated 16.04.2018 delivered in Title Appeal No.017 by the Addl. District Judge Unakoti Judicial District Kamalpur as it then was. By the said judgment the Addl. District Judge has dismissed the first appeal being Title Appeal No.01 of 2017 by returning the finding that the defendant is not entitled to get the benefit of Section 114 of the Transfer of Property Act 1882. Analogy has been drawn from R.S. Lala Praduman Kumar vs. Virendra Goyal and Others reported in 1969 SCC 714 where the apex court has stated that in a suit of eviction against the tenant the appellate court in appropriate case may relieve the tenant of default. It is open to the appellate court at the hearing of the appeal to give relief to the tenant in default against forfeiture but the aforesaid power of the court is no doubt is to exercise discretion for equity. The appellate court should verify the conduct of the tenant before granting such equitable relief. 02. In the case in hand on appreciation of the records it appears that the defendant has made a conditional offer for getting such relief against forfeiture. In that backdrop the appellate court has denied to exercise discretion in favour of the defendant for giving the relief against forfeiture as provided under Section 114 of the Transfer of Property Act 1882. The said finding has been challenged by the defendant the appellant herein. Briefly stated the relevant facts are that the plaintiff entered into a rent agreement with the defendant for letting out his rooms situated in his premises appertaining to Khatian No.904 plot No.1188 of mouja Kamalpur under Kamalpur Sub Division opposite to the Kamalpur Super Market. The plaintiff had put up the defendant in the rooms No.6 & 7 as a temporary monthly tenant. At one point of time a serious dispute broke out between the plaintiff and the defendant and with other tenants. The defendant and other tenants filed a writ petition before this court being W.P.(C) No.83 of 2009. The said writ petition was disposed of on compromise by recording the conditions in the Miscellaneous Application being CM Appl. No.289 of 2014 which had arisen from the said writ petition. On the basis of the said settlement compromise by the order dated 25.06.2014 the said writ petition was disposed of with further direction as under: “The instant writ petition was partly heard earlier and today when the matter is taken up the learned counsel for the petitioners submits that the disputes between the Landlord the respondent No.3 and 4 and the petitioners have been settled and both of them have filed a compromise petition stating the terms and conditions of the settlement which is registered as C.M. Application No.2814. The writ petition in question was filed for setting aside the memorandum dated 05.03.2009 issued by the Executive Officer Nagar Panchayet Kamalpur Dhalai wherein the owner of the building where the petitioners are tenants was directed to deposit the cost of demolition to the office of Nagar Panchayet in consultation with the Asstt. Engineer Jr. Engineer in the office of the Nagar Panchayet Kamalpur within seven days from the date of issue of the memo as the petitioners are providing rent for the said dangerous building. As the petitioner tenants and the landlord respondents 3 and 4 have compromised the matter on the basis of the terms and conditions stated in the compromise petition the writ petition is disposed of directing the petitioners and the respondents 3 and 4 to act on the basis of the terms and conditions mentioned in the compromise petition. At the same time when the matter is settled between the tenant petitioners and the landlord respondent No.3 and 4 the respondent No.1 and 2 Kamalpur Nagar Panchayet is directed not to act upon the impugned memorandum dated 05.03.2009as the landlord himself will go for necessary repairing and renovation as required for the building. The compromise petition will form as a part of this order.” There is no dispute that in the settlement it was 03. agreed between the plaintiff and the defendant that the respondents No.3 & 4 the land lord would take up the necessary renovation work and such renovation work would be completed within a defined period from the date of commencing the work. To facilitate the said repairing work and renovation work the petitioners shall hand over the vacant possession of their respective rented rooms which were under their occupation possession within a period of 7(seven) days from the date of order disposing the writ petition. It was further agreed upon that after completion of the repairing renovation work the tenants shall be given possession in their respective rooms which they had vacated for enabling the landlord) carry out the renovation. It had been agreed that before re handing over the possession the petitioners shall execute separate rent agreements with the respondents No.3 and 4 delineating the period of tenancy etc. It was agreed that the tenancy shall be for a period of five years from the date of execution of the tenancy agreement with a further clause for renewal for another period of six years after completion of the initial five years period on 10% enhancement of the rent after every two years thereafter. 04. It was agreed that the rent shall be Rs.750 per month per door shall themselves carry on business in their respective premises and shall not induct any sub tenant without the prior written consent from the respondents No.3 & 4. Rent for every month shall be paid by the tenants within the first week of the following month. The plaintiff complied with the terms and conditions of settlement as afore stated and entered into a rent tenancy agreement with the defendanton 06.04.2011. It was also agreed that the tenant shall deposit an amount of Rs.5000 per door meaning total Rs.10 000 for fixing of rolling shutters over the doors of the rented premises which will however be refunded at the time of termination of the tenancy. It was in addition decided that the said agreement shall continue for a tenure of five years from the date of execution of the tenancy agreement and on expiry of five years term the said agreement can be renewed for another period of six years with 10% enhancement in the rent which shall be enhanced after every two years. 05. As stated on the basis of the said agreement of tenancy the defendant was inducted as temporary monthly tenant in the suit premises and he paid the monthly rent up to August 2015. From the month of September 2015 the defendant did not pay monthly rent that fell due and therefore the defendant has become defaulter in payment of monthly rent. Since the defendant has failed to make payment of monthly rent for more than five consecutive months the defendant has become liable to be evicted from the suit premises described in schedule below. 06. The plaintiff served a notice on the defendant on 10.02.2016 through a lawyer demanding handing over of vacant possession of the suit premises described in the schedule of the plaint within a period of one month from the date of the receipt of the said notice. But the defendant did not vacate the said premises nor did he pay the outstanding rent. The plaintiff thereafter instituted the suit for ejectment and recovery of possession as consequential relief. The defendant did not deny the facts laid in the plaint. The defendant filed the written statement and stated that he incurred expenditure of Rs.8000 for purpose of renovation and repairing of the suit premises. The defendant the appellant herein has further asserted in the written statement as follows: “That the contention of the Para 8 and 9 to the effect that the Plaintiff is entitled to get the vacant possession of the suit premises on the purported ground of default of the Defendant in making payment of the monthly rent is hereby strongly denied and disputed by the Defendant. It is the Plaintiff who has been refusing to accept the monthly rent from the Defendant on the ground the adjustment of the monthly rent with the expenditure incurred by the Defendant for the purpose of repairing the suit premises has not yet being In the said written statement most of the pleadings 07. have been disputed by the defendant. But in para 16 he made a solemn statement which reads as under: 08. 09. “16. That in respect to contention of Para 13 the Defendant submits that the Defendant has not become defaulter in making payment of monthly rent since September 2015 monthly rent is being adjusted with Rs.8 000 which had incurred by the Defendant for the repairing of the suit premises However the Defendant is ready with the monthly rent from September 2015 till date and is willing to tender the monthly rent for the aforesaid period before the Ld. Court at once without waiving his claim right to adjustment of monthly rent with Rs.8 000 Rupees eight thousand) that was incurred by the Defendant for the repairing of suit premises.” Based on the said rival pleadings as it appears several issues have been framed by the Civil Judge Junior Division Kailashahar Unakoti District. The issues are as follows: 1. Whether the suit is maintainable in its present form and nature 2. Whether there is any cause of action for filing the present suit 3. Whether the defendant has not been paying rent of the suit premises and consequently has been illegally possession the suit premises 4. Whether the plaintiff is entitled to relief(s) as prayed for 5. Whether the plaintiff is entitled to any other relief(s) The plaintiff adduced three witnesses and introduced few documentary evidencewhich was incurred by the Defendant for the repairing of the suit premises. However the Defendant is ready with the monthly rent from September 2015 till date and is willing to tender the monthly rent for the aforesaid period before the Ld. Court at once without having his claim right to adjustment with Rs.8 000 that was incurred by the Defendant for the repairing for the suit Mr. S Deb learned senior counsel assisted by Mr. S 15. Bhattacharjee has submitted that a notice for eviction as sent by the respondent is not a notice in terms of Section 106(1) of the Transfer of Property Act 1882. According to Mr. Deb learned senior counsel on a reading of the said notice dated 29.01.2016 it would appear. The said notice was drawn up completely on different premise. Mr. Deb to buttress his submission has referred the following passages from the said noticeto demonstrate that the said notice cannot be considered as a notice under Section 106(1) of the Transfer of property Act. For purpose of reference the passages as indicated above are “7. That you the Notice Receiver being defaulter in payment of monthly rent have no right to continue with the tenancy in terms of said agreement and you the Notice Receiver have become liable to be evicted from the said rented premises and therefore my said client is entitled to get vacant possession of the said rented premises. 8. That since you the Notice Receiver have become defaulter in payment of monthly rent you the Notice Receiver are required to put my said client into possession of the vacant rented premises described in schedule below. You the Notice Receiver are required to vacate the said rented premises in favour of my said client within a period of one month from the date of receipt of this notice failing which if my client is compelled to take shelter of law you the Notice Receiver would be liable for all civil and criminal consequences and 9. That since the said tenancy agreement was made by you the Notice Receiver and my said client after the order of the Hon’ble High Court passes in W.P.(C) No.83 of 2009 in terms of compromise as aforesaid and you the Notice Receiver as a party to the said case agreed with such terms and conditions reduced therein were are bounded by the terms and conditions reduced therein. In fact the said Deed of Agreement was made following the terms and conditions of the parties of the said W.P.(C) No.809 and in such case you the Notice Receiver was a party. In that view of the matter by not paying the due monthly rent to my said client you the Notice Receiver have committed an offence punishable under Contempt of Court Act. Therefore my said client reserves right to take appropriate action against you the Notice Receiver for willful disobedience of the order of the Hon’ble High Court and or any other offence which may be constituted by you the Notice Receiver by violating the terms and conditions reduced in the said compromise petition. Under the above circumstances it is demanded and expected that you the Notice Receiver shall vacate the said rented premises described in schedule below in favour of my said client within a period of one month from the date of receipt of this notice and you the Notice Receiver would vacate the said rented premises in schedule below by putting my said client into vacant possession of the said rented premises in schedule below within the aforesaid period failing which if my said client is compelled to take shelter of law you the Notice Receiver would be liable for all civil and criminal consequences and costs.” 16. Mr. Deb learned senior counsel has further submitted that the said notice has been issued under Section 108 of the Transfer of Property Act 1882 which deals with rights and liabilities of lessors and lessees. Section 108 of the Transfer of Property Act 1882 deals with the modalities rights and liabilities of the lessor and lessee in particular in two different parts has categorically stated to the court that “I am ready to pay the rent to Debasish Bhowmik right now even in the court also. I do not have any malice regarding rent. I do not want to keep rent with me and I can pay it whenever it is required.” 18. Mr. Deb learned senior counsel has drawn attention of this court to the clear admission made by the respondent the plaintiff of the suit. In his cross examination hehas stated that “the deed of rent submitted by me has not been registered. It is a fact that I have not submitted any document to show that I have conducted repairing works on the suit 19. Finally Mr. Deb learned senior counsel having criticized the impugned judgment dated 16.04.2018 passed in Title Appeal No. 01 2017 has contended that the first appellate court while revisiting the issues has observed that the defendant is entitled to get the benefit of Section 114 of Transfer of Property Act 1882 but the said power of the court can only be exercised with due regard to conducts of the tenant has failed to prove that there was anything for adjustment. The defendant made no expenditure for repairing of the suit premises. 20. Mr. Deb learned senior counsel has quite strenuously submitted that a technical interpretation of Section 114 of the Transfer of Property Act 1882 would frustrate the very object of such provision. According to him if the intention is conjointly read the court should give the tenant an opportunity to remove the defect when the defect is relating to default in payment of rent. In support of his contention Mr. Deb learned senior counsel has referred a decision of the apex court in Rakesh Wadhawan and Ors Vs Jagadamba industrial Corporation Ors. reported in5 SCC 440. 21. In Rakesh Wadhawan the apex court has observed that it will be for the tenant to pay or tender the amount provisionally assessed by the Controller on the first date of hearing of the application for ejectment. On compliance the Controller would proceed to adjudicate upon the controversy arising for decision by reference to pleadings of the parties and by holding a summary enquiry for the purpose. Such adjudication shall be provisional and subject to the later final adjudication. The finding that may ultimately be arrived at by the Controller may be one of the following three: the Controller may hold that the quantum of arrears as determined finally isthe same as was found to be due and payable under the provisional order is less than what was determined by the provisional order oris more than the one what was held to be due and payable by the provisional order. In the first case the Rent Controller has simply to pass an order terminating the proceedings. In the second case the Controller may direct the amount deposited in excess by the tenant to be refunded to him. In the third case it would not serve the purpose of the Act if the tenant was held liable to be evicted forthwith. The Controller directing the eviction of the tenant may pass a conditional order affording the tenant one opportunity of and a reasonable time for depositing the amount of deficit failing which he shall be liable to be evicted. This power in the Rent Controller can be spelled out from the use of the word “may” in the expression “the Controller may make an order directing the tenant to put the landlord in possession” as also from the principle of equity and fair play that the tenant having complied with provisional order passed by the Controller should not be made to suffer if the finding arrived at by the Controller at the termination of the proceedings be different from the one recorded in the provisional order. It has been further observed that while exercising the discretion to make a conditional order of eviction affording the tenant an opportunity of purging himself of the default the Controller may also take into consideration the conduct of the tenant whether he has even after the passing of the provisional order continued to pay or tender the rent to the landlord during the pendency of the proceedings as a relevant factor governing the exercise of his discretion. Such a course would be beneficial to the landlord too as he would be saved from the trouble of filing a civil suit for recovery of rent which fell due during the pendency of proceedings for eviction before the Controller. 22. The said approach no doubt as Mr. Deb learned senior counsel has pointed out advances the object sought to be achieved by the legislation and it best serves interest of the landlord and the tenant both. It removes uncertainty in litigation and obscurity in drafting of the provision and also accords with the principle of justice and equity. Even if it is an innovation it is in the field of procedural law without affecting the substantial rights and obligation of the landlord and the tenant and such innovation is permissible on the basis of the authority and supported by the principle of justice good sense and reason. 23. Mr. Deb learned senior counsel has also referred a decision of this court in Banamali Debnath Vs. Debasish Bhowmik where this court had occasion to observe as follows on a similar type of rent agreement: 16. From a cumulative reading which is material before us is that this court is constrained to observe that the first appellate court did not make any mistake in accepting that the notice under Section 106 inasmuch as an un registered deed of lease cannot be treated as the lease as per the requirement of Section 107 of the Transfer of Property Act 1882. Thus that will be treated as the tenancy beyond any cognate reason and the requirement of the notice period is fifteen days. The second substantial question on the face of it is devoid of any merit inasmuch as no such statement is made in the written statement nor was there any endeavour to derive the benefit of Section 114 of the Transfer of Property Act. That apart Section 114 has very restricted application. It applies in case of the lease. Mr. H. Laskar learned counsel for the respondent has 24. clearly submitted that the decision of the apex court in Rakesh Wadhawan was under the Rent Control Act and not under the Transfer of Property Act. Mr. Laskar learned counsel has submitted that hence the ratio as laid by the apex court may not apply in the present case. He has stated that due notice was served but the provision under which notice was served wrongly quoted in the notice. But all the ingredients of a notice under Section 106(1) of the Transfer of Property Act 1882 are available and the demand has clearly spelled out. Despite such notice the defendant the appellant herein did not pay the arrear rent as claimed in the said notice. Even after appearing in the court of the civil judge Jr. Division he did not take any attempt to deposit the rent or urge the court to decide provisionally the arrears of rent. Moreover in the written statement he has disputed the account of arrear rent. Only in his statement before the court he had stated that he is ready to deposit the said amount even waiving his demand of adjustment as stated for the time being. 25. Mr. Laskar learned counsel has categorically stated that the plaintiff has categorically in his statement in the trial that the defendant did not make any expenditure for repairing of the shop. The first appellate court has further inferred that there is no evidence to hold that the defendant had spent an amount of Rs.8 000 for repairing the shop. No document whatsoever has been placed in the trial. 26. According to Mr. Laskar since the agreement cannot be treated as lease within the meaning of Sections 105 and 107 of the Transfer of Property Act the provision of Section 114 of the Act cannot be applied. Thus he has emphatically stated that this court should not interfere with the impugned judgment as the question of equity has been taken care of but the conduct of the defendant did not generate any confidence in the court to provide him relief in equity. 27. Having appreciated the rival contentions raised by the parties and having due regard to the substantial questions of law which were framed while admitting the appeal on 05.08.2019 this court would formulate a common question which reads as Whether terms of the agreement dated 16.11.2014 where it was undertaken that the arrears of rent would be paid to the landlord the order of eviction was justified by treating the notice as given by the respondent as valid 28. For purpose of reference however the substantial questions of law as formulated by this Court are reproduced 29. i) Whether in the event of undertaking in terms of the agreement dated 16.11.2014 that arrears rent will be paid to the land lord the Civil Court could have considered of not passing the order of eviction ii) Whether for non consideration that the tenure of the agreement being yet to expire the undertaking of making payment of arrear rent vis a vis the impugned judgment has suffered illegality or for illegality not giving a valid notice under Section 106 of the Transfer of Property Act Having perused the content of the notice of ejectment eviction this Court is convinced that the notice bears all requirements of a notice under Section 106(1) of Transfer of Property Act 1882. Merely for referring a wrong Section Section 108 of the Transfer of Property Act 1882 the notice cannot be held invalid for purpose of eviction. It is not the case of the defendant that the notice did not reveal the details why the eviction or ejectment has been sought by the plaintiff. Thus it will not be appropriate to hold the said notice as invalid. 30. What remains thereafter is to verify whether the order of ejectment is valid Despite the undertaking made in the court or in the agreement dated 16.11.2014 that the arrears of rent would be paid that was not paid. Hence the first appellate court was justified in returning the finding that the appellant be evicted and the vacant possession shall be restored in favour of the plaintiff. 31. With all earnestness this Court has considered the submission of Mr. Deb learned senior counsel on relieving the defendant against for feiture and the decision in Rakesh Wadhawan to deposit the amount “at the first instance” in the court of the civil judge. Not only that he had challenged the arrear but later on the defendant has admitted in his statement that he had been faulting in payment of the agreed rent for his two doored shop since the month of September 2015 till then but he has not deposited any amount either in the court of the first instance or in the first appellate court. 32. Such conduct does not instill confidence in the court to apply discretion by affording opportunity for purging out of the default by way of making payment of arrears to the landlord. Thus this Court does not find any infirmity in the impugned judgment either in law or in refusal to the equity jurisdiction. Hence this appeal stands dismissed. Draw the decree accordingly. Send down the LCRs thereafter. Pending application(s) if any also stand disposed of. Moumita

According to Section 47 of Cpc the court is required to take questions relating to the execution, satisfaction of the decree: High Court of Shimla

The Section 47 of Code of Civil Procedure the executing court is required to look into the questions relating to the execution, discharge or satisfaction of the decree. Such questions are to be adjudicated by the executing court and not by a separate suit. This honorable judgement was passed by High Court of Shimla in the case of Sh. Parveen Kumar & ors. Versus Sh. Choudary Ram & ors. [CMPMO No. 341 of 2014] by Ms. Justice Jyotsna Rewal, Judge.  The objections preferred by the judgment debtors to the execution petition filed by the decree holders had been partly allowed by the learned Executing Court vide order, which is impugned herein by the decree holders. In terms of this order, instead of actual possession, only symbolic possession of the suit land had been ordered to be delivered to the decree holders. A civil suit was instituted by the defendants. The plaintiffs asserted themselves to be owners along with other co-sharers of the suit land comprised in Khata No. 39 min, Khatauni No. 81, Khasra No. 78, measuring 0-00-55 HM, situated in village Tutwan, Sub Tehsil Fatehpur, District Kangra, on the basis of jamabandi for the year 1989-90. The allegations in the plaint were that the defendants were neither the owners nor the tenants over the suit land. Yet they had forcibly taken over the possession of the suit land in an illegal and unlawful manner. Therefore, decree for vacant possession of the suit land was prayed for. Learned trial Court decreed the suit of the plaintiffs ex-parte against the defendants for vacant possession of suit land. Aggrieved against this order passed by the learned executing court on 29.8.2014, the decree holders have preferred instant petition under Article 227 of the Constitution of India. The court opinioned that, “There is no dispute qua the settled legal position that the executing court cannot go behind the decree and has to execute it as its stands. However, in terms of Section 47 of Code of Civil Procedure the executing court is required to look into the questions relating to the execution, discharge or satisfaction of the decree. Such questions are to be adjudicated by the executing court and not by a separate suit.”

Hig h C o urt of H.P on 22 04 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CMPMO No. 3414Reserved on: 19.4.2021 Decided on: 22.04.2021Sh. Parveen Kumar & ors........Petitioners.VersusSh. Choudary Ram & ors. .....Respondents.CoramMs. Justice Jyotsna Rewal Dua Judge. Whether approved for reporting 1 Yes. For the petitioners: Mr. Anuj Gupta Advocate. For the respondents:Mr. Ajay Sharma Senior Advocate with Ms. Aanandita Sharma Advocate for respondents No. 1 to 4. Nemo for respondents No. 5 to 9.Jyotsna Rewal Dua Judge The objections preferred by the judgment debtors tothe execution petition filed by the decree holders have beenpartly allowed by the learned Executing Court vide order dated29.8.2014 which is impugned herein by the decree holders. Interms of this order instead of actual possession only symbolicpossession of the suit land has been ordered to be delivered tothe decree holders. 1 Whether the reporters of the local papers may be allowed to see theJudgment Hig h C o urt of H.P on 22 04 HCHP 22(i)A civil suit was instituted by S Shri Rania and ChuniLal both sons of Shri Litru on 29.12.1995. The defendants in thesuit were S Shri Dulo and Chhunku both sons of Shri Mangtu.The plaintiffs asserted themselves to be owners alongwith otherco sharers of the suit land comprised in Khata No. 39 min Khatauni No. 81 Khasra No. 78 measuring 0 00 55 HM situatedin village Tutwan Sub Tehsil Fatehpur District Kangra on thebasis of jamabandi for the year 1989 90. The allegations in theplaint were that the defendants were neither the owners nor thetenants over the suit land. Yet they had forcibly taken over thepossession of the suit land in May 1989 in an illegal and unlawfulmanner. Therefore decree for vacant possession of the suit landwas prayed for. Learned trial Court on 22.8.1998 decreed thesuit of the plaintiffs exparte against the defendants for vacantpossession of suit land. The operative part of the judgmentreads as under:“ .Since the plaintiffs alongwith other cosharers arethe owners of the suit land and the defendants have no right title or interest over the suit land and thus the suit of theplaintiffs is hereby decreed against the defendants for vacantpossession of the land comprised in Khata No. 39 min Khatauni No. 81 Khasra No. 78 measuring 0 00 55 HM situated in village Tutwan Sub Tehsil Fatehpur Distt. Kangra H.P. as per jamabandi for the year 1989 90.”2(ii)On 12.8.2006 the legal heirs of original plaintiff No. 1and Shri Chuni Lal original plaintiff No. 2filedan execution petition under Order 21 Rule 11 of Code of CivilProcedure for executing the aforesaid decree dated 22.8.1998. Hig h C o urt of H.P on 22 04 HCHP 3The execution was preferred against the legal heirs of originaldefendants. The prayer in the execution petition was for puttingthe plaintiffs decree holdersinto actualpossession of the suit land after demarcation of boundaries.2(iii)On 12.1.2007 objections on behalf of judgmentdebtors were preferred pleading therein that the decree hadbecome inexecutable for the reasons: a)The original judgment debtor No. 1 Dulo hadpurchased 1 16th share in the suit land on 27.5.1999.b)Judgment debtor Bhola Ram son of Shri Dulo had alsopurchased a separate share in the suit land. c)After purchase of shares in the suit land thejudgment debtors had become joint owners in possession withthe decree holders. The share of the judgment debtors jointowners is not specified on a particular portion of land in question.Therefore till the time the land is partitioned every inch of it hasto be construed as joint between the parties joint owners.d)The decree holdersin suchcircumstances are not entitled for actual possession of the suitland.The reply to the objections had been filed on behalfof the decree holders present petitioners denying the purchaseof suit land by the judgment debtors. It was also submitted that Hig h C o urt of H.P on 22 04 HCHP 4even after the purchase of a portion of the suit land by thejudgment debtors the decree could still be executed. 2(iv)Issues were framed in the objection petition on28.12.2007. The parties led evidence in support of theirrespective contentions After considering the pleadings and theevidence adduced by the parties the learned trial court held thatthe original defendant No. 1 Shri Dulohad purchased the suit land on27.5.1999 to the extent of 1 16th share and judgment debtorBhola Ram had also purchased separate share in the suit land.Therefore the judgment debtors had become co sharers of thesuit land. On becoming co sharers of the suit land the judgmentdebtors cannot be ousted from their possession of the suit landand for this reason actual possession of the suit land was notordered to be delivered to the decree holders. Instead of warrantof actual possession warrant of symbolic possession was orderedto be issued in favour of the decree holders.Aggrieved against this order passed by the learnedexecuting court on 29.8.2014 the decree holders have preferredinstant petition under Article 227 of the Constitution of India.3.Heard learned counsel for the parties and gonethrough the record.4.Learned counsel for the petitioners decree holderssubmitted that learned Executing Court erred in not delivering Hig h C o urt of H.P on 22 04 HCHP 5actual possession of the suit land in favour of the decree holders.Learned counsel contended that there was no document onrecord to show that the judgment debtors had purchased anyportion of land in the suit land. He further submitted that in anycase even if it is to be presumed that the part of suit land wassold to the judgment debtors original defendants then also itwas sold much after passing of the judgment and decree soughtto be executed. The intention of the judgment debtors and theirpredecessors was only to deprive the decree holders from gettingthe possession of the suit land. In such circumstances theobjections filed by the judgment debtors were not legallymaintainable and were liable to be rejected as the executingcourt could not have gone behind the decree. Learned counselfor the appearing respondents judgment debtors supported theimpugned order. 4.On going through the record the impugned ordercannot be said to be suffering from any infirmity. Followingaspects become material in this regard: 4(i)The objections preferred on behalf of the judgmentdebtors were in respect to the inexecutability of the decree dated22.8.1998 vide which the plaintiffs were held to be the owners ofthe suit land alongwith other co sharers. It was held in thejudgment and decree that the defendants judgment debtorswithout any rights or authority had forcibly taken the possession Hig h C o urt of H.P on 22 04 HCHP 6of the suit land in May 1989. Accordingly the suit filed by theplaintiffs was decreed against the defendants for vacantpossession of the suit land comprised Khata in No. 39 min Khatauni No. 81 Khasra No. 78 measuring 0 00 55 HM situatedin village Tutwan Sub Tehsil Fatehpur District Kangra as perjamabandi for the year 1989 90.4(ii)In response to the execution petition filed in the year2006 the judgment debtors by submitting that subsequent tothe decree they had purchased shares in the suit land objectedto the executability of the decree. During evidence they placedon record jamabdndi for the year 1999 2000andjamabandi for the year 2004 2005wherein it wasrecorded that original defendant No. 1 Dulohad purchased 30 out of 480shares in the suit land and judgment debtor Bhola Ram had alsopurchased 45 out of 480 shares in the suit land. Sale deedsthough have not been placed on record however the decreeholders have not denied the revenue documents placed onrecord by the defendants judgment debtors. In fact no evidencein this regard whatsoever has been led by the plaintiffs decreeholders to rebut the revenue record reflecting purchase of sharesin the suit land by the objectors judgment debtors. Thus fromthe perusal of the evidence adduced by the parties in theobjection petition it is evident that subsequent to the passing of Hig h C o urt of H.P on 22 04 HCHP 7the decree the defendants judgment debtors have purchasedshares in the suit land from the other cosharers and therefore have themselves become co shares over the suit land.4(iii)There is no dispute qua the settled legal position thatthe executing court cannot go behind the decree and has toexecute it as its stands. However in terms of Section 47 of Codeof Civil Procedure the executing court is required to look into thequestions relating to the execution discharge or satisfaction ofthe decree. Such questions are to be adjudicated by theexecuting court and not by a separate suit. Section 47 reads asunder:“47. Questions to be determined by the Court executingdecree.—(1) All questions arising between the parties to thesuit in which the decree was passed or their representatives and relating to the execution discharge or satisfaction of thedecree shall be determined by the Court executing thedecree and not by a separate suit.(3) Where a question arises as to whether any person is or isnot the representative of a party such question shall for thepurposes of this section be determined by the Court.[Explanation 1.—For the purposes of this section a plaintiffwhose suit has been dismissed and a defendant againstwhom a suit has been dismissed are parties to the suit.Explanation II—(a) For the purposes of this section apurchaser of property at a sale in execution of a decree shallbe deemed to be a party to the suit in which the decree ispassed and(b) all questions relating to the delivery of possession of suchproperty to such purchaser or his representative shall bedeemed to be questions relating to the execution dischargeor satisfaction of the decree within the meaning of thissection.]” Hig h C o urt of H.P on 22 04 HCHP 84(iv)(2010) 14 SCC 384 title Arun Lal and othersversus Union of India and others was a case where decree forrecovery of possession by ejectment of defendants from abungalow was passed with a direction to remove barracksconstructed on part of compound. Union of India in terms of aresumption notice took over possession of land appurtenant tothe bungalow. The notice was not challenged. In executionproceedings respondents filed objections under Section 47 CPCthat decree was rendered inexecutable to the extent of landresumed under the resumption notice. The apex court upheldHigh Court’s verdict that possession of said land could not betaken away from Union of India for delivering to the decree holders since after resumption of property and takingpossession Union of India in exercise of its rights as paramounttitle holder was no longer holding the same as a tenant so as tobe answerable to petitioners as its landlords. Relevant para fromthe judgment is extracted hereinafter: “15. It is common ground that the land appurtenantto the bungalow had been utilised by the Union of India forconstruction of barracks. The entire extent of 2.792 acres ofof land including the one under the barracks could therefore be taken over pursuant to the resumption order which wasnever assailed and had thereby attained finality. Such beingthe position the High Court was right in holding thatpossession of the above extent of land could not be takenaway from the Union of India for delivery to the decree holders. That is because after the resumption of the propertyand the taking over of the possession by the Union of India inexercise of its rights as the paramount title holder it was no Hig h C o urt of H.P on 22 04 HCHP 9longer holding the same as a tenant so as to be answerable tothe petitioners as its landlords. The Union of India was on thecontrary holding the resumed property in its own right and ina capacity that was different from the one in which it hadsuffered the decree for eviction. This was a significant changein the circumstances in which the decree was passedrendering it inexecutable.”Jagdish Dutt and another v. Dharam Pal andothers reported in AIR 1999 Supreme Court 1694 was a casewhere a decree for actual possession of immovable property waspassed. One of the coparceners assigned transferred his interestin the decree in favour of the judgment debtors. It was held thatthe decree in such situation would get extinguished to the extentof the interest so transferred and further that execution petitionwould lie only to the extent of remaining part of the decree. Itwas also observed that where the interest of coparceners isundefined indeterminate and cannot be specifically stated to bein respect of any one portion of the property then a decree foractual possession of immovable property cannot be given effectto before ascertaining the rights of the parties by an appropriatedecree in a partition suit. The relevant para of the judgmentreads as under:“7.When a decree is passed in favour of a joint familythe same has to be treated as a decree in favour of ail the membersof the joint family in which event it becomes a joint decree. Where ajoint decree for actual possession of immovable property is passedand one of the coparceners assigns or transfers his interest in thesubject matter of the decree in favour of the judgment debtor thedecree gets extinguished to the extent of the interest so assigned andexecution could lie only to the extent of remaining part of the decree.In case where the interest of the coparceners is undefined Hig h C o urt of H.P on 22 04 HCHP 10indeterminate and cannot be specifically stated to be in respect ofany one portion of the property a decree cannot be given effect tobefore ascertaining the rights of the parties by an appropriate decreein a partition suit. It is no doubt true that the purchaser of theundivided interest of a coparcener in an immovable property cannotclaim to be in joint possession of that property with all the othercoparceners. However in case where he is already in possession ofthe property unless the rights are appropriately ascertained hecannot be deprived of the possession thereof for a joint decree holdercan seek for execution of a decree in the whole and not in part of theproperty. A joint decree can be executed as a whole since it is notdivisible and it can be executed in part only where the share of thedecree holders are defined or those shares can be predicted or theshare is not in dispute. Otherwise the executing court cannot find outthe shares of the decree holders and dispute between joint decreeholders is foreign to the provisions of Section 47 CPC. Order XXI Rule15 CPC enables a joint decree holder to execute a decree in itsentirety but if whole of the decree cannot be executed this provisioncannot be of any avail. In that event also the decree holder will haveto work out his rights in an appropriate suit for partition and obtainnecessary relief thereto. Various decisions cited by either side towhich we have referred to do not detract us from the principle statedby us as aforesaid. Therefore a detailed reference to them is notrequired.” The ratio of aforesaid judgments squarely applies tothe facts of the case. In the instant case the judgmentdebtors objectors have proved on record that they had becomeco sharers of the suit land subsequent to passing of the decreesought to be executed. The suit land is now jointly owned bythem alongwith various cosharers. In such situation theirpossession over the suit land cannot be treated as illegal and therefore they cannot be ousted from such possession. Thejudgment debtors objectors have purchased shares in the suitland from the other co sharers. Their possession of the suit landis now in a capacity different from the one in which they had Hig h C o urt of H.P on 22 04 HCHP 11suffered the decree for possession. In such circumstances learned trial court was justified in not issuing the warrant ofactual possession in favour of decree holders petitioners. For theforegoing reasons the petition lacks merit and is accordinglydismissed. Jyotsna Rewal Dua Judge 22nd April 2021

The refund of the court fees acts as an ancillary economic incentive for settlement of disputes without court intervention: High Court of Delhi

There is no justifiable reason why Section 69-A should only incentivise the methods of out-of-court settlement stated in Section 89 CPC and afford step-brotherly treatment to other methods availed of by the parties. Even though a strict construction of the terms of Section 89 CPC and Section 69-A of the 1955 Act may not encompass such private negotiations and settlements between the parties, the participants in such settlements is entitled to the same benefits as those who have been referred to explore alternate dispute settlement methods Under Section 89 CPC and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE MUKTA GUPTA in the case of SUN PHARMA LABORATORIES LTD. vs. VHM (VARSHA HEALTH MEDICINE) & ORS. [CS(COMM) 535/2021] on 02.03.2022. The facts of the case are that the Defendants recognizes the Plaintiff to be the proprietor of the trade mark PANTOCID having the exclusive right to the use of the aforementioned trade mark in respect of medicinal and pharmaceutical products. The Defendants undertake to refrain themselves from directly or indirectly dealing in medicinal preparations under the impugned mark PANTOCIDE or any other trade mark as may be deceptively similar to the Plaintiff’s trade mark PANTOCID amounting to infringement of registered trade mark. The Defendants state that there are no existing stocks of finished products under the impugned mark PANTOCIDE available with them and that they have destroyed all the stationery, packaging, promotional and publicity material and labels under the impugned mark. The plaintiff’s counsel submitted that since the settlement in the suit was arrived at the initial stage itself, full court fee be returned to the plaintiff. It was stated that the parties have settled the matter and sought some time to place on record the terms of settlement. The Court held that in strict terms when settlement is arrived at between the parties by not adopting a mode prescribed under Section 89 CPC, the party may not be entitled to full court fee, however, Section 89 CPC has to be given a liberal interpretation and thus in cases where settlement is arrived at out of court, the full court fee be refunded. Therefore, registry was directed to issue a certificate releasing full court fee to the authorized attorney of the plaintiff. The Court observed that, “there is no justifiable reason why Section 69-A should only incentivise the methods of out-of-court settlement stated in Section 89 CPC and afford step-brotherly treatment to other methods availed of by the parties. Even though a strict construction of the terms of Section 89 CPC and Section 69-A of the 1955 Act may not encompass such private negotiations and settlements between the parties, the participants in such settlements is entitled to the same benefits as those who have been referred to explore alternate dispute settlement methods Under Section 89 CPC.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on: 2nd March 2022 CS(COMM) 535 2021 SUN PHARMA LABORATORIES LTD Plaintiff Represented by: Mr Sachin Gupta Ms Jasleen Kaur Mr Pratyush Rao Mr Snehal Singh and Ms Swati Meenu Advocates. VHM& ORS. ..... Defendants Represented by: Mr Arun Kumar Advocate. HON BLE MS. JUSTICE MUKTA GUPTA MUKTA GUPTA J.IA No.3370 2022By this application under Order XXIII Rule 3 CPC the plaintiff and the defendants namely VHM Krypton Pharmaceuticals and MBS Formulation impleaded as defendant nos.1 2 and 3 seek decree of the suit in terms of the settlement arrived at between the Taking on record the settlement application is disposed of. parties. CS(COMM.) 535 2021 Plaintiff and defendant nos.1 2 and 3 have entered into a settlement on the following terms and conditions as noted in para 2 of the IA No.3370 2022 are as under: The Defendants above named hereby recognizes the Plaintiff to be the proprietor of the trade mark PANTOCID having the exclusive right to the use of the aforementioned CS(COMM.) 535 2021 trade mark in respect of medicinal and pharmaceutical products in business The Defendants undertake to refrain themselves their its assignees proprietors partners distributors dealers stockists retailers chemists servants and agents from manufacturing selling offering for sale advertising directly or indirectly dealing in medicinal preparations under the impugned mark PANTOCIDE or any other trade mark as may be deceptively similar to the trade mark PANTOCID amounting infringement of registered trade mark under no.791979 The Defendants state that there are no existing stocks of finished products under the impugned mark PANTOCIDE available with them The Defendants state that they have destroyed all the stationery packaging promotional and publicity material and labels under the impugned mark The Defendant No.2 & 3 confirm that they shall destroy the packaging material which was seized by the Ld. Local Commissioner during commission on 30.10.2021 in the presence of the Plaintiff’s representative over video conferencing the execution of vi. All batch details of the impugned product under the its variants are impugned mark PANTOCIDE and disclosed as under: PANTOCIDE L 02 04 02 04 Mfg. date CS(COMM.) 535 2021 19 I 05 19 I 23 05 04 06 01 21 F 07 06 01 05 04 03 12 03 12 08 11 vii. The Defendants confirm that they shall not file any application for registration of any trade mark which is trade mark PANTOCID and will not challenge the rights of the trade mark labels either directly or indirectly the Plaintiff’s viii. The Defendants have computed the profits made by them from the sales of medicine under the impugned mark which comes to INR 4.59 lakhs. The Defendant has deposited the said amount as token costs by way of a demand draft under no.000758 dated 05.01.2022 with the CS(COMM.) 535 2021 Plaintiff The Defendants hereby agree that the Plaintiff shall not be liable in any manner whatsoever whether legal or otherwise arising from Defendants under the impugned mark and the Defendants shall indemnify and hold harmless the Plaintiff from any cost or claim of damages arising from it the goods provided by The abovementioned undertakings have been tendered by Sh. Manoj Kumar Sah Authorized Signatory of all the Defendants and the same shall be binding on the Defendants in business franchisees licensees distributors dealers and agents for all times to their assignees The settlement agreement is duly signed by the constituted attorney of the plaintiff as also the authorized signatory of the defendants Mr Manoj Kumar Sah. The constituted attorney of the plaintiff has also filed the plaint on behalf of the plaintiff and his affidavits and necessary authorization are already on record. Authorization letters in favour of Mr Manoj Kumar Sah on behalf of the defendant nos.1 2 and 3 have been placed on record along the vakalatnama of learned counsel for the defendant. Consequently the suit is decreed in terms of the settlement arrived at between the parties as also the prayer clausesandof the plaint. Learned counsel for the plaintiff submits that since the settlement in the suit was arrived at the initial stage itself as summons in the suit were issued on 27th October 2021 and on the next date before this Court the parties stated that they have settled the matter and sought some time to place on record the terms of settlement full court fee be returned to the plaintiff in terms of the decision of the Hon’ble Supreme Court reported as 3 CS(COMM.) 535 2021 SCC 560 High Court of Judicature at Madras Vs. M. C. Subramaniam & The Hob’ble Supreme Court in the above noted decision held that though in strict terms when settlement is arrived at between the parties by not adopting a mode prescribed under Section 89 CPC the party may not be entitled to full court fee however Section 89 CPC has to be given a liberal interpretation and thus in cases where settlement is arrived at out of court the full court fee be refunded. It was held: “23. We find ourselves in agreement with the approach taken by the High Courts in the decisions stated supra. The purpose of Section 69 A is to reward parties who have chosen to withdraw their litigations in favour of more conciliatory dispute settlement mechanisms thus saving the time and resources of the Court by enabling them to claim refund of the court fees deposited by them. Such refund of court fee though it may not be connected to the substance of the dispute between the parties is certainly an ancillary economic incentive for pushing them towards exploring alternative methods of dispute settlement. As the Karnataka High Court has rightly observed in Kamalamma the parties who have agreed to settle their disputes without requiring judicial intervention Under Section 89 CPC are even more deserving of this benefit. This is because by choosing to resolve their claims themselves they have saved the State of the logistical hassle of arranging for a third party institution to settle the dispute. Though arbitration and mediation are certainly salutary dispute resolution mechanisms we also find that the importance of private amicable negotiation between the parties cannot be understated. In our view there is no justifiable reason why Section 69 A should only incentivise the methods of out of court settlement stated in Section 89 CPC and afford step brotherly treatment to other methods availed of by the 24. Admittedly there may be situations wherein the parties have after the course of a long drawn trial or multiple frivolous CS(COMM.) 535 2021 litigations approached the Court seeking refund of court fees in the guise of having settled their disputes. In such cases the Court may having regard to the previous conduct of the parties and the principles of equity refuse to grant relief under the relevant rules pertaining to court fees. However we do not find the present case as being of such nature. 25. Thus even though a strict construction of the terms of Section 89 CPC and Section 69 A of the 1955 Act may not encompass such private negotiations and settlements between the parties we emphasize that the participants in such settlements will be entitled to the same benefits as those who have been referred to explore alternate dispute settlement methods Under Section 89 CPC. Indeed we find it puzzling that the petitioner should be so vehemently opposed Registry State Government will be losing a one time court fee in the short term they will be saved the expense and opportunity cost of managing an endless cycle of litigation in the long term. It is therefore in their own interest to allow the Respondent No. 1’s claim.” to granting such benefit. Though Consequently the suit is decreed in terms of the settlement noted above. Decree sheet be prepared in terms of the settlement arrived at between the parties. Registry is directed to issue a certificate releasing full court fee to the authorized attorney of the plaintiff. IA No.13961 2021 Application is disposed of as infructuous. Order be uploaded on the website of this Court. JUDGE MARCH 02 2022 MK MUKTA GUPTA) CS(COMM.) 535 2021

Compassionate appointment cannot be offered to minors as per the applicable circulars -Jharkhand high court

Compassionate appointment cannot be offered to minors as per the applicable circulars -Jharkhand high court A petition challenging the decision in Memo No.173 dated 23.05.2011 was rejected by a single judge bench of  HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY in the case of Rabindra Murmu versus. The state of Jharkhand and Ors. (W.P.(S) No. 5363 of 2011) The facts of the case are The father of the petitioner died in harness on 25.07.1995 working and posted as Assistant Teacher, Primary School and it is the case of the petitioner that the petitioner had submitted his application for compassionate appointment as back as on 02.05.2000 which was within 5 years but he was directed by the respondent no.3 to submit the original educational certificate, and the application was not entertained also on the ground that the same was not routed through the proper channel and the application was rejected as time-barred. The learned counsel appearing on behalf of the petitioner submitted that the petitioner has assailed the impugned order of rejection of his application for compassionate appointment on the ground that the same suffers from an apparent error on record because the petitioner had already applied on 02.05.2000. the application on 02.05.2000 was within the prescribed period of 5 years and otherwise, the petitioner was entitled to a compassionate appointment and therefore, the impugned order rejecting the application for compassionate appointment is fit to be set aside. The learned counsel appearing on behalf of the state opposed the prayer and has submitted that the initial application for compassionate appointment dated 02.05.2000 was neither complete nor through proper channel and accordingly, the same was never entertained and accordingly not placed before the appropriate authority for consideration and it should be submitted as per the provision of law. It was also submitted that the date of birth has been indicated as 17.09.1984 and accordingly, the petitioner was 16 years on 02.05.2000 and no minor can be offered a compassionate appointment and he did not become major within 5 years from the date of death of his father i.e., from 25.07.1995 and therefore, otherwise also, the petitioners not entitled for compassionate appointment. the learned counsel relied on the judgment of L.P.A. No.438 of 2018 (The State of Jharkhand and Ors. Vs. Bahabiti Marandi) in which it was decided that no minor can be offered compassionate appointment under the Circulars issued by the State Government and applicable in the State of Jharkhand. After hearing from both sides the court finds out that the original application for compassionate appointment dated 02.05.2000 was not only incomplete on account of want of essential documents, but was also improperly filed as the same was not routed through the District Education Officer, and there is no illegality in rejecting the application and on the date of the initial application, the petitioner was still a minor and therefore, the petitioner was not entitled to compassionate appointment as admittedly, no minor can be offered a compassionate appointment and from the above findings there are no merits in the application and the present writ petition is hereby dismissed.

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 53611 Rabindra Murmu son of late Som Murmu resident of village Kasiadanga P.O. and P.S. Maheshpur District Pakur 1. The State of Jharkhand through the Secretary Human Resources Development Department Government of Jharkhand having office at Project Building P.O. and P.S. Dhurwa Town and District Ranchi … … 2. The Deputy Commissioner cum Chairman District Compassionate Appointment Committee Pakur P.O. P.S. and District Pakur. 3. The District Superintendent of Education Pakur having office at P.O. P.S. and District Pakur … Respondents CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY Mr. Manoj Tandon Advocate Mr. Rohit Advocate For the Petitioner For the Respondents Through Video Conferencing Heard Mr. Manoj Tandon learned counsel appearing on 2. Heard Mr. Rohit learned counsel appearing on behalf of behalf of the petitioner. the respondents State. The present petition has been filed challenging the decision contained in Memo No.173 dated 23.05.2011 so far as it relates to the petitioner whereby the application of compassionate appointment of this petitioner has been rejected as time barred. The foundational facts of the case are not in dispute. The father of the petitioner died in harness on 25.07.1995 working and posted as Assistant Teacher Primary School in the District of Pakur. The genealogical table of the petitioner was prepared on 12.09.1995. It is the case of the petitioner that the petitioner had submitted his application for compassionate appointment as back as on 02.05.2000 which was within the period of 5 years but on 26.07.2010 the petitioner was directed by the respondent no.3 to submit the original educational certificate and the application was not entertained also on the ground that the same was not routed through the proper channel. The petitioner had filed a representation dated 04.10.2010 indicating that he had also moved earlier for compassionate appointment. The educational qualification of the petitioner was submitted on 05.01.2011. On 23.05.2011 the application for compassionate appointment of the petitioner was rejected as time barred by mentioning that the petitioner had filed the application only on 01.10.2010. From perusal of the records of this case it appears from Annexure 8 which is said to be the application form for compassionate appointment filed on 02.05.2000 the date of birth of the petitioner has been declared as 17.09.1984 which is not in dispute. Learned counsel for the petitioner has assailed the impugned order of rejection of his application compassionate appointment on the ground that the same suffers from apparent error on record in view of the fact that the petitioner had already submitted the application on 02.05.2000 which is contained in Annexure 8 of the writ petition. The learned counsel submits that the application on 02.05.2000 was within the prescribed period of 5 years and otherwise the petitioner was entitled for compassionate appointment and therefore the impugned order rejecting the application for compassionate appointment is fit to be set aside. Learned counsel appearing on behalf of the State on the other hand has opposed the prayer and has submitted that the initial application for compassionate appointment dated 02.05.2000 was neither complete nor through proper channel and accordingly the same was never entertained and accordingly not placed before the appropriate authority for consideration and the said improper application cannot be said to be an application for compassionate appointment in the eyes of law. He submits that the application is to be submitted as per the provision of the law. 8. He has further submitted that the application for compassionate appointment was subsequently filed on 01.10.2010 and at that time the case of the petitioner for grant of compassionate appointment had become time barred. Learned counsel has also submitted that though the initial application of the petitioner for compassionate appointment was not entertained but the date of birth has been indicated as 17.09.1984 and accordingly the petitioner was 16 years on 02.05.2000 and no minor can be offered compassionate appointment. He has also submitted that the petitioner did not become major within 5 years from the date of death of his father i.e. from 25.07.1995 and therefore otherwise also the petitioner is not entitled for compassionate appointment. Learned counsel has also referred to a judgement passed by this Court in L.P.A. No.438 of 2018 decided on 16.09.2020 to submit that no minor can be offered compassionate appointment under the Circulars issued by the State Government and applicable in the State of Jharkhand. In response the learned counsel for the petitioner has submitted that the impugned order has not been passed on the ground that the petitioner was not qualified so far as the age is concerned but the application has been rejected only on account of being time barred. However it is not in dispute that if the date of birth of the petitioner is taken as 17.09.1984 as declared by the petitioner himself in Annexure 8 the petitioner was a minor even upon expiry of five years from the date of death of his father. It is further not in dispute that the application for compassionate appointment has to be filed within a period of five years from the date of death. 11. After hearing the learned counsel for the parties this Court finds that the original application for compassionate appointment dated 02.05.2000 was not only incomplete on account of want of essential documents but was also improperly filed as the same was not routed through the District Education Officer Pakur and accordingly communication of the same was given to the petitioner vide letter dated 26.07.2010 as contained in Annexure 3 and the application was not entertained. There is no illegality on the part of the respondents in refusing to entertain the application dated 02.05.2000. Otherwise also on the date of the initial application the petitioner was still a minor and therefore the petitioner was not entitled to compassionate appointment as admittedly no minor can be offered appointment. In the judgment passed by this Court in L.P.A. No.438 of 2018 it has been categorically held by a detailed judgement that no minor can be offered compassionate appointment under the Circulars applicable in the State of Further the petitioner continued to be minor even upon expiry of 5 years from the date of death of his father i.e. 25.07.1995. The petitioner thereafter filed another application on 01.10.2010 and the said application was rightly rejected as time barred. In view of the aforesaid findings there being no merits in the present writ petition which is hereby dismissed. 14. Pending interlocutory application if any stands closed.

Parties cannot challenge order made by arbitrator when final order is still pending: High Court of Calcutta

When an order by the arbitrator under Section 16 of the Act is passed dismissing an application, such an order cannot be challenged by any party in the high court until the final order for that arbitration is not passed. This was decided in the case of. Saraswati Ojha And Ors. -Vs- Sri Birendra Prasad Singh And Ors [AP 61 of 2021] by the Hon’ble  Judge Ravi Krishan Kapur in the High Court of Calcutta. The disputes between the parties arose out of an arbitration clause contained in a partnership deed.  By an order, this Court had appointed a Sole Arbitrator to adjudicate the disputes by and between the parties arising out of the aforesaid partnership deed. Before the Arbitrator, the petitioners herein (being respondent nos. 1 to 4 to the arbitration proceedings), filed an application under Section 16 of the Act contending that the arbitration proceedings were barred by limitation. the Arbitrator rejected the application filed under Section 16, on the ground that the disputes raised by the petitioners did not give rise to a pure question of law but involved a mixed question of law and fact. The Arbitrator has further held that, it was necessary for issues to be framed and evidence to be taken in order to ascertain whether the partnership business has been actually dissolved or not or whether it had been reconstituted The counsel for the petitioner contended that the issue of limitation raised by the petitioners did not involve determination of any fact or framing of issues or adducing of any evidence. On the other hand, the claimant’s contention was that the application under Section 34 was misconceived and not maintainable. In view of the express language contained in Section 16 (6) of the Act, there was no provision for the petitioner to file this application. They asserted that on the ground of maintainability alone the application was liable to be dismissed. The court referred to the case of Deep Industries Ltd. vs. Oil And Natural Gas Corporation Ltd. & Ors. [2019(17) SCALE 85] where it was mentioned that, “The drill of Section 16 of the Act is that where a Section 16 application is dismissed, no appeal is provided and the challenge to the Section 16 application being dismissed must await the passing of a final award at which stage it may be raised under Section 34.” It further noted that the court was of the view that from the scheme of the Act, it is apparent that at this stage, a challenge under section 34 of the Act is not maintainable against an order dismissing an application under Section 16 of the Act. Also, it categorically stated that the legislature does not provide for recourse by way of a challenge under Section 34 against an order under Section 16(5) where the Arbitral Tribunal takes a decision rejecting the plea that the Arbitral Tribunal has no jurisdiction.

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

An Institution that is not registered under the Reserve Bank of India Act cannot be regulated through provisions of SEBI Act, 1992: Jharkhand High Court

As the institution is not registered under the provision of the Reserve Bank of India Act 1934, there cannot be any meaning of regulating by S.E.B.I. Act, 1992. The explanation for this is that if the company’s constitution opposes the law, there is no way to regulate it under the S.E.B.I. Act of 1992. The judgement was passed by the High Court of Jharkhand in the case of Green Ray International Limited vs The State of Jharkhand [W.P.(C) No. 1211 of 2013] by Single Bench consisting of Hon’ble Justice Sujit Narayan Prasad. The facts of the case are The petitioner company is a registered company under the Companies Act as a Public Company Limited by shares, carrying out the business in pursuance to the MAAs have started the business but without any complaint whatsoever and without providing an opportunity of hearing to the petitioners, the authorities have taken restrainment measures by sealing the office and restraining the petitioner’s units in carrying out their business and therefore, the writ petition has been filed. Learned counsel for the petitioners contended that in absence of any complaint from any quarter, the action which has been taken by sealing the office, is not proper and such decision has been taken without providing any opportunity of hearing to the petitioners, hence, the action of the respondents being arbitrary, therefore, a direction may be passed for allowing the writ petitioners to carry out their business. Learned counsel for the respondent has submitted that since the petitioner company is not running in pursuance to the provision of Reserve Bank of India Act, 1934, therefore, keeping the objects and intents of the Securities and Exchange Board of India Act, 1992, even if any inquiry would be conducted the factual scenario of non-registration under the Reserve Bank of India Act, 1934, will not be changed. The Learned Court observed that “though the petitioners’ are claiming that they are doing the business of gold and silver coins from the counter-affidavits filed by the respondents it appears that they are also involved in non-banking activities like collecting money from the customers without NBFC of Reserve Bank of India.”

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 12113 1. Green Ray International Limited a Public Limited Company having its Registered Office at Green Ray Multiplex Deuli Panchghanta Jaleshwar Balasore State Orissa Represented by its General Manager Sk. Nurul Hossain S o Sk Abdul Gani Resident of Village Takatpur P.S. Baripada Distt Mayurbhanj State Orissa. 2. Sk. Nurul Hossain S o Sk Abdul Gani presently being the General manager of Green Ray International Limited having his Residence at Resident of Village Takatpur P.S. Baripada Distt Mayurbhanj State Orissa. … … Petitioners 1. The State of Jharkhand 2. The Deputy Commissioner Sahibganj P.O. + P.S. & District 3. The Sub Divisional Officer Sahibganj P.O. + P.S. & District 4. Union of India through Secretary Ministry of corporate Affairs New Delhi P.O. + P.S. New Delhi. 5. Registrar of Company Affairs cum Official Liquidator Bihar & Jharkhand Ranchi. 6. Reserve Bank of India Zonal Office Patna 5th Floor Bank of Baroda Building 16 Samsad Marg New Delhi 110001. CORAM : HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD … … Respondents Mr. Mahesh Tewari Advocate For the Petitioners For the Respondent No.6 : Mr. Pandey Neeraj Rai Advocate For the Respondent No.7 : Mr. Anil Kumar Sinha Sr. Advocate Mr. Rohit Ranjan Sinha Advocate Order No. 11 : Dated 16th March 2021 The matter has been heard through video conferencing with the consent of the learned counsel for the parties. They have no complaint about any audio and visual connectivity. 2. Heard learned counsel for the parties. 3. The prayers made in this writ petition are for direction in the nature of writ of mandamus to allow the petitioners to continue its lawful business from the concerned office and not to interfere with in any manner in continuing the lawful business from the office of the petitioners which had been sealed by the concerned authority without serving any proper notice and without giving any opportunity to the representative of the petitioners to place their defence. 4. The brief facts of the case as per the pleading made in the writ petitions are required to be enumerated herein which reads hereunder as: The petitioner company herein namely Green Ray International Limited is a registered company under the Companies Act as a Public Company Limited by shares. The petitioner company deals in gold and silver coins and having its many offices throughout the country and particularly having its offices and works in the State of Jharkhand. The petitioners after getting necessary permissions from the competent authorities for carrying out the business in pursuance to the Memorandum and Articles of Associations have started the business but without any complaint whatsoever and without providing opportunity of hearing to the petitioners the authorities have taken restrainment measures by sealing the office and restraining the petitioners’ units in carrying out their business and therefore the writ petition has been filed. It has been contended by the learned counsel appearing for the petitioners that in absence of any complaint from any quarter the action which has been taken by sealing the office is not proper and such decision has been taken without providing any opportunity of hearing to the petitioners hence the action of the respondents being arbitrary therefore direction may be passed for allowing the writ petitioners to carry out their 6. The State of Jharkhand has filed affidavit wherein inter alia stand has been taken by making reference about the letter of Reserve Bank of India dated 30.03.2012 addressed to the Joint Secretary Finance Department Jharkhand whereby and whereunder request has been made to take steps upon multi level marketing scheme works and that the State Government has jurisdiction to take action against multi level marketing scheme company firm within their State as per Prize Chits and Money Circular Scheme Act 1978. It was also requested vide aforesaid letter to furnish the list of such type of company firm which are functional in the State of Jharkhand. It has further been stated that the Superintendent of Police Sahibganj has written a letter dated 03.02.2013 to Deputy Commissioner Sahibganj for deputation of Magistrate for enquiry raid upon the non banking activities which are being conducted violating the guidelines of the Reserve Bank of India and in this connection Deputy Commissioner Sahibganj vide order dated 07.02.2013 constituted a team for Sahibganj and Rajmahal Sub Division under Sub Divisional Officer Sahibganj and Sub Divisional Officer Rajmahal for enquiry and raid upon non banking activities with Deputy Superintendent of Police Sub Divisional Police Officers and Forces. The aforesaid team has initiated an inquiry and asked the petitioner company to produce the documents relating to money transaction but no such documents have been provided and even the trade licence was not produced by the company. Further stand has been taken that the petitioner company is illegally doing its business without NBFC of Reserve Bank of India so the offices were sealed and thereafter FIR was lodged against the company. The respondent Securities and Exchange Board of India S.E.B.I) has filed affidavit in pursuance to the direction of this Court passed in I.A. No.67713 whereby and whereunder it has been stated that SEBI has passed an order on 03.02.2014 under Section 11 and 11B of the SEBI Act 1992 directing the petitioner company not to collect any money from investors or launch or carry out any scheme which has been identified as a collective investment scheme in the order. It has further been Directors Promoters shall wind up the existing collective investment scheme and refund the money collected by the said company under the schemes with returns which are due to its investors within a period of three months and submit a winding up and repayment report to SEBI failing which SEBI would initiate prosecution proceedings under the SEBI Act. The respondent Reserve Bank of India has filed affidavit stating inter alia therein that the exact nature of business of the petitioner company is not clear and the operations of the company need to be verified. It has further been stated that since the petitioner company is not registered with Reserve Bank of India the RBI could not conduct scrutiny of the books of accounts of the company under Section 45N of the RBI Act 1934. Further the petitioner company is not registered with Reserve Bank of India as NBFC. 7. This Court has heard the learned counsel for the parties at length and after appreciating their arguments found the fact which is admitted to the extent that though the petitioners’ are claiming that they are doing the business of gold and silver coins but from the counter affidavits filed by the respondents it appears that they are also involved in non banking activities like collecting money from the customers without NBFC of Reserve Bank of India. It requires to refer herein the objects and intents of the Reserve Bank of India Act 1934 which is an Act to constitute a Reserve Bank of India to regulate the issue of Bank notes and the keeping of reserves with a view to securing monetary stability in and generally to operate the currency and credit system of the country to its advantage. The amendment Act has come in the year 1997 being Amendment Act 297 keeping the objects and reasons to regulate the activities of the non banking institutions and unincorporated bodies receiving deposits are regulated in terms of the provisions of Chapters III B and III C of the Reserve Bank of India Act 1934 respectively. 9. The reference of the Securities and Exchange Board of India Act 1992 is also required to be made herein which has been enacted in order to provide for the establishment of a Board to protect the interests of investors in securities and to promote the development of and to regulate the securities market and for matters connected therewith or incidental The legislation has been made by way of amendment being Amendment Act 59 of 2002 with the objects and reasons for establishment of a Board to protect the interests of investors in securities and to promote the development of and to regulate the securities market and for matters connected therewith or incidental thereto. 10. This Court therefore is of the view after going through the objects and intents of the Reserve Bank of India Act 1934 which stipulates about the operation of the non banking institutions and unincorporated bodies receiving deposits are regulated in terms of the provisions of Chapters III B and III C while on the other hand the objects and intents of the Securities and Exchange Board of India Act 1992 is to protect the interests of investors in securities and to promote the development of and to regulate the securities market and for matters connected therewith or incidental thereto meaning thereby if any non banking financial companies has been created that must be within the scope of the Reserve Bank of India Act 1934 and only after its creation in terms of the provision of Reserve Bank of India Act 1934 the question of protecting the interests of the investors in securities and to promote the development will come into play. 11. This Court on the basis of the aforesaid legal position has proceeded to examine the factual aspects in order to come to the conclusion about the legality and propriety of the impugned decision of the authorities therefore this Court is of the opinion to first look into the creation of the petitioner company as to whether the same have been created in pursuance to the provision of Reserve Bank of India Act 1934 or not 12. It would be evident from the counter affidavit filed on behalf of the respondent Reserve Bank of India that the certificate of registration has not been obtained under the provision as contained under Section 45 IA of the Reserve Bank of India Act 1934 rather the company has been registered under the Society Registration Act and therefore this Court is of the considered view that in absence of any certificate of registration(CoR) under the Reserve Bank of India Act 1934 the institution cannot be allowed to run the activities by accepting the deposits etc. 13. Mr. Anil Kumar Sinha learned senior counsel appearing for the respondent S.E.B.I. has submitted that since the petitioner company is not running in pursuance to the provision of Reserve Bank of India Act 1934 therefore keeping the objects and intents of the Securities and Exchange Board of India Act 1992 even if any inquiry would be conducted the factual scenario pertaining to non registration under the Reserve Bank of India Act 1934 will not be changed. 14. This Court after considering the aforesaid submission is in agreement thereto as because so long as the institution is not registered under the provision of Reserve Bank of India Act 1934 there cannot be any meaning of regulating by virtue of S.E.B.I. Act 1992. The reason being that when the constitution of the company itself dehors the rule there is no question of regulating it under the S.E.B.I. Act 1992. It has also been informed that with respect to the affairs of this company FIR has been instituted and now the matter is being looked into by the Central Bureau of Investigation. 15. This court in view of the entirety of the facts and circumstances and as per the discussion made hereinabove is of the considered view that the prohibitory order passed by the authority in pursuance to the raid enquiry conducted by the concerned authority and if such decision has been taken the 16. In view of such finding this Court is not inclined to pass same cannot be faulted with. any positive direction. 17. Accordingly the instant writ petition fails and is dismissed. 18. Consequently I.A. No. 5458 of 2017 also stands disposed of. Birendra

Minor’s marriage considered valid if not declared void till the age of 18: High Court of Punjab and Haryana

According to Section 13-B of the Hindu Marriage Act, 1955, “Divorce by mutual consent”. An order was passed by the family court dismissing a petition for divorce by mutual consent on the 22nd of July 2020 stating that it was not a valid marriage in the first place. As the girl had not completed 18 years with regard to the mandate under Section 5(iii) of the Hindu Marriage Act, 1955, “Conditions for a Hindu marriage the bridegroom has completed the age of 21 years and the bride, the age of 18 years at the time of the marriage”. Therefore, this petition has been filed. In the High Court of Punjab and Haryana at Chandigarh, this judgement was given by Honorable Mr Justice Ritu Bahri and Honorable Mr Justice Arun Monga on the 26th of August 2021 in the case of Yogesh Kumar Versus Priya [FAO-855-2021] Ms Gitanjali Chhabra represented as the advocate for the petitioner, and Mr Raman B. Garg represented as the advocate for the respondent, the proceedings of the court were held via video conference. The brief facts of the case are that there was a marriage between the two parties on the 27th of February 2009 was conducted as per Hindu rituals and rites at the time of marriage the husband was 23 years old and the wife was 17years old according to their date of birth presented in the Aadhar card. After marriage, the parties resided together till the 31st of August 2017 and they also had a son out of wedlock. The counsel for both the parties held that the Family court who dismissed the petition relied upon the judgment, passed by the Madras High Court in Prema Kumari Vs. M. Palani, [2013 (6) RCR (Civil) 2953]. The counsel held that this judgment cannot be applicable as the age of the girl was only 15 years and could not invoke the provisions of Section 13(2)(iv) of the Hindu Marriage Act but she could nullify the marriage as a void before attaining 18 years of age. whereas the age of the petitioner in the present case was 17 years and lived together with her major husband when she attained 18 years back in 2010 therefore the family Court relied upon a wrong judgment. The counsel relies upon the case Lajja Devi Vs. State, [2012 (4) R.C.R. (Civil) 821] where a girl eloped with the boy and married him and the boy was accused under section 363 and 376 IPC. However, the statement of the minor stated that she contracted the marriage on her own. With reference to Sections 5(iii), 11 and 12 of Hindu Marriage Act, 1955 and Sections 2 and 3 of the Prohibition of Child Marriage Act, 2006. The Delhi High court held that “when a marriage is contracted with a female under 18 years would not be a void marriage but a voidable one”. With respect to this present case, the appellant could file for a petition declaring the marriage as void before she turns 18 as per Section 11 of the Hindu Marriage Act, 1955. The counsel further held that the parties resided together since 2009 and never once the appellant filed for any petition regarding declaring her marriage as void. Therefore, since she attained the age of 18 while living with her husband under Section 13-B of the Hindu Marriage Act, 1955, the appellant was a major and the marriage was valid. The counsel relies upon a Delhi High Court case in Jitender Kumar Sharma Vs. State and another, [2010(4) R.C.R. (Criminal)] where a boy 18 years and girl 16 years eloped from home the bench examined provisions of Guardians and Wards Act, 1890 and stated that “the minor was competent to act as guardian of his wife as the sole consideration is the welfare of the minor”. Another case relied upon is a full bench of Madras High Court in T.Sivakumar Vs. The Inspector of Police, Thiruvallur, [2012 AIR (Madras) 62] with regard to the provisions of section 5 of Hindu Marriage Act, 1955 and Section 3(3) of Prohibition of Child Marriage Act, 2006 stating that “if no petition is filed for an annulment of the marriage, it will become a full-fledged valid marriage”. The Honourable Court held that in the present scenario the marriage was held in 2009 and the parties separated in 2017, the parties decided to dissolve the marriage by mutual consent and there was also a child born out of the wedlock and according to the settlement the child will be in the custody of the husband who will bear all expenses for the upbringing of the child and not money will be claimed from the appellant.   The Honourable Court concluded that “The Family Court has wrongly dismissed the petition filed under Section 13-B of Hindu Marriage Act, 1955 as per Section 13(2)(iv) of the Hindu Marriage Act, 1955, referring to the wrong judgement. Therefore, by referring to the Madras High Court and Delhi High Court, if there is no petition filed for an annulment of the marriage, it will become a valid marriage. Therefore, this appeal is allowed and order dated 12.01.2021 is set aside and the decree of divorce under Section 13-B of the Hindu Marriage Act, 1955 is granted to the parties.” Click here to read the judgment Judgment reviewed by – A. Beryl Sugirtham   

on 09 09 FAO 855 2021 1 HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARHFAO 855 2021Date of decision:26.08.2021Yogesh Kumar....AppellantV s.Priya.....RespondentCORAM: HON BLE MS. JUSTICE RITU BAHRIHON BLE MR. JUSTICE ARUN MONGAPresent:Ms. Gitanjali Chhabra Advocate for the appellant.Mr. Raman B.Garg Advocate for the respondent. Ritu Bahri J.was major being of the age of 23 years 5 months and 10 daysbecause his date of birth was 17.09.1985 as per Aadhar Cardwas of the age of 17 years 6 months and 8days on the date of marriage i.e. on 27.02.2009 because her date of birthwas 19.08.1991 as per Aadhar Cardsince 31.08.2017. WWW.LIVELAW.IN on 09 09 FAO 855 2021 2 The grievance of the parties is that they had filed a jointpetition under Section 13 B of the Hindu Marriage Act 1955 for dissolutionof marriage by way of decree of divorce by mutual consent before thelearned Family Court on 22.06.2020. However the learned Family Courtdismissed their joint petition vide judgment and decree dated 12.01.2021 byobserving that the marriage of the parties was not a valid marriage as therespondenthad not completed the age of 18 years as per the mandateof Section 5(iii) of the Hindu Marriage Act 1955 vide which the partieswere required to fulfill the basic condition of the said Section. The Family Court had referred to a judgment passed by theMadras High Court in Prema Kumari Vs. M. Palani 2013RCRof the Hindu Marriage Act. Heard learned counsel for the parties and perused the case file.The above said judgment is not applicable to the facts of thepresent case. Section 13(2)(iv) is reproduced as under: 13A wife may also present a petition for the dissolution ofher marriage by a decree of divorce on the groundthat her marriagewassolemnised before she attained the age of fifteen years and shehas repudiated the marriage after attaining that age but beforeattaining the age of eighteen years.The girl who has attained 15 years of age and has got marriedcan seek dissolution of marriage before she attains the age of 18 years byfiling a petition under Section 13(2)(iv) of the Hindu Marriage Act.In the facts of the present case the marriage of Yogesh Kumarwas solemnized on 27.02.2009 and the appellantwas major beingthe age of 23 years 5 months and 10 days being his date of birth as WWW.LIVELAW.IN on 09 09 FAO 855 2021 3 17.09.1985 as per Aadhar Cardand the respondentwas ofthe age of 17 years 6 months and 8 days being her date of birth as19.08.1991 as per Aadhar Cardof the HinduMarriage Act. Had she been 15 years of age she could have invoked theprovisions only before she attains the age of 18. In the present case aftermarriage both the parties continued to live together till 31.08.2017. Therespondenthad crossed the age of 18 years in the year 2010 itself.Hence the Family Court has wrongly dismissed the petition by relying onPrema Kumari s caseVs. State 2012R.C.R.821 where the girl eloped with the boy and marriedhim. A case under Sections 363 and 376 IPC was registered against theaccused husband and the issue was whether FIR can be quashed on the basisof the statement of such a minor that she had contracted the marriage on herown. While referring to Sections 5(iii) 11 and 12 of Hindu Marriage Act 1955 and Sections 2 and 3 of the Prohibition of Child Marriage Act 2006 the Delhi High Court observed that if a marriage contracted with a female ofless than 18 years or a male of less than 21 years would not be a voidmarriage but voidable one which would become valid if no steps are takenby such “child” within the meaning of Section 2(a) of the Prohibition ofChild Marriage Act 2006 seeking declaration of this marriage as void.Section 5of the Hindu Marriage Act 1955 is reproduced as under: 5. Conditions for a Hindu marriage. A marriage may besolemnized between any two Hindus if the following conditions are fulfilled namely: WWW.LIVELAW.IN on 09 09 FAO 855 2021 4and the bride the age of 18at the timeof the marriage The Full Bench of Delhi High Court had examined a case of aminor girl who ran away with a boy and as per the Prohibition of ChildMarriage Act 2006 she could seek declaration of the marriage as voidunder Sections 2 and 3 of the said Act and Section 13(2)(iv) of the HinduMarriage Act 1955. In the facts of the present case the respondent wife was of theage of 17 years 6 months and 8 days at the time of marriage and she couldfile a petition for declaration of this marriage as void before she attains theage of 18 as per Section 11 of Hindu Marriage Act 1955 which reads asunder: 11. Void marriages . Any marriage solemnised after thecommencement of this Act shall be null and void and may on apetition presented by either party thereto 1be so declared by a decree of nullity if it contravenesany one of the conditions specified in clauses(iv) andofsection 5. Both the parties continued to live together and cohabited ashusband and wife since 2009 till 2017 and the respondent wife had notchosen to file a petition for getting her marriage void. Hence for all intentsand purposes when they made a petition under Section 13 B of HinduMarriage Act 1955 the respondent wife was major and the marriage wasvalid as per the observation made by the Delhi High Court Full Bench inpara 40 which is reproduced as under: 40. Be as it may having regard to the legal statutory positionthat stands as of now leaves us to answer first part of questionNo.1 by concluding that the marriage contracted with a female WWW.LIVELAW.IN on 09 09 FAO 855 2021 5 of less than 18 years or a male of less than 21 years would notbe a void marriage but voidable one which would becomevalid if no steps are taken by such “child” within the meaningof Section 2(a) of the PCM Act 2002 under Section 3 of thesaid Act seeking declaration of this marriage as void.The Division Bench of Delhi High Court in Jitender KumarSharma Vs. State and another 2010(4) R.C.R.20 wasconsidering a case where a boy aged 18 years and a girl aged 16 years fledaway from their homes and married as per Hindu Rites. The DivisionBench was examining the provisions of Guardians and Wards Act 1890 andheld that minor was competent to act as guardian of his wife as the soleconsideration is the welfare of the minor. In para nos. 22 and 23 theDivision Bench observed as under: 22. A reading of the 1890 Act and the 1956 Act together reveals the guiding principles which ought to be kept in mindwhen considering the question of custody of a minor hindu. Wehave seen that the natural guardian of a minor hindu girl whoseis married is her husband. We have also seen that no minor canbe the guardian of the person of another minor except his ownwife or child. Furthermore that no guardian of the person of aminor married female can be appointed where her husband isnot in the opinion of the court unfit to be the guardian of herperson. The preferences of a minor who is old enough to makean intelligent preference ought to be considered by the court.Most importantly the welfare of the minor is to be theparamount consideration. In fact insofar as the custody of aminor is concerned the courts have consistently emphasizedthat the prime and often the sole consideration or guidingprinciple is the welfare of the minor7 SCC 322 at 326]. 23. In the present case Poonam is a minor Hindu girl who ismarried. Her natural guardian is no longer her father but her WWW.LIVELAW.IN on 09 09 FAO 855 2021 6 husband. A husband who is a minor can be the guardian of hisminor wife. No other person can be appointed as the guardianof Poonam unless we find that Jitender is unfit to act as herguardian for reasons other than his minority. We also have togive due weight and consideration to the preference indicatedby Poonam. She has refused to live with her parents and hascategorically expressed her desire and wish to live with herhusband Jitender. Coming to Poonam‘s welfare which is ofparamount importance we are of the view that her welfarewould be best served if she were to live with her husband. Shewould get the love and affection of her husband. She wouldhave the support of her in laws who as we have mentionedearlier welcomed her. She cannot be forced or compelled tocontinue to reside at Nirmal Chhaya or some other suchinstitution as that would amount to her detention against herwill and would be violative of her rights guaranteed underarticle 21 of the Constitution. Neetu Singh’s caseis aprecedent for this. Sending her to live with her parents is not anoption as she fears for her life and liberty.The Full Bench of Madras High Court in T.Sivakumar Vs. TheInspector of Police Thiruvallur Town Police Station Thiruvallur Districtand others 2012 AIR62 was examining provisions of Section 5of Hindu Marriage Act 1955 and Section 3(3) of Prohibition of ChildMarriage Act 2006 and held that if no petition is filed for annulment of themarriage it will become a full fledged valid marriage. The relevant portionof this judgment is reproduced as under: 21. From a reading of the above we infer that probably theDivision Bench was of the view that if only a petition is filedunder Section 3 of the Prohibition of Child Marriage Act thesaid marriage will be voidable. We are unable to agree with thesaid conclusion arrived at by the Division Bench. In ourconsidered opinion the marriage shall remain voidableand the said marriage shall be subsisting until it is WWW.LIVELAW.IN on 09 09 FAO 855 2021 7 avoided by filing a petition for a decree of nullity by the childwithin the time prescribed in Section 3of the Prohibition ofChild Marriage Act. If within two years from the date ofattaining eighteen years in the case of a female and twenty oneyears in the case of a male a petition is not filed before theDistrict Court under Section 3of the Prohibition of ChildMarriage Act for annulling the marriage the marriage shallbecome a full fledged valid marriage. Similarly after attainingeighteen years of age in the case of female or twenty one yearsof age in the case of a male if she or he elects to accept themarriage the marriage shall become a full fledged validmarriage. Until such an event of acceptance of the marriage orlapse of limitation period as provided in Section 12occurs the marriage shall continue to remain as a voidable marriage. Ifthe marriage is annulled as per Section 3of the Prohibitionof Child Marriage Act the same shall take effect from the dateof marriage and in such an event in the eye of law there shallbe no marriage at all between the parties at any point of time. 22. As per Section 11 of the Hindu Marriage Act any marriagesolemnized in violation of Clause(iv) andof section 5 ofthe Hindu Marriage Act is void and the same may be declaredby a decree of nullity whereas under Section 12 of the HinduMarriage Act a voidable marriage may be annulled by a decreeof nullity. The different expressions used in these twoprovisions cannot go unnoticed. So far as Section 11 of theHindu Marriage Act is concerned the marriage is not annulledand is only declared as void by a decree of nullity. Thus whatis done by the court is only a declaration and not annulment ofmarriage. But under Section 12 of the Hindu Marriage Act since the marriage is not void ab initio the same requires to beannulled by a decree of nullity. Here it is not declaration but apositive act of annulment of the marriage by a decree of nullity.Similarly under Section 3 of the Prohibition of Child MarriageAct also the court annuls the marriage by a decree of nullity.Thus Section 12of the Hindu Marriage Act and Section WWW.LIVELAW.IN on 09 09 FAO 855 2021 8 3(1) of the Prohibition of Child Marriage Act are in parimateria. Therefore unless there is a positive decree passed bythe competent court annulling the child marriage the marriageshall be subsisting. In the present case the marriage between the parties wassolemnized on 27.02.2009 and they got separated on 31.08.2017. Everypossible effort made by the parties and friends for reconciliation was failedand the parties decided to dissolve their marriage by way of mutual consent.There was a minor child from this marriage namely Manas and as per thesettlement the custody of the son was given to the husband and heundertook to bear all the expenses for the upbringing of the child and willnot claim any kind of expenses from the respondent wife. The parties agreethat they will withdraw all the cases police complaint filed against eachother. A joint petition under Section 13 B of the Hindu Marriage Act 1955(Annexure A 1) for dissolution of marriage by mutual consent was filedbefore the Family Court alongwith the affidavits Ex.PW1 A and Ex.PW2 A which are also appended herewith as Annexures A 4 and A 5 respectively.Aadhar card of petitioner No.1 wife was annexed as Mark A and Aadharcard of petitioner No. 2 husband was annexed as Mark B. The statementsof both the parties were recorded on 23.06.2020. The Family Court haswrongly dismissed the petition filed under Section 13 B of Hindu MarriageAct 1955 by referring to the Madras High Court judgment that the partieswere required to get their marriage nullified as per Section 13(2)(iv) of theHindu Marriage Act 1955. A petition for nullity under Section 13(2)(iv) could be filed ifshe wife had got married at the age of 15 and she could file petition fordissolution of marriage before she attains the age of 18 as per the WWW.LIVELAW.IN on 09 09 FAO 855 2021 9 judgments of Madras High Court and Delhi High Court. Since therespondent wife was 17 years 6 months and 8 days at the time of marriage hence for all intents and purposes no petition was filed for declaration ofher marriage as void by the wife and the petition under Section 13 B of theHindu Marriage Act 1955 should have been allowed. The appellant husband has placed on record petition under Section 13 B of the HinduMarriage Act 1955 as Annexure A 1 alongwith affidavit of the respondent wife as Annexure A 2 and his affidavit as Annexure A 3 and theirstatements and affidavits as Annexures A 4 to A 7 placed before the FamilyCourt. The Family Court had recorded the statements of the parties and hadtaken on record their affidavits alongwith their Aadhar Cardsand copy of birth certificate of the minor sonthis appeal is allowed and order dated 12.01.2021 is set asideand the decree of divorce under Section 13 B of the Hindu Marriage Act 1955 is granted to the parties. Decree sheet be drawn accordingly. JUDGE26.08.2021(ARUNG MONGA)Divyanshi JUDGEWhether speaking reasoned:Yes NoWhether reportable:Yes No

No person accused of an offence punishable under Sikkim Anti Drugs Act, 2006 shall be released on bail: High Court of Sikkim

The limitations on granting of bail specified in clause (b) of sub-section (1) were in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail. Such was held by The Hon’ble High Court of Sikkim before The Hon’ble Mr. Justice Bhaskar Raj Pradhan in the matter of Pratik Biswakarma Vs. State of Sikkim [BA No. 12 of 2021].  The facts of the case were associated with an application filed under Section 439 of the Code of Criminal Procedure, 1973. It was reported that the applicant Pratik Biswakarma was arrested because of an FIR, as controllable substances were found in the vehicle where he and five others travelled. It was stated by the applicant that five bail appeals were rejected by the Special Judge on various grounds. The Counsel representing the applicant stated that the applicant was a young man of 23 years and thereby should be granted bail. The Public Prosecutor stated that no materials were found that would prove his innocence. The prosecution against the applicant was under section 9(1) (c) and 9(4) of Sikkim Anti Drugs Act, 2006 and section 34 of the Indian Penal Code, 1860. The Prosecutor was against the bail and filed a reply for the same. The PP stated that the applicant cannot be granted any bail unless there were reasonable grounds for believing that he was not guilty of such an offence and that the Court was satisfied with the same.  After considering all the submissions, The Hon’ble Court stated that “This court has examined the records of the case and it is of the firm view that there are no reasonable grounds for believing that the applicant is not guilty of such offence and that he is not likely to commit any offence while on bail. The application for bail is accordingly rejected.”

THE HIGH COURT OF SIKKIM: GANGTOK Criminal Jurisdiction) SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE Bail Application No. 121 Pratik Biswakarma S o Nar Bahadur Biswakarma R o Zoom Daragoan West Sikkim Presently at judicial custody in Boomtar Jail. Namchi South Sikkim. ….. Applicant State of Sikkim ….. Respondent Application under Section 439 of the Code of Criminal Procedure 1973. Ms. Tashi Doma Bhutia Advocate for the Applicant. Mr. Sudesh Joshi Public Prosecutor with Mr. Sujan the State Sunwar Assistant Public Prosecutor Date of hearing : 23.10.2021. ORDERBhaskar Raj Pradhan J. Pratik Biswakarma has moved this application for bail under Section 439 of the Code of Criminal Procedure 1973. He was arrested on 18.02.2021 in connection with the First Information Report lodged on 18.02.2021 after the seizure Bail Application No. 121 Pratik Biswakarma vs. State of Sikkim of controlled substances from the vehicle in which he and five others were travelling. According to the applicant he had applied for bail before the learned Special Judge on five occasions which have all been rejected on various grounds. 2. Ms. Tashi Doma Bhutia learned counsel for the applicant submits that besides the FIR he has not been implicated by any of the materials or statements filed along with the charge sheet. It is submitted that he has no past criminal record he is a young man of 23 years and therefore he should be granted bail. The learned Public Prosecutor however opposes the grant of bail on the ground that there is no material to reflect that he is not guilty of the offence. The prosecution against the applicant is under section 9(1) c) and 9(4) of Sikkim Anti Drugs Act 2006 read with section 34 of the Indian Penal Code 1860Notwithstanding anything contained in the Code of Criminal Procedure 1973 a) every offence punishable under this Act shall be cognizable b) no person accused of an offence punishable under this Act shall be released on bail or on his own bond unless i) the Public Prosecutor has been heard and also given an opportunity to oppose the application for such release and ii) where the Public Prosecutor opposes the application the court is satisfied that there are reasonable grounds for believing that he is not Bail Application No. 121 Pratik Biswakarma vs. State of Sikkim guilty of such offence and that he is not likely to commit any offence while on bail. 2) The limitations on granting of bail specified in clause of sub section are in addition to the limitations under the Code of Criminal Procedure 1973 or any other law for the time being in force on granting of bail.” The learned Public Prosecutor opposes the bail application and has also filed a reply in opposition dated 08.10.2021. Under section 18(1) of the SADA where the learned Public Prosecutor opposes the application for bail the person accused of an offence punishable under the act cannot be released on bail until the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. This court has examined the records of the case and it is of the firm view that there are no reasonable grounds for believing that the applicant is not guilty of such offence and that he is not likely to commit any offence while on bail. The application for bail is accordingly rejected. Bhaskar Raj Pradhan ) Judge Approved for reporting: Yes No :Yes No Internet

No Inflexible guidelines or straitjacket formula can be provided for grant or refusal anticipatory bail: Manipur High Court

Frivolity in prosecution should still be considered, and if there is any uncertainty as to the genuineness of the prosecution, the victim is entitled to an application of anticipatory bail in the usual course of events. There should be no rigid rules or formulas for granting or refusing anticipatory bail. The judgment was passed by The High Court of Manipur in the matter of Ningthoujam Dijen Singh v. State of Manipur and Ors. [AB No.43 of 2020] by Division Bench consisting of Hon’ble Justice Mr M.V. Muralidaran. According to the facts of the case, the plaintiff filed a written complaint with the women’s police station, claiming that she was abducted by the petitioner Ningthoujam Dijen Singh and his friends numbered 7/8 from the backward way of Waikhom Mani Girl’s College in Thoubal. Following that, the petitioner threatened to kill her if she told her parents about the incident, and he raped her without her consent under the guise of marrying her. The learned counsel for the petitioner said that the plaintiff and the appellant were in love and that the complaint was filed as a result of a dispute between the two families. He argued that both the petitioner and the complainant eloped to marry and that the petitioner never abducted the complainant. In reality, the petitioner and complainant’s elopement was well known to the complainant’s parents, who had agreed to their marriage. However, owing to a misunderstanding, the union was not completed, and the suit was filed 11 months after the elopement with false charges. The learned counsel for the respondent contended that the petitioner kidnapped the complainant and threatened the complainant to be killed if she disclosed to her parents and raped the complainant without her consent and against her will. Hence, he strongly opposes the grant of anticipatory bail. Relying on the supreme court judgment in the case of Bhadresh Bipinbhai Sheth V. State of Gujarat and anr. it was held that “frivolity in prosecution should always be considered and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of anticipatory bail. No Inflexible guidelines or straitjacket formula can be provided for grant or refusal anticipatory bail. It should necessarily depend on the facts and circumstances of each in consonance with the legislative intention.”

IN THE HIGH COURT OF MANIPUR: AT IMPHAL P a g e | 1 W.P.(C) No. 2719 Akoijam Chingkheinganbi Devi aged about 23 years D o Late) Y. Promila Devi of Singjamei Oinam Thingel P.O. & P.S. Singjamei District: Imphal West Manipur. ... Petitioner Versus 1. The State of Manipur represented by the Principal Secretary Health & FW) Government of Manipur Secretariat Office P.O. & P.S. Imphal District Imphal West Manpur 795001. 2. The Commissioner Department of Personnel & Pension Cell) Government of Administrative Reforms Manipur Secretariat Office P.O. & P.S. Imphal District Imphal West Manipur 795001. 3. The Finance) Government of Manipur Secretariat Office P.O. & P.S. Imphal District Imphal West Manipur 795001. 4. Accountant General Manipur P.O. & P.S. Imphal District Imphal West Manipur 795001. 5. Secretary Government of Manipur Secretariat Office P.O. & P.S. Imphal District Imphal West Manipur 795001. B E F O R E HON’BLE MR. JUSTICE KH. NOBIN SINGH For the petitioner For the respondents ∷ Shri L. Anand Advocate ∷ Shri S. Rupachandra Addl. A.G. & Shri Moses Pao Advocate Date of hearing Date of Judgment & Order ∷ 21 04 2021 27 04 2021 JUDGMENT & ORDER Heard Mr. L. Anand learned Advocate appearing for the petitioner Mr. S. Rupachandra learned Addl. AG for the State W.P.(C) No. 2719 respondents and Mr. Moses Pao learned Advocate appearing on behalf of Mr. S.Suresh learned ASG for the Accountant General. P a g e | 2 The only prayer made in this writ petition is to direct the respondents to prepare the pension papers and to release the entitled amount of Rs.6 35 113 only now lying in the Department of the Directorate of Health Services Government of Manipur as family pension arrears in the name of Y. Promila Devi Ex Ward Attendant who is the adoptive mother of the petitioner and future entitled amount of family pension to the petitioner till she attains the age of 25 years or till her marriage whichever is earlier. According to the petitioner her adoptive mother Y. Promila Devi was appointed on regular basis as the Ward Attendant under the Directorate of Health Services Manipur. After having served for more than 22 years she expired while in service on 11 04 2004 because of which the Medical Directorate issued the order dated 07 05 2003 terminating her service with effect from 11 04 2003. The petitioner was a minor at the time of her death and accordingly she requested through her legal guardian the Director of Health Services Manipur for payment of family pension relating to her mother Y. Promila Devi. Although all the required pension papers documents had been submitted the Government of Manipur: Secretariat: Health Department vide the Under Secretary’s letter dated 15 06 2011 addressed to the Director of Health Services Manipur W.P.(C) No. 2719 P a g e | 3 rejected the family pension to be granted to the petitioner and accordingly all the relevant papers documents along with service book were returned to the office of the Director of Health Services The petitioner through her legally appointed guardian submitted a representation dated 28 07 2011 to the respondents for payment of family pension and terminal benefits etc. but her representation was not considered by the respondents. Being aggrieved by the inaction on the part of the respondents the petitioner approached this Court by way of a writ petition being WP(C) No. 642 of 2011 which was disposed of on 17 03 2016 observing that it would be appropriate for her to approach the Civil Court of competent jurisdiction for obtaining succession certificate. In terms of this Court’s order dated 17 03 2016 the petitioner approached the Civil Court of competent jurisdiction to obtain succession certificate by filing Original Suit No.13 of 2016 before the Court of the District & Sessions Judge Imphal West Manipur which granted the same in her favour on 15 12 2017. After obtaining the succession certificate she submitted additional pension papers documents including the succession certificate and the order dated 17 03 2016 passed by this Court vide her letter dated 23 03 2018. The office of the Chief Medical Officer Imphal West Government of Manipur vide its order dated 20 04 2018 forwarded the same to the Directorate of Health Services Manipur for necessary action which in turn submitted them to the Principal SecretaryNo. 2719 P a g e | 4 FW) Government of Manipur vide its letter dated 28 07 2018 with a request to move the Finance Department Government of Manipur for obtaining concurrence of the finalization of the pension case. The office of the Sub Divisional Officer Lamphel Imphal West issued an order dated 24 08 2018 certifying the petitioner as the adopted daughter of the deceased late Yengkhom Promila Devi who expired on 11 04 2003 on the basis of an enquiry report submitted by the Sub Deputy Collector HQ Lamphel Imphal West vide its letter dated 21 08 2018 and the order of appointment of guardian by the Judge Family Court Manipur at Lamphelpat Imphal in Mat. Suit No.109. Being aggrieved by the inaction on the part of the respondents the instant writ petition has been filed by the petitioner. the affidavit in opposition filed on behalf of respondents it has been stated that the adoption of the petitioner by the deceased late Yengkhom Promila Devi while she was in service is very much doubtful and the issue involved is a disputed question of facts and law. After the death of the deceased Shri Koijam Suraj Singh produced an adoption deed alleging that he was adopted by her and the adoption deed was formally registered on 06 01 2000. Since the execution of the said deed was never brought to or otherwise produced to the knowledge of the officials during the lifetime of late Y. Promila Devi the adoption of Koijam Suraj Singh is in violation of the provisions of law as prescribed in the Act. On the basis of the adoption deed he claimed for the benefits such as GIS GPF and leave W.P.(C) No. 2719 P a g e | 5 encashment which were directed to be released by the authority in his favour. He also submitted an affidavit dated 14 05 2003 stating that he is the only person entitled to all the service benefits. But the authority did not release them in favour of Shri Koijam Suraj Singh as he had already crossed 25 years of age and was not entitled to the said benefits. On top of that although he claimed to be adopted son he continued to use his surname as Koijam which is in violation of provisions of law. Since the pension and pensionary benefits were not released to Shri Koijam Suraj Singh his elder sister Koijam Bimota Devi submitted a representation dated 29 07 2006 along with an affidavit claiming that she is the legal guardian of the petitioner who was adopted by Late Y. Promila Devi during her lifetime. Thus the petitioner is entitled to get and enjoy the said family pension and pensionary benefits through her legal guardian. She submitted another representation dated 11 08 2008 to the Director of Health Services Manipur for granting family pension to her on behalf of the petitioner. In the meantime Koijam Bimota Devi produced the adoption deed dated 27 03 2000 adopting the petitioner by the deceased but the deed of adoption was made in collision with unscrupulous persons. After the petitioner being adopted her surname remains to be Akoijam in stead of Yengkhom. The authority has taken up steps for challenging the genuineness or otherwise veracity of the deed of adoption and also for verification of all the persons involved in the present issue. The present writ petition cannot be considered in the absence of Shri Koijam Suraj Singh who is not arrayed as party respondent and therefore the same W.P.(C) No. 2719 is liable to be dismissed on the ground of non joinder of necessary P a g e | 6 5] It is not in dispute that when the petitioner approached this Court as back as in the year 2011 by way of WP(C) No.642 of 2011 for grant of family pension and retiral benefits accrued in favour of the deceased late Y. Promila Devi this Court disposed of it with the following observations: “8. … this Court is of the view that it would be appropriate for the petitioner to approach the Civil Court of competent jurisdiction to obtain appropriate Succession Certif9icate on the strength of the registered Deed of Adoption which he claims to be valid. In the event the competent Civil Court issued Succession Certificate decree petitioner to the effect that the petitioner is indeed the favour of adopted daughter of the said Yengkhom Promila Devi Y. Jamini Devi and as such entitled to the estates including the pensionary benefits ofYengkhom Promila Devi @ Y. Jamini Devi there is no reason as to why the authority should deny the pensionary benefits entitled to the petitioner on account of the death of the said Yengkhom Promila Devi.” 6] The respondents herein have been arrayed as respondents therein and since they appear to have not preferred any appeal against the order dated 17 03 2016 it had attained its finality. On perusal of this Court’s order dated 17 03 2016 it is seen that the observations contained therein are twofold one it would be appropriate for the petitioner to approach the Civil Court of competent jurisdiction to obtain a succession certificate and two in the event of the succession certificate being granted by the Civil Court of W.P.(C) No. 2719 P a g e | 7 competent jurisdiction in her favour there is no reason as to why the authority should deny the pensionary benefits entitled to the petitioner on account of the death of her adoptive mother. The said observations are plain and unambiguous which require no interpretation at all. The implementation of the second observation as contained in this Court’s order depends upon the outcome of the liberty as mentioned in the first observation being exercised by the petitioner. In other words the moment succession certificate being obtained by the petitioner she is entitled automatically to the pensionary benefits in terms of the order of this Court. So far as the first observation is concerned the petitioner appears to have approached the Civil Court of competent jurisdiction which has granted the succession certificate in her favour a copy of which has been placed on record. 7] After the succession certificate being obtained by the petitioner she approached the authority with copies of the succession certificate and this Court’s order dated 17 03 2016 being furnished to them. The grievance of the petitioner is that despite the said documents being furnished by her the respondents have failed to consider them and grant the pension and pensionary benefits. According to the petitioner the failure on the part of the respondents in granting the pension and pensionary benefits is highly unfair and unreasonable. Her contention appears to have some merit for the reason that since she has been granted a succession certificate by the Civil Court of competent jurisdiction to be the adopted daughter the legal consequence ought to follow in terms of this Court’s order. The W.P.(C) No. 2719 P a g e | 8 stand taken by the State respondents is that she cannot be granted the pension and pensionary benefits as she has continued to use her surname. Their contention is too technical and will have no value at all after the successive certificate having been issued by the Civil Court of competent jurisdiction in her favour. It may further be noted that the pension and pensionary benefits have legally accrued to the deceased which cannot be withheld and denied by the State Government when the rightful person claims it in accordance with law. The only exercise to be done by the State Government in such case is to verify as to whether the person claiming the said benefits is the genuine and rightful one and if such a person is found to be genuine and rightful one the State Government is duty bound to grant the same to him her. In the present case as the succession certificate has been granted by the Civil Court of competent jurisdiction in her favour and as long as it is not quashed and set aside by an appellate forum she is entitled to get and enjoy the pension and pensionary benefits. One objection which the State respondents have raised in their counter affidavit is that the writ petition is not maintainable because Shri Koijam Suraj Singh has not been arrayed as party respondent herein. Their objection is not sustainable in law for the reason that in their affidavit itself it has been stated that the benefits cannot be released to him as he has crossed 25 years of age. If he has become ineligible for grant of benefits it will make no difference whether he has been arrayed as party respondent or not. In any case he can no longer be the claimant for the pension and pansionary benefits and therefore his presence is not required at all while deciding the issue involved herein. Moreover W.P.(C) No. 2719 P a g e | 9 he appears to have not preferred any appeal against this Court’s order dated 17 03 2016 before any appellate forum. 8] In view of the above and for the reasons stated hereinabove the instant writ petition is allowed with the direction that the respondents shall release the pension and pensionary benefits accrued to the deceased late Y. Promila Devi to the petitioner the adopted daughter within a period of three months from toady. In other words after the said benefits being computed by the respondents the same shall be transferred to the account of the petitioner. If the said benefits are not released within the time as specified and directed above the same shall accrue interest @ 6% per annum from the date of expiry of three months till the date of payment. There shall be no order as to costs. FR NFR W.P.(C) No. 2719

A minimum of 20 years of qualifying service is required for retiring pension : Delhi High Court

A government servant is not entitled to retiring pension on completion of less than 20 years of service. This was held in the judgment passed by a single judge bench comprising HON’BLE MR. JUSTICE V. KAMESWAR RAO, in the matter DR. MUHAMMAD ABULAISH v. JAMIA MILIA ISLAMIA UNIVERSITY [W.P.(C) 10222/2021 & CM No. 31509/2021], dealt with an issue where the petitioner filed a petition challenging the rejection of his application / notice for voluntary retirement, with a consequential prayer that he be granted the retiral benefits. Counsel on behalf of the petitioner is that the petitioner joined the respondent University on January 06, 2004 pursuant to an appointment letter issued on December 26, 2003. At the time of joining, the age of the petitioner was 32 years, 5 months and 2 days as his date of birth is August 04, 1971. The petitioner served a notice of three months seeking voluntary retirement on the respondent University. According to Mr. Chandra Shekhar, on the said date, the petitioner had, in all, put in 17 years, 7 months and 26 days of service. The said request of the petitioner was turned down by the respondent University vide the impugned communication dated June 21, 2021 on the ground that the request of the petitioner was examined under Rule 48(A) of CCS Pension Rules 1972. The petitioner did not fulfil the criteria of having qualifying service. It is stated by Mr. Chandra Shekhar that on June 28, 2021, the petitioner gave a representation adverting to the fact that the petitioner did not seek voluntary retirement under Rule 48(A) of the Pension Rules, as, the contents of the petitioner’s letter dated June clearly discloses that he sought voluntary retirement under Rule 56(k) of the Fundamental Rules and on that basis, he sought reconsideration of the respondent’s decision. Counsel for the respondent that the proviso appended to Rule 56(k) of the FR that the petitioner having served South Asian University, New Delhi, his request could not have been considered till such time, he does not serve for a period of one year, is also unsustainable as the South Asian University is not a Foreign Government for this stipulation to be made applicable. It is not the case of the University that the petitioner was under suspension or departmental proceedings are pending against the petitioner for refusal to accept the request of the petitioner for voluntary retirement. Rather the case of the respondent University is that, he has not completed 15 years of qualifying service for being granted the voluntary retirement. Suffice to state there is no requirement in FR 56(k) for a government servant to have 15 years of qualifying service for getting voluntary retirement. After hearing both the parties The Hon’ble Delhi High Court dismissed the petition even if the petitioner has 15 years of service, that would only enable him to apply for voluntary retirement but he shall not be entitled to retiring pension for which he must have 20 years of qualifying service, which he does not have, as it is the own case of the petitioner that he has only put in 17 years, 7 months and 26 days. Click here to view judgement Judgement reviewed by – Vaishnavi Raman

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 27th September 2021 W.P.(C) 10222 2021 & CM No. 31509 2021 DR. MUHAMMAD ABULAISH Petitioner Through: Mr. Chandra Shekhar Adv. with Mr. Prashant Shekhar Mr. Ashwani Saini & Mr. Vivek Sharma Advs. JAMIA MILIA ISLAMIA UNIVERSITY Through: Mr. Pritish Sabharwal ASC Respondent HON BLE MR. JUSTICE V. KAMESWAR RAO V. KAMESWAR RAO J.The present petition has been filed by the petitioner with the following prayers: “In view of the facts and circumstances stated herein above it shall be expedient for the ends of justice and equity that this Hon ble Court may graciously be pleased to: a. Issue writ order or direction in the nature of certiorari calling for the record of the petitioner s the orders decisions) dated 21.06.2021 & 27.08.2021 the petitioner s application notice dated 01.06.2021 and 28.06.2021 for Voluntary Retirement and quash the same and further issue writ order or direction in the nature of mandamus commanding process the petitioner s case of Retiral Benefits the respondent W.P10222 2021 Page 1 and other incidental exercise to be performed following the petitioner s voluntary retirement in accordance with law. Pass such other or further orders as this b. Hon ble Court deems fit and proper in facts and circumstances coming to the notice during the pendency this petition.” In substance the petitioner is challenging the rejection of his application notice for voluntary retirement with a consequential prayer that he be granted the retiral benefits. The case of the petitioner as contended by Mr. Chandra Shekhar learned counsel on behalf of the petitioner is that the petitioner joined the respondent University on January 06 2004 pursuant to an appointment letter issued on December 26 2003. At the time of joining the age of the petitioner was 32 years 5 months and 2 days as his date of birth is August 04 1971. On June 01 2021 the petitioner served a notice of three months seeking voluntary retirement on the respondent University. According to Mr. Chandra Shekhar on the said date the petitioner had in all put in 17 years 7 months and 26 days of service. The said request of the petitioner was turned down by the respondent University vide the impugned communication dated June 21 2021 on the ground that the request of the petitioner was examined under Rule 48(A) of CCS Pension Rules 1972and the petitioner did not fulfill the criteria of having qualifying service. It is stated by Mr. Chandra Shekhar that on June 28 2021 the petitioner gave a representation adverting to the fact that the petitioner did not seek voluntary retirement under Rule 48(A) of the Pension Rules as the contents of the petitioner’s letter dated June W.P10222 2021 Page 2 01 2021 clearly discloses that he sought voluntary retirement under Rule 56(k) of the Fundamental Rules and on that basis he sought reconsideration of the respondent’s decision dated June 21 2021. As no action was taken by the University the petitioner approached this Court by way of a writ petition being W.P.(C) 8204 2021 challenging the order dated June 21 2021 with a further prayer that he be relieved w.e.f. August 31 2021. The said writ petition was disposed of by this Court on August 23 2021 directing the respondent to consider the representation of the petitioner dated June 28 2021. According to Mr. Chandra Shekhar it is pursuant thereto that the representation of the petitioner was rejected vide impugned order dated August 27 2021 on two grounds which include that the petitioner did not possess qualifying service of 15 years as required under Rule 56(k) of the FR because the petitioner availed Extraordinary Leave from time to time and the said period is awaiting regularization. Mr. Chandra Shekhar would submit that this ground of the petitioner not having the qualifying service of 15 years is untenable as the petitioner has availed the EOL after due sanction and the same is awaiting regularization. That apart even the stand of the learned counsel for the respondent that the proviso appended to Rule 56(k) of the FR that the petitioner having served South Asian University New Delhi his request could not have been considered till such time he does not serve for a period of one year is also unsustainable as the South W.P10222 2021 Page 3 Asian University is not a Foreign Government for this stipulation to be made applicable. That apart Mr. Chandra Shekhar would contend that Ordinance 5(v) of the Ordinance of the Jamia Millia Islamia University relates to Leave Rules applicable to teachers. Rule 1.1(v) of the Leave Rules defines “completed years of service” to mean continuous service of the specified duration under the University and includes period spent on duty as well as on deputation with Government and leave including EOL unless otherwise provided. According to him EOL is always without pay and allowance. The EOL shall not count for increment except in a case where leave was granted to accept an invitation to a teaching post or fellowship or research cum teaching or an assignment for technical or academic work of importance. In the case of the petitioner he first proceeded on EOL after being duly granted by the Competent Authority for a period between August 27 2007 to February 08 2009. The same was for taking up teaching assignment as Assistant Professor at College of Computer Science King Khalid University Abha Saudi Arabia. The petitioner joined back the respondent University on February 09 2009 much prior to the expiry of the leave period. The Vice Chancellor of the University permitted the petitioner to join before the expiry of the leave period and approved the said period for notional increments w.e.f. February 09 2009. The second spell of EOL was from October 25 2010 to December 23 2012 which was sanctioned by the Competent Authority to take up a teaching assignment as Associate Professor at W.P10222 2021 Page 4 Center of Excellence in Information Assurance King Saud University Saudi Arabia. Upon joining the Vice Chancellor of the University not only permitted the petitioner to resume his duties but also approved and granted notional increment to the petitioner w.e.f. December 24 2012. The third spell of EOL was from February 01 2016 to June 23 2017. This time also the same was availed for taking up the teaching assignment as Associate Professor at the Department of Computer Science of South Asian University New Delhi. It may be stated that subsequently the EOL on deputation was extended upto January 30 2021. Thus the petitioner remained on deputation after sanction of leave for a period between February 01 2016 to January 30 2021. Mr. Chandra Shekhar would submit the pre conditions for applicability of Rule 56(k) of FR are two fold i.e. the Government servant ought to have entered the service before attaining 35 years of age and such Government servant may exercise his option to voluntarily retire from service provided he has attained 50 years of his age. It is clear that a reading of Rule 56(k) of FR does not refer to ‘qualifying service’. 11. Mr. Chandra Shekhar states that the issue relating to the applicability and its pre conditions as against the power authority of the employer has been settled in the case of Tek Chand v. Dile Ram 3 SCC 290 Union of India & Ors. v. Harendralal Bhattacharyya 5 DRJ 310 andUnion of India & Ors. v. Sh. Ved Prakash Sharma W.P.(C) No. 8102 2010 decided on February 15 2011. Mr. Chandra Shekhar states that the respondent could not have rejected the request of the petitioner W.P10222 2021 Page 5 seeking voluntary retirement under Rule 56(k) of FR and also the retiral benefits thereof. On the other hand Mr. Pritish Sabharwal learned counsel for the respondent does not dispute the facts as noted above except that out of the total period of service in JMI as 17 years 7 months and 26 days out of which the petitioner availed the EOL and deputation in the following period: i) From August 27 2007 to February 09 20091 month and 29 days) ii) From October 25 2010 to December 23 2012 From February 01 2016 to January 31 2021 of FR is 15 years. He relies upon a judgment of this Court in the case of K. Lalitha v. Government of NCT of Delhi & Ors. W.P.(C) 7704 2014 decided on August 28 2015. W.P10222 2021 Page 6 Having heard the learned counsel for the parties the issue which arises for consideration is whether the respondent University is justified in passing the impugned order. To appreciate the issue which falls for consideration it is necessary to reproduce the contents of the impugned order as under: “4. As per record Mr. Abulaish was initially appointed as Lecturer on probation basis w.e.f. 06.01.2004. His total period of qualifying service in JMI is 17 years 07 months 26 days out of which he availed EOL and deputation as mentioned below: i. On EOL from 27.08.2007 to 09.02.2009 Worked as Asstt Prof. King Khalid University K.S.A.Worked as Associate Prof. King Saud University KSA 10222 2021 Page 7 age of thirty : five years) and in all other cases after he has attained the age of fifty five. Even though he is fulfilling the criteria of joining Govt. service before 35 years of age and applying VRS after attaining the age of 50 yrs. his 15 years of servicein JMI is not completing due to his non regularized EOL and Deputation period. In the light of the above facts and circumstances the request of Dr. Muhammad Abulaish for Voluntary Retirement under FRSR 56is rejected as he does not fulfill the conditions laid down under the said rule.” It may be stated here though earlier the University has decided the petitioner’s request for voluntary retirement treating it as a notice under Rule 48(A) of the Pension Rules but during the hearing of petition being W.P.(C) 8204 2021 decided on August 23 2021 this Court had directed the respondent University to decide his representation dated June 25 2021 by a speaking order. From the impugned order it is seen that the stand of the respondent University is that the petitioner having availed EOL in three spells totaling 8 years 7 months and 12 days and his net qualifying service being 9 years and 14 days the request of the petitioner is rejected as he does not fulfill the conditions laid down in the said Rules. To answer the issue posed by this Court it is necessary to reproduce the relevant part of Rule 56(k) of FR: “56 (1) Any Government servant may by giving notice of not less than three months in writing to the appropriate authority retire from service after he has attained the age of fifty years if he is in Group ‘A’ or Group ‘B’ service or post and in all other cases after he has attained the age of fifty five years:” W.P10222 2021 Page 8 Rule 56(k) of FR also enables a government servant by giving notice of not less than three months in writing to retire from service if he has attained the age of 50 years if he is in Group A or Group B service or post and has entered the government service before attaining the age of 35 years. There is no dispute that the petitioner had joined the respondent University before he has attained the age of 35 years. It is also not disputed that his request for voluntary retirement was after he has attained the age of 50 years. To that extent even the case of the University is that the petitioner is fulfilling the criteria under Rule 56(k) of FR i.e. he has joined before 35 years and applied for voluntary retirement after the age of 50 years. The primary objection of the University appears to be that he has not completed 15 years of service due to the non regularization of EOL and deputation period. In support of his submission that the authority could not have rejected the request of voluntary retirement Mr. Chandra Shekhar has relied upon the Judgments of the Supreme Court and this Court in Tek Chand Ved Prakash Sharma and Harendralal Bhattacharyya 4 SCC 441 has in Paras 13 & 17 held as under: “13. F. Rule 56 is one of the statutory rules which binds the Government as well as the government servant. The condition of service which is envisaged in Rule 56(c) giving an option in absolute terms to a government servant to voluntarily retire with three months previous notice after he reaches 50 years of age or has completed 25 years of service cannot therefore be equated with a contract of employment as envisaged in Explanation 2 to Rule 119. W.P10222 2021 Page 9 17. The High Court committed an error of law holding that consent of the Government was necessary to give legal effect to the voluntary retirement of the appellant under F. Rule 56(c). Since the conditions of F. Rule 56(c) are fulfilled in the instant case the appellant must be held to have lawfully retired as notified by him with effect from August 2 1976.” It is not the case of the University that the petitioner was under suspension or departmental proceedings are pending against the petitioner for refusal to accept the request of the petitioner for voluntary retirement. Rather the case of the respondent University is that he has not completed 15 years of qualifying service for being granted the voluntary retirement. Suffice to state there is no requirement in FR 56(k) for a government servant to have 15 years of qualifying service for getting voluntary retirement. I have already spelt out the requirement under FR 56(k). If that be so the petitioner was within his right to seek retirement which has to be accepted by the University except if he is under suspension any disciplinary proceedings are pending against him or if any judicial proceedings are pending which may amount to grave misconduct. It is only the withdrawal of the notice which requires the acceptance of the University. It is not such a case here. Even this court in the case of Harendralal Bhattacharyyahas in Para 20 held as under: “(20) That this view is right is borne out by Dinesh Chandra Sangma v. State of Assam and others:(1978) ILLJ 17 SC. In the Fundamental Rule 56 under consideration in that case the equivalent of sub rule was sub rule 10222 2021 Page 10 Government servant under F.R. 56(c) to voluntarily retire from service by giving the Government three months notice in writing. There is no question nf acceptance of the request for voluntary retirement by the Government when the Government servant exercises his right under F.R. 56(c). Emphasis mine) And it was held that: ‘The High Court committed an error of law in holding that consent of the Government was necessary to give legal effect to the voluntary retirement of the appellant under F.R. 56 c).” Having said that the petitioner is not only challenging the impugned communication to the extent that his request for voluntary retirement has been rejected his consequential prayer is that he be granted retiral benefits. It is the submission of Mr. Chandra Shekhar that the EOL whenever taken was counted for the purpose of grant of increment. This appears to be because of Ordinance 5(v) of the Ordinance Administrative General) of the JMI on which reliance has been placed by Mr. Chandra Shekhar which states that EOL shall not count for increment except in a case where leave was granted to accept an invitation to a teaching post or fellowship or research cum teaching or an assignment for technical or academic work of importance. There is no dispute that on all the occasions the petitioner has availed EOL for holding a teaching position in Saudi Arabia New Delhi. It is important to state here that in the office order issued to the petitioner while granting the EOL both on August 09 2007 and on April 22 2010 a stipulation was incorporated that he has to give his willingness to remit leave salary pension and CPF contribution GPF subscription himself or through his employer if any during the period of the leave to JMI i.e. the University at the rates to be communicated by the Accounts W.P10222 2021 Page 11 Officer JMI if he wants to get counted his period of leave for pensionary benefits before proceeding on EOL. There is no averment in the writ petition that such a directive was implemented by the petitioner and he or his foreign employer has remitted leave salary pension and CPF contribution GPF subscription to the JMI. In any case I do not think it is necessary to go into the issue of whether the EOL deputation period need to be regularized in the facts. The issue of grant of retiring pension on retirement under FR 56(k) is governed by Rule 36(a) of the pension rules. The same is reproduced as under: “36. Retiring pension A retiring pension shall be granted to a Government servant who retires or is retired in advance of the age of compulsory retirement in accordance with the provisions of[or 48 A] of these rules or Rule 56 of the Fundamental Rules or Article 459 of the Civil Service Regulations and” On the issue of retiring pension this Court in its judgment in the case of K. Lalithaon which reliance has been placed by Mr. Sabharwal by referring to the judgment of the Supreme Court in the case of C. Jacob v. Director of Geology and Mining and Anr. 10 SCC 115 has held even in case of Rule 56(k) of FR a government servant need to have 20 years of qualifying service for availing the benefit of retiring pension. The relevant paras are reproduced as under: “12. The submission of Mr.Trivedi that since there is no requirement under FR 56(k) of FRSR Part I General Rules of a Government servant putting 20 years of service the petitioner is entitled to the benefits of pension is liable to be rejected in view of the judgment W.P10222 2021 Page 12 later of the Supreme Court in C. Jacob s case wherein the Supreme Court was considering the case wherein facts were the petitioner joined service as a Drill Helper in June 1967 in the Regional Mining Cell Trichy in the erstwhile State Geology branch of Department of Industries and Commerce State of Tamil Nadu. His services were terminated in the year 1982. the petitioner gave Nearly eighteen years representations dated May 5 2000 and July 21 2000 to the first respondent requesting that he may be taken back into service. As the enclosure to the said representation was incomplete the first respondent called upon him to send the complete document. Instead of complying with the said request the petitioner approached the Tamil Nadu Administrative Tribunal seeking a direction the first respondent to dispose of his representation. The Administrative Tribunal disposed of the said application without notice to the respondents with a direction to the Director of Geology and Mining first respondent) to consider petitioner s representation and pass an order thereon within four months. The representation was disposed of vide order dated April 9 2002. The matter did not rest there. Further litigation was filed by the petitioner in which the termination of the petitioner was held to be illegal by declaring that the petitioner was deemed to have retired from service on July 18 1982 and directed that the pension be sanctioned from that date and that the entire arrears should be calculated and paid in eight weeks. In the Intra Court appeal the Division Bench held that the petitioner has not completed 20 years of qualifying service on July 18 1982 and therefore he was not entitled to pension. The said order was challenged before the Supreme Court. Two issues were framed by the Supreme Court which included the issue with regard to the common error in assuming that 10 years service entitles a Government Servant of pension under the Pension Rules. The Supreme Court in para 16 has held as under: 16. Rule 33 of TNP Rules provides that a to a retiring pension shall be granted W.P10222 2021 Page 13 government servant who retires or is retired in accordance with the provisions of Rule 42 of the said Rules. Rule 42 of TNP Rules provides that a government servant who under fundamental Rule 56(d) retires voluntarily or is required by the appointing authority to retire in public interest shall be entitled to a retiring pension. corresponding Rule 36 of CCSP Rules which provides that a retiring pension shall be granted to a Government servant who retires or is retired in advance of the age of compulsory retirement in accordance with the provisions of Rules 48 or 48 A of those Rules or Rule 56 of the Fundamental Rules or Article 459 of the Civil Service Regulations and to a Government servant who on being declared surplus opts for voluntary retirement in accordance with Rule 29 of those Rules). The provision relating to retiring pension makes it clear that a minimum of 20 years qualifying service is required for retiring pension. It does not entitle a government servant to retiring pension on completion of ten years service. Therefore the petitioner is not entitled to retiring pension". 13. From the perusal of the aforesaid conclusion of the Supreme Court wherein the Supreme Court had also referred to Rule 56 of the Fundamental Rules as applicable to the Central Government employees which also includes Rule 56(k) of FRSR Part I on which reliance was placed by Mr. Trivedi and held that the provision relating to retiring pension makes it clear that a minimum of 20 years of qualifying service is required for retiring pension. The said conclusion of the Supreme Court is also based on the reading of the Rule 56 of the Fundamental Rules the submission of Mr.Trivedi needs to be rejected.” In view of my above discussion it must be held even if the petitioner has 15 years of service that would only enable him to apply for voluntary retirement but he shall not be entitled to retiring W.P10222 2021 Page 14 pension for which he must have 20 years of qualifying service which he does not have as it is the own case of the petitioner that he has only put in 17 years 7 months and 26 days. In view of my discussion above I do not see any merit in the petition. The same is dismissed. CM No. 31509 2021 Dismissed as infructuous. SEPTEMBER 27 2021 ak V. KAMESWAR RAO J W.P10222 2021 Page 15

Freedom of Media to report Court proceedings integral to hold Judiciary accountable: Supreme Court

While hearing an SLP on restricting the reporting of media, the Supreme Court upheld that freedom of speech and expression of media is crucial in ensuring public faith and accountability of the organs of any democratic institution. This Judgment was passed in the case of The Chief Election Commission of India vs. M.R. Vijayabhaskar & ors. [C.A.No.001767/2021] by a Double Bench consisting of Hon’ble Shri Justice Dr. D.Y. CHandrachud and Hon’ble Justrice M.R. Shah. The special leave petition arose from an order by the Division Bench of the High Court of Judicature at Madras. The High court entertained a writ petition under article 226 of the Indian Constitution regarding the COVID-19 protocols to be followed in the polling booth at 135-Karur legislative assembly constituency. It is alleged by the petitioner that the HC orally observed that EC was singularly responsible for the second wave of COVID-19 and they should be put up for murder charges. The EC claims that these statements were baseless and tarnished the image of EC which is an independent constitutional authority. While preparing for election the EC issued a letter to the presidents and general secretaries of all national and political parties to observe the instructions related to COVID-19. During the polling phase it issued another order stating the norms of social distancing, wearing marks and other restrictions. When the breach of the same continued after repeated warning they banned public campaign and rallies between 7pm and 10 am. The writ petition was filed by the respondent given the surge in the number of cases and while hearing the same, the Division bench passed an order. On hearing the petition again on 30th April 2020, the Madras HC disposed the petition on the basis of the steps taken by EC at the time of counting votes. The EC approached the Supreme court regarding its grievance regarding the oral observation and that the application had not been evaluated on merits. The issue in hand was the prayer for restraint on media reporting, the Supreme Court in its premise stated that such a prayer breaks two fundamentals under the constitution- open court proceedings and the fundamental right to freedom of speech and expression. The SC observed that transparency of the functioning of a democratic body is crucial in gaining or maintaining the public faith and  that open court proceedings are significant in ensuring that the judges act according to law and probity. The SC observed that open court is equally important for people to be aware about the functioning of legislature and executive; in order for them to debate and discuss the functioning of the democratic institutions. While dealing with the freedom of expression of media, the SC stated article 19(1)(a) of the Indian constitution and reiterated the freedom of media to inform and convey information while also expressing their ideas and opinion on all matters of interest. At the same time it also stated the restrictions that the fundamental right faces under article 19(2). The SC held that citizens are entitled to ensure that the court restrict arbitrary use of power and the same is possible only when there is unrestricted flow of information from media regarding the court proceedings. The court went on to state how technology has developed in the case of media and it is the democratic institutions who have to keep up with the same.

Reportable IN THE CIVIL APPELLATE JURISDICTION Civil Appeal No. 17621 Arising out of SLPNo. 67321) The Chief Election Commissioner of India ....Appellant M.R Vijayabhaskar & Ors. ....Respondents JUDGMENT Dr Dhananjaya Y Chandrachud J This judgment has been divided into the following sections to facilitate analysis: A Factual Background B Proceedings before the Supreme Court C Legal Position & Analysis C.1 Open Courts and the Indian Judiciary C.2 Freedom of Expression of the Media C.3 Public Discourse Media Reporting and Judicial Accountability C.4 Freedom and constraints of judicial conduct D Conclusion PART A Leave granted. Factual Background A delicate question of balancing the powers of two constitutional authorities in this appeal has raised larger issues of the freedom of speech and expression of the media the right to information of citizens and the accountability of the judiciary to the nation. The authority of a judge to conduct judicial proceedings and to engage in a dialogue during the course of a hearing and the freedom of the media to report not just judgments but judicial proceedings have come up for discussion. What are the contours which outline judicial conduct What are the concerns courts must be alive to in an age defined by the seamless flow of information What purpose does the media serve in a courtroom Above all in a constitutional framework founded on a classical scheme of checks and balances can a constitutional body in this case the Election Commission of India1 set up a plea that constitutional status is an immunity from judicial oversight Each of these components will be addressed in this judgment. This Special Leave Petition2 arises from an order dated 30 April 2021 of a Division Bench of the High Court of Judicature at Madras. The High Court entertained a writ petition3 under Article 226 of the Constitution to ensure that COVID related protocols are followed in the polling booths at the 135 Karur Legislative Assembly Constituency in Tamil Nadu. During the hearings the Division Bench is alleged to have made certain remarks attributing responsibility to the EC for the present surge in the number of cases of COVID 19 due to their 1 ―EC‖ 2 ―SLP‖ 3 WP No. 104421 PART A failure to implement appropriate COVID 19 safety measures and protocol during the elections. At issue are these oral remarks made by the High Court which the EC alleges are baseless and tarnished the image of the EC which is an independent constitutional authority. On 26 February 2021 the EC announced general elections to the Legislative Assemblies of Tamil Nadu Kerala West Bengal Assam and Puducherry4. The schedule of elections in the State of Tamil Nadu involved polling on 6 April 2021 and counting of votes on 2 May 2021. While preparing for the elections the EC issued a letter dated 12 March 20215 to the presidents and general secretaries of all national and State political parties emphasizing on the observance of instructions related to COVID 19 protocol during the elections. During the polling phase the EC issued another letter dated 9 April 20216 to political parties stating that norms of social distancing wearing of masks and other COVID 19 related restrictions were not being followed by candidates set up by political parties. It also noted that in case the breach of norms continued the EC would consider banning public meetings and rallies. Eventually the EC by an order dated 16 April 20217 banned rallies public meetings and street plays during the days of the campaign between 7 pm and 10 am. Another letter8 was issued on the same day re emphasizing strict adherence to COVID 19 related safety protocols. 4 Press Note No. ECI PN 16 2021 5 Letter No. 4 21 2021 SDR VOL I 6 Letter No. 4 2021 SDR Vol.I 7 Order No. 464 WB LA 2021 8 Letter No. 464 WB LA 2021 PART A A writ petition was filed before the Madras High Court by the respondent who is the District Secretary and was a candidate of the AIADMK for the 135 Karur Legislative Assembly Constituency. Given the surge in the number of COVID 19 cases the respondent had sent a representation on 16 April 2021 to the EC to take adequate precautions and measures to ensure the safety and health of officers in the counting booths. Since no response was received the respondent approached the High Court and sought a direction to ensure fair counting of votes on 2 May 2021 at the 135 Karur Legislative Assembly Constituency by taking effective steps and arrangements in accordance with COVID 19 protocols. The petition was heard by a Division Bench of the High Court comprising of Justice Sanjib Banerjee Chief Justice of the Madras High Court and Justice Senthilkumar Ramamoorthy on 26 April 2021 and an order was passed in the following terms: ―4.Even though the polling was by and large peaceful in this State on April 6 2021 it must be observed that the Election Commission could not ensure that political parties adhered to the Covid protocol at the time of election campaigns and rallies. Despite repeated orders of this Court going on like a broken record at the foot of almost every order on an election petition that Covid protocol ought to be maintained during the campaign time the significance of adhering to such protocol may have been lost on the Election Commission going by the silence on the part of the Election Commission as campaigning and rallies were conducted without distancing norms being maintained and in wanton disregard of the other requirements of the protocol. 5. In view of the rapid surge in the number of cases on a daily basis albeit this State not yet being as badly affected as some other States the measures to be adopted at the time of the counting of votes on May 2 2021 which is about a week away should already have been planned in the light PART A is distressing importance and of the grim situation now prevailing. At no cost should the counting result in being a catalyst for a further surge politics or no politics and whether the counting takes place in a staggered manner or is deferred. Public health is of Constitutional authorities have to be reminded in such regard. It is only when the citizen survives that he enjoys the other rights that this democratic republic guarantees unto him. The situation is now one of survival and protection and everything else comes thereafter. 6. As far as the Karur constituency is concerned it is submitted on behalf of the Election Commission that two halls one measuring about 3500 sq.ft and the other measuring in excess of 4000 sq.ft have been arranged. Upon the Court‘s query whether such spaces would be adequate if most of the 77 candidates were to engage agents at the time of counting the Election Commission claims that all but two of the independent candidates have indicated that they would not engage any agents at the time of counting and only seven out of nine major political parties have confirmed in writing that they would be appointing agents. 7. In such a scenario the Election Commission does not expect that Covid protocol and appropriate measures cannot be taken if counting is conducted at the two designated halls. The Election Commission says that six additional counting tables have been organized so that distancing norms can be maintained. 8. Similar appropriate measures have to be adopted at every counting centre and it is only upon maintaining regular sanitization proper hygienic conditions mandatory wearing of mask and adherence to the distance norms should any counting begin or be continued. The State Health Secretary and the Director of Public Health should be consulted by the Election Commission and the Chief Electoral Officer responsible in the State to put appropriate measures in place immediately. 9. The matter will appear on April 30 2021 to review the situation when a complete picture as to adequate steps having been taken at all counting centres should be indicated by the Election Commission.9 WMP No. 12062 & 120620 PART B The matter was heard again by the Madras High Court on 30 April 2021 when the High Court disposed of the petition in view of the measures taken by the EC for observance of COVID 19 protocols at the time of the counting of votes on 2 May 2021 particularly in the 135 Karur Constituency. The miscellaneous application was also closed in light of this order. Aggrieved by the order of 30 April 2021 the EC has approached this Court. The grievance is that its miscellaneous application has not been evaluated on merits and its grievance in regard to the oral observations made during the previous hearing have not been addressed. Proceedings before the Supreme Court Before this Court the EC has challenged the order dated 30 April 2021. An IA for amendment has been filed to challenge the earlier order which has now merged in the final order. By way of interim relief a stay has been sought on the order dated 30 April 2021 besides which the following relief has been sought in terms of an interlocutory direction : the Election Commission of ―b) direct that no coercive action be taken against the officials of connection with the Complaint dated 27.04.2021 filed by in Charge Smt. Nandita Sinha before the Officer Khardah Police Station Kolkata13 Mr Rakesh Dwivedi learned Senior Counsel who appeared with Mr Amit Sharma on behalf of the EC urged the following submissions: The High Court ought not to have made disparaging oral observations that PART B the EC is the “the institution that is singularly responsible for the second wave of COVID 19” and that the EC “should be put up for murder charges”: a) These observations bear no relevance to the nature of the controversy before the High Court which related to the need to make arrangements for safe counting of votes consistent with COVID 19 protocols at the 135 Karur Legislative Assembly Constituency b) The polling had already been completed and only the counting of votes remained on 2 May 2021 c) These observations were made without giving the EC an opportunity to explain the steps it had taken for maintenance of COVID 19 protocols and it had no notice that its conduct of the elections during the campaign would engage attention during the hearing d) The High Court has made disparaging oral observations without proof or material and e) The High Court disposed of the writ petition without addressing the miscellaneous application filed by the EC The remarks made by the High Court were widely reported in the media and have tarnished the image of the EC as an independent constitutional authority. These remarks have reduced the faith of the people in the EC and undermined the sanctity of its constitutional authority The scope of judicial review over the EC in matters pertaining to the conduct of elections is limited and courts should exercise restraint while PART B making observations about the EC or the electoral process as it falls within the domain of another expert constitutional authority iv) The EC had conducted various State elections during the pandemic and had taken adequate measures to enforce protocols relating to COVID 19. The actual enforcement of protocols and safety measures on the ground is in the hands of the State machinery. The EC does not take over governance by the States even during elections and has a limited number of personnel at its disposal v) When the decision to conduct elections in Tamil Nadu was taken in February 2021 and during campaigningthe number of cases of COVID 19 was under control and an analysis of the data would indicate that the elections were not a significant factor in the surge of cases. States where no elections were held such as Maharashtra Delhi and Karnataka have witnessed a severe surge in cases vi) The EC had formulated adequate guidelines for campaigning during the pandemic and had restricted the scope of electioneering vii) The observations of the High Court during the oral hearings which are not part of the written judicial record have caused undue prejudice to the EC viii) The media must ensure there is accurate reporting of court proceedings and proceedings must not be sensationalized leading to a loss of public confidence. Directions and guidelines must be framed on the manner of reporting court proceedings PART C ix) A balance must be maintained between the conduct of court proceedings and the freedom of the media. Media reporting which suggests that a court has cast aspersions on any person or functionary is incorrect and Though the views of a court are reflected through its judgments oral comments of judges are quoted in the mainstream media which may give an impression of an institutional opinion. This exceeds the boundaries of judicial propriety. 14 Opposing the submissions Mr Pradeep Kumar Yadav appearing on behalf of respondent on caveat stressed on the fact that the EC enjoys wide ranging powers in a State during the time of an election including powers to deploy para military forces suspend or replace officers such as District magistrates police officers and even the Director General of Police to ensure that their directives are followed. Thus the EC was responsible for the implementation of safety measures and protocols related to COVID 19 during the elections. 15 We shall now consider the submissions of the counsel from the perspective of the issues this case has raised. Legal Position & Analysis Before this Court the EC is aggrieved by the oral observations of the High Court during the course of the hearing and by it not having addressed the merits of its miscellaneous application. In its miscellaneous application the EC soughtmedia reporting of only what forms a part of the judicial record before the Madras High Court and not the oral observations of the judges anda direction that no PART C coercive action be taken against the officials of the EC on the complaint filed before the Khardah Police Station Kolkata. At the outset it must be noted that the second prayer noted above was thoroughly misconceived. If an FIR has been registered in Kolkata the person aggrieved has recourse to remedies under the Code of Criminal Procedure 1973. There are remedies under the law including but not limited to quashing under Section 482 of the Code of Criminal Procedure 1973. The EC cannot have a grievance if it opted for a misconceived course of action which the High Court could not possibly have entertained. 18 We must now deal with the heart of the matter which is the first prayer that the EC has raised that of seeking a restraint on the media on reporting court proceedings. The basis of its application was that nothing apart from what forms a part of the official judicial record should be reported. This prayer of the EC strikes at two fundamental principles guaranteed under the Constitution open court proceedings and the fundamental right to the freedom of speech and expression. C.1 Open Courts and the Indian Judiciary Courts must be open both in the physical and metaphorical sense. Save and except for in camera proceedings in an exceptional category of cases such as cases involving child sexual abuse or matrimonial proceedings bearing on matters of marital privacy our legal system is founded on the principle that open access to courts is essential to safeguard valuable constitutional freedoms. The concept of an open court requires that information relating to a court proceeding must be available in the public domain. Citizens have a right to know about what PART C transpires in the course of judicial proceedings. The dialogue in a court indicates the manner in which a judicial proceeding is structured. Oral arguments are postulated on an open exchange of ideas. It is through such an exchange that legal arguments are tested and analyzed. Arguments addressed before the court the response of opposing counsel and issues raised by the court are matters on which citizens have a legitimate right to be informed. An open court proceeding ensures that the judicial process is subject to public scrutiny. Public scrutiny is crucial to maintaining transparency and accountability. Transparency in the functioning of democratic institutions is crucial to establish the public‘s faith in them. In Mohammed Shahabuddin vs State of Bihar10 the concurring opinion noted: ―… even if the press is present if individual members of the public are refused admission the proceedings cannot be considered to go on in open courts…an ―open court‖ is a court to which general public has a right to be admitted and access to the court is granted to all the persons desirous of entering the court to observe the conduct of the judicial There are multiple ways in which an open court system contributes to the working of democracy. An open court system ensures that judges act in accordance with law and with probity. Lord Widgery‘s remarks in R vs Socialist Workers Printers ex p Attorney General11 sum up the role public hearings play on the conduct of the judge in the following terms: ―The great virtue of having the public in court courts is that discipline which the presence of the public imposes upon the court itself. When the court is full of interested members of 104 SCC 653 113 WLR 801 PART C the public…it is bound to have the effect that everybody is more careful about what they do everyone tries just that little bit harder and there is disciplinary effect on the court which would be totally lacking if there were no critical members of the public or press present. When one has an order for trial in camera all the public and press are evicted at one fell swoop and the entire supervision by the public is gone.‖ Public scrutiny fosters confidence in the process. Public discussion and criticism may work as a restraint on the conduct of a judge. In his dissenting opinion in Naresh Shridhar Mirajkar vs State of Maharashtra12 Justice M Hidayatullahobserved how an open court paves the way for public evaluation of judicial conduct: ―129. Hearing in open court of causes is of the utmost importance for maintaining confidence of the public in the impartial administration of it operates as a wholesome check upon judicial behaviour as well as upon the conduct of the contending parties and their witnesses.‖ Cases before the courts are vital sources of public information about the activities of the legislature and the executive13. An open court serves an educational purpose as well. The court becomes a platform for citizens to know how the practical application of the law impacts upon their rights. In Swapnil Tripathi vs Supreme Court of India14 a three Judge Bench stressed upon the importance of live streaming judicial proceedings. One of usanalyzed the precedent from a comparative perspective : ―82. Through these judicial decisions this Court has recognised the importance of open courtrooms as a means of allowing the public to view the process of rendering of justice. First hand access to court hearings enables the 123 SCR 744 hereinafter referred to as ―Mirajkar‖ 13 Cunliffe Emma "Open Justice: Concepts and Judicial Approaches"40 Fed L Rev 385. 1410 SCC 639 hereinafter referred to as ―Swapnil Tripathi‖ PART C However there are certain exceptions to the rule of open courts in India. In MirajkarChief Justice PB Gajendragadkar observed: public and litigants to witness the dialogue between the Judges and the advocates and to form an informed opinion about the judicial process. 83. The impact of open courts in our country is diminished by the fact that a large segment of the society rarely has an opportunity to attend court proceedings. This is due to constraints like poverty illiteracy distance cost and lack of awareness about court proceedings. Litigants depend on information provided by lawyers about what has transpired during the course of hearings. Others who may not be personally involved in a litigation depend on the information provided about newspapers and in the electronic media. When the description of cases is accurate and comprehensive it serves the cause of open justice. However if a report on a judicial hearing is inaccurate it impedes the public s right to know. Courts though open in law and in fact become far removed from the lives of individual citizens. This is anomalous because courts exist primarily to provide justice to them." judicial decisions emphasis supplied) ―21. … While emphasising the importance of public trial we cannot overlook the fact that the primary function of the judiciary is to do justice between the parties who bring their causes before it. If a Judge trying a cause is satisfied that the very purpose of finding truth in the case would be retarded or even defeated if witnesses are required to give evidence subject to public gaze is it or is it not open to him in exercise of his inherent power to hold the trial in camera either partly or fully If the primary function of the court is to do justice in causes brought before it then on principle it is difficult to accede to the proposition that there can be no exception to the rule that all causes must be tried in open court. If the principle that all trials before courts must be held in public was treated as inflexible and universal and it is held that it admits of no exceptions whatever cases may arise where by following the principle justice itself may be defeated. That is why we feel no hesitation in holding that the High Court has inherent jurisdiction to hold a trial in camera if the ends of justice clearly and necessarily require the adoption of such a course. It is hardly necessary to emphasise that this inherent power must be exercised with great caution and it is only if the court is satisfied beyond a doubt that the ends of justice themselves would be defeated if a case is tried in open court that it can pass an order to hold the trial in camera.‖ PART C Hence while in camera proceedings may be necessary in certain exceptional circumstances to preserve countervailing interests such as the rights to privacy and fair trial for instance in a sexual assault case public scrutiny of the court process remains a vital principle for the functioning of democracy. C.2 Freedom of Expression of the Media Article 19(1)(a) of the Constitution guarantees every citizen the right to freedom of speech and expression. Over six decades ago in 1958 a Constitution Bench of this Court in Express Newspaper Limited vs Union of India15 explained that Article 19(1)(a) would carry within it implicitly the right to freedom of the press. The Court held: ―As with all freedoms press freedom means freedom from and freedom for. A free press is free from compulsions from whatever source governmental or social external or internal. From compulsions not from pressures for no press can be free from pressures except in a moribund society empty of contending forces and beliefs. These pressures however if they are persistent and distorting — as financial clerical popular institutional pressures may become — approach compulsion and something is then lost from effective freedom which the press and its public must unite to restore. A free press is free for the expression of opinion in all its phases. It is free for the achievement of those goals of press service on which its own ideals and the requirements of the community combine and which existing techniques make possible. For these ends it must have full command of technical resources financial strength reasonable access to sources of information at home and abroad and the necessary facilities for bringing information to the national 15 1959 SCR 12 market. The press must grow to the measure of this emphasis supplied) PART C The Constitution guarantees the media the freedom to inform to distill and convey information and to express ideas and opinions on all matters of interest. Free speech and expression is subject to the regulatory provisions of Article 19(2). The decision in LIC vs Manubhai D. Shahof the Constitution. It follows that a citizen for propagation of his or her ideas has a right to publish for circulation his views in periodicals magazines and journals or through the electronic media since it is well known that these communication channels are great purveyors of news and views and make considerable impact on the minds of the readers and viewers and are known to mould public opinion on vital issues of national importance…‖ emphasis supplied) Freedom of speech and expression extends to reporting the proceedings of judicial institutions as well. Courts are entrusted to perform crucial functions under the law. Their work has a direct impact not only on the rights of citizens but also the extent to which the citizens can exact accountability from the executive whose 163 SCC 637 PART C duty it is to enforce the law. Citizens are entitled to ensure that courts remain true to their remit to be a check on arbitrary exercises of power. The ability of citizens to do so bears a direct correlation to the seamless availability of information about what happens in a court during the course of proceedings. Therein lies the importance of freedom of the media to comment on and write about proceedings. This principle was recognized in the Madrid Principles on the Relationship between the Media and Judicial Independence17. The first principle is formulated ―1. Freedom of expressionconstitutes one of the essential foundations of every society which claims to be democratic. It is the function and right of the media to gather and convey information to the public and to comment on the administration of justice including cases before during and after presumption of innocence.‖ trial without violating This principle is recognized within Indian jurisprudence where the media has full freedom to report on ongoing litigation before the Courts within certain limitations bearing on the need to ensure that justice between parties is not derailed. The media has over the years transitioned from the predominance of newspapers in the printed form to radio broadcasts television channels and now to the internet for disseminating news views and ideas to wide audiences extending beyond national boundaries. The internet including social media have refashioned and in significant ways revolutionized the means through which information is relayed. At every stage of this transition new questions have been 17 These principles were issued by a group of 40 distinguished legal experts and media representatives who met in a meeting convened by the International Commission of Jurist‘s Centre for the Independence of Judges and Lawyers and the Spanish Committee of UNICEF available at https: www.icj.org wp content uploads 1994 01 madrid principles on media and judicial independence publication 1994 eng.pdf> PART C raised about how court processes will adapt to the change so that the rights of the parties before the courts and processes of justice are not affected18. However while these are valid concerns they should never be a good enough reason for Courts to not engage with evolving technology. Technology has shaped social economic and political structures beyond description. The world is adapting to technology at a pace which is often difficult to catalogue and many of our citizens are becoming digital natives from a young age. It is understandable that they will look towards modern forms of media such as social media websites and applications while consuming the news. This understandably would also include information reported about the functioning of courts. Hence it would do us no good to prevent the new forms of media from reporting on our work. It was keeping this principle in mind that the Lord Chief Justice of England and Wales in the context of the use of live text based forms of communication to report on court proceedings noted thus19: ―It is presumed that a representative of the media or a legal commentator using live text based communications from court does not pose a danger of interference to the proper administration of justice in the individual case. This is because the most obvious purpose of permitting the use of live text based communications would be to enable the media to produce fair and accurate reports of the proceedings. As such a representative of the media or a legal commentator who wishes to use live text based communications from court may do so without making an application to the court.‖ emphasis supplied) 18 Daniel Stepniak ‗Technology and Public Access to Audio Visual Coverage and Recordings of Court Proceedings: Implications for Common Law Jurisdictions‘ 12 William & Mary Bill of Rights Journal 79119 ‗Practice Guidance: The Use of Live Text Based Forms of Communicationfrom Court for the Purposes of Fair and Accurate Reporting‘ available at <https: www.judiciary.uk wp content uploads JCO Documents Guidance ltbc guidance dec 2011.pdf > 28 Our Court has performed its modest part to acknowledge the rapid pace of the development of technology and our need to keep up. In Swapnil Tripathi supra) it noted: PART C ―C. Technology and Open Court 84. In the present age of technology it is no longer sufficient to rely solely on the media to deliver information about the hearings of cases and their outcomes. Technology has become an inevitable facet of all aspects of life. Internet penetration and increase in the use of smart phones has revolutionized how we communicate. As on 31 3 2018 India had a total of 1 206.22 million telecom subscribers and 493.96 million internet users.Technology can enhance public access ensure transparency and pave the way for active citizen involvement in the functioning of State institutions. Courts must also take the aid of technology to enhance the principle of open courts by moving beyond physical accessibility to virtual January March Acceptance of a new reality is the surest way of adapting to it. Our public constitutional institutions must find better responses than to complain. C.3 Public Discourse Media Reporting and Judicial Accountability As we understand the rights of the media to report and disseminate issues and events including court proceedings that are a part of the public domain it is important to contextualize that this is not merely an aspect of protecting the rights of individuals and entities on reporting but also a part of the process of augmenting the integrity of the judiciary and the cause of justice as a whole. PART C 30 With the exception of in camera proceedings a courtroom is a public space. In Attorney General vs Leveller Magazine20 Lord Diplock held that ―The principle of open justice requires that the court should do nothing to discourage fair and accurate reports of proceedings.‖ An open court and transparent dispensation of justice in all its modalities is an end in itself. As we have discussed above technology is an accelerant in this endeavor but not the harbinger of this thought. Media reporting has operated alongside formalized court processes for close to a century. Court proceedings in colonial India especially sedition trials were also sites of political contestation where colonial brutality and indignity were laid bare. The widespread reportage on Lokmanya Balgangadhar Tilak‘s first trial for sedition was seminal in highlighting the variance in procedural laws and rights denied to Indian undertrials as he struggled to access legal aid and was convicted in spite of a non unanimous verdict of the jury. The Lokmanya‘s poignant words while recorded by the order as a formalized process of sentencing were circulated far and wide by anti colonial publications which fueled India‘s struggle for freedom. These words incidentally also adorn the plaque outside that very courtroom in the Bombay High Court to this day21: ―In spite of the verdict of the Jury I maintain that I am innocent. There are higher Powers that rule the destiny of men and nations and it may be the will of Providence that the cause which I represent may prosper more by my suffering than by my remaining free.‖ 20A.C. 440 21 Emperor vs Balgangadhar Tilak 10 BOMLR 848PART C Post independence matters of seminal constitutional importance have witnessed widespread reportage in newspapers and magazines which did not merely report on the pronouncement of verdicts but also the quirks of the counsel and judges. These tales have now passed down as the legacy of our profession and also provide useful context for our study of the law. Albeit in the context of the value of open courts Justice Bachawat speaking for this Court in Mirajkarhad placed emphasis on the publicity of court proceedings in the following terms: ―A court of justice is a public forum. It is through publicity that the citizens are convinced that the court renders even handed justice and it is therefore necessary that the trial should be open to the public and there should be no restraint on the publication of the report of the court proceedings. The publicity generates public confidence in the administration of justice .Hegel in his Philosophy of Right maintained that judicial proceedings must be public since the aim of the Court is justice which is universal belonging to all.‖ 33 With the advent of technology we are seeing reporting proliferate through social media forums which provide real time updates to a much wider audience. As we have discussed in the previous section this is an extension of the freedom of speech and expression that the media possesses. This constitutes a ‗virtual‘ extension of the open court. This phenomenon is a not a cause of apprehension but a celebration of our constitutional ethos which bolsters the integrity of the judiciary by focusing attention on its functions. Several courts across the world including the US Supreme Court the UK Supreme Court the Court of Appeal of the UK and the International Criminal Court enable public viewership of proceedings through livestreaming or other suitable open access methodology. PART C The Gujarat High Court also recently introduced livestreaming of its proceedings in a bid to enhance public participation in the dispensation of justice. In this backdrop it would be retrograde for this Court to promote the rule of law and access to justice on one hand and shield the daily operations of the High Courts and this Court from the media in all its forms by gagging the reporting of proceedings on the other. C.4 Freedom and constraints of judicial conduct The grievance of the EC does not arise as much from the impugned order of the Madras High Court as it does from the oral remarks made by the judges of the High Court during the hearing on 26 April 2021. The High Court has not been impleaded before us and has not had an opportunity to respond. Thus we have been unable to discover what truly transpired in the proceedings and the exact remarks that were made. Unless live streaming and archival of court proceedings sees the light of the daythe absence of records of oral proceedings would continue to bedevil the system. However a constitutional authority such as the EC has adverted to the oral remarks on oath in its affidavit. These have not been disputed by the respondent. The oral remarks have received widespread publicity in electronic and print media. We have in deference constitutional status of the High Court not required a confirmatory report from the Registrar General of the High Court. The independence of the judiciary from the executive and the legislature is the cornerstone of our republic. Independence translates to being impartial free PART C from bias and uninfluenced by the actions of those in power but also recognizes the freedom to judges to conduct court proceedings within the contours of the well established principles of natural justice. Judges in the performance of their duty must remain faithful to the oath of the office they hold which requires them to bear allegiance to the Constitution. An independent judiciary must also be one which is accountable to the public in its actionsQB 118 This Court has also had the opportunity to deal with a matter concerning the expunging of adverse remarks from judicial records in Kashi Nath Roy vs State of Bihar23. The judgment of the two Judge bench noted: PART C ―7. It cannot be forgotten that in our system like elsewhere appellate and revisional courts have been set up on the presupposition that lower courts would in some measure of cases go wrong in decision making both on facts as also on law and they have been knit up to correct those orders. The human element in justicing being an important element computer like functioning cannot be expected of the courts however hard they may try and keep themselves precedent trodden in the scope of discretions and in the manner of judging. Whenever any such intolerable error is detected by or pointed out to a superior court it is functionally required to correct that error and may here and there in an appropriate case and in a manner befitting maintaining the dignity of the court and message in its judgment to the officer concerned through a process of reasoning essentially persuasive reasonable mellow but clear and result orienting but rarely as a rebuke. Sharp reaction of the kind exhibited in the afore extraction is not in keeping with institutional functioning. The premise that a Judge committed a mistake or an error condemnation on the Judge Subordinate unless there existed something else and for exceptional grounds.‖ judiciary convey independence of is no ground tolerance limits of emphasis supplied) In Dr Raghubir Saran vs State of Bihar and Another24 this Court particularly advised higher Courts to enable judges of the lower Courts to freely express their opinion. Chief Justice K Subba Rao speaking for a three Judge bench observed: ―6.I entirely agree with the remarks. I reiterate that every judicial officer must be free to express his mind in the matter of the appreciation of evidence before him. The phraseology used by a particular Judge depends upon his inherent reaction to falsehood his comparative command of the English language and his felicity of expression. There is nothing more deleterious to the discharge of judicial functions than 234 SCC 539 242 SCR 336 PART C to create in the mind of a Judge that he should conform to a particular pattern which may or may not be to the liking of the appellate court. Sometimes he may overstep the mark. When public interests conflict the lesser should yield to the larger one. An unmerited and undeserved insult to a witness may have to be tolerated in the general interests of preserving the independence of the judiciary. Even so a duty is cast upon the judicial officer not to deflect himself from the even course of justice by making disparaging and undeserving remarks on persons that appear before him as witnesses or otherwise. Moderation in expression lends dignity to his office and imparts greater respect for judiciary. But occasions do arise when a particular Judge without any justification may cast aspersions on a witness or any other person not before him affecting the character of such witness or person. Such remarks may affect the reputation or even the career of such person. In my experience I find such cases are very rare. But if it happens I agree with the Full Bench of the Bombay High Court that the appellate court in a suitable case may judicially correct the observations of the lower court by pointing out that the observations made by that court were not justified or were without any foundation or were wholly wrong or improper.‖ emphasis supplied) The duty to preserve the independence of the judiciary and to allow freedom of expression of the judges in court is one end of the spectrum. The other end of the spectrum which is equally important is that the power of judges must not be unbridled and judicial restraint must be exercised before using strong and scathing language to criticize any individual or institution. In A.M Mathur vs Pramod Kumar Gupta25 a two Judge bench of this Court speaking through Justice K Jagannatha Shetty held: ―13. Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint this humility of function should be a constant theme of our judges. This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect that is respect by the judiciary. Respect to those 252 SCC 533 PART C who come before the court as well to other co ordinate branches of the State the executive and the legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities it will be neither good for the judge nor for the judicial process. 14. The Judge s Bench is a seat of power. Not only do judges have power to make binding decisions their decisions legitimate the use of power by other officials. The judges have the absolute and unchallengeable control of the court domain. But they cannot misuse their authority by intemperate comments undignified banter or scathing criticism of counsel parties or witnesses. We concede that the court has the inherent power to act freely upon its own conviction on any matter coming before it for adjudication but it is a general principle of the highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their emphasis supplied) In balancing these two ends the role of superior courts is especially relevant. This Court must strike a balance between reproaching the High Courts or lower courts unnecessarily so as to not hamper their independent functioning. This court must also intervene where judges have overstepped the mark and breached the norms of judicial propriety. 40 We are tasked with balancing the rights of two independent constitutional authorities. On one hand is the Madras High Court which is a constitutional court and enjoys a high degree of deference in the judicial structure of this country. The High Courts perform an intrinsic role as appellate courts and as courts of first instance in entertaining writ petitions under Article 2261 SCC 405 PART C Having said that we must emphasize the need for judges to exercise caution in off the cuff remarks in open court which may be susceptible to misinterpretation. Language both on the Bench and in judgments must comport with judicial propriety. Language is an important instrument of a judicial process which is sensitive to constitutional values. Judicial language is a window to a conscience sensitive to constitutional ethos. Bereft of its understated balance language risks losing its symbolism as a protector of human dignity. The power of judicial review is entrusted to the High Courts under the Constitution. So high is its pedestal that it constitutes a part of the basic features of the Constitution. Yet responsibility bears a direct co relationship with the nature and dimensions of the entrustment of power. A degree of caution and circumspection by the High Court would have allayed a grievance of the nature that has been urged in the present case. All that needs to be clarified is that the oral observations during the course of the hearing have passed with the moment and do not constitute a part of the record. The EC has a track record of being an independent constitutional body which shoulders a significant burden in ensuring the sanctity of electoral democracy. We hope the matter can rest with a sense of balance which we have attempted to bring. These oral remarks are not a part of the official judicial record and therefore the question of expunging them does not arise. It is trite to say that a formal opinion of a judicial institution is reflected through its judgments and orders and not its oral observations during the hearing. Hence in view of the above discussion we find no substance in the prayer of the EC for restraining the media from reporting on court proceedings. This Court stands as a staunch PART D proponent of the freedom of the media to report court proceedings. This we believe is integral to the freedom of speech and expression of those who speak of those who wish to hear and to be heard and above all in holding the judiciary accountable to the values which justify its existence as a constitutional institution. Conclusion above terms. For the reasons which we have indicated we dispose of the appeal in the Pending applications if any shall stand disposed. [M R Shah] New Delhi May 6 2021.

