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It is unfortunate how a piece of social welfare legislation intended to protect a voiceless section of society is sought to be circumvented by filing such frivolous petitions : Calcutta High Court

The entire object of filing such petition was to procrastinate and delay the recovery proceedings initiated by the respondent authorities. The Hon’ble High Court at Calcutta before The Hon’ble Mr. Justice Ravi Krishan Kapur held such an opinion in the matter of  Ontrack Systems Limited vs.  The Regional Provident Fund Commissioner-II, Employees’ Provident Fund Organisation & Ors [W.P.A.13339 of 2019]. The facts of the case are associated with the petitioner’s primary grievance which was directed against an order passed under section 8B of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1985. The petitioner also challenged the orders passed under section 7Q and 14B of the Act.  It was alleged that, by a notice dated 13 March, 2014, the petitioner establishment was directed to participate in a proceeding under Sections 7Q and 14B of the Act which pertained to defaults in making statutory payments by the establishment under the Act. It was alleged by the petitioner that, The respondent authorities have refused to consider the prayer of the petitioner establishment despite making several representations on the ground that the establishment was facing acute financial problems. Eventually, considering the defaults committed by the establishment, levied damages under Section 14B of the Act assessed at Rs 48,37,497/- and interest was also assessed under Section 7Q of the Act for an amount of Rs 18,88,529/-, the respondent authorities by an order dated 16 September 2014. Subsequently,  the establishment failed to make the payments towards their provident fund dues in terms of the aforesaid orders. Therefore, a certificate of recovery dated 6 May 2015 was issued against the establishment, by which the Enforcement Officer requested the establishment to submit diverse documents. On alleged grounds, the bankers of the establishment had declared the establishment to be a non performing asset and that the Income Tax Department had also attached all the bank accounts of the establishment in March 2014, from a representation dated 8 May 2015. Thereupon, on 9 June 2015, a payment notice was issued by the respondent authorities. Afterwards, another representation was made by the establishment on 3 August 2015 highlighting their poor financial condition. A show cause notice was issued on 14 August 2017, to the establishment demanding an explanation concerning why the directors of  the establishment should not be committed to civil imprisonment for failing to comply with the recovery certificate dated 6 May 2015. Eventually, the respondent authorities also issued an order of attachment under section 8B of the Act on 25 July 2018. The petitioner urged that the establishment was going through an acute financial crisis and were unable to even pay their operational expenses, on the background that the petitioner assails the consequential order of attachment issued under Section 8B of the Act. The respondent authorities on behalf of the establishment submitted, they had failed to consider the representations made by them and to take into account the financial hardship which the establishment was undergoing. It is contended that the establishment is a regular and habitual defaulter of the dues payable to the respondent authorities. It is further alleged that the establishment has chosen not to avail of the alternative statutory remedy provided under the Act. Considering the submissions made on behalf of the parties, the Hon’ble Court was of the view that a specific statutory appeal mechanism provided under the act wherein the establishment had deliberately chosen not to prefer any appeal challenging any of the previous orders passed by the respondent authorities. This was deliberated in order to avoid the mandate under section 70 of the Act and with the aim of circumventing the statutory obligations of the establishment to deposit an amount of 75% as precondition to the filing of any appeal. The Hon’ble Court found no grounds to seek any interference with the steps taken by the Respondent Provident fund authorities. The court also found that there had been no illegality nor irrationality nor procedural impropriety in the actions of the respondent authorities. Furthermore, there has been no ground urged by the petitioner which justified even consideration of the impugned actions of the respondent authorities. The entire object of filing such petition was to procrastinate and delay the recovery proceedings initiated by the respondent authorities. The Hon’ble Court also found it disturbing to note the indifferent attitude shown by the respondent authorities in recovering their dues from the establishment. However, there was no stay or any kind of restraint in such proceedings and the respondent authorities had not taken any step in the matter during the pendency of such proceedings. The Hon’ble Mr. Justice Ravi Krishan Kapur stated, “In view of the unmeritorious, misadventure and kite flying exercise undertaken on behalf of the petitioner to procrastinate the recovery proceedings, costs are assessed at Rs.5,00,000/- (Five lacs) payable to the West Bengal State Legal Services Authority, Kolkata towards the cause of welfare and treatment of acid attack victims within a period of four (4) weeks from date. Moreover, The Hon’ble Court directed The Advocate-on-Record on behalf of the respondent Provident Fund Authorities is directed to serve a copy of this order on the Member Secretary, State Legal Services Authority, West Bengal, who has been further directed to seek compliance thereof concerning the direction of costs. Thus, the matter was dismissed by the Hon’ble Court, directing the respondent authorities “to take all possible steps as expeditiously as possible for recovery of their dues from the establishment in accordance with law”. 

IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Present : Hon’ble Justice Amrita Sinha WPA No. 59721 The State of West Bengal & Ors WPA 92321 Md. Azfar Mondal The State of West Bengal & Ors For the writ petitioners Mr. Biswarup Biswas Adv Mr. Pulak Ranjan Mondal Adv Ms. Bandana Mondal Adv Mr. Subhrangsu Panda Adv Mr. Anil Kumar Gupta Adv For respondent nos. 11 & 12 : Mr. Monish Sen Adv Ms. Oisani Mukherjee Adv For respondent nos. 13 & 14 : For the State Mr. Debabrata Chatterjee Adv Mr. Simanta Kabir Adv Mr. Imtiaz Ahmed Adv Ms. Ghazala Firdaus Adv Mr. Shibasish Banerjee Adv Mr. Sk. Saidullah Adv Ms. Arunima Mukhopadhyay Adv Mr. Debopam Roy Adv in WPA 92321 in WPA 59721 Mr. Ramaprasad Sarkar Adv Md. Mansoor Alam Adv in WPA 92321 Amrita Sinha J.: by this common judgment Facts of both the case being similar the writ petitions are being disposed of A notification was published by the West Bengal College Service Commission ‘the Commission’ for short inviting applications from eligible candidates for appointment in accordance with the WB College Service Commission Regulations 2012 The petitioners belong to the OBC A category. Both of them participated in the recruitment process initiated by the Commission for being appointed as Assistant Professor in the subject Geography. Initially only eight vacancies were published in OBC A category but thereafter fresh vacancies were added and 11 vacancies in the OBC A category have been filled up by way of recommendation The petitioners were selected to participate in the interview. In the provisional merit panel Rentu Biswas was placed in rank 12 and Md. Azfar Mondal was placed in rank 13 in the OBC A category. As the name of the petitioners appeared in serial nos. 12 and 13 respectively in the provisional merit panel published on 6th March 2020 recommendation letter was not issued in their favour According to the petitioners the candidate whose name appeared in rank 2 under OBC A category namely Md. Akhtar Hasinur Rahman was recommended for being appointed in the Maharajadhiraj Udaychand Women’s College Burdwan and he joined the post in July 2020 but suddenly expired in the first week of February 2021. As the said post fell vacant during the pendency of the panel the Commission ought to have directed re counselling for filling up the said post It is the further case of the petitioners that Surendranath College for Women has also sent requisition for filing up the vacant post under OBC A category but the same was not filled up initially. Thereafter the said vacancy was filled up by way of transfer of a candidate from Rabindra Mahavidyalaya. Consequent to the said transfer a vacancy cropped up in Rabindra Mahavidyalaya The petitioners pray that their names may be recommended in either of the two vacancies which arose during the validity period of the panel The Commission has filed a report wherein it has been mentioned that out of the 20 empanelled candidates in the OBC A category 11 candidates were recommended who were above the writ petitioners in rank As per the available records there is no vacancy in the post of Assistant Professor in Geography in the Maharajadhiraj Udaychand Women’s College Burdwan and the College has not reported about the death of the As regards vacancy in Surendranath College for Women the same could not be filled up by recommendation due to the transfer order issued by the Higher Education Department on 5th February 2021. The transfer order has been made from the Rabindra Mahavidyalaya to Surendranath College for Women in favour of one S. Pramanik Assistant Professor in Geography The college authority of Rabindra Mahavidyalaya has sent a letter to the Commission on 26th March 2021 seeking recommendation against the vacancy without submitting the filled in requisition form without the resolution of the Governing body and without the Backward Classes Welfare Department authentication as required for sending valid requisition of vacancy by a College The report further mentions that the requisition submitted by Rabindra Mahavidyalaya on 26th March 2021 shall be guided by Advertisement No. 20 which was published long before the vacancy in Rabindra Mahavidyalaya was reported but as the petitioners are empanelled under Advertisement No. 18 accordingly their names cannot be recommended in respect of the vacancy which arose in Rabindra Mahavidyalaya The learned advocate representing Maharajadhiraj Udaychand College Burdwan submits that admittedly there is a vacancy in the college but the vacancy can neither be declared nor requisition be sent to the Commission as the person who had joined the post is yet to be reported dead either by the police of by his family members. According to the College no valid information about the death of the professor has been received either from the family members of the professor or from the police. In the absence of valid documents of death vacancy of the said post cannot be declared It is the further contention that the petitioners are merely empanelled candidates and they do not have any vested right of appointment. As and when their names will be recommended by the Commission their right to get the job will accrue Prior thereto the petitioners are not entitled to a writ of Mandamus commanding the authorities for issuance of the letter of recommendation in their favour Regulation 3.4 of the aforesaid Regulations has been placed. The said Regulation lays down that only on receipt of a valid and complete requisition from the Principal or Teacher in Charge of a College for recommending a candidate for appointment in a vacancy against an approved post the Commission shall consider the vacancy as a valid vacancy and shall record it as such in its books According to the College requisition cannot be forwarded to the Commission as there is no valid evidence of death of the Professor and according to the Commission until and unless a valid and complete requisition is received from the Principal or the Teacher in Charge of a college the vacancy against an approved post cannot be treated as a valid one The respondents pray for dismissal of the writ petitions In response to the submission made by the respondents the petitioners have relied upon the First Information Report registered in the Purba Bardhaman Sadar P.S on 3rd February 2021 in response to a complaint lodged by the father of Md Akhtar Hasinur Rahman alleging that he suspected his daughter in law as the prime culprit for the death of his son and the offence has been registered under Section 302 of the Indian Penal Code. Post mortem was completed at Burdwan Medical College and Hospital and thereafter the body was handed over to the father It has been submitted that the FIR is a Government document and is enough proof of death of the professor I have heard and considered the submissions made on behalf of both the The panel in question expired on 9th March 2021. During the pendency of the panel the petitioners approached this Court praying for relief. Admittedly the petitioners are empanelled at serial nos. 12 and 13 respectively and candidates up to the serial no. 11 have been recommended for appointment. Out of 11 recommended candidates one has expired. The submission of the College that they do not have the report of death of the said professor is not at all convincing. The professor met an unnatural death. Post mortem of his body was conducted. Case has been registered under Section 302 of the Indian Penal Code. The College admits that vacancy is there and the said vacancy arose within the validity period of the panel but the College for strange reasons did not report the same before the It is not expected that the Commission will have knowledge of all vacancies arising in the Colleges. It is for the Colleges to draw attention of the Commission in respect of any vacancy that arises so that the same may be recorded by the Commission as a valid vacancy. In the absence of reported vacancies it is naturally not possible for the Commission to recommend candidates for filling up the same As regards the vacancy in Rabindra Mahavidyalaya admittedly the transfer order of the professor from Rabindra Mahavidyalaya to Surendranath College for Women was issued during the validity period of the panel. Accordingly there is a vacancy to be filled up in Rabindra Mahavidyalaya In Nirvik Banerjee vs University of Burdwan reported in 2014 3 CLJ Cal) 411 the Court considered the issue as to whether the vacancies arising subsequent to the issue of advertisement or preparation of the panel can be filled up from the same panel. The Court was of the opinion that vacancies arising during the life time of the panel would be capable of being filled up from the same panel. The claim of the candidates cannot be rejected only on the ground that merely on the basis of being empanelled they have acquired no vested legal right to seek appointment from the panel In the said judgment the Court also took into consideration the submission of the respondents that there may be other empanelled candidates whose position may be higher than the petitioner and giving appointment to the petitioner without considering their claim would not be proper. The Court in answer to the above has laid down that if any empanelled candidate did not feel aggrieved enough by the act of the respondent in not considering their candidature for appointment the Court ought not to embark on a search process and identify them and elicit from them whether they are still interested in the subject post. The candidates who have brought the cause to the Court should not be denied justice In the matter of Mousumi Pal vs The West Bengal College Service Commission & Ors. of 2007) in order dated 16th July 2013 passed by this Court reference was made to a decision of the Hon’ble Supreme Court in the matter of State of UP vs Ram Swarup Swaroj reported in3 SCC 699 and the Court observed that even if life time of the panel expired during pendency of the writ petition the petitioner cannot be denied relief specially when the writ petition was moved before expiry of the life time of the panel. The Court was of the view that when merit list was published by the Commission it was noted that the panel was prepared with due consideration of the number of anticipated vacancies then any vacancy which arose for which advertisement was published the Commission should recommend the name of the petitioners. The Commission was directed to recommend the name of the petitioners in any vacancy of which panel was prepared or from the vacancy that occurred subsequently for which next advertisement was published during life time of the panel An appeal and application for stay was filed against the order dated 16th July 2013 and the Hon’ble Appeal Court by order dated 7th October 2013 in MAT 14413 with CAN 102113 was pleased to reject the prayer for stay. The order of the learned Trial Judge was thereafter complied by the Commission and the same has been recorded in the order dated 28th January 2014 passed in WPCRC 396 (W Admittedly in the instant case two vacancies are still available one on account of death of a professor during the pendency of the panel and the other on account of transfer of a professor from Rabindra Mahavidyalaya to Surendranath College for Women Accordingly the Commission is directed to verify about the existence of the two vacancies and if the vacancies are indeed available conduct re counselling from the empanelled candidates for filling up the said posts notwithstanding the fact that the validity of the panel expired in the meantime as the writ petition was filed when the panel was valid Steps shall be taken in the matter at the earliest but positively within a period of eight weeks from the date of communication of a copy of this order WPA 59721 and WPA 92321 are disposed of Urgent Photostat certified copy of this judgment if applied for be supplied to the parties expeditiously on compliance of usual legal formalities ( Amrita Sinha J.

Bail plea rejected of an accused, convicted for molestation: High court of Punjab and Haryana  

A petition was filed under section 439 of CrPC for the grant of regular bail. The petitioner was convicted under section 354 IPC, “Assault or criminal force to woman with intent to outrage her modesty”. 506 IPC, “Punishment for criminal intimidation – threat be to cause death or grievous hurt” and section 10 of the POCSO act, “Punishment for aggravated sexual assault ”, on the 23rd of December 2019 in FIR No. 320 registered at the police station Hassanpur in the district of Palwal. This Judgment and final order were given in the high court of Punjab and Haryana at Chandigarh on the 14th of July 2021 by Hon’ble Mr. Justice Arvind Singh Sangwan in the case of Ranbir @ Lala v/s state of Haryana CRM-M-13016-2020. Mr. Pardeep Virk represented the petitioner and Mr. Deepak Kumar represented the state of Haryana. According to the allegations against the petitioner filed in the FIR, the following are the facts of the case, The petitioner’s brother’s daughter, that is the niece of the petitioner. She is aged five years and had gone out to play, the petitioner lived in the same neighborhood, when the daughter came back home she was crying and when she was asked why the little girl confessed that her uncle(petitioner) had bitten her face and removed her clothes and threatened her that he would kill her if she would disclose the same and he also bribed the little girl with groundnut and money and asked her not to tell her mother. In the FIR, the statement of the victim that Lala (petitioner) has bad teeth and consumed liquor daily, it was all recorded under section 164 CrPC. The mother of the victim also claimed that her brother-in-law used to tease her on an earlier occasion. However, according to the petitioner’s counsel, he submitted that there has been some money conflict between the petitioner and his brother(complainant), which is why his brother falsely implicated such a matter. He submitted certain evidence before the court stating a telephone conversation between the complainant and another person regarding the same. The counsel also submitted certain affidavits of the villagers who indicated that the petitioner has been falsely framed. He submitted that the petitioner was held in custody for one year and seven months and therefore request for regular bail is made before the court. The counsel for the state opposed the prayer for bail on the grounds as per the Medical-legal report of the child, where the doctor stated physical molestation and redness over the right cheek of the child. The counsel based on the medical report stated that the petitioner is not entitled to regular bail. The court agreed with the state and rejected the plea for regular bail for the petitioner.

on 15 07 In virtual CourtCRM M 13016 2020 1 IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARHCRM M 13016 2020aged about 05 years had gone out to play. The petitioner is hisneighbour. When his daughter came back she was crying and when his wifeSunita inquired from her as to why she is crying his daughter told that heruncleLala petitioner had bitten her face and removed her clothes and hadgiven threat to her if she discloses anything about the same he would kill her.After registration of the FIR statement of the victim was recorded which readsas under: “Stated that yesterday Lala took me to his house and he bitten myprivate part and also bitten my mouth face. He told me not todisclose about it to your mother. Not told to your uncle. I will giveyou groundnut and money. There is pain in my private part. Lalais having big teeth. Lala used to consume liquor daily.”Similar statement was recorded by the victim under Section 164Cr.P.C.Learned counsel for the petitioner further submits that there wassome money dispute between the petitioner and the complainant and on thataccount he has been falsely implicated. Learned counsel has relied upon certain on 15 07 In virtual CourtCRM M 13016 2020 3 telephonic conversation between the complainant and one Gopi Ram to submitthat the complainant is demanding some money. Certain affidavits of thevillagers are also filed to submit that the petitioner has been falsely implicated.It is further submitted that even on an earlier occasion Sunita wife ofcomplainant Chetram had levelled allegations against her brother in lawRajender that he used to tease her and later on she compromised the matter. Itis also submitted that the petitioner is in custody for the last 01 year and 07months and therefore he may be granted the concession of regular bail.Learned State counsel has however opposed the prayer for bail onthe ground that as per MLR of the victim her ocular version finds support asthe doctor has reported it as a case with history of physical molestation andthere was slight redness over the right cheek however no bruise or no cut markwere visible. In the examination of Female Genitalia the doctor noticed asbelow: “Labia Majora: Multiple pin point piteche mark present overlabia majora lt side slight redness over labia majora.”Learned State counsel thus submits that the MLR do not suggestthat it is a case of false implication and till the time statement of the victim orthe complainant is recorded the petitioner is not entitled to regular bail.After hearing learned counsel for the parties I find that thedocuments affidavits and conversation relied upon by learned counsel for thepetitioner are to be seen during the course of trial however considering the on 15 07 In virtual CourtCRM M 13016 2020 4 allegations in the FIR wherein it is stated that the victim is a girl aged about 05years and also in view of her MLR no ground to grant regular bail to thepetitioner is made out.Accordingly the present petition is dismissed. [ ARVIND SINGH SANGWAN ]14.07.2021 JUDGEvishnuWhether speaking reasoned: Yes NoWhether Reportable: Yes No

Court cannot issue direction for regularization without considering the mandate of the Supreme Court and the prevailing rules and regulations: The High Court of Jammu & Kashmir and Ladakh

A plain reading of Section 3 and Section 5 of the Act provides for the regularization of services of ad hoc or contractual employees including those appointed on consolidated pay if they have been appointed against a clear vacancy or post and have completed 7 years of service, provided further that such benefit would not be extended to part-time or seasonal employees including those who are being paid out of the local funds or the contingent grants. The aforesaid has been established by the High Court of Jammu & Kashmir and Ladakh while adjudicating the case of State of Jammu and Kashmir and others v. Abdul Majid and others [LPA No. 22 of 2019] which was decided upon by a two-judge bench comprising Hon’ble Chief Justice and Justice Mohan Lal on 17th November 2021. The brief facts which had led to the filing of the writ petition and consequently this appeal are that that the petitioners/respondents were appointed on temporary basis as orderlies in the Transport Department in the year 1999, some in 2002 and 2003 for a period of 89 days but were allowed to continue even thereafter with intermittent break of a day or so. After the enforcement of the above Act, as the petitioners/ respondents have completed more than seven years of continuous service and have otherwise fulfilled the essential conditions laid down for regularization therein, they claimed regularization but their claim was rejected on the ground that they were drawing salary from the contingent fund. The petitioners/respondents challenged the aforesaid rejection order and sought direction for regularization by filing SWP No. 250/2013, Abdul Majid and others v. State of J&K and others. The court allowed the aforesaid writ petition on 12.09.2014 and quashed the order refusing regularization of services of the petitioners/respondents with the direction to the official respondents to consider their cases for the purposes of regularization strictly in accordance with the aforesaid Act and that the ground that the petitioners/respondents were being paid out of the contingent fund would not be a ground for refusing regularization to them. Admittedly, the aforesaid order is final and conclusive as it was never questioned by any party in any higher forum. The court perused the facts and arguments presented. It was of the opinion that “The recent decision of the Supreme Court in State of Jammu and Kashmir and others v. District Bar Association, Bandipora, AIR 2017 Supreme Court 11 that the scheme for regularization framed by the government must be for validating certain irregular appointments and cannot be used to validate illegal appointments and that the court cannot issue direction for regularization without considering the mandate of the Supreme Court and the prevailing rules and regulations on the subject, is of no help to the appellants in the present case inasmuch as no illegality has been pointed out at any stage in the appointment of the petitioners /respondents. They may have been irregularly appointed and it is for this reason their cases fell for consideration of regularization in accordance with the statutory provisions of the above Act. The writ court has considered their cases for regularization in the light of the provisions of the Act without impinging upon the mandate of the Apex Court. The petitioners/respondents have been found entitled for regularization of services in accordance with the prevailing rules and regulations. In view of all that has been said above, we find no illegality in the judgment and order passed by the writ court. The appeal as such is bereft of merits and is dismissed with no order as to costs.”

Sr. No. 5 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU CJ Court Reserved on: 11.11.2021. Pronounced on:17.11.2021. Case: LPA No. 219 State of Jammu and Kashmir and others .....AppellantThrough : Sh. Adarsh Bhagat GA. Abdul Majid and others Through : Sh. Ajay Abrol Advocate. Sh. Anirudh Sharma Advocate vice Sh. Rahul Pant Senior Advocate. Sh. Achal Sharma Advocate vice Sh. Sudershan Sharma Advocate HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE MOHAN LAL JUDGE PANKAJ MITHAL CJ The State of Jammu and Kashmir the Transport Commissioner and the Regional Transport Officer Kathua have together preferred this letters patent appeal against the judgment and order dated 22.11.2018 passed by the writ court allowing SWP No. 2319 2015 Abdul Majid and others v. State of J&K and others holding the petitioners therein entitled to regularization of services in terms of Jammu & Kashmir Civil ServicesAct 2010and as such any regularization within framework of the aforesaid Act is not illegal or against the constitutional mandate. The petitioners respondents on the date of their initial engagement were qualified and eligible for appointment and it is no one’s case that their appointment was de hors the rules or the process prescribed. The brief facts which had led to the filing of the writ petition and consequently this appeal are that that the petitioners respondents were appointed on temporary basis as orderlies in the Transport Department in the year 1999 some in 2002 and 2003 for a period of 89 days but were allowed to continue even thereafter with intermittent break of a day or so. After the enforcement of the above Act as the petitioners respondents have completed 3 LPA No.22 2019 more than seven years of continuous service and have otherwise fulfilled the essential conditions laid down for regularization therein they claimed regularization but their claim was rejected on the ground that they were drawing salary from the contingent fund. The petitioners respondents challenged the aforesaid rejection order and sought direction for regularization by filing SWP No. 250 2013 Abdul Majid and others v. State of J&K and others. The court allowed the aforesaid writ petition on 12.09.2014 and petitioners respondents with the direction to the official respondents to consider their cases for the purposes of regularization strictly in accordance with the aforesaid Act and that the ground that the petitioners respondents were being paid out of the contingent fund would not be a ground for refusing regularization to them. Admittedly the aforesaid order is final and conclusive as it was never questioned by any party in any higher forum. On consideration of the cases of the petitioner respondents for regularization as per the direction of this court the Empowered Committee competent to consider the cases for regularization in its meeting held on 18.05.2015 held that the petitioners respondents have not been engaged against any clear vacancy or post and as such do not fulfill the criteria laid down under Section 5(i) of the Act for regularization. In view of the above order the only ground on which the claim for regularization of services of the petitioners respondents has been rejected is that they were not employed against any clear vacancy or a post. It was also said that though under the Act persons getting salary out of the contingent fund are also not entitled for regularization but this ground was not invoked by the Department probably in the light of the earlier direction of the court. 4 LPA No.22 2019 In view of the aforesaid facts and circumstances basically two grounds have been pressed for denying regularization of services of the petitioners respondents. The first is that they were being paid salary out of the contingent fund and second that they were never appointed against any clear vacancy or post and as such are not entitled for regularization within the meaning of Section 5 of the Act. It is pertinent to mention here that the aforesaid Act came to be enacted and enforced pursuant to the directions of the Supreme Court in the case of Umadeviwhich directed for framing a proper one time scheme for the regularization of temporary workers who have put in over 10 years or more on a sanctioned post. The aforesaid Act envisages to regularize the services of all ad hoc or contractual employees including those appointed on consolidated pay provided they have not been appointed as part time or seasonal employees including those whose wages are paid out of local funds or contingent grants. It further provides that such appointees ought to have been appointed against a clear vacancy or post and that they may have completed 7 years of service on the appointed date. In short a plain reading of Section 3 and Section 5 of the Act provides for the regularization of services of ad hoc or contractual employees including those appointed on consolidated pay if they have been appointed against a clear vacancy or post and have completed 7 years of service provided further that such benefit would not be extended to part time or seasonal employees including those who are being paid out of the local funds or the contingent grants. The issue whether the petitioners respondents were being paid out of the contingent fund had come up for consideration in the first round of litigation i.e. in SWP No. 250 2013 and the order refusing to regularize 5 LPA No.22 2019 services on the above grounds was quashed with the direction to consider the cases of regularization of services of the petitioners respondents afresh strictly in accordance with provisions of the Act and that payment of salary out of the contingent fund would not be a ground for refusal. As stated earlier the aforesaid judgment and order has attained finality and therefore it does not lie in the mouth of the appellants at this juncture to raise again the said issue which stands settled. In fact the said ground was not even invoked by the Department before the Empowered Committee that dealt with the matter of regularization of services of the petitioners respondents. The other issue on which the petitioner respondents have been non suited is that their appointment was not against any clear vacancy or post. In this regard the writ court has opined that no such objection was ever taken by the appellants at any stage in the first round of litigation and as such must be deemed to have been given up or be treated as barred by principle of constructive res judicata. Notwithstanding the above the writ court on the basis of the communication of the Department dated 03.09.2009 recorded a categorical finding that according to the Transport Commissioner all the petitioners respondents were appointed against clear vacancies and therefore the argument has no substance. We have also examined the communication dated 03.09.2009 which is part of the record. It is a letter addressed by the Transport Commissioner to the Commissioner Secretary to the Government for the purpose of considering the cases for regularization of services of the employees of the Department in accordance with the above Act. The said communication contains a chart in the prescribed proforma ‘C’ giving the name of the employees their designation pay date of initial appointment the designation of the appointing authority 6 LPA No.22 2019 whether the person is continuing in service and if his appointment was against a clear vacancy or otherwise. The said chart clearly mentions that the petitioners respondents were appointed against clear vacancy as orderlies on check post on a consolidated remuneration of Rs.1500 per month by the Transport commissioner and that they are continuing in service from the date of their initial appointment. The aforesaid communication clinches the issue regarding the appointment of the petitioners respondents and establishes beyond doubt that as per the own showing of the Transport Commissioner they were appointed against the clear vacancies. In view of the aforesaid facts and circumstances both the grounds that the appointment of the petitioners respondents was not against clear vacancy or post and that they were paid from the contingent fund do not stand substantiated and as such the writ court committed no error of law in holding that they are entitled for regularization of their services under the Act. petitioners respondents states that as their appointment is not against clear vacancy or post they are not qualified for regularization in terms of Section 5 of the Act. The veracity of the said letter has to be judged on the basis of the reasoning recorded therein and that the said reasoning cannot be supplemented by means of pleadings or arguments as has been held by the Apex Court in the case of Mohinder Singh Gill and another v. Chief Election Commissioner and others AIR 1978 Supreme Court 851 wherein it has been laid down that when a statutory authority makes an order based on certain grounds its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. In view of the above dictum the 7 LPA No.22 2019 appellants in fact cannot be permitted to take up any other ground other than refusing regularization on the account of not appointment against clear vacancy or post. It may not be out of context to point out that any intermittent breaks of one or two days in service would not disrupt the continuance in service as such breaks are artificially created. The fact remains that the services continued from day one till the appointed day resulting in completion of seven years of service. The Act contemplates seven years of completed service rather than continuous service and in such a situation intermittent breaks of a day or two or such artificial breaks are meaningless and would not be sufficient to hold that the petitioners respondents do not have seven years of service to their credit. In view of the above decision the submission that the writ court acted contrary to Umadevi’s case and against the constitutional mandate is of no consequence. In fact in holding the petitioners respondents entitled to regularization in accordance with the statutory provisions there seems to be no violation of the constitutional mandate or even the decision of the Apex Court in Umadevi which itself provides for framing of a scheme for one time regularization. The recent decision of the Supreme Court in State of Jammu and Kashmir and others v. District Bar Association Bandipora AIR 2017 Supreme Court 11 that the scheme for regularization framed by the government must be for validating certain irregular appointments and cannot be used to validate illegal appointments and that the court cannot issue direction for regularization without considering the mandate of the Supreme Court and the prevailing rules and regulations on the subject is of no help to the appellants in the present case inasmuch as no illegality has been pointed out at any stage in the appointment 8 LPA No.22 2019 of the petitioners respondents. They may have been irregularly appointed and it is for this reason their cases fell for consideration of regularization in accordance with the statutory provisions of the above Act. The writ court has considered their cases for regularization in the light of the provisions of the Act impinging upon the mandate of the Apex Court. The petitioners respondents have been found entitled for regularization of services in accordance with the prevailing rules and regulations. In view of all that has been said above we find no illegality in the judgment and order passed by the writ court. The appeal as such is bereft of merits and is dismissed with no order as to costs. (PANKAJ MITHAL) JUDGE CHIEF JUSTICE JAMMU Raj Kumar Whether the judgment is reportable :

Pension is a ‘Property’ under Article 300 of the Constitution: Bombay High Court

We direct the Registry of this Court to forward the copies of this Judgment to the Centralized Processing Pension Centres of all the Nationalized Banks and also to the Reserve Bank of India and the Chief Secretary, Government of Maharashtra, to consider the question of the constitution of separate cell and release of appropriate guidelines so as to attain the constitutional goal of providing respect, dignity, care, sensitivity, assistance and security to all the pension account holders in the Banks held by the Hon’ble High Court of Bombay in Shri Naini Gopal V. Union of India & Ors.( R) [LD-VC-CW-665 OF 2020] by Justice R.K. Deshpande and Justice N.B. Suryawanshi. Facts related to this case is While imposing a cost of Rs. 50,000 on State Bank of India for deducting more than 3 lakhs from petitioners account held that pension is a property under Article 300 A of the Constitution of India and it is a fundamental right to livelihood under Article 21 of the Constitution. The petitioner is a retired Assistant Foreman and a drawing basic pension of Rs. 25,634 post the recommendation of the 5th, 6th and the 7th pay commission. The petitioner’s bank (SBI) deducted more than Rs. 3 lakhs from the account stating that an amount of Rs. 872 per month was ‘erroneously paid’ in excess to the petitioner due to a technical error in the system. The petitioner approached the Hon’ble High Court with a letter from the former employer stating that the pension at the rate of Rs. 26,000 has been correctly notified. Relying on clause (C) of an RBI circular the bank claimed to have any authority to recover the excess payment made to the petitioner and further contended that no memo was received by the bank from the former employer of the petitioner of enhancement of pension. The Hon’ble court held that the bank was liable and observed that the action of the bank was arbitrary, unreasonable, unauthorized and in flagrant violation of the principles of natural justice and cannot be sustained. The Hon’ble court further observed that the pension payable to the employees upon superannuation is a ‘property’ under Article 300-A of the Constitution of India and it constitutes a fundamental right to livelihood under Article 21 of the Constitution of India. The deprivation, even a part of this amount, cannot be accepted, except in accordance with authority of law.” Direction given by the Hon’ble court taking consideration of sensitivity to the problems of the senior citizens needs to be addressed. The mechanism for immediate redressal of grievance needs to be provided. The officers having a degree or master’s degree in Social Work or Psychology, who can be in personal touch with and genuinely understand and redress the grievances or complaints of the senior citizens, can be appointed. “Rule is made absolute in the aforesaid terms. No order as to further costs”. Click here to read the judgement