If the entire evidence produced by the prosecution is to be believed, it constitute an offence: High Court of Delhi

At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. This was held in the case of Mandeep Gandhi v State NCT of Delhi, [CRL.M.C. 346/2017 &amp; Crl.M.A. 1487/2017] by Hon’ble Justice Suresh Kumar Kait in the High Court of Delhi. The complainant filed a complaint t at Special Cell, Lodhi Colony, New Delhi regarding skimming and counterfeiting of credit card suspecting that a few shopkeepers had colluded with the criminals, which is causing loss to the bank as well as genuine card holders. On his complaint, FIR under Sections 419/420/467/468/471/120B IPC was registered at Special Cell, New Delhi. Petitioner- Mandeep Gandhi, who was running a shop in the name of M/S M.G.Electronics at Madangir, Delhi was arrested on 03.03.2003. The allegations against him are of permitting use of fake credit cards and taking 30% share of the billing amount. . It is alleged that petitioner got an amount of Rs.13,000/- in the said transaction. It is further alleged that Mayank Garg signed on the charge slip and bill as R.B.Santosh Kumar, while petitioner- Mandeep Gandhi also signed on the bill prepared by him. Prosecution has alleged that petitioner was in regular touch with Lalit Chand Verma through his mobile phone, who was a middleman to Mayank Garg, who was involved in the illegal use of cloned credit card. The counsel for petitioner assailed the impugned order by stating that against his arrest, petitioner had made an application to the appropriate authority for conducting a vigilance enquiry in relation to how petitioner is associated with the present case and after filing of charge sheet, he had also preferred an application before the trial court for summoning the aforesaid vigilance enquiry, but it was erroneously dismissed by the trial court observing that petitioner can take benefit of the aforesaid report at the stage of defence. The learned trial court without adverting to the role assigned to each of the accused in the alleged crime, has mechanically passed the impugned order on charge stating that prima facie offences are made out against all the accused. Learned Additional Public Prosecutor submitted that petitioner along with co-accused entered into a well designed criminal conspiracy and permitted use of cloned cards at his shop for his personal gains and recoveries made at his instance are subject to scrutiny during trial and does not call for any interference at this stage.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 18.03.2021 Pronounced on: 23.03.2021 CRL.M.C. 346 2017 & Crl.M.A. 1487 2017 MANDEEP GANDHI ..... Petitioner Through: Mr. Ramesh Gupta Senior Advocate with Mrs. Priya Sachdeva Ms. Tanya Raheja Mr.Nishad Sharma & Ms.Himanshi Bhatija STATE NCT OF DELHI Respondent Through: Mr. Panna Lal Sharma Additional Public Prosecutor for State with Inspector HON BLE MR. JUSTICE SURESH KUMAR KAIT Present petition has been preferred against the order dated 08.07.2016 passed by the learned Revisional Court vide which order dated 17.11.2015 passed by the learned trial court framing charge against the petitioner has been upheld. In this petition aforesaid two orders as well as FIR in question are sought to be quashed. The brief facts of the case are that on 05.02.2003 complainant V. Shiva Kumar Risk Management & Fraud Control Department Citi Bank Crl.M.C.346 2017 made a complaint at Special Cell Lodhi Colony New Delhi regarding skimming and counterfeiting of credit card suspecting that a few shopkeepers had colluded with the criminals which is causing loss to the bank as well as genuine card holders. On his complaint FIR No. 07 2003 under Sections 419 420 467 468 471 120B IPC was registered at Special Cell New Delhi. During investigation of this case master mind Mayank Garg @ Bobby Sharif Ahmed @ Sahil & Ajay Taneja were arrested on 22.02.2003 and upon further investigation accused Mukesh Kumar Jagdish Chand and Aleem Ahmed who provided data of genuine card holder and shop keepers namely Ashish Khera Naresh Nagpal Mukesh Dubey Dhiraj Gupta Jaspal Singh Chaman Lata Gupta Gaurav Bansal Lalit Chander and petitioner Mandeep Gandhi at whose shops the cloned cards were used were arrested and recovery was effected. Petitioner Mandeep Gandhi who was running a shop in the name of M S M.G.Electronics at Madangir Delhi was arrested on 03.03.2003. The allegations against him are of permitting use of fake credit cards and taking 30% share of the billing amount. It is alleged that on 13.01.2003 main accused Mayank Garg along with co accused Lalit Chand Verma came to Crl.M.C.346 2017 his shop where they twice swiped the fake credit card in the name of R.B. Santosh Kumar and caused loss of Rs.48 000 to Citi Bank. It is alleged that petitioner got an amount of Rs.13 000 in the said transaction. It is further alleged that Mayank Garg signed on the charge slip and bill as R.B.Santosh Kumar while petitioner Mandeep Gandhi also signed on the bill prepared by him. Prosecution has alleged that petitioner was in regular touch with Lalit Chand Verma through his mobile phone who was a middleman to Mayank Garg who was involved in the illegal use of cloned credit card. During investigation one mobile phone photocopy bills charge slips copy of terms and agreements of banks bill book and electronic data capture machine of City Bank was recovered from petitioner’s shop and complainant R.B.Santosh Kumar stated that he had never visited M.G.Electronics nor did he authorize any one to use his card. After completion of investigation charge sheet in this case was filed on 16.08.2003. Taking a view that at the stage of framing of charge only a prima facie case has to be seen and that circumstantial evidence of the case has to be established and also that mere suspicion is sufficient to frame charge the learned trial court on 17.11.2015 framed charge under Sections 120B IPC Sections 419 420 r w Sections 468 471 IPC r w Sections 467 474 Crl.M.C.346 2017 r w 467 all read with 120B IPC against the accused persons including petitioner. The aforesaid order of framing of charge dated 17.11.2015 was challenged by the petitioner and the learned Revisional Court dismissed it observing that there was sufficient material before the trial court to frame charge against the petitioner. Hence this petition. During the course of hearing learned senior counsel for petitioner assailed the impugned order by stating that against his arrest petitioner had made an application to the appropriate authority for conducting a vigilance enquiry in relation to how petitioner is associated with the present case and after filing of charge sheet he had also preferred an application before the trial court for summoning the aforesaid vigilance enquiry but it was erroneously dismissed by the trial court observing that petitioner can take benefit of the aforesaid report at the stage of defence. Learned senior counsel for petitioner submitted that there is not an iota of admissible evidence to suggest that petitioner had entered into a criminal conspiracy with other accused persons and that the only material available on record is the disclosure statement of main accused Mayank Garg which is inadmissible in absence of any recovery at the instance of petitioner. Crl.M.C.346 2017 8. It was further submitted that the learned trial court without adverting to the role assigned to each of the accused in the alleged crime has mechanically passed the impugned order on charge stating that prima facie offences are made out against all the accused. He further submitted that even the learned Revisional Court has fallen into error in not distinguishingly appreciating the role of petitioner in the present case and presumed as if it is at par with that of main accused Mayank Garg. It is submitted that the recovered challan book bill book and charge slip clearly show that petitioner had conducted the entire transaction with bona fide intention as after approving the payment by the bank purchaser signed the transaction slip and as an abundant caution petitioner also obtained purchaser’s signatures on the bill. Lastly learned senior counsel submitted that out of 15 accused persons two accused namely Mayank Garg main accused and Gaurav Bansal have expired and also that petitioner has been unnecessarily subjected to mental harassment and humiliation for last many years therefore these orders deserve to be set aside. 10. On the other hand learned Additional Public Prosecutor for State on instructions from Inspector R.P.Dabbas Investigating Officer explained Crl.M.C.346 2017 before this Court how cloning of credit cards resulted into siphoning off amount of genuine card holders and caused huge loss to them as well as to banks. Learned Additional Public Prosecutor submitted that petitioner along with co accused entered into a well designed criminal conspiracy and permitted use of cloned cards at his shop for his personal gains and recoveries made at his instance are subject to scrutiny during trial and does not call for any interference at this stage. He further submitted that while framing charge only a prima facie opinion has been given by the trial court and petitioner has the remedy to prove his innocence at the stage of defence evidence. He also submitted that the impugned orders are well merited and do not call for any interference by this Court hence this petition be I had heard learned counsel representing both the sides and have gone through the impugned order as well as material placed on record. In State of Maharashtra vs. Salman Salim Khan and Anr. 1 SCC 525 the Hon’ble Supreme Court has held as under: 12. We are of the opinion that though it is open to a High Court entertaining a petition under Section 482 of the Code to quash charges framed by the trial court same cannot be done by weighing the correctness or sufficiency of evidence. In a Crl.M.C.346 2017 case praying for quashing of the charge the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed would it constitute an offence or not. The truthfulness the sufficiency and acceptability of the material produced at the time of framing of charge can be done only at the stage of trial......." observations: 13. Further the Hon’ble Supreme Court in Amit Kapoor Vs. Ramesh Chander & Anr. 9 SCC 460 has made the following pertinent “19. At the initial stage of framing of a charge the court is concerned not with proof but with a strong suspicion that the accused has committed an offence which if put to trial could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage.” 14. The plea raised in this petition is that the Revisional Court as well as trial court have fallen in error in not considering that the petitioner is innocent and is a victim of circumstances and the learned trial court has mechanically framed charge against him along with other accused persons. Pertinently cloning of cards and its illegal use cannot be individually done Crl.M.C.346 2017 but with the connivance of others and in the present case allegation against the petitioner is of permitting the other accused persons to swipe the cloned cards at his shop for personal gains. Recoveries made at his instance are also under scrutiny. I do not find substance in the pleas taken on behalf of the petitioner that there is no material on record to establish petitioner’s involvement in the offence in question. Trial in this case is in progress and petitioner will have the opportunity to prove his innocence at the time of In the aforesaid view of the matter I find that the learned Revisional Court has rightly upheld trial court’s order. I find no reason to interfere with the same. 16. Before parting with the present petition since FIR in question pertains to the year 2003 trial court is directed to expeditiously conclude trial preferably not beyond one year. 17. With aforesaid directions the present petition and application are accordingly dismissed while refraining to comment upon the merits of the MARCH 23 2021 r SURESH KUMAR KAIT) JUDGE Crl.M.C.346 2017

Welfare of the child is of paramount concern: Supreme Court

It should always be for the betterment of the child and the wellbeing of the child should be considered first while dealing with cases concerning custody, guardianship of the child. There should be a just environment drawn to ensure that in a situation where there is a conflict between the parents, the child is not harmed and can flourish to the fullest. This remarkable judgement by the Supreme Court in the case of Mrs Ritika Sharma versus Mr Sujoy Ghosh [Civil Appeal Nos. 3544-45 of 2020] by the Hon’ble Justice Dr Dhananjaya Y Chandrachud. J. The appellant was a working lady who was currently working in Singapore. The parties to suit were married on 4th February 2009. After a series of conflict between the two, they decided to part ways in 2016. The child stayed with the mother after they separated and before that he stayed with the parents. The appellant filed for divorce too on the ground of cruelty before the Family court. The appellant wanted to take the child along with her to Singapore and have a custody of him as the child stayed with her after he was born. She contended that her parents too were looking after the child. The responded challenged her petition on the grounds that she did not take care of the child since birth and it was the parents of the appellant who helped her while she was engrossed in her job. The responded further stated that letting the child go with her would result in the child go out of the jurisdiction of the court and it was the respondent who filed for the custody of the child in the family court. On reply to this the appellant stated that she as well as the child had an Indian passport so it was impossible for them to go away from the jurisdiction of the court. She further stated that the child would be admitted to the Global International School in Singapore. The court contended that “The jurisdiction of this Court under Article 142 of the Constitution is a facilitative constitutional instrument to advance substantive justice. In exercise of these powers, we are of the view that the arrangement which has been arrived at during the pendency of the proceedings should be modified so as to best subserve the interests of the child.” The court said that “A balance has to be drawn so as to ensure that in a situation where the parents are in a conflict, the child has a sense of security. The interests of the child are best subserved by ensuring that both the parents have a presence in his upbringing.”

Reportable IN THE CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 3544 420 Arising out of SLPNos. 21049 210519 Mrs Ritika Sharan ....Appellant Mr Sujoy Ghosh .... Respondent JUDGMENT Dr Dhananjaya Y Chandrachud J These appeals arise from a judgment dated 11 July 2019 of a Single Judge of the High Court of Karnataka. The appellant and the respondent got married on 4 February 2009. Their child Sattik was born on 9 May 2013. There are serious differences between the spouses and they have been living apart since 2016. The appellant submits that she has been compelled to leave the matrimonial home due to domestic violence and abuse. The appellant instituted a petition on 6 October 2016 under Section 13(1)(i a) of the Hindu Marriage Act 1955 seeking a decree for divorce on the ground of cruelty. The divorce proceedings are pending before the Family Court Bengaluru and found it convenient to take the child with her. The respondent opposed the grant of relief and filed an interim application IA No. 4 1 seeking an injunction against the appellant from taking the child out of Bengaluru. On the same day the respondent had also filed IA No. 52 and sought interim custody and visitation rights so as to enable him to meet the child. The appellant opposed IA No. 4 and IA No. 5 filed by the respondent alleging that the respondent was abusive violent and suffers from a psychiatric disorder as a result of which he cannot be granted the custody of the child. 1 IA No. 17 in MA 4484 2016 2 IA No. 17 in MA 4484 2016 4 By an order dated 4 January 2018 the Family Court dismissed IA No. 3 filed by the appellant for the child’s passport and allowed IA No. 4 of the respondent restraining the appellant from taking the child out of Bengaluru. The Family Court granted this relief on the basis that if the child is moved out of Bengaluru it would lose jurisdiction over the child. The appellant instituted two writ proceedings Writ Petition No. 95218and Writ Petition No. 11520 of 2018 before the High Court to challenge the order dated 4 January 2018 of the Family Court in IA Nos. 3 and 4. On 1 March 2018 the Family Court passed an order in IA No. 5 filed by the respondent seeking interim custody and visitation rights and directed the appellant or her parentsto produce the child before the Mediation Centre on every third Saturday at 11:00 am to allow for visitation by the respondent till 5:00 On 9 July 2018 a Single Judge of the High Court in the appellant’s Writ Petition No. 9528 of 2018 and Writ Petition No. 11520 of 2018 in an interim order noted that the minor child was in the custody of the maternal grand parents in the proceedings in MC No. 44816 before the Family Court under Section 26 of the Hindu Marriage Act 1955 to allow the child to travel to Singapore during his Christmas vacations commencing on 14 December 2018 and ending on 2 January 2019. The appellant also filed IA No. 123 to direct the respondent to submit the passport of the child to the Family Court. By an order dated 20 November 2018 the appellant was permitted to take the child to Singapore for the Christmas vacation and the respondent was directed to submit the passport of the child before the Family Court to be kept in the safe custody of the Family Court. The respondent assailed this order before the High Court in Writ Petition No. 53079 and 53687 of 2018 There is a manifest error on the part of the Family Court in presuming that once the minor child accompanies his mother to Singapore it would lose ii) The issue before the Family Court did not pertain to the permanent iii) The child has been in the custody of the appellant since his birth iv) The appellant sought permission to take the child with her to Singapore where she has now been relocated by her employer. The appellant does not seek to do so on a permanent basis since the move is only for the period during which she is posted in Singapore v) The paramount objective must be to ensure the welfare of the child. The child has been in the care of the appellant since his birth and the parents of the appellant shifted from NOIDA to Bengaluru to help her. The appellant was even ready and willing to bring the child on every third Saturday for grant of visitation to the respondent as directed by the Family Court should this be so ordered and directed by this Court and 4 Writ Petition No. 9528 2018 and 11520 2018(vi) The appellant and her son hold Indian passports and the appellant is willing to furnish such an undertaking as this Court may direct to ensure that the child is not placed outside the control and jurisdiction of the Family Court Bengaluru. Ms Arora has urged that the appellant was constrained to move out of the jointly owned residential apartment due to the violent and abusive conduct of the respondent and the reason for her to seek the permission of this Court to take the child to Singapore is to enable her to look after the child. It has been submitted that the employer of the appellant is providing assistance towards the expenditure for the education of the child who would be admitted to the Global Indian International School at Singapore. 10 Opposing the above submissions Mr Harshad V Hameed learned counsel appearing on behalf of the respondent submitted that: i) The appellant has made an attempt to ‘shift the goal posts’ from time to time. The pleading before the High Court was that the child has been in the custody of the maternal grand parents while a contradictory plea was now being taken up before this Court that he has been in the care and custody of the appellant ii) The only application that was filed by the appellant in the Family court IA No. 3 dated 21 July 2017 was for the return of the passport of the child the basis of which was occasional travel overseas iii) The appellant has not instituted a substantive proceeding claiming guardianship of the child. On the other hand the respondent has filed for guardianship of the child before the Family Court Bengaluru Pursuant to the order dated 1 March 2018 of the Family Court the child has been living in Bengaluru with the child’s maternal grand parents. The appellant has not assailed the validity of this order and If the appellant were to take the child to Singapore it would not be possible to ensure that she will not relocate elsewhere and take the child with her effectively placing the child outside the jurisdiction of the Indian During the course of these proceedings parties had on the suggestion of the Court agreed to explore the possibility of resolving their disputes through mediation. Mediation proceedings were conducted by Ms Laila T Ollapally under the auspices of the Bengaluru Mediation Centre. The mediator held extensive sittings stretching over twenty seven hours. The mediation has not resulted in a settlement. This Court must however acknowledge the efforts which have been made by Ms Laila T Ollapally and records its appreciation. Though the parties have not been able to resolve their disputes we can only hope that with the facilitative assistance of the Mediator each of them has appreciated better the perspective of the other. Since the hearings during the COVID 19 pandemic have been conducted before this Court through video conferencing the Court has had the opportunity to interact with the appellant and the respondent as well as their child Sattik who is now about 7 years old. The narration of facts and the record before this Court indicate that after lodging a petition for divorce before the Family Court the appellant sought the passport of the child. It was thereafter that the respondent filed an application for restraining the appellant from taking the child out of Bengaluru. IA No. 4 of the respondent was allowed and IA No. 3 for the return of the passport to the appellant mother was rejected. Close on the heels of the above order which was passed on 4 January 2018 the Family Court by its order dated 1 March 2018 noted that the child was presently residing with the parents of the appellant and directed the appellant “or her parents” to produce the child before the Mediation Centre for access on every third Saturday at 11:00 am and the respondent was directed to return the child to the appellant “or her parents” by 5:00 pm. 13 On 21 July 2017 through IA No.3 the appellant had stated on affidavit before the Family Court that the custody of the child who was then about 4 years of age was with her and since she was required to travel out of India occasionally for work the passport may be handed over to her. She in fact stated that neither had the respondent any intention to seek the custody of the child nor had he visited the child after the spouses parted ways. The fact that the child is in the care and custody of the appellant was not denied by the respondent in his reply dated 29 July 2017. In July 2017 when the appellant sought the return of the passport she was based in India. The Court has been apprised of the fact that it was in September 2017 that the appellant had relocated to Singapore. Ms Meenakshi Arora learned Senior Counsel stated before the Court that the appellant was given an option by her employer to relocate to Singapore as a part of a restructuring exercise. Whatever be the reason underlying her relocation to Singapore it is evident from the material on record that the purpose of the appellant in doing so was not to place the child outside the jurisdiction of Indian courts. Ever since the appellant and the respondent started living apart in 2016 the child has been in the care and custody of the appellant his mother. The fact that the parents of the appellant have moved to Bengaluru to help their daughter does not transfer the custody of the child either as a matter of law or fact from the appellant to the maternal grand parents. The record indicates that it was after the appellant sought the return of the passport on 21 July 2017 5 that the respondent moved an application restraining the appellant from removing the child outside Bengaluru6 and for the grant of custody and visitation rights on 29 July 20177. The primary consideration that must weigh with the Court is the welfare of the child. The respondent has asserted in the course of the submissions that the child is in the custody of the parents of the appellant in Bengaluru and should remain with them. Alternatively he submitted that he would take charge of the child. While the parents of the appellant may have volunteered at least temporarily to relocate from NOIDA to Bengaluru to help the appellant in looking after the child we are clearly of the view that the respondent cannot be heard to assert that the child must continue to remain in Bengaluru with the maternal grand parents. For the respondent to insist that the court should direct the continued presence of the child under the care of the maternal grand parents who have come to Bengaluru and stay in a rented accommodation obtained by the appellant does not appear to be fair. Nor is there sufficient material before the Court to indicate that the respondent is in a position to look after the child on his own by disturbing a position which has held the field since 2016. Before 5 IA No 17 6 IA No 17 7 IA No 17 2016 when the spouses were together the child lived and grew up in the care of both the parents. Since 2016 the appellant has taken the responsibility for the welfare of the child. The child Sattik was born on 9 May 2013 following which the appellant and the respondent resided together with the child until they parted ways in 2016. Since then in any event the appellant has been looking after the care and welfare of the child. That she has done so with the assistance of her parents who have moved to Bengaluru does not detract from her role and responsibility as a mother. In fact the order of the Family Court dated 1 March 2018 which has been adverted to earlier indicates that on the days when the respondent is to obtain visitation it is the appellant or her parents who were to produce the child before the Bengaluru Mediation Centre and it is the appellant or her parents to whom the child would be returned after the conclusion of visitation. The fact that the child has been in the care of the appellant and her parents is also evident from the order of the High Court dated 9 July 2018. During the course of the interaction on the video conferencing platform Sattik indicated his desire to reside with his mother in Singapore. While the child is attached to the respondent he has indicated in no uncertain terms his desire to live with his mother. The appellant is gainfully employed in Singapore and her desire that she should be allowed to take the child with her is not an artifice. The appellant as the mother of the child has been continuously with the child since his birth despite the demands of her employment. 17 The child is likely to be admitted to the Global Indian International School in Singapore. Ms Meenakshi Arora learned Senior Counsel has stated that the appellant would abide by the requirements entailed in travelling between India and Singapore during the pandemic. Learned Senior Counsel stated that on arrival in Singapore at the present time the appellant and the child would be required to spend 14 days together in an isolation facility. The Court has been apprised of the fact that the employers of the appellant have informed her that they would facilitate the documentation for travel and relocation of the child with the appellant in Singapore. In matters such as the present the welfare of the minor child is of paramount concern. The jurisdiction of this Court under Article 142 of the Constitution is a facilitative constitutional instrument to advance substantive justice. In exercise of these powers we are of the view that the arrangement which has been arrived at during the pendency of the proceedings should be modified so as to best subserve the interests of the child. The technicality of whether or not the appellant has challenged the Family Court’s order dated 1 March 2018 cannot obfuscate the core issue which is the welfare of the child. Allowing this case to be lost in a maze of technicalities involving a formal challenge to the order will eventually lead to the child staying in Bengaluru with the maternal grandparents while the mother is employed in Singapore. The child will lose a year of education in Singapore which is an additional reason for the exercise of the jurisdiction under Article 142. We have informed that Singapore is Covid free and the child would be able to attend regular school and some on line classes. Undoubtedly the respondent as the father is entitled to have adequate rights of access and visitation. A balance has to be drawn so as to ensure that in a situation where the parents are in a conflict the child has a sense of security. The interests of the child are best subserved by ensuring that both the parents have a presence in his upbringing. 19 Ms Meenakshi Arora has submitted that the respondent has made no contribution for the maintenance of the child. On the other hand the respondent in the course of his submissions stated that he is bearing the expenses of servicing the loan which was undertaken by the parties for obtaining a residential flat in joint names. Be that as it may we are of the view that the interests of the child require that the appellant be allowed to take the child with her to Singapore where the appellant resides. At the same time the ultimate directions that the Court issues must also address the apprehension of the respondent that the child should not be placed outside the control and jurisdiction of the Family Court Bengaluru. Adequate arrangements for access and visitation to the respondent should be ensured. directions: is set aside For the above reasons we allow the appeals in terms of the following i) The impugned judgment and order of the High Court dated 11 July 2019 ii) The appellant is permitted to take the child Sattik with her to Singapore where she is employed and resides The appellant is permitted to make suitable arrangements to facilitate the travel to and admission of the child in a school in Singapore iv) The respondent shall within a period of 48 hours from the receipt of this judgment handover the passport of the child to the appellant v) The appellant shall be exclusively entitled to take necessary steps for renewing the passport of the child or if required for obtaining a fresh passport in his name vi) Should the appellant be required to relocate for employment outside Singapore to any other countrynecessitating the relocation of Sattik she shall file a miscellaneous application before this Court seeking prior permission to do so vii) In order to facilitate the grant of access and visitation rights to the respondent the following arrangement shall hold the field in supersession of all previous orders of the Family Court and the High Court: a) The respondent would be at liberty to engage with the child on a suitable video conferencing platform for one hour each on every Saturday and Sunday and for five to ten minutes on other days b) Should the respondent desire to travel to Singapore during the school vacations of Sattik he would be entitled to have visitation rights over half of the vacation between 10 am and 6 pm. He may meet the child on any other day subject to the mutual convenience of the parties and the child c) The appellant will ensure the presence of the child in Bengaluru during the course of the child’s summer vacations in 2021 for a period of at least two weeks with prior intimation to the respondent and during the course of the visit the respondent shall be entitled to meet the child and or take him out between 11:00 am and 7:00 pm d) The appellant shall bring the child to India at least twice a year during which the respondent shall have access to and visitation with the child on the terms set out inabove e) The appellant shall file an undertaking before this Court to abide by the conditions imposed by this order. The undertaking shall specifically provide that the appellant shallnot relocate the child to any other country unless permitted by this Court ensure the presence of the child during the summer vacations of 2021 unless prevented by the travel restrictions imposed by the government of either country and furnish the contact details of the child in Singapore to the respondent. Clarified that above shall not prevent the appellant from taking the child out for holidays outside Singapore. A copy of the undertaking shall be placed on the record of the Family Court. The above arrangement shall continue to govern subject to the final orders as may be passed in the Guardianship proceedings which have been or may be instituted by either of the parties. The appeals are accordingly disposed of. Pending application(s) if any shall stand disposed of. [Indu Malhotra] New Delhi October 28 2020.

Seniority ascertained for promotion should be on basis of continuous length of service: High Court of Delhi

If a statute governing an institution includes a rule that promotion as per seniority shall be based upon the continuous length of service, this cannot be opposed even if the seniority of promotee was not computed from the date of eligibility but from the date of joining. This was decided in the case of Shreekant Gupta Vs. University Of Delhi [W.P.(C) 13219/2018, CM APPL. 7946/2021] in the High Court of Delhi by single bench consisting of Hon’ble  Justice V. Kameswar Rao. The facts of the case are that the petitioner is challenging a notification wherein another professor had been appointed as the HOD of the Department of Economics. The petitioner started his career in the respondent University in the year 1997 as a Reader, later designated in 2006 as an Asst. Professor and thereafter was promoted as Professor in the year 2003 under the Career Advancement Scheme. The petitioner has been given all financial benefits w.e.f October 16, 2003. His contention is that his seniority must relate back to the said date and based on the said seniority, the petitioner is entitled to be appointed as HOD, Department of Economics.   The contention put forth by the counsel for the petitioner is that the respondent University has failed to appreciate the mandate of the UGC Regulations that the seniority of a promotee has to be computed from the date of eligibility and not from the date of joining. Regarding the provisions of the even in both the seniority lists, the Professors who were interviewed for promotion with petitioner on the same date on March 30, 2015 have been placed higher than the petitioner. The counsel for the university on the other hand asserts that there is no illegality in determining the seniority of the petitioner w.e.f. June 29, 2015 for the purpose of grant of HOD, which is the date when the Vice Chancellor of the University had approved the promotion of the petitioner to the post of Professor. This  has been done in terms of Statute 37 of the University of Delhi.  She further stated that nothing arbitrary, illegal or discriminatory about the seniority as the appointed Professor started working as Professor much prior to the selection of the petitioner as Professor. It was also brought to the notice of the court that the petitioner had filed a petition seeking relief for grant of inter-se seniority and headship of department was disposed by an order of the University. The court ruled in favor of the respondent university For this the court referred to the case of Najma Siddiqui (Prof.) v. University of Delhi [1998 (46) DRJ 216.] wherein it was held “The law is well settled that once Statute provides that inter se seniority has to be counted from continuous length of service then the inter se seniority of the respondent No.2 vis-a-vis the petitioners has to be from the date they were selected by the Selection Committee and started working as Professors”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 15th March 2021 W.P.(C) 13219 2018 CM APPL. 7946 2021 PROF. SHREEKANT GUPTA Petitioner Through: Mr.Shikhar Khare and Mr.Srinivasan Ramaswamy Advs. UNIVERSITY OF DELHI Respondent Through: Ms.Manisha Singh and Ms.Seema Dolo Advs. W.P.(C) 1008 2021 & CM APPLs. 2755 2021 2756 2021 7433 2021 PROFESSOR SHREEKANT GUPTA Petitioner Through: Mr.Shikhar Khare and Mr.Srinivasan Ramaswamy Advs. UNIVERSITY OF DELHI & ANR. Through: Ms.Manisha Singh Adv. & Ms.Seema Dolo Adv. Respondents HON BLE MR. JUSTICE V. KAMESWAR RAO V. KAMESWAR RAO J.CM APPL. 2756 2021 in W.P.(C) 1008 2021Exemption allowed subject to all just exceptions. Application stands disposed of. W.P.(C) 13219 2018 and connected matter Page 1 CM APPL. 7946 2021in W.P.(C) 13219 2018 CM APPL. 7433 2021in W.P.(C) 1008 2021 For the reasons stated in the applications and the counsel for the respondent University having no objection on the applications being allowed the same are allowed and the writ petitions are taken up for hearing. Applications are disposed of. W.P.(C) 13219 2018 W.P.(C) 1008 2021 As these two petitions have been filed by the same petitioner and the issues raised in these petitions are inter connected with the consent of the counsels for the parties they have been finally heard and are being disposed of by this common Judgment. The writ petition being W.P.(C) 13219 2018 has been filed by the petitioner seeking a direction against the respondent University to grant seniority in accordance with the provisions of the Delhi University Act 1922 Statutes made thereunder and the UGC Regulations dated June 30 2010. Whereas W.P.(C) 1008 2021 has been filed by the petitioner challenging the notification dated December 17 2020 whereby the respondent No.2 namely Prof. Surender Kumar has been appointed as the Head of the Department of the Department of Economics for a term of three years. The common facts in both the writ petitions as urged by Mr. Shikhar Khare learned counsel for the petitioner are that the petitioner started his career in the respondent University in the year 1997 when he was appointed as a Reader which post w.e.f October 1 2006 was re designated as Associate Professor. Thereafter he was promoted as Professor w.e.f. October 16 2003 under the Career Advancement Scheme 1998 vide Office Order dated July 1 2015. W.P.(C) 13219 2018 and connected matter Page 2 Pursuant thereto the petitioner has been given all financial benefits as Professor w.e.f. October 16 2003. The submission of Mr. Khare with regard to the seniority is that the petitioner having been promoted as Professor w.e.f. October 16 2003 his seniority must relate back to the said date and based on the said seniority the petitioner is entitled to be appointed as HOD Department of Economics. In this regard he submits that the respondent University has prepared two seniority lists wherein he has been placed at the bottom i.e. as the junior most and in fact junior to even those Professors who had not even joined the respondent University as a Reader when the petitioner was serving as one. Mr. Khare submits that the petitioner has made various representations and had also met Pro Vice Chancellor with regard to his grievances both on seniority and denial of the headship of the Department of Economics. Unfortunately the request of the petitioner for grant of both has not been acceded to. According to Mr. Khare the respondent University has failed to appreciate the mandate of the UGC Regulations that the seniority of a promotee has to be computed from the date of eligibility and not from the date of joining. The petitioner having been promoted from October 16 2003 i.e. the date of eligibility his seniority must relate back to the said date. Even under Statute 37 and Ordinance XI the petitioner is entitled to the seniority w.e.f. October 16 2003 as the petitioner has been in continuous service in the rank of Professor from that date and has been paid all back wages and arrears attached to the rank of the Professor with effect from that date. Alternatively Mr. Khare states that Statute 37 and Ordinance XI which deny the seniority from the date of eligibility is arbitrary and ultra vires the Act. The other submission made by Mr. Khare is that W.P.(C) 13219 2018 and connected matter Page 3 even in both the seniority lists the Professors who were interviewed for promotion with petitioner on the same date on March 30 2015 have been placed higher than the petitioner. In this regard he has named Prof. Ram Singh Prof. Abhijeet Banerje and Prof. Uday Bhanu Sinha who were not even born on the cadre rank of Reader when the petitioner was serving as a Reader. According to him the only reason to place the petitioner after the above persons is that the approval for his promotion in CAS 1998 was not put up before the Executive Council since it was waiting approval from the University Grants Commission and Ordinance XXIII which I reproduce as under: W.P.(C) 13219 2018 and connected matter Page 4 “That seniority for the purpose of Department is maintained in accordance with the provisions of Ordinance XI(ll) which is set out below: 11. The Seniority of a teacher in a particular discipline for membership or the Committee of Courses of Departmental Committees and such similar Committees shall be determined in accordance with following principles: i) Where two or more teachers are selected at the same time for appointment then according to the ranking given by the Selection Committee provided that the date of joining in case of the teacher who has been ranked higher is not later than 3 months from the date of issue of the appointment letter to him. ii) Where no ranking has been indicated by the Selection Committee and two or more teachers join on one and the same date a) in case such teachers are appointed from a lower post to a higher post then according to their seniority inter se in the immediate lower cadre and in any other case according to the age of the person s joining the old person being deemed iii) Save the cases covered by sub clauses and concerned. joining of the dated 2. That seniority for the purpose of being appointed as Head of the Department is determined as per the provision of Statute 37 of The Delhi University Act 1922: Statute 37: Whenever in accordance with these Statutes any person is to hold an office or be a member of any Authority of the University by rotation according to seniority such seniority shall be determined according to the length of continuous service of such person in his grade or post as the case may be and in accordance with such other principles as the Executive Council may from time to time prescribe. W.P.(C) 13219 2018 and connected matter Page 5 3) if two or more persons have equal length of continuous service in a particular grade or post or the relative seniority of any person or persons is otherwise in doubt the Registrar may on his own motion and shall at the request of any such person submit the matter to the Executive Council whose decision thereof shall be final. That apart from Statute 37 provision of Statute 93. read with Ordinance XXIII is also taken into account for appointment of Head of the Department which is quoted below: Statute 9(2)(d)(i) Each Department shall have a Professor as its Head Provided that when in a Department there is only one Professor or no Professor eligible to be the Head a Reader may be appointed as its Head and when there is no Professor or Reader eligible to be the Head the Dean of the Faculty concerned shall act as the Head of the Department. a) No person shall ordinarily be appointed or continue as the Head of a Department on his attaining the age of sixty five years. Ordinance XXIII who has already served or is serving as Head of the Department it shall be open to the Vice Chancellor to appoint that person as Head of the Department whenever a vacancy next occurs if he can otherwise be so appointed. 3. The Head of the Department shall hold office for a period of three years. A person shall not ordinarily be appointed as Head of the Department for a second consecutive term. She submits that apart from W.P.(C) 13219 2018 petitioner had also filed W.P.369 2019 seeking relief for grant of inter se seniority and headship of department respectively. W.P.(C) 369 2019 was disposed of vide order dated February 5 2019 with a direction to the W.P.(C) 13219 2018 and connected matter Page 6 respondent University to consider the case of the petitioner along with other candidates for appointment of HOD. The respondent University was further directed to communicate the result of the same to the petitioner within a week from the date of decision. Thereafter the respondent University vide letter dated March 20 2019 intimated the petitioner that his name was considered along with other Professors of the Department of Economics for appointment of next HOD. Two Professors namely Prof. Sudhir A. Shah and Prof. Sunil Kanwar who were appointed as HOD had resigned from the headship. Thereafter after due consideration and approval from the competent authority respondent No.2 namely Prof. Surender Kumar was appointed as HOD vide notification dated December 17 2020 which is under challenge. Ms. Singh also submits that there is nothing arbitrary illegal or discriminatory about the seniority as respondent No.2 started working as Professor much prior to the selection of the petitioner as Professor. In other words respondent No.2 was selected as Professor on April 13 2015 whereas petitioner was appointed Professor only on June 29 2015 though w.e.f. October 16 2003. Taking these appointment dates and going by the language of Statute 37 i.e. “length of continuous service in a grade or post as the case may be” it is quite clear that as the length of continuous service of respondent No.2 in the grade of Professor was longer than the petitioner respondent No.2 would rank senior to the petitioner in the grade of Professor. She also submits that issue of grant of seniority and headship is no more res integra in view of the settled law by the Judgment of this Court in the case of Najma Siddiquiv. University of Delhi decided on January 16 1998 reported as 1998DRJ 216. W.P.(C) 13219 2018 and connected matter Page 7 Having heard the learned counsels for the parties and perused the record the issue which arises for consideration is whether the petitioner is entitled to seniority with effect from October 16 2003 and also consideration for appointment as Head of the Department Department of Economics on the basis of re determined seniority. 8. Mr. Khare learned counsel for the petitioner in support of his submission that the petitioner is entitled to seniority with effect from October 16 2003 had contended that the petitioner though promoted vide order issued in the year 2015 from that date he has been given all the financial benefits from the date i.e. October 16 2003 and for all purposes the seniority must relate back to that date. On the other hand Ms. Singh learned counsel for the respondent University had primarily relied upon Statute 37 as interpreted by the Coordinate Bench of this Court in the case of Najma Siddiqui supra) which judgment has been approved by the Division Bench in Prof. M.M. Aggarwal Department of Sanskrit University of Delhi v. Vice Chancellor University of Delhi & Ors. 126DLT 433. 10. Having seen the judgments as relied upon by Ms. Singh suffice to state the issue in hand i.e. whether the petitioner is entitled to seniority with effect from October 16 2003 is no more res integra in view of the judgment of the Single Judge in the case of Najma Siddiqui supra) wherein the Coordinate Bench of this Court has clearly held in paragraph 15 that “ The law is well settled that once Statute provides that inter se seniority has to be counted from continuous length of service then the inter se seniority of the respondent No.2 vis a vis the petitioners has to be from the date they were selected by the Selection Committee and started working as Professors. This is possible by looking W.P.(C) 13219 2018 and connected matter Page 8 at the dates of their appointment as Professors and of performing duties as Professors. Petitioners were appointed Professors earlier than respondent No.2 hence would rank senior. Petitioners have established by documentary evidence that they were appointed as Professors on June 23 1994 whereas respondent No.2 was appointed on March 4 1995. Therefore as per Statute 37 the inter se seniority of the petitioners and the respondent No.2 has to be reckoned from those dates. There is no denying the fact that the Executive Council is competent to decide the inter se seniority but the Executive Council has also to abide by the Statute. It could not have given deemed seniority arbitrarily particularly when the earlier Selection Committee had not selected him. By doing so it appears that second Selection Committee applied the rule of thumb. Once the Statute provides that inter se seniority be counted in a particular way then it has to be worked out accordingly. By giving deemed proportion or seniority with retrospective effect the respondent No.2 could not be made senior nor provision of Statute 37 could be given a gobye. Vice Chancellor or for that matter the Executive council could not give deemed seniority or seniority with retrospective effect to respondent No.2 whose first application was rejected on 23rd June 1994 wherein these very petitioners were selected and made Professors.” 11. Similarly in Prof. M.M. Aggarwal Department of Sanskrit University of Delhithe Division Bench in paragraphs 13 to 20 22 & 23 has held as under: “13. During the pendency of the writ petition the University appointed Respondent No. 3 as Head of the Department of Sanskrit with immediate effect for a period of three years by a Notification dated 14th March 2002. In other words the University now took the view that Respondents No. 3 and 4 were W.P.(C) 13219 2018 and connected matter Page 9 senior to the Appellant. Consequently Respondent No. 3 withdrew the writ petition filed by him. 14. As a result of these developments the Appellant approached this Court through a writ petition being CW 3246 2002 in which he prayed for quashing of the Notification dated 14th March 2002 and also that he should be appointed as Head of the Department of Sanskrit in the University. This writ petition was dismissed by the impugned order. 15. During the course of the hearing of the appeal the only question that was seriously agitated was with regard to the interpretation of Statute 37 of the University made under the Delhi University Act 1922. This Statute reads as follows: 37(1) Whenever in accordance with these Statutes any person is to hold an office or be a member of any Authority of the University by rotation according to seniority such seniority shall be determined according to the length of continuous service of such person in his grade or post as the case may be and in accordance with such other principles as the Executive Council may from time to time 2) It shall be the duty of the Registrar to prepare and maintain in respect of each class of persons to whom the provisions of this Statute apply a complete and up to date seniority list in accordance with the provisions of the foregoing clause. 3) If two or more persons have equal length of continuous service in a particular grade or post or the relative seniority of any person or persons is otherwise in doubt the Registrar may on his own motion and shall at the request of any such person submit the matter to the Executive Council whose decision thereon shall be final. 16. In the written submissions filed by the Appellant it has also been contended that the learned Single Judge misunderstood the rejection of the Appellant s applications for being given the benefit of MPS 1983 and that he had wrongly assumed that this meant that the Appellant was not found fit for being promoted as a Professor. We need not go into this aspect of the matter 13219 2018 and connected matter Page 10 other peripheral issues) because it really makes no difference to the ultimate result of the appeal. 17. Statute 37 clearly requires that seniority of a person is to be determined according to his length of continuous service in a grade or post as the case may be. Additionally such other principles as the Executive Council of the University may from time to time prescribe would also be applicable. Going by the literal interpretation of this Statute it is quite clear that since the length of continuous service of Respondents No. 3 and 4 in the grade of Professor was longer than that of the Appellant they should rank senior to the Appellant in the grade of Professor even though the selection of the Appellant may have been made 18. It was contended by learned counsel for the Appellant that since the Executive Council had accepted the recommendations of the Selection Committee and had promoted the Appellant with effect from 11th August 1996 the latter part of Statute 37(1) would be applicable. Reliance was also placed on a Resolution passed by the Executive Council of the University being Resolution No. 45 dated 30th April 1999. The relevant portion of this Resolution has been extracted by the learned Single Judge and this reads as follows: Appointment of a teacher to next higher post grade under the relevant Merit Promotion Scheme will take effect from the date of his her eligibility for that post grade irrespective of the date of the meeting of the Selection Committee recommending his her promotion. 19. We cannot agree with learned counsel for the Appellant on both counts. 20. As regards the interpretation of Statute 37the submission of learned counsel for the Appellant would require us to read the conjunctive "and" as a disjunctive "or" in the Statute. There is no reason for doing so. It is well settled that the word "and" may be read as "or" only if a literal reading of the words produces an absurd or unintelligible result or produces a grammatical distortion which makes no sense. It is not as if the word "and" should be read as "or" if it is convenient to do so. The language of a Statute should not ordinarily be interfered with if it makes W.P.(C) 13219 2018 and connected matter Page 11 sense and in the present case the literal reading of the Statute does not produce any absurd result nor has it caused any 22. We also cannot overlook the fact that in an open selection that took place pursuant to the advertisement dated 10th April 1996 only Respondents No. 3 and 4 were selected meaning thereby that the Appellant was not found suitable for being directly recruited to the post of Professor. This clearly indicates that Respondents No. 3 and 4 were comparatively more meritorious than the Appellant. In view of this it would not be appropriate to permit the Appellant to steal a march over these Respondents and claim seniority only on the basis of his becoming eligible for promotion to the post of Professor under MPS 1983. This would amount to giving to the Appellant a benefit that he did not deserve in the first place. 23. In the impugned judgment and order the learned Single Judge relied upon Najma Siddiquiv. University of Delhi MANU DE 0485 1998 : 1998IAD(Delhi)619 in which it was held that the provisions of Statute 37 cannot be overridden by a resolution of the Executive Council which has to be consistent with the substantive provision of Statute 37 namely reckoning of seniority on the basis of continuous length of service. We are of the view that the principle of law that has been decided in Najma Siddiqui is correct and that the seniority of the Appellant vis a vis Respondents No. 3 and 4 has to be reckoned from the date of continuous length of service in the grade of Professor. Since Respondents No. 3 and 4 were appointed prior to the Appellant and had worked continuously as Professors for a period longer than the Appellant they deserve to be treated senior to the Appellant.” 12. The plea of Mr. Khare that Statute 37 and Ordinance XI are ultra vires to the Act is also untenable as the intent of the provision is to grant seniority for the purpose of HOD only to those Professors who have actually worked on the said post and not on notional basis. Even W.P.(C) 13219 2018 and connected matter Page 12 the plea of the counsel that the petitioner has been granted seniority below the officers who have been interviewed on the same day but only on the basis that approval by Executive Council was at a later date in view of the provision of CAS 1998 which contemplate approval by UGC is also untenable as the seniority of the above officers is from the date when the minutes of Selection Committee has been approved by the Executive Council which admittedly in the case of petitioner was later. 13. From the above it is seen that the Division Bench of this Court in Prof. M.M. Aggarwal Department of Sanskrit University of Delhi supra) has concurred with the interpretation given by the learned Single Judge in Najma Siddiqui (supra) on Statute 37 that seniority shall be reckoned on the basis of continuous length of service. If that be so impugned action of the respondent University with regard to seniority of the petitioner and the appointment of respondent No.2 as HOD Department of Economics cannot be faulted. In so far as the submission of Mr.Khare in the alternative that Statute 37 and Ordinance XI are ultra vires to the Act being contrary to the settled position of law that the seniority of promotee has to be computed from the date of eligibility and not from the date of joining the said plea is also without any merit for the reasons stated by the Division Bench in paragraph 20 of the Judgment of Prof. M.M. Aggarwal Department of Sanskrit University of Delhi (as reproduced above) and additionally there is no prayer made by the petitioner for quashing the said provisions in these petitions. That apart if the intent of the rule making authority is to bestow the benefit of seniority for the purpose of HOD only from the date of continuous service in the grade or post the same cannot be faulted. This I say so for holding the position W.P.(C) 13219 2018 and connected matter Page 13 of headship the actual experience as Professor is definitely a relevant consideration. In so far as the submission of Mr.Khare that the respondent University has placed three Professors namely Prof. Ram Singh Prof. Abhijeet Banerjee and Prof. Uday Bhanu Sinha above him even though they were interviewed on the same date i.e. March 30 2015 only on the ground that the Executive Council gave its approval in the case of the petitioner after the required approval from the UGC in terms of CAS 1998 which stipulation was not existing in CAS 2010 I am afraid such a plea cannot be accepted in the absence of the said three Professors being made party respondent in the petition. That apart there is no challenge to such a stipulation of CAS 1998 which prescribes the procedure for approval by UGC before approval by Executive Council to the proceedings of the Selection Committee. In view of my above discussion I do not see any merit in both the petitions. Same are dismissed. No costs. CM APPL. 2755 2021in W.P.(C) 1008 2021 Dismissed as infructuous. MARCH 15 2021 jg V. KAMESWAR RAO J W.P.(C) 13219 2018 and connected matter Page 14

Prima facie case to be made out only when there is a grave suspicion: High Court of Delhi

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

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

Non mentioning of action taken under the Criminal Procedure Code or the Bombay Police Act in the grounds of detention, ipso facto, would not render the detention order bad or illegal: Bombay High Court

Once a person fulfills the requirement of the definition of a specified person under the MPDA Act, 1981, it is not open to the detaining authority to exercise the authority arbitrarily to select one or another course even while dealing with the same or exactly similar situation. Once a person fulfils the requirement of the definition of a specified person, it would presuppose that the normal law of the land has become ineffective or inadequate qua that person and that there is no other option but to take recourse to the powers under the MPDA Act, 1981. This remarkable judgment was passed by the Bombay High Court in the matter of CHANDRAKALA V THE STATE OF MAHARASHTRA [CRIMINAL WRIT PETITION NO. 16 OF 2021] by Honourable Justice Ravindra V. Ghuge and Justice B. U. Debadwar. The petitioner challenged the order passed by respondent No.2 through which she has been detained under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates, Sand Smugglers, and Persons Engaged in Black Marketing of Essential Commodities Act, 1981. She has submitted that the order was passed on a mere assumption which is legally unsustainable. District Collector initiated the proceedings under Section 3(1) and 3(2) of the MPDA Act, 1981 and they contended that the petitioner was sent behind bars and was granted the liberty to make a representation against the order of detention under Article 22(5) of the Constitution of India, before the Advisory Board. The Inspector of Police of the said police station conducted a confidential inquiry which discloses that the localities do not dare to register complaints against the petitioner since she has terrorized them with the aid of goons. The Police Inspector submitted his report to the detaining authority for initiating action under Section 3(1) of the MPDA Act, 1981. Court asserted that, “The said report is self-explanatory indicating that the seized material contains 10% V/V of ethyl alcohol in sample No.1 and 04% V/V of ethyl alcohol in sample No.2. Such materials are used for distillation of intoxicating liquor. We have also perused the confidential report (part-1) of the Advisory Board bearing Reference No.69 of 2020 dated 08.01.2021.” “Petitioner is a lady about 40 years of age, this Court may take a lenient view. She is willing to tender an affidavit declaring that she would never indulge in any such acts in future. As she has been under preventive detention since 07.12.2020, the period spent by her behind bars may be considered as being an appropriate period of detention” said the petitioner’s advocate. The Court also stated, “the statements of the two witnesses, who have shown the courage, albeit on the condition of anonymity, would indicate that the act of the petitioner in threatening and assaulting the suspected informants, was clearly to promote the illicit liquor business and deter such witnesses from making statements before the police.” The HC stated that, “the request of the petitioner to take a lenient view in this matter, we find that the said request could have been considered, if the petitioner did not have a record of crimes/ offences registered against her. However, the record reveals, as noted in the earlier part of this judgment, that the petitioner had executed a good conduct bond which was flouted thereafter. Scant respect was shown by the petitioner to the said bond executed by her. Considering this conduct, even if the petitioner now tenders an undertaking to this Court, we are circumspect that the said undertaking would have no meaning. Hence, the request for leniency is turned down.”

on 26 04 2021 on 27 04 1 cwp16o21(Reportable)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 16 OF 2021Chandrakala w o Ramlal Jadhav Age : 39 years Occupation : Agri R o Khadak Talav Wadarwadi Tq. & Dist. Jalna....PETITIONER VERSUS 1.The State of Maharashtra.Through its Section Officer Home DepartmentMantralaya Mumbai 32.2.The District Collector Jalna Tq. & Dist. Jalna.3.The Superintendent of Jail Aurangabad Central Jail Aurangabad....RESPONDENTS…Shri P.P. More Advocate for the petitioner.Shri R.V. Dasalkar APP for the respondents State.... CORAM : RAVINDRA V. GHUGE & B. U. DEBADWAR JJ.Reserved on : 06th April 2021.Pronounced on : 26th April 2021. on 26 04 2021 on 27 04 2 cwp16o21JUDGMENT: 1.Rule. Rule made returnable forthwith and heard finally by theconsent of the parties.2.By this petition the petitioner has challenged the order dated07.12.2020 passed by respondent No.2 vide which she has been detainedunder the provisions of the Maharashtra Prevention of DangerousActivities of Slumlords Bootleggers Drug Offenders Dangerous Persons Video Pirates Sand Smugglers and Persons Engaged in Black Marketing ofEssential Commodities Act 1981and3(2) of the MPDA Act 1981. It is contended in the petition that the on 26 04 2021 on 27 04 3 cwp16o21petitioner was sent behind bars and was granted the liberty to make arepresentation against the order of detention under Article 22(5) of theConstitution of India before the Advisory Board. 5. The learned advocate for the petitioner makes a statement on instructions that the petitioner does not desire to make suchrepresentation and prays that this Court may consider this petition.6.The petitioner contends that the impugned order is renderedillegal on the following grounds:False offences are registered against the petitioner underpolitical pressure.(l)Personal liberty of the petitioner cannot be taken away whichis guaranteed by Article 21 of the Constitution of India.(m)The petitioner is willing to file an affidavit that she shall neveragain indulge in manufacturing illicit liquor and the detention berestricted to the time already spent by the petitioner behind bars. 7.The learned prosecutor while strenuously opposing thispetition relies upon the affidavit in reply filed by the District Magistrate on 26 04 2021 on 27 04 5 cwp16o21Jalna. It is stated in the said reply as under :(e) ofMaharashtra Prohibition ActPending trial2Kadim Jalna365 2018 u s 65(a)(f) ofMaharashtra Prohibition ActPending trial3Kadim Jalna83 2019 u s 65(a)(e)(f) ofMaharashtra Prohibition ActPending trial4Kadim Jalna108 2019 u s 65(a)(e)(f) ofMaharashtra Prohibition ActPending trial5Kadim Jalna120 2019 u s 65(a)(e)(f) ofMaharashtra Prohibition ActPending trial6Kadim Jalna 129 2019 u s 65(a)(e)(f) ofMaharashtra Prohibition ActPending trial7Kadim Jalna 197 2019 u s 328 188 269 270 of IPC 65(a)(e)(f) ofMaharashtra Prohibition ActUnder policeinvestigation8Kadim Jalna 359 2020 u s 328 of IPC 65(a)of MaharashtraProhibition ActUnder policeinvestigationPreventive actionSr.No.Police StationChapter Case No. & Section Disposal11Kadim Jalna14 2018 u s 93 ofMaharashtra Prohibition ActFinal Bond2Kadim Jalna24 2019 u s 93 ofMaharashtra Prohibition ActFinal Bond on 26 04 2021 on 27 04 7 cwp16o21(j)Despite the above action the petitioner was not deterred andthe police failed to curb her illegal activities.(k)The Inspector of Police of the said police station conducted aconfidential enquiry which discloses that the localites do not dare toregister complaints against the petitioner since she has terrorized themwith the aid of goons. On the assurance of anonymity some of the localiteswho have suffered the atrocious acts of the petitioner have recorded theirstatements in camera. The statements of two persons namely A and B arepart of the record.(l)On the basis of the reports and such statements the PoliceInspector submitted his report to the detaining authority respondent No.2herein for initiating action under Section 3(1) of the MPDA Act 1981.This action was initiated through the Sub Divisional Police OfficerJalna and the Superintendent of Police Jalna. The SDPO verified thewitnesses A and B in view of their statements earlier recorded andsubmitted a report to respondent No.2.(for short “the said Act”).2.The above named detenu has been detained on theground that since 2018 she has been continuouslyengaging herself in the commission of violent activitieswhich has created terror in the minds of residentsresiding in the area of operation and has disturbed theeven tempo of their life as well as public order. It isfurther stated that prosecutions under ordinary law andpreventive action have not affected criminal activities ofdetenu which have continued unabated and therefore inorder to prevent detenu from continuing her criminalactivities she was detained under section 3 of the Act.3.Recent criminal activity of detenu relied upon in supportof the Detention Order consist ofC.R. No.299 2018registered at Kadim Police Station Jalna under section65(A)(E) of Maharashtra Prohibition Act on the basis ofcomplaint filed by Shri Ganesh Duryodhan Jadhav.of MaharashtraProhibition Act on the basis of complaint filed by ShriKailas Madhukar Cheke.C.R. No.83 2019 registeredat Kadim Police Station Jalna under Section 65(A)(E)(F) of Maharashtra Prohibition Act on the basis ofcomplaint filed by PSI Smt.Pallavi Bhausaheb Jadhav.of MaharashtraProhibition Act on the basis of complaint filed by PHCMariyo Banot Squot.C.R. No.120 2019 registered atKadim Police Station Jalna under Section 65(A)(E)(F)of Maharashtra Prohibition Act on the basis ofcomplaint filed by Shri Shrikumar Mohan Adep.C.R.No.129 2019 registered at Kadim Police Station Jalna under section 65(A)(E)(F) of Maharashtra ProhibitionAct on the basis of complaint filed by PN Shri ManojSahebrao Hiwale.C.R. No.197 2020 registered atKadim Police Station Jalna under sections 328 188 269 270 of IPC sec. 51(b) of Disaster Management Act 2005 Epidemic Disease Act 1897 sec. 65(A)(E)(F) of on 26 04 2021 on 27 04 10 cwp16o21Maharashtra Prohibition Act on the basis of complaintfiled by PN Shri Manoj Sahebrao Hiwale.C.R.No.359 2020 registered at Kadim Police Station Jalna under section 65(A)(E)(F) of Maharashtra ProhibitionAct on the basis of complaint filed by PC Shri RaviBhimrao Mehetre.4.In view of history of the detenu and the continuouscriminal activities of detenu confidential enquiry wasmade regarding the terror and fear in the minds ofpeople and during the enquiry two witnesses cameforward to give in camera statements on strictunderstanding that they will not be called to giveevidence in any court of law or before any authority.Their statements show that in the recent past the detenuand his associates had threatened witness A and abusedhim in a filthy language. The detenu and his associateshad assaulted witness A and threatened him not tocomplain against the detenu to the police. The detenuhad threatened witness B by pointing a knife and hadalso assaulted him. The detenu forcibly removed Rs.500from the pocket of witness B. Perusal of the statementsindicates that during all incidents public order wasdisturbed and because of threat of retaliation given bythe detenu the witnesses did not dare to approach thepolice.5.The detenu is produced before us through VideoConferencing and we have heard the detenu. We havealso heard the concerned Police Officer. We havecarefully perused the record and in our opinion there issufficient material for further detention of the detenu.”Place : Mumbai sd Date : 15 01 2021[JUSTICE xxx]Chairman Advisory Board sdState ofMaharashtra as she is pursuing her remedy in this petition. 10.We have gone through the order dated 21.01.2021 issued inthe name of the Governor of Maharashtra under Section 12(1) of theMPDA Act 1981 vide which the Government of Maharashtra confirmedthe decision of the District Magistrate in exercise of his powers conferredby Section 3 of the MPDA Act 1981 and directed the detention of thepetitioner for a period of one year from the date of detention. 11.Sections 3 8 10 and 11 of the MPDA Act 1981 read as under: “3.Power to make orders detaining certain persons.(1)The State Government may if satisfied with respect toany person that with a view to preventing him fromacting in any manner prejudicial to the maintenance ofpublic order it is necessary so to do make an orderdirecting that such person be detained.(2)If having regard to the circumstances prevailing or likelyto prevail in any area within the local limits of thejurisdiction of a District Magistrate or a Commissioner ofPolice the State Government is satisfied that it isnecessary so to do it may by order in writing direct on 26 04 2021 on 27 04 12 cwp16o21that during such period as may be specified in the ordersuch District Magistrate or Commissioner of Police mayalso if satisfied as provided in sub sectionexercisethe powers conferred by the said sub section :Provided that the period specified in the ordermade by the State Government under this sub sectionshall not in the first instance exceed six months but theState Government may if satisfied as aforesaid that it isnecessary so to do amend such order to extend suchperiod from time to time by any period not exceeding sixmonths at any one time.(3)When any order is made under this section by an officermentioned in sub sectionhe shall forthwith reportthe fact to the State Government together with thegrounds on which the order has been made and suchother particulars as in his opinion have a bearing on thematter and no such order shall remain in force for morethan twelve days after the making thereof unless in themeantime it has been approved by the StateGovernment.”“8.Grounds of order of detention to be disclosed to personsaffected by the order.(1)When a person is detained in pursuance of a detentionorder the authority making the order shall as soon asmay be but not later than five days from the date ofdetention communicate to him the grounds on whichthe order has been made and shall afford him theearliest opportunity of making a representation againstthe order to the State Government.(2)Nothing in sub sectionshall require the authority todisclose facts which it considers to be against the publicinterest to disclose.”“10.Reference to Advisory Board.In every case where a detention order has been madeunder this Act the State Government shall within threeweeks from the date of detention of a person under theorder place before the Advisory Board constituted by itunder section 9 the grounds on which the order has beenmade and the representation if any made by the personaffected by the order and in the case where the orderhas been made by an officer also the report by such on 26 04 2021 on 27 04 13 cwp16o21officer under sub sectionof section 3.”“11.Procedure of Advisory Boards.(1)The Advisory Board shall after considering the materialsplaced before it and after calling for such furtherinformation as it may deem necessary from the StateGovernment or from any person called for the purposethrough the State Government or from the personconcerned and if in any particular case the AdvisoryBoard considers it essential so to do or if the personconcerned desires to be heard after hearing him inperson submit its report to the State Government within seven weeks from the date of detention of theperson concerned.(2)The report of the Advisory Board shall specify in aseparate part thereof the opinion of the Advisory Boardas to whether or not there is sufficient cause for thedetention of the person concerned.(3)When there is difference of opinion among the membersforming the Advisory Board the opinion of the majorityof such members shall be deemed to be the opinion ofthe Board.(4)The proceedings of the Advisory Board and its report excepting that part of the report in which the opinion ofthe Advisory Board is specified shall be confidential.(5)Nothing in this section shall entitle any person againstwhom a detention order has been made to appear by anylegal practitioner in any matter connected with thereference to the Advisory Board.”12.In Kanuji S. Zala vs. The State of Gujarat AIR 1999 SC 2269 the Honourable Apex Court has held in paragraphs 4 5 and 6 as under : “4.In our opinion there is no substance in this contention.In none of the three cases relied upon by the learnedcounsel the point whether public order can be said tohave been disturbed on the ground that the activity ofthe detinue was harmful to the public health arose forconsideration. It appears that in those three cases thedetaining authority had not recorded such satisfaction.Moreover in those cases the detaining authorities had on 26 04 2021 on 27 04 14 cwp16o21referred to some incidents of beating but there was nomaterial to show that as a result thereof even tempo ofpublic life was disturbed. In this case the detainingauthority has specifically stated in the grounds ofdetention that selling of liquor by the petitioner and itsconsumption by the people of that locality was harmfulto their health. The detaining authority has also statedthat the statements of witnesses clearly show that as aresult of violence resorted to by the petitioner eventempo of the public life was disturbed in those localitiesfor some time. The material on record clearly shows thatmembers of the public of those localities had to runaway from there or to go inside their houses and closetheir doors. 5.What is required to be considered in such cases iswhether there was credible material before the detainingauthority on the basis of which a reasonable inferencecould have been drawn as regards the adverse effect onthe maintenance of public order as defined by the Act. Itis also well settled that whether the material wassufficient or not is not for the courts to decide byapplying an objective test as it is a matter of subjectivesatisfaction of the detaining authority. The observationmade by this Court in Om Prakash Vs. Commissioner ofPolice & Ors. 1988 Supp.SCC 576 that "as inPiyush Mehta Case the materials available on record inthe present case are not sufficient and adequate forholding that the alleged prejudicial activities of thedetenu have either affected adversely or likely to affectadversely the maintenance of public order within themeaning of Section 4(3) of the Act and as such theorder is liable to be quashed" are to be understood in thecontext of the facts of that case. 6.As already stated earlier in this case the detainingauthority has specifically mentioned in the grounds thatthe activity of the det e nu e was likely to cause harm to the public health and that by itself is sufficient toamount to affecting adversely the public order as definedby the Act. The detaining authority has also stated thatas a result of resorting to violence by the petitioner forcarrying on his bootlegging activity even tempo of publicorder has also disturbed on some occasions. In view ofthe material on record it cannot be said that the on 26 04 2021 on 27 04 15 cwp16o21satisfaction of the District Magistrate in this behalf wasnot reasonable or genuine.”491 the learned Division Bench ofthis Court by placing reliance upon reported judgments has concluded inparagraph 6 as under : “6.Reliance was also placed on the observations of anotherDivision Bench at Nagpur in the matter of2002 Bom.C.R.(Cri.)1616. This ismainly relied upon for the purpose of submitting that there is delay in passing the detention order. So far aspresent matter is concerned we may state that in on 26 04 2021 on 27 04 16 cwp16o21camera statements are recorded on 13th and 14thFebruary 2005. The events narrated by witnesses A Band C are of first week of January 2005 and secondweek of December 2004. In the matter before Nagpur Bench the detentionorder was passed on 30 11 2000. The date of recordingthe statements is not available in the reported judgment but in camera statements of witnesses A and B narratedthe incidents of June and August 2000 respectively.Thus the order happened to be passed after more thanfive months and three months since the incidentsreferred to in the two in camera statements. Even thejudgments of the Honble Supreme Court referred to andrelied upon by the Division Bench at Nagpur do not laydown ratio that delay in passing the order should befatal. In fact in the matter ofBom.C.R. 218 : A.I.R.1982 S.C. 8 referred in paragraph 7 of the judgmentrelied upon the Honble Supreme Court has held thatdelay ipso facto in passing the order after the incident isnot fatal to the detention of a person for in certain cases delay may be unavoidable or reasonable. What isrequired by law is that the delay must be specificallyexplained by the Detaining Authority.In the matter of2000(5) Bom.C.R.1070: A.I.R. 2000 S.C. 1146 theHonble Supreme Court held that there was no unduedelay in passing the order of detention as the inquiryinto the incident was completed in February and theorder was passed in April after going through two stages.In the matter before the Nagpur Bench delay wasmuch more than in the matter of Hasan Khanreferred to by NagpurBench in paragraph 10 of its judgment and we will bejustified in saying that the State is not obliged to explainthe delay. Even considering the observations in thematter of Smt. Hemlatareferred in paragraph 7of the judgment of Nagpur Bench the incidents referredto in in camera statements in that matter were morethan 3 months and 5 months old. In the matter at hands when the statements are recorded on 13th and 14thFebruary 2005 the incidents were one or two monthsold. We are therefore of considered view that in thismatter the delay is neither unreasonable nor inordinateand there appears no necessity to explain the same.Delay is not of such a magnitude that the same canvitiate the detention order itself.We have on our own referred to the judgment ofthe Honble the Apex Court in the matter ofA.I.R. 1994 S.C. 656. In thismatter the Supreme Court was pleased to quash thedetention order by taking into considerationunexplained delay. The detention order was passed onthe basis of some criminal cases against the detenue andalso the statements of the witnesses. The detention orderwas passed after five months and eight days from thedate of registration of last offence and more than 4months from the submission of the proposal. When thetime gaps in the matter before us are compared with thetime gaps in the reported matter it is evident that thetime gaps in the matter at hands cannot be termed asdelay. The things appears to have moved withinreasonable time required in practical life. The last twooffences registered against present petitioner are of theincidents dated 26 11 2004 and 30 12 2004. The lastoffence registered is within less than two months fromthe order passed by the Detaining Authority on 24 2 2005. The same is within ten days from the proposal bythe Crime Branch which recorded the statements on13th and 14th February 2005.Viewed as above we do not think that there is anyunreasonable or unexplained delay which is required tobe explained in the matter at hands. Consequently weare unable to accept the submission of learned Advocate on 26 04 2021 on 27 04 18 cwp16o21Shri Gorhe that the order deserves to be quashed onaccount of delay.We are fortified in taking such a view in the lightof decision in the matter of2002(9) S.C.C. 714. In this matter thematerial was collected against the detenue in the monthof July 2000 and proposal for detention was initiated inAugust 2000. The order of detention was passed inOctober 2000. It was argued that the delay having notbeen properly explained by the respondent State thesame should be accepted as ground for quashing theorder of detention. The High Court upheld the detentionorder by observing that the delay in the case was neitherinordinate nor unexplained. The Supreme Courtconfirmed the decision of the High Court by againrejecting the same contention.”(Emphasis supplied)PERIOD OF DETENTION 15.The learned counsel for the petitioner has strenuouslycontended that the impugned order of detention does not mention theexact period of detention. As recorded herein above we have found thatthe order of confirmation dated 21.01.2021 passed by the Government ofMaharashtra indicates that the period of detention is for one year fromthe date of detention. Nevertheless in Magar Pansingh Pimplethis Court has held in paragraph 7 as under : “7. By relying upon a decision of a Division Bench at Nagpurof this High Court in the matter of2004(1) Bom.C.R.(Cri.)1988(Supp.) S.C.C. 568. Eventually as rightlypointed out by the learned A.P.P. the case relied upon byNagpur Bench is overruled by the Supreme Court whiledeciding the matter of1990 Cri.L.J. 1140 by its observations inparagraphs 10 and 11 of the said judgment which readas follows :"The Act nowhere requires the Detaining Authorityto specify the period for which the detenue is required tobe detained. The expression "the State Government aresatisfied that it is necessary so to do they may by orderin writing direct that during such period as may bespecified in the order" occurring in sub sectionofsection 3 relates to the period for which the order ofdelegation issued by the State Government is to remainin force and it has no relevance to the period ofdetention.""..............…The observations made by theSupreme Court in Gurbux Biryani’s case 1988(Supp.)S.C.C. 568 that the scheme of the Maharashtra Act wasdifferent from the provisions contained in other similarActs and that section 3 of the Act contemplated initialperiod of detention for three months at a time are notcorrect. The scheme as contained in other Acts providingfor the detention of person without trial is similar.Neither under the Preventive Detention Act 1950 norunder the Maintenance of Internal Security Act orCOFEPOSA Act or National Security Act is the DetainingAuthority required to specify the period of detentionwhile making the order of detention against a person. Inthe absence of any period being specified in the orderthe detenue is required to be under detention for themaximum period prescribed under the Act but it isalways open to the State Government to modify orrevoke the order even before the completion of themaximum period of detention. An order of detention isnot rendered illegal on account of the DetainingAuthoritys failure to specify period of detention in the on 26 04 2021 on 27 04 20 cwp16o21order."the contention raised bythe learned Counsel for the Petitioner does not survive.Following the view in the matter of T. Devaki in A.I.R.1992 S.C. 979 in paragraph 8 as under : “8. Copies of the reports of the Chemical Analyst in both thematters which are registered against the petitioner on26 11 2004 and 30 12 2004 are available at paperbookpages 107 and 108 respectively. In both the matters analyst has reported the percentage of ethyl alcohol V. byV. and the reports conclude by saying that the materialcan be used for distillation of intoxicated liquor and thatit is not medicinal antiseptic toilet preparation nor aflavouring material. Advocates Shri Gorhe by placingreliance on the observations of Division Bench of thisHigh Court at Bombay in the matter of1996(2) Bom.Cri.C. 15 urged that since the sample of the matter sent toAnalyser has not been found to be harmful to cause on 26 04 2021 on 27 04 21 cwp16o21danger to life and public health this cannot be a validground for detention as held in unreported judgment ofthe in the case ofin Cri.W.P. No. 9488 Date of Decision : 6 10 1988.The argument is unsustainable for two reasons.Firstly the report of the Analyser is not relied upon fordemonstrating that the preparation which was foundwith the petitioner at the time of raids on 26 11 2004and 30 12 2004 was dangerous to public health. Thereports are relied upon to show that the State has madeout a prima facie case against the petitioner regardingmanufacturing of intoxicant material in breach of theprovisions of the Bombay Prohibition Act. As pointed outby learned Counsel for the petitioner by relying uponthe observations of another Division Bench of in thematter of1986(2)Bom.C.R. 537 : 1986 Cri.L.J. 1421 in order to justify theorder of detention under section 3 of the MPDA Act theDetaining Authority is required to satisfy itself of twoingredients the petitioner is bootlegger within themeaning of Clauseof section 2 of the Act andheis acting in any manner prejudicial to the maintenance ofpublic order. The reliance on the reports of the ChemicalAnalyser is mainly for the purpose of demonstrating thatthe Petitioner is a bootlegger. We may state here itselfthat there was enough material before the DetainingAuthority to arrive at such a conclusion. As can be seenfrom paragraph 5 of the reply filed by Shri R.N. Wagh the then Commissioner of Police Aurangabad therewere three offences registered against the petitionerunder the provisions of Bombay Prohibitions Act 1949 more particularly under sections 66(1)(b) and 65(f) ofthe said Act by Cantonment Police Station Aurangabad.Section 65(f) is pertaining to use or keeping inpossession any material still utensils or apparatus forthe purpose of manufacturing any intoxicant. Section66(1)(b) is pertaining to consumption use possessionor transport of any intoxicant. It appears that theproceedings under section 93 are taken up against thepetitioner in the years 2001 and 2003. These are theproceedings requiring the petitioner to show cause whyhe should not be ordered to execute a bond with sureties on 26 04 2021 on 27 04 22 cwp16o21for his good behaviour for such period not exceedingthree years. These are the preventive actions if notpreventive detention. During pendency of theseproceedings initiated by M.I.D.C. Waluj Police Station the petitioner seems to have shifted his activities in theterritorial jurisdiction of the said Police Station as canbe inferred from the fact that latest two offences underthe same provisions of Bombay Prohibitions Act 1949 are registered against the petitioner by M.I.D.C. Waluj Police Station on the basis of raids effected on 26 11 2004 and 30 11 2004. The magnitude of the contrabandrecovered during the two raids may be stated in brief. Inthe raid dated 26 11 2004 the petitioner is allegedlyfound to be in possession of 11 earthern pots eachcontaining litres of washalong with material of still which then wasnot active was recovered. The report of the Analyserlends support to the prosecution case that the materialallegedly found in possession of the Petitioner wasuseful for production of intoxicating liquor since thesample shows quite a high percentage of alcoholcontents.On this counts learned A.P.P. has also placedreliance upon the wording of section 2(a)(ii) of theM.P.D.A. Act which reads as follows "2. In this Act unless the context otherwiserequires "acting in any manner prejudicial to themaintenance of public order" means i)..... ii) in the case of bootlegger when he is engaged or he is making preparation for engaging in his activitiesas bootlegger which affect adversely or are likely toaffect adversely the maintenance of public order. "As rightly submitted by learned A.P.P. even theapprehension of the activities affecting adversely themaintenance of public order is sufficient for theDetaining Authority to order preventive detention of the on 26 04 2021 on 27 04 23 cwp16o21petitioner. In view of liberal wording in Clauseofsection 2(a) it can be debated whether the proof thatintoxicant material found with the petitioner isdangerous to health of public is really necessary. Afterall the petitioner is not selling his illicit liquor with ISImark. It is unauthorised and illegal production having nocontrol over its quality having no checks that it is notinjurious for human consumption. The courts cannotgive deaf ears to the frequency of reports regarding massfatalities as a result of consumption of illicit liquor. Theobservations of a Division Bench of this High Court recorded in the year 1988 and followed in the year1996 therefore may not be applicable to the fact situation after lapse of 17 years.”17.The Intent and Object of introducing the MPDA Act 1981which received assent of the President of India on 21.09.1981 andpublished in the Maharashtra Government Gazette Part IV Extraordinary on 23.09.1981 is as under : “An Act to provide for preventive detention ofSlumlords Bootleggers Drug offenders and Dangerouspersons for preventing their dangerous activitiesprejudicial to the maintenance of public orders.Whereas public order was adversely affected everynow and then by the dangerous activities of certainperson who are known as Slumlords Bootleggers andDrug offenders And whereas both Houses of the State Legislaturewere not in session And whereas having regard to the resources andinfluence of the person by whom the large scale onwhich and the manner in which the dangerousactivities were being clandestinely organized and carriedon in violation of law by them as Slumlords Bootleggersor drug offenders in the State of Maharashtra andparticularly in its urban areas the Government ofMaharashtra was satisfied that circumstances existedwhich rendered it necessary for him to take immediate on 26 04 2021 on 27 04 24 cwp16o21action to have a special law in this State to provide forpreventive detention of these three classes of person andfor matters connected therewith and therefore promulgated the Maharashtra Prevention of DangerousActivities of Slumlords Bootleggers and Drug OffendersOrdinance 1981 on the 11th June 1981 And Whereas it is expedient to replace the saidOrdinance by an Act State Legislature it is herebyenacted in Thirty Second Year of the Republic of India asfollows: ” 18.In Jaspalsingh Jagatsingh Vig vs. J.F. Rebeiro 1985 Mh.L.J.927 the learned Single Judge held that this Act was enacted with theintention of maintaining public order which was adversely affected onaccount of dangerous activities of a person. It is obvious that the purposeof the Act was to curb and prevent the dangerous activities being indulgedinto by a particular person which prejudicially affected the people at large.The learned Single Judge of this Court concluded that the detainingauthority ought to feel that the detenu’s activities already in existenceprior to the initiation of the proceedings for preventive detention shouldhave resulted in adversely affecting the maintenance of public order whichrealization could synchronize only at that point of time. It becomesmanifest that even for the purpose of attracting the provisions under theAct it is necessary for the detaining authority to show that these activitieshave a nexus with the maintenance of public order and which is beingadversely affected by reason of the said activities. Merely that a person isdealing in illicit liquor would not be sufficient to place his case within the on 26 04 2021 on 27 04 25 cwp16o21clutches of Section 3 of the Act which can only be done if such activitieswould entail into causing any danger to the maintenance of public order.IN CAMERA STATEMENTS19.The record reveals that the in camera statements of the twowitnesses A and B and other material collected during the process ofenquiry was supplied to the petitioner after due verification by thesuperior police officer i.e. SDPO. The said officer has conductedverification of the two witnesses. Though this aspect has not been raisedby the petitioner we are considering the same in view of the law laiddown in Smt.Shubhangi Tukaram Sawant vs. Shri R.H. Mendonca andothers 2001 ALL MR68. As such we do not find that Article 22(5)of the Constitution of India has been violated.20.In Jaspalsinghthis Court dealt with similar featuresas are found by us in the case in hand. In the reported judgment one ofthe witnesses whose statement was recorded in camera was suspected tobe a police informer and the associates of the detenu therein had attackedhim for the reason that he was informing the police about theirbootlegging activities. The learned Single Judge therefore concluded inJaspalsinghthat the so called threats should have a direct nexuswith the bootlegging activities and such act of threat or assault should bedirected against such persons who were adversely affecting the illicit on 26 04 2021 on 27 04 26 cwp16o21business of liquor so as to calculatively cause fear or generate a feeling ofinsecurity to the people from the society.21.In the case in hand witness A was accosted by the petitionerand her two accomplices who whipped out a knife and abused him. Theystated that the said witness was informing the police about their illicitliquor activities and they then slapped the said witness. The petitioner hadthreatened the witness with murder if he approached the police. In thebackdrop of such similar features the learned Single Judge in Jaspalsingh(supra) had concluded that “that is how the circuit even on facts becomescomplete as per the allegations unfolded in the grounds. Consequently itis not permissible to consider the so called acts of threat or assault de horsor independently of the main object which revolves around bootleggingactivity which forms a pivot for the entire activities”.22.In our view therefore the statements of the two witnesses who have shown the courage albeit on the condition of anonymity wouldindicate that the act of the petitioner in threatening and assaulting thesuspected informants was clearly to promote the illicit liquor business anddeter such witnesses from making statements before the police.SUBJECTIVE SATISFACTION23.In Vinod Vithal Rane vs. R.H. Mendonca 2001Mh.L.J.437 this Court concluded that in matters of preventive detention on 26 04 2021 on 27 04 27 cwp16o21subjective satisfaction recorded by the detaining authority cannot belightly interfered with by the Court. The Court cannot sit over thesubjective satisfaction recorded by the detaining authority. Such subjectivesatisfaction once recorded by the detaining authority by virtue of Section5 A of the MPDA Act 1981 cannot be lightly interfered with. Section 5 Apostulates that the order shall not be deemed to be invalid or inoperative even assuming that the subjective satisfaction recorded by the detainingauthority is that the normal law of the land is inadequate or ineffectivewhich is a ground for detention and such order shall not be deemed to beinvalid or inoperative merely because of specified infirmity in one or someof the grounds. 24.It was further held in Vinod Vithal Ranethat theMPDA Act 1981 is a special enactment intended to deal with a specialsituation and specified persons in a special manner. Once a personqualifies the definition of a specified person under the MPDA Act 1981 then inevitably in a larger public interest the said person will have to bedealt with in accordance with the provisions of the MPDA Act 1981 and inno other manner provided the detaining authority records it s satisfactionregarding the necessity to detain that person to prevent him fromindulging in any activity which would tend to prejudicially affect themaintenance of public order. Once a person fulfills the requirement of thedefinition of a specified person under the MPDA Act 1981 it is not open on 26 04 2021 on 27 04 28 cwp16o21to the detaining authority to exercise the authority arbitrarily to select oneor other course even while dealing with the same or exactly similarsituation. Non mentioning of action taken under the Criminal ProcedureCode or the Bombay Police Act in the grounds of detention ipso facto would not render the detention order bad or illegal. Once a person fulfillsthe requirement of the definition of a specified person it wouldpresuppose that the normal law of the land has become ineffective orinadequate qua that person and that there is no other option but to takerecourse to the powers under the MPDA Act 1981. Such is the view of theHonourable Apex Court in the matter of Borjahan Gorey vs. the State ofWest Bengal 2 SCC 550.CONCLUSION25.On the basis of the material before us we are convinced thatrespondent No.2 as well as the State having genuine subjectivesatisfaction have rightly come to the conclusion that not only has thepetitioner indulged in bootlegging activities by resorting to manufacturingand selling illicit liquor she was terrorizing the witnesses so as to deterthem from making any statement to the police. Upon suspecting that oneof the in camera witnesses was providing information to the policeregarding the bootlegging activities of the petitioner she herself hadintimidated and threatened the witness with murder for making any on 26 04 2021 on 27 04 29 cwp16o21statement before the police. 26.This Court has held in Ramesh Balu Chavan vs. TheCommissioner of Police and another 2017 ALL MR3683 that oncethe detaining authority has arrived at the subjective satisfaction and whenillicit liquor containing ethyl alcohol or methyl alcohol causes ill effectsover a human body or regular consumption would lead to death noground can be said to have been made out for quashing the detentionorder. It also reflects from the said case that several poverty strickenpeople or persons with meager sustainability had become borrowers forpurchasing such liquor upon being addicted and there are instances whengoons behaving as recovery agents for a “Hathbhatti Thekedar” usedforce for recovery of due amounts. The detenu in that case used to hold aknife for recovering dues and as noted by this Court the wife of adrunkard husband had handed over her gold mangalsutra and ear rings tothe detenu.27.Insofar as the request of the petitioner to take a lenient viewin this matter we find that the said request could have been considered ifthe petitioner did not have a record of crimes offences registered againsther. However the record reveals as noted in the earlier part of thisjudgment that the petitioner had executed a good conduct bond whichwas flouted thereafter. Scant respect was shown by the petitioner to thesaid bond executed by her. Considering this conduct even if the petitioner on 26 04 2021 on 27 04 30 cwp16o21now tenders an undertaking to this Court we are circumspect that thesaid undertaking would have no meaning. Hence the request for leniencyis turned down. 28. In view of the above we do not find that the petitioner hasmade out any ground for quashing the impugned detention order. ThisCriminal Writ Petition is therefore dismissed. Rule is discharged.(RAVINDRA V. GHUGE J.)Per B.U. Debadwar J. : 29.I have gone through the above judgment delivered by myesteemed brother and I am in complete agreement with the same. I wishto add to the said judgment.30.In case at hand the District Magistrate Jalna a competentauthority under section 3 of the MPDA Act has passed the order ofdetention on 07.12.2020 detained the writ petitioner detenu to theCentral Prison Harsul on the same day and served the copy of grounds ofdetention on her and informed her relatives about her detention. TheDistrict Magistrate Jalna then on the very day forwarded the detentionorder and grounds of detention to the State Government upon which theState Government applied its mind and confirmed the same on10.12.2020. It is pertinent to note that the writ petitioner detenu could on 26 04 2021 on 27 04 31 cwp16o21have made representation in respect of her detention to the StateGovernment on or before 10.12.2020 but in vain though an opportunitywas given to her. The State Government had referred the matter ofdetention of the writ petitioner to the Advisory Board on 11.12.2020. Videletter dated 21.12.2020 the writ petitioner detenu was informed inwriting about the date of hearing through video conferencing fixed on 8thJanuary 2021 at 3.00 p.m. On that day the Advisory Board heard the writpetitioner detenu through video conferencing and passed it’s order on15.01.2021 and communicated it’s opinion to the State Government onthe very day. Upon receiving the report of Advisory Board on 21.01.2021respondent No.1 State of Maharashtra passed the order directing thatthe detention of the writ petitioner detenu be continued for a period ofone year from the date of detention. 31.From the aforesaid particulars we find that in case at hand allthe mandatory compliances under various provisions of the MPDA Act discussed above have been complied with within stipulated time.Therefore we have no hesitation to hold that the impugned detentionorder is technically perfect in all respect. On this backdrop now we turnto the aspect of the correctness and legality of the detention order. 32.On close scrutiny of the record we find that the writpetitioner detenu deals with manufacturing and selling of illicit liquorwithin the area of Saraswati colony Nutun Vasahat Old Jalna where she on 26 04 2021 on 27 04 32 cwp16o21resides. As many as 8 prohibition cases had been registered against herduring the period of 15.10.2018 to 29.07.2020. All these cases are forpossessing the materials still utensils for the purpose of manufacturingany intoxicant with the help of such material possesses and sale ofintoxicant and transport of intoxicant. Out of these eight prohibition cases first six cases were pending in the Court and remaining two were underinvestigation. In addition to eight prohibition cases referred above twomore cases under section 93 of the Maharashtra Prohibition Act werepending before the District Magistrate Jalna for taking preventive actionagainst the writ petitioner.33.On the basis of material on record the District Magistrate Jalna has also observed in his report that inspite of taking preventiveaction under section 93 no change took place in the attitude and conductof the writ petitioner detenu. She has continued her illegal activities as toprevious. Since the illicit liquor manufactured by the writpetitioner detenu is spurious there is every danger to the person whoconsumes the same. Many age old and young persons of the localityaddicted to such spurious illegal liquor as the writ petitioner detenu hasspread her illegal business in the locality in large scale and made availablethe same at cheaper rate. So addicted young person after consuming thespurious liquor disturb the peace and tranquility and cause thedisturbances in daily routine of the locality. on 26 04 2021 on 27 04 33 cwp16o2134.C.A. report in respect of Crime No.120 2019 makes it clearthat the substance which was seized from the writ petitioner detenu wascontaining ethyl alcohol and it can be used for the distillation ofintoxicating liquor. It is pertinent to note that in the entire Writ Petitionnowhere the petitioner detenu says that the substance alleged to havebeen seized time and again from her in eight prohibition cases mentionedin the report was not illicit liquor but it was the substance which was notharmful for consumption of human being.35.In view of the above I concur with the judgment of myesteemed brother in dismissing this Writ Petition. kps(B. U. DEBADWAR J.)

Merely because the victim’s friends were produced as witnesses, it cannot be said that their evidence is unreliable: Sikkim High Court

The fact that the Prosecution chose only four friends of the victim as witnesses cannot be termed as cherry picking as the protection of the identity of the victim is of paramount importance in such offences and all efforts ought to be made to ensure confidentiality as done in the instant matter, to prevent stigmatization and ostracization of the victim for no fault of hers. This was said in the case of Maheshwar Singh vs State Of Sikkim [Crl.A. No.06 of 2020] by Justice Meenakshi Madan Rai in the High Court of Sikkim  The facts of the case are that the Appellant is aggrieved by the impugned Judgment and Order on Sentence, both dated 26.02.2020, of the Learned Special Judge, by which the Appellant was convicted for the offence under Section 354A(1)(i) of the IPC and sentenced to undergo Rigorous Imprisonment for a period of one year and six months and to pay a fine of Rs.25,000. Hence, an appeal was filed Appellant advanced the argument that FIR is suspicious as there are unexplained subsequent insertions on it pertaining to the age of the victim and the period of offence. Prosecution witnesses are four close friends of the victim and therefore interested witnesses, rendering their evidence unreliable. P.Ws.14 and 15 are minor witnesses whose competence to testify was not considered by the Learned Trial Court. Further, the victim falsely implicated the Appellant as she was weak in Physics, the Appellant’s subject and his constant monitoring irked her.   Learned Assistant Public Prosecutor contended that the evidence of P.Ws.13, 14, 17 and 18, colleagues of the victim duly corroborate her evidence pertaining to the Appellant’s conduct towards her. The victim has revealed that he was luring her with the promise of good marks and under such guise, touching her inappropriately. P.W.20, a Teacher of the School, who was informed about the incident, substantiated the Prosecution case. That, the delay in lodging of the FIR was on account of the victim harbouring the anxiety that it would adversely affect her studies, the Appellant having threatened to give her low marks. The Court referred to the case of State of Himachal Pradesh vs. Prem Singh [Criminal Appeal No. 44 of 2002], wherein the Supreme Court said that “So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition-bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR”.  

THE HIGH COURT OF SIKKIM : GANGTOK Criminal Appellate Jurisdiction) DATED : 20th of April 2021 SINGLE BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI JUDGE Crl.A. No.020 Maheshwar Singh versus State of Sikkim Appeal under Section 374(2) of the Code of Criminal Procedure 1973 Appearance Mr. N. Rai Senior Advocate with Ms. Malati Sharma Advocate for the Appellant. Ms. Pema Bhutia Assistant Public Prosecutor for the JUDGMENT Meenakshi Madan Rai J. The Appellant is aggrieved by Judgment and Order on Sentence both dated 26.02.2020 of the Learned Special Judge Protection of Children from Sexual Offences Act 2012 West Sikkim at Gyalshing in Sessions TrialCase No.019by which the Appellant was convicted for the offence under Section 354A(1)(i) of the Indian Penal Code 1860 and sentenced to undergo Rigorous Imprisonment for a period of one year and six months and to pay a fine of Rs.25 000 only. No default clause of imprisonment is reflected. Crl.A. No.020 2 Maheshwar Singh vs. State of Sikkim Before this Court Learned Senior Counsel for the Appellant advanced the argument that Exhibit 3 the First Information Report is suspicious as there are unexplained subsequent insertions on it pertaining to the age of the victim and the period of offence. As per Exhibit 3 the offence purportedly took place between June 2018 to May 2019 but the Charge specifies the date of offence as “28.05.2019” on which date the Appellant was on Casual Leave hence the alleged offence cannot be foisted on him. Exhibit 5 the Medical Report of the victim reveals no injuries on her person while the evidence of P.W.20 is unreliable as he bore animosity towards the Appellant having been caught cheating in Class by the Appellant when he was a Student. P.Ws.13 14 17 and 18 are four close friends of the victim and therefore interested witnesses rendering their evidence unreliable. P.Ws.14 and 15 are minor witnesses whose competence to testify was not considered by the Learned Trial Court. P.Ws.2 and 4 the parents of the victim neither witnessed the incident nor were they informed of it by the victim as their evidence is hearsay it ought to be ignored. That the Prosecution alleges that Minutes were drawn up after a Meeting took place between the Teachers victim’s parents the victim and her friends following the incident. The Minutes being unavailable in the records casts doubts on such a Meeting having been convened. P.W.21 the Investigating Officer failed to explain this shortcoming. The Attendance Register of 28.05.2019 has also not been submitted by the Prosecution to fortify the presence of the victim in School on that day. P.W.4 was disinterested in the matter as reflected in the Crl.A. No.020 3 Maheshwar Singh vs. State of Sikkim evidence of the School Principal P.W.10 and the delay in lodging the FIR is unexplained. On this count reliance was placed on Mohd. Ali alias Guddu vs. State of Uttar Pradesh1 and Rajesh Patel vs. State of Jharkhand2. The Scribe of the FIR was not examined making the contents suspicious. That the victim implicated the Appellant as she was weak in Physics the Appellant’s subject and his constant monitoring irked her. That the victim having earlier obtained the benefits of compensation in a POCSO matter is attempting to obtain an identical benefit herein. That the Learned Trial Court failed to appreciate the evidence in its proper perspective and erroneously convicted the Appellant. Hence the impugned Judgment and Order on Sentence be set aside. Vehemently repudiating the arguments set forth by Learned Senior Counsel for the Appellant Learned Assistant Public Prosecutor contended that the evidence of P.Ws.13 14 17 and 18 colleagues of the victim duly corroborate her evidence pertaining to the Appellant’s conduct towards her. The victim has revealed that he was luring her with the promise of good marks and under such guise touching her inappropriately. P.W.20 a Teacher of the School who was informed about the incident substantiated the Prosecution case. That the delay in lodging of the FIR was on account of the victim harbouring the anxiety that it would adversely affect her studies the Appellant having threatened to give her low marks. Such threat held out is corroborated by the evidence of P.Ws.7 11 and 12. The other 17 SCC 272 23 SCC 791 Crl.A. No.020 4 Maheshwar Singh vs. State of Sikkim reason for the delay was that on her complaint at the Parent Teacher Meeting of her inability to understand the Appellant’s teaching the School authorities had leaned in his favour therefore she assumed that they would take a similar stand. The emotional and mental trauma on account of the conduct of the Appellant towards her was another relevant issue for the delay. That it is now settled law that delay in lodging the FIR in such matters ought not to adversely affect the Prosecution case. To buttress this submission reliance was placed on the Judgment of this High Court in Lakhi Ram Takbi vs. State of Sikkim3. That it is unexplained as to why the Students used to be called individually to the Physics Laboratory by the Appellant if he was taking classes. That non filing of the Minutes of the Meeting does not adversely affect the Prosecution case as the persons who were present at the Meeting have been duly examined as witnesses and have supported the Prosecution case. That the admission of the Appellant that he had touched the victim inappropriately was buttressed by the evidence of P.W.10. The Appellant’s family made concerted efforts through cell phone calls to amicably compromise the matter which was refused by the victim. That the victim has given consistent evidence and minor discrepancies if any will not affect the Prosecution case. To fortify this submission reliance was placed on Vijay alias Chinee vs. State of Madhya Pradesh4. That it is now well established that a Teacher should be like a parent and not harass the Student this submission was buttressed by the ratio 3 2019 Cri.LJ 2667 48 SCC 191 Crl.A. No.020 5 Maheshwar Singh vs. State of Sikkim in State of Sikkim vs. Sashidhar Sharma5. That outraging modesty is a heinous crime as laid down by the Hon’ble Supreme Court in Ajahar Ali vs. State of West Bengal6. Hence the Learned Trial Court was justified in convicting and sentencing the Appellant accordingly the Appeal merits a dismissal. In rebuttal Learned Senior Counsel for the Appellant posited that the evidence of P.W.10 regarding the admission of the Appellant at the Meeting that he had touched the victim cannot be relied on as it traverses beyond his Section 161 Cr.P.C. Statement and his apology to P.W.4 is unproved. The allegation that the Appellant’s family tried to compromise the matter with the victim is also unsubstantiated devoid as it is of documents or call details. The rival submissions canvassed by Learned Counsel for the parties were heard at length and due consideration afforded thereof. All evidence and documents on record were thoroughly examined and the impugned Judgment and citations made at the Bar perused. The question that falls for consideration before this Court is whether the Learned Trial Court was in error in having convicted the Appellant and sentencing him as per the impugned Judgment and Order on Sentence. In this context it is relevant to advert briefly to the facts of the case. On 15.06.2019 the Station House OfficerNaya Bazaar Police Station West Sikkim received Exhibit 3 lodged jointly by P.Ws.2 and 4 parents of the victim 5209 AIC 635610 SCC 31 Crl.A. No.020 6 Maheshwar Singh vs. State of Sikkim informing therein that their minor daughter P.W.1 the victim aged 17 years studying in a Government Secondary School in Class XII was molested by the Appellant from June 2018 to May 2019. Zero FIR of the same date under Section 354A of the IPC read with Section 10 of the POCSO Act was registered against the Appellant and forwarded to Soreng Police Station which had territorial jurisdiction in the matter. Soreng P.S. Case bearing FIR No.07(06)2019 dated 15.06.2019 under the same provisions of law supra was registered. Investigation revealed that the Appellant a resident of Bihar was appointed as a Mathematics Teacher in a Government Senior Secondary School on 10.05.1988. The victim was a Science Student in the same School. That the Appellant had inappropriately touched the victim on several occasions. Consequently Charge Sheet came to be filed against him under Section 354A of the IPC read with Section 10 of the POCSO Act. The Learned Trial Court framed Charge under Section 354 A(1)(i) of the IPC and Section 9(f) of the POCSO Act. On his plea of “not guilty ” the Prosecution proceeded to examine twenty one witnesses including the I.O. of the case on closure of which the Appellant was examined under Section 313 Cr.P.C. where he claimed to have been falsely implicated in the case by the victim with the help of P.W.20 and other Teachers of the School. The Learned Trial Court after considering the entire evidence on record concluded that the Prosecution had established its case under Section 354A(1)(i) of the IPC. It also observed that the Prosecution failed to prove that the victim was a minor as defined under Section 2(1)(d) of the POCSO Act. Crl.A. No.020 7 Maheshwar Singh vs. State of Sikkim Consequently the Appellant was acquitted of the offence under Section 9(f) of the POCSO Act and convicted and sentenced for the offence under Section 354 A(1)(i) of the IPC as per the impugned Judgment and Order on Sentence. The offence of sexual harassment and penalty thereof find place in Section 354A of the IPC. Section 354A(1)(i) of the IPC with which we are presently concerned inter alia provides that a man committing any of the following acts “(i) physical contact and advances involving unwelcome and explicit sexual overtures ................” shall be guilty of the offence of sexual harassment. Section 354A(2) inter alia lays down that any man who commits the offence specified in Clause of Section 354A(1) shall be punished with Rigorous Imprisonment for a term which may extend to three years or with fine or with both. It is imperative to carefully walk through the evidence of the Prosecution Witnesses to assess whether the Prosecution has indeed established its case beyond a reasonable doubt. The evidence of P.W.1 the victim that her father had complained at a Parent Teacher Meeting in 2018 that she did not understand Physics the subject taught by the Appellant was corroborated by the evidence of P.W.15 and investigation conducted by P.W.21 the I.O. revealed as much. This fact withstood the cross examination of the witnesses. Now to deal with the incident alleged to have taken place on 28.05.2019. The Defence Counsel submitted that the Appellant was absent on the date of the alleged incident i.e. 28.05.2019. Since the Appellant asserts that he was absent on 28.05.2019 the date of the alleged incident the onus falls on Crl.A. No.020 8 Maheshwar Singh vs. State of Sikkim him to establish the assertion. He failed to buttress the assertion by any documentary or other evidence save his verbal claim under Section 313 Cr.P.C. A suggestion was made to P.W.20 under cross examination that on the relevant day P.W.20 was in charge of teaching Physics Practicals to insinuate that the Appellant was absent. The witness denied this suggestion. In the absence of proof the claim of the Appellant cannot be countenanced. According to P.W.1 the Appellant made her bolt the door from inside when she was alone with him attending tuitions in the Physics Laboratory where he fondled her breasts rested his head on her chest and kissed her despite her protests. That on 27.05.2019 the Appellant had taunted her for sitting with some boys of her Class while doing Maths. On the next date i.e. 28.05.2019 during the fourth period when they had a Chemistry Class with the Appellant he called the Students to the Physics Laboratory. He enquired from her whether she was offended with his reprimanding her the day before and told her not to sit with other boys as that made him jealous. He also told her that he gave her good marks because he cared for her and promised to give her very good marks in her Practical Lessons. Thereafter he began rubbing her thighs touching her body and kissing her cheeks. She crossed her arms across her chest to protect herself but he forcefully tried to remove her arms with the assurance that nothing would happen. She collected her books left the room and told her four friends viz. P.Ws.13 14 17 and 18 of the incident. These four witnesses deposed that she came out of the Physics Laboratory crying and narrated to them that the Appellant had touched her inappropriately. On the next Crl.A. No.020 9 Maheshwar Singh vs. State of Sikkim date i.e. 29.05.2019 she informed P.W.20 of the incident who told her that the matter ought to be reported. Their Examinations started soon after in which she was engrossed. On 13.06.2019 she was asked by P.W.20 P.W.10 and a lady Teacher to report to the Reading Corner which she accordingly complied with and narrated all the incidents to them. On enquiry by P.W.10 as to why she had not informed them earlier she told them that earlier when she had complained about not understanding the way the Appellant taught P.W.10 and the School authorities had leaned in his favour and she anticipated the same response. P.W.10 suggested transferring the Appellant to solve the problem but she insisted on making a complaint against the Appellant. She informed her mother who told her to take steps as advised by the School. On the next date i.e. 14.06.2019 P.W.10 again asked her to rethink about her complaint whereupon she requested that her father be called. P.W.10 extended to her the option of calling all the Science Students or only her four friends who were familiar with the incident she opted for the latter. At the Meeting held in the Auditorium on the same day i.e. 14.06.2019 the Teachers the Appellant her father and her four friends were present in whose presence she narrated the incident. That although at the Meeting the Appellant initially denied the allegations he finally admitted he had made a mistake and asked to be forgiven for his acts. She then called the Child Helpline and furnished all details to them. She also stated that the wife and daughter of the Appellant requested her not to lodge the Complaint and the father of P.W.13 also discouraged her from lodging a Report as it Crl.A. No.020 10 Maheshwar Singh vs. State of Sikkim would damage her reputation but she was insistent in her stand of lodging a Complaint. The cross examination conducted did not decimate any of the evidence of the victim reflected supra. P.W.2 the victim’s mother stated that she was informed of the incident by her daughter. That the victim out of fear did not disclose the matter to anyone. P.W.1 had also informed P.W.2 that the Appellant had told her that he would favour her with good marks in her Practical Classes to enable her in her College admissions. Her evidence stood the test of cross examination. P.W.4 the victim’s father attended the Meeting convened on 14.06.2019. His evidence supported that of P.Ws.1 and 2. He also stated that the Principal reprimanded the Appellant for his behaviour upon which he apologized to P.W.4. P.W.7 was the Social Worker under the District Child Protection Unit of the relevant area who was informed by the victim that she had been molested by the Appellant from June July 2018 when she was studying in Class XI. She was apprehensive and crying when brought to the Counselling Centre and worried about the impact of the incident on her academics after the inappropriate acts of the Appellant perpetrated on her. Her evidence was not demolished under cross examination. P.W.8 the Principal of the Senior Secondary School which the victim had earlier attended testified that she was a brilliant Student. P.W.10 while supporting the evidence of P.Ws.1 2 and 4 regarding the inappropriate acts of the Appellant as informed by P.W.1 stated that towards the end of the Meeting the Appellant admitted that he had touched the victim. His evidence remained unscathed by cross examination. P.Ws.11 12 15 16 and 20 are Crl.A. No.020 11 Maheshwar Singh vs. State of Sikkim Teachers of the same School who were present at the Meeting held on 14.06.2019. They were given an inkling of the offence committed by the Appellant on the victim by P.W.20 to whom P.W.1 had narrated the incident in the company of P.W.13 her friend. The evidence of the Prosecution Witnesses corroborated the evidence of P.W.1. The evidence of the Prosecution Witnesses that the Appellant had admitted to committing a mistake by touching the victim inappropriately has not been demolished. The evidence of P.W.20 corroborates and substantiates the evidence of P.Ws.1 11 12 13 15 16 17 and 18. Nothing inconsistent was stated in the cross examination of the Prosecution Witnesses to cast doubts on the veracity of their evidence nor was their evidence in chief decimated. Although the Appellant had sought to make out a case that P.W.20 had acrimonious relations with him and stated as much in his Statement under Section 313 Cr.P.C. elaborating that P.W.20 used to be a Student in the same School in 2009. That the Appellant had caught him cheating in Class upon which P.W.20 had threatened him and after Examinations he saw him on the road with two three boys. He continued to threaten the Appellant thereafter. It is not the Appellant’s case that he reported the misbehaviour of P.W.20 to the Principal or to his colleagues at any point in time nor did he report the matter to the Police. His allegation being devoid of evidence fails to inspire the confidence of this Court. The argument of the Appellant that Exhibit 3 is unproved as the Scribe was not examined holds no water for the fact that P.Ws.2 and 4 who have signed on Exhibit 3 have not Crl.A. No.020 12 Maheshwar Singh vs. State of Sikkim only identified their signatures on the document but have also vouched for and proved the contents thereof. The insertions on Exhibit 3 with regard to the age of the victim and the period of molestation does not prejudice the Appellant. The allegation that the victim falsely implicated the Appellant as she was weak in his subject is not garnered by any evidence. Furnishing of Answer Sheets of the victim of two dates i.e. 16.02.2019 and 25.03.2019 by the Appellant does not suffice to establish that she was either weak in the subject or that she would falsely implicate him only for this purpose. The argument raised by Learned Senior Counsel that P.Ws.14 and 15 are minors and their competence to testify was not examined by the Court is a rather frail argument apart from which even if their evidence is blindsided the evidence of the other Prosecution Witnesses have withstood cross examination and substantiate the Prosecution case with regard to the inappropriate acts perpetrated by the Appellant on the victim by touching her private parts. While observing that the evidence of the victim herein is cogent consistent and cannot be said to be untruthful or motivated it is appropriate to refer to the decision of the Hon’ble Supreme Court in State of Maharashtra vs. Chandraprakash Kewalchand Jain7 wherein it was held inter alia as follows “16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution 71 SCC 550 Crl.A. No.020 13 Maheshwar Singh vs. State of Sikkim must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix there is no rule of law or practice incorporated in the Evidence Act similar to illustration to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged the court should ordinarily have no hesitation in accepting her evidence. ” The argument that the Attendance Register was not submitted to establish that the victim was present in School on the relevant day is preposterous in the face of the evidence given by the victim herself that she was present on that day. The Appellant has failed to furnish any evidence in contradiction thereof. It was also contended that no injuries were found on the victim’s body as per the Medical Report. This is an incongruous argument as the victim has nowhere stated that there was use of physical force on her save to the extent that he made efforts to remove her arms from across her chest. The non seizure of the Minutes of the Meeting may be a shortcoming committed by the I.O. but it in no way demolishes the Prosecution case as the participants to the Meeting have deposed as Prosecution Witnesses unravelling what transpired at the Meeting. In this context relevant reference may be made to the ratio in Karnel Singh vs. State of Crl.A. No.020 14 Maheshwar Singh vs. State of Sikkim Madhya Pradesh8 wherein the Hon’ble Supreme Court while expressing dissatisfaction at investigation conducted observed inter alia as follows “5. Notwithstanding our unhappiness regarding the nature of investigation we have to consider whether the evidence on record even on strict scrutiny establishes the guilt. In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. ......” In State of Karnataka vs. K. Yarappa Reddy9 it was held inter alia as under “19. .......even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer s suspicious role in the case. ......” The evidence on record in the instant matter having been thoroughly examined no contradictions appear therein to demolish or lend doubt to the Prosecution case. The reasons for the delayed lodging of the FIR have been enumerated by the victim. I find no reason to disbelieve the victim that she was apprehensive of the outcome of such a step on her academics. The Hon’ble Supreme Court Gangabhavani vs. Rayapati Venkat Reddy and Others10 has inter alia “19. The case of the prosecution cannot be rejected solely on the ground of delay in lodging the FIR. The court furnished by the has to examine the explanation observed as under 85 SCC 518 98 SCC 715 1015 SCC 298 Crl.A. No.020 15 Maheshwar Singh vs. State of Sikkim prosecution for explaining the delay. There may be various circumstances particularly the number of victims atmosphere prevailing at the scene of incidence the complainant may be scared and fearing the action against him in pursuance of the incident that has taken place. If the prosecution explains the delay the court should not reject the case of the prosecution solely on this ground. incident as narrated by the Therefore the entire witnesses has to be construed and examined to decide whether there was an unreasonable and unexplained delay which goes to the root of the case of the prosecution and even if there is some unexplained delay the court has to take into consideration whether it can be termed as abnormal. ......” The allegation that the victim’s father did not take the matter seriously is only a perception of the Appellant besides this Court has oft referred to the ratio in State of Himachal Pradesh vs. Prem Singh11 wherein the Hon’ble Supreme Court inter alia laid down as follows: “6. So far as the delay in lodging the FIR is concerned the delay in a case of sexual assault cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India more particularly rural areas it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. ......” The fact that the Prosecution chose only four friends of the victim as witnesses cannot be termed as cherry picking as the protection of the identity of the victim is of paramount importance in such offences and all efforts ought to be made to ensure confidentiality as done in the instant matter to prevent stigmatization and ostracization of the victim for no fault of hers. Merely because the victim’s friends were produced as witnesses it cannot be said that their evidence is unreliable. Their evidence consistently supports that of P.W.1. Apposite reference on this aspect may be made to the ratiocination of the Hon’ble Supreme 111 SCC 420 Crl.A. No.020 16 Maheshwar Singh vs. State of Sikkim Court in State of Rajasthan vs. Kalki and Another12 wherein it was held inter alia as under “7. As mentioned above the High Court has declined to rely on the evidence of PW 1 on two grounds:she was a “highly interested” witness because she “is the wife of the deceased” andthere were discrepancies in her evidence. With respect in our opinion both the grounds are invalid. For in the circumstances of the case she was the only and most natural witness she was the only person present in the hut with the deceased at the time of the occurrence and the only person who saw the occurrence. True it is she is the wife of the deceased but she cannot be called an “interested” witness. She is related to the deceased. “Related” is not equivalent to “interested”. A witness may be called “interested” only when he or she derives some benefit from the result of a litigation in the decree in a civil case or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be “interested”. In the instant case PW 1 had no interest in protecting the real culprit and falsely implicating the respondents. ......” In the light of discussions that have emanated above in my considered opinion no reason emerges to disturb the conclusion arrived at by the Learned Trial Court vide its impugned Judgment and Order on Sentence. Consequently the Appeal fails and is accordingly dismissed. The Appellant shall surrender before the Court of the Learned Special Judge Protection of Children from Sexual Offences Act 2012 West Sikkim at Gyalshing today i.e. 20.04.2021 to undergo the Sentence imposed on him by the impugned Order on Sentence duly setting off the period of imprisonment if any already undergone by him during investigation and as an Under Trial Prisoner. The Learned Special Judge shall take appropriate steps should the Appellant fail to appear as directed hereinabove. 12 AIR 1981 SC 1390 Crl.A. No.020 17 Maheshwar Singh vs. State of Sikkim No order as to costs. Copy of this Judgment be transmitted to the Learned Trial Court for information and compliance. Records of the Learned Trial Court be remitted 20.04.2021 Judge ml Approved for reporting : Yes

The first information report is not an encyclopedia of the case of the prosecution – Jharkhand high court

The first information report is not an encyclopedia of the case of the prosecution – Jharkhand high court A criminal revision petition was filed challenging the judgment and order of conviction passed in criminal appeal No.53 of 1996 in which the revision petitioner was convicted by the trial court under section  279,338 and 304 A of the Indian Penal Code. the petition was heard and dismissed by a single judge bench of HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY in the case of Balram Manjhi versus the state of Jharkhand (Cr. Rev. No.262 of 2001) The crux of the case is that the petitioner while driving a truck in a rash and negligent manner and caused the death of the son of the informant in a road accident. after the investigation, the petitioner was found for offenses punishable under  Sections 279, 338, and 304A of the Indian Penal Code, and during the trial, no witness was examined by defense out of six witnesses and the father of the deceased was the only eye witness in the case and only considering that witness the court found the petitioner guilty under the offenses punishable under Section 279, 338 and 304 A of the Indian Penal Code. The present petition is filed against this judgment and order of conviction. The learned counsel appearing on behalf of the petitioner submits that the conviction is based on no evidence and that the learned courts below could not appreciate the evidence in the record in its proper perspective and it is further submitted that the witness was not mentioned In the FIR by the police hence it is submitted that the conviction and the sentence of the revision-petitioners made by the impugned judgment of conviction returned by both the learned courts below be set aside. The learned counsel appearing on behalf of the state defended the judgment and submits that the ingredients of all the three offenses punishable under Section 279, 338, and 304 A of the Indian Penal Code are fulfilled based on witness testimony and it is submitted that there is nothing in the record to discard or disbelieve the testimony of the witnesses of the prosecution and since both the courts below have returned a concurrent finding of facts hence in the absence of any illegality, the same ought not to be interfered with. It is therefore submitted that this revision petition, being without any merit, be dismissed. The court hearing the rival submissions decides that the witness has categorically supported the case of the prosecution and he has deposed about eye-witness account of the occurrence that the truck being rashly and negligently driven by the revision-petitioner crushed his son resulting in his death and it fulfills all the ingredients required to bring home the charges for the offenses punishable under Section 279, 338 and 304 A of the Indian Penal Code. The testimony of the witness has been found reliable by both the courts. It is important to mention that First Information Report is not the encyclopedia of the case of the prosecution. So when the testimony of a witness who is also the informant of the case is trustworthy and reliable, the same cannot be disbelieved merely for the reason that it is specifically not mentioned in the First Information Report. The Hon’ble court mentions the settled principle of law through the case of Rattan Singh v. the State of Punjab, (1979) 4 SCC 719 and the case of Ravi Kapur Vs. State of Rajasthan reported in (2012) 9 SCC 284 and accordingly the court does not find any justifiable reason to interfere with the judgment passed by the learned court below hence the criminal revision petition is disposed of.

Cr.Rev.No.2601 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No.2601 Application for setting aside the judgment dated 12.06.2001 passed in Criminal Appeal No.596 by the Sessions Judge Dumka) Balram Manjhi son of Hari Ram Manjhi resident of Goasole P.S. Masalia of Goasole P.S. Masala District Dumka …. Petitioner The State of Jharkhand For the Petitioner Mr. Rajeeva Sharma Sr. Advocate Opposite Party For the State Mr. Bhola Nath Ojha Addl. P.P. P R E S E N T HON BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court: Heard the parties through video conferencing. This criminal revision has been filed challenging the judgment dated 12.06.2001 passed in Criminal Appeal No.596 by the learned Sessions Judge Dumka whereby and where under the learned appellate court below has upheld the judgment of conviction and order of sentence dated 18.07.1996 passed by S.D.J.M Dumka in Masalia P.S. Case No.18 of 1992 corresponding to G.R. No.3792whereby and where under the revision petitioner was convicted and sentenced by the trial court to undergo Rigorous Imprisonment for six months for the offence punishable under Section 279 of the Indian Penal Code and to undergo Rigorous Imprisonment for two years each for each of the offences punishable under Section 338 and 304 A of the Indian Penal Code and it was ordered that both the sentences shall run concurrently. The brief facts of this case is that the petitioner while driving a truck in a rash and negligent manner caused the death of the son of the informant in a road accident. After investigation of the case charge sheet was submitted against the petitioner for having committed the offences Cr.Rev.No.2601 punishable under Sections 279 338 and 304A of the Indian Penal Code and consequent upon his pleading not guilty to the charges he was put to trial. During the trial the prosecution altogether examined six witnesses and however no witness was examined by the defence. The P.W.2 is the sole eyewitness to the occurrence and he has supported the case of the prosecution by deposing in detail about the rash and negligent manner of driving of the truck by the revision petitioner. After considering the evidence in the record the learned trial court below being the S.D.J.M. Dumka held the revision petitioner guilty for having committed the offences punishable under Section 279 338 and 304 A of the Indian Penal Code and sentenced him as already indicated above in this judgment. 6. Against the said judgment of conviction and order of sentence this revision petitioner preferred Criminal Appeal No.53 of 1996 before the learned Sessions Judge Dumka and vide the impugned judgment the learned Sessions Judge Dumka dismissed the appeal as after independent assessment of the evidence in the record the learned Sessions Judge held that the evidence in the record is sufficient to establish all the 3 charges faced by the revision petitioner in the trial beyond reasonable doubt. 7. Mr. Rajeeva Sharma learned senior counsel for the revision petitioner submits that the conviction is based on no evidence. It is next submitted that the learned courts below could not appreciate the evidence in the record in its proper perspective. It is then submitted that though the P.W 2 has not stated in his Fardbeyan recorded by the police that he is an eye witness to the occurrence but in the court he claimed to be an eye witness to the occurrence. Hence the learned court below ought not have relied upon the testimony of the P.W 2 to come to a conclusion that the evidence in the record establishes the charges against the revision petitioner beyond reasonable doubt. It is next submitted that the revision petitioner is aged about 64 years and he was in custody for about 40 days after dismissal of his appeal by the appellate court before he was granted bail by this Court in this revision application and after the cancellation of Cr.Rev.No.2601 his bail by this court in this revision application he surrendered in the trial court on 20.10.2021 and till today he has been in custody. Hence it is submitted that in case his conviction is sustained his substantive sentence be reduced to the period he has already undergone in custody keeping in view the fact that he has been facing the rigors of criminal trial since 16.04.1992 and in lieu thereof fine may be imposed. Hence it is submitted that the conviction and the sentence of the revision petitioner as made by the impugned judgment of conviction returned by both the learned courts below be set aside. 8. Mr. Bhola Nath Ojha learned Addl.P.P. appearing for the State defended the impugned judgment and submitted that the P.W. 2 who is the father of the deceased is an eye witness to the occurrence and he has categorically stated about the ingredients of all the three offences punishable under Section 279 338 and 304 A of the Indian Penal Code. It is next submitted that nothing has been elicited in the testimony of the P.W 2 to discard or disbelieve his testimony and his testimony is corroborated by the testimonies of P.Ws 1 3 and 4 of course they are not the eye witness to the occurrence besides the testimony of the P.W.2 also finds support from the medical evidence that has come through the deposition of the P.W 5 the Doctor who conducted the post mortem examination of the dead body of the deceased as also from the Investigating Officer of the case who has been examined as P.W.6. Hence it is submitted that there is nothing in the record to discard or disbelieve the testimony of the witnesses of the prosecution and since both the courts below have returned concurrent finding of facts hence in the absence of any illegality the same ought not to be interfered with. It is therefore submitted that this revision petition being without any merit be Having heard the rival submissions made at the bar and after carefully going through the record this Court finds that the P.W. 2 who is the father of the deceased is an eye witness to the occurrence and he has categorically supported the case of the prosecution and he has deposed about eye witness account of the occurrence that the truck being rashly Cr.Rev.No.2601 and negligently driven by the revision petitioner crushed his son resulting in his death which establishes all the ingredients required to bring home the charges for the offences punishable under Section 279 338 and 304 A of the Indian Penal Code. Nothing has been elicited in the cross examination of the P.W.2 to discredit his testimony. His testimony is trustworthy and reliable and both the courts below have returned concurrent finding of fact that the evidence in the record is sufficient to establish the charges for all the three offences punishable under Section 279 338 and 304 A of the Indian Penal Code beyond reasonable doubt. It is pertinent to mention here that the First Information Report is not the encyclopaedia of the case of the prosecution. So when the testimony of a witness who is also the informant of the case is trustworthy and reliable the same cannot be disbelieved merely for the reason that it is specifically not mentioned in the First Information Report Fard beyan of the informant that the informant is the eyewitness to the occurrence more so because there is also nothing in the First Information Report to suggest that the informant was not the eyewitness to the occurrence in respect of which offence he has lodged the First Information Report. It is pertinent to mention here that it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Rattan Singh v. State of Punjab 4 SCC 719 that it is fair to apply the rule of res ipsa loquitur of course with care in case of the offence punishable under section 304A of the Indian Penal Code resulting from motor vehicle accidents by observing thus in paragraph 3: 3. This however does not excuse the accused from his rash driving of a “blind Leviathan in berserk locomotion”. If we may adapt the words of Lord Greene M.R. : “It scarcely lies in the mouth of the truck driver who plays with fire to complain of burnt fingers”. Rashness and negligence are relative concepts not absolute abstractions. In our current conditions the law under Section 304 A IPC and under the rubric of Negligence must have due regard to the fatal frequency of rash driving of heavy duty vehicles and of speeding menaces. Thus viewed it is fair to apply the rule of res ipsa loquitur of course with care. Conventional defences except under compelling evidence must break down before the pragmatic Court and must be given short shrift. Looked at from this angle we are convinced that the present case deserves no consideration on the question of Cr.Rev.No.2601 conviction.(Emphasis supplied) It is also a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Ravi Kapur Vs. State of Rajasthan reported in 9 SCC 284 that the preliminary conditions for applicability of Section 279 IPC are that: the manner in which the vehicle is driven it is to be driven either rashly or negligently andsuch rash or negligent driving should be such as to endanger human life and once these ingredients are satisfied the penalty contemplated under Section 279 IPC is attracted. Similarly the law enunciated by the Hon’ble Supreme Court of India in that case is that “Negligence” means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. 12. As already indicated in this judgment above in the foregoing paragraphs of this judgment the P.W 2 has categorically stated that the petitioner was driving the vehicle in a rash and negligent manner and crushed his son resulting in his death. He has further deposed that he recognizes the petitioner and there is no challenge to his testimony in respect of his identifying the revision petitioner to be the person who has committed the offences for which charges were framed against him and for which the revision petitioner faced the trial. 13. Accordingly this Court does not find any justifiable reason to interfere with the judgment passed by the learned court below so far as the conviction of the revision petitioner for the offences punishable under sections 279 338 and 304 A of the Indian Penal Code is concerned. Accordingly the conviction of the revision petitioner for the offences punishable under Sections 279 338 and 304 A of the Indian Penal Code as made by the two learned courts below is confirmed. So far as the sentence of the revision petitioner is concerned it is pertinent to mention here that the Hon’ble Supreme Court of India in the case of Sukhdev Singh v. State of Punjab 2 SCC 439 in the facts of that case where the appellant had already been in jail for a period of four Cr.Rev.No.2601 and a half months reduced the substantive sentence to the period already undergone and enhanced the fine by observing thus in paragraphs 1 and 2 of the said judgment which reads as under: 1. We are of the view that having regard to the facts and circumstances of the present case and in view of the fact that Jagdish Chander died as a result of the accident leaving a family behind him and also taking into account the fact that the appellant has already been in jail for a period of four and a half months it would meet the ends of justice if the sentence of imprisonment imposed upon the appellant is reduced to that already undergone by him and instead the fine of Rs 2000 which has been imposed upon him is enhanced to Rs 10 000 in order that the widow and the children of the deceased Jagdish Chander may be compensated by payment of the amount of the fine to them. 2. We accordingly allow the appeal to this limited extent and reduce the sentence of imprisonment imposed upon the appellant to that already undergone by him and enhance the sentence of fine to Rs 10 000 and direct that the entire amount of the fine be paid over to the widow and children of the deceased Jagdish Chander. This payment will be without prejudice to the right of the widow and children of the deceased Jagdish Chander to claim damage for the death of Jagdish Chander though if any such damages are awarded this payment may be taken into account in assessing such damages. Now coming to the facts of the case keeping in view of the fact that the revision petitioner has been in custody for about four and half months and he is facing the rigors of criminal trial since the year 1992 and he is an old man aged about 64 years the substantive sentence for the offences punishable under Section 279 338 304 A of the Indian Penal Code is reduced to the period in custody as already undergone. But in respect of the offence punishable under Section 304 A of the Indian Penal Code besides the substantive sentence a fine of Rs.20 000 is imposed upon the revision petitioner and in default of payment of fine the revision petitioner has to undergo simple imprisonment of six months. This Court also directs that the entire amount of the fine be paid over to the informant who is the father of the deceased and in case he is not available Cr.Rev.No.2601 to any other legal representatives of the deceased. This criminal revision petition is disposed of with the modification Let a copy of this judgment be sent to the learned court below of sentence only. High Court of Jharkhand Ranchi Dated the 28th of January 2022 AFR Smita Animesh

Pension as is well known, is the deferred portion of the compensation for rendering long years of service.: Supreme Court

Pension is a hard-earned benefit accruing to an employee and has been held to be in the nature of property as upheld by the Hon’ble Supreme Court through the learned bench led by Justice Hrishikesh Roy in the case of Veena Pandey V. Union of India &amp; Ors. (CIVIL APPEAL NO.6953 OF 2021)(Arising Out of SLP (C) No.15113 OF 2018). The brief facts of the case are that the present appeal arises out of claims for pensionary benefits under the Coal Mines Pension Scheme, 1998. The appellant’s husband Ramashankar Pandey rendered service in the South Eastern Coal Fields Ltd., Bilaspur, after being transferred from Bharat Coking Coal Ltd in 1999. The employee retired on 31.05.2004 as Chief Personnel Manager at Bilaspur and later settled in Bhojpur, Bihar with his family. He opted for receiving 90% pension during his life time as provided under para 15 1(b) of the Pension Scheme, 1998 effective from 31.03.1998. Since the employee opted to receive 90% of the total admissible amount of the pension during his lifetime, on his death on 12.01.2011, the widow of the pensioner became entitled to receive in lump sum, an amount equal to 100 times his full monthly pension, in addition to family pension. The record shows that Rs.7091/- p.m. was sanctioned to the employee as Basic Pension under the Pension Scheme, 1998 w.e.f 01.06.2004 and 10% of his Basic Pension i.e. Rs. 788/- p.m. was deposited with the department. Following the employee’s death on 12.01.2011, as per the Pension Scheme, 1998 the widow of the pensioner made claim for a sum equivalent to 100 times the full monthly pension of her husband and vide letter dated 30.09.2012, she applied for payment of the lump sum amount in pursuance of para 15(1)(b) read with para 15(2) of the Pension Scheme, 1998. The appellant’s representation was however rejected. In the letter dated 22.01.2013 of the Regional Commissioner of the Coal Mines Provident Fund Organization it was stated that the pensioner had opted for payment of 90% pension under para 15 (1)(b) of the Pension Scheme, 1998, but the aforesaid provision was abolished w.e.f 21.02.2011. It was also intimated that the 10% surrendered amount had been refunded to all pensioners with interest under the order dated 30.01.2012 of the Coal Mines Provident Fund Commissioner. The appellant was refunded the surrendered amount of 10% with interest (Rs. 36,938/-) along with widow pension arrears (Rs.12,351/-), in total Rs. 49,289/-, whereas she claimed a higher sum under the now abolished provisions of the Pension Scheme. Aggrieved by the above stand of the employer, the appellant moved the High Court of Patna for disbursal of the pensionary benefits and also to quash the letter dated 22.01.2013 of the Regional Commissioner, CMPFO whereunder, it had been communicated that, no other payment is due to the appellant. Her C.W.J.C No.9837/2014 was however dismissed as not maintainable by the learned Single Judge on the ground that no cause of action arose within the territorial jurisdiction of the High Court of Patna. This order was affirmed by the Division Bench by dismissal of the appellant’s LPA No.701/2017 with similar observation that the services rendered by the pensioner were outside the territorial jurisdiction of the Patna High Court and hence the writ petition filed by the widow of the pensioner was not maintainable. These orders of the High Court are impugned in this Appeal. The Hon’ble Court held, “In the above peculiar circumstances of this case, without commenting on the legality of the decision to discontinue the said provision in the pension scheme by the employer, as the pensioner was not alive on All India Reserve Bank Retired Officers’ Association &amp; ors Vs. Union of India &amp; ors, (1992) Supp 1 SCC 664 2(2013) 12 SCC 210 Page 6 of 7 the date of discontinuance, we consider it appropriate to pass necessary orders in her favour in this proceeding itself. Resultantly, the sum due and payable under the Pension scheme be computed and the same is ordered to be disbursed to the appellant. The amount earlier refunded to the appellant be adjusted suitably during the remittance process. The respondent/ employer should do the needful in terms of this order, within 8 weeks from today. The appeal is allowed with the above order.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6953 OF 2021 Arising Out of SLPNo.15113 OF 2018 UNION OF INDIA & ORS RESPONDENT(S JUDGMENT Hrishikesh Roy J The present appeal arises out of claims for pensionary benefits under the Coal Mines Pension Scheme 1998of the Pension Scheme 1998 effective from 31.03.1998. Since the employee opted to receive 90 of the total admissible amount of the pension during his lifetime on his death on 12.01.2011 the widow of the pensioner became entitled to receive in lump sum an amount equal to 100 times his full monthly pension in addition to family pension. The record shows that Rs.7091 p.m. was sanctioned to the employee as Basic Pension under the Pension Scheme 1998 w.e.f 01.06.2004 and 10% of his Basic Pension i.e Rs. 788 p.m. was deposited with the department Following the employee’s death on 12.01.2011 as per the Pension Scheme 1998 the widow of the pensioner made claim for a sum equivalent to 100 times the full monthly pension of her husband and vide letter dated 30.09.2012 she applied for payment of the lump sum amount in pursuance of para 15(1)(b read with para 15(2) of the Pension Scheme 1998 The appellant’s representation was however rejected. In the letter dated 22.01.2013 of the Regional Commissioner of the Coal Mines Provident Fund Organization it was stated that the pensioner had opted for payment of 90 pension under para 15of the Pension Scheme 1998 but the aforesaid provision was abolished w.e.f 21.02.2011. It was also intimated that the 10 surrendered amount had been refunded to all pensioners with interest under the order dated 30.01.2012 of the Coal Mines Provident Fund The appellant was refunded the surrendered amount of 10% with interestalong with widow pension arrearsin total Rs. 49 289 whereas she claimed a higher sum under the now abolished provisions of the Pension Scheme. Aggrieved by the above stand of the employer the appellant moved the High Court of Patna for disbursal of the pensionary benefits and also to quash the letter dated 22.01.2013 of the Regional Commissioner CMPFO whereunder it had been communicated that no other payment is due to the appellant. Her C.W.J.C No.9837 2014 was however dismissed as not maintainable by the learned Single Judge on the ground that no cause of action arose within the territorial jurisdiction of the High Court of Patna This order was affirmed by the Division Bench by dismissal of the appellant’s LPA No.701 2017 with similar observation that the services rendered by the pensioner were outside the territorial jurisdiction of the Patna High Court and hence the writ petition filed by the widow of the pensioner was not maintainable. These orders of the High Court are impugned in this Appeal 7. Heard Mr. Santosh Kumar learned counsel for the appellant. Also heard Ms. Madhavi Divan the learned ASG appearing for the respondents. 8. Ms. Madhavi Divan learned ASG points out from the additional counter affidavit of respondent no. 6 that pursuant to the administrative order dated 04.03.2011 of the Commissioner CMPFO the appellant’s case was settled on 18.04.2011 and 10 surrendered value of monthly pension along with applicable interest thereon was refunded. 9. Mr. Santosh Kumar learned Counsel appearing for the appellant would however contend that the lumpsum 100 times of full monthly pension) became payable to the widow on the death of her husband who subsequent to his retirement had opted for the same under the Pension Scheme. The counsel further submits that the appellant as the widow of the employee is suffering as she has been non suited by the court on the ground of want of territorial jurisdiction. 10. It is necessary to note that the Coal Mines Pension Scheme 1998 was framed as a measure of social security for ensuring socio economic justice for the employees in the coal sector under the powers conferred by Section 3 E of the Coal Mines Provident Fund and Miscellaneous Provisions Act 1948 11. Pension as is well known is the deferred portion of the compensation1 for rendering long years of service. It is a hard earned benefit accruing to an employee and has been held to be in the nature of property by this Court in State of Jharkhand and Others Vs. Jitendra Kumar Srivastava and Another2. 12. While considering the appellant’s case the High Court did not however consider her entitlement on merit but had dismissed both the Writ Petition and the LPA citing want of territorial jurisdiction. The employment of the appellant’s husband with the respondent employer is however not in dispute Nevertheless for over a decade the widow of the employee is forced to litigate to secure the pension 13. In the above peculiar circumstances of this case without commenting on the legality of the decision to discontinue the said provision in the pension scheme by the employer as the pensioner was not alive on 1All India Reserve Bank Retired Officers’ Association & ors Vs. Union of India & ors Supp 1 SCC 664 2(2013) 12 SCC 210 the date of discontinuance we consider it appropriate to pass necessary orders in her favor in this proceeding itself. Resultantly the sum due and payable under the Pension scheme be computed and the same is ordered to be disbursed to the appellant. The amount earlier refunded to the appellant be adjusted suitably during the remittance process. The respondent employer should do the needful in terms of this order within 8 weeks from today 14. The appeal is allowed with the above order Respective costs to be borne by the parties. (R. SUBHASH REDDY November 18 2021 J. (HRISHIKESH ROY Page

Writ petitions are liable to be rejected on the ground of availability of the alternative remedy.

A writ petition is an application filed before a Court, requesting to issue a specific writ. In India, writs are issued by the Supreme Court under Article 32 of the Constitution of India and by the High Court under Article 226 of the Constitution of India. However, a writ petition can be rejected due to many reasons such as- not filing in due time, no substantial question of law is involved or alternative remedies are there. One such case was decided by Mr. Devender Kumar Sikri (Chairperson), Mr. S. L. Bunker (Member), Mr. Sudhir Mital (Member), Mr. Augustine Peter (Member), Mr. U. C. Nahta (Member), Justice G. P. Mittal (Member) in the case of Maj Pankaj Rai, Pankaj Gupta &amp; Shri Lakshmi Reddy(informants) vs. NIIT Ltd. (Opponent Party) (Case Nos. 47, 48 &amp; 49 of 2017). The facts of the case are that the Informants have the franchisees of the Opponent Party in the city of Hyderabad and are engaged in the business of provision of computer education/ training services. They offer computer education to public for making them more proficient in use of computer software. The Informants have filed a case against the franchisee of the OP. The Informants claim that they were first granted rights to offer a computer diploma programme through the franchisee, but these rights were later cancelled by the OP, However, according to the informants’ claim, the OP has been unfairly continuing the same course at its own facility in Hyderabad’s Basheerbagh. It is further claimed that the OP has been approaching schools in the Informants’ territory directly and has been giving computer-related courses through its application ‘nguru‘. Furthermore, it is claimed that the OP has been encroaching on the region allowed under the licencing agreement, depriving the Informants of their due portion of money generated by that territory. It is claimed that the OP has a different pricing structure for its consumers in metros versus its network centres, i.e., non-metro, which is damaging to both students (customers) and franchisees because the higher rates make the franchisees’ courses uncompetitive. Furthermore, the OP has a different revenue sharing slab and licence renewal price for its franchise licensee in metros than it does for network centres. It is also alleged by the informants that the OP is engaging in market manipulation through the NIIT.tv project, which is an online platform that offers free courses. Due to this, the prospective clients in a franchisee’s region might register online and subscribe for courses through NIIT.tv. The OP is accused of damaging the franchisees’ businesses by directly selling courses to schools, universities, and working professionals via this online platform. Many other such allegations related to this matter were put by the informants against the OP. Based on the aforementioned allegations, the Informants have filed a petition the Commission and prayed to conduct an investigation into the OP’s alleged abuse of dominant position, to direct the OP to discontinue and refrain from entering into any agreement containing allegedly unfair clauses, and to direct the OP to compensate the Informants. The Commission observed that there is no prima facie case framed against the OP. It was held that OP does not possess the market power to act independently of the competitive forces in the relevant market or has the ability to affect its competitors or consumers in the relevant market in its favour. Therefore, the OP is not found to be in a dominant position in the relevant market. it was noted that the prevailing competition is compelling the OP to venture into online mode of delivery though it learning portals such as Training.com, nguru and NIIT.tv.  The prevailing competition is compelling the OP to venture into online mode of delivery. It was also observed that the OP supplies all the necessary course materials and training to its faculty members without discrimination and also equips them with the necessary equipment and training without discrimination. The Commission is of the view that no case under Section 3 is made out against the OP in the instant matters. Owing to differences in the factors such as lower awareness in non-metro areas, lack of affordability by the student in non-metros, responsibility of marketing and placements of students etc., the differential pricing of courses does not seem to be arbitrary. However, Major Pankaj Rai (Informant 1) filed various writ petitions and review petitions before the Hon’ble High Court of Hyderabad. However, the judge stated that writ petitions are liable to be rejected on the ground of availability of the alternative remedy and dismissed the writ petition and the review petition as well. Dissatisfied with the orders of Hon’ble High Court of Hyderabad, the informant moved to Hon’ble NCLAT, where the court dismissed his petition saying that there is no “sufficient cause” for not exercising the statutory right of appeal. he appeals is accordingly dismissed as being barred by limitation. The informant against challenged the orders of Hon’ble NCLAT before the Hon’ble Supreme Court of India, as a Civil Appeal, where the court dismissed his appeal by saying that the appellate tribunal has ruled that the delay in filing an appeal against the decision of a High Court judge to dismiss a petition under Article 226 could not have been acceptable. The legislation requires an appeal to be submitted within sixty days, but the appeal was filed after a delay of seven hundred days.

COMPETITION COMMISSION OF INDIA Case Nos. 47 48 and 417 Case No. 417 In re: Maj. Pankaj Rai 12 Vayupuri Road No. 2 Vayupuri Post Sainikpuri Secunderabad 500094 NIIT Limited 8 Balaji Estate First Floor Guru Ravidas Marg Kalkaji New Delhi 110019 In re: And Ms. Pankaj Gupta Flat 205 Bhavya’s Akhila Exotica Hydernagar Kukatpally Hyderabad 500072 Opposite Party Case No. 417 Informant Case No. 47 48 and 417 Opposite Party Case No. 417 Opposite Party NIIT Limited 8 Balaji Estate First Floor Guru Ravidas Marg Kalkaji New Delhi 110019 In re: And Shri Lakshmi Reddy Eddula A101 Keshavdale Apartments Anand Nagar Colony Kahiaratabad Hyderabad 500004 NIIT Limited 8 Balaji Estate First Floor Guru Ravidas Marg Kalkaji New Delhi 110019 Mr. Devender Kumar Sikri Chairperson Mr. S. L. Bunker Member Case No. 47 48 and 417 Mr. Sudhir Mital Member Mr. Augustine Peter Member Mr. U. C. Nahta Member Justice G. P. Mittal Member For Informantof the Competition Act 2002 The informations in the instant matters have been filed by Maj. Pankaj Rai in case no. 47 of 2017 Ms. Pankaj Gupta in case no. 417 and Shri Lakshmi Reddy Eddula in case no. 49 of 2017 under Section 19(1)(a) of the Case No. 47 48 and 417 Competition Act 2002 against NIIT Limited alleging contravention of the provisions of Sections 3 and 4 of the Act. This common order shall dispose of the afresaid three cases as the OP is common in all the three cases and the allegations of all the Informants are substantially similar. 3. As per the informations the Informants are the franchisees of the OP in the city of Hyderabad and are engaged in the business of provision of computer education training services. They are offering computer education to the members of public for making them more proficient in use of computer softwares and enable them to occupy different professional positions related to the use of computer. That the OP is a well known brand inter alia engaged in the business of computer education and is a global leader in skill and talent development. It offers multi disciplinary courses in management and training delivery solutions to corporations institutions and individuals in over forty countries. The Informants have contended that initially as franchisees of the OP they were granted rights to offer the Post Graduate Diploma in Banking Operations course conducted by the OP in collaboration with ICICI Bank but subsequently the OP revoked the rights for offering the said course from the Informants. It is alleged that the OP was unfairly continuing the same course at its own centre at Basheerbagh Hyderabad. It is averred that the OP is directly approaching schools located within the territories of the Informants and has been offering computer related courses through its computer teaching program ‘nguru’. Further it is alleged that the OP is encroaching into the territory allotted through the license agreement and depriving the Informants of their legitimate share of revenue from that territory. It is alleged that the OP is undercutting prices and offering courses at highly discounted prices as compared to the prices offered by the franchisees. In this regard it is alleged Case No. 47 48 and 417 that the OP has directly been entering into an agreement with ‘Accenture a global management consulting and professional service provider for its courses by offering highly discounted prices as compared to the prices available for Hyderabad city thereby eating into the revenue of the Informants. It is averred that the OP follows a differential pricing pattern for its consumers in metros vis a vis its network centres i.e. non metro which is detrimental for the students as well as the franchisees as the higher prices render the courses of the franchisees uncompetitive. Further the OP has a different revenue sharing slab and license renewal fee for its franchise licensee in metros vis a vis network centres. At network centres the revenue sharing arrangement is 70:30 in favour of the franchisees whereas there is no clear cut policy for revenue sharing between the OP and franchisees for metros nor any rationale is adopted in fixing them. The OP’s share from franchisees at metros is between 50 60 percent depending on the product and is also varied at the whims of the OP without even informing the franchisees. It is alleged that by way of NIIT.tv initiative an online platform which offers courses free of cost the OP is indulging into predatory pricing as the prospective customers in a franchisee’s territory could register online and subscribe for courses through NIIT.tv. Through this platform the OP by offering courses for schools colleges and working professionals directly is alleged to be ruining the business of the franchisees. It is averred that the OP makes invoices which are advantageous to it and the monetary values are round off to next higher value even if the value after the decimal is lower than five which is against the practices followed by convention internationally. This unethical practice of the OP deprives an unsuspecting franchise of its revenue since it believe that a system generated invoice would be error free. 10. Furthermore it is stated that the OP has arbitrarily reduced the Informants share from 20 percent to 10 percent in Imperia courses. NIIT Imperia is an initiative of the OP whereby Case No. 47 48 and 417 advanced management courses ranging from 4 to 12 months are offered to working professionals in collaboration with leading management institutes. It is alleged that such action of the OP is arbitrary and amounts to abuse of dominant position by it. It is averred that the OP is poaching customers of the franchisees through ‘Training.com an online training portal of NIIT through which courses on technology management and digital marketing are offered. The courses that are offered on Training.com are similar to the ones that are available with the franchisees. Through the said portal the OP influences students from the territory of any franchisees to register for online courses while the franchisees who have paid exorbitant license fees to the OP are not passed any corresponding benefits. 12. Based on the above the Informants have prayed to the Commission inter alia for inquiry into abuse of dominant position by the OP to direct the OP to discontinue and not to enter into agreements conveyance deeds containing clauses which have been alleged to be unfair and to direct the OP to compensate the Informants. 13. The Commission has perused the material available on record including the information and heard the parties on 12th October 2017 and also considered their respective submissions. The Commission observes that the Informants are primarily aggrieved by the conduct of the OP in abusing its dominant position through its franchise agreements in contravention of the provisions of Section 4 of the Act and indulging in anti competitive practices in contravention of the provisions of Section 3 of the Act. 14. The Commission observes that the OP has licensed the fanchisees such as the Informants to offer its advance software courses in the field of computer software education such as C C++ Advanced Excel Implementing JAVA Higher Diploma in IT Certificate in IT Diploma in ITetc.. The Commission notes that computer and IT skill training requires special knowledge on the subject and Case No. 47 48 and 417 hence is a distinct service compared to the skill training services in other professional and non professional areas in terms of its characteristics prices and end use. It is observed that the agreement entered into between the OP and each of the Informants specifies that the OP is engaged in the business of computer education and is providing professional skill training in the field of use of computers. Since the allegation in the instant matters pertains to the abusive conduct of the OP in the market for computer education services the ‘market for the provision of computer education and training services’ may be considered as the relevant product market. With respect to the relevant geographic market it is observed that the OP provides computer education services across the country through its own centers through franchisee centres as well as through online. The centres of the OP franchisees scattered across India. Further online courses on computer education are available from various location across India. Hence the relevant geographic market in these matters may be considered as ‘India. Accordingly the relevant market may be considered as ‘market for the provision of computer education and training services in India. 15. With respect to dominance of the OP in the relevant market it is observed that apart from the OP there are many other players such as Aptech CSC Computer Education Private Ltd. Jetking HCL Career Development Centre IICT Computer Academy APOLLO Computer Education and DUCAT operating in the relevant market and offering similar courses in the area of computer education as offered by the OP. As per the information available in public domain the OP has around 400 centres in the relevant market while its competitors like CSC Computer Education Private Ltd. and Aptech are having comparable number of centres in the aforesaid relevant market. It may be noted that during the oral hearing the Informant in case no. 417 had admitted that Jetking has a comparable number of Computer IT training centres as of the OP in the city of Hyderabad where the Informants have been licensed to operate. The aforesaid information indicates that the OP is operating in a competitive environment and faces rivalry from large number of similarly placed players. The presence of such large number Case No. 47 48 and 417 of players with a network centres scattered across the country acts as a competitive constraint upon the OP thereby prevents it from operate independently of the market forces in the relevant market while at the same time providing multiple options to the consumers for availing the aforesaid services. Even if the relevant market is narrowed to the city of Hyderabad the OP is not the dominant player with presence of large players like Jetking Aptech etc in the market. 16. Based on the above the Commission is of the view that the OP does not possess the market power to act independently of the competitive forces in the relevant market or has the ability to affect its competitors or consumers in the relevant market in its favour. Therefore the OP is not found to be in a dominant position in the relevant market. 17. As far as the allegation under Section 3 of the Act is concerned it is noted that the prevailing competition is compelling the OP to venture into online mode of delivery though it learning portals such as Training.com nguru and NIIT.tv. In order to improve efficiency in the market and to add value for the consumers almost all the services including professional training are imparted through online mode rather than through the traditional classroom mode to meet growing requirements of the consumers. This signifies that the OP’s conduct is not contrary to the dynamics of competition in the relevant market. Further with regard to the allegation of discrimination between franchisees it is observed that the OP supplies all the necessary course materials and trains the faculty members of the franchisees. It also equips the franchisees with curriculum courseware detailed operation manuals and process etc. without any discrimination. Owing to differences in the factors such as lower awareness in non metro areas lack of affordability by the student in non metros responsibility of marketing and job placements of students etc. the differential pricing of courses and revenue sharing agreement by the OP does not seem to be arbitrary and thus the allegations of the Informants cannot be said to be justified. Thus the Commission is of the view that no case under Section 3 is made out against the OP in the instant matters. Case No. 47 48 and 417 In the light of the above analysis the Commission finds that no prima facie case of contravention of either the provisions of Sections 3 or 4 of the Act is made out against the OP in the instant matters. Accordingly the matters are closed under the provisions of Section 26(2) of the Act. 19. The Secretary is directed to communicate to the parties accordingly. Sd Chairperson Sd Member Sd Sudhir Mital) Member Sd Member Sd Member Sd Justice G. P. Mittal) Member New Delhi Dated: 28 11 2017 Case No. 47 48 and 417

Submission of supplementary charge sheet after 180 days no ground for granting bail: High Court of Delhi

If a supplementary charge sheet is submitted beyond the statutory provision of 180 days due to procedural delay by expert bodies like the forensic dept, then such delay itself cannot be a ground for granting bail to the accused. This was decided in the case of Mehabub Rehman Vs. State Through: Spl Cell, Delhi Police [CRL.REV.P. 340/2020] in the High Court of Delhi By Hon’ble Justice Suresh Kumar Kait. The facts of the case are that the Petitioner is accused for offences under Sections 21/29/61/85 Narcotic Drugs and Psychotropic Substances Act, 1985 and his application for bail was dismissed buy the trial court. During the investigation , the Special Court had directed the petitioner to give his voice sample for getting it matched with the intercepted call recordings available with the prosecution. The petitioner made an bail application. The trial court observed ‘The main ground of statutory/ default bail u/s 167 (2) Cr.P.C. r/w section 36A (4) NDPS Act is that the incomplete charge-sheet was filed. The accused is alleged to be the main member of syndicate whose mobile was under interception’ and hereby denied the bail. The court observed that the question for consideration is whether rejection of petitioner’s application for bail in default by the trial court, upon filing of supplementary charge sheet beyond the statutory period of 180 days, without being accompanied by voice sample report of CFSL, deserves to be upheld or set aside. After considering the contentions put forth, the court relied upon the case of Kishan Lal Vs. State 1989 SCC Online Del 348 where it was held “The duty of the Investigating Officer under the Code is to complete the investigation without unnecessary delay. On its completion which necessarily means that the witnesses acquainted with the circumstances of the case have been examined, the officer in charge of the police station must forward a police report in a prescribed form to a Magistrate empowered to take cognizance of the offence. In the present cases, as cognizance of the offences taken by the Magistrate was proper and valid, no order releasing the petitioners on bail under Section 167(2) of the Code was required to be passed.”

IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.REV.P. 340 2020 Reserved on: 18.03.2021 Pronounced on: 22.03.2021 MEHABUB REHMAN @ EMPHA ..... Petitioner Through: Dr. Adish C. Aggarwala Senior Advocate with Mr. Amish Aggarwala Mr. Kuldeep Jauhari Mr. Karan Ahuja Mr. Anubhav Tyagi & Mr. Rajat Bhatia Advocates STATE THROUGH: SPL CELL DELHI POLICE ... Respondent Through: Mr. Amit Chadha Additional Public Prosecutor for State with SI Deepak HON BLE MR. JUSTICE SURESH KUMAR KAIT Petitioner is accused in FIR No. 160 2019 registered at police station Special Cell Delhi for the offences under Sections 21 29 61 85 Narcotic Drugs and Psychotropic Substances Act 1985and is aggrieved of order dated 05.10.2020 passed by the learned trial court vide which his application under Section 167(2) Cr.P.C. and Section 36 A(4) of the NDPS Act has been dismissed. The present petition has been preferred on the ground that the Crl.Rev.P.340 2020 petitioner was formally arrested in this case on 11.03.2020 and thereafter charge sheet under Section 173(2) of the Code was filed in this case however petitioner’s name was not there in the charge sheet. Vide order dated 20.03.2020 learned Special Court had directed the petitioner to give his voice sample for getting it matched with the intercepted call recordings available with the prosecution. Thereafter on 26.08.2019 supplementary charge sheet was filed against the petitioner without the Central Forensic Science Laboratoryreport of the voice samples and no extension of time was sought by the prosecution for completion of investigation in terms of Section 36 A(4) of the NDPS Act. The statutory period of 180 days for completion of investigation and filing of complete charge sheet expired on 10.09.2020. In aforesaid circumstances of the case petitioner filed an application seeking bail under Section 167(2) Cr.P.C. read with Section 364(A) of NDPS Act on 23.09.2020. In the meanwhile on 28.09.2020 report from CFSL was filed and vide impugned order dated 05.10.2020 the learned trial court dismissed petitioner’s bail application while holding as under: “Heard. The main ground of statutory default bail u s 167 2) Cr.P.C. r w section 36A NDPS Act is that the incomplete charge sheet was filed. The accused is alleged to Crl.Rev.P.340 2020 be the main member of syndicate whose mobile was under interception. After the arrest of present accused an application dated 20.03.2020 was filed by the IO to take the voice sample of the accused Mehboob Rehman and vide order dated 20.03.2020 this court allowed the said application pursuant to which accused voice samples were recorded and report over the voice samples was prepared on 09.09.2020 and filed before this court on 28.09.2020 by the IO. Though the FSL report is found to be filed after filing of this application and completion of 180 days of investigation but the charge sheet cannot be held to be incomplete because of the pendency of FSL report over voice sample as preparation of report on voice sample is not in the hands of IO. The judgments as relied by Ld.Addl. PP for the State are squarely applicable in present case. Accordingly the present application has no merits and hence dismissed. ” At the hearing the learned senior counsel for petitioner submitted that the Hon’ble Supreme Court in Sanjay Kumar Kedia @ Sanjay Kedia Vs. Intelligence Officer NCB and Anr. 17 SCC 631 has held that provisions of Section 36 A(4) NDPS warrant strict compliance and since investigation in this case was not completed in time and no extension in terms of aforesaid provisions of law was obtained petitioner’s detention in Crl.Rev.P.340 2020 jail is illegal. 5. Learned counsel also relied upon a decision of this Court in Nitin Nagpal Vs. State 2006 SCC OnLine Del 704 wherein it is held that if Chemical Analyser’s report is the foundation to a case in the absence thereof cognizance cannot be taken and therefore non filing of FSL report within the statutory period mandated gives indefeasible right to the petitioner under Section 167(2) of the Code. Reliance was also placed upon decision of Constitution Bench in K. Veeraswami Vs. UOI & Ors. 3 SCC 655 to submit that if charge sheet is filed it would be deemed to be complete if accompanied with all the statements and documents as contemplated in Section 173(5) of the Code and since the present case is solely based upon CFSL report of voice samples it is covered under Section 173(5) of the Code. Learned senior counsel further submitted that the CFSL report was filed after filing of bail application and while passing the impugned order learned Special Judge has ignored the ratio laid down in K. Veeraswami It was also submitted that various decisions cited by the prosecution have been erroneously applied by the trial court in the impugned order as in those decisions Single Bench of different High Courts have placed reliance Crl.Rev.P.340 2020 upon Hon ble Supreme Court’s decision in Tara Singh v. State AIR 1951 SC 441 and of the Punjab and Haryana High Court in State of Haryana v. Mahal Singh and others80 PLR 480 which were both adjudicated well before the concerned special statute i.e. NDPS Act 1985came into force and therefore provide a strict interpretation of general offences confined to IPC and procedure under Cr.P.C. and not in the context of the NDPS Act 1985. Learned senior counsel also submitted that the impugned order is bad in law and contrary to provisions of law against the settled principles of natural justice and hence deserves to be set aside. On the other hand learned Additional Public Prosecutor for State opposed the present petition by submitting that in this case charge sheet was first filed on 13.03.2020 and the supplementary charge sheet was filed on 25.08.2020 which is well within the statutory period. The CFSL report regarding voice sample was received on 26.09.2020 and the same was filed before the trial court on 28.09.2020. Learned Additional Public Prosecutor submitted that obtaining CFSL report is beyond the reach of Investigating Officer and the purpose of filing supplementary charge sheet is to corroborate the evidence with the investigation and is a matter of trial and cannot be gone into at this stage. Crl.Rev.P.340 2020 10. Learned Additional Public Prosecutor placed reliance upon decision of a Division Bench of this Court in Kishan Lal Vs. State 1989 SCC OnLine Del 348 where a question was raised whether the investigation of a case under the NDPS Act can be said to be complete in the absence of the report of the Scientific Officer and Chemical Examiner. Relevant para relied upon reads as under: “7. It has been held by the Supreme Court that although the police are not permitted to send an incomplete report under Section 173(2) of the Code yet the investigation except for the report of an expert like the Serologist or Scientific Officer and Chemical Examiner is complete and therefore the Magistrate is empowered to take cognizance of the offence on a police report which does not include the expert s opinion. In Tara Singh v. State AIR 1951 SC 441 the Polka had infact filed a report dated the 2nd October 1949 terming it as an “incomplete challan” and on the 5th October they filed a report which they called a “complete challan”. Thereafter on the 19th October they filed yet another report which was termed as “supplementary challan”. The objection taken at the trial was that the Magistrate had no power to take cognizance of the case on 3rd October when the incomplete challan dated 2nd October 1949 was placed before him. It was contended that the Police are not permitted to file an incomplete report under Section 173(2) of the Code.” Crl.Rev.P.340 2020 11. Further reliance was placed upon another decision of a Coordinate Bench of this Court in Babu Vs. The State 2020 SCC OnLine Del 1229 wherein a similar question pertaining to non filing of charge sheet within the stipulated period and non filing of FSL report was considered. The relevant para relied upon are as under: “7. Constitution Bench of the Hon ble Supreme Court in the decision reported as5 SCC 410 Sanjay Dutt v. State Through CBI Bombay following the decision reported as 4 SCC 602 : AIR 1994 SC 2623 Hitendra Vishnu Thakur v. State of Maharashtra held that if before application seeking default bail is filed by an accused the charge sheet is filed the accused will not be entitled to the bail under Section 167(2)(a)(ii) CrPC. It was also held that the indefeasible right of the accused to be released on bail for non filing of the charge sheet within the statutory period under Section 167(2) CrPC is a right which enures to and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remains enforceable on the challan being filed.” 12. At this stage learned counsel for petitioner intervened and submitted that decision in Babuis distinguishable on facts as in the said case accused had not filed application for bail in default under Section 167(2)Crl.Rev.P.340 2020 Cr.P.C. whereas in the present case petitioner had filed an application for default bail before the trial court. 13. However learned Additional Public Prosecutor for State further argued that decision in Babuthe Hon’ble Single Bench has relied upon Hon’ble Division Bench decision in Kishan Lal and held as under: “18. Though this Court is of the view that the decision of the Division Bench of the Punjab and Haryana High Court is an appropriate opinion in relation to cognizance of an offence under NDPS Act without the FSL report being an illegality however bound by the Division Bench decision of this Court judicial discipline mandates this Court to follow the same. Consequently in view of the decision of the Division Bench of this Court in Kishan Lal v. Stateit is held that the petitioner is not entitled to grant of bail under Section 167(2) CrPC for non filing of the FSL report along with the charge sheet.” 14. Learned Additional Public Prosecutor for State also placed reliance upon decision of another Coordinate Bench of this Court in Mohd.Arbaz Abdul Rashid & Mohd. Nazim Vs. State of NCT of Delhi 275(2020) DLT 323 wherein the question “whether in a case of commission of an offence Crl.Rev.P.340 2020 punishable under the provisions of the NDPS Act which is founded on recovery of narcotic drugs and or psychotropic substance a police report under Section 173(2) of the Cr.PC can be considered as such if it is not accompanied by a Chemical Examiner s Report with regard to the substance recovered and whether an accused would be entitled to bail in default under Section 167(2) of the Cr.PC where his application for such bail has been filed prior to the submission of the report under Section 173(2) of the Cr.PC but is taken up for consideration simultaneously with the said report being filed” were taken up for consideration and it was held as under: “24. This Court concurs with the view expressed by the Coordinate Bench of this Court in Babu and the view expressed by the Bombay High Court in Sunil Vasantrao Phulbande convinced this Court that the view of the Division Bench in Kishan Lal is 25. In view of the above the petitioners contention that the report submitted on 27.05.2019 could not be construed as a report under Section 173(2) of the Cr.PC must be rejected. The first question is thus answered in the negative.” Crl.Rev.P.340 2020 15. Lastly learned Additional Public Prosecutor for State submitted that in view of decision of Hon’ble Division Bench in Kishan Lalthis petition deserves to be dismissed. In rebuttal learned senior counsel for petitioner submitted that the factual matrix of decisions in Babu and Mohd. Arbas is different from the present case as in the case in hand no recovery has been made from the petitioner and only evidence against him is the expert opinion on the voice samples. 17. The rival contentions raised by counsel for the parties have been heard in detail and I have gone through the impugned order material placed on record as well as decisions relied upon. 18. The question for consideration is whether rejection of petitioner’s application for bail in default by the trial court upon filing of supplementary charge sheet beyond the statutory period of 180 days without being accompanied by voice sample report of CFSL deserves to be upheld or set aside. Another issue raised is that the decisions relied upon by the prosecution in Tara Singh and State of Haryanawhich pertain to coming into force of NDPS Acthave application to the facts of the present case. I find that the aforesaid questions raised in the present Crl.Rev.P.340 2020 petition have already been put to rest by catena of judgments passed by this Court while relying upon Division Bench decision of this Court in Kishan Lal by a Single Judge of this Court wherein it has been held that an "incomplete challan" is not a police report within the ambit of Section 173(2) of the Code does not support the case of the petitioners. From the reported judgment it is not clear where all the witnesses or some of them "acquainted with the circumstances of the case" were yet to be examined when the report was filed. The reason for calling it incomplete is not discernible. But it is safer to assume from the reading of the judgment that the investigation was not complete. Thus the report as envisaged under Section 173(2) of the Code could not have been filed. 15. It is unnecessary for us to notice other judgments cited by the learned Counsels in support of their plea that the investigation in a case like the present is to be held to be incomplete. In our view the Supreme Court decision in Tara Singh s caseholding inter alia that a police report which is not accompanied by the expert s opinion Crl.Rev.P.340 2020 is to be held to be complete report as long as the witnesses who are acquainted with the circumstances of the case have been examined continues to be law in spite of amendments in Section 173 of the Code. 16. Now to advert to the main plea. It is contended that for offences under the NDPS Act the report under Section 173(2) of the Code which in law is complete is to be considered "incomplete" in the absence of the opinion of the expert. In our view the submission is entirely misconceived. Apparently the power of the Magistrate to take cognizance of offences upon police report is being related to the duty of the S.H.O. to forward a report on completion of investigation. The duty of the Investigating Officer under the Code is to complete the investigation without unnecessary delay. On completion which necessarily means that the witnesses acquainted with the circumstances of the case have been examined the officer incharge of the police station has to forward a police report in a prescribed form to a Magistrate empowered to take cognizance of the offence. However no duty is cast on the Magistrate to take cognizance of the offence on a report which although complete except for the expert s opinion does not make out an offence. While exercising his judicial discretion it is open to the Magistrate to seek a copy of the expert s Crl.Rev.P.340 2020 opinion. There may even be cases under the NDPS Act where no public witnesses have been cited but that fact by itself would not show that till such time the Government expert s opinion is received incomplete. The police report if filed in accordance with the provisions of Section 173(2) of the Code would be complete report but the Magistrate in his judicial discretion may not take cognizance of the offence. Thus the provisions of Section 173(2) of the Code have to be considered separate and distinct from Section 190(l)(b) of the Code. 17. As far as the expert s report is concerned we may note that by virtue of Sub section of Section 293 of the Code any document purporting to be report under the hand of the Director or a Deputy Director or Assistant Director of a Central Forensic Science Laboratory or State Forensic Science Laboratory can be used as evidence in any inquiry trial or other proceedings under the Code. It is true that it is open to the Court where it thinks fit to summon and examine the Government scientific expert. But he is not a formal witness and therefore no duty is cast upon the Investigating Officer to cite him as a witness. 18.We thus hold that under Section 173(2) of the Code there is no mandate that a police report must enclose the document purporting to be a report under the hand of a Crl.Rev.P.340 2020 Government Scientific Expert. In the present cases as cognizance of the offences taken by the Magistrate was proper and valid no order releasing the petitioners on bail under Section 167(2) of the Code was required to be Applying the ratio of decision in Kishan Lalto the present case I find that the learned trial court has rightly dismissed petitioner’s bail application while holding that though the FSL report has been filed after filing of bail application and after completion of 180 days of investigation but the charge sheet cannot be held to be incomplete because of the pendency of FSL report over voice sample as preparation of report on voice sample is not in the hands of IO. It cannot be lost sight of the fact that immediately after petitioner’s arrest on 13.03.2020 prosecution filed an application seeking permission to obtain voice sample of petitioner accused which was allowed on 20.03.2020 and on the same day voice samples were taken but thereafter because of lockdown due to covid pandemic report could be obtained only on 26.09.2020. 20. Moreover in the impugned order the learned trial court has taken note of the fact that the case of the prosecution rests upon alleged call interception and petitioner is allegedly the main member of syndicate whose mobile was intercepted. It has been brought to the notice of this court that Crl.Rev.P.340 2020 non bailable warrants were issued against the petitioner and he was arrested in FIR No. 91 2020 registered at police station Kalichak Malda West Bengal for the offence under Section 21 of NDPS Act and after issuance of production warrants he was arrested in this case. Pertinently 10.5 kg of heroin was recovered from his associates in the present case. Whether or not petitioner is involved in the offence in question is a matter of trial and cannot be gone into at this stage. Accordingly I am not inclined to grant relief to the petitioner. In this view of the matter impugned order does not call for any interference. The present petition is dismissed lest it may prejudice either 22. A copy of this order be transmitted to the Jail Superintendent concerned and trial court for information and necessary compliance. SURESH KUMAR KAIT) JUDGE side at trial. MARCH 22 2021 Crl.Rev.P.340 2020

Careful scrutiny is called for in suits of specific performance to a greater degree since after the amendment to Section 10 of the Specific Relief Act: High Court of Delhi

It is no longer res integra that when the court is considering the question of maintainability under Order VII Rule 11 CPC, it has to consider whether clever drafting is creating illusions of a cause of action as held by the High Court of Delhi through the learned bench led by Justice Asha Menon in the case of Ashwani Kumar v. Aditya Mannohar Bhide and Ors. (CS(OS)33/2021, I.As.790/2021) The Brief facts of the case are that the plaintiff/Ashwani Kumar has filed the present suit for specific performance of an oral agreement to sell a property in New Delhi. The four defendants are the owners of the suit property. It is to be noted that summons in the suit had not been issued as Ms. Malavika Rajkotia, learned counsel for the defendant No.1, appearing on advance notice, submitted that the suit was without cause of action and deserves to be rejected. In between, the parties were referred to the Delhi High Court Mediation and Conciliation Centre to enable them to work out an amicable settlement. However, the Mediation Centre reported that the efforts had failed. The Hon’ble High Court held, “It was highlighted that an agreement to sell relates to valuable property and the intention of the parties to reduce the terms of the agreement into writing had to be kept in mind before determining the existence of an oral agreement which was binding. This case held that while an oral agreement could be enforced, but for such an enforceable oral agreement, the sale consideration, the time of completion of the sale deed and the mode of payment, were all vital terms on which the parties ought to have been in agreement to result in a binding oral agreement. Thus, it is clear on facts and in law, the plaintiff has no cause of action, as no oral agreement, as claimed, had ever come into existence and neither was such an oral agreement intended by the parties, as they repeatedly referred to a written agreement to sell in the emails on which the plaintiff relies. Without a binding agreement between the parties, there is nothing to enforce specific performance of. Thus, the present suit is rejected as disclosing no cause of action under Order VII Rule 11(a) CPC, along with the pending applications.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on: 22nd October 2021 CS(OS)33 2021 I.As.790 2021 & 1206 2021 read with Section 151 CPC for filing of additional documents) ASHWANI KUMAR Plaintiff Through: Mr. Jayant Mehta Sr. Advocate with Mr. Sambit Nanda and Ms. Anu Srivastav Advocates ADITYA MANNOHAR BHIDE AND ORS. Through: Ms.Malavika Rajkotia Mr.Vivek Singh and Ms. Akriti Tyagi Advocates for D 1 HON BLE MS. JUSTICE ASHA MENON JUDGMENT The plaintiff Ashwani Kumar has filed the present suit for specific performance of an oral agreement to sell property bearing No.E 63 Vasant Marg Vasant Vihar New Delhi 110057 measuring 1240 sq. yds. hereinafter referred to as the “Suit Property”). The four defendants are the owners of the suit property. It is to be noted that summons in the suit had not been issued as Ms.Malavika Rajkotia learned counsel for the defendant No.1 appearing on advance notice submitted that the suit was without cause of action and deserves to be rejected. In between the CS(OS) 33 2021 parties were referred to the Delhi High Court Mediation and Conciliation Centre to enable them to work out an amicable settlement. However the Mediation Centre reported that the efforts had failed. 2. Mr. Jayant Mehta learned senior counsel for the plaintiff submitted that the question of maintainability could be raised by the defendants after the summons and the notice were issued and if necessary a preliminary issue in this regard could also be framed. There was no occasion to allow the defendants to raise objections to the maintainability of the suit without even the defendants being summoned in this suit. It was submitted that the defendants could not be heard at this juncture. It was also submitted that the question of existence and non existence of an oral agreement would be a matter of trial and evidence. Relying on the various emails placed on the record at pages No.6 to 28 and 30 to 34 in the “Documents Folder” of the E file filed by the plaintiff it was submitted that it was clear that the defendants were interested in selling the suit property and the plaintiff was interested in its purchase. The sale price was fixed at Rs.70 crores. However subsequently on 10th November 2020 the defendant No.1 became dishonest and sought a higher sale consideration of Rs.80 crores which derailed the entire process. It was submitted by the learned senior counsel that at all times the plaintiff was ready and willing to perform its part of the contract and had kept the required amount in the bank for immediate payment of the consideration as was reflected in the Certificate dated 11th January 2021 issued by the State Bank of India. Learned senior counsel for the plaintiff also pointed out that the CS(OS) 33 2021 law recognized oral agreements to sell and the courts had enforced such oral agreements directing the vendor to execute sale deeds in terms of the said oral agreements. Learned senior counsel argued that the court can consider only the averments made in the plaint and look into the documents that were relied upon by the plaintiff to determine this question as to whether there was a cause of action disclosed and could not consider the stand taken by the defendants at this juncture. Reliance has been placed on several judgments being Kollipara Sriramulu v. T. Aswatha Narayana 3 SCR 387 Aloka Bose v. Parmatma Devi 2009) 2 SCC 582 Brij Mohan v. Sugra Begum 4 SCC 147 Nathulal v. Phoolchand 3 SCC 120 Devender Singh v. Malik Buildcon Pvt. Ltd. 2018 SCC OnLine Del 10920 Ravinder Singh v. Chuckles Kohli 2010 SCC OnLine Del 4271 and Chuckles Kohli v. Ravinder Singh 2012 SCC OnLine Del 2135 in support of these contentions. In this regard it was also submitted that the plaintiff had filed an application under Order VII Rule 14(3) the Code of Civil Procedure 1908seeking to place on record a recorded conversation between the plaintiff Sh.Virendra Sahlot and the defendants No.1 and 2 along with its transcript to show that in actual fact an oral agreement had been reached between the parties which the plaintiff could legitimately seek to enforce. Thus it was submitted that the suit was maintainable and the summons be issued the pleadings be completed and the interim protection be granted restraining the defendants from creating any third party interests in the suit property. Learned counsel for the defendant No.1 referred to an order dated CS(OS) 33 2021 23rd July 2021 of a Co ordinate Bench of this Court in Tajunissa v. Vishal Sharma 2021 SCC OnLine Del 3803 to submit that the courts had the powers to determine the maintainability of a suit even before the issuance of summons and at that stage to permit the defendants to make their submissions to point out how the suit was not maintainable. Reliance was also placed on the decisions of the Supreme Court in Saleem Bhai v. State of Maharashtra 1 SCC 557 and in Dahiben v. Arvindbhai Kalyanji Bhanusali 7 SCC 366 in support of this submission. It was submitted that there was no concluded agreement between the parties. The sale consideration had not been determined as the discussions were being carried out by Sh.Virendra Sahlot on behalf of the plaintiff and the wife of the defendant No.1 whereas the confirmation of the remaining defendants of the sale consideration being Rs.70 crores had not been conveyed to the purchaser. Learned counsel submitted that even if the transcript of the recorded conversation was to be considered it would show that the defendants No.3 and 4 were not participating in the discussions and there was nothing to show that they had agreed to the sale price being Rs.70 crores. In any case it was submitted that the other terms of the agreement were not settled. Relying on Brij Mohan and Ors. v. Sugra Begum and Ors.4 SCC 147 learned counsel submitted that until and unless the parties were ad idem in respect of the material aspects of the agreement such as the sale consideration the payment schedule the execution of documents possession etc. no agreement can be held to have come into existence. According to learned counsel the emails reflected negotiations and nothing more. The parties were still working out a final agreement and CS(OS) 33 2021 which was to be either the agreement to sell followed by a sale deed or a straight sale deed. A tenant was in occupation of the suit premises and the tenancy had also to be completed and vacant possession handed over before the transaction was to be effected. These dates were also still not decided. Moreover pointing out to the contents of these emails the learned counsel submitted that the wife of the defendant No.1 had also asked the purchaser for a firm offer which was never sent and a draft agreement was not finalized. It was also submitted by learned counsel for the defendant No.1 that though the plaintiff claims that Sh.Virendra Sahlot was the common representative at no point of time had the defendants authorized Sh.Virendra Sahlot to finalize the deal on their behalf. Even the manner of payment of his commission was not decided. Thus the learned counsel for the defendant No.1 submitted that even if the averments in the plaint were accepted on demurrer the dots did not connect. No sale consideration including earnest money had been paid by the plaintiff to the defendants. Thus nothing in the nature of an agreement oral or otherwise existed the specific performance of which could be sought by the plaintiff. There is no doubt that the court on receipt of a plaint acts well within its powers to consider whether the summons have to be issued or whether the suit as framed was maintainable or not. These powers are drawn from Order VII Rule 10 and Rule 11 CPC. A Co ordinate Bench of this Court has already observed in Tajunissathat even at the pre summoning stage the court could hear both the parties on the question of CS(OS) 33 2021 the maintainability of the suit under Order VII Rule 11 CPC. This Court finds no reason to take a different view. It has been held in Devender Singh that an oral agreement to sell of an immovable property can be enforced though the existence of an oral agreement to sell would have to be based on cogent facts and evidence. Another Co ordinate Bench of this Court in Hardip Kaur v. Kailash 2012 SCC OnLine Del 2937 was dealing with a case in which the appellant’s suit for possession and mesne profits was dismissed by the trial court. The court observed that the appellant had received the total consideration and had handed over the vacant peaceful possession of the suit property to the defendant No.1 in that suit despite which the suit for possession was filed. In that background the court made the following observations: “26. False claims and defences are really serious problems with real estate litigation predominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. It is a matter of common experience that Court s otherwise scarce time is consumed or more appropriately wasted in a large number of uncalled for cases.” Keeping this cautionary advice in mind the present case needs to be considered carefully. It is no longer res integra that when the court is considering the question of maintainability under Order VII Rule 11 CPC it has to consider whether clever drafting is creating illusions of a cause of action. This careful scrutiny is called for in suits of specific CS(OS) 33 2021 performance to a greater degree since after the amendment to Section 10 of the Specific Relief Act w.e.f. 2018 it is now an obligation on the court to enforce the specific performance of a contract subject to Sub section 2 of Section 11 Section 14 and Section 16. As rightly pointed out by the learned counsel for the defendant No.1 a higher threshold will have to be crossed. 9. While the contentions of the defendants that Mr. Adarsh Agrawal had no authority the wife of the defendant No.1 had no authority the powers of attorney executed by the defendants No.2 3 & 4 were only reflective of an intention to sell the property are all contentions that would reflect the defence available to the defendants and need not be considered at this juncture this Court can certainly consider whether in fact an oral agreement to sell had been reached by the parties. Learned senior counsel for the plaintiff argued that even in Brij Mohanrelied upon by learned counsel for the defendant No.1 the decision had been rendered after trial and therefore such an opportunity must be granted to the plaintiff in the present case as well. However it is to be noted that the plaintiff has built his case on the foundation of the emails exchanged between the parties and the transcript of a recorded conversation. Since all the emails WhatsApp messages and the transcript are already on record this Court can consider whether the emails relied upon by the plaintiff establish the existence of such an oral agreement. We may therefore turn to the emails placed on the record and as highlighted by the learned senior counsel for the plaintiff. These emails are dated 16th June 2020 onwards and the last email is dated 15th CS(OS) 33 2021 November 2020. The transcript of the recorded call which has been sought to be placed on the record is dated 12th July 2020. 10. On 16th June 2020 an email was sent by Sh. Virendra Sahlot to Smt. Sunita Bhide wife of the defendant No.1 with an attachment. The attachment placed at page No. 7 in the “Document Folder” of the E file filed by the plaintiff is with a subject “confirmation of agreed service facilitation charges of 1% amount Rupees Seventy Lacs of the sale value of your property bearing No. 63 Vasant Marg Vasant Vihar New Delhi” 33 2021 words meant that the parties had in their mind the execution of a written agreement to sell. This was the position on 15th June 2020. It appears that a response was sent on behalf of the defendant No.1 to this letter which email is at the bottom of page No.8 and running into page No.9 of the “Documents Folder” filed by the plaintiff. This email on behalf of the defendant No.1 sought to clarify certain aspects. While it was expressed that the defendants were agreeable to pay cumulatively a fee of 1% for the sale of the property at the rate of Rs.70 crore they expressed that Rs.35 crores would be paid “at the time of signing the agreement” and a further Rs.35 crores “15 days prior to the handing over the property” which they expected would happen in January 2021. The commission was to be paid 50% “at the time of signing the sale deed” and balance 50% “at the time of handing over the property”. It was clarified that the delay in the schedule was not acceptable. It was further recorded in this email “kindly confirm and get the buyer’s confirmation that this would be acceptable”. From this email it is clear that the terms of the agreement were still under negotiations till June 2020. The parties were yet to decide the payment schedule the sequence of handing over vacant possession execution of sale deed and payment of commission. Most importantly it again shows the intention of the parties to enter into a written agreement to sell. That this was the position is evident from the next email dated 16th June 2020 sent by Sh.Virendra Sahlot which is placed at page No.8 of the “Documents Folder” recording “payment schedule for buyer CS(OS) 33 2021 is very clear” which was that the payment would be made within one month on vacation of the property by the tenant. It also recorded that “the buyer would like to go for a one time sale deed by all the sellers as and when happens but in case time was taken for the tenant to vacate “the plaintiff would like to have an agreement for sale now and sale deed for entire property” later in January 2021. Again confirmation of these terms were sought from the defendants. In any case the mail reiterates the intent to enter into a written agreement to sell. 11. The emails dated 17th June 2020 18th June 2020 22nd June 2020 and 29th June 2020 relate to “due diligence”. The email dated 20th July 2020 sent by the defendant No.4 Radhika Dilip Rasgotra to Sh.Virendra Sahlot is of a copy of the power of attorney without the High Commission attestation. This also seems to be part of “due diligence”. The WhatsApp messages sent by the defendant No.3 Rahul Aswhini Bhide were also in relation to the power of attorney again in furtherance of the requirement of “due diligence”. None of these emails and WhatsApp messages reflect the conclusion of an agreement but seem to be part of the negotiation process. 12. There is another email placed at page No.13 of the “Documents Folder” sent by the plaintiff which is dated 21st June 2020. This was addressed to Smt. Sunita Bhide wife of the defendant No.1. A perusal of this email once again shows that confirmation of the price of Rs.70 crores for the suit property was still being worked out. It records that “the purchaser i.e. the plaintiff was willing to increase the consideration from Rs.68 crores to Rs.70 crores subject to finalization of the other terms CS(OS) 33 2021 33 2021 was required to be done for which all details were required from Sh.Virendra Sahlot and once again it is recorded that the confirmation was required from the side of the plaintiff “so that I can proceed accordingly for due diligence and thereafter can enter in an agreement for sale”. This again means that no agreement was concluded. The material aspects of the sale transaction were yet to be completed including “due diligence” from both sides. The payment schedule of the sale consideration has also not been determined and accepted by both parties even if it was to be taken that sale consideration could be Rs.70 crores. Even up to 29th August 2020 the parties were still in the “due diligence stage” with no terms of the transactions finalized. 15. The emails are the only documents on the basis of which the plaintiff seeks to prove his case of there being a concluded oral agreement to sell. The emphasis is only on the so called consent of the defendants No.1 and 2 through Sh.Adarsh Aggarwal that the defendants had agreed to sell their property for a sum of Rs.70 crores. Even if this fact was conceded that the sale price had been agreed to by the parties it is very clear from the emails that the parties were yet to work out the payment schedule the schedule for handing over vacant possession and the execution of the sale deed. The parties were not ad idem because the emails show that they were moving back and forth on these terms. In the cases relied upon by the learned senior counsel for the plaintiff the facts are vastly different in that in those cases either consideration had been paid by the plaintiff or there was a written agreement executed and partly acted upon. Even in Devender Singhthe fact was that the 70% CS(OS) 33 2021 of the consideration had already been paid. Admittedly not a penny has been paid by the plaintiff to the defendants. In the present case the intention of the parties was clear as recorded in these emails that a written agreement to sell be executed. This intention of the parties cannot be overlooked only because the plaintiff seeks to pin the defendants down to Rs.70 crores as the sale consideration. In the absence of a written agreement to sell it cannot be held that there is any agreement to sell the specific performance of which the plaintiff can seek to enforce. It has been held by the Supreme Court in Brij Mohanthat in order to determine the binding nature of a contract between the parties the mere acceptance of the sale price is not sufficient. The other terms of the contract such as the schedule of payment the amounts to be paid the handing over of vacant possession by the tenant execution of the sale deed etc. were also important terms of the contract which are to be accepted by both sides before a contract of a binding nature could come into existence. It was highlighted that an agreement to sell relates to valuable property and the intention of the parties to reduce the terms of the agreement into writing had to be kept in mind before determining the existence of an oral agreement which was binding. This case held that while an oral agreement could be enforced but for such an enforceable oral agreement the sale consideration the time of completion of the sale deed and the mode of payment were all vital terms on which the parties ought to have been in agreement to result in a binding oral agreement. 17. Thus it is clear on facts and in law the plaintiff has no cause of action as no oral agreement as claimed had ever come into existence CS(OS) 33 2021 and neither was such an oral agreement intended by the parties as they repeatedly referred to a written agreement to sell in the emails on which the plaintiff relies. Without a binding agreement between the parties there is nothing to enforce specific performance of. 18. Thus the present suit is rejected as disclosing no cause of action under Order VII Rule 11(a) CPC along with the pending applications. 19. There is no order as to cost. 20. The judgment be uploaded on the website forthwith. ASHA MENON) OCTOBER 22 2021 CS(OS) 33 2021

A second complaint would not be maintainable if the first had been dismissed after a thorough examination of the case’s merits: Gauhati High Court

Law does not prohibit filing or entertaining second complaint even on the same facts, provided the earlier complaint has not been decided on the basis of insufficient material or order has been passed without understanding the nature of the complaint or complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. The judgment was passed by the High Court of Gauhati in the case of Subrata Choudhury @ Santosh Choudhury and 9 Ors v. State of Assam &amp; Anr. [Crl.Rev.P./95/2013] by Single Bench consisting of Hon’ble Justice Mir Alfaz Ali. The question raised in this revision petition is whether, after acceptance of the final report upon hearing the informant/complainant, a fresh complaint on the same set of fact is maintainable. Learned Counsel for the petitioners submitted that the facts alleged in the original complaint, which was registered as FIR and the facts alleged in the present complaint in question were the same and therefore on the same set of facts, the second complaint is not maintainable after acceptance of the final report upon hearing the complainant. Further contention of counsel is that the protest petition filed by the respondent against the final report shall be treated as the first narazi complainant, and therefore, the subsequent complaint in question after the rejection of the protest petition is also not maintainable being a second narazi complainant. Learned Counsel for the respondents submitted that acceptance of the final report is not a bar to a fresh complaint on the same facts, inasmuch as, such complaints are to be treated as narazi complainant. The further contention is that even if the objection petition filed by the respondent/complainant is taken to be the first narazi complainant, the second narazi complainant is also not barred by law. In the instant case, “it is not the case of a second complaint being filed after the dismissal of the first complaint under Section 203 CrPC. Although, initially the informant lodged a complaint, the same was forwarded to police under Section 156 (3) CrPC for investigation, which was registered as FIR and after investigation final report was submitted. The final report was accepted by the learned Magistrate after giving the opportunity of being heard to the informant and thereafter the complaint in question was filed.” Therefore, filing of a complaint after acceptance of the final report, which is popularly known as narazi complaint and the second complaint after dismissal of the first one under Section 203 CrPC on full consideration does not stand on the same footing, inasmuch as, the narazi complaint after acceptance of the final report submitted under Section 173 CrPC cannot be considered as a second complaint.

Page No.# 1 11 HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) THE GAUHATI HIGH COURT Case No. : Crl.Rev.P. 95 2013 SUBRATA CHOUDHURY @ SANTOSH CHOUDHURY and 9 ORS S O LT. SUKUMAR CHOUDHURY OF DHARMIKHAL GRANT AMRAGHAT P.S. DHOLAI DIST CACHAR ASSAM 2: BISWAJIT DEBROY S O RANJIT DEBROY OF MONIARKHAL T.E. P.S. DHOLAI DIST CACHAR 3: AMARENDRA BHATTACHARJEE S O LATE HARANATH BHATTACHARJEE OF DHARMIKHAL GRANT P.S. DHOLAI DIST CACHAR 4: HARAN CHAKRABARTY S O LT. HEMENDRA CHAKRABARTY OF AMRAGHAT P.S. SONAI DIST CACHAR 5: KANU RANJAN DAS @ SRI KANU DAS S O LATE PRAFULLA CH. DAS OF BHUBAN KHAL P.S. SONAI DIST CACHAR 6: ANJANA BARMAN W O ANIL BARMAN OF CHAKARCHAM P.S. SONAI Page No.# 2 11 DIST CACHAR 7: HIMANGSHU CHAKRABARTY S O SRI HARAN CHAKRABARTY OF AMRAGHAT P.S. SONAI DIST CACHAR 8: TUSHAR KANTI DAS @ SRI RAHUL DAS TUSHAR S O SRI RAKHIT DAS OF PALENGHAT P.S. DHOLAI DIST CACHAR 9: DILIP KUMAR DAS @ SRI DILIP DAS S O SRI GOURA MOHAN DAS OF DHARMIKHAL GRANT P.S. DHOLAI DIST CACHAR 10: MD. JASIM UDDIN S O MD. AZIR UDDIN OF DIDARKOSH P.S. SONAI DIST CACHAR THE STATE OF ASSAM and ANR 2:PHANI BHUSAN DEY S O LATE MOHENDRA KUMAR DEY R O DARMIKHAL GRANT AMRAGHAT P.O. DARMIKHAL P.S. DHOLAI PIN 788016 DIST CACHAR Advocate for the Petitione r MRJ RAHMAN Advocate for the Respondent : PP ASSAM Page No.# 3 11 HONOURABLE MR. JUSTICE MIR ALFAZ ALI JUDGMENT & ORDERLearned Sr. Counsel Mr. HRA Choudhury assisted by Mr. M. Khan learned advocate for the petitioners and learned Sr. Counsel Mr. A.M. Bora assisted by Mr. V. Choudhury learned advocate for the respondent have been heard. The question raised in this revision petition is whether after acceptance of final report upon hearing the informant complainant a fresh complaint on the same set of fact is The facts leading to the present revision petition are as under: The respondent No. 2 as complainant lodged a complaint before the Chief Judicial Magistrate Cachar Silchar on 12.11.2010 which was forwarded to police by the learned Magistrate under Section 156 of the CrPC for investigation. After investigation police submitted a final report stating that the allegation was not proved whereupon learned Magistrate issued notice to the complainant informant. Pursuant to the notice regarding submission of final report the respondent complainant filed an objection against the final report alleging that the investigation was not conducted properly and prayed for taking cognizance. However learned Magistrate after hearing the complainant informant accepted the final report and rejected the prayer of the informant. Thereafter the complainant filed a fresh complaint whereupon the learned Magistrate took cognizance treating the same to be a narazi complaint and issued process. Against the said order of the learned Magistrate taking cognizance against the revision petitioners they preferred a revision petition before this court challenging maintainability of the complaint. This court by order dated 24.05.2012 passed in Page No.# 4 11 Crl. Petition No. 12 2012 remanded the matter to the learned Magistrate to decide the question of maintainability of the complaint first and then to proceed with the case. Upon remand learned Magistrate by its order dated 12.07.2012 held that the complaint is not maintainable. Against the said order the respondent preferred a revision petition before the learned Sessions Judge and the learned Sessions Judge by order dated 18.02.2013 set aside the order of the learned Magistrate and send back the complaint to the learned Magistrate for taking cognizance. Aggrieved by the order of the learned Sessions Judge in Criminal Revision Petition No. 101 2012 the accused petitioners have preferred the instant revision petition. Learned Sr. Counsel for the petitioners Mr. HRA Choudhury submitted that the facts alleged in the original complaint which was registered as FIR and the facts alleged in the present complaint in question were same and therefore on the same set of facts the second complaint is not maintainable after acceptance of the final report upon hearing the complainant. Further contention of Mr. Choudhury is that the protest petition filed by the respondent against the final report shall be treated as the first narazi complainant and therefore the subsequent complaint in question after rejection of the protest petition is also not maintainable being a second narazi complainant. To buttress his submission Mr. Choudhury placed reliance on the following decisions. 2012) 1 SCC 130: Shivshankar Singh Vs. State of Bihar & Anr. AIR 1980 SC 1883: H.S. Bains Vs. State2 SCC 631:Poonam Chand Jain & Anr. Vs. Fazru Learned Sr. Counsel for the respondents Mr. A.M. Bora submitted that acceptance of final report is not a bar to a fresh complaint on the same facts inasmuch as such complaints are to be treated as narazi complainant. Further contention of Mr. Bora is that even if the objection petition filed by the respondent complainant is taken to be first narazi complainant the second narazi complainant is also not barred by law. In support of his submission Mr. Bora placed reliance on the following decisions: 2001GLT 427: Jamuna Shah & Ors. Vs. Bhuban Chandra Kalita 2003) 1 SCC 734: Mahesh Chand Vs. B. Janardhan Reddy & Anr. 2012) 1 SCC 130: Shivshankar Singh Vs. State of Bihar & Anr. Page No.# 5 11 In Shivsankar Singhtwo FIRs were lodged for the same occurrence resulting in registration of two cases and both the cases were investigated by police. During investigation the informant of one of the case filed a protest petition but the same was not pursued. In the meantime in one of the police case charge sheet was filed and trial was also concluded in favour of the accused persons. In the other police case final report was submitted. After submission of the final report the informant lodged a complaint on the basis of which learned Magistrate took cognizance and issued process which was challenged by the accused and eventually the matter landed in the Supreme Court. The question before the Apex Court was whether in v iew of the earlier protest petition which was not pursued the second complaint was maintainable. The Apex Court observed that a second narazi complaint is not barred by law and the same can be entertained under exceptional circumstances and held in paragraph 19 as under: “19. The Protest Petition can always be treated as a complaint and proceeded with in terms of Chapter XV of Cr.P.C. Therefore in case there is no bar to entertain a second complaint on the same facts in exceptional circumstances the second Protest Petition can also similarly be entertained only under exceptional circumstances. In case the first Protest Petition has been filed without furnishing the full facts particulars necessary to decide the case and prior to its entertainment by the court a fresh Protest Petition is filed giving full details we fail to understand as to why it should not be maintainable.” In paragraph 18 of the said judgment in Sivshankar Singh’s case relied by the learned counsel for the petitioner the Apex Court held that second complaint would not be maintainable where the earlier complaint has been disposed of on full considerat ion of the case on merit. The Apex Court further held that law does not prohibit filing or entertaining second complaint even on the same facts provided the earlier complaint has not been decided on the basis of insufficient material or order has been passed without understanding the nature of the complaint or complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. In H.S. Bainsthe Apex Court considered the three available options before the Magistrate when a final report is submitted by police upon investigation of a complaint forwarded to it by Magistrate under Section 156(3) CrPC. The Apex Court held as under: Page No.# 6 11 “6. ….. The mere fact that he had earlier ordered an investigation under Sec. 156(3) and received a report under Sec. 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200 203 and 204. Thus a Magistrate who on receipt of a complaint orders an investigation under Sec. 156(3) and receives a police report under Sec. 173(1) may thereafter do one of three things:he may decide that there is no sufficient ground for proceeding further and drop action he may take cognizance of the offence under Sec. 190(1)(b) on the basis of the police report and issue process this he may do without being bound in any manner by the conclusion arrived at by the police in their report:he may take cognizance of the offence under Sec. 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Sec. 200 If he adopts the third alternative he may hold or direct an inquiry under Sec. 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process as the case may be ..................” In Bindeswari Prasad Singhthe Apex Court held that a second complaint lies only on fresh facts or even on the previous facts only if a special case is made out. In Poonam Chand Jainthe question before the Apex Court was whether after an order of dismissal of complaint attained finality can the complainant file another complaint on almost identical facts without disclosing in the second complaint the fact of either filing of the first complaint or its dismissal. Referring to an earlier decision of three judges bench in Pramatha Nath Talukdar Vs. Saroj Ranjan Sarkar reported in AIR 1962 SC 876 the Apex Court held that a second complaint on the same fact is maintainable only under exceptional circumstances as laid down in Pramatha nath Talukdar’s case. In Jamuna Shahwhere a complaint was filed after acceptance of the final report this court held that acceptance of final report is not a bar for filing a fresh complaint on the same facts. However in appropriate cases the Magistrate may before issue of process hold an enquiry under Section 202 CrPC to satisfy himself about the existence of any prima facie case. In Mahesh Chandalso the Apex Court held that a second complaint on the same fact could be entertained only in exceptional circumstances namely where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd unjust or where new facts which could not with Page No.# 7 11 reasonable diligence have been brought on record in the previous proceedings have been adduced. Thus law is well settled as regards maintainability of second complaint. Once the first complaint is dismissed after full consideration the second complaint on the same fact can be maintainable only under exceptional circumstances as laid down in the case of Pramatha Nath Talukdarviz. manifest error manifest miscarriage of justice new facts which complainant had no knowledge or could not with reasonable diligence have brought forward in the previous proceeding previous order of dismissal on an incomplete record or misunderstanding of the nature of complaint. 12. When the Magistrate takes cognizance under Section 190 of the CrPC upon a complaint the Magistrate is required to examine the complainant and the witnesses present under Section 200 CrPC and upon such examination if the Magistrate is satisfied that there is sufficient ground for proceeding against the accused he may issue process under Section 204 CrPC. The Magistrate may also postpone the issue of process and conduct an enquiry himself under Section 202 CrPC or direct an investigation by police or any other person. Once the Magistrate after examining the complainant and the witnesses produced by it or upon enquiry under Section 202 CrPC come to the conclusion that no prima facie case has been found he may dismiss the complaint under Section 203 CrPC. Thus when a complaint is dismissed under Section 203 CrPC upon full consideration maintainability of the second complaint on the same fact is circumscribed. The second complaint on the same fact shall be maintainable only under exceptional circumstances as indicated above. Therefore law does not create a blanket bar against a second complaint on the same facts. In the instant case it is not the case of a second complaint being filed after dismissal of the first complaint under Section 203 CrPC. Although initially the informant lodged a complaint the same was forwarded to police under Section 156 CrPC for investigation which was registered as FIR and after investigation final report was submitted. The final report was accepted by the learned Magistrate after giving opportunity of being heard to the informant and thereafter the complaint in question was filed. Therefore filing of a complaint after acceptance of final report which is popularly known as narazi complaint and the second complaint after dismissal of the first one under Section 203 CrPC on full consideration does not stand on the same footing inasmuch as the narazi complaint after acceptance of the final report submitted under Section 173 CrPC cannot be considered as a second complaint. Page No.# 8 11 As noticed in the case of H.S. Bains Vs. Statethere are three options available before the Magistrate when a final report is submitted after the investigation carried out on the basis of a complaint forwarded by Magistrate under Section 156CrPC. Firstly the Magistrate may accept the final report and drop the proceeding secondly may reject the final report and may take cognizance irrespective of the conclusion arrived at by police and thirdly take cognizance of offence under Section 190(1)(a) CrPC on the basis of the original complaint and issue process. If the Magistrate adopt the third alternative of taking cognizance on the basis of the original complaint the Magistrate has to proceed under Section 200 CrPC with regard to examination of the complainant and witnesses present or may also hold an enquiry by himself or direct an investigation under Section 202 CrPC in order to take decision whether to proceed further under Section 203 or 204 CrPC. If the Magistrate having adopted the third alternative dismisses the complaint and thereafter a fresh complaint is filed then only it can be treated as a second complaint in reference to the original complaint which ended in final report. If the Magistrate adopts the first option and drop the proceeding by accepting the final report and thereafter a complaint is filed even on the same facts which is generally called narazi complaint the said complaint filed after acceptance of final report shall not be considered as second complaint with reference to first complaint which was registered as FIR nor such complaint after acceptance of final report is barred by law. In the present case since the Magistrate did not adopt the third alternative of taking cognizance and dismissal of the complaint the subsequent complaint upon acceptance of the final report can by no stretch of imagination be called a second complaint on the same fact. One must bear in mind the distinction between the dismissal of a complaint under Section 203 CrPC after full consideration and dropping the proceeding by accepting final report submitted under Section 173 CrPC. When the Magistrate takes cognizance on the basis of a complaint under Section 190(1)(a) the Magistrate is required to examine the complainant and the witnesses present and the Magistrate may also hold an enquiry himself or direct an investigation under Section 202 CrPC for the purpose of taking a decision whether there is Page No.# 9 11 sufficient ground for proceeding against the accused. In such circumstances it is the complainant who has to prima facie establish his case by adducing evidence or material before the Magistrate. However when the Magistrate takes cognizance on the basis of police report under Section 190(1)(b) or refused to take cognizance and accept the final report the Magistrate usually acts on the basis of the materials produced by the investigating agency along with the final report. Therefore when the complainant being aggrieved by the final report and acceptance thereof files a protest petition or a narazi complaint on the same facts alleging that the investigation was faulty such narazi complaint cannot be called second complaint nor the complainant can be debarred from filing such complaint on the same facts after acceptance of the final report. In the instant case evidently after submission of the final report notice was issued and the complaint by filing an application raised objection against the final report stating that the investigation was not carried out properly. After hearing the complainant informant learned Magistrate by an elaborate order rejected the objection raised by the complainant and accepted the final report. The order by which learned Magistrate accepted the final report would show that the learned Magistrate considered only the materials collected by police during investigation. When the respondent complainant raised objection against the bonafide of the investigation the respondent complainant cannot be debarred from filing a narazi complaint only because he was heard before accepting the final report. Issuing notice of the final report or giv ing opportunity of being heard to the informant before acceptance of final report is a legal requirement. Therefore even the final report is accepted upon hearing the informant that does not debar the informant from filing a protest petition or a narazi complaint. Right of the complainant to file a narazi complaint is irrespective of the fact whether final report was accepted ex parte or upon hearing the informant. Therefore in my considered opinion the narazi complaint on the same facts shall not be barred only because the final report was accepted after hearing the complainant nor the same can be treated as a second complaint inasmuch as there was no dismissal of any first complaint under Section 203 CrPC after full consideration. The second submission of Mr. HRA Choudhury learned Sr. Counsel for the petitioners is Page No.# 10 11 that the objection petition filed by the informant complainant upon receipt of notice regarding submission of final report was itself a protest petition narazi complaint and as such there could not be a second narazi complaint on the same set of facts. On the fact situation of the present case even if the objection petition filed by the complainant is treated as a protest petition or first narazi complaint which if deemed to have been dismissed by the learned Magistrate by virtue of the order of accepting the final report the only question that may arise is whether the complaint in question in the present case is barred being a second narazi complaint on the same facts. The question is answered by the Apex Court in Shiv Shankar Singh Vs. State (supra). The Apex Court in paragraph 19 of the judgment clearly held that a second narazi complaint on the same facts is maintainable under exceptional circumstance. Therefore it needs to be seen whether there was any special or exceptional circumstances to entertain the so called second narazi complaint. A perusal of the objection petition would show that the objection petition was filed without full facts and particulars. For better appreciation the contention of the said petition is reproduced below. “1. The informant petitioner has recently learnt that the police has submitted Final Report in connection the case. The informant petitioner being aggrieved with the said final report likes to submit that no proper investigation in this case and the requisite documents revealing the involvement of the accused in connection with the offence have also not been seized by the police. 2. As such the petitioner informant submits that there is sufficient materials for taking cognizance in the case and the petitioner will take all requisite steps in connection with the case.” Evidently the learned Magistrate did not act upon the said protest petition inasmuch as the learned Magistrate did not proceed under Section 200 202 of the CrPC treating the same as narazi complaint. When the learned Magistrate did not proceed under Section 200 to 204 CrPC for taking cognizance upon received of the first protest petition nor the protest petition was dismissed under Section 203 CrPC the complaint in question though considered Page No.# 11 11 to be a second narazi complaint with reference to the first protest petition as indicated above the same is not barred under law reason being that the alleged first protest petition did not contain detailed particulars of the case required for decision nor the learned Magistrate proceed on the basis of the first petition under Section 200 202 CrPC and therefore the alleged first protest petition in my cosndiered view cannot be held to have been dismissed after full consideration under Section 203 CrPC. Even if it is assumed for the sake of argument that the first protest petition was dismissed after full consideration the narazi com plaint in question is maintainable for special circumstances namely the first protest petition did not contain the full facts and particulars necessary to decide the case and the same was cosndiered on incomplete facts and particulars and the learned Magistrate also did not examined the complainant or any witnesses under Section 200 CrPC nor proceeded under Section 202 CrPC to decide whether there was sufficient ground for proceeding. Therefore in any view of the matter the present complaint in question cannot be considered as second complaint and the same also cannot be held to be barred for acceptance of the final report. Secondly even if it is considered to be second narazi complaint with reference to the first protest petition then also the complainant is not barred in the facts situation of the case because of the special on exceptional circumstances as indicated above. For the reasons stated above this court do not find any fault with the impugned order passed by the learned Sessions Judge and accordingly the revision petition is dismissed. The matter be remanded back to the learned Magistrate to proceed with the complaint in accordance with law. Comparing Assistant

“Further, the issue raised by the Appellant regarding the ……is a matter of grievance which cannot be adjudicated as far as mandate of RTI Act is concerned.”: SEBI, Part 1.

Exchange Board of India comprising of Mr. Amarjeet Singh adjudicated in the matter of Mayank Kumar Agarwal v CPIO, SEBI, Mumbai (Appeal No. 4363 of 2021) dealt with an issue in connection with Section 2 (f) of the Right to Information Act, 2005. The appellant, Mr Mayank Kumar Agarwal 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 22nd of June, 2021, filed by the appellate. After receiving a letter from the respondent on 22nd of June, 2021, on his application, the appellate decided to file an appeal on the 6th of July, 2021. The appellant has filed the appeal on the ground that the information provided was incomplete, misleading or false. On perusal of the appeal, it appears that the appellant is not satisfied with the reply to the queries which have been categorized as seeking “clarification and not information”. In view of the submissions of the appellant, Appellate authority Mr Baiwar was only dealing with query numbers 2, 3, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23 in this appeal. The appellant in his application was seeking the following information: 4. Why my complaint was closed in spite of my repeated objection? 5. Why I was not given any chance to submit my documents and my point of view?

Appeal No. 43621 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43621 Mayank Kumar Agarwal CPIO SEBI Mumbai The appellant had filed an application dated June 04 2021under the Right to Information Act 2005 submitted by the complainant as well as confirmation mail of brokerage rate agreed by the TM was not considered while closing my 3. Why the ledger demanded by the complainant was not given by the TM 4. Why my complaint was closed in spite of my repeated objection 5. Why I was not given any chance to submit my documents and my point of view 6. Why the matter was not referred to IGRP in spite of my repeated requests Appeal No. 43621 7. How many complaints has been filed with SCORE against the said TM during the last 6 months 8. How many complaints have been closed by the SEBI NSE by their own without the consent of the respective complainant filed with SCORE against the said TM during the last 6 months 9. What is the procedure of referring the matter to the IGRP by the client 10. If the NSE closed my complainant as one sided what remedies is available with the complainant to take the matter with the IGRP 11. What action will SEBI take against the NSE if it is found that the NSE has repeatedly closed the complaints intentionally and unilaterally without the consent of the complainant against a particular TM 12. Does The NSE close my complaint just because the TM has filed a civil suit for a different matter. 13. Why my complaint has been closed when the TM s suit filed in the civil court is nothing to do with my complaint as the nature of my complaint is within the preview of the ISC of NSE and the Civil suites file by the TM is not with in the preview of the NSE 14. As per KYC any dispute between the client and the TM should be reported to the ISC of NSE and or SCORE of SEBI which the client has done. Why this was not considered 15. Why the NSE SEBI has not consider that the TM has filed the suit on 16.03.2021 i.e. after filing of my first complaint on 05.03.2021 which itself proves that it is an afterthought. 16. Why the NSE SEBI has not consider that my complaint with the TM is for the unauthorised trades square off of the position without any intimations and the excess brokerage charged than that of the agreed rate and as mentioned in KYC. Whereas the TM’s suit is for enhanced exposure charges . 17. Have any one even heard about any enhanced exposure charges charged by any TM for which this TM has filled the suite How funny is this that the NSE is closing all the complaint of the Investors on this bogus point 18. When The TM has not filed any suit about my complaint related to the unauthorized trades square off of the position without any intimations and the excess brokerage charged than that of the agreed rate KYC. Further the TM’s suit has nothing to do with my complaint. Then how my matter becomes sub judice 19. Why my matter has been closed when No court has granted any type of stay order of any nature whatsoever against my complaint 20. Why the NSE SEBI to close my complaint without any court and why I was not allowed to use my right to refer the dispute with the ISC of NSE and or SCORE of SEBI. 21. Why my complaint has been closed when the resolution of the relevant dispute is exclusively in the domain of the NSE SEBI and no civil court can intervene in such proceeding Mere filing of a civil suit cannot be a bar to the proceedings for redress before the NSE. Appeal No. 43621 22. It is the established law that any disputes if any will be referred to the Arbitration Mechanism of the NSE SEBI. Why I was not allowed to use this right 23. It is found that the TM used to file some Civil Suites for some other issuesin the civil court against the investors and based on that the NSE used to closed the matter just mare on the request of the TM without giving any chance to the investors to submit his point of view. The NSE also ignores the investors request for referring the matter to the IGRP Why The respondent in response to all the above queries observed that the same are in the nature of seeking clarification opinion and accordingly cannot be construed as “information” as defined under section 2(f) of the RTI Act. The respondent also observed that the query numbers 2 3 5 6 9 10 12 13 14 17 18 19 21 22 and 23 are directed towards Exchange or Trading Member. I have perused the queries and the response provided thereto. It appears that the queries are in the nature of seeking clarification opinion from the respondent regarding disposal of his complaint filed on the SCORES portal. It is understood that the respondent is not supposed to create information or to interpret information or to furnish clarification to the appellant under the ambit of the RTI Act. I find that the said queries cannot be construed as seeking ‘information’ as defined under section 2of the RTI Act. In this context reference is made to the matter of Vineet Pandey vs. CPIO United India Insurance Company Limitedand Parvinder Singh vs. Public Information Officer under RTIwherein similar observations were made by the Hon’ble CIC. Further in the matter of Shri Shantaram Walavalkar vs. CPIO SEBII note that the Hon’ble CIC held: “... we would also like to observe that under the Right to InformationAct the citizen has the responsibility to specify the exact information he wants he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO...”. In view of the said observations the respondent did not have an obligation to provide such clarification opinion under the RTI Act. Further the appellant in his appeal has raised grievance regarding filing of suits by a Trading Member and closure of complaints filed against the Trading Member. I note that the Hon’ble CIC in the matter of Sh. Triveni Prasad Bahuguna vs. LIC of India Lucknow held: “The Appellant is informed that … redressal of grievance does not fall within the ambit of the RTI Act rather it is up to the Appellant to approach the correct grievance redressal forum…”. Further in the matter of Ravindra Mamgain vs. CPIOthe Hon’ble CIC held that “Further the issue raised by the Appellant regarding the is a matter of grievance which cannot be adjudicated as far as mandate of RTI Act is concerned.” In Appeal No. 43621 view of these observations I find that if the appellant has any grievance the remedy for the same would not lie under the provisions of the RTI Act. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed. Place: Mumbai Date: August 02 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

DWARKA NATH & ANR. V/S MUNCIPAL CORPORATION OF DELHI

The object of this rule was to prevent the public or the purchaser being deceived or misled as to the character, quality or quantity of the article. [Case Brief] Dwarka Nath &amp; Anr. vs Municipal Corporation Of Delhi Brief Facts and Procedural History: The appellants were carrying on business in ghee. On the labels of the tins of ghee the name of the business premises of the appellants and the postal division were given but the number of premises and the locality where the premises was situated were not given.  On the ground that the label did not conform to the packing and labeling rules as required under r. 32(b) and (e) of the rules made under s. 23(1) of the Prevention of Food Adulteration Act, 1954, the appellants were prosecuted and were convicted, and a token fine of Re. 1 was imposed on them. The judgment of the High Court emphasised upon the violation of r. 32(e). Rule 32(e) provides that:  Every label should specify the batch number or code number either in Hindi or English numerical or alphabets or in combination, and r. 32(b) requires the name and address of the manufacturer or importer or vendor or packer to be given on every label.Therefore, this  Appeal by special leave from the judgment and order dated November 7, 1967 of the Delhi High Court in Criminal Revision. No. 371-D of 1965. Issue before the Court:  Whether Rule 32(b) and (e) of the Prevention of Food Adulteration Rules, 1955 is ultra vires as being beyond the rule making power under S. 23 of the Prevention of Food Adulteration Act, 1954. Ratio of the Court:  Dr. V. A. Syed Mohammad, appearing for the learned Attorney General, contended that the impugned rule could be sustained under clauses (c), (d) and (g) of Section 23( (1). In particular he supported in full the reasons given by the High Court that the impugned rule is within the ambit of the rule making power under Section 23 (1) (d).Also, Mr. B. P. Maheshwari, learned counsel for the respondent, urged that apart from the clauses referred to on behalf of the Attorney-General, the rule could be sustained even under Section 23(1)(f).In order to appreciate the contentions urged before us, the Court further examined the material part of Section 23 as well as the relevant rules. Admittedly there is no definition of the expressions “Batch number” or “Code number” either in the Act or in the Rules. Nor has any affidavit been filed on behalf of the respondent or by the Attorney General of any expert whether these expressions have any technical meaning in the trade and if so what that is. it is clear that there is no specific meaning attached to these two expressions either in the Act or in the Rules and even the Food Inspectors are not very clear as to what those expressions mean.We are not able to find anything in Clauses (c), (f) and (g) of Section 23 (1) of the Act, which will give power to the Central Government to frame rules requiring the name and business address of manufacturer or vendor being given ; or for Batch Number or Code number being given on the labels. The object of this rule was to prevent the public or the purchaser being deceived or misled as to the character, quality or quantity of the article. We have already pointed out that in this case the label contained the words “pure ghee” and on analysis of the, sample it has been found to conform to the standard. It is difficult for us to appreciate how the giving of the batch number or the code number alone without giving any further particulars such as date of manufacture of the article of food and the period within which the said article has to be utilised, used or consumed and the quantity of the article in a container, will prevent the public or the purchaser being deceived or misled as to the character, quality or quantity of the article. No attempt has been made by the respondent to establish any relation between the giving of the batch number or the code number with the public or the purchaser being prevented from being deceived or misled in respect of the matters referred to in Clause (d). We are not able to find any rational or even a remote connection between the batch or code number artificially given by a packer and the public or the purchaser being prevented from being deceived or misled as to the character, quality or quantity of the article, contained in a sealed tin.Although, It is well known that in many cases in business, the name and address of a manufacturer, or importer, or vendor or packer has become associated with the character, quality or quantity of the article and as such we are of the opinion that Clause (b) of Rule 32 is a valid rule but Clause (e) of Rule 32 is invalid as previously held.  Decision Held:  In the circumstances of this case, we are of the view, that the appellants could not be convicted for a technical breach of Rule 32(b) alone. Therefore, the conviction of the appellants for offences, under Rule 32(b) and (e) as well as the fine imposed in the sum of Rs. 1 for the said offence, are both set aside. In the result, the appeal is accordingly allowed and the judgment and order of the Delhi High Court in Criminal Revision No. 371-D of 1965 are set aside. The fine, if collected, will be refunded.

DWARKA NATH & ANR Vs MUNICIPAL CORPORATION OF DELHI DATE OF JUDGMENT23 04 1971 VAIDYIALINGAM C.A VAIDYIALINGAM C.A SIKRI S.M.314 The Prevention of Food Adulteration Acts 23(1)(d) andand Rules made thereunder r. 32(b andIf within rule making power The appellants were carrying on business in ghee. On the labels of the tins of ghee the name of the business premises of the appellants and the postal division were given but the number of premises and the locality where the premises was situate were not given. On the ground that the label did not conform to the packing and labeling rules as required under r. 32(b) andof the rules made under s 23(1) of the Prevention of Food Adulteration Act 1954 the appellants were prosecuted and were convicted and a token fine of Re. 1 was imposed on them. The judgment of the High Court emphasised upon the violation of r. 32(e Rule 32(e) provides that every label should specify the batch number or code number either in Hindi or English numerical or alphabets or in combination and r. 32(b requires the name and address of the manufacturer or importer or vendor or packer to be given on every label The first proviso to r. 32 excludes the operation of cls a) to of the said rule in respect of food packages weighing not more than 60 grams On the question whether sub rr. 32(b) andwere within the rule making power under s. 23(1) cls.(d) and HELD:(1) The sub rules could not have been made under cl. relates to prohibiting the sale or defining the conditions of sale of any substance injurious to health when used as food. This clause also has no application because ghee is not a substance injurious to health when used as food.will have no application because one of the essential requirements therein is that the rules made under it should be related to the interest of public health. Any rule made under this clause must be of universal application because it is in the interest of public health. The requirement regarding compliance with any such rule cannot depend upon the quantity of food packed in any container Therefore the fact that food packages not weighing more than 60 grams are excluded under the proviso to the rule is an indication that r. 32 is not framed under s. 23(1 g) of the Act.(d) must be with a view to preventing the public or the purchaser being deceived or misled as to the character quality or quantity of the article. The giving of the batch number or code number alone without giving any further particulars such as the date of manufacture of the article and the period within which the said article has to be used or consumed and the quantity of the article in the container will not prevent the public or a purchaser from being deceived or misled as to the character quality or quantity of the article.is beyond the rule making power even under s. 23(d) of the Act. Since r. 32(e) is invalid the appellants could not have been convicted for its violation.is within the rule making power under s 23(1) because it is well known that in many cases in business the name and address of a manufacturer or importer or vendor or packer has become associated with the character quality or quantity of the article.also the appellants were acquitted.]and of the Prevention of Food Adulteration Rules 1955 is ultra vires as being beyond the rule making power under S. 23 of the Prevention of Food Adulteration Act 1954 andof the Rules. As all the complaints are on the same pattern we will just refer to one of those complaints filed on the basis of the report of the Food Inspector Lekh Raj Bhutt. The averments are that the said Food Inspector on December 29 1962 at about 12.55 p. m took a sample of pure ghee from the appellants from one of the sealed tins of pure ghee exhibited for sale at the sale counter after due observance of the Rules. One sealed bottle was given to the appellants at the spot. The labelled tin of pure ghee from which the sample was taken was also seized by the Food Inspector in the presence of witnesses and the said tin is produced as an exhibit. The complaint further proceeds to state that the sample of pure ghee taken from the appellants conformed to the standard of pure ghee. According to the report of the Public Analysts the sealed tin of pure ghee from which the sample was taken had a label but itdid not conform to the packing and labelling Rules under the Act inasmuch as the name and business address of the manufacturer or packer or vendor and batch or Code numbers had not been specified on the label as required under Rule 32(b) andof the Rules and that the appellants are guilty for non obserance of the Labelling Rules. The respondent ultimately prayed that the appellants may be punished according to law for contravention of Rule 32(b) andof the Rules Similarly the charge framed in each of the five cases was also on the same pattern. The charge after referring to the substance of the complaint and after referring to the fact that the sample of ghee taken from the shop of the appellants conformed to the standard alleged "But complete address Batch or Code No. etc were not written on the ghee tins seized by the Food Inspectors Therefore you are to show cause why you should not be punished under section 7 16 PFA Act 1954 read with rule 32(b) andof PFA Rules 1955 The appellants pleaded not guilty to the charge One of the Food Inspectors Dina Nath has given evidence as P. W. 1. We will only refer to that part of his evidence which has a bearing on the point for consideration before us. In chief examination he has stated that when he examined the tin from which the sample of ghee had been taken he found that the tin did not bear the batch number the code number and that the address given therein was incomplete. In cross examination he has stated that the address given on the label was Mohan Ghee Laboratories New Delhi 5 and there was also a further writing "Pure Ghee He was not able to say whether the address referred to above and found on the tin was incomplete. He has further stated that though he has been working as Food Inspector from about 1949 he does not remember if he had seen the premises number written on any packing. He has further stated that Batch Number can start from any serial number. I am saying about serial number by commonsense......... Code No. and Batch number is the same We will refer to the question put to the first appellant when he was examined under section 342 and to his answer in respect of the labelling and packing "Q. There is an allegation against you that labelling and packing of the Ghee tins taken in possession was defective since they do not bear the complete address of your shop Code number and Batch number. What have you to say A.It is incorrect. Labelling and packing were in order address was also correct The appellants had also examined some of their employees We will refer to the material part of the evidence of D.W 2. who was incharge of supervising the packing of the ghee He has referred to the fact that the address of the shop of the appellants is Mohan Ghee Laboratories New Delhi 5 and that they receive letters addressed as above. He has further stated that the appellants purchase ghee from outsiders in small tins and utensils and then pack them in their premises. In cross examination he has stated that the premises of the appellants is situated in 37 Nai Wallan Gurdwara Road Karol Bagh The Trial Magistrate has rather elaborately gone into the question whether the samples of ghee seized from the appellants conform to the standard and criticises without any basis the evidence of the defence witnesses on the ground that the appellants should not have printed on the label "Pure Ghee" when they could not have known the quality of ghee stored in the containers. This discussion is totally irrelevant because even according to the res pondent the Public Analysts had certified that the samples conformed to the standard and the appellants were not being tried for adulteration of ghee Regarding the requirement regarding the Batch number or Code number the Magistrate after reference to Rule 32(e) holds that the provision is mandatory and the object of giving those particulars is to indicate the serial order in which the particular article of food was packed and thereby to indicate the period for which it could remain fit for human consumption. We are not able to appreciate wherefrom the Magistrate got all these indications because the relevant Rule does not provide for giving any particulars regarding the period for which the article of food could remain fit for human consumption. Ultimately the Magistrate found the appellants guilty for contravening Rule 32(b) and and sentenced them to pay a token fine of Re. 1 in each of the The appellants challenged their conviction before the learned Additional Sessions Judge Delhi. The Sessions Judge by his order dated October 18 1965 agreed with the Trial Magistrate that the appellants are guilty of breach of Rule 32(b) andof Rule 32 as they have given on the label the address as "Mohan Ghee Laboratories New Delhi 5." without giving the number of the premises and the locality where the premises is situate Similarly the learned Sessions Judge is of the view that the object of specification of Batch number and Code number is to track down all the samples of food stuff that were packed out of a particular lot if the authorities found the sample to be defective. This will enable the authorities to at once withdraw from the market all the containers of a particular Batch number. In this view the learned Session Judge held that the appellants have committed breach of Rule 32(e The learned Chief Justice of the Delhi High Court in the order under attack has held that it is enough if the appellants are convicted in one case and accordingly the reference made by the Additional Sessions Judge in this regard was accepted. But on the main question as to whether Rule 32andwas within the rule making power under Section 23 of the Act the learned Chief Justice has held that the said rule is intra vires and comes within the rule making power conferred under Section 23(1)andandis beyond the rule making power conferred under Section 23(d) of the Act. The learned counsel further pointed out that the reasons given by the High Court are not warranted by the provisions of either the Act or the Rules Dr. V. A. Syed Mohammad appearing for the learned Attorney General contended that the impugned rule could be sustained under clauses (d) andof Section 23( (d Mr. B. P. Maheshwari learned counsel for the respondent urged that apart from the clauses referred to on behalf of the Attorney General the rule could be sustained even under In order to appreciate the contentions urged before us it is necessary to refer to the material part of Section 23 as well as the relevant rules. Section 23(1) gives power to the Central Government to make rules. We have already referred to the clauses on which reliance is placed on behalf of the Attorney General and by the respondent namely clauses(d) with those clauses reads as follows "23(1) Power of the Central Government to make rules The Central Government may after consultation with the Committee and subject to the condition of previous publication make rules laying down special provisions for imposing rigorous control over the production distribution and sale of any article or class of articles of food which the Central Government may by notification in the Official Gazette. specify in this behalf including registration of the premises where they are manufactured maintenance of the premises in a sanitary condition and maintenance of the healthy state of human beings associated with the production distribution and sale of such article or class of articles restricting the packing and labelling of any article of food and the design of any such package or label with a view to preventing the public or the purchaser being deceived or misled as to the character quality or quantity of the article prohibiting the sale or defining the conditions of sale of any substance which may be injurious to health when used as food or restricting in any manner its use as an ingradient in the manufacture of any article of food or regulating by the issue of licences the manufacture or sale of any article of food defining the conditions of sale or conditions for licence of sale of any article of food in the interest of public health The Rules have been framed by the Central Government in exercise of the powers conferred by sub section of Section 4 and sub sectionof Section 23 of the Act. The Rules framed under sub sectionof Section 4 relate to the functions of the Central Food Laboratory and allied matters. We are not concerned with those rules. Part VII of the Rules relates to the "packing and labelling of foods". Rule 32 relating to the "contents of the label" is in this part. Rule 32 with material clauses b) andand the first proviso as well as the Explanation reads as follows "Rule 32 : Contents of the label Unless otherwise provided in these rules there shall be specified on every label: the name and business address of the manufacturer or importer or vendor or packer a batch number or code number either in Hindi or English numericals or alphabets or in combination Provided that in the case of food package weighing not more than 60 grams particulars including the statement under any clause need not be specified Explanation. The term ’label’ means a display of written printed perforated stencilled embossed or stamped matter upon the container cover lid and or crown cork of any food package Admittedly there is no definition of the expressions "Batch number" or "Code number" either in the Act or in the Rules Nor has any affidavit been filed on behalf of the respondent or by the Attorney General of any expert whether these expressions have any technical meaning in the trade and if so what that is. The material available on record is only the evidence of Dina Nath one of the Food Inspectors who has given evidence as P. W. 1 in one of the complaints. We have already adverted to his evidence which is to the effect that Batch number can start from any serial number and that what he says about serial number is only by commonsense Further according to him Code number and Batch number is the same. From this evidence it is clear that there is no specific meaning attached to these two expressions either in the Act or in the Rules and even the Food Inspectors are not very clear as to what those expressions mean He has also stated that in the label on the container the address of the appellants had been given as "Mohan Ghee Laboratories New Delhi 5". According to him the said address is incomplete because it does not give the details about the door number of the premises as well as the locality where the premises is situate. He has also stated that he does not remember to have seen the premises number on any packing We have now to see whether any of the clauses in Section 23 1) on which reliance is placed on behalf of the Attorney General and the respondent will sustain the provisions contained in Clauses b) and of Rule 32. We are not able to find anything in Clauses(f) andof Section 23of the Act which will give power to the Central Government to frame rules requiring the name and business address of manufacturer or vendor being given or for Batch Number or Code number being given on the labels. Clause deals with provisions for imposing rigorous control over pro duction distribution and sale of any article or class of articles. of food notified by the Central Government in the Official Gazette. No notification issued by the Central Government in this behalf regarding ghee has been brought to our notice and therefore . clausedoes not apply Clause relates to prohibiting the sale or defining the conditions of sale of any substance injurious to health when used as food. This clause has also no application because it is not the case of the respondent that the article of food with which we are concerned namely ghee is a substance which is injurious to health when used as food Clauseagain will have no application because one of the essential requirements therein is that the rule should be related to the interest of public health. Any rule made under this clause must be of universal application because it is in the interest of public health. The requirement regarding compliance with any such rule cannot depend upon the quantity or food packed in any container. That Clause g) of Section 23(1) will stand eliminated is clearly seen by a reference to the first proviso to Rule 32. The said proviso indicates that if the food package weighs not more than 60 grams the particulars mentioned in clausesto e) of the Rule need not be specified. If a requirement has to be in the interest of public health as is mandatory under Clausethe very fact that the first proviso to Rule32 excludes the operation of clausestoof the said rule in respect of food package weighing not more than 60 grams is an indication that Rule 32 is not framed under Clause of Section 23(1) of the Act. From the above discussion it is clear that under Clauses(f) and of the Act the rules contained in clauses b) andof Rule 32 could not be framed This leaves us for consideration the question whether Rule 32 andfall within the ambit of rule making power under Clauseof Section 23(1). We will first take up for consideration the vires of Clauseof Rule 32. There cannot be any controversy that the object of a rule framed under clause must be with a view to preventing the public or the purchaser being deceived or misled as to the character quality or quantity of the article. We have already pointed out that in this case the label contained the words "pure ghee" and on analysis of the sample it has been found to conform to the standard. It is difficult for us to appreciate how the giving of the batch number or the code number alone without giving any further particulars such as date of manufacture of the article of food and the period within which the said article has to be utilised used or consumed and the quantity of the article in a container will prevent the public or the purchaser being deceived or misled as to the character quality or quantity of the article. No attempt has been made by the respondent to establish any relation between the giving of the batch number or the code number with the public or the purchaser being prevented from being deceived or misled in respect of the matters referred to in Clauseis beyond the rule making power even under Section 23(d) of the Act. The appellants could not be convicted for any violation of Clauseof Rule 32 as the said provision as pointed out above is invalid We will now consider the question regarding the validity of Clause of Rule 32. That clause is also challenged as being beyond the rule making power under Section 23(d of the Act. Clauseof Rule 32 requires that the name and business address of the manufacturer or importer or vendor or packer be given on every label. According to Mr Manchanda this clause has also no relation to the purpose for which the rules can be framed under Section 23(d of the Act. According to Mr. Manchanda mere giving of name and business address will not give any indication to the public or the purchaser regarding the character quality or quantity of the article. Even assuming that Clauseof Rule 32 is valid he pointed out that in this case his clients have complied with the requirement by stating on the label "Mohan Ghee Laboratories New Delhi 5." According to him there has been at any rare substantial compliance with 476 the requirement of the rule and therefore his clients could not be convicted for any violation of this clause We are not inclined to accept the contention of Mr. Man chanda that Clauseof Rule 32 is beyond the rule making power of the Central Government under Section 23(d) of the Act. It is well known that in many cases in business the name and address of a manufacturer or importer or vendor or packer has become associated with the character quality or quantity of the article and as such we are of the opinion that Clauseof Rule 32 is a valid rule. In this case as pointed out by Mr. Manchanda there has been a substantial compliance with that rule by the appellants giv ing in the label the address as "Mohan Ghee Laboratories New Delhi 5." But according to the requirement of the rule some more particulars will have to be given namely the number of the premises and the locality or the area where the premises is situate. This is the evidence adduced on behalf of the prosecution also. Therefore it can be said that there is a technical breach of Clauseof Rule 32 inasmuch as full particulars referred to above have not been given by the appellants in the label. No doubt the appellants have been convicted for breach of Clausesand e) of Rule 32 and a fine of Re. 1 has been imposed. We have already held that Clauseof Rule 32 is invalid and the appellants cannot be convicted for non compliance of the same. Though there is a technical breach of Rule 32(b) there is no indication available from the judgments of the High Court and the subordinate courts that the appellants would have been convicted for a technical breach of Rule 32(b) if there was no charge under Clauseof Rule 32 also. On the other hand more prominence is given in the judgments to the violation of Rule 32and the inference is that the conviction is substantially for a violation of the said rule. In the circumstances of this case we are of the view that the appellants could not be convicted for a technical breach of Rule 32(b) alone Therefore the conviction of the appellants for offences under Rule 32(b) andas well as the fine imposed in the sum of Re. 1 for the said offence are both set aside In the result the appeal is accordingly allowed and the judgment and order of the Delhi High Court in Criminal Revision No. 371 D of 1965 are set aside. The fine if collected will be refunded V.P.S. Appeal

The gravity of the offence, conduct of the accused and societal impact of an undue indulgence by Court, are also amongst a few situations, where a Superior Court can interfere in an order of bail : Supreme Court

Bail can be revoked where the court has considered irrelevant factors or has ignored relevant material available on record which renders the order granting bail legally untenable as held by the Hon’ble Supreme Court through the bench lead by Justice Surya Kant in the case of Vipin Kumar Dhir v. State of Punjab and Anr. [CRIMINAL APPEAL NOS.1161­1162 OF 2021] (ARISING OUT OF SLP (CRL.) NOS. 5404­5405 OF 2021). Brief facts of the case are that the appellant who is the father of the deceased, lodged an FIR dated 02.10.2017 against 7 accused persons, 4 of whom are members of the in-laws family of the deceased including the Respondent­Accused. The Complainant has alleged that his daughter was married to the son of Respondent on 28­07­2017. Soon thereafter, the accused family members started to harass and physically torture the deceased on the pretext of dowry demands. His daughter died an unnatural death on 02­10­2017 in suspicious circumstances. There are specific allegations vis­a­vis Respondent alleging that she exploited the deceased and deprived her of any chance to recuperate from the arduous domestic chores. The Complainant accused the respondent to have allegedly administered poison to the deceased on 01.10.2017, which led to her unfortunate demise the following morning. The factum of poisoning is supported by medical evidence gathered by the Investigating Agency. Soon after the FIR was lodged, the Respondent­ Accused moved ananticipatory bail application before the Sessions Court, which was rejected on 21.12.2017. Discontented, the Respondent­Accused approached the High Court for a similar relief, but the petition was dismissed as withdrawn on 08.03.2018. Meanwhile, on account of non-cooperation with the ongoing investigation, arrest warrants were issued against the Respondent­Accused. However, the arrest warrant could not be executed as the Respondent­Accused had been on the run and she was thus declared an absconder on 23­04­2018 under Section 82 of the Code of Criminal Procedure. The Respondent­Accused continued to evade her arrest until this Court granted anticipatory bail to her younger son on 22.10.2019. Thereafter, taking advantage of this subsequent event and presenting the same as a material change in circumstance, Respondent­Accused filed two petitions before the High Court, seeking quashing of the order that declared her a ‘proclaimed offender’ and further sought the relief of anticipatory bail. The High Court granted interim bail to the Respondent­Accused on 03.12.2020 and pursuant thereto, she joined the investigation on 07.12.2020. Thereafter, vide the impugned order, High  Court allowed both the petitions and set aside  the order declaring the Respondent­Accused as an absconder and also granted her anticipatory bail. These  reliefs  were  primarily  allowed  on  two grounds ­ firstly that  the  Respondent­Accused had  joined  the investigation and undertook to remain present at each date of trial proceedings; secondly she was entitled to seek parity with the co accused Daksh Adya whom this Court granted anticipatory bail. The aggrieved Complainant approached the Hon’ble Court contending inter­alia, that the High Court has committed a grave error of law in over­looking the principles in granting anticipatory bail. The Hon’ble Court after considering the cases of Daulat Ram  and others vs. State  of  Haryana and X vs. State of Telangana and Another, held that, “In the case at hand, Respondent­Accused remained absconding for more than two years after being declared a proclaimed offender on 23.04.2018. She chose to join investigation only after securing interim bail from the High Court. The High Court went   on   a   wrong   premise   in   granting   anticipatory   bail   to   the Respondent­Accused. Without expressing any views on merit, we set aside the impugned order of the High Court dated 28.01.2021 and direct the Respondent­Accused to surrender before the Trial Court within a period of one week.”

the mother­in­law of the deceased and is charged under Sections ‘Complainant’) who is the father of the deceased lodged an FIR dated Page | 1 Respondent­accused on 28­07­2017. Soon thereafter the accused on the pretext of dowry demands. His daughter died an unnatural allegations vis­a­vis Respondent­Accused alleging that she exploited to the deceased. The deceased contacted the Complainant on have clandestinely administered poison to the deceased on 01.10.2017 which led to her unfortunate demise the following Page | 2 rejected on 21.12.2017. Discontented the Respondent­Accused dismissed as withdrawn on 08.03.2018. Meanwhile on account of non­cooperation with the ongoing investigation the SHO of the concerned police station applied for and got issued arrest warrants against the Respondent­Accused from Judicial Magistrate. However 04­2018 under Section 82 of the Code of Criminal Procedure on 22.10.2019. Thereafter taking advantage of this subsequent event and presenting the same as a material change in circumstance Respondent­Accused filed two petitions before the High Court seeking quashing of the order that declared her a ‘proclaimed offender’ and further sought the relief of Page | 3 It is noted explicitly that during the pendency of the above­ mentioned proceedings the High Court granted interim bail to the the investigation on 07.12.2020. Thereafter vide the impugned order High Court allowed both the petitions and set aside the order her anticipatory bail. These reliefs were primarily allowed on two grounds ­ firstly that the Respondent­Accused had joined the investigation and undertook to remain present at each date of trial proceedings secondly she was entitled to seek parity with the co­ The aggrieved Complainant is before us contending inter­alia the well­established principles which guide courts to exercise their discretion in the matter of granting anticipatory bail. Learned State 8. We have heard Learned Counsel for the parties at length and Page | 4 that ‘cogent and overwhelming reasons’ are present for the cancellation of bail. Conventionally there can be supervening conducive to fair trial making it necessary to cancel the bail. This Court in Daulat Ram and others vs. State of Haryana1 observed cogent and overwhelming circumstances are bail already granted. Generally speaking the grounds for cancellation of bail broadly are: interference or attempt to interfere with the due course of administration of of justice or abuse of the concession granted to the on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail a mechanical manner without considering whether any supervening circumstances have rendered it no These principles have been reiterated time and again more Page | 5 order granting bail legally untenable. The gravity of the offence of criminal justice system. This Court has repeatedly viewed that while granting bail especially anticipatory bail which is per se extraordinary in nature the possibility of the accused to influence prosecution witnesses threatening the family members of the 11. Broadly speaking each case has its own unique factual scenario which holds the key for adjudication of bail matters including and protrudes our medieval social structure which still wails for In the case in hand the High Court seems to have been primarily swayed by the fact that the Respondent­Accused was ‘co­ Page | 6 operating’ with investigation. This is however contrary to the record chose to join investigation only after securing interim bail from the as Magistrate’s Court till she got protection against arrest from the 13. Even if there was any procedural irregularity in declaring the Respondent­Accused as an absconder that by itself was not a on record is prima facie satisfied that it is a case of false or over­ went on a wrong premise in granting anticipatory bail to the materially different. It is indubitable that some of the allegations against all the family members are common but there are other Page | 7 absconding for more than two years without any justifiable reason should have weighed in mind while granting her any discretionary accused with whom she seeks parity. We are thus of the considered favour of the Respondent­Accused. It has to be borne in mind that the deceased met with a tragic end within three months of her or 304B I.P.C. but the fact remains that a young life came to an abrupt end before realizing any of her dreams which were grimly shattered. She died an unnatural death in her matrimonial home Investigating Agency therefore deserves a free hand to investigate the role of the Respondent­Accused if any in the unnatural and untimely 15. Learned Senior Counsel for the Respondent­Accused may be the deceased. According to him the entire version of the Appellant­ District Attorney has a legally trained mind. We do not deem it Page | 8 In light of the above discussion and without expressing any views on merit we set aside the impugned order of the High Court dated 28.01.2021 and direct the Respondent­Accused to surrender the merits of the case. We also clarify that after the surrender the Respondent­Accused will be free to seek regular bail before the Page | 9

To constitute defamation, the statement when read as a whole must satisfy the necessary ingredients: High Court of Jammu and Kashmir

A statement cannot be said to be defamatory unless it is taken in its full context and then fulfils the necessary ingredients required under the relevant laws. This was held in the judgement passed by a single member bench of the High Court of Jammu and Kashmir consisting of Justice Vinod Chatterji Koul in the case of T.K. Ganjoo v Meenu Betab [CRMC 808/2018] on 19th July 2021. The petitioner, T.K. Ganjoo filed the present petition seeking the quashment of order dated 4th June 2018 passed by the 2nd Additional Munsiff of Jammu whereby cognizance for defamation under Section 499/500 of the Ranbir Penal Code has been  by the magistrate on the complaint filed by the respondent, Meenu Betab against the petitioner. The impugned order is challenged on the grounds that the complaint does not disclose any offence cognizable under Sections 499 or 500 of the RPC as the allegations levelled in the complaint do not constitute the said offences as have none of the necessary ingredients. As per Section 499 of the RPC, Defamation can be alleged when words either spoken or intended to be read or by signs or is visible from words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputations will harm the reputation of a person. The petitioner submitted that none of the necessary ingredients have been fulfilled and the complaint was filed against him with the sole objective of harassment. It was contended that not a single word written in the legal notice was prima facie defamatory in nature as per the ingredients laid out in Section 499 of the RPC. The counsel appearing for the respondent submitted that the petitioner had used defamatory language against the respondent in the legal notice issued against her.

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU CRMC 808 2018 Reserved on 15.07.2021 Pronounced on 19.07.2021 h475 T.K.Ganjoo Through: Mr. Sumeer Pandita Advocate Meenu Betab ...Respondent(s) Through: Mr. Sunil Sethi Sr. Advocate with Mr. Paras Gupta Advocate. Coram: HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL JUDGE This petition filed under Section 561 A CrPC quashment setting aside the order dated 04.06.2018 passed by the learned 2nd Additional Munsiff Jammu whereby cognizance under Section 499 500 RPC has been taken by the learned Magistrate on the complaint filed by the respondent and process issued against the petitioner for appearance. The order is challenged primarily on the ground that the complaint does not disclose any offence cognizable under Section 499 500 RPC as the allegations levelled in the complaint do not constitute offence under Section 499 500 RPC having none of the ingredients thereof. It is submitted that defamation can be alleged when the words either spoken or intended to be read or by signs or by visible by words either spoken or intended to be read or by signs or by visible representations makes or publishes any imputation concerning any person intending to harm or knowing or having reason to CRMC 808 2018 believe that such imputation will harm the reputation of a person. It is submitted that complaint has been filed against the petitioner in order to harass and torture him. It is further submitted that there was not even a single word written in the legal notice which on the face of it was defamatory in nature as such the ingredients of Section 499 do not exist for taking cognizance by the Magistrate and the order impugned deserves to be quashed. On the other hand learned counsel appearing for the respondent submitted that the petitioner has used defamatory language in the legal notice issued against her. In order to appreciate the arguments it would be appropriate to go through the relevant provisions being Section 499 RPC which for facility of reference is reproduced thus: Section 499 Defamation.— Whoever by words either spoken or intended to be read or by signs or by visible representations makes or publishes any imputation concerning any person intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person is said except in the cases hereinafter expected to defame that person”. Having heard learned counsel for the parties and going through the material place on record and after going through the provisions of law it can easily be said that the complaint filed by the respondent before the Magistrate do not constitute the ingredients of Section 499 RPC. To constitute an offence punishable under Section 499 RPC the complaint and the statement recorded must satisfy the ingredients of such offence. The complaint when read as a whole does not state anywhere that the words used in the legal notice had lowered the reputation of the complainant in the estimation of public. The allegations which have been CRMC 808 2018 made in the complaint do not in any way fall within the purview of the provisions of Section 499 RPC. These allegations made in the complaint are with regard to the official functioning and performance of their duties. Even if some words have been written in a legal notice those would not be construed to be such words as would ordinarily effect the reputation of any body and lower his her reputation in the estimation of public. What is alleged to have been written by the petitioner in the legal notice can at the most constitute a specific offence under the Penal Code but would not be defamation in order to attract the provisions of Section 499 500 RPC. The trial Court appears to have issued the process without going through the provisions of Section 499 RPC and without satisfying itself whether the allegations made in the complaint and in the statement would amount to a defamation or not. The trial Court while taking cognizance of the complaint and issuing process has failed to exercise its jurisdiction in accordance with law. One of the allegations is regarding the language used in the legal notice that would amount to an offence under the provisions of Penal Code other than the provisions of Section 499 RPC and in such a situation when the ingredients of Section 499 RPC are not satisfied by the complainant and his witnesses taking cognizance and issuing process would amount to abuse of process of law. That apart there are allegations of filing of complaints by both the parties against each other at different times. There are also allegations and counter allegations of mismanagement and harassment. All these things would not constitute ingredients of Section 499. CRMC 808 2018 Accordingly the petition is allowed and the order taking cognizance by issuing summons to the petitioner on the complaint filed by the respondent is set aside and the complaint is dismissed. A copy of this order be sent to the trial Magistrate along with record for consigning the same to the records. Vinod Chatterji Koul) Judge Sanjeev PS Whether the order is speaking : Yes No Whether the order is reportable: Yes No

A Court may refuse to issue a Writ of Quo Warranto if it is found that the person whose appointment is under challenge could be re-appointed under the law in force: High Court of J&K and Ladakh

A Court may refuse to issue a Writ of Quo Warranto if it is found that the person whose appointment is under challenge could be re-appointed under the law in force at the time of issuance of writ on account of his becoming qualified for such appointment on that day. Thus, a Writ of Quo Warranto will not be issued when the alleged usurper could immediately be re-appointed to the very post as held by the High Court of J&amp;K through a learned bench of Justice Sanjay Dhar in the case of Dr. Syed Shujat Hussain Vs State Of J&amp;K And Others [SWP No.683/2013 c/w SWP No.681/2013]. Brief facts of the case are that Sher-e-Kashmir University of Agricultural Sciences &amp; Technology, Kashmir issued advertisement notice inviting applications for various posts including the posts of Assistant Professor/Junior Scientist in the subjects of Plant Pathology and Soil Science. In response to the said advertisement notice, petitioner Dr. Firdous Ahmad Raina applied for the post of Assistant Professor/Junior Scientist in the subject of Plant Pathology whereas petitioner Dr. Syed Shujat Hussain applied in the subject of Soil Science. Both the above-named petitioners claim that they possessed the requisite qualification and experience. The interviews are stated to have been conducted by the respondent University but when the select list was issued, the petitioners did not find their names in the same and instead ineligible persons i.e., respondent No.4 and respondents No.4 and 5, found their way in the select list. The official respondents have taken a stand that the qualification requirements for the posts of Assistant Professor underwent change so as to bring it in line with broad policy framework of Indian Council of Agriculture Research (ICAR) New Delhi and it was because of this reason that in the fresh advertisement notice of 2012, which has been impugned in the writ petitions, the prescribed qualification for the aforesaid posts was changed. It is claimed by the respondents that because the selection of teaching faculty is being made on All India Competition basis in terms of Statute of the University, as such, the University was well within its competence to advertise the posts held by the petitioners on adhoc basis. The High court was of the opinion that the fact of the matter remains that Expert Committee of the respondent University has scrutinized and examined the testimonials of all the candidates’ where after they have found private respondent No.5 eligible for appointment to the post of Assistant Professor, Plant Pathology. It would not be open to this Court to examine and interfere with the findings of the Screening Committee in this regard. Observing the same the court stated that “Apart from the above, it needs to be borne in mind that a Court may refuse to issue a Writ of Quo Warranto if it is found that the person whose appointment is under challenge could be re-appointed under the law in force at the time of issuance of writ on account of his becoming qualified for such appointment on that day. Thus, a Writ of Quo Warranto will not be issued when the alleged usurper could immediately be re-appointed to the very post.”

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on:16.09.2021 Pronounced on:22.09.2021 SWP No.683 2013 SWP No.681 2013 DR. SYED SHUJAT HUSSAIN ... PETITIONER(S) Through: Mr. A. H. Naik Sr. Adv. with Mr. Shabir Ahmad Najar Advocate. STATE OF J&K AND OTHERS …RESPONDENT(S) Through: Mr. M. Y. Bhat Sr. Adv. with Mr. Ashiq Ahmad Advocate. Mr. T. H. Khawaja Advocate. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE JUDGMENT By this judgment two writ petitions one filed by Dr. Syed Shujat Hussainand other filed by Dr. Firdous Ahmad Raina SWP No.681 2013) are proposed to be decided. On 15.02.2008 Sher e Kashmir University of Agricultural Sciences Technology Kashmir issued advertisement notice No.008 dated 15.02.2008 inviting applications for various posts including the posts of Assistant Professor Junior Scientist in the subjects of Plant Pathology and Soil Science. In response to the said 2 SWP No.683 2013 c w SWP No.681 2013 advertisement notice petitioner Dr. Firdous Ahmad Raina applied for the post of Assistant Professor Junior Scientist in the subject of Plant Pathology whereas petitioner Dr. Syed Shujat Hussain applied in the subject of Soil Science. As per the notification the requisite qualification for the aforesaid posts was given as under: i. High Second Class Master’s degree or equivalent post graduate qualification in the concerned subject. ii. Two years experience of teaching research or extension education as the case may be. Ph. D degree in the subject concerned. Note: : i. v. In case of candidates who hold Post graduate qualification in other subject discipline but have been working in the discipline concerned additional two years experience will be required over and above the minimum prescribed period. Requirement of professional degree shall be deemed as essential qualification. in concerned Development Candidates working Departments of the State can also apply for the post provided they possess two years experience and 1st Class Master’s degree in the relevant discipline. In the discipline Agri. Engineering Veterinary Sciences Animal Husbandry requirement of experience is relaxable. Experience relaxable for candidates having qualified National Eligibility Test conducted by ASRB ICAR New Delhi. Both the above named petitioners claim that they were possessing the requisite qualification and experience. The interviews are stated to have been conducted by the respondent University but when the select list was issued the petitioners did not find their names in the same and instead 3 SWP No.683 2013 c w SWP No.681 2013 ineligible persons i.e. respondent No.4 in SWP No.683 2013 and respondents No.4 and 5 in SWPNo.681 2013 found their way in the select list. According to the petitioner in SWP No.681 2013 respondent No.4 Dr. Nasreen Fatima was neither holding the Ph.D. degree nor the requisite experience at the relevant time whereas respondent No.5 Dr. F. A. Mohi ud Din was possessing Master’s Degree in Plant Protection and not in Plant Pathology. Petitioner in SWP No.683 2013 has contended that respondent No.4 Dr. Miss Uzma Bashir was holding only M. Sc. Degree in Soil Science and she was not having any doctorate degree nor was she having any experience. It is the further case of the petitioners that when they pointed out these mistakes to the authorities of the respondent University they were assured that the same will be rectified and in the meantime petitioner Dr. Syed Shujat Hussain was appointed against the available post of Subject Matter Specialist Soil Science on ad hoc basis for a period of 06 months vide University order No.22 of 2010 dated 06.01.2010 whereas petitioner Dr. Firdous Ahmad Raina was appointed as Subject Matter Specialist Plant Pathology on ad hoc basis for a period of 06 months in terms of University order No.23 of 2010 dated 06.01.2010. The aforesaid ad hoc arrangement of the petitioners came to be extended from time to time and they are continuing as such as on date. It is contended by petitioners that they made a number of representations before the authorities of respondent University seeking regularization of their services as they had been appointed on ad hoc basis 4 SWP No.683 2013 c w SWP No.681 2013 after undergoing regular process of selection and were working continuously on sanctioned posts but instead of doing so the official respondents issued impugned advertisement notice bearing No.112 dated 26.12.2012 by virtue of which the posts against which the petitioners are working have been advertised. It is further averred that while issuing the impugned advertisement notice the official respondents have changed the prescribed qualification as a result of which the petitioners have been rendered ineligible for applying pursuant to the impugned advertisement notice. Accordingly the petitioners have challenged the impugned advertisement notice and have further sought regularization of their services on the posts on which they are presently working. Further the petitioners have prayed for a Writ of Quo Warranto declaring that the private respondents in both the writ petitions are usurpers of public posts as they did not possess the requisite qualification at the time they had applied for selection. The writ petitions have been contested by respondents No.1 to 3 by filing a joint reply thereto in which they have while admitting that the petitioners in both the writ petitions had applied pursuant to advertisement notification of the year 2008 claimed that they figured below the selected candidates in the merit list prepared by the Selection Committee and as such the petitioners could not be appointed pursuant to the aforesaid advertisement notice. According to the official respondents the private respondents in both the writ petitions had secured better merit than the petitioners and they were possessing the requisite qualification and 5 SWP No.683 2013 c w SWP No.681 2013 experience at the time of submission of their applications and they were declared eligible by the Screening Committee. The official respondents have however admitted the appointment of petitioners on adhoc basis and have further admitted that the adhoc engagement of the petitioners has been extended from time to time and that they are continuing as such till date. The official respondents have taken a stand that the qualification requirements for the posts of Assistant Professor underwent change so as to bring it in line with broad policy framework of Indian Council of Agriculture ResearchNew Delhi and it was because of this reason that in the fresh advertisement notice of 2012 which has been impugned in the writ petitions the prescribed qualification for the aforesaid posts was changed. It is claimed by the respondents that because the selection of teaching faculty is being made on All India Competition basis in terms of Statute of the University as such the University was well within its competence to advertise the posts held by the petitioners on adhoc basis. One of the private respondents in SWP No.681 2013 namely. Dr. Nasreen Fatima has also contested the writ petition by filing her reply thereto. In her reply she has submitted that as per the note appended to the advertisement notice below the heading “Essential” it is mentioned that the professional degree shall be deemed as essential qualification. Thus it provides a room for appointment of even those persons who possess the required professional qualification only. The said respondent has admitted that she was only holding Master’s Degree in Plant Pathology at the time when she applied pursuant to the advertisement notice of 2008 but 6 SWP No.683 2013 c w SWP No.681 2013 according to her as per the note appended to the advertisement notice she was possessing the requisite qualification. She has further submitted that she belongs to Kargil District of Ladakh and as per Resolution of the respondent University extracts whereof have been annexed with the reply Vice Chancellor of the University is authorized to relax the qualifications of residents of Leh and Kargil for appointment to various scientific ministerial and auxiliary categories of staff for posts earmarked for Leh and Kargil Districts. She has contended that in view of the aforesaid Resolution it is deemed that the requirement of experience in her case has been relaxed. She has also claimed that as on the date of filing of the writ petition she had acquired the requisite experience in the field of Plant Pathology and as such she was otherwise qualified to be appointed to the post of Assistant Professor Junior Scientist. The said respondent has also contended that the petitioners have slept over the matter for four years whereafter they have woken up from deep slumber and challenged the selection of private respondents and as such they are not entitled to any discretionary relief. I have heard learned counsel for the parties and perused the pleadings and documents on record. 10) The petitioners in the instant case have not challenged the selection process which was initiated by the respondent University pursuant to advertisement notice of 2008. They have only sought a Writ of Quo Warranto against the private respondents on the ground that they were not holding the requisite qualification at the time when they applied pursuant to the advertisement notice of 2008. 7 SWP No.683 2013 c w SWP No.681 2013 In order to test the merits of this contention we need to have a look at the advertisement notice so far as it relates to relevant posts i.e. posts of Assistant Professor Junior Scientist. Vide the advertisement notice four posts of Assistant Professor Junior Scientist in the subject of Plant Pathology and two posts in Soil Science have been advertised. The qualifications prescribed are High Second Class Master’s degree or equivalent in the concerned subject and two years’ experience of teaching research or extension education and in the alternative instead of experience a Ph. D degree in the concerned subject has been prescribed. Notequalifies essential requirement as the requirement of professional degree only. Thus there appears to be a contradiction in the essential qualification prescribed under the heading “Essential” and that prescribed in Noteaccording to which only professional degree is the essential qualification. It appears that the advertisement notice is not happily worded. In the face of such an ill drafted advertisement notice the Screening Committee cannot be faulted for clearing the eligibility of even those candidates who had only second class Master’s degree or equivalent post graduate qualification in the concerned subject without any experience or Ph.D. degree. 12) That takes us to the individual cases of private respondents whose appointment has been challenged by the petitioners. Respondent No.4 in SWP No.683 2013 namely Dr. Miss Uzma Bashir has been appointed as Assistant Professor in Soil Science. According to the petitioner Dr. Syed Shujat Hussain she was not holding the requisite experience and that at 8 SWP No.683 2013 c w SWP No.681 2013 the time when she applied for the post she had not completed her Ph.D. degree and as such she was not eligible. The petitioner has placed on record copy of her application form which does not make any mention about the Ph.D. degree. However it appears that the said respondent has acquired Ph.D. degree and she was awarded said degree in terms of notification dated 5th March 2009. Thus prior to her appointment she had already acquired the Ph. D. degree. Further the award roll prepared by the Selection Committee suggests that she was holding the experience as he has been awarded four marks for experience. In the face of this and coupled with the fact that Noteto the advertisement notice provides that only post graduate degree in the relevant subject is an essential qualification it cannot be stated that the Dr. Miss Uzma Bashir was not eligible at the time of her selection. 13) Coming to the case of private respondents No.4 whose appointment is under challenge in SWP No.681 2013 private respondent No.4 Dr. Nasreen Fatima as per the petitioner was not possessing any experience nor was she holding a Ph.D. degree. Thus she was not eligible for appointment to the post of Assistant Professor Plant Pathology. The said respondent in her reply has virtually admitted that she was not holding any experience nor was she holding Ph. D. degree at the time of her selection. She has placed reliance upon Note to the advertisement notice as discussed hereinbefore. Even otherwise the said private respondent has been appointed to a post earmarked for Kargil as such she is entitled to claim relaxation in her qualification experience in terms of Resolution of 9 SWP No.683 2013 c w SWP No.681 2013 the respondent University which is annexed to her reply. Learned counsel for the respondent University has during the course of hearing admitted the existence of the said Resolution. Since the aforesaid private respondent has been selected and continues to function as Assistant Professor in Plant Pathology as such it is deemed that she has been accorded relaxation in accordance with the aforesaid Resolution. Even otherwise the said private respondent at the time of filing of the writ petition was in possession of the requisite experience though she may not have been holding the requisite experience at the time of her selection. 14) That takes us to the case of respondent No.5 in SWP No.681 2013. According to the petitioner respondent No.5 Dr. F. A. Mohi ud Din was holding the Post Graduate degree as well as Ph.D. Degree in the subject of Plant Protection and not in the subject of Plant Pathology for which the advertisement notice had been issued. To substantiate his contention the petitioner has placed on record copies of certificates on the basis of which the private respondent No.5 had applied for his appointment. The certificates indicate that the said respondent had acquired Master’s degree as well as Ph.D. degree in the subject of Plant Protection. 15) Plant Protection and Plant Pathology both appear to be related to plant science that studies plant diseases. This Court is not an expert body to render any opinion as to whether the degrees in Plant Pathology and Plant Protection are interchangeable or equivalent. The fact of the matter remains that Expert Committee of the respondent University has scrutinized and examined the testimonials of all the candidates whereafter 10 SWP No.683 2013 c w SWP No.681 2013 they have found private respondent No.5 eligible for appointment to the post of Assistant Professor Plant Pathology. It would not be open to this Court to examine and interfere with the findings of the Screening Committee in this regard. 16) Apart from the above it needs to be borne in mind that a Court may refuse to issue a Writ of Quo Warranto if it is found that the person whose appointment is under challenge could be re appointed under the law in force at the time of issuance of writ on account of his becoming qualified for such appointment on that day. Thus a Writ of Quo Warranto will not be issued when the alleged usurper could immediately be re appointed to the very post. The doctrine is that in cases where the initial disqualification is removed it would not be open to the authorities to appoint the same person immediately even if the Court grants Writ of Quo Warranto. The general principle is that the Court would not pass any writ or any decree which becomes futile. In the face of aforesaid settled legal position even if it is assumed that some of the private respondents were initially disqualified to hold the office to which they have been appointed but by the time petitioners filed the instant writ petitions definitely the selected candidates had acquired the requisite experience qualification and as such their disqualification was removed. The petitioners in the instant case have been guilty of laches and they have acquiesced and concurred in the very act against which they have complained through the medium of instant writ petitions. The petitioners participated in the selection process pursuant to advertisement notice of 11 SWP No.683 2013 c w SWP No.681 2013 2008. They were well aware of the fact that the private respondents were appointed way back in the year 2009 but they waited till 2013 to challenge their appointments. The petitioners are therefore guilty of laches acquiescence and are estopped from challenging the appointment of private respondents. If the appointment of private respondent is quashed at this late stage after a lapse of 12 years their entire career will get ruined. Thus equity heavily tilts in favour of the private respondents. In these circumstances this Court would be extremely reluctant in issuing a discretionary writ like a Writ of Quo Warranto against the private respondents. 18) There is another aspect of the matter which requires to be noticed. The petitioners have been admittedly appointed on adhoc basis in January 2010. There is no dispute to the fact that they continued to work on adhoc basis on the posts of Assistant Professor in the relevant subject and even as on date they are discharging their duties and functions to the entire satisfaction of the respondent University. It is also not in dispute that the petitioners had participated in the selection process pursuant to the advertisement notice of 2008 and their names figured in the panel prepared by the Selection Committee though they were found less meritorious than the selected candidates. After having undergone proper selection process the petitioners were appointed on adhoc basis against sanctioned posts and the said adhoc arrangement continues to be in operation till date. It is also admitted case of the parties that the petitioners represented before the authorities of respondent University for their regularization. It is also not in 12 SWP No.683 2013 c w SWP No.681 2013 dispute that the petitioners were holding requisite qualification and experience at the time of their engagement on adhoc basis. The question that arises for consideration is whether petitioners can be thrown out after having served respondent University for more than 11 years continuously against sanctioned posts. 19) A Coordinate Bench of this Court in the case of Faheen v. University of Kashmir & Ors. in somewhat similar circumstances had directed the University of Kashmir to consider the case of the petitioner therein for regularization from a prospective date. The Court while passing the aforesaid direction relied upon following observations of the Supreme Court in Secretary State of Karnataka v. Umadevi AIR 2006 SC 1806: One aspect needs to be clarified. There may be cases where irregular appointments as explained in S. V. Narayanappa R.N. Nanjundappa and B.N. Nagarajan and referred to in paragraph 15 above of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context the Union of India the State Governments and their instrumentalities should take steps to regularize as a one time measure the services of such irregularly appointed who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up in cases where temporary 13 SWP No.683 2013 c w SWP No.681 2013 employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization if any already made but not subjudice need not be reopened based on this judgment but there should be no further by passing of the constitutional requirement and regularizing or making permanent those not duly appointed as per the constitutional In the face of aforesaid legal position it is clear that with the passage of time continuance of petitioners on the posts to which they were appointed on adhoc basis has given rise to a legitimate expectation for consideration of their cases for regularization. 21) Vide CM No.1826 2021 filed in SWP No.681 2013 petitioners sought permission to place on record certain documents. The application was allowed in terms of order dated 31.03.2021. No exception to the authenticity of these documents has been taken by the respondent University. As per these documents pursuant to the recommendations of the Board of Managementa Committee has been constituted by the respondent University in terms of order No.627of 2020 dated 28.09.2020 for formulating the guidelines for regularization of services of employees engaged appointed in the University on contractual adhoc basis against available posts through a proper selection process. The petitioners have also placed on record the relevant extracts of agenda and the resolution passed on agenda item No.BoM 68(12) of the Board meeting. In the said agenda names of petitioners’ figure at Serial Nos.1 and 2 of the list of persons appointed on adhoc basis against available teaching and non 14 SWP No.683 2013 c w SWP No.681 2013 teaching category of posts. The Board has after discussing the matter passed the following resolution: “ Resolved that the guidelines for regularization of such categories of employees who have been engaged appointed on contractual adhoc basis in the University against the available posts both teaching & non teaching) through a proper selection process will be formulated by the University in consultation with the Director General Codes Finance Department GoJK and accordingly placed before the Board of consideration.” Petitioners have also placed on record a copy of University order No.60of 2018 dated 17.01.2018 whereby services of one Dr. Shameem Ahmad Shameem Technical Assistant Environmental Science have been regularized with effect from 13.02.2010. 22) The aforesaid documents placed on record by the petitioners clearly suggest that the authorities of the respondent University are seized of the matter pertaining to regularization of services of the petitioners and such like other adhoc engagees. In the face of these developments and legal position discussed hereinbefore it is the bounden duty of the official respondents to formulate a policy for regularization of adhoc appointees and to accord consideration to the cases of petitioners in accordance with the policy. 23) For what has been discussed hereinbefore while declining to issue a Writ of Quo Warranto against the respondents a direction is issued to the official respondents to formulate a policy for regularizing services of those persons who have been appointed against sanctioned posts on adhoc basis 15 SWP No.683 2013 c w SWP No.681 2013 and are continuing for more than ten years and thereafter accord consideration to the case of regularization of petitioners herein in accordance with the said policy. Till the aforesaid exercise is undertaken by the official respondents the petitioners shall be allowed to continue in the present positions on adhoc basis. The writ petition stand disposed of “Bhat Altaf PS” Judge Whether the order is speaking: Yes No Whether the order is reportable: Yes No

Writ actions cannot be enforced after an unreasonable lapse of time: High Court of New Delhi

Writ actions cannot be invoked after undue delay and latches. Accordingly, this Court is of the view that the petitioner cannot challenge his APAR grading after a gap of more than ten years. This was held in ANUPAM KUMAR V. DIRECTOR GENERAL, BORDER SECURITY FORCE &amp; ANR[W.P. (C) 4438/2021] in the High Court of New Delhi by division bench consisting of JUSTICE MANMOHAN and  JUSTICE ASHA MENON. Facts are that the Petitioner has filed the writ petition seeking “Non-Functional Grade Selection” along with the consequential benefits like back wages. Petitioner has also prayed for a direction to Respondent to modify the promotion granted to the Petitioner to the rank of “Second-in-Commands” as being effective from a prior date and grant all the consequential benefits such as back wages w.e.f from the same date. Learned Counsel for the Petitioner contended Petitioner was not promoted due to his low ACR grading for the year 2010-2011 to the rank “Second-in-Commands” in 2016. The denial of promotion was arbitrary, illegal, and affected the seniority position of the Petitioner. The loss of seniority was coupled with a pay scale that was much lower than what was paid to his counterparts. The low grading received by him in the year 2010-11 was because of the biased view of the then I.O for which, he had filed a detailed representation dated to the DG. The court in order to discuss the maintainability of the petition relied on the judgement of  Chairman/Managing Director, U.P. Power Corporation Ltd. &amp; Ors. Vs. Ram Gopal., wherein the following observations were made, “Whilst it is true that limitation does not strictly apply to proceedings under Articles 32 or 226 of the Constitution of India, nevertheless, such rights cannot be enforced after an unreasonable lapse of time. Consideration of unexplained delays and inordinate laches would always be relevant in writ actions, and writ courts naturally ought to be reluctant in exercising their discretionary jurisdiction to protect those who have slept over wrongs and allowed illegalities to fester. Fence-sitters cannot be allowed to barge into courts and cry for their rights at their convenience, and vigilant citizens ought not to be treated alike with mere opportunists. On multiple occasions, it has been restated that there are implicit limitations of time within which writ remedies can be enforced.” The court also referred to the judgment of the Apex court in Vijay Kumar Kaul v. Union of India., wherein it was held that, “…It becomes an obligation to take into consideration the balance of justice or injustice in entertaining the petition or declining it on the ground of delay and laches. It is a matter of great significance that at one point of time equity that existed in favor of one melts into total insignificance and paves the path of extinction with the passage of time.”

Suppl. 20 W.P.4438 2021 & C.M.No.13544 2021 IN THE HIGH COURT OF DELHI AT NEW DELHI ANUPAM KUMAR Mr.Manish Gupta Advocate. .....Petitioner DIRECTOR GENERAL BORDER SECURITY FORCE & ANR Through: Ms.Divyya Kapur Advocate. Mr. Ruchir Mishra Advocate with Mr. Gunjan Jaura Mr. Mukesh Kumar Tiwari and Mr. Arman Pratap Singh Advocates. Date of Decision: 9th April 2021 HON BLE MR. JUSTICE MANMOHAN HON BLE MS. JUSTICE ASHA MENON JUDGMENT MANMOHAN J4438 2021 Commands" as being effective from 21st October 2016 and grant all the consequential benefits such as back wages w.e.f from the same date. Learned Counsel for the Petitioner states that in 2016 six Batches of the BSF including the Batch to which the Petitioner belongs were simultaneously promoted from the level of Deputy Commandant to Second in Commands" vide Office Order dated 21st October 2016. He further states that the Petitioner was however not promoted due to his low ACR grading for the year 2010 2011. He submits that this denial of promotion was not only arbitrary and illegal but has also seriously affected the seniority position of the Petitioner bringing him 350 ranks below his batchmates. He further submits that the loss of seniority was coupled with a pay scale which was much lower than what was paid to his counterparts. Learned Counsel for the Petitioner submits that the Petitioner was subsequently promoted from the post of Deputy Commandant to the rank of "Second in Commandant” BSF vide Promotion Order dated 26th July 2018 w.e.f. from 07th November 2017 i.e. after much delay. Learned Counsel for the Petitioner states that an Office Order dated 26th December 2019 was issued by the Commandantgranting Non Functional Selection Grade to officers of Group A Executive Cadre of BSF wherein the pay scale was revised in Level 13 of pay matrix for the year 2017 and 20184438 2021 filed a detailed representation dated 28th June 2020 to the DG BSF pointing out that the low grading received by him in the year 2010 11 was because of the biased view of the then I.O. as the Petitioner refused to comply with his illegal orders. He further states that the petitioner has not received any reply to the said representation. He also states that a Coordinate Division Bench of this Court in Vidya Shankar Tiwari Vs. Union of India & Ors. W.P.(C) No.10486 2017 has granted relief to a similarly placed officer. Having heard learned counsel for the petitioner and having perused the paper book this Court finds that the petitioner in essence challenges his APAR Grade for the year 2010 11 as according to him it is due to his adverse APAR grading that Non Functional Grade Selection has been denied to him. At this stage learned counsel for the petitioner states that the petitioner in the present writ petition does not only challenge his APAR grade for the year 2010 11. However this contention of the petitioner is belied from the petitioner’s own representation dated 28th June 2020 which is reproduced hereinbelow in its entirety: Dated 28th June 2020 To THE DIRECTOR GENERAL BORDER SECURITY FORCE 10 CGO COMPLEX LODI ROAD NEW DELHI SUB: REPRESENTATION AGAINST ACR APR OF YEAR 2010 2011 FOR CONSIDERATION OF NFSG Sir W.P.4438 2021 In ref to subject cited above. I the undersigned would like to lay following lines for your consideration and favourable action. That my ACR grading of year 2010 2011 was ruined by IO on biased view taken by him. My representation on the same was also not taken into right spirit and same were rejected citing the reason as devoid of merit. In this case the Comdt has made my APR adverse. My APR of year 2010 2011 was given adverse by IO Unit Comdt due to non compliance of illegal order dated 30 March 2010. It is submitted that the Calcutta High Court in its interim order had said that „Ordering Dy Comdt to take charge of a service Coy. Comdt as prima facia an unlawful order and its non compliance of illegal order will not invite any adverse to the officer. It is pertinent to point out that ACR written by same IO and same RO in year 2010 2013 and 2011 12 is self contradicting in assessment of innate qualities. The traits and quality which are inherent and cannot change is graded vindictively in year 2010 11 apparent with the comparison with 11 12. 2010 11 2010 11 2011 12 2011 12 Accomplishment of planned work Quality of output and effectiveness Thoroughness and efficiency work exceptional work Attitude to work responsibility discipline qualities W.P.4438 2021 10 Capacity to work in team spirit Capacity to work in time limit Knowledge of rules and regulations Strategic planning Decision making ability ability Ability to develop Interest in welfare apprising ability My adverse APR led to non grant of NFSG to me whereas my entire batch has got it. Further I submit that the 93 BN BSF was deployed under dist Malkangiri for Anti naxal operation under police. The SP Malkangiri Mr. Anirudh Kumar Singh as a police head had seen my work and leadership and special efforts on the ground and appreciated in his letter dated Do185 17.04.2010. I also attached the copy of the letter for your consideration4438 2021 101 has held as under: The Supreme Court in Chairman Managing Director U.P. Power Corporation Ltd. & Ors. Vs. Ram Gopal 2020 SCC OnLine SC “16. Whilst it is true that limitation does not strictly apply to proceedings under Articles 32 or 226 of the Constitution of India nevertheless such rights cannot be enforced after an unreasonable lapse of time. Consideration of unexplained delays and inordinate laches would always be relevant in writ actions and writ courts naturally ought to be reluctant in exercising their discretionary jurisdiction to protect those who have slept over wrongs and allowed illegalities to fester. Fencesitters cannot be allowed to barge into courts and cry for their rights at their convenience and vigilant citizens ought not to be treated alike with mere opportunists. On multiple occasions it has been restated that there are implicit limitations of time within which writ remedies can be enforced. In SS Balu v. State of Kerala this Court observed thus: “17. It is also well settled principle of law that “delay defeats equity”. …It is now a trite law that where the writ petitioner approaches the High Court after a long delay reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment.” 17. Similarly in Vijay Kumar Kaul v. Union of India this Court while considering the claim of candidates who despite being higher in merit exercised their right to parity much after those who were though lower in merit but were diligently agitating their rights this Court observed that: “27. …It becomes an obligation consideration the balance of justice or injustice in entertaining the petition or declining it on the ground of delay and laches. It is a matter of great significance that W.P.4438 2021 at one point of time equity that existed in W.P.(C) 2766 2021 Page 5 of 5 favour of one melts into total insignificance and paves the path of extinction with the passage of time.” 11. Accordingly this Court is of the view that the petitioner cannot challenge his APAR grading after a gap of more than ten years. 12. As far as the Division Bench judgment in Vidya Shankar Tiwari supra) relied upon by learned counsel for the petitioner is concerned this Court finds that the same does not constitute a binding precedent as the issue of delay and laches was neither urged nor discussed in the said judgment. The Supreme Court in MCD Vs. Gurnam Kaur . 1 SCC 101 has held that precedents sub silentio and without argument are of no moment. Accordingly the said judgment is not a precedent on the 13. Consequently the present writ petition is barred by delay and issue of delay and laches. application is dismissed. In view of the above the present writ petition along with pending 15. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e mail. APRIL 09 2021 W.P.4438 2021 MANMOHAN J ASHA MENON J

The Appellant Company is liable to make good the compensation determined by the Learned Claims Tribunal to the victims in the accident: High court of Sikkim

Petitioner seek a direction to the respondent to recall of witness power to be invoked to meet the ends of justice for strong and valid reasons with cautions and circumspection, and the same issue was held in the judgement passed by a single bench judge Hon’ble MRS. JUSTICE MEENAKSHI MADAN RAI, In the matter The Branch Manager, New India Assurance Co. Ltd. versus  Smt. Geeta Khatiwara and Others [MAC App. No.04 of 2020] dealt with an issue mentioned above. The Learned Claims Tribunal, North Sikkim, at Mangan, vide the impugned Judgment, dated 23-12-2019, in MACT Case No.04 of 2019, awarded compensation of a sum of Rs.40,80,000/- (Rupees forty lakhs and eighty thousand) only, with interest @ 7.5% per annum, from 07-03-2019, the date of institution of the Claim Petition, till full and final payment. The Appellant, Opposite Party No.2, being the Insurance Company, was directed to pay the Award to the Claimants within one month from the date of the impugned Judgment. Having heard learned Counsel for the parties and examined all documents on record as also the impugned Judgments, the question that falls for consideration before this Court is; Whether the Appellant Company is liable to make good the compensation determined by the Learned Claims Tribunal to the victims in the accident. The court perused the facts and arguments presented in the case In light of the above observations, it is now to be examined whether Exhibit 19/Exhibit 18 (Insurance Policy) is a Comprehensive Policy or an Act Policy and the deceased persons being gratuitous passengers in the private vehicle would be entitled to compensation. Exhibit 19/Exhibit 18 specifically provides that Policy Schedule cum Certificate of Insurance is a Private Car Liability Policy. In the Schedule of Premium, it is clearly written as “third party cover”. Click here to read the judgment

THE HIGH COURT OF SIKKIM : GANGTOK Civil Appellate Jurisdiction) DATED : 20th December 2021 SINGLE BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI JUDGE MAC App. No.020 The Branch Manager New India Assurance Co. Ltd. Appellant Respondents : Smt. Geeta Khatiwara and Others versus Appeal under Section 173 of the Motor Vehicles Act 1988 Appearance Mr. Sudesh Joshi Advocate for the Appellant. Mr. N. Rai Senior Advocate with Mr. N. T. Sherpa for Respondents Claimants No.1 to 5. Mr. Umesh Gurung Advocate for Respondent No.6. MAC App. No.020 versus The Branch Manager New India Assurance Co. Ltd. Appellant Respondents : Smt. Januka Sharma and Others Appeal under Section 173 of the Motor Vehicles Act 1988 Appearance Mr. Sudesh Joshi Advocate for the Appellant. Mr. N. Rai Senior Advocate with Mr. N. T. Sherpa for Respondents Claimants No.1 to 4. Mr. Umesh Gurung Advocate for Respondent No.5. JUDGMENT Meenakshi Madan Rai J. These two Appealsare being disposed of by this common Judgment as they pertain to the same accident. MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Geeta Khatiwara and Others 2 and MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Januka Sharma and Others MAC App. No.020 2(i). The Learned Motor Accidents Claims Tribunal North Sikkim at Mangan vide the impugned Judgment dated 23 12 2019 in MACT Case No.05 of 2019 awarded compensation of a sum of Rs.95 17 530 only with interest @ 7.5% per annum from 07 03 2019 the date of institution of the Claim Petition till full and final payment. The Appellant Opposite Party No.2 being the Insurance Company Limited was directed to pay the Award to the Claimants within one month from the date of the impugned Judgment. MAC App. No.020 The Learned Claims Tribunal North Sikkim at Mangan vide the impugned Judgment dated 23 12 2019 in MACT Case No.019 awarded compensation of a sum of Rs.40 80 000 Rupees forty lakhs and eighty thousand) only with interest @ 7.5% per annum from 07 03 2019 the date of institution of the Claim Petition till full and final payment. The Appellant Opposite Party No.2 being the Insurance Company was directed to pay the Award to the Claimants within one month from the date of the impugned Judgment. Aggrieved thereof Opposite Party No.2 Appellant in both the cases are in Appeal before this Court. Learned Counsel for the Appellant Company while placing his arguments before this Court contended that the Statutory Insurance Policy of the private vehicle in accident covers MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Geeta Khatiwara and Others 3 and MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Januka Sharma and Others only third parties and not gratuitous passengers. Third party premium has been paid as per the Policy but not for gratuitous passengers. Relying on the ratio of the Hon’ble Supreme Court in New India Assurance Company Limited vs. Sadanand Mukhi and Others1 it was urged that where additional premium has not been paid then the gratuitous passenger cannot be covered. Apart from the statutory requirement the owner and the insurer can enter into a contract of indemnity by paying extra premium to cover all passengers including gratuitous passengers. However no extra premium was paid in the instant case as apparent from the Insurance Policy exhibited and relied on by the Respondents Claimants. As the deceased persons were not being covered by the Policy of Insurance consequently the Claimants being the wife three daughters and mother of the deceased in MAC App. No.04 of 2020 and the wife two sons and father of the deceased in MAC App. No.05 of 2020 are not entitled to compensation erroneously granted by the Learned Claims Tribunal. Reliance was also placed on United India Insurance Co. Ltd. Shimla vs. Tilak Singh and Others2 where the Hon’ble Supreme court propounded that where the Insurance Policy is a Statutory Policy it will not cover the death of a gratuitous passenger as in the instant case. For the above reasons it was urged that the impugned Judgments and Awards of the Learned Claims Tribunal be set aside and the Appeals dismissed. Resisting these arguments Learned Senior Counsel for the Respondents Claimants in both the cases submitted that it has 1 2 SCC 417 2 4 SCC 404 MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Geeta Khatiwara and Others 4 and MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Januka Sharma and Others not been established that the deceased in both the cases were gratuitous passengers as cross examination of Respondents did not elicit evidence as to whether the passengers had paid money to travel in the vehicle. That the Insurance Policy cannot be stated to be a “Statutory Policy” for the reason that in the second page of Exhibit 19 and Exhibit 18 the words “Package Policy” has not been scored out by the Insurance Company or its agent to specify that it was only an Act Policy. Relying on the ratio in Bhagyalakshmi and Others vs. United Insurance Company Limited and Another3 it was vehemently urged that the Insurance Policy was indeed a Package Policy. Reliance was also placed on Yashpal Luthra and Another vs. United India Insurance Co. Ltd. and Another4 Amrit Lal Sood and Another vs. Kaushalya Devi Thapar and Others5 National Insurance Co. Ltd. vs. Swaran Singh and Others6 and Jagtar Singh alias Jagdev Singh vs. Sanjeev Kumar and Others7 to buttress the case of the Respondents Claimants. That in view of the above submissions the Judgments and Awards of the Learned Claims Tribunal deserves no interference. Having heard Learned Counsel for the parties and examined all documents on record as also the Judgments the question that falls for consideration before this Court is Whether the Appellant Company is liable to make good the compensation determined by the Learned Claims Tribunal to the victims in the accident 3 7 SCC 148 4 2011 ACJ 1415: 2009 SCC OnLine Del 4291 5 3 SCC 744 6 3 SCC 297 7 15 SCC 189 MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Geeta Khatiwara and Others 5 and MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Januka Sharma and Others 7(i). It is imperative to briefly outline the facts of the case before examining the merits thereof. The victims Late Shiva Kumar Khatiwara aged about 50 years a teacher under the Human Resource Development Department Government of Sikkim earning a monthly income of Rs.88 865 only in MAC App. No.04 of 2020 and Late Mani Kumar Khatiwara aged about 35 years a famer cum business man earning a monthly income of Rs.20 000 only in MAC App. No.05 of 2020 met with an accident on 23 01 2019 near Gaidhara Singtam East Sikkim while traveling in a private vehicle Bolero bearing registration No.SK 02 P 2442. They were returning to their respective homes after attending the marriage ceremony of their cousin at Gangtok East Sikkim. The cause of death was on account of rash and negligent driving of the driver. Pursuant to the accident Singtam P.S. Case No.9 of 2019 under Sections 279 337 338 304A of the Indian Penal Code 1860 was registered against the errant driver. The facts of the case are not contested by the Appellant Company. Incongruous as the argument of the Respondents Claimants appears with regard to the Policy being a Package Policy as already reflected hereinabove it is expedient at this stage to examine what is a “Package Policy Comprehensive Policy” and a “Statutory Act Policy”. The Policy in question Exhibit 19 in MAC App. No.020 and Exhibit 18 in MAC App. No.020 was in respect of a Private Car with validity from 16 12 2018 from 15 10 2019. MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Geeta Khatiwara and Others 6 and MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Januka Sharma and Others 8(i). Section 147 of the Motor Vehicles Act 1988deals with requirement of policies and limits of liabilities which is extracted below for quick reference “147. Requirement of policies and limits of requirements of this Chapter a policy of insurance must be a policy which─ comply with In order a) is issued by a person who is an authorised insurer and b) insures the person or classes of persons specified in the policy to the extent specified in sub sectionagainst any liability which may be incurred by him in respect of the death of or bodily injury to any person including owner of the goods or his authorised in the representative carried motor vehicle or damage to any property of a third party caused by or arising out of the use of the motor vehicle in a public place ii) against the death of or bodily injury to any passenger of a gratuitous passengers of a goods vehicle caused by or arising out of the use of the motor vehicle in a public place. vehicle Provided that a policy shall not be required i) to cover liability in respect of the death arising out of and in the course of his employment of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen s Compensation Act 1923 23) in respect of the death of or bodily to any such injury a) engaged in driving the vehicle b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle or c) if it is a goods carriage being carried in the vehicle or ii) to cover any contractual liability. MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Geeta Khatiwara and Others 7 and MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Januka Sharma and Others Explanation.—For the removal of doubts it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident if the act or omission which led to the accident occurred in a public place. 2) Subject to the proviso to sub section 1) a policy of insurance referred to in sub section 1) shall cover any liability incurred in respect of any accident up to the following limits namely:— a) save as provided in clausethe amount of liability incurred b) in respect of damage to any property of a third party a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force immediately before the commencement of this Act shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. 3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters and different forms particulars and matters may be prescribed in different cases. form and containing 4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time the insurer shall within seven days of the expiry of the period of the validity of the cover note notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may 5) Notwithstanding anything contained in any law for the time being in force an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.” A bare reading of the sub Sectionof Section 147 of the M. V. Act 1988 indicates that a Policy of Insurance must be a Policy issued by an authorized insurer and insures the person of MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Geeta Khatiwara and Others 8 and MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Januka Sharma and Others classes of persons specified in the Policy to the extent specified in sub Sectionwhich is a Statutory Policy. The proviso to Section 147of the M.V. Act 1988 enumerates the liabilities which are not required to be covered by a Statutory Policy. Sub Sectionof Section 147 of the M.V. Act 1988 directs that subject to the proviso to sub Section a Statutory Policy shall cover the amount of liability incurred except in respect of damage to any property of a third party for which a limit of Rs.6 000 only is specified. The proviso to sub Section discloses that any Policy of Insurance issued with any limited liability and in force immediately before the commencement of the new Act shall continue to be effective for a period of four months after such commencement or till the date of expiry of such Policy whichever is earlier. That having been said we may refer observations of the Supreme Court in National Insurance Company Limited vs. Balakrishnan and Another8 wherein the Supreme Court has an occasion to examine the difference between “Act Policy” and ”Comprehensive Package Policy” as below “24. It is extremely important to note here that till 31 12 2006 the Tariff Advisory Committee and thereafter from 1 1 2007 IRDA functioned as the statutory regulatory authorities and they are entitled to fix the tariff as well as the terms and conditions of the policies issued by all insurance companies. The High Court had issued notice to the Tariff Advisory Committee and IRDA to explain the factual position as regards the liability of the insurance companies in respect of an occupant in a private car under policy”. Before the High Court the competent authority of IRDA had stated that on 2 6 1986 the Tariff Advisory Committee had issued instructions to all the insurance companies to cover the pillion rider 8 1 SCC 731 MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Geeta Khatiwara and Others 9 and MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Januka Sharma and Others of a scooter motorcycle under the “comprehensive policy” and the said position continues to be in vogue till date. It had also admitted that the “comprehensive policy” is presently called a “package policy”. It is the admitted position as the decision would show the earlier Circulars dated 18 3 1978 and 2 6 1986 continue to be valid and effective and all insurance companies are bound to pay the compensation in respect of the liability towards an occupant in a car irrespective of the terms and conditions contained in the policy. The competent authority of IRDA was also examined before the High Court who stated that the Circulars dated 18 3 1978 and 2 6 1986 of the Tariff Advisory Committee were incorporated in the Indian Motor Tariff effective from 1 7 2002 and they continue to be operative and binding on the insurance companies. … 26. In view of the aforesaid factual position “comprehensive package policy” would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an “Act policy” stands on a different footing from a “comprehensive package policy”. As the circulars have made the position very clear and IRDA which is presently the statutory authority has commanded the “comprehensive package policy” covers the liability there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the “Act policy” which admittedly cannot cover a third party risk of an is a “comprehensive package policy” the liability would be covered. …..” in a car. But the policy It is thus clear that a Comprehensive Package Policy would cover the liability of the insurer for payment of compensation for the occupant in a car in other words it covers a third party risk of an occupant in a car. An Act Policy however does not cover a third party risk of an occupant in a car. The air is thus clear on this aspect. Now we may examine the liability if any of an Insurance Company towards a gratuitous passenger. In New India MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Geeta Khatiwara and Others 10 and MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Januka Sharma and Others Assurance Company vs. Satpal Singh and Others9 the Supreme Court was considering the case of a 10 year old girl who met with her death in a truck accident. Her father brother and sister sought compensation for her death under the M. V. Act 1988. The Learned Motor Accidents Claims Tribunal passed an Award for a sum of Rs.25 000 only to the Claimants. The owner of the truck was found liable to pay the compensation amount. The Insurance Company had been directed to pay the compensation as the vehicle was then covered by an Insurance Policy issued by that Company. The Insurance Company appealed against the Judgment and put forth the contention that the deceased was a gratuitous passenger in the truck and hence no liability could be fastened on the insurer. The Division Bench of the High Court dismissed the Appeal filed by the Insurance Company which was then before the Hon’ble Supreme Court. After considering the matter the Hon’ble Supreme Court reasoned that the Appellant had banked on the decision in Mallawwa vs. Oriental Insurance Company Limited10 to resist the liability on the premise that the victim of the accident was a gratuitous passenger in the vehicle covered by the Insurance Policy. The Supreme Court opined that the decision was rendered under Section 95 of the Motor Vehicles Act 1939. That as per the proviso to the said Section when read with Clause it is clear that the Policy of Insurance shall not be required to cover liability in respect of the death of or bodily injury to persons who were gratuitous passengers of that vehicle. The provision of Section 95 of the M. 9 1 SCC 237 101 SCC 403 MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Geeta Khatiwara and Others 11 and MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Januka Sharma and Others V. Act 1939 was compared to Section 147 of the M. V. Act 1988. It was concluded as follows “11. The result is that under the new Act an insurance policy covering third party risk is not required to exclude gratuitous passengers in a vehicle no matter that the vehicle is of any type or class. Hence the decisions rendered under the old Act vis à vis gratuitous passengers are of no avail while considering the liability of the insurance company in respect of any accident which occurred or would occur after the new Act came into force.” emphasis supplied] While disagreeing with this observation in New India Assurance Co. Ltd. vs. Asha Rani and Others11 the Hon’ble Supreme Court considered whether under Section 147 of the M. V. Act 1988 as stood prior to the 1994 amendment the insurer was liable to pay compensation to the owner of goods or his authorized representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of goods or his representative dies or suffers any bodily injury. The Accidents Claims Tribunal as well as the High Court answered the question in the affirmative. The Appellant Insurer was before the Supreme Court aggrieved thereof and contended that the decision in Satpal Singh was not good law inasmuch as the Court had not taken into consideration the relevant provisions as they then stood nor had it considered the effect and purpose of the 1994 amendment. On the other hand the Respondent contended that the 1994 amendment was only clarificatory and had not brought about any substantial change and that the Act being a beneficial one a construction beneficial to the victims of the accident should be followed. Allowing the Appeals of the Insurer the Supreme Court comprising of a Bench of G. B. Pattanaik H. K. Sema and S. 11 2 SCC 223 MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Geeta Khatiwara and Others 12 and MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Januka Sharma and Others B. Sinha JJ. after discussing the provisions of Section 95 of the Motor Vehicles Act 1939 Section 147 of the M. V. Act 1988 prior to its amendment in 1994 and after being amended concluded inter alia that the previous Judgment of the Supreme Court in Satpal Singh therefore must be held to have been incorrectly decided and the impugned Judgment of the Tribunal as well as that of the High Court were accordingly set aside. It was held that the insurer will not be liable for paying compensation to the owner of the goods or his authorised representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of the goods or his representative dies or suffers any bodily injury. S. B. Sinha J. supplementing the decision held that “28. An owner of a passenger carrying vehicle must pay premium for covering the risks of the passengers. If a liability other than the limited liability provided for under the Act is to be enhanced under an insurance policy additional premium is required to be paid. But if the ratio of this Court s decision in New India Assurance Co. v. Satpal Singh1 SCC 237 : 2000 SCC 130] is taken to its logical conclusion although for such passengers the owner of a goods carriage need not take out an insurance policy they would be deemed to have been covered under the policy wherefor even no premium is required to be paid. 29. We may consider the matter from another angle. Section 149(2) of the 1988 Act enables the insurers to raise defences against the claim of the claimants. In terms of clauseof sub sectionof Section 149 of the Act one of the defences which is available to the insurer is that the vehicle in question has been used for a purpose not allowed by the permit under which the vehicle was used. Such a statutory defence available to the insurer would be obliterated in view of the decision of this Court in Satpal Singh case1 SCC 237 : 2000 SCC130].” iii) Following this ratio in M s. National Insurance Co. Ltd. vs. Baljit Kaur and Others12 the question that arose for consideration 12 AIR 2004 SC 1340 MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Geeta Khatiwara and Others 13 and MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Januka Sharma and Others in a batch of Appeals therein was whether an Insurance Policy in respect of a goods vehicle would also cover gratuitous passenger in view of the legislative amendment in 1994 to Section 147 of the M. V. Act 1988. The submission of the Respondent vehicle owner and the driver therein was that the insertion by way of legislative amendment of the words “including owner of the goods or his authorized representative carried in the vehicle” under Section 147 would result in the inference that gratuitous passenger are well covered by the scope of the provision. Any other construction would render the effect of the words “any person” as completely redundant. The Court observed that by reason of the 1994 amendment what was added is “including the owner of the goods or his authorized representative carried in the vehicle”. The liability of the owner of the vehicle was to insure it compulsorily thus by reason of the aforementioned amendment only the owner of his goods or his authorized representative carried in the vehicle besides the third parties were included. The intention of the Parliament therefore could not have been that the words “any person” occurring in Section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention there was no necessity for Parliament to carry out an amendment inasmuch as expression “any person” contained in sub Clause of Clause of sub Section of Section 147 would have included the owner of the goods or his authorized representative besides the passengers who were gratuitous or otherwise. It was concluded as follows “20. It is therefore manifest that in spite of the amendment of 1994 the effect of the provision contained in Section 147 with respect to persons MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Geeta Khatiwara and Others 14 and MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Januka Sharma and Others it was not the other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle intention of the legislature to provide for the liability of the insurer with respect to passengers especially gratuitous passengers who were neither contemplated at the time the contract of insurance was entered into nor was any premium paid to the extent of the benefit of insurance to such category of people.” emphasis supplied] iv) In Tilak Singh the core issue involved in the Appeal was whether a Statutory Insurance Policy under the M. V. Act 1988 intended to cover the risk to life or damage to properties of third parties could cover the risk of death or injury to a gratuitous passenger carried in a private vehicle. The Respondent No.5 therein had insured his scooter with the Appellant Insurance Company for the period 07 03 1989 to 06 03 1990. For covering liability to pillion passengers endorsement of IMT 70 pertaining to accident of unnamed hirer driver pillion passenger was required on the Insurance Policy which was to be obtained by additional premium. The Insurance Policy covering the scooter of Respondent No.5 did not contain an endorsement of IMT 70. The Scooter was sold by Respondent No.5 to Respondent No.1. One Rajinder Singh who riding pillion on 31 10 1989 while being driven by Respondent No.1 died as a result of an accident. On a claim made by the legal heirs of Rajinder Singh the Tribunal absolved the Appellant Insurance Company from liability on the ground that no notice of the transfer of the insured vehicle had been given to the Appellant Insurance Company in the manner prescribed by the 1939 Act and Respondent No.1 was held liable for payment of the MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Geeta Khatiwara and Others 15 and MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Januka Sharma and Others compensation. Respondent No.1 appealed. The High Court found that the Insurance Company was jointly and severally liable along with the Appellant for the payment of the compensation determined and awarded. The Insurance Company was before the Supreme Court thereafter. The Supreme Court while considering the law and precedents made a reference to the ratio in Satpal Singh wherein it was held that under the new Act an Insurance Policy covering third party risk is not required to exclude gratuitous passengers in a vehicle no matter that the vehicle is of any type or class and observed that the view expressed in Satpal Singh however has been specifically overruled in the subsequent Judgment of a Bench of three Judges in Asha Rani supra) wherein it was observed as follows “21. In our view although the observations made in Asha Rani case2 SCC 223 : 2003 SCC493] were in connection with carrying passengers in a goods vehicle the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider as the insurance policy was a statutory policy and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger.” From the above prolix discussions the difference between “Comprehensive Package Policy” and “Act Policy” have been set out. It is now no more res integra that the insurer will not be liable for paying compensation when a private vehicle meets with an accident and a gratuitous passenger dies as a consequence of the accident. It is clear that additional premium is required to be paid if a liability other than the limited liability provided for under the Act is to be enhanced under an Insurance Policy. MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Geeta Khatiwara and Others 16 and MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Januka Sharma and Others In light of the above observations it is now to be examined whether Exhibit 19 Exhibit 18 is a Comprehensive Policy or an Act Policy and the deceased persons being gratuitous passengers in the private vehicle would be entitled for compensation. Exhibit 19 Exhibit 18 specifically provides that Policy Schedule cum Certificate of Insurance is a Private Car Liability Policy. In the Schedule of Premium it is clearly written as “third party cover”. The limits of liability is up to Rs.7 50 000 Rupees seven lakhs and fifty thousand) only no additional premium has been paid for Insurance Policy or other heads as reflected in Exhibit 19 Exhibit 18. The Policy proves inter alia as follows Private Car Liability Policy POLICY SCHEDULE CUM CERTIFICATE OF INSURANCE Own Damage Schedule of Premium Basic TP Cover Compulsory PA cover for Owner Driver LL cover for Paid Driver TP Premium in ` OD Premium in ` Net Premium in ` : GST in ` : Total payable in ` : Total payable in `: RUPEES TEN THOUSAND TWO HUNDRED FIFTY FOUR ONLY Limitations as to use The policy covers use for any other than: a) Hire or reward b) Organised racing OR c) Speed testing Limits of Liability Limit of the amount the Company’s Liability Under Section II 1(i) in respect of any one accident: as per the Motor Vehicles Act Limit of the amount of the Company’s Liability Under Section II 1(ii) in respect of any one claim or series of claims arising out of one event: up to ` 7 50 000 For individual coversin `: Imposed excess in `: Voluntary excess in `: Compulsory excess in `: Persons or classes of persons entitled to driver Any person including the insured provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license. Provided also that the person Holding an effective Learner’s License may also drive the vehicle and that such a person satisfies the requirement of Rule 3 of the Central Motor Vehicles rules 1988 MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Geeta Khatiwara and Others 17 and MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Januka Sharma and Others PA cover for Owner Driver PA cover for named persons Name Premium and GST Details Premium Name of Age of Nominee Relationship with the insured Relationship to the Nominee Name of the AppointeeRate of Tax Amount in INR 8690.00 In witness where of this policy has been signed at GANGTOK BR on this 13 12 2018 WARRANTED THAT IN CASE OF DISHONOUR OF THE PREMIUM CHEQUE THIS DOCUMENT STANDS AUTOMATICALLY CANCELLED ABINITIO This policy is subject to the Terms conditions and exceptions applicable to Package Liability policy attached available on the web site IMT Endorsement Number(s) printed herewith attached 22 Important notice This insured is not indemnified if the vehicle is used or driven otherwise than in accordance with this schedule. Any payment made by the company by reason of wider terms appearing in the certificate in order to comply with the Motor Vehicles Act 1988 is recoverable from the insured: see clause headed ÄVOIDANCE OF CERTAIN TERMS AND RIGHTS OF RECOVERY”. It is clarified that in case the declaration regarding the ncb or other previous policy details made by the insured is found to be incorrect all the benefitsunder section 1 of this policy will stand forfeited. ” The only argument of Learned Senior Counsel for the Respondents Claimants was that the Appellant Company had not struck out the words “Package Policy”. This arguments holds no water as it is a human error and the document otherwise speaks for itself inasmuch as no additional premium has been paid to cover a gratuitous passenger nor has Learned Counsel for the Respondents Claimants been able to establish that any additional premium was paid towards this end. In the said circumstances it need not be reiterated that the liability of the Insurance Company would be confined to that reflected in the Insurance Policy. The Learned Claims Tribunal was thus in error in granting the compensation. MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Geeta Khatiwara and Others 18 and MAC App. No.020 : The Branch Manager New India Assurance Co. Ltd. vs. Smt. Januka Sharma and Others Consequently the impugned Judgments and Awards of the Learned Claims Tribunal are set aside. Appeals disposed of accordingly. No order as to costs. Tribunal for information. Copy of this Judgment be sent to the Learned Claims Judge 20 12 2021 ds Approved for reporting : Yes

High Court may quash criminal proceedings in view of compromise between the disputants. : Allahabad High Court

Offences under Section 307 IPC and the Arms Act, for example, would fall into the category of heinous and serious offences and thus are to be treated as a crime against society rather than against the individual alone, and thus criminal proceedings for the offence under Section 307 IPC and/or the Arms Act, for example, cannot be quashed in exercise of powers undue. Said Justice Rajeev Mishra of the Allahabad High Court, in the matter of Vijay Pal &amp; 5 others v. State of UP [APPLICATION U/S 482 No. – 1880 of 2021]. This order was passed for the application under Section 482 Cr.P.C. has been filed challenging order dated 26.02.2020 passed by Additional Sessions Judge, Court No.9, Shahjahanpur in S.T. No.575 of 2014, (State Vs. Vijay Pal and Others), under Sections- 147, 323, 504, 506, 308 I.P.C., P.S.- Roza, District- Shahjahanpur, as well as entire proceedings of above-mentioned sessions trial on the ground that compromise has been entered into between the parties.  During the pendency of the aforementioned case before the Court below, the parties reached an amicable settlement. A compromise deed was drawn on the basis of the parties’ agreement, which was duly verified by a notary. As a result, the applicants, who are charge-sheeted accused, have now approached this Court through the present application under Section 482 Cr.P.C., seeking a reversal of the entire proceedings of the aforementioned Sessions Trial on the basis of compromise. On the basis of the aforementioned premise, learned counsel for the applicants contends that the dispute between the parties is purely private. Once the parties have reached an agreement, it serves no purpose to continue the proceedings of the above-mentioned sessions trial. Instead of relegating the parties to the Court below, the interests of justice will be better served if the entire proceedings of the above-mentioned sessions trial are quashed by this Court in the exercise of jurisdiction under Section 482 Cr. P. C. When torrents of litigation drown the courts with an unimaginable flood of dockets, the trial would only be a waste of judicial time in a futile pursuit. In contrast, learned opposition counsel has objected to the current application. He claims that a charge sheet has been filed against the applicants under sections 147, 323, 504, 506, and 308 of the IPC. Sanjay, Roshan, Ajai, Anil, Mahendra, and Smt. Ram Devi was injured in the incident that gave rise to the current criminal proceedings. Criminal cases involving offences arising from commercial, financial, mercantile, partnership, or similar transactions with an essentially civil flavour may fall for quashing in appropriate situations where parties have settled the dispute; in such a case, the High Court may quash the criminal proceeding if, in light of the compromise between the disputants. Given the facts and circumstances of the case, as stated above, and the submissions made by counsel for the parties, as well as the injuries sustained by the injured, namely, Sanjay, Roshan, Ajai, Anil, Mahendra, and Smt. Ram Devi, some of which cannot be described as minor, this court is of the considered opinion that the court below committed no illegality in rejecting the application. As a result, the order dated 26.02.2020 cannot be revoked. Furthermore, due to the foregoing, parties cannot be allowed to compromise in the present case because the dispute between the parties is not a private dispute but a crime against society. In light of the foregoing, there is no occasion for this Court to vacate the proceedings of S.T. No.575 of 2014 (State Vs. Vijay Pal and Others) under Sections 147, 323, 504, 506, 308 I.P.C., P.S.- Roza, District- Shahjahanpur, which are pending in the court of Additional Sessions Judge, Court No.9, Shahjahanpur. 

Court No. 89 Case : APPLICATION U S 482 No. 18821 Applicant : Vijay Pal And 5 Others Opposite Party : State of U.P. and Another Counsel for Applicant : Ved Prakash Pandey Counsel for Opposite Party : G.A Hon ble Rajeev Misra J Heard Mr. Ved Prakash Pandey learned counsel for applicants and learned A.G.A. for State This application under Section 482 Cr.P.C. has been filed challenging order dated 26.02.2020 passed by Additional Sessions Judge Court No.9 Shahjahanpur in S.T. No.5714 under Sections 147 323 504 506 308 I.P.C. P.S. Roza District Shahjahanpur as well as entire proceedings of above mentioned sessions trial on the ground that compromise has been entered into between the Record shows that in respect of an incident alleged to have been occurred on 18.03.2014 a prompt F.I.R. dated 18.03.2014 was lodged by informant opposite party no.2 Mithun and was registered as Case Crime No.614 under Sections 147 323 504 506 I.P.C. In the aforesaid F.I.R. six persons namely Vijay Pal Vishram Ram Ladaite Sukhendra Munna and Vilgaam have been nominated as named accused. After registration of above mentioned F.I.R. police proceeded with statutory investigation of above mentioned case crime number in terms of Chapter XII Cr.P.C. After completion of investigation Investigating Officer submitted a charge sheet against named accused under Sections 147 323 504 506 325 and 308 I.P.C. Thereafter cognizance was taken by court concerned. Subsequently case was committed to court of sessions. Accordingly S.T. No.5714 under Sections 147 323 504 506 308 I.P.C. P.S. Roza District Shahjahanpur came to be registered wherein applicants are alleged to have been summoned During pendency of above mentioned case before Court below parties amicably settled their dispute. On the basis of settlement so arrived at between parties a compromise deed was drawn which has been duly verified by a notary. Photocopy of same is on record as Annexure 4 to the affidavit. On the basis of compromise entered into between parties an application dated 09.01.2020 was filed by accused i.e. applicants herein before court below that on the evidence on record no offence under Section 308 I.P.C. is made out against applicants therefore same be dropped and the offence under Sections 323 325 504 506 I.P.C. being compoundable be compounded. However court below by means of order dated 26.02.2020 has rejected application dated 09.01.2020. Consequently applicants who are charge sheeted accused have now approached this Court by means of present application under Section 482 Cr.P.C. seeking quashing of entire proceedings of above mentioned Sessions Trial on the ground of compromise. On the aforesaid premise it is urged by learned counsel for applicants that dispute between parties is a purely private dispute. Once parties have entered into a compromise no useful purpose shall be served by prolonging proceedings of above mentioned sessions trial. Interest of justice shall better be served in case entire proceedings of above mentioned sessions trial are quashed by this Court itself in exercise of jurisdiction under Section 482 Cr. P. C instead of relegating the parties to Court below. The trial would only entail loss of judicial time in a futile pursuit when torrents of litigation drown the courts with an unimaginable flood of dockets Learned counsel for opposite party no.2 has supported the present application. It is contended by learned counsel for informant opposite party 2 that once informant himself has compromised with accused applicants then in that eventuality he cannot have any objection in case entire proceedings of above mentioned sessions trial are quashed by this Court. He has further invited attention of Court to the compromise deed which is on record as Annexure 4 to the affidavit and also the application dated 09.01.2020 filed by accused before court below whereby it has been prayed that on the evidence from record no offence under Section 308 I.P.C. is made out and therefore the same may be dropped and offence under Section 323 325 504 506 I.P.C. be compounded. It may be noted that application dated 09.01.2020 is on record as Annexure 2 to the affidavit. Per contra learned A.G.A. has opposed present application. He contends that charge sheet has been submitted against applicants under sections 147 323 504 506 308 IPC. In the incident giving rise to present criminal proceedings injured Sanjay Roshan Ajai Anil Mahendra and Smt. Ram Devi sustained injuries. Copies of injury report of aforesaid injured are on record as annexure SA 1 to the supplementary affidavit According to learned A.G.A. perusal of same goes to show that most of the injured have sustained injuries on skull and some of the injuries are bone deep. He therefore contends that in view of above the dispute between the parties cannot be said to be a private dispute. Criminality committed by accused is a crime against society. He further contends that court below vide order dated 26.02.2020 has already rejected the application dated 09.01.2020. However on the material on record no case for quashing of order dated 26.02.2020 is made out. It is thus urged that proceedings of above mentioned criminal case cannot come to an end on account of compromise between parties. To buttress his submission he has relied upon paragraph 15.4 of judgement in State of M.P. Vs. Laxmi Narayan and Others 2019) 5 SCC 688. For ready reference same is reproduced herein under: 15.4 Offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone and therefore the criminal proceedings for the offence under Section 307 IPC and or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code on the ground that the parties have resolved their entire dispute amongst themselves. However the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence which if proved would lead to framing the charge under Section 307 IPC. For this purpose it would be open to the High Court to go by the nature of injury sustained whether such injury is inflicted on the vital delegate parts of the body nature of weapons used etc. However such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed charge is framed and or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove " This Court is not unmindful of the following judgements of Apex Court: 1. B.S. Joshi and others Vs. State of Haryana and another16 SCC 1 4. Shiji @ Pappu and Others VS. Radhika and Another 201110 SCC 303 6. K. Srinivas Rao Vs. D.A Deepa 5 SCC226 7. Narindra Singh and others Vs. State of Punjab6 SCC 466 8. Yogendra Yadav and Ors. Vs. State of Jharkhand and another 2014 9) SCC 653 9. C.B.I. Vs. Maninder Singh1 SCC 389 10. C.B.I. Vs. Sadhu Ram Singla and Others 5 SCC 350 11. Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Others Vs. State of Gujarat and annother 2017SCC 641 12. Anita Maria Dias and Ors. Vs. State of Maharashtra and Others 2018) 3 SCC 290 13. State of M.P. VS. Dhruv Gurjar and Another 5 SCC 570 14. State of M.P. V s Laxmi Narayan & Ors. 2019SCC 688 15. Rampal Vs. State of Haryana AIR online 2019 SC 1716 16. Arun Singh and Others VS. State of U.P. and Another3 SCC 736 wherein the Apex Court has categorically held that compromise can be made between the parties even in respect of certain cognizable and non compoundable offences. However Apex Court in State of M.P. Vs. Laxmi Narayan has observed that no compromise can be made in respect of offences against society as they are not private in nature Similarly in Ram Pal Vs. State of Haryanait has been held that no compromise can be made in cases relating to rape and sexual assault. Reference may also be made to the decision given by this Court in Shaifullah and others Vs State of U.P. And anotherACC 278] in which the law expounded by the Apex court in some of the aforesaid cases has been explained in detail. Apex court in Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmurhas laid down the following guidelines with regard to quashing of criminal proceedings as well compromise in criminal proceedings in paragraphs 16 to 16.10 of the judgement which read as under: 16. The broad principles which emerge from the precedents on the subject may be summarised in the following propositions 16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court 16.2. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure 1973. The power to quash under Section 482 is attracted even if the offence is non compoundable. 16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482 the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power 16.4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised to secure the ends of justice or ii) to 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 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." Considering the facts and circumstances of case as noted herein above submissions made by counsel for parties and further taking into consideration the injuries sustained by injured namely Sanjay Roshan Ajai Anil Mahendra and Smt. Ram Devi some of which cannot be said to be simple this court is of considered opinion that no illegality has been committed by court below in rejecting application dated 09.01.2020 filed by applicants vide order dated 26.02.2020. As such order dated 26.02.2020 cannot be quashed. Furthermore on account of above parties cannot be permitted to compromise in present case as dispute between parties is not a private dispute but a crime against society. In view of above no occasion arises before this Court to quash the proceedings of S.T. No.5714 under Sections 147 323 504 506 308 I.P.C. P.S. Roza District Shahjahanpur pending in the court of Additional Sessions Judge Court No.9 Shahjahanpur. Consequently the application fails and is liable to be dismissed It is accordingly dismissed. Order Date : 22.3.2021

The default sentence in lieu of fine may be reduced to some extent to serve the ends of justice. : Allahabad High Court

“As quantum of fine is concerned, it appears to be adequate and it is not required to be disturbed. However, the default sentence in lieu of fine may be reduced to some extent to serve the ends of justice.” Said Justice Siddharth,J. Of the Allahabad High Court in the matter of  Virendra Singh @ Prem Singh vs Central Bureau Of Investigation [CRIMINAL APPEAL No. – 1091 of 2019] This order was passed in the under the facts that the accused obtained employment in the Postal Department by submitting forged and fabricated educational documents from their High School, Intermediate, and Graduation, which they prepared. The Central Bureau of Investigation investigated the case and filed charges against the current accused and the other co-accused individuals. The accused-appellant was tried for the alleged crime and convicted by the trial court, as evidenced by the impugned judgement and order. Learned counsel for the appellant has also submitted that the offence was committed in 1992, and the accused was removed from service when he was a young man; that there is no breadwinner in the appellant’s family. He then claimed that this was the appellant’s first offence and that he had not engaged in any other criminal activity since his conviction. He also stated that he is not pursuing this appeal on the basis of the legality of the conviction or the merits of the case, but rather on the quantum of sentence, and he has asked for a lenient ruling due to the appellant’s age. The accused-appellant has been imprisoned since November 16, 2017, according to learned counsel for the appellant. The appellant faces a maximum sentence of seven years in prison, and he has already served more than three years. As a result, he has requested that, in light of the appellant’s time in prison, a lenient stance be taken and his conviction be converted into sentence served. The prayer has been vehemently opposed by learned counsel for the C.B.I. and learned A.G.A. I have heard the learned counsel for the parties and have read the entire material on record, including the evidence and the trial court’s decision.It is apparent from the record that the accused had submitted forged and fabricated mark sheets/certificates just to get employment in Postal Department.  As a result, the trial court’s conviction is upheld. The appeal is finally dismissed with the modification that the sentence of 07 years rigorous imprisonment for the offence under Section 467 read with Section 120-B IPC is reduced by 02 years, and the default sentence in lieu of fine under Section 467 read with Section 120-B IPC is reduced from 05 months additional imprisonment to 02 months additional imprisonment; the default sentence in lieu of fine is reduced from 2 months imprisonment to 1 month additional imprisonment under Section 419 read with Section 120-B I.P.C.; under Section 420 read with Section 120-B I.P.C., the default sentence in lieu of fine is reduced from 2 months imprisonment to 1 month additional imprisonment; and under Section 468 read with 120-B I.P.C., the default sentence in lieu of fine is reduced from 2 months imprisonment to 1-month additional imprisonment. 

Reserved on : 11.01.2021 Delivered on : 19.01.2021 Case : CRIMINAL APPEAL No. 10919 Appellant : Virendra Singh @ Prem Singh Respondent : Central Bureau Of Investigation Counsel for Appellant : Shalendra Kumar Counsel for Respondent : Gyan Prakash Hon ble Siddharth J Heard Sri Yash Tandon learned counsel for the appellant Sri Gyan Prakash learned Senior Counsel assisted by Sri Sanjay Yadav learned counsels for the C.B.I. and learned A.G.A. for the State. This criminal appeal is directed against the judgement and order dated 16.11.2017 passed by Sri Rajesh Chaudhary Special Judge Anti Corruption C.B.I. Court No. 1 Ghaziabad convicting and sentencing the accused appellant Virendra Singh @ Prem Singh in New Special Case No. 25 of 2011 in R.C. No 0072005A0008 under Sections 120 B read with 419 420 467 468 471 I.P.C. P.S. SPE C.B.I. District Dehradun. The trial court has convicted the appellant for offence under Section 120 B read with Sections 419 420 467 468 471 I.P.C. for 3 years rigorous imprisonment and Rs 3 000 fine and in default of payment of fine to undergo additional imprisonment for 2 months under Section 419 read with Section 120 B I.P.C. the appellant has been convicted for 2 years rigorous imprisonment and fine of Rs. 2 000 and in default of payment of fine to undergo additional imprisonment of 2 months under Section 420 read with Section 120 B I.P.C. the appellant has been convicted for 4 years rigorous imprisonment and fine of Rs. 2 000 and in default of payment of fine to undergo additional imprisonment of 2 months under Section 467 read with 120 B I.P.C. the appellant has been convicted for 7 years rigorous imprisonment and fine of Rs. 7 000 and in default of payment of fine to undergo additional imprisonment of 5 months under Section 468 read with 120 B I.P.C. the appellant has been convicted for 4 years rigorous imprisonment and fine of Rs. 2 000 and in default of payment of fine to undergo additional imprisonment of 2 months and under Section 471 read with 120 B I.P.C. the appellant has been convicted for 2 years rigorous imprisonment and fine of Rs. 2 000 and in default of payment of fine to undergo additional imprisonment of 2 months. All the sentences are to run concurrently. The brief facts leading to this criminal appeal is that the accused persons had got employment in the Postal Department by submitting forged and fabricated educational documents of their High School Intermediate and Graduation and those fabricated documents were prepared by them. The Central Bureau of Investigation has investigated the matter and submitted chargesheet against the present accused and the other co accused persons. The accused appellant was tried for the alleged offence and has been convicted by the trial court by the impugned judgement and order. Sri Sri Yash Tandon learned counsel for the appellant has submitted that three accused persons were also convicted by the trial court along with present appellant. Their Criminal Appeal Nos. 1291711917and 7317have been disposed of by coordinate Bench of this Court and their sentences have been modified. He further submitted that although the trial court has convicted the present appellant on the basis of mere conjectures when he is absolutely innocent Learned counsel for the appellant has also submitted that offence was committed in the year 1992 and the accused had been removed from service and when he was removed from service he was a young man that there is no bread earner in the family of the appellant. He next submitted that it was the first offence of the appellant and after conviction he had not indulged in any other criminal activity. He further submitted that on the question of legality of conviction and merits of the case he is not pressing this appeal and only pressing on the quantum of sentence and he has prayed for taking lenient view considering the age of the appellant. It has been pointed out that the lower court record has been received. Learned counsel for the appellant has submitted that the accused appellant is in jail since 16.11.2017. The maximum sentence awarded to the appellant is 7 years and he has already spent more than 3 years in jail Therefore he has requested that keeping in view the period spent by the appellant in jail a lenient view may be taken and his conviction may be converted into sentence undergone. Learned counsel for the C.B.I. and learned A.G.A. have vehemently opposed the prayer. I have heard the learned counsel for the parties and perused the entire material available on record and the evidence as well as judgement of the trial court. It is apparent from the record that the accused had submitted forged and fabricated marksheets certificates just to get employment in Postal Department. This Court in the criminal appeals of similarly situated accused persons mentioned above has considered the relevant law of sentencing as follows : “In Mohd. Giasuddin Vs. State of AP AIR 1977 SC 1926 explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court: Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub culture that leads to ante social behaviour has to be countered not by undue cruelty but by re culturization. Therefore the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic rather than an in terrorem outlook should prevail in our criminal courts since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively you must injure him. If you are to reform him you must improve him and men are not improved by In Sham Sunder vs Puran 4 SCC 731 where the High Court reduced the sentence for the offence under Section 304 Part I into undergone the Supreme Court opined that the sentence needs to be enhanced being inadequate. It was held : The court in fixing the punishment for any particular crime should take into consideration the nature of offence the circumstances in which it was committed the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of offence." In State of MP vs Najab Khan 9 SCC 509 the High Court while upholding conviction reduced the sentence of 3 years by already undergone which was only 15 days. The Supreme Court restored the sentence awarded by the trial court. Referring the judgments in Jameel vs State of UP 12 SCC 532 Guru Basavraj vs State of Karnatak 8 SCC 734 the Court observed as follows : In operating the sentencing system law should adopt the corrective machinery or the deterrence based on factual matrix. The facts and given circumstances in each case the nature of the crime the manner in which it was planned and committed the motive for commission of the crime the conduct of the accused the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice dispensation system to undermine the public confidence in the efficacy of law. It is the duty of court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of victim of the crime but also the society at large while considering the imposition of appropriate punishment." Earlier "Proper Sentence" was explained in Deo Narain Mandal Vs. State of UP 7 SCC 257 by observing that sentence should not be either excessively harsh or ridiculously low While determining the quantum of sentence the court should bear in mind the principle of proportionately. Sentence should be based on facts of a given case. Gravity of offence manner of commission of crime age and sex of accused should be taken into account Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically In subsequent decisions the Supreme Court has laid emphasis on proportional sentencing by affirming the doctrine of proportionality. In Shyam Narain vs State(2013) 7 SCC 77 it was pointed out that sentencing for any offence has a social goal. Sentence is to be imposed with regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in the life of the victim but also a concavity in the social fabric. The purpose of just punishment is that the society may not suffer again by such crime The principle of proportionality between the crime committed and the penalty imposed are to be kept in mind. The impact on the society as a whole has to be seen. Similar view has been expressed in Sumer Singh vs Surajbhan Singh 7 SCC 323 State of Punjab vs Bawa Singh 3 SCC 441 and Raj Bala vs State of Haryana 2016) 1 SCC 463. In Kokaiyabai Yadav vs State of Chhattisgarh(2017) 13 SCC 449 it has been observed that reforming criminals who understand their wrongdoing are able to comprehend their acts have grown and nurtured into citizens with a desire to live a fruitful life in the outside world have the capacity of humanising the world. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166 the Supreme Court referred the judgments in Jameel vs State of UP 2010) 12 SCC 532 Guru Basavraj vs State of Karnatak 8 SCC 734 Sumer Singh vs Surajbhan Singh 7 SCC 323 State of Punjab vs Bawa Singh 3 SCC 441 and Raj Bala vs State of Haryana 1 SCC 463 and has reiterated that in operating the sentencing system law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case nature of crime manner in which it was planned and committed motive for commission of crime conduct of accused nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The Supreme Court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law as a tool to maintain order and peace should effectively meet challenges confronting the society as society could not long endure and develop under serious threats of crime and disharmony. It is therefore necessary to avoid undue leniency in imposition of sentence. Thus the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system. Keeping in view the facts and circumstances of the case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive it believes that no accused person is incapable of being reformed and therefore all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream.” In the facts and circumstances of the case the highest sentence which has been awarded by the learned trial court is of 07 years under Section 467 I.P.C. The remaining sentences are much less in comparison to it therefore the sentence awarded under Section 467 I.P.C. if reduced by 02 years against the awarded sentence of 7 years the ends of the justice will be served. From perusal of the judgement it appears that the sentence in all other sections have been directed to run concurrently and it has also been directed that the period during which the accused persons were in jail shall be accommodated in their sentence therefore there is no necessity for disturbing the sentences which have been awarded in other So far as quantum of fine is concerned it appears to be adequate and it is not required to be disturbed. However the default sentence in lieu of fine may be reduced to some extent to serve the ends of justice Accordingly the conviction by the trial court is upheld. The appeal is finally disposed of with the modification that the sentence of 07 years rigorous imprisonment for the offence under Section 467 read with Section 120 B I.P.C. is reduced by 02 years and the default sentence in lieu of fine under Section 467 read with Section 120 B IPC is reduced from 05 months additional imprisonment to 02 months additional imprisonment under Section 120 B read with Sections 419 420 467 468 471 I.P.C. the default sentence in lieu of fine is reduced from 2 months imprisonment to 1 month additional imprisonment under Section 419 read with Section 120 B I.P.C. the default sentence in lieu of fine is reduced from 2 months imprisonment to 1 month additional imprisonment under Section 420 read with Section 120 B I.P.C. the default sentence in lieu of fine is reduced from 2 months imprisonment to 1 month additional imprisonment under Section 468 read with 120 B I.P.C. the default sentence in lieu of fine is reduced from 2 months imprisonment to 1 month additional imprisonment under Section 471 read with 120 B I.P.C. the default sentence in lieu of fine is reduced from 2 months imprisonment to 1 month additional imprisonment. The criminal appeal is partly allowed. Office is directed to transmit the lower court record along with copy of this judgment to the learned court below for information and necessary compliance as warranted. Order Date : 19.01.2021 KS

In a suit for partition, if the defence is taken that there has been a partition, the said defence must be tested on evidence- Madras High Court

“I am unable to concur with the contention of the learned counsel. The plaintiff has come forward with the suit for partition and he has raised the contention that the earlier partition deed is sham and nominal.” These were stated by the single bench of Honourable Mr. Justice R. Subramanian in the case of D.Muthunarayanan v. T.D.Ravindran &amp; Ors. (CRP Nos.2754 &amp; 2755 of 2021). Here in the present case, the suit is being resisted by the defendants, who are his father and siblings contending that there was a partition in the family and the plaintiff being a party to the same is not entitled to maintain the present suit for partition. Even though the plaintiff did not disclose the said partition in the original plaint. In his counter to the application filed under Order 7 Rule 11 of CPC, the plaintiff had contended that the partition of the year 1996 was not acted upon and it is sham and nominal document created for the purpose of another suit. The trial Court dismissed the application on the conclusion that the issue as to whether there was a partition or not, will have to be decided by the Court only after evidence is let in and the same cannot be a ground for rejection under Order 7 Rule 11 of CPC. The single bench of Honourable Mr. Justice R. Subramanian in the case said that I am unable to concur with the contention of the learned counsel. The plaintiff has come forward with the suit for partition and he has raised the contention that the earlier partition deed is sham and nominal. The question whether the earlier partition deed is valid or not will have to be decided in the suit after evidence is let in. The validity or otherwise of the document cannot be a subject matter of rejection of the plaint under Order 7 Rule 11. Hence, I am unable to find fault with the trial Court for having dismissed the application. The same reasoning would apply to the Revision under Article 227 of the Constitution of India seeking striking off the plaint. In a suit for partition, if the defence is taken that there has been a partition, the said defence has to be tested on evidence. The Court cannot reject the plaint on the basis of the defence under Order 7 Rule 11. Hence, both the revisions fail and they are accordingly dismissed. Considering the fact that the suit is of the year 2018, the trial Court is required to dispose of the suit on or before 30.04.2022. No costs. Consequently, the connected miscellaneous petitions are closed.