LD VC CW 6620.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR LD VC CW 665 OF 2020 Shri Naini Gopal S o Dhirendra Mohan Roy Aged About 85 Years Occupation Pensioner R o F 37 B Central Railway Colony Ajni Nagpur 440 003 1. The Union of India Ministry of Defence Through its Secretary 2. The Principal Controller of Defence AccountsOffice of Principal Controller of Defence Accounts Allahabad Uttar Pradesh 211 014 3. The General Manager State Bank of India Centralized Pension Processing Centre 5th Floor Premises No.T 651 and T 751 I.T.C. Belapur CBD Belapur Railway Station Complex Navi Mumbai 400 0614 4. The General Manager Ordnance Factory Bhandara Shri S.S. Sharma Advocate for Petitioner Smt. Sushma Advocate for Respondent Nos.1 2 and 4 Shri M. Anilkumar Advocate for Respondent No.3 CORAM : R.K. DESHPANDE & N.B. SURYAWANSHI JJ Date of Reserving the Judgment : 13 th August 2020 Date of Pronouncing the Judgment : 20 th August 2020 LD VC CW 6620.odt JUDGMENTNotice for final disposal of the matter was issued by this Court on 30 7 20208 and the parties were heard finally by consent. Hence Rule. The petition is being disposed of finally The petitioner Naini Gopal S o Dhirendra Mohan Roy is retired as an Assistant Foreman from the Ordnance Factory at Bhandara with effect from 1 10 1994. The last drawn basic salary of the petitioner was Rs.2 675 and the basic pension was fixed at Rs.1 334 as on 1 10 1994. Consequent upon increase in the pension and the dearness allowance as per the recommendations of the 5th 6th and 7th Pay Commissions the basic pension of Rs.25 634 was fixed for which the petitioner was entitled to and accordingly he was paid In the month of August 2019 the basic pension amount of the petitioner was reduced from Rs.25 634 to Rs.25 250 with effect from 1 1 2016 and accordingly the respondent No.3 the Centralized Pension Processing Centre of the State Bank of India directed recovery of an amount of Rs.3 69 035 from the pension payable to the petitioner in the installments of Rs.11 400 i.e. 1 3rd of the monthly pension with effect from 1 8 2019. The deduction of pension was without the consent or knowledge of the petitioner and therefore the LD VC CW 6620.odt petitioner filed an application under the Right to Information Act 2005 on 1 9 2019 to know the reason for deduction and details as to the revision of pension during the period 2015 16 and 2016 17 In response to this application the petitioner received the reply on 20 9 2019 from the respondent No.3 informing that there was excess payment of pension of Rs.3 69 035 to the petitioner which was discovered after making the revised calculations The petitioner has therefore approached this Court challenging such action and seeking further direction to the respondents to restore the position in respect of payment of pension prevailing prior to the deduction which commenced from 1 8 2019. Reliance is placed upon the communication dated 4 12 2019 at Annexure Q to the petition issued by the Accounts Officer of the employer stating that the pension at the rate of Rs.26 000 was correctly notified vide 7 th CPC PPO Initially we heard the matter on 30 7 2020 when the following order was passed Hearing was conducted through Video Conferencing and the learned Counsel for the parties agreed that the audio and visual quality was proper Issue notice for final disposal of the matter returnable LD VC CW 6620.odt Smt. Sushma learned Counsel waives service of notice for respondent nos.1 2 and 4 We have seen the impugned order dated 14 11 2019 issued by the State Bank of India. We are anxious to know as to whether the State Bank of India has acted on its own or on the basis of instructions issued by any other respondent in the matter. If we find that the action of the Bank is without any authority we will have to impose heavy costs upon the Bank Apart from this if the amount is lying with the personal account of the petitioner we are also surprised to note as to how the Bank is preventing or not permitting the petitioner to withdraw the amount. If any recovery is to be made it will be open for the employer to make the same in accordance with law This order be communicated to the learned Counsel appearing for the parties either on the e mail address or on WhatsApp or by such other mode as is permissible in law.” We were under an impression that the respondent No.3 State Bank of India Medical College Area Branch Nagpur where the petitioner holds the pension account No.10387387888 must have acted on the basis of the instructions issued by the employer of the petitioner. Therefore we passed an order stating that we are anxious to know as to whether the State Bank of India has acted on its own or LD VC CW 6620.odt on the basis of the instructions issued by the other respondents in the matter. Obviously the employer is the party respondent in this petition. We further made it clear that if we find that the action of the Bank is without any authority we will have to impose heavy costs upon the Bank. It was also expressed that if the amount is lying with in personal account of the petitioner how the Bank is preventing or not permitting the petitioner to withdraw the amount. If the recovery is to be made it is open for the employer to make the same in accordance In response to this petition the employer who is the respondent No.4 the General Manager Ordnance Factory Bhandara has filed an affidavit taking the stand in Paras 1 to 5 as under It is humbly submitted that the details of the Petitioner regarding service particulars retirement dateare correct as per record It is humbly submitted that the Respondent No.02 i.e. the PCDA(P) Allahabad has issued revised PPO No.401199400151 PPO Suffix 0199) dated 08 01 2018 in respect of the Petitioner Ex Asstt. Foreman O.F Bhandara. Revised pension under the said PPO was Rs.25250 w.e.f. 01 01 2016) per month LD VC CW 6620.odt It is humbly submitted that the Respondent No.02 has Suo moto revised the above said PPO vide PPO No.401199400151 (Copy enclosed as Annexure R 2) on the basis of Circular No.C 202 dated 06 08 2019 and the pension was fixed to Rs.26 000 and started paying him Rs.9974.00 thus an excess of Rs.872.00 per month from Oct 2007 erroneously which was due to technical error in the system. It is submitted that there was an corrigendum No.PPO No.C Corr 6th CPC 04635 2012 and Circular No.102 which was not taken into consideration while making the payments and the bank continued to pay Rs.9974.00 till the subsequent revision The Copy7 of the Pay Fixation by the Respondent No.2 is filed as Annexure R 1 That the Pension was further revised from Rs.9 102.00 to Rs.25 634.00 as per the 7th CPC which is payable till date. That the Petitioner submits that the basic was Rs.9 102.00 however the Bank paid Rs.9974.00 erroneously and further made enhancement of the Pension on the said erroneously calculated pension which comes to Rs.25 634.00 which was being paid and on having noticed this fact the Bank has fixed the Pension at Rs.25 250.00 which is as per the guidelines of the respondent No.2 and 4 The respondent has not received any Memo from the respondent No.2 and 4 for enhance of pension to Rs.26 000 as filed at Page No.92 by the Respondent No.4 and on receipt of the copy of the Petition the respondent has already taken up the matter with the respondent No.2 on 7.8.2020 vide complaint No.52973 and on receipt of the clarification and appropriate PPO the increased pension if any shall be released as may be advised by the Respondent No.2 and 4 LD VC CW 6620.odt That the Petitioner submits that due to oversight an amount of Rs.3 69 035 is paid in excess by the answering respondent during the aforesaid period which is being recovered. It is submitted that the respondent No.5 has recovered the said amount over a huge period of time which can be seen from the fact that the aforesaid recoveries have started from Jan. 2006 and till date only Bank has partly recovered the amount and the Bank is yet to recover an amount of Rs.42 042.00 till date and nominal interest thereon That the respondent submits that in view of the representations made the Bank has not recovered any amount from Dec. 2019 as the Petitioner has informed that he is entitled to Rs.26 000.00 as pension and he is likely to receive sizeable arrears and the remaining amount can be recovered from the said amount for which bank has sent him various letters however the Petitioner only made correspondences and never met the bank officials for the amicable resolution.” It is the stand taken by the respondent Bank that an amount of Rs.872 per month was erroneously paid in excess to the petitioner from the October 2007 due to technical error in the system. Reliance is placed upon the Reserve Bank of India Circular No.RBI 2015 16 340 DGBA.GAD.No.2960 45.01.001 2015 16 dated 17 3 2016 containing clausewhich is reproduced below LD VC CW 6620.odt In case the pensioner expresses his inability to pay the amount the same may be adjusted from the future pension payments to be made to the pensioners. For recovering the over payment made to pensioner from his future pension payment in instalments 1 3rd of netpayable each month may be recovered unless the pensioner concerned gives consent in writing to pay a higher installment amount.” On the basis of the aforesaid clause the Bank claims to have an authority to recover the excess payment made to the pensioner. It is the further stand taken in Para 6 of the reply filed by the Bank that it has not received any Memo from the respondent Nos.2 and 4 for enhancement of pension from Rs.26 000 which is referred to as Annexure R 2 in the reply filed by the employer and it is stated that the Bank has already taken up the matter with the respondent No.2 on 7 8 2020 vide complaint No.52973 and on receipt of the clarification and appropriate PRO the increased pension if any shall be released as may be advised by the respondent Nos.2 and 4 10. What we find in the present case is that the stand taken by the employer the competent authority is very clear and unequivocal in stating that the fixation of pension of the petitioner was correct and proper. The employer has supported the claim of the petitioner and has no role to play in the matter of reduction of pension or its recovery LD VC CW 6620.odt The letter dated 4 12 2019 addressed to the petitioner by the employer states that the pension at the rate of Rs.26 000 has been correctly notified vide 7th CPC PPO No.401199400151and thus paid an amount of Rs.872 per month in excess from October 2007. Though we passed an order on 30 7 2020 reproduced earlier to know the authority of the Bank to question this we do not find any response to it in the reply filed particularly when the Bank was knowing the stand of the employer supporting the claim of the petitioner for pension. We are of the view that it is not the authority of the Bank to fix the entitlement of the pension amount of the employees other than the employees of the respondent Bank. We therefore hold that the action of the Bank to reduce the pension of the petitioner is unauthorized and illegal. Furthermore the Bank has failed to demonstrate any technical error in the calculations The Bank has placed reliance upon the Reserve Bank of India Circular No.RBI 2015 16 340 DGBA.GAD.No.2960 45.01.001 2015 16 LD VC CW 6620.odt dated 17 3 2016 to urge that the authority to recover the excess payment is conferred upon it by the Reserve Bank of India. In Para 14 of the reply the reliance is also placed upon the undertaking said to have been given by the petitioner to the Bank permitting the deduction of all such excess amounts if so credited in his account due to oversight. The decision of the Apex Court in the case of High Court of Punjab and Haryana and others v. Jagdev Singh reported in 2016) 14 SCC 267 has been relied upon. In our view once we hold that in fact there was no excess payment made to the petitioner the question of applicability of the instructions issued by the Reserve Bank of India or the undertaking given by the petitioner does not arise Consequently the decision of the Apex Court in the aforesaid case would also not apply to the facts of the present case If the Bank had any doubt about the correctness of fixation of pension it should have carried the correspondence with the employer and got the clarification. At least an explanation in respect of the proposed deduction with retrospective effect from October 2007 should have been called from the petitioner. This is the bare minimum requirement of the principles of natural justice. No enquiry or investigation is made before taking the action impugned by the Bank. It is for the first time on 7 8 2020 i.e. after issuance of notice by this Court in the present petition that the Bank started making enquiries LD VC CW 6620.odt and seeking clarifications from the employer of the petitioner in respect of pension and an assurance is given in the reply that the restoration of pension shall be done as may be advised by the respondent Nos.2 and 4 the employers. This exercise in our view should have been carried out prior to effecting the deductions from the pension payable to the petitioner. The entire action of the Bank in our view is arbitrary unreasonable unauthorized and in flagrant violation of the principles of natural justice and cannot be sustained The Bank is a trustee of the account of the pensioners like the petitioner and has no authority in the eyes of law to dispute the entitlement of the pension payable to the employees other than those in the employment of the Bank. To tamper with such account and effect the recovery of pension without any authority is nothing but a breach of trust of the petitioner by the Bank. We should not be understood to have said that even where there is technical error in calculation other than of entitlement is committed resulting in excess payment the Bank cannot recover it. We have already held that no such case is made out here. The petitioner is of 85 years of age and in Para 5 of the petition it is the claim that he bears a great liability of mentally disabled daughter aged about 45 years who has to be looked after mentally and physically and the costly medical treatment is required to be administered. Instead of showing sensitivity to the LD VC CW 6620.odt problems of senior citizens the Bank has shown the arrogance and the the petitioner was driven from pillar to post to know the reason for deduction of amount from the pension payable to him. Though we issued notice for final disposal of the matter keeping in view that the petitioner is a senior citizen and requires immediate attention to his problem the respondent Bank has chosen to file only interim submissions on affidavit sworn in by the Manager State Bank of India Medical College Area Branch Nagpur The Bank has reduced the pension payable to the petitioner from Rs.9 974 to Rs.9 102 per month and the amount of Rs.872 per month is said to have been paid in excess to the petitioner which is being recovered. In fact an amount of Rs.3 26 045 has already been recovered and the recovery of the balance amount of Rs.42 042 is proposed to be made. We therefore need to direct the Bank to refund the amount of Rs.3 26 045 to the petitioner by crediting it in his pension account with interest at the rate of 18% per annum from the date of deduction till the date of crediting such amount in the account of the petitioner. We have to restrain the Bank from recovering the balance amount of Rs.42 042 from the pension account of the petitioner. The Bank is required to be directed to pay the costs of Rs.50 000 to the petitioner towards the expenses of this petition mental agony and harassment within a period of eight days from today failing which the further costs of Rs.1 000 for each day’s delay shall have to be imposed LD VC CW 6620.odt Before parting with this Judgment we need to remind the Bank that the pension payable to the employees upon superannuation is a ‘property’ under Article 300 A of the Constitution of India and it constitutes a fundamental right to livelihood under Article 21 of the Constitution of India. The deprivation even a part of this amount cannot be accepted except in accordance with and authority of law Article 41 of the Constitution of India in the Part IV of Directive Principles of State Policy has created an obligation upon the State to recognize a right of public assistance in the case of old age sickness and disablement. Article 46 therein requires the State to promote with special care the economic interests of the weaker sections of the people. In short the aforesaid provisions of the directive principles of State policy create an obligation upon the State to enact suitable laws making the provisions to recognize a right of public assistance to promote economic interests to protect the life and property of senior citizens to treat them with respect and dignity and to give wide publicity to it Unfortunately the time has come to tell the Bank that the aging is natural process which leads to weakening of the body and mind. The LD VC CW 6620.odt productivity working ability and mobility decreases or paralyzes with growing age. The traditional norms values and culture in the Indian Society demand to treat the senior citizens with respect dignity and lay stress on providing security care and assistance to them It becomes a part of the human right of the senior citizens. The senior citizens are the persons who had shouldered the responsibility of building a nation in general and society or community in particular while in service. Utilizing their experience in the life and working the strong shoulders are created of young persons to substitute and rest the responsibility upon them while demitting the office. The bank officials must realize that tomorrow it may be their turn upon superannuation to fight for the pension or post retiral benefits. The thought process therefore to be adopted should be of a person in a situation like the petitioner. The respect dignity care sensitivity assistance and security would automatically follow 18. We have however seen and can take judicial note of the fact that the security of the senior citizens always remain in peril. We have seen the senior citizens anxiously waiting for credit of the pension amount in their account and standing in a queue for withdrawal. Once the amount is withdrawn personally either from the Bank or from the ATM a serious threat starts posing to the life from the watchdogs roaming around involved in pick pocketing and stealing. We have LD VC CW 6620.odt actually seen the old aged persons men and women counting the currency with cramping hands and trying to secure the amount at some hidden place in the body. It is then after waiting in the premises of the Bank and taking stock of the situation and the atmosphere with scared mind and the feeling of insecurity the escape route and time is chosen to reach to their destination safely. It is a high time for the Banks to create a separate cell and to device a method to provide personal service through the men of confidence at the door step to the old aged disabled and sick persons who are the senior citizens They have to be treated with respect and dignity. The sensitivity to the problems of the senior citizens need to be addressed. The mechanism for immediate redressal of grievance needs to be provided. The officers having a degree or master’s degree in Social Work or Psychology who can be in personal touch with and genuinely understand and redress the grievances or complaints of the senior citizens can be appointed In the result this petition is allowed and the following order is The action of the respondent No.3 Bank in deducting an amount of Rs.11 040 per month with effect from October 2019 is hereby quashed and set aside LD VC CW 6620.odt We direct the respondent No.3 Bank to immediately credit an amount of Rs.3 27 045 recovered from the pension account of the petitioner along with interest at the rate of 18% per annum from the date of recovery of each of the installments till the date of credit of this amount in the pension account of the petitioner The respondent No.3 Bank is restrained from recovering any amount from the pension payable to the petitioner on the basis of the action which we have quashed and set aside We direct the respondent No.3 Bank to pay the compensation of Rs.50 000 to the petitioner and credit the said amount in the pension account of the petitioner within a period of eight days from today failing which the additional costs of Rs.1 000 for each day’s delay will have to be paid 5) We direct the Registry of this Court to forward the copies of this Judgment to the Centralized Processing Pension Centres of all the Nationalized Banks and also to the Reserve Bank of India and the Chief Secretary Government of Maharashtra to consider the question of LD VC CW 6620.odt constitution of separate cell and release of appropriate guidelines so as to attain the constitutional goal of providing respect dignity care sensitivity assistance and security to all the pension account holders in the This Judgment be uploaded under the digital signature of the Private Secretary Rule is made absolute in the aforesaid terms. No order as to (N.B. SURYAWANSHI J (R.K. DESHPANDE J Lanjewar PS

Interference called under revisional jurisdiction to prevent the miscarriage of justice- Jharkhand high court

Interference called under revisional jurisdiction to prevent the miscarriage of justice- Jharkhand high court A criminal revision petition was directed against the impugned judgment in Criminal Appeal No. 135/2012 in which the learned appellate court confirmed the judgment of conviction passed by the Trial court and dismissed the petitioner’s criminal appeal. The revision petition was heard and the learned court called for interference in the judgment of conviction the petition was heard by a single bench of HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY in the case of Mahesh Kumar and Ors versus The state of Jharkhand (Cr. Revision No. 763 of 2012) The background of the case is the petitioner was convicted under section 7 of the essential commodities act by the trial court. The learned counsel appearing on behalf of the petitioner submits that cognizance of the offense was taken under Section 414 of the Indian Penal Code and Section 7 of the Essential Commodities Act but the trial for the offense under Section 414 of IPC was separated and the present case is related to the trial under Section 7 of the Essential Commodities Act. the learned counsel further submits that the punishment is a violation of one or the other Order issued under Section 3 of the Essential Commodities Act but there is no material on record to indicate as to which Order issued under Section 3 of the Essential Commodities Act was violated by the accused persons. The counsel further submits that the conditional precedent of 2012 (1) East Cr C 367 (Jhr) in the case of Susharma Singh Munda –vs- State of Jharkhand is not brought on record and therefore the impugned judgment of conviction of the petitioners cannot be sustained in the eyes of law and calls for interference in revisional jurisdiction. The learned A.P.P appearing on behalf of the respondents did not dispute the fact that the records of the case do not indicate as to which Order issued under Section 3 of the Essential Commodities Act,1955 has been violated. And submits that appropriate order can be passed with the material available. The learned court following the impugned judgments given by the courts below finds that it has not come on record, as to which Order issued under Section 3 of the Essential Commodities Act, 1955, has been violated by the petitioners calling for their involvement in any offense under Section 7 of the Essential Commodities Act, 1955. Section 7 of the Essential Commodities Act, 1955 provides for penalties for contravention of any order made under Section 3 of the Essential Commodities Act, 1955 and the condition precedent for imposition of penalty under Section 7 of the Essential Commodities Act has not been satisfied from the side of the prosecution in the present case. The learned court decides that the impugned judgments passed by the learned courts below cannot be sustained in the eyes of law and calls for interference under the revisional jurisdiction of this court to prevent the miscarriage of justice and the judgments by the lower courts are set aside.

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 7612 1. Mahesh Kumar @ Mahesh Sao son of Lakhan Saw 2. Naresh Saw son of Madan Saw 3. Shyam Sunder Thakur son of Babulal Thakur Deleted vide order dated 16.11.2021) All residents of Gandhi Nagar P.O. Dhanbad P.S. Dhansar District Dhanbad Petitioners … … Versus The State of Jharkhand … … Opp. Party CORAM: HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY 08 10.01.2022 For the Petitioners : Mrs. Jasvindar Mazumdar Advocate For the Opp. Party : Mr. P.D. Agawal A.P.P. Mr. Srikant Swaroop Advocate Through: Video Conferencing 1. Heard Mrs. Jasvindar Mazumdar learned counsel appearing on behalf of the Petitioner Nos. 1 and 2 alongwith Mr. Srikant Swaroop Advocate. 2. Heard Mr. P.D. Agarwal learned A.P.P. appearing on behalf of the Opposite Party State. The present criminal revision application is directed against the Judgment dated 04.08.2012 passed by the learned Addl. Sessions Judge I cum Special Judge C.B.I. Dhanbad in Criminal Appeal No. 135 2012 whereby and whereunder the learned appellate court confirmed the Judgment of conviction and the order of sentence passed by the learned trial court and dismissed the criminal appeal preferred by the petitioners. The learned trial court vide Judgment of conviction and the order of sentence dated 23.03.2012 passed by the learned Sub Divisional Magistrate Dhanbad in G.R. No. 9908(A) T.R. No. 142 2012P.S. Case No. 106 2008 dated 08.04.2008] had convicted the petitioners under Section 7 of the Essential Commodities Act and had sentenced them to undergo Rigorous Imprisonment for one year and fine of Rs.1 000 each and in default of payment of fine to further undergo Simple Imprisonment for one month each. The period undergone in judicial custody by the convicts during trial was directed to be set off. Arguments on behalf of the petitioners Learned counsel appearing for the Petitioner Nos. 1 and 2 submitted that vide order dated 20.08.2008 cognizance of the offence was taken under Section 414 of the Indian Penal Code and Section 7 of the Essential Commodities Act but vide order dated 31.07.2009 the trial for the offence under Section 414 of IPC was separated and the present case is related to the trial under Section 7 of the Essential Commodities Act only. The learned counsel submitted that the punishment under Section 7 of the Essential Commodities Act is consequent upon violation of one or the other Order issued under Section 3 of the Essential Commodities Act but there is no material on record to indicate as to which Order issued under Section 3 of the Essential Commodities Act was violated by the accused persons. She further submitted that the condition precedent for convicting the petitioners under Section 7 of the Essential Commodities Act has not been brought on record and therefore the judgment of conviction of the petitioners cannot be sustained in the eyes of law and calls for in revisional jurisdiction. She referred to a judgment passed by this Court reported in 2012 East Cr C 367 in the case of Susharma Singh Munda vs State of Jharkhand and submitted that even an F.I.R. was quashed by this Court on the ground that there was no disclosure in the F.I.R. as to which Order issued under Section 3 of the Essential Commodities Act 1955 was violated. She submitted that neither in the F.I.R. nor during investigation nor during the evidence of any of the witnesses it has been substantiated as to which provision Order issued under Section 3 of the Essential Commodities Act 1955 has been violated and therefore the conviction cannot be sustained. Arguments on behalf of the Opposite Party State Learned A.P.P. appearing on behalf of the Opposite Party State did not dispute the fact that the records of the case do not indicate as to which Order issued under Section 3 of the Essential Commodities Act 1955 has been violated. He submitted that appropriate order may be passed considering the materials available on the records of the case. Findings of this Court The prosecution case is based on the written report dated 08.04.2008 lodged by the Informant namely A.S.I. Naresh Paswan O c Barwadda P.S. Dhanbad alleging inter alia that on the basis of confidential information received during evening patrolling regarding transportation of Kerosene Oil in a Tempo the Informant alongwith other police officials proceeded for raid and verification and reached at Ajabdih near Saurabh Hard Coke Bhatta at about 22.10 hours where they were informed that five minutes ago a Tempo loaded with drum had proceeded towards Hot Mixed Plant situated near Saurabh Bhatta. When the police party entered into the Hot Mixed Plant a Tempo was found within its premises and on seeing the police two persons started fleeing away but both were apprehended on chase who disclosed their identity as Mahesh Kumar and Shyam Sundar Thakur. On verification it was found that the Tempo bearing Registration No. JH10F 0923 belonged to Naresh Saw. One drum containing 150 litres of Kerosene Oil and 7 bags of Kutti loaded in the Tempo and near the Temp two more drums each containing 150 litres of Kerosene Oil on each side one hand machine one pipe of blue colour and one pipe of green colour were recovered within the premises of the Hot Mixed Plant. No authentic documents were produced regarding the Kerosene Oil and the other articles. Thereafter the recovered articles were seized and a seizure list was prepared in presence of independent witnesses. 9. On the basis of the written report GovindpurP.S. Case No. 106 2008 dated 08.04.2008 was registered against the petitioners and after completion of investigation the charge sheet was submitted and vide order dated 20.08.2008 cognizance of the offence was taken under Section 414 of the Indian Penal Code and Section 7 of the Essential Commodities Act. Thereafter pursuant to order dated 31.07.2009 the case for the offence under Section 7 of the Essential Commodities Act was separated and a separate case record was opened as G.R. No. 991 of 2008(A) and the substance of accusation for the offence under Section 7 of the Essential Commodities Act was read over and explained to the petitioners in Hindi to which they pleaded not guilty and claimed to be tried. In course of trial the prosecution examined altogether 08 witnesses to prove its case. P.W. 1 is Diwakar Ram P.W.2 is Rawan Tudu P.W. 3 is Sunil Kumr Singh P.W. 4 is Shyam Ravidas P.W. 5 is Nageshwar Rao P.W. 6 is Naresh Paswan P.W. 7 is Gulab Pandey and P.W. 8 is Tarkeshwar Pandey. The prosecution exhibited the seizure list as Exhibit 1 and the written report as Exhibit 2. P.W 1 to 4 were members of the raiding party and P.W 6 was the informant of the case. After conclusion of prosecution evidence the statements of the petitioners were recorded under Section 313 of Cr.P.C. wherein they denied the incriminating evidences put to them and claimed to be innocent. The petitioners did not adduce any oral or documentary evidence in their defence. 11. The learned trial court considered the materials on record and summarised its findings in Para 13 of the judgment and recorded that on 07.04.2008 in course of evening patrolling the Informant alongwith the patrolling party reached at the Hot Mixed Plant situated near the Shaurabh Bhatta where the Tempo No. JH10F 0923 was found standing in the plant and on seeing the police party the persons started fleeing but two persons were apprehended. On enquiry they disclosed their identity and in course of the raid three drums containing 150 litres of kerosene oil in each drum and the Tempo were recovered and the owner of the Tempo was disclosed as Naresh Saw. The aforesaid facts have been fully supported by the prosecution witnesses. The learned trial court further recorded that in such situation the prosecution has been able to prove its case under Section 7 of the Essential Commodities Act against the accused persons. The learned trial court convicted the petitioners under Section 7 of the Essential Commodities Act and sentenced them as mentioned above. 12. The appellate court also considered the materials on record and recorded in Para 7 that from the evidences of the prosecution witnesses it is clear that three drums of kerosene oil i.e. about 450 litres was seized by the P.W. 6 and all these witnesses P.Ws. 1 2 3 and 4 were present at the time of the seizure and the seizure of the kerosene oil was also not denied. Therefore the prosecution has been able to prove its case beyond all reasonable doubts. The learned appellate court confirmed the Judgment of conviction and the order of sentence passed by the learned trial court and dismissed the criminal 13. After hearing the parties and going through the records of the case this Court finds that in the present case 450 litres of kerosene oil in total were recovered from the place of occurrence and the Petitioner No.1 and 3 were apprehended at the spot and the Petitioner No.2 was the owner of the Tempo No. JH10F 0923 which was found to be loaded with two drums of kerosene oil. On demand no authentic document was produced by the petitioners for the recovered kerosene Oil. 14. From the entire records of the case right from the FIR materials produced during evidence and the Judgements passed by the learned courts below it has not come on record as to which Order issued under Section 3 of the Essential Commodities Act 1955 has been violated by the petitioners calling for their involvement in any offence under Section 7 of the Essential Commodities Act 1955. Section 7 of the Essential Commodities Act 1955 provides for penalties for contravention of any order made under Section 3 of the Essential Commodities Act 1955. In view of the fact that neither any Order issued under Section 3 of the Essential Commodities Act has been brought on record at any stage of the proceedings nor the impugned judgements refer to violation of any Order issued under Section 3 of the Essential Commodities Act the condition precedent for imposition of penalty under Section 7 of the Essential Commodities Act has not been satisfied from the side of the prosecution in the present case. 15. Learned counsel for the petitioners has rightly relied upon a judgment passed by this Court in the case reported in 2012East Cr C 367(Susharma Singh Munda vs State of Jharkhand) wherein the FIR instituted under Section 7 of the Essential Commodities Act 1955 was quashed on the ground that it did not disclose under what provisions of Section 3 of the Act the offence has been committed by the petitioner. Vide para 5 of the aforesaid judgment a copy of the judgement was sent to the Law Secretary Government of Jharkhand who was directed to place the same before the appropriate Secretary of the Department so that in future proper care is taken while lodging the FIR under the provisions of Essential Commodities Act 1955 by the officers and the guilty persons may not be spared because of the lapses on the part of the officers. In the present case also the entire case record does not disclose as to which provision Order under Section 3 of the essential commodities Act has been violated calling for conviction under Section 7 of the Essential Commodities Act 1955. 16. Considering the aforesaid facts and circumstances in the present case the impugned judgments passed by the learned courts below cannot be sustained in the eyes of law and calls for interference under the revisional jurisdiction of this court in order to prevent the miscarriage of justice. Accordingly the impugned judgments passed by the learned courts below are set aside. It is made clear that this judgement will have no bearing whatsoever on the separated trial of the petitioners under Section 414 of the Indian Penal Code. 18. This petition is accordingly allowed with aforesaid 19. Pending interlocutory application if any is closed. 20. Let the lower court records be immediately sent back to the court concerned. 21. Let a copy of this Judgment be communicated to the learned court below through e mail FAX. Binit Mukul Anubha Rawat Choudhary J.)

Estoppel can only arise if a party to a proceeding has altered his position on the faith of a representation or promise made by another: Orissa High Court

Estoppel is based on the allegiance of maximum allegans contraria non est audiendus, which are the kinds of presumption juries et jure (absolute or final or impermissible presumption) if it is taken to be true that the alleged fact is not true against the whole world, but a particular party. Estoppel can only occur if a party to a case has changed its position on the belief that someone else has represented or promised. The judgment was passed by The High Court of Orissa in the case of Manoranjan Das Mohapatra V. State of Odisha and Others [W.P.(C) No. 31182 of 2020] by a Single Bench consisting of Hon’ble Shri Justice B.R.Sarangi. The petitioner has filed this writ petition in person seeking to declare the impugned judgment as illegal, arbitrary, and unconstitutional, and consequentially issue direction to the opposite party to allot a plot in favor of him either in the same project or in any other similar housing project under the control and management of the opposite party-Odisha Co-operative Housing Corporation Ltd., Bhubaneswar. Learned counsel for the petitioner (himself) contended that he had deposited the earnest money of Rs.50,000 in the shape of demand draft according to the advertisement, but an opposite party, having kept quiet for six years, returned the aforesaid earnest money without any interest and without allotting any plot in his favor. He further contended that because of the filing of the writ petition, the opposite party returned his earnest money of Rs.50,000 to get rid of the charge of contempt. Thereby, the opposite party has acted arbitrarily and unreasonably, for which the petitioner seeks interference of this Court at this stage. Learned Counsel for the respondent contended that the petitioner has received back the earnest money deposited by him, with due acknowledgment, he cannot turn around and claim the plot and as such, the relationship between the petitioner and opposite parties, which was continuing, has been ceased. More so, no contract is subsisting between the parties to claim the benefit in the present writ petition. Assuming but not admitting, if there is a violation of any terms and conditions, which emanates from the so-called contract, the petitioner should have approached the appropriate forum ventilating his grievances following the law, instead of approaching this Court by filing present writ petition invoking extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution of India.

ODISHA HIGH COURT: CUTTACK W.P.(C) No. 311820 In the matter of an application under Articles 226 & 227 of the Constitution of India. Manoranjan Das Mohapatra versus State of Odisha and others Opp. Parties For Petitioner Mr. M.D. Mohapatra AdvFor Opp. Parties: Mr. A.K. Mishra Addl. Govt. Advocate O.P. No.1) P R E S E N T : THE HON’BLE DR. JUSTICE B.R.SARANGI DECIDED ON 03.06.2021 Dr. B.R.Sarangi J. The petitioner who is an advocate by occupation has filed this writ petition in person seeking to declare the impugned proceeding vide memo no.4046 dated 04.05.2020 as illegal arbitrary and unconstitutional and consequentially issue direction to opposite party no.3 to allot a plot in favour of him either in the same project or in any other similar housing project under the control and management of the opposite party Odisha Co operative Housing Corporation Ltd. Bhubaneswar. The factual matrix of the case in hand is that opposite party no.3 Managing Director of opposite party no.2 Odisha Co operative Housing Corporation Ltd. issued an advertisement in daily newspaper “The Samaja” on 01.01.2013 inviting applications for sale of 18 number of vacant plots of different sizesat the rate of Rs.160 per sq.ft. at Kalinga Vihar Housing Project Puri Odisha. The advertisement specified that the applicants need to apply in plain papers indicating their choice of plot with booking amount of Rs.50 000 and the mode of allotment would be on “First come first serve” basis and the deposit would be received in shape of Demand Draft Bankers cheque issued in favour of “Odisha Co operative Housing Corporation Ltd.” payable at Bhubaneswar. The Managing Director Odisha Co operative Housing Corporation Ltd. reserved the right to accept or reject any application submitted without assigning any reasons whatsoever. Pursuant to such advertisement the petitioner submitted his application along with demand draft of Rs.50 000 bearing demand draft no.132819 dated 01.01.2013 drawn on Syndicate Bank in favour of opposite party no.3 which was duly received by him. After receipt of his application along with requisite fees the petitioner did not receive any communication from opposite party no.3 with regard to his selection or rejection of allotment of plot. The petitioner waited from 2013 to 2016 with a hope that the plot would be allotted in his faovur and intimation would be given to him. Opposite party no.3 neither allotted the plot nor intimated the petitioner regarding allotment of the plot. Therefore the petitioner submitted representation on 02.01.2014 to opposite party no.3 with regard to consideration of his application dated 01.01.2013 but no reply was forthcoming from opposite party no.3. Consequentially against inaction of opposite party no.3 the petitioner approached this Court by filing W.P.(C) No.2546 of 2016 which was disposed of vide order dated 22.02.2016 with a direction to opposite party no.3 to consider the application and dispose of the representation dated 02.01.2014 of the petitioner within a period of 4 weeks from the date of receipt of the order. Though the said order was communicated opposite party no.3 slept over the matter and did not give any intimation to the petitioner. Due to non compliance of the order dated 22.02.2016 passed in W.P.(C) No.25416 the petitioner filed CONTC No.249 of 2017 in which upon receipt of notice opposite party no.3 issued a letter and a cheque of Rs.50 000 in favour of the petitioner dated 16.12.2019 stating that the earnest money received was returned herewith as the petitioner was not provided with the land applied for. Hence this writ petition. Mr. M.D. Mohapatra the petitioner appearing in person contended that he had deposited the earnest money of Rs.50 000 in shape of demand draft pursuant advertisement issued on 01.01.2013 but opposite party no.3 having kept quiet for a period of six years returned the aforesaid earnest money without any interest and without allotting any plot in his favour. He further contended that because of filing of W.P.(C) No. 2546 of 2016 and subsequently CONTC No. 249 of 2017 opposite party no.3 returned his earnest money of Rs.50 000 in order to get rid of the charge of contempt. Thereby opposite party no.3 has acted arbitrarily and unreasonably for which the petitioner seeks interference of this Court at this stage. Mr. A.K. Mishra learned Additional Government Advocate appearing for the State contended that the petitioner having received back the earnest money deposited by him with due acknowledgement he cannot turn around and claim the plot and as such the relationship between the petitioner and opposite parties no.2 and 3 which was continuing has been ceased. More so no contract is subsisting between the parties so as to claim the benefit in the present writ petition. Assuming but not admitting if there is violation of any terms and conditions which emanates from the so called contract the petitioner should have approached the appropriate forum ventilating his grievances in accordance with law instead of approaching this Court by filing present writ petition invoking extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. This Court heard Mr. M.D. Mohapatra the petitioner in person and Mr. A.K. Mishra learned Additional Government Advocate for the State through virtual mode. As the matter is being decided at the stage of fresh admission this Court is not inclined to issue notice to opposite parties no.2 and 3 and has disposed of the matter on the basis of the argument advanced by the petitioner Mr. M.D. Mohapatra and Mr. A.K. Mishra learned Additional Government Advocate for the State and materials available on record itself. The facts mentioned above are not in dispute. But the question raised that having retained the earnest money for a period of more than six years and refunded the same to the petitioner pursuant to contempt proceeding initiated against opposite parties no.2 and 3 the action of opposite parties no.2 and 3 is arbitrary and contrary to the law. No doubt earnest money deposited by the petitioner was kept for a period of six years to provide a plot pursuant to advertisement issued under Annexure 1. On perusal of advertisement under Annexure 1 it is made clear that the mode of allotment would be on “First come first serve” basis. Even though the petitioner applied in a plain paper by depositing Rs.50 000 as booking amount in shape of demand draft but his right only accrues if he satisfies the requirement of “First come first serve” basis. Pursuant to the representation dated 02.01.2014 which was filed by the petitioner and was directed to be disposed of vide order dated 22.02.2016 in W.P.(C) No.2546 of 2016 opposite party no.3 Managing Director Odisha Co operative Housing Corporation Ltd. passed the following order: “In obedience to Order dated 22.02.2016 of the Hon’ble High Court Odisha passed in W.P.(C) No.2546 of 2016 the representation of the Petitioner Sri Manoranjan Das Mohapatra is taken up for disposal n dated 04.05.2020. The brief history of the facts that the Odisha Cooperative Housing Corporation had advertisement dated 01.01.2013 in daily Odia Newspaper ‘Samaj’ for allotment of 18 Nos. of vacant plots at its Kalinga Vihar project at Puri on the first come first serve basis. In response to such advertisement 60 Nos. of applicants including the present Petitioner Sri Das Mohapatra applied for a plot in the said project. For the purpose of allotment the Corporation maintained the serial as per the date & time of submission of applications by the applicants. As per the serial the Corporation allotted 18 plots to the applicants from Sl. No.1 to 18 and the others could not be allotted any plots. It is to mention here that the Serial Number of the present Petitioner Sri Das Mohapatra was 32. As such he was not eligible for allotment of Plot in the aforementioned project. However the Corporation tried to adjust the rest applicants in the same project as well as in other projects. However such proposal of the Corporation could not be materialized. In the instant case the Petitioner Sri Das Mohapatra was refunded back his deposited money vide Cheque No.596155 dated 05.12.2019 amounting to Rs.50 000 2 SCC 355 the apex Court held that „Estoppe‟ commeth of a French work „estoupe‟ from whence the English word stopped and it is called an „estoppel‟ or conclusion because a man‟s owne act or acceptance stoppeth or closeth up his mouth to allege or plead the truthand is that species of presumption „juries et et jure‟ where the fact presumed is taken to be true not as against all the world but against a particular party and that only by reason of some act done it is in truth a kind of agrumentum ad In Mahindra and Mahindra Ltd. v. Union of India 2 SCC 529 the apex Court held that „estoppel‟ can arise only if a party to a proceeding has altered his position on the faith of a representation or promise made by another. It is not to be forgotten that the advertisement clearly stipulated that the plot would be allotted on “First come first serve” basis. Therefore on the basis of applications received if the chronology has been maintained by opposite parties no.2 & 3 on the “First come first serve” basis and the petitioner‟s name was found place at serial no.32 and there were only 18 plots available it cannot be said that illegalities and irregularities have been committed by opposite parties no.2 and 3 so as to cause interference of this Court at this stage. Coming to the allegation as made with regard to retention of booking money for a period of six years for that the petitioner has alternative remedy to approach the appropriate forum claiming interest thereon. For the reasons indicated hereinbefore this Court is not inclined to interfere with the order impugned communicated to the petitioner vide memo no.4046 dated 04.05.2020 by opposite party no.3 in Annexure 7. However it is left open to the petitioner to pursue his remedy before the appropriate forum claiming interest on the booking money if he is so desired. With the above observations and directions the writ petition is disposed. However there shall be no order as to costs. DR.B.R.SARANGI Odisha High Court Cuttack The 13th January 2021 Alok

The Court declined pre-arrest bail as there was a strong probability of foul play in the death of the deceased.: High court of Patna

The petitioner was arrested under Section 304B IPC, “Dowry death”, section 201, “Causing disappearance of evidence of the offense, or giving false information to screen offender” and section 120B, “Punishment of criminal conspiracy”, section 34IPC, “Acts done by several persons in furtherance of common intention”. This is in connection with Kotwa PS Case No. 342 of 2019 dated 26.11.2019. This judgment was given in the high court of Judicature at Patna by honorable Mr. Justice Ahsanuddin Amanullah on the 29th  of July 2021 in the case of Asha Dev and others versus the state of Bihar criminal miscellaneous, No.35510 of 2020 Mr. Pravin Kumar Represented as the advocate for the petitioner and Mr. Rajendra Prasad represented 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 being family members of the husband of the deceased they were accused of being a party to the killing of the informant’s sister. The counsel for the petitioner held that the relatives of the husband of the deceased were residing separately, which was later transpired to be false and the husband and the deceased had a love marriage and according to the FIR, the husband of the deceased called up the informant to inform him about his sister’s death and here the family was not hiding anything. The family members also visited during the cremation process but later on the informant lodged a case regarding the same. The counsel for the petitioner submitted that the deceased before marriage was suffering from epilepsy and was a chronic patient. The Additional Public Prosecutor submitted that since section 304B states that when death happens within seven years of the marriage the relatives of the husband can be made liable under section 304B since in our case the death happened within three years, it is clearly a dowry death, the prosecutor objected the case made by the counsel for the in-laws of the deceased, and held that according to the witness the in-laws stayed with the deceased and the cremation was done without informing the deceased’s family. Only a very vague statement was made regarding the death of the young girl but no explanation was made regarding the same, another indication to why the in-laws were displeased was because it was a long marriage and regarding the illness, there is no strong evidence to claim she died from the illness and the in-laws failed to provide her medical aid and the in-laws failed to register an unnatural death in this case. Therefore, the petitioners must be held liable for causing dowry death. After considering the facts and circumstances of the case the court held that “The sheer conduct of the petitioners, who are in-laws of the deceased and living in the same house, coupled with the fact that the marriage was a love marriage, indicates that the petitioners were not satisfied with the same, and, thus, there is a strong probability that there was some foul play in the death of the deceased as it occurred within three years of marriage and that the deceased was a young girl. Further, it was submitted, that nothing has come during the investigation to even indicate that any effort was made by the petitioners to get any kind of medical aid to the victim which cannot also be lost sight of.” The court concluded that “The Court is not inclined to grant pre-arrest bail to the petitioners. Accordingly, the petition stands dismissed. Interim protection granted to the petitioners under order dated 29.06.2021, stands vacated.” Click here to read the judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.355120 Arising Out of PS. Case No. 342 Year 2019 Thana KOTWA District East Champaran 1. Asha Devi Female aged about 59 years wife of Shewak Singh Shewak Singh Male aged about 66 years son of Dev Singh Ragani Kumari female aged about 20 years daughter of Shewak Singh 4. Munna Kumar male aged about 26 years son of Shewak Singh All are resident of Village Madhuaha @ Maduaha PS Kotwa District Sangeeta Devi female aged about 29 years wife of Binay Singh Daughter of Shewak Singh Resident of Village Sagar Kathariya PO Sagar PS Kotwa District East Champaran 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. Pravin Kumar Advocate Mr. Rajendra Prasad Nat APP Date : 29 07 2021 The matter has been heard via video conferencing 2. Heard Mr. Pravin Kumar learned counsel for the petitioners and Mr. Rajendra Prasad Nat learned Additional Public Prosecutorfor the 3. The petitioners apprehend arrest in connection with Kotwa PS Case No. 3419 dated 26.11.2019 instituted under Sections 304B 201 and 120B 34 of the Indian Penal 4. The allegation against the petitioners is that they Patna High Court CR. MISC. No.355120 dt.29 07 2021 were party to the killing of the sister of the informant being family members of the husband of the deceased 5. Learned counsel for the petitioners submitted that they are the relatives of the husband of the deceased and were separate both in lodging and mess and that it was a love marriage between the deceased and her husband. It was submitted that in the FIR itself it is said that the husband of the deceased had rung up the informant to tell him about her death and the fact is that the family members of the deceased had come and participated in the cremation but later on they have lodged this false case. Learned counsel submitted that the deceased was a chronic patient of epilepsy since before her marriage. It was submitted that subsequently both the parties have also filed compromise petition in the Court below 6. Learned APP from the case diary submitted that besides the death having occurred within three years of marriage the petitioners are in laws of the deceased living in the same house and the witnesses have supported the prosecution case that the body was cremated without any information to the deceased’s family. It was submitted that only a bald stand has been taken by the petitioners that the husband of the deceased had informed the family of the deceased that she had died but Patna High Court CR. MISC. No.355120 dt.29 07 2021 there is no explanation as to how a young girl had died suddenly. Further it was submitted that the marriage being a love marriage it is obvious that the petitioners would not have been satisfied with the same as they had not arranged the marriage which also raises strong circumstances with regard to their complicity. Moreover it was submitted that there being no material to show that the deceased was suffering from a life threatening disease and had died as a result thereof and further no effort being made by the petitioners to take the deceased to any doctor or hospital if at all she had fallen ill itself is a big pointer that something wrong had been done which they had covered up and the best way was by cremating the body without leaving any trace of any such mark or evidence. It was submitted that had the petitioners been innocent the death of a young girl without any explanation having occurred in the matrimonial home it was their duty to inform the police for registering at least a case of unnatural death which has not been 7. 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. The sheer conduct of the petitioners who are in laws of the deceased Patna High Court CR. MISC. No.355120 dt.29 07 2021 and living in the same house coupled with the fact that the marriage was a love marriage indicates that the petitioners were not satisfied with the same and thus there is strong probability that there was some foul play in the death of the deceased as it occurred within three years of marriage and that the deceased was a young girl. Further it was submitted that nothing has come during investigation to even indicate that any effort was made by the petitioners to get any kind of medical aid to the victim which cannot also be lost sight of 8. For reasons aforesaid the Court is not inclined to grant pre arrest bail to the petitioners 9. Accordingly the petition stands dismissed 10. Interim protection granted to the petitioners under order dated 29.06.2021 stands vacated 11. However in view of submission of learned counsel for the petitioners it is observed that if the petitioners appear before the Court below and pray for bail the same shall be considered on its own merits in accordance with law without being prejudiced by the present order (Ahsanuddin Amanullah J

Indira Khurana vs. Prem Prakash

Introduction:  Parents play a significant role in child development. The relationship between the parent and child helps in defining the personality of the child. But for this both the parents are required to guide their children, which is quite difficult if the parents are staying separately. In the case of Indira Khurana v. Prem Prakash, it talks about the Judicial discretion exercised for the welfare of the children.  Facts: Both the parties were married to each other on 24th January 1981 and two daughters were born out of wedlock namely Radhika who aged 13 and half years and Nikita aged 12 years.  On 6th December 1993, a memorandum of understanding was formed between the parties stating various clauses, one such clause stated that the children would stay with their mother and can stay with father on weekends and holidays.  The respondent filed an application for visitation rights, in accordance to which the Guardian Judge, Mr. R.S. Khanna on 9th August 1995 passed an impugned order directing Ms. Indira Khurana to send their children to Mr. Prem Prakash (father) (hereinafter referred to as the “respondent”) from 10 am to 6 pm on Sunday.  Ms. Indira (hereinafter referred to as the “appellant”) filed an appeal challenging the order of the Guardian Judge on the grounds that the judge allowed the application without taking into consideration the wishes of the children, thus being against the welfare of children.  Issue: Whether, in case of grant of limited custody or visitation rights, prior ascertainment of the wishes of the children is essential. Contentions raised: Mr. Kataria the learned counsel for the petitioner contended that both the children were fairly mature and the Judge should have to find the cause as to why they were not ready to meet the respondent. Further, it was submitted that the respondent was cruel not only to the petitioner but also to the children where once he beat one of his children with a stick making the children feel petrified in his presence. The counsel to support his contentions relied on various cases as Kirtikumar Maheshshankar Joshi v. Pradipkumar Joshi, Chandrakala Menon & Anr v. Vipin Menon & Anr, and, Mrs. Prabhati Mitra v. D.X. Mitra wherein all the above cases the Court had talked to the children first and only after ascertaining their wishes passed the order. As the Guardian Judge failed to do so, the order was vitiated with material irregularity and deserves to be set aside.  On the other hand, the counsel for the respondent contended that all the allegations made by the petitioner relating to ill-treatment, cruelty, and violent behavior were false and it was the petitioner who is poisoning the minds of children. Further, it was contended that only in the case of grant of custody one may need to know the wishes of children but it may not be so in granting visitation rights.  Observations:  The Court observed that the cases put forth by the petitioner in support of her contentions were all related to grant of custody, in none of the above the question of visitation rights are generally granted to the person having no custody and one may need a strong reason to deny such rights if it injures the mental or physical health of the children. Observing the memorandum of understanding the Court stated after 6th December 1993 the petitioner failed to point out anything that would render mental or physical injury to the health of children by the respondent.  Further, the Guardian Judge shall ascertain the wishes of children before granting visitation rights but, omission of which cannot be said to be fatal. Moreover, as the children stay with the petition there is a possibility that their wishes may be persuaded by the petitioner.  Judgment: The Court based on the contentions and after discussing the same with the children stated that it would be in their interest and welfare that the respondent possess visitation rights. However, the Court made some variations in the impugned order whereby initially for bridging the gap between children and their father the children for meeting their father shall be taken to Mr. R. L. Tandon’s (advocate) house on every Sunday from 2 pm to 7 pm for the coming 4 months. During this time the respondent may take children out for entertainment or recreation purposes and after the completion of four months, the impugned order shall be followed.  Conclusion: The Court dismissed the petition on the grounds that the main reason for filing the case did not subsist anymore as the wishes and concerns of children have been ascertained. The Court upheld the order of the Guardian Judge by making variations in the meeting time and dismissed the revision petition.  Edited By: Purnima Ojha Reference:  Kirtikumar Maheshshankar Joshi v. Pradipkumar Joshi, AIR 1992 SC 1447 Chandrakala Menon & Anr v. Vipin Menon & Anr, I 1993(41) BLJR 538 Mrs. Prabhati Mitra v. D.X. Mitra, Appeal No. 182 of 1983Indira Khurana v. Prem Prakash, https://indiankanoon.org/doc/143531