CRP Nos.2754 & 27521IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 15.12.2021CORAM:THE HONOURABLE MR.JUSTICE R.SUBRAMANIANCRP Nos.2754 & 27521 andCMP.Nos.20102 & 201021 andCaveat No.44721D.Muthunarayanan... Petitioner in both CRPsVs1.T.D.Ravindran2.T.K.Devanathan Reddiar3.N.Gowri4.C.Lalitha5.R.Amarajothi6.M.Revathi7.Priyadarshini8.Preethika9.Karunandham ... Respondents in both CRPs(R9 represented by his Power Agent Rajendra Prasad)(R2 to R9 are given up)Prayer in CRP.No.27521: Civil Revision Petition filed under Article 227 of the Constitution of India against the order passed in I.A.No.221 in O.S.No.1418 dated 06.10.2021 on the file of the Special Court for trial of cases under the SC STAct Cuddalore and prays to set aside the same.Prayer in CRP.No.27521: Civil Revision Petition filed under Article 1 6 https: www.mhc.tn.gov.in judis CRP Nos.2754 & 27521227 of the Constitution of India seeking to strike off the plaint in O.S.No.1418 on the file of the Special Court for trial of cases under the SC STAct Cuddalore.For Petitioner : Mr.A.K.Kumarasamy(In both CRPs)For Caveator : Mr.Gururaj(In CRP.2754 2021) for M s.D.BaskarCOMMON ORDERHeard Mr.A.K.Kumarasamy learned Senior Counsel appearing for the petitioner in both the revisions.2.CRP.No.27521 is against an order made in I.A.No.221 in O.S.No.1418 an application seeking rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure. The plaintiff first respondent herein filed a suit for partition and separate possession of his 1 4th share in the suit B schedule property claiming that the suit property remained undivided.3.The suit is being resisted by the defendants who are his father and siblings contending that there was a partition in the family on 04.03.1996 and the plaintiff being a party to the same is not entitled to maintain the present suit for partition. Even though the plaintiff did not disclose the said partition in the original plaint. In his counter to the 2 6 https: www.mhc.tn.gov.in judis CRP Nos.2754 & 27521application filed under Order 7 Rule 11 of CPC the plaintiff had contended that the partition of the year 1996 was not acted upon and it is sham and nominal document created for the purpose of another suit. The trial Court dismissed the application on the conclusion that the issue as to whether there was a partition or not will have to be decided by the Court only after evidence is let in and the same cannot be a ground for rejection under Order 7 Rule 11 of CPC. Hence these revisions.4.In CRP.No.27521 the petitioner who is the third defendant in the suit seeks the extraordinary remedy of striking of the plaint on the very same ground that was urged in the application under Order 7 Rule 11 of CPC.5.Mr.A.K.Kumarasamy learned Senior Counsel would submit that since there had been a partition of the property belonging to the family on 04.03.1996 the present suit for partition is an abuse of process of Court and the same will have to be rejected.6.I am unable to concur with the contention of the learned counsel. The plaintiff has come forward with the suit for partition and he has raised the contention that the earlier partition deed is sham and nominal. The 3 6 https: www.mhc.tn.gov.in judis CRP Nos.2754 & 27521question whether the earlier partition deed is valid or not will have to be decided in the suit after evidence is let in. The validity or otherwise of the document cannot be a subject matter of rejection of the plaint under Order 7 Rule 11. Hence I am unable to find fault with the trial Court for having dismissed the application. 7.The same reasoning would apply to the Revision under Article 227 of the Constitution of India seeking striking off the plaint. In a suit for partition if the defence is taken that there has been a partition the said defence has to be tested on evidence. The Court cannot reject the plaint on the basis of the defence under Order 7 Rule 11. Hence both the revisions fail and they are accordingly dismissed. Considering the fact that the suit is of the year 2018 the trial Court is required to dispose of the suit on or before 30.04.2022. No costs. Consequently the connected miscellaneous petitions are closed.15.12.2021vsIndex: NoSpeaking order 4 6 https: www.mhc.tn.gov.in judis CRP Nos.2754 & 27521To:1.The Special Court for trial of cases under the SC STAct Cuddalore.2.The Section Officer VR Section Madras High Court Chennai.R.SUBRAMANIAN J.5 6 https: www.mhc.tn.gov.in judis CRP Nos.2754 & 27521vsCRP Nos.2754 & 27521 andCMP.Nos.20102 & 201021 andCaveat No.4472115.12.20216 6

Indirect remarks without intention to outrage religious sentiments not an offence: High Court of Tripura.

Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the ambit of Section 295A, IPC. This was decided in the case of Dulal Ghosh vs. State of Tripura [CRL PETN No.08 of 2020] by Hon’ble Chief Justice Akil Kureshi in the High Court of Tripura. The facts of the case are that the petitioner posted a comment on social media site- Facebook wherein a Hindu, (the complainant in this case) filed an FIR against him for hurting the religious feelings of the Hindu community. According to the complainant, the petitioner put such an un-tasteful and obscene comment on Hindu religion saying that Gita, the sacred religious text is “thakbaji Gita”. The police have started investigation on the matter for offence under Section 295A of IPC based on the complaint and this petition was filed to quash this FIR on the ground that his acts did not amount to any offence under the aforesaid provision. The contentions put forth by the counsel for the petitioner are that the post has been misrepresented by the complainant in order to falsely implicate him in a criminal case. However, the Addnl. Public Prosecutor opposed the petition stating that the petitioner had clearly displayed an intention to hurt the religious feelings by making derogatory remarks about a Holy Book. Also, the court shall not interfere in the matter when the investigation is still under process. The court referred to the judgement laid down in Ramji Lal Modi versus State of U.P [AIR 1957 SC 620] wherein the Supreme Court considered a challenge to the constitutionality of Section 295A of IPC on the ground that it transgresses the guarantee of free speech. In another famous case- Mahendra Singh Dhoni versus Yerraguntla Shyamsundar [(2017) 7 SCC 760], the court held “On a perusal of the aforesaid passages, it is clear as crystal that Section 295-A does not stipulate everything to be penalised and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of a class of citizens. It penalises only those acts of insults to or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class of citizens”. After closely analyzing the facts of this case in the background of the ratio laid in above cases, the court was of the view that mere passing allegation of the petitioner being in habit of placing such posts, cannot be the ground for permitting a fishing inquiry.  It also observed that without there being any background or foreground, it is not possible for any reasonable human being with ordinary common sense and intelligence, to discern any derogatory or demeaning meaning being ascribed by the petitioner to the holy book

HIGH COURT OF TRIPURA CRL PETN No.020 Sri Dulal Ghosh S o. late Sukumar Ghosh Village Fulchari P.O. & P.S. Kamalpur District Dhalai Dhalai Tripura. ......Petitioner(s) V E R S U S 1. The State of Tripura to be represented by the learned Public Prosecutor Hon‟ble High Court of Tripura. 2. The Investigating Officerthe Officer in Charge Kamalpur Police Station Kamalpur Government of Tripura P.O & P.S Kamalpur. 3. The Officer in Charge Kamalpur Police Station Kamalpur Government of Tripura P.O & P.S. Kamalpur. 4. Shyamal Kanti Paul S o Sri Dwijendra Kr. Paul R o. Manikbhander P.S. Kamalpur District Dhalai Tripura. ......Respondent(s) For Petitioner(s) For Respondent(s) Date of Judgment Order Mr. P. Roy Barman Sr. Advocate Mr. Samarjit Bhattacharjee Advocate Mr. Kawsik Nath Advocate. Mr. Samrat Ghosh Addl. P.P. 26th February 2021. Whether fit for reporting : YES. HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI JUDGMENT & ORDERPetitioner has prayed for quashing of an FIR dated 09.02.2020 registered as P.S. Case No.120 before Kamalpur Police Station by one Shyamal Kanti Paul respondent No.4 which is registered by the concerned police station for offence under Section 295A of the Indian Penal Code The case put forth before me by the petitioner through his learned counsel is as under : i) The petitioner is a rationalist and has been posting various comments on social media which may not be agreeable to certain readers. Only on account of his personal beliefs he is being targeted and falsely implicated in a criminal case. ii) The post in question has been deliberately twisted and misinterpreted. The petitioner never intended to demean the Holy Book Gita. The words used by the petitioner do not amount to any derogation or insult. The complainant has given a wrong connotation of the term used by the petitioner in order to make out a false case of criminal offence. iii) No singular post in isolation of the nature which the petitioner has placed even if the meaning attributed by the complainant is taken to be true would constitute an offence under Section 295A of IPC. In this context counsel has relied on certain decisions reference to which would be made at an appropriate stage. 3] On the other hand learned Additional Public Prosecutor strongly opposed the petition contending that the petitioner had exhibited a clear intention to hurt the religious feelings by making derogatory remarks about a Holy Book. Court should not interfere at a stage where investigation is yet to be completed. This is not the only occasion on which the petitioner has shown such tendency to hurt religious feelings. His post must be seen in the background of his previous posts. Perusal of the complaint in question would show that the complainant has referred to one Facebook post of the petitioner which he put on 08.02.2020 which was in Bengali and in original script reads as 4] under : “ঠগভাজী গীতা!!!!!” According to the complainant by putting such an un tasteful and obscene comment on Hindu religion by saying that Gita the sacred religious text is “thakbaji Gita” the petitioner has hurt the religious feelings of Hindu community. The complainant has further stated that the petitioner always makes such comments about the said religion. According to the petitioner the complainant is misinterpreting his post. His post did not convey the meaning that Gita was „ঠকবাজজ’ meaning deceitful or swindling. Instead the petitioner had put the post conveying that the Gita is a pan which fries „ভাজা’ i.e. swindlers. 7] The Government has countered the stand of the petitioner by filing a detailed affidavit and on the basis of which learned Additional Public Prosecutor has vehemently contended that the petitioner is now backtracking on his comment since a criminal complaint has been lodged against him which shows prima facie that he has committed a serious offence. He painstakingly tried to explain to me the phonetics of spoken Bengali where according to him alphabet „V‟ is pronounced as „Ba‟ and vice versa. For example the name „Vipin‟ he explained is spoken as „Bipin‟ in Bengali. He contended that the petitioner is trying to twist the words used by him and deliberately confusing the phonetical differences between Bengali and Hindi languages. 8] With rapid spread of social media platforms the right to free speech has got an entirely new dimension. The words and expressions are placed in social media which have a more lasting effect as compared to transient impact that oral conversation particularly in front of a small audience may have. Such social media posts also have the propensity to reach a vast number of people with supersonic speed. They transgress international boundaries and often times evoke excited responses. The society as well as the laws are grappling to keep pace with such rapid changes. What however continues to hold good is that the right of free speech guaranteed under Article 19(1)(a) of the Constitution is subject to reasonable restrictions that may be imposed by the State in the interests of sovereignty and integrity of India security of the State friendly relations with foreign states public order decency or morality contempt of Court defamation or incitement of an offence. No exercise of right of free speech can therefore transgress into any of the areas for which the law may have been framed for above purposes. It is in this context Section 295A of IPC comes into picture. It pertains to an offence of deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs. This Section provides that whoever with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India by words either spoken or written or by sings or by visible representations or otherwise insults or attempts to insult the religion or religious beliefs of that class shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both. In the early days of the establishment of the Supreme Court in case of Ramji Lal Modi versus State of U.P reported in AIR 1957 SC 620 a Constitution Bench of the Supreme Court considered a challenge to the constitutionality of Section 295A of IPC on the ground that it transgresses the guarantee of free speech. While upholding the vires inter alia on the ground that Section 295A of IPC is a law made for the purpose of maintenance of public order the Supreme Court made certain important observations which read as under : “9. Learned counsel then shifted his ground and formulated his objection in a slightly different way. Insults to the religion or the religious beliefs of a class of citizens of India may says learned counsel lead to public disorders in some cases but in many cases they may not do so and therefore a law which imposes restrictions on the citizens freedom of speech and expression by simply making insult to religion an offence will cover both varieties of insults i.e. those which may lead to public disorders as well as those which may not. The law in so far as it covers the first variety may be said to have been enacted in the interests of public order within the meaning of cl. of Art.19 but in so far as it covers the remaining variety will not fall within that clause. The argument then concludes that so long as the possibility of the law being applied for purposes not sanctioned by the Constitution cannot be ruled out the entire law should be held to be unconstitutional and void. We are unable in view of the language used in the impugned section to accede to this argument. In the first place cl.of Art.19 protects a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression "in the interest of public order ” which is much wider than "for maintenance of" public order. If therefore certain activities have a tendency to cause public disorder a law penalising such activities as an offence cannot but be held to be a law imposing reasonable restriction "in the interests of public order" although in some cases those activities may not actually lead to a breach of public order. In the next place S.295A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section. It only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. The calculated tendency of this aggravated form of insult is clearly to disrupt the public order and the section which penalises such activities is well within the protection of cl.of Art.19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Art. 19(1)(a). Having regard to the ingredients of the offence created by the impugned section there cannot in our opinion be any possibility of this law being applied for purposes not sanctioned by the Constitution. In other words the language employed in the section is not wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the fundamental right guaranteed by Art. 19(1)(a) and consequently the question of severability does not arise and the decisions relied upon by learned counsel for the petitioner have no application to this case.” In a subsequent judgment in case of Mahendra Singh Dhoni versus Yerraguntla Shyamsundar and another reported in7 SCC 760 the three Judge Bench of the Supreme Court after referring to the judgment in case of Ramji Lal Modimade following observations: “6. On a perusal of the aforesaid passages it is clear as crystal that Section 295 A does not stipulate everything to be penalised and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of a class of citizens. It penalises only those acts of insults to or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class of citizens. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section. The Constitution Bench has further clarified that the said provision only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Emphasis has been laid on the calculated tendency of the said aggravated form of insult and also to disrupt the public order to invite the penalty.” The entire issue at hand therefore needs to be examined in the background of the observations of the Supreme Court in case of Ramji Lal Modi namely that Section 295A does not penalize any and every act of insult or an attempt to insult the religion or the religious beliefs but it penalizes only those acts of insults or attempts which have been perpetrated with the deliberate and malicious intention of outraging the religious feelings of a particular class. Insults to religion made unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of a class would not come within the said section. 12] With this background we may revert to facts of our case. Though the complainant has stated that this is not an isolated post of the nature placed by the petitioner neither in the complaint nor before me by the State any such previous posts of the petitioner of offending nature even if for the moment one were to presume that the present post is one has been placed on record. Mere passing allegation of the petitioner being in habit of placing such posts cannot be the ground for permitting a fishing inquiry. I must therefore proceed on the basis that the petitioner has posted the above post on his Facebook which is a standalone post of its kind. Coming to the post by itself without there being any background or foreground it is not possible for any reasonable human being with ordinary common sense and intelligence to discern any derogatory or demeaning meaning being ascribed by the petitioner to the holy book. Bhagavad Gita is part of Hindu mythology of Mahabharat and it is in form of a conversation between the warrior prince Arjun and Lord Krishna when in the battle ground Arjun had serious doubts regarding the needless destruction. A purist may not describe it as a holy book since it does not contain religious tenets. Nevertheless it is treated as something sacred and a revered book containing Hindu scriptures. Deliberate and direct insult or derogation of such a work if otherwise done intentionally and to borrow the expressions of the Supreme Court in case of Ramji Lal Modi in order to outrage the religious feelings of the community would undoubtedly in a given case fall with the mischief of Section 295A of IPC. In the present case however the words used by the petitioner and which I have reproduced for accuracy in the original Bengali script do not convey even remotely the meaning which the complainant seeks to extract out of the expression. 13] As I have noted earlier there is a dispute about what exactly did the petitioner convey through the said post. In fact according to the complainant the term used by the petitioner is different from what the petitioner has actually posted and thereby raises a divergence of opinions. I have referred to the Bengali to English dictionary Sahitya Samsad Publication for the true meaning of the two expressions. The word ‘ঠক’ is explained as deceitful swindling and knavish. When suffix „বাজজ‟ is added it conveys the meaning of cheating swindling or knavery whereas the term ‘ভাজা’ is explained as to fry or roast. What the petitioner has written on his Facebook post is „ঠগভাজী’. Whatever this term coined by the petitioner may mean or may not mean anything at all it certainly does not convey the meaning which the complainant wants to ascribe namely that Bhagavad Gita is a deceitful document. Learned Additional Public Prosecutor however argued that there is no such expression as the petitioner has placed on his Facebook. Even if he is right it is not the role of the Court or for that matter the police to extract a meaning of a Facebook post whether the post is possible of any meaning or not. It may be frivolous it may be redundant it may make no sense. The question is by placing such a post has the poster committed offence under Section 295A of IPC When the answer to this question is in the negative the complaint must be quashed. The anomaly in the phonetics between Bengali and Hindi language cannot be a source to explain the stand of the complainant. I have not gone by the pronunciation of the words used by the petitioner but gone by the dictionary meaning of the expression which he has used in original Bengali script. It is not the spoken word which I am trying to interpret. It is a written expression which has to be interpreted. How such a post can be read when spoken is of no consequence. The expression thus used by the petitioner which is in total isolation without virtually any background or foreground therefore would require much twisting in order to fit within the scheme of Section 295A of IPC which would be wholly impermissible. It is not necessary for me to comment on the submission of the counsel for the petitioner that the petitioner being a rationalist he is being targeted by instituting a false criminal prosecution. The law is clear. The petitioner can hold his personal beliefs and within the framework of law can also express them as long as he does not transgress any of the restrictions imposed by law to the freedom of his speech and expression. 14] In view of these conclusions it is not necessary for me to examine the alternative contention of the counsel for the petitioner that even if the meaning attributed by the complainant to his post is accepted in view of the strong observations made by the Supreme Court in case of Ramji Lal Modioffence under Section 295A of IPC would not be 15] Under the circumstances impugned FIR dated 09.02.2020 is Petition is disposed of accordingly. Pending application(s) if any also stands disposed of. CJ made out. quashed. 16]

CCTV must be installed in entire police stations: Punjab & Haryana High Court

In the instant petition, the petitioner demands protection against inhuman treatment and violation of his fundamental rights while in remand by seeking installation of CCTV inside the police station including interrogation room, was brought before a bench of Punjab &amp; Haryana High Court consisting of Justice Amol Rattan Singh in the matters between Kaushal v. State of Haryana CRM-M -43672 of 2021 decided on 7.1.2022. The facts of the case are the petitioner, Kaushal Chaudhury is a gangster who was brutally  tortured in the interrogation room while in remand and also brought about allegations of human right violations against him in jail. The Petitioners contended that in view of the above facts and circumstances, he seek directions from the court to allow videography of his leaving the jail premises to his reaching the police station, interrogation session,when taken outside jail in the presence of his lawyer and appropriate security in order to prevent fake encounter and also “during interrogation his medical examination be also got conducted through a board of doctors or through a civil hospital, so that if any torture ‘is done to him’, then it can be revealed through the said medical examination.” The Respondents however, completely denied the allegations and contended that there is no provision in Criminal Procedure Code to mandate filing affidavits regarding whether directions of Supreme Court in Paramvir Singh Saini v. Baljit Singh &amp; Ors. are being followed. The Punjab &amp; Haryana High Court upheld the importance of using contemporary investigative methods rather than resorting to third-degree tactics. CCTV cameras were ordered to be installed all over the police stations, including the interrogation rooms, as per the Supreme Court’s jurisdiction. According to the case of Paramvir Singh Saini v Baljit Singh &amp; Ors.,directives no part of a police station can remain hidden to CCTV and the interrogation room should naturally be located within the perimeter.The court also said that India cannot provide the lame excuse that situations in other advanced countries cannot be equated to us and therefore cannot be compared to the methods employed there in interrogating the accused here.The torment of Police dealing with tough criminals was acknowledged but, under the constitutional order and legal provisions, even the worst offender cannot be denied a fair trial following proper procedure.

on 13 01 109 CRM M 436721 Kaushal v. State of Haryana and others Present: Mr. Bipan Ghai Sr. Advocate with Mr. Paras Talwar Advocate for the petitioner. Mr. Rajeev Anand APP for respondent no.3. Mr. Manreet Singh Nagra AAG Punjab. Mr. Neeraj Poswal AAG Haryana. Case heard by way of video conferencing. By this petition the petitioner seeks a direction to respondents no.1 to 3 with a prayer that whenever the petitioner is sought to be taken for interrogation in any case a videography be done of his leaving the jail premises till his reaching the concerned police station and during interrogation a videography be also done. It is further prayed that during interrogation his medical examination be also got conducted through a board of doctors or through a civil hospital so that if any torture is done to him’ then it can be revealed through the said medical examination with a further prayer made that when he is to be taken outside jail on remand then either his family members or his lawyer be informed of the location with his lawyer to be permitted to be present there where he is being taken and appropriate security be also provided so that he may not be killed in a fake encounter. It is further prayed that respondents no.1 to 3 be directed to comply with the provisions of Section 31 of the Prisons Act 1894. A detailed order had been passed by this court on 03.12.2021 directing the DGPs of Punjab and Haryana to file affidavits in response to the observations made in that order in reply to which both the DGP Punjab on 13 01 109 CRM M 436721 2 and the DGP Haryana have filed affidavits both dated 06.01.2022 which are ordered to be taken on record. The affidavit earlier filed by the SSP Chandigarh dated 26.10.2021 which is now on the case file is also ordered to be taken on record. Before proceeding further what has been contended by the petitioner in paragraph 22 of the petition is again being reproduced in this order which is as follows: 22. That the incidents that are happening with the petitioner inside the jail and during remand are as follows: i) The investigating agency spits on the floor and asks the petitioner to lick it and if the petitioner refuses to do so then he is forcible made to lick the spit of the police officers. ii) The investigating officers urinates on the face and on the body of the petitioner after removing his clothes. iii) The petitioner is made to be naked throughout the remand and given merciless beatings. iv) Sharp objects are inserted in the private parts of the petitioner. v) The petitioner is given electric shocks behind is ears and on his private parts so that he is tortured badly and even signs of said torture are not openly visible to the ld. Magistrate as well as medical officer. vi) His legs are put in wooden logs and then pulled aside thereby causing damage to his muscle and rollers are rolled over his thighs so that the petitioner feels the worst kind of pain and still there is no visible mark of injury. vii) The petitioner legs are tied with a rope and he is hanged with his head down and this is repeated every day while in police remand.” As regards the allegations of absolute inhuman treatment as on 13 01 109 CRM M 436721 3 made in the aforesaid paragraph as expected the allegations have been completely denied by both the DGPs with is also stated that no such allegation was ever made earlier by the petitioner and that therefore the petitioner has only made the allegations with mala fide intentions. As regards video recording of investigation of the interrogation process the DGP Haryana has stated that there is no such provision in the Cr.P.C. for conducting investigation under surveillance of CCTV cameras. The DGP Punjab is conspicuously silent in his affidavit on that aspect. Though as regards installation of video cameras in all police stations as pointed out by the learned State counsel in the affidavit of the DIGHaryana dated 02.12.2021 it has already been stated that CCTV cameras are installed in all entry and exit gates of prisons and all police stationsit is to be noticed that such cameras were also installed by both the States on directions issued by the Supreme Court and this court with Mr. Ghai again pointing today to the directions issued by the Supreme Court in the case of Paramvir Singh Saini v. Baljit Singh and others1 SCC 184 which read as follows: “16. The State and Union Territory Governments should ensure that CCTV cameras are installed in each and every Police Station functioning in the respective State and or Union Territory. Further in order to ensure that no part of a Police Station is left uncovered it is imperative to ensure that CCTV cameras are installed at all entry and exit points main gate of the police station all lock ups all corridors on 13 01 109 CRM M 436721 4 lobby the reception area all verandas outhouses Inspector s room Sub Inspector s room areas outside the lock up room station hall in front of the police station compound outsidewashrooms toilets Duty Officer’s room back part of the police station etc. 17. CCTV systems that have to be installed must be equipped with night vision and must necessarily consist of audio as well as video footage. In areas in which there is either no electricity and or internet it shall be the duty of the States Union Territories to provide the same as expeditiously as possible using any mode of providing electricity including solar wind power. The internet systems that are provided must also be systems which provide clear image resolutions and audio. Most important of all is the storage of CCTV camera footage which can be done in digital video recorders and or network video recorders. CCTV cameras must then be installed with such recording systems so that the data that is stored thereon shall be preserved for a period of 18 months. If the recording equipment available in the market today does not have the capacity to keep the recording for 18 months but for a lesser period of time it shall be mandatory for all States Union Territories and the Central Government to purchase one which allows storage for the maximum period possible and in any case not below 1 year. It is also made clear that this will be reviewed by all the States so as to purchase equipment which is able to store the data for 18 months as soon as it is commercially available in the market. The affidavit of compliance to be filed by all States and Union Territories and Central Government shall clearly indicate that the best equipment available as of date has been purchased. 18. Whenever there is information of force being used at police stations resulting in serious injury and or custodial deaths it is necessary that persons be free to complain for a redressal of the same. Such complaints may not only be made to the State Human Rights Commission which is then to utilise its powers more particularly under Sections 17 and 18 of the Protection of Human Rights Act 1993 for redressal of such complaints but also to Human Rights Courts which must then be set up in each District of every State Union Territory under Section 30 of the on 13 01 109 CRM M 436721 5 aforesaid Act. The Commission Court can then immediately summon CCTV camera footage in relation to the incident for its safe keeping which may then be made available to an investigation agency in order to further process the complaint made to it. Hence with the directions issued by the Supreme Court also being to the extent that cameras be installed at not just entry and exit points and main gates of police stations but also in all lock ups corridors lobby and reception areas verandas out houses rooms of officials outside the lock up rooms station hall and in front of the police station compound as also outside washrooms and toilets the obvious implication is that no part of the police stations would be left uncovered by CCTV surveillance. Naturally therefore any interrogation room would also be covered by such directions. Consequently the DGP Haryana the DGP Punjab as also the DGP U.T. Chandigarh are now directed to file affidavits as to whether the aforesaid directions of the Supreme Court have been complied with or not and if of course the matter is still being monitored by the Supreme Court any order passed after 02.12.2020 would be brought out in the affidavits to be filed by the DGPs of both the States and the U.T. Chandigarh. It is to be again specifically noticed that the contention of the DGP Haryana to the effect that there is no such provision in the Cr.P.C. would seemingly get completely negated by the aforesaid directions given by the Supreme Court of India with it to be highlighted by this courtthat as per Article on 13 01 109 CRM M 436721 6 142 of the Constitution of India the Supreme Court in the exercise of its jurisdiction may pass such decree or order as is necessary for doing complete justice in any cause or matter pending before it and any order or decree so passed would be enforceable throughout the territory of India. Further the law declared by the Supreme Court would be binding on all courts as per Article 141. Consequently and obviously non compliance of the directions issued by the Supreme Court in Paramvir Singh Sainis’ case would amount to contempt of Court and this court would naturally also be bound to ensure that the directions issued by the Supreme Court are acatully carried out at ground level by the States and Union Terrotory falling within the jurisdiction of this court. Hence the aforesaid direction to the DGPs. Of course to repeat if the Supreme Court has passed any further order after 02.12.2020 as would grant further time to the States to comply with the directions given on that date or the order issued has been modified in any manner such orders would be brought out very specifically in the replies to be filed by the DGPs. Further it is directed that not just in the case of the present petitioner but in the case of every person who is in police custody or is being taken into police custody all provisions of the Cr.P.C. including Section 41 B 41 C 41 D and 54 55 and 55 A would be meticulously followed with compliance reports in that regard to be made a part of the report under Section 173 of the Cr.P.C. as regards even medical on 13 01 109 CRM M 436721 7 examination necessarily to be conducted in terms of Section 55 A thereof. Naturally any non compliance of the said statutory provision would amount to violation of the direction hereby given and any accused would have his her remedy available to him her in respect of violation of any such provisions and the directions given. It is to be again reiterated in this order as was said in the last order that no court is oblivious to the fact that the police faces a very uphill task in dealing with criminals especially hardened criminals and the work done by the police force and any investigating agency is to be highly appreciated in trying to apprehending criminals and actually apprehending them and bringing them to justice yet as per the constitutional scheme and the statutory provisions framed thereunder in India not even the worst criminal can be denied a fair procedure in terms of the statutory provisions laid down in the Code of Criminal Procedure 1973 and any such law in force. Hence violation of such procedure especially leading to violation of human rights even in the case of the worst criminal cannot be ignored by any court. Further it is not an excuse for us in India to take a plea that many other countries are far more advanced than us and therefore there can be no comparison with the methods adopted there in interrogating accused persons here. We are the 5th or 6th largest economy in the world and therefore any such plea taken would only seem to be taken as an excuse to not actually adopt contemporary methods of investigation including on 13 01 109 CRM M 436721 8 interrogation rather than taking shortcuts by using third degrees methods etc. Adjourned to 09.02.2022. To be shown in the urgent motion list. 07.01.2022 vcgarg JUDGE

To issue order or direction thereby directing the opposite parties to continue the police protection to the petitioner for the security of his life and property

To issue order or direction thereby directing the opposite parties to continue the police protection to the petitioner for the security of his life and property- High Court of Allahabad. Petitioner seeks a direction to the respondent to continue the police protection to the petitioner for the security for his life and property, and the same issue was held in the judgement passed by a division bench judges Hon’ble Mr. Justice Rajesh Bindal, Chief Justice Hon’ble, Mr. Justice Devendra Kumar Upadhyaya, Judge Hon’ble Mrs. Justice Saroj Yadav, Judge, in the matter Krishna Dutt Sharma  v/s State of U.P. and others[ MISC. SINGLE No. – 4531 of 2019 ] dealt with an issue mentioned above. In this case the learned counsel for the petitioner submit that’s the When the petition was taken up for hearing on February 15, 2019, the learned counsel for the petitioner had referred to judgment of this Court in Zulfiqar Ahmad Bhutto Vs. State of U.P and others (Writ-C No. 52652 of 2016) decided on 04.11.2016 in support of his argument that his appeal filed against order passed by the District Level Committee to the Divisional Level Committee be directed to be decided. The learned Single Judge, while referring to number of judgments of Hon’ble Supreme Court, was of the opinion that the judgment in Zulfiqar Ahmad Bhutto Vs. State of U.P and others’ case (supra) requires re-consideration. It is claimed that petitioner is a social worker assisting weaker sections of the society and is also carrying on business in the name and style of M/s M.K. Enterprises. He also contested the assembly election in the year 2012 as an independent candidate from Lucknow West constituency. On account of continuous threats received by him, he moved application for grant of security. As the request was not being considered, the petitioner filed Writ Petition (M/B) No. 16850 of 2016 wherein direction was issued for consideration of his claim. However, the same having been rejected by District Level Security Committee, he preferred appeal before the Divisional Level Security Committee. However, the same is not being considered. In support of the argument that a direction deserves to be issued to the Divisional Level Security Committee for deciding the appeal pending before it, reliance was placed upon the order passed by this Court in Zulfiqar Ahmad Bhutto’s case . The primary argument raised by the learned counsel for the petitioner is that once there is a hierarchy of committees provided in the policy in terms of which threat perception to a person is to be assessed, the order passed by the authority at District Level shall certainly be appealable before the higher authorities at Divisional Level and thereafter at State Level. Hence, the order earlier passed by this Court in Zulfiqar Ahmad Bhutto’s case (supra) does not require reconsideration and a direction be issued to the Divisional Level Security Committee to hear and decide the appeal filed by him. On the other hand, learned counsel appearing for the State submitted that the order passed by this Court in Zulfiqar Ahmad Bhutto’s case (supra) does not lay down good law. The policy has been framed by Government for examining threat perception to the person seeking security at the state expense The court perused the facts and arguments presented, it was the opinion that – “So far as the merits of the controversy is concerned, the prayer made by the petitioner is that he may be provided security cover on account of alleged threat perception in his opinion”. Once the competent authority in the Government has already examined the issue and found that there is no threat to the petitioner and no security is required to be given at State expenses, we do not find any reason to take a different view for the reason that this Court does not have any expertise to assess the threat perception to any person. Hence, even the relief prayed for on merits is also misconceived.”

Chief Justice s Court Daily Cause List Serial No. 3 IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD MISC. SINGLE No. 45319 Reserved on November 08 2021 Delivered on November 26 2021 Krishna Dutt Sharma ...Petitioner Through: Mr. Anurag Srivastava Advocate State of U.P. and others ...Respondents Through: Mr. Manjeev Shukla Additional Chief Standing Counsel Coram: Hon ble Mr. Justice Rajesh Bindal Chief Justice Hon ble Mr. Justice Devendra Kumar Upadhyaya Judge Hon ble Mrs. Justice Saroj Yadav Judge RAJESH BINDAL C.J the following reliefs The petitioner has filed the present writ petition seeking “i) To issue order or direction thereby directing the opposite parties no. 3 to 5 to continue the police protection to the petitioner for the security of his life and property as has been provided earlier to the petitioner by the Principal Secretary Home U.P. Government 2 9 Misc. Single No. 45319 Lucknow till the disposal of the appeal filed by the petitioner before the opposite party no. 2 ii) To issue order or direction thereby directing the opposite party no. 2 to dispose of the petitioner’s appeal which is contained in Annexure 21 to the petition.” When the petition was taken up for hearing on February 15 2019 the learned counsel for the petitioner had referred to judgment of this Court in Zulfiqar Ahmad Bhuttoo Vs. State of U.P and othersdecided on 04.11.2016 in support of his argument that his appeal filed against order passed by the District Level Committee to the Divisional Level Committee be directed to be decided. The learned Single Judge while referring to number of judgments of Hon’ble Supreme Court was of the opinion that the judgment in Zulfiqar Ahmad Bhuttoo Vs. State of U.P and others’ case requires re consideration. The following questions were framed “(i) Whether in terms of the Government order dated 09.05.2014 a person aggrieved by the decision of the District Level Committee has an efficacious and alternative remedy to approach the Division Level Committee as constituted in terms of the Government order dated 09.05.2014 ii) Whether judgment of the Division Bench in Zulfiqar Ahmad Bhuttoodecided on 04.11.2016 can be recorded as laying down the correct principle of law as regards the Government order dated 09.05.2014 ” That is how the matter is listed before us. The learned counsel for the petitioner submitted that when the prayer for grant of security on account of threat to his life 3 9 Misc. Single No. 45319 was rejected by the District Level Security Committee on December 14 2018 against the aforesaid rejection of his prayer he filed appeal before Divisional Level Security Committee. However the same is not being decided It is claimed that petitioner is a social worker assisting weaker sections of the society and is also carrying on business in the name and style of M s M.K. Enterprises. He also contested the assembly election in the year 2012 as an independent candidate from Lucknow West constituency. On account of continuous threats received by him he moved application for grant of security. As the request was not being considered the petitioner filed Writ Petition M B) No. 16850 of 2016 wherein direction was issued for consideration of his claim. However the same having been rejected by District Level Security Committee he preferred appeal before the Divisional Level Security Committee. However the same is not being considered. In support of the argument that a direction deserves to be issued to the Divisional Level Security Committee for deciding the appeal pending before it reliance was placed upon the order passed by this Court in Zulfiqar Ahmad Bhuttoo s casedoes not require reconsideration and a direction be issued to the Divisional Level Security Committee to hear and decide the appeal filed by him. 4 9 Misc. Single No. 45319 On the other hand learned counsel appearing for the State submitted that the order passed by this Court in Zulfiqar Ahmad Bhuttoo s casedoes not lay down good law. The policy has been framed by Government for examining threat perception to the person seeking security at the state expense. It provides authorities at different levels for consideration of request for providing the security for different periods namely if the security cover is to be provided for one month the request is to be considered at District Level. Considering the need security cover can be extended twice for a period of one month each. In case in the opinion of District Level Security Committee the need of security still continues even after expiry of the aforesaid period of three months the matter shall be referred to the Divisional Level Security Committee which can extend the period of security cover for a further period of three months. In case the security cover has to be provided beyond the aforesaid period of six months the issue has to be considered by State Level Committee. Entire policy no where provides for an appeal from an order passed by District Level Security Committee to the Divisional Level Committee or to State Level Security Committee Right to appeal is not inherent. It is a creation of the statute. Unless it is provided in the statute no appeal would lie Heard learned counsel for the parties and perused the The matter has been referred to Larger Bench for considering the following questions “(i) Whether in terms of the Government order dated 09.05.2014 a person aggrieved by the decision of the District Level Committee has an efficacious and alternative remedy to approach the Division Level paper book. 5 9 Misc. Single No. 45319 Committee as constituted in terms of the Government order dated 09.05.2014 ii) Whether judgment of the Division Bench in Zulfiqar Ahmad Bhuttoodecided on 04.11.2016 can be recorded as laying down the correct principle of law as regards the Government order dated 09.05.2014 ” Whether the order passed by this Court in Zulfiqar Ahmad Bhuttoo s caserequires reconsideration is one of the prime issue. A perusal of the aforesaid order shows that the petitioner in that case approached this Court seeking quashing of an order letter dated May 12 2016 passed by District Level Security Committee rejecting his representation for providing security cover. One of the argument raised by learned counsel for the State was that the petitioner therein has two other forums for redressal of his grievance i.e. Divisional Level Committee and State Level Committee. In turn while recording the aforesaid argument this Court directed that the petitioner having efficacious and alternative remedy to approach Divisional Level Committee should avail the said remedy. The relevant part of the order is extracted below “The State Government has issued a Government order dated 9th May 2014 for providing security which provides that actual threat perception should exist and that on a mere apprehension security could not be provided. Further the background antecedent criminal history and misuse of security are also relevant considerations to be examined objectively while considering the application for grant of security cover and 3 tier system i.e. District level Regional level and State level is provided for redressal of such dispute. 6 9 Misc. Single No. 45319 In view of above we find that the petitioner has got efficacious and alternative remedy to approach Divisional Level Committee but instead of availing the said remedy the petitioner has again approached this Court by way of present writ petition. We accordingly dismiss the writ petition on the ground of alternative remedy to approach the Divisional Level Committee. ” The question which arises and has been referred to be considered by Larger Bench is whether the petitioner has a right of appeal in terms of the policy framed for providing security cover to any person on account of threat perception. The relevant clauses of the policy dated May 9 2014 are reproduced hereinbelow: वि(cid:2)षयः वि(cid:2)शि(cid:8)ष्ट महानुभा(cid:2)ों की सुरक्षा हेतु गनर हुआ है विक रिरट यातिचका संख्या 6509 2013 डा० नूतन ठाकु र बनाम उ०प्र० राज्यअन्य में मा० न्यायालय द्वारा पारिरत अन्तरिरम आर्दे(cid:8) विर्दनांक 02.12.2013 में मा० उच्च न्यायालय द्वारा व्यविक्तयों को सुरक्षा प्रर्दान विकये जाने के सम्बन्ध में कतितपय सं(cid:2)ीक्षण करते हुए सुरक्षा सम्बन्धी नीतित प्रतितपाविर्दत करने के आर्दे(cid:8) पारिरत विकये हैं। मा० उच्च न्यायालय द्वारा पारिरत आर्दे(cid:8)ों के परिरप्रेक्ष्य में सम्यक वि(cid:2)चारोपरान्त प्रर्दे(cid:8) के महानुभा(cid:2)ों को सुरक्षा प्रर्दान विकये जाने हेतुअपनी स्पष्ट संस्तुतित सविहत मण्डलीय सुरक्षा सविमतित के समक्ष प्रस्तुत विकया जायेगा। मण्डल स्तरीय सुरक्षा सविमतित का गठन विनम्नवि(cid:2)त होगा “मण्डल स्तरीय सुरक्षा सविमतित” पुलिलस उपमहाविनरीक्षक परिरक्षेत्र पुलिलस अधीक्षक क्षेत्रीय मण्डलातिधकारी वि(cid:2)(cid:8)ेषमें विनम्नलिललिHत विबन्र्दुओं का उल्लेH अ(cid:2)श्य विकया जायेगाः ● सुरक्षा कर्मिमयों की संख्या 8 9 Misc. Single No. 45319 ● सुरक्षा प्रर्दत्त कराये जाने की अ(cid:2)तिध ● सुरक्षा का व्ययभार जनपर्दीय सुरक्षा सविमतित द्वारा जिजस जी(cid:2)नभय के आधार पर प्रथम तीन माह हेतु सुरक्षा प्रर्दान की गयी है उस जी(cid:2)नभय को कम करने अपास्त करने के लिलए स्थानीय प्र(cid:8)ासन द्वारा प्रयास विकया जायेगा। जनपर्द ए(cid:2)ं मण्डल स्तर पर कु ल छः माह की सुरक्षा अ(cid:2)तिध समाप्त होने के 15 विर्दन पू(cid:2) मण्डलीय सुरक्षा सविमतित द्वारा सम्बन्धिन्धत महानुभा(cid:2) के जी(cid:2)नभय का पुनमू ल्यांकन विकया जायेगा ए(cid:2)ं जी(cid:2)नभय वि(cid:2)द्यमान होने की र्द(cid:8)ा में अपनी स्पष्ट संस्तुतित सविहत सुवि(cid:2)चारिरत प्रस्ता(cid:2) जी(cid:2)नभय आख्यागृह पुलिलस महाविनर्दे(cid:8)क उ०प्र० अपर पुलिलस महाविनर्दे(cid:8)कगृह की अध्यक्षता में गविठत उच्च स्तरीय सविमतित द्वारा मण्डल स्तरीय सुरक्षा सविमतित की आख्याओं का परीक्षण कर सुरक्षा विर्दये जाने के सम्बन्ध में विनण य लिलया जायेगा। उच्च स्तरीय सविमतित द्वारा मण्डलीय सुरक्षा सविमतित के प्रस्ता(cid:2) जी(cid:2)नभय आख्या पर वि(cid:2)चार करते हुए अतिधकतम एक बार में 6 माह की अ(cid:2)तिध तक सुरक्षा विर्दये जाने पर वि(cid:2)चार विकया जायेगा।2 SCC 393 the Court in para 15 held: “15. It is thus clear that the appeal filed by defendants 2 and 3 in the High Court was directed originally not against any part of the preliminary decree but against mere finding recorded by the trial court that the partition was not genuine. The main controversy before us centers round the question whether that appeal was maintainable on this question the position seems to us well established. There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may at one s peril bring a suit of one s choice. ... A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.” in para 28 observed as “28. In Ganga Bai v. Vijay Kumar 3 SCR 883:Chandrachud J.held that "there is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of a civil nature but the right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law.” In BGS SGS Soma JV Vs. NHPC Limited 4 SCC 234 in para 15 it was observed as under: “15. … an appeal is a creature of statute and must either be found within the four corners of the statute or not be there be at all.” In Manish Kumar Vs. Union of India and others 2021) 5 SCC 1 referring to its earlier decision in the Court said “386. In Mardia Chemicals Ltd. and others Vs. Union of India and others4 SCC 311 the validity of certain provisions of the SARFAESI Act 2002 was questioned. ... this court also noted the distinction between a civil suit and an appeal ... it is apposite that we notice the following: We may refer to a decision of this Court in Ganga Bai v. Vijay Kumar2 SCC 393 where in respect of original and appellate proceedings a distinction has been drawn as “15. ...There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of civil nature and unless the suit is barred by statute one may 12 9 Misc. Single No. 45319 at one s peril bring a suit of one s choice. It is no answer to a suit howsoever frivolous to claim that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.” In view of the aforesaid authoritative enunciation of law by Hon’ble the Supreme Court that the appeal is not an inherent right rather it is a creature of statute in our opinion there being no provision in the policy for appeal against the order passed by District Level Security Committee to any higher level committee no appeal will be maintainable and no direction can be issued for decision of any such appeal filed by the petitioner The questions referred for decision to Larger Bench thus Questionis answered in negative holding that there is no right of appeal to any person to approach the Divisional Level Committee from any order passed by the District Level Security Committee rejecting his request for grant of security cover. Questionis also answered in negative holding that the order passed by this Court in Zulfiqar Ahmad Bhuttoo s does not lay down correct law and cannot be referred to as a precedent for seeking a 13 9 Misc. Single No. 45319 direction for decision of appeal with reference to the Government Order dated May 9 2014 So far as the merits of the controversy is concerned the prayer made by the petitioner is that he may be provided security cover on account of alleged threat perception in his opinion. Once the competent authority in the Government has already examined the issue and found that there is no threat to the petitioner and no security is required to be given at State expenses we do not find any reason to take a different view for the reason that this Court does not have any expertise to assess the threat perception to any person. Hence even the relief prayed for on merits is also misconceived. The petition is accordingly disposed of November 26 2021 P. Sri (Rajesh Bindal Devendra Kumar Upadhyaya Mrs. Justice Saroj Yadav Whether the order is speaking : Whether the order is reportable : √Yes No

Unexplained delay on the part of the Petitioner in filing the writ petition.: High Court of Delhi

This so-called Public Interest Litigation after looking into facts seems to be a revenge taking type of writ petition upheld by High Court of Delhi by the learned bench led by HON’BLE THE CHIEF JUSTICE and HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA in the case of ROHIT SHUKLA vs. DGMS (ARMY) W.P.(C) 3516/2022 on 28th February, 2022. Brief facts of the case as stated by petitioner appearing in person is that Shri Karamvir Singh was appointed as a Junior Commissioned Officer and at the time of his appointment, the details supplied by him were factually incorrect and therefore by way of this Public Interest Litigation, this petitioner is in search of cancellation of the appointment of Karamvir Singh from the employment given by the respondent. Respondent states that said employee is not joined as a party respondent in this writ petition. As his appointment is to be cancelled, no writ petition can be allowed in absence of a candidate or an employee, whose employment is sought to be terminated. Such employee is an essential party to the litigation and he ought to be heard by this Court. And the employment was given to Karamvir Singh by the respondent in the year 2015. The writ petition has been preferred in the year 2022, hence there is gross unexplained delay on the part of the petitioner in filing this writ petition. The Court opined that we do not see any reason to entertain this writ petition. The same is accordingly dismissed with costs of Rs.25,000/- to be paid by the petitioner to the Delhi State Legal Services Authority within four weeks from today. The aforesaid amount shall be utilized for the programme ‘Access to Justice’.

123. IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 28th February 2022 W.P.(C) 3516 2022 ROHIT SHUKLA Petitioner in person Petitioner DGMSThrough: Mr. Bhagwan Swarup Shukla CGSC UOI) with Mr. Sarvan Kumar Adv. for UOI Respondent HON BLE THE CHIEF JUSTICE HON BLE MS. JUSTICE NEENA BANSAL KRISHNA D.N. PATEL CHIEF JUSTICEC.M.No.10352 2022Allowed subject to all just exceptions. The application is disposed of. W.P.(C) 3516 2022 following reliefs: This so called Public Interest Litigation has been preferred seeking “i. Issue a writ in the nature of mandamus or any other appropriate writ s order s direction s directing Respondent to decide the Representation dated 17.11.2021 of the Petitioner forthwith within a stipulated time period with a written intimation to the present Petitioner. And Or W.P.(C) 3516 2022 ii. Pass any other or further order s or direction s as this Hon ble Court deems fit and proper be also awarded to the Petitioner and against the Respondents in the interest of 2. We have heard petitioner appearing in person. Looking to the facts and circumstances of the case it appears that this is not a Public Interest Litigation at all. This is a revenge taking type of writ petition. Petitioner appearing in person submits that Shri Karamvir Singh was appointed as a Junior Commissioned Officer and at the time of his appointment the details supplied by him were factually incorrect and therefore by way of this Public Interest Litigation this petitioner is in search of cancellation of the appointment of Karamvir Singh from the employment given by the 5. We see no reason to entertain this writ petition much less as a public facts reasons and pronouncements: The appointment is given by the respondent to one Shri Karamvir Singh. The said employee is not joined as a party respondent in this writ petition. As his appointment is to be cancelled no writ petition can be allowed in absence of a candidate or an employee whose employment is sought to be terminated. Such employee is an essential party to the litigation and he ought to be heard by this Court. For the reasons best this petitioner Shri Karamvir Singh whose employment is under challenge is not joined as a party respondent. Hence we see no reason to entertain this writ W.P.(C) 3516 2022 ii) Moreover the employment was given to Karamvir Singh by the respondent in the year 2015. The writ petition has been preferred in the year 2022 hence there is gross unexplained delay on the part of the petitioner in filing this writ petition. iii) Public Interest Litigation in a purely service matter of the present nature for the termination of the services is not tenable at law. The law on this aspect is no longer res integra and we may refer to the observations of the Hon’ble Supreme Court in the following pronouncements: a) Vishal Ashok Thorat and Others vs. Rajesh Shrirambapu Fate and Others 2019 SCC OnLine SC 886 Para’s 18 & 38 b) Central Electricity Supply Utility of Odisha v. Dhobei Sahoo 1 SCC 161 Para 14.1. c) Hari Bansh Lal vs. Sahodar Prasad Mahto and Ors. 2010) 9 SCC 655 2010 Para 20. d) Gurpal Singh vs. State of Punjab 5 SCC 136 Paras 7 and 12. As a cumulative effect of the aforesaid facts reasons and judicial pronouncements there is no substance in this writ petition. In view of the aforesaid we do not see any reason to entertain this writ petition. The same is accordingly dismissed with costs of Rs.25 000 to be paid by the petitioner to the Delhi State Legal Services Authority within four weeks from today. The aforesaid amount shall be utilized for the programme ‘Access to Justice’. W.P.(C) 3516 2022 A copy of this order be sent forthwith to the Member Secretary Delhi State Legal Services Authority Patiala House Courts New Delhi 110001. CHIEF JUSTICE NEENA BANSAL KRISHNA J FEBRUARY 28 2022 W.P.(C) 3516 2022

Company cannot be reinstated solely to litigate: NCLT New Delhi bench

A company which has not been operating for a considerably long period of time will be struck of the rolls from the register of companies by the registrar of companies and such a company ceases to exist. This company cannot be reinstated to its powers priorly awarded solely for the purposes to litigate. This was held by the coram comprising of Hon’ble Member Shri Abni Ranjan Kumar Sinha and Hon’ble member Shri. L.N. Gupta in the case of M/s. Swastik Finbuild India Private Limited and Ors. Vs. The Registrar of Companies on the 22nd of July 2021 before the National Company Law Tribunal, New Delhi Bench, (court – II). The brief facts of the case are, the appellant company was established in the year 1996 and during that year, the Company bought a plot vide Sale Deed dated 03.05.1996 registered with the Revenue District of Gurugram, in order to implement a housing project. It is added that a legal dispute arose on the said plot, as a result of which the Appellant Company could not execute the project for which the plot was purchased. The RoC Delhi and Haryana had struck off the Appellant Company’s name from the Register due to defaults in statutory compliances, namely, failure to file Financial Statements &amp; Annual Returns since in its incorporation. Consequently, the RoC initiated proceedings under Section 248 of the Companies Act 2013 and struck off the name of the Appellant Company from its Register vide STK-7 Notice No. ROC/DELHI/248(5)/STK-7/5071 dated 01.09.2017. The name of the Appellant Company appeared at serial no. 22002 of the list of companies, whose names were stuck off due to default in Statutory compliances. The present Appeal has been preferred by M/s. Swastik Finbuild India Private Limited (hereinafter referred to as the ‘Appellant Company’) under Section 252(1) of the Companies Act, 2013 for seeking restoration of the Appellant Company in the register maintained by the Registrar of Companies, NCT of Delhi and Haryana (RoC). The appellant submitted that in order to defend/allege its claim before the Courts in two other litigations, the Appellant Company has sought restoration of its name in the Register of ROC. Further, the Appellant Company has averred that it is in position to file its Balance Sheets for the Financial Years from 1996 to 2016-17. The ROC submitted that the Appellant Company has not been able to substantiate that it was in operation. Even since launching of MCA-21 portal in 1996, no records of the Annual Return and balance sheet of the Company exist on the portal. The have added that Company has not submitted any document except the balance Sheet for one Financial Year i.e., 2016-17 only in which too, the revenue from its operations is “Zero’. The learned bench heard both the parties and observed that the only ground on which the Appellant Company is seeking its revival is the Litigations that are pending by or against it. It was observed that, the Company has not done any business since its inception i.e., from 1996 to 2017, which is a long period of 21 years. This clearly depicts that the Company never had any intention to do any business. The bench relied on the judgement in Alliance Commodities Private Limited Vs. Office of Registrar of Companies, West Bengal, Company Appeal (AT) No. 20 of 2019 “Section 252 (3) of the Companies Act, 2013 empowers the Tribunal to order restoration of a Company whose name has been struck off from the Register of Companies, if such company, any member or creditor or workman thereof feeling aggrieved by such striking off applies before the Tribunal seeking restoration of the struck off company to the Register of Companies before the expiry of twenty years from the publication in Official Gazette of notice under Section 248(5). The exercise of such power is properly regulated and depends upon satisfaction of the Tribunal that the Company at the time of its name being struck off was carrying on business -10- Company Appeal (AT) No. 20 of 2019 or in operation or otherwise it is ‘just’ that the name of company be restored. We do not find ourselves persuaded to agree with the proposition canvassed by learned counsel for the Appellant that inspite of Appellant’s inability to demonstrate that the Company was at the relevant time carrying on business or in operation, the Tribunal had vast powers to order restoration of Company on the ground “or otherwise”. This term “or otherwise” has been judiciously used by the legislature to arm the Tribunal to order restoration of a struck off company within the permissible time limit to take care of situations where it would be just and fair to restore company in the interest of company and other stakeholders. Such instances can be innumerable. However, this term “or otherwise” cannot be interpreted in a manner that makes room for arbitrary exercise of power by the Tribunal when there is specific finding that the Company has not been in operation or has not been carrying on business in consonance with the objects of the Company”.

THE NATIONAL COMPANY LAW TRIBUNAL NEW DELHI BENCH Appeal No. 530 252(ND) 2020 IN THE MATTER OF: 1. M s. Swastik Finbuild India Private Limited 59 4336 Padam Singh Road Karol Bagh New Delhi 110005 …Appellant No. 1 2. Sh. Sita Ram Singhal A 1 New Sheetla Mata Road Sanjay Gram Gurugram Haryana 122001 3. Smt. Asha Singhal A 1 New Sheetla Mata Road Sanjay Gram Gurugram Haryana 122001 The Registrar of Companies 4th Floor IFCI Tower 61 Nehru Place New Delhi 110019 …Appellant No. 2 …Appellant No. 3 …Respondent Order Delivered on: 22.07.2021 SHRI. ABNI RANJAN KUMAR SINHA HON’BLE MEMBERSHRI. L.N. GUPTA HON’BLE MEMBERPRESENT: For Appellant Mr. Deepak Singhal Advocate For Respondent Mr. Vipul Agarwal For IT Department Appeal No. 530 252(ND) 2020 M s. Swastik Finbuild India Pvt. Ltd. Vs. ROC ORDER PER SHRI L. N. GUPTA MEMBERThe present Appeal has been preferred by M s. Swastik Finbuild India Private Limited and by its Ex Directors Sh. Sita Ram Singhal and Smt. Asha Singhal under Section 252(1) of the Companies Act 2013 for seeking restoration of the Appellant Company in the register maintained by the Registrar of Companies NCT of Delhi and Haryana2020 M s. Swastik Finbuild India Pvt. Ltd. Vs. ROC It is submitted by the Appellant that the RoC Delhi and Haryana had struck off the Appellant Company’s name from the Register due to defaults in statutory compliances namely failure to file Financial Statements & Annual Returns since in its incorporation. Consequently the RoC initiated proceedings under Section 248 of the Companies Act 2013 and struck off the name of the Appellant Company from its Register vide STK 7 Notice No. ROC DELHI 248(5) STK 7 5071 dated 01.09.2017. The name of the Appellant Company appeared at serial no. 22002 of the list of companies whose names were stuck off due to default in Statutory compliances. It is submitted by the Appellant that it was established in the year 1996 and during that year the Company bought a plot vide Sale Deed dated 03.05.1996 registered with the Revenue District of Gurugram in order to implement a housing project. It is added that a legal dispute arose on the said plot as a result of which the Appellant Company could not execute the project for which the plot was It is further submitted by the Appellant that on 07.05.1996 it filed a Civil Suit bearing No. 996 titled as Swastik Finbuild India Pvt. Ltd. Vs Bhawani Parshad & Ors. before the court of Civil Judge Junior Division Gurugram District Court seeking relief of “Suit for Mandatory Injunction and Permanent Injunction.” It is added that the suit was decided in the favour of the Appellant Company on Appeal No. 530 252(ND) 2020 M s. Swastik Finbuild India Pvt. Ltd. Vs. ROC 04.01.2014. However an appeal was filed before the Additional District Judge Gurugram against the said order and the same was also decided in the favour of the Appellant Company on 01.09.2015. It is added by the Appellant that a Second Appeal against the Judgement dated 04.01.2014 and 01.09.2015 has been filed before Hon’ble High Court of Punjab and Haryana vide RSA no. 841 2016 titled as “Bhawani Prasad Dead Through LR’s & Ors. Versus M s Swastik Finbuild India Pvt. Ltd. & Ors. which is still pending and the next date of hearing in the matter is fixed for 29.09.2021. It is further added that the Appellant Company has also filed a Civil Execution Petition bearing no. 6019 titled as Swastik Finbuild India Pvt. Ltd. Vs Bhawani Parshad & Ors. before the court of Civil Judge Junior Division Gurugram District Court for Execution of judgement and Decree dated 04.01.2014 which is also pending before the Civil Court. That in order to defend allege its claim before the Courts the Appellant Company has sought restoration of its name in the Register of ROC. Further the Appellant Company has averred that it is in position to file its Balance Sheets for the Financial Years from 1996 to 2016 17. That the RoC has filed its report on 15.03.2021 and submitted that the Appellant Company has not been able to substantiate that it was in operation. Even since launching of MCA 21 portal in 1996 no records of the Annual Return and balance sheet of the Company exist Appeal No. 530 252(ND) 2020 M s. Swastik Finbuild India Pvt. Ltd. Vs. ROC on the portal. The have added that Company has not submitted any document except the balance Sheet for one Financial Year i.e. 2016 17 only in which too the revenue from its operations is “Zero’. Scanned copy of the relevant extracts of the report of RoC is reproduced below: 10. That the Income Tax Department has also filed its Report and has submitted that there are “NO ITR’s on e filing ITD portal”. Though the IT Department has stated no objection to revival of the Company it has submitted “That while passing any order this Hon’ble Court may consider the Judgement of Hon’ble NCLAT in the case of M s Alliance Commodities Pvt. Ltd. Vs. Office of Registrar of Companies Appeal No. 530 252(ND) 2020 M s. Swastik Finbuild India Pvt. Ltd. Vs. ROC WB CA No. 20 of 2019 which was subsequently upheld by the Hon’ble Supreme Court in the matter of M s Alliance Commodities Pvt. Ltd. Vs. Office of Registrar of Companies WBvide order dated 23.09.2019. 11. That vide order dated 07.07.2021 this Bench had directed the Appellant to file a short written synopsis along with the present status of Execution proceedings and Second Appeal. The same is on record. 12. That the Appellant Company in its written synopsis dated 15.07.2021 has reiterated the same facts and indicated the current status of the cases as per which the Second Appeal is listed before Hon’ble High Court of Punjab and Haryana on 29.09.2021 and Execution Proceedings are listed on 19.07.2021 in the Civil Court. 13. After hearing submissions and perusing documents placed on record by both the parties this Bench is of the view that the only ground on which the Appellant Company is seeking its revival is the Litigations that are pending by or against it. 14. From perusal of the documents placed on record it is observed that the Company was incorporated in the year 1996 and since then it has never filed its Financial Statements and Annual Returns. The Report of RoC also confirms that the only balance sheet filed by the company for the FY 2016 17 also depicts ‘nil’ revenue from its operations. Further the Income Tax Department has stated that Appeal No. 530 252(ND) 2020 M s. Swastik Finbuild India Pvt. Ltd. Vs. ROC though it has no objection towards the revival of the company it has no record of its Income or Income Tax Returns in its data base. 15. Although the Appellant Company has averred in its Appeal that it has a plot of land but no sale deed of the said plot to support its claim has been placed on record by the Appellant which could depict the title of the land in its favour. 16. We notice that the Company has not done any business since its inception i.e. from 1996 to 2017 which is a long period of 21 years. This clearly depicts that the Company never had any intention to do any business. 17. From perusal of the record of Litigation also it is observed that there are other parties too on the side of Appellant Company through which the Litigation may continue and be pursued. That the pending litigation against the Appellant Company cannot be the sole ground to seek its revival since the Litigation can still be carried on by the other contesting parties. That the Appellant Company has not brought anything on record which could substantiate that the Appellant Company was in operation or was doing any significant business at the time when its name was struck off from the register of RoC. Further we are of the view that a company cannot be restored solely to litigate. Appeal No. 530 252(ND) 2020 M s. Swastik Finbuild India Pvt. Ltd. Vs. ROC 19. In the current circumstances it is worthwhile to refer to the paragraph 9 of the Judgement of Hon’ble NCLAT in the matter of Alliance Commodities Private Limited Vs. Office of Registrar of Companies West Bengal Company AppealNo. 219: “9. Section 252 of the Companies Act 2013 empowers the Tribunal to order restoration of a Company whose name has been struck off from the Register of Companies if such company any member or creditor or workman thereof feeling aggrieved by such striking off applies before the Tribunal seeking restoration of the struck off company to the Register of Companies before the expiry of twenty years from the publication in Official Gazette of notice under Section 248(5). The exercise of such power is properly regulated and depends upon satisfaction of the Tribunal that the Company at the time of its name being struck off was carrying on business 10 Company AppealNo. 219 or in operation or otherwise it is ‘just’ that the name of company be restored. We do not find ourselves persuaded to agree with the proposition canvassed by learned counsel for the Appellant that inspite of Appellant’s inability to demonstrate that the Company was at the relevant time carrying on business or in operation the Tribunal had vast powers to order restoration of Company on the ground “or otherwise”. This term “or otherwise” has been judiciously used by the legislature to arm the Tribunal to order restoration of a struck off company within the permissible time limit to take care of situations where it would be just and fair to restore company in the interest of company and other stakeholders. Such However this term “or otherwise” cannot be interpreted in a manner that makes room for arbitrary exercise of power by the Tribunal when there is specific finding that the Company has not been in operation or has not been carrying on business in consonance with the objects of the Company. A Shell Company or a Company having assets but advancing loans to sister concerns or corporate persons for siphoning of the funds evading tax or indulging in unlawful business or not abiding by the statutory compliances cannot be allowed to invoke this expression “or otherwise” which would be a travesty of justice besides defeating the very object of the Company….” instances can be Appeal No. 530 252(ND) 2020 M s. Swastik Finbuild India Pvt. Ltd. Vs. ROC 20. In view of the above this Bench is not inclined to interfere with the striking off action taken by the RoC against the Appellant Company under Section 248(5) of the Companies Act 2013. 21. The Appeal is accordingly Dismissed. S d L. N. GUPTA) MEMBER(ABNI RANJAN KUMAR SINHA) MEMBER 2020 M s. Swastik Finbuild India Pvt. Ltd. Vs. ROC

Alleged of taking away the informant’s wife under Section 366 of Indian Penal Code, granted bail on furnishing the grounds for failure of launching FIR on the part of informant: High Court Of Patna

The petitioners were alleged of taking away the wife as well as her jewelry along with them. The petitioners tried forming the grounds that the allegations are false and contended that even in the matter of kidnapping there was no report launched in the police station by the informant. The Court after considering all the facts and circumstances allowed the bail application of the petitioners. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Vinod Paswan and Others v. The State of Bihar[Criminal Miscellaneous No. 36590 of 2020]. The facts of the case were that the petitioners have been apprehended arrest in connection with the Case, instituted under Sections 366 and 120B of the Indian Penal Code. It was alleged that the petitioners had taken away the jewelry of the informant’s wife and his wife as well. The narrative is bogus, according to learned counsel for the petitioners, because the informant’s wife was a mature lady with a son, and there was no way the petitioners could have taken her away. Furthermore, it was said that the petitioners would not go to the informant’s residence and spend the night there because there was no need for them to do so, and at best, they could have gone to see the informant’s wife. It was also argued that the case’s falsehood would be obvious from the fact that the date of occurrence was fictitious. The petitioners were completely unaware of the case’s status, according to learned counsel. The informant’s continued lack of interest in the case, according to learned counsel, suggests that the charges are false, at least as far as the petitioners are concerned. The court’s attention was directed to an Anticipatory Bail Petition in which the petitioners’ request for anticipatory bail was denied, demonstrating that the rejection was based solely on the fact that the victim and her son had not been found. There was no justification for them to carry her away by force, and they had no reason to conduct such a crime. They claimed that if the claims were true, it is also strange that the informant’s mother did not file a complaint with the police. The Additional Public Prosecutor submitted that the allegations shall be correct that are framed on the petitioners. The Hon’ble High Court Of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, 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…” The case was hence disposed of on the mentioned terms of the bail. Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The narrative is bogus, according to learned counsel for the petitioners, because the informant’s wife was a mature lady with a son, and there was no way the petitioners could have taken her away. Furthermore, it was said that the petitioners would not go to the informant’s residence and spend the night there because there was no need for them to do so, and at best, they could have gone to see the informant’s wife. It was also argued that the case’s falsehood would be obvious from the fact that the date of occurrence was fictitious. The petitioners were completely unaware of the case’s status, according to learned counsel. The informant’s continued lack of interest in the case, according to learned counsel, suggests that the charges are false, at least as far as the petitioners are concerned. The court’s attention was directed to an Anticipatory Bail Petition in which the petitioners’ request for anticipatory bail was denied, demonstrating that the rejection was based solely on the fact that the victim and her son had not been found. There was no justification for them to carry her away by force, and they had no reason to conduct such a crime. They claimed that if the claims were true, it is also strange that the informant’s mother did not file a complaint with the police. The Additional Public Prosecutor submitted that the allegations shall be correct that are framed on the petitioners. The Hon’ble High Court Of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, 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…” The case was hence disposed of on the mentioned terms of the bail. Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The petitioners were completely unaware of the case’s status, according to learned counsel. The informant’s continued lack of interest in the case, according to learned counsel, suggests that the charges are false, at least as far as the petitioners are concerned. The court’s attention was directed to an Anticipatory Bail Petition in which the petitioners’ request for anticipatory bail was denied, demonstrating that the rejection was based solely on the fact that the victim and her son had not been found. There was no justification for them to carry her away by force, and they had no reason to conduct such a crime. They claimed that if the claims were true, it is also strange that the informant’s mother did not file a complaint with the police. The Additional Public Prosecutor submitted that the allegations shall be correct that are framed on the petitioners. The Hon’ble High Court Of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, 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…” The case was hence disposed of on the mentioned terms of the bail. Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The Additional Public Prosecutor submitted that the allegations shall be correct that are framed on the petitioners. The Hon’ble High Court Of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, 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…” The case was hence disposed of on the mentioned terms of the bail. Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The Hon’ble High Court Of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, in 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…” The case was hence disposed of on the mentioned terms of the bail.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 365920 Arising Out of PS Case No. 318 Year 2014 Thana DESARI District Vaishali 1. Vinod Paswan aged about 30 years Male Son of Late Bindeshwar Paswan Resident of Dighi Kala PS Hajipur Sadar District Vaishali 2. Mahesh Bhagat aged about 40 years Male Son of Late Jhamlal Bhagat. 3. Amar Kumar aged about 25 years Male Son of Mahesh Bhagat Both resident of Mustafapur PS Bidupur District Vaishali The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s Mr. Mukesh Kumar Singh Advocate For the State Mr. Jharkhandi Upadhyay APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 29 06 2021 The matter has been heard via video conferencing 2. Heard Mr. Mukesh Kumar Singh learned counsel for the petitioners and Mr. Jharkhandi Upadhyay learned Additional Public Prosecutor for the 3. The petitioners apprehend arrest in connection with Desari PS Case No. 318 of 2014 dated 31.12.2014 instituted under Sections 366 and 120B of the Indian Penal Code Patna High Court CR. MISC. No.365920 dt.29 06 2021 4. The allegation against the petitioners who are close relatives of the wife of the informant is that they had taken away the wife of the informant and had also taken away gold chain worth Rs. 40 000 and Rs. 10 000 from a box of the mother of 5. Learned counsel for the petitioners submitted that the case is totally false as the wife of the informant was a mature lady and there was also a son and there cannot be any question of the petitioners having taken her away. Further it was contended that is also not believable that the petitioner no. 1 who is the brother in law of the informant i.e. the brother of the wife of the informant petitioner no. 2 who is the husband of the sister of the wife of the informant and petitioner no. 3 who is the son of petitioner no. 2 would go to the house of the informant and stay there for the night as there was no occasion for them to do so and at best they could have gone to visit the wife of the informant. It was further submitted that the falsity of the case would also be clear from the fact that the date of occurrence is said to be 05.06.2014 but no information or case was lodged before any authority and a complaint case was filed on 30.09.2014 i.e. after almost four months and finally the FIR has been lodged on 31.12.2014 Learned counsel submitted that the petitioners were totally Patna High Court CR. MISC. No.365920 dt.29 06 2021 unaware of the pendency of the case as till date no steps have been taken against them either by the police or the Court so as to make them aware that such a case is pending and only recently when they came to know of the case they have moved for anticipatory bail before the Court below which has been rejected Learned counsel submitted that the informant till date taking no interest in the case also shows that the allegations at least as far as the petitioners are concerned is not true. Learned counsel drew the attention of the Court to order dated 30.06.2020 in Anticipatory Bail Petition No. 1230 of 2020 of the Additional Sessions Judge III Vaishali at Hajipur by which the prayer for anticipatory bail of the petitioners has been rejected to show that the same is only on the ground that the victim and her son have not been recovered. It was submitted that the petitioners have no concern with the affairs of the wife of the informant and she being a major there is absolutely no occasion for them to forcibly take her away and that they had no reason to commit such act. Learned counsel submitted that if the allegations were correct and Rs 40 000 worth gold chain and Rs. 10 000 cash were taken away by the petitioners then also it is surprising as to why no complaint was made to the police by the mother of the informant Patna High Court CR. MISC. No.365920 dt.29 06 2021 6. Learned APP submitted that the petitioners are accused of taking away the wife of the informant and also that they were responsible for taking away of gold chain worth Rs 40 000 and Rs. 10 000 cash 7. 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 petitioners be released on bail upon furnishing bail bonds of Rs. 25 000 each with two sureties of the like amount each to the satisfaction of the learned Sub Judge 16 cum Additional Chief Judicial Magistrate 15 Vaishali at Hajipur in Desari PS Case No. 3114 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 petitioners andthat the petitioners shall co operate with the police prosecution and the Court. Failure to co operate shall lead to cancellation of their bail 8. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioners to the notice of the Court concerned which shall take immediate Patna High Court CR. MISC. No.365920 dt.29 06 2021 action on the same after giving opportunity of hearing to the 9. The application stands disposed off in the (Ahsanuddin Amanullah J

Principles of natural justice have no place in the context of an order of compulsory retirement: Allahabad High Court

Right from the joining of service by the petitioner, it is evident that the petitioner has been awarded adverse entries or punishment. The committee is competent to broadly look into the entire service record of the petitioner to form an opinion as to whether the employee should be recommended for compulsory retirement as the object of the compulsory retirement is to weed out the deadwood and make a healthy working environment in the department for the public good. Such an opinion was held by the Hon’ble Allahabad High Court before Hon’ble Justice Saral Srivastava in the matter of Head Constable Ravindra Mishra vs State of U.P. &amp; Anr. [WRIT – A No. – 55436 of 2017]. The facts involved in the case were that the petitioner was appointed as Constable in P.A.C. on 15.08.1981 and was promoted as Head Constable in the year 1992. A committee recommended the compulsory retirement of the petitioner by order dated 31.07.2017. It was the contention of the petitioner that the committee has not assessed his service record properly and had made the decision wrongly. The Hon’ble High Court referred to the judgment of Rajesh Kumar Gupta Vs. State of Jammu &amp; Kashmir and Others (2013) 3 SCC 514 wherein the Apex court held that “An order of compulsory retirement is not a punishment. It implies no stigma or any suggestion of misbehavior. The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the Government. Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary — in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order” Additionally, the Hon’ble High Court observed that the record reflects that the petitioner has been awarded several punishments during the entire tenure of service. The service record of the last 10 years of the petitioner is not clean. Finally, the Hon’ble High Court dismissed the appeal with a view that the instant appeal has no merit. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The facts involved in the case were that the petitioner was appointed as Constable in P.A.C. on 15.08.1981 and was promoted as Head Constable in the year 1992. A committee recommended the compulsory retirement of the petitioner by order dated 31.07.2017. It was the contention of the petitioner that the committee has not assessed his service record properly and had made the decision wrongly. The Hon’ble High Court referred to the judgment of Rajesh Kumar Gupta Vs. State of Jammu &amp; Kashmir and Others (2013) 3 SCC 514 wherein the Apex court held that “An order of compulsory retirement is not a punishment. It implies no stigma or any suggestion of misbehavior. The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the Government. Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary — in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order” Additionally, the Hon’ble High Court observed that the record reflects that the petitioner has been awarded several punishments during the entire tenure of service. The service record of the last 10 years of the petitioner is not clean. Finally, the Hon’ble High Court dismissed the appeal with a view that the instant appeal has no merit. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble High Court referred to the judgment of Rajesh Kumar Gupta Vs. State of Jammu &amp; Kashmir and Others (2013) 3 SCC 514 wherein the Apex court held that “An order of compulsory retirement is not a punishment. It implies no stigma or any suggestion of misbehavior. The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the Government. Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary — in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order” Additionally, the Hon’ble High Court observed that the record reflects that the petitioner has been awarded several punishments during the entire tenure of service. The service record of the last 10 years of the petitioner is not clean. Finally, the Hon’ble High Court dismissed the appeal with a view that the instant appeal has no merit. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble High Court observed that the record reflects that the petitioner has been awarded several punishments during the entire tenure of service. The service record of the last 10 years of the petitioner is not clean. Finally, the Hon’ble High Court dismissed the appeal with a view that the instant appeal has no merit.

Reserved on 11.08.2021 Delivered on 08.10.2021 Case : WRIT A No. 554317 Petitioner : Head Constable Ravindra Mishra Respondent : State of U.P. and Another Counsel for Petitioner : Satya Prakash Pandey Counsel for Respondent : C.S.C Hon ble Saral Srivastava J Heard Sri Satya Prakash Pandey learned counsel for the petitioner and Dr. Amar Nath Singh learned Standing Counsel for the respondents The petitioner by means of the present writ petition has assailed the orders dated 31.07.2017 and 10.11.2017 passed by respondent no.2 by which the petitioner has been compulsorily retired from service The petitioner was appointed as Constable in P.A.C. on 15.08.1981 and was promoted as Head Constable in the year 1992. The date of birth of the petitioner is 25.06.1962 and the date of retirement is 30.06.2022 It appears that a decision was taken by the Government to assess the suitability of about 203 Constables belonging to Class III employees and 36 employees of Class IV working in the P.A.C. Department for continuing in service Pursuant to the said decision a Committee was constituted to assess the suitability of employees. Accordingly the committee constituted for such purpose assessed the suitability of employees. The Committee on the assessment of service record of the petitioner found that in the last 10 years the service of the petitioner was not satisfactory and accordingly his services are no longer required in the public interest. Consequently the committee recommended the compulsory retirement of the petitioner by order dated 31.07.2017 The case of the petitioner is that the service record of the petitioner has not been properly assessed by the committee yet he has been recommended for compulsory retirement A counter affidavit has been filed by the respondent state stating that the petitioner was awarded five minor punishments in the years 1984 1989 1998 2001 and 2015. It was further stated that the petitioner was awarded three censure entries in the years 2002 2007 and 2010 and adverse annual remarks in the years 2002 2010 2013 and 2015. Thus the service of the petitioner is not satisfactory. The respondents also enclosed a chart based on the service book of the petitioner demonstrating the punishment awarded to the petitioner. The chart enclosed as Annexure 4 to the counter affidavit is being extracted herein below: उद्वरण चिचिरत्र चपंजिजिक चमुख्य चआरक्षी चपीएन० चओ चनंज० च च810630129 रवीन्द्र चिमश्रा दण्ड चका च दण्ड चकी चसंजख्या दण्ड चप्रदान चिकये चजिाने च चििरत्र चपंजिजिका चका चपेजि चसंजख्या पेजि चसंज० 82 पर चअंजिकत चहै। पेजि चसंज० 82 पर चअंजिकत चहै। पेजि चसंज० 82 पर चअंजिकत चहै। पेजि चसंज० 82 पर चअंजिकत चहै। पेजि चसंज० 83 पर चअंजिकत चहै। पेजि चसंज० 77 78 पर चअंजिकत चहै। पेजि चसंज० 79 पर चअंजिकत चहै। पेजि चसंज० 80 पर चअंजिकत चहै। पेजि चसंज० 51 पर चअंजिकत चहै। पेजि चसंज० 55 पर चअंजिकत चहै। पेजि चसंज० 56 57 पर चअंजिकत चहै। पेजि चसंज० 57 पर चअंजिकत चहै। 12वीं चवािहनी चपीएसी The further averment in the counter affidavit is that the screening committee after scrutinizing the service record of the petitioner found that five minor punishments three censure entries and four annual remarks had been awarded to the petitioner accordingly it recommended for compulsory retirement of the petitioner as the continuance of the petitioner in service would not be in the public interest To meet the averments made in the counter affidavit a second supplementary affidavit has been filed by the petitioner stating therein that petitioner on completing 8 years of satisfactory service as Head Constable was given the benefit of selection grade w.e.f 09.07.2000 and on completing 14 years of service he was granted super selection grade on 09.07.2006. It is further stated that vide Hindi Order BookNo.408 dated 15.07.2014 the petitioner was granted Grade Pay of Rs.4600 under Assured Career Progression Scheme by providing two increments w.e.f 30.03.2013. The arrears of salary was also paid to the petitioner. It is further stated that none of the adverse entries awarded to the petitioner in the last 10 years have been communicated to the petitioner particularly entries of the years 2010 2013 & 2014 were never communicated to the petitioner. The integrity of the petitioner was always certified by the concerned officer 10. Respondent no.2 filed a supplementary counter affidavit wherein he did not deny the fact of granting time pay scale to the petitioner on 07.09.2000 but it was pleaded that petitioner was placed under suspension on being engaged in a scuffle with one Indrapal during the Parade at 42nd Battalion P.A.C. Allahabad. It is further pleaded that from the service record it is also evident that the petitioner was awarded adverse entries in the years 2013 & 2014 however it is not clear from the record as to whether these entries were communicated to the petitioner or not. The petitioner was punished in the year 2015 at Orderly Room and was awarded adverse entry by order dated 08.01.2018. The petitioner was punished with a penalty of Rs.500 by order dated 30.03.2010 In the rejoinder affidavit filed to the counter affidavit petitioner did not deny the fact of various punishments awarded to the petitioner but has tried to explain in paragraph 5 of the rejoinder affidavit why they are not relevant while assessing and scrutinizing the past service record of the petitioner for consideration to recommend the petitioner for compulsory The petitioner filed a supplementary rejoinder affidavit to the supplementary counter affidavit wherein the averments made in the supplementary counter affidavit have not been specifically denied However in paragraph 5 of the rejoinder affidavit he has stated that the date 08.01.2018 has been wrongly mentioned whereas the correct date is 08.01.2008 but he did not deny the fact that he was awarded adverse entry by the said order 13. Challenging the order of compulsory retirement learned counsel for the petitioner has submitted that the order of compulsory retirement has been passed without correctly assessing and scrutinizing the service record of the petitioner. He submits that there was no material or evidence against the petitioner before the committee based on which the committee could form an opinion that continuance of petitioner in service is not in the public interest. He further submits the fact that the petitioner has been extended the benefit of the time pay scale and benefit of ACP by granting two increments w.e.f 30.03.2013 implies that whatever adverse entries or order of punishment are recorded in the service record of the petitioner have been condoned as the benefit of the time pay scale and ACP are granted on the basis of satisfaction of past service of an employee and thus it proves that recommendation of the committee recommending the petitioner to compulsory retirement is not based upon proper appreciation of record of past service of the petitioner. It is further submitted that since the recommendation for compulsory retirement has been made without application of mind therefore order of compulsory retirement is not sustainable in law and deserves to be set aside. In support of his aforesaid submissions he has placed reliance upon the following judgments: i. State of Gujarat and Another Vs. Suryakant Chunilal Shah1 SCC 529 ADJ 58215 SCC 221 iii. Avinash Chandra Tripathi Vs. State of U.P. and Another 2018Writ A No.1182183 SCC 514 wherein Apex Court has succinctly explained the law on compulsory retirement. Paragraphs 20 & 21 of the said judgment are being extracted herein below: “20. The principles on which a government servant can be ordered to be compulsorily retired were authoritatively laid down by this Court in Baikuntha Nath Das Vs. District Medical Officer2 SCC 299. In para 34 the principles have been summed up as “34. The following principles emerge from the above discussion i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court they may interfere if they are satisfied that the order is passedmala fide or b) that it is based on no evidence orthat it is arbitrary — in the sense that no reasonable person would form the requisite opinion on the given material in short if it is found to be a perverse order iv) The Governmentand not upon seniority v). An order of compulsory retirement is not liable to be quashed by a court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference Interference is permissible only on the grounds mentioned in3 SCC 580. The principles have been restated as follows: “34. It is also well settled that the formation of opinion for compulsory retirement is based on the subjective satisfaction of the authority concerned but such satisfaction must be based on a valid material. It is permissible for the courts to ascertain whether a valid material exists or otherwise on which the subjective satisfaction of the administrative authority is based. In the present matter what we see is that the High Court while holding that the track record and service record of the appellant was unsatisfactory has selectively taken into consideration the service record for certain years only while making extracts of those contents of the ACRs There appears to be some discrepancy. We say so for the reason that the appellant has produced the copies of the ACRs which were obtained by him from the High Court under the Right to Information Act 2005 and a comparison of these two would positively indicate that the High Court has not faithfully extracted the contents of 36. The material on which the decision of the compulsory retirement was based as extracted by the High Court in the impugned judgment and material furnished by the appellant would reflect that totality of relevant materials were not considered or completely ignored by the High Court. This leads to only one conclusion that the subjective satisfaction of the High Court was not based on the sufficient or relevant material. In this view of the matter we cannot say that the service record of the appellant was unsatisfactory which would warrant premature retirement from service. Therefore there was no justification to retire the appellant compulsorily from In the case of State of Gujarat Vs. Umedbhai M. Patel3 SCC 314 the Apex Court has broadly summarised the principles relating to compulsory retirement. Paragraph 11 of the said judgment is being extracted herein below: “11. The law relating to compulsory retirement has now crystallised into definite principles which could be broadly summarised thus i) Whenever the services of a public servant are no longer useful to the general administration the officer can be compulsorily retired for the sake of public interest ii) Ordinarily the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the iii) For better administration it is necessary to chop off dead wood but the order of compulsory retirement can be passed after having due regard to the entire service record of iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such v) Even uncommunicated entries in the confidential record can also be taken into consideration vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable vii) If the officer was given a promotion despite adverse entries made in the confidential record that is a fact in favour of the officer viii) Compulsory retirement shall not be imposed as a In the light of parameters laid down by the Apex Court in the aforesaid two judgments the Court proceeds to analyse the challenge to the order of compulsory retirement. In the case in hand the record reflects that the petitioner has been awarded several punishments during the entire tenure of service which has been detailed in the earlier part of the The fact that the petitioner has been awarded so many adverse entries and punishment as stated in the counter affidavit which has been detailed above has not been categorically denied by the petitioner Though the petitioner has tried to explain in rejoinder affidavit that those punishment or adverse entries are not sufficient material based on which the committee could form an opinion that continuance of petitioner in service is not in the public interest It is also urged by the learned counsel for the petitioner that whatever adverse entry or punishment has been awarded in the past are condoned by the respondents for the reasons that petitioner has been awarded time pay scale and grade pay etc. and had been granted ACP which can be granted only when in the opinion of the department service of the petitioner had been satisfactory 20. At this point it would be worth notice the judgment of this Court in the case of Dinesh Chandra wherein order of compulsory retirement has been assailed on the ground that it was based upon annual confidential remarks for the years 2011 12 and 2013 14 and an Excellent entry awarded by the Tehsildar for the year 2016 17 was ignored thus order of compulsory retirement is illegal while repelling the said contention this Court held that the order of compulsory retirement is based upon subjective satisfaction of the employer and a very limited scope of judicial review is available in such cases. It is further held that the order of compulsory retirement is neither punitive nor stigmatic. Paragraph 8 of the said judgment is being extracted herein “8. Constitution Bench of Supreme Court in Shyamlal v. State of U.P. AIR 1954 SC 369 held that the two requirements for compulsory retirement are that the officer has completed twenty five years service and that it is in the public interest to dispense with his further services. It is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence in Note 1 to Article 465 A make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the power. In other words a compulsory retirement has no stigma or implication of misbehaviour or incapacity. A compulsory retirement does not amount to dismissal or removal and therefore does not attract the provisions of Article 311 of the Constitution. In Rajasthan SRTC v. Babu Lal Jangir 10 SCC 551 held that it hardly needs to be emphasised that the order of compulsory retirement is neither punitive nor stigmatic. It is based on subjective satisfaction of the employer and a very limited scope of judicial review is available in such cases. Interference is permissible only on the ground of non application of mind mala fide perverse or arbitrary or if there is non compliance with statutory duty by the statutory authority. Power to retire compulsorily the government servant in terms of service rule is absolute provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest.” Similar view has been taken by this Court in the case of Shiv Charan wherein the order of compulsory retirement was challenged on the ground that the order is stigmatic and has been passed in violation of Article 311(2) of the Constitution of India 22. Applying the parameters elucidated by the Apex Court in considering the challenge to the order of compulsory retirement this Court finds that recommendation of the committee to compulsorily retire the petitioner is based upon consideration of the entire service record of It is true that authority while considering as to whether petitioner is deadwood and his continuance in the department is not in the public interest should give due weightage to the record of the last 10 years but it does not mean that authorities are precluded from looking into the entire service record of the petitioner in forming the opinion that an employee is deadwood and his continuance in the department is not in the public In the present case even the service record of the last 10 years of the petitioner is not clean which is evident from the chart given in the counter affidavit extracted above and this fact has not specifically been denied by the petitioner. However the petitioner had tried to demonstrate that punishment awarded to him has been condoned on the ground that he had been granted time pay scale grade pay and A.C.P. which could be extended to him only when the authorities are satisfied that his past service had been satisfactory It is true that in the case of Umedebhai M. Patelthe Apex Court has held that if the officer was given a promotion despite adverse entries in his confidential record that is a fact in his favour but at the same time Apex Court has also held that adverse entries and uncommunicated entries in the confidential record shall be taken into consideration in forming an opinion as to whether service of the petitioner is required and continuance of petitioner is for the benefit of the department and is in the public interest 26. At this point it is worth noticing that principles governing the grant of certain benefits i.e. pay scales and other benefits are different than the assessment of service record of the petitioner to assess the suitability of the petitioner whether his continuance in the department is for the public good or not therefore grant of the promotional pay scale etc. may be one factor which may be in favour of the petitioner but it does not mean that authority while assessing the suitability of the petitioner is under obligation to ignore other factors to consider whether the continuance of petitioner in the department is in the public interest or not In the instant case right from the joining of service by the petitioner it is evident that the petitioner has been awarded adverse entries or punishment. The committee is competent to broadly look into the entire service record of the petitioner to form an opinion as to whether the employee should be recommended for compulsory retirement as the object of the compulsory retirement is to weed out the deadwood and making a healthy working environment in the department for the public So far as the judgment of this Court in the case of Avinash Chandra Tripathi relied upon by the learned counsel for the petitioner is concerned it was a case where the service record of the petitioner did not reflect any adverse entry against him and one adverse entry which was awarded to him was set aside and upon consideration of entire service record this Court found that opinion formed by the committee for recommending the case of the petitioner for compulsory retirement was not based upon material on record and accordingly this Court interfered with the order of compulsory retirement In the case of Suryakant Chunilal Shah the order of compulsory retirement was based upon the involvement of the employee in two criminal cases and the department based on the involvement of the employee in two criminal cases formed an opinion that the continuance of the employee in the department was not in the public interest. The apex court set aside the order of compulsory retirement holding that involvement of an employee in a criminal case does not imply that he is guilty. Paragraph 27 of the said judgment is being extracted herein “27. The whole exercise described above would therefore indicate that although there was no material on the basis of which a reasonable opinion could be formed that the respondent had outlived his utility as a government servant or that he had lost his efficiency and had become a dead wood he was compulsorily retired merely because of his involvement in two criminal cases pertaining to the grant of permits in favour of fake and bogus institutions. The involvement of a person in a criminal case does not mean that he is guilty. He is still to be tried in a court of law and the truth has to be found out ultimately by the court where the prosecution is ultimately conducted. But before that stage is reached it would be highly improper to deprive a person of his livelihood merely on the basis of his involvement. We may however hasten to add that mere involvement in a criminal case would constitute relevant material for compulsory retirement or not would depend upon the circumstances of each case and the nature of offence allegedly committed by the employee 30. As the judgment of Suryakant Chunilal Shahhas been rendered in a different fact situation therefore this judgment does not come in aid to the petitioner In the case of Madhya Pradesh State Cooperative Dairy Federation LimitedApex Court affirmed the order of High Court quashing the order of compulsory retirement as no consideration has been given to the performance of the employee for the last five years and order of compulsory retirement had been passed ignoring the rules and circulars made by the Federation to assess the suitability of an employee whether he is dead wood for the department and should be compulsory retired Paragraphs 41 & 42 of the judgment are being extracted herein below: “41. We have noticed hereinbefore that although criteria adopted by the State were required to be considered for the purpose of determining the suitability or otherwise of the employees to continue in service the necessity to give special consideration to the performance of the employees for the last five years before the order was passed had been given a complete go by. The learned Single Judge as also the Division Bench as noticed hereinbefore clearly held that for the purpose of weeding out the dead wood it was absolutely necessary to take into consideration the performance of each of the employees at least for the last two years. Each case thus was required to be considered on its merit 42. The broad criteria which are not only applicable generally for the aforementioned purpose were required to be followed but there cannot be any doubt or dispute that the criteria laid down by the State was imperative in character. Thus the Federation adopted the rules and circulars made or issued by the State Government. The Federation itself having formulated the criteria required to be applied for passing orders of compulsory retirement was thus This judgment is also of no help to the petitioner as the facts in which order of compulsory retirement was quashed by the High Court and affirmed by the Apex Court are entirely different and not akin to the facts in the present case Thus for the reasons given above the writ petition lacks merit and is accordingly dismissed with no order as to costs Order Date : 8.10.2021

The Railways are liable to pay compensation if the delay of Trains is not explained or justified: Supreme Court

The Supreme Court ruled that the railways would be liable for compensation unless they provided proof and explained why a train arrived late, establishing and proving that the delay was caused by factors beyond their control. With this in mind, the Court upheld the order of the National Consumer Disputes Redressal Commission in New Delhi, which had confirmed the original order of the District Consumer Disputes Redressal Forum in Alwar, which had allowed the respondent’s complaint and ordered the Northern Western Railway to pay Rs. 15,000 for taxi expenses, Rs. 10,000 for bookie fees, and Rs. 5,000/- each towards mental agony and litigation expenses. A special leave plea filed by the Northern Western Railway, which was harmed by the ruling, was heard by a bench of Justice MR Shah and Justice Aniruddha Bose. The Court noted, “The railways were required to lead the evidence and explain the late arrival of train to establish and prove that delay occurred because of the reasons beyond their control. At least the railways were required to explain the delay which the railways failed. It cannot be disputed that every passenger’s time is precious and they might have booked the tickets for further journey, like in the present case from Jammu to Srinagar and thereafter further journey.” In light of the facts and circumstances of the case, and in the absence of any evidence to explain the delay, the District Forum, State Commission, and National Commission were found to have correctly concluded that there was a deficiency in service on the part of the railways, for which they were liable to compensate the passenger. The Court remarked, “These are the days of competition and accountability. If the public transportation has to survive and compete with private players, they have to improve the system and their working culture. Citizen/passenger cannot be at the the mercy of the authorities/administration. Somebody has to accept the responsibility.”

LL 2021 SC 427 IN THE CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITIONNO. 13288 OF 2021 NORTHERN WESTERN RAILWAY & ANR. Petitioner(s VERSUS SANJAY SHUKLA Respondent(s O R D E R Feeling aggrieved and dissatisfied with the impugned judgment and order dated 08.09.2020 passed by the National Consumer Disputes Redressal Commission New Delhi in Revision Petition bearing No. 2940 2018 by which the learned National Commission has dismissed the said revision petition and has confirmed the order passed by the State Consumer Disputes Redressal Commission Rajasthan Jaipur Bench No.1 dated 3.7.2018 passed in First Appeal No. 1234 of 2017 confirming the order passed by the District Consumer Disputes Redressal Forum Alwar allowing the complaint filed by the respondent herein and directing the Northern Western Railway and another to pay to the complainant respondent herein Rs. 15 000 for taxi expenses Rs.10 000 towards booking expenses along with Rs. 5 000 each towards mental agony and litigation expenses the original respondents Northern Western Railway and another have preferred the present special LL 2021 SC 427 That the respondent herein booked four tickets for his family including himself from the Northern Western Railway in Ajmer Jammu Express Train No. 12413 for the journey from Kishangarh to Jammu Tawi on 10.06.2016. He also further booked return reserved tickets from the same train for 17.06.2016. The said train after starting from Ajmer had to reach Jammu Tawi at 8:10 a.m. in the morning on 11.06.2016. As per the case of the respondent he had to take flight at 12:00 noon from Jammu to Srinagar in SpiceJet which was to be landed at Srinagar at 12:15 p.m. But the said train did not reach in time and it was delayed by four hours and reached Jammu at 12:00 noon. Since the Jammu Airport was at a far distance from Jammu Railway Station and they had to reach the airport at least two hours prior to the departure of the flight they could not reach in time and missed the flight. That thereafter the respondent booked private taxi and reached Srinagar. Therefore the respondent herein original complainant filed a complaint before the District Forum against the petitioners herein being Complaint Case No. 9916 and claimed loss of Rs. 9 000 as air fare Rs. 15 000 towards taxi hire charges for going from Jammu to Srinagar Rs. 10 000 on account of booking of boat in Dal Lake. The aforesaid claim petition was opposed by the petitioners herein. That the learned District Forum by order dated 14.09.2017 allowed the complaint by observing that there was a deficiency in service and because of that the complainant respondent herein suffered. The District Forum directed the petitioners to pay to the complainant Rs. 25 000 as compensation Rs. 5 000 each LL 2021 SC 427 towards mental agony and litigation charges within one month from the date of the order failing which the complainant would be entitled to 9% simple interest. The order passed by the District Forum came to be confirmed by the State Commission in an appeal and thereafter by the National Commission by the impugned judgment and order passed in the revision petition Ms. Aishwarya Bhati learned Additional Solicitor General has vehemently submitted that late running of train cannot be said to be deficiency in service on the part of the railways. It is submitted that in view of Rule 114 and Rule 115 of the Indian Railway Conference Association Coaching Tariff No. 26 Part I Volume I) there shall not be any liability of the railways to pay compensation for late running of train. It is submitted that there may be number of reasons for delay and late running of train Having heard Ms. Aishwarya Bhati learned ASG and having gone through and considered the orders passed by the District Forum confirmed by the State Commission and the National Commission we are of the opinion that in the facts and circumstances of the case the impugned orders awarding compensation to the complainant do not warrant any interference by this Court It is not in dispute that there was a delay in the arrival of the Ajmer Jammu Express Train by four hours. As per the scheduled time the train was to reach at Jammu Tawi at 8:10 a.m. in the morning on 11.06.2016. However it reached Jammu Tawi at 12:00 noon. Considering the time schedule fixed by the railways that the trail will reach Jammu Tawi at 8:10 a.m. in the morning the complainant booked the connecting flight from Jammu to Srinagar LL 2021 SC 427 which was to take off at 12:00 noon. Because the train reached Jammu Tawi by delay of four hours at 12:00 noon instead of its scheduled time of arrival at 8:10 a.m. the complainant missed the flight from Jammu to Srinagar. The complainant was required to travel to Srinagar by taxi. The complainant also suffered loss of Rs. 9 000 as air fare. The complainant was required to pay Rs.15 000 towards taxi hire charges and also loss of Rs. 10 000 on account of booking of boat in Dal Lake. No evidence at all was led by the railways explaining the delay and or late arrival of train at Jammu. The railways were required to lead the evidence and explain the late arrival of train to establish and prove that delay occurred because of the reasons beyond their control. At least the railways were required to explain the delay which the railways failed. It cannot be disputed that every passenger’s time is precious and they might have booked the tickets for further journey like in the present case from Jammu to Srinagar and thereafter further journey. Therefore unless and until the evidence is laid explaining the delay and it is established and proved that delay occurred which was beyond their control and or even there was some justification for delay the railway is liable to pay the compensation for delay and late arrival of trains Therefore in the facts and circumstances of the case and in the absence of any evidence led to explain the delay the District Forum the State Commission and the National Commission have rightly observed and held that there was deficiency in service and therefore the railway is liable to pay the compensation to the passenger complainant for the loss suffered and for the agony LL 2021 SC 427 suffered. These are the days of competition and accountability If the public transportation has to survive and compete with private players they have to improve the system and their working culture. Citizen passenger cannot be at the the mercy of the authorities administration. Somebody has to accept the responsibility. No interference of this Court is called for in exercise of powers under Article 136 of the Constitution of India The special leave petition is accordingly dismissed .......................... J SECTION XVII A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to AppealNo(s). 13288 2021 Arising out of impugned final judgment and order dated 08 09 2020 in RP No. 2940 2018 passed by the National Consumer Disputes Redressal Commission New Delhi NORTHERN WESTERN RAILWAY & ANR. Petitioner(s VERSUS SANJAY SHUKLA Respondent(s FOR ADMISSION and I.R. and IA No.107195 2021 EXEMPTION FROM FILING Date : 06 09 2021 This petition was called on for hearing today CORAM : HON BLE MR. JUSTICE M.R. SHAH HON BLE MR. JUSTICE ANIRUDDHA BOSE Ms. Aishwarya Bhati ASG Mr. Amit Sharma Adv Mr. Prashant Singh Adv Noor Rampal Adv Mr. Amrish Kumar AOR UPON hearing the counsel the Court made the following O R D E R The Special Leave Petition is dismissed in terms of the signed order. Pending applications if any stand disposed of. R. NATARAJAN) SECTION XVII A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to AppealNo(s). 13288 2021 Arising out of impugned final judgment and order dated 08 09 2020 in RP No. 2940 2018 passed by the National Consumer Disputes Redressal Commission New Delhi NORTHERN WESTERN RAILWAY & ANR. Petitioner(s VERSUS SANJAY SHUKLA Respondent(s FOR ADMISSION and I.R. and IA No.107195 2021 EXEMPTION FROM FILING Date : 06 09 2021 This petition was called on for hearing today CORAM : HON BLE MR. JUSTICE M.R. SHAH HON BLE MR. JUSTICE ANIRUDDHA BOSE Ms. Aishwarya Bhati ASG Mr. Amit Sharma Adv Mr. Prashant Singh Adv Noor Rampal Adv Mr. Amrish Kumar AOR UPON hearing the counsel the Court made the following O R D E R Heard Ms. Aishwarya Bhati learned ASG appearing for the The Special Leave Petition is dismissed. Reasoned Order to follow R. NATARAJAN) (NISHA TRIPATHI ASTT. REGISTRAR cum PS BRANCH OFFICER

S.30(4) of the Insolvency and Bankruptcy Code only amplifies the considerations of the Committee of Creditors: Supreme Court

The Supreme court while hearing an appeal regarding the resolution plan, held that section 30 of the Insolvency and Bankruptcy code only seeks to amplify the consideration of the Committee of creditors, keeping in mind the equitable distribution to every creditor. This judgment was passed in the case of India Resurgence Arc Private Limited Vs. M/S. Amit Metaliks Limited &amp; Anr. [C.A.No.1700/2021] by a Double Bench consisting of Hon’ble Justice Vineet Saran And Hon’ble Justice Dinesh Maheshwari. This appeal was filed by the appellant under section 62 of the Insolvency and Bankruptcy Code,2016 seeking to question the order of NCLAT which rejected the appeal of order passed by NCLT, Kolkata which approved the resolution plan in the corporate insolvency resolution process concerning the corporate debtor-respondent no.2. The appellant company was the assignee of the rights title and interest carried by Religare Finvest Limited as secured financial creditor of the corporate debtor, having 3.94% of voting share in the Committee of Creditors. When the resolution plan submitted by the respondent No. 1 was taken up for consideration by the CoC, the appellant expressed reservations on the share being proposed, particularly with reference to the value of the security interest held by it; and chose to remain a dissentient financial creditor. a substantial majority of other financial creditors voted in favour of the resolution plan and, therefore, the resolution plan got the approval of 95.35% of voting share of the financial creditors. The adjudicating authority after examination stated its complete satisfaction and proceeded to approve the resolution plan. Against the order so passed by the Adjudicating Authority, the appellant preferred an appeal under Section 61(1) read with Section 61(3) of the Code. The appellate authority took note of the grievances and arguments of the appellant and elucidates on the equitable treatment of the creditors and their protection against each other. The supreme court after hearing the submissions of the appellant held that the submission were in relation to section 30 of the code which dealt with the processes of submission of resolution plan. It was held that the process of consideration and approval of resolution plan’s scope of juricial review in limited to section 30(2) for the appellate authority and section 30(2) r/w section 61(3) for the Appellate authority. It was held by the supreme court that financial proposal in the resolution plan forms the core of the business decision of Committee of Creditors. When the mandatory requirements have been duly complied with and taken care of, the process of judicial review cannot be stretched to carry out quantitative analysis qua a particular creditor or any stakeholder, who may carry his own dissatisfaction. Section 30(4) of the code only amplified the considerations for the Committee of Creditors while exercising its commercial wisdom so as to take an informed decision in regard to the viability and feasibility of resolution plan, with fairness of distribution amongst similarly situated creditors. Any business decision taken in exercise of the commercial wisdom of CoC does not call for interference unless creditors belonging to a class being similarly situated are denied fair and equitable treatment. The supreme court held that the amount which is to be paid to different classes of creditors is the commercial wisdom of the Committee of Creditors; and a dissenting secured creditor like the appellant cannot suggest a higher amount to be paid to it with reference to the value of the security interest. Furthermore section 30(2)(b) of the code stipulates sufficiently the limitation on the extent of the amount receivable by a dissenting financial creditor.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1700 OF 2021 INDIA RESURGENCE ARC PRIVATE LIMITED M S. AMIT METALIKS LIMITED & ANR. …RESPONDENT(S J U D G E M E N T By way of this appeal under Section 62 of the Insolvency and Bankruptcy Code 20161 the appellant India Resurgence ARC Private Limited seeks to question the order dated 02.03.2021 passed by the National Company Law Appellate Tribunal New Delhi2 in CA(AT Insolvency) No. 10620 whereby the Appellate Authority rejected its challenge to the order dated 20.10.2020 passed by the National Company Law Tribunal Kolkata Bench Kolkata3in approval of the resolution plan in the corporate insolvency resolution process4concerning 1Hereinafter also referred to as ‘the Code’ or ‘IBC’ 2Hereinafter also referred to as ‘the Appellate Authority’ or ‘NCLAT’ 3Hereinafter also referred to as ‘the Adjudicating Authority’ or ‘NCLT’ 4‘CIRP’ for short the corporate debtor VSP Udyog Private Limited as submitted by the resolution applicant Amit Metaliks Limited respondent No. 1 herein The appellant company is said to be the assignee of the rights title and interest carried by Religare Finvest Limited as secured financial creditor of the corporate debtor having 3.94% of voting share in the Committee of Creditors5 When the resolution plan submitted by the respondent No. 1 was taken up for consideration by the CoC the appellant expressed reservations on the share being proposed particularly with reference to the value of the security interest held by it and chose to remain a dissentient financial creditor. The dissention on the part of the appellant and response thereto by the resolution professional as also by other members of CoC was noted in the 14th meeting of CoC dated 31.07.2020 in the following words: “Representative from Religare Finvest India Resurgence ARC Mr Shakti inquired about the lower share they are getting as per Resolution Plan whereas the security interest held by them is far more. He also raised question about the fair market value and liquidation value of the CD. On this the RP informed him that the valuation exercise has been done by registered valuers of IBBI who were appointed by the erstwhile IRP and he do not find any inconsistency in the same. Other members also agreed on the same. Mr Shakti then raised the point that in the present scenario it will be better for them if the company goes into Liquidation and they will realize their security interest by exercising option u s 52(1)(b). The RP then replied that Liquidation option may be beneficial to one creditor but is definitely detrimental to other 5‘CoC’ for short secured lenders who are having majority stake of around 96 Further the RP also said that the objective of IBC is resolution and revival of a distressed company and is not a recovery procedure.” However a substantial majority of other financial creditors voted in favour of the resolution plan and therefore the resolution plan got the approval of 95.35% of voting share of the financial creditors The said resolution plan as approved by the vast majority of voting share in the CoC was submitted for approval by the resolution professional to the Adjudicating Authority. The Adjudicating Authority examined inter alia the salient features of resolution plan particularly those concerning financial proposals and found the plan to be feasible and viable with judicious distribution of financial bids by CoC to the stakeholders according to their entitlements as also being compliant of all the mandatory requirements. The Adjudicating Authority stated its complete satisfaction and proceeded to approve the resolution plan while observing in its order dated 20.10.2020as under: Having heard the Ld. Senior Counsel and on perusal of the Plan it is understood that the assets of the Corporate Debtor are going to rest in a safer hand. The RP Mr. Raj Singhania deserves special appreciation for finding out a Resolution Applicant whose Plan has been approved by the Committee of Creditors by 95.35% voting share even in these difficult times of pandemic due to COVID 19. All the provisions of mandatory requirements are seen complied with by the Resolution Applicant as per Form H submitted by the RP. It makes provision for the payment of the Insolvency Resolution Process payment of the debts of Operational Creditors Management of the affairs of the Corporate Debtor and also provision for implementation and supervision of the Resolution Plan. It also provides terms of the Plan and its implementation schedule. So it is a feasible and viable Plan. A judicious distribution of the financial bids by the COC to the stakeholders according to their entitlements can be inferred from the Plan under consideration. No waiver of extinguishments in contravention of the provisions of the Code or in violation of existing laws is seen not brought out and therefore there is nothing in the Plan so as to disapprove it. This CP was admitted on 7th August 2019. However upon expiry of 180 days the period of CIRP was extended excluding the days last during the period of lockdown imposed by the Central Government in the wake of COVID 19 outbreak not to be counted for the purposes of the time line for any activity that could not be completed due to such lockdown in relation to a Corporate Insolvency Resolution Process and thereby approval of the Plan by the COC within the period of 270 days. The COC has very well deliberated with the Plans received by it and decided the viability feasibility and financial matrix of each Plan and approved one with 95.35% vote shares of the members of the Committee of Creditors.” It does not appear if any objection to the resolution plan was placed before the Adjudicating Authority for consideration. Be that as it may against the order so passed by the Adjudicating Authority the appellant preferred an appeal under Section 61(1) read with Section 61(3) of the Code. It was contended on behalf of the appellant in its capacity as a dissenting financial creditor that the approved resolution plan failed the test of being ‘feasible and viable’ inasmuch as the value of the secured asset on which security interest was created by the corporate debtor in its favour was not taken into consideration. It was contended by the appellant that after the amendment to sub sectionof Section 30 of IBC which came into effect from 16.08.2019 the CoC was to ensure that the manner of distribution takes into account the order of priority among the creditors as also the priority and value of the security interest of a secured creditor and the resolution applicant and the CoC having failed to consider the existing security interest in its favour approval of the Adjudicating Authority was not in accordance with law The Appellate Authority took note of the submissions made on behalf of the appellant and referred to the decision of this Court in Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta and Ors.: 8 SCC 5316to stress upon the principles governing various classes of creditors in the insolvency resolution process. The Appellate Authority particularly referred to the passages in Essar Steel explaining the meaning and contours of the concept of equitable treatment of creditors including the observations that equitable treatment of creditors meant equitable treatment only within the same class and that protection of creditors in general was important but it was also imperative that the creditors be protected from each other and further that the Code should not be read so as to imbue the creditors with greater rights in a bankruptcy proceeding than they would enjoy under the general law unless it is to serve some bankruptcy purpose Having taken note of the principles expounded in Essar Steel supra) the Appellate Authority proceeded to reject the contentions urged on behalf of the appellant with the following observations and findings: “6. Section 30(4) of the I&B Code provides that the Committee of Creditors may approve a Resolution Plan by a vote which shall not 6 Hereinafter referred to as the case of ‘Essar Steel’ be less than 66% of voting share of Financial Creditors. Such approval is to be done after considering the feasibility and viability of the Resolution Plan the manner of distribution proposed therein having regard to the order of priority amongst the creditors in terms of the waterfall mechanism laid down in Section 53 of the I&B Code including the priority and value of security interest of Secured Creditor besides other requirements specified by IBBI On a plain reading of this provision it is manifestly clear that the considerations regarding feasibility and viability of the Resolution Plan distribution proposed with reference to the order of priority amongst creditors as per statutory distribution mechanism including priority and value of security interest of Secured Creditor are matters which fall within the exclusive domain of Committee of Creditors for consideration. These considerations must be present to the mind of the Committee of Creditors while taking a decision in regard to approval of a Resolution Plan with vote share of requisite majority. As regards amendment introduced in Section 30(4) be it seen that the amendment that it introduced vide Section 6 of Amending Act of 2019 vests discretion in the Committee of Creditors to take into account the value of security interest of a Secured Creditor in approving of a Resolution Plan It’s a guideline and not imperative in terms which may be taken into account by the Committee of Creditors in arriving at a decision as regards approval or rejection of a Resolution Plan such decision being essentially a business decision based on commercial wisdom of the Committee of Creditors. In this regard the observations of Hon’ble Apex Court in ‘Committee of Creditors of Essar Steel India LimitedVs. Satish Kumar Gupta and Others’ are significant. The Hon’ble Apex Court observed as under: “131. The challenge to sub clauseof Section 6 of the Amending Act of 2019 again goes to the flexibility that the Code gives to the Committee of Creditors to approve or approve a resolution plan and which may take into account different classes of creditors as is mentioned in Section 53 and different priorities and values of security interests of a secured creditor. This flexibility is referred to in the BLRC Report 2015(see para 56 of this judgment Also the discretion given to the Committee of Creditors by the word “may” again makes it clear that this is only a guideline which is set out by this sub section which may be applied by the Committee of Creditors in arriving at a business decision as to acceptance or rejection of are solution plan. For all these reasons therefore it is difficult to hold that any of these provisions is constitutionally 7. It abundantly clear that the considerations including priority in scheme of distribution and the value of security are matters falling within the realm of Committee of Creditors. Such considerations being relevant only for purposes for arriving at a business decision in exercise of commercial wisdom of the Committee of Creditors cannot be the subject of judicial review in appeal within the parameters of Section 61(3) of I&B Code. While it is true that prior to amendment of Section 30(4) the Committee of Creditors was not required to consider the value of security interest obtaining in favour of a Secured Creditor while arriving at a decision in regard to feasibility and viability of a Resolution Plan legislature brought in the amendment to amplify the scope of considerations which may be taken into consideration by the Committee of Creditors while exercising their commercial wisdom in taking the business decision to approve or reject the Resolution Plan. Such consideration is only aimed at arming the Committee of Creditors with more teeth so as to take an informed decision in regard to viability and feasibility of a Resolution Plan fairness of distribution amongst similarly situated creditors being the bottomline However such business decision taken in exercise of commercial wisdom of Committee of creditors would not warrant judicial intervention unless creditors belonging to a class being similarly situated are not given a fair and equitable treatment 8. We find no merit in this appeal it is accordingly dismissed.” Seeking to question the decision of the Appellate Authority the main plank of submissions of learned counsel for the appellant before us again revolves around Section 30(4) of Code. It is contended that the CoC could not have approved the resolution plan which failed to consider the priority and value of security interest of the creditors while deciding the manner of distribution to each creditor even though the legislature in its wisdom has amended Section 30(4) of the Code requiring the CoC to take into account the order of priority amongst creditors as laid down in Section 53(1) of the Code including the priority and value of the security interest of a secured creditor. Learned counsel would submit that the primary reason for appellant’s dissent to the resolution plan was that as against total admitted claim of over INR 13.38 crores the resolution applicant had offered the appellant a meagre amount of about INR 2.026 crores without even considering the valuation of the security held by the appellant which admittedly had the valuation of more than INR 12 crores Learned counsel has referred to the decision in Essar Steel as also the recent decision of this Court in the case of Jaypee Kensington Boulevard Apartments Welfare Association and Ors. v. NBCCof the Code was merely a guideline fails to take into account the fact that CoC does not have an unfettered and arbitrary right to exercise its commercial wisdom and to approve the plan which does not stand in conformity with the provisions of the Code Having heard the learned counsel and having perused the material placed on record we are clearly of the view that this appeal remains totally bereft of substance and does not merit admission The requirements of law particularly in regard to the contentions sought to be urged on behalf of the appellant are referable to the provisions contained in Section 30 of the Code dealing with the processes relating to submission of a resolution plan its mandatory contents its 7 Hereinafter referred to as the case of ‘Jaypee Kensington’ consideration and approval by the Committee of Creditors and its submission to the Adjudicating Authority for approval. Sub sections of Section 30 of the Code being relevant for the present purpose could be usefully reproduced while omitting the other parts as under: “Section30. Submission of resolution plan.xxx 2) The resolution professional shall examine each resolution plan received by him to confirm that each resolution plan a) provides for the payment of insolvency resolution process costs in a manner specified by the Board in priority to the 8[payment] of other debts of the corporate debtor 9[(b) provides for the payment of debts of operational creditors in such manner as may be specified by the Board which shall not be less than i) the amount to be paid to such creditors in the event of a liquidation of the corporate debtor under section 53 or ii) the amount that would have been paid to such creditors if the amount to be distributed under the resolution plan had been distributed in accordance with the order of priority in sub sectionof section 53 in the event of a liquidation of the 8Substituted by Act 218 sec. 23for “repayment”for clause(w.e.f. 16.08.2019). Earlier clause(w.r.e.f. 06.06.2018). Clause before substitution stood as under “(b) provides for the payment of the debts of operational creditors in such manner as may be specified by the Board which shall not be less than the amount to be paid to the operational creditors in the event of a liquidation of the corporate debtor under section 53 ” Explanation 1.—For the removal of doubts it is hereby clarified that a distribution in accordance with the provisions of this clause shall be fair and equitable to such creditors Explanation 2.—For the purposes of this clause it is hereby declared that on and from the date of commencement of the Insolvency and Bankruptcy Code Act 2019 the provisions of this clause shall also apply to the corporate insolvency resolution process of a corporate debtor i) where a resolution plan has not been approved or rejected by the Adjudicating Authority ii) where an appeal has been preferred under section 61 or section 62 or such an appeal is not time barred under any provision of law for the time being in force or iii) where a legal proceeding has been initiated in any court against the decision of the Adjudicating Authority in respect of a resolution plan c) provides for the management of the affairs of the Corporate debtor after approval of the resolution plan d) the implementation and supervision of the resolution plan e) does not contravene any of the provisions of the law for the time being in force f) conforms to such other requirements as may be specified by 10[Explanation.—For the purposes of clauseif any approval of shareholders is required under the Companies Act 2013or any other law for the time being in force for the implementation of actions under the resolution plan such approval shall be deemed to have been given and it shall not be a contravention of that Act or law 11[(4) The committee of creditors may approve a resolution plan by a vote of not less than 12[sixty six]per cent. of voting share of the financial creditors after considering its feasibility and viability 13[the 10Inserted by Act 218 sec. 23(ii)(B)(w.r.e.f. 23.11.2017). Sub sectionbefore substitution stood as under “(4) The committee of creditors may approve a resolution plan by a vote of not less than seventy five per cent of voting share of the financial creditors.” 12Substituted by Act 218 sec. 23(iii)(a) for “seventy five”(w.e.f. 16.08.2019). manner of distribution proposed which may take into account the order of priority amongst creditors as laid down in sub sectionof section 53 including the priority and value of the security interest of a secured creditor]and such other requirements as may be specified by the Board Provided that the committee of creditors shall not approve a resolution plan submitted before the commencement of the Insolvency and Bankruptcy Code Ordinance 2017 Ord. 17) where the resolution applicant is ineligible under section 29A and may require the resolution professional to invite a fresh resolution plan where no other resolution plan is available Provided further that where the resolution applicant referred to in the first proviso is ineligible under clauseof section 29A the resolution applicant shall be allowed by the committee of creditors such period not exceeding thirty days to make payment of overdue amounts in accordance with the proviso to clauseof Provided also that nothing in the second proviso shall be construed as extension of period for the purposes of the proviso to sub section of section 12 and the corporate insolvency resolution process shall be completed within the period specified in that sub section 14[Provided also that the eligibility criteria in section 29A as amended by the Insolvency and Bankruptcy Code shall apply to the resolution applicant who has not submitted resolution plan as on the date of commencement of the Insolvency and Bankruptcy Code Amendment) Ordinance 2018of the Code for the Adjudicating Authority and Section 30(2) read with 14Inserted by Act 218 sec. 23(iii)(b)for the Appellate Authority. In the case of Jaypee Kensington this Court after taking note of the previous decisions in Essar Steel(supra) as also in K. Sashidhar v. Indian Overseas Bank and Ors.: 12 SCC 150 and Maharashtra Seamless Limited v. Padmanabhan Venkatesh and Ors.: 11 SCC 467 summarised the principles as follows: In the scheme of IBC where approval of resolution plan is exclusively in the domain of the commercial wisdom of CoC the scope of judicial review is correspondingly circumscribed by the provisions contained in Section 31 as regards approval of the Adjudicating Authority and in Section 32 read with Section 61 as regards the scope of appeal against the order of approval Such limitations on judicial review have been duly underscored by this Court in the decisions above referred where it has been laid down in explicit terms that the powers of the Adjudicating Authority dealing with the resolution plan do not extend to examine the correctness or otherwise of the commercial wisdom exercised by the CoC. The limited judicial review available to Adjudicating Authority lies within the four corners of Section 30(2) of the Code which would essentially be to examine that the resolution plan does not contravene any of the provisions of law for the time being in force it conforms to such other requirements as may be specified by the Board and it provides for:payment of insolvency resolution process costs in priority payment of debts of operational creditors payment of debts of dissenting financial creditors for management of affairs of corporate debtor after approval of the resolution plan and on the extent of judicial review are that the Adjudicating Authority would see if CoC has taken into account the fact that the corporate debtor needs to keep going as a going concern during the insolvency resolution process that it needs to maximise the value of its assets and that the interests of all stakeholders including operational creditors have been taken care of. And if the Adjudicating Authority would find on a given set of facts that the requisite parameters have not been kept in view it may send the resolution plan back to the Committee of Creditors for re submission after satisfying the parameters. Then as observed in Maharashtra Seamless Ltd. there is no scope for the Adjudicating Authority or the Appellate Authority to proceed on any equitable perception or to assess the resolution plan on the basis of quantitative analysis. Thus the treatment of any debt or asset is essentially required to be left to the collective commercial wisdom of the financial creditors.” It needs hardly any elaboration that financial proposal in the resolution plan forms the core of the business decision of Committee of Creditors. Once it is found that all the mandatory requirements have been duly complied with and taken care of the process of judicial review cannot be stretched to carry out quantitative analysis qua a particular creditor or any stakeholder who may carry his own dissatisfaction. In other words in the scheme of IBC every dissatisfaction does not partake the character of a legal grievance and cannot be taken up as a ground of The provisions of amended sub sectionof Section 30 of the Code on which excessive reliance is placed on behalf of the appellant in 15For the purpose of illustration reference may be made to the decision in Jaypee Kensington(supra) wherein as regards the grounds sought to be urged by minority shareholders against the resolution plan this Court held that their grievances could not be recognised as legal grievancesof Section 30 of the Code by way of sub clauseof Section 6 of the Amending Act of 2019 was also explained by this Court in Essar Steel(supra) as duly taken note of by the Appellate Authority of Section 30 only amplified the considerations for the Committee of Creditors while exercising its commercial wisdom so as to take an informed decision in regard to the viability and feasibility of resolution plan with fairness of distribution amongst similarly situated creditors and the business decision taken in exercise of the commercial wisdom of CoC does not call for interference unless creditors belonging to a class being similarly situated are denied fair and equitable treatment. In regard to the question of fair and equitable treatment though the Adjudicating Authority as also the Appellate Authority have returned concurrent findings in favour of the resolution plan yet to satisfy ourselves we have gone through the financial proposal in the resolution plan. What we find is that the proposal for payment to all the secured financial creditorsis equitable and the proposal for payment to the appellant is at par with the percentage of payment proposed for other secured financial creditors. No case of denial of fair and equitable treatment or disregard of priority is made out The repeated submissions on behalf of the appellant with reference to the value of its security interest neither carry any meaning nor any substance. What the dissenting financial creditor is entitled to is specified in the later part of sub sectionof Section 30 of the Code and the same has been explained by this Court in Essar Steel as under: When it comes to the validity of the substitution of Section 30(2)(b) by Section 6 of the Amending Act of 2019 it is clear that the substituted Section 30(2)(b) gives operational creditors something more than was given earlier as it is the higher of the figures mentioned in sub clausesandof sub clausewhich refers to dissentient financial creditors. Ms Madhavi Divan is correct in her argument that Section 30(2)(b) is in fact a beneficial provision in favour of operational creditors and dissentient financial creditors as they are now to be paid a certain minimum amount the minimum in the case of operational creditors being the higher of the two figures calculated under sub clausesandof clause b) and the minimum in the case of dissentient financial creditor being a minimum amount that was not earlier payable. As a matter of fact pre amendment secured financial creditors may cramdown unsecured financial creditors who are dissentient the majority vote of 66% voting to give them nothing or next to nothing for their dues. In the earlier regime it may have been possible to have done this but after the amendment such financial creditors are now to be paid the minimum amount mentioned in sub section as amended. Section 53 is only referred to in order that a certain minimum figure be paid to different classes of operational and financial creditors. It is only for this purpose that Section 53(1) is to be looked at as it is clear that it is the commercial wisdom of the Committee of Creditors that is free to determine what amounts be paid to different classes and sub classes of creditors in accordance with the provisions of the Code and the Regulations made thereunder.” underlining supplied for emphasis 13.1. Thus what amount is to be paid to different classes or sub classes of creditors in accordance with provisions of the Code and the related Regulations is essentially the commercial wisdom of the Committee of Creditors and a dissenting secured creditor like the appellant cannot suggest a higher amount to be paid to it with reference to the value of the security interest In the case of Jaypee Kensington the proposal in the resolution plan was to the effect that if the dissenting financial creditors would be entitled to some amount in the nature of liquidation value in terms of Sections 30 and 53 of IBC read with Regulation 38 of the CIRP Regulations they would be provided such liquidation value in the form of proportionate share in the equity of a special purpose vehicle proposed to be set up and with transfer of certain land parcels belonging to corporate debtor. Such method of meeting with the liability towards dissenting financial creditors in the resolution plan was disapproved by the Adjudicating Authority and this part of the order of the Adjudicating Authority was upheld by this Court with the finding that the proposal in the resolution plan was not in accord with the requirement of ‘payment’ as envisaged by clauseof Section 30(2) of the Code16. In that context 16In Jaypee Kensington after disapproving the proposition of the resolution plan regarding dissenting financial creditor the Adjudicating Authority itself modified the offending terms of the plan and provided for monetary payment to the dissenting financial creditor. This latter part of the order of the Adjudicating Authority was not approved by this Court while holding that after disapproval of such term related with financial model proposed in the resolution plan the Adjudicating Authority itself could not have modified the same and ought to have sent the matter back to CoC for reconsideration. However that part of the decision in Jaypee Kensingtonis not relevant for the present purpose this Court held that such action of ‘payment’ could only be by handing over the quantum of money or allowing the recovery of such money by enforcement of security interest as per the entitlement of a dissenting financial creditor. This Court further made it clear that in case a valid security interest is held by a dissenting financial creditor the entitlement of such dissenting financial creditor to receive the amount could be satisfied by allowing him to enforce the security interest to the extent of the value receivable by him and in the order of priority available to him This Court clarified that by enforcing such a security interest a dissenting financial creditor would receive payment to the extent of his entitlement and that would satisfy the requirement of Section 30(2)(b) of the Code This Court interalia observed and held as under: “121.1. Therefore when for the purpose of discharge of obligation mentioned in the second part of clauseof Section 30(2) of the Code the dissenting financial creditors are to be “paid” an “amount” quantified in terms of the “proceeds” of assets receivable under Section 53 of the Code and the “amount payable” is to be “paid” in priority over their assenting counterparts the statute is referring only to the sum of money and not anything else. In the frame and purport of the provision and also the scheme of the Code the expression “payment” is clearly descriptive of the action of discharge of obligation and at the same time is also prescriptive of the mode of undertaking such an action. And that action could only be of handing over the quantum of money or allowing the recovery of such money by enforcement of security interest as per the entitlement of the dissenting 121.2. We would hasten to observe that in case a dissenting financial creditor is a secured creditor and a valid security interest is created in his favour and is existing the entitlement of such a dissenting financial creditor to receive the “amount payable” could also be satisfied by allowing him to enforce the security interest to the extent of the value receivable by him and in the order of priority available to him. Obviously by enforcing such a security interest a dissenting financial creditor would receive “payment” to the extent of his entitlement and that would satisfy the requirement of Section 30(2)(b) of the Code….” underlining supplied for emphasis In Jaypee Kensington(supra) this Court repeatedly made it clear that a dissenting financial creditor would be receiving the payment of the amount as per his entitlement and that entitlement could also be satisfied by allowing him to enforce the security interest to the extent of the value receivable by him. It has never been laid down that if a dissenting financial creditor is having a security available with him he would be entitled to enforce the entire of security interest or to receive the entire value of the security available with him. It is but obvious that his dealing with the security interest if occasion so arise would be conditioned by the extent of value receivable by him. 14.2. The extent of value receivable by the appellant is distinctly given out in the resolution plan i.e. a sum of INR 2.026 crores which is in the same proportion and percentage as provided to the other secured financial creditors with reference to their respective admitted claims Repeated reference on behalf of the appellant to the value of security at about INR 12 crores is wholly inapt and is rather ill conceived. The limitation on the extent of the amount receivable by a dissenting financial creditor is innate in Section 30(2)(b) of the Code and has been further exposited in the decisions aforesaid. It has not been the intent of the legislature that a security interest available to a dissenting financial creditor over the assets of the corporate debtor gives him some right over and above other financial creditors so as to enforce the entire of the security interest and thereby bring about an inequitable scenario by receiving excess amount beyond the receivable liquidation value proposed for the same class of creditors It needs hardly any emphasis that if the propositions suggested on behalf of the appellant were to be accepted the result would be that rather than insolvency resolution and maximisation of the value of assets of the corporate debtor the processes would lead to more liquidations with every secured financial creditor opting to stand on dissent. Such a result would be defeating the very purpose envisaged by the Code and cannot be countenanced. We may profitably refer to the relevant observations in this regard by this Court in Essar Steel as follows: Indeed if an "equality for all" approach recognising the rights of different classes of creditors as part of an insolvency resolution process is adopted secured financial creditors will in many cases be incentivised to vote for liquidation rather than resolution as they would have better rights if the corporate debtor was to be liquidated rather than a resolution plan being approved This would defeat the entire objective of the Code which is to first ensure that resolution of distressed assets takes place and only if the same is not possible should liquidation follow.” Viewed from any angle the submissions made on behalf of the appellant do not merit acceptance and are required to be rejected For what has been discussed hereinabove this appeal fails and 13th May 2021

The Writ Court may exercise its extraordinary jurisdiction and prescribe appropriate punishment commensurate with the delinquency alleged and proved: Telangana High Court

Ordinarily, whenever the Court opines that the punishment imposed is harsh and disproportionate, the Court should remit it to the competent authority to impose appropriate punishment. However, there are exceptions carved out to this course. Such observations are made by the Hon’ble Telangana High Court before Hon’ble Justice P.NAVEEN RAO &amp; Hon’ble Justice P.SREE SUDHA in the matter of Union of India, rep. by its General Manager vs Sri Y.R.Gettiyawar, s/o.Ramappa [WRIT PETITION NOS.21082 OF 2005 &amp; 1635 OF 2006]. The facts of the matter were that the applicant was appointed as Ticket Collector and earned promotions as Travelling Ticket Examiner, Head Travelling Ticket Examiner (HTTE), and Travelling Ticket Inspector (TTI). On the allegation of committing misconduct while working as HTTE, disciplinary proceedings were initiated against the applicant. First charge memo was issued on 3/11.03.1988 and on 8/14.09.1988 revised charge memo was issued containing three charges. Based on the findings recorded by the Enquiry Officer, the Disciplinary Authority imposed punishment of removal from service. On appeal, the Appellate Authority affirmed the said punishment. In the revision preferred by the applicant, the Revisional Authority modified the punishment to that of reduction to a lower post/grade of HTTE in the scale of  5000-8000/- fixing his pay at the minimum of the scale i.e.,  5000/- for a period of five years with recurring effect. Aggrieved by the said order the applicant preferred the instant appeal. The Hon’ble High Court held that “though charges as alleged were very grave, they stood diluted. Further, on charge-III, the officers forming part of the Vigilance Team were also responsible, for reasons best known, no action was taken against the Vigilance Team. Only applicant was singled out. The Court cannot countenance the arbitrary exercise of power and action by the Disciplinary Authority treating the two employees similarly situated differently” Finally, the Hon’ble High Court used the extraordinary power and modified it to reduce to the stage of  5500/- in the scale of  5500- 9000/- in the post of Travelling Ticket Inspector for a period of two years with recurring effect.

IN THE HIGH COURT OF JUDICATURE FOR THE STATE OF TELANGANA WRIT PETITION NOS.21082 OF 2005 & 1635 OF 2006 W.P.No.210805: Union of India rep.by its General Manager South Central Railway Now South Western Railway Hubli and two others. ….. Petitioners and Sri Y.R.Gettiyawar s o.Ramappa Aged 45 years occu: Head Travelling Ticket Examiner Hubli. DATE OF JUDGMENT PRONOUNCED 25.11.2021 THE HON’BLE SRI JUSTICE P.NAVEEN RAO THE HON’BLE SMT JUSTICE P.SREE SUDHA 1. Whether Reporters of Local Newspapers : No may be allowed to see the Judgments 2. Whether the copies of judgment may be : Yes marked to Law Reporters Journals 3. Whether Their Lordship wish to see the fair copy of the Judgment : No PNR J & PSS J WP Nos.210805 & 16306 HONOURABLE SRI JUSTICE P.NAVEEN RAO HONOURABLE SMT JUSTICE P.SREE SUDHA + WRIT PETITION NOS.21082 OF 2005 & 1635 OF 2006 25.11.2021 WP No.210805: Union of India rep.by its General Manager South Central Railway Now South Western Railway Hubli and two others. Vs. Sri Y.R.Gettiyawar s o.Ramappa Aged 45 years occu: Head Travelling Ticket Examiner Hubli. … Petitioners …. Respondent standing counsel for Railways for petitioners in W.P.No.21082 of 2005 and Mr. Siva learned counsel for Petitioner in WP No.1635 of 2006. Counsel for the petitioner(s) : Mr. P.Bhaskar learned Counsel for the Respondent(s): Mr. Siva learned counsel for Gist : Head Note: Cases referred: 2002SLR 595 1995) 6 SCC 749 1999SCC 257 2021 SCCOnline SC 1041 2013) 12 SCC 372 Respondent in WP No.21082 of 2005 and Mr.P.Bhaskar learned standing Counsel for Railways for respondents in WP No.1653 of 2006 PNR J & PSS J WP Nos.210805 & 16306 HONOURABLE SRI JUSTICE P.NAVEEN RAO HONOURABLE SMT JUSTICE P.SREE SUDHA WRIT PETITION NOS.21082 OF 2005 & 1635 OF 2006 COMMON ORDER:The parties are referred to as arrayed before the Central Administrative Tribunal. Heard Mr. Siva learned counsel for the applicant and the Mr.P.Bhaskar learned standing counsel for Railways. Applicant joins service as Ticket Collector and earned promotions as Travelling Ticket Examiner Head Travelling Ticket Examinerand Travelling Ticket Inspector5000 8000 and scale of pay of Travelling Ticket Examiner was5500 9000 . On the allegation of committing misconduct while working as HTTE disciplinary proceedings were initiated against applicant. First charge memo was issued on 3 11.03.1988 and on 8 14.09.1988 revised charge memo was issued containing three charges. The substance of the allegation of first charge is deliberately with an intention to mislead the gullible public applicant allowed two passengers by name V.S.Kulkarni and P.K.Kurlarni in S 4 compartment by collecting an amount of 50 from them not issuing receipts with an intention to appropriate the money for his personal use. The allegation in second charge is though he produced correctly the private and railway cash in the Vigilance Check at the first instance he subsequently produced excess and unaccounted amount of PNR J & PSS J WP Nos.210805 & 16306 301 from his pocket which included the unauthorized amount of cid:31) 50 from two passengers. The allegation in third charge is on 19 20.05.1993 he allowed a passenger travelling with ticket bearing No.34013 Ex.UBL SURM dated 16.05.1993 though the ticket was no longer valid. In the domestic enquiry the Enquiry Officer held all three charges as proved. Based on the findings recorded by the Enquiry Officer the Disciplinary Authority imposed punishment of removal from service. On appeal the Appellate Authority affirmed the said punishment. In the revision preferred by the applicant the Revisional Authority modified the punishment to that of reduction to a lower post grade of HTTE in the scale of5000 8000 fixing his pay at the minimum of the scale i.e. 5000 for a period of five years with recurring effect. Challenging the said order of the Revisional Authority applicant filed O.A.No.672 of 2002. By order dated 24.06.2005 the Central Administrative Tribunal partly allowed the O.A. setting aside the order of the revisional authority dated 25.06.2001 and remanded the matter to the Revisional Authority to pass orders strictly in accordance with the Rule 6 of the Railway Servants Discipline & Appeal) Rules 1968the Hon’ble Supreme Court held that specifying the pay to be drawn by an employee in the reduced scale or grade is in accord with the provision contained in Rule 6 of the Rules 1968. This was not appreciated by the Tribunal. While holding that the applicant was found guilty of the charges levelled against him the Revisional Authority thought it fit to modify the punishment of removal from service to that of reduction. Once charge is held proved it is no more permissible for the Court to interfere on the nature of punishment imposed by the employer. The law is well settled on this aspect. He therefore submits that in the facts of this case punishment imposed by the Revisional Authority is just and proportionate and do not warrant interference. 12. We have gone through the record and carefully considered the respective submissions. Having regard to the orders passed by the Revisional Authority the issue is in very narrow compass. PNR J & PSS J WP Nos.210805 & 16306 13. Having regard to law laid down by the Hon’ble Supreme Court in G.Veerasamy we are in agreement with the submission of learned counsel for respondent Railways on specifying the stage of fixing the pay in the lower scale or grade. The Hon’ble Tribunal erred in holding otherwise. However the matter does not rest here. 14. Though the Enquiry Officer held all the three charges are proved as accepted by the Disciplinary Authority and the Appellate Authority the Revisional Authority reassessed the evidence brought on record and recorded his findings. On first charge the Revisional Authority found that of the two passengers Mr. P.K.Kulkarni though initially stated that he paid 25 to applicant he turned hostile and denied payment of the amount. Further Mr. V.S. Kurlarni did not attend to the enquiry. The Revisional Authority therefore observed that “as one of the two prosecution witnesses had denied making of payment of25 and other prosecution witness did not attend the inquiry proceedings the Article I of the charge looses its ground and evidentiary value”. 15. With reference to the allegation in Article II the Revisional Authority accepted the defence of the applicant that at the last minute his neighbour handed over300 to him to purchase two blankets from Solapur and therefore it was not reflected in the declaration given by him before boarding the Train. The Revisional Authority held “from the foregoing the undersigned is of the opinion that the plea of the charged employee is acceptable even though he had remitted the excess amount to the Railways fearing complications resulting out of Vigilance Check.” He therefore observed that it was at the most amount to an act of negligence in not getting certified the PNR J & PSS J WP Nos.210805 & 16306 excess amount by a Supervisor at Station or in train which can be treated as a procedural lapse. The Revisional Authority also negatived the observation of the Enquiry Officer about tutoring the witnesses as it was not substantiated by any evidence and held “does not stand for reasoning”. 16. With reference to the Article III the explanation offered by the applicant why he could not check the ticket held by the passenger was accepted. The Revisional Authority observed that though officers forming part of Vigilance Team were required to collect penal charges from the passenger for travelling on a lapsed ticket they did not penalize him. Thus they are equally responsible whereas only against applicant action was initiated. He has noted that no explanation was offered by the prosecution on this selective action. He observes that both have to be made responsible and sustained the third charge partially. In view of these findings of the Revisional Authority though charges as alleged were very grave they stood diluted. Further on charge III the officers forming part of the Vigilance Team were also responsible for reasons best known no action was taken against the Vigilance Team. Only applicant was singled out. The Court cannot countenance the arbitrary exercise of power and action by the Disciplinary Authority treating the two employees similarly situated differently as held by the Hon’ble Supreme Court in K.Sukhendar Reddy Vs State of A.P. and another3. 18. While holding that the charges are not proved fully and holding that the punishment of removal from service is excessive PNR J & PSS J WP Nos.210805 & 16306 and disproportionate the Revisional Authority resorted to impose punishment of reduction to a lower post grade fixing the pay at the minimum of the time scale of lower post. This has two fold effect on the applicant. First he was reverted from higher post to lower post and second in view of fixing his pay in the lower grade at 5000 on restoration after five years also his pay would be fixed at5000 and would progress upwards from that stage for remainder of his service. Therefore punishment imposed is too harsh when compared to finding recorded by the Revisional Authority. Thus on this ground punishment is not sustainable. In addition in our opinion proceeding against the applicant alone on the delinquency forming part of Article III while letting off the officers forming part of the Vigilance Team is arbitrary and discriminatory. We are therefore of the opinion that the punishment imposed against the applicant is not sustainable. 19. Having held so what is the course to be adopted by the Court is the next aspect requiring consideration. Ordinarily whenever the Court opines that the punishment imposed is harsh and disproportionate the Court should remit it to the competent authority to impose appropriate punishment. However there are exceptions carved out to this course. In B.C.Chaturvedi the Hon’ble Supreme Court while cautioning the High Courts against substituting the punishment and holding that it should be left to the discretion of the competent authority to impose appropriate punishment also held that in the given circumstances of a case and to put quietus to the litigation the writ Court may exercise its extraordinary PNR J & PSS J WP Nos.210805 & 16306 jurisdiction and prescribe appropriate punishment commensurate with the delinquency alleged and proved. This principle is consistently followed in all subsequent decisions by the Hon’ble Supreme Court. In Union of India and others vs. Ex. Constable Ram Karan4 the Hon’ble Supreme Court extracted the principles summarized in the decision in Lucknow Kshetriya Gramin Bank vs. Rajendra Singh5. Paragraph 25 reads as under: “25. It has been further examined by this Court in Lucknow Kshetriya Gramin Bank v. Rajendra Singh :12 SCC 372 as under:— “19. The principles discussed above can be summed up and summarised as follows: 19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities. 19.2. The courts cannot assume the function of disciplinary departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded as this function is exclusively within the jurisdiction of the competent authority. 19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority only in cases where such penalty is found to be shocking to the conscience of the court. 19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case. 19.5. The only exception to the principle stated in para 19.4 above would be in those cases where the co delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co delinquent are equally placed. However there has to be a complete parity between the two not only in respect of nature of PNR J & PSS J WP Nos.210805 & 16306 charge but subsequent conduct as well after the service of charge sheet in the two cases. If the co delinquent accepts the charges indicating remorse with unqualified apology lesser punishment to him would be justifiable.” After taking due note of the view expressed by the Hon’ble Supreme Court in B.C.Chaturvedi the Hon’ble Supreme Court further held: “22. The well ingrained principle of law is that it is the disciplinary authority or the appellate authority in appeal which is to decide the nature of punishment to be given to the delinquent employee. Keeping in view the seriousness of the misconduct committed by such an employee it is not open for the Courts to assume and usurp the function of the disciplinary authority. 23. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the Court normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the Courts would frown upon. Even in such a case after setting aside the penalty order it is to be left to the disciplinary appellate authority to take a call and it is not for the Court to substitute its decision by prescribing the quantum of punishment. However it is only in rare and exceptional cases where the court might to shorten the litigation may think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority that too after assigning cogent reasons.” 23. From the precedent decisions two principles can be culled out. Firstly in the ordinary circumstances whenever the Court is of the opinion that the punishment imposed in the disciplinary proceedings is disproportionate to the delinquency alleged and proved the Court should ordinarily remit the matter for imposing appropriate punishment and the Court should not take on itself the task of prescribing any particular punishment. This is in recognition of well settled principle that it is the prerogative of the PNR J & PSS J WP Nos.210805 & 16306 employer to take disciplinary action against his employee and to impose appropriate punishment as deemed fit by the employer having regard to the delinquency alleged against his employee. Secondly the Constitutional Courts have carved out an exception to this solitary principle. In given facts of a case and to shorten the litigation this Court can take up the task of prescribing appropriate punishment. 24. Coming back to the facts of this case as noted above the disciplinary proceedings date back to 1998 that resulted in imposing punishment of removal initially modified to that of reduction in grade by the order of the Revisional Authority dated 11.06.2001. On a challenge the Tribunal partly allowed the O.A.No.6702 holding that punishment imposed against the applicant amounts to double punishment and not prescribed in Rule 6 of Rules 1968. The Tribunal has not appreciated the contentions urged by the applicant on the finding recorded by the Revisional Authority. In writ petition No.210805 filed by the Railways this Court stayed the decision of the Tribunal. Therefore the issue stands as at the stage of order of the Revisional Authority dated 11.06.2001. the meantime applicant retired from service. Taking due regard to the chronology of events at this stage remanding the matter to the Revisional Authority to review the punishment imposed by him and to impose lesser punishment is not just and equitable. Therefore in the peculiar facts of these cases we are inclined to adopt the middle course as held by the Hon’ble Supreme Court in B.C.Chaturvedi supra). PNR J & PSS J WP Nos.210805 & 16306 If two employees are alleged to have committed delinquency forming part of Article III but only one employee is proceeded and visited with a grave punishment whereas another employee is let off the Court can hold such action as amounting to arbitrary exercise of power and authority. Taking due note of this aspect also and having regard to the conclusion recorded by the Revisional Authority in his order dated 11.06.2001 and in the peculiar facts of these cases in our considered opinion the Court should prescribe appropriate punishment commensurate to the delinquency alleged and proved. In the facts of these cases the punishment of reduction to lower post grade of HTTE in the scale of5000 8000 fixing his pay at the minimum of the scale of 5000 8000 is modified to that of reduction to the stage of5500 in the scale of5500 9000 in the post of Travelling Ticket Inspector for a period of two years with recurring effect. 27. The Writ Petition No.21082 of 2005 and W.P.No.1635 of 2006 are disposed of accordingly. Pending miscellaneous petitions if any shall stand closed. JUSTICE P.NAVEEN RAO JUSTICE P.SREE SUDHA Date: 25.11.2021 Note: L.R. copy to be marked : Yes Kkm PNR J & PSS J WP Nos.210805 & 16306 HONOURABLE SRI JUSTICE P.NAVEEN RAO HONOURABLE SMT JUSTICE P.SREE SUDHA WRIT PETITION NOS.21082 OF 2005 & 1635 OF 2006 Date: 25.11.2021

Advantage not to be taken of minority educational institution certificate obtained after committing default in complying with the directives which were already issued much prior to the date of such certificate : Bombay High Court

Educational institutions are required to follow the necessary rules and regulations regarding admissions. However these institutions should not skirt around or evade these rules and regulations that were made to protect the general public. This was held in the judgment passed by a two bench judge comprising HON’BLE MR. JUSTICE R. D. DHANUKA AND JUSTICE R.I.CHAGLA, in the matter of Ashish Patel V. Edubridge International School, Chankya Gyan Kendra, dealt with an issue where the petitioner filed for an order and directions against the respondents to forthwith grant admission to his son as per the allotment letter issued to the petitioner by the competent authorities under the Right to Education Act, 2009 in Standard I during the academic year 2020-21 or 2021-22. The petitioner’s son was issued a certificate of disability of persons with autism sometime in the year 2019, the petitioner applied for online admission of his son under the Right to Education Act, 2009. On 10th April, 2019, the respondents issued a letter of allotment under the provisions of Right to Education Act, 2009 thereby granting admission to the petitioner in the respondent no.1 school for the 1st standard English Medium. Counsel for the petitioner invited attention to various documents annexed to the petition and submitted that the respondent no.1 had included its name on the portal under the Right to Education Act, 2009 and based on the name having appeared on the portal, the competent authority had directed the respondent no.1 to grant admission to the petitioner under the 25% reservation under the Right to Education Act, 2009 as far back as on 10th April, 2019. He submitted that though the petitioner had approached the respondent no.1 school, no admission was granted to the son of the petitioner by the respondent no.1. Counsel for the respondent no.1 on the other hand submitted that the petitioner is not entitled to be admitted in the respondent no.1 school on the ground that the respondent no.1 being a minority unaided educational institution managed by the respondent no.2 which is a public charitable trust. Counsel submitted that the provisions of Right to Education Act, 2009 does not apply to the minority educational institution under the provisions of the National Commission for Minority Educational Institutions Act, 2004. It is submitted that the State of Maharashtra had granted certificate in favour of the respondent no.2 granting status of minority educational institution on 17th February, 2020.

on 05 08 2021 on 06 08 KVM1 942 WP 624 OF 2021.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONWRIT PETITION NO. 624 OF 2021 Ashish Patel)Father of Master Rasesh Patel )Shiv Tapi B Wing 3 33 HG Road )Gamdevi Mumbai 400 007)….. PetitionerVERSUS1. Edubridge International School)Wadilal A Patel Marg )Grant Road East Mumbai 400 007)(through the Principal))2. Chankya Gyan Kendra )301 B Wing Poonam Chambers )Shiv Sagar Estate Dr.Annie Besant Road)Worli Mumbai 400 018)(thro’ the Chairman))3. The State of Maharashtra )through Deputy Director of Education)Mumbai Region having office at)Jawahar Bal Bhavan )Netaji Subhash Road Charni Road )Mumbai 400 004)4. The Education Inspector )Mumbai South Zone E Vita )Impress Bldg. G.D.Ambekar Road )Parel Village Parel Mumbai 400 012)….. RespondentsMr.C.R.Sadasivan a w. Mr.Anup Dhannawat for the Petitioner.Mr.Pradeep Bakhru a w. Ms.Upasana Vasu i b. M s.Wadia Ghandy &Co. for the Respondent nos. 1 and 2.Mr.Milind More Additional Government Pleader for the State Respondent nos. 3 and 4. on 05 08 2021 on 06 08 KVM2 942 WP 624 OF 2021.docCORAM: R. D. DHANUKA AND R.I.CHAGLA JJ. DATE : 5th AUGUST 2021 : Rule. Learned A.G.P. waives service for the respondent nos. 3and 4. Mr.Bakhru learned counsel for the respondent nos. 1 and 2waives service. By consent of parties writ petition is heard finally.2. By this petition filed under Article 226 of the Constitution ofIndia the petitioner has prayed for an order and directions against therespondent nos. 1 and 2 to forthwith grant admission to his son MasterRasesh Ashish Patel as per the allotment letter issued to the petitionerby the competent authorities under the Right to Education Act 2009 inStandard I during the academic year 2020 21 or 2021 22.3.The petitioner’s son was issued a certificate of disability ofpersons with autism by Nair Hospital on 16th October 2018. Sometimein the year 2019 he petitioner applied for online admission of his sonunder the Right to Education Act 2009.4.On 10th April 2019 the respondent nos. 3 and 4 issued a letter ofallotment under the provisions of Right to Education Act 2009 on 05 08 2021 on 06 08 KVM3 942 WP 624 OF 2021.docthereby granting admission to the petitioner in the respondent no.1school for the 1st standard English Medium. It was clearly providedthat the applicant was to verify the documents before the committeebetween 11th April 2019 to 26th April 2019. It is the case of thepetitioner that the competent authority vide letter dated 11th April 2019informed the respondent no.1 school directing the said school to grantadmission to the petitioner under the provisions of Right to EducationAct 2009 in the said school after verifying the documents submittedbefore the committee.5.The petitioner made a representation to the Maharashtra StateCommission for Protection of Child Rights. Vide letter dated 14thOctober 2019 the Maharashtra State Commission for Protection ofChild Rights addressed a letter to the Education Inspector inviting hisattention to the provisions of Right to Education Act 2009 anddirecting the local Grievance Settlement Committee for redressal of thecomplaint at the local level.6.The petitioner thereafter made a representation to the EducationDepartment vide letter dated 19th August 2019 informing that thoughthe petitioner had visited the respondent no.1 school in the month ofAugust 2019 the Administrative Officer of the school refused to grant on 05 08 2021 on 06 08 KVM4 942 WP 624 OF 2021.docadmission to the petitioner inspite of the letter of allotment issued bythe authority. The petitioner thus filed this writ petition.7.Mr.Sadasivan learned counsel for the petitioner invited ourattention to various documents annexed to the petition and wouldsubmit that the respondent no.1 had included its name on the portalunder the Right to Education Act 2009 and based on the name havingappeared on the portal the competent authority had directed therespondent no.1 to grant admission to the petitioner under the 25%reservation under the Right to Education Act 2009 as far back as on10th April 2019. He submits that though the petitioner had approachedthe respondent no.1 school no admission was granted to the son of thepetitioner by the respondent no.1.8.It is submitted that the directives issued by the Education Officerto grant admission under the 25% quota under the provisions of Rightto Education Act 2009 is binding on the respondent no.1.9.Mr.Bakhru learned counsel for the respondent no.1 on the otherhand would submit that the petitioner is not entitled to be admitted inthe respondent no.1 school on the ground that the respondent no.1being a minority unaided educational institution managed by the on 05 08 2021 on 06 08 KVM5 942 WP 624 OF 2021.docrespondent no.2 which is a public charitable trust. He submits that therespondent no.2 had applied to the Government of Maharashtra Minorities Development Department under the provisions of theNational Commission for Minority Educational Institutions Act 2004for the status of Minority Educational Institution within the meaning ofsection 2(g) of the said Act. The Government of Maharashtra hasconferred the respondent no.2 with the status of the minorityeducational institution within the meaning of section 2(g) of the saidAct vide certificate dated 17th February 2020. 10.It is submitted by the learned counsel that the provisions of Rightto Education Act 2009 does not apply to the minority educationalinstitution under the provisions of the National Commission forMinority Educational Institutions Act 2004. It is submitted thatthough the State of Maharashtra had granted certificate in favour of therespondent no.2 granting status of minority educational institution on17th February 2020 the said status would relate back to the date ofincorporation of the said institute. In support of this submission learned counsel invited our attention to the paragraphof theaffidavit in reply and would rely upon the authorities cited therein. on 05 08 2021 on 06 08 KVM6 942 WP 624 OF 2021.doc11.A perusal of the record indicates that the respondent no.2 hasbeen granted certificate of ‘minority educational institution’ within themeaning of section 2(g) of the National Commission for MinorityEducational Institutions Act 2004 on 17th February 2020. It is not indispute that the respondent nos.1 and 2 were issued a letter in favour ofthe petitioner for granting admission to the son of the petitioner in therespondent no.1 school much prior to the date of such certificate dated17th February 2020. The respondent nos. 1 and 2 were thus required tocomply with the said directives issued by the competent authoritywithin the time prescribed therein which was much prior to the saiddate of the said certificate issued in favour of the respondent no.2institute under the provisions of National Commission for MinorityEducational Institutions Act 2004. 12.The respondent nos. 1 and 2 having committed default in notcomplying with the directives issued by the Education Departmentbefore the date of obtaining such certificate dated 17th February 2020cannot be allowed to now urge that such certificate having been issuedsubsequently the default already committed by them stood condoned. 13.Upon raising a querry upon the learned counsel for therespondent nos. 1 and 2 whether any other students had been admitted on 05 08 2021 on 06 08 KVM7 942 WP 624 OF 2021.docby the respondent nos. 1 and 2 prior to the date of obtaining suchcertificate dated 17th February 2020 under the provisions of the Rightto Education Act 2009 learned counsel fairly on instructions statesthat four students were admitted prior to 17th February 2020 based onthe directives issued by the Education Department under the provisionsof the Right to Education Act 2009. 14.Upon raising further querry with the learned counsel that if therespondent nos. 1 and 2 would have complied with the directivesissued by the competent authority prior to the date of 17th February 2020 for the academic year 2019 20 as directed by the EducationDepartment whether the respondent nos. 1 and 2 could have cancelledthe admission of the son of the petitioner. learned counsel for therespondent nos. 1 and 2 could not dispute that the respondent nos. 1and 2 could not have cancelled the admission once granted to thepetitioner on the ground of minority status granted subsequently. 15.In our view the respondent nos. 1 and 2 cannot be allowed totake advantage of such certificate obtained after committing default incomplying with the directives which were already issued much prior tothe date of such certificate. The disobedience of the directives issuedby the Education Department cannot be condoned by obtaining on 05 08 2021 on 06 08 KVM8 942 WP 624 OF 2021.doccertificate as minority education institution subsequently.16.Insofar as submission of the learned counsel for the respondentnos. 1 and 2 that the name of the respondent no.1 was included on theportal by the authority on the premise that the respondent no.2 was notconferred with any such minority status at that point of time isconcerned we are inclined to accept the submission made by thelearned counsel for the petitioner that the name of the respondent no.1was included on the portal not by the Education Department but by therespondent no.1 on its own.17.A perusal of the medical certificate annexed by the petitioner atpage 21 indicates that the recommendations made by the Departmentof Psychiatry is that the son of the petitioner should continue in aregular school with various further advise. 18.We accordingly direct the respondent nos. 1 and 2 to complywith the directives issued by the Education Department on 11th April 2019 annexed at page 25 read with letter dated 10th April 2019 and togrant admission to the son of the petitioner Master Rasesh Ashish Patelin the respondent no.1 school within one week from today on thepetitioner complying with the other legal requisitions if any. on 05 08 2021 on 06 08 KVM9 942 WP 624 OF 2021.doc19.Learned counsel for the respondent nos. 1 and 2 prays for stay ofthe operation of this order. Application for stay is rejected.20.Writ petition is disposed of in the aforesaid terms. Rule is madeabsolute in the aforesaid terms. No order as to costs.21.The parties to act on the authenticated copy of this order.[R.I.CHAGLA J.]

Intermediate quantities of narcotic drugs will not be subject to rigours of Section 37 of NDPS Act: High Court of Himachal Pradesh

Section 37 of the Narcotic Drugs and Psychotrophic Substances Act 1985 (NDPS) makes offences cognizable and non-bailable, however this is only applicable in cases with commercial quantities of the substance and not for intermediate or small quantities. A single member bench of Justice Anoop Chitkara of the Himachal Pradesh High Court passed a judgement in the case of Arvind Kumar v The State of Himachal Pradesh [Cr.MP(M) No: 990 of 2021] on 4th June 2021 related to the possession of intermediate quantities of narcotic drugs. The petitioner, Arvind Kumar is a habitual offender under the Narcotic Drugs and Psychotrophic Substances Act 1985; he was arrested on 9th June 2021 for possession of 334 grams of Charas. In the case of Charas, only quantities above 1kg can be considered as a commercial quantity. The petitioner approached the high court for bail in this matter contending that incarceration before his guilt was established would be a grave injustice to both him and his family and that the court should grant him bail as the matter was still being adjudicated upon. Whereas the state contended that his record as a habitual offender should be considered and he should be denied bail due to the same. The court cited the case of Sami Ullaha v Superintendent Narcotic Control Bureau, [(2008) 16 SCC 471] where the Supreme Court declared that rigours of the provisions of Section 37 of the NDPS act cannot to be justified in cases of intermediate possession of narcotic substances. The case of Sunny Kapoor v State of Himachal Pradesh [CrMPM 2168 of 2020] was also cited, where it was established that any quantity that is less than commercial does not warrant the rigours of Section 37 of the NDPS meaning the grant of bail is acceptable and the accused cannot be sentenced to more than 10 years of imprisonment. The court noted that the quantity of charas which the petitioner was in possession of was only around one third of the commercial quantity and still fell under intermediate quantity, however decided to impose certain conditions to the bail granted such as bond, sureties, regular attendance in court and full cooperation in the investigation of the case.