Indira Khurana vs Prem Prakash on 1 October 1995 Delhi High Court Indira Khurana vs Prem Prakash on 1 October 1995 Equivalent citations: 60DLT 633 Author: M Sarin Bench: M Sarin JUDGMENT Manmohan Sarin J 1) The petitioner by this revision petition assails the impugned order dated 9.8.1995 passed by Mr R.S. Khanna Guardian Judge whereby the learned Judge directed the petitioner to send the children i.e. two daughters to the respondent father from 10 a.m. to 6 p.m. on Sundays. Further that the respondent would return the children to the petitioner at 6 p.m. on the same day. The above order was passed on the respondent s application for visitation rights 2) Learned Counsel for the petitioner has assailed the impugned order mainly on the ground that the learned Guardian Judge allowed the application of the respondent and granted the visitation rights and interim custody to the respondent during that period without ascertaining the wishes of the children. Learned Counsel for the petitioner assailed the order on the ground that it was the duty of the Guardian Judge to personally meet the children ascertain their wishes and then only decide whether it would be in welfare of the children to grant visitation rights to the respondent 3) Learned Counsel for the petitioner submitted that the daughters viz. Radhika aged 131 2 years and Nitika aged 12" years were fairly matured and capable of making an intelligent preference. The learned Guardian Judge should have ascertained their wishes and attempted to find out the causes as to why the children were not willing to meet or have anything to do with their father. The impugned order it was submitted was against the welfare of the children. It was submitted that the respondent apart from treating the petitioner with utmost cruelty had also been cruel to the children. Reference was made to an incident when respondent allegedly beat up Radhika with a stick. It was stated that the children were petrified of the respondent and in fact used to either feign sleep or huddle in a corner when the respondent used to come home 4) Counsel for the petitioner in support of his submission relied on titled Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi. In the cited case the Supreme Court granted custody to the maternal uncle instead of the father. This was a case where the mother had died. Father was facing criminal charges under Section 498 A of Indian Penal Code. The Hon ble Judges of the Supreme Court had spoken to the children and found them independent and more matured then their age. Children were bitter about their father and narrated various episodes of ill treatment of the deceased mother at the hands of their father. Children were unwilling to live with their father inspite of persuation by the Court. The Court assessing the state of mind of children reached the conclusion that it would not be in the interest and welfare of the children to hand over their custody to the father. The Supreme Court while granting custody to the maternal uncle granted visitation rights to the father who was permitted to meet the children on holidays or any other day with prior notice and to take the children out of the appellant s house for recreation entertainment or for shopping with the concurrence of the children. The Court further held that in due course if he is able to win over the love and affection of the children he would be at liberty to move this Court Indian Kanoon regarding modification of the order for custody Indira Khurana vs Prem Prakash on 1 October 1995 5) Counsel for the petitioner next relied on 1993(2) Sc 6=lDmc 135titled Chandrakala MenonAnd Anr. v. Vipin MenonRelying on the above decisions Mr. Kataria Learned Senior advocate submitted that in all the above cases the Court prior to passing of any order had ascertained the wishes of the children by talking to them. Further that the wishes of the children was a weighty factor to be considered. The learned Guardian Judge having not done so the impugned order was vitiated with material irregularity. Mr. Kataria further submitted that the children were so petrified of the respondent father that on Sunday when they were to be taken to the house of Mr. R.L. Tandon the younger daughter they become extremely uncomfortable and developed nausea. Learned Counsel for the petitioner thereore submitted that the impugned order deserved to be set aside 7) Learned Counsel for the respondent submitted in reply that the allegations of ill treatment cruelty and violent behavior made against the respondent were totally false. The petitioner had been tutoring the children and poisoning their mind against the respondent. Respondent also referred to a memorandum of understanding dated 16.12.1993 that had been arrived at between the parties and from which the petitioner was resiling Indian Kanoon Indira Khurana vs Prem Prakash on 1 October 1995 8) It would be relevant to reproduce the terms of the memorandum of understanding dated 6.12.1993 arrived at between the parties. "MEMORANDUM of Understanding We were married on 24.1.1981 and have now been living separately since 4.12.1991. We met today to finally settle our future relation but could not reach any conclusion either about cohabitation or about formal separation. However following understanding was arrived at in regard to our daughters named Radhika and Nitika.Both of us recognise that children need the love and attention of both parents for a homogenous growth and thus each parent would have free access to the children wherever they are.For the time being the children would continue to stay with their mother during weekdays and with their father on weekends holidays.During vacations each parent shall keep the children for such period as is agreed between them consistent with the wishes and the welfare of the children. Their trips outside Delhi during vacations shall be in consultation with each other.The children shall not be removed from outside India by one parent without the consent in writing of there other.Neither parent would speak ill against the other or try to keep the children away from the other. Both would do their utmost to keep them happy and well looked after at all times. In witness we set our hands this 6th day of December 1993 Counsel for respondent submitted that it is only when the question of grant of custody is involved that the ascertainment of the wishes of the children is important. However visitation rights can be granted without any compulsive requirement of ascertaining the wishes of the children by meeting them. It was urged that the disinclination of children to meet the father was a result of the continues poisoning of their mind by the mother and such wishes should not be given any weight since it was in the larger interest of the children that they continue to have the love and affection of both the 9) The petition had come up before me on 16.8.1995 when notice of the same was issued on the ground limited to whether even for grant of limited custody or visitation rights prior ascertainment of the wishes of the children is essential Interim directions were issued for the petitioner to send the children on Sundays to the house of the Counsel for the respondent for the meeting with variation in time 10) Having considered the rival contentions I find that in all the cases cited by the petitioner decision on grant of custody was involved. It goes without saying that when the grant of custody is concerned ascertainment of wishes of the children especially when they are at an age to make an intelligent preference is a relevant and germane consideration. In none of the cited cases the question of visitation rights only was involved. In the cited cases the Court was considering the grant of custody and while doing so had also made provision for visitation rights. It is also significant that in these cases visitation rights were granted to the spouse who did not have the custody. This is because there should be very strong reasons to deny visitation rights to any of the spouse. These could be cases say where the grant of visitation rights could be injurious to the mental and physical health of the children 11) The Guardian Judge while exercising his judicious discretion in granting visitation rights can certainly ascertain the wishes of the children by meeting them. In fact it would be desirable to do so However omission to do so in case of visitation rights cannot be fatal especially when there is Indian Kanoon Indira Khurana vs Prem Prakash on 1 October 1995 sufficient material on record available otherwise supporting grant of visitation rights. This is so in the instant case. The memorandum of understanding had been entered into on the 6th day of December 1993. The petitioner has not pointed out anything attributable to respondent after 6.12.1993 which would render grant of visitation rights to respondent injurious to the mental and physical health of the children. The petitioner in terms of memorandum was willing to share the vacation and give visitation rights to the respondent. Moreover the expression of wishes of the children is very often conditioned by the persuation of the party in whose exclusive custody the children have been. The Court therefore while ascertaining the mind of the children has to be conscious of the fact that what the children say could be the reflection of the views of the estranged spouse and induced by him her 12) As observed earlier I had as an interim measure directed children to be taken to the house of Mr. R.L. Tandon Advocate for the meeting with the respondent. This was in view of the disinclination of the children to go to the respondent s house. I had called the children in my chamber on 6.9.1995 as two Sundays had elapsed from the date of the interim order with a view to assess the progress as also to ascertain and understand the causes of apparent disinclination of the children to meet the respondent. After talking to Nitika the younger daughter and Radhika the elder one together as well as with Radhika separately I am of the view that their resentment to meet the respondent would get diluted with passage of time and contact with the respondent. The respondent father should try to win their affection and assuage their hurt feelings. The reactions and the views of the children to a large extent stem from what they perceive as the desertion of their mother and their neglect by respondent. I had explained to both the children the desirability of having the love and affection of the respondent father for their future lives and impressed upon them that the respondent must be given an opportunity to make amends if they feel that they had been wronged. It was explained to the children that it was in their interest and welfare that the link with the father was not broken. After talking to the children and hearing them regarding their grievances I am of the view that it would be in their interest and welfare that the respondent continues to have the visitation rights. However in the facts and circumstances of this case the impugned order would need some variation. At the initial stages a meeting with the respondent from 10 a.m. to 6 p.m. on Sundays would not be conducive in bridging the gap between the respondent father and children. Let both the children be taken by the petitioner every Sunday to the house of Mr. R.L. Tandon Advocate from 2 p.m. to 7 p.m. to meet the father respondent for the next four months. During the visitation it would be open to the respondent father to take the children out of the house for any entertainment or recreation. The petitioner would pick up the children from the house of Mr. R.L. Tandon Advocate. Upon the expiry of four months the visitation rights would be in accordance with the impugned order. The gracious offer of hospitality by Mr. R.L. Tandon Advocate deserves to be appreciated 13) In the view that I have taken the revision petition is liable to be dismissed. Even otherwise the main grievance of the petitioner does not subsist any longer since wishes and concerns of the children have been ascertained and assessed by talking to them. The revision petition is dismissed with the variation in meeting time as ordered Indian Kanoon

GURU CHARAN SINGH V/S STATE OF PUNJAB

To convict a person under Section 306 IPC, there  has to be a clear mens rea to commit an offence and that there ought to be an active or direct act leading the deceased to commit suicide, being left with no option Dr. Jaspal Singh, who was initially in the Government service, had relinquished the same and started a coal factory at Muktsar. He suffered loss in the business and consequently failed to repay the loan availed by him in this regard from the bank.Before leaving his family, he addressed a communication to the concerned bank expressing his inability to repay the loan in spite of his best efforts as he was not possessed of any property in his name. Dr. Jaspal Singh was thereafter not to be traced.His wife Surjit Kaur and his daughters shifted from Jalalabad where they used to stay to Abohar and started residing in a rented house. They had no source of income and further, they were also deprived of their share in the property and other entitlements, otherwise supposed to devolve on Dr. Jaspal Singh.  They were also not provided with any maintenance by the family members of her husband – Jaspal Singh and instead were ill-treated, harassed, and intimidated.On 3.10.2000 at about 10.30 p.m., Hansraj, the landlord of the deceased Surjit Kaur, being suspicious about prolonged and unusual lack of response by his tenants, though the television in their room was on, informed the brother of the deceased Surjit Kaur.  Thereafter they broke open the door of the room and found all three lying dead. The police was informed and FIR was lodged.The Investigating Officer collected a suicide note in the handwriting of Surjit Kaur and also subscribed to by her daughter Preet Bahul. The suicide note implicated the appellant, his wife Ajit Kaur and the convicted co-accused Sukhvinder Singh @ Goldy as being responsible for their wretched condition, driving them in the ultimate to take the extreme step.After the collection of the post-mortem report which confirmed death due to consumption of aluminium phosphide, a pesticide, charge-sheet was submitted against the three persons named hereinabove along with Satnam Kaur under Section 306/34 IPC.PROCEDURAL HISTORY:Whereas Satnam Kaur died during the committal proceedings, charge was framed against the remaining accused persons namely; Gurcharan Singh (appellant), Ajit Kaur and Sukhvinder Singh @ Goldy under the aforementioned provisions of the Code.  As the accused persons claimed to be innocent, they were made to face trial.At the trial, the prosecution examined eight witnesses including the doctor, who had  performed the autopsy on the dead body.  The accused persons stood by the denial of the charge in their statements under Section 313 Cr.P.C. and also examined five witnesses in defence.The Trial Court, on a scrutiny of the evidence adduced, held the appellant herein and the co-accused Sukhvinder Singh to be guilty of the charge levelled against them and awarded them the sentence as hereto before mentioned.  It, however, acquitted the co-accused Ajit Kaur.  To reiterate, by the impugned verdict, the conviction of the appellant and the co-accused Sukhvinder Singh has been upheld with the marginal modification in the substantive sentence as aforementioned.ISSUE BEFORE THE COURT:Whether any act of cruelty, oppression, harassment, or inducement so as to persistently provoke or compel the deceased to resort to self-extinction being left with no other alternative and does these acts constitute to abetment to suicide?RATIO OF THE COURT:The evidence on record did not substantiate the imputation that Surjit and her daughters were deprived wholly of their shares in the joint family property as the heirs of Dr. Jaspal Singh.Neither the appellant nor the in-laws of Surjit had any role in this regard.  The absence of any complaint or civil litigation also permits an inference against the denial of the share in the family property to Surjit and her daughters or of any ill-treatment, torture, oppression meted out to them.That there was neither any proximate nor remote acts of omission or commission on the part of the appellant and his family members that can be irrefutably construed to be a direct or indirect cause or factor compelling Surjit and her daughters to take the extreme step of self-elimination. Section 306 of Indian Penal Code states “Abetment of suicide”. The offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor.  The basic ingredients of this provision are suicidal death and the abetment thereof.Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. The courts should be extremely careful in ascertaining whether  cruelty had been meted out to the victim and that the same had induced the person to end his/her life by committing suicide, with the caveat that if the victim committing suicide appears to be hypersensitive to ordinary petulance, discord and differences  in domestic life, quite common to the society to which he or she belonged and such factors were not expected to the accused charged with  abetment could not be held guilty.Though for the purposes of the case in hand, the first limb of the explanation is otherwise germane, proof of the willful conduct actuating the woman to commit suicide or   to cause grave injury  or danger to life, limb or health, whether mental of physical, is the sine qua non for  entering a finding of cruelty against the person charged. The pith and purport of Section 306 IPC has since been enunciated by this Court in Randhir Singh vs. State of  Punjab (2004)13 SCC 129.The court observe the assessment of the evidence on record as above, in our considered opinion, does not demonstrate with unqualified clarity and conviction, any role of the appellant or the other implicated in-laws of the deceased Surjit Kaur, as contemplated by the above provisions so as to return an unassailable finding of their culpability under Section 306 IPC.  The materials on record, to reiterate, do not suggest even remotely any act of cruelty, oppression, harassment or inducement so as to persistently provoke or compel the deceased to resort to self-extinction being left with no other alternative.  No such continuous and proximate conduct of the appellant or his family members with the required provocative culpability or lethal instigative content is discernible  to even infer that the deceased Surjit Kaur  and her daughters had been pushed to such a distressed state, physical or mental that they elected to liquidate themselves as if to seek a practical alleviation from their unbearable earthly miseries.DECISION HELD BY COURT:In this case the judgement was given by JUSTICE AMITAVA ROY that the court of the unhesitant opinion that the ingredients of the offence of Section 306 IPC have remained unproved and thus the appellant deserves to be acquitted. The findings to the contrary recorded by the courts below cannot be sustained on the touchstone of the law adumbrated by this Court as well as the facts involved.  The appeal is thus allowed.The appellant would be set at liberty from custody, if his detention is not required in connection with any other case.    

IN THE CRIMINAL APPELLATE JURISDICTION REPORTABLE CRIMINAL APPEAL NO. 1135 OF 2016 ARISING OUT OF S.L.PNO. 8764 OF 2016 .…APPELLANT STATE OF PUNJAB ....RESPONDENT JUDGMENT AMITAVA ROY J In assailment is the judgement and order dated 17.12.2014 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. S 566 SB of 2004 affirming the conviction of the appellant and co accused Sukhvinder Singh under Section 306 of the Indian Penal Code as entered by the Trial Court. While by the decision impugned the conviction has been endorsed the substantive sentence of six years of rigorous imprisonment awarded by the Trial Court to each of the accused persons has been scaled down to one of five years of the same description. The instant appeal seeks to overturn the concurrent determinations on the charge by the courts below 2. We have heard Ms. Kawaljit Kochar learned counsel for the appellant and Mr. V. Madhukar learned counsel for the respondent The fascicule of facts indispensable to comprehend the backdrop of the prosecution has its origin in the inexplicable abandonment of the deceased Surjit Kaur and her two daughters namely Geet Pahul and Preet Pahul by Dr. Jaspal Singh their husband and father respectively about two years prior to the tragic end of his three family members as above. The prosecution version is that Dr. Jaspal Singh who was initially in the Government service had relinquished the same and started a coal factory at Muktsar. He suffered loss in the business and consequently failed to repay the loan availed by him in this regard from the bank. As he and his brother Gurcharan Singhand others succeeded to the property left by their predecessors he started medical practice in Be that as it may before leaving his family he addressed a communication to the concerned bank expressing his inability to repay the loan inspite of his best efforts as he was not possessed of any property in his name. Dr. Jaspal Singh was thereafter not to be traced. Following this turn of events according to the prosecution his wife Surjit Kaur and his daughters shifted from Jalalabad where they used to stay to Abohar and started residing in a rented house of one Hansraj Ajit Kaur and Sukhvinder Singh Goldy under the aforementioned provisions of the Code. As the accused persons claimed to be innocent they were made to face trial 8. At the trial the prosecution examined eight witnesses including the doctor who had performed the autopsy on the dead body. The accused persons stood by the denial of the charge in their statements under Section 313 Cr.P.C. and also examined five witnesses in The Trial Court on a scrutiny of the evidence adduced held the appellant herein and the co accused Sukhvinder Singh to be guilty of the charge levelled against them and awarded them the sentence as hereto before mentioned. It however acquitted the co accused Ajit Kaur. To reiterate by the impugned verdict the conviction of the appellant and the co accused Sukhvinder Singh has been upheld with the marginal modification in the substantive sentence as 10. Mrs. Kawaljit Kochar learned counsel for the appellant has emphatically urged that the evidence on record does not furnish the ingredients of abetment as visualised in Section 306 of the Code and thus the conviction is manifestly illegal and is liable to be set aside It being patent from the materials on record that the deceased Surjit Kaur and her daughters had been duly accorded their share in the family property and that they had sufficient means to independently maintain themselves with reasonable comfort the accusation to the contrary as levelled by the prosecution is wholly unfounded she insisted. According to the learned counsel the in laws of the deceased Surjit Kaur had throughout been considerate compassionate and supportive towards her and two daughters and that the suicide committed by them had been on their own volition and not as a result of any torture harassment and oppression by them as alleged. The learned counsel has maintained that the suicide note has not been proved in the handwriting of Surjit Kaur as well and thus there being no evidence whatsoever in corroboration of the charge of abetment the conviction and sentence is liable to be set aside in the interest of justice 11. Per contra the learned counsel for the respondent has urged in confutation that the evidence of the prosecution witnesses more particularly ofPW5 and Gaganjit Singhthe brothers of Surjit Kaur as well as the medical testimony has proved the imputation against the appellant and co accused Sukhvinder Singh beyond all reasonable doubt and in the face of concurrent findings recorded by the courts below on an in depth appraisal of the materials on record no interference with the impugned judgement and order is warranted 12. Though in the teeth of the sequential findings of guilt of the courts below normally reappraisal of the evidence is otherwise uncalled for we are impelled to embark upon that exercise having regard to the rival assertions in the unique facts and circumstances of the case. This is more so as in controversion of the allegation of wilful and deliberate deprivation of the deceased Surjit Kaur and her daughters of their share in the family property as laid by the prosecution evidence has surfaced to the contrary being conceded by her brothers in the course of their testimony at the trial 13. PW3 Hans Raj the landlord stated on oath that the deceased Surjit Kaur and her daughters used to reside in the first floor of his house. On the date of the incident at about 10.00 p.m. his wife reported to him that though the lights of that floor were off the television was on. The witness thereafter along with his wife knocked the door of the apartment of the deceased but there was no response. After waiting for some time the witness informed Gurjit Singh and Gaganjit Singh the brothers of Surjit Kaur and on their arrival as the same state of affairs continued they broke open the door and found all the three lying dead. The police was thereafter informed. According to this witness even after this incident none of the accused persons or the in laws of Surjit did come to inquire about the same In cross examination the witness mentioned that all the three deceased used to remain dejected and depressed. They however often visited the parents and the brothers of Surjit. He disclosed that Surjit had a house at Abohar. He admitted that at no point of time Surjit and her daughters did complain to him about any threat extended by the accused persons. The witness disclosed that though Surjit had expended substantial amount on the coaching of her daughter she failed in the examination for which she was morose and anguished. The witness opined that Surjit and her daughters had committed suicide out of grief for their missing husband father According to him the accused persons were not in any manner responsible for their death 15. PW4 Dr. Kalra who had performed the post mortem examination of Preet Bahul testified on the basis of the report of the chemical analysis of her viscera that death was due to consumption of aluminum phosphide which was sufficient to cause death in due course of time. To the same effect is the evidence of PW11 Dr Thakral vis a vis Surjit and her daughter Geet 16. PW5 and PW6 Gurjit and Gaganjit the brothers of Surjit Kaur did depose in similar lines. They stated that at the time of their death Geet and Preet were aged 22 years and 18 years respectively They reiterated the version narrated in the FIR pertaining to the sudden disappearance of their brother in law Dr. Jaspal Singh husband of Surjit he having suffered losses in business. They also mentioned that at that time Dr. Jaspal Singh had heavy outstanding dues qua the bank. They disclosed as well that after the death of Jaktar Singh the father of Dr. Jaspal their brother in law along with his brothers inherited the joint property. They also reiterated the narration of the facts preceding the discovery of the dead bodies as recited by PW3. They confirmed the recovery and seizure of amongst others the diary containing the suicide note They identified the text of the suicide note in the hand of their sister Surjit. They identified the signature of Preet also thereon. These witnesses in their examination in chief though alleged that their sister and nieces had committed suicide because they were deprived of their share in the joint properties and for which they suffered from sustained depression in cross examination they acknowledged a sale deed executed by the appellant Gurucharan in favour of Surjit regarding half share in the house at Abohar which was also a segment of the family property. They conceded as well that Satnam Kaur the mother in law of Surjit might have issued a cheque of Rs.68 650 in her name and that she had opened an account therewith in the name of her brother Gagandeep. They admitted that there was a parcel of land in the name of deceased Surjit at Muktsar. When confronted with the statements under Section 161 Cr.P.C. they admitted of not having disclosed to the Investigating Officer that the share in land of Dr. Jaspal Singh had not been given to Surjit Kaur. They accepted that the main reason for the depression of the deceased was the absence of near and close relatives. They conceded that neither Surjit nor they had ever lodged any complaint with the police against the accused person for the ill treatment meted out to her or for denying her entitlements in the joint property. They admitted as well that no civil suit had been filed in that regard 17. PW6 in addition admitted his signature on the sale deed executed by appellant Gurucharan in favour of Surjit. According to PW6 the sale deed was executed in a family settlement after Jaspal Singh had gone missing. This witness disclosed as well that the appellant and the other family members were ready to transfer the share of his brother in law to his sister 18. The evidence on record to start with in our estimate does not substantiate the imputation that Surjit and her daughters had been deprived wholly of their shares in the joint family property as the heirs of Dr. Jaspal Singh. Admittedly there is no proof of any threat being extended by the appellant or anyone of the in laws of Surjit so as to reduce them to destitutes in a petrified state. The disappearance of Dr. Jaspal Singh the husband of Surjit father of Preet and Geet though unfortunate the event had occurred about two years prior to the incident. Neither the appellant nor the in laws of Surjit did have any role in this regard. The absence of any complaint or civil litigation also permits an inference against the denial of the share in the family property to Surjit and her daughters or of any ill treatment torture oppression meted out to them. There is thus neither any proximate nor remote acts of omission or commission on the part of the appellant and his family members that can be irrefutably construed to be a direct or indirect cause or factor compelling Surjit and her daughters to take the extreme step of self elimination. 19. The suicide note which transpires to be the sheet anchor of the prosecution case needs extraction for reference as hereunder “The whole of my land and property should be given to National Defence Fund. The family of my in laws Jeth Master especially my mother in law Gurcharan Singh his wife Ajit Kaur and his son Goldy are responsible for our death. My younger daughter is still minor My husband was also to die by them. Now how can we live when our living is more than a hell. I pleaded before the Prime Minister President and Chief Minister but there is no one for me in this society. I also filed a case before the Human Rights Commission This is our cultured and democratic society. struggled continuously for 1 ½ years but now no more. My daughters are so intelligent that one is doing pre medical test and the second is doing Master of Computer Applications. This is the reason that I bore all such pains but still remain alive. If there is any justice in this cultured and democratic society then at least my in laws should be punished after our death and every common man should get My two biggas land of Diwan Khera 4 ½ biggas land of Sajrana and 4 5 kanals land at Muktsar should go to Mission Hospital Muktsar. No body is entitled for my two plots in Bharat Colony Bathinda and my house in Anand Nagri Abohar. All the sale deeds of the land are lying by my side. Suicide note of my husband is also lying here which I was forced not to hand over to the police on 22 March 1999 and assurance that I and my children would be looked after in a very good manner Sd Surjit Kaur” This is however the translated version of the original which is in Hindi script. 20. A plain perusal of the above quote also reveals that apart from an omnibus grievance against her in laws to be responsible for their death for which according to her they ought to be punished there is no reference or disclosure of any specific incident in support thereof The suicide note divulges her ownership of lands and house which per se belies the charge that she had been denied the share of her husband in the family property. Noticeably no attempt was made by the prosecution to prove the author of the text through an expert and both the courts below solely based their conclusion in this regard on the evidence of PWs 5 and 6 the brothers of Surjit who identified the contents to be that of hers again on eye estimation 21. Section 306 of the Code prescribes the punishment for abetment of suicide and is designed thus “Abetment of suicide. If any person commits suicide whoever abets the commission of such suicide shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.” It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person predicating existence of a live link or nexus between the two abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of this constituents would militate against this indictment Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity continuity culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC thus criminalises the sustained incitement for suicide. Section 107 IPC defines abetment and is extracted hereunder “107. Abetment of a thing. A person abets the doing of a thing who First Instigates any person to do that thing or Secondly Engages with one or more other person or persons in any conspiracy for the doing of that thing if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing or Thirdly Intentionally aids by any act or illegal omission the doing of that thing Explanation 1 A person who by wilful misrepresentation or by wilful concealment of a material fact which he is bound to disclose voluntarily causes or procures or attempts to cause or procure a thing to be done is said to instigate the doing of that doing. Explanation 2 Whoever either prior to or at the time of the commission of an act does anything in order to facilitate the commission of that act and thereby facilitate the commission thereof is said to aid the doing of that act.” 23. Not only the acts and omissions defining the offence of abetment singularly or in combination are enumerated therein the explanations adequately encompass all conceivable facets of the culpable conduct of the offender relatable thereto 24. Section 113A of the Indian Evidence Act 1872 permits a presumption as to the abetment of suicide by a married woman by her husband or any relative of his if it is proved that she had committed the act within a period of seven years from the date of her marriage and that her husband or such relative of his had subjected her to cruelty. The explanation to this Section exposits “cruelty” to have the same meaning as attributed to this expression in Section 498A IPC. For ready reference Section 113A of the Indian Evidence Act 1882 is quoted hereunder as well. “113A. Presumption as to abetment of suicide by a married woman—When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty the Court may presume having regard to all the other circumstances of the case that such suicide had been abetted by her husband or by such relative of her husband Explanation—For the purposes of this section “cruelty” shall have the same meaning as in section 498A of the Indian Penal Codeany wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life limb or health of the woman or b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” 26. This provision as the quote hereinabove reveals renders the husband of a woman or the relative of his punishable thereby with imprisonment for a term which may extend to three years and also Page 16 fine if they or any one of them subject her to cruelty. The explanation thereto defining “cruelty” enfolds a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life limb or health of the woman or b) harassment of the woman where it is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such 27. Though for the purposes of the case in hand the first limb of the explanation is otherwise germane proof of the willful conduct actuating the woman to commit suicide or to cause grave injury or danger to life limb or health whether mental of physical is the sine qua non for entering a finding of cruelty against the person charged 28. The pith and purport of Section 306 IPC has since been enunciated by this Court in Randhir Singh vs. State of Punjab 2004)13 SCC 129 and the relevant excerpts therefrom are set out “12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC 13. In State of W.B. Vs. Orilal Jaiswal1 SCC 73 this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance discord and differences in domestic life quite common to the society to which the victim belonged and such petulance discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.” 29. Significantly this Court underlined by referring to its earlier pronouncement in Orilal Jaiswal that courts have to be extremely careful in assessing the facts and circumstances of each case to ascertain as to whether cruelty had been meted out to the victim and that the same had induced the person to end his her life by committing suicide with the caveat that if the victim committing suicide appears to be hypersensitive to ordinary petulance discord and differences in domestic life quite common to the society to which he or she belonged and such factors were not expected to induce a similarly circumstanced individual to resort to such step the accused charged with abetment could not be held guilty The above view was reiterated in Amalendu Pal @ Jhantu vs. State of West Bengal1 SCC 707 30. That the intention of the legislature is that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit an offence and that there ought to be an active or direct act leading the deceased to commit suicide being left with no option had been propounded by this Court in S.S. Chheena vs. Vijay Kumar Mahajan12 SCC 190 In Pinakin Mahipatray Rawal vs. State of Gujarat10 SCC 48 this Court with reference to Section 113A of the Indian Evidence Act 1872 while observing that the criminal law amendment bringing forth this provision was necessitated to meet the social challenge of saving the married woman from being ill treated or forcing to commit suicide by the husband or his relatives demanding dowry it was underlined that the burden of proving the preconditions permitting the presumption as ingrained therein squarely and singularly lay on the prosecution. That the prosecution as well has to establish beyond reasonable doubt that the deceased had committed suicide on being abetted by the person charged under Section 306 IPC was emphasised 32. The assessment of the evidence on record as above in our considered opinion does not demonstrate with unqualified clarity and conviction any role of the appellant or the other implicated in laws of the deceased Surjit Kaur as contemplated by the above provisions so as to return an unassailable finding of their culpability under Section 306 IPC. The materials on record to reiterate do not suggest even remotely any act of cruelty oppression harassment or inducement so as to persistently provoke or compel the deceased to resort to self extinction being left with no other alternative. No such continuous and proximate conduct of the appellant or his family members with the required provocative culpability or lethal instigative content is discernible to even infer that the deceased Surjit Kaur and her daughters had been pushed to such a distressed state physical or mental that they elected to liquidate themselves as if to seek a practical alleviation from their unbearable earthly In the wake up of the above determination we are thus of the unhesitant opinion that the ingredients of the offence of Section 306 IPC have remained unproved and thus the appellant deserves to be acquitted. The findings to the contrary recorded by the courts below cannot be sustained on the touchstone of the law adumbrated by this Court as well as the facts involved. The appeal is thus allowed The appellant would be set at liberty from custody if his detention is not required in connection with any other case. (DIPAK MISRA (AMITAVA ROY NEW DELHI DECEMBER 2 2016

Before granting non-bailable warrants, courts should strike a compromise between societal needs and personal liberties, and they should use their authority with caution: Jharkhand High Court

Owing to the exceedingly dangerous repercussions and implications that follow the issuing of warrants, both bailable or non-bailable, warrants can never be released without sufficient review of evidence and full application of mind. The court must look at whether the criminal charge or FIR was brought with an oblique intent in mind. The judgement was passed by the High Court of Jharkhand in the case of Gouri Devi & Ors. vs The State of Jharkhand & Anr. [Cr. M.P. No. 2719 of 2020] by Single Bench consisting of Hon’ble Justice Sanjay Kumar Dwivedi. The petitioners have questioned the legality and validity of the order passed in SC/ST Case arising out of Barkatha P.S. Case and also for quashing the order, whereby processes under section 82 Cr.PC has been directed to be issued. The Learned counsel for the petitioners submits that by ordering the court below has taken cognizance against the accused persons and by the said order without issuing the summons straightway directed to issue a non-bailable warrant. He submits that this is not the only illegality but the trial court further proceeded without receiving the execution report of the non-bailable warrant and passed the order whereby process 2 under section 82 Cr.PC has been directed to be issued. He submits that this has been done without following the due process of law and the persons’ liberty has been directed to be curtailed given the said order without following the process of law. The Learned counsel appearing for the respondents fairly submits that the due process has not been followed by the court. The court while relying on the Hon’ble Supreme Court judgment Raghuvansh Dewanchand Bhasin v. the State of Maharashtra, wherein it was held that “before issuing non-bailable warrants, the courts should strike a balance between societal interests and personal liberty and exercise its discretion cautiously.”

1 Cr. M.P. No. 2719 of 2020 IN THE HIGH COURT OF JHARKHAND RANCHI 1.Gouri Devi wife of Badri Yadav aged about 45 years 2.Gita Devi wife of Sukhdev Yadav aged about 34 years 3.Anju Devi wife of Tribeni Yadav aged about 34 years 4.Jaswa Devi wife of Surendra Yadav aged about 39 years 5.Saryu Yadav son of Lalo Yadav aged about 44 years 6.Kavilas Devi @ Kavilasi Devi wife of Saryu Yadav aged about 39 years All are District Hazaribagh. ….. Petitioners resident of village Buchai PO Kapka PS Barkatha Versus 1.The State of Jharkhand 2.Pachiya Devi wife of Videshi Paswan resident of village Buchai PO Kapka PS Barkatha District Hazaribagh …... Opp. Parties CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners : Mr. Prabhat Kumar Sinha Advocate For Resp. State : Mrs. Niki Sinha Spl.P.P 5 16.03.2021 Heard Mr. Prabhat Kumar Sinha the learned counsel for the petitioners and Mrs. Niki Sinha the learned counsel for the State. 2. This criminal miscellaneous petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID 19 pandemic. None of the parties have complained about any technical snag of audio video and with their consent this matter has been heard. 3. The petitioners have questioned the legality and validity of the order dated 14.03.2019 passed in SC ST Case No.619 arising out of Barkatha P.S. Case No.615 corresponding to G.R. No.2735 of 2013 and also for quashing the order dated 23.09.2019 whereby processes under section 82 Cr.PC has been directed to be issued. Mr. Prabhat Kumar Sinha the learned counsel appearing for the petitioners submits that by order dated 14.03.2019 the court below has taken cognizance against the accused persons and by the said order without issuing the summons straight way directed to issue non bailable warrant. He submits that this is not the only illegality but the trial court further proceeded without receiving the execution report of the non bailable warrant and passed the order dated 23.09.2019 whereby process 2 under section 82 Cr.PC has been directed to be issued. He submits that this has been done without following the due process of law and the persons’ liberty has been directed to be curtailed in view of the said order without following the process of law. He submits that the case of the petitioners is covered in the light of the judgment of Hon’ble Supreme Court in case of ‘Raghuvansh Dewanchand Bhasin v. State of Maharashtra’ 2012) 9 SCC 791. Paragraph nos. 12 and 13 of the said judgment are quoted hereinbelow: “12. In Inder Mohan Goswami v. State of Uttaranchal a Bench of three learned Judges of this Court cautioned that before issuing non bailable warrants the courts should strike a balance between societal interests and personal liberty and exercise its discretion cautiously. Enumerating some of the circumstances which the court should bear in mind while issuing non bailable warrant it was observed:intentionally the process of issuance of the non bailable warrant should be resorted to. Personal liberty is paramount therefore we caution courts at the first and second instance to refrain from issuing non bailable warrants.” 13. We deferentially concur with these directions and emphasise that since these directions flow from the right to life and personal liberty enshrined in Articles 21 and 22(1) of our Constitution they need to be strictly complied with. However we may hasten to add that these are only broad guidelines and not rigid rules of universal application when facts and behavioural patterns are bound to differ from case to case. Since discretion in this behalf is entrusted with the court it is not advisable to lay down immutable formulae on the basis whereof discretion could be exercised. As aforesaid it is for the court concerned to assess the situation and exercise discretion judiciously dispassionately and without prejudice. Viewed in this perspective we regret to note that in the present case having regard to nature of the complaint against the appellant and his stature in the community and the fact that admittedly the appellant was regularly attending the court proceedings it was not a fit case where non bailable warrant should have been issued by the Additional Chief Metropolitan Magistrate. In our opinion the attendance of the appellant could have been secured by issuing summons or at best by a bailable warrant. We are therefore in complete agreement with the High Court that in the facts and circumstances of the case issuance of non bailable warrant was manifestly unjustified.” He further submits that the impugned orders are required 5. to be quashed. followed by the court below. Mrs. Niki Sinha the learned counsel appearing on behalf of the Opposite Party State fairly submits that the due process has not been On perusal of the impugned order dated 14.03.2019 it transpires that on that day the court below has taken cognizance against the accused persons and straight way issued the non bailable warrant in place of issuing the summons against the accused persons. On perusal of the order dated 23.09.2019 it transpires that the direction was issued for issuing the process under section 82 of the Cr.PC. On perusal of the record it transpires that this order has also been passed without receiving any execution report with regard to the non bailable warrant which is against the mandate of law rendered by this Court in the case of ‘Rustam Alam and Others v. The State of Jharkhand’Accordingly the part of impugned order dated 14.03.2019 and dated 23.09.2019 with regard to issuance of non bailable warrant and issuance of process under section 82 Cr.PC will not survive. Accordingly the part of impugned order dated 14.03.2019 so far issuance of non bailable warrant and dated 23.09.2019 so far as issuance of process under section 82 Cr.PC is concerned are quashed. 10. The matter is remitted back to the court below to proceed further in the light of the judgment rendered by Hon’ble Supreme Court in case of ‘Raghuvansh Dewanchand Bhasin”and the direction issued by this Court in case of ‘Rustam Alam and Others v. The State of Jharkhand’and in terms of Criminal Procedure Code strictly. To the above extent the criminal miscellaneous petition is allowed and disposed of. SI

Criminal law is designed as a mechanism for achieving social control and its purpose is the regulation of conduct and activities within the society: High Court of Delhi

While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise. This was held in the case of Mahender Singh v The State, [CRL.M.C.852/2021 & CRL.M.A.4232/2021] by Hon’ble Justice Subramonium Prasad in the High Court of Delhi.   A petition was filed under Section 482 of the Code of Criminal Procedure (Cr.P.C.) has been filed for quashing FIR, registered in Police Station Neb Sarai, Delhi, for offence under Section 308/34 IPC.  It was reported that when the complainant and his friend Dheeraj were returning from their coaching on his Splendor Bike, at about 8:00-8:15 PM, they were stopped by the accused near Sona Public School. It is stated that the petitioner kicked the bike and the complainant and his friend fell down from the bike and the petitioners started beating Dheeraj.  It is stated that when the complainant tried to stop the accused, the accused started abusing the complainant and started fighting with him. It is stated that the accused Sunny/petitioner No.1 picked up a danda and hit the complainant on his head and the complainant fell on the ground. When people gathered there the accused threatened the complainant of dire consequences and left. It is stated that the brother of the complainant came there and called the Police. A PCR Van came and took the victims to the AIIMS Trauma Centre. In the MLC the doctor recorded the nature of injury and it was opined that the victim had sustained minor head injury with left periorbital swelling. Charge-sheet has been filed against the accused. The accused/petitioner was granted anticipatory bail on 04.02.2018. The present case is for quashing the criminal proceedings for offences under Section 308 IPC. There was a conflict of opinion in various judgments by the Supreme Court as to whether an offence under Section 307 IPC could be quashed by the High Court while exercising its power under Section 482 Cr.P.C. The Supreme Court in State of Rajasthan v. Shambhu Kewat, (2014) 4 SCC 149, held that an offence under Section 307 IPC cannot be quashed by the High Court while exercising its powers under Section 482 Cr.P.C on the ground that the parties have settled their disputes.

IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.M.C.852 2021 & CRL.M.A.4232 2021Date of decision: 17th March 2021 IN THE MATTER OF: MAHENDER SINGH ALIAS SUNNY & ANR .....Petitioners Through Mr. Satish Kumar Advocate along with petitioners in person. THE STATE & ORS ..... Respondents Through Mr. Hirein Sharma APP for the State Respondents No.2 and 3 in person HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. The present petition under Section 482 of the Code of Criminal Procedure has been filed for quashing FIR No.46 2018 dated 27.01.2018 registered in Police Station Neb Sarai Delhi for offence under Section 308 34 IPC. FIR No.46 2018 has been registered on the complaint of respondent No.2. In the complaint it is stated that on 26.01.2018 when the complainant and his friend Dheeraj respondent No.3 herein were returning from their coaching on his Splendor Bike at about 8:00 8:15 PM they were stopped by the accused near Sona Public School. It is stated that Sunny petitioner No.2 kicked the bike and the complainant and his friend fell down from the bike and the petitioners started beating Dheeraj respondent No.3. It is stated that when the complainant respondent No.2 tried to stop the accused the CRL.M.C. 852 2021 accused started abusing the complainant and started fighting with him. It is stated that the accused Sunny petitioner No.1 picked up a danda and hit the complainant on his head and the complainant fell on the ground. When people gathered there the accused threatened the complainant of dire consequences and left. It is stated that the brother of the complainant came there and called the Police. A PCR Van came and took the victims to the AIIMS Trauma Centre. In the MLC the doctor recorded the nature of injury and it was opined that the victim had sustained minor head injury with left periorbital swelling. Charge sheet has been filed against the accused. The accused petitioner No.2 has been granted anticipatory bail on 04.02.2018. This petition has been filed on the ground that after the intervention of the parents and well wishers the parties have stated to settle their disputes. A settlement deed dated 16.02.2021has been filed. The present case is for quashing the criminal proceedings for offences under Section 308 IPC. There was a conflict of opinion in various judgments by the Supreme Court as to whether an offence under Section 307 IPC could be quashed by the High Court while exercising its power under Section 482 Cr.P.C. The Supreme Court in State of Rajasthan v. Shambhu Kewat 4 SCC 149 held that an offence under Section 307 IPC cannot be quashed by the High Court while exercising its powers under Section 482 Cr.P.C on the ground that the parties have settled their disputes. The Supreme Court observed as under: “15. We are not prepared to say that the crime alleged to have been committed by the accused persons was a crime against an individual on the other hand it was a crime against the society at large. Criminal law is designed as a mechanism for achieving social control CRL.M.C. 852 2021 and its purpose is the regulation of conduct and activities within the society. Why Section 307 IPC is held to be non compoundable is because the Code has identified which conduct should be brought within the ambit of non compoundable offences. Such provisions are not meant just to protect the individual but the society as a whole. The High Court was not right in thinking that it was only an injury to the person and since the accused personshad received the monetary compensation and settled the matter the crime as against them was wiped off. Criminal justice system has a larger objective to achieve that is safety and protection of the people at large and it would be a lesson not only to the offender but to the individuals at large so that such crimes would not be committed by any one and money would not be a substitute for the crime committed against the society. Taking a lenient view on a serious leave a wrong impression about the criminal justice system and will encourage further criminal acts which will endanger the peaceful co existence and welfare of the society at large.” the present will On the other hand the Supreme Court in Narinder Singh v. State of Punjab 2014) 6 SCC 466 after noticing the judgment in State of Rajasthan v. Shambhu Kewat quashed the proceedings under Section 307 IPC and observed as under: the offence “22. Thus we find that in certain circumstances this Court has approved the quashing of proceedings under Section 307 IPC whereas in some other cases it is held that as is of serious nature such proceedings cannot be quashed. Though in each of the aforesaid cases the view taken by this Court may be justified on its own facts at the same time this Court owes an explanation as two different approaches are adopted in various cases. The law to why CRL.M.C. 852 2021 declared by this Court in the form of judgments becomes binding precedent for the High Courts and the subordinate courts to follow under Article 141 of the Constitution of India. Stare decisis is the fundamental principle of judicial decision making which requires “certainty” too in law so that in a given set of facts the course of action which law shall take is discernible and predictable. Unless that is achieved the very doctrine of stare decisis will lose its significance. The related objective of the doctrine of stare decisis is to put a curb on the personal preferences and priors of individual Judges. In a way it achieves equality of treatment as well inasmuch as two different persons faced with similar circumstances would be given treatment at the hands of law. It has therefore support from the human sense of justice as well. The force of precedent in the law is heightened in the words of Karl Llewellyn by “that curious almost universal sense of justice which urges that all men are to be treated alike in like circumstances”. 23. As there is a close relation between equality and justice it should be clearly discernible as to how the two prosecutions under Section 307 IPC are different in nature and therefore are given different treatment. With this ideal objective in mind we are proceeding to discuss the subject at length. It is for this reason we deem it appropriate to lay down some distinct definite and clear guidelines which can be kept in mind by the High Courts to take a view as to under what circumstances it should accept the settlement between the parties and quash the proceedings and under what circumstances it should refrain from doing so. We make it clear that though there would be a general discussion in this behalf as well the matter is examined in the context of the offences under Section 307 IPC. CRL.M.C. 852 2021 24. The two rival parties have amicably settled the disputes between themselves and buried the hatchet. Not only this they say that since they are neighbours they want to live like good neighbours and that was the reason for restoring friendly ties. In such a scenario should the court give its imprimatur to such a settlement The answer depends on various incidental aspects which need serious discourse. The legislators have categorically recognised that those offences which are covered by the provisions of Section 320 of the Code are concededly those which not only do not fall within the category of heinous crimes but also which are personal between the parties. Therefore this provision recognises where there is a compromise between the parties the court is to act at the said compromise and quash the proceedings. However even in respect of such offences not covered within the four corners of Section 320 of the Code the High Court is given power under Section 482 of the Code to accept the compromise between the parties and quash the proceedings. The guiding factor is as to whether the ends of justice would justify such exercise of power both the ultimate consequences may be acquittal or dismissal of indictment. This is so recognised in various judgments taken note of above.” A larger Bench of Supreme Court in State of M.P. v. Laxmi Narayan 5 SCC 688 resolved the conflict by observing as under: “14. Now so far as the conflict between the decisions of this Court in Narinder Singh6 SCC 466 :3 SCC54] and Shambhu Kewat4 SCC 149 :4 SCC781] is concerned Rajasthan v. Shambhu Kewat 4 SCC 149 : 2014) 4 SCC 781] this Court has noted the Kewat6 SCC 466 :3 SCC54] the very Bench ultimately concluded in para 29 as under:“ xxxxx 29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. 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 proving 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 delicate parts CRL.M.C. 852 2021 of the body nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. 29.7. While deciding whether to exercise its power under Section 482 of the Code or not timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation the High Court may be liberal in accepting the settlement to quash the criminal proceedings investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage the High Court can show benevolence in exercising its powers favourably but after prima facie assessment of the circumstances material mentioned above. On the other hand where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument normally the High Court should refrain from exercising its power under Section 482 of the Code as in such cases the trial court would be in CRL.M.C. 852 2021 a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and therefore there is no question of sparing a convict found guilty of such a crime.” therefore 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 individual alone and 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 CRL.M.C. 852 2021 investigation. Therefore vital delicate 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 the ultimate conclusion in paras 29.6 and 29.7 of the decision of this Court in Narinder Singh6 SCC 466 :3 SCC54] should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove 15.5 . While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non compoundable offences which are private in nature and do not have a serious impact on society settlement compromise between the victim and the offender the High Court is required to consider the antecedents of the accused the conduct of the accused namely whether the accused was absconding and why he was absconding how he had managed with the complainant to enter into a compromise etc.” A perusal of the above judgments would show that the Courts must be slow in exercising their jurisdiction under Section 482 for quashing the proceedings arising out of offences punishable under Section 307 308 IPC. The parameters laid down in State of M.P. v. Laxmi Narayanstate that the powers conferred on the High Courts under Section 482 Cr.P.C can be exercised keeping in mind the injuries sustained nature of weapons used etc. CRL.M.C. 852 2021 6. The facts of the present case disclose that the injuries sustained by the complainants are simple and minor in nature. Mr. Satish Kumar learned counsel for the petitioners state that the parties are related to each other and for peace in the family the FIR be quashed. The petitioners are accused of committing an offence punishable under Section 308 IPC and this petition has been filed on the basis of a compromise arrived at between the parties. Keeping in mind the fact that the petitioners are youngsters petitioner No.1 is about 22 years old and the petitioner No.2 is about 25 years old having entire life ahead of them the fact that the parties are related to each other and the injury sustained by the complainant is only minor in nature this Court is inclined to quash the FIR exercising its jurisdiction under Section 482 Cr.P.C. The petitioners have to understand that anger does not give a license to take law in their hands. In order to sober down the petitioners this Court feels that they should do some community service for at least one month. Accordingly petitioners are directed to do community service at Dr. Ram Manohar Lohia Hospital for a period of one month i.e. from 28.03.2021 to 28.04.2021. This Court is also inclined to impose cost of Rs.25 000 each on the petitioner No.1 and the petitioner No.2. The amount shall be paid to the ‘Army Welfare Fund Battle Casualties’. Copy of the receipts be filed with the Registry within three weeks from today to show compliance of the order. 10. After completion of one month a certificate from Medical Superintendent Dr. Ram Manohar Lohia Hospital be also filed to show compliance of the order. In case of any absenteeism default on the part of CRL.M.C. 852 2021 the petitioner the same shall be conveyed immediately by the Medical Superintendent Dr. Ram Manohar Lohia Hospital to the concerned SHO who shall in turn inform the learned APP for the State for bringing the same to the notice of the Court and for seeking recall of the orders passed today. 11. With the above directions the petition is disposed of along with the pending applications if any. 12. A copy of this order be transmitted to Dr. Ram Manohar Lohia SUBRAMONIUM PRASAD J MARCH 17 2021 CRL.M.C. 852 2021

The mere fact that a house-trespass is committed by night does not make the offence one of lurking house-trespass: Odisha High Court

“Coming to the charge under section 457 of the Indian Penal Code, it requires commission of lurking house-trespass or house breaking by night in order to commit any offence punishable with imprisonment”, this remarkable stand was forwarded by Odisha HC in case of Satrughana Nag v. State of Odisha, [CRA NO. 128 Of 1990], chaired by Hon’ble Hon’ble Justice Mr. S.K. Sahoo of Odisha HC. The appellant Satrughana Nag faced trial in the Court of learned Additional Sessions Judge, Titilagarh in Sessions Case No.62/22 of 1989 for offences punishable under sections 376/ 511, 354 and 457 of the Indian Penal Code. The learned trial Court vide impugned judgment and order dated 17.03.1990, found the appellant guilty of the offences charged and sentenced him to undergo rigorous imprisonment (R.I.) for three years and to pay a fine of Rs.100/-, in default, to undergo R.I. for one month for the offence under section 376/511 of Indian Penal Code, R.I. for one year and to pay a fine of Rs.100/-, in default, to undergo R.I. for one month for the offence under section 457 of Indian Penal Code and both the sentences were directed to run concurrently. No separate sentence was awarded for the offence under section 354 of the Indian Penal Code. This appeal was preferred on 04.05.1990 and the appellant was directed to be released on bail as per order dated 25.05.1990. When the matter was called for hearing on 05.11.2020, learned counsel for the appellant was not present and since it is an appeal of the year 1990, Mr. Rajjeet Roy, learned counsel was appointed as amicus curiae to assist the Court for the appellant. After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble HC observed that, “The mere fact that a house-trespass is committed by night does not make the offence one of lurking house-trespass. There is no evidence that the appellant had taken precautions to conceal the house-trespass. As it seems, he had come inside the house of the victim wearing lungi and gamuchha. There is also no evidence that any housebreaking as defined under section 445 of the Indian Penal Code has been committed by the appellant.” The bench further added that, “However, there are enough materials to make out an offence of house- trespass as defined under section 442 of the Indian Penal Code which is punishable under section 448 of the Indian Penal Code. Even if no specific charge is framed under section 448 of the Indian Penal Code but since charge was framed under higher offence like section 457 of the Indian Penal Code, it cannot be said that any prejudice is caused to the appellant in convicting him under section 448 of the Indian Penal Code. Accordingly, the conviction of the appellant under section 457 of the Indian Penal Code is set-aside, instead he is found guilty under section 448 of the Indian Penal Code.”

IN THE HIGH COURT OF ORISSA CUTTACK CRA NO. 128 Of 1990 From the judgment and order dated 17.03.1990 passed by the Additional Sessions Judge Titilagarh in Sessions Case No.62 22 of 1989. Satrughana Nag … Appellant Versus State of Odisha … Respondent For Appellant: Mr. Rajjeet Roy Amicus Curiae) For Respondent: Mr. D.K.Pani Addl. Standing Counsel P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO Date of Hearing: 03.12.2020 Date of Judgment: 11.12.2020 S. K. SAHOO J. The appellant Satrughana Nag faced trial in the Court of learned Additional Sessions Judge Titilagarh in Sessions Case No.62 22 of 1989 for offences punishable under sections 376 511 354 and 457 of the Indian Penal Code. The learned trial Court vide impugned judgment and order dated 17.03.1990 found the appellant guilty of the offences charged and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.100 in default to undergo R.I. for one month for the offence under section 376 511 of Indian Penal Code R.I. for one year and to pay a fine of Rs.100 in default to undergo R.I. for one month for the offence under section 457 of Indian Penal Code and both the sentences were directed to run concurrently. No separate sentence was awarded for the offence under section 354 of the This appeal was preferred on 04.05.1990 and the appellant was directed to be released on bail as per order dated Indian Penal Code. 25.05.1990. The prosecution case as per the first information reportlodged by the victimbefore the officer in charge of Titilagarh police station is that on 03.10.1989 at about 9.30 p.m. while she was sleeping with her younger brother Susil Nag on a cot in one room of her house and her elder brother Jubaraj Nag and his elder brother’s wife Jayanti Nag P.W.2) were sleeping in the adjacent room the appellant entered into the room where the victim was sleeping by opening the bamboo door of the victim’s room disrobed her saree and attempted to commit rape on her. Hearing hullah of the victim P.Ws.2 and 3 came inside her room. The appellant tried to conceal himself underneath a raised platform inside the bed room but the victim as well as P.W.2 assaulted him by fire wood. Due to tussle of the appellant with the victim the bangles of the victim were broken and were lying underneath the cot. Then the brothers of the appellant came and took him to their house. On the basis of the first information report lodged Titilagarh P.S. Case No.100 of 1989 was registered on 03.10.1989 under sections 457 and 354 of the Indian Penal Code. The officer in charge of Titilagarh Police Station directed P.W.7 Smt. Gitarani Panda who was the W.S.I. of police to take up investigation of the case. During course of investigation P.W.7 examined the victim and other witnesses visited the spot and also seized the pieces of fire woodone gamuchha M.O.III) and broken pieces of glass bangles vide seizure list Ext.5. The appellant was found hospitalized as an indoor patient at Titilagarh Government Hospital and after his discharge from the hospital he was arrested on 17.10.1989 and forwarded to the Court. On completion of investigation charge sheet was submitted against the appellant on 25.10.1989 for the offences under sections 457 and 354 of the Indian Penal Code. The learned Magistrate however took cognizance of the offences under sections 376 511 354 and 457 of the Indian Penal Code and committed the case to the Court of Session for trial. The learned trial Court framed charges as aforesaid on 15.01.1990 against the appellant and since the appellant refuted the charges pleaded not guilty and claimed to be tried the sessions trial procedure was resorted to prosecute him and establish his guilt. complete denial. The defence plea of the appellant was one of During course of trial in order to prove its case the prosecution examined as many as eight witnesses. P.W.1 is the victim and the informant of the case. She stated about the occurrence. P.W.2 Jayanti Nag is the sister in law of the victim and she stated to have come to the room of the victim on hearing hullah and found the appellant in a naked condition lying over the victim who was also naked and committing sexual intercourse with her. She further stated to have assaulted the appellant with fire wood when he tried to conceal himself underneath a raised platform. P.W.3 Jubaraj Nag is the brother of the victim and he stated to have come to the room of the victim on hearing hullah and found the appellant in a naked condition lying over the victim who was also naked. He further stated that the victim and P.W.2 assaulted the appellant by fire wood. P.W.4 Dr. Sarat Kumar Das was the Medical Officer attached to Titilagarh Government Hospital who examined the appellant and noticed some simple injuries on his person and proved the injury report vide Ext.1. P.W.5 Sayed Mujibur Rahaman was the S.I. of Police in charge of station diary of Titilagarh Police Station who stated to have made a station diary on the oral information of the brother of the appellant relating to the injuries sustained by the appellant inside the house of the victim. He sent requisition to the Medical Officer Titilagarh Government Hospital for treatment of the appellant. P.W.6 Golap Nag is the neighbour of the victim and he stated that on hearing the hullah he rushed to the house of the victim and found that the appellant was lying naked over the victim who was also in a naked condition. He further stated that the brothers of the appellant forcibly took him to their house. P.W.7 Smt. Gitarani Panda was the Women Sub Inspector of Police who was the investigating officer of the case. P.W.8 Chaitanya Behera was the officer in charge of Titilagarh police station who registered the case on the oral report of the victim and directed P.W.7 to investigate the case. The prosecution exhibited five documents. Ext.1 is the injury certificate Ext.2 is the S.D. entry No.98 dated 04.10.1989 Ext. 3 is the S.D. entry No.99 dated 04.10.1989 Ext.4 is the F.I.R. and Ext.5 is the seizure list. The prosecution also proved two pieces of fire wood as M.O.I and M.O.II one gamuchha as M.O.III and broken pieces of glass bangles as M.O.IV. The learned trial Court after discussing the evidence of the victim her sister in law and her brother P.W.3) came to hold that the act of the appellant was definitely a step towards the commission of the offence of rape though the penultimate act of thrusting his male organ into the private part of P.W.1 was not completed and so the act of the appellant did not stop at the stage of preparation but it reached the stage of attempt and his intention to commit the offence failed by the reason of P.Ws.2 3 and 6 coming to the spot hearing the hullah of P.W.1. Accordingly the Court found the appellant guilty of the offences charged. the matter was called for hearing on 05.11.2020 learned counsel for the appellant was not present and since it is an appeal of the year 1990 Mr. Rajjeet Roy learned counsel was appointed as amicus curiae to assist the Court for the appellant. A copy of the paper book was also directed to be served on him and he was given time to prepare the case. learned amicus curiae appearing appellant placed the impugned trial Court judgment F.I.R. as well as the evidence of the witnesses. He argued that there are certain improbability features in the prosecution case which create doubt that the appellant attempted to commit rape on the victim rather the victim appears to be a consenting party and when she was caught in a compromising position with the appellant by her family members she reacted and brought false accusation against the appellant just to save her own skin. The victim developed her case at the stage of trial and brought an allegation of rape against the appellant for the first time which shows that she is not a truthful witness. It was further argued that the victim has not been medically examined and therefore it is a fit case where benefit of doubt should be extended in favour of the appellant. Mr. D.K. Pani learned Addl. Standing Counsel on the other hand contended that the evidence of the victim is clear cogent and trustworthy that in itself is sufficient to convict the appellant. He urged that the victim has categorically implicated the appellant to have committed rape on her and injuries sustained by the appellant corroborate the prosecution case of assault on him by fire wood by the victim and P.W.2 inside the room of the victim and therefore the appeal should be dismissed. It is the settled principle of law that if the statement of the prosecutrix is found to be worthy of credence and reliable then it requires no corroboration and the Court can act on such testimony and convict the accused. There may be compelling reasons in some cases which may necessitate looking for corroboration to the statement of the prosecutrix. The evidence of the prosecutrix is more reliable than that of an injured witness. Minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground to discard her version if it inspires confidence. Corroboration to the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. The very nature of offence makes it difficult to get direct corroborating The victim who is the star witness of the case has stated that on the date of occurrence at about 9.30 p.m. while she along with her younger brother Susil was sleeping on a cot placed on the middle room of the house she suddenly woke up as she found somebody was lying over her and she found that it was the appellant who had pressed her. Then the appellant removed her saree and made her naked threw her on the ground of that room pressed her mouth with his hand squeezed her breast with his other hand removed his own lungi and gamucha and then committed rape on her. She further stated that when she shouted on hearing her hullah P.Ws.2 and 3 rushed to her room and on seeing them the appellant concealed himself underneath the raised platform of that room. She further stated that she along with P.W.2 assaulted the appellant by means of fire wood. Then others also came to the scene of occurrence and the appellant was detained by them but suddenly the brothers of the appellant arrived there and took away the appellant with them. She identified the material objects. She further stated to have gone to the police station along with P.W.3 and reported the matter orally. there was another room adjoining the room where she was sleeping and inside that adjoining room P.W.2 P.W.3 her another brother Sudhir and old step mother were sleeping. She further stated that one has to pass through the room where P.W.2 and others were sleeping to come to her room and that adjoining room was closed with a tin door. In view of the room positions as narrated by the victim it becomes clear that if someone wanted to enter into the room of the victim he has to first open the tin door and then enter inside the room where In the cross examination the victim stated that P.W.3 has stated that the appellant was related to P.W.2 and others were sleeping and after crossing that room he could come inside the victim’s room. The victim further stated that there was no light inside the room where she was sleeping when the occurrence took place. She further stated that at times when that tin door was opened that would produce some sound. Therefore when there was darkness inside unless a person is well accustomed to the room position as well as the sleeping room of the victim it would be very difficult on his part to reach near the victim and there was every chance of being detected inside the adjoining room where P.W.2 and others were sleeping. him as his agnatic nephew. P.W.2 has stated that previously the appellant was frequently coming to their house and taking food in their house as he was related to them. Thus the appellant being related to the victim and a frequent visitor to the house of the victim the possibility of his knowing every titbit of the house of the victim cannot be ruled out. There is no allegation in the F.I.R. relating to commission of rape on the victim for which the case was registered under section 354 of the Indian Penal Code. Though the victim stated about the commission of rape on her during her examination in chief but it has been confronted to her and proved through the investigating officerthat she had not stated in her previous statement that the appellant squeezed her breast with one of his hands and that he removed his wearing lungi and became naked and that he inserted his penis inside her vagina and that P.Ws.2 and 3 saw the appellant raping her. Admittedly there is no medical evidence relating to the commission of rape on the victim. The victim stated to have shouted when the appellant inserted his penis inside her vagina for which both P.Ws.2 and 3 came to her room. This statement seems to have been developed during trial for which it cannot be accepted. The victim s version in the Court was of rape but when it is compared with the one given during investigation certain irreconcilable discrepancies are noticed. The evidence regarding actual commission of rape is at variance from what was recorded by police during evidence. Therefore the victim cannot be said to be a truthful witness. Now coming to the charge of attempt to commit rape the reaction of the victim at the time of occurrence and immediately thereafter are very relevant features but its absence is not always a decisive factor. There must be material to show that the appellant was determined to have sexual intercourse with the victim in all events and the overt act committed by him must show that it had gone beyond the stage of preparation and it reached the stage of attempt but his intention to commit the offence of rape could not materialise for some kind of interference. The victim who was aged about twenty to twenty one years at the time of occurrence has stated in the cross examination that at the time of struggle with the appellant both of them fell down on the ground from the cot and the cot became upside down but the appellant did not leave her and he had pressed her hands with his hands. She further stated that at the time of struggle with the appellant her younger brother Susil who was sleeping by her side woke up from his sleep but Susil did not separate the appellant nor tried to assault the appellant out of fear as he was a boy aged about seven years only. If according to the victim after falling down from the cot the appellant was pressing her hands with his hands it is obvious that in such position her mouth was open and there was no difficulty on her part to raise shout as by that time her younger brother had already woke up and in the adjoining room her other family members were sleeping. The victim further stated in the cross examination that when the appellant lied down over her she raised hullah but the appellant pressed his hands on her mouth and about ten to fifteen minutes thereafter P.Ws.2 and 3 came to her room holding a lantern which was burning. Why the victim raised hullah late For raising hullah late even after the appellant was sleeping over her in a naked condition after making her naked the explanation given by the victim that appellant was pressing his hands on her mouth is very difficult to be accepted. She stated that she was unable to separate the appellant and to free herself from the clutches of the appellant as he was holding both of her hands with one of her hands and had pressed her mouth by using the other hand. She further stated that the appellant had pressed both her hands on her chest. She further stated that the appellant removed his hand from her mouth and sat over her and while so sitting he removed her wearing saree with one of her hands. In that position the victim had got chance also to shout but she did not. She further stated that she was unable to give kicks to the appellant as he was sitting over her and her legs were not approachable or reaching the body of the appellant. She further stated that she was unable to bite the hands of the appellant as he had pressed both of her hands with one of his hands on the chest. Thus it appears that there were many opportunities earlier for the victim to raise shout and protest but she did not do that. P.W.2 stated that when she entered inside the room where the victim was sleeping she found the victim was lying complete naked on the earthen floor and the appellant was lying over the victim and the wearing saree of the victim and gamuchha of the appellant were lying inside the room. P.W.3 stated in the chief examination that he came to the room of the victim on being called by P.W.2 and he saw the appellant lying naked over the victim however in the cross examination he stated that when he arrived in the room of the victim he found the victim and P.W.2 were assaulting the appellant. Thus it seems that P.W.3 reached a little late than P.W.2 in the room of the victim on being called by P.W.2 and he had not actually seen the appellant lying naked over the victim but seen the assault part. The statement of P.W.6 that he had also seen the appellant was lying over the victim on the ground and both of them were in naked condition cannot be accepted as he stated to have come to the room of the victim after P.Ws.2 and 3. The evidence of assault on the appellant by fire wood gets corroboration from the evidence of the doctor who examined the appellant on the night of occurrence in Titilagarh Govt. Hospital and noticed two lacerated wounds and one bruise and also the station diary entryof Titilagarh police station made at the instance of the brother of the appellant. In view of the room positions and the surrounding circumstances under which the occurrence stated to have happened it is evident that the appellant had entered inside the room of the victim in the night but the victim’s conduct and her late reaction in raising shout probably on the arrival of P.W.2 makes it clear that she was a consenting party and after having been caught red handed with the appellant in a compromising position inside her bed room in the night by P.W.2 the victim tried to put the entire blame upon the appellant as perpetrator of the crime in order to save her own skin among her family members as well as in her society. Law is well settled that even in the absence of a specific defence of consent being taken by an accused charged with the offence of rape if the evidence on record indicates that the victim was a consenting party then the Court can always take the view that the sexual intercourse with the prosecutrix was not against her will but with her consent. Whether there was consent or not is to be ascertained only on a careful study of all relevant circumstances. An inference as to consent can be drawn only basing on evidence or probabilities of the case. ‘Consent’ is stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of. If the victim fails to offer sufficient resistance the Court may find that there was no force or threat of force or the act was not against her will. Consent does not mean submission under the influence of fear or terror. There must be an exercise of intelligence based on knowledge of its significance and moral quality and there must be choice between resistance and assent. If the woman resists to a point whereafter further resistance would be useless or until her resistance is overcome by force or violence submission thereafter is not consent. Verbal resistance apart the woman can give effective obstacles by means of hands limbs and pelvic muscles. Resistance by any or more of these will amount to resistance in the eye of law. A mere act of helpless resignation in the face inevitable compulsion acquiescence non resistance or passive giving in when volitional faculty is either clouded by fear or vitiated by duress cannot be deemed to be a consent as envisaged in law. In view of the foregoing discussions the conviction of the appellant under sections 376 511 and 354 of the Indian Penal Code is not sustainable in the eye of law. Coming to the charge under section 457 of the Indian Penal Code it requires commission of lurking house trespass or house breaking by night in order to commit any offence punishable with imprisonment. Lurking house trespass is defined under section 443 of the Indian Penal Code. In order to constitute the offence of lurking house trespass the offender must have taken some active means or precautions to conceal his presence while committing house trespass. The purpose of concealment is to avoid being noticed by some person who has a right to exclude or eject the trespasser from the building tent or vessel which is the subject of trespass. The mere fact that a house trespass is committed by night does not make the offence one of lurking house trespass. There is no evidence that the appellant had taken precautions to conceal the house trespass. As it seems he had come inside the house of the victim wearing lungi and gamuchha. There is also no evidence that any housebreaking as defined under section 445 of the Indian Penal Code has been committed by the appellant. In the illustrationof that section it is stated that if ‘A’ committed house trespass by entering Z’s house through the door having opened a door which was fastened that is housebreaking. Fastening the door means to firmly fix or fix securely. ‘Unfastening’ means to open something that was fastened. The victim stated in the cross examination that the entrance of the house was closed by tin tati and one bamboo lathi was pressed on that tin tati but there was space through which one can remove the bamboo lathi by inserting his hand and open that door. Thus there was no fastening of the door. Therefore I am of the humble view that lurking house trespass or housebreaking has not been proved by the prosecution and as such the ingredients of the offence under section 457 of the Indian Penal Code are not attracted. However there are enough materials to make out an offence of house trespass as defined under section 442 of the Indian Penal Code which is punishable under section 448 of the Indian Penal Code. Even if no specific charge is framed under section 448 of the Indian Penal Code but since charge was framed under higher offence like section 457 of the Indian Penal Code it cannot be said that any prejudice is caused to the appellant in convicting him under section 448 of the Indian Penal Code. Accordingly the conviction of the appellant under section 457 of the Indian Penal Code is set aside instead he is found guilty under section 448 of the Indian Penal Code. Now coming to the question of sentence to be imposed on the appellant for his conviction under section 448 of the Indian Penal Code the maximum substantive sentence provided for such offence is one year or the sentence can be fine only which may extend to one thousand rupees or with both. The appellant was arrested and produced in Court during investigation on 17.10.1989 and he was throughout in judicial custody till he was released on bail by the learned trial Court on 02.06.1990 on the basis of the bail order passed by this Court in this criminal appeal on 25.05.1990. Therefore the appellant has remained in judicial custody for more than seven months. Keeping in view the fact that more than thirty one years have passed since the date of occurrence I sentence him to undergo imprisonment for the period already undergone by him. In the result conviction of the appellant under sections 376 511 354 and 457 of the Indian Penal Code is hereby set aside instead the appellant is convicted under section 448 of the Indian Penal Code and sentenced to undergo imprisonment for the period already undergone by him. The criminal appeal is allowed in part. Lower Court s record with a copy of this judgment be trial Court Before parting with the case I would like to put on record my appreciation to Mr. Rajjeet Roy the learned counsel for rendering his valuable help and assistance towards arriving at the decision above mentioned. The learned counsel shall be entitled to his professional fees which is fixed at Rs.5 000 rupees five thousand). ... S.K. Sahoo J. Orissa High Court Cuttack The 11th December 2020 PKSahoo RKM

Temporary injunction can be granted only when it is proved to the satisfaction of the Commission: Competition Commission of India.

One of the most important aspects for invoking Section 33 of the Competition Commission of India Act 2002 is that it is proved to the satisfaction of the Commission, by affidavit or otherwise. The word ‘satisfaction’ in this section clearly signifies that the commission can grant interim relief only it deems necessary. This observation was also made by the Hon’ble Competition Commission of India before Ashok Kumar Gupta (Chairperson), Ms. Sangeeta Verma (Member) and Mr. Bhagwant Singh Bishnoi (Member) in the matter of Nishant P. Bhutada (Informant) vs. Tata Motors Ltd. and Ors. (Case No. 16 of 2020). The facts of the case were that Varanasi Auto Sales Pvt. Ltd. (VASPL) is said to have been founded by the Informant’s parents. After her father died in 2002, her brother took over as CEO of VASPL. The corporation was authorized as a Tata Motors authorised dealer to offer commercial vehicles, spare parts, accessories etc. However, the Informant claimed that the Opponent Parties (OPs), i.e, Tata Motors and Tata Motors Finance, controlled and restricted the funding facility at their discretion. The financing facility loan limit given by OPs to an authorised dealer was increased or lowered based on Tata Motors’ aims rather than the authorised dealer’s financial strength or market demand. The Informant also claimed that the OPs were able to earn illegal money from authorised dealers by imposing high interest rates, punitive interest, other illegal charges, and changes on the channel finance credit facility that they provided. Many other allegations were put by the Informant against the OPs, to which OPs in response denied to all such allegations and submitted that mere existence of purportedly onerous terms in the Dealership Agreement does not constitute violation of the provisions of Section 4(2)(a)(i) of the Act, unless the Informant can prove unfair imposition of such terms and conditions by Tata Motors. In this matter, the informant prayed before the Hon’ble Commission for various interim reliefs u/s 33 of the Competition Commission of India Act 2002. However, the commission held that where during an inquiry, the Commission is satisfied that an act in contravention of sub-section (1) of Section 3 or sub-section (1) of Section 4 or Section 6 has been committed and continues to be committed or that such act is about to be committed, the Commission may, by order, temporarily restrain any party from carrying on such act until the conclusion of such inquiry or until further orders, without giving notice to such party, where it deems it necessary. Additionally, the Hon’ble Commission took the reference of the Hon’ble Supreme Court that the case of Competition Commission of India v. Steel Authority of India Ltd., [Civil Appeal No. 7779 of 2010, decided on 09.09.2010], held that this power has to be exercised by the Commission sparingly and under compelling and exceptional circumstances.

COMPETITION COMMISSION OF INDIA Case No. 120 In Re: Opposite Party No. 1 Opposite Party No. 2 Opposite Party No. 3 Nishant P. Bhutada M s Kanchan Motors Opposite Tractor House Mumbai Agra Road Tigrania Corner Dwarka Nashik 422001 Tata Motors Ltd. Bombay House 24 Homi Mody Street Fort Mumbai 400001 Tata Capital Financial Services Limited 11th Floor Tower A Peninsula Business Park Ganpatrao Kadam Marg Lower Parel Mumbai 400013 Tata Motors Finance Ltd. Think Techno Campus2nd Floor Building ‘A’ Off Pokhram Road 2 Adjacent to TCS Yantra Park Thane400601 CORAM Mr. Ashok Kumar Gupta Ms. Sangeeta Verma Mr. Bhagwant Singh Bishnoi Case No. 120 Order under Section 33 of the Competition Act 2002 The present order shall govern the disposal of an application dated 10.11.2021 moved by the Informant seeking interim relief under Section 33 of the Competition Act 2002 “the Act”) against OP 1. Earlier the Commission vide its common order dated 04.05.2021 passed under Section 26(1) in the instant case as also in Case No. 219 prima facie noted a case of contravention of the provisions of Section 3(4) and Section 4 of the Act as detailed therein and ordered the Director Generalto cause an investigation to be made into the matter. In this backdrop during pendency of the investigation the Informant has now preferred an application dated 10.11.2021 seeking various interim reliefs under Section 33 of the Act against OP 1 alleging essentially that OP 1 has illegally and unlawfully blocked the access code in September 2020 which was required by the Informant to conduct business with OP 1 in terms of the dealership agreement dated 10.02.2017. The Informant itself has stated the said agreement to be subsisting and binding upon the parties till 31.03.2021. For felicity of reference the prayers made by the Informant in the instant application are excerpted below: a) That this Hon’ble Commission be pleased to direct the OP 1 to forthwith renew the Agreement dated 10.02.2017 for a period of five year as promised and or assured by the OP 1 b) to direct the OP 1 to forthwith unblocked the access code of the Informant c) In alternative to prayer clauses and to direct the OP 1 to take possession of the entire stock of spare parts supplied by the OP 1 and reimburse the Informant for the monies as was paid by the Informant d) to direct the OP 1 to compensate the Informant for the losses and damages suffered by the Informant owing to the illegal action of the OP 1 to block the access code to direct the OP 1 to release the monies to the tune of Rs.30 19 477.30 Rupees Thirty Lakhs Nineteen Thousand Four Hundred and Seventy Seven and Thirty Paise only) of the Informant illegally withheld by the OP 1 in Account No. 1D01500 Case No. 120 f) Pending the hearing and final disposal of the present Interim Application that this Hon’ble Commission be pleased to direct the OP 1 to forthwith renew the Agreement dated 10.02.20217 for a period of one year as promised and or assured by the OP 1 g) Pending the hearing and final disposal of the present Interim Application that this Hon’ble Commission be pleased to direct the OP l to forthwith unblocked the access code of the Informant in terms of the Agreement dated h) Pending the hearing and final disposal of the present Interim Application that this Hon’ble Commission be pleased to direct the OP 1 to take possession of the entire stock of spare parts supplied by the OP 1 and reimburse the Informant for the monies as was paid by the Informant to the OP 1 at the time of purchase of the said spare parts i) Pending the hearing and final disposal of the present Interim Application that this Hon’ble Commission be pleased to direct the OP 1 to release the monies to the tune of Rs.30 19 477.30 of the Informant illegally withheld by the OP 1 in Account No. 1D01500 j) Pending the hearing and final disposal of the present Interim Application that this Hon’ble Commission be pleased to direct the OP 1 to compensate the Informant for the losses and damages suffered by the Informant owing to the illegal action of the OP 1 to block the access code k) Ad interim relief in terms of prayer clauses(g) andl) For costs of this Application m) Any order(s) this Hon’ble Commission may deem fit 3. At the outset it would be apposite to note the parameters and perimeter for grant of interim relief as laid down in Section 33 of the Act. It provides that where during an inquiry the Commission is satisfied that an act in contravention of sub sectionof Section 3 or sub sectionof Section 4 or Section 6 has been committed and continues to be committed or that such act is about to be committed the Commission may by order temporarily restrain any party from carrying on such act until the conclusion of such inquiry or until further orders without giving notice to such party where it deems Case No. 120 it necessary. Elucidating the statutory scheme the Hon’ble Supreme Court of India in the case of Competition Commission of India v. Steel Authority of India Ltd. Civil Appeal No. 77710 decided on 09.09.2010 held that this power has to be exercised by the Commission sparingly and under compelling and exceptional circumstances. Further it was held that the Commission while recording a reasoned order inter alia should:record its satisfaction which has to be of much higher degree than formation of a prima facie view under Section 26(1) of the Act in clear terms that an act in contravention of the stated provisions has been committed and continues to be committed or is about to be committed it is necessary to issue order of restraint and c) from the record before the Commission it is apparent that there is every likelihood of the party to the lis suffering irreparable and irretrievable damage or there is definite apprehension that it would have adverse effect on competition in the market. 4. Coming to the present case it is unnecessary to examine the instant application in any great detail and suffice to observe that as per the Informant’s own averments the dealership agreement was to remain valid till 31.03.2021. In these circumstances the belated attempt by the Informant to impugn the purported denial of access code in September 2020 i.e. after a delay of over one year and that to after lapse of dealership agreement is thoroughly misconceived. When the agreement itself is no longer in currency the plea to get access to the code for conducting the business under the dealership agreement is wholly untenable besides being infructuous in nature. The grant of overarching prayers sought by the Informant as adumbrated supra would virtually revive a lapsed agreement. The Informant has failed to meet any of the parameters laid down by the Hon’ble Supreme Court. 5. Viewed in the aforesaid backdrop the Commission is of the considered opinion that no case whatsoever has been made out by the Informant which warrants grant of interim relief. Resultantly the application stands dismissed. Case No. 120 accordingly. It is made clear that nothing stated in this order shall tantamount to a final expression of opinion on the merits of the case and the DG shall conduct the investigation without being swayed in any manner whatsoever by the observations made herein. The Secretary is directed to communicate to the Parties and the Office of the DG Sd Ashok Kumar Gupta Sd Sangeeta Verma Sd Bhagwant Singh Bishnoi New Delhi Date: 21 12 2021 Case No. 120