Hig h C o urt of H.P on 06 06 CIS 1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACr.MP(M) No. 9921Date of Decision: 04.06.2021.Arvind Kumar ...Petitioner.VersusState of Himachal Pradesh ...Respondent.Coram:The Hon’ble Mr. Justice Anoop Chitkara Judge.Whether approved for reporting 1 No .____________________________________________________________________For the petitioner:Mr. Sanjeev Kumar Suri Advocate. For the respondent:Mr. Nand Lal Thakur Additional Advocate General.THROUGH VIDEO CONFERENCEFIR No.DatedPolice StationSections58 20219.4.2021Hamirpur District Hamirpur H.P.20 29 61 85 ofNarcotics Drugsand PsychotropicSubstances Act 1985.Anoop Chitkara Judge A habitual offender under Narcotics Drugs and PsychotropicSubstances Act 1985is once again in prison w.e.f. 9 4 2021 forpossessing 334 grams of charas and has now come up before this Court underSection 439 of Cr.PC seeking bail on the grounds that the quantity of contrabandallegedly seized is intermediate quantity and does not restrict bail because thequantity greater than 1 kilogram of charas falls in the category of the commercialquantity hence the restrictions for bail imposed in Section 37 of NDPS Act do notapply and in the present case he is in custody for a considerable time.2.Earlier the petitioner had filed the following bailpetition:1Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 06 06 CIS 2Bail application No. 521 before the Court of learned Special Judge Hamirpur H.P. stood dismissed on 17.05.2021.3. Para No.6 of the bail petition and status reportmention the following criminal history:(a)That FIR No.135 2020 for theoffence under Sections 20 & 29 ofNDPS Act is pendingfor adjudication before the learned TrialCourt. 4. Briefly the allegations against the petitioner arethat on 9.4.2021 the police officials were patrolling in theirjurisdiction. At around 6.50 P.M. while checking traffic at Dhaned the police officials noticed one Alto Car coming from Dhanedside which was signaled to stop. The driver of the car becameperplexed and further police officials asked him to show thedocuments then he became more perplexed. One person was alsositting on the front seat of the car. The Investigator got suspiciousfor some contraband being concealed in the car and he intended tosearch it. Thus he stopped one truck and associated his driver asan independent witness. Local Pradhan was also associated as awitness. In the presence of independent witnesses InvestigatingOfficer inquired about the name of the driver who revealed hisname as Rajiv Kumar. The person sitting on the adjacent seatrevealed his name as Arvind Kumar petitioner herein. On thesearch of the car from its dash board the police recovered 334grms of charas. After that the Investigator arrested both thepersons and conducted other procedural requirements. Based onthese allegations the Police registered the FIR mentioned above. Hig h C o urt of H.P on 06 06 CIS 3 5. Ld. Counsel for the petitioner contends thatincarceration before the proof of guilt would cause grave injusticeto the petitioner and family.6. On the contrary the contention on behalf of theState is that the accused is a proven habitual offender and givenhis past conduct he is likely to repeat the offence. He furtherinsists that if this Court is inclined to grant bail then such a bondmust be subject to very stringent conditions.REASONING:7. The quantity of the contraband is 334 grams ofcharas which is just 1 3rd of commercial quantity. The petitioner isin custody for around two months and as such furtherincarceration would not be justified. 8. In Sami Ullaha v Superintendent NarcoticControl Bureau 16 SCC 471 the Hon’ble Supreme Courtholds that in intermediate quantity the rigors of the provisions ofSection 37 may not be justified. In Sunny Kapoor v State of HP CrMPM 21620 this Court observed that whenthe quantity is less than commercial the rigors of Section 37 ofthe NDPS Act will not attract and factors become similar to bailpetitions under regular statutes. Thus when the maximumsentence cannot exceed ten years and the accused is yet to beproved guilty the grant of bail is normal unless the Prosecutionpoints towards the exceptional circumstances negating the bail. 9. The possibility of the accused influencing theinvestigation tampering with evidence intimidating witnesses and the likelihood of fleeing justice can be taken care of byimposing elaborative and stringent conditions. In SushilaAggarwal 5 SCC 1 Para 92 the Constitutional Benchheld that unusually subject to the evidence produced the Courtscan impose restrictive conditions.10. In Sunny Kapoor v State of HP CrMPM21620 this Court after considering the Hig h C o urt of H.P on 06 06 CIS 4 relevant judicial precedents observed that in reckoning the numberof cases as criminal history the prosecutions resulting in acquittalor discharge or when Courts quashed the FIR the prosecutionstands withdrawn or Prosecution filed a closure report cannot beincluded. The criminal history must be of cases where the accusedwas convicted including the suspended sentences and all pendingFirst Information Reports wherein the bail petitioner standsarraigned as an accused. While considering each bail petition ofthe accused with a criminal history it throws an onerousresponsibility upon the Courts to act judiciously withreasonableness because arbitrariness is the antithesis of law.Although crime is to be despised and not the criminal yet for arecidivist the contours of a playing field are marshy and graverthe criminal history slushier the puddles.11. One similar case is also pending against thepetitioner but this Court is inclined to grant a final opportunity tothe petitioner to reform. It is clarified that in case he repeats theoffence then it would be taken seriously. 12. Without commenting on the case s merits giventhe investigation stage the period of incarceration alreadyundergone and the circumstances peculiar to this case thepetitioner makes a case for release on bail.13. Given the above reasoning the Court isgranting bail to the petitioner subject to strict terms andconditions which shall be over and above and irrespective of thecontents of the form of bail bonds in chapter XXXIII of CrPC 1973.14. In Manish Lal Shrivastava v State ofHimachal Pradesh CrMPM No. 17320 after analysingjudicial precedents this Court observed that any Court grantingbail with sureties should give a choice to the accused to eitherfurnish surety bonds or give a fixed deposit with a further optionto switch over to another. Hig h C o urt of H.P on 06 06 CIS 5 15. The petitioner shall be released on bail in theFIR mentioned above subject to his furnishing a personal bond ofRs. Ten thousandand shall furnish two suretiesof Rs. Twenty five thousandeach to thesatisfaction of the Judicial Magistrate having the jurisdiction overthe Police Station conducting the investigation and in case of non availability any Ilaqa Magistrate. Before accepting the sureties the concerned Magistrate must satisfy that in case the accusedfails to appear in Court then such sureties are capable to producethe accused before the Court keeping in mind the Jurisprudencebehind the sureties which is to secure the presence of the accused.16. In the alternative the petitioner may furnisha personal bond of Rs. Ten thousandand fixeddeposit(s) for Rs. Ten thousand onlymade infavour of Chief Judicial Magistrate of the concerned district. a)Such Fixed deposits may be made from any of the banks where the stakeof the State is more than 50% or any of the stable private banks e.g. HDFCBank ICICI Bank Kotak Mahindra Bank etc. with the clause of automaticrenewal of principal and liberty of the interest reverting to the linked account. b)Such a fixed deposit need not necessarily be made from the account ofthe petitioner and need not be a single fixed deposit. c)If such a fixed deposit is made in physical form i.e. on paper then theoriginal receipt shall be handed over to the concerned Court. d)If made online then its printout attested by any Advocate and ifpossible countersigned by the accused shall be filed and the depositor shallget the online liquidation disabled. e)The petitioner or his Advocate shall inform at the earliest to theconcerned branch of the bank that it has been tendered as surety. Suchinformation be sent either by e mail or by post courier about the fixed deposit whether made on paper or in any other mode along with its number as well asFIR number. f)After that the petitioner shall hand over such proof along withendorsement to the concerned Court. Hig h C o urt of H.P on 06 06 CIS 6 g)It shall be total discretion of the petitioner to choose between suretybonds and fixed deposits. It shall also be open for the petitioner to apply forsubstitution of fixed deposit with surety bonds and vice versa. h)Subject to the proceedings under S. 446 CrPC if any the entire amountof fixed deposit along with interest credited if any shall be endorsed returnedto the depositor(s). Such Court shall have a lien over the deposits up to theexpiry of the period mentioned under S. 437 A CrPC 1973 or until dischargedby substitution as the case may be. 17. The furnishing of the personal bonds shall bedeemed acceptance of the following and all other stipulations terms and conditions of this bail order:a)The petitioner to execute a bond for attendance to the concernedCourt(s). Once the trial begins the petitioner shall not in any manner try todelay the proceedings and undertakes to appear before the concerned Courtand to attend the trial on each date unless exempted. In case of an appeal onthis very bond the petitioner also promises to appear before the higher Court interms of Section 437 A CrPC.b)The attesting officer shall on the reverse page of personal bonds mention the permanent address of the petitioner along with the phonenumber(s) WhatsApp numbere mailand details of personalbank account(s)and in case of any change the petitioner shallimmediately and not later than 30 days from such modification intimate aboutthe change of residential address and change of phone numbers WhatsAppnumber e mail accounts to the Police Station of this FIR to the concernedCourt.c)The petitioner shall within thirty days of his release from prison procure a smartphone and inform its IMEI number and other details to theSHO I.O. of the Police station mentioned before. He shall keep the phonelocation GPS always on the “ON” mode. Before replacing his mobile phone he shall produce the existing phone to the SHO I.O. of the police station andgive details of the new phone. Whenever the Investigating officer asks him toshare his location then he shall immediately do so. The petitioner shall neitherclear the location history nor format his phone without permission of the Hig h C o urt of H.P on 06 06 CIS 7 concerned SHO I.O. He shall also not clear the WhatsApp chats and callswithout producing the phone before the concerned SHO I.O.d)The petitioner shall not influence browbeat pressurize make anyinducement threat or promise directly or indirectly to the witnesses thePolice officials or any other person acquainted with the facts of the case todissuade them from disclosing such facts to the Police or the Court or totamper with the evidence.e)The petitioner shall join the investigation as and when called by theInvestigating Officer or any Superior Officer and shall cooperate with theinvestigation at all further stages as may be required. In the event of failure todo so it will be open for the prosecution to seek cancellation of the bail.Whenever the investigation occurs within the police premises the petitionershall not be called before 8 AM and shall be let off before 5 PM and shall notbe subjected to third degree indecent language inhuman treatment etc.f)In addition to standard modes of processing service of summons theconcerned Court may serve or inform the accused about the issuance ofsummons bailable and non bailable warrants the accused through E Mailand any instant messaging service such as WhatsApp etc.No. 3 2020 I.A. No. 48461 2020 July10 2020]: i.At the first instance the Court shall issue the summons. ii.In case the petitioner fails to appear before the Court on the specifieddate in that eventuality the concerned Court may issue bailablewarrants. iii.Finally if the petitioner still fails to put in an appearance in thateventuality the concerned Court may issue Non Bailable Warrants toprocure the petitioner s presence and may send the petitioner to theJudicial custody for a period for which the concerned Court may deemfit and proper to achieve the purpose.18. Given the criminal history the petitioner shall surrender all firearms ammunition if any along with the arms license to the concerned authority within 30days from today. However subject to the provisions of the Indian Arms Act 1959 Hig h C o urt of H.P on 06 06 CIS 8 the petitioner shall be entitled to renew and take it back in case of acquittal in thiscase.19. During the trial s pendency if the petitioner repeats or commits anyoffence where the sentence prescribed is more than seven years or violates anycondition as stipulated in this order it shall always be permissible to the respondentto apply for cancellation of this bail. It shall further be open for any investigatingagency to bring it to the notice of the Court seized of the subsequent application thatthe accused was earlier cautioned not to indulge in criminal activities. Otherwise thebail bonds shall continue to remain in force throughout the trial and after that interms of Section 437 A of the CrPC.20. Any Advocate for the petitioner and the Officer in whose presence thepetitioner puts signatures on personal bonds shall explain all conditions of this bailorder in vernacular and if not feasible in Hindi.21. In case the petitioner finds the bail condition(s) as violatingfundamental human or other rights or causing difficulty due to any situation thenfor modification of such term(s) the petitioner may file a reasoned application beforethis Court and after taking cognizance even to the Court taking cognizance or thetrial Court as the case may be and such Court shall also be competent to modify ordelete any condition.22. This order does not in any manner limit or restrict the rights of thePolice or the investigating agency from further investigation per law.23. Any observation made hereinabove is neither an expression of opinionon the merits of the case nor shall the trial Court advert to these comments.24.In return for the protection from incarceration the Court believes thatthe accused shall also reciprocate through desirable behavior.25. There would be no need for a certified copy of this order forfurnishing bonds. Any Advocate for the petitioner can download this order alongwith the case status from the official web page of this Court and attest it to be a truecopy. In case the attesting officer or the Court wants to verify the authenticity suchan officer can also verify its authenticity and may download and use the downloadedcopy for attesting bonds.The petition stands allowed in the terms mentioned above.Copy Dasti. Hig h C o urt of H.P on 06 06 CIS 9 Judge4th June 2021

Plea for transfer of case cannot be on apprehension – Supreme Court

In the case of Umesh Kumar Sharma Vs State of Uttarakhand &amp; Ors. [Transfer Petition Crl No. 534-536 of 2019] Supreme Court held that only when fair justice is in peril, a plea for transfer might be considered. The present petitions were filed under Section 406 of the Code of Criminal Procedure, 1973 read with Order XXXIX of the Supreme Court Rules seeking transfer of three criminal cases pending before different courts in Dehradun to competent courts in Delhi or some other courts outside the State of Uttarakhand. The petitioner submitted that he apprehends a threat to his life and will be prejudiced in conducting his defense in the courts at Dehradun. The basic premise for such apprehension was on account of his work as an investigative journalist against the Ruling dispensation, the State was targeting the petitioner for vindictive prosecution. It was pointed out that as a journalist the petitioner has conducted sting operations against the Chief Minister, his relatives, and associates in the State of Uttarakhand and therefore he was being targeted for malicious prosecution within the State. The Respondent State submitted that the petitioner has failed to demonstrate how and in what manner, he will be prejudiced if the trials continue in the courts at Dehradun. According to the respondent, the effort of the petitioner was filed only to delay the proceedings. It was also pointed out that since the investigation in all three cases is concluded and the charge sheet has been filed, the apprehension of interference in the cases by the State administration as contended was wholly unfounded. The government advocate then submitted that the transfer of criminal cases should be rare and exception since it impacts the credibility of the Courts in Uttarakhand. The court referred to the list of cases pending against the petitioner. Out of those cases, 17 cases were related to the State of Uttarakhand, 4 cases were from the State of Uttar Pradesh, 5 cases relate to the State of West Bengal, 2 cases were from Delhi out of which one is under investigation of the CBI, and another one at Ranchi, Jharkhand. Whether those cases are without merit or otherwise, can be determined only through trial. However, the numbers do suggest that the petitioner is not an ordinary person. It was also noted that the State had withdrawn prosecution in many cases filed against the petitioner. The court relied on the case of Maneka Sanjay Gandhi vs. Rani Jethmalani (1979) 4 SCC 167, where the three-Judge Bench, had enunciated the law on transfer under Section 406 CrPC with the following observation – “Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances”. The court observed that “The above legal enunciations made it amply clear that transfer power under section 406 of the Code was to be invoked sparingly. The court however will have to be fully satisfied that impartial trial is not possible. Equally important is to verify that the apprehension of not getting a level playing field, is based on some credible material and not just conjectures and surmises. While assurance of a fair trial needs to be respected, the plea for transfer of case should not be entertained on mere apprehension of a hyper sensitive person.” Court further re-iterated that, “While considering a plea for transfer, the convenience of parties would be a relevant consideration. It can’t just be the convenience of the petitioner but also of the Complainant, the Witnesses, the Prosecution besides the larger issue of trial being conducted under the jurisdictional Court. When relative convenience and difficulties of all the parties involved in the process are taken into account, it is clear that the petitioner has failed to make out a credible case for transfer of trial to alternative venues outside the State.” Finally, after hearing both the parties court held that, “When the nature of the three cases are examined, it is seen that two of the cases are property and Will related matters. One of this case is pending for last over a decade. Therefore, this court finds it difficult to accept that the cases are on account of journalistic activities of the petitioner. In view of the forgoing, these Transfer Petitions are dismissed.”

IN THE CRIMINAL ORIGINAL JURISDICTION TRANSFER PETITIONNOS. 534 536 OF 2019 Umesh Kumar Sharma State of Uttarakhand & Ors JUDGMENT Hrishikesh Roy J The present petitions are filed under Section 406 of the Code of Criminal Procedure 1973read with Order XXXIX of the Supreme Court Rules seeking transfer of three criminal cases pending before different courts in Dehradun to competent courts in Delhi or some other courts outside the State of Mr. Kapil Sibal the learned Senior Counsel submits that the petitioner apprehends threat to his life and will be prejudiced in conducting his defense in the courts at Dehradun. The basic premise for such apprehension is that on account of his work as an investigative journalist against the Ruling dispensation the State is targeting the petitioner for vindictive prosecution. It is pointed out that as a journalist the petitioner has conducted sting operations against the Chief Minister his relatives and associates in the State of Uttarakhand and therefore he is being targeted for malicious prosecution within the State. Moreover besides the three cases for which transfer is sought many false cases are foisted against the petitioner. As such the petitioner has a genuine and justifiable apprehension that justice will not be done if the trials are conducted in the courts within the State of Uttarakhand. Therefore those cases be transferred either to the courts in Delhi or to any other competent courts out of Uttarakhand Representing the State of Uttarakhand Ms. Ruchira Gupta the learned counsel however submits that the petitioner has failed to demonstrate how and in what manner he will be prejudiced if the trials continue in the courts at Dehradun. According to her the effort of the petitioner is filed only to delay the proceedings. Since investigation in all three cases are concluded and charge sheet has been filed the apprehension of interference in the cases by the State administration is contended to be wholly unfounded. The government counsel then refers to the large number of witnesses in the cases to point out that all of them are residents of the State of Uttarakhand and therefore it will be wholly irrational to transfer the trials only on the basis of unsubstantiated apprehension by the accused. Rebutting the contention that the petitioner’s life is endangered within the State of Uttarakhand Ms Ruchira Gupta the learned government counsel submits that these petitions are confined to only three cases whereas the petitioner is accused in several other cases pending in the State. Moreover he has himself filed five PILs in the year 2020 itself in the High Court of Uttarakhand and this demonstrates that the petitioner is conducting his affairs without any impediment. The government advocate then submits that the transfer of criminal cases should be rare and exception since it impacts the credibility of the Courts in Uttarakhand. Ms. Gupta submits that some of the criminal cases against the petitioner have been closed and the charges of extortion have been dropped This according to the learned government counsel would clearly demonstrate the unbiased approach of the State Government and the incorrect and bald allegation made by the petitioner Representing the Complainant in the FIR No.100 2018 Mr. Arvind Kumar Shukla learned counsel points out that his client during his service with the petitioner learned that the petitioner is using the cover of journalism to grab property inasmuch as none of the so called sting operations carried out by the petitioner has led to prosecution of anyone in the State of Uttarakhand. The counsel submits that in most of the 29 cases pending against the petitioner the primary charge is grabbing of property and accordingly the counsel argues that the petitioner has put forth a non bonafide plea in order to delay the trial against him Insofar as the FIR No.100 2018 is concerned the Complainant’s lawyer points out that although the so called investigation and sting operations were carried out the petitioner never had any intention of actually exposing corruption in high places. The sting operations commenced in January 2018 but there was no attempt made by the petitioner to telecast the video recordings and only then Complainant realized that the video footage collected with secret camera will be used by the petitioner to blackmail people. That is why on 10.8.2018 the Complainant who was one of the team members under the accused was constrained to file the FIR to expose the nefarious design of the petitioner The counsel then argues that the petitioner has failed to indicate as to how the trial would be prejudiced if they are to be conducted in the courts at Dehradun. Mr. Anupam Lal Das the learned Counsel appearing for the co accused in the FIR No.100 2018 however joins the petitioner in seeking transfer of the said criminal case from the Courts in Uttarakhand Before proceeding any further it would be appropriate to refer to the list of cases pending against the petitioner. Out of those cases 17 cases relate to the State of Uttarakhand 4 cases are from the State of Uttar Pradesh 5 cases relate to the State of West Bengal 2 cases are from Delhi out of which one is under investigation of the CBI and another one at Ranchi Jharkhand Whether those cases are without merit or otherwise can be determined only through trial. However the numbers do suggest that the petitioner is not an ordinary person. It is also important to note that the State has withdrawn prosecution in many cases filed against the petitioner. 9. We also notice that one of the FIR that is being sought to be transferred i.e. FIR No.16 2007 was filed long back in 2007 when the present ruling dispensation in the State of Uttarakhand was nowhere in picture The contents of the allegations in the FIR No.16 2007 registered on 9.2.2007) relates to a property dispute involving the Will of a family member of the petitioner 10. The next FIR No.128 2018is relatable to journalistic activity where the allegation of a core member of the investigative journalism team is that the petitioner in the guise of sting operation by video recording activities of powerful elements) does not air them and the concerned footages are utilized for extraneous purposes. 12. Let us now examine the arguments of the petitioner’s counsel about the petitioner being targeted for malicious prosecution. To demonstrate this aspect the learned senior counsel refers to the pro active steps taken by the public prosecutor to arrest the petitioner by repeatedly approaching the magistrate and then the High Court. Whether the public prosecutor followed the legal process or it was a case of overenthusiasm is an issue which may not be very relevant for the purpose of these transfer petitions This is because the incident happened nearly two years back when the FIR 100 2018 was first registered. More importantly the charge sheet is already filed and the case is scheduled to go for trial in the Dehradun Court. Therefore the role of the State will now be limited to prove the prosecution case before the Trial Court. In such Court controlled proceeding the prosecution will have to marshal their evidence which is to be evaluated by the Presiding Officer of the concerned Court. Therefore the apprehension of malicious prosecution because of the steps taken by the public prosecutor against the petitioner in 2018 is not acceptable. I may also add that our courts are capable of deciding cases on the merits of the 13. On the above aspect the following ratio will have a bearing. In Sidhartha Vashisht Vs. State 6 SCC 1 198 The law in relation to investigation of offences and rights of an accused in our country has developed with the passage of time On the one hand power is vested in the investigating officer to conduct the investigation freely and transparently. Even the courts do not normally have the right to interfere with the investigation. It exclusively falls in the domain of the investigating agency In exceptional cases the High Courts have monitored the investigation but again within a very limited scope. There on the other a duty is cast upon the Prosecutor to ensure that rights of an accused are not infringed and he gets a fair chance to put forward his defence so as to ensure that a guilty does not go scot free while an innocent is not punished. Even in the might of the State the rights of an accused cannot be undermined he must be tried in consonance with the provisions of the constitutional mandate. The cumulative effect of this constitutional philosophy is that both the courts and the investigating agency should operate in their own independent fields while ensuring adherence to basic rule of law.” 14. In Maneka Sanjay Gandhi vs. Rani Jethmalani2 for the three Judge Bench Justice V.R. Krishna Iyer enunciated the law on transfer under Section 406 CrPC with the following observation: “2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to 24 SCC 167 consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini grievances Something more substantial more compelling more imperilling from the point of view of public justice and its attendant environment is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner s grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate when the case against him should be tried. Even so the process of justice should not harass the parties and from that angle the court may weigh the 3. One of the common circumstances alleged in applications for transfer is the avoidance of substantial prejudice to a party or witnesses on account of logistics or like factors especially when an alternative venue will not seriously handicap the complainant and will mitigate the serious difficulties of the accused. In the present case the petitioner claims that both the parties reside in Delhi and some formal witnesses belong to Delhi but the meat of the matter in a case of defamation is something different. The main witnesses are those who speak to having read the offending matter and other relevant circumstances flowing therefrom. They belong to Bombay in this case and the suggestion of the petitioner s counsel that Delhi readers may be substitute witnesses and the complainant may content herself with examining such persons is too presumptuous for serious consideration.” 15. In Abdul Nazar Madan vs. State of T.N. & Anr.3 Justice R.P. Sethi speaking for the Division Bench discussed the scope of power under Section 406 CrPC and “7. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias before any court or even at any place the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration 36 SCC 204 for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution other accused the witnesses and the larger interest of the society.” 16. In R. Balakrishna Pillai vs. State of Kerala4 Justice M.B. Shah in another case for transfer under Section 406 CrPC made the following pertinent “9. . we would further state that in this country there is complete separation of the judiciary from the executive and Judges are not influenced in any manner either by the propaganda or adverse publicity. Cases are decided on the basis of the evidence available on record and the law applicable. Granting such application and transferring the appeal from the High Court of Kerala to the High Court of Karnataka would result in casting unjustified aspersion on the Court having jurisdiction to decide the appeal on the assumption that its judicial verdict is consciously or subconsciously affected by the popular frenzy official wrath or adverse publicity which is not the position qua the 4 7 SCC 129 judicial administration in this country. We would also mention that at the time of hearing the learned counsel has not raised this 17. In Captain Amrinder Singh Vs. Prakash Singh Badal Ors.5 Justice P. Sathasivam as he then was speaking for the three judge Bench on the issue of transfer of criminal cases observed as follows: “48. The analysis of all the materials the transfer of the case as sought for at this stage is not only against the interest of prosecution but also against the interest of the other accused persons the prosecution witnesses and the convenience of all concerned in the 51. We have already pointed out that a mere allegation that there is an apprehension that justice will not be done in a given case alone does not suffice. Considering the totality of all the circumstances we are of the opinion that in a secular democratic Government governed by the rule of law the State of Punjab is responsible for ensuring free fair and impartial trial to the accused notwithstanding 56 SCC 260 the nature of the accusations made against them In the case on hand the apprehension entertained by the petitioners cannot be construed as reasonable one and the case cannot be transferred on a mere allegation that there is apprehension that justice will not be done.” 18. Let us now examine another precedent on transfer of criminal cases. In Nahar Singh Yadav & Others vs. Union of India & Ors.6 Justice D.K. Jain writing for the three Judge Bench discussed the scope of transfer under Section 406 CrPC in the following terms: “22. It is however the trite law that power under Section 406 CrPC has to be construed strictly and is to be exercised sparingly and with great circumspection. It needs little emphasis that a prayer for transfer should be allowed only when there is a well substantiated apprehension that justice will not be dispensed impartially objectively and without any bias. In the absence of any material demonstrating such apprehension this Court will not entertain application for transfer of a trial as any transfer of trial from one State to another implicitly reflects upon the credibility of not only the entire State judiciary but also the prosecuting agency which would include the Public Prosecutors as well.” 6 1 SCC 307 19. On the same line is the decision in Harita Sunil Parab vs. State(NCT of Delhi) & ors7 where Justice Navin Sinha enunciated the law on transfer jurisdiction in the following terms: “8. The apprehension of not getting a fair and impartial enquiry or trial is required to be reasonable and not imaginary based upon conjectures and surmises. No universal or hard and fast rule can be prescribed for deciding a transfer petition which will always have to be decided on the facts of each case. Convenience of a party may be one of the relevant considerations but cannot override all other considerations such as the availability of witnesses exclusively at the original place making it virtually impossible to continue with the trial at the place of transfer and progress of which would naturally be impeded for that reason at the transferred place of trial. The convenience of the parties does not mean the convenience of the petitioner alone who approaches the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution other accused the witnesses and the larger interest of the society. The charge sheet in FIR No. 3516 reveals that of the 40 witnesses the petitioner alone is from Mumbai two are from Ghaziabad and one is from Noida. The charge sheet of FIR No 1742 of 2016 is not on record. A reasonable presumption can be drawn that the position would be similar in the same also.” 76 SCC 358 20. The above legal enunciations make it amply clear that transfer power under section 406 of the Code is to be invoked sparingly. Only when fair justice is in peril a plea for transfer might be considered. The court however will have to be fully satisfied that impartial trial is not possible. Equally important is to verify that the apprehension of not getting a level playing field is based on some credible material and not just conjectures and surmises 21. While assurance of a fair trial needs to be respected the plea for transfer of case should not be entertained on mere apprehension of a hyper sensitive person. In his pleadings and arguments the petitioner in my assessment has failed to demonstrate that because of what he endured in 2018 it is not possible for the courts in the state to dispense justice objectively and without any bias. It can’t also be overlooked that the petitioner is involved in several cases and this year itself has generated few on his own in the state of Uttarakhand. Therefore it is difficult to accept that justice for the petitioner can only be ensured by transfer of three cases mentioned in these petitions. 22. While considering a plea for transfer the convenience of parties would be a relevant consideration. It can’t just be the convenience of the petitioner but also of the Complainant the Witnesses the Prosecution besides the larger issue of trial being conducted under the jurisdictional Court. When relative convenience and difficulties of all the parties involved in the process are taken into account it is clear that the petitioner has failed to make out a credible case for transfer of trial to alternative venues outside the State. 23. The learned senior counsel for the petitioner made it clear that the petitioner is not pointing any fingers towards the courts and his apprehension is based only on the action taken by the State. The transfer of trials from one state to another would inevitably reflect on the credibility of the State’s judiciary and but for compelling factors and clear situation of deprivation of fair justice the transfer power should not be invoked. This case is not perceived to be one of those exceptional categories. 24. When the nature of the three cases are examined it is seen that two of the cases are property and Will related matters. One of this case is pending for last over a decade. Therefore this court finds it difficult to accept that the cases are on account of journalistic activities of the petitioner. In fact the credibility of the journalistic activity of the petitioner is itself questioned by a member of his sting operation team in the third case. In such circumstances the prosecution in the concerned three cases can’t prima facie be said to be on account of malicious prosecution. 25. In view of the forgoing these Transfer Petitions are dismissed. However it is made clear that the observations in this judgment is only for disposal of these petitions and should have no bearing for any [HRISHIKESH ROY OCTOBER 16 2020 Page 2

Sections 269SS and 269T of the Income Tax Act is not applicable in payments made pursuant to an agreement to sell: High Court of Delhi

To curb the increasing cash transactions which are leading to the accumulation of black money, 269SS and 269T were introduced to restrict these cash payments. Applicability of Sections 269SS and 269T of the Income Tax Act pursuant to an agreement to sell was examined by High Court of Delhi, containing Justice Amit Bansal in the matter of Kavita Tushir vs. Pushpraj Dalal [CM(M) 13/2022] on 5.01.2022. The facts of the case are that a suit for specific performance was filed on behalf of the respondent in respect of purchase of the property belonging to the petitioner in New Delhi. The suit was based on an agreement to sell dated 30th June, 2015 which was later superseded by the agreement to sell dated 10th March, 2018. Besides seeking the relief of specific performance in the suit, an alternate relief of recovery of sum of Rs.1.95 crores towards damages was also sought. The suit was filed in March, 2020 and the petitioner filed her written statement along with an application under Order VII Rule 11 of the CPC on 27th March, 2020. The respondent filed his reply to the said application under Order VII Rule 11 of the CPC on 11th January, 2021, to which a replication was filed by the petitioner on 20th March, 2021. The arguments on the application were concluded on 1st April, 2021 and the Trial Court proceeded to decide the same vide the impugned order passed on 21st August, 2021. The Counsel for the petitioner submitted that the plaint is barred by law as the sale transaction, which is the subject matter of the agreement to sell, was not permissible in law. It was alleged in the plaint that Rs.57,00,000 was paid by the respondent to the petitioner in cash, which is barred under the provisions of the Income Tax Act. In this regard, reliance on Sections 269SS and 269T of the Income Tax Act was placed and it was said that all amounts in terms of the agreement to sell have been paid to the sons of the petitioner and not to the petitioner. The Counsel for the respondent contended that the amounts through cheques were paid to the sons of the petitioner as per the instructions of the petitioner herself but the cash amounts were paid to the petitioner herself. The sons were the witnesses to the agreement to sell and the agreement to sell bears their signatures as witnesses also the details with regard to payments have been provided in the plaint and in the agreement to sell. It was submitted that clause 1 of the agreement to sell dated 10th March, 2018 contained the details of the payment already made by the respondent to the petitioner. It has been recorded therein that out of the total sale consideration of Rs. 1,20,00,000 and a sum of Rs.1,10,75,500 haveread judgment.read judgment.read judgment. already been paid by the respondent to the petitioner. Without prejudice to the contention that Sections 269SS and 269T of the Income Tax Act are not applicable in the facts and circumstances of the present case, the payments in cash were made before the said sections became part of the statute.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 5th January 2022. CM(M) 13 2022 KAVITA TUSHIR ..... Petitioner Through: Mr. Gaurav Singh Advocate PUSHPRAJ DALAL Through: Mr. Rajesh Yadav Senior Advocate with Mr. Vikas Sharma Advocate Respondent HON BLE MR. JUSTICE AMIT BANSAL AMIT BANSAL J.VIA VIDEO CONFERENCING] CM No. 428 2022Allowed subject to just all exceptions. The application is disposed of. CM(M) 13 2022 and CM No. 429 2022The present petition under Article 227 of the Constitution of India impugns the order dated 21st August 2021 passed by the Additional District Judge 03Saket New Delhiin Civil Suit bearing CS No.194 2020 whereby the application filed on behalf of petitioner defendant under Order VII Rule 11 of the Code of Civil Procedure 1908has been dismissed. The present petition arises from a suit for specific performance filed CM(M) 13 2022 on behalf of the respondent plaintiff in respect of purchase of the property belonging to the petitioner being a flat located at Ground Floor bearing No. C 6 13 1 at Safdarjung Development Area New Delhi. The suit was based on agreement to sell dated 30th June 2015 which was later superseded by the agreement to sell dated 10th March 2018. Besides seeking the relief of specific performance in the suit an alternate relief of recovery of sum of Rs.1.95 crores towards damages was also sought. The suit was filed in March 2020 and the petitioner filed her written statement along with an application under Order VII Rule 11 of the CPC on 27th March 2020. The respondent filed his reply to the said application under Order VII Rule 11 of the CPC on 11th January 2021 to which a replication was filed by the petitioner on 20th March 2021. The arguments on the application were concluded on 1st April 2021 and the Trial Court proceeded to decide the same vide the impugned order passed on 21st August 2021. The Trial Court vide the impugned order has dismissed the application filed on behalf of the petitioner on the basis that: the grounds raised by the petitioner in the application under Order VII Rule 11 of the CPC are mixed questions of facts and law and are therefore matters of trial. there cannot be any bar in filing the present suit by the respondent against the petitioner on the ground that there has been violation of other laws as averred by the petitioner in the application under Order VII Rule 11 of the CPC and if that is so a separate action can be taken by the petitioner against the respondent. iii) disputed questions raised by the petitioner recording destruction of first agreement to sell and execution of the agreement to sell are matters of trial. CM(M) 13 2022 Counsel appearing on behalf of the petitioner submits that the plaint is barred by law as the sale transaction which is the subject matter of the agreement to sell was not permissible in law it has been alleged in the plaint that Rs.57 00 000 was paid by the respondent to the petitioner in cash which is barred under the provisions of the Income Tax Act. In this regard he places reliance on Sections 269SS and 269T of the Income Tax Act andall amounts in terms of the agreement to sell have been paid to the sons of the petitioner and not to the petitioner. 7. Mr. Rajesh Yadav senior counsel appearing on behalf of the respondent submits thatamounts through cheques were paid to the sons of the petitioner as per the instructions of the petitioner herself but the cash amounts were paid to the petitioner herself the sons were the witnesses to the agreement to sell and the agreement to sell bears their signatures as witnesses the details with regard to payments have been provided in the plaint and in the agreement to sell clause 1 of the agreement to sell dated 10th March 2018 contains the details of the payment already made by the respondent to the petitioner. It has been recorded therein that out of the total sale consideration of Rs.1 20 00 000 a sum of Rs.1 10 75 500 has already been paid by the respondent to the petitioner and without prejudice to the contention that Sections 269SS and 269T of the Income Tax Act are not applicable in the facts and circumstances of the present case the payments in cash were made before the said sections became part of the statute. I have heard the counsels for the parties. It is a settled position of law that while deciding an application under Order VII Rule 11 of the CPC the Court only has to see the averments made in the plaint and the documents filed along with the plaint. Based on the above this Court does not find any CM(M) 13 2022 merit in the submission of the petitioner that the plaint and the documents filed with the plaint do not disclose any cause of action or is barred under any law. This Court is of the prima facie view that Sections 269SS and 269T of the Income Tax Act would not be applicable in the facts of the case as the said Sections deal with loans or deposits made and not payments made pursuant to an agreement to sell. In any case the said Sections became part of the statute only from June 2015. It has been contended on behalf of the respondent that the payments were made prior to the June 2015 and this can only be determined in the trial. Even if it is assumed that the relief of specific performance cannot be granted and that the agreement to sell was not valid in law the respondent has made an alternative prayer for recovery of Rs.1.95 crores towards damages. There cannot be any piecemeal rejection of a plaint under provisions of Order VII Rule 11 of the CPC. Therefore in any case the suit would have to proceed with trial. It appears that all these grounds have been taken by the petitioner only to resile from her obligations under the agreement to sell and to delay the adjudication of the suit. In my view the present petition is completely frivolous and misconceived. Dismissed with costs of Rs.30 000 AMIT BANSAL J. JANUARY 05 2022 CM(M) 13 2022

FIR is not an encyclopaedia: Kerala High Court

FIR cannot be quashed merely on the ground that it fails to provide all the information regarding the commission of a crime. Even if information does not furnish all details, it is for the investigating officer to find out those details during the course of investigation and collect necessary evidence. This principle was upheld by the Kerala High Court presided by J. R. Narayana Pisharadi in the case of Abdunnasar T. vs. State of Kerala [Crl.MC.No.4835 OF 2017(D)]. In the instant case, the offences alleged against the petitioners in FIR are under Sections 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 and Section 120B of the Indian Penal Code. The prosecution case contended that, the first and the second accused, who were officiating as Secretaries of the Feroke Grama Panchayat during the period from 01.01.2012 to 02.07.2013 and 30.07.2014 to 31.07.2015 respectively, hatched a criminal conspiracy with the third accused and pursuant to such conspiracy, they abused their official position and granted building permit, without the approval of the Town Planning Officer, to the third accused in respect of a building constructed in wet land and that they did not impose building tax at threefold rate of the normal rate which should have been imposed and thereby caused huge loss to the Government and corresponding pecuniary gain to the third accused. The case against the petitioners was registered after conducting a preliminary enquiry by the VACB on the basis of the facts revealed in a surprise check. This petition was filed under Section 482 of the CrPC by the petitioners for quashing the FIR. The honorable court held, “Keeping in mind the above principles, at the time of hearing, this Court expressed the view that the allegations in FIR, disclose commission of the offences alleged against the petitioners and therefore, it would not be proper for this Court to quash the FIR. When the case came up for hearing, the learned Public Prosecutor had submitted before this Court that the investigation of the case has reached the final stage. In view of this fact, this Court also expressed the view that, when the investigation of the case had reached the final stage, it should be allowed to reach its logical end.” The court further stated “It is clarified and ordered that pendency of a crime shall not be reckoned for anything against the service matters of the petitioners including their due promotion and other benefits. Consequently, the prayer for quashing FIR is rejected and the petition is dismissed. However, it is made clear that the benefit granted to the petitioners as per the interim order passed by this Court shall be available to them till the date of filing the final report in the case. The petitioners are at liberty to challenge the final report at the appropriate stage, if so advised”

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI THURSDAY THE 04TH DAY OF FEBRUARY 2021 15TH MAGHA 1942 Crl.MC.No.4835 OF 2017(D CRIME NO.18 2016 OF VACB KOZHIKODE Kozhikode PETITIONERS ACCUSED 1 & 2 S O.AMMAD AGED 47 YEARS PILASSERY HOUSE KANNADIKKAL VENGERI P.O. KOZHIKODE 673 010 S O.GANGADHARAN AGED 40 YEARS SUDARSANAM PANOLI MARIKUNNU P.O. KOZHIKODE 673 012 RESPONDENTS STATE & COMPLAINANT STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA KOCHI 682 031 THE DEPUTY SUPERINTENDENT OF POLICE VIGILANCE AND ANTI CORRUPTION BUREAU UNIT KOZHIKODE 673 001 R1 BY ADV. PUBLIC PROSECUTOR SRI B JAYASURYA SR PP THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02.02.2021 THE COURT ON 04.02.2021 PASSED THE FOLLOWING R.NARAYANA PISHARADI J Crl.M.C.No.48317 Dated this the 4th day of February 2021 O R D E R The petitioners are the first and the second accused in the case registered as V.C.No.18 2016 by the Vigilance and Anti Corruption BureauKozhikode. The offences alleged against the petitioners in Annexure I FIR are under Sections 13(1)(d) read with 13(2) of the Prevention of Corruption Act 1988and under Section 120B of the Indian Penal Code The prosecution case is that the first and the second accused who were officiating as Secretaries of the Feroke Grama Panchayat during the period from 01.01.2012 to 02.07.2013 and 30.07.2014 to 31.07.2015 respectively hatched a criminal conspiracy with the third accused and pursuant to such conspiracy they abused their official position and granted building permit without the approval of the Town Planning Officer to the third accused in respect of a building constructed in wet land and that they did not impose building tax at three fold rate of the normal rate which should have been imposed and thereby caused huge loss to the Government and corresponding pecuniary gain to the third accused. The case against the petitioners was registered after conducting a preliminary enquiry by the VACB on the basis of the facts revealed in a surprise check This petition is filed under Section 482 of the Code of Criminal Procedure by the petitioners for quashing Anneuxre I FIR. learned Public Prosecutor Heard the learned counsel for the petitioners and the In Amish Devgan v. Union of India :1 SCC 1 the Apex Court has held as follows “The FIR is not an encyclopaedia disclosing all facts and details relating to the offence. The informant who lodges the report of the offence may not even know the name of the victim or the assailant or how the offence took place. He need not necessarily be an eye witness. What is essential is that the information must disclose the commission of a cognizable offence and the information must provide basis for the police officer to suspect commission of the offence. Thus at this stage it is enough if the police officer on the information given suspects though he may not be convinced or satisfied that a cognizable offence has been committed. Truthfulness of the information would be a matter of investigation and only thereupon the police will be able to report on the truthfulness or otherwise. .......... even if information does not furnish all details it is for the investigating officer to find out those details during the course of investigation and collect necessary evidence. Thus the information disclosing commission of a cognizable offence only sets in motion the investigating machinery with a view to collect necessary evidence and thereafter taking action in accordance with law The true test for a valid FIR ...... is only whether the information furnished provides reason to suspect the commission of an offence which the police officer concerned is empowered under Section 156(1) of the Code of Criminal Procedure to investigate. The questions as to whether the report is true whether it discloses full details regarding the manner of occurrence whether the accused is named or whether there is sufficient evidence to support the allegation are all matters which are alien to consideration of the question whether the report discloses commission of a cognizable offence”. NO.23435 OF 2012 A TRUE COPY OF THE COMMISSION REPORT DATED 30.10.2012 FILE IN I.A.NO.13685 2012 IN WP(C) NO.23435 OF A TRUE COPY OF THE JUDGMENT DATED 11.12.2013 IN WP(C) NO.23435 OF 2012 A TRUE COPY OF THE BUILDING PERMIT DATED 06.03.2012 CONTAINING THE CHANGE OF OCCUPANCY ISSUED BY THE FEROKE GRAMA A TRUE COPY OF THE LETTER DATED 18.03.2014 ISSUED BY THE FEROKE GRAMA A TRUE COPY OF THE LETTER DATED 23.07.2014 ISSUED BY THE DISTRICT TOWN PLANNER KOZHIKODE A TRUE COPY OF THE INTERIM ORDER DATED 26.05.2015 IN WP(C) NO.15333 OF 2015 A TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 08.06.2015 ISSUED BY THE SECRETARY FEROKE GRAMA PANCHAYAT A TRUE COPY OF THE RELEVANT PAGE OF THE ADANGAL REGISTER MAINTAINED AT THE FEROKE VILLAGE OFFICE RESPONDENTS EXHIBITS : NIL TRUE COPY P.S TO JUDGE

Court cannot interfere with cut-off dates in academic matters: Delhi High Court

Fixing of a cutoff date is completely out of the purview of a writ petition filed under article 226 of Constitution of India. The writ court cannot take upon itself the task of administering the examination and fixation of the schedule. This was held by Hon’ble Justice Prateek Jalan in the case of SH Arman Sindhu Vs. Union of India and Ors. [W.P.(C) 8429/2021 &amp; CM APPL. 26090/2021] on the 18th of August before the Hon’ble High Court of Delhi at New Delhi. The brief facts of the case are, the petitioner is a doctor. He has completed the MBBS course from Rohilkhand Medical College, Bareilly, Uttar Pradesh and wishes to pursue a post graduate degree. The grievance with which he has approached the Court is that the respondents have fixed 30.09.2021 as the last date for completion of the compulsory one-year rotational internship to enable a candidate to participate in the National Eligibility cum Entrance Test (Post Graduate) examination to be held on 11.09.2021.  due to circumstances arising out of the Coronavirus pandemic, the NEET-PG examination, which is normally held in the month of January, has been postponed to 11.09.2021. In the wake of the Coronavirus pandemic, by a notification dated 07.04.2020, the Medical Council of India, now the National Medical Commission extended the last date for completion of internship to 30.04.2021. The NEET-PG examination has now been scheduled for 11.09.2021 by a notice dated 13.07.2021 issued by the NBE. By a further notice dated 06.08.2021, the NBE has decided to open a second phase for registration of candidates between 16.08.2021 to 20.08.2021, and to extend the cut-off date for completion of internship to 30.09.2021. The petitioner will complete his internship only on 25.10.2021, and therefore seeks a direction upon the respondents to extend the date of completion of internship from 30.09.2021 to 31.10.2021. The counsel for the petitioner submits that due to circumstances arising out of the Coronavirus pandemic, the NEET-PG examination, which is normally held in the month of January, has been postponed to 11.09.2021. According to him, the schedule laid down by the respondents is entirely consistent with completion of the internship by 31.10.2021 or even later. He submits that such a modification would not disturb the proposed schedule, and would ensure to the benefit of several candidates whose internship will not be completed by 30.09.2021, but soon after. The counsel for the respondents submitted that the writ court ought not to interfere with the cut-off date fixed by the examination conducting authorities, which has been fixed keeping all the relevant factors in mind. They submit that the petitioner would, in the normal course, not have been eligible to appear in the NEET-PG examination in 2021, on account of the fact that he would not have completed the internship within the normal eligibility date of 31.03.2021. As far as the extended schedule for this year is concerned, his internship has been delayed due to the fact, as stated in the writ petition, that he was unable to take one of his four final year papers in March 2020, for shortage of attendance. Learned counsel point out that if he had taken all the papers in March 2020, his internship would have concluded before the stipulated date of 30.09.2021 and he would have been permitted to take the NEET-PG, 2021. The learned judge heard the submissions of both the parties and relied on the judgement in GA Vishwajeet vs. Union of India and Others W.P. (C) 16526/2021 wherein, “This Court is sympathetic to the passionate claim that has been made by the petitioner seeking for the extension of the cut-off date for completion of the internship. However, sympathy by itself cannot be a ground for issuing any positive directions, more particularly, when it comes to education. The cut-off dates are not fixed based on individual claims made and the respondents will have to take into consideration a wide range of options and take a decision. The respondents had infact taken into consideration the pandemic situation and had extended the time for the completion of the internship from 30.06.2021 up to 30.09.2021. The learned counsel appearing on behalf of the 2nd respondent has made it clear that there is no further scope for extension of the cut-off date beyond 30.09.2021. It will be very difficult for the Courts to interfere into every decision that is taken on the Administrative side and fixing of a cutoff date is completely out of the purview of a writ petition filed under article 226 of Constitution of India. The petitioner is trying to project his individual grievance and is seeking for the extension of the cut-off date. However, if such a claim is entertained, it will open flood gates and every student who was not able to complete the internship on or before 30.09.2021, will approach this Court seeking for a similar direction and it will only end up in chaos”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 13th August 2021 Decided on: 18th August 2021 W.P.(C) 8429 2021 & CM APPL. 26090 2021 SH ARMAN SINDHU Petitioner UNION OF INDIA & ORS. Through: Mr. Sanjay Sharawat Respondent Through: Mr. Farman Ali Senior Panel Counsel with Mr. Akshat Singh GP & Mr. Athar Raza Farooquei Advocates for R Mr. T.Singhdev Ms.Michelle B.Das Mr. Abhijit Chakravarty Ms. Sumangla Swami Advocates for R 2 NMC. Mr. Kirtiman Singh Advocate for R 3 NBE. HON’BLE MR. JUSTICE PRATEEK JALAN JUDGMENT The petitioner is a doctor. He has completed the MBBS course from Rohilkhand Medical College Bareilly Uttar Pradesh and wishes to pursue a post graduate degree. The grievance with which he has approached the Court is that the respondents have fixed 30.09.2021 as the last date for completion of the compulsory one year rotational W.P.(C) 8429 2021 internship to enable a candidate to participate in the National Eligibility cum Entrance Test [hereinafter “NEET PG”] examination to be held on 11.09.2021. The petitioner will complete his internship only on 25.10.2021 and therefore seeks a direction upon the respondents to extend the date of completion of internship from 30.09.2021 to 31.10.2021. 2. Mr. Sanjay Sharawat learned counsel for the petitioner submitted that this year due to circumstances arising out of the Coronavirus pandemic the NEET PG examination which is normally held in the month of January has been postponed to 11.09.2021. According to him the schedule laid down by the respondents is entirely consistent with completion of the internship by 31.10.2021 or even later. He submits that such a modification would not disturb the proposed schedule and would enure to the benefit of several candidates whose internship will not be completed by 30.09.2021 but soon after. In support of this contention Mr. Sharawat drew my attention to the Medical Council of India Postgraduate Medical Education Regulations 2000 wherein the schedule for completion of the admission process for post graduate medical courses has been laid down. This schedule provides that the entrance examination be conducted by 10th January and result be declared by the end of January. Counselling is to be conducted in three rounds between 12th March and 8th May with 31st May being the last date of joining. In conjunction with this schedule Mr. Sharawat submitted that the last date for completion of internship for the purposes of W.P.(C) 8429 2021 31.03.2021. eligibility for writing the NEET PG examination is fixed as In the wake of the Coronavirus pandemic by a notification dated 07.04.2020 the Medical Council of India now the National Medical Commission[hereinafter “NMC”] extended the last date for completion of internship to 30.04.2021. By a notice dated 23.02.2021 the National Board of Examinations[respondent no 3 herein] fixed the NEET PG examination for 18.04.2021 and the results were to be declared on 31.05.2021. At this time the NBE also issued an examination information bulletin in which it was provided that the last date for completion of internship was extended to 30.06.2021. Due to the intervening outbreak of the second wave of COVID 19 pandemic in the country the examination was not held on 18.04.2021. The Ministry of Health and Family Welfare Government of India issued a letter dated 03.05.2021 to the State Governments stating that the NEET PG examination was being postponed and would not be held prior to 31.08.2021. The aforesaid letter also called upon the States to utilize prospective NEET PG candidates in the COVID 19 workforce. According to the petitioner he has also been serving in COVID 19 related duties since April 2021. The NEET PG examination has now been scheduled for 11.09.2021 by a notice dated 13.07.2021 issued by the NBE. By a further notice dated 06.08.2021 the NBE has decided to open a second phase for registration of candidates between 16.08.2021 to W.P.(C) 8429 2021 to 30.09.2021. 20.08.2021 and to extend the cut off date for completion of internship It is in these circumstances that the petitioner has filed this writ petition for the following reliefs: to extend “[a] Issue a writ of mandamus and direct the date of completion of internship from 30.09.2021 to 31.10.2021 for the purpose of NEET PG 2021 Examination scheduled to take place on 11.09.2021 and b] Consequently issue a writ of mandamus and direct the Respondents to permit the Petitioner to submit his application to enable him to appear in the NEET PG 2021 Examination scheduled to take place on 11.09.2021 with all consequential benefits depending upon outcome of result of said exam and c] Pass any other and further order(s) as may be deemed fit.” 9. Mr. Farman Ali Mr. T. Singhdev and Mr. Kirtiman Singh learned counsel entered appearance on advance notice on behalf of the Union of India the NMC and the NBE respectively. 10. Mr. Singhdev and Mr. Singh submitted that the writ court ought not to interfere with the cut off date fixed by the examination conducting authorities which has been fixed keeping all the relevant factors in mind. They submit that the petitioner would in the normal course not have been eligible to appear in the NEET PG examination in 2021 on account of the fact that he would not have completed the internship within the normal eligibility date of 31.03.2021. As far as the extended schedule for this year is concerned his internship has been delayed due to the fact as stated in the writ petition that he was W.P.(C) 8429 2021 unable to take one of his four final year papers in March 2020 for shortage of attendance. Learned counsel point out that if he had taken all the papers in March 2020 his internship would have concluded before the stipulated date of 30.09.2021 and he would have been permitted to take the NEET PG 2021. 11. Mr. Singh further submitted that the very issue raised in this writ petition has been decided by the Madras High Court in GA Vishwajeet vs. Union of India and Others1 against the petitioner. Mr. Singh also cited the judgment of a coordinate bench of this Court in Association of MD Physicians vs. National Board of Examinations & Ors.2 in support of his contention that these are matters beyond the jurisdiction of the writ court and ought to be left to the discretion of the examination conducting authority. He submitted relying upon the Supreme Court judgment in Hirandra Kumar vs. High Court of Judicature at Allahabad and Anr.3 that some apparent arbitrariness in the cut off date is inherent to the fixation of cut offs and does not ordinarily render the date fixed unconstitutional or ultra vires unless it is shown to be manifestly unreasonable. 12. Mr. Singhdev submitted that the issue raised in the present petition has been considered by this Court albeit for a prior year in the decision of a learned Single Judge in Ojasvini Agrawal vs. Union of India4 which was also affirmed by the Division Bench5. Against the 1 W.P.16526 2021 decided on 09.08.2021 2 W.P.5908 2021 decided on 11.06.2021 3 2019 SCC OnLine SC 2541343 2018 decided on 29.01.2019] 4 W.P.3054 2020 decided on 13.05.2020 5 Vide judgment dated 27.05.2020 in LPA 147 2020 W.P.(C) 8429 2021 aforesaid decision the Supreme Court declined Special Leave to Appeal6. 13. Mr. Sharawat sought to counter these judgments by reference to two authorities one of the Supreme Court and one of the Division Bench of the Himachal Pradesh High Court. The judgment of the Supreme Court in M s. Shiv Shankar Dal Mills and Others vs. State of Haryana and Others7 although the circumstances in which it arose were admittedly different was cited to remind this Court of the observation of Krishna Iyer J. in paragraph 4: “…..Situations without precedent demand remedies without precedent.” 14. The Division Bench of the Himachal Pradesh High Court in Raju Thakur vs. State Election Commission and Others8 dealt with an order postponing the elections to the Shimla Municipal Corporation. Paragraph 57 of the judgment was placed by Mr. Sharawat: “57. It is more than settled that legal formulations cannot be enforced divorced from the realities of the fact situation of the case. Situations without precedent demand remedies without precedent. The extra ordinary situation may call for extra ordinary response and situational demands.” 15. On the strength of these authorities Mr. Sharawat urged that in the context of the revised schedule for the examination notified by the respondents themselves the Court’s powers are sufficient to direct an extension of the cut off date. He submitted that the present case in fact reveals such arbitrariness in the fixation of the cut off date as 6 Order dated 22.06.2020 in Special Leave to AppealNo. 7549 2020 72 SCC 437 8 AIR 2017369W.P.(C) 8429 2021 would justify the interference of the writ court even in terms of the judgments cited by the respondents. According to Mr. Sharawat the extension of the eligibility date for completion of internship from 30.09.2021 to 31.10.2021 would prejudice no one and would not require any modification of the schedule provided. He submitted that the judgment in Ojasvini Agrawal9 has been rendered in the context of the regulatory schedule under the PGMER which in any event has been given a go by. As far as the judgment of the Madras High Court in GA Vishwajeet10 is concerned Mr. Sharawat urged that the contentions canvased in this Court do not appear to have been placed before the Madras High Court. 16. Having heard learned counsels for the parties despite some sympathy for the predicament in which the petitioner finds himself I am of the view that relief cannot be granted in this writ petition. The respondents have already extended the cut off date for completion of the internship keeping in mind the COVID 19 pandemic and consequent delay in holding the NEET PG examination. The writ court cannot take upon itself the task of administering the examination and fixation of the schedule. As held in the decisions cited by the respondents there is a degree of inherent randomness in the fixation of a cut off date which may in a given case cause hardship to a candidate or a group of candidates. That per se does not lead to the conclusion that the fixation itself is arbitrary. The relief sought by the petitioner would lead to an uncertain and cumbersome situation as 9 Supra10 SupraW.P.(C) 8429 2021 there will always be some candidates who miss the cut off by a whisker. If this Court were to accede to the petitioner’s contentions the grievances of those whose internships will be completed soon after 31.10.2021 would then come to the fore. The impermissibility of such interference with academic assessments has been emphasised in the Division Bench decisions of this Court in Dr. Rajat Duhan and Others vs. All India Institute of Medical Sciences and Others11 and National Board of Examinations vs. Dr. Rajani Sinha and Others12. 17. The judgment of the coordinate bench in Ojasvini Agrawal13 dealt with a similar situation with regard to the NEET PG 2020 wherein it was held as follows: “22. I may refer with advantage in this context to the judgement of the Supreme Court in Dolly Chhanda v. Chairman JEE1 in which a bench of three Hon‟ble Judges of the Supreme Court underscored the distinction between possession of requisite qualifications and submission of proof of possession of It has been to secure admission. qualifications categorically held in the said decision that in regard to possession of requisite eligibility qualifications by the cut off date fixed in that regard there can be no relaxation. Once however a candidate possesses the requisite qualifications by the stipulated cut off date depending on individual facts and circumstances it might be possible to relax the date by which the candidate is to submit proof of possession of such qualification. In the present case 31st March 2020 stands expressly stipulated as the cut off date by which any candidate who seeks to obtain admission to a PG medical course consequent to the NEET PG 2020 11 2019 SCC OnLine Del 11437paragraph 8 12 2021 SCC OnLine Del 2719paragraph 14 13 SupraW.P.(C) 8429 2021 examination is required to complete her or his compulsory internship. There can therefore be no relaxation in this regard least of all by a writ court. 25. The alternative prayer B in the writ petition which seeks extension of the period of completion of one year internship by one month to 30th April 2020 qua the petitioner “so that the petitioner was able to gain admission this year” too requires merely to be urged to be rejected. The duty of this Court while exercising jurisdiction under Article 226 of the Constitution of India is to administer the law without fear or favour and not to ensure that the petitioners before it secure the reliefs they seek irrespective of the law. Ubi jus as the time worn adage goes ibi remedium. The right has therefore to precede the remedy. Sans an enforceable legal right there can be no remedy in law. The provisions in the Bulletin issued by the NBE governing the NEET PG 2020 Examination as extracted hereinabove reveal repeated emphasis to the extent that the Bulletin highlights the said clauses on the cut off date of 31st March 2020 for completion of compulsory one year internship by MBBS candidates. This Court in exercise of its writ jurisdiction does not deem it appropriate to tinker therewith or to direct that in the case of the petitioner the said date should not be treated as sacrosanct. Charity to one in the teeth of the law results in injustice to the multitude.”14 18. The Division Bench affirmed the judgment of the learned Single Judge with the following observations: “13. Completion of internship before 31st March 2020 is therefore an essential qualification. There is no power to relax the essential qualification. This Court while exercising the jurisdiction under Article 226 of the the essential Constitution of India cannot alter 14 Emphasis supplied. W.P.(C) 8429 2021 qualifications prescribed in the Information Bulletin. The argument advanced by Mr.Kachwaha learned counsel that students who have completed their internship before commencement of the PG course should also be admitted cannot be accepted. One more aspect which has to be borne in mind is that several candidates who did not complete their internship before 31st March 2020 would not have participated in the counseling process for the reason that they were aware of the fact that they did not possess the essential qualifications as prescribed. Any permission granted to the appellant to secure admission in the PG course will amount to changing the rules of the game midstream which is impermissible and cannot be done by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India. 14. It is also relevant to note that the appellant has not chosen to challenge the time limits prescribed and fixed in the Information Bulletin. In any event she has not made out any case to demonstrate that the procedure prescribed in the Information Bulletin is violative of Article 14 of the Constitution of India and suffers from the vice of arbitrariness. Knowing that she was ineligible to get admission in terms of the relevant Rules and Regulations the appellant still proceeded to take part in the counseling conducted for seats reserved under All India quota and also in the counselling conducted by the State of Uttar Pradesh for filling up the seats which are reserved for State quota.”15 As noted above the Supreme Court declined to interfere with the said judgment of the Division Bench.16 19. Although Mr. Sharawat is right in saying that the judgment in Ojasvini Agrawal17 was rendered in the context of the regulatory regime and not COVID 19 induced extensions the observations of the 15 Emphasis supplied. 16 Supra17 SupraW.P.(C) 8429 2021 Court regarding the limitations on exercise of the writ jurisdiction would equally apply. In this context Mr. Sharawat reminded the Court of the plentitude of its powers under Article 226 of the Constitution. However there are well developed limitations within which the writ court exercises its discretionary jurisdiction. Mr. Sharawat’s reliance upon the observations of Krishna Iyer J. in M s. Shiv Shankar Dal Mills18 and the Himachal Pradesh High Court in Raju Thakur19 cannot come to his aid. While the Coronavirus pandemic may well be without precedent the question of whether the writ court can interfere with cut off dates in academic matters is not. Indeed the very question raised in the present petition has been considered and answered in the binding decision of the Division Bench in Ojasvini Agrawal20. In this context I may also refer to the judgment of the Madras High Court in GA Vishwajeet21 which deals with the very same examination which is in issue in this petition viz. NEET PG 2021. The petitioner before the Madras High Court will complete his internship by 04.10.2021 he misses the deadline by five days as compared to 25 days for the present petitioner. The Court noted as follows: “5. The learned counsel for the petitioner submitted that the pandemic situation has brought about a very extra ordinary scenario where the students are already suffering and there is a delay in the completion of the internship for the petitioner only due to this situation. The learned counsel submitted that the respondents must take 18 Supra19 Supra20 Supra21 SupraW.P.(C) 8429 2021 into consideration the suffering of the students and one more extension can be given for the completion of the CRRI Internship. The learned counsel submitted that even though the petitioner cannot claim this as a matter of right it is always open to the respondents to take into consideration the present situation and sympathetically consider the request made by the petitioner and similarly placed students. 6. This Court is sympathetic to the passionate claim that has been made by the petitioner seeking for the extension of the cut off date for completion of the internship. However sympathy by itself cannot be a ground for issuing any positive directions more particularly when it comes to education. The cut off dates are not fixed based on individual claims made and the respondents will have to take into consideration a wide range of options and take a decision. The respondents had infact taken into consideration the pandemic situation and had extended the time for the completion of the internship from 30.06.2021 up to 30.09.2021. The learned counsel appearing on behalf of the 2nd respondent has made it clear that there is no further scope for extension of the cut off date beyond 30.09.2021. 7. It will be very difficult for the Courts to interfere into every decision that is taken on the Administrative side and fixing of a cut off date is completely out of the purview of a writ petition filed under article 226 of Constitution of India. The petitioner is trying to project his individual grievance and is seeking for the extension of the cut off date. However if such a claim is entertained it will open flood gates and every student who was not able to complete the internship on or before 30.09.2021 will approach this Court seeking for a similar direction and it will only end up in chaos. Such directions issued by this Court will directly impact the further process of the respondents 2 and 3 in completing the admission for the PG courses. Therefore even though this Court has considered the claim made by the W.P.(C) 8429 2021 petitioner sympathetically it will be too difficult for this Court to direct the respondents to extend the cut off date. 8. In view of the above discussion this Court is not in a position to grant the relief as sought for by the petitioner and accordingly this writ petition stands dismissed. No costs. Consequently the connected miscellaneous petitions are closed.” I am in respectful agreement with the view taken by the Madras High Court which is also consistent with the binding precedents of 22. For these reasons the writ petition alongwith the pending application is dismissed. There will be no orders as to costs. this Court. PRATEEK JALAN J. AUGUST 18 2021 „pv‟ W.P.(C) 8429 2021

If the accused chooses not to give any explanation or gives a false answer, the same can be counted as providing the missing link in the chain of circumstances: Gauhati High Court

The incriminating circumstances which point to the guilt of the accused had been put to him, yet he chose not to give any explanation under Section 313 Cr PC except choosing the mode of denial. It is well settled in law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer an appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances. The judgment was passed by the High Court of Gauhati in the case of Gonesh Bhomij v. State of Assam [CRL.A(J)/81/2018] by Division Bench consisting of Hon’ble Justice N. Kotiswar Singh &amp; Justice Soumitra Saikia. The facts of the case are that an FIR was lodged brother of the deceased, that on the previous night her husband the appellant assaulted her and on proceeding to his sister’s place he found her lying dead inside the house, suspected of being killed by the appellant. Further, an investigation was accordingly carried out and on completion of the same, the appellant was charge-sheeted. The prosecution examined 8 witnesses. The defence, however, denied the charges and did not adduce any evidence. The Ld. Sessions Judge on the basis of the testimonial and other evidence brought on record convicted the appellant under Section 302 IPC. The Learned Trial Court held that “it was proved beyond all reasonable doubts that on the day of occurrence, the appellant had hit the deceased on her mouth with a bottle and thereafter, threw her into a pond after which she died of drowning, which was corroborated by the medical evidence and accordingly, convicted the appellant under Section 302 of the IPC.” While clearing the question of burden of proof the court relied on State of Punjab v. Karnail Singh, wherein it was held that “the duty of the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” The court observed that where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character.

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

The Court finds that once recovery is from the place which is under possession and cultivation of the petitioner, prima facie, an offence is made out under the Act: High court of Patna

The petitioner was arrested under Section 272 IPC, “Adulteration of food or drink intended for sale whoever adulterates any article of food or drink, so as to make such article noxious as food or drink, intending to sell such article as food or drink”, section 273 of the Indian Penal Code, “Whoever sells, or offers or exposes for sale, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drinks, knowing or having reason to believe that the same is nox­ious as food or drink” and section 30(a) of the Bihar Prohibition and Excise Act, 2016, “Penalty for unlawful manufacture, import, export, transport, possession, sale, purchase, distribution, etc. of any intoxicant or liquor”, section 41(1) of the act, “Penalty for import, export, manufacture, transport, sale or possession by one person on account of another” This petition in connection with Kalyanpur PS Case No. 224 of 2020 dated 02.09.2020. In the high court of Judicature at Patna, this judgement was given by honourable Mr Justice Ahsanuddin Amanullah on the 3rd  of September 2021 in the case of Rampukar Kumar @ Rampukar Yadav versus the state of Bihar, criminal miscellaneous No. 37209 of 2020. Mr Umesh Chandra represented as the advocate for the petitioner, and Mr Brajendra Nath 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 selling foreign liquor from his paddy field and when the police arrived about 154.650 litres of foreign liquor was recovered from the paddy field, the villagers disclosed the fact that the paddy field belonged to the petitioner. The counsel representing the petitioner held that the petitioner has been falsely implicated as the paddy field from where the recovery of the liquor was made does not belong to the petitioner and also because the villagers have disclosed such information, the petitioner was accused. Further, the counsel held that he has been accused in the same police station for another case as well which is Kalyanpur PS Case No. 218 of 2020, the reason is because of his enemies such false cases have been lodged. The additional public prosecutor with the order of the court, made arrangements for investigation whether the paddy field belonged to the petitioner or not and a report has been submitted by the superintendent of police in the East Champaran dated 05.08.2021 that the field from which recovery of liquor has been effected is under the possession and cultivation of the petitioner. After considering the facts and circumstances of the case the court held that “the Court finds that once recovery is from the place which is under possession and cultivation of the petitioner, prima facie, an offence is made out under the Act and, thus, the present petition under Section 438 of the Code of Criminal Procedure, 1973 would not be maintainable due to bar of Section 76(2) of the Act.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 372020 Arising Out of PS. Case No. 224 Year 2020 Thana KALYANPUR District East Champaran Rampukar Kumar @ Rampukar Yadav aged 45 years Male Son of Late Rup Narayan Rai Resident of Village Yamunapur PS Kalyanpur District East The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State Mr. Umesh Chandra Verma Advocate Mr. Brajendra Nath Pandey APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 03 09 2021 The matter has been heard via video conferencing 2. Heard Mr. Umesh Chandra Verma learned counsel for the petitioner and Mr. Brajendra Nath Pandey learned Additional Public Prosecutor for the State 3. The petitioner apprehends arrest in connection with Kalyanpur PS Case No. 224 of 2020 dated 02.09.2020 instituted under Sections 272 273 of the Indian Penal Code and 30(a) 41(1) of the Bihar Prohibition and Excise Act 2016 hereinafter referred to as the ‘Act’ 4. The allegation against the petitioner is that on secret information that the petitioner was selling foreign liquor Patna High Court CR. MISC. No.372020 dt.03 09 2021 from his paddy field when the police went there 154.650 litres of foreign liquor was recovered from a paddy field which is said to belong to the petitioner as was disclosed by the 5. On 13.07.2021 learned counsel for the petitioner had submitted that he has been falsely implicated as the field from which recovery is shown does not belong to him and only because it is stated that the villagers had informed that the field belongs to the petitioner he has been made accused. Learned counsel drew the attention of the Court to the categorical statement made in paragraph no. 9 of the petition to this effect. Learned counsel submitted that he has been made accused under the same police station in another case i.e. Kalyanpur PS Case No. 2120 in similar circumstances only at the instance of his enemies 6. On such stand the Court had asked learned APP to obtain the up to date legible photocopy of the entire case diary as also a detailed report after due enquiry with regard to whether the field from which recovery is shown in the present case belongs to the petitioner his family from the Superintendent of Police East 7. In terms thereof a report has been submitted by the Superintendent of Police East Champaran dated 05.08.2021 in Patna High Court CR. MISC. No.372020 dt.03 09 2021 which it has been stated that the Circle Officer Kalyanpur East Champaran Motihari has reported that the field from which recovery of liquor has been effected is under the possession and cultivation of the petitioner 8. Having regard to the aforesaid the Court finds that once recovery is from the place which is under possession and cultivation of the petitioner prima facie an offence is made out under the Act and thus the present petition under Section 438 of the Code of Criminal Procedure 1973 would not be maintainable due to bar of Section 76(2) of the Act 9. Accordingly the petition stands dismissed as not 10. Interim protection granted to the petitioner under order dated 13.07.2021 stands withdrawn 11. However in view of submission of learned counsel for the petitioner it is observed that if the petitioner appears before the Court below and prays for bail the same shall be considered on its own merits in accordance with law without being prejudiced by the present order 12. By order dated 13.08.2021 the Court had called for an explanation from the Superintendent of Police East Champaran with regard to why despite the Court directing learned Patna High Court CR. MISC. No.372020 dt.03 09 2021 APP to obtain copy of the case diary and the report the same was submitted in the Registry of the Court the Superintendent of Police East Champaran Motihari has submitted an explanation under Letter No. 398 dated 25.08.2021 in which it has been stated that the messenger upon reaching Patna had contacted learned APP who had asked him to submit the same in the Registry of the High Court as he was out of station. Learned APP submitted that the same was due to some misconception and communication gap 13. Having regard to the aforesaid the Court finds that there has been no deliberate or wilful laches on the part of the Superintendent of Police East Champaran Motihari in the matter Accordingly the explanation his accepted and the issue stands (Ahsanuddin Amanullah J

State delay should not make the petitioner suffer being deprivileged for appointment on compassionate ground: High Court of Gauhati

The petitioner cannot be deprived of her right to be appointed on compassionate ground as the matter was delayed for 10 years from the respondent side. This auspicious judgment was passed by The High Court of Gauhati in the matter of Kilangsangla vs State of Nagaland and Ors [WP(C) 54/2020] by the Honourable Justice S. Hukato Swu. The case of the petitioner is that her late father Imdongchujang died in harness while serving as S.A.A. The petitioner approached the respondents with a copy of the order passed by this Court and filed a representation. However, the petitioner was again denied appointment on the ground that she was not qualified to be appointed as a Grade-III employee the petitioner being so placed was of the view that as and when a vacancy arose, she would be considered for appointment under the compassionate appointment scheme for the State Government employee who dies in harness in any other wing of the Social Welfare Department. The petitioner having received this negative reply from the State respondents has no option but to come again before this Court in a fresh writ petition. The learned counsel for the petitioner submits that there are doubts about the state and answer provided by the respondents. The petitioner took measures to present RTI to the department concerned, and his RTI reply certainly indicates that during the time that the situation of the petitioner should be taken into consideration, the candidates were appointed on a compassionate basis. All the names shown in the reply to RTI demonstrate that in 2016 and 2017 the applicants were appointed on an active basis Learned counsel for the respondent submits that the petitioner’s case is being considered by the Department. She submits that the respondents are maintaining a petition concerning the compassionate appointment serially and their names are considered in turn on seniority as and when retirement occurs. She also submits that the Department is willing to consider the case of the petitioner as and when a vacancy arises. The court relied on Apex Court in the case of State of West Bengal and Others vs Banibrata Gosh and Others held that “Considering that the writ petition remained pending for 10 years and thereby, the respondent might now have become barred by age for fresh employment, we recommend that the Government may consider the condonation of the age bar, if any, on the part of the respondent. We accordingly set aside the judgment of the Division Bench and restore that of the learned Single Judge and allow the appeal but without any order as to costs.”

Page No.# 1 5 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH Case No. : WP(C) 54 2020 1:STATE OF NAGALAND AND 2 ORS 2:COMMISSIONER AND SECRETARY SOCIAL WELFARE NAGALAND 3:DIRECTOR STATE SOCIAL WELFARE NAGALAND Advocate for the Petitioner : SENTIYANGER Advocate for the Respondent : GOVT ADV NL HON BLE MR. JUSTICE S. HUKATO SWU Date : 23 03 2021 This is a writ petition filed under 226 of the Constitution of India for issuance of a writ in the nature of mandamus certiorari whichever is appropriate for a direction to protect the fundamental right of the petitioner as enshrined in Part III of the Constitution specifically under Article 14 16 and 21 2. The case of the petitioner is that her late father Imdongchujang died in harness on 02 11 2011 while serving as S.A.A. under CDPO Office Mokokchung. The petitioner herein has filed an application dated 17 11 2011 before the Page No.# 2 5 Director of Social Welfare Nagaland Kohima for considering her case for appointment on compassionate ground. There was no response from the State respondents. Thereafter another representation was filed on 26 09 2018 before the Director of Social Welfare Nagaland Kohima. However again the State respondents did not take any steps 3. Being aggrieved the petitioner filed a writ petition as W.P.No. 30of 2019 this Court by order dated 28 03 2019 had disposed of the said writ petition with a direction that the State respondents should consider the representation filed by the petitioner on the previous occasion in conformity with the Office Memorandum dated 17 09 2015 concerning the scheme of compassionate appointment that is in existence in the State. The petitioner approached the respondents with a copy of the order passed by this Court and filed a representation. However the petitioner was again denied appointment on the ground that she was not qualified to be appointed as Grade III employee which has the requisite qualification of Graduate for employment and for appointment to the post of Grade IV it was informed by the concerned department that the Ministry of Women and Child Development by letter dated 23 11 2017 all Grade IV appointment has been phased out. The same information was communicated by the Department under letter NO.SW CR 85 2019 210 dated 11 06 2019. The petitioner being so placed was of the view that as and when vacancy arose she would be considered for appointment under the compassionate appointment scheme for the State Government employee who die in harness in any other wing of the Social Welfare Department. The petitioner having received this negative reply from the State respondents has no option but to come again before this Court in a fresh writ petition 4. Learned counsel for the petitioner submits that the condition and reply given by the State respondents are subject to doubt. The petitioner has taken steps to file RTI before the concerned department and in the RTI reply the Government of Nagaland Directorate of Social Welfare by a letter NO.SW RTI 10 2020 60 dated 22 05 2020 has given the information as desired by the petitioner the contents of which is reproduced below “Compassionate appointment Designation Appointed against Page No.# 3 5 Against Shri. Asao Duftry Rtd Late T.Lualang expired on Shri. Renbenthung Against Shri. Santsupomo Peon Rtd. On 31.07.2017 Shri Lunpao Sitlhou Peon Against Shri Neikhwezu Peon Rtd. On 31.08.2017 Against Lt. Puchobol Savio Peon expired on 29.09.2016 Shri Neingulo 5. The above RTI reply furnished by the respondents clearly demonstrates that candidates were given appointment on compassionate ground during the period when the petitioner’s case ought to have been considered. All the appointments shown in the RTI reply suggests that the appointments were made in the year 2016 and 2017 when the petitioner’s case was in active consideration. RTI also reflects that out of the six appointees on compassionate appointment only two appointees were genuinely considerable for appointment on compassionate ground. However rest of the appointees who were appointed has been shown against the retired employees. This clearly reflects that the petitioner was deprived of her right to be appointed on compassionate ground. The case of the petitioner could have been considered in place of the four candidates who were not qualified to be appointed on compassionate ground. The petitioner is also apprehensive that the respondents may not consider her case in the near future considering her age. Therefore it has been prayed that appropriate order may be issued against the respondents since the delay was caused by the respondents and the petitioner should not suffer for no fault of her’s. He has placed reliance on the ruling of the Apex Court in the case of Page No.# 4 5 State of West Bengal and Others vs Banibrata Gosh and Others reported in 3 SCC 250 wherein the Apex Court had given direction for relaxation of the age of the petitioner when fault lies with the respondents who delayed the matter by 10 years. Para 32 of the judgment is reproduced “ 32. Considering that the writ petition remained pending for 10 years and thereby the respondent might now have become barred by age for fresh employment we recommend that the Government may consider the condonation of the age bar if any on the part of the respondent. We accordingly set aside the judgment of the Division Bench and restore that of the learned Single Judge and allow the appeal but without any order as to costs.” 6. He has also relied on the judgment of the Division Bench of our own High Court in the case of Ajij Jaman Barbhuiya vs State of Assam & Ors reported in 2018GLT 280 wherein it has been ruled that the delay caused by the State respondents should not make the petitioner suffer being disprivilidged on being considered for appointment on compassionate ground. Para 4 and 5 of the judgment are reproduced below: “4. At the very outset we make it clear that this Court is not oblivious of the fact that if a family has managed to sustain itself for more than couple of years consequent upon the demise of the bread earner in the family such family perhaps have overcome the initial financial trauma and is not in urgent need of a Government job. What we are concerned in the present case is the sheer lackadaisical attitude demonstrated by the State respondents in handling a case seeking compassionate appointment causing inordinate delay in the process. To go back to the relevant dates in the instant case death occurred to the appellant s father on 06.08.2009 and about two months thereafter necessary application in proper format was submitted for appointment on compassionate ground. Instead of bringing the application to its logical conclusion within the earliest possible time not later than two years the respondent authorities sat over the matter and it was only on 30.07.2014 that is well after four years it was placed before the District Level Committee. Due recommendation was made by the District Level Committee having regard to the suitability of the appellant as well as vacancy position obtaining as on November 2013. As approval of the State Level Committee was required prior to making appointment on compassionate ground the same was placed before the State Level Committee on 01.04.2015 and again on 09.12.2015. However the appellant s case was not considered favourably due to want of vacancies. There are no materials on record to show that the decision of the State Selection Committee was communicated to the appellant. As the appellant was in complete dark about the fate of his case before the State Level Committee he instituted WP(C) 5703 2016 Pursuant to order of the Court dated 21.09.2016 his case was again considered on 11.08.2017 but with the same result that for want of vacancy and the elapse of more than 8 years the case of the appellant was beyond consideration having spent its force 5. Application made by the appellant for appointment on compassionate ground well within time on 07.10.2009 was brought to an end only on 11.08.2017. The inordinate delay in the disposal of the application certainly cannot be attributed to the appellant. Further non application of mind is also demonstrated by the State Level Committee in rejecting his case due to want of vacancy when an exercise had already been conducted by the District Level Committee certifying the suitability of the appellant and existence of vacancies in the post of Page No.# 5 5 Forest Guards under the establishment of the Divisional Forest Officer Social Forestry Division Silchar. Rejection of an application without due application of mind and as a matter of course and by employing the expressions "want of vacancy" and "spent its force" are easy methods to deprive a candidate from his legitimate entitlement. Such course of action would only go to frustrate and defeat the very object governing compassionate appointments. These shortcomings finds best illustration in the present case where the candidature of the appellant was rejected for want of vacancy despite favourable recommendation being made by the District Level Committee having regard to existence of vacancies and on ground of elapse of time for which the appellant cannot be found fault at.” He argues that the facts of the case in the present petition is also in parameteria with the above mentioned judgment. 7. For the above stated reasons and arguments placed before this Court learned counsel for the petitioner has prayed that appropriate direction may be given to the State respondents. 8. Learned counsel for the respondent Nos. 2 and 3 Ms. Apila Sangtam submits that the petitioner’s case is being considered by the Department. She submits that the respondents are maintaining petition concerning the compassionate appointment serially and their names are considered in turn on seniority as and when retirement occurs. She also submits that the Department is willing to consider the case of the petitioner as and when vacancy arises 9. On considering the materials on record and also the submissions made by the parties and also having considered the earlier petition which was disposed and directed by this Court in W.P.30 (K of 2019 this Court is of the view that the petitioner has made out a case for consideration of her case under the Office Memorandum NO. AR 8 8 78 dated 17 09 2015 for compassionate appointment scheme for State Government employees who die in harness. The matter having been dragged on for a considerable period of time it is directed that in the event the vacancy arise and consideration for appointment of the petitioner’s application is examined the respondents shall take recourse upon Item No.8 of the Office Memorandum dated 17 09 2015 for relaxation of upper age limit in respect of the petitioner. The State respondent Nos. 2 and 3 are directed to examine the case of the petitioner for appointment on compassionate ground as and when vacancy arise in terms of the scheme contained With the above direction writ petition is disposed of JUDGE Sd

Person unconnected with the particular property cannot file a case concerning the same: The High Court of Delhi

A person who does not has any connection with the subject property nor is a neighbor who is affected by the subject property cannot file a case concerning the same. The aforesaid was passed by a single judge bench of Delhi High Court comprising Justice Sanjeev Sachdeva in the case of Chirag Saini v. North Delhi Municipal Corporation &amp; Ors. [W.P.(C) 3500/2021 &amp; CM APPL.10596/2021] on 3rd June 2021. The aggrieved petitioner sought a mandamus against respondents North Delhi Municipal Corporation and the SHO, Police Station Civil Lines to demolish the alleged illegal and unauthorized construction being carried out by builders on the land in Civil Lines, Delhi. The petitioner contended that he is a follower of Christianity and is a chairperson of Christian Fellowship Trust. The petitioner alleged that the concerned property earlier belonged to Baptist Church Trust Association and had been sold to Aggarwal family in the year 2005 and is now being illegally constructed in connivance with the Municipal Corporation’s officials. However, when questioned about the locus standi, the petitioner has not been able to establish any connection with the subject property. The counsel on behalf of the respondents contended that the petitioner’s membership with the Christian Fellowship Trust is a mere strategy to establish his association with the Christian community and that he is a habitual litigant who has filed as many as 11 petitions against the North Delhi Municipal Corporation, out of which, 10 have already been rejected. The respondents were successfully able to establish the fact that there has been no breach of any building bye-laws and the construction is being raised after sanction of a building plan. Furthermore, it has been proved that the property was owned by a company and was purchased from another company and not any trust.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 03.06.2021 W.P.(C) 3500 2021 & CM APPL.10596 2021 CHIRAG SAINI ….. Petitioner NORTH DELHI MUNICIPAL CORPORATION & ORS. Advocates who appeared in this case: For the Petitioner: Mr. Ikrant Sharma Ms. Divya Upadhyay and Ms. Shweta For the Respondent: Ms. Namrata Mukim Standing Counsel North DMC with Sharma Advocates. Ms. Garima Jindal Advocate for R 1 & 2. Ms. Anya Singh Advocate for R 3 SHO P.S.Civil Lines. Mr. Lalit Gupta and Mr. Siddharth Arora Advocates for the co owner Intervenor Ms. Navita Aggarwal. CORAM: HON’BLE MR. JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J.The hearing was conducted through video conferencing. Petitioner seeks a mandamus against respondents North Delhi Municipal Corporation and the SHO Police Station Civil Lines to demolish the alleged illegal and unauthorised construction being carried out by builders on the property No.21 & 21 A Raj Niwas Marg Civil Lines Delhi. W.P(C) 3500 2021 1 It is contended by the petitioner that petitioner is a follower of Christianity and visits the church on weekly basis since his childhood and is the Chairperson of Christian Fellowship Trust and is also the President of an NGO under the name of Atulit Foundation. Petitioner contends that illegal construction is being carried out in property bearing No.21 and 21 A Raj Niwas Marg Civil Lines Delhi. It is contended by the petitioner that as per his sources he has come to know that the subject property earlier belonged to Baptist Church Trust Association. In the petition the names of the trustees have also been disclosed and it is alleged that the property has been sold in the year 2005 to the Aggarwal family. Petitioner has also stated that the property was sold by way of two separate documents which were registered. It is alleged that the property is being constructed in connivance with the officers of the Municipal Corporation. 6. When petitioner was enquired about the locus standi of the petitioner to file the subject petition petitioner has not been able to show any connection with the subject property. It is an admitted position that petitioner does not reside in the neighbourhood of the subject property. Petitioner resides in Arya Pura Subzi Mandi near Roshnara Road and the subject property is in Civil Lines Delhi which is separated by several kms. W.P(C) 3500 2021 2 Perusal of the document of registration of the Christian Fellowship Trust shows that the document was executed on a stamp paper purchased on 25.02.2021 and executed on 03.03.2021. Subject petition has been filed on 15.03.2021. It appears that the said document has been created solely to create an impression that petitioner has some association with Christian community. 8. Mr. Lalit Gupta Advocate intervenes on behalf of Ms. Navita Aggarwal and submits that she is one of the owners of the subject property. He submits that his enquiry from the Delhi High Court website has revealed that petitioner had filed as many as 11 writ petitions in the Registry against inter alia the North Delhi Municipal Corporation out of which 10 petitions have been returned under objections and don’t seem to have been re filed and the subject petition is the 11th petition as per the status report available on the High Court website. 9. Ms. Mukim learned counsel appearing for the North Delhi Municipal Corporation submits that she has received instructions that the department has received advance notices in 18 cases since 2019 but most of the cases have not been listed. She submits that petitioner appears to be a habitual litigant and is filing cases after cases. 10. On merits of the case she submits that there is a sanctioned building plan for raising construction on the subject property and till W.P(C) 3500 2021 3 risk. date no deviation has been noticed by the Corporation from the sanctioned building plan. 11. She submits that in the present pandemic if frivolous petitions are filed by persons unconnected with the properties without verification of correct facts it would entail the officers of the Corporation to travel and carry out inspection thus exposing them to 12. She submits that the petition does not disclose any cause as to why subject petition has been filed since there is no breach of any building bye law and the construction is being raised after sanction of a building plan. 13. Perusal of the petition further shows that the contentions raised by the petitioner is with regard to an alleged illegal sale by the owner of the property i.e. the trust. It is pointed out by Mr. Lalit Gupta learned counsel appearing for Ms. Navita Aggarwal that the property was owned by a company and was purchased from a company and not from any trust. construction. 14. He further points out that there is no challenge to any ones title but the challenge is only to raising of an illegal unauthorised 15. As stated by learned counsel appearing for the Municipal W.P(C) 3500 2021 4 Corporation that there is a sanctioned building plan and there is no deviation as of now noticed by the Corporation to warrant any action to be taken at this stage. 16. The petition clearly has been filed for certain ulterior motives. Petitioner clearly does not have any connection with the subject property nor is a neighbour who is affected by the subject property. 17. There is also nothing stated in the petition as to on what basis petitioner alleges that there was a trust and the subject property has been sold by the trust or any illegal construction is being raised. 18. Since there is a sanctioned building plan it is clear that Petitioner has filed this petition without verifying any fact. 19. Further the averments in the petition also do not inspire any confidence. Accordingly I am not inclined to entertain the petition. Consequently the petition is dismissed with costs of Rs.25 000 to be paid to the “PM Cares Fund”. Receipt of deposit of costs be furnished to the Registry within a period of four weeks from today. 20. Copy of the Order be uploaded on the High Court website and be also forwarded to learned counsels through email by the Court JUNE 3 2021 rk SANJEEV SACHDEVA J. W.P(C) 3500 2021 5

Writ petitions are liable to be rejected on the ground of availability of the alternative remedy.

A writ petition is an application filed before a Court, requesting to issue a specific writ. In India, writs are issued by the Supreme Court under Article 32 of the Constitution of India and by the High Court under Article 226 of the Constitution of India. However, a writ petition can be rejected due to many reasons such as- not filing in due time, no substantial question of law is involved or alternative remedies are there. One such case was decided by Mr. Devender Kumar Sikri (Chairperson), Mr. S. L. Bunker (Member), Mr. Sudhir Mital (Member), Mr. Augustine Peter (Member), Mr. U. C. Nahta (Member), Justice G. P. Mittal (Member) in the case of Maj Pankaj Rai, Pankaj Gupta &amp; Shri Lakshmi Reddy(informants) vs. NIIT Ltd. (Opponent Party) (Case Nos. 47, 48 &amp; 49 of 2017). The facts of the case are that the Informants have the franchisees of the Opponent Party in the city of Hyderabad and are engaged in the business of provision of computer education/ training services. They offer computer education to public for making them more proficient in use of computer software. The Informants have filed a case against the franchisee of the OP. The Informants claim that they were first granted rights to offer a computer diploma programme through the franchisee, but these rights were later cancelled by the OP, However, according to the informants’ claim, the OP has been unfairly continuing the same course at its own facility in Hyderabad’s Basheerbagh. It is further claimed that the OP has been approaching schools in the Informants’ territory directly and has been giving computer-related courses through its application ‘nguru‘. Furthermore, it is claimed that the OP has been encroaching on the region allowed under the licencing agreement, depriving the Informants of their due portion of money generated by that territory. It is claimed that the OP has a different pricing structure for its consumers in metros versus its network centres, i.e., non-metro, which is damaging to both students (customers) and franchisees because the higher rates make the franchisees’ courses uncompetitive. Furthermore, the OP has a different revenue sharing slab and licence renewal price for its franchise licensee in metros than it does for network centres. It is also alleged by the informants that the OP is engaging in market manipulation through the NIIT.tv project, which is an online platform that offers free courses. Due to this, the prospective clients in a franchisee’s region might register online and subscribe for courses through NIIT.tv. The OP is accused of damaging the franchisees’ businesses by directly selling courses to schools, universities, and working professionals via this online platform. Many other such allegations related to this matter were put by the informants against the OP. Based on the aforementioned allegations, the Informants have filed a petition the Commission and prayed to conduct an investigation into the OP’s alleged abuse of dominant position, to direct the OP to discontinue and refrain from entering into any agreement containing allegedly unfair clauses, and to direct the OP to compensate the Informants. The Commission observed that there is no prima facie case framed against the OP. It was held that OP does not possess the market power to act independently of the competitive forces in the relevant market or has the ability to affect its competitors or consumers in the relevant market in its favour. Therefore, the OP is not found to be in a dominant position in the relevant market. it was noted that the prevailing competition is compelling the OP to venture into online mode of delivery though it learning portals such as Training.com, nguru and NIIT.tv.  The prevailing competition is compelling the OP to venture into online mode of delivery. It was also observed that the OP supplies all the necessary course materials and training to its faculty members without discrimination and also equips them with the necessary equipment and training without discrimination. The Commission is of the view that no case under Section 3 is made out against the OP in the instant matters. Owing to differences in the factors such as lower awareness in non-metro areas, lack of affordability by the student in non-metros, responsibility of marketing and placements of students etc., the differential pricing of courses does not seem to be arbitrary. However, Major Pankaj Rai (Informant 1) filed various writ petitions and review petitions before the Hon’ble High Court of Hyderabad. However, the judge stated that writ petitions are liable to be rejected on the ground of availability of the alternative remedy and dismissed the writ petition and the review petition as well. Dissatisfied with the orders of Hon’ble High Court of Hyderabad, the informant moved to Hon’ble NCLAT, where the court dismissed his petition saying that there is no “sufficient cause” for not exercising the statutory right of appeal. he appeals is accordingly dismissed as being barred by limitation. The informant against challenged the orders of Hon’ble NCLAT before the Hon’ble Supreme Court of India, as a Civil Appeal, where the court dismissed his appeal by saying that the appellate tribunal has ruled that the delay in filing an appeal against the decision of a High Court judge to dismiss a petition under Article 226 could not have been acceptable. The legislation requires an appeal to be submitted within sixty days, but the appeal was filed after a delay of seven hundred days.

Case No. 417 NIIT Ltd. Case No. 417 NIIT Ltd. Case No. 417 NIIT Ltd. COMPETITION COMMISSION OF INDIA Case Nos. 47 48 and 417 In Re: Maj. Pankaj Rai Opposite Party Opposite Party In Re: Pankaj Gupta Informant In Re: Shri Lakshmi Reddy Eddula Informant Opposite Party This order shall govern disposal of an application dated 02.04.2021 moved by the Informant in Case No. 417 i.e. Major Pankaj Rai whereby and whereunder the order dated 28.11.2017 passed by the Commission in the present batch of Informations closing the matters finding no contravention of the provisions of the Competition Act Case Nos. 47 48 and 417 2002 is sought to be recalled and reviewed. Separately but concurrently another application of even date has been moved by this Informant seeking condonation of delay of 1193 days in moving the instant review recall application. For appreciating the genesis of and developments leading up to the filing of the instant application it would be appropriate to recapitulate the events arising out of the order dated 28.11.2017 passed by the Commission in a chronological manner which would demonstrate the egregious misconduct of Major Pankaj Rai in abusing the regulatory process whereby a final order passed by the Commission under Section 26(2) of the Act which has been affirmed by the Hon’ble Appellate Tribunal and the Hon’ble Supreme Court in statutory appeals is sought to be reopened. In the captioned matters the Commission vide a common order dated 28.11.2017 passed under Section 26(2) of the Act closed all the three Information finding no case of contravention of the provisions of the Act. This order was put to challenge in judicial review by Major Pankaj Rai by filing a writ petition bearing W.P. No. 422217 before the Hon’ble High Court of Hyderabad. The said writ petition came to be dismissed by a judgment and order dated 14.02.2018 passed by the learned Single Judge of the Hon’ble Hyderabad High Court by noting that the impugned order could be challenged in statutory appeal before the Hon’ble National Company Law Appellate Tribunal NCLAT). The relevant excerpts from this order are noted below: “….This Court has absolutely no scintilla of hesitation nor any traces of doubt to hold that the present writ petitions are liable to be rejected on the ground of availability of the alternative remedy….” 4. Aggrieved thereby and dissatisfied therewith Major Pankaj Rai preferred an intra court appeal before a Division Bench of the Hon’ble High Court of Hyderabad bearing Writ Appeal No. 456 of 2018. The same also came to be dismissed vide an order dated 31.12.2018 passed by the Division Bench by noting the following: Case Nos. 47 48 and 417 “8. The aforesaid position notwithstanding having regard to various submissions made by the appellants touching the merits of the matter and to satisfy ourselves as to whether any critical factor has been ignored for the purpose of exercising the discretion to entertain the writ petitions or not on the face of an admittedly available alternative remedy we had required the learned counsel appearing for the Commission to place before us the entire records relating to the case. We have perused those records. We do not see that the discretion exercised by the learned single Judge by relegating the appellants to the statutory appellate jurisdiction is unfounded on fundamental principles of law. We therefore do not find any ground to interfere with the impugned order. 9. For the aforesaid reasons the Writ Appeals fail. We clarify that even if the appellants were move to the Appellate Tribunal established under the Competition Act the said authority would not be bound by any of the observations made by the learned single Judge in the impugned order or by us through this Judgment in acting upon the statutory appeal in accordance with law…” 5. Against the aforesaid dismissal of the writ appeal Major Pankaj Rai filed a review petition before the Hon’ble High Court. In order to expedite the hearing on the review application Major Pankaj Rai moved a writ petition bearing W.P.No. 13119 before the Hon’ble Supreme Court under Article 32 of the Constitution of India in January 2019 and sought directions from the Hon’ble Supreme Court for early disposal of the review petition filed before the Hon’ble High Court. This writ petition also came to be dismissed whereafter the review petition pending before the Hon’ble High Court was sought to be withdrawn by Major Pankaj Rai. Accordingly the review petition was dismissed with the following order of the Court dated 02.12.2019: “Major Pankaj Rai Party in Person seeks liberty to withdraw the petitions. Therefore the petitions are hereby dismissed as withdrawn”. Case Nos. 47 48 and 417 A bare perusal of the aforesaid order makes it evident that while seeking withdrawal no liberty was prayed for by Major Pankaj Rai much less granted by the Hon’ble Court. Notwithstanding this factual backdrop Major Pankaj Rai has made a false averment in the application filed before the Commission seeking condonation of delay that the review petition was “withdrawn with liberty to approach NCLAT”1926 2020. This review petition was also dismissed by the Hon’ble Supreme Court vide its order dated 27.01.2021. In view of the afore detailed summary of events it is manifestly evident that Major Pankaj Rai was not pursuing his remedies in a bona fide manner. As previously noted the Commission passed a final order under Section 26(2) of the Act closing the matter on 28.11.2017. The statutory appeals filed thereagainst first before the Hon’ble Appellate Tribunal and subsequently before the Hon’ble Supreme Court stand dismissed as noted supra. In these circumstances filing of the instant application seeking review recall of the order dated 28.11.2017 passed by the Commission which has attained finality is gross abuse of the process of law. The Commission has also taken a serious note of the false averment made by Major Pankaj Rai in the application as noted in para 5 of this order. Case Nos. 47 48 and 417 Dated: 03 06 2021 Place: New Delhi In view of the foregoing the applications moved by Major Pankaj Rai stand dismissed. A copy of this order be also conveyed to NIIT Ltd. i.e. the Opposite Party in these matters and a copy of this order be further uploaded on the website of the Commission. 11. The Secretary is directed to communicate to the Informant Major Pankaj Rai Sd Ashok Kumar Gupta) Sd Sangeeta Verma) Sd Bhagwant Singh Bishnoi) Case Nos. 47 48 and 417

The heirs of a deceased employee must be paid the death-cum-retirement benefits along with the interest by the employer: High Court of Jharkhand

When an employee has passed away, the death and retirement benefits owed to him must be paid by the employer to the deceased’s family along the suitable interest. This was held in the judgement passed by a single member bench of the High Court of Jharkhand consisting of Justice Dr. S.N. Pathak in the case of Niraj Kumar v The State of Jharkhand [W.P. (S) No. 7353 of 2019] pronounced on 10th August 2021. The petitioner, Niraj Kumar first approached the court with the prayer that the respondents give him employment on compassionate grounds due to his father’s death as well as pay his father’s death-cum-retirement benefits along with suitable a interest rate to his family. The petitioner’s father, the late Ram Dahin Singh was working as a peon for the Irrigation Department in Jamtara when he died on 30th January 2007. The petitioner had submitted the Succession Certificate along with the other relevant documents to the respondents hoping to be appointed to a post by them. However seeing that they refused to consider his application, he moved to the court hoping for relief through the present writ petition. The petitioner’s counsel later contended before the honourable Court that the petitioner was willing to forgo the appointment on compassionate grounds if he could just be granted the retirement-cum-death benefits with 12% interest that was owed to his family on account of his father’s death which took place more than 14 years ago. The petitioner brought to the notice of the court that he also had a sister who was a legal heir of their father and hence wished for the benefits to be given 50% to him and 50% to his sister. The case of The State of Andhra Pradesh &amp; Another v Smt. Dinavahi Lakshmi Kameswari [Civil Appeal No. 399 of 2021] was cited, where it was held by the Supreme Court of India that retirement benefits owed to an employee cannot be denied to his family if he passes away.

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.No. 73519 Niraj Kumar son of Late Ram Dahin Singh Resident of Sagarpur P.O. and P.S. Makdumpur District Jahanabad Bihar 1. The State of Jharkhand through its Chief Secretary Government of … PETITIONER 2. Secretary Water Resources and Irrigation Department Government of Jharkhand Ranchi Jharkhand Ranchi 3. Executive Engineer Water Irrigation Division Jamtara 4. Deputy Commissioner Jamtara. … … RESPONDENTS CORAM: HON BLE MR. JUSTICE DR. S. N. PATHAK Through : Video Conferencing) For the Petitioner For the Respondents Mr. Ajit Kumar Advocate Mr. Ravi Kerketta AC to AAG IV 14 10.08.2021 In view of outbreak of COVID 19 pandemic case has been taken up through Video Conferencing and heard at length. Concerned lawyers have no objection with regard to the proceeding which has been held through Video Conferencing and there is no complaint in respect to audio and video clarity and quality and after hearing at length the matter is being disposed of finally. Heard the parties. Petitioner has approached this Court with a prayer for a direction upon the respondents to appoint him on compassionate ground on account of death of his father and further to pay all the death cum retiral benefits with interest @12% per annum from the date of due till the date of actual payment. Facts of the case in brief as has been delineated in the writ petition is that petitioner’s father who was working to the post of peon in Irrigation Department Jamtara died in harness on 30.01.2007. After his death petitioner preferred regarding his appointment on compassionate ground. Petitioner was asked to submit Succession Certificate. After obtaining the Succession Certificate in Succession Case 2 No. 1 2009 issued by the Sub Judge 1st Jahanabad Bihar dated 03.09.2010 petitioner submitted the same along with required certificates. Thereafter case of the petitioner was forwarded vide Letter No. 374 dated 27.10.2011 by the respondent no. 3. Since case of the petitioner has not been considered by the respondents he knocked door of this Court by filing instant writ petition. Mr. Ajit Kumar learned counsel appearing for the petitioner very fairly submits that he is not pressing compassionate appointment for the present rather he is claiming payment of retiral benefits along with his sister which would be paid to them in view of Succession Certificate issued by the competent Court and also in view of P.F. Certificate. Learned counsel very fairly submits that since both brothers and sisters have claimed for payment of retiral benefits in view of settled principles of law and in view of equitable justice the respondents may be directed to pay retiral benefits to the petitioner in accordance with law taking into consideration the Succession Certificate and P.F. Certificate. Learned counsel further argues that petitioner’s father died on 30.01.2007 but till date he has not received the death cum retiral benefits and as such he is entitled for the interest also for delayed payment in view of the decision rendered in the case of The State of Andhra Pradesh and Another Vs. Smt. Dinavahi Lakshmi kameswari In Civil Appeal No. 399 of 2021 No. 125520]. Per contra counter affidavit has been filed. Mr. Ravi Kerketta AC to learned AAG IV representing State argues that entire facts have been brought to the knowledge of the State by way of rejoinder filed by the petitioner. Initially petitioner was praying for compassionate appointment which was not acceptable in view of settled proposition of law. However since from rejoinder it has now been gathered that petitioner is rescinding claim of compassionate appointment claim of death cum retiral benefits only shall be considered in accordance with law. If petitioner files representation annexing a copy of the rejoinder and required documents including Succession Certificate P.F. Certificate the same shall be considered in accordance with law. Learned counsel further 3 argues that since petitioner’s sister is also one of the legal heir of the deceased the entire money may be distributed equally amongst them. Be that as it may having heard counsel for the parties and after perusing the documents this Court is of the considered view that since petitioner has rescinded the claim for compassionate appointment and now pressing claim for payment of retiral benefits the same may be extended to him taking into account the Succession Certificate and P.F. Certificate. Petitioner has fairly conceded that if the respondents so desires they may pay 50% of the amount to him and rest 50% to his sister who is also legal heir of the deceased employee and no objection has been raised from either sides as they are siblings. Considering fair submission of the parties particularly petitioner I hereby direct the respondents that if fresh representation is filed by the petitioner annexing the required documents including the Succession Certificate Providing Fund Certificate etc. the same shall be considered in accordance with law and petitioner shall be paid death cum retiral benefits within a period of six weeks from the date of receipt production of a copy of this order. Since the decease employee died on 30.01.2007 and till date retiral benefits have not been paid to the legal heirs and as such taking into consideration the law laid down in the Judgment rendered by the Hon’ble Apex Court in the case of The State of Andhra Pradesh and Another Vs. Smt. Dinavahi Lakshmi kameswarithe respondents are directed to consider for payment of statutory interest also along with retiral benefits. With the aforementioned observations and directions the writ petition stands allowed. Dr. S.N. Pathak J.) RC

Owing to grave injury to the mental health of the rape victim, termination of a 26 weeks pregnancy allowed: High Court of Kerala

The word “shall be presumed” in Section 3 the MTP Act, 1971, clearly shows the intention of the legislature. In the case of rape, anguish on account of the pregnancy is statutorily regarded as a grave injury to the mental health of the pregnant woman, sufficient to terminate the pregnancy on the basis of opinion of two registered medical practitioners. This was said in the case of XXX v Union of India and Ors [WP(C).No.9982 OF 2021] by Mr. Justice Bechu Kurian Thomas in the High Court of Kerala at Ernakulam The facts of the case are that a girl who was a survivor of sexual assault was found to be 6 months pregnant. The sexual assault was allegedly committed by her 14-year-old brother, a report in that regard was filed before the Juvenile Justice Board. The father of the victim has approached the Court seeking a direction to terminate the pregnancy of his daughter. The Petitioner contended that the victim was in fact born as a premature child and has other medical conditions which would also aggravate, if the pregnancy is not terminated. The young age of the victim, the consequences pregnancy will force upon the victim, her parents and even the unborn child are matters which this Court cannot ignore. The Court ordered constitution of a Medical Board to ascertain the possibility of performing medical termination of pregnancy on the victim. The Board found that the termination would involve the risk of the foetus being born alive, of the need for multiple inductions and ainterventions if the induction failed. Subject to this risk, the Board submitted that  the termination could be allowed. The Court referred to the judgment laid down in Ms. X v. State of Kerala and Others [2016 (4) KLT 745] where the Court ordered termination of pregnancy exceeding 20 weeks in the case of rape victims who were not mentally prepared to deliver the child, in order to save their lives. It further referred to the case of Meera Santosh Pal v. Union of India [(2017) 3 SCC 462] where the permission was granted when the pregnancy crossed 24 weeks, in view of the medical reports pointing out the risk involved. After closely analyzing the facts of the present case in the background of the ratio laid in the above cases, the Court observed that “The pregnancy is that of a minor girl of 13 years. The said pregnancy will cause a grave injury to the minor which will remain a scar throughout her life. It may even have the possibility of reminding the victim of the incident of rape. It is obviously not in the interest of the society to have this young victim to undergo the trauma of the incident of rape everyday in her life. The anguish that the pregnancy causes to her will be lifelong and she may have to live with the traumatic experience throughout her life. The parents and the siblings will also have to share this trauma throughout their lives”.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY THE 19TH DAY OF APRIL 2021 29TH CHAITHRA 1943 WP(C).No.9982 OF 2021(W BY ADV. SRI.K.RAKESH UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF WOMEN AND CHILD DEVELOPMENT NEW DELHI PIN 100 001 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY DEPARTMENT OF WOMAN AND CHILD DEVELOPMENT GOVERNMENT SECRETARIAT TRIVANDRUM PIN 695 001 MEDICAL COLLEGE HOSPITAL MANJERI MALAPPURAM DISTRICT PIN 676 121 MEDICAL COLLEGE ADDITIONAL R4 IS SUO MOTU IMPLEADED AS PER ORDER DATED 16.04.2021 IN WP(C)9982 2021 SRI. K.B.UDAYAKUMAR SR.PUBLIC PROSECUTOR SRI. JAGADEESH LAKSHMAN CGC W.P.(C) No.9982 21 :2: THIS WRIT PETITION HAVING BEEN FINALLY HEARD ON 19.04.2021 THE COURT ON THE SAME DAY DELIVERED THE W.P.(C) No.9982 21 :3: Dated this the 19th day of April 2021 Complaining of stomach pain a minor girl of 13 years along with her parents approached the hospital. After physical examination the doctor noticed that the girl was pregnant by almost 2. Pursuant to registration of a crime during investigation it was suspected that the offence was committed by the 14 year old sibling of the victim and a report in that regard was filed before the Juvenile Justice Board. Ext.P2 is the birth certificate which shows the date of birth of the victim as July 2007. The scan report dated 1.4.2021 produced as Ext.P3 shows the foetus as 24 weeks and 4 days old. Contending that the petitioner s daughter is a victim of a rape by her own brother the father of the victim has approached this Court seeking a direction to terminate the pregnancy of his daughter 3. This writ petition came up for admission on 23.4.2021 and a direction was issued to the 3rd respondent at Manjeri immediately constitute a Medical Board to ascertain the possibility of performing medical termination of pregnancy on the victim. Considering the W.P.(C) No.9982 21 :4: gestational age of the foetus it was directed that the report ought to be submitted to court on the same day before 4 p.m 4. Unfortunately even though the Medical Board was constituted the victim was admitted at the Medical College Hospital Kozhikode and hence she could not appear before the 3rd respondent at Manjeri. Thereafter this Court impleaded the Superintendent of Medical College Kozhikode as additional 4th respondent and directed the said respondent to constitute a Medical Board and report to this Court as to whether the medical termination of pregnancy can be performed on the victim. The report was directed to be placed before this Court for consideration today 5. I have heard Adv.Rakesh K. learned counsel for the petitioner Sri.Jagadeesh Lakshman learned Central Government Counsel and Adv.K.B.Udayakumar learned Senior Public Prosecutor 6. Pursuant to the direction mentioned above the learned Government Pleader has made available the report of the Medical Board which was convened on 18.4.2021 with the following 1. Dr.C.Sreekumar Superintendent IMCH Govt.Medical College Kozhikode W.P.(C) No.9982 21 :5: 2.Dr.Nurul Ameen A.M. Deputy Superintendent and Associate Professor Obstetrics and Gynaecology IMCH Govt.Medical College Kozhikode 3.Dr.Priya N RMO and Associate Professor Obstetrics and Gynaecology IMCH Govt.Medical College Kozhikode 4.Dr.Ajithkumar V.T. Head of the Department Pediatrics Govt.Medical College Kozhikode 5.Dr.Beena Guhan Head of the Department examined the patient and arrived at the following observations As per the MTP Act 2021 she is beyond the limit of legal MTP3. There is the chance that the fetus may survive Medical Termination of this pregnancy can be considered accepting the higher risks and facts mentioned above W.P.(C) No.9982 21 :6: 8. From the aforesaid report it is evident that the gestational age of the foetus is 26 weeks and 6 days 9. The position of law regarding medical termination of pregnancy is well settled. When the period of gestation exceeds that prescribed in Sections 3 and 4 of the Medical Termination of Pregnancy Act 1971 medical termination of pregnancy can be carried out only by an order of a court of law. The statute has provided in Section 3 of the Act that if the length of pregnancy exceeds 12 weeks but does not exceed 20 weeks termination can be carried out only after two registered medical practitioners form an opinion that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical and mental health or there is substantial risk to the child after born. Explanation 1 to Section 3 specifies that if the pregnancy is caused on account of a rape committed on the woman it shall be presumed that the anguish caused by the pregnancy would constitute a grave injury to the mental health of the pregnant woman The words used in explanation is “shall be presumed”. The word “shall be presumed” created as a statutory presumption clearly shows the intention of the legislature. In the case of rape the W.P.(C) No.9982 21 :7: anguish on account of the pregnancy is statutorily regarded as a grave injury to the mental health of the pregnant woman sufficient to terminate the pregnancy on the basis of opinion of two registered 10. The period of gestation mentioned above has been changed to 24 weeks by the Amendment Act No.8 of 2021. The Explanation 1 to Section 3 has been changed to Explanation 2 to Section 3. Since in the present case the period of gestation has reached 26 weeks and more the question as to the effect of the amendment and whether the amendment has been notified are not 11. In the instant case the pregnancy is that of a minor girl of 13 years. The said pregnancy will cause a grave injury to the minor which will remain a scar throughout her life. It may even have the possibility of reminding the victim of the incident of rape. It is obviously not in the interest of the society to have this young victim to undergo the trauma of the incident of rape everyday in her life. The anguish that the pregnancy causes to her will be lifelong and she may have to live with the traumatic experience throughout her life The parents and the siblings will also have to share this trauma W.P.(C) No.9982 21 :8: throughout their lives 12. Petitioner contended that the victim was in fact born as a premature child and has other medical conditions which would also aggravate if the pregnancy is not terminated. The young age of the victim the consequences pregnancy will force upon the victim her parents and even the unborn child are matters which this Court 13. This court has in the judgments in ABC v. Union of India othersKLT 279) and Ms. X v. State of Kerala and Others 2016KLT 745) etc ordered termination of pregnancy exceeding 20 weeks in the case of rape victims who were not mentally prepared to deliver the child in order to save their lives. In the judgment in A v Union of India 4 SCC 75] Supreme Court ordered termination of pregnancy in a case where the gestational age was 25 26 weeks. In the decision in Sarmishtha Chakrabortty v. Union of India13 SCC 339] Supreme Court ordered termination of pregnancy when the gestational age was 26 weeks. Similarly in Meera Santosh Pal v. Union of India 3 SCC 462] also permission was granted when the pregnancy crossed 24 weeks in view of the medical reports pointing out the risk involved. In the W.P.(C) No.9982 21 :9: judgment reported in Neethu Narendran v. State of Kerala KHC 157) also this court permitted termination of pregnancy when gestational age crossed 23 weeks. 14. As found in many of the above referred cases the minor victim in this case is also not prepared to deliver a child in the given situation. The threat of severe mental injury to the victim is statutorily presumed under the Explanation to Section 3 of the Act. In view of the trauma that the minor girl has undergone and taking note of the opinion of the medical board I am of the view that the writ petition ought to be allowed permitting termination of pregnancy to be performed on the daughter of the petitioner. 15. In view of the opinion of the Medical Board that the medical termination of pregnancy can be considered if the higher risk and facts mentioned in the report are acceptable this Court elicited the views of the parents of the victim through the counsel for the petitioner. They also expressed their desire to terminate the pregnancy taking into account the traumatic experience for the victim as well as the possible genetic disorders that may befall the unborn child due to the close relationship with the alleged offender of the W.P.(C) No.9982 21 :10: 16. Considering all the above factors it is declared that pregnancy of petitioner s minor daughter is liable to be terminated 17. In the above circumstances since each day s delay would be crucial for the victim and the family I direct the Superintendent of Medical College Kozhikode to terminate the pregnancy of the minor girl who is the victim in Crime No.116 of 2021 of the Nilambur Police Station through competent Doctors under his supervision immediately without delay and if possible today itself or at any rate within 24 hours from 12 p.m. on 19.4.2021. The Medical Board shall maintain a complete record of the procedure performed on the victim girl for termination of her pregnancy 18. There will be a further direction to the doctors to take the tissue of the foetus for DNA identification and maintain the same intact for future purposes especially due to the fact that a criminal case is pending in the instant case 19. The Registry and all concerned shall see that absolute privacy is maintained with respect to the identity of the petitioner while issuing the certified copy of the judgment or otherwise. There W.P.(C) No.9982 21 :11: shall be a direction that copy of the writ petition affidavit the documents annexed to it and the medical report shall not be issued to any third person without obtaining orders from this Court. The writ petition is allowed as above Handover to the learned Government Pleader BECHU KURIAN THOMAS Sd vps W.P.(C) No.9982 21 :12: PETITIONER S S EXHIBITS TRUE COPY OF THE FIR AND FIS IN CRIME NO.116 2021 OF THE NILAMBUR POLICE STATION DATED 1.4.2021 TRUE COPY OF THE BIRTH CERTIFICATE DATED 27.05.2014 OF THE MINOR VICTIM ISSUED BY THE NILAMBUR MUNICIPALITY TRUE COPY OF THE SCAN REPORT OF THE VICTIM ISSUED ON 1.4.2021 FROM CLEAR SCAN DIAGNOSTIC CENTRE NILAMBUR

No pre-arrest bails for those who commit fraud: Punjab & Haryana High Court

Misappropriating the amount which must be paid to the farmers amount to fraud and are inexcusable and if any middle man is found usurping the crop amount of the farmers and left scot-free, it would be an injustice to them. Punjab and Haryana High Court dismissed the bail application in the case of Darshna Rani and Vijay Kumar vs. State of Punjab [CRM-M-1600-2021, CRM-M-2138-2021] presided over by the single bench of Hon’ble Justice H.S Madaan. In the instant case, a petition had been filed by Darshana Rani and her husband Vijay kumar for the pre-arrest grant of bail. An FIR had been lodged against the couple u/s 420, 120-B, 406 IPC by the complainants Baljeet Singh Tiwana and others alleging that the couple and their son had been working as commission agents at village Lassoi; they purchased Kharif (rice crop) but did not make the payment to the concerned farmers, even though they had received the amount from the government. Farmers alleged that the couple used the farmer’s money for their own expenses and purchased properties in the village. Farmers contended that the couple only paid Rs 28 lacs to the farmers, although the total amount payable was Rs 70 lacs. Farmers complained that the couple used the remaining amount for their own benefits and did not pay them. Petitioners argued that they had already paid the entire dues to the farmers and no financial liability are remaining towards the complainants but they had no evidence to prove their innocence. Petitioner’s counsel tried to invoke sympathy of the court by saying that both husband and wife are old and are not keeping good health and that’s why bail should be granted to them. HC Bench stated that “Pre arrest bail is a discretionary relief and is to be granted in exceptional cases and not in a routine. It is meant to save the innocent persons from harassment and inconvenience and not to screen the culprits from arrest and custodial interrogation”. High Court observed that there were serious allegations put up against a couple of frauds. And no plausible and satisfactory explanation came forward from the side of petitioners as to why they could not make payment to the complainants after receiving the price of crops sold by them. Hence, HC gave the decision that the arguments put up by the petitioners were unsatisfactory and insufficient. It was stated that “Leniency and misplaced sympathy cannot be shown to the petitioners by granting concession of pre-arrest bail to them by ignoring the plight of the complainant/farmers, who do hard work and put in a lot of efforts in the agricultural operation hoping to get a reward for such efforts in having good crops and then to earn their livelihood by sale of such crops.” Therefore, High Court instructed the petitioners to pay the due amount to all the farmers and stated that the petitioners had committed grave offence of misappropriation of money of the complainants and for that, they couldn’t be allowed grant of discretionary equitable relief of pre-arrest bail.

on 28 01 CRM M 1600 2021 &CRM M 2138 2021 :1: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH1.CRM M 1600 2021Darshna Rani...... Petitioner VersusState of Punjab...... Respondent2.CRM M 2138 2021Vijay Kumar...... Petitioner VersusState of Punjab...... RespondentDate of decision : 25.1.2021CORAM : HON BLE MR. JUSTICE H.S. MADAAN Present :Mr.Anil Kumar Garg Advocatefor the petitioners in both cases.Mr.J.S. Ghuman DAG Punjab.Mr.Gulam Nabi Malik Advocatefor the complainant. H.S. MADAAN J. Cases taken up through video conferencing.Vide this order I shall dispose of two petitions for grant of pre arrest bail i.e. CRM M 1600 2021 filed by petitioner Darshna Rani and on 28 01 CRM M 1600 2021 &CRM M 2138 2021 :2: CRM M 2138 2021 filed by petitioner Vijay Kumar both of them beinghusband and wife and accused in FIR No.208 dated 12.12.2020 underSections 420 120 B 406 IPC registered at Police Station Sadar Ahmedgarh District Sangrur.Briefly stated the facts of the case as per the prosecution storyare that criminal machinery in this case was set into motion by complainantBaljeet Singh Tiwana and several other persons residents of village Lassoi Police Station Ahmedgarh District Sangrur who in the written complaintsubmitted by them to SSP Sangrur sought registration of the FIR againstthe present petitioners Vijay Kumar son of Milakh Raj his wife DarshnaRani as well as their son Deepak Kumar earlier residents of village Lassoiand presently residing at Guru Teg Bahadur Colony Backside Prem LataHospital Malerkotla. Inter alia in the complaint the complainantscontended that Vijay Kumar and his whole family including his wifeDarshna Rani and son had been working as commission agents at villageLassoi they purchased Kharifbut did not make the payment tothe concerned farmers according to J forms although they had received theamount deposited by the Government with regard to the crops sold by thefarmers the accused had used the money for their own purposes it was withgreat difficulty that the accused had paid an amount of Rs.28 lakhs out oftotal amount of Rs.70 lakhs whereas remaining amount wasmisappropriated accused committing fraud of about 87 lakhs whichincluded payments for earlier crops as well as for Kharif crop the accusedown big properties in the form of four houses in Malerkotla two big plantsin industrial area a cold store on Ludhiana Road two rice shellers at village on 28 01 CRM M 1600 2021 &CRM M 2138 2021 :3: Lassoi and 130 bighas of agricultural land in the name of daughter ofpetitioner Vijay Kumar the accused have created all those properties withthe money belonging to the innocent farmers receiving the amount from theGovernment without paying the same to the farmers concerned earlier also petitioner Vijay Kumar had committed a fraud at Khanna about 30 years agoand then he left that spot a criminal case was registered against him at thattime. On receipt of such complaint formal FIR was registered.Apprehending their arrest in this case petitioners accused hadapproached the Court of Sessions seeking grant of pre arrest bail but theirsuch applications were dismissed by the Court of learned AdditionalSessions Judge Sangrur vide separate orders order dated 29.12.2020. Assuch they have approached this Court asking for similar relief by way offiling separate petitions. Notice of the petition filed by petitioner Darshna Rani had beenissued to the respondent State on 13.1.2021 and notice of the petition filedby petitioner Vijay Kumar has been issued to the State today itself. Mr.J.S.Ghuman DAG Punjab accepts notice on behalf of respondent State.Mr.Gulam Nabi Malik Advocate has also appeared on behalf of thecomplainant. They opposed both the petitions.I have heard learned counsel for the parties besides goingthrough the record.Pre arrest bail is a discretionary relief and is to be granted inexceptional cases and not in routine. It is meant to save the innocent personsfrom harassment and inconvenience and not to screen the culprits fromarrest and custodial interrogation. on 28 01 CRM M 1600 2021 &CRM M 2138 2021 :4: Here there are grave and serious allegations against both thepetitioners of having misappropriated the money payable to thecomplainants which they had received from the Government as sale price ofcrops sold by the complainants through commission agency of the accused.The money runs into lakhs of rupees. There is no plausible and satisfactoryexplanation coming forward from the side of petitioners as to why they havenot made payment to the complainants after receiving the price of crops soldby them to the Government through commission agency of the accused.Learned counsel for the petitioners has tried to render anexplanation that as per normal practice in the villages the farmers receivemoney from the commission agent from time to time which is finallyadjusted against the money payable to them as price of the crops sold by thefarmers through agency of the commission agent. But I find such explanation to be highly unconvincing. Learnedcounsel for the petitioners has just referred to a general practice withoutspecifying as to how much amount had been received by which of thecomplainant on which date which was to be adjusted against the price ofthe crop payable to such complainant. No copies of account books insupport of such contentions have been placed on record. During the course of hearing learned counsel for thepetitioners was asked to get necessary instructions from his clients whetherthey were ready to make the payment to the complainants even ininstallments but he stated that as per instructions received by him from thepetitioners the money stood already paid and the petitioners do not haveany financial liability towards the complainant. The stand taken by the on 28 01 CRM M 1600 2021 &CRM M 2138 2021 :5: petitioners show their adamant attitude. They are taking the plea of paymenthaving already been made without there being sufficient evidence tosubstantiate those contentions. The counsel for the petitioners has tried to invoke sympathy ofthe Court submitting that petitioner Vijay Kumar is an aged person of 63years not keeping good health and he has suffered a paralytic attack in themonth of December 2019 affecting his memory whereas petitioner DarshnaRani is a woman aged about 64 years who is not much aware of thebusiness of the commission agency. Therefore both the petitioners begranted an opportunity to join the investigation and present their version. However I am not impressed by these submissions. Withserious and grave allegations of fraud and misappropriation being thereagainst the petitioners their old age or ailments etc. cannot help them inescaping arrest and custodial interrogation which in this case is found to benecessary for complete and effective investigation and to recover themisappropriated money belonging to the farmers. The Court cannot losesight of the fact that hard earned money running into lakhs of rupeesbelonging to the complaint farmers has been usurped by the petitioners whoare stated to have created huge properties by use of this money and othermoney said to have been misappropriated by the petitioner accused VijayKumar of various farmers at Khanna. Leniency and misplaced sympathycannot be shown to the petitioners by granting concession of pre arrest bailto them by ignoring the plight of the complainant farmers who do hardwork and put in lot of efforts in the agricultural operation hoping to getreward for such efforts in having good crops and then to earn their on 28 01 CRM M 1600 2021 &CRM M 2138 2021 :6: livelihood by sale of such crops. If some middle man successfully usurps theprice of the crops and is allowed to go scot free that shall result inperversity of the justice and would amount to great injustice to the affectedcomplainant farmers. Both the petitioners are stake holders in thecommission agency business and are liable to pay dues of thecomplainant farmers.Learned counsel for the petitioners came up with another pleathat in case any farmer has got any grouse against the petitioners withregard to payment of the price of the crops sold by him through commissionagency of the petitioners he may file a suit for recovery or take any civilaction.This plea deserves to be rejected on the face of it. The Courtsare required to do substantial justice and not to let offenders go scot freeaccepting such like pleas. The petitioners have committed grave offence ofmisappropriation of money belonging to the complainant. They cannot beallowed to succeed in their such designs by grant of discretionary equitablerelief of pre arrest bail to them.In case of State represented by the C.B.I. Versus AnilSharma 1997(4) R.C.R.(Criminal) 268 Hon ble Apex Court had observedthat custodial interrogation is qualitatively more elicitation orientated thanquestioning a suspect who is on anticipatory bail in a case like thisinterrogation of suspected person is of tremendous advantage in gettinguseful informations. Custodial interrogation of the petitioners is definitely required on 28 01 CRM M 1600 2021 &CRM M 2138 2021 :7: to find the necessary details of the criminal acts committed by them and forthe purpose of recovery of money. In case custodial interrogation of thepetitioners is denied to the investigating agency that would leave manyloose ends and gaps in the investigation affecting the investigation beingcarried out adversely which is not called for. Therefore no case for grant of pre arrest bail to either of thepetitioners is made out. Thus the petitions stand dismissed. ( H.S. MADAAN )25.1.2021 JUDGEBrij1. Whether reportable No 2. Whether speaking reasoned Yes

PROPERTY SUIT TO RELEASE SURETY TO BE DISMISSED IN CASE OF MISMATCH OF PROPERTY SUIT : HIGHT COURT OF DELHI

PROPERTY SUIT TO RELEASE SURETY TO BE DISMISSED IN CASE OF MISMATCH OF PROPERTY SUIT : HIGHT COURT OF DELHI Delhi HC Judgment The question as to whether the suit filed by the applicant regarding the use of public land for partnership  and whether the public land rent money paid by  HPCL in return valid in the  eyes of law, was examined by THE HIGH COURT OF DELHI, NEW DELHI, consisting of Justice V. Kameshwar Rao in the matter of Hindustan Petroleum Corporation Limited vs. Mohanjit Singh ( Deceased) the Legal Heirs  [CM No. 32930/2021], on 20.12.2021 The facts of the case were that Mohanjit singh, in partnership established a firm which now the appellant’s brother is in dealership . During Mohanjit’s tenure he secretly entered into a contract of dealership with HPCL during his tenure of partnership in the year 1964. After his retirement he partnership was transferred by another person and in 2006 the  same firm  is proprietorship with the appellants brother who is running the dealership. The land given to HPCL and the deal done by Mohanjit Singh secretly  was concealed from the then partners of the firm and the same land is also  belong to Gaon Sabha and public road. This deal was further concealed by the then partners of the firm i.e the appellant. on January 13, 2016, this Court had asked the appellant HPCL to deposit entire decretal amount due upto January 31, 2016 and also the mesne profits for the future months. The amount was being released to Aniljeet Singh in terms of the orders passed. The appeal for of the respondent HPCL was then considered for the hearing. The learned counsel for the appellant contended that complaint is only to highlight the fraud / concealment by the  respondents / legal heirs of Mohanjit Singh of public money and public  land of Gaon Sabha and the chain of revenue records of ownership of title must be produced before the Court by the ESSO Act, 1974 is concealed. The main motive of the legal heirs is to misuse the public land for their own purpose. The learned counsel for the respondent contended seeking possession of the  suit  property from HPCL. His submission is that the present application filed by Rajneesh Malik is motivated and in continuance of various applications / Suit filed by Sanjeev Malik, from Trial Court to the Supreme Court, to claim the suit property which were rejected /withdrawn.He also states this Court has allowed the release of the security which has been given for release of the amount deposited by HPCL in this Court in the Appeal, as the Appeal filed by HPCL was dismissed.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: December 20 2021 RFA 20 2016 HINDUSTAN PETROLEUM CORPORATION LIMITED Appellant Through: Mr. Avneesh Garg and Ms. Srika Selvam Advs. MOHANJIT SINGHTHR LEGAL HEIRS Respondent Through: Mr. Dhiraj Sachdeva Adv. Mr. Chetanya Puri Adv. for applicant in CM. No. HON BLE MR. JUSTICE V. KAMESWAR RAO V. KAMESWAR RAO J.CM No. 32930 2021 By this order I shall decide this application filed by one Rajneesh Malik S o Late Sh. K.C. Malik aged about 60 years R o B 56 Inderpuri New Delhi with the following prayers: “In the circumstances stated above it is therefore prayed that: a. That the present application objections along with its annexures be placed for consideration by the Hon ble Court Learned Registrar on 21.09.2021. b. The security as directed to be released may kindly not be released before disposal of my submissions made in terms of Annexure A email dated 18.09.2021.” RFA 20 2016 Page 1 The instant application has been filed annexing therewith a communication sent by this Court on the administrative side on September 18 2021 to the petitioner in response to an e mail sent by him to the Hon’ble Chief Justice of India and Hon’ble Chief Justice of this Court dated September 15 2021 which is reproduced as under. In response to the said email the applicant was directed to seek a remedy on the judicial side. “15 09 2021 To The Hon ble Chief Justice of IndiaThe Hon ble Chief Justice of DelhiNew Delhi Respected Sirs 1 Rajneesh Malik age 60 years state that anomaly violation of laws is done in appeal filed by Hindustan Petroleum Corporation Ltd vs Mohanjit Singh thr legal heirs in RFA 20 2015 and in application No. 4605 2020. Thus resulted a setback to justice wrongful gain to private parties and wrongful loss to govt. This is regarding a land on which Mohanjit Singh in partnership established a firm and dealership of retail outlet in year 1964. With passage of time the Mohanjit Singh and his partners retired till 1977. Than a new person in 1977 took over the firm assets and dealership and than in 1986 the same firm become partnership and in 2006 the same firm with assets become proprietorship of my brother for running the dealership. Tho Mohanjit Singh executed partnership deeds along with other partners by transferring a land as his share to newly constituted partnership firm in 1964. The land which he purchased through sale deed of 1964 with address or land khasra No. 113 1 113 2 village Tajpul New Delhi. After transferring the land to partnership firm for establishing RFA 20 2016 Page 2 dealership he secretly individually executed a fabricated lease deed with the than ESSO petroleum company by mentioning factitious address of road address of mile 11 1 Mathura Road New Delhi for retail outlet without the knowledge of partnership firm. In the year 2000 Mohanjit Singh filed a suit of eviction and claiming rent from HPCL. It is important to mention that above khasras belong to gaon sabha and public road recorded in Aks Shizra of year 1953 54(it is notified layout plan of the area) Girdawari KhatunI records of Revenue Department of Delhi Govt. Further the parties in the case concealed the case till the year 2012 from the dealership firm. HPCL disclosed litigation pendency of case in 2012 to my brother. Earlier in above mentioned case in the year 2004 the HPCL filed an affidavit in which HPCL discloses to the courts that the land of dealership is not on the same land as mentioned in lease deed but it is GAON SABHA LAND and address of land is khasra No 113 3 village Tajpul New Delhi and Mohanjit Singh is not the owner of the land and HPCL filed the orders of SDM of the year 1981 and 2001.Doing anomalies violations misrepresentation affidavits regarding public land and public money by LRs the Mohanjit Singh LRs moved an application for release of surety. Objection by HPCL in its statement before the court stated that they will file written statement to the LRs application.! Order Annexed). Later in orders it is found that the HPCL verbally stated for release of surety to LRs before court. On verbal statement by HPCL court ordered release of the surety to return back to LRs( Order Annexed). No written statement filed by HPCL a govt PSU. In the mysterious circumstances it raises the suspicious activities and questions 1) that how a Gaon Sabha Land along with rent money is extorted by private persons Mohanjit Singh and his LRs Amarjit Kaur Aniljit Singh in violation of settled law by Supreme Court of India in which it is required by Hon ble court directing all courts and authorities for safe guard of public lands and public roads for public at large 2) Whether all courts are not bound by Article 141 of constitution of India RFA 20 2016 Page 4 3) how without the written statement of HPCL and by verbal statement of HPCL the surety is being taken back by Mohanjit Singh LRs 4) On whose written instructions HPCL govt PSU not filed written statement in spite of its mention in court orders I request you to save nation propertyand money as per law settled in above mentioned Supreme court judgments Recover public property and money back from Mohanjit Singh and his LRS as per law in above mentioned Supreme Court Judgments restore the land use Public utility services as ordered in above mentioned Supreme Court judgments Stop release of surety back to Mohanjit Singh LRs which is lying deposited in High Court of Delhi in the interest of ion and protect Rule of Law settled by Supreme Court of India Make inquiry investigation and call for records from courts and give hearing to me on this application of complaint before Hon ble Chief Justice of India Hon ble Chief Justice of Delhi.” Suffice to state that the above RFA was filed by Hindustan Petroleum Corporation Limited against the judgment decree dated October 09 2015 of the Trial Court whereby the Trial Court has granted possession of piece of land measuring 200 X 125 X 198 X 125 ft situated at Mile 11 1 Mathura Road New Delhi and mesne profits in favor of the respondents the legal heirs of Mohanjit Singh who has since deceased. When the matter was listed on January 13 2016 this Court had asked the appellant HPCL to deposit entire decretal amount due upto January 31 2016 and also the mesne profits for the future months. RFA 20 2016 Page 5 Pursuant thereto the appellant HPCL has deposited the amount. On an application filed by the respondents legal heirs of Mohanjit Singh the amount was directed to be released upon furnishing security to the satisfaction of the Registrar General. Accordingly Ms. Manjiv Kaur has given the property being BP 10A Jangpura B Mathura Road New Delhi 110014 as a security for the release of the amount. The amount was being released to Aniljeet Singh in terms of the orders passed. The appeal of HPCL was dismissed by this Court on July 31 2019. Paragraph 50 of the judgment reads as under: “50. Pursuant to the order dated 31.01.2016 the appellant has deposited the decretal amount and has further deposited on a monthly basis after paying Rs.2 00 000 to the respondent the differential amount of mesne profits with the Registry of this Court which amount has been kept in an interest bearing FDR. In view of the appeal being dismissed the Registry is directed to forthwith release the entire amount deposited by the appellant in favour of the respondent with upto date accrued interest thereon.” also noted. Thereafter the legal heirs of the deceased respondent filed an application for release of the security as given for release of the amount in their favour. The same being CM No. 4605 2020. The said CM was decided by this Court on September 01 2021 whereby the prayer was allowed wherein the statement made by the counsel for the HPCL was Mr. Dhiraj Sachdeva appears for the respondents i.e. legal heirs in this application. He has filed an affidavit of legal heir Aniljeet Singh. Along with the affidavit he has annexed four documents being copy RFA 20 2016 Page 6 of order dated May 12 2021 passed by Ld. Additional District Judge Tis Hazari Courts in M.Ex.No.01 2021 copy of order dated May 20 2021 passed in Ex.F.A. 11 2021 copy of order dated September 14 2021 passed in Ex.F.A. 11 2021 andcopy of order dated November 19 2020 passed in W.P.(C) No. 6324 2020. He has also filed copy of order dated November 23 2021 passed by DM in appeal filed by the respondents under Delhi Land Reforms Act 1981. His submission is that the present application filed by Rajneesh Malik is motivated and in continuance of various applications Suit filed by Sanjeev Malik from Trial Court to the Supreme Court to claim the suit property which were rejected withdrawn. He has referred to orders dated May 12 2021 in M.Ex. No. 01 2021 and dated May 25 2021 in Ex.RFA NO. 11 221 decided passed by the Trial Court this Court. He also states this Court has allowed the release of the security which has been given for release of the amount deposited by HPCL in this Court in the Appeal as the Appeal filed by HPCL was dismissed. On the other hand Rajneesh Malik the applicant has through Mr. Hari Shankar Advocate filed written submissions on January 11 2021 and December 16 2021. He was also represented in the hearing by Mr. Chetanya Puri Adv. The submissions of the counsel are the applicant’s complaint is only to highlight the fraud concealment by the respondents legal heirs of Mohanjit Singh of public money and public land of Gaon Sabha Khasra Nos. 113 1 113 2 113 3 Village Tajpul Badarpur and false sale deed the chain of revenue records of ownership of title must be produced before the Court by the RFA 20 2016 Page 7 respondents and HPCL which is bound by the ESSO Act 1974 which record is concealed by the respondents legal heirs in all litigations till date from the Courts and notice given by EOW to HPCL to produce complete records since beginning of dealership modus operandi of the respondents legal heirs is to misuse the orders to grab the public land public money and release of surety the surety property is very much linked with land in question of Badarpur Gaon Sabha because the decretal amount which is claimed by respondents legal heirs is on the basis of land being used for petrol pump dealership of HPCL and which belongs to Gaon Sabha Khasra Nos. 113 3 of which they have no title deed but rather the respondents legal heirs throughout the proceedings in the Court filed the false title deed of Khasra Nos. 113 1 and 113 2 counsel for the respondents legal heirs has concealed the complaint case under 156(3) of Cr.P.C. and the status report filed by EOW litigation pending in District Court Saket for cancellation of Decree of RFA 20 2016. Having heard the learned counsel for the applicant and the respondents legal heirs and perused the record at the outset I may state it is a conceded fact that the applicant Rajneesh Malik is the brother of Sanjeev Malik who had has filed various litigations with regard to the suit property. The respondents legal heirs herein have filed an execution petition being M.Ex.No. 01 2021 before the concerned Court in Tis Hazari Delhi seeking possession of the suit property from the appellant HPCL in terms of Decree Judgment dated October 9 2015. Sanjeev Malik had filed objections in the execution proceedings. RFA 20 2016 Page 8 Sanjeev Malik had made a claim with regard to the suit property i.e. Mile 11 1 Mathura Road New Delhi. The objections filed by Sanjeev Malik were dismissed on May 12 2021. The executing Court held the objector Sanjeev Malik has no right title or interest whatsoever in the property. The order dated May 12 2021 of the ld. ADJ is challenged by Sanjeev Malik before this Court in Ex.F.A. 11 2021. This Court vide order dated May 20 2021 had not granted any interim order restraining handing over of the property to the decree holder respondents legal heirs. In fact this Court had directed HPCL to hand over the possession to the respondents herein. I have been informed that the said appeal is still pending consideration before this Court. Even from the orders it is noted that Sanjeev Malik had filed a suit seeking declaration title of the suit property. The plaint was rejected on July 02 2019 and the appeal thereof is pending consideration before the Appellate Court i.e. Additional District Judge. This Court in the order dated May 20 2021 has stated to protect the interest of Sanjeev Malik during the pendency of appeal the suit property may be utilized in whatever manner they deem appropriate however if the respondents intend to sell the property they shall do so only after seeking permission from this Court. That apart Sanjeev Malik had also sought intervention impleadment in the suit before the Trial Court from which the impugned judgment decree arose in the above appeal of which execution was sought. The application was dismissed so also the review petition. The challenge before this Court in Civil Miscellaneous Main) was also dismissed. It is also noted Sanjeev Malik had also RFA 20 2016 Page 9 filed an impleadment application in the proceedings between HPCL and the respondents before the Supreme Court which application was also dismissed. In fact an application was also filed under Order 1 Rule 10 CPC in the present RFA which was withdrawn by Sanjeev Malik as the suit filed by him has been dismissed. During hearing on a specific query to Mr. Sachdeva whether the suit property for which Sanjeev Malik Rajneesh Malik has an issue is the same property which has been given as a security. Mr. Sachdeva would by drawing my attention to the order dated May 29 2017 stated that the property which has been given as a security for release of the amount is BP 10A Jangpura B Mathura Road New Delhi14 and whereas the suit property is Mile 11 1 Mathura Road New Delhi. This position is also confirmed by Mr. Chaitanya Puri learned counsel for the applicant. Mr. Puri’s submission primarily is the decretal amount which is claimed by respondents legal heirs is on the basis of land being used for petrol pump dealership of HPCL and which belongs to Gaon Sabha Khasra No.113 3 for which the respondents legal heirs have no title deed till date and they have filed a wrong title deed of Khasra Nos. 113 1 and 113 2 and as such the public funds must be secured. This submission of Mr. Puri is without merit for the reasons the security surety is given by Ms. Manjiv Kaur who is not a party in the Appeal. The respondents legal heirs are Amarjit Kaur and Aniljeet Singh. The security is for the amount to be released to them. The appeal has been dismissed. The Decree and Judgment dated October 9 2015 has attained finality. In terms of order dated RFA 20 2016 Page 10 July 31 2019 the money has been released to Aniljeet Singh on August 27 2019. The issue raised by the applicant Rajneesh Malik is not with regard to property which is given as security by Ms. Manjiv Kaur but a different property. The pending litigation before the ADJ Suit or the proceeding before the Authority under the Delhi Land Reforms Act can have no bearing on the release of the security surety given by Ms. Manjiv Kaur. The Judgments relied upon by the counsel for the applicant shall have no applicability for the purpose of decision on this application. The present application filed by Rajneesh Malik is clearly motivated. I am refraining from imposing any cost. Any application in future of this nature shall be taken very seriously. The present application filed by the applicant is dismissed. List this matter before the Registrar on January 7 2022 in view of order dated September 1 2021. DECEMBER 20 2021 ak jg V. KAMESWAR RAO J RFA 20 2016 Page 11

Summary Adjudication under Article 226 of the Constitution does not cover question of forgery, fraud and tampering: Delhi High Court

Question of forgery, fraud and tampering require sufficient evidence and are not capable for summary adjudication under Article 226 of the Constitution. The Delhi High Court presided over by J. P. Jalan in the case of Gaurav Jaiswal through his legal guardian Vs. Union of India &amp; Anr., [W.P.(C) 6838/2020]. The brief facts of the case are that the petitioner is an Indian Institute of Technology (“IIT”) aspirant and had appeared for the and appeared for the Joint Entrance Examinations (“JEE”) Mains conducted by the National Testing Agency (“NTA”) in January 2020 and September 2020. The Petitioner contended that the JEE (Main) final marksheet released in September 2020 wrongly included his percentile he attained in the examination conducted in the month of January 2020. The petitioner annexed the print-out of his scoresheet which included his marks of January 2020 and stated is percentile as 9808102888. But the in second edition of JEE Mains in September 2020, the combined scoresheet contained a reduced percentile of 51.8105888. The NTA opposed the petition stating that the scoresheet attached in the petition was a forged one and produced the actual copy of the scoresheet in which the Petitioner had obtained a percentile of 51.8105888, this was verified and supported by the National Informatics Centre. Further, the NTA stated that if the Petitioner obtained a 98 percentile in his January 2020 examination’s he would have been assured of his eligibility in JEE (Advance) and he would have not tried his luck again in September 2020 examination. The Court dismissed the petition on the grounds that the Petitioner had not downloaded and submitted the January’s OMR sheet and on the basis of this it is not possible for the Petitioner to prove the NTA’s stand incorrect. Hence the court stated that, “I am of the view that this is a matter entirely dependent on an adjudication of disputed questions of fact and unsuitable for determination in writ proceedings.”

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 6838 2020 & CM APPL. 23648 2020 Date of Decision : 07th January 2021 GAURAV JAISWAL THROUGH HIS LEGAL GUARDIAN Petitioner Through: Mr. Paras Jain Advocate. UNION OF INDIA THROUGH MINISTRY OF EDUCATION NATIONAL TESTING AGENCY & ANR Through: Mr. Dev P. Bhardwaj CGSC Respondents for UOI R 1. Mr. Arjun Mitra Advocate for R 2 IIT. Mr. Amit Bansal & Ms. Seema Dolo Advocates for R 3 NTA with Ms. Sarika Soam Representative of NTA. HON’BLE MR. JUSTICE PRATEEK JALAN JUDGMENT PRATEEK JALAN J.The proceedings in the matter have been conducted through video conferencing. The petitioner was an aspirant for admission to the Indian Institutes of Technology and other engineering colleges. He participated in the Joint Entrance Examination (Main) W.P.(C) 6838 2020 conducted by the National Testing Agencyin January 2020 and September 2020. The grievance of the petitioner is that the final scoresheet of the JEE examination published by the NTA in September 2020 wrongly reflects the percentile in which he was placed in the January 2020 examination. Learned counsel for the parties inform me that the JEEexamination was conducted in January 2020 and any candidate desiring to improve his her performance was entitled to take the examination again in September 2020. A scoresheet was issued after the January 2020 examination reflecting the percentile in which the candidate was placed in that round. Another scoresheet issued after the September 2020 round contained the candidate’s result in both the rounds of the JEEexaminationwas dependent on the better performance between the January 2020 session and the September 2020 session. The JEEexamination is a computer based examination conducted online. Candidates mark their responses to the questions electronically on OMRsheets which are compared with the correct answers according to the NTA answer key. Prior to the declaration of results NTA also uploads the answer key and the OMR sheets of the candidates to enable consideration of any challenge to the answer key. In the present case the petitioner claims that he was placed in the percentile 98.8105888 in the January 2020 session. The petitioner has annexed a print out of his scoresheet as Annexure 2 to the writ petition6838 2020 scoresheet downloaded by him from the NTA website in January The petitioner thereafter took the JEEexamination again in September 2020 whereafter a combined scoresheet was issued by the NTA a copy whereof has been annexed to the writ petition at Annexure 3 examination. According to the petitioner this is the result of a technical error on the part of NTA and the combined scoresheet of September 2020 does not correctly reflect the percentile in which he was placed in the January 2020 session. The NTA was added as a partyto the present petition by an order dated 23.09.2020 and notice was issued to it returnable on 24.09.2020. In the order dated 24.09.2020 the contention of NTA is recorded to the effect that the scoresheet which is attached at page no. 23 of the paperbook is a forged one and NTA was directed to file the original scoresheet. By a further order dated 25.09.2020 the petitioner’s contention that the scoresheet at page 23 is the correct scoresheet was also recorded and the petitioner was permitted to appear in the JEE examination held on 27.09.2020. It was further directed that the petitioner’s result would not be declared without further orders of the Court and that the petitioner would not be entitled to claim any equity on the account of the said order. W.P.(C) 6838 2020 Pursuant to the order dated 24.09.2020 the NTA filed the original scoresheet of the petitioner which was published after the January 2020 session. The copy of the scoresheet filed by the NTA shows that after the January 2020 session the petitioner was in fact placed in percentile 51.8105888. The NTA has also filed a counter affidavit on 29.09.2020 in which it has sought to substantiate its case regarding the forgery of the scoresheet by the petitioner with the following averments: “1. That present Petition deserves to be dismissed at the outset on the ground that Petitioner has not come before this Hon‟ble Court with clean hands. The Petitioner has premised his entire case on the basis of a forged and fabricated Score Card for Joint Entrance Examination Main) January 2020 which he claims he has downloaded from the website of jeemain.nta.nic.in which is maintained for the JEEExam by Respondent No.3 National Testing Agency NTA). The said score card reflecting Petitioner‟s percentile as 98.8105888 is not a genuine Score Card which is writ large on the face of the document. A comparison of the forged Score Card filed by the Petitioner with the actual Score Card from the official website of JEEshows great variances and points out the following glaring editing and changes made in the forged document: The following score(s) have been fabricated in the as JEEJanuary 2020 Score Card produced by the Petitioner6838 2020 two decimals 99..4721474 which ii) The score against Chemistry subject in the forged document has evidently edited. It is pertinent to mention that the fabricated total score in percentile as well as its subject wise component percentile score have not been awarded to any candidates of JEEJanuary 2020. iii) The Score in digits post decimal against Physics Chemistry Mathematics and total are identically similar and only the digits before the decimal are different iv) The entries against Person with Disability Gender Nationality and the NTA Scores in Words are all in block letters in the Score Card produced by the Petitioner. On the other hand these entry in the Score Card of NTA which is a standard format is in sentence form. It may further be mentioned that the Candidate‟s particulars including Gender Category and Person with Disabilityhave been indicated as mentioned by the candidate in the Online Application Form and are in sentence form only. The aforesaid variances irrefutably establish that the JEE Main) January 2020 Score Card filed by the Petitioner has not been published by the NTA the same being different from the usual format of Score Card issued by The NTA has also annexed alongwith its counter affidavit a report of the National Informatics Centre which provides technical support to the NTA. The NIC report dated 27.09.2020 states as follows: W.P.(C) 6838 2020 “TO WHOMSOEVER IT MAY CONCERN JEE 2020 Candidate s Application Subject: Number: 200310189671 reg. 1. The National Informatics Centre is providing Technical Support to National Testing Agencyfor the JEE 2020. Based on result data and cut off received form NTA NIC published Score Card of January and April September 2020 on JEE(Main) portal. As per the record available in database server the 2. Score Card of the Candidate for January 2020 and April September 2020 are enclosed 200310189671 Scoresheet JAN20.pdf 200310189671 Scoresheet SEP20.pdf). As per the Score Card the NTA Score obtained by 3. the Candidate are 51.8105888 Percentile in January 2020 and 71.3367318 in April September 2020. 200310189671 AuditTrail.pdf). Details of the Audit Trail of Application Number: Yours sincerely Sd Mohd. Anwar Khan)” Thus according to the NIC also the scoresheet placed on record by the NTA is the correct scoresheet of the petitioner. In addition to the above factual averments Mr. Bansal learned counsel for the NTA also submits in the course of arguments that in the event the petitioner had been placed in percentile 98.8105888 in the January 2020 session he would have been assured of his eligibility for the JEEexamination and is very unlikely to have tried his luck in the September 2020 round of the JEE 6838 2020 points out that if the petitioner’s case is accepted he dropped from being placed above the 98th percentile in January 2020 to below the 72nd percentile in September 2020. The petitioner on the other hand has placed on record an affidavit of his brother dated 24.09.2020 seeking to stand by the scoresheet annexed at page 23 of the writ petition. The petitioner has also filed a rejoinder to the counter affidavit filled by the NTA in which this contention has been reiterated. In the rejoinder affidavit a contention has also been raised to the effect that there is a discrepancy between the petitioner’s OMR responses of the September 2020 session as downloaded by the petitioner and the copies placed on record by the NTA. According to the petitioner this shows tampering of his result by NTA and casts doubt on the credibility of the entire process. 11. Mr. Paras Jain learned counsel for the petitioner also relies upon orders passed by this Court in petitions relating to the National Eligibility cum Entrance Test which is also conducted by NTA. The contention of Mr. Jain is that this Court is examining similar disputes regarding tampering of OMR sheets in those writ petitions. 12. Mr. Bansal on the other hand submits that the cases regarding the JEE and NEET are materially different inasmuch as NEET is an offline physical exam where the candidates fill physical OMR sheets in hard copy whereas JEE is an online computer based exam where no physical OMR sheets are filled in by the candidates. Mr. Bansal specifically states that although in certain petitions regarding NEET W.P.(C) 6838 2020 this Court has called for the original documents in order to establish the veracity of the contentions of the petitioners therein there is no case pending with relation to the veracity of the scoring in the JEE being a computer based exam. 13. Without getting into the merits raised in other petitions against NTA I am of the view that in the present case the contention regarding the discrepancy in the OMR sheets is a red herring. The petitioner’s grievances in this regard relate to the September 2020 session which is not the subject matter of the present writ petition at all. There is no challenge in the petition to the September 2020 result declared by NTA. The grievances of the petitioner are based only upon the result which he claims to have achieved in the January 2020 examination being wrongly reflected in the combined scoresheet published by the NTA in September 2020. In these circumstances the grievances of the petitioner regarding the OMR sheets of the September 2020 examination are not germane to the determination of this petition. 14. As far as the January 2020 examination is concerned the petitioner has clearly stated that he did not download his recorded responses of January 2020 as he was satisfied with his performance in that exam. The following averment in the rejoinder affidavit is unequivocal on this aspect: “8. That on seeing the result of the Part 1 JEE Main Examination 2020 dated 17.01.2020 with percentile score of 98.8105888 Petitioner like any prudent person did not download his recorded response of January 2020 dated 17.01.2020 as he was satisfied with his W.P.(C) 6838 2020 performance. However for JEE Main Examination September 2020 Petitioner downloaded his recorded response from the official website of the Respondent and now after matching the a) JEE Main September 2020 recorded response downloaded by Petitioner with b) JEE Main September 2020 recorded response furnished by the Respondent in its Short Affidavit before this Hon‟ble Court Petitioner has been astonished to observe that there is mis match in the recorded response of the JEE Main Examination September 2020. This proves that there has been an internal manipulation on the part of the Respondent firstly with the recorded response and thereafter with the final result dated 12.09.2020.” In these circumstances it is impossible for the petitioner to dispute at this stage that the OMR sheets of January 2020 placed on record by NTA are incorrect. 16. Significantly in answer to the specific query of the Court Mr. Jain submitted that the window for a candidate to download his her OMR responses from the NTA website is prior to the declaration of results. In these circumstances it appears that the contention of the petitioner in the aforesaid paragraph that he did not download his responses of January 2020 because he was satisfied with his score is at the very least misleading. Mr. Bansal also confirms upon instructions from the representative of the NTA who is attending the video conference hearing that the recorded responses of the candidates can only be downloaded prior to the declaration of results. In these circumstances the explanation offered by the petitioner for W.P.(C) 6838 2020 his failure to download the January 2020 OMR responses is not worthy of acceptance. 17. This diversion having been dealt with we return to the original issue regarding the genuineness and veracity of the January 2020 scoresheet annexed by the petitioner at page 23 of the writ petition. The petitioner claims this is the scoresheet downloaded from the NTA website and the inconsistent September 2020 scoresheet is the result of a technical error the NTA stands by the September 2020 scoresheet and characterises the document at page 23 as false and fabricated. I am of the view that this is a matter entirely dependent on an adjudication of disputed questions of fact and unsuitable for determination in writ proceedings. Mr. Jain was given time to consider this and today cites paragraph 11 of the judgment of the Supreme Court in Popatrao Vyankatrao Patil vs. State of Maharashtra & Ors. 2020 SCC Online SC 291 to submit that the existence of disputed questions of fact does not entirely preclude the jurisdiction of the writ court. In paragraph 11 of Popatrao the Court relied upon ABL International Ltd. & Anr. vs. Export Credit Guarantee Corporation of India Ltd. & Ors. 3 SCC 553 and held as follows: “11. No doubt that normally when a petition involves disputed questions of fact and law the High Court would be slow in entertaining the petition under Article 226 of the Constitution of India. However it is a rule of self restraint and not a hard and fast rule. In any case this Court in ABL International Ltd. v. Export Credit W.P.(C) 6838 2020 Guarantee Corpn. of India Ltd. 3 SCC 553 has observed thus: “19. Therefore it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur 1969) 3 SCC 769] this Court even went to the extent of holding that in a writ petition if the facts require even oral evidence can be taken. This clearly shows that in an appropriate case the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and or involves some disputed questions of fact”” I am afraid learned counsel misses the point. Just because something can be done in an appropriate case does not mean it must be done in every case there are cases where the factual disputes raised may be appropriate for adjudication under Article 226 but that is an exceptional position and not the general rule. This is clear enough from the opening sentence of paragraph 11 of Popatrao cited by Mr. Jain and placed beyond doubt by the observations in paragraph 13 of the same judgment: “13. It could thus be seen that even if there are disputed questions of fact which fall for consideration but if they do not require elaborate evidence to be adduced the High Court is not precluded from entertaining a petition under Article 226 of the Constitution. However such a plenary power has to be exercised by the High Court in exceptional circumstances. The High Court would be justified in exercising such a power to the exclusion of other available remedies only when it finds that the W.P.(C) 6838 2020 action of the State or its instrumentality is arbitrary and unreasonable and as such violative of Article 14 of the Constitution of India. In any case in the present case we find that there are hardly any disputed questions of 20. The present case does not in my view fall within the exception carved out by the Supreme Court. As detailed above the NTA has certainly raised a credible doubt as to the genuineness of the scoresheet at page 23 of the writ petition. The technical agency responsible the NIC has looked into the matter and supported its stand. The NTA cannot be said in these circumstances to have acted unreasonably or arbitrarily. The questions of forgery fraud and tampering raised in present case would require elaborate evidence and are not capable of summary adjudication under Article 226 of the Constitution. 21. For the reasons aforesaid the present writ petition is dismissed. The petitioner is however at liberty to take such other remedy as may be available to him in law if he is so advised. PRATEEK JALAN J. JANUARY 07 2021 W.P.(C) 6838 2020

The petitioners were released on bail after being arrested under sections 188, 269, 323, 447, 307, 353, and 504/34IPC: High court of Patna

The petitioners were arrested under section 188 IPC, “Disobedience to order duly promulgated by a public servant”, section  269, “Negligent act likely to spread infection of disease danger­ous to life”, section 323, “Punishment for voluntarily causing hurt”, section 447, “Punishment for criminal trespass”,  and sections 307, 353 and 504/34 of the Indian Penal Code. In connection with Muffasil PS Case No. 113 of 2020 dated 01.05.2020. This judgment was given in the high court of Judicature at Patna by honorable Mr. Justice Ahsanuddin Amanullah on the 6th of August 2021 in the case of Tuntun Kuma and others versus the state of Bihar criminal miscellaneous No. 6569 of 2021, Mr. Bimal Kumar Represented as the advocate for the petitioner, Mr. Sanjay Kumar represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held via video conference. The following are the facts of the case, according to the FIR, the informant is a constable got hold of some boys because they were assembling during the lock-down period and smoking cigarettes, and as the result, the boys assaulted the constable with a brick and injured him, two persons were arrested for the same, their motorcycle was detained there has been allegations that 10- 15 villagers which included the petitioners, they freed the arrested illegally and took them away from the custody of the police. The counsel for the petitioners held that the petitioners who have been accused are falsely implicated as there is no justification for the same and they had no role in the incident. Even the name of the police has not been disclosed the petitioners were merely accused of the allegation of taking the arrested boys along with the other villagers and no overt act has been made. One of the arrested boys has been given anticipatory bail order dated 27.07.2021 passed in Cr. Misc. No. 2902 of 2021. Further, the counsel held that the petitioners have no other criminal antecedent. The additional public prosecutor held that the petitioners were a party to help the accused escape from custody of the police illegally and are guilty of the offense. After considering the facts and circumstances of the case and submissions, the court held that the petitioners will be released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty-five thousand) each with two sureties of the like amount each to the satisfaction of the learned Judicial Magistrate, in connection with PS Case No. 113 of 2020, subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure, 1973 and further, “(i) that one of the bailors shall be a close relative of the petitioners, (ii) that the petitioners and the bailors shall execute bond concerning the good behavior of the petitioners, and (iii) that the petitioners shall also give an undertaking to the Court that they shall not indulge in any illegal/criminal activity.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 65621 Arising Out of PS. Case No. 113 Year 2020 Thana KATIHAR MUFFASIL District Katihar Tuntun Kumar @ Tantan Kumar aged about 20 years Gender Male Son of Birendra Singh. Bharat Singh aged about 30 years Gender Male. Bablu Kumar aged about 20 years Gender Male Both sons of Sitaram Singh. Pramod Kumar aged about 21 years Gender Male Son of Umesh Singh All residents of village Udama Rekha PS Muffasil District Katihar The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State Mr. Bimal Kumar Advocate Mr. Sanjay Kumar Sharma APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 06 08 2021 The matter has been heard via video conferencing 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioners on 02.08.2021 which was allowed 3. Heard Mr. Bimal Kumar learned counsel for the petitioners and Mr. Sanjay Kumar Sharma learned Additional Public Prosecutor for the 4. The petitioners apprehend arrest in connection with Muffasil PS Case No. 1120 dated 01.05.2020 instituted under Sections 188 269 323 447 307 353 and 504 34 of the Indian Penal Code Patna High Court CR. MISC. No.65621 dt.06 08 2021 5. As per the FIR when the informant who is a constable caught some boys from assembling at a place and smoking cigarette during the lock down period he was assaulted by brick which injured him and two persons were arrested and the motorcycle was also detained and then it is alleged that about 10 to 15 villagers including the petitioners came and forcibly freed and took away the arrested two persons from the custody of the 6. Learned counsel for the petitioners submitted that the petitioners have been made accused without any justification as they had no role in the occurrence. Moreover it was submitted that the identification of the police has also not been disclosed and the only allegation against them along with others is that they have managed to take away the two arrested boys who were caught by the police and no overt act has been alleged against them. It was submitted that Vijay Kumar @ Vinay Kumar who was detained and had named Vijendra Kumar as one of the persons who was along with him have been granted anticipatory bail by order dated 27.07.2021 passed in Cr. Misc. No. 29021. Further it was submitted that the petitioners have no other Patna High Court CR. MISC. No.65621 dt.06 08 2021 7. Learned APP submitted that the petitioners had got two accused who were arrested by the police released forcibly and clearly are guilty of such offence 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties in view of the allegation being only that the petitioners along with many others had come and had taken away the two arrested persons without there being any allegation of any assault or overt act or causing any damage to either any person or property as also the fact that they have no criminal antecedent and one of the boys who was arrested as also his accomplice have been granted anticipatory bail the Court is inclined to grant pre arrest bail to 9. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioners be released on bail upon furnishing bail bonds of Rs. 25 000 twenty five thousand) each with two sureties of the like amount each to the satisfaction of the learned Judicial Magistrate 1st Class Katihar in Muffasil PS Case No. 1120 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 Patna High Court CR. MISC. No.65621 dt.06 08 2021 bailors shall execute bond with regard to good behaviour of the petitioners and 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 bonds 10. It shall also be open for the prosecution to bring any violation of the foregoing conditions of bail by the petitioners to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the 11. The petition stands disposed of in the (Ahsanuddin Amanullah J

The petitioner was released on bail after being arrested under Sections 30(a), 41(i)(ii) of the Bihar Prohibition and Excise Act, 2016.: High court of Patna

The petitioner was arrested under Sections 30(a), 41(i)(ii) of the Bihar Prohibition and Excise Act, 2016. This is in connection with Chapra Town PS Case No. 622 of 2020 dated 23.11.2020. This judgment was given in the high court of Judicature at Patna by honorable Mr. Justice Ahsanuddin Amanullah on the 2nd of August 2021 in the case of Kusum Mahto versus the state of Bihar criminal miscellaneous No.9553 of 2021, Mr. Radha Mohan Represented as the advocate for the petitioner and Mr. Nityanand represented the state of Bihar as the additional Public Prosecutor, the proceedings of the court were held via video conference. The following are the facts of the case, the petitioners along with three others were accused of storing liquor at the bank of Ghaghra river, when the police on secret information visited the place, the petitioners were seen fleeing from the spot to the other side via a boat they have been named and identified and the police recovered 50 liters of country-made liquor in ten packets. The counsel representing the petitioners submitted that these accusations are false no solid evidence or independent source of identification was made. The names were taken only because they were known to the informant (assistant sub-inspector of police) since many people fled and only four have been named shows the falsity of the identification. The recovery of the liquor was not made from the premises owned by the petitioners nor do they have any other connection regarding the same therefore section 76(2) of the Bihar Prohibition and Excise Act, 2016 will not come into motion, further, the counsel stated that the petitioners have no criminal antecedent. According to the additional public prosecutor, the petitioners were identified as one of the persons who had run away and the petitioners were at the spot where the same recovery of 50 liters of country-made liquor was recovered and therefore they must be held liable for the same. After considering the facts and circumstances of the case the high court of Patna held that  “as recovery is not from the property of the petitioner and he has no criminal antecedent, the Court is inclined to allow his prayer for pre-arrest bail.” The petitioner will 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  Special Judge, Excise, in connection to PS Case No. 622 of 2020, subject to the conditions laid down in Section 438(2) Cr.P.C., 1973  “(i) 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 the good behavior of the petitioner, and (iii) that the petitioner shall also give an undertaking to the Court that he shall not indulge in any illegal/criminal activity.” The court concluded that “Any violation of the terms and conditions of the bonds or the undertaking shall lead to cancellation of his bail bonds. The petitioner shall cooperate in the case and be present before the Court on each and every date. Failure to cooperate or being absent on two consecutive dates, without sufficient cause, shall also lead to cancellation of his bail bonds. 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.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.95521 Arising Out of PS. Case No. 622 Year 2020 Thana CHAPRA TOWN District Saran Kusum Mahto aged about 48 years Male son of Kailash Mahto resident of Adda no. 2 Roopganj P.S. Chapra Town District Saran at Chapra ... Petitioner s The State of Bihar For the Petitioner s For the State Mr. Radha Mohan Singh Advocate Mr. Nityanand APP CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ... Opposite Party s Date : 02 08 2021 ORAL JUDGMENT 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 27.07.2021 which was allowed 3. Heard Mr. Radha Mohan Singh learned counsel for the petitioner and Mr. Nityanand learned Additional Public Prosecutorfor the State 4. The petitioner apprehends arrest in connection with Chapra Town PS Case No. 622 of 2020 dated 23.11.2020 instituted under Sections 30(a) 41(i)(ii) of the Bihar Prohibition and Excise Act 2016of the Act would not come into play. Further it was submitted that he has no criminal 7. Learned APP submitted that the petitioner was also Patna High Court CR. MISC. No.95521 dt.02 08 2021 one of the persons who had run away when the police reached the spot from where recovery has been effected. 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties as recovery is not from the property of the petitioner and he has no criminal antecedent the Court is inclined to allow his prayer for pre arrest bail. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioner be released on bail upon furnishing bail bonds of Rs 25 000 with two sureties of the like amount each to the satisfaction of the learned Special Judge Excise Saran at Chapra in Chapra Town PS Case No. 6220 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and furtherthat one of the bailors shall be a close relative of the petitioner that the petitioner and the bailors shall execute bond with regard to good behaviour of the petitioner andthat the petitioner shall also give an undertaking to the Court that he shall not indulge in any illegal criminal activity act in violation of any law statutory provisions tamper with the evidence or influence the witnesses Any violation of the terms and conditions of the bonds or the undertaking shall lead to cancellation of his bail bonds. The Patna High Court CR. MISC. No.95521 dt.02 08 2021 petitioner shall cooperate in the case and be present before the Court on each and every date. Failure to cooperate or being absent on two consecutive dates without sufficient cause shall also lead to cancellation of his bail bonds 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 action on the same after giving opportunity of hearing to the petitioner 10. The petition stands disposed of in the (Ahsanuddin Amanullah J J. Alam

Under S.37 of NDPS Act, onus on petitioner to prove not guilty and not likely to commit offence on bail: Himachal Pradesh High Court

While deciding a bail petition under the Narcotic Drug and Psychotropic Substances Act, for a case under section 37 of the act, the onus is on petitioner to prove not guilty of offence and not likely to commit offence on bail. This judgment was passed in the case of Suman vs. State of Himachal Pradesh [Cr.M.P.(M). No. 580/2021] by a Single Bench consisting of Hon’ble Justice Jyostsna Rewal Dua. The petitioner was seeking a normal bail under the section 21 and 29 of the Narcotic Drug and Psychotropic Substances Act, 1985 (NDPS Act). It was the prosecution’s case that while the police of patrolling they received information that sh. Aanchal and his family were selling heroin in their house and on a raid they would find high quantities of the same. on raid, Aanchal his two daughters, the petitioner and minor son was present. They found cash worth Rs. 1,74,000/- and a bag full of brown coloured substance which they found to be heroin. FIR was filed that petitioner was arrested along with family members. The petitioner contended that her living in the House was in normal course and it cannot lead to the inference that she was aware of the presence of contraband. It was also submitted that the petitioner will abide by all conditions and will not influence the prosecution witness or tamper with evidence. The counsel for state argued that all the conditions under Section 37 of NDPS act was satisfied and therefore she is not eligible for bail. In order to avail bail two conditions must be satisfied by the petitioner- court should be satisfied that there are reasonable grounds for believing that petitioner is not guilty of such offence and petitioner is not likely to commit an offence while on bail. The Hon’ble Supreme Court held in the case of State of Kerala vs. Rajesh and Ors. [(2020) 12 SCC 122], the term “reasonable grounds” refers to more that prima- face grounds and contemplates substantial causes for believing that the accused is not guilty of the offence. Further in the case of Mohan Lal vs. State of Rajasthan [2015 6 SCC 222], the term “possession” was held to physical control and intent to exercise the said control. The petitioner was a 20 year old student and had no employment. Her presence in the house was said to be out of natural course. Further, there was no evidence which suggested that the petitioner was in possession of the contraband or knew about the possession other than her presence in her house. On a cumulative assessment of the said facts and the above mentioned case laws, the Hon’ble High Court held that there were sufficient grounds to believe that the petitioner is not guilty of the offence. These grounds were mentioned only with respect to bail under Section 37 of the NDPS act. The court believed that she was a student with no income and employment there is no scope for her to tamper the evidence or witness. The bail petition was allowed with certain conditions.