Bail denied regarding Brutal Assault and Hanging till Death: High Court Of Patna

The denounced was captured for ruthlessly attacking and balancing the source’s child to no end. For the situation, there was a sole observer who affirmed the wrongdoing. Considering all realities and conditions, the court denied the application for bail to the charged.  The Hon’ble High Court of Patna before Justice Mr. Madhuresh Prasad in the matter of MD Raju v. The State of Bihar[Criminal Appeal (SJ) No 1703 of 2021]. The Facts of the case were that the allure was documented under Section 14(A)(2) of Scheduled Castes and Scheduled Tribes Act, 1989 against the refusal of his supplication for ordinary bail passed by Additional Sessions Judge I for the situation enrolled under Section 147, 148, 149, 341, 323, 302, 506 of Indian Penal Code. The witness’ child was mercilessly attacked in his shop and killed by hanging when he requested to take care of the obligations from the charged individual. The Appellant presented that few people have been involved by the general and omnibus claim. The appealing party had no criminal predecessor. The source’s rendition was not as an onlooker. There could have been no different wounds in the after-death report aside from strangulation. The autonomous observer had expressed in regards to seeing the attack executed by the charged. Other candidates in a similar matter were not allowed bail and their request was excused by the Court. The Court was leaned to give the comparative choice in the current matter too. The Court depended on the sole observer and posthumous report, and in the light of current realities and conditions introduced by both sides, the Court chose the matter. The Hon’ble High Court Of Patna held,”… taking into account nature of allegation in the First Information Report, and accommodation of gatherings, a case for award of normal rescue isn’t made. The reviled request dated 23.12.2020 doesn’t need obstruction by this Court, which is, appropriately, avowed. The criticized request dated 23.12.2020 passed by Additional Sessions Judge I-cum-Special Judge, SC/ST Act, Purnea regarding Special (SC/ST) Case No 72 of 2020/CIS No 72 of 2020 emerging out of K Hat PS Case No 261 of 2020 is attested.” The allure was excused by the High Court and the petition for bail of the litigant was dismissed for the situation. Click Here to Read the Judgment Judgment Reviewed by Nimisha Dublish The Facts of the case were that the allure was documented under Section 14(A)(2) of Scheduled Castes and Scheduled Tribes Act, 1989 against the refusal of his supplication for ordinary bail passed by Additional Sessions Judge I for the situation enrolled under Section 147, 148, 149, 341, 323, 302, 506 of Indian Penal Code. The witness’ child was mercilessly attacked in his shop and killed by hanging when he requested to take care of the obligations from the charged individual. The Appellant presented that few people have been involved by the general and omnibus claim. The appealing party had no criminal predecessor. The source’s rendition was not as an onlooker. There could have been no different wounds in the after-death report aside from strangulation. The autonomous observer had expressed in regards to seeing the attack executed by the charged. Other candidates in a similar matter were not allowed bail and their request was excused by the Court. The Court was leaned to give the comparative choice in the current matter too. The Court depended on the sole observer and posthumous report, and in the light of current realities and conditions introduced by both sides, the Court chose the matter. The Hon’ble High Court Of Patna held,”… taking into account nature of allegation in the First Information Report, and accommodation of gatherings, a case for award of normal rescue isn’t made. The reviled request dated 23.12.2020 doesn’t need obstruction by this Court, which is, appropriately, avowed. The criticized request dated 23.12.2020 passed by Additional Sessions Judge I-cum-Special Judge, SC/ST Act, Purnea regarding Special (SC/ST) Case No 72 of 2020/CIS No 72 of 2020 emerging out of K Hat PS Case No 261 of 2020 is attested.” The allure was excused by the High Court and the petition for bail of the litigant was dismissed for the situation.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEALNo 17021 Arising Out of PS. Case No. 261 Year 2020 Thana KHAJANCHI HAT District Purnia MD RAJU SON OF LATE NIZAM R O NEW SIPAHI TOLA MARANGA ROAD MATA CHAUK P.S. K. HAT DISTRICT PURNEA The State of Bihar ... Appellant s ... Respondent s For the Appellant s For the S t a t e For the I n f o r m a n t CORAM: HONOURABLE MR JUSTICE MADHURESH PRASAD Mr Raj Kumar Advocate Ms Usha Kumari I Special PP Mr Amit Kumar Anand Advocate Date : 20 09 2021 This case has been listed today for consideration through Video Conferencing 2 Heard learned counsel for the appellant learned counsel for the informant as well as the learned Special Public Prosecutorappearing for the State of 3 The appellant has preferred the present Appeal under Section 14 Aof Scheduled Castes and Scheduled TribesAct 1989against the refusal of his prayer for regular bail vide order dated 23.12.2020 passed by Additional Sessions Judge I cum Patna High Court CR. APPNo.17021 dt.20 09 2021 Special Judge SC ST Act Purnea in a case registered under Sections 147 148 149 341 323 302 506 of Indian Penal Code and Sections 3(V) of SC ST Act in connection with Special Case No 72 of 2020 CIS No 72 of 2020 arising out of K Hat Police StationCase No 2620. 4 The prosecution case is that for making a demand in respect of some dues from the accused persons informant’s son has brutally been assaulted in his shop and killed by 5 Learned counsel for the appellant submits that several persons have been implicated by general and omnibus allegation. The appellant has no criminal antecedent. The informant’s version is not as an eye witness. There are no other injuries in the post mortem report except strangulation 6 Learned counsel for the informant and learned Special PP have submitted that in paragraph 74 of case diary independent witness has stated regarding witnessing the assault perpetrated by all these accused persons. Similarly situated co accused Md Chand had moved this Court for grant of bail in Cr AppealNo 15621. The same has been rejected Patna High Court CR. APPNo.17021 dt.20 09 2021 7 In my opinion in view of nature of accusation in the First Information Report and submission of parties a case for grant of regular bail is not made out. The impugned order dated 23.12.2020 does not require interference by this Court which is accordingly affirmed 8 This appeal is dismissed. The impugned order dated 23.12.2020 passed by Additional Sessions Judge I cum Special Judge SC ST Act Purnea in connection with SpecialCase No 720 CIS No 720 arising out of K Hat PS Case No 2620 is affirmed 9 Prayer for bail of the appellant is rejected for Madhuresh Prasad J NAFR NA

Prevent registration of bogus documents to safeguard the interest of public and their properties: Madras High Court

In order to reduce the number of fraudulent deeds being registered where land sharks or land grabbers artificially create encumbrance over properties of third parties, a government circular must rightly be issued that validates the sale of property. A division bench of N Kirubakaran J and P Velmurugan J, while adjudicating the matter in Ammasi Kutti v. S Manoharan [W.A.No.1989 of 2019]; dealt with the issue of land grabbing. Appellants got their sale registered in their favour from one Mr.P.R.Subramaniyan, S/o.Rasappa Gounder. The property originally belonged to Mr.Rasappa Gounder and he died intestate. The widow and the daughter executed a sale deed in favour of the petitioner. When the sale deed was presented for registration before the official respondents, they refused to register the sale deed by issuing a memo and the said order was challenged before the district registrar who by way of an order rejected the appeal on the ground that Mr.P.R.Subramaniyan, already sold the entire extent of property to the appellants and therefore, the document cannot be registered. The said order was challenged before the learned single Judge. On contest, the learned single Judge allowed the Writ Petition, holding that the Registering Authorities has got no power and passed a cryptic order. The said order is being challenged before this Court. The learned counsel appearing for the petitioner stated that the petitioner had purchased the property as early as on 04.07.2002 and he has been in possession and enjoyment of the property. Having known all these facts, the widow and the sisters kept quiet for more than 13 years and subsequently, attempted to sell away the property to the 1st respondent/original writ petitioner and that was rightly prevented by the 2nd and 3rd respondent by refusing to register the said document. The learned counsel representing the respondent stated that the registration authorities has got no power to make enquiry with regard to the title of the property and they cannot refuse the registration on the ground that the property was already conveyed or sold. He would rely upon the Rule 55 of the Tamil Nadu Registration Rules to contend that the scope of enquiry to be conducted by the registering authority is only confined to five grounds which have been enumerated therein and beyond that the registration authority has got no power to refuse the registration on the ground that the property was already sold or there is no title to the executants. Further, this Court in aware of very many fraudulent deeds, especially sale deeds being registered and knocking away the property of innocent owners behind their back, in view of the sky rocketing of real estate prices.

W.A.No.19819IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.04.2021CORAM : THE HONOURABLE MR.JUSTICE N.KIRUBAKARANandTHE HONOURABLE MR.JUSTICE P.VELMURUGANW.A.No.19819andC.M.P.No.2262191.Ammasi Kutti S o.Angappa Gounder.2.Smt.Kannammal W o.Ammasi Kutti.Both are residing at No.1 34 Malayappalayam Olakoil Village Gobichettipalayam Taluk Erode District.... AppellantsVs1.S.Manoharan S o.Suriyanarayanan No.1 9 Malayappalayam Olakoil Village Gobichettipalayam Taluk Erode District.2.The District Registrar Tiruppur Registration District Tiruppur.3.The Sub Registrar Kunnathur Avinashi Taluk Triuppur District.1 20 https: www.mhc.tn.gov.in judis W.A.No.198194.Murugayammal W o.Rasappa Gounder No.2 11 Pattampalayam Avinashi Taluk Tiruppur District.5.Komarayal W o.Velusamy Olakoil Village Gobichettipalayam Taluk Erode District. 6.Marathal W o.Palanisamy No.2 59 Komarapalayam Chockkanur Village Avinashi Taluk Tiruppur District.7.Lakshmi @ Vijayalakshmi W o.Late.Ramasamy No.266 Rattaiyankurrai Andipalayam Village Gobichettipalayam Erode District.8.P.R.Subramanian S o.Late.Rasappa Gounder Sakkilan Thottam Pattampalayam Village Tiruppur District. 9.P.S.Kandasamy S o.P.R.Subramanian Sakkilan Thottam Pattampalayam Village Tiruppur District.10.Smt.Gowri W o.Gurusamy Kattupalayam Sokkanur Village 2 20 https: www.mhc.tn.gov.in judis W.A.No.19819Tiruppur District.11.Baby @ Palaniammal W o.Eswaramoorthy Valasupalayam Karunampathi Post 641666Perumanallur Via Avinashi Taluk Coimbatore District.... RespondentsPRAYER : Appeal against the order passed in W.P.No.2230 2016 dated 29.03.2019.For Appellant : Mr.S.ParathasarathyFor Respondents : Mr.A.K.Kumarasamy Senior Counsel for Mr.S.Kaithamalai KumaranMr.T.M.PappiahSpecial Government Pleader Mr.P.ParthikannanIn respect of deeds involving transfer of immovable property such as sale gift settlement exchange or 8 20 https: www.mhc.tn.gov.in judis W.A.No.19819creating charge over the property such as Mortgage or Power of Attorney the registering officer should insist presentation of previous original deed deeds by which the executants acquired right over the said property before registering the document and then verify the previous documents to satisfy himself that the executants have right over the property.(B) In case previous document are not available as the property may be ancestral the executants should produce revenue records such as Patta copy issued by the Revenue Department and tax receipt in original along with attested notarized Xerox copies to prove that the properties are owned by them. The Registering Officer should verify the original and return them to the party concerned and preserve the attested Xerox copy as part of the document by scanning and numbering it.(C) In case the previous original document is lost the party should produce certified copy of the document copy of complaints recorded in Police Station and copy of advertisement published in local dailies regarding loss of documents. In such case the party has to produce Patta property tax receipt in original.(i)In case if the property is Government land poramboke 9 20 https: www.mhc.tn.gov.in judis W.A.No.19819land or belonging to religious institution as per revenue records other records and the party has not produce any patta to prove his right the Registering officer should return the document with check slip stating the facts.(ii)In the above mentioned case if the party produces patta then the Registering Officer should keep the document pending for ascertaining the facts and genuineness of patta from concerned department revenue officials.(iii) In case of cancellation of settlement deed if the settlor is unable to produce the original settlement deed as it may be with settlee then the settlor should produce certified copy of the settlement deed. The Registering Officer after verifying the certified copy for identity then register the cancellation deed without insisting for original deed."9.One of the instructions given by the Inspector General of Registration is directing the registration authorities to insist on presentation of the previous original deeds sale deeds by which the executant acquired right over the property before registering the document. If anybody intends to purchase the property definitely he she they should verify whether the person has got a right over the property and has got title by having registered documents in his her their 10 20 https: www.mhc.tn.gov.in judis W.A.No.19819favour. If the purchaser is not interested for various other reasons to verify the original documents that is the vendors the registering authorities has got every right to insist upon the executant to produce the previous original deeds through which he acquired the property. The intention is only to prevent the bogus sale deeds being registered and to safe guard the public interest viz. the rights of the property owners. The bonafide intention in issuing the circular dated 25.04.2012 should be appreciated as it has been done only in the public interest.10.Following the said circular only 2nd and 3rd respondents registering authorities refused to register the document presented by the 1st respondent having been executed by respondents 4 to 7. The authorities took note of the fact that the property was already sold by the son of Mr.Rasappa Gounder 8th respondent to the appellants as early as on 2002. There is no document produced before this Court to show that neither the 1st respondent nor the respondents 4 to 7 have been enjoying the property right from the date of death of Mr.Rasappa Gounder as early as on 14.09.2001. From the year 2002 onwards the appellants are in possession of the property and have been enjoying for more than 12 11 20 https: www.mhc.tn.gov.in judis W.A.No.19819years. By that time they would have perpetrated the title by way of adverse possession.11.Having slept over the matter like a Rip van winckle the respondents 4 to 7 suddenly woke up from their deep slumber and tried to execute the sale deed in favour of the 1st respondent alleging certain right over the property and claiming that the entire property was fraudulently sold by the 8th respondent to the appellants. The only proper remedy in this case of defrauding or selling away the property or the share of the respondents 4 to 7 stealthily the appropriate remedy is only to go for cancellation of sale deed executed by the 8th respondent in favour of the appellants or to go for partition. The said remedy is only available to respondents 4 to 7 and not to the 1st respondent who is the stranger to the property even though he is said to have invested his money. If he has invested the money in the property it is his own invitation as he has not acted as a prudent purchaser. He has not verified the original title deed or Encumbrance Certificate of the properties which is sought to be purchased by him. That itself would go to show that he is not a bonafide purchaser and he is only interested in purchasing the 12 20 https: www.mhc.tn.gov.in judis W.A.No.19819litigation for which he has to be blamed.12.The Division Bench of this Court rightly held that Article 226 cannot be invoked when the civil rights of the parties over the property have to be decided and the proper course is only go before the civil court. This Court respectfully admits the said reasoning given by the Division Bench of this Court.13.The memo issued by the 2nd respondent refusing the registration of the document produced by the appellant 1st respondent on the ground that the property was already sold may not be in correct position. What should have been done by the 2nd respondent is to refuse the registration on the ground that the original title deeds were not produced. In any event the rejection is rightly done but on a wrong reasoning and therefore this Court approves the rejection and deems it as if it has been rejected for non production of original title deed by the executants at the time of registration of the property.14.No doubt Rule 55 contemplates only a few existencies. 13 20 https: www.mhc.tn.gov.in judis W.A.No.19819Rule 55 is extracted as follows.“55.It forms no part of a registering officer s duty to enquire into the validity of a document brought to him for registration or to attend to any written or verbal protest against the registration of a document based on the ground that the executing party had no right to execute the document but he is bound to consider objections raised on any of the grounds stated below:order passed from 21.10.2017 to 16.09.2019Based on IGR Order No. C.No.41530 U1 2017 Dated 08 11 2011S.No.ZonePetitions ReceviedEnquiry Conducted & Orders passedPending CasesPetitions Rejected1Salem70524645902Cuddalore279 2215263Coimbatore2682095814Madurai10427311651565Vellore32224435436Thanjavur23810413497Chennai21074361629428Tirunelveli6222283941749Trichy59919833369TOTAL61822617325950016.After coming to know about the number of fraudulent deeds being registered artificially creating encumbrance over the properties of third parties by land sharks or land grabbers the circular dated 25.04.2012 was rightly issued and therefore the circular dated 25.04.2012 is being upheld by this Court as it is only prevent the 16 20 https: www.mhc.tn.gov.in judis W.A.No.19819registration of bogus documents and also to safeguard the interest of the public and their properties.17.No doubt the circular dated 25.04.2012 is in the nature of executive instruction which needs to be incorporated in Rules. It is expected that the Government would incorporate the circular dated 25.04.2012 in the Registration Rules by way of an amendment so that the circular would get a statutory backing and on a later date it would not be found fault with.18.Therefore the State Government is to frame appropriate Rules incorporating the circular dated 25.04.2012 within a period of sixmonths from the date of receipt of a copy of this order and file a compliance report before this Court. 19.The only remedy open to the 1st respondent either to request the vendors viz. R4 to R7 to approach the civil Court either for cancellation of sale deed dated 04.07.2002 or for partition of the property making all the necessary parties as defendants in the Suit or by filing a 17 20 https: www.mhc.tn.gov.in judis W.A.No.19819civil suit for recovery of money which he is said to have paid to R4 to R7. While defending the case the appellants have got every right to defend by pleading adverse possession and also limitation. Therefore the order passed by the learned single Judge is liable to be set aside and the memo refusing to register the sale deed in favour of the 1st respondent dated 09.11.2015 is upheld for the reason that the executants of the sale deed in favour of the 1st respondent has not produced the parent title deed as confirmed by the 2nd respondent by order dated 01.12.2015.20.Accordingly the Appeal is allowed. No costs. Consequently connected Miscellaneous Petition is also closed.For reporting compliance call the matter after six months.(N.K.K. J) (P.V. J)30.04.2021 sai18 20 https: www.mhc.tn.gov.in judis W.A.No.19819To1.The District Registrar Tiruppur Registration District Tiruppur.2.The Sub Registrar Kunnathur Avinashi Taluk Triuppur District.19 20 https: www.mhc.tn.gov.in judis W.A.No.19819N.KIRUBAKARAN J.andP.VELMURUGAN J. saiW.A.No.19819Dated : 30.04.202120 20

The definition of ‘gang’ under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 must be interpreted in a broader sense: High court of Allahabad

The meaning of ‘gang’ under section 2(b) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 has two parts and both these parts are mutually exclusive. Each one of the two parts by itself would be enough to bring a case within the ambit of the term Gang. Thus, the sense of interpretation is much broader to ensure public safety and a literal interpretation must not be used. This was decreed by the two-judge bench comprising of Hon’ble Justice Anjani Kumar Mishra and Hon’ble Justice Shekhar Kumar Yadav in the case of Pramod Singh vs. State of U.P. and 4 Ors. [CRIMINAL MISC. WRIT PETITION No. – 728 of 2021] on the 16th of July, 2021 before the Hon’ble High Court at Allahabad. The brief facts of the case are, the petitioner has two cases registered against him, First, being Case Crime No.387 of 2020 under Sections 307, 504, 506 Indian Penal Code and the other case in this regard being case Crime No.386 of 2020. These cases arose from a private dispute regarding an electricity connection and the petitioner was one of the injured in the cross case. An FIR was lodged against the petitioner in this regard. Admittedly, there is enmity between the parties and it is a case of no injury. The case was taken into cognizance by the district magistrate and an order was passed on the 04th of November 2020. Through this petition, the petitioner aims to quash the FIR report and the order given by the district magistrate on the basis that there was no object of disturbing public order and thus the FIR under the act is baseless. The counsel for the petitioner submitted that, the facts alleged in the first information report do not make out any violence, threat or show of violence, intimidation, coercion etc. which would amount to disturbing public order. No temporal, pecuniary, material or other advantage having been procured by the petitioner, is alleged in the criminal cases lodged against him. Therefore, the requirements of Section 2(b) & 2(b) (viii) of the Act are not made out. He has further submitted that the impugned FIR under the Gangsters Act is a case of false implication. In any case, the material satisfaction, allegedly recorded by the District Magistrate, while approving the Gang Chart is, without any basis. He further went on to say that the submission on the basis of the aforenoted Section 2(b) is that the criminal cases against the petitioner are not such, which would fall within the scope of the term “disturbing public order”. They might be criminal acts but then every criminal Act cannot be construed as disturbing public order. Since, the public order was not disturbed in the two cases against the petitioner. Gangsters Act has wrongly been invoked. The impugned first information report deserves to be quashed.

Court No. 48 Case : CRIMINAL MISC. WRIT PETITION No. 728 of Petitioner : Pramod Singh Respondent : State Of U.P. And 4 Others Counsel for Petitioner : Ashish Mishra Arun Kumar Mishra Counsel for Respondent : G.A Hon ble Anjani Kumar Mishra J Hon ble Shekhar Kumar Yadav J Heard Shri Arun Kumar Mishra learned counsel for the petitioner and learned AGA for the State. By means of this writ petition petitioner seeks quashing of the first information report dated 07.11.2020 giving rise to Case Crime No.7220 under Section 3(1) of the Uttar Pradesh Gangsters and Anti Social Activities Act 1986 Police Station Robertsganj District Sonebhadra The order dated 04.11.2020 passed by the second respondent District Magistrate Sonebhadra granting approval to the Gang Chart Annexure 5 to the writ petition is also sought to be We have heard Shri Arun Kumar Mishra learned counsel for the petitioner and learned AGA for the State We have also heard Shri V.P. Srivastava learned Senior Advocate on behalf of the petitioner who had offered to assisted the Court in the instant matter The submission of learned counsel for the petitioner is that the first information report has been lodged on the basis of two criminal cases registered against the petitioner First being Case Crime No.387 of 2020 under Sections 307 504 506 Indian Penal Code Police Station Robertsganj District Sonebhadra. The first information report in this case which is a cross case was lodged on 24.05.2020 the other case in this regard being case Crime No.386 of 2020. These cases arose from a private dispute regarding an electricity connection and the petitioner was one of the injured in the cross case The second case on the basis whereof the impugned first information report has been registered in Case Crime No.543 of 2020 under Sections 307 and 323 of Indian Penal Code Police Station Robertsganj District Sonebhadra. This first information report in this regard was lodged on 17.08.2020. As regards this case the submission is that the incident took place on account of the private property dispute. Admittedly there is enmity between the parties and it is a case of no injury Counsel for the petitioner has also reiterated that he has been granted bail in both the criminal cases lodged against him On the basis of the aforementioned it is submitted that the facts alleged in the first information report do not make out any violence threat or show of violence intimidation coercion etc which would amount to disturbing public order. No temporal pecuniary material or other advantage having been procured by the petitioner is alleged in the criminal cases lodged against him. Therefore the requirements of Section 2(b) & 2(b)of the Act are not made out Sub sectionreferred to by counsel for the petitioner reads as follows Preventing or disturbing the smooth running by any person of his lawful business profession trade or employment or any other lawful business profession trade or employment or any other lawful activity connected therewith or". It is next contended that recovery of a pistol and empty cartridges is from the co accused in Case Crime No.386 of 2020 which was registered on the basis of an FIR lodged by one Arti Patel. From the allegations made in the FIR it appears that the petitioner was intervening in a dispute between the first informant and the other accused pertaining to an electricity Learned counsel for the petitioner has also relied upon the findings returned in the order granting bail to him in Case Crime No.3820 to canvas that the writ petition deserves to be allowed. He has further submitted that the impugned FIR under the Gangsters Act is a case of false implication. In any case the material satisfaction allegedly recorded by the District Magistrate while approving the Gang Chart is without any Elaborating on the arguments advanced by learned counsel for the petitioner Shri V.P. Srivastava learned Senior Advocate has contended that for invocation of the provisions of the Act Section 2(b) of the Act which defines a Gang is crucial He has submitted that there has to be violence or threat or show violence or intimidation or coercion with the object of disturbing public order or for gaining any undue temporal pecuniary material or other advantage for himself or any other The submission on the basis of the aforenoted Section 2(b) is that the criminal cases against the petitioner are not such which would fall within the scope of the term "disturbing public order". They might be criminal acts but then every criminal Act cannot be construed as disturbing public order. Since the public order was not disturbed in the two cases against the petitioner Gangsters Act has wrongly been invoked. The impugned first information report deserves to be quashed. In support of his contention he has relied upon the following decisions 1. Ashok Dixit Vs. State of U.P. another 1987 U.P.Crl. R. In paragraph 40 of this judgement the following portion of a judgement of the Apex Court has been extracted". . . . public order is an expression of wide connotation and signifies that state of tranquillity prevailing among the members of a political society as a result of the internal regulations enforced by the Government which they have instituted. Although Section 9 refers to "securing the public safety and "the maintenance of public order" as distinct purposes it must be taken that "public safety" is used as a part of the wider concept of public 2.Romesh Thappar Vs. State of Madras 1950 SC 124 This judgement dealt with the powers conferred by Section 9(1 A of the Madras Maintenance of the Public Order Act 1949. In this judgement it has been observed "........But it was urged that the expression "public safety" in the impugned Act which is a statute relating to law and order means the security of the Province and therefore the security of the State" with the meaning of article 19where it was held that the phrase "for securing the public safety and the defence of. the realm" in section 1 of the Defence of the RealmAct 1914 was not limited to securing the country against a foreign foe but included also protection against internal disorder such as a rebellion. The decision is not of much assistance to the respondents as the context inL.R.2 K.B. 805. which the words "public safety" occurred in that Act showed unmistakably that the security of the State was the aim in view. Our attention has not been drawn to any definition of the expression "public safety " nor does it appear that the words have acquired any technical signification as words The judgement finally goes on to hold as follows In other words clause of article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved an enactment which is capable of being applied to cases where no such danger could arise cannot be held to be constitutional and valid to any extent. 3. The Superintendent Central Prison Vs. Dr. Lohia 1960 Cri L.J. 1002 The Supreme Court decision in the Superintendent Central Prison and another Vs. Dr. Ram Manohar Lohia was with regard to the term "public order" contained in Section 3 of the U.P. Special Power Act 1932 while in Ram Manohar Lohia Vs State of Bihar. The said term was considered in the light of Rule 30(1)(b) of the Defence of India Rules 1962. In paragraph 14 the Apex Court observed as follows By Section 3 of the U.P. Special Powers Act 1932 any instigation by word or visible representation not to pay or defer payment of any exaction or even contractual dues to Government authority or a land owner is made an offence. Even innocuous speeches are prohibited by threat of punishment. It was held that there is no proximate or even foreseeable connection between such instigation and the public order sought to be protected under this section and that it is void The judgement finally went on to hold in paragraph 18 as follows The foregoing discussion yields the following results: " Public order " is synonymous with public safety and tranquillity : it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals such as revolution civil strife war affecting the security of the State there must be proximate and reasonable nexus between the speech and the public order S. 3 as it now stands does not establish in most of the cases comprehended by it any such nexus there is a conflict of decision on the question of severability in the context of an offending provision the language whereof is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislation one view is that it cannot be split up if there is possibility of its being applied for purposes not sanctioned by the Constitution and the other view is that such a provision is valid if it is severable in its application to an object which is clearly demarcated from other object or objects falling outside the limits of constitutionally permissible legislation and the provisions of the section are so inextricably mixed up that it is not possible to apply the doctrine of severability so as to enable us to affirm the validity of a part of it and reject the rest 4. Ram Manohar Lohia Vs. State of Bihar 1966 CrLJ 608. By this judgement a Habeas Corpus Petition filed by Ram Manohar Lohia was allowed on the ground that the expression public order" used in the Defence of India Rules 1962 is clearly distinguishable from the term "law and order" and that detention for maintenance of public order is permissible only with regard to disturbances with special word the public order The order impugned in this case purported to have been made under R. 30(1)of the Defence of India Rules 1962 5. Amiya Kumar Karmakar Vs. The State of West Bengal 1972) 2 Supreme Court Cases 672 The Apex Court in this case has also drawn a distinction between "law and order" and "public order" while dealing with the provisions of Section 3(1) and read with Section 3(2) of the Maintenance of Internal Security Act 271(MISA). In paragraph 7 of the judgement it has been observed as follows Viewed from this angle it is difficult to regard such an act as a mere infraction of law and Order for such an act committed with such an intent and object and in such circumstances is one which strikes at the normal Orderly life of the community in that locality. Its impact and potentiality thus affect public Order in the sense that it was aimed at bringing about dis Order and chaos upsetting the even tempo of life in that locality. It is therefore not possible to agree with the proposition that it affected the problem of law and Order only and was for that reason extraneous or irrelevant to the objects specified in Section 3 of the Act in relation to which only a valid Order of detention there under could be made 6. Ram Ranjan Chatterjee Vs. The State of West Bengal 1975) 4 Supreme Court Cases 143 Similar is the position in this case where again the order of detention under Section 3 of the Maintenance of Internal Security Act was under challenge. Paragraph 9 of the said judgement reads as follows As observed by Hidayatullah J.in Dr. Ram Manohar Lohia v. State of Bihar & Ors. one has to imagine three concentric circles in order to understand the meaning and import of the above expressions Law and order represents the largest circle within which is the next circle representing "public order" and the smallest circle represents "security of State". It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of State. It is in view of the above distinction the Act defines the expressions acting in any manner prejudicial to the security of the State" and "acting in any manner prejudicial to the maintenance of public order" separately An order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to the maintenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detenu has to be held to be an illegal one vide decisions of this Court in Bhupal Chandra Ghosh v. Arif Ali & Ors.(2) and Satya Brata Ghose v. Arif Ali The order of detention is therefore liable to be quashed and the detenu is entitled to be set at liberty. The petition is accordingly allowed From the arguments as also from the judgements cited it is clear that the emphasis of Shri V.P. Srivastava learned Senior Advocate is on the words "with object of disturbing public order" used in Section 2(b) of the Act which defines a Gang The said provision is extracted herein below b) "Gang" means a group of persons who acting either singly or collectively by violence or threat or show of violence or intimidation or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal pecuniary material or other advantage of himself of any other person indulge in anti social activities Upon a bare reading of the provision quoted above we are unable to accept the contention made on behalf of the petitioner that to constitute a Gang the member of the Gang should be operating only with the object of disturbing public order. The definition no doubt includes within its ambit acts of violence or threat or show of violence carried out with the object of disturbing public order. However this is just the first part of the definition. The second part which starts with the word or of gaining any as of undue temporal pecuniary material or other advantage of himself of any other person indulge in anti social We are of the considered opinion that the definition of a Gang is therefore clearly in two parts and both are mutually exclusive Each one of the two parts by itself would be enough to bring a case within the ambit of the term Gang To clarify further Section 2(b) in our opinion provides that a group of person singly or collectively would constitute a gang in either or the two conditions below i) by violence or thereat or show of violence or intimidation or coercion or otherwise try to disturb public order ii) by violence or threat or show of violence or intimidation or coercion or otherwise try to obtain undue temporal pecuniary material or other advantage for himself or any other person The words " indulge in anti social activities refer to the various illustrations conditions specified thereafter asto (xxv Under the circumstances the contention that the impugned first information report deserves to be quashed as it does not fall within the purview of the definition of a Gang in Section 2(b of the Act cannot be accepted and is hereby repelled The contention of counsel for the petitioner that recovery of the fire arms and empty cartridges from the accused in Case Crime No.286 of 2020 would necessarily show that the said case against the petitioner is one of the false implication cannot be accepted at this stage. The issue can be decided only after due investigation. In any case the allegations are that the petitioner interfered in a private dispute between the two parties with which he prima facie had no connection. It is therefore clearly a case of coercion intimidation and use of force against a person who is alleged to have refused to provide electricity to his neighbour who is stated to be a friend of the petitioner In any case the existence of two criminal cases against the petitioner is not in dispute and therefore in our considered opinion no ground exists for quashing the impugned FIR Accordingly and for the reasons given above the writ petition fails and is dismissed Order Date : 16.7.2021

Agency, life and liberty of a person has to be maintained by the Courts: High Court of Shimla

Although agency, life and liberty of a person has to be maintained by the Courts but nature, gravity and seriousness of offence and manner of commission of offence and transportation of girl shows the magnitude of conspiracy. This honorable judgement was passed by High Court of Shimla in the case of by Mohammad Nazim Versus State of Himachal Pradesh [Cr.M.P.(M) No.620 of 2021] by The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. The petitioner had filed the petition stating under Section 438 Criminal Procedure Code, seeking anticipatory bail apprehending his arrest, registered in Police Station Sadar, Shimla, H.P., under Sections 363, 366A, 370(4), 506 and 120B of the Indian Penal Code. The victim, aged about 15 years, who was studying in Class 9th, had left her home at 9.30 a.m. to attend her school i.e. Sanatan Dharam Senior Secondary School, Ganj Bazaar, Shimla, and when she did not return home in the evening, her father, on inquiry, had received information that on that day students were not called in the school. With aforesaid complaint, father of the victim had approached Police Station Sadar, Shimla, with suspicion that someone had abducted her daughter after alluring and misleading her. During investigation, location of mobile number of victim was found in Haryana leading to the clue to the police that victim was travelling towards Delhi. Whereupon, police party was sent to Delhi in search of victim and it was also found that victim was having too many talks on two mobile numbers therefore, CDRs was found at Panipat and thereafter her phone was found switched off. It was revealed that the boy, who had sent the location, was one Ibrahim residing at Badarpur, his room was found locked and it came in notice that he was hiding him in some other house in the room of his friend, wherefrom he was taken to Badarpur Police Station and shown to Jatin, and Jatin had identified him the same boy to whom he had handed over the girl. The court opinioned that, “Where right to investigate, and to arrest and detain an accused during investigation, is provided under Cr.P.C., there are provisions of Articles 21 and 22 of the Constitution of India, guaranteeing protection of life and personal liberty as well as against arrest and detention in certain cases. Agency and life and liberty of a person has to be maintained by the Courts, in the light of Fundamental Rights guaranteed under Articles 21 and 22 of the Constitution of India, but also keeping in mind interference by the Court directing the Investigating Officer not to arrest an accused amount to interference in the investigation.” The petition was dismissed stating that, “nature, gravity and seriousness of offence for the manner in which girl has been managed to be transported/travelled from Shimla to a remote village of Uttar Pradesh in an organized manner, and also for finding or ruling out possibility of amplitude and magnitude of the conspiracy.”

Hig h C o urt of H.P on 06 04 HCHP 1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.P.(M) No.6221 Reserved on: 05.04.2021 Date of Decision: April 6 2021 Mohammad Nazim …Petitioner. Versus State of Himachal Pradesh ...Respondent. Coram: The Hon’ble Mr. Justice Vivek Singh Thakur Judge. Whether approved for reporting 1 Yes For the Petitioner: Mr. Rajesh Kumar Parmar Advocate. For the Respondent: Mr.Raju Ram Rahi Deputy Advocate General. ASI Nasib Singh I.O. Police Station Sadar Shimla present alongwith record. Vivek Singh Thakur JPetitioner has approached this Court under Section 438 Criminal Procedure Codeseeking anticipatory bail apprehending his arrest in case FIR No.321 dated 05.03.2021 registered in Police Station Sadar Shimla H.P. under Sections 363 366A 370(4) 506 and 120B of the Indian Penal Codetherefore CDRs and location of those two numbers were also requisitioned. 4. Investigating Officer on 06.03.2021 after reaching in Police Station Badarpur Delhi started investigation and found that last location of victim on 05.03.2021 at about 8.19 p.m. was found at Panipat and thereafter her phone was found switched off. From CDRs of two mobile numbers Investigating Officer had contacted on some mobile numbers which were found in contact of these two mobile numbers and during this exercise one mobile number 95606 42747 was found to be of one Jatin Malik who in response informed to the Investigating Hig h C o urt of H.P on 06 04 HCHP 3 Officer that he is having a Maruti Car bearing registration No.DL9CAP 3819 and on 05.03.2021 he had gone to Ambala from Delhi to drop a passenger and at Ambala a girl had met him who had disclosed that she was going to Delhi whereupon he had been taking that girl to Delhi alongwith him but near Panipat mobile phone of that girl was switched off and for that reason that girl had contacted someone through his mobile and the person with whom she had talked had disclosed his name to himas Zuber and further that Zuber had told him that one boy will send him location from mobile number 96671 56859 and had asked himto drop the victim on that location and thereafter on receiving location of Badarpur Delhi from the aforesaid number he had dropped victim at Badarpur NTPC Chowk at about 10.30 p.m. on 05.03.2021 wherefrom a boy had taken her. 5. During investigation it was revealed that the boy who had sent the location was one Ibrahim residing at Badarpur in a room rented in a building known as ‘Akash’. During search for Ibrahim his room was found locked and it came in notice that he was hiding him in some other house in the room of his friend wherefrom he was taken to Badarpur Police Station and shown to Jatin and Jatin had identified him the same boy to whom he had handed over the girl on 05.03.2021. 6. During interrogation Ibrahim had disclosed that on 05.03.2021 he had received calls from Zuber and Nazim @ Sameerboys belonging to his village who were Hig h C o urt of H.P on 06 04 HCHP 4 working with him earlier at Delhi but presently Zuber was at Chennai whereas Nazim @ Sameer was in Kerala. He had further revealed that both of them had informed him that one ‘X’ named girl would come in some vehicle at Badarpur NTPC Gate and asked him to take her to his quarter and further that on request of these two persons he had taken victim from Badarpur NTPC Gate to his room in ‘Akash’ building and had kept her in his room on 05.03.2021 and 06.03.2021 and on 07.03.2021 he had taken victim to Dhakiaand as he was in anticipation of his search by police he was not sleeping in his room but was staying with his friend. Ibrahim had also disclosed that victim at the time of investigation was in Dhakia and his elder brother Istiyaak who is serving at Delhi and living with him in the same room had also gone to Village Sahaspurand on his asking he would come to Badarpur alongwith victim. Ibrahim had also disclosed that Nazim @ Sameer was intending to marry victim and Nazim @ Sameer and Zuber had called victim to Delhi but Zuber was at that time at Chennai and Nazim @ Sameer was in Kerala and therefore victim was housed with him. 7. On 08.03.2021 at about 09.30 a.m. Istiyaak brother of Ibrahim and Naasrinon message had brought victim to Police Station Badarpur Delhi who was identified by her father and thereafter victim had identified the places where she was dropped from the car and also the room of Ibrahim. Hig h C o urt of H.P on 06 04 HCHP 5 8. On 10.03.2021 statement of victim was also recorded under Section 164 Cr.P.C. and considering the circumstances revealed during investigation and statement of victim Sections 366A 370(4) 506 and 120B IPC were also added in the case. As per record age of victim is 14 years 11 months. 9. During investigation in custody Ibrahim had identified house where he had handed over victim to Naasrin and her husband Ibad. Naasrin and her husband were directed to join investigation in their area’s Police Station at Dhidholi. On 13.03 2021 houses of Zuber and Nazim @ Sameer were searched where they were not found at home. In none of these houses any male was found and Mehsar mother of Zuber and Jafree mother of Nazim @ Sameer had also denied any knowledge regarding whereabouts of their respective sons. Naasrin and her husband did not turn up to the Police Station and on inquiry it was found that they had locked their house and had absconded. Naasrin did not return her home during day and night of 13.03.2021 whereupon Investigating Officer declared that police party is going back to Himachal Pradesh but in fact stayed at a distant place whereupon believing that Himachal Police had gone back Naasrin came back to her house on 14.03.2021 at 9.30 a.m. and on receiving that information police party reached her home and brought her to Police Station for interrogation and on the same day at about 2.10 p.m. she was arrested by giving due information to Rahees Pradhan of Dhakia Panchayat. Hig h C o urt of H.P on 06 04 HCHP 6 10. During investigation Naasrin had disclosed that Ibrahim had brought the minor victim to her house on 07.03.2021 and on the mobile of Ibrahim her brother Nazim @ Sameer had also talked with her and her husband and he and her husband had kept minor in their home on asking of Nazim @ Sameer and despite having knowledge about age of victim circumstances in which she had reached there and her religion as Hindu they did not report the matter to the police and when during night they came to know about that staying of victim with them had come in the knowledge of police Istiyaak brother of Ibrahim had come to their house to take victim to Delhi then firstly they had resisted but later on had sent victim to Delhi alongwith Istiyaak. During investigation Naasrin had expressed her ignorance about mobile number and address of her brother Nazim @ Sameer and also mobile number of her husband and whereabouts of her husband. 11. Learned Deputy Advocate General has stated that after obtaining interim bail petitioner is not cooperating and neither disclosing phone number and mobile phone being used by him nor handing over the mobile phone and sim card to the police which are necessarily required to be taken in possession for proper investigation and that petitioner is expressing his ignorance about whereabouts of Zuber and Ibad whereas all of them were in active contact with each other and Zuber is resident of his village and Ibad is his real brother in law(husband of Naasrin). It is further stated that Investigating Hig h C o urt of H.P on 06 04 HCHP 7 Agency has also come across a piece of evidence which indicates that there was a plan to traffic the victim to Dubai and further that according to CDRs between the period from 31.12.2020 to 05.03.2021 Nazim @ Sameer was in regular contact with victim and he had talked with her 850 times and on the day of leaving house by victim he was directing dictating controlling and monitoring the moment of victim on mobile from Shimla to Delhi with the help of a well connected network of his racket which smacks some big conspiracy amongst accused for trafficking the minor to Dubai after alluring her for marriage by giving false assurances and therefore it has been submitted that custodial interrogation of petitioner is warranted. 12. Learned Deputy Advocate General under instructions has also submitted that petitioner is a part of racket involved in fishing adolescent girls for throwing them in international flesh trade by trafficking them abroad after alluring them for marriage with emotional and sentimental blackmail under the garb of friendship and fake love affair and therefore for revelation and disclosure of actual amplitude and magnitude of such conspiracy custodial interrogation of petitioner is necessary. 13. Learned Deputy Advocate General has further stated that some of accused are absconding and investigation is at initial stage and non cooperation of accused persons including petitioner is hampering the investigation. Hig h C o urt of H.P on 06 04 HCHP 8 14. Learned counsel for the petitioner has submitted that it is not a case of big conspiracy but of simple story of love affair where victim herself had left her house and reached Ambala and petitioner had only in order to ensure her safety had been making arrangements for her arrival to Delhi in his house and at the time of leaving house by the victim petitioner was in Kerala and it was not possible for him to kidnap victim or allure her to leave lawful guardianship of her parents. He has further submitted that there is no overt act on the part of petitioner in leaving of the house by the victim rather victim had voluntarily left her house and when she reached Ambala petitioner had only helped her by providing shelter to her and victim was not sexually abused. It is also submitted that there is no past history of petitioner involving in commission of the same nature or any other offence and Naasrin sister of petitioner had been ensuring security of victim and for that reason he was unwilling to send the victim alongwith Istiyaak to Delhi which indicates bonafide behaviour of petitioner and his relatives but no conspiracy to traffic the victim for her exploitation. 15. Section 156 Cr.P.C. empowers Police Officer to investigate in cognizable offences without order of the Magistrate and Section 157 prescribes procedure for investigation which also provides that when an Officer Incharge of a Police Station has reason to suspect the commission of an offence which he is empowered to investigate under Section 156 he after sending a report to the Magistrate shall proceed in Hig h C o urt of H.P on 06 04 HCHP 9 person or shall depute one of his subordinate Officers as prescribed in this behalf to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. 16. Chapter V of the Cr.P.C. deals with provisions related to arrest of persons wherein Section 41 also inter alia provides that any Police Officer may without an order from Magistrate and without a warrant arrest any person against whom reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment which may be less than seven years or may extend to seven years subject to condition that he has reason to believe on the basis of such complaint information or suspicion that such person has committed the said offence and also if the Police Officer is satisfied of either of the conditions provided under Section 41(1)(b)(ii) which also include that if such arrest is necessary “for proper investigation of the offence”. Whereas Section 41(1)(ba) empowers the Police Officer to make such arrest of a person against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years or with death sentence and the Police Officer has reason to believe on the basis of that information that such person has committed the said offence and for commission of such offence no further condition is required to be satisfied by Hig h C o urt of H.P on 06 04 HCHP 10 the Police Officer. Therefore Police Officer Investigating Officer is empowered to arrest the offender or the suspect for proper investigation of the offence as provided under Section 41 read with Section 157 Cr.P.C. 17. Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Arrest of an offender during investigation as discussed supra is duly prescribed in Cr.P.C. 18. At the same time Cr.P.C. also contains Chapter XXXIII providing provision as to bail and bonds which empowers the Magistrate Sessions Court and High Court to grant bail to a person arrested by the Police Investigating Officer in accordance with provisions contained in this Chapter. This Chapter also contains Section 438 empowering the Court to issue directions for grant of bail to a person apprehending his arrest. 19. Section 438 Cr.P.C. empowers the Court either to reject the application forthwith or issue an interim order for grant of Anticipatory Bail at the first instance after taking into consideration inter alia the factors stated in sub sectionof Section 438 Cr.P.C. and in case of issuance of an interim order for grant of Anticipatory Bail the application shall be finally heard by the Court after giving reasonable opportunity of being heard to the Police Prosecution. Section 438 Cr.P.C. prescribes certain factors which are to be considered at the time of passing interim order for grant of Anticipatory Bail amongst others but no such Hig h C o urt of H.P on 06 04 HCHP 11 factors have been prescribed for taking into consideration at the time of final hearing of the case. Undoubtedly those factors which are necessary to be considered at the time of granting interim bail are also relevant for considering the bail application at final stage. 20. A balance has to be maintained between the right of personal liberty and the right of Investigating Agency to investigate and to arrest an offender for the purpose of investigation. 21. The Legislature in order to protect right of the Investigating Agency and to avoid interference of the Court at the stage of investigation has deliberately provided under Section 438 Cr.P.C. that only High Court and the Court of Session are empowered to issue direction that in the event of arrest an offender or a suspect shall be released on bail. The Court has no power to issue direction to the Investigating Agency not to arrest an offender. A direction under Section 438 Cr.P.C. is issued by the Court in anticipation of arrest to release the offender after such arrest. It is an extraordinary provision empowering the Court to issue direction to protect an offender from detection. Therefore this power should be exercised by the Court wherever necessary and not for those who are not entitled for such intervention of the Court at the stage of investigation for nature and gravity of accusation their antecedents or their conduct disentitling them from favour of Court for such protection. Hig h C o urt of H.P on 06 04 HCHP 12 22. Where right to investigate and to arrest and detain an accused during investigation is provided under Cr.P.C. there are provisions of Articles 21 and 22 of the Constitution of India guaranteeing protection of life and personal liberty as well as against arrest and detention in certain cases. It is well settled that interference by the Court at the investigation stage in normal course is not warranted. However as discussed supra Section 438 Cr.P.C. is an exception to general principle and at the time of exercising power under Section 438 Cr.P.C. balance between right of Investigating Agency and life and liberty of a person has to be maintained by the Courts in the light of Fundamental Rights guaranteed under Articles 21 and 22 of the Constitution of India but also keeping in mind interference by the Court directing the Investigating Officer not to arrest an accused amounts to interference in the investigation. 23. Though bail is rule and jail is exception. However at the same time it is also true that even in absence of necessity of custodial interrogation also an accused may not be entitled for anticipatory bail in all eventualities. Based on other relevant factors parameters and principles enumerated and propounded by Courts in various pronouncements some of which have also been referred by learned counsel for CBI anticipatory bail may be denied to an accused. Requirement of custodial interrogation is not only reason for rejecting bail application under Section 438 Cr.P.C. Hig h C o urt of H.P on 06 04 HCHP 13 24. Nature gravity and seriousness of offence extent of involvement of petitioners manner of commission of offence antecedents of petitioners possibility of petitioners fleeing from justice and impact of granting or rejecting the bail on society as well as petitioner are also amongst those several relevant factors which may compel the Court to reject or accept the bail application under Section 438 Cr.P.C. It is not possible to visualize all factors and enlist them as every case is to be decided in its peculiar facts and circumstances. 25. Considering entire facts and circumstances of the case placed before me and contention of learned Deputy Advocate General as well as learned counsel for the petitioner and nature gravity and seriousness of offence for the manner in which girl has been managed to be transported travelled from Shimla to a remote village of Uttar Pradesh in an organized manner and also for finding or ruling out possibility of amplitude and magnitude of the conspiracy I find that prayer for custodial interrogation of the petitioner is justified and thus acceptable. Therefore petition is dismissed with direction to the petitioner to surrender before Investigating Officer police immediately. Judge. April 6 2021