Hig h C o urt of H.P on 11 05 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.P.(M) No. 5821 Decided on: 10.05.2021Suman ...…petitioner VersusState of Himachal Pradesh respondent CoramMs. Justice Jyotsna Rewal Dua Judge.Whether approved for reporting 1 yesFor the petitioner : Mr. Vijender Katoch Advocate. For the respondent : Mr.Amit Dhumal Deputy Advocate General. Jyotsna Rewal Dua J The petitioner seeks regular bail in FIR No.11 2021 dated 25.01.2021 registered under Section 21 and 29 of the NarcoticDrugs and Psychotropic Substances Act 1985atPolice Station Damtal District Kangra.2.I have heard learned counsel for the parties and gonethrough the status report filed by the respondent­State as well as thedocuments placed on record.3.The prosecution case in nutshell is that on 25.01.2021 while a police party was on patrolling duty near Excise Barrier Toki itreceived a secret information at around 9.35 P.M. that one Sh. Aanchaland his family members were doing business of selling of Heroin in1 Whether reporters of the local papers may be allowed to see the judgment Hig h C o urt of H.P on 11 05 HCHP 2their house and further that a raid of their house at that point of timecould lead to recovery of huge quantity of heroin. Since the informationwas reliable therefore the procedure as contemplated in law wasfollowed by the police officials. Search of the house belonging to saidSh. Aanchal was carried out at around 10.10 p.m. in presence of Sub­Divisional Police Officer. During search Aanchal alongwith his twodaughters including bail petitioner and minor son Sarang was presentin the house. His other son Sikandar was not present there. The raidingparty dug up the courtyard within the boundary of the house. Thisdigging led to recovery of a steel box containing Rs.1 74 000 ­ from oneplace and from the other place a carry bag was recovered containing abrown coloured substance which was ascertained as Heroin. Thecontraband weighed 377.8 grams. All codal formalities were completed.The recovery of contraband led to registration of the FIR in question.Petitioner alongwith her family members present in the house werearrested on 25.1.2021. Since then petitioner is in custody.4.Learned counsel for the petitioner contended that thepetitioner was innocent and has been falsely implicated with the allegedoffences. Petitioner’s presence in her house was in natural course andcannot lead to an inference that she was aware about the presence ofthe contraband in the house or that she was in conscious possession ofthe contraband or that she had control over the contraband allegedly Hig h C o urt of H.P on 11 05 HCHP 3recovered in the FIR or control over the spot from where the recoverywas allegedly effected. Learned counsel further submitted that thepetitioner will abide by all the conditions which may be imposed uponher in case of grant of bail and that she will not influence theprosecution witnesses or temper with the prosecution evidence in anymanner.Learned Deputy Advocate General while opposing the bailplea argued that the instant is a case of recovery of commercialquantity of contraband therefore Section 37 of the NDPS Act would beattracted and that the petitioner has failed to satisfy the conditionsprescribed under Section 37 of the NDPS Act.5. Since quantity of the contraband recovered in the FIR iscommercial therefore provisions of Section 37 of the NDPS Act areattracted which read as under:­“37. Offences to be cognizable and non­bailable.­(1) Notwithstanding anything contained in the Code of CriminalProcedure 1973every offence punishable under this Act shall be cognizable no person accused of an offence punishable for offences undersection 19 of section 24 or section 27A and also for offences involvingcommercial quantity shall be released on bail or on his own bondunless­the Public Prosecutor has been given an opportunity to oppose theapplication for such release and where the Public Prosecutor opposes the application the court issatisfied that there are reasonable grounds for believing that he isnot guilty of such offence and that he is not likely to commit anyoffence while on bail.(2) The limitations on granting of bail specified in clauseof sub­sectionare in addition to the limitations under the Code of Hig h C o urt of H.P on 11 05 HCHP 4Criminal Procedure 1973or any other law for the timebeing in force on granting of bail.”In order to avail bail the petitioner has to satisfyfollowing twin conditions imposed in Section 37 of the NDPS Act:­Court should be satisfied that there are reasonable groundsfor believing that the petitioner is not guilty of such offence andPetitioner is not likely to commit any offence while on bail.Hon’ble Apex Court in12 SCC 122 titled Stateof Kerala and others Versus Rajesh and others after consideringvarious pronouncements held that the expression ‘reasonable grounds’used in Section 37 of the NDPS Act means something more thanprima­facie grounds. It contemplates substantial probable causes forbelieving that the accused is not guilty of alleged offence. It would beappropriate to extract relevant paras from the judgment:­ “19. The scheme of Section 37 reveals that the exercise of power togrant bail is not only subject to the limitations contained underSection 439 of the CrPC but is also subject to the limitation placed bySection 37 which commences with non­ obstante clause. The operativepart of the said section is in the negative form prescribing theenlargement of bail to any person accused of commission of an offenceunder the Act unless twin conditions are satisfied. The first conditionis that the prosecution must be given an opportunity to oppose theapplication and the second is that the Court must be satisfied thatthere are reasonable grounds for believing that he is not guilty of suchoffence. If either of these two conditions is not satisfied the ban forgranting bail operates. 20. The expression “reasonable grounds” means something more thanprima facie grounds. It contemplates substantial probable causes forbelieving that the accused is not guilty of the alleged offence. Thereasonable belief contemplated in the provision requires existence ofsuch facts and circumstances as are sufficient in themselves to justifysatisfaction that the accused is not guilty of the alleged offence. In thecase on hand the High Court seems to have completely overlooked theunderlying object of Section 37 that in addition to the limitationsprovided under the CrPC or any other law for the time being in force Hig h C o urt of H.P on 11 05 HCHP 5regulating the grant of bail its liberal approach in the matter of bailunder the NDPS Act is indeed uncalled for.”It will also be appropriate to refer to13 SCC 447 titled Sujit Tiwari Versus State of Gujarat and another whereinfollowing was observed in relation to satisfaction of requirement underSection 37 of the NDPS Act vis­à­vis facts of that case:­ “10. The prosecution story is that the appellant was aware of what hisbrother was doing and was actively helping his brother. At this stage we would not like to comment on the merits of the allegations levelledagainst the present appellant. But other than the few WhatsAppmessages and his own statement which he has resiled from there isvery little other evidence. At this stage it appears that the appellantmay not have even been aware of the entire conspiracy because even theprosecution story is that the brother himself did not know what wasloaded on the ship till he was informed by the owner of the vessel. Evenwhen the heroin was loaded in the ship it was supposed to go towardsEgypt and that would not have been a crime under the NDPS Act. Itseems that Suprit Tiwari and other 7 crew members then decided tomake much more money by bringing the ship to India with theintention of disposing of the drugs in India. During this period theMaster Suprit Tiwari took the help of Vishal Kumar Yadav and IrfanSheikh who had to deliver the consignment to Suleman who had toarrange the money after delivery. The main allegation made againstthe appellant is that he sent the list of the crew members after deletingthe names of 4 Iranians and Esthekhar Alam to Vishal Kumar Yadavand Irfan Sheikh through WhatsApp with a view to make theirdisembarkation process easier. Even if we take the prosecution case atthe highest the appellant was aware that his brother was indulging insome illegal activity because obviously such huge amount of moneycould not be made otherwise. However at this stage it cannot be saidwith certainty whether he was aware that drugs were being smuggledon the ship or not though the allegation is that he made such astatement to the NCB under Section 67 of the NDPS Act. 11. At this stage without going into the merits we feel that the case ofthe appellant herein is totally different from the other accused.Reasonable possibility is there that he may be acquitted. He has beenbehind bars since his arrest on 4­8­2017 i.e. for more than 2 years andhe is a young man aged about 25 years. He is a B.Tech Graduate.Therefore under facts and circumstances of this case we feel that this isa fit case where the appellant is entitled to bail because there is apossibility that he was unaware of the illegal activities of his brotherand the other crew members. The case of the appellant is different fromthat of all the other accused whether it be the Master of the ship the Hig h C o urt of H.P on 11 05 HCHP 6crew members or the persons who introduced the Master to theprospective buyers and the prospective buyers.12. We however feel that some stringent conditions will have to beimposed upon the appellant.”It would also be appropriate to refer to 2015SCC 222titled as Mohan Lal Vs. State of Rajasthan wherein it was observed thatthe terms “possession” consists of two elements. First it refers to the corpusor the physical control and the second it refers to the animus or intent whichhas reference to exercise of the said control.Present was a case of recovery of commercial quantity ofthe contraband from beneath a courtyard within the house and for thisreason all the family members residing in the house have been madeaccused in the FIR viz:­ Aanchal aged 56 years Suman D O Aanchalaged 20 years Seema D O Aanchal aged 21 years Sarang S O Aanchalaged 17 years and Sikandar S O of Aanchal aged 36 years. But forSikandar all the other family members including the bail petitionerwere arresed on 25.01.2021. Sikandar who statedly absconded wasarrested on 26.3.2021. Sarang S O Aanchal being juvenile wasreleased on bail by the learned Principal Magistrate Juvenile JusticeBoard Kangra on 25.2.2021. No doubt reverse burden under the NDPSAct would be on the petitioner to prove that she had no knowledgeregarding the presence of the contraband and that she was not inconscious possession thereof. In the instant case the facts as theyemerge from the record are that the house belonged to co­accused Hig h C o urt of H.P on 11 05 HCHP 7Aanchal who is father of the bail petitioner. The house was searchedin cold winter month of January at around 10.10 P.M. The petitioner isdaughter of co­accused Aanchal. She is aged 20 years and is neithermarried nor employed. She is a student. Her presence in the house ofher father would definitely has to be construed in natural course. Noovert act has been alleged against her by the investigating agency.Status report does not indicate any criminal history of the petitionerrather it is her fatheragainst whom many cases arestatendly registered in the past. Further as per the status report petitioner’s brotherhad also absconded and could bearrested only on 26.3.2021. Mere presence of daughteraged 20 yearsand a student in her home alongwith her father at around 10.10 P.M.in the month of January in a village in District Kangra would not leadto an automatic inference that she had any knowledge about thecontraband allegedly recovered from beneath the courtyard within thehouse belonging to her father Aanchal. There is no material on record which it can be deduced at this stage that the petitioner was in jointpossession of the contraband alongwith other co­accused persons orthat she was in exclusive possession of the contraband or was incontrol of the place from where the contraband was allegedlyrecovered. Status report also does not indicate that during Hig h C o urt of H.P on 11 05 HCHP 8investigation petitioner had admitted her knowledge or possessionabout the contraband allegedly recovered in the FIR. Also in thestatus report there is no linkage of the petitioner to the source of thecontraband. Though all these aspects are to be deliberated by thelearned Trial Court during trial where inter alia complicity of thepetitioner would require to be proved in accordance with law. However on cumulative consideration of all these facets it can be safely inferredat this stage that the petitioner has been able to show that she neitherhad the knowledge nor possession of the contraband recovered in theFIR. There are reasonable grounds to believe that petitioner is notguilty of offence alleged against her in the FIR. By way of abundantcaution it is clarified that the observations made in this judgment arenot to be treated as if final verdict of petitioner being not guilty hasbeen pronounced. The observations made herein are only for limitedpurpose of adjudicating the bail petition in light of riders placed inSection 37 of the NDPS Act. Petitioner is behind the bars since25.01.2021. Petitioner is an unmarried lady aged 20 years a studentand a local resident. She has no criminal history. Therefore it can bebelieved that she is not likely to commit any offence during bail. Toensure this stringent conditions can also be imposed upon her.Petitioner is resident of Village PO and Tehsil­Indora District Hig h C o urt of H.P on 11 05 HCHP 9Kangra Himachal Pradesh therefore her presence can be ensured inthe trial. Accordingly the present petition is allowed. Petitioner isordered to be released on bail in the aforesaid FIR on her furnishingpersonal bond in the sum of Rs.75 000 ­with one local surety in the like amount to thesatisfaction of the learned trial Court having jurisdiction over thePolice Station concerned subject to the following conditions:­

Omission of a witness cannot be a plausible explanation for the delay in filing the petition under the provisions of Section 311 of Cr.P.C: High Court of Orissa

There was no explanation as to why the petition was filed so belatedly and that the evidence of the proposed witness was necessary for a just decision of the case and the prosecution had deliberately not cited him as a witness. The Hon’ble High Court of Orissa before The Hon’ble Mr. Justice Sashikanta Mishra held such an opinion in the matter of Pradeep Santi Vs. State of Odisha (Vigilance) [CRLMC No. 1571 of 2021].  The facts of the case were associated with an application filed by the petitioner under Section 482 Cr.P.C. The petitioner sought to quash the order passed by the learned Special Judge (Vigilance), Keonjhar dated 03.09.2021 because his prayer to summon a witness was rejected. The petitioner was an accused. The petitioner filed a petition after the closure of the evidence from the prosecution and defence. The said petition was rejected vide order dated 03.09.2021, which was later impugned in the present application. The counsel for the petitioner contended that the petition under Section 311 was rejected by the court below without application for absurd reasons. Furthermore, the counsel stated that the witness was not cited in the charge sheet and that the witness was vital for defence.  The Counsel representing the petitioner submitted that the law permits the court to summon any person as a witness at any stage of the proceeding so as to arrive at a just decision in the case but the rejection of the same was unjust. The Counsel for the opposition stated that the petitioner had filed the petition after the long closure of the evidence and also stated that it was a tactic by the petitioner to delay the conclusion of the trial.  The Hon’ble Court opined that no plausible explanation was presented regarding the delay in filing the petition. After much considerations, The Hon’ble Court held that “All the above factors thus cumulatively persuade this court to hold that there is no compelling necessity to summon the proposed witness to adduce evidence in the case at this belated stage. As such, this court finds no infirmity or illegality in the impugned order so as to interfere therewith.” Therefore, the said case was dismissed.

ORISSA HIGH COURT: CUTTACK CRLMC No. 15721 An application under section 482 of the Code of Criminal Procedure 1973 in connection with V.G.R. Case no.6 of 2014 pending on the file of learned Special Judge Pradeep Santi … Petitioner Versus State of Odisha….. Opp. Party For Petitioner M s. D.K. Mohanty and P.R. Behera Advocates For Opp. Party: Mr. N. Maharana Addl. Standing Counsel for Vigilance. P R E S E N T: THE HONOURABLE MR. JUSTICE SASHIKANTA MISHRA Date of hearing: 26.10.2021 :: Date of Order: 03.11.2021 SASHIKANTA MISHRA J. The petitioner has application under Section 482 Cr.P.C. seeking to quash the order dated 03.09.2021 passed by the 2 learned Special Judge Keonjhar in V.G.R. No. 14 whereby his prayer for summoning a person as witness was rejected. Bereft of unnecessary details the facts of the case are that the petitioner is an accused in the above mentioned case registered on the basis of an FIR lodged by one Antaryami Sahoo before the Vigilance P.S. Balasore on 26.05.2014. After closure of evidence from the side of prosecution as well as defence when the matter was posted for hearing of arguments the petitioner filed a petition on 03.09.2021under Section 311 of Cr.P.C. with prayer to summon one Kamal Lochan Mohanty working as Executive Engineer at Anandapur Electrical Division to adduce evidence in the case. The said petition was rejected vide order dated 03.09.2021 which is impugned in the present application. Heard Mr. D.K. Mohanty learned counsel for the petitioner and Mr. N. Maharana learned Addl. 3 Standing Counsel for Vigilance through hybrid mode and perused the record. It is argued by Sri D.K. Mohanty that the petition under Section 311 was rejected by the court below without application of mind and on untenable reasons. It is further submitted that the prosecution having relied upon Ext. 11 and the proposed witness being a signatory to the said document is a material witness but was deliberately not cited as a witness in the charge sheet by the prosecution. He further submitted that the evidence of the proposed witness is absolutely vital for the defence and also shall enable the court to arrive at a just decision in the case. According to Mr. Mohanty learned court below did not consider the above facts in the right perspective and went on to reject the petition on grounds that are not germane to the issue. Sri Mohanty further argued that law permits the court to summon any person as a witness at any stage of the proceeding so as to arrive at a just decision in the case. 4 But by rejecting the application of the petitioner the concept of fair trial has been given a complete go bye. To fortify his contentions Mr. Mohanty has cited the following decisions: Rabindra Kumar Dey vs. State of Orissa AIR 1977 SC 170 Mohan Lal Shamlal Soni vs. Union of India and another AIR 1991 SC 1346 A. Subair vs. State of Kerala Ram Jeet and Ors. vs. The State AIR 1958 All 439 and Emperor vs. Vasudeo Balwant Gogte AIR 1932 Bom. 279. Standing Counsel for the Vigilance Department has contended that Section 311 Cr.P.C. is not intended to fill up the lacunae in the case of a party and it is only if the court is satisfied that the evidence of a particular witness is necessary for just and fair decision of the case would the power under such provision be exercised. Referring to the facts of the present case Mr. Maharana further Per contra Mr. N. Maharana learned Addl. 5 argued that the petitioner filed the petition under Section 311 Cr.P.C. long after closure of evidence from both sides and when the matter was posted for hearing arguments and hence it is nothing but a tactic employed by him to delay conclusion of the trial. Mr. Maharana further argued that even otherwise the document in question having already been admitted into evidence from the side of the prosecution as Ext.11 without any objection from the side of defence there is no justified reason to summon the proposed witness to prove the same fact again. Sri Maharana has also cited the following decisions to fortify his contentions: Bureau of Investigation 14 SCC 328 State of Haryana vs. Ram Mehar and others 8 SCC 762 Mannan Sk & Ors. vs. State of West Bengal & Anr. AIR SC 2950 Dara Singh @ Rabindra Kumar Pal and others vs. Republic of India 26 OCR 124 Ratanlal vs. Prahlad Jat and others9 SCC Swapan Kumar Chatterjee vs. Central 6 340 and Rajaram Prasad Yadav vs. State of Bihar and another 14 SCC 461. Having heard the rival submissions and the case laws as noted above this court observes at the outset that the position of law as regards the provision under Section 311 Cr.P.C. as laid down in the cases referred to by both the parties is not in dispute and hence it is not felt necessary to refer to each of the said case laws individually. However the law in this regard can be summed up as follows: i) The court has wide powers to summon any person to adduce evidence in a case at any stage of the proceeding. ii) Such power has to be exercised if it is felt necessary to arrive at a fair and just decision of the case. As has been held in Mohan Lal Shamlal Soni a witness can be summoned even after closure of defence arguments. But the paramount 7 consideration for the court is to see if the examination of a witness is essential for just decision of the case. The facts of the case at hand may now be tested in the above legal background. There is no dispute that the case before the trial court is pending at the stage of hearing arguments after closure of evidence from both sides. A perusal of the petition filed under Section 311 Cr.P.C. reveals that the proposed witness namely Kamal Lochan Mohanty had signed on the document marked as Ext.11 but was not cited as a witness in the charge sheet. The petition does not disclose as to how or for what reason the evidence of the said Kamal Lochan Mohanty is necessary when the document on which he has purportedly signed has already been admitted into evidence without any objection from the side of defence or how without such examination it would not be possible to arrive at a just and fair decision in the case. 8 That apart there is no explanation as to why the petition was filed so belatedly inasmuch as if according to the defence the evidence of the proposed witness is necessary for a just decision of the case and the prosecution had deliberately not cited him as a witness then it was open to the defence to summon him as a defence witness at the appropriate time. The same not having been done at the relevant time it becomes difficult for the court to accept that examination of the said person is absolutely vital for the case. Even otherwise the contention of learned counsel for the petitioner that generally at the time of preparation for argument it comes to mind as to who has been omitted to be called as witness cannot in any manner be accepted as a plausible explanation for the admitted delay in filing the petition nor can such an explanation be countenanced within the four corners of the provision under Section 311 of Cr.P.C. 9 All the above factors thus cumulatively persuade this court to hold that there is no compelling necessity to summon the proposed witness to adduce evidence in the case at this belated stage. As such this court finds no infirmity or illegality in the impugned order so as to interfere therewith. The CRLMC is therefore dismissed. Sashikanta Mishra Judge Orissa High Court Cuttack The 3rd November 2021 A.K. Rana

High powered settlement committee accepted the settlement terms proposed by the applicant -THE SECURITY AND EXCHANGE BOARD OF INDIA

High powered settlement committee accepted the settlement terms proposed by the applicant -THE SECURITY AND EXCHANGE BOARD OF INDIA A settlement application filed by the applicant Mr. S. Madhavan and admitting the allegations made in the show cause notice without demanding a personal hearing under settlement regulations,2018 the proceedings were done under S.K. MOHANTY and ANANTA BARUA (WHOLE TIME MEMBER) in settlement application no. 6559 of 2021 A show cause notice was sent to applicant the Independent Director of UFO Movie India Limited the allegation made of that applicant an independent director came across an high sensitive information about the amalgamation of two firms and traded it in the scrip of the company hence the applicant  was alleged to have violated Regulation 4(1) of the PIT Regulations and Sections 12A(d) and 12A(e) of the SEBI Act . Pursuant to the settlement application the High-Powered Advisory Committee considered the settlement terms proposed by the applicant and the disgorgement amount along with 12% simple interest. Considering the settlement done the members exercised the powers conferred under Section 15JB of the Securities and Exchange Board of India Act, 1992 and in terms of Regulations 23 read with Regulation 28 of the Settlement Regulations and placed certain terms and condition and the settlement application was concluded.

SO EFD 2 SD 396 JANUARY 2022 BEFORE THE SECURITIES AND EXCHANGE BOARD OF INDIA SETTLEMENT ORDER in Settlement Application No. 65521 filed by Mr. S. Madhavanin the matter of UFO Moviez India Limited 1. Mr. S. Madhavanfiled a settlement application in terms of the SEBIRegulations 2018proposing to settle without admitting or denying the findings of fact and conclusions of law through a settlement order pending enforcement proceedings initiated against him vide Show Cause Notice bearing No. IVD ID 07 PD SCN UFO 16456 2021 dated July 27 2021 for the alleged violation of Regulation 4(1) of SEBIRegulations 2015and Sections 12A(d) and 12A(e) of the Securities and Exchange Board of India Act 1992from November 20 2014 till September 19 2019. Vide a press release dated November 01 2017 the information related to the composite scheme of arrangement and amalgamation between UFO Moviez India Limited and Qube Cinema Technologies Private Limited was made public. Prior to its publication this information was considered to be a price sensitive information. The applicant by virtue of being the Independent Director of the company came into possession of the price sensitive information and traded in the scrip of the company. In view thereof the applicant was alleged to have violated Regulation 4(1) of the PIT Regulations and Sections 12A(d) and 12A(e) of the SEBI Act. 3. Pursuant to the receipt of the application the authorized representative of the applicant had a meeting with the Internal Committee of SEBI on October 08 2021 and deliberated Settlement Order in respect of Mr. S Madhavan in the matter of UFO Moviez India Limited on the terms of the settlement. Thereafter the applicant vide e mail dated October 20 2021 proposed the revised settlement terms to settle the proceedings initiated against him. 4. The High Powered Advisory Committeein its meeting held on November 09 2021 considered the settlement terms proposed by the applicant and recommended the case for settlement upon payment of ₹19 12 500 Rupees Nineteen Lakh Twelve Thousand Five Hundred only) as settlement amount and ₹1 59 499 as disgorgement amount along with 12% simple interest thereupon from the date of default till the date of submission of Revised Settlement Termsamounting to ₹76 140 (Rupees Seventy Six Thousand One Hundred and Forty only). The aforesaid amount was remitted by the applicant on December 13 2021. The receipt of the above payment is confirmed. 5. In view of the above in exercise of the powers conferred under Section 15JB of the Securities and Exchange Board of India Act 1992 and in terms of Regulations 23 read with Regulation 28 of the Settlement Regulations it is hereby ordered that the proceedings that may have been initiated for the default as mentioned in paragraph 1 above are settled qua the applicant as per the following terms: SEBI shall not initiate enforcement action against the applicant for the said default this order disposes of the proceedings that may be initiated for the said default as mentioned above in respect of the applicant and iii. passing of this order is without prejudice to the right of SEBI under Regulation 28 of the Settlement Regulations to take enforcement actions including commencing proceedings against the applicant if SEBI finds that: any representation made by the applicant in the present settlement proceedings is subsequently found to be untrue b. the applicant has breached any of the clauses conditions of undertakings waivers filed during the present settlement proceedings and there was a discrepancy while arriving at the settlement terms. Settlement Order in respect of Mr. S Madhavan in the matter of UFO Moviez India Limited 6. This settlement order is passed on this 20th day of January 2022 and shall come into force with immediate effect. 7. In terms of Regulation 25 of the Settlement Regulations a copy of this order shall be sent to the applicant and also be published on the website of SEBI. sd sd S.K. MOHANTY WHOLE TIME MEMBER ANANTA BARUA WHOLE TIME MEMBER Settlement Order in respect of Mr. S Madhavan in the matter of UFO Moviez India Limited

The genesis of the instant complaint originates on an application under Section 156(3) of the Code of Criminal Procedure: Calcutta High Court

Petitioner no. 1 had already extended the benefit of Section 438 of the Code of Criminal Procedure in connection with the instant case, and so no further allegation of threat was made. Such an opinion was held by The Hon’ble High Court of Calcutta before The Hon’ble Mr. Justice Harish Tandon and The Hon’ble Mr. Justice Rabindranath Samanta in the matter of  Md. Abdul Hadi @ Abdul Hadi &amp; Anr. Vs. The State [CRM 6937 of 2021].  The facts of the case were associated with an application under Section 438 of Cr.P.C for anticipatory bail in connection with the English Bazaar Police station case. The petitioners were arrested under Sections 195A of the Indian Penal Code in connection with the English Bazaar Police Station and thus filed for anticipatory bail. The Counsel for the petitioner stated that in order to fulfil the motive to keep the petitioners behind the bar, this case was initiated even after petitioner no. 1 had already been extended the benefit of Section 438 of the Code of Criminal Procedure in connection with English Bazar Police Station Case. The Counsel also stated that the police tried to arrest the petitioners even if the statements regarding them were false.  The Counsel representing the state opposed the bail pray and contended that the said complaint was lodged by the de facto complainant because the petitioners threatened the victim to withdraw the case filed against the petitioner no. 1. It was revealed that the FIR was lodged against the petitioner alleging rape on a false promise to marry.  After considering all the facts and submissions The Hon’ble Court ruled out “ Since the petitioner no. 1 has already been extended the benefit of Section 438 of the Code of Criminal Procedure in connection with the aforesaid case and no further allegation of threat has been made, we do not think this is a case where the custodial interrogation of the petitioners, is necessary. However, to avoid any further allegation to see the light of the day, we intend to put certain conditions while granting anticipatory bail… The prayer for anticipatory bail is allowed… The application for anticipatory bail being CRM 6937 of 2021 is thus disposed of.”

transcriber : nandy PB 29 CRM 69321 In Re: An application for Anticipatory Bail under Section 438 of the Code of Criminal Procedure filed on 25.10.2021 in connection with English Bazar Police Station Case No. 1043 of 2021 dated 24.08.2021 under Sections 195A of the Indian Penal Code.of the Code of Criminal Procedure as the de facto complainant alleged that she was threatened by the petitioners. Both the cases are at the stage of investigation. Since the petitioner no 1 has already been extended the benefit of Section 438 of the Code of Criminal Procedure in connection with the aforesaid case and no further allegation of threat has been made we do not think this is a case where the custodial interrogation of the petitioners is necessary. However to avoid any further allegation to see the light of the day we intend to put certain conditions while granting anticipatory bail The prayer for anticipatory bail is allowed Accordingly in the event of arrest the petitioners namely Md. Abdul Hadi @ Abdul Hadi & Taiful Sekh shall be released on bail upon furnishing a bond of Rs.10 000 Rupees Ten thousand only) each with two sureties of like amount each one of whom must be local to the satisfaction of the arresting officer on condition as laid down under Section 438(2) of the Code of Criminal Procedure and on further condition that the petitioners shall meet the Investigating Officer once in week and on further condition that they will not enter into the jurisdiction of the concerned police station where the case has been registered except for the purpose of complying with the conditions as enshrined in the order granting anticipatory bail in both the cases The application for anticipatory bail being CRM 69321 is thus disposed of (Harish Tandon J Rabindranath Samanta J

Delay in a procedure cannot call for dismissal of trial: Himachal Pradesh High Court

Mere delay in a criminal procedure cannot call for a dismissal of the prosecution but should be given enough consideration too while delivering the final verdict. The High Court bench consisting of J. Vivek Singh Thakur shed light upon the issue of the time period under Section 468 of the Code of Criminal Procedure in the matter of Shikhil Katoch v. State of Himachal Pradesh [CRMMO No. 265 of 2019].  The accused was apprehended for possessing 4.06g of heroin and an FIR was registered under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). It was submitted on behalf of the petitioner that and for alleged commission of the offence, as provided under Section 21(a) NDPS Act, the maximum sentence is one-year imprisonment or with fine, which may extend to ten thousand rupees, or with both. Referring to Section 468(2)(b) of Code of Criminal Procedure (Crpc), it was contended that for an offence punishable with imprisonment for a term not exceeding one year, the period of limitation for taking cognizance is one year and as such in the present case, the said period has elapsed. The order was challenged on the basis that the prosecution launched against the petitioner is time-barred and hence, should be quashed. The High Court relied on the Supreme Court judgement in Udai Shankar Awasthi v. State of Uttar Pradesh &amp; another [(2013) 2 SCC 435], where it was held that “question of delay in launching a criminal prosecution may be a circumstance to be taken into consideration while arriving at a final decision, however, the same may not itself be a ground for dismissing the complaint at the threshold, and moreover the issue of limitation must be examined in light of the gravity of the charge in question”. Another issue that was raised was when the time period would be counted. The Court in the case of Vanka Radhamanohari (Smt.) v. Vanka Venkata Reddy &amp; others [(1993) 3 SCC 4], and examining it in the light of legislative intent and meaning ascribed to the term “cognizance” by the Apex Court, made it clear that “Section 473 Cr.P.C. postulates condonation of delay caused by the complainant in filing the complaint and it is the date of filing of a complaint which is material for calculating the limitation period. Thus, the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance”. The High Court held that “in the present case, a plausible and satisfactory explanation for the delay in instituting the prosecution exists and also keeping in view the object and purpose of the enactment of NDPS Act, the interest of society is also there in continuing the prosecution, and accordingly the petition is dismissed”. Click here to read the judgement

Hig h C o urt of H.P on 24 11 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CRMMO No. 2619 Reserved on : October 7 2020 Date of Decision : November 23 2020 Shikhil Katoch ….Petitioner Versus State of Himachal Pradesh ….Respondent. Coram: The Hon’ble Mr. Justice Vivek Singh Thakur Judge. Whether approved for reporting Yes. For the Petitioner : Mr. N.S. Chandel Senior Advocate with Mr. Vinod Kumar Gupta Advocate. For the respondent : Mr. Desh Raj Thakur Additional Advocate General. Vivek Singh Thakur Judge Petitioner alongwith two others is an accused in Criminal Case bearing registration No.118 titled as State v. Prashant Prabhakar plending before Judicial Magistrate 1st Class Court No.II Una in case FIR No.304 2016 dated 16.11.2016 registered in Police Station Una District Una Himachal Pradesh under Sections 21 & 29 of the Narcotic Drugs and Psychotropic Substances Act 1985NDPS Act maximum sentence is one year imprisonment or with fine which may extend to ten thousand rupees or with both. Referring Section 468(2)(b) of Code of Criminal Procedureit is contended that for an offence punishable with imprisonment for a term not exceeding one year the period of limitation for taking cognizance is one year and as such in present case the said period has elapsed on 15.11.2017 whereas challan final report under Section 173 Cr.P.C. has been presented in the Court on 24.5.2018 and the Court has taken cognizance of the alleged offence on 4.6.2018 erroneously. Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …3… 5. In the aforesaid circumstances it is contended that proceedings of the criminal trial pending before the trial Court are liable to be quashed and thus present petition. 6. In response to the petition it is case of respondent State that final report under Section 173 Cr.P.C. in present case was presented in Court on 24.5.2018 by SHO Police Station Una after 18 months for the reason that investigation in this case was carried out by the then Incharge Special Investigation Unit Sub Inspector Ankush Dogra who vide order dated 15.9.2017 prior to lapse of one year limitation period was transferred from District Una to District Kinnaur and in compliance thereof was relieved on 26.9.2017 and at that time he did not hand over the charge of case file of this case and therefore the SHO Police Station Una had sent various wireless messages and emails dated 21.11.2017 28.11.2017 17.2.2018 and 12.3.2018 directing the said Sub Inspector Ankush Dogra to hand over the pending case files but the said Officer did not respond whereupon FIR No.147 2018 dated 22.3.2018 was registered under Section 406 of the Indian Penal Code in Police Station Una District Una Himachal Pradesh against said Ankush Dogra. Copies of Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …4… Transfer Order dated 15.9.2017 and FIR have also been placed on record with the reply. 7. It is further case of respondent State that during the course of investigation of the aforesaid FIR No.1418 conducted by Sub Divisional Police OfficerHaroli Sub Inspector Ankush Dogra had joined investigation on 9.4.2018 and during that he had disclosed that after his relieving from District Una his health was not good and he was not in District Kinnaur as he had proceeded for attending course with effect from 8th December to 24th December 2017 in CBI Academy Ghaziabad and further that with effect from 27.1.2018 to 24.7.2018 he was on medical rest and on earned leave due to health problem. It is claim of respondent State that during investigation on 9.4.2018 the said Ankush Dogra had handed over five case files pertaining to case FIRs No.202 2016 304 2016 16 2017 of Police Station Sadar Una and 222 2017 and 272 2017 of Police Station Haroli District Una to SDPO Haroli District Una who transferred these files to concerned Police Stations and thereafter case file of present casewas handed over to another Investigating Officer and without wasting any further time final report in the present case was Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …5… presented in the Court on 24.5.2018. Therefore it is contended that there is justifiable and valid explanation for delay and thus petition deserves to be dismissed. 8. Learned Arguing Counsel for the petitioner and learned Additional Advocate General have relied upon pronouncements of the Apex Court in Assistant Collector of Customs Bombay & another v. L.R. Melwani & Another AIR 1970 SC 962 Surinder Mohan Vikal V. Ascharaj Lal Chopra 2 SCC 403) State of Punjab v. Sarwan Singh 3 SCC 34 Srinivas Pal v. Union Territory of Arunachal PradeshAIR 1988 SC 1729 Zandu Pharmaceutical Works Ltd. and others v. Mohd. Sharaful Haque and another 1 SCC 122 Japani Sahoo v. Chandra Sekhar Mohanty 7 SCC 394 and Sarah Mathew v. Institute of Cardio Vascular Diseases by its Director Dr. K.M. Cherian & others reported in2 SCC 62 to substantiate their respective contentions. 9. Provisions of Section 468 Cr.P.C. and 473 Cr.P.C. read as under: “468. Bar to taking cognizance after lapse of the period of limitation: Except as otherwise provided elsewhere in this Code no Court shall take cognizance of an offence of the category specified in sub sectionafter the expiry of the period of limitation. The period of limitation shall be Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …6… six months if the offence is punishable with fine only one year if the offence is punishable with imprisonment for a term not exceeding one year three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. For the purposes of this section the period of limitation in relation to offences which may be tried together shall be determined with reference to the offence which is punishable with the more severe punishment or as the case may be the most severe punishment.” “473. Extension of period of limitation in certain cases: Notwithstanding anything contained in the foregoing provisions of this Chapter any Court may take cognizance of an offence after the expiry of the period of limitations if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.” 10. In present case petitioner has assailed impugned order dated 4.6.2018 on which date learned Magistrate has taken cognizance. In the arguments canvassed on behalf of the petitioner relevant date for calculating expiry of the limitation period has been taken the date of taking of cognizance by the Magistrate whereas prosecution in present case has been instituted by submitting final report under Section 173 Cr.P.C. on 24.5.2018. Though filing of final report on 24.5.2018 is also beyond the prescribed period of one year under Section Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …7… 468(2)(b) Cr.P.C. but for avoiding any confusion it is necessary to clarify which of the date would be relevant for computing the period of limitation under Section 468 Cr.P.C. Would it be filing of complaint date of institution of prosecution 11. This issue is no longer res integra being settled by the five Judges Bench of Supreme Court in pronouncement in case Sarah Mathew’s case2 SCC 62] wherein after considering its previous pronouncements it has been held that the judgment in Bharat Damodar Kale & another v. State of A.P. 8 SCC 559 followed in Japani Sahoo’s case7 SCC 394 lays down the correct law for the purpose of computing the period of limitation under Section 468 Cr.P.C. and endorsing observations made in Vanka Radhamanohariv. Vanka Venkata Reddy & others 3 SCC 4 and examining it in the light of legislative intent and meaning ascribed to the term “cognizance” by the Apex Court it is made clear that Section 473 Cr.P.C. postulates condonation of delay caused by the complainant in filing the complaint and it is the date of filing of complaint which is material for calculating the limitation period. Thus relevant date is the date of filing of Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …8… the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. 12. Prior to insertion of Chapter XXXVI in Cr.P.C. by way of amendment in 1973 a Five Judges Bench of the Apex Court in L.R. Melwani’s casehas held that the question of delay in filing a complaint may be a circumstance to be taken into consideration for arriving at the final verdict but by itself it affords no ground for dismissing the complaint prosecution. However now as also clarified in Sarah Mathew’s case2 SCC 62] the Court is empowered to dismiss the complaint or prosecution by refusing to entertain it or by refusing to take cognizance in case filing institution of complaint prosecution is not permissible under Chapter XXXVI of Cr.P.C. 13. After inclusion of Chapter XXXVI in Cr.P.C. dealing with limitation for taking cognizance of certain offences the Supreme Court in Ascharaj Lal Chopra’s case2 SCC 403] has stated that statutes of limitation have legislative policy behind them for instance they shut out belated and dormant claims in order to save the accused from unnecessary harassment and they also save the accused from risk of having to face trial at a time when Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …9… his evidence might have been lost because of the delay on the part of the prosecutor. 14. The Supreme Court in Sarwan Singh’s case3 SCC 34] has stated the object of putting a bar of limitation in the Cr.P.C. on prosecution observing that it is to prevent the parties from filing cases after a long time as a result of which material evidence may disappear and also to prevent abuse of process of the Court by filing vexatious and delayed prosecution long after the date of offence and this object is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India and therefore it is of utmost importance that any prosecution whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation. 15. The Apex Court in Vanka Radhamanohari’s 3 SCC 4] case has explained insertion of Chapter XXXVI in Cr.P.C. and differentiated the provisions of Section 5 of the Limitation Act and that of Section 473 Cr.P.C. and has observed as under: “5. Earlier there was no period of limitation for launching a prosecution against the accused. But delay in initiating the action for prosecution was always considered to be a relevant factor while judging the truth of the prosecution story. But then a court could not throw out a complaint or a police Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …10… report solely on the ground of delay. The Code introduced a separate chapter prescribing limitations for taking cognizance of certain offences. It was felt that as time passes the testimony of witnesses becomes weaker and weaker because of lapse of memory and the deterrent effect of punishment is impaired if prosecution was not launched and punishment was not inflicted before the offence had been wiped off from the memory of persons concerned. With the aforesaid object in view Section 468 of the Code prescribed six months one year and three years limitation respectively for offences punishable with fine punishable with imprisonment for a term not exceeding one year and punishable with imprisonment for a term exceeding one year but not exceeding three years. The framers of the Code were quite conscious of the fact that in respect of criminal offences provisions regarding limitation cannot be prescribed on a par with the provisions in respect of civil disputes. So far cause of action accruing in connection with civil dispute is concerned under Section 3 of the Limitation Act it has been specifically said that subject to the provisions contained in S. 4 to 24 every suit instituted appeal preferred and an application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. Section 5 of that Act enables any court to entertain any appeal or application after the prescribed period if the appellant or the applicant satisfies the court that he had "sufficient cause for not preferring the appeal or making the application within such period". So far Section 473 of the Code is concerned the scope of that section is different. … In view of Section 473 a court can take cognizance of an offence not only when it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained but even in absence of proper explanation if the court is satisfied that it is necessary so to do in the interests of justice. The said Section 473 has a non obstante clause which means that said section has an overriding effect on Section 468 if the court is satisfied on the facts and in the circumstances of a particular case that either the delay has been properly explained or that it is necessary to do so in the interests of justice. Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …11… 6. At times it has come to our notice that many courts are treating the provisions of Section 468 and Section 473 of the Code as provisions parallel to the periods of limitation provided in the Limitation Act and the requirement of satisfying the court that there was sufficient cause for condonation of delay under Section 5 of that Act. There is a basic difference between Section 5 of the Limitation Act and Section 473 of the Code. For exercise of power under Section 5 of the Limitation Act the onus is on the appellant or the applicant to satisfy the court that there was sufficient cause for condonation of the delay whereas Section 473 enjoins a duty on the court to examine not only whether such delay has been explained but as to whether it is the requirement of the justice to condone or ignore such delay. As such whenever the bar of Section 468 is applicable the court has to apply its mind on the question whether it is necessary to condone such delay in the interests of justice. While examining the question as to whether it is necessary to condone the delay in the interest of justice the court has to take note of the nature of offence the class to which the victim belongs including the background of the victim. …” 16. In Sukhdev Raj v. State of Punjab 1994 SuppSCC 398 an application was filed by the prosecution for condonation of delay in instituting prosecution with explanation for delay at a later stage almost at the time of conclusion of trial but before judgment was delivered. The Apex Court has held that in facts and the circumstances of the case if the delay has been properly explained or it is necessary to do so in the interest of justice the Court can take cognizance with further observation that Section 473 Cr.P.C. does not in any clear terms lay down that the application should be filed at the time of filing the challan Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …12… itself and further that the words “so to do in the interest of justice” are wide enough. 17. Dealing with the object of Chapter XXXVI of the Cr.P.C. and Section 473 contained therein the Apex Court in Arun Vyas & another v. Anita Vyas 4 SCC 690 has observed as under: “10. It may be noted here that the object of having Chapter XXXVI in Cr.P.C. is to protect persons from prosecution based on stale grievances and complaints which may turn out to be vexatious. The reason for engrafting rule of limitation is that due to long lapse of time necessary evidence will be lost and persons prosecuted will be placed in a defenceless position. It will cause great mental anguish and hardship to them and may even result in miscarriage of justice. At the same time it is necessary to ensure that due to delays on the part of the investigating and prosecuting agencies and the application of rules of limitation the criminal justice system is not rendered toothless and ineffective and perpetrators of crime are not placed in advantageous position. The Parliament obviously taking note of various aspects classified offences into two categories having regard to the gravity of offences on the basis of the punishment prescribed for them. Grave offences for which punishment prescribed is imprisonment for a term exceeding three years are not brought within the ambit of Chapter XXXVI. The period of limitation is prescribed only for offences for which punishment specified is imprisonment for a term not exceeding three years and even in such cases wide discretion is given to the Court in the matter of taking cognizance of an offence after the expiry of the period of limitation. Section 473 provides that if any Court is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice it may take cognizance of an offence after the expiry of the period of limitation. This section opens with a non obstante clause and gives overriding effect to it over all the other provisions of Chapter XXXVI.” Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …13… . “14. It may be noted here that section 473 Cr.P.C. which extends the period of limitation is in two parts. The first part contains non obstante clause and gives overriding effect to that section over sections 468 to 472. The second part has two limbs. The first limb confers power on every competent Court to take cognizance of an offence after the period of limitation if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained and the second limb empowers such a Court to take cognizance of an offence if it is satisfied on the facts and in the circumstances of the case that it is necessary so to do in the interests of justice. It is true that the expression in the interest of justice in section 473 cannot be interpreted to mean in the interest of prosecution. What the Court has to see is interest of justice . The interest of justice demands that the Court should protect the oppressed and punish the oppressor offender. .” 18. A three Judges Bench of the Apex Court in State of H.P. v. Tara Dutt & another 7 SCC 656 the Magistrate had taken cognizance in the complaint filed after expiry of the period of limitation and had rejected the application of the accused filed under Section 245 Cr.P.C. for discharging him on the ground that the complaint was barred by limitation. The application was not rejected by invoking the provisions of Section 473 Cr.P.C. but excluding the time spent for obtaining the consent or sanction of the appropriate Government by invoking provisions of Section 473(3) Cr.P.C. The Apex Court had found that no such sanction or Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …15… consent was required under Section 13(3) of the Official Secrets Act 1923 and thus period spent in obtaining the order and filing the complaint cannot be excluded under explanation to Section 473(3) Cr.P.C. However considering the right of complainant for extension of time under Section 473 Cr.P.C. it was held that on the facts and circumstances the delay was explainable before the Magistrate which had occasioned on account of bonafide belief to obtain sanction for the purpose of filing the complaint. However instead of directing the complainant to approach the trial Magistrate for the said purpose the complainant was held to have explained the delay in filing the complaint and complaint was held to be within time without remanding the matter to the Magistrate with observation that no useful purpose would be served again by again directing the complainant to approach the trial Magistrate for the purpose of extension of period of limitation. 20. Power of the Magistrate to extend the limitation period in terms of Section 473 Cr.P.C. has been dealt with by the Apex Court in Mohd. Sharaful Haque’s case1 SCC 122] observing that this power can be exercised only when the Court is satisfied on the facts and the Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …16… circumstances of the case that the delay has been properly explained or that it is necessary to do so in the interest of justice. 21. Similarly in Ramesh and others v. State of T.N. 3 SCC 507 relying upon exposition of law explained in Arun Vyas’s4 SCC 690] case supra benefit of Section 473 Cr.P.C. was extended to the complainant and like Rakesh Kumar Jain’s7 SCC 656] case supra case was not remanded to the Magistrate for reconsideration with observation that such course would be unnecessary and inexpedient for the reason that entitlement for extension of limitation period was apparent from the facts apparent from the record before the Apex Court. 22. The Supreme Court in Udai Shankar Awasthi v. State of Uttar Pradesh & another 2 SCC 435 referring Japani Sahoo supra Sajjan Kumar v. Central Bureau of Investigation 9 SCC 368 and NOIDA Entrepreneurs Association v. NOIDA & others 6 SCC 508 has held that question of delay in launching a criminal prosecution may be a circumstance to be taken into consideration while arriving at a final decision however the same may not itself be a ground for dismissing the complaint at the Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …17… threshold and moreover the issue of limitation must be examined in light of gravity of the charge in question. In the same judgment referring State of Maharashtra v. Sharadchandra Vinayak Dongre & others 1 SCC 42 and Tara Dutt’s case supra it has been reiterated that the Court while condoning delay has to record the reasons for its satisfaction and the same must be manifest in the order of the Court itself and the Court is further required to state in its conclusion while condoning such delay that such condonation is required in the interest of justice. 23. Main issue referred before the Larger Bench in Sarah Mathew’s case2 SCC 62] was to determine the relevant date for the purpose of computing the period of limitation under Section 468 Cr.P.C. However certain observations made therein after taking into consideration earlier pronouncements being referred hereinafter would be relevant for the purpose of present case. In this judgment the Supreme Court has observed that before introducing Chapter XXXVI in Cr.P.C. approach of the Court while dealing with cases of delay in launching prosecution was that in any case prosecution could not have been quashed on the sole ground of delay in filing the same but it may be a circumstance to be taken into consideration in Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …18… arriving at final verdict and by itself it affords no ground for dismissing the complaint. It is further observed that this position underwent a change to some extent after introduction of Chapter XXXVI was introduced in Cr.P.C. It has also been observed that it is equally clear that law makers did not want cause of justice to suffer in genuine cases and therefore in Chapter XXXVI Cr.P.C. provisions of exclusion of time in certain casesfor exclusion of date on which the Court is closedfor continuing offencesand for extension of period of limitation in certain caseshave been incorporated and it is further observed that Section 473 is crucial and it empowers the Court to take cognizance of an offence after the expiry of the period of limitation if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or it is necessary to do in the interest of justice and therefore Chapter XXXVI Cr.P.C. is not loaded against the complainant. Further that it is true that the accused has a right to have a speedy trial which is a facet of Article 21 of the Constitution but Chapter XXXVI Cr.P.C. does also not undermine this right of accused and while this Chapter encourages diligence by providing for limitation it does not Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …19… want all prosecutions to be thrown overboard on the ground of delay rather it strikes a balance between interest of the complainant and interest of the accused. It has further been observed that where the Legislature wanted to treat certain offences differently it provided for limitation in the Section itself for instance Sections 198(6) and 199(5) Cr.P.C. however it chose to make general provisions for limitation for certain types of offences for the first time and introduced them in Chapter XXXVI Cr.P.C. The Supreme Court has further observed that the object of criminal law is to punish perpetrators of crime and a crime never dies but at the same time it is also the policy of law to assist the vigilant and not the sleepy. Chapter XXXVI Cr.P.C. maintains the balance between aforesaid object and policy of Law. 24. Though issue with respect to applicability of Section 473 Cr.P.C. to the offences prescribed in other enactments is not directly involved in present case however for clarity it would be relevant to refer that in P.P. Unnikrishnan & another v. Puttiyottil Alikutty & another 8 SCC 131 the Apex Court has held that the extension of period contemplated in Section 473 Cr.P.C. is only by way of extension to the period fixed as per the Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …20… provisions of Chapter XXXVI of the Cr.P.C. and therefore this Section cannot operate in respect of any period of limitation prescribed in any other enactment. Similarly in Subodh S. Salaskar v. Jayprakash M. Shah & another 13 SCC 689 it has been observed that provisions of Section 5 of Limitation Act and Section 473 Cr.P.C. are not applicable in cases under Section 138 of the Negotiable Instruments Act. 25. Learned counsel for the petitioner putting reliance on Para 7 of judgment of Supreme Court in Srinivas Pal’s casehas contended that taking of cognizance without condoning delay was bad and without jurisdiction. As a matter of fact in this para the Supreme Court has quoted the aforesaid observations by saying that attention of the Court was also drawn to judgment of Gauhati High Court wherein it is so held. As evident from Para 9 of the judgment wherein the Apex Court has clearly observed that it was not necessary in the facts and the circumstances of that case to decide the issue whether cognizance was properly taken whether the extension of period of limitation under Section 473 Cr.P.C. must precede taking of cognizance of offence whether cognizance in that case was taken on a particular Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …21… date the case was decided having regard to the nature of offence and enormous of delay of 9½ years in proceeding with the criminal prosecution with respect to a case of rash and negligent driving. 26. From aforesaid discussion and pronouncements of the Apex Court it is concluded as under:For the purpose of calculation of period of limitation date of filing of complaint or institution of prosecution is relevant and not the date of taking cognizance.The Magistrate can discharge an accused after taking cognizance of an offence by him before the trial of the case. In a case where Magistrate takes cognizance of an offence without taking note of Section 468 Cr.P.C. most appropriate stage at which the accused can plead for his discharge is the state of framing the charge without waiting for completion of the trial. The Magistrate will be committing no illegality for considering that question and discharging the accused at the stage of framing the charge if the facts so justify. While doing so Magistrate shall consider the question of limitation taking note of Section 473 Cr.P.C. in the light of law laid down by the Supreme Court discussed supra. The Magistrate has jurisdiction to consider the material placed before it and nature and gravity involved in the case for the purpose of extension of limitation period under Section 473 Cr.P.C. Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …22… The Magistrate has jurisdiction to consider the explanation put forth by complainant prosecution for the purpose of extension of limitation period under Section 473 Cr.P.C.The complainant Investigating Agency has to explain the cause of delay properly to the satisfaction of the Magistrate in the complaint challan final report.Power and jurisdiction of the Magistrate to extend the period of limitation is not inhibited for not explaining the circumstances properly but even then the Magistrate has power to extend the period of limitation if he finds it necessary to do so in the interest of justice as the period of limitation can be extended in either case i.e. either for satisfactory proper explanation of facts and circumstances causing delay or necessity to do so in the interest of justice. Filing of application for extension of period of limitation under Section 473 Cr. P.C. is not envisaged under Cr.P.C. but the necessary ingredients required for such extension must be placed on record in complaint final report under Section 173 Cr.P.C. However filing of separate application at any stage but before final order judgment is also permissible.When offence is such that applying rule of limitation will give an unfair advantage to the accused resulting into miscarriage of justice the Court may take cognizance of an offence after the Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …23… expiry of period of limitation in the interest of justice. At the time of taking cognizance in time barred complaint institution of prosecution the Magistrate is required to give weightage and consideration to the provisions of Section 473 Cr.P.C. and to exercise discretion solely on the basis of well recognized principles and pass a speaking reasoned order indicating satisfaction or dissatisfaction with respect to proper explanation of circumstances causing the delay and or cause for considering or not considering it necessary to extend the period of limitation in the interest of justice. Reasons for granting or disallowing extension of period of limitation must be manifest. At the time of taking cognizance of a time barred complaint or initiation of prosecution it is not necessary for the Magistrate to call the accused as the Magistrate is empowered to extend the period of limitation on his satisfaction to the ingredients of Section 473 Cr.P.C. for which such extension can be granted. However respondent accused has a right to raise the issue of delayed filing of complaint launching of prosecution at the time of conclusion of trial more particularly with reference to the prejudice caused to him. Even otherwise calling of respondent accused at the time of taking cognizance for dealing with issue of extension of time period would unnecessarily delay the taking of cognizance in the matter. Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …24… In case there is lapse on the part of the Investigating Agency complainant to explain the cause of delay in filing complaint final report under Section 173 Cr.P.C and it is considered by the Magistrate that extension of the limitation period is necessary in the interest of justice complainant Investigating Agency may be permitted to place on record the facts and the circumstances either by filing an application or otherwise to satisfy the Magistrate with respect to grounds for extension of limitation period. Even otherwise there are two limbs of Section 473 Cr.P.C. providing two different grounds for extension of time period i.e. for proper explanation of delay or when it is necessary to do so in the interest of justice. These two grounds are independent of each other. If either of condition is fulfilled the Court may extend the period of limitation. There may be cases wherein either of the grounds is available for extension of limitation period and there may be cases wherein both grounds exist for doing so. 27. Drug addiction is a menace causing damage to the entire society and illicit drug trafficking and drug abuse are increasing day by day at national and international level and to curb this evil apart from social awareness programmes stringent provisions for control and regulation of operation relating to the narcotic drugs and psychotropic substances have been enacted by means of NDPS Act. At Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …25… the time of adjudication of cases relating to NDPS Act the object and purpose of enactment is always to be kept in mind particularly at the time of interpretation of provisions of related enactments and the Court when dealing with provisions providing period of limitation for instituting prosecution in cases of this nature should give due weightage and consideration to the provisions of extension of limitation period as provided under Section 473 Cr.P.C. which starts with non abstante clause providing that notwithstanding anything contained in Chapter XXXVI of the Cr.P.C. may take cognizance of an offence after the expiry of period of limitation if it is satisfied on the facts and in the circumstances of the case that delay has been properly explained or that it is necessary so to do in the interest of justice. 28. In present case as brought on record in reply of the respondent State there is satisfactory explanation with respect to the facts and the circumstances in which delay has been caused in launching prosecution against the petitioner and further keeping in view the object and purpose of NDPS Act it would be necessary to take cognizance of the offence more particularly in view of the explanation now brought on record. Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …26… 29. Though as held by the Apex Court supra the Magistrate was under obligation to pass a reasoned speaking and manifest order at the time of taking cognizance of a time barred prosecution. But the Magistrate has omitted to do so. However In the light of pronouncements of the Apex Court in Ramesh’s and Rakesh Kumar Jain’s cases supra I do not consider it useful to remand the case to the Magistrate to assign reasons for taking cognizance. 30. As discussed supra in present case plausible and satisfactory explanation for delay in instituting the prosecution exists and also keeping in view the object and purpose of the enactment of NDPS Act interest of society is also there in continuing the prosecution and accordingly the petition is dismissed. 31. It is also noticeable that in present case neither complete facts were brought on record before the Magistrate nor at the time of filing the challan any single word was uttered explaining the reasons for not filing the challan final report under Section 173 Cr.P.C. in the Court within limitation period applicable to the present case. There is lapse on the part of the Officer who has filed the challan for failure on his part to place the complete facts Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …27… and circumstances before the Court to satisfy it on the facts and circumstances causing delay in filing final report. 32. There is one more issue in this case. Though FIR No.147 2018 dated 22.3.2018 was registered against Sub Inspector Ankush Dogra but as per copy of final report submitted under Section 173(2) Cr.P.C. that FIR placed on record with the reply of respondent State it is evident that cancellation of the said FIR was proposed outcome whereof has not been disclosed. Cancellation has been proposed on the basis of explanation put forth by Sub Inspector Ankush Dogra and the said explanation as reproduced in the reply as well as indicated in the final report under Section 173(2) Cr.P.C. is that at relevant point of time on his transfer vide Transfer Order dated 15.9.2017 he was relieved immediately on 26.9.2017 and at that time he was not feeling well was also having charge of Special Investigating Team and was not present in the Office and thus he could not hand over the charge. The said Officer is a responsible Officer working as Sub Inspector. Further for not responding to the wireless and mail messages of SHO the explanation given is that since 8.12.2018 to 24.12.2018 he was attending a course in CBI Academy Ghaziabad and during the period from Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …28… 27.1.2018 to 24.7.2018 he was on medical and earned leave. The file was requisitioned by the SHO from the said Ankush Dogra on 21.11.2017 28.11.2017 17.2.2018 and 12.3.2018. Even if plea of SI Ankush Dogra is considered to be true and correct then also there is no reason for not responding to the aforesaid communications as he attended the course w.e.f. 8.12.2017 but messages sent by SHO on 21.11.2017 28.11.2017 are prior to that. Otherwise also such a responsible Officer holding the post of a Sub Inspector is supposed to behave in responsible manner and at least to have knowledge that case files pertaining to investigation in five FIRs were not his personal property and he must be well conversant with the consequences of delay in investigation or launching prosecution therein. He is not only liable to face criminal proceedings but also Departmental Enquiry for dereliction in duty. His explanation for not handing over the files at the time of transfer or after relieving and for not responding to the communications of the SHO not only appears to be false but also is definitely absurd. In case there was no one available in the office it was incumbent upon the Officer to report to the higher authorities i.e. Deputy Superintendent of Police or Superintendent of Police for handing over the Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …29… case files which were in his possession. He has not only illegally kept the files with him but has also obstructed further investigation and action in those cases for extraneous reasons. It appears that the Officer proposing cancellation of FIR No.147 2018 has not applied his mind properly or probably he has been influenced by the fact that the delinquent was his colleague in the Department and thus has proposed cancellation of FIR. Concerned authorities have also failed to take departmental action and to register the FIR under proper provisions. 33. The Director General of Police Himachal Pradesh is directed to look into the matter personally and uninfluenced by the observations made above to take appropriate action(s) in accordance with law to take the matter to logical end with respect toretention of files by Sub Inspector Ankush Dogra the omission and commission of the concerned Police Officer authority for not taking appropriate action against him andfor submitting a cancellation report in case FIR No.147 2018 registered in Police Station Una on the basis of illogical explanation put forth by Sub Inspector Ankush Dogra and also to seek explanation from the Officer who failed to Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …30… explain the cause of delay in presenting challan in present case also be called. 34. The Director General of Police Himachal Pradesh is also directed to circulate necessary instructions to the Investigating Officers advising them to properly explain the facts and circumstances in the challan final report which have caused delay in time barred institution of prosecution so as to satisfy the Magistrate for extension of period of limitation. 35. Conclusion drawn on the basis of pronouncements of the Apex Court in Para 26 may also be circulated to the Investigating Officers and Magistrates by the Director General of Police and Registrar General of this Court respectively. 36. Affidavit of compliance of Paras 32 to 35 be filed by the Director General of Police Himachal Pradesh on or before 31.12.2020. 37. The petitioner is directed to appear before the trial Court on 28.12.2020 either in person or through counsel. 38. The Registry is directed to place a copy of this judgment before the Registrar General of this Court for Hig h C o urt of H.P on 24 11 HCHP CRMMO No.265 2019 …31… compliance and send back the record of the trial Court immediately. 39. The petition stands disposed of so also pending application if any. Be listed on 5th January 2021 only for the purpose of compliance report by the Director General of Police Himachal Pradesh. November 23 2020(sd) Judge.

Witnesses cannot be routinely recalled on the ground that cross-examination was not proper for reasons attributable to a counsel: High Court of Delhi

The rejection or acceptance of an application filed under Section 311 Cr.P.C. is closely linked with guaranteeing a fair trial not only to the accused but also to the victims, witnesses and society at large. Witnesses cannot be allowed to be routinely recalled on the ground that cross-examination was not proper for reasons attributable to a counsel. Sufficient and cogent reasons must exist for a Court to permit recall of witnesses, particularly in cases of heinous offences and the same was upheld by High Court of Delhi through the learned bench led by Justice Manoj Kumar Ohri in the case of AMARNATH TIWARI vs. STATE (NCT OF DELHI) [CRL.A. 155/2020] on 24.01.2022. The facts of the case are that the appellant was charged for the commission of offence under Section 5(m) of the POCSO Act. The appellant pleaded not guilty in the trial. To support its case, the prosecution cited a total of 13 witnesses including the child victim. Subsequently, the accused did not raise a grievance regarding cross-examination of the prosecution witnesses until the filing of the present application. The present application has been filed by the appellant under Section 391 read with Section 311 Cr.P.C as he seeks to recall stated prosecution witnesses, on the ground that proper cross-examination did not take place. The appellant’s counsel contended that during the trial, the witnesses could not be effectively cross-examined resulting in serious prejudice to the appellant as on the said day, apparently a strike call was given by the Bar and for that reason a counsel who was appointed by the Bar had represented the appellant and cross-examined witnesses instead of his privately engaged counsel. Since proper cross-examination did not take place, the appellant seeks to recall and cross-examine the witnesses. In view of the facts and circumstances of the cases, Court was of the opinion that the present application lacks merit and is an abuse of the process of the Court as there is nothing on record to indicate that the two witnesses were not cross-examined at length or on material aspects. and therefore, the application was dismissed. The Court observed that, “it is discernible that the rejection or acceptance of an application filed under Section 311 Cr.P.C. is closely linked with guaranteeing a fair trial not only to the accused but also to the victims, witnesses and society at large. Witnesses cannot be allowed to be routinely recalled on the ground that cross-examination was not proper for reasons attributable to a counsel. Sufficient and cogent reasons must exist for a Court to permit recall of witnesses, particularly in cases of heinous offences”.

IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.A. 155 2020 Date of Decision 24 01 2022 IN THE MATTER OF: AMARNATH TIWARI Appellant Through: Mr. Satnarain Sharma Mr. Kartik Agarwal Mr. Shakti Saini and Mr. Anuj Kumar Advocates. Through: Ms. Meenakshi Chauhan APP for State. Respondent STATEVIA VIDEO CONFERENCING) HON BLE MR. JUSTICE MANOJ KUMAR OHRI MANOJ KUMAR OHRI J.CRL.M.A. 2867 2020 Allowed subject to all just exceptions. Application is disposed of. CRL.M.A. 2953 2020 The present application has been filed under Section 391 read with Section 311 Cr.P.C. on behalf of the appellant seeking recall and cross examination of PW3 PW4 PW5 and PW7. The sole contention raised by learned counsel for the appellant is that in trial the aforesaid witnesses could not be effectively cross examined resulting in serious prejudice to the appellant. Signature Not Verified Digitally Signed By:SANGEETA ANAND Signing Date:01.02.2022 Page 1 of 9 3. The prayer sought in the application is vehemently opposed by I have heard the learned counsels as well as gone through the Trial learned APP for the State. Court Record. In the present case vide order dated 05.03.2015 the appellant was charged for the commission of offence under Section 5(m) of the POCSO Act punishable under Section 6 of the POCSO Act for having inserted his finger in the vagina of the child victim who was aged about 6 years at the relevant time. The appellant pleaded not guilty and claimed trial. To support its case the prosecution cited a total of 13 witnesses including the child victim „M‟ her younger brother „R‟ her mother „B‟and her father „M‟7 SCC 56 and Natasha Singh v. Central Bureau of Investigationreported as 2013) 5 SCC 741. From an overview of the decisions it is discernible that the rejection acceptance of an application filed under Section 311 Cr.P.C. is closely linked with guaranteeing a fair trial that too not only to the accused but also to the victim(s) witnesses and society at large. Signature Not Verified Digitally Signed By:SANGEETA ANAND Signing Date:01.02.2022 Page 3 of 9 Fundamentally a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracise injustice prejudice dishonesty and favouritism 4 SCC 516]. 11. At the same time however in Statev. Shiv Kumar Yadav and Another reported as 2 SCC 402 the Supreme Court has cautioned that witnesses cannot be allowed to be routinely recalled on the ground that cross examination was not proper for reasons attributable to a counsel. Sufficient and cogent reasons must exist for a Court to permit recall of witnesses particularly in cases of heinous offences. Relevant excerpt from the decision is reproduced hereunder: “15. The above observations cannot be read as laying down any inflexible rule to routinely permit a recall on the ground that cross examination was not proper for reasons attributable to a counsel. While advancement of justice remains the prime object of law it cannot be understood that recall can be allowed for the asking or reasons related to mere convenience. It has normally to be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. …witnesses cannot be expected to face the hardship of appearing in court repeatedly particularly in sensitive cases such as the present one. It can result in undue hardship for victims especially so of heinous crimes if they are required to repeatedly appear in court to face cross examination. 27. …Undoubtedly fair trial is the objective and it is the duty of the court to ensure such fairness. …Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised Signature Not Verified Digitally Signed By:SANGEETA ANAND Signing Date:01.02.2022 Page 4 of 9 judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations we do not find any ground to justify the recall of witnesses already examined.” emphasis added) 12. Considering that two of the prosecution witnesses sought to be recalled in the present case are child witnesses i.e. the child victim PW4 aged 6 years at the time of examination) and the child victim’s brother it is deemed apposite to allude to Section 33(5) of the POCSO Act which prescribes that the Special Court shall ensure that a child is not repeatedly called to testify in the Court. Needless to state the provision is targeted at ensuring protection to a child witness from victimization and harassment by repeated appearances in Court. In Jaidev v. State CRL.M.C. 4412 2019 this Court had the occasion to consider the mandate of Section 33(5) of the POCSO Act under similar circumstances. Keeping in view facts and circumstances of the case the petition which was filed against the order of the Trial Court rejecting application of the accused for recall of a child witness was dismissed and it was observed: “11. Chapter 8 of the POCSO Act specifies the procedure and powers of Special Courts and recording of evidence. A bare reading of Section 33 of the POCSO Act would show that keeping in view the objects and reasons of the POCSO Act a special procedure has been adopted for recording of evidence of the child witness. Under Section 33(2) it is required that the questions to be put to a child witness shall Page 5 of 9 Signature Not Verified Digitally Signed By:SANGEETA ANAND Signing Date:01.02.2022 be first communicated to the Special Court who then in turn would put those questions to the child witness. Section 33(5) specifically provides that child is not to be called repeatedly to testify in the Court. 16. In the present case the child witness was about 4 years of age at the time of the incident. At the time of her examination in chief on 16.12.2017 she was about 8 years of age. The petitioner alongwith other accused persons was duly represented before the trial court through their counsels who had appeared on many dates prior to the examination of the child witness. 17. The recall of the child witness in the facts of the present case will cause her enormous mental trauma… 18. A Coordinate Bench of this Court in Bimla Devi vs. State reported as 2017 SCC OnLine Del 11425 while taking note of Section 33(5) of the POCSO Act rejected the prayer to recall the witness and to the similar effect are the decisions of the Calcutta High Court In Re: Debashis Mondal reported as 2017 SCC OnLine Cal 1191 and Punjab and Haryana High Court in Avtar Singh vs. State of Haryana & Anr. CRM M 8524 2015decided on 9th December 2016. 19. In view of the aforesaid discussion I am of the opinion that recalling the child witness who would be only 10 years of age by now would make her re live the mental trauma and the same may play havoc on her psyche.” 13. The Courts throughout the country being cognizant of the mandate contained in Section 33(5) of the POCSO Act have likewise declined entertaining requests for recall of child witnesses is 16. From an overview of the material on record it is borne out that sufficient opportunity to cross examine the prosecution witnesses who are sought to be recalled at this stage was available to the appellant as well as availed. Two of the said witnesses were in fact recalled during the trial pursuant to an application filed under Section 311 Cr.P.C. by the appellant which was not pressed with respect to the other two witnesses by the appellant himself. In the present application it is averred that proper cross examination of the witnesses has not taken place. However no sufficient ground has been raised to incline this Court to direct recall of the prosecution witnesses which power needless to state has to be exercised sparingly and judiciously. Further the effect of prejudice occasioned by the cross examination of prosecution witnesses by the Bar appointed counsel stood remedied when the appellant’s application under Section 311 Cr.P.C. was allowed by the Trial Court albeit partially. Even though PW4 and PW5 were not recalled there is nothing on record to indicate that the two witnesses were not cross examined at length and or on material aspects. 17. Keeping in view the aforesaid and the exposition of law on the issue this Court is of the considered opinion that the present application lacks merit and is an abuse of the process of the Court. Accordingly the same is dismissed. Signature Not Verified Digitally Signed By:SANGEETA ANAND Signing Date:01.02.2022 Page 8 of 9 CRL.A. 155 2020 List in due course at its own turn. JANUARY 24 2022 MANOJ KUMAR OHRI) JUDGE Signature Not Verified Digitally Signed By:SANGEETA ANAND Signing Date:01.02.2022 Page 9 of 9

Family Courts Constituted Under Secular Law Cannot Turn Away Parties Seeking Divorce Under Customary Laws: Jharkhand High Court

In absence of codified substantive law, The Family Courts Act, 1984 being secular law applying to all religions would be applied as there is no precedent that bars members of the Scheduled Tribe to approach the Family Court by filing any suit or proceeding relating to people. The judgement was passed by the High Court of Jharkhand in the case of Baga Tirkey v. Pinki Linda &amp; Anr. [First Appeal No. 124 of 2018] by Division Bench consisting of Hon’ble Justice Aparesh Kumar Singh &amp; Justice Anubha Rawat Choudhary. The Court was hearing an appeal against an order of the Family Court, Ranchi dismissing a suit for Divorce filed by the Appellant, a member of the Oraon community, on the ground of adultery, as non-maintainable. Learned amicus curiae submitted that even customs and usage cannot impede the rights of a citizen to approach the Court of Law, i.e. a family court seeking a divorce. It was contended that if at all a custom forbids access to Family Court and relegates a person seeking divorce to Panchayat/Community court, the same will be violative of right to access to justice and any sanctification of customs, resulting in violation of fundamental rights ought not to be resorted to. The Court emphasized that the Family Courts Act, 1984 is a secular law applying to all religions. “Section 7 thereof relates to Jurisdiction of Family Courts and sub-section (1)(A) of the provision confers on them “all the jurisdiction” hitherto exercised by any District Court in suits or proceedings relating marriage, divorce, etc. Thus, it is held that there is no precedent which bars members of the Scheduled Tribe to approach the Family Court by filing any suit or proceedings relating to matters mentioned in Section 7 of the Family Courts Act.”

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI First Appeal No. 124 of 2018 Baga Tirkey ............................................................................. Appellant 1. Pinki Linda 2. Niraj Karmali …. … CORAM : HON’BLE MR. JUSTICE APARESH KUMAR SINGH HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY Through: Video Conferencing. For the Appellant For the Respondent No. 1 For the Respondent No. 2 Amicus Curiae Mr. Ashutosh Anand Advocate. M s K.K. Singh & Sanjay Kumar Advocates. Mr. Alok Lal Advocate. Mr. Kumar Vaibhav Subhashis Rashil Soren Advocates. 17 08.04.2021 Heard learned counsel for the parties and learned Amicus Curiae. Learned Principal Judge Family Court Ranchi by the impugned judgment dated 16.3.2018 has dismissed Original Suit No. 5817 on the ground of maintainability. The suit was instituted under Section 7(1)(a) of the Family Courts Act 1984 read with Para 5.2 of the ‘Customary Laws of Munda and Oraons’ as delineated in the book “The Customary Laws of the Munda and the Oraon” by Dr. J. P. Gupta. The parties belonged to Oraon Tribal Community and their marriage was performed on 27th April 2015 at Ranchi as per the customs of the said community. On the ground of adultery the appellant wanted divorce. Learned Family Court referred to the book “The Customary Laws of the Munda and the Oraon” and held that there is no substantive codified law applicable to the parties like the Hindu Marriage Act 1955 Special Marriage Act 1954 and Divorce Act 1869. Section 2(2) of Hindu Marriage Act 1955 makes the Act inapplicable to the members of any Schedule Tribe within the meaning of Article 366 of the Constitution of India unless notified by the Central Government. Therefore they were not governed by the Hindu Marriage Act. Learned Family Court was of the view that since the petitioner appellant is 2 seeking divorce on the basis of the customs and usage applicable to the parties which can be exercised only by the Community Panchayat and not by a Court of Law the petition is not maintainable. During the pendency of this appeal considering the importance of the issues affecting the rights of the persons belonging to Tribal Community Mr. Kumar Vaibhav along with Shubhashis Rasik Soren learned Advocate were appointed as Amicus Curiae to assist the Court. The Tribal Research Institute Government of Jharkhand Ranchi Director Judicial Academy Jharkhand and the Vice Chancellor National University of Study and Research in Law NUSRL) were requested to provide necessary assistance in the matter to this Learned Amicus Curiae has submitted a report after interaction with the Tribal Research Institute and elderly persons of Oraon Community convened by the TRI. Some valuable inputs have also been provided by the National university of Studies and Research in law. The Judicial Academy Jharkhand also submitted a report prepared by the Research Scholars containing the statutory framework of the Family Courts’ Act 1984 and decisions rendered by different courts on matter concerning matrimonial dispute between the members of Schedule Tribe. Learned counsel for the parties have also rendered assistance to the Court. Since the suit was dismissed on the ground of maintainability we are not entering into the merits of the case of the parties except taking note of the foundational facts that they belong to the Oraon Tribal Community and are governed by the Customary Laws. From the inputs provided by learned Amicus Curiae it is evident that the Oraon community is governed by the Customary Laws there is a hierarchy of Panchayats in the community such as ‘Padha Panchayat’ where the parties approach in case of divorce dissolution of marriage. If the matters remained unresolved it can also be taken up to the body called ‘Bisusendra’ a congregation of ‘Padha Panchayat’. The parties are summoned by the Panchayat 3 and after hearing both the sides decision is taken. Non adherence to the summons or its verdict leads to social ostracization which is described as ‘Hucca Pani Bandh’ ‘Kutumb Chilan’ and ‘Chuna tika’. The chances of non adherence to the summons of the Panchayat are rare. We are however in the present facts of the case required to test whether the finding of the learned Family Court that the suit was not maintainable since there is no codified substantive law applicable to the parties is correct or not. In this regard it is pertinent to refer to the scheme and object of the Family Courts Act 1984. The Family Courts Act 1984[in short FCA] was enacted in public interest for the establishment of the Family Court for speedy settlement of the family dispute. The legislative power exercised by the Parliament can be traced to Article 246(2) of the Constitution of India. The field of legislation is referable to Entry 11 A under List III of Seventh Schedule was inserted by 42nd Amendment Act 1976 i.e. “Administration of justice constitution and organization of all courts except the Supreme Court and the High Court”. The preamble to the FCA states that it is an Act to provide for the establishment of Family Courts with a view to promote conciliation and to secure speedy settlement of the disputes relating to marriage and family affairs and for matters connected therewith. The FCA is a secular law applying to all religions. Section 7(1)(A) of the FCA confers “all the jurisdiction” hitherto exercised by any District Court or any Subordinate Civil Court in suits or proceedings relating to matters mentioned in Clausesto of the Explanation. Clauseof the Explanation reads as ‘a suit or proceeding between the parties to a marriage for a decree of nullity of marriageor restitution of conjugal rights or judicial separation or dissolution of marriage’. Use of the words ‘all the jurisdiction’ makes the legislative intent clear that all the enumerate matters in the explanation to section 7 would be the exclusive domain of the Family Courts established under the FCA. 4 In other words the FCA created a forum for adjudication of matrimonial matters of the nature enumerated in the explanation to Section 7 of the FCA which forum can be resorted to by one and all be it a member of scheduled tribe or a person of any religion. It is useful to refer to the opinion of the Apex Court rendered in the case of K.A. Abdul Jaleel Versus T.A. Shahida reported in4 SCC 166 in this regard Paras 11 and 14 thereof are quoted hereunder: “11. ..The wordings disputes relating to marriage and family affairs and for matters connected therewith in the view of this Court must be given a broad construction. The Statement of Objects and Reasons as referred hereinbefore would clearly go to show that the jurisdiction of the Family Court extends inter alia in relation to properties of spouses or of either of them which would clearly mean that the properties claimed by the parties thereto as a spouse of other irrespective of the claim whether property is claimed during the subsistence of a marriage or otherwise. 14. It is now a well settled principle of law that the jurisdiction of a court created specially for resolution of disputes of certain kinds should be construed liberally. The restricted meaning if ascribed to Explanationappended to Section 7 of the Act in our opinion would frustrate the object wherefor the Family Courts were set up.” Further in the case of Balram Yadav Versus Fulmaniya Yadav reported in 13 SCC 308 the Apex Court has explained the scope of jurisdiction under Section 7(1) Explanationof the FCA as under: “…..Under Section 7(1) Explanation a Suit or a proceeding for a declaration as to the validity of both marriage and matrimonial status of a person is within the exclusive jurisdiction of the Family Court since under Section 8 all those jurisdictions covered under Section 7 are excluded from the purview of the jurisdiction of the Civil Courts. In case there is a dispute on the matrimonial status of any person a declaration in that regard has to be sought only before the Family Court. It makes no difference as to whether it is an affirmative relief or a negative relief. What is important is the declaration regarding the matrimonial status. Section 20 also endorses the view which we have taken since the Family Courts Act 1984 has an overriding effect on other laws.” 5 The illuminating opinion of the Apex Court leaves no room of doubt on an expansive and liberal interpretation of the jurisdiction of the family courts under the FCA. It is pertinent to make reference to the decision of the Hon’ble Apex Court in the case of Samar Kumar Roy Versus Jharna Bera reported in 2017) 9 SCC 591 wherein the Apex Court was seized with the issue whether a suit under Sections 34 and 38 of the Specific Relief Act 1963 would be excluded from the jurisdiction of the family courts in the light of the provision contained in Section 8 of the FCA. The Hon’ble Apex Court held as under: “…..It is obvious that a suit or proceeding between parties to a marriage for a decree of nullity or restitution of conjugal rights or judicial separation or dissolution of marriage all have reference to suits or petitions that are filed under the Hindu Marriage Act and or Special Marriage Act for the aforesaid reliefs. There is no reference whatsoever to suits that are filed for declaration of a legal character under Section 34 of the Specific Relief Act….. Section 8(a) of the Family Courts Act excludes the Civil Court s jurisdiction in respect of a suit or proceeding which is between the parties and filed under the Hindu Marriage Act or Special Marriage Act where the suit is to annul or dissolve a marriage or is for restitution of conjugal rights or judicial separation. It does not purport to bar the jurisdiction of the Civil Court if a suit is filed under Section 34 of the Specific Relief Act for a declaration as to the legal character of an alleged marriage….” There is no precedent which bars members of the Scheduled Tribe to approach the Family Court by filing any suit or proceedings relating to matters mentioned in Clausesto of the Explanation to Section 7 of the FCA. If at all such matter is filed seeking adjudication under the law applicable to them i.e. Customary Laws they cannot resort to the provisions of Hindu Marriage Act 1955 if the parties are not governed by the Hindu Marriage Act 1955. Reference is made to the decision of this Court in the case of Rajendra Kumar Singh Munda Versus Smt. Mamta Devi in F.A. No. 186 of 2008 vide judgment dated 20th August 2015. This Court affirmed the order of 6 the Family Court dismissing the suit for divorce filed by a member of Schedule Tribe under Section 13 of the Hindu Marriage Act 1955 on the ground that the Hindu Marriage Act does not apply. Customary Laws are applicable in the matters of succession where parties are governed by Customary Laws.[ See Bharat Bhushan Versus Tej Ram & Ors. reported in 2016) 15 SCC 655 T. Ravi & Anr. Versus B. Chinna Narasimha & Ors. reported in 7 SCC 342 as also in the case of Narayanan Rajendran Versus Lekshmi Sarojini reported in5 SCC 264.] Learned Amicus Curiae has also reiterated the well settled principle that the conferment of jurisdictionis essentially a legislative function. He has relied upon the opinion rendered in the case of Jagmittar Sain Bhagat & Ors. Versus Director Health Services Haryana & Ors. reported in 10 SCC 136 Para 9 thereofe reads as under: “9. Indisputably it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court and if the Court passes a decree having no jurisdiction over the matter it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable inexecutable once the forum is found to have no if a Court Tribunal inherently lacks jurisdiction acquiescence of party equally should not be permitted to perpetuate and perpetrate defeating the legislative animation. The Court cannot the Statute. In such eventuality the doctrine of waiver also does not apply.” jurisdiction. Similarly jurisdiction apart Further it is also a settled legal proposition that ouster of jurisdiction should not be readily inferred and the courts always lean in favour of such an interpretation. This view has been upheld in the case of Bhanwar Lal Anr. Versus Rajasthan Board of Muslim Wakf & Ors. reported in16 SCC 51All E.R. 539 it is submitted that “it is a principle of law that every citizen has a right of unimpeded access to a court…” The Apex Court has also held that access to justice is a facet of Article 21 and 14 of the Constitution of India.8 SCC 509 para 31]. Therefore it is submitted that if at all a custom forbids access to family court and relegates a person seeking divorce to Panchayat Community court the same will be violative of right to access to justice and any sanctification of customs resulting in violation of fundamental rights ought not be resorted to. Learned Amicus Curiae has submitted that patent lack of jurisdiction and latent lack of jurisdiction are different concepts which ought to have been kept in mind by the learned Family Court while passing the impugned order. Learned Amicus has relied upon a decision in Farquharson Versus Morgan reported in 1 QB 552. Even as per the observations made in the impugned Judgment the Family Court has procedural jurisdiction to entertain a suit for dissolution of marriage and there was no patent lack of jurisdiction. It is submitted that the learned Family Court posed unto itself a wrong question and answered it incorrectly thereby committing grave error of jurisdiction. ‘Adjudicatory Facts’ and ‘Jurisdictional Facts’ are different. The law in this regard is well settled by now. The opinion of the Apex Court in the case of Carona Ltd. Versus Parathy Swaminathan & Sons reported in8 SCC 559 Paras 27 29 and 36 are quoted hereunder: “27. Stated simply the fact or facts upon which the jurisdiction of a Court a Tribunal or an Authority depends can be said to be a jurisdictional fact . If the jurisdictional fact exists a Court Tribunal or Authority has jurisdiction to decide other issues. If such fact does not exist a Court Tribunal or Authority cannot act. It is also well settled that a Court or a Tribunal cannot wrongly assume existence of jurisdictional fact and proceed to decide a matter. The 8 cannot be fact which that by erroneously assuming underlying principle existence of a jurisdictional fact a subordinate Court or an inferior Tribunal cannot confer upon itself jurisdiction which it otherwise does not posses. 29. But there is distinction between jurisdictional fact and ignored. An adjudicatory adjudicatory fact is a fact in issue and can be determined by a Court Tribunal or Authority on merits on the basis of evidence adduced by the parties. It is no doubt true that it is very difficult to distinguish jurisdictional fact and fact in issue or adjudicatory fact . Nonetheless the difference between the two cannot be overlooked . 36. It is thus clear that for assumption of jurisdiction by a Court or a Tribunal existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist the Court or Tribunal has power to decide adjudicatory facts or facts in issue ” The above exposition makes the distinction absolutely clear. As per opinion of the Apex Court extracted hereinabove the facts or facts upon which the jurisdiction of a Court a Tribunal or an Authority depends can be said to be ‘Jurisdictional Fact’. If the ‘Jurisdictional Fact’ exists a Court Tribunal or Authority has jurisdiction to decide other issues. If such fact does not exist a Court Tribunal or Authority cannot act. It cannot wrongly assume existence of jurisdictional fact and proceed to decide a matter by erroneously assuming existence of a jurisdictional fact a subordinate Court or an inferior Tribunal cannot confer upon itself jurisdiction which it otherwise does not possess. In the present case the underlying jurisdictional fact as pleaded before the Family Court is that both the parties belonged to Oraon Community and their marriage was solemnized as per the Customary Law of Oraon. The Family Court Act being a secular law applying to all religions and communities and conferred with the power to adjudicate on matters mentioned in Clausestoof the Explanation to Section 7 of the FCA could not have held that the suit is not maintainable in the absence of a codified Customary Law of the parties. As per the opinion of the Apex Court extracted hereinabove 9 the Corona Ltd. there is a distinction between the ‘Jurisdictional Facts’ and ‘Adjudicatory Facts’. An ‘Adjudicatory Fact’ is a ‘fact in issue’ and can be determined by a Court Tribunal or Authority on merits on the basis of the evidence adduced by the parties. It is no doubt that it is very difficult to distinguish ‘Jurisdictional Facts’ and ‘fact in issue’ or ‘Adjudicatory Fact’. Nonetheless the difference between the two cannot be overlooked. It is thus clear that for assumption of jurisdiction by a Court or a Tribunal existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist the Court or Tribunal has power to decide adjudicatory facts or facts in issue based upon the pleadings of the parties. The learned Family Court therefore fell in error in holding that the suit is not maintainable in absence of codified substantive law as are applicable to the parties such as Hindu Marriage Act 1955 Special Marriage Act 1954 and Divorce Act 1869 whether the parties are able to plead and prove the custom governing the matters of divorce between them for seeking relief was an issue to be decided on merits after considering the pleadings and evidence on record. Learned Family Court would not have straightaway dismissed the suit as not maintainable holding that there is no codified substantive law governing the parties. In such a case where parties claimed to be governed by Customary Law the learned Family Court ought to have framed an issue to that effect. Once it is found that the parties are governed by the Customary Law the parties are required to plead and prove the customs by which they are governed in matters concerning marriage and divorce. The judgment of the Apex Court in the case of Yamanaji H. Jadhav Versus Nirmala reported in 2 SCC 637 para 7 enunciates the course to be followed by the Family Court in a matter of divorce involving customary law. It has been held as under: “…. As per the Hindu Law administered by courts in India divorce was not recognised as a means to put an end to marriage which was always considered to be a sacrament with only exception where it is recognised by custom. Public policy good morals and the interests of society were considered to require and ensure that if at all severance should be allowed only in the manner and for the reason or cause specified in law. Thus such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such custom since said custom of divorce is contrary to the law of the land and which if not proved will be a practice opposed to public policy. Therefore there was an obligation on the trial court to have framed an issue whether there was proper pleadings by the party contending the existence of a customary divorce in the community to which the parties belonged and whether such customary divorce and compliance with the manner or formalities attendant thereto was in fact established in the case on hand to the satisfaction of the court….” It was further observed in case of Subramani Versus M. Chadralekha reported in9 SCC 407 in para 10: “it is well established by long chain of authorities that prevalence of customary divorce in the community to which parties belong contrary to general law of divorce must be specifically pleaded and established by the person propounding such custom….” It was thus necessary for the Family Court to call upon the party seeking divorce under the customary law to plead and establish such custom by leading evidence. In any event learned Family Court would not have dismissed the suit as not maintainable since the parties belonged to Tribal Community and are governed by Customary Law which is not a codified substantive law like the Hindu Marriage Act 1955 Special Marriage Act 1954 and Divorce Act 1869. As observed at the outset we have consciously refrained from referring to one or the other custom said to be operating in the Oraon Community regarding divorce since it is for the party to plead and prove such customs for seeking relief before the Family Court. The illuminating opinion of the Apex Court rendered in the case of Salekh Chand Versus Satya Gupta & ors. reported in13 SCC 119 followed in the recent decision in the case of Rathnamma Versus Sujathamma reported in19 SCC 714 para 16 is quoted hereunder: 16. This Court in a judgment reported as Salekh Chand Dead) by LRs v. Satya Gupta & Ors.4 while dealing with the claim of adoption under the Hindu Adoption and Maintenance Act 1966 held as under: “21. In Mookka Kone v. Ammakutti Ammalit was held that where custom is set up to prove that it is at variance with the ordinary law it has to be proved that it is not opposed to public policy and that it is ancient invariable continuous notorious not expressly forbidden by the legislature and not opposed to morality or public policy. It is not disputed that even under the old Hindu Law 4 2008) 13 SCC 119 adoption during the lifetime of a male issue was specifically prohibited. In addition I have observed that such an adoption even if made would be contrary to the concept of adoption and the purpose thereof and unreasonable. Without entering into the arena of controversy whether there was such a custom it can be said that even if there was such a custom the same was not a valid custom. In the case of Dr. Surajmani Stella Kujur Versus Durga Charan Hansdah reported in3 SCC 13 para 10 also it has been held as under: “For custom to have the colour of a rule or law it is necessary for the party claiming it to plead and thereafter prove that such custom is ancient certain and reasonable. Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence.” Therefore on a detailed consideration of the submissions of learned counsel for the parties and valuable assistance rendered by the learned Amicus Curiae we are of the considered opinion that the learned Family Court committed an error of jurisdiction in holding that the suit instituted by the petitioner appellant herein was not maintainable as there was no codified substantive law applicable to the parties to marriage like Hindu Marriage Act 1955 Special Marriage Act 1954 and Divorce Act 1869. It also committed an error in holding that the petitioner is seeking relief of divorce on the basis of customs and usage applicable to the parties which can be exercised only by the Community Panchayat and not by Court of Law. The legislature having consciously conferred jurisdiction upon the Family Court to adjudicate on matters enumerating under Clausestoof the Explanation to Section 7(1) including a suit or proceeding between the parties to the marriage for decree of nullity of marriage or restitution of conjugal rights or judicial separation or dissolution of marriage the learned Family Court could not have held the suit to be not maintainable as there is absence of a substantive codified law governing the In view of the aforesaid discussions and for the reasons recorded hereinabove the impugned judgment cannot be upheld in the eye of law. The matter is remanded to the learned Family Court for adjudication in accordance with law by framing proper issues as borne out from the pleadings of the parties. We made it clear that the observations made hereinabove should not be treated as comment upon the merits of the case of the parties and are limited to answering the only issue whether the learned Family Court was right in holding the suit as not maintainable in the absence of substantive codified law between the parties. We accordingly set aside the judgment dated 16.3.2018 passed in Original Suit No. 583 of 2017 by the Principal Judge Family Court Ranchi and remand the matter to the Family Court to frame an appropriate issue in regard to existence of provision of customary divorce in the community of the parties to these proceedings to get the marriage dissolved. We permit the parties to amend the pleadings if they so desire and also to lead evidence to prove the existence of a provision of customary divorce in their community. The Family Court will consider the matter afresh without being influenced by the observations made by this Court hereinabove expeditiously. In order to expedite the proceedings the parties themselves or through their counsel should appear before the learned Family Court Ranchi on 5th of May 2021. If the proceedings are held in virtual mode the parties and or their counsels would join the proceedings online. The appeal is allowed. without any delay. Let a copy of the judgment be communicated to the court concerned Let the Lower Court Records be also sent back to the Court Before parting we record the appreciation for the valuable assistance rendered by the learned Amicus Curiae on such a vital legal issue concerning the jurisdiction of the Family Courts. Let a copy of this order be sent to the Judicial Academy Jharkhand Aparesh Kumar Singh J.) Amitesh Ranjeet Anubha Rawat Choudhary J.)

Sole testimony of the prosecutrix can be relied upon to convict the accused: Delhi High Court

The sole testimony of the prosecutrix, if it inspires confidence, can be the basis for conviction of the accused. Moreover, presumption to be drawn as to absence of consent in certain prosecution for rape. This was held by Hon’ble Justice Manoj Kumar Ohri in the case of Ranjeet Naik Vs. State (NCT of Delhi) [CRL.A. 615/2020] on the 12th of August 2021, before the Hon’ble high court of Delhi at New Delhi. The brief facts of the case are, hat prosecutrix namely ‘RS’ has alleged commission of rape and stated that she was the mother of three children, residing with her family in a tenanted premise and was doing the work of house maid. She further alleged that on 15.06.2016 she along with her niece at around 9:00 pm went to Nasirpur Subzi Mandi to purchase vegetables. After purchasing the vegetables when they were returning to their house, she observed that one person was chasing them through out from the mandi itself. As soon as she reached the Buddha Jayanti Park, the accused obstructed her way and stopped her. It was around 9:30-10:00 pm, by intimidating her, he forcibly took her behind the wall of the park. He gaged her mouth, forcibly committed rape upon her against her wishes. She somehow got herself released from the clutches of the accused, she reunited to her niece and informed her about the incident. They started moving towards their house. When they were going to their houses, complainant again noticed that accused was still chasing her. When they reached at Shani Mandir near Dasrath Pur, there she met Rajesh husband of her niece and informed him about the entire incident who made a call at 100 number and accused was also apprehended from the spot and handed over to the police. On the basis of the allegations made by the prosecutrix in her complaint, she also got her statement recorded by the Ld. MM u/s 164 Cr. PC where she alleged commission of rape. After completion of investigation, charge-sheet was filed against accused against commission of offences The learned counsel for the appellant submitted that the consent of the prosecutrix is apparent from the fact that neither in the Subzi Mandi nor on the way, she raised any alarm even after noticing that the appellant was following them. In this regard, it is noted that the prosecutrix deposed that on the day of incident, she had noticed the appellant following her when they were going to Subzi Mandi. He continued to follow them even when they were returning back. She deposed that she didn’t raise a hue and cry as she believed that the appellant also had gone to the market and was returning from there. Furthermore, even at the time of incident, the prosecutrix did not raise any alarm, which is indicative of consensual sex. The prosecutrix however submitted that on 15.06.2016 when she was returning from Nasirpur Subzi Mandi market along with her niece ‘G’. she noticed that the appellant was chasing them from the market. When they reached near Budhia Park, it was about 10 p.m. The appellant forcibly brought her near the park and made physical relations with her against her will. During this time, the niece of the prosecutrix was standing near the gate of the park. When she came out of the park, the appellant continued to chase her till Shani Mandir where ‘R’ (husband of ‘G’) was sleeping. The prosecutrix woke him up and told him about the appellant. ‘R’ made a call to the police at 100 number. The learned judge heard the submissions of both the parties and relied on the judgement in the case of State of Himachal Pradesh v. Manga Singh reported as (2019) 16 SCC 759, wherein it was held that, “The conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence. The conviction can be based solely on the solitary evidence of the prosecutrix and no corroboration be required unless there are compelling reasons which necessitate the courts to insist for corroboration of her statement. Corroboration of the testimony of the prosecutrix is not a requirement of law; but a guidance of prudence under the given facts and circumstances. Minor contradictions or small discrepancies should not a be a ground for throwing the evidence of the prosecutrix. It is well settled by a catena of decisions of the Supreme Court that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the ‘probabilities factor’ does not render it unworthy of credence. As a general rule, there is no reasons to insist on corroboration except from medical evidence. However, having regard to the circumstances of the case, medical evidence may not be available. In such cases, solitary testimony of the prosecutrix would be sufficient to base the conviction, if it inspires the confidence of the court”.

IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.A. 615 2020 Reserved on : 16.07.2021 Date of Decision : 12.08.2021 IN THE MATTER OF: RANJEET NAIK …..Appellant Through: Ms. Manika Tripathy Pandey & Ms. Bitisha Singh Advocates. STATE….. Respondent Through: Mr. Ashok Kumar Garg APP for State with SI S.P Samaria PS HON BLE MR. JUSTICE MANOJ KUMAR OHRI JUDGMENT MANOJ KUMAR OHRI J. The present appeal has been instituted under Section 374 Cr.P.C. read with Section 482 Cr.P.C. against the impugned judgment and order on sentence both dated 15.10.2020 passed by the learned ASJ Special Fast Track Court Patiala House Courts New Delhi in case SC No. 9470 2016 arising out of FIR No. 312 2016 registered under Section 376 IPC at P.S. Sagarpur whereby the appellant was convicted vide aforesaid judgment for the offence punishable under Sections 354D 376 IPC. Further vide the aforesaid order on sentence the appellant was sentenced to undergo RI for a period of 10 years along with fine of Rs.13 000 in CRL.A. 615 2020 default whereof to undergo SI for a period of 6 months for the offence punishable under Section 376 IPC. He was further sentenced to undergo RI for a period of 1 year along with fine of Rs.2 000 in default whereof to undergo SI for a period of 2 months for the offence punishable under Section 354D IPC. are: For the sake of felicity the brief facts as noted by the Trial Court “2. The brief facts of the present case are that prosecutrix namely „RS‟ has alleged commission of rape and stated that she was the mother of three children residing with her family in a tenanted premises and was doing the work of house maid. She further alleged that on 15.06.2016 she along with her niece at around 9:00 pm went to Nasirpur Subzi Mandi to purchase vegetables. After purchasing the vegetables when they were returning to their house she observed that one person was chasing them through out from the mandi itself. As soon as she reached the Budha Jayanti Park the accused obstructed her way and stopped her. It was around 9:30 10:00 pm by intimidating her he forcibly took her behind the wall of the park. He gaged her mouth forcibly committed rape upon her against her wishes. She somehow got herself released from the clutches of the accused she reunited to her niece and informed her about the incident. They started moving towards their house. When their houses complainant again noticed that accused was still chasing her. When they reached at Shani Mandir near Dasrath Pur there she met Rajesh husband of her Bhanji and informed him about the entire incident who made a call at 100 number and accused was also apprehended from the spot and handed over to the police. they were going 3. On the basis of the allegations made by the prosecutrix in her complaint she also got her statement recorded by the Ld. MM u s 164 Cr.PC where she alleged CRL.A. 615 2020 commission of rape. After completion of investigation filed against accused against charge sheet was commission of offences.” The Trial Court framed charges against the appellant for commission of offence under Sections 354D 376 IPC. In the trial the prosecution examined 14 witnesses. The prosecutrix was examined as PW1 „KM‟ was examined as PW2 „G‟ niece of the prosecutrix) was examined as PW3 „R‟ was examined as PW4 Dr. Madhu and Dr. Dhananjay Kumar who proved the MLC of the prosecutrix were examined as PW9 and PW12 respectively and W SI Kamlesh was examined as PW13. The appellant examined himself as DW1. I have heard learned counsel for the appellant as well as the learned APP for the State and gone through the Trial Court Record. During the course of hearing the MLC of the prosecutrix has been separately produced by the learned APP for the State. The MLC of the prosecutrix was recorded on 16.06.2016 at about 4 a.m. Dr. Madhu who conducted the initial examination recorded the alleged history and referred the prosecutrix to the Department of Gynecology. Dr. Dhananjay Kumar Sr. Medical Officer DDU Hospital identified his signatures on the MLC of the prosecutrix. He deposed that during the medical examination no fresh injury on the body of the prosecutrix was noticed. After initial examination he referred the prosecutrix to DOD Gynae. He also proved the MLC of CRL.A. 615 2020 mentioned. the appellant by identifying signatures of Dr. Deepak on the same. In the appellant‟s MLC fresh scratch marks on his left forearm were The exhibits seized during investigation were sent to FSL and the same were subjected to biological and DNA examination. As per the DNA Examination Report it was concluded that DNA profile generated from the source of blood sample of the appellant matched with the DNA profile generated from the source of exhibits Pyjami Rt. Vulval swab Lt. Vulval swab Vulval smear Low vaginal swab Low vagina smear and Cervical smear. In the trial at the time of recording of his statement under Section 313 Cr.P.C. as well as during his deposition as DW 1 the appellant admitted the factum of having established sexual relation with the prosecutrix on 15.06.2016. Even in the present appeal the aforesaid admission is reiterated. The only defence taken by the appellant is that the prosecutrix had also consented for establishing sexual relation on In view of the aforesaid consistent stand I proceed to analyze the evidence which has come on record. 10. The prosecutrix deposed that on 15.06.2016 when she was returning from Nasirpur Subzi Mandi market along with her niece „G‟. she noticed that the appellant was chasing them from the market. When they reached near Budhia Park it was about 10 p.m. The appellant CRL.A. 615 2020 forcibly brought her near the park and made physical relations with her against her will. During this time the niece of the prosecutrix was standing near the gate of the park. When she came out of the park the appellant continued to chase her till Shani Mandir where „R‟was sleeping. The prosecutrix woke him up and told him about the appellant. „R‟ made a call to the police at 100 number. In her cross examination she denied the suggestion that she along with the appellant sat for half an hour in the park whereafter they left the park to have ice cream and after consuming the same returned back to the park. She also denied the suggestion that she had established the physical relations with the appellant out of her own will. She also stated that she had resisted and on account of which the injuries were caused on the person of the appellant. She also denied the suggestion that she had told the Doctor that the appellant had threatened her with knife at the time of incident. „KM‟deposed that on the date of the incident he was present at his house and through his children he came to know that the prosecutrix had gone to market to buy vegetables. He stated that when the prosecutrix did not return he called „R‟ and thereafter went to Police Station Sagarpur where prosecutrix was present with „R‟. In the Police Station the prosecutrix told him about the incident. „G‟ deposed that she along with the prosecutrix was coming from the market and her children were also with her. She was walking ahead along with her children while the prosecutrix was following her. It was about 10 p.m. When she reached at the gate of Sitapuri Park she found that the prosecutrix was missing. CRL.A. 615 2020 After 10 20 minutes the prosecutrix came. She was alone. When she enquired from the prosecutrix she was told that a boy had committed rape upon her. When they reached Shani Mandir she told her husband about the incident who called the police. The appellant who had also reached Shani Mandir was apprehended by the police. She identified the appellant. The witness was cross examined by the learned APP for the State. She stated that she had not seen the appellant following them till they reached Budha Jayanti Park Nasirpur Delhi. She denied the suggestion that on the date of the incident the appellant had followed them till Budha Jayanti Park. She also denied the suggestion that the appellant had taken the prosecutrix towards the park or that she saw him taking away the prosecutrix. She was confronted with her statement where it was so recorded. In her cross examination by learned defence counsel she stated that they had reached the Subzi Mandi at about 11 p.m. She saw the appellant for the first time when a phone call was made to the Police at Shani Mandir. She stated that she did not see the appellant either in the Subzi mandi or while they were returning from the market. She also denied the suggestion that the appellant had bought ice cream for her children in Subzi mandi. She stated that the appellant had followed them after the incident till Shani Mandir. She stated that her statement recorded under Section 161 Cr.P.C.was not read over to her. „R‟deposed that on the date of the incident he was sitting in Shani Mandir when the prosecutrix came and told him that “jabardasti mere sath chedkhani kari”. He clarified that by CRL.A. 615 2020 “jabardasti” the prosecutrix meant that the appellant committed rape upon her. He further stated that the prosecutrix told him that she along with „G‟ and children had gone to Subzi Mandi and when they were returning the appellant had committed rape upon her. He further stated that he made a phone call on 100 number from his mobile phone. In cross examination he stated that his wife children the appellant and the prosecutrix reached Shani Mandir at about 10 p.m. He stated that the walking distance between the park and the Shani Mandir was about 5 minutes. He denied the suggestion that the appellant was known to the prosecutrix. 14. HC Anil Ranawas the Duty Officer who had received the wireless message from the PCR to the following effect: “Dakshinpur Shani Mandir Ke Pas Ek Ladki Ke Sath Ched Chad Hui Hai Jis Ladke Ne Ki Hai Use Pakad Rakha Hai”. 15. CT. Deepak deposed that on the intervening night of 15th 16th June 2016 DD No. 53 A regarding „Ched Chad‟ was received by SI Mukesh Meena deposed that the appellant was arrested on 16.06.2016 at the identification of the prosecutrix. In his statement recorded under Section 313 Cr.P.C. the appellant while answering Question No.1 denied having forcibly established physical relations with the prosecutrix. He stated that on that day he had gone to visit his younger brother in Dashratpuri where after consuming liquor with his brother he was roaming near the Subzi Mandi and had met the prosecutrix on the road. The prosecutrix was accompanied by another lady and two children. The other lady had asked for his mobile phone to make a call and thereafter all of them roamed around in the CRL.A. 615 2020 market. Later when they reached the Budha Park the other lady asked the appellant to go with the prosecutrix and get ice cream for everyone. While he was walking with the prosecutrix he asked the prosecutrix to have sex with him in lieu of money. She did not say anything. He held her hand and took her to a secluded place in the park and again asked her if he could have sex with her. Again she did not reply. He told her that he would give her the money after sex to which she consented. After they had sex the prosecutrix asked for Rs.300 . When the appellant told her that he did not have any amount of money she asked him for his mobile phone in lieu of money. She borrowed his mobile and made a call to someone. Thereafter both of them reached where the other lady and children were sitting. All of them left Budha Park and on the way he bought ice cream for everyone. The prosecutrix was talking nicely to him and on the pretext of giving her contact number and also to show her place of residence she lured the appellant to walk with her. On reaching Shani Mandir she called a man who was her relative and told him “This is the man”. The said man gave beatings to him and the Police was called. 17. The appellant examined himself as DW1 under Section 315 Cr.P.C. He reiterated what he had stated at the time of recording of his statement under 313 Cr.P.C. He deposed that the prosecutrix consented to have sex with him on the promise of payment of Rs.300 . In his cross examination he denied the suggestions that he had committed rape upon the prosecutrix forcibly or that she has not consented for the sexual relationship in lieu of Rs.300 . The questions as to whether the appellant was stalking the prosecutrix and whether the prosecutrix had consented for sex with the CRL.A. 615 2020 appellant have to be seen in light of the testimonies of the prosecutrix and „G‟ as well as the defence put up by the appellant. 19. Learned counsel for the appellant contended that the consent of the prosecutrix is apparent from the fact that neither in the Subzi Mandi nor on the way she raised any alarm even after noticing that the appellant was following them. In this regard it is noted that the prosecutrix deposed that on the day of incident she had noticed the appellant following her when they were going to Subzi Mandi. He continued to follow them even when they were returning back. She deposed that she didn‟t raise a hue and cry as she believed that the appellant also had gone to the market and was returning from there. In view of the explanation given by the prosecutrix I do not find any merit in the contention. It was next contended that even at the time of incident the prosecutrix did not raise any alarm which is indicative of consensual sex. It has come in the testimony of the prosecutrix that being night time there were hardly any people on the way to the park. She further stated that there were no houses towards the market side near the gate of the park. The rough site plan would show that while on the north side of the park there was a sewer drain on the south side was a road going towards Nasirpur and Dabri. Only on the west side of the park there were apartments. The incident is stated to have taken place at point „A‟ on the north side. Further it has come in the cross examination of the prosecutrix that when she resisted in her defence injury was caused to the appellant. The appellant was caught at the spot. The appellant‟s MLC records that there were fresh scratch marks on his left forearm. The contention raised is meritless and stands rejected. CRL.A. 615 2020 21. The appellant had taken the defence that „G‟ had asked him to go with the prosecutrix and get ice cream for everyone. The defence taken is that on the way the prosecutrix asked for Rs. 300 . At that time he asked the prosecutrix if he gave her the money would she have sex with him. The prosecutrix did not answer. After which he took the prosecutrix to a secluded place in the park where again he asked her if he could have sex with her. The prosecutrix did not reply. Strangely when he proposed to the prosecutrix that he would pay her after the sex she consented. This line of defence is not only unbelievable but an afterthought when seen in light of the cross examination of the prosecutrix where no such suggestion of payment of Rs. 300 being asked or promised to be paid was given. From a perusal of the cross examination of the prosecutrix it is apparent that the suggestion given was of having voluntary sex at the time of the incident and not of sex in lieu of payment of Rs. 300 . It is equally incomprehensible that while on one hand the appellant had promise to pay Rs. 300 to the prosecutrix but after having sex with her he told her that he did not have any money. In the same breath the appellant deposed that after they came out of the park and were going towards bus stand he bought ice cream for everybody. Again the said defence is nothing but an afterthought as no such suggestion was given to the prosecutrix during her cross examination. 23. The appellant during his examination as DW 1 deposed that on the day of the incident he had gone to the Subzi Mandi and was roaming around. „G‟ had asked for his phone and used it to make a call. Even the prosecutrix after having sex with him asked for his mobile phone and CRL.A. 615 2020 made a call. However the appellant in support of his defence did not bring the details of such calls on the record. Learned counsel for the appellant also contended that no external injuries were noted in the MLC of the prosecutrix. Dr. Dhananjay Kumar in his cross examination and on a query put by the Trial Court had clarified that it was not necessary that in a case of forcible sexual act there would always be an external injury on the body of the victim. Recently this Court had the occasion to deal with a similar contention in Ishwer Soni v. State reported as 2020 SCC OnLine Del 1378 and Sunil Kumar v. State of NCT of Delhi reported as 2021 SCC OnLine Del 2391 wherein the contention was rejected while relying on the following observations of the Division Bench of this Court of which I was a member) in case of Jitender Sharma v. Statereported as 2019 SCC OnLine Del 8266: 25. The position of law on the question whether absence of injuries found on the person of the prosecutrix in a case of rape would result in a finding of acquittal is well settled. Dealing with this issue in a case of a child rape a Coordinate Bench of this Court in Lokesh Mishra v. State of NCT of Delhi in Criminal Appeal No. 7610 decided on 12.03.2014 relying on earlier decisions of the Apex Court while upholding the conviction under section 376 IPC made the following observations: 38....In the case of Ranjit Hazarika v. State of Assam reported in 8 SCC 635 the opinion of the doctor was that no rape appeared to have committed because of the absence of rupture of hymen and injuries on the private part of the prosecutrix the Apex Court took a view that the medical opinion cannot throw overboard an otherwise cogent and trustworthy evidence of the prosecutrix. 39. The apex court in B.C. Deva v. State of Karnataka reported at 12 SCC 122 inspite of the fact that no injuries were found on the person of the prosecutrix yet finding her version to be reliable and trustworthy the Apex CRL.A. 615 2020 Court upheld the conviction of the accused. The Court observed that: 18. The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the medical the gynecologist pertaining examination of the prosecutrix does not disclose any evidence of sexual intercourse yet even in the absence of any corroboration of medical evidence the oral testimony of the prosecutrix which is found to be cogent reliable convincing and trustworthy has to be accepted." 25. The issue whether the sole testimony of a prosecutrix can be relied upon for the conviction of an accused is no longer res integra. Time and again the test for relying upon the sole testimony have been reiterated by the Supreme Court. In the case of State of Himachal Pradesh v. Manga Singh reported as16 SCC 759 it was held that the sole testimony of the prosecutrix if it inspires confidence can be the basis for conviction of the accused. The Supreme Court observed: 10. The conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. The conviction can be based solely on the solitary evidence of the prosecutrix and no corroboration be required unless there are compelling reasons which necessitate the courts to insist for corroboration of her statement. Corroboration of the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or small discrepancies should not a be a ground for throwing the evidence of the prosecutrix. 11. It is well settled by a catena of decisions of the Supreme Court that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the probabilities factor does not render it unworthy CRL.A. 615 2020 of credence. As a general rule there is no reasons to insist on corroboration except from medical evidence. However having regard to the circumstances of the case medical evidence may not be available. In such cases solitary testimony of the prosecutrix would be sufficient to base the conviction if it inspires the confidence of the court." In the present case the prosecutrix had consistently stated that the appellant had committed rape upon her against her wish. The appellant has failed to cause a dent on her testimony which has remained unimpeachable. On a conspectus of the entire evidence that has come on record this Court is of the opinion that the testimony of the prosecutrix about the stalking and offence of rape committed by the appellant upon her not only inspires confidence but is also held to be consistent reliable and admissible. 27. Further Section 114 A of the Indian Evidence Act provides for presumption to be drawn as to absence of consent in certain prosecution for rape. The appellant has failed to dislodge the presumption. 28 In view of the foregoing settled position of law and the above analysis the issue raised in the present appeal is decided against the appellant. Consequently the impugned judgment of conviction and order on sentence are upheld and the present appeal is dismissed. 29. A perusal of the order on sentence reveals that no compensation was awarded to the prosecutrix under the Victim Compensation Scheme. The Supreme Court in Ankush Shivaji Gaikwad v. State of Maharashtra reported as6 SCC 770 observed as under: “51. There is no gainsaying that Section 357 confers a power on the Court in so far as it makes it "legal and possible which there would otherwise be no right or authority to do" viz. to award compensation to victims in criminal cases. The question is whether despite the use of discretionary language such as CRL.A. 615 2020 the word "may" there is "something" in the nature of the power to award compensation in criminal cases in the object for which the power is conferred or in the title of the persons for whose benefit it is to be exercised which coupled with the power conferred under the provision casts a duty on the Court to apply its mind to the question of exercise of this power in every criminal case. is best disclosed by recording reasons 66. To sum up: While the award or refusal of compensation in a particular case may be within the Court s discretion there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the awarding refusing compensation. It is axiomatic that for any exercise involving application of mind the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order Under Section 357 Code of Criminal Procedure would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his her 30. This Court is constrained to note that the Trial Court has failed in its duty to refer the prosecutrix to the “Compensation Scheme for Women Victims Survivors of Sexual Assault other Crimes 2018” under the Delhi Victims Compensation Scheme 2018 where the minimum compensation for a rape victim is specified at Rs. 4 lakhs and the maximum compensation at Rs.7 lakhs. This Court therefore directs the CRL.A. 615 2020 Delhi State Legal Services Authority to consider and award appropriate compensation to the prosecutrix in accordance with the Victim Compensation Scheme within a period of four weeks from passing of this judgment. 31. A certified copy of this judgment be immediately supplied to the appellant free of cost through the concerned Jail Superintendent. 32. A copy of the same shall also be communicated to the concerned Trial Court as well as to the Member Secretary Delhi State Legal Services Authority. AUGUST 12 2021 JUDGE CRL.A. 615 2020

Disputed question of facts arising out of contract cannot be resolved through the jurisdiction under Article 226: Chhattisgarh High Court

It is settled law that the rights arising out of a contract cannot be resolved through the discretionary jurisdiction of this Court under Article 226 of the Constitution of India; especially when disputed questions of facts are involved. This judgment was pronounced by the division bench of the Chhattisgarh High Court consisting of Hon’ble Chief Justice P.R. Ramachandra Menon and Justice Shri Parth Prateem Sahu in the matter of Niranjan Lal Agarwal v. Coal India Limited and others. [W.A 178/2020]. The petitioner in the present writ petition alleged that the Fixed Deposit Receipt (FDR) which was arranged by the appellant in favour of the respondent company towards ‘performance security’ was not released by the company even after issuing the work completion certificate. It was anyway brought up that, when steps were being taken to release the sum, a few directions were obtained from the specialists of the GST/Central Excise Department to retain the instalment including the security store, in light of the obligation to be cleared by the Writ Petitioner to the Government. It was in the said situation, that the instalments were not affected and the FDR was not caused to be returned/released. The learned Single Judge observed that there were disputed questions of fact, which could not be resolved in a proceeding under Article 226 of the Constitution of India. It was also observed that the reasons for non-disbursement of the amount due to the Writ Petitioner was because of the instructions given from the part of the authorities of the Central Government. In the said circumstance, interference was declined and the writ petition was dismissed, which is put to challenge in this appeal. The division bench of Chhattisgarh High Court upheld the observations made by the learned Single Judge and opined that “When the Appellant/Writ Petitioner contends that the work involved in the present tender is admittedly complete (as certified by the Respondent-Company) but the amount due has not been released, the Respondent-Company contends that another work order given to the Writ Petitioner came to be terminated ‘at the risk and cost’ to the Writ Petitioner, for the default committed by him and that a sum of about Rs.6 Crores is due to the Respondent-Company. In view of the 4 disputed questions of facts, the prayer sought with respect to the amounts payable under the final bill cannot be adjudicated by this Court and hence, interference is not possible. It is for the Writ Petitioner to avail appropriate remedy before another appropriate forum, in accordance with the law with respect to this head. The pleadings filed by the Respondent-Company and the submissions made through the learned counsel do not reconcile with the deeds pursued. We record our displeasure as to the casual way in which the matter has been dealt with by the Respondent-Company by way of incorrect or inconsistent submissions as to the release of the FDR; at the same time, retaining the same at their hands. It may amount to Contempt of Court as well, where serious action may be necessary in view of the verdict rendered by the Apex Court in the case of Dhananjay Sharma v. State of Haryana and others reported in [AIR 1995 SC 1795]. The 4th Respondent is directed to disburse the amount due to the Appellant towards the FDR forthwith, at any rate within one week thereafter. If there is any failure on the part of the Respondent-Company in acting as above, it shall be for the 4th Respondent-Bank to release the FDR to the account of the Appellant/Writ Petitioner, notwithstanding any such lapse on the part of the Respondent-Company and such payment will discharge the 4th Respondent from any liability to the Respondent-Company in connection with the FDR arranged towards the performance security. The verdict passed by the learned Single Judge stands modified to the above-limited extent.” Finally, the course and conduct pursued by the Respondent-Company w.r.t. the release of the security amount covered by the FDR was deprecated and they disposed of the writ appeal with a cost of Rs.10, 000/- payable by the Respondent-Company to the Appellant/Writ Petitioner. Click here to read the judgement

1 NAFRHIGH COURT OF CHHATTISGARH BILASPUR Judgment Reserved on 23.11.2020Judgment Delivered on 27.11 .2020Writ Appeal No.1720(Arising out of order dated 14.01.2020 passed in Writ PetitionSouth Eastern Coal Field Limited Jamuna And Kotma Area Anuppur arranged by the Appellant in favour of the 2Respondent Company towards performance security forms the subjectmatter of challenge in this appeal.2.The gist of the factual matrix is that the Appellant turned to besuccessful in the tender floated by the Respondent Company and thework was awarded to him in terms of the tender and agreement executedin this regard. Performance security was to be arranged in the form ofBank Guarantee to the requisite extent and this was arranged by theAppellant through the 4th Respondent by effecting the Fixed Deposit in theprescribed manneron account of theAppellant clearly showing the interest of the Respondent therein. Thework was admittedly completed within time to the satisfaction of theRespondent Company and Annexure P 7 Work Completion Certificatedated 05.07.2016 was issued in this regard. The Appellant submitted thefinal bill for a sum of Rs.1 03 13 737 but the same was kept pendingby the Respondent Company in cold storage which made the Appellantto approach this Court by filing writ petition for immediate interference.3.The factual position as to award of the work and satisfactorycompletion of the same by the Appellant Writ Petitioner was conceded bythe Respondents in the writ petition. It was however pointed out that when steps were being taken to release the amount some instructionswere obtained from the authorities of the GST Central Excise Departmentto withhold the payment including the security deposit because of theliability to be cleared by the Writ Petitioner to the Government. It was inthe said circumstance that the payments were not effected and the FDRwas not caused to be returned released. It was also pointed out thatsome other work was also awarded to the Writ Petitioner vide NIT 3No.SECL BSP CMC 17 610 but there was a failure in completing the saidwork under which circumstance the work order was terminated and itwas ordered to be re tendered at the risk and cost to the Writ Petitioner.Action was also being pursued to effect recovery of the alleged losscaused to the Respondent Companybut the amount duehas not been released the Respondent Company contends that anotherwork order given to the Writ Petitionercame to be terminated at the risk and cost to the Writ Petitioner for the default committed by him and that a sum ofabout Rs.6 Crores is due to the Respondent Company. In view of the 4disputed question of facts the prayer sought for w.r.t. the amountspayable under the final bill in respect of the tenderNo.SECL BSP CMC 17 524 cannot be adjudicated by this Court andhence interference is not possible. It is for the Writ Petitioner to availappropriate remedy before other appropriate forum in accordance withlaw w.r.t. this head.6.However the limited question to be considered in this appeal isonly with regard to the justifiability to the action inaction on the part of theRespondent Company in not causing the FDR to be released to the WritPetitioner. 7.Admittedly the Fixed Deposit was effected and Annexure P 2 FDRwas arranged by the Writ Petitioner through the 4th Respondent Bankshowing the interest of the Respondent Company in connection with theparticular work towards the “performance guarantee” under tenderNo.SECL BSP CMC 17 524. In other words if there was any failure onthe part of the Appellant in completing the work as agreed in terms of thetender it was open for the Respondent Company to invoke the Bankguarantee clause and require the 4th Respondent to effect the paymentunder the FDR to the Respondent Company to the extent as payable.Admittedly no such failure or lapse has occurred on the part of theAppellant Writ Petitioner in performing the work under tenderNo.SECL BSP CMC 17 524 and it has been completed on time to thesatisfaction of the Respondent Company which led to issuance ofAnnexure P 7 Work Completion Certificate. This being the position theBank Guarantee offered towards performance security has served thepurpose which cannot be extended beyond the scope of tenderNo.SECL BSP CMC 17 524. To put it more clear the said amount in the 5Fixed Deposit on account of the Writ Petitioner can t be demanded by theRespondent Company unless there is a failure in performance of the saidcontract which hence has to be returned to the Writ Petitioner oncompletion of the work. There is no dispute in this regard by theRespondent Company as well but for their contention that the saidamount was retained only on the basis of instructions received by theCentral Government authorities to retain the security deposit as well. Inother words the said Fixed Deposit in the name of the Writ Petitioner isnot an amount in the hands of the Respondent Companywhich can be retained with reference to the alleged defaultin respect of some other work contract so as to appropriated towards thealleged loss. 8.Paragraph 9 of the verdict passed by the learned Single Judge isrelevant as to the cause for retention of the said amount which isextracted below :“9. In the instant case the entire claim of thepetitioner arises out of a work contract enteredinto between the petitioner and therespondents. It is not a case between theparties of breach of contract. What has to beseen is that after the petitioner has dischargedits contractual obligations the respondentManagement has itself released the periodicaldues payable to the petitioner. However bythe time the contract was culminated therespondents received a specific instructionfrom the Govt. of India Ministry of Finance tofirstly stop all the releasing of further duespayable to the petitioner and secondly towithhold the security amount lying with therespondents including any bank guaranteeand other fixed deposits as security. This 6aspect is not disputed by the counsel for thepetitioner. The said Central Service Tax andCentral Excise Department is not a partybefore this Court.”9.It was pointed out that the GST authorities have already issuedclearance as per Annexure P 14 pointing out that no amount is due fromthe Appellant to the Central Government and that the amount under theFDR could be released to the Appellant. Since the GST authorities haveclarified the position as per Annexure P 14 there was no furtherjustification for retaining the FDR without causing it to be released to theAppellant. 10.When the matter came up for consideration before this Court on11.02.2020 it was submitted by the learned counsel for the Respondent Company that in view of the turn of events particularly pursuant toAnnexure P 14 necessary instructions have already been given to theBankers to release the Bank Guarantee furnished by the Appellant WritPetitioner. The order passed on that date reads as follows :“Shri Malay Shrivastava Advocate for theAppellant.Shri Vivek Chopda Advocate for theRespondents SECL.The learned counsel for the Appellant submitsthat despite the completion of works andpresentation of final bill in respect of thepayment due to an extent of more than Rs. 1crore no amount is being paid by theRespondent Company referring to some stopmemo issued by the CGST authorities. Thelearned counsel submits that on taking up thematter with the CGST authorities theAppellant was given to understand that a 7clearance letter has already been issued bythe Respondent Company. The intimationgiven to the Petitioner has been produced asAnnexure P 14 dated 26.06.2019. Still nosteps are being taken and hence the writpetition which came to be dismissed in limineand therefore the appeal.The learned counsel appearing for theRespondent Company submits that pursuantto Annexure P 14 necessary instructions havealready been given to the bankers to releasethe bank guarantee furnished by theAppellant Writ Petitioner. The learned counselhowever submits that amounts under differentheads in respect of the various other contractsare due from the Appellant Writ Petitioner tothe Respondent Companyand steps are being takento have the said amount recovered. Thelearned counsel also points out that there wasan attempt from the part of the Appellant WritPetitioner to resort to extra judicial means bywinning over the police and this was subjectedto challenge by the Respondent Company andfavorable verdict has already been obtained inthis regard. The learned counsel seeks fortime to put forth the sequence of events alsoproducing copies of the relevant materials.Issue urgent notice to 4th Respondent byspeed post. Process fee as per rules.List this matter for further consideration aftertwo weeks.”11.When the matter came up for further consideration on 19.03.2020 it was pointed out on behalf of the Appellant that the Respondent Company has been informed by the 4th Respondent Bank that the reverse 8side of the FDR has not been properly signed by them to have theamount released and thus seeking to cure the defects. It was submittedby the learned counsel for the Respondent Company that intimation hasalso been given to the Bank to release the amount and if any defect wasthere it would be caused to be cured. This is recorded in the order dated19.03.2020 in the following terms : “Shri Malay Shrivastava Advocate for theAppellant.Shri Shubham Pandey Advocate on behalf ofShri Vivek Chopda Advocate for theRespondent SECL.The learned counsel for the Appellant pointsout that despite the completion of work to thesatisfaction of the Respondents andsubmission of the bill the amount due underthe bill and the FDR has not been released.The reason stated by the Respondents is thatthe amount was withheld on the basis ofinstructions given by the authorities of theCGST Department with regard to pendingdues from the Petitioner. On 11.02.2020 areference was made to Annexure P 14 issuedby the CGST authorities pointing out thatinstruction has been given to the Respondentsto have released the amounts holding that noamount was due from the Petitioner towardstax.With reference to Anneuxre P 14 it wassubmitted by the learned counsel for theRespondents on 11.02.2020 that they hadalready given instructions to the Bank torelease the FDR amount to the Petitioner. Itwas accordingly that the matter wasadjourned to ascertain the position as on date. 9Today the learned counsel for the Appellantpoints out that the Respondent SECL hasbeen informed by the Bank that the reverseside of the FDR has not been properly signedby them to have the amount released and nospecific instructions have been given to themin this regard. The learned counsel for the Respondentsconcedes that the intimation was given to theBank to release the amount and if any defectis there it will be caused to be cured. Time issought for to get instructions in this regard.Post the matter tomorrow i.e. on 20.03.2020.”12.Despite the clearance given by the Central Government authoritiesvide Annexure P 14 the assurance and undertaking given from the part ofthe Respondent Companyand the specific pleading admission from the part of theRespondent Company as put forth in the reply statement as to thecompletion of work the eligibility of the Appellant to get back the FDR andthe instructions stated as given by the Respondent Company to theBanker it was not honoured. The learned counsel for the Respondent Company submits that there was some mistake in the submissions made leading to the order dated “19.03.2020” which has been sought to becorrected by filing I.A. No.020. In paragraphs 5 and 6 of the saidIA it is stated that when the order was passed on 19.03.2020 the learnedcounsel could not inform about the order regarding the recovery issuedagainst the Appellant because of which the amount under the FDR couldnot be released. We find absolutely no merit in the said submission forthe reason that the amount under the FDR does not form an amount inthe hands of the Respondent Company to be adjusted or appropriatedagainst the amounts if any to be recovered by the Respondent Company 10from the Appellant. It is only w.r.t. the Bank Guarantee given through the4th Respondent Bank arranged by the Appellant towards performanceguarantee in respect of the particular work under tenderNo. SECL BSP CMC 17 524. If only there was any failure on the part of theAppellant in performing the said work on time would it give a cause ofaction to the Respondent Company to point to the default and to demandthe amount from the Bank. But this has never happened and on the otherhand the work under the above tender has been completed to thesatisfaction of the Respondent Company leading to issuance ofAnnexure P 7 Work Completion Certificate. As such the purpose of theBank Guarantee is over and the amount covered by Annexure P 2 FDRon account of the Writ Petitioner still remains that of the Writ Petitionerand it is liable to be returned by the Bank for which no claim orobstruction can be put forth by the Respondent Company unlike anyamount due under the bills raised in relation to the work performed. 13.In the above circumstance the course and conduct pursued by theRespondent Company in causing the FDR to be released does notappear to be correct or proper. In spite of the specific assertions madethrough the pleadings filed and also the submissions made before thisCourt that in the light of Annexure P 14 issued by the CentralGovernment authorities and the instructions already issued to theBankers to release the FDR no proper steps have been taken by theRespondent and retention of the FDR is sought to be justified withreference to the alleged loss sustained by the Respondent Company asput forth in I.A. No.020. Obviously nothing is mentioned in the saidI.A. with regard to the submissions made on “11.02.2020” as to theinstructions already issued to the Banker to release the FDR. 1114.The pleadings filed by the Respondent Company and thesubmissions made through the learned counsel do not reconcile with thedeeds pursued. We record our displeasure as to the casual way in whichthe matter has been dealt with by the Respondent Company by way ofincorrect or inconsistent submissions as to the release of the FDR at thesame time retaining the same at their hands as conceded in I.A. No.03 of2020. It may amount to Contempt of Court as well where serious actionmay be necessary in view of the verdict rendered by the Apex Court incase of Dhananjay Sharma v. State of Haryana and Others reported inAIR 1995 SC 1795. 15.However in view of the fact that we are not interfering with theverdict passed by the learned Single Judge in respect of the amount dueunder the bill but for modifying the same with regard to the right of theAppellant to get back the FDR provided arranged through the 4thRespondent Bank towards the performance security under tenderNo.SECL BSP CMC 17 524 we restrict ourselves in disposing the appealdirecting the Respondent Company to take all further steps to return theFDR with necessary endorsementand cause thesaid amount to be released to the Appellant s account within one weekfrom the date of receipt of a copy of the judgment. The 4th Respondent isdirected to disburse the amount due to the Appellant towards the FDRforthwith at any rate within one week thereafter. If there is any failure onthe part of the Respondent Company in acting as above it shall be for the4th Respondent Bank to release the FDR to the account of theAppellant Writ Petitioner notwithstanding any such lapse on the part ofthe Respondent Company and such payment will discharge the 4thRespondent from any liability to the Respondent Company in connectionwith the FDR arranged towards the performance security under tender 12No.SECL BSP CMC 17 524. The verdict passed by the learned SingleJudge stands modified to the above limited extent.16.The course and conduct pursued by the Respondent Companyw.r.t. the release of the security amount covered by the FDR isdeprecated and we dispose of the writ appeal with a cost of Rs.10 000 payable by the Respondent Company to the Appellant Writ Petitioner. Sd Sd (Parth Prateem Sahu) Chief Justice Judge Anu

Bail application dismissed for having no new ground to support the application – Manipur high court

Bail application dismissed for having no new ground to support the application – Manipur high court A bail application filed under section 437 of CRPC with section 37 of ND&amp;PS act for enlarging the petitioners on bail was dismissed as the honorable court agreed with the decision of Special Court (ND&amp;PS), Manipur and dismissed the application as no new grounds or materials were presented the judgment was heard before a single judge bench of HON’BLE MR. JUSTICE AHANTHEM BIMOL SINGH in the case of Manglinhao Zou and Ors versus Narcotic Control of Bureau ( B.A. No. 20 of 2021) The learned counsel appearing for the petitioner submits that the NCB never collected or seized the contraband drugs from the possession of the petitioners they were only eye-witnesses and the contraband drugs and articles were seized from the room occupied by the co-accused and they are not the actual owner of the said drugs.it is also submitted that the petitioners have no idea, knowledge, or information of any of the activities, viz., produce, manufacture, possess, sell, warehouse, import, export, etc., of the said contraband substances seized from the room of the other co-accused and they, have been falsely implicated in this case. The learned counsel also submits that the arresting authority did not comply with the mandatory provisions under section 41, 42, and 50 of the ND&amp;PS Act as well as the mandatory provisions under sections 100 and 165 of the CrPC, and the arrest was made without proper authority and there are no witnesses hence the petitioners are entitled to the bail the counsel relies on the judgment of (i) “Narcotic Central Bureau – Vs – Sukh Dev Raj Sodhi” reported in 2011 AIR (SC) 1939, (ii) “Ashok Kumar Sharma –Vs- The State of Rajasthan” reported in (2013) 2 SCC 67, (iii) “Union of India –Vs- Jassuram” reported in 2002 Legal Eagle (SC) 466 and (iv) “Abdul Rahman –vs- The State of Kerala” reported in (1997) 11 SCC 93. The learned counsel appearing on behalf of the respondents submits that the present petitioners were found along with the other co-accused, viz., Mr. Waipho, inside his room, engaging themselves in the packaging of Methamphetamine Tablet and the following were seized by the NCB and there is no violation of the seizure formalities as provided under section 42 of the ND&amp;PS Act 1985. And the authorities relied on by the learned counsel appearing for the petitioners, which deals with the search and seizure under section 50 of the ND&amp;PS Act, are not applicable in the facts and circumstances of the present case. Accordingly, the council demands the dismission of the following application. The learned court finds that the petitioners in the present bail application have been considered and rejected by the learned Special Court (ND&amp;PS), Manipur, by giving a reasoned order. This Court agrees with the reasons given by the learned Special Court (ND&amp;PS), Manipur, and as there are no new ground or material brought before the court the present bail application is rejected.