It is easier to reject an application for bail in a non-bailable case than to a bail once granted: High Court Of New Delhi

This petition has been filed under Section 439(2) CrPC for cancellation of bail granted vide order dated 18.08.2021, and the same issue was held in the judgement passed by a single bench judge HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD, in the matter BHAGYASHREE V. STATE OF N.C.T. OF DELHI & ANR dealt with an issue mentioned above. The Petitioner was a 27-year-old woman wher Respondent No.2 was the student who was pursuing her BCom in Invertis University in the year 2015, later the Petitioner fell in love with Respondent No.2 and they both were in a relationship. One day Petitioner reached Delhi at 3:30 PM, CRL.M.C. 2392/2021 the Respondent No.2 said to her that he was hungry and they should go to her room to have food, as well as to rest and talk. At about 4:30 PM, Respondent No.2 reached the Petitioner’s flat and, allegedly, at 5:00 PM, he started touching her. So the petitioner questioned the respondent for the action which took place In return, Respondent No.2 stated that he loved the Petitioner, intended to marry her and that after the marriage they would be in such physical relations, Later it is alleged that Respondent No.2 forcefully had sexual intercourse with the Petitioner. When the Petitioner started crying and told Respondent No.2 that she would file a police complaint against him, Respondent No.2 threatened to kill her and her mother if she filed a complaint or if she informed anyone. It was also mentioned that During the relationship between the Petitioner and Respondent No.2, it has been stated that Respondent No.2 visited her flat many times, and despite her refusal, he would have sexual intercourse with her, And also when Petitioner would bring up the prospect of marriage, Respondent No.2 would counter the same with some excuse or CRL.M.C. 2392/2021 the other. On 13.02.2020, Respondent No.2 visited the flat of the Petitioner around 7:00 PM and had sexual intercourse with her against her wishes, and on 14.02.2020, Respondent No.2 left the flat informing the Petitioner that he would be going home to speak to his family about their marriage. On the said complaint, the instant FIR was registered against Respondent No.2 herein. Mr Deepak Sharma, learned Counsel for the Petitioner, states that the learned Additional Sessions Judge has passed the impugned Order dated 18.08.2021 without considering all the essential facts and has also failed to peruse the detailed WhatsApp chats and conversations which have been filed by both the parties. Mr Sharma has submitted that the impugned Order passed by the learned Additional Sessions Judge is devoid of the version of the Petitioner and, therefore, is against the principle of natural justice and the Petitioner’s right to a fair trial. Furthermore, when an order granting bail is passed by a lower court, the appellate court must be slow to interfere with such an order until and unless it is shown that the said order was passed without due application of judicial mind. In Mahipal v. Rajesh Kumar, 2020 (2) SCC 118. This was a case of breach of promise to marry, thereby amounting to rape. To establish whether sexual intercourse was committed in the backdrop of a false promise of marriage, it has been held by the Supreme Court that the consent for sexual intercourse which is derived from the prosecutrix must be coerced or misguided or obtained through deceit. Meanwhile, In the impugned Order dated 18.08.2021, the learned Additional Sessions Judge has set the following conditions while granting bail to the accused: And few more conditions were stated by the Additional Sessions Judge. The court perused the facts and argument’s presented, it believed that-  “In case of any violation of the conditions of bail set by the learned Additional Sessions Judge, this Court grants liberty to the Petitioner herein to approach the competent Court following the law to seek cancellation of the bail which has been granted to the Respondent No.2 The petition is dismissed with the above observations along with the pending application(s) if any”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 09th NOVEMBER 2021 IN THE MATTER OF: CRL.M.C. 2392 2021 BHAGYASHREE @ MONICA ..... Petitioner Through Mr. Deepak Sharma Advocate STATE OF N.C.T. OF DELHI & ANR. ..... Respondents Through Ms. Meenakshi Chauhan APP for the State with SI Shalini P.S. Laxmi HON BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD J. This petition has been filed under Section 439(2) CrPC for cancellation of bail granted vide order dated 18.08.2021 by learned Additional Sessions Judge Karkardooma Courts in FIR No.199 of 2021 dated 04.05.2021 registered at Police Station Laxmi Nagar for offences under Sections 376(2)(n) and 506 of the Indian Penal Code 1860. The facts leading to the instant case are stated as follows: i. The Petitioner is a 27 year old woman who met Respondent No.2 whose bail is being sought to be cancelled in the instant application in the year 2015 at Invertis University wherein she ii. The Petitioner fell in love with Respondent No.2 and they both was pursuing her B.Com. were in a relationship. iii. On 05.07.2018 when the Petitioner reached Delhi at 3:30 PM CRL.M.C. 2392 2021 the Respondent No.2 said to her that he was hungry and they should go to her room to have food as well as to rest and talk. At about 4:30 PM Respondent No.2 reached the Petitioner s flat and allegedly at 5:00 PM he started touching her. The Petitioner questioned Respondent No.2 s actions and in response to the same Respondent No.2 stated that he loved the Petitioner intended to marry her and that after the marriage they would be in such physical relations. Despite the Petitioner refusing the advances of Respondent No.2 it is alleged that Respondent No.2 forcefully had sexual intercourse with the iv. After the sexual intercourse when the Petitioner started crying and told Respondent No.2 that she would file a police complaint against him Respondent No.2 threatened to kill her and her mother if she filed a complaint or if she informed v. Respondent No.2 told the Petitioner that he loved her and he would marry her and that if she filed a police complaint she would end up ruining her life as well as jeopardise their relationship. He further said that he would never leave her. vi. During the course of the relationship between the Petitioner and Respondent No.2 it has been stated that Respondent No.2 visited her flat many times and despite her refusal he would have sexual intercourse with her. It is also stated that whenever the Petitioner would bring up the prospect of marriage Respondent No.2 would counter the same with some excuse or CRL.M.C. 2392 2021 the other. vii. On 13.02.2020 Respondent No.2 visited the flat of the Petitioner around 7:00 PM and had sexual intercourse with her against her wishes and on 14.02.2020 Respondent No.2 left the flat informing the Petitioner that he would be going home in order to speak to his family about their marriage. viii. Thereafter whenever the Petitioner sought to speak Respondent No.2 over the phone regarding their marriage he would deflect the topic by making excuses. It is stated that the Petitioner s father had passed away in 2018 and that the Petitioner s mother was a housewife who lived alone. Due to this the Petitioner out of fear could never inform her family about what was taking place in her personal life and how she was emotionally devastated as a result of Respondent No.2 s false promises. It has been alleged by the Petitioner that Respondent No.2 has completely ruined the petitioner s life because of his false promise to marry on the basis of which he had sexual intercourse with her multiple times. xi. On the said complaint the instant FIR was registered against Respondent No.2 herein. xii. On 03.06.2021 Respondent No.2 was arrested by concerned I.O. Consequently Respondent No.2 filed an application for regular bail before the learned Additional Sessions Judge on 07.06.2021 and the same was rejected vide Order dated 22.06.2021. Thereafter Respondent No.2 CRL.M.C. 2392 2021 approached this Hon’ble Court for grant of regular bail. In the meanwhile the Respondent No.2 also filed an application before this Hon’ble Court seeking interim bail which was dismissed as withdrawn vide order dated 08.07.2021. xiii. On 09.07.2021 Respondent No.2 filed another application for grant of regular bail and was granted interim bail on 14.07.2021 by the learned Additional Sessions Judge with the application for regular bail being listed on 03.08.2021. xiv. On 03.08.2021 the matter was listed before another learned Additional Sessions Judge and thereafter bail was granted to Respondent No.2 vide impugned order dated 18.08.2021. Heard Mr. Deepak Sharma learned Counsel for the Petitioner Ms. Meenakshi Chauhan learned APP for the State and perused the material on 4. Mr. Deepak Sharma learned Counsel for the Petitioner states that the learned Additional Sessions Judge has passed the impugned Order dated 18.08.2021 without considering all the essential facts and has also failed to peruse the detailed WhatsApp chats and conversations which have been filed by both the parties. He further argues that the learned Additional Sessions Judge has also failed to go through the list of documents containing specific social media chats which support the contention of the Petitioner. Additionally Mr. Sharma has submitted that the impugned Order passed by the learned Additional Sessions Judge is devoid of the version of the Petitioner and therefore is against the principle of natural justice and the Petitioner s right to fair trial. The Supreme Court has consistently held that cancellation of bail CRL.M.C. 2392 2021 already granted stands on a different footing than rejection of bail when bail is applied for. It is easier to reject an application for bail in a non bailable case than to a bail once granted. The underlying reasoning for the same is that cancellation of bail interferes with personal liberty which has been already secured by the accused either by the exercise of discretion by the cCourt or by the thrust of law. Therefore any order of the court cancelling bail must be administered with utmost care and circumspection. The Supreme Court in Statev. Sanjay Gandhi 1978SCC 411 while dealing with an application under Section 439CrPC has observed as under: if by reason of 13. Rejection of bail when bail is applied for is one thing cancellation of bail already granted is quite another. It is easier to reject a bail application in a non bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only circumstances it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over. A brother a sister or a parent who has seen the commission of crime may resile in the Court from a statement recorded during the course of investigation. That happens instinctively out of natural love and affection not out of persuasion by the accused. The witness has a stake in the innocence of the accused and tries therefore to save him from the guilt. Likewise an employee may out of a sense of gratitude oblige the employer by uttering an untruth without pressure or persuasion. In other words the objective fact that witnesses have turned hostile must be shown to bear a causal connection with the subjective involvement therein CRL.M.C. 2392 2021 of the respondent. Without such proof a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused. Inconsistent testimony can no more be ascribed by itself to the influence of the accused than consistent testimony by itself can be ascribed to the pressure of the prosecution. Therefore Mr Mulla is right that one has to countenance a reasonable possibility that the employees of Maruti like the approver Yadav might have of their own volition attempted to protect the respondent from involvement in criminal charges. Their willingness now to oblige the respondent would depend upon how much the respondent has obliged them in the past. It is therefore necessary for the prosecution to show some act or conduct on the part of the respondent from which a reasonable inference may arise that the witnesses have gone back on their statements as a result of an intervention by or on behalf of the respondent." Furthermore when an order granting bail is passed by a lower court the appellate court must be slow to interfere with such an order until and unless it is shown that the said order was passed without due application of judicial mind. In Mahipal v. Rajesh Kumar 2020SCC 118 the Suprme Court has observed as under: 12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors among which the nature of the offence the severity of the punishment and a prima facie view of the involvement of the accused are important. No straitjacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However CRL.M.C. 2392 2021 the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved the continued custody of the accused subserves the purpose of the criminal justice system. Where bail has been granted by a lower court an appellate court must be slow to interfere and ought to be guided by the principles set out for the exercise of the power to set aside bail." This is a case of breach of promise to marry thereby amounting to rape. In order to establish whether sexual intercourse was committed in the backdrop of a false promise of marriage it has been held by the Supreme Court that the consent for sexual intercourse which is derived from the prosecutrix must be coerced or misguided or obtained through deceit. Therefore it must be shown that at the relevant stage i.e. at the stage of promising marriage the accused had no intention of keeping the promise to marry the prosecutrix 7 SCC 675]. However in the instant case whether the consent which was obtained from the Petitioner herein was under the misconception of a false promise of marriage can only be discerned during the trial itself. A perusal of the impugned order indicates that the learned Additional Sessions Judge has considered all the material on record and the impugned Order dated 18.08.2021 granting regular bail to Respondent No.2 is based on cogent reasoning. This Court does not find any infirmity in the Order passed by the learned Additional Sessions Judge and is therefore of the opinion that there is no reason to interfere in the same. Furthermore no supervening circumstances exist in the instant case which would justify the interference of this Court in cancelling the bail granted by the learned CRL.M.C. 2392 2021 Additional Sessions Judge. In the impugned Order dated 18.08.2021 the learned Additional Sessions Judge has set the following conditions while granting bail to the The accused must furnish a personal bond in the sum of Rs. 50 000 with one surety of the like amount to the satisfaction of the Learned MM Link MM Duty MM. The accused shall not make any attempt to contact the prosecutrix or any of the prosecution witnesses either directly or The accused shall not threaten the witnesses or tamper with the evidence. The accused shall join the investigation as and when directed by the IO SHO. permission from the Court. The accused shall not leave the country without prior The accused shall intimate on record any change of his residential address within 30 days of such change. In case of any violation of the conditions of bail set by the learned Additional Sessions Judge this Court grants liberty to the Petitioner herein to approach the competent Court in accordance with the law to seek cancellation of the bail which has been granted to the Respondent No.2. 12. The petition is dismissed with the above observations along with pending application(s) if any. NOVEMBER 09 2021 hsk SUBRAMONIUM PRASAD J CRL.M.C. 2392 2021

Death compensation can be claimed more than once if the previous claim was unsatisfied : High Court Of Jammu & Kashmir

A young man lost his life in a tragic road accident in the prime of his youth when he was travelling in a Maruti Car bearing Registration No.JK02V/4099, this was held in the judgement passed by a single bench judge comprising The Hon’ble Justice Tashi abstain, in the matter Adarsh Gupta and others v. National Insurance Co. Ltd. and others [MA No. 413/2012]. Respondent No. 2 was driving the car in a rash and negligent manner and when the vehicle reached near Punjab, the driver lost control over the vehicle after which the vehicle collided with a Eucalyptus tree, as a result thereof deceased died on spot. Claimants filed a claim petition before the learned MACT, Rajouri for claiming compensation on account of the death of the deceased with the support of  National Insurance Company Ltd, The Tribunal after examining the entire record and based on the evidence led awarded Rs.6,39,000/- along with interest @ 6% per annum in favour of the claimant. But claimant was not satisfied with the awarded amount, So claimants have filed this MA No.413/12 for enhancement of the award. The appellants have preferred this appeal mainly on the ground that the learned Tribunal has failed in its duty to award just and reasonable compensation and the act of the learned Tribunal in assessing the income of the deceased at 3 MA No. 413/2012 Rs.10000/- per month is too low and disproportionate to the qualification and keeping in view the profession of the deceased. But Mr Sunil Malhotra, learned counsel appearing for the Insurance Company submitted that the award passed by the learned Tribunal is appropriate and in consonance with the law laid down by The Hon’ble Supreme Court and, thus, needs no interference from this Court. Also, the insurance company has not disputed the age of the deceased nor his qualification. Otherwise too, it is borne out from the record that the deceased was a final year MBBS student. The arguments of learned counsel for appellants that the learned Tribunal did not take the prospective income of the deceased in its right perspective, thus has failed in awarding just and fair compensation. The Tribunal was required to consider the career prospects of the deceased and the likely earning of the deceased in future. What is held by the Apex Court in paragraph 23(i) of the case, titled,  M.R. Krishna Murthi versus New India Assurance Co. Ltd., reported as, 2020 ACJ 2870. Thus, it is clear that the Learned Tribunal fell in error while calculating the multiplier while taking the age of the mother/dependant into account instead of the deceased. Because of the above discussion, the income of the deceased is accepted as Rs.25,000/- per month. Therefore, at last, it was concluded to  40% is to be added towards the prospects of deceased, 7 MA No. 413/2012 i.e., Rs.2,95,000/- + 1,18,000/- = Rs.4,13,000/- per annum would be the income of the deceased. Because of the judgment of Pranay Sethi (supra), the claimants are also entitled to Rs.15,000/- as Funeral Expenses, Rs.15,000/- as Loss of Estate. Further, the Apex Court in Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram and others in Civil Appeal No. 9581 of 2018 has held that the loss of consortium includes filial consortium, that is the right of the parents to be compensated in case of the death of the child. The claimants are entitled to the total compensation of Rs.36,20,500/-. The Hon’ble High Court perused the facts and the arguments presented, and thereby, opined that -“This amount is held to be just compensation to the claimants and out of this awarded amount, a sum of Rs.40,000/- only shall be paid to the father of the deceased as because of Sarla Verma’s case (supra), wherein it is held that subject to the evidence to the contrary the father is likely to have his income and will not be considered as a dependant and the mother alone will be considered as dependent. Therefore, the rest of the amount to the tune of Rs.35,80,500/- shall be paid to the mother of the deceased. The insurance company shall pay the compensation directed above together with interest at the rate of 7.5% per 9 MA No. 413/2012 annum from the date of filing of the claim petition till its realization after proper verification and identification”.

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU MA No. 413 2012 Reserved on : 21.09.2021 Pronounced on : 29.09.2021 Adarsh Gupta and others Through: Mr.Vishnu Gupta Advocate National Insurance Co. Ltd. and others Through: Mr. Suneel Malhotra Advocate …. Respondent(s) Coram: HON’BLE MR. JUSTICE TASHI RABSTAN JUDGE This Judgment shall dispose of MA No. 413 2012 which arises out of impugned award dated 09.05.2012 passed by learned Motor Accidents Claims Tribunal Rajouri whereby an amount of Rs.6 39 000 was awarded in favour of claimant appellant No.1 alongwith interest @ 6% per annum from the date of filing of claim petition till its Factual matrix of this case as gathered from the impugned award is that on 08.08.2007 a young man lost his life in a tragic road accident in the prime of his youth when he was travelling in a Maruti Car bearing Registration No.JK02V 4099. The vehicle was being driven by respondent No. 2 herein in a rash and negligent manner and when the vehicle reached near Sujanpurthe driver lost control over the vehicle after which the vehicle collided with an Eucalyptus tree as a result thereof deceased died on spot. The deceased Dr. Abhinav Gupta was Final Year MBBS student in Acharya Shri Chander College MA No. 413 2012 2 of Medical Sciences & Hospital Jammu and had taken his final year examination about 2 3 days before the unfortunate accident. Claimants filed a claim petition before the learned MACT Rajouri for claiming compensation on account of death of the deceased. National Insurance Company Ltd. contested the claim petition and following issues came to be 1) Whether on 08.08.2007 the driver of vehicle No.JK02 V 4099was driving the car rashly negligently and recklessly on Jammu Pathankote Road and when it reached near Sujanpur the driver of the offending vehicle lost control over the vehicle and collided against an Eucalyptus tree and thereby caused accident as a result of which Dr. Abhinav Gupta son of petitioners No.1 & 2 sustained severe injuries resulting into his death on spot In case issue no.1 is proved in affirmative to what amount of compensation the petitioner is entitled to and from whom OPP. 3) Whether the driver of the offending vehicle was not holding a valid driving licence therefore the respondent No.3 is not liable to pay compensation OPR 3. 4) Whether the offending vehicle was being driven against the terms & conditions of insurance policy if so what is its effect OPR 3. The Tribunal after examining the entire record and on the basis of the evidence led awarded Rs.6 39 000 alongwith interest @ 6% per annum in favour of claimant appellant No.1 herein. Being not satisfied with the awarded amount claimants have filed this MA No.413 12 for enhancement of the award. The appellants have preferred this appeal mainly on the ground that the learned Tribunal has failed in its duty to award just and reasonable compensation and the act of the learned Tribunal in assessing income of the deceased at MA No. 413 2012 3 Rs.10000 per month is too low and disproportionate to the qualification and keeping in view the profession of the deceased. The other ground inter alia taken by the appellants in this appeal is that the learned Tribunal was duty bound to enhance the income of the deceased by at least 50% towards the future prospects. The appellants are also aggrieved of the Multiplier applied by the learned Tribunal while calculating the compensation. 6. Mr. Sunil Malhotra learned counsel appearing for the Insurance Company submitted that the award passed by the learned Tribunal is appropriate and in consonance with the law laid down by the Hon’ble Supreme Court and thus needs no interference from this Court. I have heard learned counsel appearing for the parties and also perused the memo of appeal as well as record of the Tribunal. Admittedly the insurance company has not disputed the age of the deceased nor his qualification. Otherwise too it is borne out from the record that the deceased was a final year MBBS student in Acharya Shri Chander College of Medical Sciences & Hospital Jammu and had taken his final year examination about 2 3 days before the unfortunate accident. The grievance of claimants 1 & 2 is that they have lost their brilliant son at such a tender age of 26 years who had a bright future ahead because of his professional qualification. However the learned Tribunal fell in error while computing his income at the rate of Rs.5000 per month after slashing 50% of the amount towards his personal expenses which is not a matter of humiliation for the claimants only but for the deceased also who was having such a brilliant future ahead because of the profession to which he belonged. Learned counsel MA No. 413 2012 4 appearing for appellants also argued that even a constable or a clerk having simple qualification would be earning much more than Rs.20 000 per month. I find force in the arguments of learned counsel for appellants that the learned Tribunal did not take the prospective income of the deceased in its right perspective thus has failed in awarding just and fair compensation. The Tribunal was required to consider the career prospects of the deceased and the likely earning of deceased in future. What is held by the Apex Court in paragraph 23(i) of the case titled as M.R. Krishna Murthi versus New India Assurance Co. Ltd. reported as 2020 ACJ 2870 is reproduced hereunder: “In those cases where the victim of the accident is not an earning person but a student while assessing the compensation for loss of future earning the focus of the examination would be the career prospect and the likely earning of such a person in future. For example where the claimant is pursuing a particular professional course the power would be: what would have been his income had he joined a service commensurating with the said course. That can be the future earning.” 11. Now the question arises for consideration is what can be the appropriate income of the deceased to be taken for assessing just and fair compensation. 12. The same question arose before the Apex Court in the case titled as Ashvinbhai Jayantilal Modi versus Ramkaran Ramchandra Sharma reported as 2014 Supreme 60. It would be appropriate to reproduce the relevant portion of paragraph 9 of the said judgment hereunder: “9. …..The Tribunal and the High Court have not taken into proper consideration that the deceased was a student of medicine at the time of the accident while determining his future income. The courts below have wrongly ascertained the future income of the deceased at only Rs.18 000 per month which in our view is too less for a medical graduate these days. Therefore the courts below have failed in following the principles laid down by this Court in this aspect in the above case. The deceased was a MA No. 413 2012 5 diligent and outstanding student of medicine who could have pursued his M.D. after his graduation and reached greater heights. Today medical practice is one of the most sought after and rewarding profession. With the tremendous increase in demand for medical professionals their salaries are also on the rise. Therefore we have no doubt in ascertaining the future income of the deceased at Rs.25 000 p.m. i.e. Rs.3 00 000 p.a.” 13. The above observations made by the Apex Court squarely apply to the case in hand. Though the said judgment came to be delivered in the year 2014 and now 2021 is running and the inflation has certainly soared many fold yet I take the monthly income of the deceased to be Rs.25 000 per month. Further enactment of Motor Vehicles Act is welfare legislation with an objective to give financial aid to the victims of motor vehicular accidents and also to the dependants of the deceased persons. This legislation aids such victims or their dependants to lead a respectable life. Thus the interpretation of various sections of Motor Vehicles Act shall be towards the fulfillment of these objectives and not to block the compensation on non sustainable grounds. 14. The next ground urged by the learned counsel for appellants is that the learned Tribunal has failed to enhance the prospective income of deceased on account of future prospects. 15. The law on future prospects is no more res integra. A Constitution Bench of the Hon’ble Supreme Court in case titled as National Insurance Company Ltd. Vs Pranay Sethi16 SCC 680 has held in paragraph 61(iv) that while determining income an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. In the present appeal since the deceased was 26 years of age and had taken his final year examination about 2 3 days before the unfortunate accident therefore learned MA No. 413 2012 6 Tribunal committed error while not adding anything towards the future prospects of deceased as there should have been an addition of 40% of actual salary towards future prospects in view of Pranay Sethi’s caseand reiterated in Royal Sundaram Alliance Insurance Company Ltd. Vs Mandala Yadagiri Goud and Ors. AIR 2019 SC 1825 relevant paragraph 13 whereof is reproduced “13. We are convinced that there is no need to once again take up this issue settled by the aforesaid judgments of three Judge Bench and also relying upon the Constitution Bench that it is the age of the deceased which has to be taken into account and not the age of the dependents.” 17. Thus it is clear that the Learned Tribunal fell in error while calculating the multiplier while taking the age of mother dependant into account instead of the deceased. In view of the above discussion the income of the deceased is accepted as Rs.25 000 per month. The annual income of the deceased comes to Rs.3 00 000 and after deducting the aggregate income tax approximately at the rate of Rs.5000 per annum taking different slabs for different financial years the net annual income comes to Rs.2 95 000 . In Pranay Sethi the Apex Court held that while determining the income of the deceased 40% of the actual salary of the deceased is taken towards future prospects where the deceased was on a fixed salary or self employed and was below the age of 40 years. Therefore 40% is to be added towards the future prospects of deceased MA No. 413 2012 7 i.e. Rs.2 95 000 + 1 18 000 = Rs.4 13 000 per annum would be the income of the deceased. para 15 as under: 19. The deceased was survived by his parents and his brother thus keeping in view the judgment of the Apex Court in “Sarla Verma & ors. vs. Delhi Transport Corporation & anr. AIR 2009 SC 3104 wherein it has been held in “15. Where the deceased was a bachelor and the claimants are the parents the deduction follows a different principle. In regard to bachelors normally 50% is deducted as personal and living expenses because it is assumed that a bachelor would tend to spend more on himself. Even otherwise there is also the possibility of his getting married in a short time in which event the contribution to the parent s and siblings is likely to be cut drastically. Further subject to evidence to the contrary the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary brothers and sisters will not be considered as dependents because they will either be independent and earning or married or be dependant on the father. Thus even if the deceased is survived by parents and siblings only the mother would be considered to be a dependant and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However where family of the bachelor is large and dependant on the income of the deceased as in a case where he has a widowed mother and large number of younger nonearning sisters or brothers his personal and living expenses may be restricted to one third and contribution to the family will be taken as two third.” 20. Since the deceased was a bachelor of 26 years of age and claimants are parents and brother of the deceased 50% of the income of the deceased is to be deducted as his personal and living expenses. After deducting 50% of the income towards personal and living expenses of the deceased the net income would be= Rs.2 06 500 . 21. The age of the deceased at the time of death was 26 years therefore in terms of Sarla Verma case the appropriate multiplier in this case MA No. 413 2012 8 would be 17 thus the loss of dependency of the claimants would be Rs.2 06 500 × 17 = Rs.35 10 500 . In view of the judgment of Pranay Sethithe claimants are also entitled to Rs.15 000 as Funeral Expenses Rs.15 000 as Loss of Estate. Further the Apex Court in Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram and others in Civil Appeal No. 95818 has held that the loss of consortium includes filial consortium that is the right of the parents to be compensated in case of the death of the child. The amount awarded to the parents is compensation for loss of love affection care and companionship of the deceased child. Thus both the parents are entitled to Rs. 40 000 each on loss of love and affection. Thus the claimants are entitled to the total compensation as follows: Loss of Dependency Rs.35 10 500 . Loss of Consortium Rs. 80000 Funeral Expenses Rs. 15 000 Loss of Estate Rs. 15 000 Total Rs.36 20 500 23. This amount is held to be just compensation to the claimants and out of this awarded amount a sum of Rs.40 000 only shall be paid to the father of the deceased as in view of Sarla Verma’s casewherein it is held that subject to the evidence to the contrary the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as dependent. Therefore rest of the amount to the tune of Rs.35 80 500 shall be paid to the mother of the deceased. The insurance company shall pay the compensation directed above together with interest at the rate of 7.5% per MA No. 413 2012 9 annum from the date of filing of the claim petition till its realization after proper verification and identification. 24. With the abovesaid modification in the amount of compensation present appeal is allowed in the aforesaid terms. 25. Registrar is also directed to circulate this judgment to all the Presiding Officers of the Motor Accidents Claims Tribunals in the UT of J&K and UT of Ladakh dealing with such cases regarding compensation on account of death of the deceased person. 26. Send down the record along with a copy of this judgment. Tashi Rabstan) Judge Whether the order is reportable Whether the order is speaking 29.09.2021 Anil Sanhotra)

It is a fit case for a remit to the Tribunal on the limited extent of the grant of recovery rights against the appellant : High Court of Delhi

Parties shall appear before the tribunal for directions and tribunal shall have endeavour to conclude the recording of evidence on the limited aspect of grant of recovery rights and pass a fresh award expeditiously held by High Court of Delhi through the learned bench led by HON’BLE MR. JUSTICE SANJEEV SACHDEVA in the case of M/S GARG ROAD LINES & ANR vs. NATIONAL INSURANCE CO. LTD & 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 & 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

Employer can justify dismissal of employee without an enquiry by way of leading evidence : Supreme Court

The onus of proof to show that the employee was in actual and continuous service of the employer during the disputed time falls on the employee. The Supreme Court bench consisting of J. L. Nageswara Rao, J. Navin Sinha and j. Indu Malhotra allowed the Special Leave Petition filed by the State of Uttarakhand against an ex-employee in the case of State of Uttarakhand & Ors. v. Smt. Sureshwati [Civil Appeal No. 142 of 2021]. The respondent was initially engaged as an Assistant Teacher in Jai Bharat Junior High School after which she worked as a clerk. Subsequently, the District Basic Education Officer granted approval to the appointment of the Teachers, Clerk and Peon in the School, including the respondent. During this period, the School was an unaided private institution. Many years later, the School started receiving grant-in-aid from the State, and came to be governed by the Uttaranchal School Education Act, 2006. The appellants stated that the respondent had abandoned her service as a clerk when she got married and shifted elsewhere. The respondent, after about 9 years filed a complaint before the School contending that she had worked continuously and that her services were illegally retrenched without granting her any hearing or payment of retrenchment compensation. The inquiry conducted cleared that the respondent had manipulated the School records and hence, was not eligible to any compensation. The respondent filed a complaint before the Labour Commissioner who passed an ex-parte award in favour of the employee. The said award was challenged before the High Court who allowed the writ petition and remanded the case to the Labour Court to decide the matter de novo in accordance with law. The respondent argued that she had been in employment of the School when she was illegally terminated, without holding any enquiry or granting her personal hearing. The Head Master of the School stated that the respondent had only filed a false complaint before the Labour Commissioner when the School became aided and that the allegations were baseless. The Labour Court decided against the respondent to which a writ petition was again filed by the respondent before the High Court. The court allowed the petition only on the grounds that the employer had admitted in the cross-examination that no enquiry was conducted, or disciplinary proceedings initiated regarding the abandonment of service by the employee.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 142 OF 2021 Arising out of Special Leave PetitionNo. 98620 STATE OF UTTARAKHAND & ORS … APPELLANTS … RESPONDENT J U D G M E N T INDU MALHOTRA J The State of Uttarakhand has filed the present Special Leave Petition to challenge the Judgment dated 28.8.2019 passed by the High Court of Uttarakhand in W.P. No. 3439 of 2016 whereby the High Court has reversed the Award passed by the Labour Court and directed reinstatement of the Respondent. The background facts of the present case are that the Respondent was initially engaged as an Assistant Teacher in Jai Bharat Junior High School Haridwarduring the period July 1993 to 21.5.1994. Subsequently she worked as a Clerk from 1.7.1994. On 25.3.1996 the District Basic Education Officer granted approval to the appointment of the Teachers Clerk and Peon in the School including the Respondent herein w.e.f 1.7.1994. During this period the School was an unaided private institution. From 24th May 2005 the School started receiving grants in aid from the State and came to be governed by the Uttaranchal School Education Act 2006 It is the case of the Appellants that the Respondent had abandoned her service as a clerk in the School since 1.7.1997 when she got married and shifted After a period of 9 years on 15.7.2006 the Respondent filed a complaint before the School contending that she had worked continuously upto 07.03.2006 She alleged that on 8th March 2006 her services were illegally retrenched without granting her any hearing or payment of retrenchment compensation. The School vide letter dated 21.08.2006 requested the Additional District Education OfficerHaridwar to conduct an inquiry on the complaint made by the Respondent. The Basic School Inspector vide his detailed report dated 24 th August 2006 stated that he had inspected the records of the School in the presence of both parties. He found that the Respondent had tampered and manipulated the date of appointment by mentioning two different dates. The enquiry revealed that the employment of the Respondent was illegal since the father of the respondent was a member of the Managing Committee and her mother was the Chairman employed by the School. The records revealed that the Respondent had not worked in the School from July 1997 onwards nor was there any leave application received from her on the record. On account of her continuous absence the School engaged another clerk Mrs. Sneh Lata in her place who was appointed on 17.07.2002. The Respondent never made any grievance about her alleged termination till 2006 which was made only after the School started receiving grants in aid from the State and became a Government School. The Directorate School Education Internal Audit Division Uttarakhand Dehradun prepared an Audit Report of the School. The Audit Report dated 19.2.2008 has been placed on record. The Audit Report records the names of the 6 employees of the School which comprised of the Principal three Assistant Teachers Smt. Snehlata clerk and Sh. Ram Kumar Saini Peon. The name of the Respondent is not mentioned in the Report of February The Respondent filed a Complaint before the Labour Commissioner Haridwar. The Complaint was referred to the Additional Labour Commissioner to determine whether the alleged termination of the services of the workman was proper and or valid. An ex parte award was passed by the Labour Court on 05.02.2010 in favour of the employee. The said Award was challenged before the High Court in Writ Petition No. 18510. The High Court vide Order dated 16.09.2015 allowed the Writ Petition and remanded the case to the Labour Court to decide the matter de novo in accordance with law On remand the Labour Court permitted the parties to lead detailed The case of the claimant Respondent herein was that she had been in the employment of the School from 1.7.1994 till 8.3.2006 when she was illegally terminated without holding any enquiry or granting her personal hearing. She contended that she had worked for not less than 240 days in the preceding year before her alleged termination. Since the work was of permanent nature she was entitled to re instatement with continuity of service. She placed reliance on a copy of the letter dated 25.03.1996 issued by the then District Basic Education Officer who had granted approval of the employees engaged by the School. The respondent has also placed reliance on a letter dated 20.06.2013 issued by the Block Education Officer Roorkee to Chief Education Officer Haridwar requesting for re instatement of the respondent in compliance with the Order dated 11.8.2010 passed by the Labour Court. In the said letter it was stated that the Respondent was on leave when the Government took over the School for grants in aid due to which the Respondent had not drawn her salary. It is noted that one Kumari Smita Saini was given appointment to the Post of clerk by the School. It was stated that Kumari Smita Saini ought to be treated as being engaged on a supernumerary post. It was recommended that the Respondent be permitted to join the School in compliance with the Orders passed by the Labour Court on In the cross examination the respondent has admitted that her mother was the President of the School and her father was a Member of the Managing Committee at the time of her engagement in the School. She has further admitted that there was only one Register of Attendance being maintained for all the employees in the School. She has admitted that she got married in May 1997 and was residing with her in laws in Vikram Nagar Dehradun. The School filed its written statement wherein it was inter alia contended that the claimant had since 01.07.1997 remained continuously absent from the School since she had got married and was residing in Dehradun. It was specifically averred that she had never joined back the School. At that time the School was not receiving grants in aid from the State. It was submitted that the allegation made by the claimant that her services were illegally terminated on 08.03.2006 was completely false and baseless. It was further submitted that the School was not an “industry” and would not be covered by the Industrial Disputes Act 1947. The School led evidence of the Head Master two Assistant Teachers and Peon of the School. The Head Master refuted the allegations made by the claimant as being completely false and devoid of any truth. He has deposed that the averment of the claimant that her services were allegedly terminated on 08.03.2006 without any prior notice was false and baseless. It is the unequivocal case of the School that the claimant had not worked after her marriage in 1997 when she shifted to Dehradun. The School then engaged Smt. Sneh Lata on 17.7.2002 as a clerk. It was only after the School became an aided School in 2005 that she filed a false Complaint before the Assistant Labour Commissioner Haridwar in 2006. The enquiry conducted by the Basic School Inspector on 24.8.2006 revealed that she was the daughter of the President and Member of the Managing Committee which was running the School at the time of her Rajinder Kumar Assistant Teacher deposed that the allegation of the Respondent that she was working on the post of clerk upto 08.03.2006 was incorrect and false. The School forwarded the names of all the staff employees working in the School to the Government of Uttarakhand on 01.07.2005 for approval at the time when the grants in aid was started. The said list does not contain the name of the claimant. The list contained the name of only one clerk viz Sneh Lata. Ram Kumar Saini the Peon in the School deposed that the Respondent was initially appointed as a teacher and later on worked as a Clerk. It was stated that the teachers appointed to the School were required to have the qualification of B.Ed. and Teacher training The Labour Court vide Award dated 22.08.2016 answered the reference against the Claimant Respondent herein. It was held that the claimant was not entitled to get any relief as there was sufficient evidence adduced by the Management to prove her continued absence from the School since 01.07.1997 The claimant failed to produce any evidence to prove that she had been terminated on 08.03.2006. The onus to prove the alleged illegal termination was on the workman. The applicant failed to summon the Attendance Register and the Accounts Books of the School to prove that she had been continuously working till 08.03.2006. Consequently she failed to discharge the onus of her employment till 8.3.2006. After the School started receiving grants in aid she filed the present application after over 9 years. The contention of the claimant that her appointment had been illegally terminated on 08.03.2006 was unreliable and devoid of any truth. It was held that the claimant had concealed material facts and had not approached the Court with clean hands. Aggrieved by the Judgment of the Labour Court the Respondent filed W.P No. 34316 before the High Court. The learned Single Judge of the High Court allowed the Writ Petition on the Singular ground that the employer had admitted in the cross examination that no enquiry was conducted or disciplinary proceedings initiated regarding the abandonment of service by the employee Even though the School had submitted in the written statement that the employee had abandoned her job in 1997 there was no such plea to the contrary with respect to the dispensation of her service on 08.03.2006 13. We have heard the learned Counsel for the parties and perused the record. We find that the High Court has set aside the Award dated 22.8.2016 passed by the Labour Court on the sole ground that no disciplinary enquiry was held by the School regarding her alleged abandonment of service. This Court has in a catena of decisions held that where an employer has failed to make an enquiry before dismissal or discharge of a workman it is open for him to justify the action before the Labour Court by leading evidence before it The entire matter would be open before the tribunal which would have the jurisdiction to satisfy itself on the evidence adduced by the parties whether the dismissal or discharge was justified. A four Judge Bench of this Court in Workmen of the Motipur Sugar Factory Private Ltd. v. Motipur Sugar Factory1 held that “ 11. It is now well settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic enquiries have been held. The entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited questions open to a tribunal where domestic enquiry has been property held see Indian Iron & Steel Co. v. Workmen2 ) but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified We may in this connection refer to Sana Musa Sugar WorksLimited v. Shobrati Khan3 Phulbari Bank Limited v. Workmen5 . These three cases were further considered by this Court in Bharat Sugar Mills Limited v. Jai Singh6 and reference was also made to the decision of the Labour Appellate Tribunal in Ram Swarath Sinha v. Belsund Sugar Tea Estate v. Workmen4 and Punjab National 1 AIR 1965 SC 1803. 2 AIR: 1958 SC 130 3 AIR 1959 SC 923 4 AIR 1959 SC 1111 5 AIR 1960 SC 160 63 SCR 684 Co.7 . It was pointed out that “the important effect of omission to hold an enquiry was merely this: that the tribunal would not have to consider only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have really been made out”. It is true that three of these cases except Phulbari Tea Estate case were on applications under Section 23 of the Industrial Disputes Act 1947. But in principle we see no difference whether the matter comes before the tribunal for approval under Section 33 or on a reference under Section 10 of the Industrial Disputes Act 1947. In either case if the enquiry is defective or if no enquiry has been held as required by Standing Orders the entire case would be open before the tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was proper. Phulbari Tea Estate case was on a reference under Section 10 and the same principle was applied there also the only difference being that in that case there was an inquiry though it was defective. A defective enquiry in our opinion stands on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or discharge was proper.” Subsequently in Delhi Cloth and General Mills Co. v. Ludh Budh Singh8 this Court held that : “(1) If no domestic enquiry had been held by the management or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it it is entitled to straightway adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it on merits and give a decision thereon. In such a case it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it 3) When the management relies on the enquiry conducted by it and also simultaneously adduces evidence before the Tribunal without prejudice to its plea that the enquiry proceedings are proper it is the duty of the Tribunal in the first instance to consider whether the enquiry proceedings conducted by the management are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid the question of considering the evidence adduced before it on merits no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence. Reliance is also placed on the judgment of this Court in Workmen of Firestone Tyre & Rubber Co. of India Ltd. v. The Management of Firestone Tyre & Rubber Co. of IndiaLtd and Others. 9 wherein the broad principle regarding holding of the enquiry were spelt out as “32. From those decisions the following principles broadly emerge 7LAC 697 81 SCC 595 91 SCC 813 “(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions but if a dispute is referred to a Tribunal the latter has power to see if action of the employer is justified 2) Before imposing the punishment an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders if applicable and principles of natural justice. The enquiry should not be an empty formality 3) When a proper enquiry has been held by an employer and the finding of misconduct is a plausible conclusion flowing from the evidence adduced at the said enquiry the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation unfair labour practice or mala fide 4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective the Tribunal in order to satisfy itself about the legality and validity of the order had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action and it is open to the employee to adduce evidence contra 5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter on the evidence adduced before it has to decide for itself whether the misconduct alleged is proved. In such cases the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry 6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only if no enquiry has been held or after the enquiry conducted by an employer is found to be defective 7) It has never been recognised that the Tribunal should straightaway without anything more direct reinstatement of a dismissed or discharged employee once it is found that no domestic enquiry has been held or the said enquiry is found to be 8) An employer who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action should ask for it at the appropriate stage. If such an opportunity is asked for the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct 9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation 10) In a particular case after setting aside the order of dismissal whether a workman should be reinstated or paid compensation is as held by this Court in Management of Panitole Tea Estate v. Workmens10 within the judicial decision of a Labour Court or Tribunal 40. Therefore it will be seen that both in respect of cases where a domestic enquiry has been held as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time the satisfaction under Section 11 A about the guilt or otherwise of the workman concerned is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or other. Even in cases where an enquiry has been held by an employer and a finding of misconduct arrived at the Tribunal can now differ from that finding in a proper case and hold that no misconduct is proved 101 SCC 742 We are not inclined to accept the contentions advanced on behalf of the employers that the stage for interference under Section 11 A by the Tribunal is reached only when it has to consider the punishment after having accepted the finding of guilt recorded by an employer. It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. To come to a conclusion either way the Tribunal will have to re appraise the evidence for itself. Ultimately it may hold that the misconduct itself is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. That is why according to us Section 11 A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion enures to it when it has to adjudicate upon the dispute referred to it in which an employer relies on the findings recorded by him in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the guilt or otherwise was always recognised in a Tribunal when it was deciding a dispute on the basis of evidence adduced before it for the first time Both categories are now put on a par by Section 11 A.” We have perused the Award passed by the Labour Court and find that a full opportunity was given to the parties to lead evidence both oral and documentary to substantiate their respective case. The High Court has not even adverted to the said evidence and has disposed of the Writ Petition on the sole ground that the School had not conducted a disciplinary enquiry before discharging the respondent from service. The School has led sufficient evidence before the Labour Court to prove that the Respondent had abandoned her service from 01.07.1997 when she got married and moved to another District which was not denied by her in her evidence. The record of the School reveals that she was not in employment of the School since July 1997 The initial employment of the Respondent as a teacher from July 1993 to 21.5.1994 was itself invalid since she was only inter mediateand did not have the B.Ed. degree which was the minimum qualification to be appointed as a teacher. The Respondent has failed to prove that she had worked for 240 days during the year preceding her alleged termination on 8.3.2006. She has merely made a bald averment in her affidavit of evidence filed before the Labour Court. It was open to the Respondent to have called for the records of the School i.e. the Attendance Register and the Accounts to prove her continuous employment till 8.3.2006. Since the School was being administered by the Government of Uttarakhand from 2005 onwards she could have produced her Salary Slips as evidence of her continuous employment upto 08.03.2006. However she failed to produce any evidence whatsoever to substantiate her case The reliance placed by the Respondent on the letter dated 20.6.2013 from the Block Development Officer Roorkee cannot be relied upon. The letter acknowledges that the Respondent was on leave when the Government took over the School and started receiving grants in aid. The Block Development Officer’s recommendation to the Chief Education Officer Haridwar to act in compliance with the Order dated 5.2.2010 passed by the Labour Court cannot be relied on as the Award dated 5.2.2010 was set aside by the High Court On the basis of the evidence led before the Labour Court we hold that the School has established that the Respondent had abandoned her service in 1997 and had never reported back for work. The Respondent has failed to discharge the onus to prove that she had worked for 240 days’ in the preceding 12 months prior to her alleged termination on 8.3.2006. The onus was entirely upon the employee to prove that she had worked continuously for 240 days’ in the twelve months preceding the date of her alleged termination on 8.3.2006 which she failed to discharge A division bench of this Court in Bhavnagar Municipal Corpn. v. Jadeja Govubha Chhanubha11 held that “7. It is fairly well settled that for an order of termination of the services of a workman to be held illegal on account of non payment of retrenchment compensation it is essential for the workman to establish that he was in continuous service of the employer within the meaning of Section 25 B of the Industrial Disputes Act 1947. For the respondent to succeed in that attempt he was required to show that he was in service for 240 days in terms of Section 25 B(2)(a)(ii). The burden to prove that he was in actual and continuous service of the employer for the said period lay squarely on the workman. The decisions of this Court in Range Forest Officer v. S.T Hadimani 12 Municipal Electricity Board v. Hariram14 Rajasthan State Ganganagar S. Mills Ltd. v. State of District 2004 SCC Faridabad v. Siri Niwas 13 M.P Surendranagar Corpn. 1055 1116 SCC 130 123 SCC 25 138 SCC 195 148 SCC 246 158 SCC 161 Pitamberbhai16 and R.M Yellatti v. Executive Panchayat v. Jethabhai Engineer17 unequivocally recognise the principle that the burden to prove that the workman had worked for 240 days is entirely upon him. So also the question whether an adverse inference could be drawn against the employer in case he did not produce the best evidence available with it has been the subject matter of pronouncements of this Court in Municipal Corpn. Faridabad v. Siri Niwas and M.P Electricity Board v. HariramNew Delhi January 20 2021 168 SCC 450 171 SCC 106 185 SCC 100

Compromised Inter se- No Fruitful Purpose to be served in Continuing the Criminal Proceedings: High Court of Shimla

Keeping in view that the matter compromised inter-se them, the possibility of conviction is remote and no fruitful purpose would be served in continuing with the criminal proceedings. This honorable judgement was passed by High Court of Shimla in the case of Rajesh Kumar v. State of Himachal Pradesh and others [CrMMO No. 59 of 202] by the Hon’ble Mr. Justice Sandeep Sharma. The petition was filed under S.482 CrPC, on behalf of the petitioner for quashing of FIR, registered at Police Station Indora, District Kangra, Himachal Pradesh, under Ss. 279, 337 and 304 IPC and S.187 of the Motor Vehicles Act, on the basis of compromise arrived inter se parties. An army vehicle (Jipsy) being driven by the petitioner, hit the motor cycle being driven by deceased and   his son as a consequence of which, on the basis of his statement recorded, so that factum with regard to correctness and genuineness of the compromise placed on and also stated on oath that, whereby both the parties had resolved to settle the dispute amicably inter-se them. The petitioner took all possible care of the deceased after the alleged accident, they shall have no objection. The councel referred the case of Narinder Singh and others v. State of Punjab and another has specifically held that power under S. 482 CrPC is not to be exercised in the cases which involve heinous and serious offences of mental depravity or offences like murder, rape, etc and in the case of Gian Singh v. State of Punjab and anr. the court held that power of the High Court in quashing of the criminal proceedings or FIR or complaint in exercise of its inherent power is distinct and in Narinder Singh’s case, the court held that while exercising inherent power of quashment under Section 482 Cr.PC the Court must have due regard to the nature and gravity of the crime and its social impact and it cautioned the Courts not to exercise the power for quashing proceedings in heinous and serious offences of mental depravity, murder, rape, dacoity etc. The court opinioned that, ‘offences alleged to have been committed by the accused do not involve offences of moral turpitude or any grave/heinous crime, as such, this court deems it appropriate to quash the FIR as well as consequential proceedings thereto, especially keeping in view the fact that the complainant, relatives of the deceased and accused have compromised the matter inter se them, in which case, possibility of conviction is remote and no fruitful purpose would be served in continuing with the criminal proceedings.’

Hig h C o urt of H.P on 20 03 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CrMMO No. 521 Decided on: March 19 2021 ________________________________________________________________ Rajesh Kumar ...Petitioner Versus State of Himachal Pradesh and others …Respondents ________________________________________________________________ Coram Hon’ble Mr. Justice Sandeep Sharma Judge. Whether approved for reporting1 ________________________________________________________________ For the petitioner: Mr. Vikas Rajput and Mr. Rohit Minhas Advocates. For the respondents: Mr. Sudhir Bhatnagar and Mr. Arvind Sharma Additional Advocates General with Mr. Kunal Thakur Deputy Advocate General for respondent No.1. Mr. Sanjeev Kumar Advocate for respondents Nos. 2 to 4. _______________________________________________________________ Sandeep Sharma J.By way of instant petition filed under S.482 CrPC prayer has been made on behalf of the petitioner for quashing of FIR No. 171 dated 8.10.2020 registered at Police Station Indora District Kangra Himachal Pradesh under Ss. 279 337 and 304 IPC and S.187 of the Motor Vehicles Act on the basis of compromise arrived inter se parties Annexure P 2). 2. Precisely the facts of the case as emerge from the record are that on 7.10.2020 an army vehiclebeing driven by the petitioner hit the motor cycle being driven by one Shri Gagan Singhi.e. husband of respondent No.2 Whether reporters of the Local papers are allowed to see the judgment . Hig h C o urt of H.P on 20 03 HCHP 2 and son of respondent No.4 as a consequence of which Gagan Singh sustained multiple injuries and later on succumbed to his injuries. Respondent No.3 Balraj Singh who was present on the spot on the date of alleged accident informed the police and thereafter on the basis of his statement recorded under S.154 CrPC FIR sought to be quashed in the instant petition. 3. Having taken note of the averments contained in the petition as well as compromise placed on record this Court while issuing notice on 20.2.2021 deemed it necessary to cause presence of the parties in the court especially respondents Nos. 2 to 4 so that factum with regard to correctness and genuineness of the compromise placed on record could be ascertained. Pursuant to order dated 20.2.2021 petitioner as well as respondents No. 2 to 4 have come present who are duly represented by Mr. Sanjeev Kumar Advocate. 4. Respondent No. 3 Balraj Singh at whose instance FIR sought to be quashed in the present proceedings came to be lodged states on oath that since respondents Nos. 2 and 4 namely Mohinder Kaur and Malkiyat Singh who are wife and father of the deceased who expired in the alleged accident have already entered into compromise with the petitioner and they do not want to prosecute the case further he shall have no objection in case prayer made in the instant petition is allowed and Hig h C o urt of H.P on 20 03 HCHP 3 petitioner is acquitted of the offences charged against him. His statement is taken on record. 5. Respondents No.2 and 4 namely Mohinder Kaur and Malkiyat Singh also state on oath that they of their own volition and without there being any external pressure have entered into compromise with the petitioner whereby both the parties have resolved to settle the dispute amicably inter se them. They further states that the petitioner took all possible care of the deceased after the alleged accident they shall have no objection in case prayer made on behalf of the petitioner for quashing of FIR in question is accepted. They have identified their signatures on the compromise. Their statements are taken on oath. 6. Mr. Kunal Thakur learned Deputy Advocate General having heard statement made by respondents Nos. 2 to 4 fairly states that since the complainant relatives of the deceased and the accused have entered into compromise no fruitful purpose would be served in case criminal proceedings against the accused are allowed to continue. He further states that otherwise also chances of conviction in the present case are bleak and remote on account of statements given by the complainant and the relatives of the deceased and as such respondent State shall Hig h C o urt of H.P on 20 03 HCHP 4 have no objection in case prayer made in the present petition is allowed. 7. The question which now needs consideration is whether FIR in question can be ordered to be quashed when Hon ble Apex Court in Narinder Singh and others versus State of Punjab and anotherwhereby the Hon’ble Apex Court has formulated guidelines for accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings. Perusal of judgment referred to above clearly depicts that in para 29.1 Hon’ble Apex Court has returned the findings that power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt under Section 482 of the Code the High Court has inherent power to quash criminal proceedings even in those cases which are not compoundable and where the Hig h C o urt of H.P on 20 03 HCHP 5 parties have settled the matter between themselves however this power is to be exercised sparingly and with great caution. Para Nos. 29 to 29.7 of the judgment are reproduced as under: “29. In view of the aforesaid discussion we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings: 29.1 Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt under Section 482 of the Code the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable where the parties have settled the matter between themselves. However this power is to be exercised sparingly and with caution. 29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed the guiding factor in such cases would be to secure: ends of justice or to prevent abuse of the process of any Court. While exercising the power under Section 482 Cr.P.C the High Court is to form an opinion on either of the aforesaid two objectives. 29.3. Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder rape dacoity etc. Such offences are not private in nature and have a serious impact on society. Similarly for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender. 29.4. On the other those criminal cases having overwhelmingly and pre dominantly civil character particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves. 29.5. While exercising its powers the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to Hig h C o urt of H.P on 20 03 HCHP 6 great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases. 29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. 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 proving 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. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. 29.7. While deciding whether to exercise its power under Section 482 of the Code or not timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation the High Court may be liberal in accepting the settlement to quash the criminal proceedings investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage the High Court can show benevolence in exercising its powers favourably but after prima facie assessment of the circumstances material mentioned above. On the other hand where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument normally the High Court should refrain from exercising its power under Section 482 of the Code as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly in those cases where Hig h C o urt of H.P on 20 03 HCHP 7 the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and therefore there is no question of sparing a convict found guilty of such a crime”. 9. Careful perusal of para 29.3 of the judgment suggests that such a power is not to be exercised in the cases which involve heinous and serious offences of mental depravity or offences like murder rape dacoity etc. Such offences are not private in nature and have a serious impact on society. Apart from this offences committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender. On the other hand those criminal cases having overwhelmingly and predominantly civil character particularly arising out of commercial transactions or arising out of matrimonial relationship or family disputes may be quashed when the parties have resolved their entire disputes among themselves. 10. The Hon’ble Apex Court in case Gian Singh v. State of Punjab and anr.10 SCC 303 has held that power of the High Court in quashing of the criminal proceedings or FIR or complaint in exercise of its inherent power is distinct and Hig h C o urt of H.P on 20 03 HCHP 8 different from the power of a Criminal Court for compounding offences under Section 320 Cr.PC. Even in the judgment passed in Narinder Singh’s case the Hon’ble Apex Court has held that while exercising inherent power of quashment under Section 482 Cr.PC the Court must have due regard to the nature and gravity of the crime and its social impact and it cautioned the Courts not to exercise the power for quashing proceedings in heinous and serious offences of mental depravity murder rape dacoity etc. However subsequently the Hon’ble Apex Court in Dimpey Gujral and Ors. vs. Union Territory through Administrator UT Chandigarh and Ors.10 SCC 303 considered the relevant provisions of the Code and the judgments of this court and concluded as under:61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz to secure the ends of justice orto prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and Hig h C o urt of H.P on 20 03 HCHP 9 circumstances of each case and no category can be prescribed. However before exercise of such power the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder rape dacoity etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre dominatingly civil flavour stand on different footing for the purposes of quashing particularly the offences arising from commercial financial mercantile civil partnership or such like transactions or the offences arising out of matrimony relating to dowry etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases High Court may quash criminal proceedings if in its view because of the compromise between the offender and victim the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative the High Court shall be well within its jurisdiction to quash the criminal proceeding.”8. In the light of the above observations of this court in Gian Singh we feel that this is a case where the continuation of criminal proceedings would tantamount to abuse of process of law because the alleged offences are not heinous offences showing extreme depravity nor are they against the society. They are offences of a personal nature and burying them would bring about peace and amity between the two sides. In the circumstances of the case FIR No. 163 dated 26.10.2006 registered under Section 147 148 149 323 307 452 and 506 of the IPC at Police Station Sector 3 Chandigarh and all consequential proceedings arising there from including the final report presented under Section 173 of the Code and charges framed by the trial Court are hereby quashed.” Hig h C o urt of H.P on 20 03 HCHP 10 11. Recently the Hon’ble Apex Court in its latest judgment dated 4th October 2017 titled as Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and others versus State of Gujarat and Another passed in Criminal Appeal No.17217 arising out of SLP(Crl) No.95416 reiterated the principles parameters laid down in Narinder Singh’s case supra for accepting the settlement and quashing the proceedings. It would be profitable to reproduce para No. 13 to 15 of the judgment herein: “13. The same principle was followed in Central Bureau of Investigation v. Maninder Singhobserved that the case involved allegations of forgery of documents to embezzle the funds of the bank. In such a situation the fact that the dispute had been settled with the bank would not justify a recourse to thepower under Section 482: “…In economic offences Court must not only keep in view that money has been paid to the bank which has been defrauded but also the society at large. It is not a case of simple assault or a theft of a trivial amount but the offence with which we are concerned is well planned and was committed with a deliberate design with an eye of personal profit regardless of consequence to the society at large. To quash the proceeding merely on the ground that the accused has settled the amount with the bank would be a misplaced sympathy. If the prosecution against the economic offenders are not allowed to continue the entire community is aggrieved." 14. In a subsequent decision in State of Tamil Nadu v R Vasanthi Stanley1 SCC 376 the court rejected the submission that the first respondent was a woman “who was following the command of her husband” and had signed certain documents without being aware of the nature of the fraud which was being Hig h C o urt of H.P on 20 03 HCHP 11 perpetrated on the bank. Rejecting the submission this Court held that: “... Lack of awareness knowledge or intent is neither to be considered nor accepted in economic offences. The submission assiduously presented on gender leaves us unimpressed. An offence under the criminal law is an offence and it does not depend upon the gender of an accused. True it is there are certain provisions in Code of Criminal Procedure relating to exercise of jurisdiction Under Section 437 etc. therein but that altogether pertains to a different sphere. A person committing a murder or getting involved in a financial scam or forgery of documents cannot claim discharge or acquittal on the ground of her gender as that is neither constitutionally nor statutorily a valid argument. The offence is gender neutral in this case. We say no more on this score…” “…A grave criminal offence or serious economic offence or for that matter the offence that has the potentiality to create a dent in the financial health of the institutions is not to be quashed on the ground that there is delay in trial or the principle that when the matter has been settled it should be quashed to avoid the load on the system…” 15. The broad principles which emerge from the precedents on the subject may be summarized in the following propositions: 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 recognizes and preserves powers which inhere in the High Court 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. 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 While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised to secure the ends of justice orto prevent an abuse of the process of any court 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 Hig h C o urt of H.P on 20 03 HCHP 12 vi) 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 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 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 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 andThere is yet an exception to the principle set out in propositionsandabove. 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.” 12. In the case at hand also offences alleged to have been committed by the accused do not involve offences of moral turpitude or any grave heinous crime as such this court deems it appropriate to quash the FIR as well as consequential proceedings thereto especially keeping in view the fact that the complainant relatives of the deceased and accused have compromised the matter inter se them in which case possibility Hig h C o urt of H.P on 20 03 HCHP 13 of conviction is remote and no fruitful purpose would be served in continuing with the criminal proceedings. 13. Since the matter stands compromised between the parties and the complainant as also the relatives of the deceased are no more interested in pursuing the criminal proceedings against the accused no fruitful purpose would be served in case proceedings initiated at the behest of the complainant are allowed to continue as such prayer made in the petition at hand can be accepted. 14. Consequently in view of the aforesaid discussion as well as law laid down by the Hon’ble Apex CourtFIR No. 171 dated 8.10.2020 registered at Police Station Indora District Kangra Himachal Pradesh under Ss. 279 337 and 304 IPC and S.187 of the Motor Vehicles Act as well as consequent proceedings if any are quashed and set aside. Petitioner is acquitted of the charges framed against him in the said FIR proceedings. 15. The petition stands disposed of in the aforesaid terms alongwith all pending applications. Judge March 19 2021

A party can seek new arbitrator if proceedings contravene principles of law: High court of Delhi

When the proceedings are carried out against the principles of law, one party to the arbitration can approach high court under Section 11 of the Arbitration Act and seek appointement for a new arbitrator. This was decided in the case of Oyo Hotels And Homes Pvt. Ltd. V. Rajan Tewari & Anr [ARB.P. 424/2020] in the High Court of Delhi by Hon’ble Justice V. Kameswar Rao. The facts of the case are that the petitioner has been delaying the payment of pending monthly rentals since March 2020 and it was after repeated reminders that the respondents were forced to invoke the arbitration clause calling upon the petitioner to consent to the appointment of the learned Retd. Judge of this Court, as sole Arbitrator, to which the petitioner did not even respond and after th e expiry of 30 days. Counsel appearing for the respondents has raised a preliminary objection as to the maintainability of the present petition. It is the case of the respondents and contended by Ms. Anand that while adjudicating a petition under Section 11 of the Act, the scope of enquiry is limited and the petitioner, under the garb of Section 11, is in fact seeking termination of the mandate of the learned sole Arbitrator, who has already been appointed for adjudication of all disputes between the parties. It is also stated by the counsel that the present petition is infructuous and therefore liable to be dismissed as the sole Arbitrator has already given consent and has entered upon reference to adjudicate upon all the disputes emanating between the parties from the Lease Deed. The mandate of the sole Arbitrator already appointed cannot be terminated under the provisions of Section 11(6) of the Act. In fact, it is her submission that the petitioner is within its right to challenge the jurisdiction of the Arbitrator by resorting to Sections 12-15 of the Act, which concedingly not done. The court said  “Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar ARB.P. 424/2020 Page 14 the jurisdiction under Section 11(6) cannot be countenanced in law.” The court put reliance on the judgments of coordinate benches of this Court in Naveen Kandhar & Anr. v. Jai Mahal Hotels Pvt. Ltd., (Arb.P. 453/2017) and Manish Chibber v. Anil Sharma & Anr., (Arb.P. 249/2020), wherein it was held that an appointment of an Arbitrator in contravention of the agreed procedure is non-est and ought to be ignored.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: February 09 2021 ARB.P. 424 2020 OYO HOTELS AND HOMES PVT. LTD. Petitioner Through: Mr. Jeevan Ballav Panda Adv. with Ms. Satakshi Sood & Mr. Satish Padhi Advs. RAJAN TEWARI & ANR. ..... Respondents Through: Ms. Bobby Anand Adv. HON BLE MR. JUSTICE V. KAMESWAR RAO JUDGMENT V. KAMESWAR RAO J This present petition has been filed under Section 11(6) of the Arbitration and Conciliation Act 1996with the following prayers: “It is most respectfully prayed that this Hon’ble Court may be pleased to: appoint a Sole Arbitrator to adjudicate the claims of the Petitioner in accordance with the Arbitration and Conciliation Act 1996 as amended declare that Hon’ble Justice Aruna Suresh retired) has no jurisdiction to adjudicate the disputes between the parties ARB.P. 424 2020 Page 1 iii) Award costs of this Petition in favour of the Petitioner and against the Respondent iv) Pass such other and further order(s) as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.” The petitioner herein is a company incorporated under the Companies Act 2013 and having its registered office at Ground Floor 001 Mauryansh Elanza Shyamai Cross Road Nr. Parekh Hospital Satellite Ahmedabad Gujarat 380015in respect of the Pursuant to the execution of the Lease Deed petitioner started fulfilling the obligations contained thereunder on the assumption that the respondents will also do the same and even disbursed an amount of Rs.3 32 000 to the respondents in order to expedite the refurbishment and upgradation of the Premises to make it at par with the petitioner’s benchmark. Thereafter it took over the Premises and started using the same for the purposes of its commercial activities as laid down in the Lease Deed. In the wake of the corona virus ARB.P. 424 2020 Page 2 pandemic the entire hospitality sector faced huge financial setback and on account of the same the petitioner sought to invoke the force majeure clause in the Lease Deed vide email dated March 27 2020. He stated that after detailed discussion with representatives of the petitioner the respondents while agreeing to the invocation of the force majeure clause agreed to amend the commercial understanding between the parties in the interim. Mr. Panda submitted that the respondents were in breach in terms of Clause 11.2.1 of the Lease Deed which obligated the respondents to obtain as well as maintain all requisite building approvals required for running the Premises as a commercial establishment for the purposes as laid down in the Lease Deed. It is submitted by him that even after repeated communications and grant of time as sought by the respondents the respondents failed to furnish the complete set of documents as mandated under Clause 11.2.1 of the Lease Deed. That while attempts were being made to get the breach of Clause 11.2.1 cured the respondents suddenly and to the complete shock and dismay of the petitioner issued a letter date June 03 2020 demanding a sum of money by misrepresenting the clauses of the Lease Deed. Thereafter the respondents vide notice dated June 23 2020 invoked arbitration clause citing the existence of disputes between the parties arising under the Lease Deed and nominated a learned Retd. Judge of this Court as the sole Arbitrator to adjudicate the disputes between the parties in terms of the dispute ARB.P. 424 2020 Page 3 resolution clause contained in the Lease Deed. It is also stated by him that the petitioner however could not respond to the said notice owing to various logistical constraints on account of the corona virus pandemic. Therefore it is his submission that the recommendation of the respondents was not confirmed by the petitioner. 11. Mr. Panda stated that despite there being no confirmation from the petitioner or mutual agreement the respondents instead of approaching this Court under the mandate of the Act illegally confirmed the appointment of the sole Arbitrator. It is also submitted that the sole Arbitrator issued notice on August 12 2020 to the parties for the primary hearing to be held on August 29 2020 when for the first time the petitioner became aware of the appointment of the sole Arbitrator and objected as well as sought cancellation of the primary hearing vide letter dated August 26 2020. Despite the objections being raised the Arbitrator went ahead with the hearing as scheduled on August 29 2020 and the petitioner according to Mr. Panda during the hearing also raised its objection to the proceedings as being in contravention of the settled principles of law and Lease Deed. Thus it is submitted by him that the sole Arbitrator is de facto as well as de jure incapable of entering reference as sole Arbitrator for the adjudication of disputes between the parties. Reliance is placed by Mr. Panda on the judgments of coordinate benches of this Court in Naveen Kandhar & Anr. v. Jai Mahal Hotels Pvt. Ltd. and Manish ARB.P. 424 2020 Page 4 Chibber v. Anil Sharma & Anr. wherein it was held that an appointment of an Arbitrator in contravention of the agreed procedure is non est and ought to be ignored. 15. Ms. Bobby Anand learned counsel appearing for the respondents has raised a preliminary objection as to the maintainability of the present petition. It is the case of the respondents and contended by Ms. Anand that while adjudicating a petition under Section 11 of the Act the scope of enquiry is limited and the petitioner under the garb of Section 11 is in fact seeking termination of the mandate of the learned sole Arbitrator who has already been appointed for adjudication of all disputes between the parties. 16. By drawing the attention of this Court to the petition it is stated by Ms. Anand that even though the petition has been filed under Section 11 of the Act reliefs and the various paragraphs of the petition indicate and calls for the termination of the mandate of the sole Arbitrator which relief does not fall within the ambit and scope of Section 11(6) of the Act. It is also stated by Ms. Anand that the present petition is infructuous and therefore liable to be dismissed as the sole Arbitrator has already given consent and has entered upon reference to adjudicate upon all the disputes emanating between the parties from the Lease Deed. In fact she stated that hearings have taken place on August 29 2020 and August 30 2020 which has been duly attended by the petitioner. More so she also stated that the sole Arbitrator has served upon both the parties an undertaking dated September 02 2020 as per Schedule VI as ARB.P. 424 2020 Page 5 mandated under Section 12of the Act. Thus according to Ms. Anand the mandate of the sole Arbitrator already appointed cannot be terminated under the provisions of Section 11(6) of the Act. In fact it is her submission that the petitioner is within its right to challenge the jurisdiction of the Arbitrator by resorting to Sections 12 15 of the Act which concedingly not done. 19. Without prejudice it is also submitted by her that the petitioner has not shown as to how the sole Arbitrator already appointed has become de jure or de facto unable to perform functions especially under Section 14 and it is not the case of the petitioner that the sole Arbitrator falls under any one of the categories specified in the fifth and or the seventh schedule of the Act. That apart it is submitted by Ms. Anand the issuance of a prior notice under Section 21 of the Act is sine qua non for filing a petition under Section 11 which the petitioner has failed to issue in respect of the disputes raised by the petitioner in the present petition and that the present petition is nothing but a complete afterthought. On the conduct of the petitioner it is stated that the petitioner has been delaying the payment of pending monthly rentals since March 2020 and it was after repeated reminders that the respondents were forced to invoke the arbitration clause calling upon the petitioner to consent to the appointment of the learned Retd. Judge of this Court as sole Arbitrator to which the petitioner did not even respond and after the expiry of 30 days ARB.P. 424 2020 Page 6 the appointment was deemed to be accepted by the petitioner. Even after her appointment on the first date of hearing petitioner sought and was granted a period of 15 days for filing an appropriate application challenging the appointment of the sole Arbitrator. No application was in fact moved before the sole Arbitrator. It is submitted by Ms. Anand that therefore petitioner having failed to take any action within the prescribed time has forfeited its right to challenge the appointment. She also submitted that the petitioner having been acquiesced into the appointment of the sole Arbitrator and not resorting to any challenge within a reasonable time shall surely attract doctrine of estoppel against the petitioner. Rejoinder was also duly filed by the petitioner reiterating its stand in the petition and refuting the stand of the respondents in the reply. Having heard the learned counsel for the parties and perused the record the only issue which arises for consideration is whether the appointment of the learned arbitrator is at variance with the stipulation in the contract and as such non est for this court to grant the relief to the petitioner by appointing a new arbitrator. To answer this issue it is necessary to reproduce the arbitration clause in the contract: “18. DISPUTE RESOLUTION Any dispute or controversy arising out of or in connection with the Deed or its performance including the validity interpretation or application hereof shall to the extent possible be ARB.P. 424 2020 Page 7 settled amicably by negotiation and discussion among the Parties within 30days as of the date requested by either Party. Failing which either Party shall be at liberty to refer the matter to arbitration in accordance with the Indian Arbitration and Conciliation Act 1996. The arbitral panel shall consist of a sole arbitrator appointed mutually by the Parties. Any arbitral award issued by such sole arbitrator shall be final and binding on the Parties. The language of the arbitration shall be English and seat of arbitration shall be Delhi.” Emphasis supplied From the above it is clear that the arbitrator has to be appointed mutually by both the parties. The respondent had invoked the arbitration clause and issued notice dated June 23 2020 and nominated a retired Judge of this Court as the nominator. The notice could not be responded by the petitioner. 26. Mr. Panda is right to submit the notice recommendation of the respondents with regard to the learned arbitrator was not confirmed. Mr. Panda is also right in stating that the respondents should have approached this Court under Section 11 of the Act seeking an appointment of an Arbitrator when the petitioner has not confirmed the appointment. Having said so it must be held in view of the arbitration clause as referred above the appointment made by the respondent is non est and need to be ignored. The plea of Ms. Anand that the present petition is not maintainable as the petitioner under the ARB.P. 424 2020 Page 8 garb of Section 11 is seeking termination of the mandate of the learned Sole Arbitrator is not appealing for the reason when the appointment is non est being not in accordance with the agreed procedure the petitioner is within its right to approach the Court for appointment of an arbitrator under Section 11 of the Act. This position of law is well settled in terms of the Supreme Court judgment in Walter Bau Ag Legal Successor of the Original Contractor Dycheroff & Widmann A.G. v. Municipal Corporation of Greater Mumbai & Anr. 3 SCC 800 wherein in paras 8 9 and 10 the Supreme Court has held as “8. While it is correct that in Antrix and Pricol Limited it was opined by this Court that after appointment of an Arbitrator is made the remedy of the aggrieved party is not under Section 11(6) but such remedy lies elsewhere and under different provisions of the Arbitration Actthe context in which the aforesaid view was expressed cannot be lost sight of. In Antrixappointment of the Arbitrator as per ICC Rules was as per the alternative procedure agreed upon whereas in Pricol Limitedthe party which had filed the application under Section 11(6) of the Arbitration Act had already submitted to the jurisdiction of the Arbitrator. In the present case the situation is 9. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising ARB.P. 424 2020 Page 9 jurisdiction under Section 11(6) of the Arbitration Act acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. In the present case the agreed upon procedure between the parties contemplated appointment of the arbitrator by second party within 30 days of receipt of a notice from the first party. While the decision in Datar Switchgears Ltd. may have introduced some flexibility in the time frame agreed upon by the parties by extending it till a point of time anterior to the filing of the application under Section 11(6) of the Arbitration Act it cannot be lost sight of that in the present case the appointment of Shri Justice A.D. Mane is clearly contrary to the provisions of the Rules governing the appointment of Arbitrators by ICADR which the parties had agreed to abide in the matter of such appointment. The option given the respondent Corporation to go beyond the panel submitted by the ICADR and to appoint any person of its choice was clearly not in the contemplation of the parties. If that be so obviously the appointment of Shri Justice A.D. Mane is non est in law. Such an appointment therefore will not inhibit the exercise of jurisdiction by this Court under Section 11(6) of the Arbitration Act. It cannot therefore be held that the present proceeding is not maintainable in law. The appointment of Shri Justice A.D. Mane made beyond 30 days of the receipt of notice by the petitioner ARB.P. 424 2020 Page 10 though may appear to be in conformity with the law laid down in Datar Switchgears Ltd. is clearly contrary to the agreed procedure which required the appointment made by the respondent Corporation to be from the panel submitted by the ICADR. The said appointment therefore is clearly invalid in law. 10. Consequently we allow the present petition and appoint Shri Justice S.R. Sathe a retired judge of the Bombay High Page 21 21 Court as the Arbitrator on behalf of the respondent Corporation. Both the Arbitrators shall now name the third Arbitrator forthwith whereafter the arbitration proceedings will be held and concluded as expeditiously as possible. The terms of appointment of Shri Justice S.R. Sathe as the Arbitrator on behalf of the respondent Corporation will be settled in consultation with the respondent Corporation.” The aforesaid position is followed by this Coordinate Benches of this Court in the cases of Naveen Kandhari & Anr. supra) and Manish Chibber on the objection taken by the respondent therein that the an arbitrator has already been appointed by them and hence the Section 11 petition is not maintainable the Court in paragraphs 18 and 19 held as under: “18. A plain reading of the arbitration clause as set out above indicates that an arbitrator was required to be appointed by the parties. Thus the unilateral appointment ARB.P. 424 2020 Page 11 of Mr A.P. Dhamija as an arbitrator is contrary to the arbitration clause and without authority. It is also relevant to note that the respondent had invoked the arbitration clause by its letter dated 06.06.2016 and unilaterally declared that it had appointed Mr A.P. Dhamija Advocate as an arbitrator. 19. The said appointment being contrary to the terms of the arbitration agreement cannot be considered as an appointment at all. It is for all intents and purposes non est. Mr A.P. Dhamija has no authority to act as an arbitrator his actions are plainly of no consequence.” Similarly in the case of Manish Chibberon the significance of adherence to the procedure agreed upon by the parties to an arbitration agreement with regard mutual common consent in appointing an arbitrator the Court has held as under: “13. Section 11(6) of the 1996 Act specifically states that if a party fails to act as required by the procedure for appointment of arbitrator as agreed upon between the parties the appointment shall in the case of domestic arbitration be made by the High Court on an application of the party by this Court where the arbitration is other than an international commercial arbitration. The procedure agreed upon between the petitioner and the respondents to appoint the arbitrator in the present case is encapsulated in Clause 22 of the partnership deed dated 1st April 2016 which already stands reproduced hereinabove. ARB.P. 424 2020 Page 12 A reading thereof makes it clear that “appointment by common consent of all partners” is the sine qua non for the appointment of the arbitrator to be valid. In the present case there is nothing whatsoever to indicate that prior to or even at the time of his appointment as sole arbitrator and of his taking cognizance of the arbitral proceedings there was any consent by the petitioner to the appointment of Mr. Ankit Batra. Clearly therefore the appointment of Mr. Ankit Batra had not taken place in accordance with Clause 22 of the partnership deed dated 1st April 2016 supra. Section 11(6) of the 1996 Act therefore squarely applies and the task of appointment of the arbitrator devolves on this Court as there is no consensus ad idem regarding the arbitrator who would arbitrate on the disputes between the parties.” A plea has been taken by Ms. Anand that the petitioner having participated in the proceedings held on August 29 2020 is estopped from challenging the mandate of the arbitrator. The same is not appealing when it is the case of the petitioner that during the hearing the petitioner had raised the objection that the proceeding being in contravention of principles of law and Lease Deed. That apart the Supreme Court in Walter Bauhas in para 9 stated as under: Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act acceptance of such appointment as a fait accompli to debar ARB.P. 424 2020 Page 13 the jurisdiction under Section 11(6) cannot be countenanced in law. ..” emphasis supplied Therefore the petitioner has rightly filed the present petition under Section 11 of the Act which is under consideration in terms of this order. The appointment of the learned Sole Arbitrator by the respondents is non est. The present petition is liable to be allowed. I appoint Justice S.P. Garg a retired Judge of this Court as the sole Arbitrator to adjudicate the disputes and differences between the parties arising out of the Lease Deed. The fee of the learned sole Arbitrator shall be governed by Fourth Schedule to the Arbitration Conciliation Act 1996. The petition is disposed of. Let a copy of this order be sent to Justice S.P. Garg V. KAMESWAR RAO J FEBRUARY 09 2021 aky ARB.P. 424 2020 Page 14

Section 83 of the CGST Act should not be utilized as a “draconian” measure, but only to safeguard the revenue’s interests: High Court of Delhi

Subsection 1 of Section 83 of the Act in no uncertain terms states that provisional attachment can be ordered only qua property, including bank account, belonging to the taxable person. Furthermore, the definition of the “taxable person”, as set out in Section 2(107) of the Act, provides that only that person can be a taxable person, who is registered or liable to be registered as per the Act. This was held in ROSHNI SANA JAISWAL v. COMMISSIONER OF CENTRAL TAXES, GST DELHI (EAST) [W.P.(C) 2348/2021] in the High Court of Delhi by a division bench consisting of JUSTICE RAJIV SHAKDHER and JUSTICE TALWANT SINGH. Facts are that the Petitioner was acting as a director on the Board of Directors of the company Milkfood Ltd., between 2006 and 2008. The respondent had commenced an investigation, under Section 67 of the Central Goods and Services Tax Act, 2017 against Milkfood Ltd and an order was passed whereby several bank accounts of the petitioner have been provisionally attached. Aggrieved by the action of the respondent the petitioner has filed the petition. The counsel for the respondent submitted that the petitioner had availed of the alternate remedy available to it under Rule 159(5) of the Central Goods and Services Tax Rules, 2017 by filing objections under the said Rule, albeit during the pendency of the writ petition. The counsel on behalf of the petitioner submitted that the proceeding initiated against the petitioner under Section 83 of the Act is without jurisdiction, as the petitioner does not fall within the ambit of the definition of a “taxable person”, the taxable person being Milkfood Ltd and not the petitioner. The other ingredients, provided in Section 83 of the Act, are also missing. The court made in order to determine its jurisdiction to entertain the instant petition under Article 226 of the Constitution made reference to the judgment delivered by the Supreme Court in Calcutta Discount Co. Ltd. vs. ITO, wherein it had been observed that “28. In the present case, the Company contends that the conditions precedent for the assumption of jurisdiction under Section 34 were not satisfied and come to the court at the earliest opportunity. There is nothing in its conduct that would justify the refusal of proper relief under Article 226. When the Constitution confers on the High Courts the power to give relief it becomes the duty of the courts to give such relief in fit cases and the courts would be failing to perform their duty if relief is refused without adequate reasons. In the present case we can find no reason for which relief should be refused.”