IN THE HIGH COURT OF MANIPUR AT IMPHAL B.A. No. 221 1. Manglinhao Zou aged about 35 years s o Khamlianthang Zou resident of Moreh Ward No. 3 Tengnoupal Manipur Sub Division Chandel Manipur 795131. 2. Ms. Nongaihlian Zou aged about 31 years D o Khamlianthang Zou resident of Moreh Ward No. 03 Moreh PS Moreh Manipur Accused Persons Petitioners. Now in judicial custody) Versus Narcotic Control of Bureau Imphal now at Changangei near Airport Road Imphal West Manipur. .....Respondent. HON’BLE MR. JUSTICE AHANTHEM BIMOL SINGH B E F O R E For the petitioners Mr. Ch. Bimolchandra Advocate For the respondent Mr. N. Brojendro Singh Advocate Date of Hearing Date of Order O R D E R Heard Mr. Ch. Bimolchandra learned counsel appearing for the petitioners and Mr. N. Brojendro Singh learned counsel appearing for the respondent. The present petition has been field by the petitioners under section 439 of the CrPC read with section 37 of the ND&PS Act for them on bail in connection with NCB Crime No. B.A. No. 221 Page 1 05 04 NCB Imp WY CL 2020 dated 07.12.2020 u s 8 22 27 A and 29 of the ND&PS Act 1985. The prosecution case is that on receiving reliable specific information about illegal production and processing of Methamphetamines Tablets at a Makeshift Clandestine Laboratory at Ward No. 3 near public ground Moreh a team of NCB Officials with the help of personnels of 43 Bn. Assam Rifle and some Panchas conducted a raid on 07.12.2020 at about 15.30 hours for necessary search and seizures. In the said raid 3 persons were found inside the suspected wooden house and during the search operation a large quantity of Methamphetamine and other items were found and the same were seized after following due process. Thereafter acting on the input provided by one of the suspected persons the aforesaid team of NCB along with the personnels of AR and Panchas proceeded to a suspected location supposed to be producing and processing Methaphetamine at a Makeshift Clandestine Laboratory located at Moreh Ward No. 3 Tengnoupal near Tamil Temple Manipur and conducted another search operation. In the said such operation conducted inside the suspected house the team found 3 persons along with a large quantity of Methaphetamine and other drugs and illegal items and the same were seized after following due process. In connection with the seizure of the said illegal drugs and other items the accused persons including the present petitioners B.A. No. 221 Page 2 were arrested and they have been placed under judicial custody till The learned counsel for the petitioners submitted that the NCB never collected or seized the contraband drugs from the possession or at the instance of the petitioners and that the petitioners are merely eye witness of the seizure of the said seized contravene articles. It has also been submitted that the said contraband drugs and articles were seized from the room occupied by the other co accused and that the petitioners are not the owners occupiers or possessors of the said seized illegal psychotropic substances and they are innocent of all the charges level against them. It has also been submitted by the learned counsel appearing for the petitioners that the petitioners have no idea knowledge or information of any of the activities viz. produce manufacture possess sell warehouse import export etc. of the said contraband substances seized from the room of the other co accused and that they have nothing to do with the said co accused and that they have been falsely implicated in the present case without any shred of evidence against them. It has been submitted that at the time of the alleged seizure the arresting authority did not comply with the mandatory provisions under section 41 42 and 50 of the ND&PS Act as well as the mandatory provisions under section 100 and 165 of the CrPC and as such the alleged seizure and arrest were made without any authority. It has also B.A. No. 221 Page 3 been submitted that at the time of the search of and alleged seizure there were no independent witnesses and as such the petitioners are entitled to be enlarged on bail. In support of his contentions the learned counsel for the petitioners had relied on the judgments of the Apex Court in the case of“Narcotic Central Bureau Vs Sukh Dev Raj Sodhi” reported in 2011 AIR1939 “Ashok Kumar Sharma Vs The State of Rajasthan” reported in2 SCC 67 iii) “Union of India Vs Jassuram” reported in 2002 Legal Eagle SC) 466 and “Abdul Rahman vs The State of Kerala” reported in11 SCC 93. The next ground advanced by the learned counsel appearing for the petitioners is that the memorandum of arrest is defective and the search cum seizure list was wrongly prepared by the I.O. of the case and such documents are false and fabricated documents. It has also been contended that the search and seizure was conducted by the personnel of the Assam Rifles as can be seen from the newspaper report issued on the next day of the said raid and in view of the above the petitioners are entitled to be enlarged on bail. 8] Countering the submissions advanced by the learned counsel appearing for the petitioners it has been submitted by the learned counsel appearing fort the respondent that at the time of conducting the search operation the present petitioners were found along with the other co accused viz. Mr. Waipho inside his room engaging themselves in packaging of Methaphetamine Tablets and the search B.A. No. 221 Page 4 party seized a large commercial quantity of 128.07 kgs of Methaphetamine Tablets from the room where the said 3 accused persons were found. Thereafter the NCB Officer who seized the contraband drugs and articles submitted a detail seizure report to the SP NCB Imphal within 48 hours of the seizure and as such there is no violation of the seizure formalities as provided under section 42 of the ND&PS Act 1985. It has also been contended by the learned counsel that provisions of section 50 of the ND&PS Act deals with the procedure for conduct of physical search of persons and accordingly provisions of section 50 are not applicable in the present case inasmuch as the search and seizure was made from inside a room and not on the personal search on the body of the accused persons. In view of the above it has been submitted by the learned counsel that the authorities relied on by the learned counsel appearing for the petitioners which deals with the search and seizure under section 50 of the ND&PS Act are not applicable in the facts and circumstances of the present case. It has further been submitted by the learned counsel for the respondent that the authorities complied with the provisions of section 100 and 165 of the CrPC as the search and seizure was carried out in the presence of 2 independent witness namely viz. Anilkumar and H. Subadani Devi who put their signature as Pancha witnesses in the search cum seizure list in presence of the accused persons. B.A. No. 221 Page 5 It has been submitted on behalf of the respondent that mentioning of the name of Paokhothang Haokip in the 9th line of Para 2 of the memorandum of arrest was due to slip of pen and that the name of the petitioner No. 1 was clearly mentioned in the third line of the said memorandum of arrest and he put his signature in the memorandum of arrest and accordingly such slip of pen does not affect the fact of arrest of the petitioner in connection with the case. It has also been submitted that the newspaper reports are hearsay in nature and the same are not admissible as evidence and that the petitioners are involved in commission of heinous crime of trafficking manufacturing selling of drugs and psychotropic substances and they may continue to do so even after their release on bail as such business are said to be highly profitable. Accordingly the learned counsel prayed for rejecting the present bail application. It may be mentioned here that the present petitioners have already approached the learned Special CourtManipur for enlarging them on bail by filing Cril. Misc. Case No. 34 2021 and Cril. Misc. Case No. 35 2021. The said 2 bail applications were rejected by the learned Special Court Manipur by a common order dated 17.04.2021 after considering the submissions advanced on behalf of the present petitioners and by giving a reasoned 12] After hearing the rival submissions of the learned counsel appearing for the parties and on perusal of the records of the present B.A. No. 221 Page 6 case as well as the aforesaid order dated 17.04.2021 passed by the learned Special Court Manipur this Court is of the considered view that all the grounds and submissions advanced by the learned counsel appearing for the petitioners in the present bail application have been considered and rejected by the learned Special Court Manipur by giving a reasoned order. This Court endorse and agrees with the reasons given by the learned Special CourtManipur in its order dated 17.04.2021 passed in the aforesaid 2 bail applications filed by the present petitioners. As no new grounds or materials have been brought before me in the present bail application I do not find any ground or reason for enlarging the present petitioners on bail. Accordingly the present bail application is hereby rejected. JUDGE B.A. No. 221 Page 7

Installation of telecommunication tower allowed: Kerala High Court

In the case of Vavachan A. versus Ragini Ravi, Kerala State Pollution Control Borad and others [WP (C). No. 21476 OF 2020 (H)], the Kerala High Court headed by Justice P. B. Suresh Kumar dismissed the writ petition. The petition was filed to stop the installation of the telecommunication tower which the petitioners contended could cause health hazard to the people residing in the same area where the said tower was supposed to be installed. The matter was concerned with the fact that if the telecommunication tower proposed by the respondent was permitted to be erected, it would cause air pollution by emission of electromagnetic waves which would harm the lives of people residing in that area including that of the petitioner. The counsel of the petitioner contented that telecommunication tower was not an industrial plant as stated by one of the respondent under Section 21 of the Air (Prevention and Control of Pollution) Act. According to Section 21 “of the said act no person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area”, so section 21 of he said act was not applicable here. The present court relied on the judgement passed by the same court in the case of Reliance Infocom Ltd. V. Chemanchery Grama Panchayat, 2006 (4) Klt 695 said that the Panchayat revoked the building permit granted for erection of telecommunication tower on the ground that it was likely to cause health hazard. The court in this case further clarified that the permission of the Pollution Control Board was required for the installation of the generator for operation of the telecommunication tower only if the same caused any kind of sound pollution. The court quoted the judgement of Paragraph 8 of the above case stating that:

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR FRIDAY THE 23RD DAY OF OCTOBER 2020 1ST KARTHIKA 1942 WP(C).No.21476 OF 2020(H VAVACHAN A. AGED 55 YEARS VALLATTORE HOUSE PUTHUPALLY P.O. KAYAMKULAM K. BABU RAO AISWARYA PUTHUPALLY P.O. P.S. NIDHEESH VAYALVARATHUMADOM PUTHUPALLY BINDHU SANTHOSH SAROVARAM PUTHUPALLY SAJITH UTHRAM PUTHUPALLY BY ADV. SRI.A.K.ALEX RAGINI RAVI D O. RAVEENDRAN THARANGAM PUTHUPALLY P.O. KAYAMKULAM 690 527 DEVIKULANGARA GRAMA PANCHAYATH PUTHUPALLY P.O. KAYAMKULAM 690 527 W.P.(C) No. 21476 of 2020 KERALA STATE POLLUTION CONTROL BOARD REPRESENTED BY ITS DIRECTOR POLLUTION CONTROL BOARD ALAPPUZHA 688 001 DISTRICT OFFICE POLLUTION CONTROL BOARD ALAPPUZHA 688 001 ENVIRONMENTAL ENGINEER DISTRICT OFFICE POLLUTION CONTROL BOARD ALAPPUZHA 688 001 DEPUTY DIRECTOR OF PANCHAYATH. ALAPPUZHA 688 001 DISTRICT COLLECTOR ALAPPUZHA 688 001 INDUS TOWERS 8TH FLOOR VANGARATH TOWERS PALARIVATTOM KOCHI 682 025 GP. PAUL ABRAHAM VAKKANAL THIS WRIT PETITIONHAVING BEEN FINALLY HEARD ON 19 10 2020 THE COURT ON 23 10 2020 DELIVERED THE W.P.(C) No. 21476 of 2020 P.B.SURESH KUMAR J W.P.(C) No.214720 Dated this the 23rd day of October 2020 Petitioners are persons residing within the limits of Devikulangara Grama Panchayat. The first respondent is a person residing in the neighbourhood of the residences of the petitioners. The eighth respondent has obtained a building permit for erection of a telecommunication tower in the property of the first respondent. According to the petitioners if the telecommunication tower proposed by the eighth respondent is permitted to be erected the same would cause health hazards to the people residing near the tower including the petitioners. Ext.P1 is a complaint sent by the people in the W.P.(C) No. 21476 of 2020 locality to the second respondent requesting him to take appropriate action in this regard. It appears that a copy of Ext.P1 complaint was forwarded to the sixth respondent and in response to a query by the sixth respondent the second respondent has informed the sixth respondent that building permit was issued to the eighth respondent in accordance with the Kerala Panchayat Building Rules. Ext.P3 is the communication issued in this regard by the second respondent to the sixth respondent. It is stated by the petitioners that the people in the locality thereupon preferred Ext.P4 representation to the seventh respondent the District Collector and the seventh respondent in turn referred the said representation to the sixth respondent. It is stated by the petitioners that on the said reference the sixth respondent has issued Ext.P5 communication to one among the signatories to Ext.P4 representation informing that since building permit has been issued in terms of the rules in force they are free to W.P.(C) No. 21476 of 2020 approach the District Telecom Committee if they are aggrieved by the decision of the panchayat. Aggrieved by the said stand taken by the sixth respondent the petitioners preferred Ext.P6 representation to the fifth respondent the Environmental Engineer attached to the concerned District Office of the Pollution Control Board and the fifth respondent forwarded the representation to the District Telecom Committee with a request to insist the eighth respondent to obtain permission of the Pollution Control Board for establishing and operating the telecommunication tower as also the generator to be installed for operating the telecommunication tower. The writ petition is filed thereafter challenging Ext.P3 communication issued by the second respondent. The petitioners also seek directions to the Pollution Control Board to consider and pass orders on Ext.P6 representation directions to the second respondent to consider Ext.P1 representation and also directions to the seventh respondent to consider Ext.P4 representation. The W.P.(C) No. 21476 of 2020 petitioners also seek a declaration that the second respondent has no authority to grant building permit for erection of a mobile tower in a densely populated area Heard the learned counsel for the petitioners as also the learned Standing Counsel for the Kerala State Pollution Control Board. Placing reliance on Ext.P8 communication issued by the fifth respondent the learned counsel for the petitioners vehemently contended that permission of the Pollution Control Board is required for erecting a telecommunication tower and the building permit obtained by the eighth respondent for erection of telecommunication tower without the permission of the Pollution Control Board is therefore unsustainable. It was also contended strenuously by the learned counsel that the telecommunication tower if permitted to be operated would cause health hazards to the people around the same and this Court shall therefore W.P.(C) No. 21476 of 2020 interdict the erection of the same The learned Standing Counsel for the Pollution Control Board submitted that permission of the Pollution Control Board is not required for erection of a telecommunication tower and that permission is required only for erecting the generator for operation of the telecommunication tower if the same causes sound pollution On being asked as to the reason for issuing Ext.P8 communication by the Pollution Control Board after getting instructions the learned Standing Counsel submitted that Ext.P8 is a communication issued by mistake. A telecommunication tower is treated as a building in terms of the provisions of the Kerala Panchayat building Rules 2019. A building permit is required to be obtained therefore for the purpose of erecting a telecommunication tower. The petitioners do not have a case that the second respondent has not complied with the W.P.(C) No. 21476 of 2020 provisions of the Kerala Panchayat Building Rules 2019 in the matter of granting the building permit for the telecommunication tower referred to in the writ petition. The provisions of the Kerala Panchayat Building Rules 2019 do not insist permission of the Pollution Control Board for obtaining building permit for erection of telecommunication tower. As such the Panchayat cannot be blamed for having issued building permit to the eighth respondent. The learned counsel for the petitioners submitted that it is in the light of Section 21 of the Air Prevention and Control of Pollution) Act that the fifth respondent has issued Ext.P8 communication. Of course Section 21 of the AirAct provides that no person shall without the previous consent of the State Board establish or operate any industrial plant in an air pollution control area. The telecommunication tower is not an industrial plant and as such I do not think that Section 21 of W.P.(C) No. 21476 of 2020 the said Act has any application Coming to the contention advanced by the learned counsel for the petitioners that operation of the telecommunication would cause health hazards it is seen that identical contention was repelled by this Court in Reliance Infocom Ltd. v. Chemanchery Grama Panchayat 2006No. 21476 of 2020 Tower would cause any health hazards. Licence granted has been cancelled by the Panchayat based on an apprehension that the radiation may cause health hazards to the people of the locality. Further Ext.P5 also says that installation of generator would cause sound pollution. Petitioner has not installed any generator as on today and if the installation of generator would cause any sound pollution evidently Pollution Control Board can give appropriate direction and the petitioner will have to obtain necessary consent from the Pollution Control Board for installation of generators so that it would not cause any sound pollution. So also if the installation of Tower and the emission of electromagnetic waves causes any air pollution affecting human health the Pollution Control Board can take appropriate measures under AirAct 1991. ” In the aforesaid facts and circumstances and in the light of the decision of this Court in Reliance Infocom Ltd the writ petition is only to be dismissed and I do so P.B.SURESH KUMAR JUDGE W.P.(C) No. 21476 of 2020 PETITIONER S S EXHIBITS TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE NEARBY RESIDENTS OF 1ST RESPONDENTS PROPERTY WHICH INCLUDES SOME OF THE PETITIONERS TO THE ACKNOWLEDGEMENT RECEIVED FROM THE 2ND RESPONDENT WHICH SHOWS THAT EXT P1 IS RECEIVED ON 1.6.2020 TRUE COPY OF THE LETTER DATED 15.6.2020 SENT BY THE 2ND RESPONDENT TO 6TH RESPONDENT TRUE COPY OF THE REPRESENTTION DAED 8.6.2020 SENT TO THE 7TH RESPONDENT DISTRICT COLLECTOR BY THE NEARBY RESIDENTS OF 1ST RESPONDENTS PROPERTY TRUE COPY OF THE LETTER SENT BY THE PANCHAYATH ASSISTANT DIRECTOR ALAPPUZHA TO ONE RAJEEVKUMAR WHO IS THE FIRS SIGNATORY IN EXT. P4 TRUE COPY OF THE REPRESENTATION DATED 29.6.2020 SENT TO THE 4TH RESPONDENT BY THE NEARBY RESIDENTS OF RESPONDENTS PROPERTY IN WARD NO. XIV ND XV OF DEVIKULANGARA PANCHAYATH INCLUDING W.P.(C) No. 21476 of 2020 TRUE COPY OF THE POSTAL RECEIPT WHICH SHOWS THAT EXT P6 IS SENT TO DIRECTOR POLLUTION CONTROL BORD ALAPPUZHA TRUE COPY OF THE LETTER DATED 15.7.2020 SENT BY THE ENVIRONMENTAL ENGINEER POLLUTION CONTROL BOARD DISTRICT OFFICE ALAPPUZHA TO DISTRICT TELECOM COMMITTEE

Procedural technicalities should take a back seat in PIL: Patna High Court

When an issue of severe public importance is up for review before the court, every technicality in the procedural law is not accessible as a defence. Procedural technicalities should take a back seat in public interest litigation as in public interest litigations, procedural laws do not apply is upheld by the High Court of Patna through the learned bench led by HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR in the case of Anand Vaibhav Vs. The State of Bihar (Civil Writ Jurisdiction Case No.19179 of 2021) Brief facts of the case are that the Petitioner has asked for a directive to the respondent University authorities to take action in light of the inquiry report dated 05.01.2018 submitted by the Magadh University enquiry committee against the Private Respondent who has ruined the healthy reaching atmosphere of the College by misusing his post of Head Clerk in the said College, as well as a directive to the respondent University to cancel the Respondents appointment letter dated 10.05.2021 which has been issued by other Respondent, contrary to provision of law by appointing on the post of Head clerk in Ram Lakhan Singh Yadav College Aurangabad. Further, the petitioner has requested that the respondent State authority take legal action against Respondent by filing an F.I.R. for obtaining the post of head clerk in the said college by committing forgery in obtaining his initial appointment letter and he is posted in the said college on the basis of a fake appointment letter, as evidenced by the enquiry committee’s report dated 05.01.2018. Under instructions, learned counsel for the petitioner states that if a direction is issued to the authority concerned to consider and decide the representation that the petitioner will be filing within four weeks from today for redress of the grievance, the petitioner will be satisfied, whereas learned counsel for the respondents states that if such a representation is filed by the petitioner, the authority concerned will consider and dispose of it expeditio. According to Rural Litigation and Entitlement Kendra v. State of U.P.  1989 Supp (1) SCC 504, the Hon’ble Supreme Court in D. N. Jeevaraj Vs. Chief Secretary, Government of Karnataka &amp; Ors, (2016) 2 SCC 653, procedural technicalities should take a back seat in public interest litigation. Court further stated that Saraswati Industrial Syndicate Ltd. v. Union of India expressed a salutary principle or well-known rule that should be kept in mind before issuing a writ of mandamus. As stated in “Demand for performance must precede application,” there is no such demand or refusal. As a result, there is no basis for issuing any writ, order, or direction under Article 226 of the Constitution. Petitioner shall approach the authority concerned within four weeks by filing a representation for redress of the grievance, and the authority concerned shall consider and dispose of it expeditiously by a reasoned and speaking order, preferably within four months from the date of its filing, along with a copy of this order, and while considering such representation, natural justice principles shall be followed and due opportunity of hearing afforded to the parties. The petition is dismissed, and the procedures will be handled in digital mode during the current Pandemic-Covid-19, unless the parties mutually agree to meet in person, i.e. physical mode. Click here to read the judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.191721 Anand Vaibhav Son of Gayaneshwar Singh resident of Village Mohalla Block Colony Satyendra Nagar P.O. and P.S. Aurangabad District ... Petitioner s The State of Bihar through Principal Secretary Higher Education Department Govt. of Bihar Patna The Principal Secretary Higher Education Department New Secretariat The Vice Chancellor Magadh University Bodh Gaya District Gaya The Registrar Magadh University Bodh Gaya District Gaya 5. Dr. Ganesh Mahto the Principal of Ram Lakhan Singh Yadav College Aurangabad Sahapur P.O. and P.S. Aurangabad District Aurangabad Sri Janardan Singh Son of Dev Raj Singh resident of Village and P.S Kachhwan District Rohtas at present posted as Head Clerk at Ram Lakhan Singh Yadav College AurangabadFor a direction to the respondent University authorities to take an action in view of the enquiry report dated 05.01.2018 submitted by enquiry committee of Magadh university against the Private Respondent no. 6 who has ruined the healthy reaching atmosphere of the College by misusing his post of Head clerk in the said College b) For a direction to the respondent University to cancel the appointment letter of the Respondent no. 6 i.e. dated 10.05.2021 which has been issued by Respondent no. 5 without jurisdiction and contrary to provision of law by appointing to respondent no.6 on the post of Head clerk in Ram Lakhan Singh Yadav College Aurangabad c) For a direction to the respondent State authority to take legal action against Respondent no.6 by lodging F.I.R. for obtaining post of head clerk in the said college by committing forgery in obtaining his initial appointment letter and he is posted in the said college on the basis of fake appointment letter which is clear from the enquiry report also submitted by enquiry committee dated 05.01.2018 d) For any other order orders on the basis of facts and circumstances stated herein after of the The Hon’ble Supreme Court in D. N. Jeevaraj Vs Chief Secretary Government of Karnataka & Ors 2 SCC 653 paragraphs 34 to 38 observed as under: Patna High Court CWJC No.191721 dt.05 01 2022 “34. The learned counsel for the parties addressed us on the question of the bona fides of Nagalaxmi Bai in filing a public interest litigation. We leave this question open and do not express any opinion on the correctness or otherwise of the decision of the High Court in this regard. 35. However we note that generally speaking procedural technicalities ought to take a back seat in public interest litigation. This Court held in Rural Litigation and Entitlement Kendra v. State of U.P Rural Litigation and Entitlement Kendra v. State of U.P. 1989 SuppSCC 504] to this effect as follows SCC p. 515 para 16 “16. The writ petitions before us are not inter parties disputes and have been raised by way of public interest litigation and the controversy before the court is as to whether for social safety and for creating a hazardless environment for the people to live in mining in the area should be permitted or stopped. We may not be taken to have said that for public interest litigations procedural laws do not apply. At the same time it has to be remembered that every technicality in the procedural law is not available as a defence when a matter of grave public importance is for consideration before the court.” 36. A considerable amount has been said about public interest litigation in R&M Trust3 SCC 91] and it is not necessary for us to dwell any further on this except to say that in issues pertaining to good governance the courts ought to be somewhat more liberal in entertaining public interest litigation However in matters that may not be of moment or a litigation essentially directed against one organisation or individualought not to be entertained or should be rarely entertained. Other remedies are also available to public spirited litigants and they should be encouraged to avail of such remedies 37. In such cases that might not strictly fall in the category of public interest litigation and for which other remedies are available insofar as the issuance of a writ of mandamus is concerned this Court held in Union of India v. S.B. Vohra 2 SCC 150: 2004 SCC363] that SCC p. 160 paras 12 13 Patna High Court CWJC No.191721 dt.05 01 2022 Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the King s Bench directing performance of a public legal duty 13. A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted.” 38. A salutary principle or a well recognised rule that needs to be kept in mind before issuing a writ of mandamus was stated in Saraswati Industrial Syndicate Ltd. v Union of India 2 SCC 630] in the following words:Vol. 11 p. 106 ‘198. Demand for performance must precede application.—As a general rule the order will not be granted unless the party complained of has known what it was he was required to do so that he had the means of considering whether or not he should comply and it must be shown by evidence that there was a distinct demand of that Patna High Court CWJC No.191721 dt.05 01 2022 which the party seeking the mandamus desires to enforce and that that demand was met by a refusal.’ 25. In the cases before us there was no such demand or refusal. Thus no ground whatsoever is shown here for the issue of any writ order or direction under Article 226 of the After the matter was heard for some time learned counsel for the petitioner under instructions states that petitioner shall be content if a direction is issued to the authority concerned to consider and decide the representation which the petitioner shall be filing within a period of four weeks from today for redressal of the grievance(s). Learned counsel for the respondents states that if such a representation is filed by the petitioner the authority concerned shall consider and dispose it of expeditiously and preferably within a period of four months from the date of its filing along with a copy of this order. Statement accepted and taken on record. As such petition stands disposed of in the following terms: a) Petitioner shall approach the authority concerned within a period of four weeks from today by filing a representation for redressal of the grievance(s) b) The authority concerned shall consider and dispose it of expeditiously by a reasoned and speaking order preferably Patna High Court CWJC No.191721 dt.05 01 2022 within a period of four months from the date of its filing along with a copy of this order c) Needless to add while considering such representation principles of natural justice shall be followed and due opportunity of hearing afforded to the parties d) Equally liberty is reserved to the petitioner to take recourse to such alternative remedies as are otherwise available in accordance with law e) We are hopeful that as and when petitioner takes recourse to such remedies as are otherwise available in law before the appropriate forum the same shall be dealt with in accordance with law and with reasonable dispatch Liberty reserved to the petitioner to approach the Court if the need so arises subsequently on the same and subsequent cause of action issues are left open g) We have not expressed any opinion on merits. All h) The proceedings during the time of current Pandemic Covid 19 shall be conducted through digital mode unless the parties otherwise mutually agree to meet in person i.e. physical mode The petition stands disposed of in the aforesaid terms. Patna High Court CWJC No.191721 dt.05 01 2022 Interlocutory Application(s) if any stands disposed of. Sanjay Karol CJ) ( S. Kumar J

A convicted person cannot rejoin his previous temporary job merely upon suspension of his sentence: Rajasthan High Court

A convicted person has no right to ask for his reinstatement at his previous temporary job merely because his sentence was suspended by the Court is upheld by the Jaipur Bench of Rajasthan High Court through a single judge bench of Hon’ble Mr. Justice Mahendar Kumar Goyal in the case of Tikendra v. State of Rajasthan and Others (Civil Writ Petition No. 1908/2022). The brief facts of the case are that the petitioner filled this writ petition for reinstatement of his previous job. The petitioner was a helper in the office of Chief Medical Officer, Government Satellite Hospital, Ajmer appointed on temporary contract basis. Thereafter, the petitioner was convicted by the Court of learned Additional Sessions Judge (Women Atrocities Cases), Ajmer under Sections 498-A (Cruelty to women), 304-B (Dowry Death) and 406 IPC (criminal breach of trust) and was sentenced to maximum term of seven years. The sentence has been suspended by the Rajasthan High Court. Thereafter, the petitioner applied with the respondents to permit him to rejoin on the post of Helper whereupon he was told that on account of pendency of criminal case his services were terminated and another person was appointed against the vacant temporary post of Helper and as on date there was no vacancy of Helper. Learned counsel for the petitioner contended that he is entitled for reinstatement on account of suspension of the sentence awarded to him by the learned trial Court. He submitted that the petitioner has almost five years experience on the post of Helper and hence, the writ petition be allowed and the respondents may be directed to permit him to rejoin on the post of Helper. The High Court observed that the petitioner was appointed as Helper on purely contractual basis and his services have been terminated on12.09.2016 which has not been challenged by him. Furthermore, another person was appointed by the Hospital who is still working and no post of Helper is vacant in the office. In view thereof, the petitioner is not entitled for reinstatement/rejoining on a temporary post on which he was appointed on purely contractual basis which, as a matter of fact, is not vacant also as on date. Learned counsel for the petitioner could not satisfy this Court as to his legal right to rejoin/reinstatement. The Court also held that even otherwise also the Court has stayed his sentence only; but, “the order of conviction involving moral turpitude still stands and hence, he has no right to rejoin”.

on 10 02 2022 at 02:39:13 PM HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPURS.B. Civil Writ Petition No. 1908 2022Tikendra S o Shri Om Prakash Aged About 36 Years R oKauthawas Mohalla Pisangan Police Station Pisangan DistrictAjmer. PetitionerVersus1. State Of Rajasthan Through Principal Secretary Department Of Medical And Health Govt. Of Rajasthan Govt. Secretariat Jaipur.2. Director Medical And Health Swasthya Bhawan TilakMarg C Scheme Jaipur.3. Chief Medical And Health Officer Ajmer Rajasthan.4. Block Chief Medical Officer Pisangan Ajmer.5. Senior Medical Officer In Charge Community HealthCenter Pisangan Ajmer. RespondentsFor Petitioner(s) : Mr. Ramdhan Choudhary through VCFor Respondent(s): HON BLE MR. JUSTICE MAHENDAR KUMAR GOYALOrder07 02 2022This writ petition has been preferred assailing the legalityand validity of the orderdated 06.01.2022 containing aninformation that as on date the post of temporary Helper in DrugDistribution CentreCommunity Health Centre Pisangan Ajmer is not vacant. The facts in brief as emerge in the writ petition are that inpursuance of advertisement dated 27.09.2011 inviting applicationsfor appointment on the post of Pharmacist and Helper ontemporary contract basis the petitioner was appointed as Helperin the office of Chief Medical Officer Government SatelliteHospital Ajmer. On an earlier occasion when the petitioner felt[CW 1908 2022]threat to his service he preferred a Writ Petition No.8975 2014wherein a Coordinate Bench of this Court vide its order dated17.09.2015 directed the respondents to continue the petitionertill continuation of the scheme subject to number of sanctionedpost of employees in order of the date of engagement. Thereafter the petitioner was convicted by the Court of learned AdditionalSessions JudgeAjmer in Sessions CaseNo.78 2016vide its judgment dated23.10.2021 under Sections 498 A 304 B & 406 IPC and Section3 4 of the Dowry Prohibition Act 1961and was sentenced to maximum term of seven years. Thesentence has been suspended by this court vide its order dated17.12.2021 in SB Criminal Appeal No.1748 2021. Thereafter thepetitioner applied with the respondents to permit him to rejoin onthe post of Helper whereupon the Senior Medical Officer In charge Community Health Centre Pisangan has vide its letterdated 06.01.2022 impugned in the writ petition apprised theBlock Chief Medical Officer Pisangan that on account of pendencyof criminal case his services were terminated vide order dated12.09.2016 and vide order dated 14.10.2016 another person wasappointed against the vacant temporary post of Helper and as ondate there was no vacancy of Helper. Learned counsel for the petitioner contended that he isentitled for reinstatement rejoin on account of suspension of thesentence awarded to him by the learned trial Court vide itsjudgment dated 23.10.2021. He submitted that the petitioner hasalmost five years experience on the post of Helper and hence thewrit petition be allowed and the respondents may be directed topermit him to rejoin on the post of Helper. [CW 1908 2022]Heard and considered. Indisputably the petitioner was appointed as Helper onpurely contractual basis and his services have been terminatedvide order dated 12.09.2016 which has not been challenged byhim. A perusal of the letter dated 06.01.2022 reveals that in hisplace one Shri Mahendra Kumar Prajapat has already beenappointed on contract basis vide order dated 14.10.2016 who isstill working and no post of Helper is vacant in the office. In viewthereof the petitioner is not entitled for reinstatement rejoiningon a temporary post on which he was appointed on purelycontractual basis which as a matter of fact is not vacant also ason date. Learned counsel for the petitioner could not satisfy thisCourt as to his legal right to rejoin reinstatement. Even otherwisealso the petitioner stands convicted under Sections 498 A 304 B& 406 IPC and Section 3 4 of the Act of 1961 and vide order dated17.12.2021 this Court has stayed sentence only but the order ofconviction involving moral turpitude still stands and hence he hasno right to rejoin. There is another aspect of the matter. The letter dated06.01.2022 simply informs the Block Chief Medical Officer as tounavailability of vacancy on the post of temporary Helper in theoffice which cannot be said to be in violation of any of the rights ofthe petitioner in absence of his claim as to the information beingfalse. In view thereof this writ petition is devoid of merit and isdismissed accordingly.JManish 94

Right to Travel cannot be breached if quantum of individual loan is not a threat to the economic interests of India: Calcutta High Court

The fundamental right to travel abroad cannot be eclipsed on mere account of absence of conclusive evidence against an individual and if the amount of loan credited to the said individual does not hamper the overall economy of the country. The bench constituting Sabyasachi Bhattaharya J. of the Calcutta High Court impugned the LOC issued by the CBI against the petitioner in matter surrounding default in repayment of loan in Mritunjay Singh Vs. Union of India &amp; Ors. [WPO No. 105 of 2020]. The petitioner was a Director of Kaushik Global Logistic Limited (KGLL) between March 19, 2009 and July 11, 2012. The said company defaulted in repayment of a term loan availed from the State Bank of India (SBI), Alipore Branch, Kolkata. A criminal case was initiated by the Central Bureau of Investigation (CBI), in which the petitioner was one of the accused The petitioner however denied being a guarantor as per Form C5A dated February 7, 2013, when a fresh letter regarding grant of individual limits within the overall limit was issued by the guarantors for KGLL, which did not include the petitioner’s name as a guarantor. A Look-Out Circular was put forth in the petitioner’s name. It was argued before the court that the right to travel abroad is a fundamental right and, in the present case, the livelihood of the petitioner, who is a sailor, depends on overseas travel. Moreover, it was also contended that Section 10A of the Passports Act, 1967 is the only statute empowering the Central Government to suspend a passport or restrict overseas travel of a citizen and provides for a prior opportunity of hearing to the affected person. In the present case, no opportunity of hearing was given to the petitioner before issuance of the LOC. In the procedural sphere it was further revealed that the ground for request to issue LOC was invalid on the date of the request, that is, January 17, 2020, since the writ petitioner had resigned as Director of KGLL as long back as on July 11, 2012 and no other reason for such request and the consequential issuance of LOC were disclosed either by the Bank or the Immigration Authorities. The court, in the present instance relied upon the judgment rendered in UCO Bank Vs. Dr. Siten Saha Roy &amp; Ors.[WP No. 23412(W) of 2012], wherein it was held, inter alia, that the “economic interests of India” could not be ascertained merely on the quantum of loan and is on a much higher footing, directly and adversely impacting the share market or the economy of the country as a whole, which would be jeopardized in the event the accused is permitted to travel abroad, to such an extent that it destabilizes the entire economy of the country. Therefore the said ground cannot be confined to individual loans on the basis of commercial transactions. The court ruled that “The petitioner has successfully demonstrated that he was not a Director of the Company at the relevant juncture when the borrower company is alleged to have committed fraud. Thus, there is no basis whatsoever for issuance of the impugned LOC and the consequential subsequent extension thereof against the petitioner.” In view of the reasons set forth above, the above petition was allowed on contest, thereby quashing the Look-Out Circular and the subsequent extension thereof, issued against the writ petitioner.

: : In The High Court at Calcutta Constitutional Writ Jurisdiction Original Side The Hon’ble Justice Sabyasachi Bhattacharyya WPO No. 1020 Mritunjay Singh Union of India and others For the petitioner For the respondent No.2 For the respondent Bank SBI Hearing concluded on Judgment on The Court: : Mr. Ranajit Chatterjee : Mr. Dipak Ranjan Mukherjee Mr. N. Banerjee Mr. Arijit Dey Mr. Avinash Kankani Mr. Soumya Roy Mr. Santosh Mahato : The present challenge is against a Look Out Circular issued against the petitioner. The petitioner is a Captain of the Merchant Navy and stays on the high seas for the most part of the year since The petitioner was a Director of Kaushik Global Logistic Limited KGLL) between March 19 2009 and July 11 2012. The said company defaulted in repayment of a term loan availed from the State Bank of India Alipore Branch Kolkata. A criminal case was initiated by the Central Bureau of Investigation in which the petitioner was one of the accused. The CBI Court vide order dated July 22 2016 discharged the writ petitioner on the finding that the petitioner was not involved in the day to day activities of the company and there was no material sufficient to establish even prima facie the charges against him. The petitioner denies being a guarantor as per Form C5A dated February 7 2013 when a fresh letter regarding grant of individual limits within the overall limit was issued by the guarantors for KGLL which did not include the petitioner s name as a guarantor. It is the further case of the petitioner that the Bank has an award against the borrower Company passed by the Debts Recovery Tribunal under the SARFAESI Act. The order of the CBI Court was upheld by the Sessions Court on July 7 2017 in Criminal Revision Case No. 1816. CRR No. 1831 of 2017 was filed by the CBI against such order in this Court in connection with which an application for condonation of delay remains pending. In addition a proceeding under the Prevention of Money Laundering Act 2002 was also initiated against the petitioner by the Enforcement Directorate bearing OC No. 1139 of 2019. The Adjudicating Authority under the said Act ordered attachment of the movable and immovable assets of the accused Company and the other accused persons including the writ petitioner on September 30 2019. An appeal against the said order preferred before the Appellate Tribunal was admitted on January 22 2020. 6. A previous writ petition filed by the petitioner against the ED culminated in a Division Bench order of April 22 2019 granting the petitioner liberty to open a fresh bank account for credit of his salary for the maintenance of his family and himself. Subsequently the Immigration Authorities opened the impugned LOC on the basis of a request of the SBI dated January 17 2020. The writ petitioner was detained at the Kolkata Airport on February 11 2020 when the petitioner was going to take a flight to Bangkok for boarding a merchant vessel as Captain. The reason for opening LOC as discussed in the LOC itself as well as the request of the Bank is that the writ petitioner is a Director of KGLL which had been identified to have committed fraud by the Bank on March 7 2014. The petitioner argues that neither the LOC nor the request for it was furnished to the writ petitioner. Learned counsel for the petitioner argues that the right to travel abroad is a fundamental right and in the present case the livelihood of the petitioner who is a sailor depends on overseas travel. It is also contended that Section 10A of the Passports Act 1967 is the only statute empowering the Central Government to suspend a passport or restrict overseas travel of a citizen and provides for a prior opportunity of hearing to the affected person. In the present case no opportunity of hearing was given to the petitioner before issuance of It is further submitted that the ground for request to issue LOC was invalid on the date of the request that is January 17 2020 since the writ petitioner had resigned as Director of KGLL as long back as on the LOC. July 11 2012. It is submitted that no other reason for such request and the consequential issuance of LOC were disclosed either by the Bank or the Immigration Authorities. 13. The 2017 Amendment of the concerned Office Memorandum pertaining to LOCs cites exceptional circumstances detrimental to the economic interests of India as one of the grounds for issuance of LOC. Nothing has been brought on record by the respondents to demonstrate that the said criteria applied to the writ petitioner at all. 14. That apart in view of the subsistence of the DRT Award against the borrower Company and the Attachment Order passed regarding the petitioner s movable and immovable property by the Adjudicating Authority under the PMLA passed at the behest of the ED the debt in question is sufficiently secured. 15. On the basis of a fresh request by the Bank as submitted by the respondents the LOC under challenge was renewed on January 8 2021 during pendency of the writ petition. However since the veracity of the original LOC is challenged and no new ground has been cited apart from the petitioner s alleged Directorship of the borrower Company even in the renewal the above arguments hold true in respect of such renewed LOC as well. It is also submitted by learned counsel for the petitioner that the respondents cannot supply reasons post facto in their affidavit in opposition by alleging that the petitioner is also a guarantor in respect of the borrower Company. 17. Learned counsel for the writ petitioner cites an unreported judgment rendered by the Delhi High Court on December 2 2020 in WP 53820for the proposition that unless reasons are disclosed in the LOC or for subsequent extension thereof which come within the purview of the relevant Office Memoranda no LOC can be issued. In the said case as in the present it is argued mere mention of the power to issue LOC did not justify how the travel of the petitioner would in any manner prejudice the economic interests of the country. 18. Learned counsel for the writ petitioner next places reliance on an unreported judgment of the Gujarat High Court rendered in Special Civil Application No. 153219and argues that in view of the petitioner therein having suffered a decree as guarantor to the principal borrower Company and the petitioner had on several occasions travelled out of India the Court proceeded on the presumption that no Look Out Circular existed as on the relevant date. 19. Learned counsel next relies on UCO Bank Vs. Dr. Siten Saha Roy and others rendered by a Single Judge of this Court in RVW 220 in connection with WP No. 23412(W) of 2012 wherein it was held inter alia that the "economic interests of India" could not be ascertained merely on the quantum of loan and is on a much higher footing directly and adversely impacting the share market or the economy of the country as a whole which would be jeopardized in the event the accused is permitted to travel abroad to such an extent that it destabilizes the entire economy of the country. The said ground cannot be confined to individual loans on the basis of commercial transactions it was held. 20. Learned counsel appearing for the Union of India takes a rather neutral stand in submitting that the Immigration Authorities are bound by law to issue an LOC if so requested by a competent authority being the SBI in the present instance. 21. Learned counsel appearing for the respondent no.3 Bank contends that the present liability of the borrower Company is over Rs.144 crore. Learned counsel harps on the contention that the petitioner is also a guarantor of the Company whose liability is co extensive with the borrower. It is further submitted that the allegation of being a guarantor made in paragraph no.20 of the affidavit in opposition of respondent no.3 was not dealt with in the relevant paragraphof the affidavit in reply filed by the petitioner. 23. Since if the writ petitioner decides to flee the country public money may be lost the economic interest of the country being squarely 24. Upon considering the materials on record and hearing counsel for the contending parties it is clear that the only reason disclosed in the request of the Bank as well as in the LOC itself was that the petitioner was a Director of the borrower Company. Such allegation was made in the present tense in both the request and the LOC. However such allegation is by itself insufficient to fall within any of the grounds for issuance of LOC as contemplated in the relevant Office Memoranda. 25. The petitioner has clearly shown that the petitioner had resigned long back even before the discovery of alleged fraud in 2014 by the Bank. 26. As regards the other ground that the petitioner s liability was co extensive with the borrower Company in the capacity of a guarantor it is well settled that a new ground cannot be supplanted by pleadings if not furnished in the original LOC or the request therefor. Introduction of such an allegation post facto cannot justify the issuance of the LOC and subsequent renewal at the relevant juncture. 27. That apart in paragraph 20 of the affidavit in opposition filed by respondent no.3 Bank a mere cursory reference has been made in the passing regarding the petitioner being a guarantor of the borrower Company. There is no specific allegation let alone any document disclosed by the Bank to exhibit that the petitioner was a guarantor at the relevant point of time. Thus even in the absence of any specific denial to such vague allegation the issuance of the LOC and its subsequent renewal cannot be justified. 28. Economic offence or any other ground contemplated in the relevant Office Memoranda was not disclosed either in the request of the Bank or the LOC itself to justify the issuance thereof. Apart from the CBI Court and Sessions Court having given a clean chit to the petitioner on similar allegations the loan in question is sufficiently secured in view of the DRT award obtained by the Bank against the borrower Company and the attachment order passed by the Adjudicating Authority under the PMLA at the instance of the ED relating to the writ petitioner s movable and immovable properties. 29. Moreover in the present case the petitioner earns his livelihood as a sailor being the Captain of the Merchant Navy an integral part of which is overseas travel on the high seas for the major part of the year. Hence in the present case the LOC would not only amount to curtailing the fundamental right to liberty of the petitioner as guaranteed by the Constitution of India it would also take away the livelihood of the petitioner which would directly affect his life also guaranteed by the Constitution. 30. Neither the LOC nor the request therefor discloses any ground as envisaged in the relevant Office Memoranda to justify the issuance of the LOC and or the subsequent renewal thereof. 31. Among the judgments cited on behalf of the petitioner Deept Sarup Aggarwalclearly lays down the proposition that reasons have to be disclosed in the LOC and in the subsequent extension thereof which come within the purview of the relevant Office Memoranda. In the present case no such reasons were disclosed either in the LOC or the subsequent extension and or in the request for issuance of LOC which was the very basis of issuance of the LOC. In any event a vague allegation made post facto in the affidavit in opposition of respondent no.3 as regards the petitioner being a guarantor to the borrower Company without any material to substantiate such allegation cannot retrospectively validate the reasons given in the request for issuance of LOC and or the LOC or subsequent extension thereof. 33. The facts of Nimish Kalyanbhai Vasasomewhat match with the present case insofar as the borrower Company has suffered an Award of the DRT and the petitioner has travelled overseas on several occasions each time returning within the stipulated period. 34. The proposition laid down in UCO Bank holds good in the present case as well since there is nothing on record to show that the economic interests of India would be adversely affected in the event the petitioner travels abroad. No such ground was disclosed in the LOC or preceding request for its issuance. 35. Neither the LOC nor its subsequent extension in any event could go beyond the reasons furnished by the respondent no.3 Bank in its request for issuance of LOC. Such request being based merely on the allegation that the petitioner “is” a Director of the Company is utterly insufficient to issue a Look Out Circular. Moreover the3re is no justification in withholding the petitioner unnecessarily from leaving the country particularly in view of the fact that the livelihood of the petitioner depends on such overseas travel since the interests of the bank are sufficiently protected by the award passed against the borrower company by the DRT as well as the order of attachment of the petitioner’s property both movable and immovable passed by the Adjudicating Authority under the PMLA at the instance of the ED. 36. The petitioner has successfully demonstrated that he was not a Director of the Company at the relevant juncture when the borrower company is alleged to have committed fraud. Thus there is no basis whatsoever for issuance of the impugned LOC and the consequential subsequent extension thereof against the petitioner. 37. Neither the grounds mentioned in the Office Memorandum issued by the Government of India Ministry of Home Affairs on December 5 2017 nor the Circular dated October 27 2010 which was amended by the 2017 Memorandum are applicable in the present case to justify issuance and renewal of the LOC against the writ petitioner. 38. In view of the reasons set forth above WPO No.1020 is allowed on contest thereby quashing the Look Out Circular and the subsequent extension thereof issued against the writ petitioner. Respondent nos. 1 and 2 shall take immediate steps for circulation of this Order to the concerned Airport Authorities and or other agencies which were intimated about the issuance and extension of the LOC so that no further steps are taken against the petitioner on the basis of the said Look Out Circular as well as the subsequent extension thereof. 39. There will be no order as to costs. 40. Urgent certified copies of this order shall be supplied to the parties applying for the same upon due compliance of all requisite Sabyasachi Bhattacharyya J. )

When the criteria are notified in the guidelines such guidelines have to be interpreted as it is without deviating the same keeping in mind the facts of a particular case.: Supreme Court

The Court will have to consider the guidelines which were applicable during the relevant time as held by the Hon’ble Supreme Court through the learned bench led by Justice R. Subhash Reddy in the case of Kumari Rekha Bharati v. The State of Bihar &amp; Ors.  [CIVIL APPEAL NO. 6875 OF 2021] (Arising out of Special Leave Petition(C) No.32215 of 2017) The brief facts of the case are that in the year 2006, an advertisement was issued by the Mukhiya / Panchayat Secretary, Gram Panchayat Mirapur Panchayat, inviting applications for appointment of Anganwadi Sevika in Panchayat Centre No.43/09 of Gram Panchayat Mirapur, district Muzaffarpur. For the aforesaid purpose, a merit list was prepared in which 9th Respondent herein, was placed at Sl.No.01 and the appellant was at Sl.No.02. In first round of litigation, when the appellant was appointed, the same was questioned by the 9th Respondent by filing a complaint. Based on the complaint, the appointment of the appellant was cancelled by the District Programme Officer, Muzaffarpur. When the cancellation was challenged, High Court While quashing the termination of the appellant, issued directions to the District Magistrate to pass appropriate orders after hearing both the parties. Pursuant to the order of the High Court, the District Magistrate, Muzaffarpur has passed orders on relying on clause 3 (Anga) of guidelines dated 03.10.2006, holding that the 9th Respondent herein, was ineligible for appointment, on the ground that at the relevant time, her father was a government teacher. The order of the District Magistrate, Muzaffarpur was confirmed by the Appellate Authority. As against the order of cancellation of the appointment, as confirmed by the Appellate Authority, 9th Respondent herein, has filed a writ petition before the High Court. The writ petition was allowed by the learned Single Judge by order dated 07.09.2016. The order of the learned Single Judge was subject matter of Letters Patent Appeal No. 1988 of 2016. By impugned order dated 26.04.2017, the Division Bench of the High Court dismissed the appeal filed by the appellant herein, confirming the order of the learned Single Judge. Thus, the appellant in Letters Patent Appeal before the High Court, is appellant before this Court in the present appeal. After the perusal of the facts and arguments, the Hon’ble Supreme Court held, “It is brought to our notice that such Clause 3(E) of the guidelines was struck down subsequently by the High Court on 06.05.2010. As much as the selection relates to the year 2006, we have to consider the guidelines which were applicable during the relevant time. At the same time in view of the subsequent development, no direction can be granted to appoint the appellant, and selections are to be made by issuing fresh notification. For the aforesaid reasons, this Civil Appeal is allowed.” Click here to read the Judgment Judgment reviewed by Vandana Ragwani The Court will have to consider the guidelines which were applicable during the relevant time as held by the Hon’ble Supreme Court through the learned bench led by Justice R. Subhash Reddy in the case of Kumari Rekha Bharati v. The State of Bihar &amp; Ors.  [CIVIL APPEAL NO. 6875 OF 2021] (Arising out of Special Leave Petition(C) No.32215 of 2017) The brief facts of the case are that in the year 2006, an advertisement was issued by the Mukhiya / Panchayat Secretary, Gram Panchayat Mirapur Panchayat, inviting applications for appointment of Anganwadi Sevika in Panchayat Centre No.43/09 of Gram Panchayat Mirapur, district Muzaffarpur. For the aforesaid purpose, a merit list was prepared in which 9th Respondent herein, was placed at Sl.No.01 and the appellant was at Sl.No.02. In first round of litigation, when the appellant was appointed, the same was questioned by the 9th Respondent by filing a complaint. Based on the complaint, the appointment of the appellant was cancelled by the District Programme Officer, Muzaffarpur. When the cancellation was challenged, High Court While quashing the termination of the appellant, issued directions to the District Magistrate to pass appropriate orders after hearing both the parties. Pursuant to the order of the High Court, the District Magistrate, Muzaffarpur has passed orders on relying on clause 3 (Anga) of guidelines dated 03.10.2006, holding that the 9th Respondent herein, was ineligible for appointment, on the ground that at the relevant time, her father was a government teacher. The order of the District Magistrate, Muzaffarpur was confirmed by the Appellate Authority. As against the order of cancellation of the appointment, as confirmed by the Appellate Authority, 9th Respondent herein, has filed a writ petition before the High Court. The writ petition was allowed by the learned Single Judge by order dated 07.09.2016. The order of the learned Single Judge was subject matter of Letters Patent Appeal No. 1988 of 2016. By impugned order dated 26.04.2017, the Division Bench of the High Court dismissed the appeal filed by the appellant herein, confirming the order of the learned Single Judge. Thus, the appellant in Letters Patent Appeal before the High Court, is appellant before this Court in the present appeal. After the perusal of the facts and arguments, the Hon’ble Supreme Court held, “It is brought to our notice that such Clause 3(E) of the guidelines was struck down subsequently by the High Court on 06.05.2010. As much as the selection relates to the year 2006, we have to consider the guidelines which were applicable during the relevant time. At the same time in view of the subsequent development, no direction can be granted to appoint the appellant, and selections are to be made by issuing fresh notification. For the aforesaid reasons, this Civil Appeal is allowed.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6875 OF 20 Arising out of Special Leave Petition(C) No.322117 Kumari Rekha Bharati ...Appellant The State of Bihar & Ors ...Respondent(s JUDGMENT R. SUBHASH REDDY J. This Civil Appeal is directed against the order dated 26.04.2017 passed by the High Court of Judicature at Patna in Letters Patent Appeal No. 1988 of 2016. By the aforesaid order Order dated 07.09.2016 passed in CWJC No.2120 of 2014 by the learned Single Judge was confirmed. The learned Single Judge has allowed the writ petition filed by the 9th Respondent by quashing the order dated 20.03.2013 passed by the Collector Muzaffarpur and Digitally signed byRajni MukhiDate: 2021.11.1514:47:36 ISTReason:Signature Not Verified C.A.@ SLP(C) No.322117 the order dated 30.10.2013 passed in Appeal No. 246 of 2013 by the Commissioner Tirhut Division In the year 2006 an advertisement was issued by the Mukhiya Panchayat Secretary Gram Panchayat MirapurPanchayat inviting applications for appointment of Anganwadi Sevika in Panchayat Centre No.43 09 of Gram Panchayat Mirapur Block Muraul district Muzaffarpur. For the aforesaid purpose a merit list was prepared in which 9th Respondent herein was placed at Sl.No.01 and the appellant was at Sl.No.02 In first round of litigation when the appellant was appointed the same was questioned by the 9th Respondent by filing a complaint. Based on the complaint the appointment of the appellant was cancelled by the District Programme Officer Muzaffarpur vide order dated 09.01.2008. When the cancellation was challenged High Court in CWJC No.3408 of 2008 while quashing the termination of the appellant issued directions to the District Magistrate to pass appropriate orders after hearing both the parties. Pursuant to the order of the High Court the District Magistrate Muzaffarpur has passed orders on 20.03.2013 relying on clause 3 Anga) of guidelines dated 03.10.2006 holding that the 9th Respondent herein was ineligible for appointment on the ground that at the relevant time her father was a government teacher. The order of the District Magistrate Muzaffarpur was confirmed by the Appellate Authority i.e. Commissioner Tirhut Division Muzaffarpur vide order dated 30.10.2013 As against the order of cancellation of the appointment as confirmed by the Appellate Authority 9th Respondent herein has filed a writ petition before the High Court. The writ petition was allowed by the learned Single Judge by order dated 07.09.2016 passed in CWJC No.2120 of 2014. The order of the learned Single Judge was subject matter of Letters Patent Appeal No. 1988 of 2016. By impugned order dated 26.04.2017 the Division Bench of the High Court dismissed the appeal filed by the appellant herein confirming the order of the learned Single Judge. Thus the appellant in Letters Patent Appeal before the High Court is appellant before this Court in the present appeal We have heard Mr. Kumar Dushyant Singh learned counsel appearing for the appellant and Mr. Saket Singh learned counsel appearing for the respondent Nos.1 8. Respondent No.9 though served has not chosen to appear Appointments of Anganwadi Sevikas during the relevant time was governed by guidelines which were issued in the shape of a policy contained in Margdarshika 2006. Clause 3 of the guidelines deals with the qualifications conditions for selection to the post of Anganwadi Sevika. The relevant guidelines for the purpose of this appeal in Clause 3(E) read as “3.Qualifications Conditions for selection of Anganwadi Sevikain A. ... ... ... B. ... ... ... C. ... ... ... D. ... ... ... E. Public Servant Head Member of Panchayat Samiti Ward Member Member of District Council etc. themselves or their relatives sellers of the various public articlesrelatives such as daughter wife daughter in law of the Govt. and semigovt. Servants will not be selected for this post.” The pointed argument of the learned counsel appearing for the appellant is that the father of Respondent No.9 was a government servant and was serving as teacher in a government school as such 9th Respondent was not eligible for appointment in view of Clause 3 of the Guidelines dated 03.10.2006 It is contended that though appointment of 9th Respondent was rightly cancelled by the Collector Muzaffarpur and the said order was confirmed by the Appellate Authority i.e. Commissioner Tirhut Division Muzaffarpur the learned Single Judge interfered with such orders in the petition filed under Article 226 of the Constitution of India without assigning valid reasons. It is submitted that learned Single Judge has misconstrued the relevant guidelines and allowed the writ petition of the 9th Respondent. On the other hand it is the case of the respondents that 9th Respondent is married daughter of a government servant and her matrimonial home is in the district of Muzaffarpur whereas her paternal home is situated in the district of Vaishali. It is further submitted that the father of 9th Respondent was posted somewhere in the district of Vaishali as a teacher therefore sub clause ‘E’ of Clause 3 of the guidelines was rightly interpreted by the learned Single Judge and allowed the Writ Petition. It is submitted that said order is also confirmed in LPA It is submitted that there are no grounds to interfere with the impugned order passed by the High Having heard the learned counsel for the parties we have perused the impugned order and other material placed on record 10. It is not in dispute that at the relevant time selections were governed by guidelines issued by the concerned department on 03.10.2006. From a reading of Clause 3 of the guidelines it is clear that relatives such as daughter wife daughter in law of the government servant is ineligible for appointment as Anganwadi Sevika. The learned Single Judge has interpreted Clause 3 of the guidelines and held that the said guidelines are to be applied only for unmarried daughters. Further it is held that the 9th Respondent after her marriage is residing in the district of Muzaffarpur which is her matrimonial home. In view of her case that her paternal home is in the district of Vaishali the High Court was of the view that she is eligible for appointment in the district of Muzaffarpur as her father was working as a teacher in the district of Vaishali 11. The learned Single Judge of the High Court by interpreting the guidelines has held that though the paternal home of the 9th Respondent is in the district of Vaishali but after her marriage she is residing at her matrimonial home in the district of Muzaffarpur as such she is to be treated as eligible candidate. Such interpretation runs contrary to Clause 3 of the guidelines. For the purpose of considering the eligibility the guideline as indicated under sub clauseis to be construed as it reads. No distinction can be drawn between a married daughter and unmarried daughter for the purpose of considering the eligibility as per the guidelines. It is quite common in rural areas the paternal home and maternal home may be in the same village sometimes. When the criteria is notified in the guidelines such guidelines have to be interpreted as it is without deviating the same keeping in mind the facts of a particular case. Even the Division Bench has not considered the guidelines in proper perspective and affirmed the judgment of the learned 12. It is brought to our notice that such Clause 3(E of the guidelines was struck down subsequently by the High Court on 06.05.2010. As much as the selection relates to the year 2006 we have to consider the guidelines which were applicable during the relevant time. At the same time in view of the subsequent development no direction can be granted to appoint the appellant and selections are to be made by issuing fresh notification 13. For the aforesaid reasons this Civil Appeal is allowed. The impugned order is set aside Consequently Civil Writ Jurisdiction Case No.21214 stands dismissed with a further direction to the respondent authorities to issue fresh notification inviting applications for appointment to the post of Anganwadi Sevika for the centre in question and make fresh selection as per the guidelines which are in force now. It is made clear that the appellant and 9th Respondent are not precluded for applying pursuant to fresh notification. If they apply their claims also be considered along with other candidates. Till such fresh notification is issued and selections are made 9th Respondent is entitled to continue as Anganwadi 14. The civil appeal is allowed with the directions as indicated above (R. SUBHASH REDDY November 15th 2021

Sending abusive messages to a Personal WhatsApp account is not an offence u/s 294 of IPC: Bombay High Court

Sending abusive personal messages on WhatsApp will not amount to ‘Obscenity’ in a ‘Public Place’ and will not be considered as an offence u/s 294 of IPC held by Justice M.G. Sewlikar and Justice T.V. Nalawade in Nivrutti V. State of Maharashtra [Criminal Writ Petition No. 557 of 2018]. .  Facts related to this case is: respondent No. 2 is the wife of the petitioner, she married the petitioner on 14.5.2017. After marriage, the petitioner did not treat respondent No. 2 well. He would beat her and would call her a prostitute and that she earned money by doing the business of prostitution. It was further alleged that the petitioner married respondent No. 2 for the sake of others as the petitioner was homosexual. On 1st January 2018, the petitioner called her up and abused her in filthy language. Again on 27th and 28th February 2018, he sent a WhatsApp message to respondent No. 2 calling her prostitute and that she earned money by doing business of prostitution. It was further alleged that the petitioner had made phone calls to his relatives also and accordingly, she fled an F.I.R. on 5.3.2018 on the basis of which offences under Sections 294, 500, 506 and 507 of the Indian Penal Code has been registered against the petitioner. The Division Bench of Hon’ble Court observed while quashing the FIR registered u/s 294 of IPC observed that “Section 294 of the I.P.C. requires that a) act done must be an obscene act and it must be done in any public place. Sub Section (b) of Section 294 of I.P.C. can be pressed into service if anyone sings, recites or utters any word, song, ballad words, near any public place and Section 294 further requires that such obscene acts, song, ballad or utterance of words cause annoyance to others.” It was further expounded by the Hon’ble Court that “In the case at hand, there is no utterance of words in any public place but the alleged obscene messages are sent on social media i.e. WhatsApp. Respondent No. 2 has alleged that the messages are uploaded on Facebook. The compilation produced by respondent No. 2 shows that those are the WhatsApp messages and are not the messages uploaded on Facebook. WhatsApp messages sent on personal accounts are strictly personal. Nobody has access to those messages except the sender and the receiver.”   The Hon’ble Court made a reference to the privacy and Security Terms given on WhatsApp and noted that the literature published on the Website clearly indicated that the WhatsApp messages sent by one person to another are end-to-end encrypted which means, only the sender of the message and the recipient of the message can read the messages. It also claims that nobody in between, not even WhatsApp, can read these messages. These messages are secured with a lock and only the recipient and sender have a special key needed to unlock and read them. “The literature available on the Website of the WhatsApp makes it abundantly clear that such types of messages are strictly personal messages and nobody even the WhatsApp can have access to these messages which means nobody except the sender and the recipient can read the messages. Thus, when these messages cannot be read by others, it ipso-facto goes to show that no third person nor even WhatsApp can have access to those messages. Therefore, WhatsApp cannot be a public place if messages are exchanged on personal accounts of two persons.” The Hon’ble Court further observed that if the messages were posted on the WhatsApp Group then it would have been called a ‘Public Place’ since all the members of the group will have access to the same, hence sending personal messages on WhatsApp will not amount to the utterance of obscene words in Public Place and for the reasons stated, Section 294 of IPC cannot be invoked. Click here to read the judgement Judgement reviewed by-Sarita Kumari Judgement reviewed by-Sarita Kumari

on 12 03 2020 on 20 09 1 criwp557.18IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 557 OF 2018Nivrutti s o Hariram Gaikwad Age 33 years Occ Sub Divisional Ofcer Residing at house of Choughule Near Shiv Mandir Naigaon Tq. Naigaon Dist Nanded....PETITIONERV E R S U S1)The State of Maharashtra Through Police Station Ofcer Naigaon Police Station Tq. Naigaon Dist Nanded.2)Mrs. Pooja Nkivrutti Gaikwad Age 25 years Occ Household Residing at House of Shankarshet Harde Patil Behind S.P. Ofce Near Surya Hospital Vajirabad Nanded Tq. & Dist. Nanded....RESPONDENTS .. ….Shri. Shambhuraje V. Deshmukh Advocate for the PetitionerShri R.D. Sanap A.P.P. for the Respondent No.1 StateShri.Kiran Nagarkar Advocate h f Smt. Smita S. Kulkarni Advocate forRespondent No. 2 … CORAM : T.V. NALAWADE & M.G. SEWLIKAR JJ. Date of reserving of judgment : 05.02.2020Date of pronouncement of judgment : 11.03.2020 on 12 03 2020 on 20 09 2 criwp557.18JUDGMENT :This petition is fled under Article 226 and 227 of theConstitution of India and under Section 482 of the Code of CriminalProcedure for quashing of the F.I.R.2.Facts giving rise to this petition are that the respondent No.2 is the wife of the petitioner. She married petitioner on 14.5.2017.After marriage the petitioner did not treat the respondent No. 2 well.He would beat her and would call her a prostitute and that she earnsmoney by doing business of prostitution. It is further alleged that thepetitioner married the respondent No. 2 for the sake of others as thepetitioner is homosexual. On 1st January 2018 the petitioner calledher up and abused her in flthy language. Again on 27th and 28thFebruary 2018 he sent WhatsApp message to the respondent No. 2calling her prostitute and that she earns money by doing business ofprostitution. It is further alleged that the petitioner had made phonecalls to his relatives also. Accordingly she fled an F.I.R. on 5.3.2018on the basis of which ofence under Sections 294 500 506 and 507 ofthe Indian Penal Code has been registered against the petitioner.3.Heard Shri. Shambhuraje V. Deshmukh learned counsel forthe Petitioner Shri R.D. Sanap learned A.P.P. for the Respondent No.1 State and Shri. Kiran Nagarkar Advocate h f Smt. Smita S. Kulkarnilearned counsel for the Respondent No. 2. on 12 03 2020 on 20 09 3 criwp557.184.Shri Deshmukh the learned counsel for the petitionersubmitted that ofence under Section 294 of the I.P.C. will be attractedonly if the obscene words are uttered in public place and that theobscene words should be of such a nature as to cause annoyance toothers. He submitted that the WhatsApp messages are personalmessages. Therefore sending of personal messages on personalaccount of WhatsApp will not amount to utterance of words at publicplace. He submitted that the alleged messages have not been sent onWhatsApp group.5.Shri Sanap the learned A.P.P. for respondent Statesubmitted that the messages sent on personal account on WhatsApp amounts to utterance of obscene words in public place. Therefore ofence under Section 294 of the I.P.C. is made out.6.Section 500 and 506 of the I.P.C. are non cognizableofences.7.Section 294 of the Indian Penal Code read as under : “Section 294 IPC Whoever to the annoyanceof others does any obscene act in anypublic place orsings recites or utters anyobscene song ballad words in or near anypublic place shall be punished withimprisonment of either description for a term on 12 03 2020 on 20 09 4 criwp557.18which may extend to three months or withfne or with both."Section 294 of the I.P.C. requires that a) act done must bean obscene act and it must be done in any public place. Sub Section(T.V. NALAWADE J.)mahajansb

Doctors cannot be put to criminal prosecution for negligence during the Pandemic: Chhattisgarh High Court

Doctors have put themselves through extraordinary situations to treat and serve people during a situation of chaos amidst the ongoing Covid-19 Pandemic. Decisions which are taken as a last resort to save lives cannot be held against these doctors as ‘medical negligence’. This was ruled by Hon’ble Shri Justice Goutam Bhaduri in the case of Sanjay Ambastha Vs. State of Chhattisgarh, Through Secretary, Health and Family Welfare Department [W.P.(C) No. 2653 of 2021] on the 02nd of July before the Hon’ble High Court of Chhattisgarh at Bilaspur. The brief facts of the case are, the petitioner’s mother, aged about 69 years, was admitted to hospital named Ram Krishna Care Medical Science Pvt. Ltd. on 22.09.2020 with an infection of Jaundice and no symptom of Covid-19. Subsequently, she was put in a Covid ward after she was tested Covid positive at the time of admission. She was administered with ‘Remdesivir’ Injection and due to wrong treatment of administrating injection her health got deteriorated from 26.09.2020. Subsequently after deterioration Remdesivir injection was stopped. Later, an RTPCR test was conducted wherein she was found covid negative but still she was kept with the covid patient. The mother of the petitioner died due to post covid complication. Further, it is stated that the dead body was delivered to the petitioner without following the safety protocol and it was transported through the Ambulance without safety measures. The petitioner has filed the present petition claiming that the hospital is responsible for the negligent treatment and did not follow the covid norms in handling the dead body. The counsel for the petitioner submitted that, the remedesivir injection was wrongly administered and thus the mother died. It was also submitted that although the mother of the petitioner died because of covid complication, her death the dead body was handed over without following the guidelines where, the Hospital was required to give the body in a double layer leak proof zipped body bag and to be handed over to the transport employee. Whereas, in respect of case of mother of petitioner, it was handed over to the petitioner. The counsel for the respondent however opposed the arguments claiming that, the patient was covid negative and thus, the protocols regarding the dead body need not be followed. The court heard the submission of both counsels and observed the case in the light of the huge burden on the shoulders of these doctors to save lives amidst the pandemic. The argument of medical negligence was dismissed by the court citing the judgement in the case of Dr. Suresh Gupta v. Govt. of NCT of Delhi and Another AIR 2004 SC 4091 wherein it was held that, “the bonafide medical practitioners should not be put through unnecessary harassment. The court observed that Doctors would not be able to save lives if they were to tremble with the fear of facing criminal prosecution. In such a case, a medical professional may leave a terminally ill patient to his own fate in an emergency where the chance of success may be 10% rather than taking the risk of making a last-ditch effort towards saving the subject and facing criminal prosecution if the effort fails. The court held that simple lack of care, error of judgment, or an accident is not proof of negligence on the part of a medical professional and that failure to use special or extraordinary precautions that might have prevented a particular incidence cannot be the standard for judging alleged medical negligence”.  The concept of medical negligence was further analyzed throwing light to the judgement held by the supreme court in Jacob Mathew v. State of Punjab &amp; Another [(2005) 6 SCC 1] wherein “Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used).”

1 AFRHIGH COURT OF CHHATTISGARH AT BILASPURW.P.(C) No. 26521Sanjay Ambastha S o. Mohan Gopal Ambastha Aged About 51 Years R o. Suman Sadan Darripara Ambikapur District Sarguja Chhattisgarh. PetitionerVersus 1.State Of Chhattisgarh Through Secretary Health And Family WelfareDepartment Govt. Of Chhattisgarh Raipur Chhattisgarh. 2.The Nodal Officer Ram Krishna Care Hospital Regional Transport Office Raipur Chhattisgarh. 3.The District Collector District Raipur Chhattisgarh. 4.D.H.O. cum Inquiry Officer Office Of Chief Medical And Health Officer District Raipur Chhattisgarh. 5.Ram Krishna Care Medical Science Pvt. Ltd. Through The Management Aurobindo Enclave Pachpedhi Naka Dhamtari Road District RaipurChhattisgarh. RespondentsFor Petitioner :Mr. Shakti Raj Sinha Advocate For State :Mr. Alok Bakshi Addl. A.G. Hon ble Shri Justice Goutam BhaduriORDER02.07.2021Heard1.The facts as pleaded the petitioner s mother aged about 69 years wasadmitted to hospital named Ram Krishna Care Medical Science Pvt. Ltd.on 22.09.2020 with an infection of Jaundice and no symptom of Covid 19.Subsequently she was put in a Covid ward after she was tested covidpositive at the time of admission. It is stated that the mother wasadministered with Remdesivir Injection and due to wrong treatment ofadministrating injection her health got deteriorated from 26.09.2020.Subsequently after deterioration Remdesivir injection was stopped.Further on 29.09.2020 RTPCR test was conducted wherein she wasfound covid negative but still she was kept with the covid patient and on 2 02.10.2020 the mother of the petitioner died due to post covidcomplication. Further it is stated that the dead body was delivered to thepetitioner without following the safety protocol and it was transportedthrough the Ambulance without safety measures. Consequently violationof guidelines issued by the Central and the State Government wascommitted by the respondent No.5 hospital for which they are liable to beprosecuted. With such pleading the two fold prayer is made. The hospitalis responsible for the negligent treatment and another one that the hospitaldid not follow the covid protocol norms in handling the dead body therefore the hospital is liable to be prosecuted. 2.Learned counsel for the petitioner would submit that the mother of thepetitioner when admitted was tested Covid 19 positive and though sherecovered from covid but eventually died on 02.10.2020. Before the dateof death the RTPCR test was carried out of patient for covid and it wasfound that she was negative thereby recovered from covid but diedsubsequently. It is stated though the mother of the petitioner died becauseof covid complication yet after her death the dead body was handed overwithout following the guidelines issued by the Government of India Ministry of Health & Family Welfare6 SCC 1 4referred tohereinabove holds good. Negligence becomes actionableon account of injury resulting from the act or omissionamounting to negligence attributable to the person sued.The essential components of negligence are three: duty breach and resulting damage .Negligence in the context of medical professionnecessarily calls for a treatment with a difference. To inferrashness or negligence on the part of a professional inparticular a doctor additional considerations apply. A caseof occupational negligence is different from one ofprofessional negligence. A simple lack of care an error ofjudgment or an accident is not proof of negligence on thepart of a medical professional. So long as a doctor followsa practice acceptable to the medical profession of thatday he cannot be held liable for negligence merelybecause a better alternative course or method oftreatment was also available or simply because a moreskilled doctor would not have chosen to follow or resort tothat practice or procedure which the accused followed.When it comes to the failure of taking precautions whathas to be seen is whether those precautions were takenwhich the ordinary experience of men has found to besufficient a failure to use special or extraordinaryprecautions which might have prevented the particularhappening cannot be the standard for judging the allegednegligence. So also the standard of care while assessingthe practice as adopted is judged in the light ofknowledge available at the time of the incident and not atthe date of trial. Similarly when the charge of negligencearises out of failure to use some particular equipment thecharge would fail if the equipment was not generallyavailable at that particular timeat which it is suggested it should have beenused.(3)…..xxx.....xxx....(4)…..xxx.....xxx....(5)The jurisprudential concept of negligence differs incivil and criminal law. What may be negligence in civil lawmay not necessarily be negligence in criminal law. Fornegligence to amount to an offence the element of mensrea must be shown to exist. For an act to amount tocriminal negligence the degree of negligence should bemuch higher i.e. gross or of a very high degree.Negligence which is neither gross nor of a higher degreemay provide a ground for action in civil law but cannotform the basis for prosecution. (6)….xxx......xxx....(7)….xxx.....xxx....(8)….xxx.....xxx....”8.This fact cannot be loose site that India is the second most populouscountry in the world. It being a developing economy increasedurbanization rapid deforestation little or no check on pollution level makethe people more prone to tropical diseases couple with equally densepopulation. Therefore naturally the health condition in the country cannotbe the best. In the urban area too the average of doctors as against thepatient are less which outbreak of pandemic all over the world it is notnormal and easy to handle. This condition worsened and aggravated asany amount of effort by the medical would not be made satisfactory for thepressure of population and patient specially during covid pandemic. Thepandemic have returned after 100 years no medicine is invented assuch the doctors to the best of their ability and understanding haveadministered different injection to the Covid 19 infected patients. This maybe attended by risks one has to understand the fact that the system cannot take benefits without taking the risks and every advance in technique 6 and experience is also attended by risks. The Doctors like the rest of us have to learn by experience and experience often teaches in a hard way.Therefore putting the Doctors to a criminal prosecution for negligencewould lead to create a lot of emotional disturbance at the time ofpandemic when the doctors have served the ailing besides the factdoctors patient ratio has miserably failed and doctors made their besteffort to revive the ailing one no criminal negligence can be attached onany individual opinion. Under these circumstances one has to indicatetrust in the system and cannot be allowed to abuse the conditions may bea self certified bonafide. 9.With respect to the second aspect of the complaint that the dead body wasnot handled according to the covid protocol guidelines issued by theCentral and State Government this Court in exercise of power underArticle 226 of the Constitution can not go into the roving enquiry in asmuch as the nature of complaint as has been stated that the dead bodywas handed over without any zipped body bag is a matter of enquiry. ThisCourt therefore would refrain itself to go into the exercise of investigation.Serving certain problem requires multi pronged approach and they wouldpersist if viewed through narrow lens and the petitioner therefore cannotaccept ill conceived exercise by this court to substantiate the fact andallegation. 10.In view of the aforesaid discussion I am not inclined to admit this petition.According it is dismissed. Sd (Goutam Bhaduri)JUDGEAks

Mere omission or defect in framing the charge does not disable the court from convicting the accused for the offence which is found to have been proved on the evidence on record: Gauhati High Court

Failure to state an offence in all the person is culpable to, regardless of its inclusion in the charging documents, would not exclude the courts from convicting them of the actual offence that is contained on the record of proof. The judgment was passed by The High of Court Gauhati in the case of Hafizur Rahman and Ors Vs The State of Assam and Anr [Crl.A./397/2019] by Division Bench consisting of Hon’ble Shri Justice Suman Shyam &amp; Mir Alfaz Ali. The facts consisting of nine accused persons named in the FIR entered into the land possessed by the deceased and started cutting bamboos and accused Mukutar (since deceased) pelted stone at the house of the informant. and also demolished the dwelling house. The deceased succumbed to the injuries at the spot. Lutfur Rahman lodged the FIR u/s 147/148/149/447/302/326/336/302/427 IPC and upon completion of investigation submitted a charge-sheet against nine accused persons including the present appellants. Learned counsel for the appellant submitted that no charge u/s 302 IPC was framed against the appellant Saidur Rahman, and as such, a conviction of the appellant Saidur Rahman u/s 302 IPC was illegal and improper. He further contended that though, the charge was framed u/s 302 with the aid of section 34 IPC against five accused persons including the appellants, the learned trial court convicted the three appellants u/s 302 simpliciter. As such, conviction and sentence against the appellants was illegal and improper. The Learned Counsel on the corollary submitted that when a charge is framed u/s 302 with the aid of Section 34 IPC, the conviction u/s 302 simpliciter is permissible, in the event of failure of the prosecution to establish the common intention, if the evidence on record establishes the substantive offence. The Court relied on The Apex Court Judgement K. Prema S. Rao &amp; Anr. – Vs. Yadla Srinivasa Rao &amp; Ors, wherein “it was submitted that mere omission or defect in framing the charge does not disable the court from convicting the accused of the offence which is found to have been proved on the evidence on record. The provision of Section 221 CrPC take care of such situation and safeguard the power of the criminal court to convict an accused for an offence with which he is not charged although, on facts found in evidence, he could have been charged for such offence.”

Page No.# 1 13 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A. 397 2019 HAFIZUR RAHMAN AND 2 ORS. S O LATE DALILUR RAHMAN R O VILL. NO. 1 KAKI NO. 6 GAON JARONI BLOCK P.O. AND P.S. KAKI DIST. HOJAI ASSAM PIN 782446 2: SOIDUR RAHMAN S O LATE DALILUR RAHMAN R O VILL. NO. 1 KAKI NO. 6 GAON JARONI BLOCK P.O. AND P.S. KAKI DIST. HOJAI PIN 782446 3: SAHIDUR RAHMAN S O LATE DALILUR RAHMAN R O VILL. NO. 1 KAKI NO. 6 GAON JARONI BLOCK P.O. AND P.S. KAKI DIST. HOJAI PIN 782446 S O LATE HABIBUR RAHMAN R O VILL. NO. 1 NO. 6 GAON THE STATE OF ASSAM AND ANR TO BE REP. BY THE LEARNED PUBLIC PROSECUTOR ASSAM GAUHATI Page No.# 2 13 JARONI BLOCK P.O. AND P.S. KAKI DIST. HOJAI PIN 782446 Advocate for the Appellants : ALHAJJ INAM UDDIN Advocate for the Respondent : MR. M PHUKAN ADDL. PP ASSAM HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE MIR ALFAZ ALI JUDGMENT & ORDER2013 whereby the appellants were convicted u s 302 IPC and sentenced to undergo rigorous imprisonment for life and fine of Rs.10 000 each with default stipulation 3. The prosecution case in a nutshell was that on 19 06 2009 at about 3.30 PM nine accused persons named in the FIR entered into the land possessed by Habibur Rahman deceased) and started cutting bamboos and accused Mukutarpelted stone at the house of the informant. When the informant Lutfur came out of the house the accused Sahidur Rahman Hasibur and Rafique Ali all armed with “dao” chased Lutfur Rahman and he ran away out of fear. Thereafter the accused Sahidur Rahman Hasibur Rahman Rafique Ali Hafizur Rahman and Saidur Rahman assaulted Habibur Rahman Motibur Rahman and Dhan by “dao” “lathi” spear etc. and also demolished the dwelling house of Habibur Rahman. Habibur Rahman succumbed to the injuries at the spot. Lutfur Rahman(PW 1) lodged the FIR(Ext. 1) on the basis of which police registered Kaki PS Case No. 32 2009 Page No.# 3 13 u s 147 148 149 447 302 326 336 302 427 IPC and upon completion of investigation submitted charge sheet against nine accused persons including the present appellants. 4. Based on the charge sheet and the materials produced therewith learned Sessions Judge framed charges against all the charge sheeted accused persons u s 447 34 and u s 147 148 IPC. Further the learned Sessions Judge framed charges u s 302 336 read with Section 34 IPC against Mukutar Rahman Sahidur Rahman Hafijur Rahman Rafique Ali and Hasibur Rahman. All the accused persons including the present appellants denied the charges and claimed to be tried. Prosecution examined 10 witnesses to substantiate the charges against the appellants. Upon completion of the prosecution evidence the accused persons were examined u s 313 CrPC wherein all of them took the plea of innocence and examined one witness in their defence. 5. Lutfur Rahman the informant was examined as PW 1. He deposed that on 19 06 2009 at about 4.30 PM the accused Mukutar Sahidur Hafizur Saidur Hasibur Jahidur Rafique Adilur and Kasem entered into the residential campus of the deceased and started cutting bamboos and they also pelted stone at the house of PW 1. He also stated that the accused Sahidur Hasibur and Rafique chased him and he had fled the scene out of fear. According to him when he came back after about an hour he had found his father lying dead in the house of Mukut and by that time all the accused persons had left the place of occurrence. 6. The PW 2 Azizur Rahman deposed that on 19 06 2009 at about 2.30 PM accused Mukutar Rahmanasked for demarcation of the land. He further stated that accused Sahidur Hafizur Saidur Adilur Jehidur Hasibur Sarif Rafique and Abdur @ Kasem entered into their campus and started cutting bamboos and Mukutar pelted stone at their house. When his elder brother Lutfur was fleeing from the house out of fear accused Sahidur and Hasibur chased him and Mukutar stabbed into the abdomen of his brother Motibur with a spear. He also stated that Hafijur Sahidur and Mukutar inflicted fracture injury on the leg of his fatherby means of a crowbar and axe and also plucked his right eye. He further stated that when he tried to flee the scene having been chased by the accused persons Hafizur intercepted him and fell him into a pond. He also stated that the accused persons tied the deceased with a mango tree. However during cross examination he stated that his father and brother were lying on the ground and the accused persons did not tie Page No.# 4 13 7. PW 3 Motibur Rahman was also an injured witness. He deposed that at about 2 2.30 PM accused Mukutar asked him to come out of the house and rest of the accused persons viz. Hafizur Saidur Kasem Sarif Jahirul Adilur and Hasibur started cutting bamboos. He also stated that the accused persons entered his house Mukutar hit on his stomach with a pointed object like spear and Hafizur dragged him from the house. He further stated that Mukutar stabbed his fatherwith a “shul” and Hafijur inflicted a fracture injury on his leg with a crowbar. During cross examination he admitted that he did not see PW 2 being assaulted nor had he seen the incident of assault which took place inside the house of the 8. PW 4 Marzina Begum is the wife of the deceased Habibur Rahman. She deposed that on the day of occurrence at about 3 PM when they were taking meal accused Mukutar since deceased) came and asked them to demarcate the land and started pelting stone to their house. She further stated that the accused persons entered into their land and started cutting bamboos. According to her accused Mukutar stabbed Motibur with a spear and dragged him to his courtyard. Thereafter rest of the accused persons came and assaulted her husbandby means of a “shul” and dragged him to the courtyard of Mukutar She also deposed that the accused persons stabbed in the eye of her father in law by means of a crowbar and inflicted fracture injury on his legs by means of a rod. She also stated that when her husband Dhan tried to run away from the house Hafijur caught and fell him into a pond Sarif dealt a blow on hishead and accused Mukutar inflicted cut injury on his Page No.# 5 13 10. PW 8 is the daughter of the deceased. According to her she was not an eye witness to the occurrence. She came later having come to know about the occurrence and had seen Motibur and his father in injured state and immediately after his arrival her father expired She also stated to have seen a pierced injury in one of the eyes of her father. 11. PW 5 was a witness to the seizure list. He came to the house of the deceased at about 4 O’clock and had seen Habibur Rahman lying dead in the courtyard. According to him inquest on the body was held in his presence and he put his signature in the inquest report Ext. 4). 12. PW 6 was Dr. Basudev Malakar who examined the injured Azizur Rahman @ Dhan PW 2) and Motibur Rahmancame to the police station and informed verbally that a fight had taken place between her husband and father in law and the brothers of her father in law. She also informed that her husband as well as her father in law and brother in law sustained grievous injuries. On the basis of the said information he made GD Entry No. 317 dated 19 06 2009 and proceeded to the place of occurrence. He also proved the GD Entry No. 317 dated 19 06 2009 as Ext. 7. According to him upon arrival at the place occurrence he drew a sketch map of the place of occurrence held inquest on the body of the deceased and examined the witnesses who were found available at the place of occurrence. He also stated to have found accused Mukutar Rahman Sahidur Rahman and Abdur Rahman in injured state and sent them to hospital for treatment. Thereafter a written Ejahar was filed by Lutfur Rahman on 20 05 2009 on the basis of which he registered the case. He also stated to have seized some incriminating articles viz. one stick made of bamboo two broken pieces of bricks and five pieces of stones in presence of the witnesses. In the meantime he was transferred and therefore handed over the case diary to his successor. He has stated during cross examination that on 19 06 2009 one Sahina Begum also lodged an Ejahar in connection with the same incident and a cross case was registered vide Kaki PS Case No 35 2009 u s 447 325 34 IPC. He also proved the previous statement of PW 7 and PW 8 recorded u s 161 CrPC. 16. The appellant also examined one Nasir Uddinas defence witness. He deposed that there was long standing dispute between both the parties and a village meeting was held on the day of occurrence at about 12 O’Clock. However the dispute could not be resolved in the village meeting as the elder brother of the deceased Habibur Rahman was reluctant to abide by the decision of the village meeting. According to him he had no knowledge as to what had happened after the village meeting. 17. Appreciating the above evidence brought on record the learned trial court convicted the appellants u s 302 IPC. However the learned trial court acquitted all the accused persons of the charges u s 147 148 447 326 IPC. 18. Assailing the impugned judgment learned counsel for the appellant Mr. A.I. Uddin submitted that no charge u s 302 IPC was framed against the appellant Saidur Rahman and Page No.# 7 13 as such conviction of the appellant Saidur Rahman u s 302 IPC was illegal and improper. Mr Uddin further contended that though charge was framed u s 302 with the aid of section 34 IPC against five accused persons including the appellants learned trial court convicted the three appellants u s 302 simplicitor. As such conviction and sentence against the appellants was illegal and improper. 19. Learned Addl. Public Prosecutor Mr. Phukan submitted that when charge is framed u s 302 with the aid of Section 34 IPC the conviction u s 302 simplicitor is permissible in the event of failure of the prosecution to establish the common intention if the evidence on record establishes the substantive offence. 20. We have considered the submission made by the learned counsel and also perused the evidence and materials brought on record. 21. As already indicated above charges were framed against all the accused persons including the present appellants under various penal provision. However all the accused persons including the appellants were exonerated from all other accusation of which charges were framed except for the charge u s 302 IPC for which a separate charge u s 302 read with section 34 IPC was framed against five of the accused persons viz. Hafijur Rahman Sahidur Rahman Hasibur Rahman Rafique Ali and Mukutar Rahman. But no charge was framed u s 302 IPC against the appellant Saidur. Accused Mukutar Rahman died during trial and the learned trial court convicted the present appellants u s 302 IPC despite the fact that no charge u s 302 IPC was framed against the appellant Saidur Rahman. Therefore the contention of the learned counsel for the appellants is that conviction of the appellant Saidur Rahman u s 302 IPC was vitiated for not framing charge. As such his conviction is liable to be set aside on this count alone inasmuch as he could not have been convicted u s 302 IPC without framing a charge submits Mr. Uddin. 22. The law with regard to the consequence of defect in farming of charge or omission to frame charge is no longer res integra. It is the settled position that non framing of charge or mere defect in framing of charge per se does not vitiate the trial in view of the provision contained in Section 215 221 and 222 of the CRPC which take care of the situation arising out of omission or defect in framing of charge. Page No.# 8 13 23. In Rafique Ahmed Vs. State of U.P. AIR 20113114 the Supreme Court observed that non framing of charge per se will not vitiate the trial itself. The same will have to be examined in the facts and circumstances of the case. Thus in a case where charge was framed for the offence of dacoity with murder under Section 396 IPC the accused can be convicted under Section 302 IPC without being specifically charged because the offence of murder will have to be read in to the provision of Section 396 IPC qua the doctrine of “legislation by incorporation.” 24. In K. Prema S. Rao & Anr. Vs. Yadla Srinivasa Rao & Ors. 1 SCC 217 the Supreme Court observed that mere omission or defect in framing the charge does not disable the court from convicting the accused for the offence which is found to have been proved on the evidence on record. The provision of Section 221 CrPC take care of such situation and safeguard the power of the criminal court to convict an accused for an offence with which he is not charged although on facts found in evidence he could have been charged for such 25. The Apex Court in Jaswantrai Manilal Akhaney Vs. State of Bombay AIR 1956Slaney Vs. State of U.P. AIR 1956116 : 1956 Crl. L J. 291. In the said case two brothers were put up for trial on the charge under section 302 IPC read with section 34 IPC. Upon appreciation of evidence learned trial court found that only one of them struck the fatal blow and accordingly he was convicted u s 302 IPC and the other was acquitted. High Court upheld the conviction and the matter landed in Supreme Page No.# 9 13 Court. The question before the Supreme Court was whether the omission to frame an alternative charge under section 302 IPC simplicitor was illegal that vitiated the trial. The Supreme Court having considered the conflicting decision on the matter held that omission to frame an alternative charge u s 302 IPC simplicitor in the facts and circumstances of the case was not an illegality that vitiate the trial but was a curable irregularity as it had not occasioned any prejudice to appellants and accordingly conviction and sentence of the appellants u s 302 IPC simplicitor was not interfered. 27. The pertinent question therefore is whether the defect in framing of charge or omission to frame charge has caused prejudice to the accused. It goes without saying that the basic object and purpose of framing charge is to enable the accused to know the accusation against him and to prepare his defence. Therefore charge is basically a notice of the specific accusation against an accused which he is required to meet. As such the principle of natural justice and the right of fair trial demands that the accused should know the accusation and charge brought against him. Unless the accused has the knowledge of the charge he is required to meet he may not be able to prepare his defence properly and in that event the accused may be prejudiced for being deprived of preparing his defence. It must also be borne in mind that prejudice is a question of fact which is required to be proved like any other facts. Therefore whether an accused has been prejudiced for any defect in framing of charge or for non framing of charge would depend on the facts of a particular 28. In the instant case the appellant Saidur was exonerated from all the accusation of which charges were framed. However he was convicted only u s 302 IPC of which no charge was framed against him. As such necessarily he did not have any notice or knowledge that he was also being tried for an offence of murder. There may be a case where a distinctly separate offence is included in the charge of another offence for example section 396 IPC which provides punishment for dacoity with murder. In case of an offence u s 396 IPC which combined two offences i.e. dacoity and murder when charge is framed u s 396 IPC a person may be convicted under Section 302 IPC if evidence brought on record establishes the charge u s 302 IPC even in absence of separate charge u s 302 IPC reason being that in such case accused has the notice or knowledge that he was being tried both for dacoity and Page No.# 10 13 murder as section 396 IPC combines both the offencestabbed in the ear of Habibur Rahman(deceased) with a “shul” and accused Hafijur Sahidur Saidur and Mukutar inflicted fracture injury on the leg of Habibur Rahman by means of a crowbar and axe and they also plucked hisright eye by means of crowbar. Though the testimony of this witness with regard to plucking of an eye of the deceased seems to be exaggerated embellishment for not being supported by other evidence including inquest report as well as the medical evidence his testimony to the effect that the appellants inflicted injury on the leg of the deceased causing fracture of tibia and fibula remained unimpeached. PW 3 also stated that Mukutar stabbed his father with a “shul” and also inflicted fracture injury on the leg of this fatherby means of a crowbar. PW 4 deposed that the accused persons assaulted her husband and dragged him to the courtyard of Mukutar. Though PW 4 did not mention the name of the appellants specifically she also stated that all the accused persons assaulted her husband. PW 7 another eye witness to the occurrence also deposed that the accused persons inflicted injury and caused fracture on the leg of the deceased with a rod. 33. From the above evidence it is abundantly clear that the accused appellants Hafijur Sahidur and Saidur inflicted injury on the leg of the deceased and the testimony of the ocular witnesses also finds support from the medical evidence which shows that the deceased sustained “fracture of shaft of right tibia and fibula above ankle joint and fracture of tibia and fibula at shaft of left side”. We also take note of that none of the ocular witness deposed that the fatal injury on the head which ultimately caused the death of the deceased was inflicted by the present appellants. 34. Though PW 2 has stated that the injury on the leg was inflicted by axe and crowbar and PW 7 deposed that the injury on the leg of the deceased was caused by rod neither any rod nor any axe was seized by police. It is in the evidence of the investigating officer that Page No.# 13 13 immediately after the occurrence wife of the PW 3 informed him verbally about the occurrence and pursuant to such information he arrived at the place of occurrence and seized one stick made of “Jati bah” a pointed stick of bamboo two pieces of broken bricks and five number of stones. Therefore although prosecution witnesses have deposed that the injuries on the leg of the deceased was caused by axe rod crowbar and stick etc. in absence of specific evidence as to which of the weapon was used and in the face of clear medical evidence that no incised wound was found on the body of the deceased coupled with the facts that except stick made of bamboo as well as stones and broken bricks no other weapon was seized by the police who arrived the scene immediately after the occurrence it cannot be said for certain that injury on the leg of the deceased was caused by any dangerous weapon of offence. It is however abundantly clear from the medical evidence that the injury was inflicted by a blunt object. Therefore in the facts and circumstances of the case we are of the considered view that the appellants would be liable only u s 325 IPC for causing grievous hurt to the deceased Habibur Rahman. 35. In the teeth of the above discussions we set aside the conviction of the appellants u s 302 IPC instead convict them u s 325 IPC and sentence them to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 1 000 each in default they will undergo 36. With the modification and alteration to the extent indicated above the appeal stands simple imprisonment for 15 days. partly allowed. 37. Send back the LCR. JUDGE JUDGE

The appeal is allowed to the limited extent that it grant recovery rights against the appellant : High Court of Delhi

The Tribunal shall have  endeavour to conclude the recording of evidence on the limited aspect of grant of recovery rights and pass award expeditiously and same was upheld by High Court of Delhi in the case of M/S GARG ROAD LINES &amp; ANR  vs. NATIONAL INSURANCE CO. LTD &amp; ORS. (MAC.APP. 54/2022) on 09.03.2022. Brief facts of the case are that the Tribunal has erred in holding that there was no valid driving license in favour of the driver, who was driving the offending vehicle and that the driving license was fake. And  the testimony of an officer from the Transport Authority has been referred to wherein he has deposed that there is no record of any license having been issued in the name of Anoop Kumar between the period 23.01.2003 to 22.01.2023. but the website of the RTO shows that the driving license number 530/FKB/2006 is issued in the name of Anup Kumar on 22.01.2003. Learned counsel for petitioner contends that the driver had undergone the requisite training for transporting hazardous goods and as such there was no specific requirement for endorsement on the license. He relies on the judgment of a coordinate bench of this court dated 12.10.2017 in MAC.APP. 1043/2016, tittled “National Insurance Co. Ltd. Vs. Sonia Mittal &amp; Others”. He further submits that the permit could not be produced before the Tribunal. However, he has filed the same before this Court. Learned counsel for the insurance company contends  that the appellant did not produce the relevant records before the Tribunal and accordingly it has caused prejudice to the insurance company and in case the matter is to be remitted, appellant should be put to some terms. In view of the fact, Court opined that that the impugned award relies on the testimony of the witness from the RTO, who has referred to the period from 23.01.2003 to 22.01.2023 and the driving license alleged to have been issued in favour of the driver is allegedly issued on 22.01.2003 and the website of the RTO is even as on date is showing the same having been issued and further the fact that the appellant has produced the certificate of training as well as the permit of the said vehicle valid during the relevant period, it is a fit case for a remit to the Tribunal on the limited extent of the grant of recovery rights against the appellant. Accordingly, the appeal is allowed to the limited extent that it grant recovery rights against the appellant, subject to payment of costs of Rs.25,000. Parties shall appear before the Tribunal for directions on 25.03.2022. The Tribunal shall thereafter endeavour to conclude the recording of evidence on the limited aspect of grant of recovery rights and pass a fresh award expeditiously.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 09.03.2022 MAC.APP. 54 2022 M S GARG ROAD LINES & ANR. ..... Appellants NATIONAL INSURANCE CO. LTD & ORS. ..... Respondent Advocates who appeared in this case: For the Appellants: Mr. Mayank Khurana Advocate. For the Respondent: Mr. Manoj Ranjan Sinha and Mr. Aaditya Advocates. CORAM: HON’BLE MR. JUSTICE SANJEEV SACHDEVA SANJEEV SACHDEVA J.CM. APPL. 9938 2022 CM. APPL. 9939 2022 Exemption is allowed subject to all just exceptions. Appeal impugns order dated 18.02.2020. The Supreme Court by its orders 23.03.2020 27.04.2021 and 10.01.2022 in Suo Motu Writ Petition No.3 of 2020 had suspended the period of limitation in view of the ongoing pandemic. Accordingly there is no delay in filing the appeal. MAC. APP. 54 2022 2. The application is disposed of. MAC.APP. 54 2022 & CM. APPL. 9937 2022 Appellant impugns award dated 18.02.2020 to the limited extent that it grants recovery rights to respondent No.1 insurance company against the appellant. The impugned award has also been impugned by the insurance company on its merits. However since the appeal pertains only to grant of recovery rights to the insurance company notice is restricted only to the insurance company 3. With the consent of parties the appeal is taken up for final Learned counsel for appellant submits that the Tribunal has erred in holding that there was no valid driving license in favour of the driver who was driving the offending vehicle and that the driving license was fake. He draws attention to para 31 of the impugned order where the testimony of an officer from the Transport Authority has been referred to wherein he has deposed that there is no record of any license having been issued in the name of Anoop Kumar between the period 23.01.2003 to 22.01.2023. MAC. APP. 54 2022 Learned counsel for appellant relies on the website of the RTO wherein is being shown the driving license number 530 FKB 2006 is issued in the name of Anup Kumar on 22.01.2003. It is noticed that the officer who had appeared from the RTO and had stated that from 23.01.2003 to 22.01.2023 no license had been issued in the name of the offending driver. The website shows that the driving license was issued on 22.01.2003 which is outside the period referred to by the said witness. Further learned counsel for petitioner contends that the driver had undergone the requisite training for transporting hazardous goods and as such there was no specific requirement for endorsement on the license. He relies on the judgment of a coordinate bench of this court dt. 12.10.2017 in MAC.APP. 1043 2016 tittled “National Insurance Co. Ltd. Vs. Sonia Mittal & Others”. Learned counsel further submits that the permit could not be produced before the Tribunal. However he has filed the same before this Court. further evidence. MAC. APP. 54 2022 10. Learned counsel prays that the matter be remitted on the limited extent of grant of recovery rights to enable the appellant to lead 11. Contention of learned counsel for the insurance company is that the appellant did not produce the relevant records before the Tribunal and accordingly it has caused prejudice to the insurance company and in case the matter is to be remitted appellant should be put to some terms. In view of the fact that the impugned award relies on the testimony of the witness from the RTO who has referred to the period from 23.01.2003 to 22.01.2023 and the driving license alleged to have been issued in favour of the driver is allegedly issued on 22.01.2003 and the website of the RTO is even as on date is showing the same having been issued and further the fact that the appellant has produced the certificate of training as well as the permit of the said vehicle valid during the relevant period it is a fit case for a remit to the Tribunal on the limited extent of the grant of recovery rights against the appellant. 13. Accordingly the appeal is allowed to the limited extent that it grant recovery rights against the appellant subject to payment of costs of Rs.25 000 . 14. Parties shall appear before the Tribunal for directions on 25.03.2022. The Tribunal shall thereafter endeavour to conclude the recording of evidence on the limited aspect of grant of recovery rights and pass a fresh award expeditiously. 15. The appeal is disposed of in the above terms. 16. The statutory deposit made by the appellant be adjusted towards MAC. APP. 54 2022 the costs to be deposited by the appellant. Accordingly the Registry is directed to pay the said amount of Rs. 25 000 alongwith interest if any accrued thereon to the Horticulture Department of the CPWD for being utilized for infrastructural development in the Budha Jayanti Park. It is clarified that this order will have no bearing on the rest of the award passed by the Tribunal and shall be without prejudice to the appeal filed by the insurance company and the defence of the SANJEEV SACHDEVA J claimants therein. MARCH 09 2022 MAC. APP. 54 2022

The plaintiff has only itself to blame in case where defendant thwarts any prospect of hearing the suit : The High Court of Calcutta

In the case where a party defendant deliberately, intentionally, mischievously thwarts any prospect of the hearing of the suit, the plaintiff has only himself to blame for the appalling state of affairs. In the case of The Calcutta Stock Exchange Limited v. Sudhir Satnaliwala[CS/293/2002 &amp; CS/GA/4/2019] led by the bench of Mr Justice Ravi Krishan Kapur in the Hon’ble High Court of Calcutta. An application is filed by the defendant for further and better particulars with alternative prayer for extension of time to file the written statement. On 3 July 2002, the plaint was presented before this Hon’ble Court. A copy of the plaint was served on the defendant on 7 October 2002. On 8 April 2003, an application was filed by the defendant whereby the time to file the Written Statement was extended by a period of six weeks. The original time period for filing the written statement expired. Thereafter, on 30 October 2017, the present Advocate-on-Record on behalf of the plaintiff was appointed. In May 2018 the plaintiff filed an application for amendment of the name of the plaintiff. On 23 June 2018, the amended plaint was served on the defendant. On 18 July 2018, the defendant prayed for leave to file Vakalatnama which was granted on 29 August 2018 and the defendant was also granted 4 weeks’ time to file his written statement. On 29.09.2018 the stipulated time period for filing of the written statement expired. On 4 December 2018, the suit was dismissed for default due to the non-appearance of the plaintiff. On 20 December 2018, the order of dismissal of the suit was recalled and a further weeks’ time period was granted to the defendant to file the written statement. On 23 January 2019, the time period to file the 3 written statements expired. Thereafter, on 24 January 2019, the defendant filed the instant application seeking further and better particulars and alternatively praying for an extension of time to file his written statement. In the said application the parties filed their respective pleadings. The matter thereafter had appeared on 23 September 2021 at the instance of the Department. Significantly, neither the plaintiff nor the defendant has made any effort to have this application listed for hearing. it was submitted on behalf of the defendant that the written statement was ready and the same be taken on record. On behalf of the plaintiff, it was submitted that there has been an undue and inordinate delay on the part of the defendant. The High Court of Calcutta directed “this is another case where a party defendant deliberately, intentionally, mischievously thwarts any prospect of the hearing of the suit. And of course, if the defendant has been scheming then the plaintiff has only itself to blame for the appalling state of affairs.”

IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL SIDE The Hon’ble Mr. Justice Ravi Krishan Kapur IA NO: GA 4 2019 THE CALCUTTA STOCK EXCHANGE LIMITED C.S. NO.293 OF 2002 vs SUDHIR SATNALIWALA For the plaintiff For the defendant Heard on Mr. Rohit Banerjee Adv. Mr. Paritosh Sinha Adv. Ms. Shrayashee Das Adv. Mr. Jishnujit Roy Adv. Mr. Aniruddha Mitra Adv. Mr. Dipak Dey Adv. Ms. Swapna Mitra Adv. 27.09.2021 28.09.2021 Judgment on 04.10.2021 Ravi Krishan Kapur J.: 1. This application is filed by the defendant for further and better particulars with an alternative prayer for extension of time to file the written statement. 2. In or about June 2002 the plaintiff filed this suit praying inter alia for a money decree of approximately Rs.65 lakhs along with interest against the defendant. The cause of action as pleaded in the plaint arises out of defaults committed by the defendant in complying with his obligation as a member of the plaintiff Stock Exchange and for non fulfilment of his obligation towards settlement of his accounts being maintained with the plaintiff. 3. The suit was filed in June 2002. On 3 July 2002 the plaint was presented before this Hon’ble Court. A copy of the plaint was served on defendant on 7 October 2002. On 8 April 2003 an application was filed by the defendant whereby the time to file the Written statement was extended by a period of six weeks. The original time period for filing the written statement expired on 20 May 2003. On 9 September 2011 there was a change in the Advocate on record on behalf of the plaintiff. Thereafter on 30 October 2017 the present Advocate on Record on behalf of the plaintiff was appointed. In May 2018 the plaintiff filed an application for amendment of the name of the plaintiff. On 18 May 2018 the order of amendment was passed effecting the change of name of the plaintiff. On 23 June 2018 the amended plaint was served on the defendant. On 18 July 2018 the defendant prayed for leave to file Vakalatnama which was granted on 29 August 2018 and the defendant was also granted 4 weeks time to file his written statement. On 29.09.2018 the stipulated time period for filing of the written statement expired. On 4 December 2018 the suit was dismissed for default due to non appearance of plaintiff. On 20 December 2018 the order of dismissal of the suit was recalled and further 3 weeks time period was granted to the defendant to file the written statement. On 23 January 2019 the time period to file the written statement expired. Thereafter on 24 January 2019 the defendant filed the instant application seeking for further and better particulars and alternatively praying for extension of time to file his written statement. In the said application the parties filed their respective pleadings. The matter thereafter had appeared on 23 September 2021 at the instance of the Department. Significantly neither the plaintiff nor the defendant have made any effort to have this application listed for hearing. 4. At the hearing of this application it was submitted on behalf of the defendant that the written statement was ready and the same be taken on record. On behalf of the plaintiff it was submitted that there has been undue and inordinate delay on the part of the defendant. 5. Notwithstanding a lapse of nearly two decades the defendant has not even completed his pleadings. There has been a change of three Advocates on behalf of the plaintiff. As far as the defendant is concerned the defendant has successfully managed to abuse the process of the Court and avoid any chance of having this suit heard for nearly two decades. 6. This application is a third attempt to obtain extension for time to file the written statement. The application as framed is one for better and further particulars but the defendant does not even press this prayer at the hearing of the application. It is unfortunate that the parties have been unable to activate this suit for hearing for nearly more than two decades. This is another example where a party defendant deliberately intentionally mischievously thwarts any prospect of the hearing of the suit. And of course if the defendant has been scheming then the plaintiff has only itself to blame for the appalling state of affairs. 7. In view of the fact that the defendant has prepared the written statement and prays for liberty to file the same and keeping in mind the adversarial nature of litigation which our encourages the time to file the written statement is extended peremptorily by a period of 1 week from the reopening of the ensuing Puja Vacation upon payment of costs assessed at Rs.5 lakhs payable to the Chief Minister’s Relief Fund West Bengal within a period of 2 weeks from the date of this judgment. The Registrar Original Side High Court Calcutta is directed to ensure compliance with this direction for payment of costs. In default the plaintiff will be entitled to proceed ex parte. After payment of costs documents should be discovered within 4 weeks from date Inspection forthwith thereupon. Upon completion of the formalities the plaintiff will be at liberty to pray for early listing of the suit. 8. In view of the aforesaid IA No.GA 19is 9. Urgent certified photostate copy of this judgment if applied for be given to the parties upon compliance with all requisite formalities. disposed of. Ravi Krishan Kapur J.)

Appeal against Section 138 of Negotiable Instruments Act dismissed: Karnataka High Court

Criminal appeal is dismissed by the court, against the acquittal of accused for the offence, punishable under section 138 of Negotiable Instrument Act. This was upheld by High court of Karnataka through the learned bench led by Honourable MR. JUSTICE MOHA.MMAD NAWAZ in case of SRI T.R.NAGARAJU vs SRI SANNAHONNAPPA ( criminal appeal no. 1158 of 2018) on 15th December 2021. Brief facts of the case are that the Complainant and the accused are known to each other. In the first week of October 2011, the accused for the purpose of his legal necessity requested the Complainant to pay a sum of Rs.3,00,000/- and therefore the complainant paid the said amount to him on 15.10.2011. The accused had agreed to repay the amount within two months but he didn’t keep his promise and became a defaulter. After several requests, accused issued a cheque bearing No. 523617 dated 20.12.2011 for the said amount, drawn on Canara Bank, Tavarekere, Sira Taluk, Tumkur District. The said cheque was presented to the bank as requested by the accused, through his banker namely Kaveri Kalpatharu Grameena Bank, Sira on 05.01.2012 for encashment. However, the said cheque was dishonoured on 14.01.2012 for funds insufficient. The same was informed to the complainant by his banker on 18.01.2012. Thereafter, of complainant issued a legal notice to the accused on 24.01.2012 by RPAD and inspite of receipt of the notice, accused failed to reply to the said notice and also failed to repay the amount mentioned in the cheque within the stipulated time and therefore the accused committed an offence under Section 138 of N.I. Act. Then the defence taken by the accused Before the trial Court is that there was financial transaction Between himself and complainant’s parents. On 25.03.2009, he entered into an agreement as per Ex.D1with complainant’s mother namely Indramma and received A sum of Rs.1,10,000/-. In this connection, he issued the Cheque in question as security. He repaid the loan amount Of Rs.1,10,000/- to Indramma, but the cheque was not Returned, as such he issued Ex.D2- notice. Instead of Returning the said cheque, the same was presented by the Complainant. It is also contended that the complainant had No financial capacity to lend such a huge amount to the Accused and there was no transaction between the Complainant and accused. Learned counsel for appellant has contended That it is not disputed by the accused that the cheque does Not belong to him and even the signature on the cheque is Also not disputed and therefore the presumption under Section 139 of N.I. Act has to be raised, when the Dishonour of cheque is established. He contends that Ex.D1 stated to be the agreement entered between the Accused and complainant’s mother has not been proved Since one of the signatory to the said agreement namely K.Adimurthy has not been examined by the defence. He therefore contends that the trial Court was not proper in acquitting the accused relying on the documents marked by the defence. If it is proved that the cheque belong to the Accused and if the signature in the cheque is also not Disputed, then a legal presumption would arise in favour of The complainant that the said cheque has been issued by The accused in discharge of a debt or liability. However, The said presumption is rebuttable in nature. In the case On hand, the specific defence taken by the accused is that The cheque in question marked as Ex.P1 was issued as Security to complainant’s mother at the time of availing Loan of Rs.1,10,000/- from her and inspite of repaying the Said loan amount, the cheque was not returned and it was Misused by the complainant. The defence has got marked Ex.D1. As per the Said document the accused received a sum of Rs.1,10,000/- from Indramma i.e., complainant’s mother On 15.05.2008. The accused has got examined DW.2 that is Wife of one K. Adimurthy who is a witness to the said document-Ex.D1. DW.2 in her evidence has stated that she is aware that there was financial transaction between the accused and complainant’s parents and in this connection Ex.D1 was executed on 08.04.2009 and her husband K. Adimurthy is a signatory to the said document. She has identified the said signature. In the cross-examination it is not disputed by the complainant the she is not the wife of K. Adimurthy. PW.1 has admitted in his cross-examination that the accused was doing financial transaction with his parents. It is relevant to see that the cheque number Mentioned in Ex.D1 is the same cheque alleged to have Been issued by the accused to the appellant. Further, the defence has got marked Ex.D2, a notice issued By the accused to parents of the complainant for returning The said cheque No.523617. It is clearly mentioned in the Said notice that on 15.05.2008, the accused received a sum Of Rs.1,10,000/- from them for interest at 5% and at that Time the said cheque was given as security and inspite of Receipt of full amount the cheque was not returned. The said notice at Ex.D2 is dated 05.07.2010, which is much prior to the presentation of the cheque by the complainant. Hence, the complainant’s case that the accused approached him in the month of first week of October 2011 and requested for a sum of Rs.3,00,000/- and he paid the said amount on 15.10.2011 and in discharge of the said liability the accused issued the cheque in question appears to be doubtful. After Considering all the facts, court decided to dismiss the appeal because the evidence cited by appealant is not sufficient, the accused has been able to rebut the presumption available in favour of the complainant and therefore, the findings recorded by the Trial Court cannot be said to be either perverse or illegal. Click here to the judgement

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF DECEMBER 2021 THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ CRIMINAL APPEAL NO.1158 OF 2018 BY SRI V.B.SIDDARAMAIAH ADVOCATE] … APPELLANT SRI T.R.NAGARAJU S O RAMAIAH AGED ABOUT 38 YEARS R O TAVARAKERE VILLAGE SIRA TALUK 572 139 TUMAKURU DISTRICT SRI SANNAHONNAPPA S O GOVINDAPPA AGED ABOUT 61 YEARS R O TAVARAKERE VILLAGE SIRA TALUK 572 139 TUMAKURU DISTRICT RETIRED AS PHYSICAL TEACHER GOVT SCHOOL HUNASEHALLI VILLAGE SIRA TALUK TUMAKURU DISTRICT … RESPONDENT BY SRI SHIVARUDRAPPA SHETKAR ADVOCATE] THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED 08.06.2018 PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC SIRA IN C.C.NO.1923 2012 ACQUITTING THE RESPONDENT ACCUSED FOR THE OFFENCE P U S 138 OF N.I. ACT. THIS CRIMINAL APPEAL COMING ON FOR ADMISSION THROUGH PHYSICAL HEARING VIDEO CONFERENCE THIS DAY THE COURT DELIVERED THE FOLLOWING: This appeal is against the judgment and order of acquittal passed by the trial Court acquitting the accused respondent of an offence punishable under Section 138 of Negotiable Instruments Act 1881 (hereinafter referred to as ‘N.I Act’ for short). Heard the learned counsel for appellant and learned counsel for respondent and perused the material on record. The gist of the complaint complainant and the accused are known to each other. In the first week of October 2011 the accused for the purpose of his legal necessity requested the complainant to pay a sum of Rs.3 00 000 and therefore the complainant paid the said amount to him on 15.10.2011. The accused had agreed to repay the amount within two months but he did not keep his promise and became a defaulter. After several requests accused issued a cheque bearing No. 523617 dated 20.12.2011 for the said amount drawn on Canara Bank Tavarekere Sira Taluk Tumkur District. The said cheque was presented to the bank as requested by the accused through his banker namely Kaveri Kalpatharu Grameena Bank Sira on 05.01.2012 for encashment. However the said cheque was dishonoured on 14.01.2012 for funds insufficient. The same was informed to the complainant by his banker on 18.01.2012. Thereafter the complainant issued a legal notice to the accused on 24.01.2012 by RPAD and inspite of receipt of the notice accused failed to reply to the said notice and also failed to repay the amount mentioned in the cheque within the stipulated time and therefore the accused committed an offence under Section 138 of N.I. Act. The specific defence taken by the accused before the trial Court is that there was financial transaction between himself and complainant’s parents. On 25.03.2009 he entered into an agreement as per Ex.D1 with complainant’s mother namely Indramma and received a sum of Rs.1 10 000 . In this connection he issued the cheque in question as security. He repaid the loan amount of Rs.1 10 000 to Indramma but the cheque was not returned as such he issued Ex.D2 notice. Instead of returning the said cheque the same was presented by the complainant. It is also contended that the complainant had no financial capacity to lend such a huge amount to the accused and there was no transaction between the complainant and accused. Learned counsel for appellant has contended that it is not disputed by the accused that the cheque does not belong to him and even the signature on the cheque is also not disputed and therefore the presumption under Section 139 of N.I. Act has to be raised when the dishonour of cheque is established. He contends that Ex.D1 stated to be the agreement entered between the accused and complainant’s mother has not been proved since one of the signatory to the said agreement namely K. Adimurthy has not been examined by the defence. He therefore contends that the trial Court was not proper in acquitting the accused relying on the documents marked by the defence. If it is proved that the cheque belong to the accused and if the signature in the cheque is also not disputed then a legal presumption would arise in favour of the complainant that the said cheque has been issued by the accused in discharge of a debt or liability. However the said presumption is rebuttable in nature. In the case on hand the specific defence taken by the accused is that the cheque in question marked as Ex.P1 was issued as security to complainant’s mother at the time of availing loan of Rs.1 10 000 from her and inspite of repaying the said loan amount the cheque was not returned and it was misused by the complainant. The defence has got marked Ex.D1. As per the said document the accused received a sum of Rs.1 10 000 from Indramma i.e. complainant’s mother on 15.05.2008. The accused has got examined DW.2 i.e. wife of one K. Adimurthy who is a witness to the said document Ex.D1. DW.2 in her evidence has stated that she is aware that there was financial transaction between the accused and complainant’s parents and in this connection Ex.D1 was executed on 08.04.2009 and her husband K. Adimurthy is a signatory to the said document. She has identified the said signature. In the cross examination it is not disputed by the complainant the she is not the wife of K. Adimurthy. PW.1 has admitted in his cross examination that the accused was doing financial transaction with his parents. It is relevant to see that the cheque number mentioned in Ex.D1 is the same cheque alleged to have been issued by the accused to the complainant appellant. Further the defence has got marked Ex.D2 a notice issued by the accused to parents of the complainant for returning the said cheque No.523617. It is clearly mentioned in the said notice that on 15.05.2008 the accused received a sum of Rs.1 10 000 from them for interest at 5% and at that time the said cheque was given as security and inspite of receipt of full amount the cheque was not returned. The said notice at Ex.D2 is dated 05.07.2010 which is much prior to the presentation of the cheque by the complainant. Hence the complainant’s case that the accused approached him in the month of first week of October 2011 and requested for a sum of Rs.3 00 000 and he paid the said amount on 15.10.2011 and in discharge of the said liability the accused issued the cheque in question appears to be By adducing defence evidence the accused has been able to rebut the presumption available in favour of the complainant and therefore the findings recorded by the trial Court cannot be said to be either perverse or illegal. Hence the appeal fails. Accordingly it is dismissed. Sd JUDGE HB

Leslie David Isaac vs Bahadur Bapuji Sanjana

Such   unilateral   appointment   of   the Arbitrator by a party when resisted by the other side and as it is contrary to the arbitration clause itself is impermissible. It traduces the arbitration system. The Appellant, original Respondent has filed this Appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (for short, the Arbitration Act)  and thereby challenge is made to the interim order dated 22 December 2011 passed by the Arbitral Tribunal pending the arbitration proceeding between the parties under Section 17   of   the   Arbitration   Act.  There exists arbitration clause in the Deed of Partnership dated 5.5.1976 entered into and signed by the parties. The dispute arose between the partners of the firm, the Respondents by letter dated 5.5.2011 invoked the arbitration clause and unilaterally appointed a single/sole Arbitrator and called upon the   Appellant   to   confirm   the   same. The   meeting   was   fixed   on 11.07.2011 by the Arbitrator.  The Appellant resisted the appointment by his Advocate’s letter dated 7.7.2011 and informed specifically that Respondents Advocate received the said letter on 9.7.2011.  As fixed, the Arbitrator on 11.07.2011 held the first meeting.  The Appellant was absent.     The Respondent did not disclose the receipt of the objection/letter   of   the   Appellant   dated   7.7.2011.     The   Arbitrator therefore noted that no reply from the Appellant. The Appellant thereafter by letter dated 2.08.2011 informed to the Arbitrator that the fact of their objection to the appointment was suppressed by the Respondent and further requested to desist and ceased from acting as an Arbitrator and also pointed out that such arbitration proceedings should not be binding on the Appellant.  The   Arbitrator, however, proceeded   further   inspite   of   the objection and framed issue on 12.08.2011.  On 29.09.2011 also held that   she   had   jurisdiction   to   act   as   an   Arbitrator.     The   Appellant, through the Advocate’s letter dated 7.10.2011, reminded clause 12 of the Partnership Deed and also Section 11 of the Arbitration Act and thereby pointed out the disagreement over the appointment. The Respondent   responded   the   same   by   letter   dated   18.10.2011   and intimated that they would apply for exparte hearing.  The Arbitrator fixed the hearing on interim application on 18.11.2011.  The copy was received by the Appellant on 18.11.2011 itself.  The Appellant never attended the arbitration proceedings in view of their objection from its inception.  The learned Arbitrator passed the exparte award on 22.12.2011 and   directed   to   redeposit   the   amount   with   interest   in   the   noted accounts of the Elektronik Lab and further restrained the Appellant from   interfering   with   the   course   of   business   of   the   firm   and withdrawing   any   amount   from   any   firm’s   account   without   due permission from the Arbitral Tribunal. The   Appellant   filed   the   Appeal   on   24.01.2012   and   thereby submitted to declare the whole arbitration proceedings being null and void   and   therefore  the  order  so   passed,  in  view   of   the   unilateral appointment of the Arbitral Tribunal by the Respondent itself was contrary   to   the   agreed   terms   and   conditions/clauses   between   the parties.  ISSUE BEFORE THE COURT: Scope, purpose and the power of the Appellate Court under Section 37 of the Arbitration Act RATIO OF THE COURT The court stated that the bar is created under Section 16(6) and/or Section 34, to say that the order of self jurisdiction  decided by the Arbitrator can only be challenge while   challenging   the   final   Award   passed   by   the Arbitrator.  This in no way takes away the right of Appellate Court to consider the merit and demerit of the interim order passed by the Tribunal even referring to the issue of jurisdiction as contemplated under Section 16 of the Arbitration Act.The court observed that   that   such   unilateral   appointment   of   the Arbitrator by a party when resisted by the other side and as it is contrary to the arbitration clause itself is impermissible. It traduce the arbitration system. The objection of having arbitration clause itself is to appoint jointly selected Arbitrator to settle their dispute, through the agreed procedure.It later added that Having once agreed for appointment of   Arbitrator  jointly   and   in   cases   where   there   was   resistance   and objection from the other side, the constitution of the Arbitral Tribunal and the continuation of the proceedings by the Tribunal, in my view, certain is in breach of the contractual agreed terms and conditions between the parties. The court observed that merely because the Appellate Court under Section 37 against the   order   passed   under   Section   17   of   the   Arbitration   Act   cannot disturb and/or set aside the order passed by the Arbitrator under Section 16 confirming its jurisdiction, that itself cannot be the reason and/or takes away the Appellate Court’s power to consider the case of the Appellant with regard to the jurisdiction at least for the time being till the Arbitral Tribunal decides all disputes and/or differences finally through the Award.The court observed that Section 16 read with Section 34 cannot be equated with Section 17 read with Section 34 of the Arbitration Act.   Both are on different foundation and purpose to achieve.  Any order passed under Section 17 can be tested on its merit under Section 37 of the Arbitration Act.It was stated by the court that the Appellate Court under Section 37 is empowered to stay and/or suspend such interim order passed by the Tribunal pending final decision of the matter.  The Tribunal, if can pass order under Section 17 of the Arbitration Act, the Appellate Court under Section 37 is entitled to accept and/or reverse the same.  That, in no way, halt and/or obstruct the main hearing of the arbitration proceedings by the Arbitral Tribunal. DECISION HELD BY COURT: The order dated 22 December 2011 was quashed and set aside.The   Tribunal   to   continue   with   the   hearing   of   the   main Arbitration Petition.All points are kept open for challenge under Section 34 of the Arbitration Act.The Arbitration Appeal was accordingly disposed of with no order as to costs. 

on 19 02 1arbappeal 12 12.sxwdgmIN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONARBITRATION APPEAL NO. 12 OF 2012Leslie David Isaac.... Appellant vsBahadur Bapuji Sanjana .... RespondentMr. H. Toor i by Mr. Nandu Pawar for the Appellant.Mr. D. D. Madon Senior Advocate along with Mr. S. Shamim i by Shamim & Co. for the respondent. CORAM: ANOOP V. MOHTA J. RESERVED ON : March 30 2012PRONOUNCED ON: April 09 2012JUDGMENT:The Appellant original Respondent has filed this Appeal under Section 37 of the Arbitration and Conciliation Act 1996and thereby challenge is made to the interim order dated 22 December 2011 passed by the Arbitral Tribunal pending the arbitration proceeding between the parties under Section 17 of the Arbitration Act. The Appellant was absent when the impugned order was passed by the Tribunal. The operative part of the order is as follows : on 19 02 2arbappeal 12 12.sxw“ORDERI have considered the facts set out before and have gone through all the supporting documents presented before me and in the interest of preserving the assets and capital of the firm the Respondent is directed as follows:1)To redeposit the amounts of Rupees 12 00 000 ­ with interest in the account of Elektronik Lab held with Central Bank of India Byculla branch bearing account no.1029747736 and Rupees 32 00 000 ­ with interest in the account of Elektronik Lab held with ICICI bank bearing account no.032305001098 2)Respondent be restrained from interfering obstructing or causing any hindrance in the ordinary course of business of the firm and3)Restrained from withdrawing any amounts from any of the firm s bank accounts without due permission of the arbitral tribunal.”2The Appellant is now aware of the order which is appealable under Section 37 of the Arbitration Act. There exists arbitration clause in the Deed of Partnership dated 5.5.1976 entered into and on 19 02 3arbappeal 12 12.sxwsigned by the parties. All disputes and question whatever which shall either during the partnership or afterwards arise between any partner or partners and the representatives of any partner touching this deed or constructed or application thereof or any acts or things therein contained or any account valuation or division of assets or debts or liabilities to be made thereunder and to any act deed or commissions of any partners or as to any other matter in any way relating to the partnership business or the affairs thereof or the rights duties liabilities of any person under this deed shall be referred to a single arbitrator in case the parties agree upon otherwise to two arbitrators one to be appointed by each party to the difference in accordance with and subject to the provisions of the Indian Arbitration Act of 1940 or any statutory modification thereof for the time being in force. 3As there arose dispute between the partners of the firm the Respondents by letter dated 5.5.2011 invoked the arbitration clause and unilaterally appointed a single sole Arbitrator and called upon the Appellant to confirm the same. The meeting was fixed on 11.07.2011 by the Arbitrator. The Appellant resisted the appointment by his Advocate s letter dated 7.7.2011 and informed specifically that he would not participate in such arbitration proceedings. The on 19 02 4arbappeal 12 12.sxwRespondents Advocate received the said letter on 9.7.2011. As fixed the Arbitrator on 11.07.2011 held the first meeting. The Appellant was absent. The Respondent did not disclose the receipt of the objection letter of the Appellant dated 7.7.2011. The Arbitrator therefore noted that no reply from the Appellant. The Appellant thereafter by letter dated 2.08.2011 informed to the Arbitrator that the fact of their objection to the appointment was suppressed by the Respondent and further requested to desist and ceased from acting as an Arbitrator and also pointed out that such arbitration proceedings should not be binding on the Appellant. 4The Arbitrator however proceeded further inspite of the objection and framed issue on 12.08.2011. On 29.09.2011 also held that she had jurisdiction to act as an Arbitrator. The Appellant through the Advocate s letter dated 7.10.2011 reminded clause 12 of the Partnership Deed and also Section 11 of the Arbitration Act and thereby pointed out the disagreement over the appointment. The Respondent responded the same by letter dated 18.10.2011 and intimated that they would apply for exparte hearing. The Arbitrator fixed the hearing on interim application on 18.11.2011. The copy was received by the Appellant on 18.11.2011 itself. The Appellant never on 19 02 5arbappeal 12 12.sxwattended the arbitration proceedings in view of their objection from its inception. 5The learned Arbitrator passed the exparte award on 22.12.2011 and directed to redeposit the amount with interest in the noted accounts of the Elektronik Lab and further restrained the Appellant from interfering with the course of business of the firm and withdrawing any amount from any firm s account without due permission from the Arbitral Tribunal. 6The Appellant filed the Appeal on 24.01.2012 and thereby submitted to declare the whole arbitration proceedings being null and void and therefore the order so passed in view of the unilateral appointment of the Arbitral Tribunal by the Respondent itself was contrary to the agreed terms and conditions clauses between the parties. There was no procedure and or permission given to other side to appoint an Arbitrator unilaterally. The consent of both the parties was a must. 7Admittedly the Arbitrator was appointed unilaterally by the Respondent. The Arbitrator though the Appellant was absent on the on 19 02 6arbappeal 12 12.sxwbasis of letters issued by the Appellant decided that she has jurisdiction to proceed with the arbitration as contemplated under Section 16 of the Arbitration Act. The Arbitrator further has passed the impugned Award. At every stages admittedly the Appellant was absent. 8The learned senior counsel appearing for the Respondent has relied upon Section 16(6) of the Arbitration Act which is reproduced as under :“16Competence of arbitral tribunal to rule on its jurisdiction. ­of Arbitration Act include the interim award also. Section 34 permits and or contemplates the challenge to the interim Award also. But at present we are concerned with Section 37 Appeal 12006R.A.A. 517on 19 02 8arbappeal 12 12.sxwwhich is maintainable against the interim order measure on Section 17 application passed by the Arbitral Tribunal pending the arbitration proceedings. 10The bar is created under Section 16(6) and or Section 34 to say that the order of self jurisdiction decided by the Arbitrator can only be challenged while challenging the final Award passed by the Arbitrator. This in no way takes away the right of Appellate Court to consider the merit and demerit of the interim order passed by the Tribunal even referring to the issue of jurisdiction as contemplated under Section 16 of the Arbitration Act. There is no such bar and or restriction created by the Arbitration Act that the Court being Appellate Court just cannot consider the submission so raised by the parties one who has objected since inception the unilateral appointment of the Arbitrator. Admittedly the clause so referred above provides that any single sole Arbitrator if to be appointed it should be by the consent of both the partners. The Appellant resisted the named Arbitrator since beginning and never accepted the said appointment by specific letters communication raised objection even by intimation in writing to the sole Arbitrator. The sole Arbitrator was fully aware of the objection so raised. on 19 02 9arbappeal 12 12.sxw11The Appellant referred and strongly relied upon clause 15 of the Partnership Deed and Section 11 of the Arbitration Act. The Respondent in such situation as the Appellant was not willing to accept the named Arbitrator ought to have been invoked Section 11 of the Arbitration Act to appoint the Arbitrator to settle their dispute. I am inclined to observe that such unilateral appointment of the Arbitrator by a party when resisted by the other side and as it is contrary to the arbitration clause itself is impermissible. It traduce the arbitration system. The objection of having arbitration clause itself is to appoint jointly selected Arbitrator to settle their dispute through the agreed procedure. Having once agreed for appointment of Arbitrator jointly and in cases where there was resistance and objection from the other side the constitution of the Arbitral Tribunal and the continuation of the proceedings by the Tribunal in my view certain is in breach of the contractual agreed terms and conditions between the parties. 12The learned Arbitrator though objected in writing without waiting for the Appellant passed the order even on jurisdiction in her own favour still in my view the Court under Section 37 of the on 19 02 10arbappeal 12 12.sxwArbitration Act is not prevented by any provision even Section 16(6) of the Arbitration Act read with Section 34 to consider the case of the Appellant on admitted position on record that exparte interim award so passed need not be executed and or need to be stayed pending the challenge even if any as available under Section 16(6) read with Section 34 of the Arbitration Act. The bar even if any so created under Section 16(6) and or Section 34 of Arbitration Act whereby the party against whom the issue of jurisdiction is decided by the Arbitrator against them is entitled to challenge the same along with other grounds under Section 34 of the Arbitration Act in no way sufficient to take away the rights of the Appellate Court under Section 17 to grant and consider in this background the merit and demerit of the appointment of the Arbitral Tribunal as it goes to the root of the matter. Merely because the Appellate Court under Section 37 against the order passed under Section 17 of the Arbitration Act cannot disturb and or set aside the order passed by the Arbitrator under Section 16 confirming its jurisdiction that itself cannot be the reason and or takes away the Appellate Court s power to consider the case of the Appellant with regard to the jurisdiction at least for the time being till the Arbitral Tribunal decides all disputes and or differences finally through the Award. To set aside the Award on this ground by the on 19 02 11arbappeal 12 12.sxwCourt under Section 34 of the Arbitration Act is another issue but the power of the Court under Section 37 of the Arbitration Act to stay the effect and operation of such interim award as the same has been passed by the Arbitrator without the consent of the other parties and thereby directions have been issued to deposit the amount and so also not to interfere with the business activities of the firm of which he is a partner certainly can be tested. 13Now the question is about the scope purpose and the power of the Appellate Court under Section 37 of the Arbitration Act. Section 16 read with Section 34 cannot be equated with Section 17 read with Section 34 of the Arbitration Act. Both are on different foundation and purpose to achieve. Any order passed under Section 17 can be tested on its merit under Section 37 of the Arbitration Act. If case is made out as present one the Appellate Court considering the objection with regard to the jurisdiction so raised and admittedly when the Arbitral Tribunal was constituted unilaterally by one party in breach of the arbitration clause itself but respecting the scope of Section 16(6) and Section 34 without disturbing the issue of self jurisdiction has decided by the Arbitrator but taking note of the said jurisdictional issue and as it goes to the root of the matter and in view on 19 02 12arbappeal 12 12.sxwof any bar I am inclined to take a view that the Appellate Court under Section 37 is empowered to stay and or suspend such interim order passed by the Tribunal pending final decision of the matter. The Tribunal if can pass order under Section 17 of the Arbitration Act the Appellate Court under Section 37 is entitled to accept and or reverse the same. That in no way halt and or obstruct the main hearing of the arbitration proceedings by the Arbitral Tribunal. However all these points need to be considered while passing the final award by the Arbitrator. 14In the result the following order :ORDER(a)The order dated 22 December 2011 is quashed and set aside.(b)The Tribunal to continue with the hearing of the main Arbitration Petition.( c) All points are kept open for challenge under Section 34 of the Arbitration Act.15The Arbitration Appeal is accordingly disposed of. There shall be no order as to costs.

Union Of India V. Parmar Construction Company

“It is the duty of the Courts to first resort to the mechanism in appointment of an arbitrator as per the terms of contract as agreed by the parties” The work for construction of office accommodation for officer and rest house was allotted to the respondent contractor, at Dungarpur in the State of Rajasthan on 21st December, 2011. As alleged, the extension was granted by the appellants to complete the work by 31st March, 2013. The measurement was accepted by the respondent under protest and when appellants officials failed to clear 7th final bill until the respondent put a line over “under protest” and signed no claim certificate.The total value of the work executed was of Rs. 58.60 lakhs against which Rs. 55.54 lakhs was paid and escalation cost was not added with interest @ 18% over delay payment. Demand notice was sent to the appellants to appoint an arbitrator invoking Clause 64(3) of the GCC to resolve the disputes/differences on 23rd December, 2013.When the appellants failed to appoint the arbitrator in terms of Clause 64(3), application came to be filed under Section 11(6) of the Act, 1996 before the Chief Justice/his Designate for appointment of an independent arbitrator who after hearing the parties under the impugned judgment allowed the application of the respondent and appointed a retired judge of the High Court as an independent arbitrator to arbitrate the proceedings.The orders were placed for various nature of construction works for its execution and the agreement executed between the parties includes a separate chapter for settlement of disputes leaving any dispute or difference between the parties to be resolved through the process of arbitration by appointing an arbitrator invoking clause 64(3) of the contract.As per terms of the agreement, date of completion of the project was delayed as alleged due to breach of obligations by the appellants and the scheduled date of completion had to be extended. Meanwhile, due to rise in the prices of raw material, the project was impossible to be completed by the respondent contractors and hence correspondence was made to either pay the escalated price or in the absence, the respondents would not be in a position to conclude the contract. It was alleged that the appellants accepted the terms and conditions for escalated prices and asked the respondents to complete the work and handover the project.But when the respondents raised the final bills in the pre-determined format (which also included the no dues certificate) on the newly agreed prices, dispute has arisen in context of payment of escalated prices or withholding of security deposits, taking note of the existence of arbitration clause in the agreement the respondents sent a notice to appoint an arbitrator as per clause 64(3) of GCC to resolve the dispute of payment of outstanding dues which was declined by the appellants by sending the reply that “No Due Certificate” was signed and that entails no dispute to be sent to arbitration.Since the appellants failed to appoint the arbitrator in accordance with the arbitration clause in the agreement, each of the respondent filed application under Section 11(6) of the Act before the High Court for appointment of an independent arbitrator and the primary objection of the appellants before the High Court was that on furnishing the no claim certificate by the contractor, no dispute subsists which is to be sent to the arbitrator and further the claims which has been submitted were beyond time as prescribed in the agreement and thus falls under the ‘excepted matter’ in the agreementAfter the matter being heard, the application for appointment of arbitrator under Section 11(6) of the Act, 1996 came to be decided by the High Court of Rajasthan by separate order(s) keeping in view the independence and neutrality of arbitrator as envisaged under Section 12(5) of the Amendment Act, 2015. The High Court further observed that the amended provisions of Act, 2015 shall apply to the pending proceedings and mere furnishing of no claim certificate would not take away the right of the parties and it is open for adjudication before the arbitrator and appointed a retired Judge of the High Court as an independent sole arbitrator under the impugned judgment in exercise of power under Section 11(6) of the Act, 1996. Indisputedly, the request for the dispute to be referred to arbitration in the instant batch of appeals was received by the appellants much before the Amendment Act, 2015 came into force (i.e., 23rd October, 2015). ISSUE BEFORE THE COURT:Whether the High Court was justified in invoking amended provision which has been introduced by Arbitration and Conciliation (Amendment Act), 2015 with effect from 23 rd October, 2015?Whether the arbitration agreement stands discharged on acceptance of the amount and signing no claim/discharge certificate?Whether it was permissible for the High Court under Section 11(6) of the Arbitration and Conciliation Act, 1996(prior to the Amendment Act, 2015) to appoint third party or an independent Arbitrator when the parties have mutually agreed for the procedure vis-à-vis the authority to appoint the designated arbitrator? RATIO OF THE COURTAccording  to the appellants, error had been committed by invoking Section 12(5) of the Amendment Act, 2015 for appointment of an independent arbitrator without resorting to the clause 64(3) of GCC as agreed by the parties and that it was required in the first instance to make every possible attempt to respect the agreement agreed upon by the parties in appointing an arbitrator to settle the disputes/differences and only when there are allegations of bias or malafide, or the appointed arbitrator has miserably failed to discharge its obligation in submitting the award, the Court is required to examine those aspects and to record a finding as to whether there is any requirement in default to appoint an independent arbitrator invoking Section 11(6) of the Act, 1996.As submitted by respondents, once the appellants have failed to appoint an arbitrator under the terms of agreement before the application under Section 11(6) being filed before the Court, the authority forfeits its right of appointing an arbitrator and it is for the Chief Justice/his designate to appoint an independent arbitrator under Section 11(6) of the Act, 1996.This court noted that when the request of the respondent contractors was rejected by the appellants on the premise of the no claim certificate being furnished, arbitral dispute does not survive which is to be sent to arbitration, each of the respondent contractor approached the High Court by filing an application under Section 11(6) of the Act for appointment of an arbitrator for settling their disputes/differences arising from the terms of contract as agreed between the parties.This court held that the conjoint reading of Section 21 of the Arbitration Act 2015 read with Section 26 of the Act leaves no manner of doubt that the provisions of the Amendment Act, 2015 shall not apply to such of the arbitral proceedings which has commenced in terms of the provisions of Section 21 of the Principal Act unless the parties otherwise agree.The court further held that Clause (c) of sub-section (6) of Section 11 relates to failure to perform any function entrusted to a person including an institution and also failure to act under the procedure agreed upon by the parties.In other words, clause(a) refers to the party failing to act as required under that procedure; clause(b) refers to the agreement where the parties fails to reach to an agreement expected of them under that procedure and clause (c ) relates to a person which may not be a party to the agreement but has given his consent to the agreement and what further transpires is that before any other alternative is resorted to, agreed procedure has to be given its precedence and the terms of the agreement has to be given its due effect as agreed by the parties to the extent possible.The corrective measures have to be taken first and the Court is the last resort. It is also to be noticed that by appointing an arbitrator in terms of sub-section (8) of Section 11 of Act, 1996, due regard has to be given to the qualification required for the arbitrator by the agreement of the parties and also the other considerations such as to secure an independent and impartial arbitrator. To fulfil the object with terms and conditions which are cumulative in nature, it is advisable for the Court to ensure that the remedy provided as agreed between the parties in terms of the contract is first exhausted.The court put emphasis to act on the agreed terms and to first resort to the procedure as prescribed and open for the parties to the agreement to settle differences/disputes arising under the terms of the contract through appointment of a designated arbitrator although the name in the arbitration agreement is not mandatory or must but emphasis should always be on the terms of the arbitration agreement to be adhered to or given effect as closely as possible.The court further added that where the impartiality of the arbitrator in terms of the arbitration agreement is in doubt or where the Arbitral Tribunal appointed in terms of the arbitration agreement has not functioned, or has failed to conclude the proceedings or to pass an award without assigning any reason and it became necessary to make a fresh appointment, Chief Justice or his designate in the given circumstances after assigning cogent reasons in appropriate cases may resort to an alternative arrangement to give effect to the appointment of independent arbitrator under Section 11(6) of the Act.To conclude, the court held that, the High Court was not justified in appointing an independent arbitrator without resorting to the procedure for appointment of an arbitrator which has been prescribed under clause 64(3) of the contract under the inbuilt mechanism as agreed by the parties. DECISION HELD BY COURT:The High Court decision was set aside. The appellants were directed to appoint the arbitrator in terms of clause 64(3) of the agreement within a period of one month from date of judgement under intimation to each of the respondents/contractors and the statement of claim be furnished by each of the respondents within four weeks thereafter and the arbitrator may decide the claim after affording opportunity of hearing to the parties expeditiously without being influenced/inhibited by the observations made independently in accordance with law.

The question that arises for consideration in the batch of justified in invoking amended provision which has been introduced by Arbitration and Conciliation(Amendment Act) 2015 with effect from 23rd October 2015(hereinafter being referred to as “Amendment Act 2015”) whether the arbitration agreement stands discharged on acceptance of the amount and signing no claim discharge certificate and of the Arbitration and Conciliation Act 1996(prior to the Arbitrator when the parties have mutually agreed for the procedure vis­à­vis the authority to appoint the designated arbitrator. The High Court has passed separate orders in exercise of its powers under Section 11(6) of the Act 1996 in appointing an independent arbitrator without adhering to the mutually agreed procedure under the agreement executed questions of law and facts with the consent of parties are The work for construction of office accommodation for As alleged the extension was granted by the appellants to complete the work by 31st March 2013. The measurement was the GCC to resolve the disputes differences on 23rd December 2013. When the appellants failed to appoint the arbitrator in its execution and the agreement executed between the parties the process of arbitration by appointing an arbitrator invoking of obligations by the appellants and the scheduled date of completion had to be extended. Meanwhile due to rise in the by the respondent contractors and hence correspondence was made to either pay the escalated price or in the absence the It was alleged that the appellants accepted the terms and conditions for escalated prices and asked the respondents to on the newly agreed prices dispute has arisen in context of the respondents sent a notice to appoint an arbitrator as per clause 64(3) of GCC to resolve the dispute of payment of outstanding dues which was declined by the appellants by under Section 11(6) of the Act before the High Court for appointment of an independent arbitrator and the primary objection of the appellants before the High Court was that on subsists which is to be sent to the arbitrator and further the After the matter being heard the application for appointment of arbitrator under Section 11(6) of the Act 1996 order(s) keeping in view the independence and neutrality of arbitrator as envisaged under Section 12(5) of the Amendment Act 2015. The High Court further observed that the amended provisions of Act 2015 shall apply to the pending proceedings independent sole arbitrator under the impugned judgment in exercise of power under Section 11(6) of the Act 1996 Indisputedly the request for the dispute to be referred to appellants much before the Amendment Act 2015 came into 8. Mr. K.M. Natarajan learned Additional Solicitor General come into force by the Amendment Act 2015 w.e.f. 23rd October 2015 and indisputedly in the instant batch of appeals request to to the Amendment Act 2015. In view of Section 21 read with other side before the amendment Act 2015 has come into force the proceedings will commence in accordance with the pre­ amended provisions of the Act 1996 and in the given independent arbitrator without resorting to the clause 64(3) of GCC as agreed by the parties and in support of submission in the case of M s. Aravali Power Company Private Limited Vs. Era Infrastructure Engineering Limited 2017(15) SCC 32 and S.P. Singla Constructions Pvt. Ltd. Vs. State of Learned counsel further submits that once the no claim settlement of the final bills no arbitral dispute subsists and the facie evidence has been placed on record. In the given the High Court under Section 11(6) of the Act 1996 is not and Others Vs. Master Construction Company 2011(12) SCC 349 New India Assurance Company Limited Vs. Genus Petrochemicals Limited Vs. ANS Constructions Limited and 10. Learned counsel further submits that none of the respondents had made any allegation of bias to the arbitrator appointment of arbitrator was made by the railways. It was an arbitrator to settle the disputes differences and only when there are allegations of bias or malafide or the appointed arbitrator has miserably failed to discharge its obligation in submitting the award the Court is required to examine those aspects and to record a finding as to whether there is any requirement in default to appoint an independent arbitrator invoking Section 11(6) of the Act 1996 and in support of of this Court in Union of India & Another Vs. M.P. Gupta 2004(10) SCC 504 Union of India & Another Vs. V.S Engineering(P) Ltd. 2006(13) SCC 240 Northern Railway Administration Ministry of Railway New Delhi Vs. Patel 64(7) of the GCC all statutory modifications thereof will be the Arbitration and ConciliationAct 2015 clause 64(7) stood amended to fulfil the mandate of Amendment Act shall apply to the appointment of arbitrator and arbitration proceedings and the respondents being signatory to the agreement have accepted the enforceability of aforesaid clause 64(7) and therefore are bound by any modification made in GCC 12. Per contra Mr. Sameer Jain learned counsel for the respondents submits that respondents are the registered without a no claim certificate being furnished in advance by them. In all the cases unilateral deductions have been made authorities and is open for the arbitrator to adjudicate by certificate has been examined by this Court in National Insurance Company Limited Vs. Boghara Polyfab Private Court where no claim certificate in itself has never been considered to be the basis to non­suit the request made in appointing an arbitrator to independently examine the dispute 14. Learned counsel further submits that once the appellants and it is for the Chief Justice his designate to appoint an Vs. Petronet MHB Ltd. 2006(2) SCC 638 and later in Union of India Vs. Bharat Battery Manufacturing Co.Ltd. 2007(7 filing of an application under Section 11(6) of the Act the 15. Learned counsel further submits that while dealing with the qualification of the arbitrator under the agreement but the application was filed Section 11(6) empowers the Court to deviate from the agreed terms if required by appointing an of the Amendment Act 2015 the employee of the railway Justice or his designate to appoint an independent arbitrator this Court in North Eastern Railway and Others Vs. Tripple Engineering Works 2014(9) SCC 288 and Union of India and Others Vs. Uttar Pradesh State Bridge Corporation Limited speedy and inexpensive trial by the Arbitral Tribunal 12(5) of the Act 1996 which came into force on 23rd October the High Court after the amendment has come into force the 17. We have heard learned counsel for the parties and with extended. In the interregnum period there was a rise in the be completed by the respondent contractors. Hence a request price otherwise the respondent contractors would not be in a position to conclude the contract and on the acceptance for certificate). Since the dispute has arisen in the context of the payment of the escalated cost as demanded by respondent contractors and their being a clause of arbitration in the that was the reason due to which each of the respondent contractor had approached the High Court by filing an the Amendment Act 2015 which came into force w.e.f. 23rd 19. To proceed with the matter further it will be apposite to “CLAIMS 43.(1) Monthly Statement Of Claims : The and of all extra or additional works ordered by the month and no claim for payment for and such work 43.(2) Signing Of "No Claim" Certificate : The Contractor shall not be entitled to make any claim arising out of this contract nor shall the Railway Contractor after he shall have signed a "No Claim Certificate in favour of the Railway in such form as shall be required by the Railway after the works are No Claim" Certificate or demanding a clearance to 64.(1) In the event of any dispute or difference between the parties hereto as to the construction or liabilities of the parties on any matter in question dispute or difference on any account or as to the the contractor may claim to be entitled to or if the and in any such case but except in any of the “excepted matters” referred to in Clause 63 of these Conditions the contractor after 120 days but within matters shall demand in writing that the dispute or matters which are in question or subject of the which the demand has been made together with counter claims or set off given by the Railway shall be 64.(1) (a) The Arbitration proceedings shall be and valid demand for arbitration is received by the Railway. The claimant shall submit his claim stating the facts supporting the claims alongwith all the relevant documents and the relief or remedy counter claim(s) if any within a period of 60 days of receipt of copy of claims from Tribunal thereafter unless otherwise extension has been granted by Tribunal. Place of Arbitration : The place of any other place with the written consent of both the 64.(1) No new claim shall be added during proceedings by either party. However a party may amend or supplement the original claim or defence thereof during the course of arbitration proceedings 64.(1) If the contractor(s) does do not prefer Railways that the final bill is ready for payment he they will be deemed to have waived his their claim(s) and the Railway shall be discharged and 64.(2) Obligation During Pendency Of Arbitration Work under the contract shall unless otherwise directed by the Engineer continue during the arbitration proceedings and no payment due or such proceedings provided however it shall be open not such work should continue during arbitration in question added together does not exceed Rs 25 00 000the Arbitral a Gazetted Officer of Railway not below JA Grade i) the Arbitral Tribunal shall consist of a Panel of retired Railway Officer retired not below the rank of SAG Officer as the arbitrators. For this purpose the Railway will send a panel of more than 3 names of retired Railway Officer(s) empanelled to work as Railway Arbitrator to the contractor within 60 days from the day when a written and valid demand for arbitration is received by the GM. Contractor will be out of the panel for appointment as contractor’s the request by Railway. The General Manager shall appoint at least one out of them as the contractor’s nominee and will also simultaneously appoint the arbitrator’ from amongst the 3 arbitrators so appointed. GM shall complete this exercise of appointing the Arbitral Tribunal within 30 days from the receipt of the names of contractor’s nominees to ensure that one of them is from the Accounts Department. An officer of Selection Grade of the Accounts Department shall be considered of equal of the Railway for the purpose of appointment of Subject to the provisions of the aforesaid Arbitration and Conciliation Act 1996 and the rules thereunder and any statutory modifications thereof shall apply to the arbitration proceedings under this 20. As per clause 43(2) the contractor signs a “No claim” the work is finally measured up and the contractor shall be debarred from disputing the correctness of the items covered under the “No Claim” certificate or demanding a clearance to arbitration in respect thereof. Each of the respondent has to to be furnished in advance before the final bills are being has been seriously disputed by the appellants but that is the the final bills being raised it came to be questioned by the 21. Under clause 64(1) if there is any dispute or difference of the contract or the respective rights and liabilities of the arising from the terms of the contract or if the railway such disputes differences between the parties the General under clause 64(3)(a)(i) and a(ii) respectively with further It is also not disputed that when the request of the respondent contractors was rejected by the appellants on the premise of the no claim certificate being furnished arbitral It is to be noticed that the cost of escalation which was appended with the no claim certificate in the prescribed pre­ determined format and each of the claim of the respondent disputes differences arising from the terms of the contract as 24. As on 1st January 2016 the Amendment Act 2015 was gazetted and according to Section 1(2) of the Amendment Act 2015 it deemed to have come into force on 23rd October 2015 agreed by the parties the arbitral proceedings in respect of a dispute shall commence from the date on which a request for that dispute to be referred to arbitration is received by the respondent and the plain reading of Section 26 of Amendment Act 2015 is self­explicit leaves no room for interpretation Section 21 & 26 of the Act 1996 Amendment Act 2015 relevant “21. Commencement of arbitral proceedings. — Unless otherwise agreed by the parties the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that Act not to apply to pending arbitral proceedings Nothing contained in this Act shall apply to the arbitral proceedings commenced in accordance with the provisions of Section 21 of the principal Act before the commencement of this Act unless the parties otherwise agree but this Act shall 25. The conjoint reading of Section 21 read with Section 26 Act 2015 shall not apply to such of the arbitral proceedings Section 21 read with Section 26 of Amendment Act 2015 has been examined by this Court in Aravali Power Company Private Limited Vs. Era Infra Engineering Limited of Section 11 of the 1996 Act arises there is no question of the Chief Justice or his designate 22.1.3. The Chief Justice or his designate while exercising power under sub­section of Section 11 shall endeavour to give effect to the appointment 6) of Section 11 if circumstances exist giving rise to justifiable doubts as to the independence and impartiality of the person nominated or if other arbitrator by ignoring the procedure prescribed the 22.2. In cases governed by 1996 Act after the clause finds foul with the amended provisions the appointment of the arbitrator even if apparently in conformity with the arbitration clause in the be within its powers to appoint such arbitrator(s) as “16. Considering the facts and circumstances of the of this contention of the appellant nor examine the suffice it to note that as per Section 26 of the Arbitration and Conciliation Act 2015 the provisions of the Amended Act 2015 shall not apply to the arbitral proceedings commenced in accordance with the provisions of Section 21 of the Principal Act before the commencement of the the facts and circumstances of the present case the the parties so as to apply the provisions of the amended Act. As per Section 26 of the Act the the date of commencement of the Amendment Act 2015(w.e.f. 23.10.2015). In the present case much prior to coming into force of the amended Act and therefore provisions of the Amended Act cannot 26. We are also of the view that the Amendment Act 2015 which came into force i.e. on 23rd October 2015 shall not apply the coming into force of Amendment Act 2015 unless the parties the appellants in the concerned appeal much before the Amendment Act 2015 came into force. Whether the application rejection because of no claim as in the instant case for appointment of an arbitrator including change substitution of arbitrator would not be of any legal effect for invoking the provisions of Amendment Act 2015 in terms of Section 21 of the principal Act 1996. In our considered view the applications requests made by the respondent contractors deserves to be examined in accordance with the principal Act 28. The thrust of the learned counsel for the appellants that submission of a no claim certificate furnished by each of the respondent contractor takes away the right for settlement of dispute difference arising in terms of the agreement to be examined by the arbitrator invoking Clause 64(3) of the is that whether after furnishing of no claim certificate and the still any arbitral dispute subsists between the parties or the 29. Before we take note of the factual aspect of the present parties and to summarise Union of India Vs Power Corpn. 1994 Supp(3) SCC 126 State of Maharashtra Limited Vs. Associated Constructions 1995 Supp(3) SCC 324Damodar Valley Corporation Vs. KK Kar 1974(1) SCC 141 Bharat Heavy Electricals Limited Ranipur Vs. Amarnath Bhan Prakash 1982(1) SCC 625 Union of India and Anr. Vs. L.K. Ahuja and Co. 1988(3) SCC 76 Jayesh Engineering Works Vs. New India Assurance Co Ltd. 2000(10) SCC 178 Chairman and MD NTPC Ltd. Vs Reshmi Constructions Builders & Contractors 2004(2) SCC 30. The aforesaid cases fall under two categories the one there was full and final settlement resulting in accord and satisfaction and there was no substance in the allegations of coercion undue influence. In the second category of cases the condition precedent for release of the admitted dues and National Insurance Company Limited Vs. Boghara Polyfab lay down a proposition that mere execution of a full bar to arbitration even when the validity thereof is challenged by the claimant on the ground of fraud genuine or legal the claims cannot be referred to 31. Further taking note of the jurisdiction of the Chief Justice this Court culled out the legal proposition in paragraph 51 as “51. The Chief Justice his designate exercising whether there was really accord and satisfaction or designate comes to the conclusion that the full and have to hold that there was no discharge of the contract and consequently refer the dispute to designate is satisfied prima facie that the discharge voucher was not issued voluntarily and the claimant of deciding the issue himself refer the matter to the as to whether in a given situation where no claim discharge there is any arbitral dispute subsists to be examined by the 52 of National Insurance Company Limited Vs. Boghara “52. Some illustrations as to when claims are arbitrable and when they are not when discharge of contract by accord and satisfaction are Lok Adalat. The parties negotiate and arrive at a signed by both the parties and attested by the conciliator or the members of the Lok Adalat. After is paid and the contractor also issues a discharge voucher no­claim certificate full and final receipt After the contract is discharged by such accord and satisfaction neither the contract nor any dispute survives for consideration. There cannot be any The employer admits the claim only for rupees six lakhs and informs the contractor either in writing or orally that unless the contractor gives a discharge voucher in the prescribed format acknowledging signs on the dotted line either in a printed form or otherwise stating that the amount is received in full under economic duress on account of coercion employed by the employer. Obviously the discharge voucher cannot be considered to be voluntary or as iv) An insured makes a claim for loss suffered. The is informed during discussions that unless the amount the entire claim will be rejected. Being in financial difficulties the claimant agrees to the full and final settlement. Only a few days thereafter The accord and satisfaction in such a case is not The coercion is subtle but very much real. The “accord” is not by free consent. The arbitration damages. The respondent disputes the claim. The litigation voluntarily reduces the claim and requests Here even if the claimant might have agreed for settlement due to financial compulsions and compulsion by the respondent. Therefore the accord each case has to be looked into on its own facts and ground realities that where a petty small contractor has made contract and bills have been raised for the escalation cost incurred by him and the railway establishments appellants a defence of the no claim certificate being furnished which as alleged by the respondents to be furnished at the time of 34. The nature of work under contract of the respondent in brief to be adjudicated by the arbitrator is submitted as Claim of Contractor Nature of Work under Construction Strengthening and rebuilding of major bridges between Nadbhai Idgah+ Interest and Arbitration Cost Construction of Office Accomodation for officers and rest house Total Cost of Contract Rs 43 76 112 Rs 2.96 Lacs+ Rs 2.65 Lacs Escalation cost) + Rs 2.39 Lacs+ Rs 1 50 000 + Rs 1 14 099 interest on delay of Final bill payment) + Rs 12 15 000 Bank Guarantee) + Rs 12 14 290 + Rs 1 00 000 Total Rs 30 08 389 Rs 1.5 Lacs+ Rs 7.9 Lacs+ Rs 1.2Lacs delayed release of security amount & Final bill) + Rs 2Lacs+ Rs 17 78 231 PVC Final bill amount) + Rs 50 63 738 + Rs 8 36 386 + Rs 1 Lacs+ 36 Lacs+ Rs 3 19 573 + Rs 76 15 206 Incresed cost of material Total Rs 1 17 65 739 Rs 6 18 302 + Rs 10 30 081 + Rs 1 66 785 work done outside the scope of work order) + 7 98 214 + Rs 5 78 144 Interest on delayed payment) + Rs 28 085+ Rs 24 87 864 + Rs 1 81 003 Rs 60 390 + Rs 7 80 547 Final PVC Bill Total Rs 8 25 061 Rs 8.8 LacsRs 5 Lacs& some other grounds like price variation non temporary site offices addition and alteration of existing structure dismantling and rebuilding various structures between Idgah Agra Fort Total Cost of Contract Rs 1 40 43 594 Construction of road over bridges across Total cost of Contract Rs 5 47 26 451.47 payment of final bill and security deposit for 1.5 yrs interest on amount of final Total Rs 13.8 Lacs exact amount not ascertainable from documents on record Rs 4 78 780 + Rs 23 07 563 + Rs 6 23 923 + Rs 7 55 734 Extra work) + Rs 11 07 561 + 4Lacs using pressure rings) + 4 53 304 Rs 1.25Lacs deduction from bills) + Rs 3 47 880 + Rs 1.28 LacsRs 19 01 537+ Rs 60Lacsalong with Total Rs 1 93 34 667 Balaji Builders Construction of 72 Units Type II 108 Units Type III 36 Units Type IV in multi storied tower and health units shopping complex and Rs 1 32 71 424 + Rs 50LacsRs 19 46 970 + Rs 13 66 488 + Rs 3 91 534.88 + 1 32 655 Labour Cess deducted) Rs 1 30 771 + Rs 50 000 Deducted from 21 running bills) + Rs 11 91 127 interest on delayed payment) + Rs 56 40 327 Security Amount) + Rs 1 38 000 + Rs 76 39 600 PVC Bill)+ Rs 60Lacs 20Lacs each for business losses mental agonies and social humiliation) along Total Rs 2 85 32 482 Rs 16 74 748 + Rs 47 66 869 Payment of Bill) + Rs 31 33 116 + Rs 10Lacs+ Rs 13.85 Lacs Idle Labour Charge) + Rs 50 000 referred to by this Court in National Insurance amount tendered in reference to the final bills furnished and has resulted in the discharge of the contract by accord and the arbitral dispute subsists and the contract has not been the contentions in this regard are open to be examined in the 36. Learned counsel for the appellants has referred to the judgments in Union of India and Others Vs Construction Company(supra) New India Assurance Company Limited Vs. Genus Power Infrastructure Limited supra) ONGC Mangalore Petrochemicals Limited Vs. ANS Constructions Limited and Anr. which is as under:­ “(6) Where under an appointment procedure agreed a) a party fails to act as required under that the parties or the two appointed arbitrators fail to reach an agreement expected of them under that c) a person including an institution fails to perform any function entrusted to him or it under that institution designated by him to take the necessary measure unless the agreement on the appointment procedure provides other means for securing the to perform any function entrusted to a person including an institution and also failure to act under the procedure agreed be given its due effect as agreed by the parties to the extent an arbitrator in terms of sub­section of Section 11 of Act It has been considered by a three Judges’ Bench of this Court in Union of India & Another Vs. M.P. Gupta(supra Taking note of clause 64 of the agreement for arbitration the the agreement in appointment of two gazetted railway officers the High Court was not justified in appointment of a retired laid in clause 64(3)(b) for all claims of Rs 5 00 000 Rupees five lakhs) and above and for all claims irrespective of the amount or value of such claims if the issues involved are of a complicated nature. The General Manager shall be the sole judge to decide whether the issues involved are of a complicated will be referred to an umpire to be appointed in the 3)(a)(iii) It is a term of this contract that no person arbitrator umpire and if for any reason that is not 4. In view of the express provision contained therein to the extent it appoints Justice P.K. Bahri as sole appellants herein shall appoint two gazetted railway officers as arbitrators. The two newly appointed “3. The learned Additional Solicitor General appearing for the appellants Union of India has pointed out that as per clauses 63 and 64 of the General Conditions of Contract this Court in no uncertain terms has held that the Arbitral Tribunal has to be constituted as per the General Conditions of Contract the High Court should not interfere under Section 11 of the Act and the High Court should accept the Arbitral Tribunal appointed by the General Manager Railways. In this connection the learned ASG invited our attention to a decision of this Court directly bearing on the subject in Union of India v. M.P. Gupta10 SCC 504] wherein a similar question with regard to appointment of the Arbitral Tribunal for the Railways with reference to clause 64 of the General Conditions of Contract came up before this Court and this Court held that where two gazetted railway officers are appointed as the Arbitral Tribunal the High Court should not appoint a retired Judge of the High Court as a sole arbitrator and the appointment of sole arbitrator was set aside. The conditions of clauses 63 and 64 of the General Conditions of Contract are almost analogous to the one we have in our hand. In that case also relying on clause 64 of the contract a three Judge Bench presided over by the Chief Justice of India observed as follows:of Section 11. Clause relates to failure to perform function entrusted to a person the procedure agreed upon by the parties. In other words clause refers to parties to the agreement the appointment procedure provided other means for securing the appointment. It is therefore submitted that before the alternative is resorted to agreed closely as possible. Corrective measures have to be 6. It is also pointed out that while appointing an Court has to give due regard to any qualification required for the arbitrator by the agreement of the the appointment of an independent and impartial not directly make an appointment. It has to ensure first that the provided remedy is exhausted and the that the emphasis is on the terms of the agreement being adhered to and or given effect as closely as the Chief Justice or any person or institution given to the qualifications required by the agreement and further in Union of India Vs Singh Builders retired Judge of the High Court as sole arbitrator should be set aside and an Arbitral Tribunal should Arbitration Act 1940) this Court in Union of India v. M.P. Gupta10 SCC 504] held that appointment of a retired Judge as sole arbitrator different as explained by this Court in Northern Ltd.[(2008) 10 SCC 240]. This Court held that the appointment of arbitrator(s) named in the arbitration agreement is not mandatory or a must but the agreement being adhered to and or given effect as 14. It was further held in Northern Railway designate should first ensure that the remedies provided under the arbitration agreement are twin requirements of sub­section of Section 11 of the Act are kept in view. This would mean that in the manner provided for in the arbitration agreement. But where the independence and impartiality of the arbitrator(s) appointed nominated in terms of the arbitration agreement is in doubt or provided in the arbitration agreement has not functioned and it becomes necessary to make fresh to make appropriate alternative arrangements to give effect to the provision for to first resort to the procedure as prescribed and open for the parties to the agreement to settle differences disputes arising under the terms of the contract through appointment of a designated arbitrator although the name in the arbitration 42. The judgments in Datar Switchgears Ltd. case(supra) been placed by learned counsel what will be its legal consequence and it was held in the cases(supra) that if one party demands the opposite party to for consideration is as to whether the Chief Justice or his Designate in exercise of power under Section 11(6) of the Act should directly make an appointment of an independent arbitrator without in the first instance resorting to ensure that the remedies provided under the arbitration agreement are In the present batch of appeals independence and the impartiality of the arbitrator in terms of the arbitration terms of the arbitration agreement has not functioned or has appointment Chief Justice or his designate in the given circumstances after assigning cogent reasons in appropriate the Act. In North Eastern Railway and Others Vs. Tripple Engineering Works though the panel of arbitrators as forward. In the given situation this Court observed that general conditions of the contract do not prescribe any specific qualification of the arbitrators to be appointed under the agreement except that they should be railway officers further held that even if the arbitration agreement was to specifically provide for any particular qualification(s) of an arbitrator the same would not denude the power of the Court acting under Court in exercise of Section 11(6) of the Act 1996. Almost the supra) and after placing reliance on North Eastern Railway and Others Vs. Tripple Engineering works(supra) held that power under Section 11(6) of the Act 1996. In the given of contract as agreed by the parties and the default procedure the dispute which was not the case set up by either of the 44. To conclude in our considered view the High Court was not justified in appointing an independent arbitrator without 45. Consequently the orders passed by the High Court are respondents contractors and since sufficient time has been consumed at the first stage itself in the appointment of an arbitrator and majority of the respondents being the petty decide the claim after affording opportunity of hearing to the parties expeditiously without being influenced inhibited by the 46. The batch of appeals are accordingly disposed of on the 47. Pending application(s) if any stand disposed of

In a matter of circumstantial evidences, the law doesn’t require a particular number of circumstances to establish the chain, it only depends on nature: Bombay High Court

Law does not require a particular number of circumstances so as to establish the chain. It altogether depends upon the nature of the transaction. In a particular case, there may be few circumstances that are strong enough which leads to the guilt of the accused. There may be more circumstances that may be relied upon by the prosecution. It depends upon the facts and circumstances of each case. This remarkable judgment was passed by the Bombay High Court in the matter of SANDIP BABURAO WAIDANDE V THE STATE OF MAHARASHTRA [CRIMINAL APPEAL NO. 974 OF 2019] by Honourable Justice Prasanna B. Varale and Justice S. M. Modak. This case was a criminal appeal filed against the judgment and conviction under section 302 of IPC by Sessions Judge and the HC was required to upon the issue of circumstantial evidence through a narrow compass since the issue involved in this appeal is whether the link in between the incident of murder and the accused is established on the basis of proved circumstances. In the present case, the accused and his wife were labourers and on the day of the incident, both the accused and deceased went from duty a little early due to the stomach pain of the accused and then slept. On next day when the first informant went to wake them up, he saw Nirmala’s dead body but did not notice the accused and went and lodged a complaint. Police arrested accused and filed a charge sheet for the offence punishable under Section 302 of IPC. The prosecution relied upon the circumstances of- Last seen theory, Motive, noticing soaked blood stains on the clothes of the accused and Absconding himself from the spot of the incident even though his wife is murdered. The Court in this regard stated that they will rely on the golden principles laid down for appreciating circumstantial evidence. “The principles are: – The HC relied on the Supreme Court’s decision in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 and stated, “last seen circumstance has to be proved just like any other circumstance. The only difference is once the prosecution will prove that both the deceased and accused were found lastly together then certainly it is for the accused to explain about whereabouts or what has happened about his companion. In this exercise, the time of last seen and time of death also plays important role.” The Court observed that “Section 313 of the Code of Criminal Procedure empowers the Court to put questions in two eventualities. One is optional and it may be at any stage of the proceeding. Whereas 2nd is mandatory and it is after prosecution witnesses were examined” and decided to neither remit the matter nor put the questions to the accused since “the circumstance of the last seen together is considered, we do not think that other circumstances are sufficient enough to prove the guilt of the accused i.e., neither recovery at the instance of the accused nor there is direct evidence. Even evidence on the point of motive is insufficient. So, certainly, we are of the opinion that prejudice is caused to the accused.” Additionally, High Court found the Trial Court’s decision about the arrest of the accused to be flawed since there were no supporting documents. Also, the Bench stated that, “merely because there was a huge time gap in between the timing of last seen together and probable timing of death the evidence of last seen together could not be rejected in all cases.” Thus, on basis of analyzing the witnesses and the prosecution and accused statements and submissions, the Court stated, “Prosecution had sufficiently proved the circumstances of last seen together. However, the Court opined that the circumstance of motive is not proved and evidence on the point of arrest and seizure of clothes was not trustworthy. So, Court felt that the chain of circumstances was not established.”

on 09 04 2021 on 13 04 rsk 1 23APPEAL 974 19.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTIONCRIMINAL APPEAL NO. 974 OF 2019Sandip Baburao WaidandeAge: 35 years R o. Banpuri Taluka Atpadi District Sangli.….Appellant VersusThe State of MaharashtraThrough Kurlap Police Station District Sangli.….RespondentMr. Amit Manefor the appellant.Mrs. M. M. Deshmukh learned APP for the Respondent. CORAM : PRASANNA B. VARALE & S. M. MODAK JJ.RESERVED ON : 3 MARCH 2021PRONOUNCED ON : 9 APRIL 2021JUDGMENT :31503 2007AIR BOM R 552 on 09 04 2021 on 13 04 rsk 5 23APPEAL 974 19.odtmade before us. Hon ble Supreme Court has already laid downgolden principles while appreciating circumstantial evidence. Theystill holds good. So the following are the principles: a)The circumstance relied upon must be fully established.b)They must be consistent with the hypothesis of guilt of theaccused.c)They should be conclusive in nature. Only inference about guiltof the accused is to be inferred.d)There should be complete chain of evidence so as not to leadany doubt about involvement of the accused.11.So we have to apply these principles to the facts before us. TrialCourt while convicting the appellant has blamed the accused for notgiving explanation also considered evidence on the point of motivesatisfactorily and has also drawn an inference against the accused fornoticing blood of group B on his shirt. We have read the findings ofthe Court. We think trial Court committed fault on two aspects firsttrial Court has forgotten the difference between suspicion and proof.Secondly trial Court forgotten to put to the accused circumstance of last seen together as evidenced by PW 2 first informant. So for thesereasons we are inclined to set aside the conviction. We will givereasons hereinafter. The findings of the trial Court are as follows:ON THE POINT OF LAST SEEN TOGETHER12.On the basis of evidence of PW 2 Bhausaheb first informant trial Court believed last seen theory. As deceased and accused are on 09 04 2021 on 13 04 rsk 6 23APPEAL 974 19.odthusband and wife their joint company is considered natural. That iswhy trial Court casted burden on accused to explain probable cause ofdeath of deceased. Trial Court referred to Section 106 of the EvidenceAct. Trial Court considered it as an additional link in chain ofcircumstancesof the constitution. At the same time Court42009 AIR(Supp) 654 on 09 04 2021 on 13 04 rsk 11 23APPEAL 974 19.odtis not debarred from considering the answers given by the accused.These were the provisions existing earlier to 2009. AMENDMENT28.In order to achieve the involvement of the prosecutor as well asthe defence counsel Court may take their help in preparing relevantquestions. Even filing of a written statement by the accused has beenstatutorily recognized. It is by way of incorporating sub sectiontoSection 313 of Code of Criminal Procedure. We have to address to thegrievance about failure to put questions in the light of this amendedsub section. Mean to say that by incorporating such provisionwhether the accused cannot make a grievance of not putting thequestion On this issue no direct judgment has been placed before us.29.There are numerous occasions for the Courts to consider thewritten statement filed by the accused in the light of Section 313 ofthe Criminal Procedure. The question of interpretation of Section 313sub sectionhad arisen under different circumstances. In case ofUnited Phosphorus Ltd. v s. Sunita Narain & anr.5 Delhi High Courtdealt with the question of dispensing from the personal appearance ofthe accused for the purpose of examination and instead permitted himto file written statement. Court has refused to interfere in the ordergranting exemption to an accused in a prosecution involvingsummons case. Whereas in the case of Mintu Dubey v s. Union ofIndia through SP CBI Jabalpur6 Madhya Pradesh High Court has52001 Cri. L.J. 207762017 Cri.L.J.1185 on 09 04 2021 on 13 04 rsk 12 23APPEAL 974 19.odtdealt with an appeal against conviction. Therein the appellant hassubmitted a written reply as provided under Section 313(5) of theCode of Criminal Procedure. That was a case arising out of thePrevention of Corruption Act. On the basis of examination andwritten statement filed under Section 313(5) of the Code of CriminalProcedure High Court of Madhya Pradesh has dealt with appealagainst conviction. Court was required to decide whether theexplanation given by the accused can be considered or not.30.This Courtin the case of Mrs.Fatima C.Fernandes Vs. State of Goa7 has taken a note of filing of written statement as contemplated under Section 313(5) of the Code ofCriminal Procedure. That was an appeal against conviction underSection 302 of IPC.31.In the case of Mahesh Mahadev Tari v s. State of Goa8 thisCourt while dealing with an appeal against conviction under Section302 of IPC has considered the fact of filing of written statement underSection 313(5) of the Code of Criminal Procedure.32.However the issue of causing prejudiceneeds to be decided in the light of the newly inserted sub sectionto Section 313 of the Code of Criminal Procedure. Nodoubt it is true that this sub section is inserted so that assistance ofthe prosecutor and defence can be taken for preparing the questions72018 ALL MR95082018 ALL MR788 on 09 04 2021 on 13 04 rsk 13 23APPEAL 974 19.odtto be put to the accused. Whether it is mandatory or directory to takeassistance If we read the wordings of sub section we can find thatthe word ‘may’ has been used. If we take the literal meaning of theword ‘may’ we can find that taking the assistance by the Court canonly be said to be directory. If it is to be considered directory itmeans Court may take assistance or Court may not take assistance. IfCourt has chosen not to take the assistance it means Court has notavailed of that assistance. If it is so then one cannot have a grievancethat other side cannot make a grievance about omission to putquestions. This is one angle of looking to the question. There isanother angle also. If sub sectioncontemplates taking of theassistance by the Court it does not mean to say that the Prosecutor orthe defence counsel cannot on their own can offer assistance If suchassistance is offered no doubt any Court will not refuse to accept suchassistance.33.Coming to the facts of the case we have perused the recordwith assistance of both the sides. Nothing is pointed out to us byeither of the side that Court has taken assistance or the Prosecutor ordefence has offered any assistance to the Court. On this backgroundthere is a reason to believe that neither the Court nor both the sideshave taken cognizance of this newly inserted sub section. In view ofthis it may not be proper to decide the grievance of omission to putquestions in the light of newly inserted sub section. So the grievanceneeds to be decided in the light of interpretation given in thejudgments referred herein above. on 09 04 2021 on 13 04 rsk 14 23APPEAL 974 19.odt34.Question also arises whether this Court can remand the matterback to the trial Court for the purpose of putting that circumstance tothe accused There are various judgments on this issue. In some ofthe judgments the Court has refused to remand the matter. Whereasin few other cases Court has remanded the matter. Similar situationarose before Hon’ble Supreme Court in case of Nar Sing Vs. State ofHaryana reported in1 SCC 496. Question was raised beforeSupreme Court about not putting the forensic science laboratoryreport to the accused. It was a case based on circumstantial evidence.Though the analysis of the report was not put to the accused the trialCourt as well as High Court consider it as one of the circumstance.Hon’ble Supreme Court after taking overview of different judgment was pleased to remit back the matter before the trial Court withdirection to record fresh statement of the accused. While consideringvarious courses available before the trial Court in such a situation following courses of action were shortlisteda)The Appellate Court can examine the accused and shall considerthe answers.b)The Appellate Court can hear and decide the matter upon themerits if Appellate Court finds that no prejudice is caused orthere is no failure of justice.c)If there is failure of justice or prejudice retrial from the stageof recording of statement can be ordered.d)The Appellate Court can decide the appeal on its merits bydeclining to remit the matter and by considering the prejudice if any caused to the accused. on 09 04 2021 on 13 04 rsk 15 23APPEAL 974 19.odt35.Considering the facts of the case Hon’ble Supreme Court hasdecided to opt for the option of remitting the matter to the trial Court.If we consider the various judgments referred in the said judgment we can find that there is no straight jacket formula for deciding whichcourse of action can be adopted. So ultimately it remains a questionof fact. In a case before us we are not inclined either to remit thematter or to put the questions to the accused. We are inclined todecide the matter on merits. There are reasons for taking this courseof action. The accused is behind bar from 4th January 2016 i.e. almostfive years have expired. Secondly even if the circumstance of lastscene together is considered we do not think that other circumstancesare sufficient enough to prove the guilt of the accused i.e. neitherrecovery at the instance of the accused nor there is direct evidence.Even evidence on the point of motive is insufficient. So certainly weare of the opinion that prejudice is caused to the accused. The aboveobservations are on the basis of the facts of this case.36.It is an admitted fact that questions were not put to the accusedin 313 statement on the basis of facts stated by PW No.2 the firstinformant. It is certainly the duty of the Court to put the questions onthe basis of incriminating materials. The trial Court has not put thoserelevant questions. It may not be proper to use that incriminatingmaterial as evidenced in the testimony of PW No.2 and use it againstthe accused unless it is put to him. Certainly it has caused prejudiceto the accused. He has been denied opportunity to give an on 09 04 2021 on 13 04 rsk 16 23APPEAL 974 19.odtexplanation. Hence that circumstance as appearing in the evidenceof PW No.2 has to be excluded from the evidence.MOTIVE37."Suspecting the character of the deceased" is the motivesuggested by the prosecution. PW 4 Muktabai Pandharinath Landage mother of the deceased is the only witness examined. She had a talkwith deceased 2 days earlier to the incident on phone. There thedeceased disclosed about "accused suspecting the character of thedeceased and beating her" The trial Court gave following findings:"Trial Court believed the evidence of the mother. It isbut natural for the deceased to disclose aboutharassment to the near and dear one. While arriving atthis conclusion trial Court also referred to the opinionof first informant PW 2 Bhausaheb about cordialrelations in between the spouses. But it is not accepted(paragraph 24)"38.On minute scrutiny of the evidence of mother we can find thatshe has narrated the disclosure made during telephoniccommunication. Motive is the purpose reason for which offence iscommitted. Motive crops up in the mind of the culprit. We canunderstand the motive only when it is manifested by some conduct. Ifthe accused scolds become angry and even beats the deceased it ismanifestation. A person may like or dislike the act conduct ofanother. There are ways to protest. So also it depends upon tolerance on 09 04 2021 on 13 04 rsk 17 23APPEAL 974 19.odtlimit of person. A trifle act may make another person angry and ablunder may not make a person angry. So it is difficult to opine whichobjectionable acts may compel another to take law into his own hand.39.No doubt man always wants his wife to be loyal to him and ifwife has shifted loyalty towards another person her husband neverlikes. It is true for wife also. Coming to the evidence part there issolitary incident of telephonic communication. PW 4 Muktabai is noteyewitness to this beating by the accused. Except her there is no otherwitness. We are told that there are witnesses whose statements arerecorded by police during investigation on this point but they werenot examined. Let us not talk about what is not there. But even whatis there according to us is insufficient to believe about reason forscolding. The opinion of group head PW 2 Bhausaheb about cordialrelations is also important. He resides in the immediate vicinity. TrialCourt wrongly inferred about motive as proved. We disagree with thesame.ARREST OF ACCUSED40.The incident took place in the intervening night of 29 12 2015and 30 12 2015. The accused was not found at the spot. He came tobe arrested by Police Constable PW 8 Mithun Pardhi. He was attachedto Atpadi Police Station. When accused came in their territory witnessarrested him . He noticed blood stains on the clothes of accused.They were in soaked condition. He brought him to police station andinformed to Kurlap Police station where offence is registered. on 09 04 2021 on 13 04 rsk 18 23APPEAL 974 19.odt41. Whereas PW 11 Police Head constable Bokad from KurlapPolice Station went to Atpadi Police Station on 4 1 2016 and arrestedaccused. While appreciating the evidence of PW No.8 Police NaikPardhi the Court has rightly excluded the facts allegedly stated by theaccused to him at the time of taking him into custody. This factpertain to the incident that took place in the intervening night on 29thDecember 2015 and 30th December 2015. Those facts suggestconfession given by the accused. In every eventuality that has to beexcluded being stated to police.42.It is very well true that after noticing accused near Bankpuri andafter confirming the identity of the accused the witness Pardhi hasnot prepared any document. One may understand that it might nothave clicked him. Even nothing is tendered in evidence about givingof a report by him to higher police officers once he brought theaccused to Atapadi police station. It is also admitted fact that witnessPardhi has not prepared any arrest panchnama. It has also not comein evidence that except giving oral intimation on a telephone toKurlap police station witness Paradhi has not made anycorrespondence. 43.Even when witness police Hawaldar Bokad PW No.11 when hereached Atapadi police station it has not come in the evidence of boththese witnesses that any written communication is made in betweenthem. Witness Bokad simply went to police station Atapadi and gave on 09 04 2021 on 13 04 rsk 19 23APPEAL 974 19.odtreport and then took the custody of the accused. Admittedly saidreport is not tendered in evidence. He admits that while takingcustody from Aatapadi police station no panchnama is prepared.44.It simply means that except the bare words of these twowitnesses there is nothing in writing since the time PW No.8 noticedthe accused till the time of custody of the accused is handed over toPW No.11. Even PW No.13 PI Kamble investigating officer statedabout arrest of the accused on 4.1.2016. He does not say aboutpreparing the arrest panchnama. He referred about the letter givenby Atapadi Police Station but that has not been tendered in evidence.45.Police Officers are not layman. They are the officers having theresponsibility to carry out the investigation as per the police manualand as per the provisions of the Criminal Procedure Code. They needto substantiate their stand on the basis of documents which arecreated simultaneously.46.We find no explanation coming forward from the prosecutionfor not creating and not producing the single document to show thisentire arrest exercise. So we give least evidenciary value to what PWNo.8 has stated about noticing so called blood stains clothes of theaccused. It is at the time when he saw him at Aatpadi village. TrialCourt believed testimony of both the witnessesthe Hon ble Supreme Courthas dealt with the effect of time gap in between timing of last seentogether and timing of death. Merely because there is a huge time gapin between the timing of last seen together and probable timing ofdeath the evidence of last seen together can not be rejected in allcases. It is further observed that “when the time gap in between thepoint of time when both were found together alive and probabletiming of death is small than the possibility of any other person being on 09 04 2021 on 13 04 rsk 22 23APPEAL 974 19.odtwith the deceased can completely be ruled out”.(PRASANNA B. VARALE J.)

Not granting Bail because offence is serious in nature, would amount to inflicting pre-trial punishment upon Accused: Jammu & Kashmir High Court

“Allowing the petitioner to remain in custody because of the reason that the offences alleged to have been committed by him are serious in nature, would amount to inflicting pre-trial punishment upon him.” The Jammu and Kashmir High Court presided over by J. S. Dhar laid down this ratio in the case of Suraj Kumar Vs. Union of India, [Bail Application No. 259/2020]. The brief facts of this case are that police intercepted a black vehicle and then later checked the entire vehicle. The Police recovered a black plastic bag which contained around 500 grams of “charas” in it. They driver of the car i.e. the Appellant was arrested.  After investigation, a charge-sheet under Section 8 and 20 of the NDPS Act was filed against the Appellant. The Appellant filed a bail application in the Trial Court but it was rejected. Hence, the present Appeal. The Appellant stated that the quantity obtained was “intermediate” quantity as per the act and that there was no chance that he could tamper the investigation. Further, he is ready to abide by the terms and conditions laid down by the Court for grant of bail. The Court first clarified that a Superior Court can always entertain an application if it is rejected by an inferior court as laid down in the case of Gurcharan Singh &amp; Ors vs. State (Delhi Administration), AIR 1978 SC 179. Further, the court elaborated on the grant of bail in non-bailable offences and stated that, “The settled position of law as evolved by the Supreme Court in a catena of judicial dictums on (…) grant of bail is that there is no strait jacket formula or settled rules for the use of discretion but at the time of deciding the question of “bail or jail” in non-bailable offences- Court has to utilize its judicial discretion, not only that as per the settled law, the discretion to grant bail in cases of non-bailable offences has to be exercised according to rules and principle as laid down by the Code and various judicial decisions.”

IN THE HIGH COURT OF JAMMU AND KASHMIRAT JAMMU THROUGH VIRTUAL MODE) Bail App No.259 2020 Suraj Kumar ... Petitioner(s) Through: Mr. Sunny Mahajan Advocate Union Territory of J&K th. P S Batote …Respondent(s) Through: Mr. Jamrodh Singh G.A. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE As per the prosecution case on 26.09.2020 the police of Police Station Batote intercepted a black coloured vehicle bearing Registration No. JK02AV 3560 that was proceeding from Batote towards Nashri. The said vehicle was subjected to checking and upon its checking one plastic bag was recovered from underneath the driver’s seat. The bag was found to contain "Charas". The driver disclosed his identity as Suraj Kumar alias Sonu son of Om Raj the herein. Accordingly FIR No. offences under Sections 8 20 of NDPS Act was registered and the petitioner was arrested. 2. During investigation of the case the recovered charas was found to be 500 gms in weight and after investigation of the case offences under Sections 8 20 of NDPS Act were found established against the petitioner and the charge sheet was laid before the Court of learned Special JudgeRambanAIR 1978 SC 179 which has been followed by the Bombay High Court in the case of Devi Das Raghu Nath Naik v. Stateobserved as under: The settled position of law as evolved by the Supreme Court in a catena of judicial dictums on the subject governing the grant of bail is that there is no strait jacket formula or settled rules for the use of discretion but at the time of deciding the question of "bail or jail" in non bailable offences. Court has to utilize its judicial discretion not only that as per the settled law the discretion to grant bail in cases of non bailable offences has to be exercised according to rules and principle as laid down by the 5Bail App No.259 2020 Code and various judicial decisions. In bail applications generally it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time necessity demands that some un convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases necessity is the operative test. In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un convicted person for the purpose of giving him a taste of imprisonment as a lesson". In the light of the afore quoted principles let us now advert to 6Bail App No.259 2020 the facts of the instant case. As already noted the quantity of contraband allegedly recovered from the accused does not fall within the parameters of commercial quantity and in view of the same is intermediary one. The rigour of Section 37 of the NDPS Act thus does not come into play. The observation of learned trial court while rejecting the bail application of the petitioner that the offence alleged to have been committed by the petitioner is serious in nature and the same affects the society in general and the young generation in particular cannot be the sole reason for rejection of the bail application particularly when the allegations are yet to be established. Allowing the petitioner to remain in custody because of the reason that the offences alleged to have been committed by him are serious in nature would amount to inflicting pre trial punishment upon him. Every person is presumed to be innocent unless duly tried and duly found guilty. Withholding of bail cannot be as a measure of punishment. The petitioner has been arrested on 26.09.2020 and since then he is in custody and his further incarceration will be nothing but imposition of punishment without trial of the case. Therefore a balanced view of the matter is required to be taken by enlarging the petitioner on bail. 11 Apart from this the respondents have not placed on record anything to show that the petitioner is habitual offender or that he has previously been either implicated or convicted of similar offences. It is not the case of the respondents that any further recovery is to be effected from the petitioner. As per the status report filed by the respondents the challan has already been filed before the trial Court. 7Bail App No.259 2020 Thus further incarceration of the petitioner in the instant case cannot be justified. If the petitioner is not enlarged on bail it may also have an adverse impact on his preparation of defence against the charges that have been laid against him before the learned trial Court. The discretion regarding grant or refusal of bail cannot be exercised against the petitioner on the basis of public sentiments or to teach him a lesson as his guilt is yet to be proved. For the foregoing reasons the petition is allowed and the petitioner is admitted to bail subject to the following conditions: i) That he shall furnish personal bond in the amount of Rs.50 000 with one surety of the like amount to the satisfaction of the learned trial court ii) That he shall appear before the trial court on each and every date of hearing iii) That he shall not leave the territorial limits of Union Territory of J&K without prior permission of the learned trial court iv) That he shall not tamper with prosecution witnesses. Copy of this order be provided to the learned counsel for the petitioner through available mode and a copy be also sent to the learned trial Court. “Sanjeev PS” SANJAY DHAR) JUDGE Whether the order is speaking: Whether the order is reportable:

Administrative transfer orders lack jurisdiction if taken in absence of requisite quorum: Odisha High Court

In matter to stemming from administrative transfer orders, any transfer order pertaining to the State education authorities when taken in the absence of a quorum in a materialized meeting would be deemed to be without jurisdiction. The Odisha High Court bench was faced with malfeasant transfer orders in the case Surya Narayan Mishra V State of Odisha [W.P.(C) NO. 12584 OF 2019]. The bench comprising of B.R. Sarangi J. took the aforesaid approach in the light of the  Odisha Primary Education Programme Authority (hereafter ‘OPEPA’) rules for the transfer of employees. The single-judge bench scrutinized the jurisdiction of administrative transfer orders in light of ‘administrative exigencies’. The factual matrix which has given rise is that the petitioner therein was engaged as Financial Consultant in the DPO on contractual basis vide office order dated 17.08.2004 with remuneration of Rs.6,000/- per month. While he was so continuing, he was disengaged and again re-engaged vide office order dated 10.11.2005 at DPO, Ganjam, While working as such, again he was re-engaged at DPO, SS, Kendrapara vide office order dated 12.05.2008 and continuing as such till the impugned order of transfer was passed by the authority on 17.07.2019, by which he has been transferred from DPO, SS, Kendrapara to DPO, SS Bolangir. Essentially, the writ petition have been filed by the contractual employee working under the OPEPA in different capacities seeking to quash the orders of transfer issued against them. The opposition party has maintained its ground that any contravention of transfer orders shall be punishable according to OPEPA Service Rules and Regulations, 1996. The issue of transfer and posting has been considered time and again by the apex Court and law has been settled by a catena of decisions. It is entirely upon the competent authority to decide when, where and at what point of time a public servant is to be transferred from his present posting. Transfer is not only an incident but an essential condition of service. It does not affect the conditions of service in any manner The court opined that merely writing the words “administrative exigencies” cannot create a field for the transfer of contractual employees for whom no service rules and guidelines have been framed. As such, the guidelines, which have been relied upon in the present case, cannot be construed to be a guideline as the same have been framed with lack of quorum. Thereby, the impugned orders of transfer so passed by the authority concerned are without jurisdiction. The court turned to the decision in Hari Prasad Mulshanker Trivedi v. V.B. Raju, [AIR 1973 SC 2602], the Apex Court held that the word “jurisdiction” is an expression which is used in a variety of senses and takes its colour from its context. Whereas the pure theory of jurisdiction would reduce jurisdictional control, to a vanishing point, the adoption of a narrower meaning might result in a more useful legal concept even though the formal structure of law may lose something of its logical symmetry

ORISSA HIGH COURT: CUTTACK W.P.(C) NO. 12584 OF 2019 W.P.(C) NO. 24671 OF 2020 In the matter of applications under Articles 226 and 227 of the Constitution of India. W.P.(C) No. 125819 Surya Narayan Mishra … Petitioner Versus Versus State of Odisha and others ….. Opp. Parties W.P.(C) No. 246720 Rajashree Pattnaik … Petitioner State of Odisha and others ….. Opp. Parties For Petitioners M s. A.K. Pandey P.K. Samal and D.N. Mishra Advocates in both the cases) For Opp. Parties : Mr. A. Pradhan Addl. Standing Counsel O.Ps. No.1 3 and 4 in both the cases) Mr. Pradipta Kumar Mohanty Senior Advocate along with M s. P. Mohanty P.K. Nayak and P.K. Pasayat Advocates O.P. No.2 in both the cases] 2 P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of hearing:12.04.2021 :: Date of Judgment: 20.04.2021 DR. B.R. SARANGI J. Surya Narayan Mishra while working as Financial Consultant in the District Project OfficeSS Kendrapara on contractual basis with a consolidated remuneration of Rs.6 000 per month has filed W.P.(C) No.12584 of 2019 seeking to quash the order dated 17.07.2019 under Annexure 2 by which he has been transferred to DPO SS Bolangir on administrative Whereas Rajashree Pattanaik who was working as Coordinator Pedagogy in the DPO SS Khordha on contractual basis and has been transferred to DPO SS Rayagada on administrative ground vide office order dated 17.07.2019 under Annexure 1 has filed W.P.(C) 24671 of 2020 challenging the order dated 23.09.2020 under Annexure 5 by which opposite party no.2 has directed the petitioner to obey the office order 3 dated 17.07.2019 and to join at DPO SS Rayagada as per OSEPA office order no. 5036 dated 17.07.2019 positively failing which action shall be taken against her as per the Service Rules & Regulations 1996. Essentially both the writ petitions have been filed by the contractual employees working under the Odisha Primary Education Programme Authority OPEPA) in different capacities seeking to quash the orders of transfer issued against them. Therefore they have been heard together and are being disposed of by this common judgment which will govern in both the The factual matrix which has given rise to filing of W.P.(C) No. 125819 is that the petitioner therein was engaged as Financial Consultant in the DPO SSA DPEP Malkangiri on contractual basis vide office order dated 17.08.2004 with remuneration of Rs.6 000 per month. While he was so continuing he was disengaged and again re engaged vide office order The factual matrix which led to filing of 4 dated 10.11.2005 at DPO Ganjam While working as such again he was re engaged at DPO SS Kendrapara vide office order dated 12.05.2008 and continuing as such till the impugned order of transfer was passed by the authority on 17.07.2019 by which he has been transferred from DPO SS Kendrapara to DPO SS W.P.(C) No. 24671 of 2020 is that the petitioner therein was initially engaged as Coordinator Pedagogy in the DPO Sambalpur on contractual basis. Thereafter she was transferred to DPC Office Angul on 17.06.2010 and subsequently she was placed at DPC Office Keonjhar on 10.08.2010. Again the authority deployed her in the Head Office of OPEPA and after cancellation of deputation period the petitioner was again posted at DPC Office Keonjhar. Then she was posted at DPC Office Khurda vide office order dated 23.08.2016 and while so continuing she has been transferred vide office order dated 17.07.2019 to DPO SS Rayagada on 5 administrative ground as Financial Consultant. Against the order of transfer dated 17.07.2019 under Annexure 1 she filed W.P.(C) No. 12585 of 2019 wherein as an interim measure this Court stayed operation of the said transfer order. Despite that opposite party no.2 vide office order dated 23.09.2020 compelled her to carry on the order of transfer dated 17.07.2019 by joining at DPO SS Rayagada failing which action shall be taken against her as per OPEPA Service Rules and Regulations 1996. appearing for the petitioners in both the writ petitions contended that to regulate the service conditions of the employees of the OPEPA under Clause 5(n) of the Memorandum of Association of the Orissa Primary Education Programme Authority read with Rule 36 of the Rules and Regulations made thereunder “The Orissa Primary Education Programme Authority Service Regulations 1996” were framed. It is contended that in the said OPEPA Service Rules & Regulations 1996 there Mr. A.K. Pandey 6 is no provision for transfer of OPEPA employees from one place to other nor has any transfer policy been framed by the OPEPA till 2018. But for the first time on 17.12.2018 guidelines transfer of contractual employees working at State Project Office District Offices and Block Level Offices under RTE SSA Odisha were framed which also do not contemplate for transfer or deployment of employees working under SPO DPO & Block Level Offices under SSA. It is further contended that taking into consideration the merger of OPEPA with RMSA to form one society namely “Odisha School Education Programme Authroity” Government was pleased to accord permission for formulation of the inter district intra district transfer deployment and rationalization of employees working at SPO DPOs and Block Level Offices under RTE SSA. It is further contended that so far as the to contractual employees concerned it is not permissible by the said guidelines and more so the said guidelines cannot be given effect 7 to as the same have been formulated by a committee having lack of quorum. Therefore he seeks for quashing of the impugned orders of transfer passed by the authority concerned. Mr. P.K. Mohanty learned Senior Counsel appearing along with Mr. P. Mohanty learned counsel for opposite party no.2 vehemently contended that Rule 24 of the OPEPA Service Rules and Regulations 1996 which deals with travelling allowance clearly envisages that the employees in case of their transfer from the State Project Office to any DPO or from one DPO to another DPO shall be entitled to travelling allowance daily allowance and transfer T.A.. Thereby the posts held by the petitioners are transferable and as such they are entitled to travelling allowances as per Rule 24 read with Appendix B of the said Rules. It is further contended that Rule 12 under Chapter V deals with “Cadre” which indicates that directly engaged employees in the State Project Office shall be in a common cadre. The staff in all the district offices shall form a separate 8 cadre. Thereby the petitioners having been engaged in district offices they form a separate cadre and as such they are liable for transfer. Consequentially impugned orders of transfer have been given effect to and thereby no illegality or irregularity has been committed by transferring such employees. It is contended that when the transfer has been made on administrative ground as has been indicated in the impugned orders even though the petitioners are contractual employees for smooth administration if the order of transfer has been effected thereby no illegality or irregularity has been committed by the authority concerned. It is further contended by referring to Rule 24 that transfer is applicable to contractual employees from the State Project office to District Project office and also from one District Project office to another District Project office. The petitioners having been engaged in a project on contractual basis are not holding any civil post and therefore the services of contractual employees are coterminous with the implementation of the project. It is further contended 9 that as per Section 45 of the OPEPA Memorandum of Association the Executive Committee of OPEPA headed by the Chief Secretary as the Chairman and the Secretary of S & ME Department as Vice chairman and State Project Director as the Member Secretary are the competent authorities who have the power to frame and amend the regulations pertaining to service matter of including creation of post qualification selection procedure and emoluments disciplinary controls as well as classification control and appeal rules. Accordingly the transfer policy of contractual employees working under OPEPA OSEPA has been framed as per the approval of the Chairman EC OPEPA in the 36th Executive Committee OPEPA and in such guideline dated 17.12.2018 the provision for transfer of contractual employees is there. Thereby pursuant to such guideline if the orders of transfer have been passed the same cannot be said to be illegal or subjected to judicial scrutiny in the writ jurisdiction of this Court. Thereby it is contended that both the writ 10 petitions should be dismissed on the grounds mentioned above. To substantiate his contention he has relied upon the judgment of this Court in Prasanna Kumar Acharya v. State of Orissa 2015OLR 819. Mr. A. Pradhan learned Addl. Standing Counsel appearing for the State opposite parties contended that since it is a dispute between the petitioners and opposite party no.2 the State has no role to play and as such the State did not choose to file any counter affidavit. This Court heard Mr. A.K. Pandey learned counsel appearing for the petitioners in both the writ petitions Mr. P.K. Mohanty learned Senior Counsel appearing along with Mr. P. Mohanty learned counsel for opposite party no.2 and Mr. A. Pradhan learned Addl. Standing Counsel appearing for the State opposite parties through virtual mode. Pleadings have been exchanged between the parties with the consent of 11 learned counsel for the parties this writ petition is being disposed of finally at the stage of admission. It is admitted that both petitioners had been engaged as contractual employees under the OPEPA OSEPA and from the date of their engagement they have been discharging their duty. Even in some places they had been disengaged and re engaged and in some places with the closure of the project they had been directed to discharge their duty in new places. But by means of these two writ petitions they seek to quash the orders of their transfer. So far as transfer in general is concerned the issue of transfer and posting has been considered time and again by the apex Court and law has been settled by catena of decisions. It is entirely upon the competent authority to decide when where and at what point of time a public servant is to be transferred from his present posting. Transfer is not only an incident but an essential condition of service. It does not affect the 12 conditions of service in any manner. The employee does not have any vested right to be posted at a particular place. These principles have been decided in B. Varadha Rao v. State of Karnataka AIR 1986 SC 1955 :4 SCC 131 Shilpi Bose v. State of Bihar AIR 1991 SC 532 :SCC 659 Union of India v. N.P. Thomas AIR 1993 SC 1605 Union of India v. S.L. Abbas AIR 1993 SC 2444 and the latest judgment in Somesh Tiwari v. Union of India AIR 2009 SC 1399 :2 SCC 592. So far as scope of judicial review of transfer under Article 226 of the Constitution of India is concerned it has been settled by the apex Court in Rajendra Roy v. Union of India AIR 1993 SC 1236 National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan AIR 2001 SC 3309 and State Bank of India v. Anjan Sanyal AIR 2001 SC 1748. 13 follows: under: In Sarvesh Kumar Awasthi v. U.P. Jal Nigam 11 SCC 740 the apex Court held as “In our view transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who the business of has nothing to do with Taking into consideration the law laid down by the apex Court as discussed above the legal proposition of the issue of transfer can be summarized as It is does not adversely affect the status or 1) Transfer is a condition of service. emoluments or seniority of the employee. 3) The employee has no vested right to get a posting at a particular place or can choose to serve at a particular place for a particular tenure. It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are 5) Transfer order should be passed in public interest or administrative exigency and not arbitrarily or for extraneous consideration or for 14 victimization of the employee nor it should be passed under political pressure. 6) There is a very little scope of judicial review by the Court Tribunal against the transfer order and the same is restricted only if the transfer order is found to be in contravention of the statutory Rules or mala fides is established. In case of mala fides the employee has to make specific averments and should prove the same by adducing implacable evidence. 8) The person against whom allegation of mala fide is alleged is to be impleaded as a party by 9) Transfer policy or guidelines issued by the State or employer does not have any statutory force as it merely provides for guidelines for the understanding of the Departmental personnel. 10) The Court does not have a power to annul the transfer order only on the ground that it will cause personal inconvenience to the employee his family members and children as consideration of these issues fall within the exclusive domain of the 11) If the transfer order is made in mid academic session of the children of the employee the Court Tribunal cannot is for the employer to consider such a personal grievance.” There is no dispute with regard to legal proposition as discussed above. Such principles have to be considered on the touchstone of the reasonableness. Now coming to the facts of the case at hand it is admitted case of the both the petitioners that they are employees of the opposite party no.2 and working under the OPEPA and their service conditions have been 15 regulated by OPEPA Service Rules and Regulations 1996. So far as transfer is concerned there is no such provision available under the OPEPA Service Rules and Regulations 1996. Rule 12 deals with cadre which means the directly engaged employees in the State Project office shall be in a common cadre. The staff in all the district offices shall form a separate cadre. The seniority in each group and category in a cadre shall be fixed according to their date of joining. As such on perusal of OPEPA Service Rules 1996 there is no provision prescribed for “transfer”. Mr. P.K. Mohanty learned Senior Counsel appearing for opposite party no.2 placed reliance on Rule 24 of OPEPA Service Rules & Regulations 1996 which deals with Travelling Allowance reads as under: “(i) The employees of the Authority shall be entitled travelling allowance daily allowance and transfer. T.A. in case of their transfer from the State Project Office to any D.P.O. or from one D.P.O. to another at the rates as incorporated in the Appendix B. ii) The class to which an officer shall be entitled for any journey shall be prescribed in Appendix B. 16 iii) Travelling allowance and daily allowance payable to non official member attending meetings of any body or committee under authority shall be as per rate prescribed in Appendix B. iv) State meetings Workshops convened by the authority shall draw their T.A. & D.A. from the Authority or from the Department they work as decided by State Government. The rate in such cases shall decided by State Government. The rate in such cases shall be the rate applicable to them under the State Government. In a particular case if no specific rule is there in this regulation the relevant rules of State government shall apply mutatis mutandis.” On perusal of sub ruleof Rule 24 it is made clear that the employees of the Authority shall be entitled to travelling allowance daily allowance and transfer T.A. in case of their transfer from the State Project Office to any DPO or from one DPO to another at the rates as incorporated in the Appendix B. The employees as mentioned in sub rule of Rule 24 there was no specific definition of “the employee” available under the Rules save and except Rule 3(f) of OPEPA Service Rules and Regulations 1996 which deals with officers and staff of the OPEPA reads as under: 17 “3. DEFINITIONS: include consultant Officers and Staff means whole time employees of the Authority appointed by the Executive Committee or by any officer or authority delegated with power by the Executive Committee to do so and would also fellows research staff and officers and staff working under the Authority on deputation from the State Central Government. It also includes State Government Officers authorized to work as coordinators either on payment of salary or any fixed amount of On a close reading of the definition prescribed in Rule 3(f) of OPEPA Service Rules and Regulations 1996 it appears that it does not include the officer and staff engaged on contractual basis. Thereby neither Rule 24 nor the definition prescribed under Rule 3(f) deals with “contractual employee” working under the OPEPA and OPESA. Under Rule 24(i) reference has been made to Appendix B which deals with travelling allowance. Clause 2 of Appendix B reads as under: “2. Classification of officers for the purpose of tour in connection with affairs of the Authority. a) The officers of the authority including those Governments shall be classified into following 18 grades on the basis of the basic pay or class to which they belong as mentioned below: i) First Grade All officers in receipt of basic pay of Rs.2500 and above. ii) Second Grade Officers getting pay above Rs.1300 but below Rs.2500 p.m. iii) Third Grade All employees appointed on lump sum contract and classified as group C in the service regulation. iv) Fourth Grade All employees classified in the group appointed on lump sum contract. The grade of the reemployed officer shall be on basis of the pay last drawn before deduction of the pension. The retired officers appointed on contract on lump sum amount of pay shall be classified on the basis of the basic contract amount excluding allowances of compensatory nature. The State Government officers working Ex officio shall be classed into grade on basis of the pay they draw in their post under the state If such classification of the officers for the purpose of tour as envisaged under clause 2 of the Appendix B is taken into consideration it also does not speak about “the employee engaged on contractual basis” rather sub clausesandof clausestates about all employees appointed on lump sum contract. That by itself cannot construe that the employees who have been engaged on contractual basis. Clause 3 of Appendix B deals with entitlement of class of 19 accommodation for travel. Therefore if a close scrutiny would be made to the provisions contained in Rule 3(f) read with clause 24(i) and Appendix B nowhere it has been specified with regard to transfer of contractual employee engaged under OPEPA and OSEPA. The travelling allowance which is admissible under Rule 24(i) is only applicable to the employees indicated in definition 3(f) and as such the same does not include the “contractual employees” engaged under OPEPA and OSEPA. Thereby OPEPA Service Rules and Regulations 1996 being silent about the transfer and implementation thereof any transfer of contractual employees if made is in violation of such rules and the same cannot sustain in the eye of law. Mr. P.K. Mohanty learned Senior Counsel appearing for opposite party no.2 relied upon the judgment of this Court in Prasanna Kumar Acharya mentioned supra. The said judgment was decided on the principle of transfer as already discussed and while deciding the said case this Court also took similar view 20 holding that the opposite party being the employer has got every prerogative to transfer its employees. But fact remains such transfer cannot be done arbitrarily unreasonably and contrary to the rules governing the field. Emphasis has been laid that due to administrative exigencies the petitioners have been transferred by the opposite party no.2 but nothing has been placed on Therefore merely writing the words “administrative exigencies” cannot create a transfer of contractual employees for whom no service rules and guidelines have been framed. As such the guidelines which have been relied upon in the present case cannot be construed to be a guidelines as the same have been framed with lack of quorum. Thereby the impugned orders of transfer so passed by the authority concerned are without jurisdiction. It is not disputed that OPEPA authority is a society registered under the Societies Registration Act 1860. As per clauseof Memorandum of Association 21 is an “Authority” whose affairs shall be administered subject to the rules regulations and orders of the Authority by an executive committee which will be constituted as per clause 21 of such Memorandum of Association which reads as under: “ 21. Executive Committee. Chairman Ex Officio) the Authority shall be The affairs of administered subject the Rule and Regulations and orders of the Authority by an Executive Committee which shall consist of the i) Secretary to Government School & Mass Orissa Bhubanjeswar. ii) Secretary Department Government of Orissa. iii) Secretary to Government Department of Panchayati Raj Government of Orissa. iv) Director Elementary Education v) Director of Mass Education Department of School & Mass Education Government of to Government Finance Member Member Member Member vi) Director of T.E. and S.C.E.R.T. Orissa vii) Director Women & Child Development Government of Orissa ` 22 Members Member viii) Director Tribal Welfare & Director Harijan Welfare Government of Orissa ix) Two District Project Coordinators from amongst selected districts by rotation to be nominated by the Chairman. Members x) Two Heads of District Committees from amongst selected Districts by rotation to be nominated by the Chairman. Members the Central xi) Three representatives of Government Department Education Ministry of Human Resource Development Govt. of India. xii) Two Directors of State level Academic and Technical Resource Support Agencies. xiii) Two Educationists known experience and interests in basic education sector one each to be nominated by the State Government and Central Government. xiv) One serving teacher known for his her meritorious service to the cadre of Basic Education to represent teacher’s organization concerned with basic education to be nominated by the State Government. xv) Two women with experience and interest in women’s Development and Education one each to be nominated by the Central and State xvi) Two persons from Voluntary Agencies who have distinguished themselves for their work in the area of Mass Education one each to be nominated by the Central and State Members 23 xvii) Principal Regional Institute of Education xv) State Project Director O.P.E.P Member Member Secretary” Clause 28 which deals with quorum at the meeting reads as under: “Quorum at the Meeting: One third of the members of the Executive Committee present and in person shall constitute a quorum at any meeting of the Executive Committee provided that no quorum shall be necessary in respect of an adjourned On perusal of clause 28 it is made clear that one third of the members of the Executive Committee present and in person shall constitute a quorum at any meeting of the Executive Committee provided that no quorum shall be necessary in respect of an adjourned meeting. Clause 21 of the Memorandum of Association which deals with Executive Committee stipulates the Executive Committee shall comprise of 30 members as detailed in sub clauseto thereof. That means in order to constitute a quorum of the Executive Committee one third of the members of the 24 said Executive Committee which comes to ten are to remain present in person. Thereby the decision taken by an Executive Committee will only be valid and implemented said Executive Committee constitutes a quorum. In Than Singh v. State of Madhya Pradesh AIR 2005 MP 170 while considering Section 6(2) of M.P. Panchayat Avam Gram Swaraj Adhiniyam the Full Bench of Madhya Pradesh High Court dealt with the question of “quorum” and in paragraphs 36 to 40 observed as follows: “36. In Halsbury s Laws of England Third Edition Volume 6 while dealing with the factum of regulation and management of companies quorum has been described as under : 630. A quorum. A quorum means the minimum number of directors who are authorised to act as a board and 25 where a transaction is really one transaction the necessary quorum cannot be obtained by dividing the transaction into two any one of you the aforesaid A B C D etc. we will shall be one) our justices to inquire the truth more fully" whence the justices so named were usually called justices of the quorum. The term was afterwards applied to all justices and subsequently by transference to the number of members of a body necessary for the transaction of 26 is competent to transact 38. In Corpus Juris Secundum Volume LXXIV quorum has been described as under : Quorum : The word "quorum" now in common use is from the Latin and has come to signify such a number of the officers or members of anybody as is competent by law or constitution to transact business such a number of an assembly as business such a number of the members of any body as is when duly assembled legally competent to transact business such a number of a body as is competent to transact business in the absence of the other member. The quorum of a body is an absolute majority of it unless the authority by which the body was created fixes it at a different number. The idea of a quorum is that when that required number of persons goes into a session as a body the votes of a majority thereof are sufficient for binding action. Thus the word quorum" implies a meeting and the action must be group action not merely action of a particular number of members as individuals." 39. In the case of the Punjab University Chandigarh v. Vijay Singh Lamba AIR 1976 SC 1441 the Apex Court has ruled thus : Quorum" denotes the minimum number of members of any body of persons whose presence is necessary in order to enable that body to transact its business validly so that its acts may be lawful. The fixation of quorum for the meetings of a committee does not preclude attending the meetings. By the quorum a minimum number of members of the committee must be present in order that its proceedings may be lawful but that does not mean that the minimum are denied an opportunity to participate in the deliberations the members of the committee 27 and the decisions of the committee. Whenever a committee is scheduled to meet due notice of the meeting has to go to all the members of the committee and it is left to each individual member whether or not to attend a particular meeting. Every member has thus the choice and the opportunity to attend every meeting of the committee. If any member considers the matter which is to be discussed or determined in a particular meeting as of such importance that he must make his voice heard and cast his vote it is open to him and indeed he is entitled to attend the meeting and make his presence Thus the basic and fundamental principle inhered in the term quorum is presence of minimum number of members to transact business with the avowed purpose to make it 40. In the instant case the quorum has been differently prescribed. The effect and import of such enjoining has to be scrutinised in the backdrop of democracy albeit at the grassroot level. By introduction of such a provision the control from the majority slowly but steadily in a different manner travels to the very small and thin body. The democracy is built on the idea of the majority. All have a right to parameters of to conceive of a situation that to empower certain weaker section they would be allowed to have control in entirety the democracy at the grassroot level would itself be an anathema to the basic requirement of democracy. To have an idea that the protection of weaker sections should percolate to the minuscule level in a minutest manner cannot but smack of unreasonableness and irrationality. It can be well imagined if in one of the three categories as provided under permissible within law. But 28 the provisions Section 6(2) is absent the meeting of Gram Sabha cannot be held. We have been apprised at the Bar that provision has become workable but it can never be the test in a case of this nature. In the case at hand we are testing the provision keeping in view the democratic polity rationality of the non arbitrariness of it and when tested on the bedrock of the same we are of the opinion the second part of the provision cannot stand the test of the Article 14 of the Constitution. The percolation to that extent if we say so is not in a beyond tolerance. The learned counsel for the State submitted that unless they are allowed to control Gram Sabha would be controlled by a different kind of majority and the entire Panchayat system would collapse. As has been stated above number the basic substratum of a quorum but a significant and pregnant one the Legislature has further proceeded to provide how the quorum would be formed or to put it differently who would constitute the quorum. It is interesting to note that no alternative is provided what would happen in the absence of a quorum. The words used therein cast a mandate. Submission of the learned counsel for the State is that in a democratic polity there has to be participation of the weaker sections of the society moreso India where Scheduled in a country Castes Scheduled Tribes and women who have suffered for centuries. The aforesaid submission has its own significance and import and that has been met with by the Parliament while making provisions for reservation. Once the seats are reserved there can be no trace of doubt that the affirmative steps have been taken for progress and upliftment of the weaker sections of the society. The litmus test that is to be applied to the provision is whether a further controlling tool in the hands of a 29 particular number of a particular caste or tribe as well as woman is affirmative or necessary. An argument has been advanced that unless such a provision is engrafted into the marrows of the Statute the aforesaid three categories would not come to the meetings and the democracy at the grassroot level would remain a myth. The aforesaid argument at a first flush may sound attractive but on a deeper probe greater scrutiny subtle analysis and pregnant penetration would make it a submission which has to face the founder but cannot form the Much reliance has been placed on the office order dated 17.12.2018 which shows about the guidelines of transfer of contractual employees working at State Project Office District Project Offices and Block Level Offices under RTE SSA Odisha. The very opening paragraph of the said office order reads as under: “Presently there is no transfer deployment policy for the employees working at SPO DPO Block level under SSA. A large number of representations for transfer received from different categories of contractual employees working at SPO DPO and Block Level are pending and cannot be disposed of in absence of a clear cut guideline in this regard. In the 36th meeting of Executive Committee of OPEPA held on 21.03.2018 this issue was discussed at length and decision was taken at item no. 11(2) to formulate a Transfer Deployment Policy for the contractual employees under SSA.” 30 On perusal of the above mentioned paragraph it is made that no transfer deployment policy employees working at SPO DPO Block Level under SSA and a large number of representations for transfer from different categories of employees” working at SPO DPO and Block Level are pending and cannot be disposed of in absence of a clear cut guidelines in that regard. In the proceedings of the 36th meeting of the Executive Committee of the OPEPA held on 21.03.2018 the above issue was discussed at length and the same was taken in clause no.11.2 to formulate transfer deployment policy of the OPEPA employee. The proceedings of 36th Executive Committee of the OPEPA held on 21.03.2018 has been placed on record as Annexure 4 to W.P.(C) No. 24671 of 2020. Clause 11.2 which deals with transfer policy of OPEPA employees reads as under: of OPEPA As per OPEPA Service Rules & Regulations 1996 Rule 13 the directly engaged employees 31 in the State Project Office shall be in a common cadre. The staff in all the district offices shall form a separate cadre. The seniority in each group and category in a cadre shall be fixed according to their date of joining. It is felt that so many representations recommendations have been received from different corners regarding transfer of district block employees personal Health Spouse Grounds etc. This matter was discussed and decided to frame a transfer policy of State Dist Block level staff by a committee to be formed at State Level under the Chairmanship of SPD OPEPA which will be placed before Govt. in S & ME Deptt. for approval.” The guidelines for transfer of contractual employees have been framed vide office order dated 17.12.2018 under Annexure 3 to W.P.(C) No.12584 of 2019. If the very same opening paragraph as mentioned above would be read with clause 11.2 of the 36th meeting of Executive Committee held on 21.03.2018 it would be evident that nowhere it has said about the transfer policy of the contractual employees under SSA. Clause 11.2 of the proceedings of 36th Executive Committee of the OPEPA held on 21.03.2018 also does not speak about transfer policy of the contractual 32 employees working under the OPEPA. Thereby no reliance can be placed on such clause of the proceedings of 36th Executive Committee of the OPEPA held on 21.03.2018 so far as transfer of the contractual employees is concerned. Apart from the above the 36th Executive Committee meeting of the OPEPA held on 21.03.2018 does not satisfy the requirement of forming a quorum as required under clause 28 of the Memorandum of Association. Further the list of members present in the 36th Executive Committee meeting held on 21.03.2018 which has been placed as Annexure A at page 57 of W.P.(C) No.24671 of 2020 shows about presence of ten members. If a close scrutiny would be made it would be apparent that the Labour Commissioner of Odisha Director Panchayatiraj & Drinking Water Odisha and Dr. B.B. Acharya Technical Consultant Labour and ESI Department are not the members as enumerated under clause 21 of the Memorandum of Association. Otherwise also out of 30 members if ten are not present in the 33 Executive Meeting the same lacks quorum. Thereby any decision taken in an Executive Meeting which lacks quorum cannot be said to be a valid decision so that the same can be given effect to. Consequentially the reliance placed on the proceedings of 36th Executive Committee meeting of the OPEPA held on 21.03.2018 having lacked the quorum the decision so taken as per clause 11.2 of the said meeting to formulate transfer deployment policy for the employees is hardly of any assistance to opposite party no.2. Thereby it can be safely stated that in absence of any guidelines for transfer of contractual employees of the OPEPA the impugned orders of transfer cannot sustain in the eye of law. If the issue involved herein is considered from other angle in absence of any provision contained in OPEPA Service Rules and Regulations 1996 for transfer of contractual employees read with so called issued on 17.12.2018 as well as the proceedings of the 36th Executive Committee meeting of the OPEPA held on 21.03.2018 which lacked quorum 34 the impugned orders of transfer passed by the authority concerned is without jurisdiction. Butterworths Words and Phrases Legally Defined Vol.3 at page 113 states succinctly “by jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its In Smt. Ujjam Bai v. State of U.P. AIR 1962 SC 1621 the apex Court held that “jurisdiction” is the power to hear and determine it does not depend upon the regularity of the exercise of that power or upon correctness of the decision pronounced for the power to decide necessarily carries with it the power to decide wrongly as well as rightly. In Official Trustee West Bengal v. Sachindranath Chaterjee AIR 1969 SC 823 the apex Court held that “jurisdiction” means the legal authority to administer justice according to the means which the 35 law has provided and subject to the limitations imposed by that law upon the judicial authority. In Raja Soap Factory v. S.P. Shantharaj AIR 1965 SC 1449 the apex Court held that “Jurisdiction” is meant the extent of the power which is conferred upon the Court by its Constitution to try a proceeding. In Hari Prasad Mulshanker Trivedi v. V.B. Raju AIR 1973 SC 2602 the apex Court held that the word “jurisdiction” is an expression which is used in a variety of senses and takes its colour from its context. Whereas the „pure‟ theory of jurisdiction would reduce jurisdictional control to a vanishing point the adoption of a narrower meaning might result in a more useful legal concept even though the formal structure of law may lose something of its logical symmetry. In A.R. Antulay v. R.S. Nayak AIR 1988 SC 1531 the apex Court held that jurisdiction is the 36 authority or power of the Court to deal with a matter and make an order carrying binding force in the facts. In Harpal Singh v. State of Punjab 2007) 13 SCC 387 the apex Court held “jurisdiction” means the authority or power to entertain hear and decide a case and to do justice in the case and determine the controversy. In absence of jurisdiction the Court has no power to hear and decide the matter and the order passed by it would be a nullity. Taking into consideration the above meaning of the jurisdiction and applying the same to the present context it is made clear that in absence of any provision contained in OPEPA Service Rules and Regulations 1996 read with the guidelines dated 17.12.2018 and the decision taken in 36th Meeting of the Executive Committee of OPEPA held on 21.03.2018 with regard to formulation of transfer deployment policy as per clause 11.2 thereof the impugned orders passed by the authority transferring the petitioners who are 37 contractual employees are without jurisdiction. Thereby the order of transfer dated 17.07.2019 under Annexure 2 to W.P.(C) No.12584 of 2019 and that of dated 17.07.2019 under Annexure 1 to W.P.(C) No. 24671 of 2020 as well as letter dated 23.09.2020 and order dated 21.09.2020 under Annexures 5 and 6 to the W.P.(C) No.24671 of 2020 cannot sustain in the eye of law and are liable to be quashed and hereby quashed. As opposite party no.2 is the employer keeping in view the settled proposition of law as discussed above it is left open to the said authority to suitable policy guidelines transfer of contractual employees of OPEPA OSEPA by following due procedure as provided under law. In the result the writ petitions are allowed. However there shall be no order as to costs. JUDGE Orissa High Court Cuttack The 20th April 2021 Ashok Ajaya GDS …... …. .. DR. B.R.SARANGI

Man accused of theft denied pre-arrest bail after the Vehicle was found in his Courtyard: High Court Of Patna

The petitioner was apprehended arrest for the theft of motorcycle along with one other. The Motorcycle was found in the courtyard of the petitioner and he claimed that he had nothing to do with it. The court in the light of all facts and circumstances dismissed the petition for pre-arrest bail. The court was inclined towards the contention that the accused is liable of theft and the case shall go on. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Vikash Kumar Choudhary v. The State of Bihar[Criminal Miscellaneous No.15176 of 2021].  The facts of the case were that the petitioner was arrested in connection with the Case instituted under Sections 379/411 of the Indian Penal Code. According to the case the informant’s motorcycle was stolen during night for which the present case has been instituted. The co-accused was the person who stole the motorcycle at the night and ran away with it. To be safe the motorcycle was kept at petitioner’s house and thereafter when the police has gone to the house of the petitioner, from his courtyard, motorcycle was recovered. Learned counsel for the petitioner submitted that though from the circumstances, it appears that there is recovery of stolen motorcycle from the courtyard of the petitioner but from the seizure list, there being no signature of any inmate of the house, raises serious doubts with regard to authenticity of the allegation of such recovery from the house of the petitioner. They said that the petitioner had no other criminal antecedent. Also the seizure list contained the signature of the co-accused only. The Additional Public Prosecutor submitted that the CCTV Footage contained two people and one was identified as the co-accused and he was apprehended for the same as well. They contended that the case is at the stage of trial where evidence would be adduced by the respective parties, but for the present, there is strong presumption of guilt and involvement of the petitioner in committing the crime. The Hon’ble High Court Of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds substance in the contention of learned APP. Thus, the Court is not inclined to grant pre-arrest bail to the petitioner.” The petition was hence dismissed on the said decision. Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The facts of the case were that the petitioner was arrested in connection with the Case instituted under Sections 379/411 of the Indian Penal Code. According to the case the informant’s motorcycle was stolen during night for which the present case has been instituted. The co-accused was the person who stole the motorcycle at the night and ran away with it. To be safe the motorcycle was kept at petitioner’s house and thereafter when the police has gone to the house of the petitioner, from his courtyard, motorcycle was recovered. Learned counsel for the petitioner submitted that though from the circumstances, it appears that there is recovery of stolen motorcycle from the courtyard of the petitioner but from the seizure list, there being no signature of any inmate of the house, raises serious doubts with regard to authenticity of the allegation of such recovery from the house of the petitioner. They said that the petitioner had no other criminal antecedent. Also the seizure list contained the signature of the co-accused only. The Additional Public Prosecutor submitted that the CCTV Footage contained two people and one was identified as the co-accused and he was apprehended for the same as well. They contended that the case is at the stage of trial where evidence would be adduced by the respective parties, but for the present, there is strong presumption of guilt and involvement of the petitioner in committing the crime. The Hon’ble High Court Of Patna held,” Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds substance in the contention of learned APP. Thus, the Court is not inclined to grant pre-arrest bail to the petitioner.” The petition was hence dismissed on the said decision.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.151721 Arising Out of PS. Case No. 716 Year 2020 Thana BHAGALPUR KOTWALI District Vikash Kumar Choudhary @ Vikash Choudhary aged about 30 years Male Son of Madan Choudhary Resident of Village Mayaganj mushari Tola P.S. Barari Distt. Bhagalpur The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Mr. Ranjan Kumar Jha Advocate Ms. Meena Singh APP Date : 05 08 2021 The matter has been heard via video conferencing 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioner on 29.07.2021 which was allowed 3. Heard Mr. Ranjan Kumar Jha learned counsel for the petitioner and Ms. Meena Singh learned Additional Public Prosecutorfor the State 4. The petitioner apprehends arrest in connection with KotwaliPS Case No. 7120 dated 19.11.2020 instituted under Sections 379 411 of the Indian Penal Code 5. As per the informant his motorcycle was stolen during night for which the present case has been instituted Patna High Court CR. MISC. No.151721 dt.05 08 2021 However it is not against any named person and during investigation co accused Chandan Kumar Yadav @ Golu Yadav was arrested by the police and he disclosed that the stolen motorcycle was kept by him at the house of the petitioner and thereafter when the police has gone to the house of the petitioner from his courtyard motorcycle was recovered 6. Learned counsel for the petitioner submitted that though from the circumstances it appears that there is recovery of stolen motorcycle from the courtyard of the petitioner but from the seizure list there being no signature of any inmate of the house raises serious doubts with regard to authenticity of the allegation of such recovery from the house of the petitioner. It was submitted that only the said co accused Chandan Kumar Yadav @ Golu Yadav has signed on the seizure list. He submitted that the petitioner has got no other criminal antecedent 7. Learned APP submitted that during investigation from the CCTV footage two miscreants were seen committing theft and one has been identified as Chandan Kumar Yadav Golu Yadav by the local person Sonu Kumar and he was apprehended. Learned counsel submitted that once the co accused had gone with the police and recovery has been made and he has signed on the seizure list the requirement of any other signature of Patna High Court CR. MISC. No.151721 dt.05 08 2021 the inmates of the house cannot be fatal to the prosecution and all such matters are to be left at the stage of trial where evidence would be adduced by the respective parties but for the present there is strong presumption of guilt and involvement of the petitioner in committing the crime 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court finds substance in the contention of learned APP. Thus the Court is not inclined to grant pre arrest bail to the petitioner 9. Accordingly the petition stands dismissed (Ahsanuddin Amanullah J

From Ex-Parte Proceedings to Reaching the Settlement Agreement: Delhi High Court

In a fresh matter in Delhi High Court, the parties applied for decreeing the settlement agreement, when arbitration failed due to ex-parte proceedings. The above was observed in the matter of KLA CONST Technologies Pvt. Ltd. v. The Embassy of Islamic Republic of Afghanistan [OMP (ENF.) (COMM.) 82/2019 &amp; EX.APPL.(OS) 901/2021]. The proceedings of the case was held on September 13th 2021, and the it was presided by a single judge bench, consisting of Justice Suresh Kumar Kait. The facts entailing the cases are as follows. The decree holder Mr. Ashok Kumar who was an authorized Representative of KLA Const. Technologies Private Limited company and the judgment debtor, Embassy of Islamic Republic of Afghanistan had entered into a contract for the rehabilitation of building of the Embassy of Afghanistan in Delhi for a total contract of Rs.3,02,17,066.83 exclusive of taxes. Consequently, during execution of work, certain disputes arose between the parties, for resolution of which KLA Const Technologies invoked the arbitration clause in view of the terms and conditions of the work contract, however, the Afghan Embassy did not respond to the suit., In pursuance of the above, the petitioners approached the Hon’ble Supreme Court by filing a petition under Section 11 of the Arbitration and Conciliation Act, 1996. In the lines of the above, Supreme Court of India appointed a sole arbitrator. The petitioners filed their claim, however, the defendants never showed up for the proceedings and petitioners were heard ex-parte. However, a settlement was reached between the parties, subsequently. The counsel on the behalf of the Afghan embassy claimed that they shall be bound by the settlement agreement reached between the parties.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 13.09.2021 OMP(COMM.) 82 2019 & EX.APPL.(OS) 901 2021 KLA CONST TECHNOLOGIES PVT. LTD. Decree Holder Dr.Amit George Adv. with Mr.Kartickay Mathur Mr.K.K. Shukla & Mr.Shanker Kashyap Advs. THE EMBASSY OF ISLAMIC REPUBLIC OF AFGHANISTAN Judgement Debtor Through Mr.Raghavendra M. Bajaj Mr.Ejaz Maqbool Ms.Garima Bajaj Mr.Saif Zia Mr.Agnish Aditya & Mr.Nikhil Bamal Advs. HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENTPresent execution petition has been filed under Section 36 of the Arbitration and Conciliation Act read with Order XXI Rule 11(2) of the CPC 1908 on behalf of decree holder seeking enforcement of the arbitral award dated 26.11.2018. Decree holder Ashok Kumar Authorised Representative of KLA Const. Technologies Private Limited company and judgment debtor The OMP(COMM.) 82 2019 Embassy of Islamic Republic of Afghanistan had entered into a contract for the rehabilitation of building of the judgment debtor Afghan Embassy in Delhi for a total contract of Rs.3 02 17 066.83 exclusive of taxes. Pertinently during execution of work certain disputes arose between the parties for resolution of which decree holder invoked the arbitration clause in view of the terms and conditions of the work contract however judgment debtor did not respond therefore decree holder approached the Hon’ble Supreme Court of India by filing a petition under Section 11 of the Arbitration and Conciliation Act 1996 being ARB.P.No. 14 2014. Vide order dated 05.01.2015 THE Hon’ble Supreme Court appointed Shri H.S. Dogra Director General CPWD sole arbitrator. Accordingly decree holder filed its claim of Rs.2 00 47 192.82 along with pendent lite and future interest before the Arbitrator. Again the judgment debtor did not join the arbitration proceedings and were accordingly proceeded ex parte vide order dated 13.11.2017. The learned Arbitrator partially allowed the claims of the decree holder by passing an award dated 26.11.2018. During the course of hearing today learned counsel for the decree holder submits that an out of court settlement has been arrived at between OMP(COMM.) 82 2019 the decree holder and judgment debtor and the terms of settlement are recorded in the Settlement Agreement dated 11.09.2021 and the present suit can be decreed in terms thereof. The aforesaid submissions of learned counsel for the decree holder is affirmed by the counsel appearing for judgment debtor. Though the aforesaid Settlement Agreement dated 11.09.2021 which is stated to have been filed today vide diary number 755400 2021 in the Registry is not on record however a hard copy thereof has been produced before this Court. The terms of settlement have been enumerated in Para 1.1 to Para 2.5 of the Settlement Agreement. According to the settlement judgment debtor toward full and final settlement of all claims and outstanding dues toward the decree holder under the contract and arbitral award has issued three cheques total amounting to Rs.68 00 000 drawn on Kotak Mahindra Bank D 10 Nos.1 & 2 Local Shopping Centre Vasant Vihar New Delhi details whereof have been given in Clause 1.1(i) to of the Settlement Agreement. Judgment debtor has also agreed to issue an appreciation letter in favour of decree holder towards successful and satisfactory execution of the settlement OMP(COMM.) 82 2019 8. In the light of clause 1.2 and 1.3 of the Settlement Agreement dated 11.09.2021 the parties have agreed that the Second Party from their Bank Account Nos.3111478010 3111478027 and 3111478041 in Kotak Mahindra Bank Branch D Block New Delhi 110057 will issue cheques from the aforementioned account and will jointly approach this court to recall its order dated 23.08.2021. In the afore mentioned agreement Second Party also agrees to issue an appreciation letter in favour of first party attesting to the successful and satisfactory execution of the settlement. 10. Today learned counsel for the judgment debtor submits that the judgment debtor shall remain bound by the terms of aforesaid Settlement Agreement dated 11.09.2021 and the post dated cheques shall be honoured. In view of the aforesaid undertaking furnished on behalf of judgment debtor learned counsel for decree holder submits that the present petition be decreed in terms of Settlement Agreement dated 11.09.2021 and the interim order dated 23.08.2021 with respect to maintaining of minimum balance of Rupees One crore and Eighty Lacs in the account Nos. 3111478010 3111478027 and 3111478041 of judgment debtor at Kotak Mahindra Bank Branch D Block Vasant Vihar New Delhi be recalled. OMP(COMM.) 82 2019 12. In the light of aforesaid submission of learned counsel for decree holder and the Settlement Agreement dated 11.09.2021 order dated 23.08.2021 is recalled and the present suit is decreed in terms mentioned in Settlement Agreement dated 11.09.2021. Needless to say parties shall remain bound by the terms mentioned in the aforesaid Settlement 13. Decree sheet be accordingly drawn in terms of Settlement Agreement dated 11.09.2021 which shall form part of the decree. 14. The petition is disposed of. SEPTEMBER 13 2021 JUDGE SURESH KUMAR KAIT) OMP(COMM.) 82 2019

The account which is frenzied by the order of the special court will not be operated : High Court of New Delhi .

The extra amount which was received from one of the parties is to be impugned transaction and also it can’t be prima facie termed as case property, this was held in the judgement passed by a single bench judge comprising HON’BLE MS. JUSTICE  MUKTA GUPTA, in the matter Ravina and Associates PVT LTD &amp; ANR V. Central Bureau Of Investigation &amp; ANR, dealt with an issue where the entire amount frozen London and transferred to India in the case property. In this case, the petitioners under Sections 451/457CrPC And the other filed by the Income Tax Authorities under Section 226(4)of the Income Tax Act 1961 were dismissed, the petitioners prefer the present petition. 2 Applications were filed that the above – noted FIR was lodged on 6th March 2006 by the CBI on a piece of reliable information that certain officials of the National Thermal Power Corporation Ltd. (NTPC) entered into a criminal conspiracy with the GRUPVO TECHNOPROMEXPORT RUSSIA. In the year 2005, an amount of US$ 20 million was paid/received against illegal gratification/kickbacks in the bank account of the petitioner M/s. Ravina &amp; Associates Pvt. Ltd. (in short ‘RAPL’) in the U.K. Also, the 2 petitioners account was frozen I.e RAPL and   Ravina Khurana. The trial court directed further investigation. CBI filed a charge sheet against t M/s. T.P.E. Moscow Russia, Mr Sergei Mukhin, Mr Alexander V. Schegolev representative Director of M/s. T.P.E. and the petitioners herein under Section 420 read with 120B IPC. learned Special Judge which has directed the CBI to conduct further investigation, According to CBI, the investigation revealed that M/s. TPE Russia on receiving the funds from NTPC paid illegal gratifications to petitioner No. 1 RAPL which have been detailed in the additional affidavit filed by the CBI. And also there was An application was filed under Section 226(4) of the Income Tax Act by the Income Tax Department for recovery of the tax demand due towards the two petitioners and according to the Income Tax Department, it also contained some Outstanding dues where interest was not included u/s 220(20). The earlier applications filed by the Income Tax Department Authority and the petitioners were dismissed vide order dated 26th November 2009, e learned Special Judge, directing the learned Special Judge to pass appropriate orders for bringing back the amount lying in the Natwest Bank, London bearing Account Nos. 1400103368092, 44259816, 1400021000 and 18009336. Coming to the amount which was frozen at the National Westminster Bank, London was transferred to Account No. 33629397157 opened on 31st January 2014 in the name of Special Judge CBI-01 at the Tis Hazari Branch of State Bank of India. The mentioned amount was converted into Special Term Deposit Receipt for ₹138,58,81,245/- and as of date, the total principal amount of Special Term Deposit Receipt is ₹192,02,26,514/-, the interest accrued thereon is ₹58,39,592.95/- and the FDR is in auto-renewal mode. So the petitioners filed an appeal before the Commissioner Income-Tax seeking a stay of the demand which was rejected. In the meantime, petitioner RAPL filed a writ petition being W.P.(Crl.) 783/2021 before this Court with the prayer that the application dated 23rd August 2012 of the Income Tax Authorities for release of the amount to the tune of ₹41,13,73,732/- be heard expeditiously in the wake of the settlement reached between the Income Tax Authorities and the petitioner RAPL, on the Income Tax Authorities launching the scheme „Vivid se Vishwas‟. The court goes through- “ Hon‟ble Supreme Court in the decision reported as (1999) 7 SCC 685 State of Maharashtra Vs. Tapas D.Neogy, dealing with the case property and affirming the decision of the Madras High Court in Bharath Overseas Bank Vs. Minu Publication 1988 Madras Law Weekly (Crl.) 106,” and also many order cases.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 27th August 2021 Pronounced on: 2nd September 2021 CRL.M.C. 1372 2021 CRL.M.A. 8423 2021 RAVINA AND ASSOCIATES PVT LTD & ANR. Petitioners Represented by: Mr. Kapil Sibal Senior Advocate with Mr. Sandeep Kapur Mr. Shivek Trehan Mr. Vivek Suri Mr. Abhimanshu Dhyani Mr. Sahil Modi Mr. Pranay Govil Mr. Adit Pujari Advocates CENTRAL BUREAU OF INVESTIGATION & ANR. Represented by: Mr.Anupam S Sharrma SPP for CBI Respondents with Mr. Prakarsh Airan and Ms.Harpreet Kalsi Advocates for respondent No.1. Mr.Ruchir Bhatia Sr. Standing Counsel for respondent No. 2. HON BLE MS. JUSTICE MUKTA GUPTA JUDGMENT : Aggrieved by the impugned order dated 17th May 2021 passed by the learned Special Judge P.C.Act CBI 03 RC 6(A) 2006(CC R. CRL.M.C. 1372 2021 No.82 2019) titled as „CBI Vs. FGUP VO TECHNOPROMEPORT‟ „State Vs.C.P.Jain etc.‟ and „Ravina & Associates Pvt. Ltd. & Anr. Vs. CBI & Anr.‟ whereby the two applications one filed by the petitioners under Sections 451 457 CrPC and the other filed by the Income Tax Authorities under Section 226(4) of the Income Tax Act 1961 were dismissed the petitioners prefer the present petition. A brief factual narration resulting in filing of the two applications is that the above noted FIR was lodged on 6th March 2006 by the CBI on a reliable information that certain officials of the National Thermal Power Corporation Ltd.entered into a criminal conspiracy with the GRUP VO TECHNOPROMEXPORT RUSSIA and its associate companies in the years 2002 to 2005 in pursuance whereto in the year 2005 an amount of US$ 20 million was paid received against illegal gratification kickbacks in the bank account of the petitioner M s. Ravina & Associates Pvt. Ltd. in U.K. Pursuant to the Letters Rogatory issued an order was issued freezing the accounts of the two petitioners i.e. RAPL and Ravina Khurana. Initially the CBI filed a closure report. However the same was not accepted by the learned trial court which directed further investigation. Pursuant to the further investigation conducted CBI filed a charge sheet against M s. T.P.E. Moscow Russia Mr.Sergei Mukhin Mr.Alexander V. Schegolev representative Director of M s. T.P.E. and the petitioners herein under Section 420 read with 120B IPC. No officer of the NTPC was found involved and no charge sheet for offence punishable under the provisions of the Prevention of Corruption Act was filed. No cognizance on the report filed by the CBI after carrying out further investigation has been taken by the learned Special Judge which has CRL.M.C. 1372 2021 directed the CBI to conduct further investigation which order of the learned Special Judge has been challenged by the CBI before this Court as the case of CBI is that it has carried out the investigation. According to the CBI investigation revealed that M s. TPE Russia on receiving the funds from NTPC paid illegal gratifications to petitioner No. 1 RAPL which have been detailed in the additional affidavit filed by the CBI as under: Amount of Invoice raised by M s Ravina Associates Pvt. Ltd. Amount transferred by TPE to M s Date of Place of receipt by M s RAPL 1 US$ 762 686.83 Rs.3 33 06 123.61 20.04.05 Deutsche Bank India 0.195% of total contract price of 391 121 452 of Contract No. CS 9558 102 2 FC COA 4520) 20 748 993.03 5.305% of total contract price of 391 121 452 of Contract No. CS 9558 102 2 FC COA 4520) 2 US$ US$10 373 771.06 05.05.05 National US$10 372 591.07 19.05.05 National Bank Bank 21.02.06 National 3 Rs.36 445 020 US$825 481.77 5.305% of total contract price of An application was filed under Section 226(4) of the Income Tax Act by the Income Tax Department for recovery of the tax demand due CRL.M.C. 1372 2021 towards the two petitioners and according to the Income Tax Department the total outstanding dues against the two petitioners were as under: Total Tax outstanding 3 63 96 009 86 61 167 21 00 216 6 70 811 54 78 261 “Ms.Ravina Khurana Asstt. Year 2000 01 2001 02 2002 03 2003 04 2004 05 Ravina & Associates Pvt. Ltd. Asstt. Year 2004 05 2005 06 2006 07 Note: The above tax outstanding does not include interest u s 220(2)” Thus according to the Income Tax Department since the petitioners Total Tax outstanding 5 66 83 083 2 07 98 454 34 08 03 384 were maintaining accounts with National WestMinister Bank London which has been frozen by the order of the Special Court and could not be operated the Income Tax Department sought recovery of the outstanding tax demand from the amounts lying deposited. The earlier applications filed by the Income Tax Department Authority and the petitioners were dismissed vide order dated 26th November 2009 which order was challenged before this Court and vide order dated 6th August 2012 in Crl.Rev.P.128 2010 this Court disposed of the petition setting aside the order passed by the learned Special Judge directing the learned Special Judge to pass appropriate orders for bringing back the amount lying in the Natwest Bank London bearing Account Nos. 1400103368092 44259816 1400021000 and 18009336. The learned CRL.M.C. 1372 2021 Special Judge was also directed that while passing the orders to the aforesaid effect the learned Special Judge shall direct the money to be remitted in the SBI Tis Hazari Branch in the name of the Court of Special Judge and once the money is received the Special Judge would be then at liberty to deal with the same in any way if thinks appropriate after taking into consideration the rival claims of the petitioners CBI and the Income Tax Department. This amount so frozen at the National WestMinister Bank London was transferred to Account No. 33629397157 opened on 31st January 2014 in the name of Special Judge CBI 01 at the Tis Hazari Branch of State Bank of India and the three overseas remittance in the said account are detailed as under: AMT IN USD AMT IN INR 01 07 14 USD 20830987.93 @ 60.05 ₹ 125 09 00 825 01 07 14 USD 2165701.83 @ 60.05 ₹ 13 00 50 395 07 07 14 GBP 48234.77 102.4 ₹ 49 43 702 Total 1 38 58 94 922 The above amount was converted into Special Term Deposit Receipt for ₹138 58 81 245 and as on date the total in principal amount of Special Term Deposit Receipt is ₹192 02 26 514 the interest accrued thereon is ₹58 39 592.95 and the FDR is in auto renewal mode. 9. Thereafter again an application was filed by the Income Tax Department which was again objected to by the CBI. As per the application filed under Section 226(4) of the Income Tax Act the Income Tax CRL.M.C. 1372 2021 Department sought recovery of income tax penalty and interest of ₹3 18 16 029 for the assessment years 2000 2001 to 2004 2005 payable by Ms. Ravina Khurana and of ₹87 22 74 197 for the assessment years 2003 2004 to 2006 2007 upto 31st July 2012 by RAPL. The CBI thereafter filed its closure report under Section 173 CrPC which was rejected by the learned Special Judge and directions were issued for a further investigation vide order dated 18th April 2015. The application filed by the Income Tax Department was kept pending to be decided after the decision on the closure report of the CBI is taken. 10. Assessment of the income tax demand qua the petitioners was carried out and vide order dated 7th January 2010 a total demand of ₹55 16 66 015 was made out of which ₹25 50 518 had been recovered through attachment of bank accounts and the balance demand of ₹54 91 15 497 is pending. Challenging the assessment order the petitioners filed an appeal before the Commissioner Income Tax seeking stay of the demand which was rejected. The stay application filed by the petitioners before the Commissioner taking one of the grounds that the bank accounts of the assesses maintained at NatWest Bank London were under restraint by the order of the Special Judge CBI Court Delhi and hence assessee is not in a position to deposit the demanded income tax was also rejected noting that the petitioners have other assets to pay the amount. The petitioners thereafter filed WP(C) 328 2010 and WP(C) 340 2010 respectively seeking stay of recovery of the outstanding demand of ₹54 91 15 497 for the assessment years 2004 05 2005 06 and 2006 07 in the case of petitioner No.2 or in the alternative the outstanding amounts be recovered from the accounts of petitioners in the NatWest Bank London. Challenge was also CRL.M.C. 1372 2021 laid to the order dated 7th January 2010 passed by the Commissioner of Income Tax rejecting the application for stay of demand. 11. Vide judgment dated 20th April 2011 the Division Bench of this Court held that the petitioners were not entitled to the protection or benefit under Section 220(7) of the Income Tax Act and held that the money in NatWest Bank London is subject matter of the restraint order passed by the Court of U.K. on the letter of rogatory of the Special Judge Delhi. The petitioner may not have any right to claim the said money if it is corruption or bribe money. The said money may be forfeited under the foreign exchange law or Prevention of Corruption Act or Prevention of Money Laundering Act. In the meantime petitioner RAPL filed a writ petition being W.P.(Crl.) 783 2021 before this Court with the prayer that the application dated 23rd August 2012 of the Income Tax Authorities for release of the amount to the tune of ₹41 13 73 732 be heard expeditiously in the wake of the settlement reached between the Income Tax Authorities and the petitioner RAPL on the Income Tax Authorities launching the scheme „Vivad se Vishwas‟. In W.P.(Crl.) 783 2021 filed by the petitioners seeking early disposal of the application of the Income Tax Authorities this Court vide order dated 16th April 2021 directed the learned Special Judge CBI who was seized of the proceedings in RC 6(A) 2006to dispose of the application filed by the Income Tax Authorities under Section 226(4) of the Income Tax Act by 26th April 2021. Subsequent thereto the petitioners filed an application for taking on record the order dated 16th April 2021 passed by this Court in W.P.(Crl.) 783 2021 and also the documents and for passing appropriate orders. Thereafter on a CRL.M.C. 1372 2021 clarification sought by the learned Special Judge the petitioners filed an application under Section 451 457 CrPC which was heard and decided vide the impugned order. 13. By the impugned order the learned Special Judge apparently was of the view that it was not for the Income Tax Department to espouse the cause of the petitioners and as to from where the petitioners who are accused pay the income tax dues. The learned Special Judge vide the impugned order held that neither Sections 451 457 CrPC nor Section 226(4) of the Income Tax Act were applicable and thus the two applications neither showed any credit nor merit and were dismissed. 14. As is evident from the facts noted above after registration of the RC DAI 2006 A 0006 dated 6th March 2006 CBI sought freezing of the accounts in London however thereafter filed a final report which was not accepted by the learned Special Judge and on further investigation a charge sheet under Sections 420 120B IPC only has been filed and not under the provisions of the Prevention of Corruption Act whereas after the assessment was conducted the Income Tax Authorities filed an application before the learned Special Judge CBI Tis Hazari seeking de freezing of the accounts under Section 226(4) of the Income Tax Act so as to enable it to recover the tax demand on 20th December 2008 itself. 15. The issue before this Court is that whether the entire amount frozen in London and transferred to India is the case property or alleged proceeds of the crime and may be liable for confiscation in case the petitioner s are convicted and thus cannot be utilized for fulfilling the tax demands due against the petitioners. 16. Learned Senior Counsel for the petitioners contends that despite the CRL.M.C. 1372 2021 investigation pending since 2006 no cognizance of the offence has been taken much less framing of any charge against the petitioner even for the offences punishable under Section 420 120 B IPC. The CBI had filed the closure report and only on the directions of the learned Special Judge CBI further investigation was carried out and charge sheet for offences punishable under Section 420 120 B IPC has been filed on which also no cognizance has been taken as the learned Special Judge has directed further investigation which order has been challenged by the CBI itself according to which investigation is complete. It is contended that even though this Court will not go into the merits of the allegations against the petitioners however it is necessary to point out that prima facie no offence of cheating is made out against TPE and the petitioners as the tender was awarded to the TPE after calling for the bids and the TPE s bids were L 1 hence accepted. Thus there can be no element of cheating in an open tender. Further the allegations of cheating are against TPE and it is alleged that the petitioners are the conspirators however no accounts of TPE have been frozen and ultimately if both are convicted entire recovery will not be made from the petitioners alone. In case the petitioners do not deposit the amount before the Settlement Commissioner the petitioners liability towards the tax will be very high and in case in future the petitioners are discharged or acquitted the serious loss caused to the petitioners cannot be compensated. It is further contended that even as per this charge sheet the entire amount received which was frozen and received in India lying deposited in the name of learned Special Judge at SBI Tis Hazari is not the amount transferred by TPE in relation to this transaction only. Even as per the CBI there was one more transaction between TPE and the petitioners. Therefore the amount CRL.M.C. 1372 2021 which does not relate to the impugned transaction alongwith the interest accrued thereon be directed to be released to the income tax authorities and in respect of the further amount of tax liability the petitioner is willing to furnish an affidavit that in case the petitioners are convicted and the amount liable to confiscation the same will be deposited by the petitioners. 17. Hon‟ble Supreme Court in the decision reported as7 SCC 685 State of Maharashtra Vs. Tapas D.Neogy dealing with the case property and affirming the decision of the Madras High Court in Bharath Overseas Bank Vs. Minu Publication 1988 Madras Law Weekly106 held as under: “9. In Bharath Overseas Bank v. Minu Publication 106] a learned Single Judge of the Madras High Court considered the same question and came to the conclusion that the expression "property" would include the money in the bank account of the accused and there cannot be any fetter on the powers of the police officer in issuing prohibitory orders from operating the bank account of the accused when the police officer reaches the conclusion that the amount in the Bank is the outcome of commission of offence by the accused. The Court considered the fact as to how in modern days commission of white collar crimes and bank frauds are very much on the increase and banking facilities have been extended to the remotest rural areas and therefore the expression "property" may not be interpreted in a manner so as to exclude the money in a bank which in turn would have the effect of placing legal hurdles in the process of investigation into the crimes. According to the learned Judge such literal interpretation of the expression "property" could not have been the intent of the framers of the Criminal Procedure Code. In para 11 of the said judgment the learned Judge referred to the object behind investing the police with powers of seizure. It will be appropriate to extract the same in extenso: It would now be useful to refer to the object behind investing the police with powers of seizure. Seizure CRL.M.C. 1372 2021 and production in court of any property including those regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence or any other property will have a twofold effect. Production of the above property may be necessary as evidence of the commission of the crime. Seizure may also have to be necessary in order to preserve the property for the purpose of enabling the court to pass suitable orders under Section 452 of the Criminal Procedure Code at the conclusion of the trial. This order would include destruction of the property confiscation of the property or delivery of the property to any person claiming to be entitled to possession thereto. It cannot be contended that the concept of restitution of property to the victim of a crime is totally alien to the Criminal Procedure Code. No doubt primary object of prosecution is punitive. However Criminal Procedure Code does contain several provisions which seek to reimburse or compensate victims of crime or bring about restoration of property or its restitution. As Section 452 Cr.PC itself indicates one of the modes of disposing of property at the conclusion of the trial is ordering their return to the person entitled to possession thereto. Even interim custody of property under Sections 451 and 457 Cr.PC recognizes the rights of the person entitled properties. An innocent purchaser for value is sought to be reimbursed by Section 453 C.rPC. Restoration of immovable property under certain circumstances is dealt with under Section 456 Cr.PC. Even monetary compensation to victims of crime or any bona fide purchaser of property is provided for under Section 357 Cr.PC wherein when a court while convicting the accused imposes fine the whole or any part of the fine if recovered may be ordered to be paid as compensation to any the possession of CRL.M.C. 1372 2021 person for any loss or injury caused by the offence or to any bona fide purchaser of any property after the property is restored to the possession of the person entitled thereto. This twofold object of investing the police with the powers of seizure have to be borne in mind while settling this legal issue." 10. This judgment of the learned Single Judge of the Madras High Court was followed in a later decision in the case of Bharat Overseas Bank Ltd. v. Prema Ramalingam 353] wherein the learned Judge agreeing with Padmini Jesudurai J. in Bharat Overseas Bank case106] came to hold that money in a bank account is "property" within the meaning of Section 102 of the Criminal Procedure Code which could be seized by a prohibiting order. In the aforesaid case the learned Judge has also noticed the fact that the judgment of Padmini Jesudurai J. in Bharat Overseas Bank 106] was upheld by the Division Bench subsequently. 11. In the case of Gurcharan Singh v. State of Punjab 1978) 80 Punj LR 514a Division Bench of the Punjab & Haryana High Court differing with the view taken by the Allahabad High Court in Textile Traders came to hold that the bank account would be property" and as such would be capable of being seized under Section 102 of the Code of Criminal Procedure. 12. Having considered the divergent views taken by different High Courts with regard to the power of seizure under Section 102 of the Code of Criminal Procedure and whether the bank account can be held to be "property" within the meaning of the said Section 102(1) we see no justification to give any narrow interpretation to the provisions of the Criminal Procedure Code. It is well known that corruption in public offices has become so rampant that it has become difficult to cope up with the same. Then again the time consumed by the courts in concluding the trials is another factor which should be borne in mind in interpreting the provisions of Section 102 of the Criminal Procedure Code and the underlying object engrafted therein CRL.M.C. 1372 2021 inasmuch as if there can be no order of seizure of the bank account of the accused then the entire money deposited in a bank which is ultimately held in the trial to be the outcome of the illegal gratification could be withdrawn by the accused and the courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the accused as a public officer. We are therefore persuaded to take the view that the bank account of the accused or any of his relations is property" within the meaning of Section 102 of the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into. The contrary view expressed by the Karnataka Gauhati and Allahabad High Courts does not represent the correct law. It may also be seen that under the Prevention of Corruption Act 1988 in the matter of imposition of fine under sub section of Section 13 the legislatures have provided that the courts in fixing the amount of fine shall take into consideration the amount or the value of the property which the accused person has obtained by committing the offence or where the conviction is for an offence referred to in clause of sub sectionof Section 13 the pecuniary resources or property for which the accused person is unable to account satisfactorily. The interpretation given by us in respect of the power of seizure under Section 102 of the Criminal Procedure Code is in accordance with the intention of the legislature engrafted in Section 16 of the Prevention of Corruption Act referred to above. In the aforesaid premises we have no hesitation to come to the conclusion that the High Court of Bombay committed error in holding that the police officer could not have seized the bank account or could not have issued any direction to the bank officer prohibiting the account of the accused from being operated upon. Though we have laid down the law but so far as the present case is concerned the order impugned has already been given effect to and the accused has been operating his account and so we do not interfere with the 18. As per the status report filed by the CBI the amounts transferred by CRL.M.C. 1372 2021 TPE to RAPL in the NatWest Bank London account in relation to the impugned transaction are mentioned in entries 2 and 3 above totalling to a sum of USD 2 15 71 843.90. However the amount which was frozen and received in India is beyond the amount in relation to impugned transaction with TPE. The amount received in excess of the amount received from TPE by RAPL qua the impugned transaction cannot be prima facie termed as case property or the proceeds of the crime liable to be confiscated or for in case the petitioners are charged and convicted. Consequently the learned Special Judge is directed to retain the amount received in lieu of the frozen amount of USD 2 15 71 843.90 alongwith the interest accrued thereon from the date of receipt till date and transfer the balance amount alongwith the interest accrued thereon received in the account at SBI Tees Hazari to the income tax department. Petition is accordingly disposed of. MUKTA GUPTA SEPTEMBER 02 2021 akb CRL.M.C. 1372 2021

One cannot be blamed for the delay in taking decision by the Appellate Committee: High Court of Uttarakhand.

Where petitioner had filed an objection against the tentative select list well within time, therefore, the delay, if any, in taking a decision on the said objection is not attributable to the petitioner. A single Judge bench comprising Hon’ble Justice Manoj Kumar Tiwari, in the matter of Smt. Poonam Devi Vs. State of Uttarakhand &amp; others (Writ Petition (S/S) No. 680 of 2020), dealt with a matter where the petitioner filed a writ petition. In the present case, District Programme Officer, Child Welfare, Haridwar issued an advertisement on 26.11.2018, whereby applications were invited from eligible persons for appointment as Anganwadi Karyakatri. In the advertisement, there was a condition mentioned, that the condition should be a permanent resident of the concerned Village/Ward, where the appointment would be made. The petitioner applied against a vacancy in Ward No. 51, Mohall Ghosiyan, Dheerwali, Jawalapur, District Haridwar, as she was a permanent resident of the said Ward. Also, the petitioner being a widow was entitled to a preference for appointment. The Child Development Officer, Haridwar prepared a tentative select list whereby objections were invited in respect of the names of selected candidates. To this petitioner filed an objection stating that Km. Sajida Ansari was not a permanent resident of Ward No. 51, Mohalla Dheerwali, Ghosiyan-5, therefore, she is not eligible for an appointment. Further, it was found that the permanent residence certificate showing her to be a permanent resident of Mohalla Ghosiyan, was cancelled by the Sub-Divisional Magistrate. Also, the Appellate Committee had disposed of the petitioner’s objection. But a perusal of the order indicated that the appellate Committee had taken cognizance passed by Sub-Divisional Magistrate, Haridwar, whereby the petitioner’s permanent resident certificate was cancelled. The Appellate Committee declined the petitioner’s claim on the ground that more than 6 months had passed from the date of selection and thereby the selection process stood cancelled. and it was also stated that later a new advertisement would be issued for the post in question.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL ON THE 2ND DAY OF AUGUST 2021 HON’BLE SHRI JUSTICE MANOJ KUMAR TIWARI Writ PetitionNo. 6820 BETWEEN: Smt. Poonam Devi ...Petitioner By Mr. Himanshu Pal Advocate) State of Uttarakhand & others. ....Respondents By Mr. N.S. Pundir Deputy Advocate General for the State of JUDGMENT Heard learned counsel for the parties. District Programme Officer Child Welfare Haridwar issued an advertisement on 26.11.2018 whereby applications were from eligible persons for appointment as Anganwadi Karyakatri. One of the conditions mentioned in the advertisement was that a candidate should be a permanent resident of the concerned Village Ward in which appointment was to be made. According to the petitioner she applied against a vacancy in Ward No. 51 Mohall Ghosiyan Dheerwali Jawalapur District Haridwar as she is a permanent resident of the said Ward. It is further her case that she being a widow is entitled for preference in appointment. the petitioner Child Development Officer Haridwar prepared a tentative select list on 10.01.2019 whereby objections were in respect of the names of selected candidates. One Km. Sajida Ansari D o late Abdul Kadeer was shown to be selected against the post in question. Pursuant to the said tentative select list petitioner filed an objection stating that Km. Sajida Ansari is not a permanent resident of Ward No. 51 Mohalla Dheerwali Ghosiyan 5 therefore she is not eligible for appointment. It transpires that the permanent resident certificate issued in favour of the selected candidate Ms. Sajida Ansari) showing her to be permanent resident of Mohalla Ghosiyan was cancelled by the Sub Divisional Magistrate Haridwar vide order dated 19.02.2020. The Appellate Committee has disposed of petitioner’s objection vide order dated 30.05.2020 which is impugned in the writ petition. A perusal of the order dated 30.05.2020 indicates that the Appellate Committee has taken cognizance of the order dated 19.02.2020 passed by Sub Divisional Magistrate Haridwar whereby permanent resident certificate issued in favour of Ms. Sajida Ansari was cancelled however the Appellate Committee has appointment on the post of Anganwadi Karyakatri on the ground that more than six months have elapsed from the date of selection and has provided that the earlier selection process stands cancelled and a new advertisement shall be issued for the post in question. The order passed by the Appellate Committee is unsustainable in the eyes of law for the simple reason that petitioner had filed objection against the tentative select list well within time therefore the delay if any in taking decision on the said objection is not attributable to the petitioner. In other words petitioner cannot be blamed for the delay in taking decision by the Appellate Committee therefore she could not have been denied the right to be considered for appointment merely because the period of more than six months has expired after the selection. After cancellation of the permanent resident certificate of Ms. Sajida Ansari she could not have been appointed as Anganwadi Karyakatri therefore petitioner had a right to be considered against the post in question. In such view of the matter the impugned order dated 30.05.2020 passed by Appellate Authority is quashed and the Writ petition is allowed. Respondents are directed to consider claim of the petitioner for appointment alongwith other eligible candidates as per the criteria laid down in the Government Policy as early as possible but not later than six weeks from the date of production of certified copy of this order.

Facility to join hearings virtually during a pandemic must be provided: Delhi High Court

Not providing a facility to join virtually would be contrary to the spirit of holding hearings during the current pandemic. The Authority ought to make it feasible for advocates and representatives to appear virtually before them. This was held by Hon’ble Justice Prathiba M. Singh in the case of Sharat Das and Associates vs. Rameshwar Singh and Ors. [W.P.(C) 8932/2021] on the 24th of August, 2021 before the Hon’ble High Court of Delhi at New Delhi. The brief facts of the case are, as per the summons issued on 25th November, 2020, the matter was listed on 7th December, 2020 at 11:00 A.M. before the concerned Authority. An e-mail was written to the Authority on 3rd December, 2020 by the Management, wherein the reasons for not appearing physically were stated, and a link was sought for joining for a virtual hearing. However, despite this e-mail having been sent, the Authority proceeded against the Petitioner/Management ex parte on 7th December, 2020, and thereafter, proceeded to pass the impugned order on 1st February 2021. This is the second round of litigation between the parties. In both rounds of litigation, the Petitioner/Management was proceeded against ex parte and the order was passed by the Controlling Authority under The Payment of Gratuity Act, 1972. The present petition has been filed challenging the impugned order dated 1st February, 2021 and the recovery certificate dated 10th March 2021 issued against the same. The counsel for the petitioner submitted that during the pandemic, the lawyer or the representative of the Petitioner/Management ought to have been permitted to join virtually and physical appearance could not have been mandated by the Authority. It was also submitted that the e-mail clearly shows that the reasons for not appearing physically is two-fold: first, that Mr. Sharat C. Das, the Director of the Petitioner/Company, is a senior citizen who wanted to avoid appearing physically due to the Covid-19 pandemic, and secondly, the advocate also ought to be permitted to appear virtually. To support his argument, the counsel relied on the judgement in V.M. Singh vs Madan Lal Mangotra &amp; Ors, CM (M) 586/2020, wherein it was held that, “In view the advisories issued by the High Court, petitioner cannot be asked to appear physically unless the advisory is modified by the High Court, however, recently the High Court has issued a fresh advisory that in case parties do not appear even through virtual mode even after being intimated, the Trial Court is free to proceed in accordance with law.” Accordingly, he submits that the order passed against the Petitioner/Management ex parte is not tenable.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 24th August 2021 W.P.(C) 8932 2021 and CM APPLs. 27789 90 2021 SHARAT DAS AND ASSOCIATES ..... Petitioner RAMESHWAR SINGH & ORS. ..... Respondents JUSTICE PRATHIBA M. SINGH Through: Mr. Sandeep Sharma Advocate. Through: None. Prathiba M. Singh J.(Oral) This hearing has been done through video conferencing. The present petition has been filed challenging the impugned order dated 1st February 2021 and the recovery certificate dated 10th March 2021 issued against the same. Vide the said impugned order a sum of Rs. 8 04 808 has been awarded along with 10% simple interest as gratuity amount to the Respondent No.1 Workman. This is the second round of litigation between the parties. In both rounds of litigation the Petitioner Management was proceeded against ex parte and the order was passed by the Controlling Authority under The Payment of Gratuity Act 1972. 4. Mr. Sandeep Sharma ld. Counsel for the Petitioner submits that as per the summons issued on 25th November 2020 the matter was listed on 7th December 2020 at 11:00 A.M. before the concerned Authority. An e mail was written to the Authority on 3rd December 2020 by the Management wherein the reasons for not appearing physically were stated and a link was sought for joining for a virtual hearing. However despite this e mail having W.P.(C) 8932 2021 been sent the Authority proceeded against the Petitioner Management ex parte on 7th December 2020 and thereafter proceeded to pass the impugned order on 1st February 2021. 5. Mr. Sandeep Sharma ld. Counsel for the Petitioner further submits that during the pandemic the lawyer or the representative of the Petitioner Management ought to have been permitted to join virtually and physical appearance could not have been mandated by the Authority. Accordingly he the order Petitioner Management ex parte is not tenable. In the morning when the matter was called Mr. Sandeep Sharma ld. Counsel for the Petitioner was asked to contact the Respondent No.1 Workman or his Counsel. Ld. Counsel submits that a message was sent to the work. However none appears on behalf of the Workman. An advance copy of this petition has already been served by e mail to the Respondent This Court has considered the e mail dated 3rd December 2020 and and the said email is on record. the same is extracted below: “ From: Bhumit Solanki Solankibhumit2009@gmail.com Subject:Rameshwar Singh vs M s Sharatdas and Date:labdics.delhi@gmail.com labjlc2.declhi@nic.in CC:sdapl85@gmail.com dassharat@gmail.com Sir There are two matters pending adjudication before this forum titled as Rameshwar Singh vs M s Sharatdas and Associates 8932 2021 S&E SD 447 2016 5835.That both the matters are listed on 07.12.2020 for further arguments. That the summons have been received but due to the ongoing pandemic it is not in the health interest of Mr. Sharat Das who is a senior citizen to attend the proceedings. However I am the advocate appearing on behalf of M s Sharat Das and Associates in both the matters and have a letter of authority in my name on record. That as per the latest Judgment of the hon’ble High Court of Delhi passed in VM Singh vs Madan Lal the Hon’ble High Court has ruled that an Advocate cannot be asked to appear physically before court amid COVID 19 pandemic. That the order was passed on 24.11.2020 by Hon’ble Mr. Justice Sanjeev Sachdeva. That in the light of the above circumstances I hereby request you to kindly accommodate us and send me the link to virtual hearing before this forum as the physical presence of Mr. Sharat Das or me is not possible due to the ongoing pandemic. Kindly do the needful.” A perusal of the said e mail clearly shows that the reasons for not appearing physically is two fold: first that Mr. Sharat C. Das the Director of the Petitioner Company is a senior citizen who wanted to avoid appearing physically due to the Covid 19 pandemic and secondly the advocate also ought to be permitted to appear virtually in view of the Order dated 24th November 2020 in CM 586 2020 titled V.M. Singh vs Madan Lal Mangotra & Ors. by the ld. Single Judge of this Court. The said order reads as under: “1. The hearing was conducted through video 2 . Petitioner is aggrieved by order dated 26.10.2020 whereby the Trial Court has directed the listing of the matter for physical hearing and the applications filed by learned Counsel for the petitioner for W.P.(C) 8932 2021 hearing through virtual mode has been dismissed on the ground that as lengthy arguments may be advanced by the parties hearing through video conferencing is not possible. 3. Learned Counsel for the petitioner submits that the family members of the Counsel for the petitioner are vulnerable senior citizens and the present pandemic situation it would not be possible for the Counsel to physically appear before the Trial Court and thus the applications were filed for taking up their case for virtual hearing. 4. Issue notice. Notice is accepted by learned Counsel appearing for respondent No.1. 5. Learned Counsel appearing for respondent No. 1 submits that respondent No. 1 is the plaintiff No. 1 in the suit and is the main contesting party. He submits that presently it is only an application for restoration of the suit which is pending. He further submits that petitioner has not been even appearing virtually before the Trial Court. 6 . Learned Counsel for the petitioner undertakes to appear before the Trial Court through virtual mode as and when the matter is listed. 7 . In view the advisories issued by the High Court petitioner cannot be asked to appear physically unless the advisory is modified by the High Court however recently the High Court has issued a fresh advisory that in case parties do not appear even through virtual mode even after being intimated the Trial Court is free to proceed in accordance with 8 . Furthermore since only an application for restoration of the suit is pending consideration before the Trial Court the Trial Court is directed to take up the suit for consideration through virtual mode and dispose of the application in accordance with law. 9 . Keeping in view the fact that the suit has been W.P.(C) 8932 2021 pending for several years Trial Court is directed to expedite the proceedings. 10. The petition is accordingly disposed of in the above terms. 11. Copy of the Order be uploaded on the High Court website and be also forwarded to learned Counsels through email.” This Court is of the opinion that the said e mail having been sent to the concerned Authority there was an obligation on the Authority to either make available the virtual link to the Petitioner Management or inform the Petitioner Management that the said request is not acceded to in order to enable the Petitioner Management to make alternate arrangements. In any event not providing a facility to join virtually would be contrary to the spirit of holding hearings during the current pandemic. The Authority ought to make it feasible for advocates and representatives to appear virtually before them. Hence the impugned order proceeding ex parte against the Petitioner Management is clearly not sustainable. 11. The written statement of the Petitioner Management is already on record. The matter would now be adjudicated on merits after hearing the Management. However considering the fact that this is the second time the Management was proceeded against ex parte subject to costs of Rs. 50 000 being awarded to the Workman the impugned order is set aside. In view thereof the recovery certificate dated 10th March 2021 shall not be given effect to. 12. The Controlling Authority under The Payment of Gratuity Act 1972 shall now hear both the parties and after taking the written statement filed by the Petitioner into consideration shall proceed in accordance with law. 13. The entire dispute shall be adjudicated within a period of 3 months W.P.(C) 8932 2021 from the first date before the Controlling Authority. The parties are directed to appear before the Controlling Authority on 13th September 2021. The costs imposed shall be paid on or before the said date by the Management to 14. The present petition along with all pending applications is disposed PRATHIBA M. SINGH the Workman. of in these terms. AUGUST 24 2021 Aman AD W.P.(C) 8932 2021

Bail granted in case of voluntarily causing grievous hurt: Patna high court

In the present case, the petitioner apprehends arrest u/s- 342/323/324/326/307/338/504/506/34 of the IPC. A single bench comprising of Justice Ahsanuddin Amanullah adjudicating the matter of  Pradeep Kumar v. The State of Bihar (CRIMINAL MISCELLANEOUS No. 10313 of 2021 ) dealt with an issue of whether to grant bail to the Petitioner or not. The Petitioner is accused of assault on the informant and his father by an iron rod. The Petitioner submitted that there was a dispute in relation to the construction of speed breaker on the road which was opposed by the informant and his wife, who is a Ward Councillor, due to which there was verbal spat and co-accused Satyam Kumar is said to have been armed with sword and the petitioner with the iron rod and it is alleged that the father of the informant was assaulted by them and also that co-accused Ujjwal Kumar attacked the informant with a knife in the stomach. It was submitted that at best the allegation as per the FIR itself is an assault by iron rod on the father of the informant, which is not corroborated by the injury report. Also, the Petitioner submitted that according to the report of the CT scan, there was no evidence of any fracture of bone and the Brain parenchyma is in a normal state. Since there is a lack of corroboration the allegation is obviously false. It can said after looking upon the above-stated contentions that the Petitioner had no criminal ancedent. Also, there is a political rivalry between the families, and the informant and his father have been convicted and sentenced to three years rigorous imprisonment in which the informant also was an accused, but got benefit under the Juvenile Justice Act. The Respondents alleged that the Petitioner assaulted the informant by iron rod but it was not controverted that CT scan of the brain of the father of the informant does not show sign of any injury.

Date : 10 06 2021 IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 103121 Arising Out of PS. Case No. 250 Year 2020 Thana MAHARAJGANJ District Siwan Pradeep Kumar Male Aged about 46 years son of Late Vishwanath Prasad Resident of Purani Bazar Maharajganj P.S. Maharajganj District Siwan The State of Bihar ... Petitioner s ... Opposite Party s Appearance : For the Petitioner s For the State For the Informant CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Mr. Ajay Kumar Thakur Advocate Ms. Asha Kumari Mr. Arbind Kumar Advocate 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. Ajay Kumar Thakur learned counsel for the petitioner Ms. Asha Kumari learned Additional Public Prosecutor for the State and Mr. Arbind Kumar learned counsel for the informant. 4. The petitioner apprehends arrest in connection with Maharajganj PS Case No. 250 of 2020 dated 18.09.2020 instituted under Sections 342 323 324 326 307 338 504 506 34 of the Indian Penal Code. 5. The allegation against the petitioner and five others Patna High Court CR. MISC. No. 103121 dt.10 06 2021 2 4 is of assault on the informant and his father and specifically against the petitioner is that he had iron rod in his hand and had assaulted the father of the informant. 6. Learned counsel for the petitioner submitted that the genesis of the incident is that there was dispute with regard to construction of speed breaker on the road which was opposed by the informant and his wife who is a Ward Councillor due to which there was verbal spat and co accused Satyam Kumar is said to have been armed with sword and the petitioner with the iron rod and it is alleged that the father of the informant was assaulted by them and also that co accused Ujjwal Kumar attacked the informant with knife in the stomach. It was submitted that at best the allegation as per the FIR itself is assault by iron rod on the father of the informant which is not corroborated by the injury report. Learned counsel drew the attention of the Court to Annexre 3 which is injury report of the father of the informant and is also a report after CT Scan which also does not show any fracture of bone and the brain parenchyma is normal in morphology and density. It was submitted that the said allegation of assault by the petitioner is thus not corroborated and obviously false. Learned counsel submitted that the petitioner has no criminal antecedent and Patna High Court CR. MISC. No. 103121 dt.10 06 2021 3 4 there is political rivalry between the families and the informant and his father have been convicted and sentenced to three years rigorous imprisonment in which the informant also was an accused but got benefit under the Juvenile Justice Act. It was submitted that though the occurrence is said to have taken place on 11.09.2020 but the fardbeyan was recorded only on 14.09.2020 without any explanation for the delay. 7. Learned APP submitted that there is allegation of assault by iron rod against the petitioner. However it was not controverted that CT scan of the brain of the father of the informant does not show sign of any injury. 8. Learned counsel for the informant submitted that the petitioner was also party to the assault. However he also could not controvert the fact that the allegation of assault by iron rod on the father of the informant is not corroborated by injury report and CT scan of brain of the father of the informant. 9. 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 Patna High Court CR. MISC. No. 103121 dt.10 06 2021 4 4 the concerned Judicial Magistrate 1st Class Siwan Maharajganj PS Case No. 2520 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 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 police prosecution. Any violation of the terms and conditions of the bonds or the undertaking or non cooperation 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 application stands disposed off aforementioned terms. Anjani

Rape accused not eligible for bail on grounds of being government employee : Karnataka High Court

An accused charged of an offence of as serious nature as rape was denied bail on the grounds of him being a government employee was upheld by High Court of Karnataka through the learned bench led by HONOURABLE MR. JUSTICE HP SANDESH  in the case of Srinivas Murthy H.N v. State of Karnataka (Criminal Petition No.-9831 of 2021). Brief facts of the case are that in September 2021, accused took the victim to a house to eat and assaulted her sexually over there having knowledge she was engaged to someone else. After committing the crime, he promised to marry her and threatened to kill her if he disclosed the incident to family. The accused, Assistant Executive Engineer at Karnataka Electricity Corporation Limited, who was arrested and was charged with offenses punishable under sections 376 , 420 and 506 of the IPC.Presently, the accused has approached this court for grant of bail. The counsel for petitioner contended that the accused was working as Assistant Administrative Engineer at KTPCL and this case was brought against him. Moreover, the complaint was made one and a half months after the alleged incident. It was claimed that the victim was 23 years old and 10 months old and there was no coercion. The counsel for respondent contended that present application for bail should be rejected because, in her statement under section 164 of CrPC before the Magistrate, she said that she had been subjected to involuntary sexual activity and was threatened with her life. The medical report also included evidence of sexual activity. Both employees of the house confirmed what they saw as the accused brought the woman to her room. The Karnataka High Court held that being a government employee cannot be a reason to bail a person accused of a serious crime such as rape. The court rejected the bail request on the grounds that the victim’s statement revealed that she had been subjected to sexual acts against her will after he threatened her with her life. Moreover, the medical evidence revealed that there was a tear in the hymen and that the doctor who examined the victim also stated that he had been subjected to sexual intercourse.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY 2022 THE HON BLE MR. JUSTICE H.P. SANDESH CRIMINAL PETITION NO.9831 2021 BETWEEN: SRINIVAS MURTHY H.N. S O. N.B. NAGENDRAPPA AGED ABOUT 25 YEARS R AT NO.106 BEHIND JAMES SCHOOL 5TH CROSS MARIYAPPA LAYOUT AVALHALL BENGALURU 560 049. AND ALSO AT VEDIGERI VILLAGE KASABA HOBLI CHANNAGIRI TALUK DAVANAGERE DISTRICT. … PETITIONER BY SRI KEMPARAJU ADVOCATE) STATE OF KARNATAKA BY KUMARASWAMY LAYOUT POLICE STATION BENGALURU DISTRICT REP. BY ITS STATE PUBLIC PROSECUTOR HIGH COURT COMPLEX BENGALURU 560 001. BY SRI KRISHNA KUMAR HCGP) … RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.288 2021 OF KUMARASWAMY LAYOUT POLICE STATION BENGALURU CITY FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 376 420 506 OF IPC PENDING ON THE FILE OF THE HON’BLE LIII ADDITIONAL CITY CIVIL AND SESSIONS SPECIAL JUDGE AT BENGALURU. THIS CRIMINAL PETITION COMING ON FOR ORDERS ‘THROUGH VIDEO CONFERENCE’ THIS DAY THE COURT MADE THE FOLLOWING: O R D E R This petition is filed under Section 439 of Cr.P.C. seeking regular bail of the petitioner accused No.1 in Crime No.288 2021 of Kumaraswamy Layout Police Station Subramanyapura Sub Division Bengaluru City for the offence punishable under Sections 376 420 and 506 of IPC. 2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent State. The factual matrix of the case is that this petitioner on 14.09.2021 took the victim girl to Athithi Comforts Room No.101 to have food and subjected her for sexual act as against her wish even though her marriage was already engaged with some other person. After committing the said act he promised that he would marry her and not to disclose the same to anyone and if she disclose the same to family members he will take away her life. Learned counsel appearing for the petitioner would vehemently contend that the petitioner is working as Assistant Executive Engineer in KPTCL and false case has been registered against him since he is a Government employee and there is a delay of 1½ months in lodging the complaint. The alleged incident has taken place on 14.09.2021 and complaint was lodged on 03.11.2021 and no prima facie case has been made out against the petitioner and he has been in custody from 14.11.2021. The counsel would also submit that the victim is running 23 years 10 months and there was no force and this petitioner is aged about 25 years and if he is continued in custody it affects his carrier. Hence he may be enlarged on Learned High Court Government Pleader appearing for the respondent State would submit that in 164 statement the victim girl has categorically stated before the learned Magistrate that she was subjected to sexual act forcibly and also caused life threat. He would also submit that CWs.5 and 6 who are employees of Home stay confirm petitioner bringing the victim girl to room. Apart from that the medical evidence is also clear that she was subjected to sexual act and subjecting her for sexual act is not ruled out and hence there is a prima facie case against the petitioner. Having heard the respective counsel and also on perusal of the material available on record particularly 164 statement of the victim girl it is seen that she has stated that she was subjected to sexual act against her wish and also caused life threat. She has also stated that her marriage was already engaged with other bridegroom and hence after committing the sexual Court he promised that he would marry and also caused life threat. Apart from that medical evidence is also clear that hymen was tear and opinion of the doctor is also clear that she was subjected to sexual act and material collected not rules out subjecting her for sexual act. When such being the material available on record the fact that petitioner is a Government employee is not a ground to enlarge him on bail when serious offence of rape is alleged against the petitioner. Prima facie the medical evidence as well as the 164 statement disclose that the fact that victim was subjected to sexual act. In view of the discussions made above I pass the The Criminal Petition is rejected. Sd JUDGE

An adult woman can reside with whoever she likes, irrespective of parent’s wishes: High Court of Jammu and Kashmir

Upon turning 18 years of age, a woman is considered an adult and can legally enter wedlock. Furthermore an adult woman can choose to reside wherever she pleases irrespective of whether her family members approve of the same or not. The judgement passed by a single-member bench of the High Court of Jammu and Kashmir at Srinagar consisting of Justice Ali Magrey adjudged upon the case of Gulzar Ahmad Wani v Union Territory of Jammu and Kashmir [WP(Crl) No.15/2021  Crl M. No.154/2021] on 4th June 2021 which dealt with this issue. Gulzar Ahmad Wani, the petitioner claimed that his daughter Soniyah Gulzar is a minor who has been kidnapped by the accused Mohammad Amir Bhat and is kept at his house at Arigatnu, Kulgam. Soniyah Gulzar claims to be a major of 22 years and that she legally entered into wedlock with the accused and wilfully resides at her matrimonial home. As a result of the order issued on 1st June 2021, Secretary Legal Services Authority conducted and submitted a medical examination report of Soniya Gulzar and came to the conclusion that she is a minimum of 19 years, making her a major under Indian law. Both the counsels’ attempted to stretch the scope of the matter to what age a Muslim attains majority and can contract to marriage. However these arguments were discarded as being baseless and lacking merit by the court.

Serial No. 201 Suppl. List WP(Crl) No.15 2021 Crl M.No.154 2021 CRM(M) No.17 2021 Crl M. No.71 2021 IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR UT of J&K & ors. Gulzar Ahmad Wani Through: Mr. Parvaiz Nazir Advocate Through: Mir Suhail AAG for 1 to 5 Mr. Sheikh Hilal Advocate for 6 & 7. …Petitioners Mohd Amir Bhat & anr. Through: Mr. Sheikh Hilal Advocate UT of J&K & ors. Through: Mir Suhail AAG. …Respondent(s) Hon’ble Mr. Justice Ali Mohammad Magrey Judge WP(Crl) No.15 2021: Pursuant to order dated 01.06.2021 Secretary Legal Services Authority has submitted the medical examination report of Sonia Gulzar D o Gulzar Ahmad Wani R o Aarath District Budgam which is taken on record. Heard learned counsel for the parties and considered the matter. to order dated 31.05.2021 the Medical Board on examination of the girl Soniyah Gulzar has furnished its opinion report about her age. The opinion so furnished by the Board is taken on record. The Medical Board has opined the age of the girl to be about 19 years. In that view of the matter the claim of the petitioner i.e. the father of the girl that she is a minor girl is rendered doubtful and cannot be relied upon especially so when the girl herself not only refuted the claim of her father that she is a minor girl but in her statement before this Court categorically deposed that she is presently more than 22 years of age. It would be apt to mention here that pursuant to this Court’s order dated 01.03.2021 the Investigating Officer of FIR no.470 2020 under Sections 366 A 109 IPC of Police Station Budgam registered at the instance of the girl’s father got the statement of the girl under Section 164 Cr. P. C. recorded before the concerned Magistrate. An English translation thereof was placed on record. The translated version of the statement so made by the girl placed before the Court is reproduced below: “In the year 2020 it has been on three occasions that I left my home and went with the accused namely Mohammad Amir Bhat. My father off and on used to physically assaultme. He even chopped cut my hair. He hit my back and due to the same even today I feel suffer from back pain. I used to reside with the accused at his residence located at Kulgam. On 20th December 2020 my father came to the residence of the accused at Kulgam and for the purpose of Nikah he signed the acceptance deed memo and left me at the residence of the Sarpanch of Arigatnu. Subsequently on 25th December 2020 my father telephonically conveyed to the Sarpanch that instead of him he may read out my Nikah sermons. On 30th December my father alongwith his maternal brother and police came to the house of my in laws and physically assaulted me due to which I started bleeding and was taken to the hospital No.15 2021 alongwith its connected Crl M.No.154 2021 is dismissed as being unfounded and without any merit. It may be mentioned here that with a view to protecting the girl Soniyah Gulzar pursuant to directions of the Court she was directed to be lodged in Shelter Home Sheikhpora Budgam run by the Social Welfare Department Government of the UT of J&K. On 19.05.2021 on enquiry from the Court she expressed that she may be handed over to her husband namely Mohammad Amir Bhat as according to her she had contracted marriage with him out of her own free will and without any coercion. Her statement is recorded in para 03 of the order that date. Now that the petition has been dismissed and the girl is established not to be minor coupled with the fact that she states to have married to Mohammad Amir Bhat and had been residing with him and was in fact taken into custody from his residential home the girl deserves to be let free and handed over to her husband Mohammad Amir Bhat. The SHO Police Station Budgam and the Incharge of Shelter Home Sheikhpora Budgam are accordingly directed to release the girl and ensure that her custody is handed over to her husband against proper receipt. It shall be the responsibility of the SHO Police Station Budgam to ensure that the couple is safely escorted upto their residence at Arigatnu Tehsil Pahloo Kulgam. 10. All interim order shall abide by the orders passed hereinabove. CRM(M) No.17 2021: In light of clear findings recorded by the Court hereinabove the Court feels it unnecessary to record a finding as to the legality or otherwise of the FIR in the instant petition. The above findings will naturally set the course of the investigation in the FIR and lead the IO to a just conclusion therein. Leaving the appropriate course to be adopted to the decision of the IO in light of the above this petition is disposed of alongwith the accompanying CrlM No.71 2021. Interim direction if any passed and subsisting shall merge in this final order passed by the Court. Registry to place copy of the order on each file. Judge Mohammad Yasin Dar Whether the Judgment is reportable Yes No. Yes No. Whether the Judgment is speaking

If the property was in the name of owner and the said property was sold with the respondent/plaintiff acting as a broker, the liability to pay brokerage, if any, would be that of the owner: Delhi High Court

It is an undisputed fact that the owner himself will be liable to pay brokerage, irrespective of any other circumstance. The Delhi High Court, in the recent matter of Archana Sethi &amp; Anr. v. Sachin Verma [CM (M) 156/2021 &amp; CM No.7295/2021 (for stay)], held the above. The proceedings of the pertinent case were held on 8th September 2021 which was presided by a single judge bench, consisting of, Justice Amit Bansal. The facts of the case are as follows. The plaint from which the present petition arises was filed to recover brokerage amount of Rs.3,30,000, due to the respondent/plaintiff in respect of sale of the property owned by the petitioner. The respondent/plaintiff was the broker of the deal and was liable to pay 1% of the sales consideration towards brokerage charges. However, the property was sold in the name of petitioners.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 8th September 2021. CM(M) 156 2021 & CM No.7295 2021ARCHANA SETHI & ANR. ..... Petitioners Through: Mr. Yati Sharma Advocate. SACHIN VERMA ..... Respondent Through: Mr. Athar Alam & Ms. Sumbul Athar Advocates. HON BLE MR. JUSTICE AMIT BANSAL VIA VIDEO CONFERENCING] AMIT BANSAL J.The present petition under Article 227 of the Constitution of India impugns the order dated 7th January 2020 passed by the District & Sessions Judge South East Saket Court New Delhi in CS No.880 2018 whereby the application filed by the respondent under Order I Rule 10(2) of the Civil Procedure Coderead with Order XVIII Rule 17 of the CPC has been allowed and petitioner no.2 Sh. Raj Kumar has been impleaded as defendant no.2 in the suit. Learned counsel appearing on behalf of the petitioners has submitted that it has been noted in the order dated 4th June 2018 passed by the Trial Court that liability to pay the suit amount was only of petitioner no.1 and that petitioner no.2 was impleaded only because he was the father of CM(M) 156 2021 petitioner no.1 petitioner no.2 was deleted as a party on 4th June 2018 and it was only on 23rd September 2019 that the application seeking impleadment of petitioner no.2 as a defendant was filed by respondent plaintiff after a delay of more than a year and that too after the respondent plaintiff’s evidence was completed no specific averments have been made in respect of the petitioner no.2 property that was sold and in respect of which brokerage is claimed in the suit by the respondent plaintiff is in the name of the petitioner no.1 and that petitioner no.2 in his capacity as the father of petitioner no.1 was only assisting the petitioner no.1 in the process the name of the petitioner no.2 has already been mentioned in the list of witnesses filed on behalf of petitioner no.1 and he may be examined as a witness in the case for the role he played in the transaction and a person sought to be joined in the array of parties must be one whose presence is necessary to the suit and merely because petitioner no.2 may have relevant evidence to give on some of the questions involved in the matter he is not a necessary party for adjudication of the suit. In this regard reliance is placed on the judgment of the Supreme Court in Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Ors. 1992SCC 524. The counsel appearing on advance notice on behalf of respondent plaintiff relies upon paragraph 15 of the impugned order to state that the petitioner no.2 has rightly been impleaded as a party in the suit. He draws attention to paragraph 16 of the impugned order to state that in the evidence of the respondent plaintiff it has come to notice that he had no dealings whatsoever with the petitioner no.1. CM(M) 156 2021 I have heard the counsels for the parties. The plaint from which the present petition arises was filed to recover brokerage amount of Rs.3 30 000 due to the respondent plaintiff in respect of sale of the property owned by the petitioner no.1. It the case of respondent plaintiff in the suit that he was the broker in respect of the said deal and hence was liable to be paid 1% of the sale consideration towards brokerage charges. It is an admitted position in the plaint that the property which was sold was solely in the name of petitioner no.1. If the property was in the name of petitioner no.1 and the said property was sold with the respondent plaintiff acting as a broker the liability to pay brokerage if any would be that of the petitioner no.1. Merely because the petitioner no.2 being the father of the petitioner no.1 assisted in the whole process of the sale of the property would not mean that the liability to pay brokerage charges would be fastened on him. There is nothing pleaded in the plaint which shows that there would be any liability of petitioner no.2 to pay the brokerage charges. Even if the services were provided by the respondent plaintiff to the petitioner no.2 the beneficiary of the said services was petitioner no.1. In any event the application filed by the respondent plaintiff also invokes Order XVIII Rule 17 of the CPC that provides for recalling any person as a witness. There is no dispute between the parties about petitioner no.2 appearing as a witness in the case. The name of the petitioner no.2 has already been given in the list of witnesses by the petitioner no.1 and the respondent plaintiff would have the right to cross examine petitioner no.2 when he appears as a witness. In the event petitioner no.2 does not appear as CM(M) 156 2021 a witness on behalf of the petitioner no.1 the respondent would have a right to summon the petitioner no.2 to appear as a witness. Therefore no useful purpose would be served in impleading petitioner no.2 as a defendant the suit. In the event respondent plaintiff succeeds in his suit he would be liable to recover the amounts due from petitioner no.1 who was the beneficiary and received the sale proceeds from the sale of the said property. In view of the above the petition is allowed and the impugned order dated 7th January 2020 is set aside. CM No.7295 2021 is disposed of. AMIT BANSAL J SEPTEMBER 8 2021 CM(M) 156 2021

Teacher appointed as per qualification is to receive salary if passed TET examination: Patna High Court

Those intending to be appointed as teachers in Class VI to VIII must minimum complete Paper I, whilst those wishing to be appointed in Class I to V must minimum pass Paper II. Any candidate who passes both Papers I and II will be eligible to apply for teaching positions in all classes is upheld by the High Court of Patna through the learned bench led by HONOURABLE MR. JUSTICE ASHUTOSH KUMAR in the case of Chandani Kumari Vs. The State of Bihar (Civil Writ Jurisdiction Case No.9786 of 2019) Brief facts of the case are that the petitioner has requested the Court to order the respondents to accept her certificate of Teacher Eligibility Test (in short the TET) as valid and genuine because it was issued by the Bihar School Examination Board, Patna (in short the BSEB) after the petitioner passed the TET Examination, 2011 successfully, and also to order the respondents to pay the arrears of salary owed to her since November, 2018 – to date because it has not been paid. The petitioner stands accused of obtaining employment on the basis of a forged and fabricated TET certificate. The basis to this case is that it was discovered in one of the Public Interest Litigation (PIL) cases that unqualified individuals with forged degrees had obtained employment. An investigation is conducted on the Court’s directions with the goal of locating and identifying teachers who had obtained such positions using fake academic qualifications. As a result, an F.I.R. was filed, in which the petitioner was also named as one of the defendants. The complaint against the petitioner is restricted to the fact that she is stated to have passed Paper-II of the TET test, despite the fact that she was proved to have failed Paper-I. It has been argued on behalf of the petitioner that as she failed Paper-I, it was assumed that her passing in Paper-II was questionable, implying that the certificate was forged; for the reason that anyone who has failed the first paper will not be permitted to appear in the second paper, and even if he or she is permitted to appear in the second paper, the result will not be published unless both papers have been cleared. The petitioner’s counsel has drawn this Court’s attention to the entire framework of the TET examination, which states that persons intending to be appointed as teachers in Class VI to VIII must pass only Paper I, whereas those who want to be appointed in Class I to V must pass both Papers. This entails that if the petitioner passes Paper-II, she is qualified to be appointed as a teacher in classes VI to VIII. During the course of the investigation, even when the F.I.R. was lodged no concrete evidence could be gathered against the petitioner to suggest or substantiate the petitioner’s charge of having obtained employment on a forged degree. In reviewing the investigation records, it became apparent that it was discovered that two of the officers signed the reports mechanically without verifying the TET examination scheme. An inquiry was established after the petitioner and filed a complaint with the Director General of Police about the erroneous investigation and before the inquiry committee, the negligence on the part of police officials were acknowledged as to signing such reports mechanically without verifying the accuracy of the allegation or the petitioner’s defence. Through way of counter affidavit, Mr. Anjani Kumar, the learned Senior Advocate representing the Vigilance Department, has informed the Court that the Vigilance Officer’s conduct was found to be absolutely unpardonable, and that he was subjected to a departmental proceeding as well as a punishment of one black mark. Further, the BSEB also admits that the petitioner is indicated to have passed the Paper-II examination in their database, making her qualified to be recruited as a teacher. Thus, in the current litigation, i.e., the petitioner’s salary being held in dilemma since November 2018 under the pretext of an ongoing inquiry into her, the concerned respondent shall investigate the matter and issue necessary orders, including resuming the petitioner’s salary, which has been suspended since November 2018 only due to the ongoing investigation, and the decision of the concerned respondent shall be subject to the final outcome of the case investigation. If the petitioner is found guilty, the necessary punishments will be imposed. Additionally, the police have also been ordered to complete the inquiry as soon as possible. Click here to read the judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.97819 Chandani Kumari female aged about 33 years Daughter of Sri Shambhu Jha Resident of Village Jhakhara P.O. Kadarchak P.S. Shambhuganj District Banka ... Petitioner s The State of Bihar through the Principal Secretary Education Department Government of Bihar Patna The Principal Secretary Education Department Government of Bihar Bihar Patna The Director Primary Education Education Department Government of The District Magistrate cum Collector Munger District Munger The District Education Officer Munger District Munger The District Programme Officer Establishment Munger District Munger The Block Development Officer cum Secretary Block Teacher Employment Unit Tarapur Block Tarapur District Munger The Block Education Officer Tarapur District Munger The Bihar School Examination Board Patna through its Secretary 10. The Chairman the Bihar School Examination Board Patna 11. The Secretary the Bihar School Examination Board Patna 12. The Vigilance Department through the Additional Chief Secretary Department of Vigilance Patna Bihar ... Respondent s For the Petitioner s Mr. Prince Kumar Mishra Adv For the State Mr. Ran Vijay Prasad Singh AC to GA XII For the Vigilance Mr. Anjani Kumar Sr. Adv Ms. Archana Palkar Khopde Adv Mr. Arvind Kumar Adv Patna High Court CWJC No.97819 dt.03 01 2022 For the BSEB Mr. Girijesh Kumar Adv CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR Date : 03 01 2022 Heard Mr. Prince Kumar Mishra the learned Advocate for the petitioner and Mr. Ran Vijay Prasad Singh the learned AC to GA XII for the State. The Vigilance Department is represented by Mr. Anjani Kumar the learned Senior Advocate assisted by Ms. Archana Palkar Khopde and Mr. Arvind Kumar the learned Advocates. Mr. Girijesh Kumar the learned Advocate has appeared on behalf of the Bihar School Examination Board 2. The petitioner has approached this Court for a direction to the respondents to consider her certificate of Teacher Eligibility Test as valid and genuine as the same has been issued by the Bihar School Examination Board Patna after the petitioner had passed the TET Examination 2011 successfully and further for a direction to the respondents to pay the arrears of the salary since November 2018 till date as the same is not being paid to her on the pretext of Patna High Court CWJC No.97819 dt.03 01 2022 an investigation pending against her 3. The charge against the petitioner is of having obtained employment on the basis of forged and fabricated TET certificate 4. The background to this litigation is that in one of the Public Interest Litigationcases it was found that undeserving persons with forged degrees had obtained employment. Under the orders of this Court an enquiry was instituted with the mandate to find out and identify such teachers who had used the forged academic qualification degrees for obtaining such appointment. Consequently an F.I.R. was lodged in which the petitioner has also been arraigned as one of the accused person 5. So far as the charge against the petitioner is concerned it is limited to the extent that she is said to have passed in Paper II of the TET examination even when she was shown to have failed in Paper I 6. It has been argued on behalf of the petitioner that because of her having failed in Paper I it was presumed that her passing in Paper II was anomalous and it Patna High Court CWJC No.97819 dt.03 01 2022 hinted at the certificate being forged for the reason that anybody who has failed in the first paper would not be permitted to appear in the second paper or even if he she is permitted to appear in the second paper the result would not be published unless both the papers are cleared 7. In order to dispel this confusion the counsel for the petitioner has drawn the attention of this Court to the entire scheme of the TET examination which inter alia provides that for persons desirous of being appointed as teachers for Class VI to VIII they are required to pass in Paper I only whereas aspirants for being appointed as teachers in Class I to V would be required to pass in Paper II. Any candidate passing in Paper I and Paper II both would have the eligibility to apply for teachers for all the classes. This necessarily implies that if the petitioner has passed in Paper II she is eligible to be appointed as teachers for Class VI to VIII 8. During the course of the enquiry conducted by the local police even when the F.I.R. was lodged by the Vigilance no definite material could be collected against the Patna High Court CWJC No.97819 dt.03 01 2022 petitioner to indicate or substantiate the charge of the petitioners having obtained employment on a forged degree However while going through the investigation reports it came to light that two of the officers one from the Vigilance Department and the other from the General Police Department were reckless in making investigations and had signed the reports in a mechanical manner without even verifying the scheme of the examination of the TET 9. On a complaint made by the petitioner and others before the Director General of Police with respect to such faulty investigation an enquiry was set up and before such enquiry committee the aforesaid two erring police officials admitted of having signed such reports mechanically without verifying the correctness of the allegation or of the defense of the petitioner 10. At that stage the Court found it expedient to issue notice the Vigilance Department to inform the Court about the action taken against such irresponsible investigators for their incompetence and mindlessness had caused immense damage to the petitioner and her likes Patna High Court CWJC No.97819 dt.03 01 2022 11. Mr. Anjani Kumar the learned Senior Advocate representing the Vigilance Department has intimated this Court by way of counter affidavit that the conduct of the Vigilance Officer was found to be absolutely unpardonable and therefore he was subjected to a departmental proceeding and has also been given a punishment of one black mark 12. The fact of the matter now is that the petitioner has passed in Paper II examination of the TET 13. The BSEB in its report has also admitted that in their data base the petitioner is shown to have passed in Paper II examination thereby making her eligible for being appointed as a teacher. The petitioner after her appointment had been serving in the school where she was 14. The present litigation has come up only on the stoppage of the salary of the petitioner since November 2018 till date on the pretext of the investigation against her being pending 15. In this fact scenario therefore this Court Patna High Court CWJC No.97819 dt.03 01 2022 deems it appropriate to direct that in case a representation is filed by the petitioner before the Director Primary Education Department of Education Govt. of Bihar Patna along with a copy of this order within a period of three weeks the concerned respondent shall look into the matter and shall pass necessary orders accordingly resuming the salary of the petitioner which has been stopped since November 2018 only on the ground of pendency of the investigating process The aforesaid decision of the concerned respondent shall but be subject to the final outcome of the investigation of the case. In case the petitioner is found to be guilty necessary consequences would follow. The police is also directed to conclude the investigation at the earliest With the aforesaid observation direction the writ petition stands disposed off. Ashutosh Kumar J Praveen II

High court should give appropriate guidelines for withdrawal: Supreme Court

“The High Court ought to have put some conditions for giving security for withdrawal, so that there may not be any difficulty for realising back the amount, in the event the first appeal of the appellant is allowed by the High Court.”, this remarkable stand was forwarded by Hon’ble Supreme Court, in a three judge bench chaired by Hon’ble Justice Mr Ashok Bhushan, Mr. R.Subhash Reddy &amp; Mr. M.R.Shah in the Civil appeal case of Nayara Energy Limited V. The State of Gujarat &amp; ors., [C.A. No.  4102­-4103 of 2020]. Feeling aggrieved and dissatisfied with the impugned order dated 18.08.2020 passed by the High Court of Gujarat in Civil Application (For Stay) No. 1 of 2020 in First Appeal No. 1543 of 2020 and the subsequent order dated 30.09.2020 passed in Misc. Civil Application (for modification of order) No. 2 of 2020 in 1st appeal no. 1543 of 2020, permitting the original claimants to withdraw 50% of the 80% of the amount, as awarded by the learned Reference Court, without furnishing any security, the appellant herein – the appellant/applicant before the High Court has preferred the present appeals. Feeling aggrieved and dissatisfied with the judgment and award passed by the learned Reference Court enhancing the amount of compensation for the land acquired, the appellant herein has preferred the first appeal before the High Court being First Appeal No. 1543 of 2020. In the said appeal, the appellant filed Civil Application (for Stay) no. 1 of 2020 praying to stay the judgment and order passed by the learned Reference Court. By the impugned order dated 18.08.2020, the High Court has stayed the execution, implementation and operation of the judgment and award passed by the learned Reference Court, on condition that the appellant shall deposit 80% of the awarded amount along with proportionate cost. That thereafter the appellant herein filed an application to modify the aforesaid order pointing out that in case of relied upon judgment, relied upon by the learned Reference Court, an appal has been preferred and there is an unconditional stay granted by the High Court – Coordinate Bench, and therefore, it was prayed to modify the aforesaid interim order. By order dated 30.09.2020, the learned Single Judge of the High Court has dismissed the said application. Hence, the present appeals have been preferred by the original applicant – acquiring body. After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble SC observed that, “if the original claimants are permitted to withdraw 25% of the enhanced amount of compensation, as awarded by the learned Reference Court, together with proportionate interest and cost, without furnishing any security and the balance 75% of the enhanced amount of compensation, together with proportionate cost and interest, as awarded by the learned Reference Court is permitted to be invested in a fixed deposit in any nationalized bank with cumulative interest, it will meet the end of justice and take care of the interest of both the parties.”

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 4102 4103 OF 2020 Arising from S.L.P.(Civil) Nos.14215 14216 2020 Nayara Energy Limited The State of Gujarat and others JUDGMENT M.R. SHAH J Feeling aggrieved and dissatisfied with the impugned order dated 18.08.2020 passed by the High Court of Gujarat in Civil ApplicationNo. 20 in First Appeal No. 15420 and the subsequent order dated 30.09.2020 passed in Misc. Civil ApplicationNo. 20 in Signature Not Verified Digitally signed by First Appeal No. 15420 permitting the original claimants to withdraw 50% of the 80% of the amount as awarded by the learned Reference Court without furnishing any security the appellant herein the appellant applicant before the High Court has preferred the present appeals Feeling aggrieved and dissatisfied with the judgment and award passed by the learned Reference Court enhancing the amount of compensation for the land acquired the appellant herein has preferred the first appeal before the High Court being First Appeal No. 15420. In the said appeal the appellant filed Civil Applicationno. 20 praying to stay the judgment and order passed by the learned Reference Court. By the impugned order dated 18.08.2020 the High Court has stayed the execution implementation and operation of the judgment and award passed by the learned Reference Court on condition that the appellant shall deposit 80% of the awarded amount along with proportionate cost and interest before the learned Reference Court. The High Court has further passed an order that upon deposit of the aforesaid amount the learned Reference Court to deposit 50% out of the said deposited amount together with proportionate cost and interest in the cumulative fixed deposit in any nationalised bank initially for a period of five years in the names of the original claimants which shall be continued to be renewed from time to time till the final disposal of the main first appeal. The High Court has further passed an order that balance 50% of the 80% of the awarded amount together with proportionate cost and interest is permitted to be withdrawn by the original claimants. The High Court has further passed an order that original claimants shall be entitled to withdraw 50% of the accrued principal interest on the fixed deposit. That thereafter the appellant herein filed an application to modify the aforesaid order pointing out that in case of relied upon judgment relied upon by the learned Reference Court an appal has been preferred and there is an unconditional stay granted by the High Court Coordinate Bench and therefore it was prayed to modify the aforesaid interim order. By order dated 30.09.2020 the learned Single Judge of the High Court has dismissed the said application. Hence the present appeals have been preferred by the original applicant acquiring body Shri P.S. Narasimha learned Senior Advocate appearing on behalf of the appellant has stated at the Bar that instead of 80 of the awarded amount as directed by the High Court by the first impugned interim order the appellant is ready and willing to deposit the entire 100% of the enhanced awarded amount together with interest and cost granted by the Reference Court as a condition for stay of the award. It is submitted that however the claimants may not be permitted to withdraw the amount without furnishing any security or solvency certificate to the satisfaction of the learned Reference Court or the Executing 4.1 It is further submitted that if the claimants are permitted to withdraw the amount of compensation as awarded by the learned Reference Court without furnishing any security in that case and ultimately if the appellant succeeds before the High Court it will be very difficult for the appellant to recover any amount from the original claimants. It is submitted that therefore while permitting withdrawal the High Court ought to have put some conditions for giving security for withdrawal so that there may not be any difficulty for realising back the amount in the event the first appeal of the appellant is allowed by the High Court Learned counsel appearing on behalf of the original claimants has submitted that the acquisition is of the year 1996 and after a period of approximately 17 years the learned Reference Court enhanced the amount of compensation. It is submitted that the original claimants are agriculturists and their lands have been acquired and that they are not in a position to furnish any security. It is submitted that the High Court has not committed any error in passing the impugned interim order and permitting the original claimants to withdraw 50% of the 80% of the enhanced amount of compensation awarded by the Reference Having heard learned counsel for the respective parties at length and the fact that the lands of the original claimants have been acquired in the year 1996 and the learned Reference Court has enhanced the amount of compensation after a period of approximately 17 years and the original claimants are not in a position to furnish any security while permitting the original claimants to withdraw the amount of enhanced compensation awarded by the learned Reference Court to strike the balance and to consider the interest of both the parties and recording the statement of Shri P.S. Narasimha learned Senior Advocate appearing on behalf of the appellant that the appellant is ready and willing to deposit the entire enhanced amount of compensation awarded by the learned Reference Court together with interest and cost we are of the opinion that if the original claimants are permitted to withdraw 25% of the enhanced amount of compensation as awarded by the learned Reference Court together with proportionate interest and cost without furnishing any security and the balance 75% of the enhanced amount of compensation together with proportionate cost and interest as awarded by the learned Reference Court is permitted to be invested in a fixed deposit in any nationalised bank with cumulative interest it will meet the end of justice and take care of the interest of both the parties In view of the above and for the reasons stated above the impugned order passed by the High Court dated 18.08.2020 passed in Civil ApplicationNo. 20 in First Appeal No. 1543 2020 is modified as under the execution operation and implementation of the judgment and award passed by the learned Reference Court impugned before the High Court in First Appeal No. 1543 of 2020 is stayed on condition that the appellant shall deposit entire 100% of the awarded amount along with interest and cost before the learned Reference Court within a period of four weeks from today upon deposit of the aforesaid amount the learned Reference Court is directed to deposit 75% of the said deposited amount together with proportionate cost and interest in the cumulative fixed deposit in any nationalised bank initially for a period of five years in the name of the Court which shall be continued to be renewed from time to time till the final disposal of the main first appeal. The fixed deposit receipt may be kept in the custody of the learned Reference Court the balance 25% of the deposited amount together with proportionate cost and interest is permitted to be withdrawn by the original claimants without furnishing any security which shall be paid by the learned Reference Court by way of account payee cheque on proper identification and verification and the original claimants shall be informed by the learned Reference Court itself the amount which they are to be paid. The withdrawal of the aforesaid amount shall be subject to the ultimate outcome of the main first appeal The present appeals are allowed to the aforesaid extent. No R. SUBHASH REDDY NEW DELHI DECEMBER 18 2020 M.R. SHAH]

When prosecution is unable to prove its case beyond all reasonable doubts and court is unable to find any cogent reasons the accused should be acquitted-High Court of Punjab and Haryana.

When prosecution is unable to prove its case beyond all reasonable doubts and court is unable to find any cogent reasons the accused should be acquitted-High Court of Punjab and Haryana. In certain cases it can be seen that the accused are arrested and put up in trial without any proper investigation, even during trial the prosecution fails to prove the case beyond any reasonable doubt and Court is unable to find in cogent reasons for accepting that the crime is committed by the accused in such cases the accused should be acquitted of the charges. The landmark judgement passed by the single bench of HON’BLE JUSTICE ANITA CHAUDHRY in RAM PAL SINGH VS STATE OF PUNJAB (CRA-S-463-SB-2010 (O&amp;M)) dealt with the issue mentioned above. In this case the petitioner was accused of case under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and was convicted for 10 years of Rigorous Imprisonment and 1 lakh fine. Aggrieved from the conviction and sentence awarded to him, the appellant is before this Court. Learned counsel for the appellant has assailed the conviction of the appellant primarily on the ground that the only independent witness was not examined and the identity of the accused hadn’t been established and there was no evidence to support the case of the prosecution that the official witness had identified them and no identification parade was held. It was urged that there was delay in deposit of samples and the CFSL form was not filled in as required under the rules and there was no evidence to show that any of the accused owned the scooter. It was also submitted that no evidence had been produced to show that any raid was conducted on the same day on the house of the accused. The learned counsel for the state submitted that it was for the defense counsel to put the questions regarding the identity but they did not put any question to them and there was no reason to discard the statement of the official witnesses and the statement of police officials are reliable and no animosity was established against them and the conviction based on their statements cannot be faulted with. It was urged that the independent witness had been won-over by the accused and therefore, was given up and that would not be fatal for the prosecution case. The Hon’ble court analyzed the facts of the present case and the arguments of both the parties and opined that “In this present case no one was arrested on the spot. No recovery was effected from any accused. There is no evidence that the police made any effort to conduct a raid at the house of the accused. This is a serious flaw in the prosecution case. The prosecution also failed to produce the registration certificate of the scooter to show that it was owned by one of the accused.. The prosecution had been unable to prove its case beyond all reasonable doubts and the trial Court had not given cogent reasons for accepting the statement of official witness. The findings recorded by the Court below are set aside. The appeal is accepted. The accused is acquitted of the charges.”

CRA S 463 SB 20101 IN THE HIGH COURT OF PUNJAB AND HARYANA AT Date of Decision: November 11 2017 CRA S 463 SB 2010Ram Pal Singh State of Punjab ...Respondent CORAM: HON BLE MRS. JUSTICE ANITA CHAUDHRY Present: Ms. Sumanjit Kaur Advocate for the appellant Mr. H.S. Grewal Addl. A.G. Punjab ANITA CHAUDHRY J This appeal is against the conviction recorded by the Special Court Bathinda under Section 15 of the Narcotic Drugs and Psychotropic Substances Act 1985 The case of the prosecution as detailed in the judgment is that a police party headed by ASI Sikander Singh was on general checking. They had taken along with them Gurmail Singh resident of village Jeeda. When the patrol party reached village Mehma Sarja they found two persons sitting on gunny bags whereas another person was standing close by. On seeing the police party who were on cycles all three persons fled on scooter bearing registration no. PB 03 E 9168 which was parked at a distance of 2530 Karams. One of the Constable namely HC Sarwan Singh identified two of those persons one of CRA S 463 SB 20102 whom was Pritam Singh resident of Goniana and Rampal resident of Lakhisar. It was claimed that Sarwan Singh HC knew both of them The third person who was standing close by was wearing a kurta payjama and was in the age group of 30 35 years having medium height. The police suspected that the gunny bags contained some contraband. A message was sent for sending a Gazetted Officer Sukhdev Singh DSP reached the spot after some time. A photographer was also called and in their presence ASI Sikander Singh opened the bags and found the bags containing poppy husk. 100 Grams of poppy husk was taken out as sample. Photographs were taken and the samples of the gunny bags were sealed using seal BS. The seal after use was handed over to the independent witness Gurmail Singh. Recovery memo was prepared and Ruka was sent to the police station. The necessary formalities were then completed and the sample and the poppy husk was produced before the Magistrate on the next day. Accused Pritam Singh was arrested the next day. Ram Pal Singhcould not be arrested and was declared proclaimed offender. He was tried subsequently after his arrest in 2007 At the trial the prosecution examined the Investigating Officer ASI Sikander Singh Sarwan Singh and DSP Sukhdev Singh Constable Gurmail Singh. The prosecution had given up Gurmail Singh the independent witness as won over by the accused The report of the Chemical Examiner Ex. P 14 was tendered in evidence CRA S 463 SB 20103 In the statement recorded under Section 313 Cr.P.C. the accused pleaded false implication and abjured the trial Vide judgment and order of sentence dated 23.12.2009 the Special Court convicted and sentenced the appellant to 10 years rigorous imprisonment along with a fine of Rs.1 lac. In default of payment of fine he was to further undergo rigorous imprisonment for a Feeling aggrieved from the conviction and sentence awarded to him the appellant is before this Court The learned counsel for the appellant has assailed the conviction of the appellant primarily on the ground that the only independent witness was not examined and the identity of the accused had not been established and there was no evidence to support the case of the prosecution that H.C. Sarwan Singh had identified them and no identification parade was held. It was urged that there was delay in deposit of samples and the CFSL form was not filled in as required under the rules and there was no evidence to show that any of the accused owned the scooter. It was also submitted that no evidence had been produced to show that any raid was conducted on the same day on the house of the accused Supporting the judgment the counsel representing the State submits that it was for the defence counsel to put the questions regarding the identity but they did not put any question to them and there was no reason to discard the statement of the official witnesses CRA S 463 SB 20104 and the statement of police officials are reliable and no animosity was established against them and the conviction based on their statements cannot be faulted with. It was urged that the independent witness had been won over by the accused and therefore was given up and that would not be fatal for the prosecution case It is settled that the burden of proof in serious crimes is stricter and the Courts need to be more cautious when the independent witness is not examined. It is true that non examination of independent witness is not fatal to the case but rule of prudence demands that there should be some corroboration through independent source to the statement of the official witnesses as the testimony of official witnesses is considered at par with the testimony of non official witnesses but in the case in hand the evidence of the official witnesses cannot be taken as that of sterling quality for the reasons given hereinafter. No one was arrested on the spot. No recovery was effected from any accused. The prosecution case is that they found two people sitting on the gunny bags. A third person was seen standing close by The scooter was parked at a distance of 25 30 karams. The police party was on cycles and spotted those persons who fled on seeing them The prosecution case is that one of the constable knew two of the persons and identified them and they also noted the registration number of the vehicle. The police party was not armed but they gave a chase but the accused managed to flee CRA S 463 SB 20105 There is no evidence that the police made any effort to conduct a raid at the house of the accused. This is a serious flaw in the prosecution case. The only independent witness Gurmail Singh was given up. He was the person to whom the seal was handed over. The prosecution also failed to produce the registration certificate of the scooter to show that it was owned by one of the accused. Interestingly Sarwan Singh made a casual statement in the examination in chief when he said that he knew the accused and had identified them. He was expected to disclose how he knew them. The accused were of different villages. He did not say that any case had been registered against either of them earlier. Such kind of statement could not have been accepted by the trial Court. The prosecution had been unable to prove its case beyond all reasonable doubts and the trial Court had not given cogent reasons for accepting the statement of H.C Sarwan Singh. The findings recorded by the Court below are set aside The appeal is accepted. The accused is acquitted of the charges November 11 2017 (ANITA CHAUDHRY JUDGE

Persons dealing in Drugs and illegal Trafficking Leave a Deadly Impact on Society: Supreme Court of India

Persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims who are vulnerable, cause deleterious effects and deadly impact on the society. This honorable judgement was passed by Supreme Court of India in the case of Gurdev Singh vs. State of Punjab [CRIMINAL APPEAL NO. 375 OF 2021] by The Hon’ble Dr justice D.Y. Chandrachud and Hon’ble justice Mr. Shah. The appeal was filed by appellant feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Punjab and Haryana at Chandigarh by which the High Court had dismissed the said appeal, original accused and had confirmed the judgment and order of conviction and sentence passed by the Learned Special Court. Learned Counsel appeared on behalf of the appellant had vehemently submitted that the minimum punishment/sentence which was provided in Section 21 of the Act is 10 years. It was submitted that therefore, by imposing the punishment higher than the minimum term of imprisonment, the Court had taken into consideration the factors mentioned in Section 32B of the Act and had assigned the reasons while imposing the punishment higher than the minimum term of imprisonment. It was submitted that the appellant was the first-time convict and was a poor person and was only a carrier. The main supplier of the narcotic substance had not been apprehended/arrested and the appellant-accused being a carrier, sentence higher than the minimum provided under the Act was not warranted. It was submitted that factors contained in clauses (a) to (f) of Section 32B had not been considered by the Learned Special Court while imposing a sentence higher than the minimum sentence. The learned council referred the case of Rafiq Qureshi vs. Narcotic Control Bureau, Eastern Zonal Unit, (2019) 6 SCC 492, Soman vs. State of Kerala, (2013) 11 SCC 382 and State of Haryana vs. Asha Devi, (2015) 8 SCC 39. The court opinioned that, “it should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims who are vulnerable; it cause deleterious effects and deadly impact on the society; they are hazard to the society. The clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances shall lay to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years.”

REPORTABLE IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 375 OF 2021 STATE OF PUNJAB .. Respondent JUDGMENT M. R. Shah J Feeling aggrieved and dissatisfied with the impugned judgment and order dated 28.11.2019 passed by the High Court of Punjab and Haryana at Chandigarh in CRA DB No.3118 by which the High Court has dismissed the said appeal preferred by the appellant herein original accused and has confirmed the judgment and order of conviction and sentence passed by the Learned Special Court convicting the accused for the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act 1985and sentenced the accused to undergo 15 years R.I. and to pay a fine of Rs.2 Lakhs and in default of payment of fine to further undergo one year R.I. original accused has preferred the present appeal. At the outset it is required to be noted that vide earlier order dated 16.12.2020 this Court has refused to interfere with the conviction of the appellant for an offence punishable under Section 21 of the Act however has issued notice confined to the question of sentence Therefore in the present appeal the question of sentence of 15 years R.I. with fine of Rs.2 Lakhs and in default to undergo further one year R.I. only is required to be considered. Learned Counsel appearing on behalf of the appellant has vehemently submitted that the minimum punishment sentence which is provided in Section 21 of the Act is 10 years. It is submitted that as per Section 32B of the Act where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under the Act the Court may in addition to such factors as it may deem fit take into account the factors which are mentioned in Section 32B for imposing a punishment higher than the term of imprisonment or amount of fine. It is submitted that therefore by imposing the punishment higher than the minimum term of imprisonment i.e. in the present case 15 years R.I. the Court has to take into consideration the factors mentioned in Section 32B of the Act and has to assign the reasons while imposing the punishment higher than the minimum term of imprisonment. It is submitted that in the present case while imposing a punishment of 15 years R.I. which is admittedly higher than the minimum term of imprisonment of 10 years R.I. neither the Special Court nor the High Court have assigned any reasons taking into account the factors mentioned in Section 32B of the Act It is submitted that the appellant is the first time convict and is a poor person and was only a carrier. It is further submitted by Learned Counsel for the appellant accused that in the present case the main supplier of the narcotic substance has not been apprehended arrested and the appellant accused being a carrier sentence higher than the minimum provided under the Act is not warranted. It is submitted that factors contained in clauses to of Section 32B have not been considered by the Learned Special Court while imposing a sentence higher than the minimum sentence. 3.2 For the aforesaid some of the observations made by this Court in para 23 of the decision in the case of Rafiq Qureshi vs. Narcotic Control Bureau Eastern Zonal Unit 6 SCC 492 has been Learned Counsel appearing on behalf of the appellant original accused has further submitted that in the case of Rafiq Qureshi Supra) this Court has reduced the sentence of 16 years to 12 years in a case where the accused was found to be in possession of narcotic drugs which was much higher than the commercial quantity i.e. 609.6 gm as per the analysis report Learned Counsel appearing on behalf of the appellant accused has further submitted that this Hon’ble Court has time and again held that awarding of adequate sentence is a question of personal liberty protected by Article 21 of the Constitution of India and there is a requirement of giving due weightage to mitigating and aggravating circumstances. Reliance is placed on the decisions of this Court in the case of Soman vs. State of Kerala 11 SCC 382 and State of Haryana vs. Asha Devi 8 SCC 39. It is submitted that in the present case mitigating circumstances are thatappellant is a poor man and only bread winner of the family Trial Court found that the appellant should be dealt with leniently while considering the question of sentence appellant was merely a carrier and the main accused Malkit Singh was never arrested and in fact no fruitful efforts were made to arrest him the appellant is the first time convict under the Act and there is no pending case against the appellant under the Act and no special factors as stated in Section 32Btoare present in the facts and circumstances of the present case. It is submitted that against the above mitigating circumstances the aggravating circumstances areit is observed and held that the quantity of the narcotic substance recovered may be a relevant factor to impose punishment higher than the minimum and thus quantity of substance with which accused is charged is a relevant factor which can be taken into consideration while fixing quantum of punishment. It is further observed and held that a decision to impose a punishment higher than the minimum is not confined or limited to the factors as enumerated in clausestoof Section 32B and the Court’s discretion to consider such factors as it may deem fit is not taken away or tinkered. It is submitted that in the aforesaid case though it was found that the court has not adverted to the factors mentioned in clausestoof Section 32B of the Act considering the fact that quantity of manufactured drug being much much higher than the minimum commercial quantity this Court refused to interfere with the order passed by the Learned Special Court and the High Court imposing the sentence imprisonment higher than the minimum imprisonment mentioned in Section 21 of the Act. It is submitted that in that case on facts the accused was found to be a carrier and therefore this Court reduced the imprisonment from 16 years to 12 years R.I. It is submitted that in the present case the accused was found to be in possession of huge quantity of heroin i.e. 1 kg and was found to be selling narcotic substance drugs the sentence imprisonment imposed by the Learned Trial Court confirmed by the High Court of 15 years R.I. with fine of Rs.2 Lakhs is not required to be interfered with Heard the Learned Counsel for the respective parties at length As observed hereinabove in the present case the appellant original accused was found to be in possession of 1 kg heroin which is four times more than the minimum of commercial quantity. 250 gm and above of Narcotic substance drug is a commercial quantity as per the NDPS Act. The minimum sentence provided under Section 21 of the Act is 10 years R.I. So far as the commercial quantity is concerned it may be upto 20 years R.I. Therefore the minimum sentence for commercial quantity shall not be less than 10 years which may extend to 20 years with fine which shall not be less than Rs.1 lakh but which may extend to Rs.2 lakhs. Section 32B of the Act provides for factors to be taken into account for imposing higher than the minimum punishment. Section 32B of the Act reads as under “[32B. Factors to be taken into account for imposing higher than the minimum punishment.— Where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under this Act the court may in addition to such factors as it may deem fit take into account the following factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine namely:— a) the use or threat of use of violence or arms by the offender b) the fact that the offender holds a public office and that he has taken advantage of that office in committing the offence c) the fact that the minors are affected by the offence or the minors are used for the commission of an offence d) the fact that the offence is committed in an educational institution or social service facility or in the immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational sports and social activities e) the fact that the offender belongs to organised international or any other criminal group which is involved in the commission of the offence andtoof Section 32B. It is further observed and held that quantity of the substance with which accused is charged is a relevant factor which can be taken into consideration while fixing the quantum of punishment. In paragraph 15.1 to 16 and 18 it is observed and held as under: “15.1 The court may where minimum term of punishment is prescribed take into consideration such factors as it may deem fit for imposing a punishment higher than the minimum term of imprisonment or fine 15.2 In addition take into account the factors for imposing a punishment higher than the minimum as enumerated in clausetotohas to be not less than ten years which may extend to twenty years. But suppose the quantity of manufactured drug is 20 time of the commercial quantity it may be a relevant factor to impose punishment higher than minimum. Thus quantity of substance with which an accused is charged is a relevant factor which can be taken into consideration while fixing quantum of the punishment. Clausesas enumerated in Section 32B do not enumerate any factor regarding quantity of substance as a factor for determining the punishment. In the event the Court takes into consideration the magnitude of quantity with regard to which an accused is convicted the said factor is relevant factor and the Court cannot be said to have committed an error when taking into consideration any such factor higher than the minimum term of punishment is awarded. … … … 18. The specific words used in Section 32B that Court may in addition to such factors as it may deem fit clearly indicates that Courts discretion to take such factor as it may deem fit is not fettered by factors which are enumerated in clausestoof Section 6.1 Therefore quantity of substance would fall into “such factors as it may deem fit” and while exercising its discretion of imposing the sentence imprisonment higher than the minimum if the Court has taken into consideration such factor of larger higher quantity of substance it cannot be said that the Court has committed an error. The Court has a wide discretion to impose the sentence imprisonment ranging between 10 years to 20 years and while imposing such sentence imprisonment in addition the Court may also take into consideration other factors as enumerated in Section 32B to to the High Court has to only consider whether “such factor” is a relevant factor or not 6.2 Applying the aforesaid principles of law to the facts of the case on hand it is required to be considered whether in the facts and circumstances of the case the sentence of 15 years R.I. with fine of Rs.2 Lakhs imposed by the Learned Special Court and confirmed by the High Court require interference by this Court While considering the request made on behalf of the accused to award lesser punishment and to take lenient view while sentencing him the Special Court in fact has taken into consideration the relevant facts factors while not imposing the maximum punishment of 20 years R.I. and awarding the sentence of 15 years R.I. Therefore as such it cannot be said that the Special Court has not at all applied its mind while awarding the sentence. 6.3 Submission on behalf of the accused that the main supplier has not been apprehended arrested and the appellant is a carrier only cannot be a ground to interfere with the sentence imposed by the Learned Special Court confirmed by the High Court. In most of the cases the main supplier who may be from outside country may not be apprehended and or arrested. Once the accused is found to be in illegal possession of the narcotic substance drugs if in the circumstances so warranted can be awarded the sentence higher than the minimum prescribed provided under the Act In the present case the appellant accused was found to be in possession of 1 kg heroin and he sold it to the informant. Therefore he cannot be said to be a mere carrier. In given case even a carrier who is having the knowledge that he is carrying with him narcotic substance drugs and is found to be with huge commercial quantity of narcotic substance drugs can be awarded the sentence higher than the minimum sentence provided under the Act. In the present case as observed hereinabove the accused was found to be in possession of 1 kg heroin and the minimum commercial quantity is 250 gm. Therefore the accused was found to be in possession of 4 times higher than the minimum commercial quantity and therefore the sentence imposed by the Learned Special Court imposing the sentence of 15 years R.I. with fine of Rs.2 lakhs confirmed by the High Court is not required to be interfered with by this Court. It cannot be said that while imposing such punishment the Court has taken into consideration any irrelevant Now so far as the submission on behalf of the accused that awarding of adequate sentence is question of personal liberty protected by Article 21 of the Constitution of India and there is requirement of giving due weightage to the mitigating and aggravating circumstances and in the present case the mitigating circumstances in favour of the accused are more than the aggravating circumstances and therefore the punishment higher than the minimum provided under the Act is not justified and or warranted is concerned at the outset it is required to be noted that the appellant is held to be guilty for the offence under Section 21 of the Act and found to be in possession of 1 kg heroin which is four times more higher than the commercial quantity. At this stage the statement of objects and reasons for enactment of NDPS Act are required to be referred to. Before the NDPS Act 1965 was enacted the statutory control over narcotic drugs was exercised in India through number of Central and State enactments viz. — The Opium Act 1857 b) the Opium Act 1878 and The Dangerous Drugs Act 1930 However with the passage of time and developments in the field of illicit drug traffic and drug abuse at national and international level it was noticed and found thatThe scheme of penalties under the aforesaid ACTS was not sufficiently deterrent to meet the challenge of well organized gangs of smugglers The country has for the last few years been increasingly facing the problem of transit traffic of drugs coming mainly from the neighboring countries and destined mainly to Western countries During recent years new drugs of addiction which have come to be known as psychotropic substances have appeared on the scene and posed serious problems to national governments. Therefore with a view to overcome the aforestated deficiencies the NDPS Act 1985 came to be enacted. That thereafter to check the menace of dangerous drugs flooding the market Section 37 of the Act came to be amended and it has been provided that the accused of an offence under the Act shall not be released on bail during trial unless the mandatory conditions provided in Section 37 are While considering the submission on behalf of the accused on mitigating and aggravating circumstances and the request to take lenient view and not to impose the punishment higher than the minimum sentence provided under the Act it should be borne in mind that in a murder case the accused commits murder of one or two persons while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims who are vulnerable it cause deleterious effects and deadly impact on the society they are hazard to the society. Organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances shall lay to drug addiction among a sizeable section of the public particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore it has a deadly impact on the society as a whole. Therefore while awarding the sentence punishment in case of NDPS Act the interest of the society as a whole is also required to be taken in consideration. Therefore while striking balance between the mitigating and aggravating circumstances public interest impact on the society as a whole will always be tilt in favour of the suitable higher punishment. Therefore merely because the accused is a poor man and or a carrier and or is a sole bread earner cannot be such mitigating circumstances in favour of the accused while awarding the sentence punishment in the case of NDPS Act. Even otherwise in the present case the Special Court as observed hereinabove has taken into consideration the submission on behalf of the accused that he is a poor person that he is sole bread earner that it is his first offence while not imposing the maximum punishment of 20 years R.I and imposing the punishment of 15 years R.I. only In view of the above and for the reasons stated hereinabove there is no substance in the present appeal and the same deserves to be dismissed and is accordingly dismissed [Dr Dhananjaya Y Chandrachud [M R Shah New Delhi April 6 2021