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 2348 2021 & CM No. 6860 2021 Decision delivered on: 12.05.2021 ROSHNI SANA JAISWAL ..... Petitioner COMMISSIONER OF CENTRAL TAXES GST DELHIThrough: Mr. Harsh Sethi Advocate ..... Respondent Through: Mr. Harpreet Singh Senior Standing HON BLE MR. JUSTICE RAJIV SHAKDHER HON BLE MR. JUSTICE TALWANT SINGH Court hearing convened via video conferencing on account of COVID 19] RAJIV SHAKDHER J. 2348 2021 The challenge to the aforementioned orders arises in the background of the following undisputed facts and circumstances. 2.1. The petitioner was acting as a director on the Board of Directors of a company going by the name of Milkfood Ltd. between 2006 and 2008. The petitioner is also a shareholder in the said company and owns approximately 14.33 % equity shares. The petitioner drew a salary of Rs.1.50 crores per annum qua the financial year2019 2020. 2.2. The respondent based on the information received that Milkfood Ltd. was availing Input Tax Credit against fake ineligible invoices commenced investigation under Section 67 of the Central Goods and Services Tax Act 2017against Milkfood Ltd. 2.3. The respondent claims that the statement of the persons who controlled entities which enabled Milkfood Ltd. to claim ITC were recorded in the course of the investigation. It is in this connection the respondent claims that “the voluntary statement” of the petitioner was recorded on 03.12.2020. 2.4. The petitioner as per the respondent in her statement made to the concerned officer inter alia admitted to the fact that she had acted as a director of the company i.e. Milkfood Ltd. between 2006 and 2008 and since then she has been working in the company in the capacity of a mentor advisor. 2.5. Furthermore the petitioner is also said to have stated that it is in her capacity as the mentor advisor to Milkfood Ltd. that she received Rs.1.50 crores in the concerned FY i.e. 2019 2020 from Milkfood Ltd. According to the petitioner this money was given as she had been providing “strategic guidance” to Milkfood Ltd. 2.6. The petitioner as noticed above had accepted the fact that she held W.P.(C) 2348 2021 an equity stake of 14.33% in Milkfood Ltd. 2.7. Since the petitioner was aggrieved qua the impugned action of the respondent she approached this Court by way of the instant writ petition. Upon notice being issued the respondent has filed its counter affidavit. Submissions on behalf of the respondent: 3. Mr. Harpreet Singh who appears on behalf of the respondent has made the following submissions: . The petitioner has availed of the alternate remedy available to it under Rule 159(5) of the Central Goods and Services Tax Rules 2017 by filing objections under the said Rule albeit during the pendency of the writ petition. Mr. Singh says that since objections were filed during the pendency of the writ petition and after the counteraffidavit was filed on behalf respondent there is no reference to this aspect of the matter in the counter affidavit. Mr. Singh states that the objections were disposed of vide order dated 19.04.2021. Investigations commenced under Section 67 of the Act against the Milkfood Ltd. were still on. iii) Milkfood Limited has availed ITC credit. the extent of approximately Rs.85 crores based on fake invoices. The respondent had arrested persons who controlled the entities which furnished fake invoices to Milkfood Ltd. Coercive proceedings were also intended to be triggered against the directors employees of Milkfood Ltd. iv) The persons connected to the suppliers and the directors employees of Milkfood Ltd. had approached the concerned courts for grant of bail. In those proceedings Rs.10 crores was deposited with the respondent as the condition of bail. In addition thereto Rs.6 crores was voluntarily deposited by Milkfood Ltd. with the respondent. In all out of an approximate amount W.P.(C) 2348 2021 of Rs.85 crores Rs.16 crores stands deposited with the respondent. v) The judgment of the Supreme Court relied upon by petitioner rendered in M s Radha Krishan Industries vs. State of Himachal Pradesh Ors. 2021 SCC OnLine SC 334 has no applicability to the instant case as in that case an adjudication order had already been passed. Submissions on behalf of the petitioner: On the other hand Mr. Harsh Sethi who appears on behalf of the petitioner submitted that. the proceeding initiated against the petitioner. under Section 83 of the Act. is without jurisdiction as the petitioner does not fall within the ambit of the definition of a „taxable person‟ the taxable person being Milkfood Ltd and not the petitioner. Therefore the impugned orders cannot be sustained as this crucial jurisdictional ingredient is 4.1. Mr. Sethi says that the other ingredients provided in Section 83 of the Act are also missing. The respondent before triggering the provisions of Section 83 of the Act had to satisfy itself that there was a “pending” proceeding under the provisions of Section 62 or Section 63 or Section 64 or Section 67 or Section 73 or Section 74 of the Act. Furthermore Mr. Sethi says that the respondent was also required to form an opinion before taking recourse to Section 83 of the Act that attachment of the petitioner‟s bank account was necessary for the purpose of protecting the interest of the 4.2. Mr. Sethi says that the principles enunciated in Radha Krishan Industries Case squarely apply to the instant case. In this context Mr. Sethi relies in particular on paragraphs 41 and 72(iv) & of the judgement rendered in Radha Krishan Industries Case. W.P.(C) 2348 2021 record. Analysis and Reasons: 5. We have heard the learned counsel for the parties and perused the 5.1. According to us the submission advanced by Mr. Singh that the instant petition. under Article 226 of the Constitution should not be entertained as recourse to an alternate remedy was taken by the petitioner does not impress us since the exercise of power under Section 83 of the Act to begin with was without jurisdiction. The fact that an alternate remedy is available to a litigant is a self imposed limitation on the Court something which did not deter the Court when notice was issued in the matter in the first instance perhaps given the assertions made in the petition. The Court can and should exercise its powers under Article 226 of the Constitution amongst others in cases where the impugned action or order concerned is without jurisdiction1. In this case one of the jurisdictional ingredients‟ which is missing is that the petitioner is not a taxable person. This aspect is borne out upon perusal of the impugned orders which are identical. In the impugned orders dated 07.12.2020 the respondent adverts to the fact that Milkfood Ltd. is the taxable person. For the sake of convenience the relevant portion of one of the impugned orders appended on page 32is extracted hereunder: 1 See: Calcutta Discount Co. Ltd. vs. ITO AIR 1961 SC 372:41 ITR 191. “28. In the present case the Company contends that the conditions precedent for the assumption of jurisdiction under Section 34 were not satisfied and come to the court at the earliest opportunity. There is nothing in its conduct which would justify the refusal of proper relief under Article 226. When the Constitution confers on the High Courts the power to give relief it becomes the duty of the courts to give such relief in fit cases and the courts would be failing to perform their duty if relief is refused without adequate reasons. In the present case we can find no reason for which relief should be refused.” W.P.(C) 2348 2021 “It is to inform that M s Milkfood Limited having principal place of business at Bhandari House 5th Floor 91 Nehru Place Delhi 110019 bearing registration number as GSTIN 07AAACM5913B1ZY and PAN AAACM5913B is a registered taxable person under the CGST Act 5.2. As indicated above we are told that the order rejecting the petitioner‟s objections under Rule 159(5) was passed on 19.04.2021. This order has not been placed on record. We are also not told of the date on which the objections were filed. On being queried Mr. Singh concedes that the order passed under the aforestated Rule on 19.04.2021 is not appealable. 5.3. Subsection 1 of Section 83 of the Act2 in no uncertain terms states that provisional attachment can be ordered only qua property including bank account belonging to the taxable person. Furthermore the definition of the „taxable person‟ as set out in Section 2(107) of the Act3 provides that only that person can be a taxable person who is registered or liable to be registered as per the Act. It is not even the case of the respondent that. the petitioner is either registered or was liable to be registered. in terms of the provisions of Section 2(107) of the Act. Therefore according to us the proceedings must fail on this score alone. 5.4. As far as the other submissions are concerned as to whether or not it could be said that the proceedings under Section 67 of the Act are pending the same in our view need not detain us for the reasons stated above. 5.5. We must however indicate that this aspect apart the respondent has 2 83. Provisional attachment to protect revenue in certain cases Where during the pendency of any proceedings under section 62 or section 63 or section 64 or section 67 or section 73 or section 74 the Commissioner is of the opinion that for the purpose of protecting the interest of the Government revenue it is necessary so to do he may by order in writing attach provisionally any property including bank account belonging to the taxable person in such manner as may be prescribed. 3 2. In this Act unless the context otherwise requires 107) “taxable person” means a person who is registered or liable to be registered under section 22 or section 24 W.P.(C) 2348 2021 not been able to place before us any material which would show that. the concerned officer before triggering the provisions of Section 83 of the Act had applied his mind to the other important aspect which is that the provision had to be taken recourse to to protect the interest of the revenue. In the counter affidavit the only aspect that the respondent has pointed out qua the petitioner is the “voluntary” statement made by her on 03.12.2020. We have alluded to what the petitioner has said in her statement which is in turn gleaned from the counter affidavit filed by the respondent. In our opinion there is nothing in the statement of the petitioner which would show that she had anything to do with the purported illegal transaction said to have been carried out between Milkfood Ltd. and its suppliers. 5.7. The petitioner claimed in her voluntary statement that she was paid Rs.1.50 crores in the FY 2019 2020 for rendering services in her capacity as a mentor advisor to Milkfood Ltd. Therefore even if we assume for the moment that since investigations are on against the taxable person and therefore proceedings are pending under Section 67 of the Act there is nothing placed on record to show that there was material available with the respondent linking the petitioner to purported fake invoices. In other words in the absence of such material the impugned action concerning provisional attachment of the petitioner‟s bank accounts which is otherwise a “draconian” step was unsustainable. In the zeal to protect the interest of the revenue the respondent cannot attach any and every property including bank accounts of persons other than the taxable person. Conclusion: Accordingly for the forgoing reasons we are inclined to allow the writ petition. It is ordered accordingly. The impugned provisional W.P.(C) 2348 2021 attachment orders dated 07.12.2020. are quashed. The respondent will communicate the order passed today to the concerned Banks. 6.1. Consequently the order dated 19.04.2021 disposing of the objections filed by the petitioner would also collapse in its entirety as the proceedings carried out against the petitioner were without jurisdiction. All concerned shall act on a digitally signed copy of the judgement passed today. 8. Pending application shall stand closed. MAY 12 2021 RAJIV SHAKDHER J TALWANT SINGH J Click here to check corrigendum if any W.P.(C) 2348 2021

Payment of rent by member of Joint Hindu Family, raises no presumption that it is a Joint Family Business: Supreme Court

While addressing a dispute regarding the induction of tenant by the Wakf Board, the Supreme Court held that payment of rent by grandfather or great grandfather cannot raise the presumption that the business being carried on is a joint family business. This judgment was passed in the case of Kiran Devi vs. The Bihar State Sunni Wakf Board & Ors. [C.A.No.6149/2015], by a Bench consisting of Hon’ble Mr. Justice Ashok Bhushan, Hon’ble Mr. Justice S. Abdul Nazeer and Hon’ble Mr. Justice Hemant Gupta. The present appeal was filed against an order passed by the High court of Patna allowing the writ petition filed by respondent no.4 and holding the tenant in the premises was representing a joint Hindu family and that the karta was not competent to surrender tenancy rights in favour of Respondent no. 1 – the Bihar State Sunni Wakf Board and therefore the induction of the appellant as a tenant by the Wakf board was illegal. Based on the same, direction was issued to dispossess the appellant from the suit premises and handover the vacant possession to the plaintiff.  The plaintiff’s grandfather along with others broke the lock and removed the belongings from suit premises. When the father of the plaintiff approached the police and they didn’t register the complaint, it was filed in the court of CJM Patna, which is stated to be pending. Later, the plaint was amended and the present appellant was impleaded as defendant No. 5 alleging that the lease in her favour by the Wakf Board is forged, fabricated, anti-dated and collusive paper. The Tribunal held that Defendant no.1 was running a hotel business and surrendered the shop to Mutawalli. The High Court on the other handheld that Ram sewak Ram carried out the hotel Business and on his demise r, defendant No. 1 became the Karta and succeeded to joint family business including the suit premises. It was observed that he could not have surrendered the tenancy in favour of Mutawalli on 31.5.1996 without the consent of other members of the joint family. Consequently, the judgment of the Tribunal was set aside, and also a direction was issued to dispossess the appellant from the suit premises and to hand over the vacant possession of the suit premises to the plaintiff. The Supreme Court after hearing both the parties, relying on its previous judgments and other HC’s Judgments held that the Hindu Law does not presume that a business which is on the name of a member of a joint family or even the manager of that family, is a joint business unless it is proved that the same grew by the joint family property, funds or earnings of that business were with the joint family estate. On the reasoning of payment of rent, the Supreme Court held that mere payment of rent by great grandfather or the grandfather of the plaintiff can raise no presumption that It was a joint family business. The Court further held that the letter of the surrender of tenancy cannot be held unreliable merely because the signatures in the translated copy do not tally with the Urdu. Furthermore, it cannot be held unreliable on the basis of the statement of the plaintiff who was not even part of the transaction. The supreme court held the letter of the surrender of tenancy document was validly proved and accepted by the Wakf Board. Therefore, the same was for the benefit of the Joint Hindu family.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6149 OF 2015 THE BIHAR STATE SUNNI WAKF BOARD JUDGMENT HEMANT GUPTA J The challenge in the present appeal is to an order passed by the High Court of Judicature at Patna dated 6.2.2013 whereby a writ petition filed by respondent No. 41 herein was allowed holding that the tenant in the premises in question was representing a Hereinafter referred to as the ‘plaintiff’ joint Hindu family and that the Karta was not competent to surrender the tenancy rights in favour of respondent No. 1 The Bihar State Sunni Wakf Board2 and consequently the induction of the appellant as a tenant by the Wakf Board was illegal Accordingly a direction was issued to dispossess the appellant from the suit premises and to handover the vacant possession to the plaintiff. The plaintiff had filed a suit for declaration before the competent civil court stating that he is a tenant in the suit premises and is entitled to continue in the suit premises as a tenant on payment of monthly rent. The basis of such declaration was that Ram Sharan Ram the great grandfather of the plaintiff predeceased his brother Ram Sewak Ram who died issueless and his widow predeceased him. Ram Sewak Ram was carrying out joint family business of hotel in the premises of the Wakf Board. Due to advanced age he handed over the possession of the hotel business to his nephew Devendra Prasad Sinha the grandfather of the plaintiff. The grandfather of the plaintiff succeeded to the tenancy as member of the joint Hindu family. After his death defendant Nos. 1 to 3 succeeded to tenancy as members of the Joint Hindu Family. The shop was being run by Surendra Kumar son of Devendra Prasad Sinha when the grandfather of the plaintiff fell ill. Surendra Kumar the father of the plaintiff started Hereinafter referred to as the ‘Wakf Board’ paying rent to the Wakf Board. However Surendra Kumar later joined service and the hotel was being run through the servants The plaintiff had started running the hotel since 1988. On account of disputes over the management the hotel was closed and it remain closed for several years. It is the plaintiff who wanted to resume the hotel business in the premises in question and thus communicated with the Wakf Board to continue the hereditary tenancy of the shop as Karta in his name. The cause of action was stated to arise on 21.3.1996 when the plaintiff’s grandfather along with others broke the lock of the suit premises and removed the belongings available in the shop. The father of the plaintiff went to the Police for lodging of the report but they refused to register the case. A complaint was subsequently filed in the court of Chief Judicial Magistrate Patna which is stated to be pending. Later the plaint was amended and the present appellant was impleaded as defendant No. 5 alleging that the lease in her favour by the Wakf Board is forged fabricated anti dated and collusive paper The Wakf Board in its written statement asserted that Md Salimuddin was the duly appointed Mutawalli of the Janki Bibi Wakf Estate No. 465B and the appellant is a tenant duly inducted by the Management Committee. It was also pleaded that the defendants had no knowledge that Ram Sewak Ram was carrying any business of hotel but that Devendra Prasad Sinha was a tenant in the suit premises who had surrendered his tenancy rights in favour of Md. Salimuddin through a written letter dated 31.5.1996 and thereafter handed over vacant possession of the premises Subsequently the appellant had been inducted as a tenant on a monthly rent of Rs.600 on 5.6.1996. This was also indicated in the written statement filed by the appellant herein. In a separate written statement filed on behalf of defendant Nos. 1 and 2 it was asserted that defendant No. 1 was making payment of rent to the landlord i.e. Mutawalli of the Wakf and that he had surrendered the shop premises on 31.5.1996 to the landlord Mutawalli of the Wakf as he was unable to continue the business due to old age. It was denied that the plaintiff and his father went to lodge FIR on account of opening of the locks by defendant No. 1. It was asserted that the plaintiff had no occasion of claiming the shop on 21.3.1996 as the said shop was never in his possession nor under his lock and key. The appellant and the Wakf Board filed applications before the Civil Court for transfer of the suit for adjudication by the Wakf Tribunal in terms of provisions of Section 85 and 85A of the Wakf Act 19953. The suit was thus transferred by the learned Munsif on 4.2.2009. Such order of transfer of the suit to the Tribunal was challenged by the plaintiff by way of a revision petition before the For short the ‘Act’ Patna High Court. Such revision was found to be frivolous and dismissed on 19.5.1999 with cost of Rs.3 000 The parties went to trial on the following issues before the Wakf “(i) Whether Devendra Prasad was running a joint family ii) Whether Devendra Prasad as Karta of joint family business has got authority to surrender the joint family iii) Whether Devendra Prasad surrendered joint family business or premises of joint family business iv) Whether the plaintiff is entitled to any other relief ” Devendra Prasad Sinha appeared as DW 5 whereas Dilip Kumarappeared as DW 14 before the Wakf Tribunal. The said witnesses supported their stand that the tenancy was surrendered on 31.5.1996. The learned Tribunal held that defendant No. 1 was running a hotel business and had later surrendered the shop to Mutawalli. The writing on paper to surrender the possession was admitted by the witness. It was also observed that there was no oral or documentary evidence that Devendra Prasad Sinha had surrendered the premises where he was running joint family business. The Tribunal noted that the plaintiff did not even suggest that Devendra Prasad was managing a joint family business and thus in the absence of such suggestion it was difficult or rather impossible to believe that Devendra Prasad was managing a joint family business. Consequently the suit was dismissed. The High Court in a writ petition against the said order held that the suit premises were let out to Ram Sewak Ram who carried out joint family hotel business in the said premises until his death in January 1960. Thereafter defendant No. 1 became the Karta and succeeded to joint family business including the suit premises. It was observed that he could not have surrendered the tenancy in favour of Mutawalli on 31.5.1996 without the consent of other members of the joint family. Consequently the judgment of the Tribunal was set aside and also a direction was issued to dispossess the appellant from the suit premises and to handover the vacant possession of the suit premises to the plaintiff Learned counsel for the appellant has raised the following That the Tribunal had no jurisdiction to entertain the suit filed by the plaintiff in view of the judgment of this Court in Ramesh Gobindramthrough LRs. v. Sugra Humayun Mirza Wakf4. After the aforesaid Judgment the Wakf Act was amended by Central Act No. 213. This Court recently in Punjab Wakf Board v. Sham Singh 8 SCC 726 Harike5 has considered the amendment in the Act wherein the proceedings instituted prior to the amendment were to continue as per the unamended provisions of the Act Therefore a suit for declaration of the plaintiff as a tenant was not maintainable before the Wakf Tribunal as there was no estoppel against the statute and that the consent would not confer jurisdiction on the Wakf Tribunal which it did not have in view of the judgments referred The order of the Wakf Tribunal could not be challenged by way of writ petition before the High Court under Article 226 of the Constitution of India as only a revision in terms of proviso to sub sectionof Section 83 of the Act could be preferred. Learned counsel for the appellant relies on judgment reported as Sadhana Lodh v Insurance Co. Ltd. & Anr.6 and of Patna High Court in Md. Wasiur Rahman & Anr v. The State of Bihar The High Court could not have reappreciated facts in a petition under Article 227 of the Constitution. The High Court has illegally set aside findings of fact recorded by the Wakf Tribunal. The reliance was placed on Chandavarkar Sita Ratna Rao v. Ashalata S. Guram8. It was also argued that 4 SCC 698 3 SCC 524 CWJC No. 146217 dt. 25.04.2018 4 SCC 447 in petition under Article 226 or 227 of the Constitution no interference is permitted in tenancy matter. Reference was made to Ganpat Ladha v. Sashikant Vishnu Shinde9 to support the said contention The surrender of possession of the tenanted premises by defendant No. 1 was not of a business of joint Hindu family but of the tenancy which was not been carried out for large number of years even as admitted by the plaintiff Even if it was assumed that defendant No. 1 was a Karta of the joint Hindu family he had the right to surrender the tenancy without the consent of the other coparceners as such surrender was for the benefit of the family inter alia for the reason that no business was carried out for the last many years. 10. On the other hand Mr. Sanyal learned counsel for the plaintiff ar gued that the nomenclature as to whether the jurisdiction of the High Court under Article 226 of the Constitution of India is invoked or the jurisdiction in terms of the proviso to sub sectionof Sec tion 83 of the Act is invoked is immaterial as the jurisdiction in ei ther case is that of the High Court. The nomenclature in exercise of the jurisdiction does not render the order passed by the High Court to be illegal or unwarranted or beyond jurisdiction. Refer 2 SCC 573 ence was made to Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors.10 It was further argued that Ram Sewak Ram was inducted as a ten ant and therefore the plaintiff has a right by birth in the tenancy which could not be surrendered by the then Karta defendant No. 1 without the consent of the other coparceners. Since the posses sion was delivered to the appellant as a consequence of illegal sur render of tenancy rights therefore the order of the High Court is just and proper. Mr. Sanyal referred to Full Bench judgment of the Allahabad High Court reported as Ram Awalamb & Ors. v. Jata Shankar Ors.11 to contend that the personal law of Hindus regarding the devolution of joint Hindu family property is applicable to tenanted property also. Reference was also made to a judgment of this Court reported as Commissioner of Income Tax Madhya Pradesh v. Sir Hukamchand Mannalal & Co.12 that members of Hindu Undivided Family can enter into contract with a stranger. 13. We have heard learned counsel for the parties and find that it is not open to the appellant at this stage to dispute the question that the suit filed before the learned Munsif could not have been transferred to the Wakf Tribunal. The plaintiff had invoked the jurisdiction of the Civil Court in the year 1996. It is the Wakf Board 10 5 SCC 749 11 AIR 1969 All. 526 12 2 SCC 352 and the appellant who then filed an application for transfer of the suit to the Wakf Tribunal. Though in terms of Ramesh Gobindram the Wakf Tribunal could not grant declaration as claimed by the plaintiff but such objection cannot be permitted to be raised either by the Wakf Board or by the appellant as the order was passed by the Civil Court at their instance and was also upheld by the High Court. Such order has thus attained finality inter parties. The parties cannot be permitted to approbate and reprobate in the same breath. The order that the Wakf Tribunal has the jurisdiction cannot be permitted to be disputed as the parties had accepted the order of the civil court and went to trial before the Tribunal. It is not a situation where plaintiff has invoked the jurisdiction of the Wakf Tribunal The argument raised by the learned counsel for the appellant that there was no estoppel against the statute as consent could not confer jurisdiction upon the Authority which did not originally have jurisdiction. Hence it was submitted that the decision of the Tribunal was without jurisdiction. It is to be noted that the plaintiff had filed proceedings before the Civil Court itself but the same was objected to by the appellant as well as by the Waqf Board Thus it is not conferment of jurisdiction by the plaintiff voluntarily but by virtue of a judicial order which has now attained finality between parties. The suit was accordingly decided by the Waqf Tribunal. We do not find that it is open to the appellant to raise the objection that the Waqf Tribunal had no jurisdiction to entertain the suit in the facts of the present case. Therefore we do not find any merit in the first argument raised by the learned counsel for To appreciate the second argument the relevant provisions of Section 83 and sub section of Section 83 of the Act are “83. Constitution of Tribunals etc. The State Government shall by notification in the Official Gazette constitute as many Tribunals as it may think fit for the determination of any dispute question or other matter relating to a waqf or waqf property eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property under this Act and define the local limits and jurisdiction of such Tribunals 9) No appeal shall lie against any decision or order whether interim or otherwise given or made by the Provided that a High Court may on its own motion or on the application of the Board or any person aggrieved call for and examine the records relating to any dispute question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness legality or propriety of such determination and may confirm reverse or modify such determination or pass such other order as it may think fit.” The judgments referred to by the appellant in Sadhana Lodh and of Patna High Court in Md. Wasiur Rahman are not applicable to the facts of the present appeal. Sadhana Lodh is a judgment wherein an award of the Motor Accident Claim Tribunal was challenged by way of a Writ Petition. This Court held that the Writ Petition was not maintainable when an alternative remedy is provided under a statute. Therefore the said judgment deals with availability of the writ jurisdiction in view of the remedy of appeal provided. In the present case the statute provides for a remedy under proviso of sub sectionof Section 83 of the Act against an order passed by the Wakf Tribunal. Such remedy is before the High Court alone. The judgment in Md. Wasiur Rahman arises out of the fact where the order of the Waqf Tribunal was challenged by way of a Writ Petition. An objection was raised before the writ court that there was an alternative statutory remedy available therefore the Writ Petition was not maintainable. The learned Single Judge held that a petition under Article 226 227 of the Constitution of India was not maintainable but liberty was given to the petitioners to invoke the jurisdiction in terms of proviso to sub section of Section 83 of the Act. The said judgment does not show that any argument was raised that a petition under Article 226 227 of the Constitution of India could be treated as a petition in terms of proviso to sub sectionof Section 83 of the Act. Therefore such judgment is also not relevant for the question arising for consideration in the present appeal. A perusal of the proviso to sub sectionof Section 83 of the Act shows that it confers power on the High Court to call for and ex amine the records relating to any dispute question or other mat ter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness legality or propriety of such determination. In fact the statutory provision is acceptance of the principle that the jurisdiction of the High Court under Article 226 or 227 of the Constitution of India cannot be curtailed in terms of L. Chandra Kumar v. Union of India & Ors.13. The rel evant extract reads thus: “90. We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review the jurisdiction of the High Courts under Articles 226 227 cannot wholly be excluded. …. On the other hand to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226 227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Articles 226 227 of the Constitution it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter 91. …We have already emphasised the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the decisions of the Tribunals under Article 227 of the Constitution. In R.K. Jain case4 SCC 119 : 1993 SCC1128 :25 ATC 464] after 13 3 SCC 261 taking note of these facts it was suggested that the possibility of an appeal from the Tribunal on questions of law to a Division Bench of a High Court within whose territorial jurisdiction the Tribunal falls be pursued. It appears that no follow up action has been taken pursuant to the suggestion. Such a measure would have improved matters considerably. Having regard to both the aforestated contentions we hold that all decisions of Tribunals whether created pursuant to Article 323 A or Article 323 B of the Constitution will be subject to the High Court s writ jurisdiction under Articles 226 227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls.” A three Judge Bench in a judgment reported as Radhey Shyam Anr. v. Chhabi Nath & Ors.14 held that the observations in para 25 of the judgment in Surya Dev Rai v. Ram Chander Rai Ors.15 to be not good law. In Surya Dev Rai it was held that the order of Civil Court could be challenged in a petition under Article 226 and that the distinction between Articles 226 and 227 of the Constitution of India stood almost obliterated. This Court in Radhey Shyam held: “27. … we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226 We are also in agreement with the view 5 SCC 616] of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226 29. Accordingly we answer the question referred as 14 5 SCC 423 15 6 SCC 675 29.1. Judicial orders of the civil court are not amenable to writ jurisdiction under Article 226 of the Constitution 29.2. Jurisdiction under Article 227 is distinct from jurisdiction under Article 226 29.3. Contrary view in Surya Dev Rai6 SCC 675] is overruled.” Therefore when a petition is filed against an order of the Wakf Tri bunal before the High Court the High Court exercises the jurisdic tion under Article 227 of the Constitution of India. Therefore it is wholly immaterial that the petition was titled as a writ petition. It may be noticed that in certain High Courts petition under Article 227 is titled as writ petition in certain other High Courts as revi sion petition and in certain others as a miscellaneous petition However keeping in view the nature of the order passed more particularly in the light of proviso to sub sectionof Section 83 of the Act the High Court exercised jurisdiction only under the Act The jurisdiction of the High Court is restricted to only examine the correctness legality or propriety of the findings recorded by the Wakf Tribunal. The High Court in exercise of the jurisdiction con ferred under proviso to sub section of Section 83 of the Act does not act as the appellate court. 21. We find merit in the argument raised by Mr. Sanyal that the nomenclature of the title of the petition filed before the High Court is immaterial. In Municipal Corporation of the City of Ahmedabad v. Ben Hiraben Manilal16 this Court held that wrong reference to the power under which an action was taken by the Government would not per se vitiate the action if the same could be justified under some other power whereby the Government could lawfully do that act. The Court held as under “5. ….It is well settled that the exercise of a power if there is indeed a power will be referable to a jurisdiction when the validity of the exercise of that power is in issue which confers validity upon it and not to a jurisdiction under which it would be nugatory though the section was not referred and a different or a wrong section of different provisions was mentioned. See in this connection the observations in Pitamber Vajirshet v. Dhondu Navlapa12 Bom 486 489] . See in this connection also the observations of this Court in the case of L. Hazari Mal Kuthiala v. ITO Special Circle Ambala Cantt.1 SCR 892 : 41 ITR 12 16 : 1 SCJ 617] This point has again been reiterated by this Court in the case of Hukumchand Mills Ltd. v. State of M.P.6 SCR 857 :52 ITR 583 :1 SCJ 561] where it was observed that it was well settled that a wrong reference to the power under which action was taken by the Government would not per se vitiate that action if it could be justified under some other power under which Government could lawfully do that act. See also the observations of the Supreme Court in the case of Nani Gopal Biswas v. Municipality of Howrah2 SCC 422 invoke its jurisdiction under Article 226 the Court can certainly treat the petition as one under Article 227 or Section 482 of the Code. This Court held as under “26. Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory If in a case like the present one the court finds that the appellants could not invoke its jurisdiction under Article 226 the court can certainly treat the petition as one under Article 227 or Section 482 of the Code. It may not however be lost sight of that provisions exist in the Code of revision and appeal but some time for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution.” Therefore the petition styled as one under Article 226 would not bar the High Court to exercise jurisdiction under the Act and or un der Article 227 of the Constitution. The jurisdiction of the High Court to examine the correctness legality and propriety of deter mination of any dispute by the Tribunal is reserved with the High Court. The nomenclature of the proceedings as a petition under Article 226 or a petition under Article 227 is wholly inconsequen tial and immaterial. The judgment referred to by Mr. Sanyal in Sir Hukamchand Mannalal & Co. that a member of an HUF is competent to enter into a contract with stranger does not support the argument raised. It has been held that if a member of the HUF enters into contract with a stranger he does so in his individual capacity. It was held as under: “5. The Indian Contract Act imposes no disability upon members of a Hindu undivided family in the matter of entering into a contract inter se or with a stranger. A member of a Hindu undivided family has the same liberty of contract as any other individual: it is restricted only in the manner and to the extent provided by the Indian Contract Act. Partnership is under Section 4 of the Partnership Act the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all: if such a relation exists it will not be invalid merely because two or more of the persons who have so agreed are members of a Hindu undivided family. .” This Court has quoted with the approval of the judgment reported as P.K.P.S. Pichappa Chettiar & Ors. v. Chockalingam Pillai Ors.17 wherein it has been held that when a manager of a joint family enters into a partnership that would not ipso facto makes the other member of his family as partners. The Court held as un “In their Lordships opinion the law in respect of the matter now under consideration is correctly stated in Mayne s Hindu Lawat page 398 as follows “Where a managing member of a joint family enters into a partnership with a stranger the other members of the family do not ‘ipso facto become partners in the business so as to clothe them with all the rights and obligations of a partner as defined by the Indian Contract Act. In such a case the family as a unit does not become a partner but only such of its members as in fact enter into a contractual relation with the 17 AIR 1934 Privy Council 192 stranger: the partnership will be governed by the In this passage reference is made to the Indian Contract Act which would be applicable to the facts of this case. It is to be noted that the sections referring to partnership in the said Act have been repealed and are now embodied in the Indian Partnership Act 1932. Even assuming therefore that Virappa was the manager of his joint Hindu family in 1908 his entering into partnership with the Chetties in that year would not “ipso facto” make the other members of his family partners …” The next question is as to whether Shri Devendra Prasad Sinha was running the joint family business and or whether the act of surrender of possession was that of a joint Hindu family business or only of surrender of tenancy or that as a Karta surrender of tenancy was for the benefit of the joint Hindu family The plaintiff has pleaded that when father of the plaintiff joined service the shop was being run through the servants and that the plaintiff began to run the hotel since 1988. Thereafter the dis putes cropped up over the management and accounting of the in come and the hotel was closed for many years. The plaintiff has pleaded as under “4. That when the grandfather of the plaintiff fell ill the shop was being looked after and began to run by his eldest son Surendra Kumar and Surendra Kumar began to pay rent to Waqf Board under receipt granted to him in the name of Devendra Prasad Sinha which are all with Surendra Kumar later when Surendra Kumar joined the Service the shop is bring run through the servant but later on the Hotel began to run by the plaintiff since 1988 and thereafter dispute cropped up over the management and accounting of income and as such the Hotel became closed and remained closed for several years.” The High Court held that the existence of joint family is estab lished from the Ration Card issued on 2.4.1949 and from the pay ment of rent for the period 19471955 that the premises were let out to joint family. The High Court also rejected the surrender of tenancy on the ground that it was without the consent of other co parceners. It was held as under “37. …After death of Ram Sharan Ram Ram Sewak Ram became the Karta of the joint Hindu family of which defendant No. 1 his three sons Surendra Kumar father of the plaintiff Dilip Kumar Defendant No. 2 Suresh Kumar plaintiff and his three brothers were the members Existence of the joint family of which Ram Sewak Ram was the Karta is established from perusal of the Ration Card issued under the order of the Government by the Secretary to the Government Exhibit 9 A dated 2.12.1949. After death of Ram Sharan Ram Ram Sewak Ram having become Karta of the joint family managed the affairs of the joint family including the hotel business in the suit premises let out to the joint family by the Mutawalli of the Wakf Estate which owned the suit premises as is evident from perusal of 46 rent receiptsgranted by the Bihar State Sunni Wakf Board through Mutawalli Md. Suleman for the period 1947 1955 indicating payment of rent for the suit premises by the tenant Ram Sewak Ram 43. Rent receipts Water Board receipt and electricity bill receipt aforesaid obtained by Defendant No. 1 are subsequent to the death of the original tenant i.e. Karta of the joint family Ram Sewak Ram from whom Defendant No 1 succeeded to the tenancy along with the other coparceners of the joint family. On the basis of the subsequent receipts it cannot be said that the tenancy is created only in favour of Defendant No. 1 ignoring the other descendants successors of Ram Sewak Ram. Reference in this connection is also required to be made to the statement of Defendant No. 4 who examined himself as D.W. 2 paragraph 24 wherein he has categorically stated that in the Wakf Board there is no Kirayanama executed in favour of Devendra Babu Defendant No. 1 44. The case set out by the defendants regarding surrender letter dated 31.5.96 is also fit to be rejected as after the death of Ram Sewak Ram the Karta of the Hindu undivided family Defendant No. 1 became the Karta of the Hindu undivided family and as per the tenets of Hindu Law Defendant No. 1 was not entitled to surrender the tenanted premises without the consent of the other coparceners of the Hindu undivided family… 45. In view of my findings above there is no difficulty in concluding that the suit premises was let out to Ram Sewak Ram who carried joint family hotel business in the said premises until his death i.e. in January 1960 whereafter Defendant No. 1 became the Karta of the family and succeeded to the joint family business including the suit premises along with his sons and grandsons constituting the joint family as such without the consent of the other members of the joint family could not have surrendered the tenancy in favour of Mutawalli of the Wakf Estate through the so called surrender letter dated 31.5.1996.” Thus even if a male member had taken premises on rent he is tenant in his individual capacity and not as Karta of Hindu Undi vided Family in the absence of any evidence that Karta was doing the business for and on behalf of Joint Hindu Family. The High Court has presumed the existence of the joint family of which Ram Sewak Ram was said to be the Karta from perusal of the Ration Card issued on 2.12.1949. The Hindu Joint Hindu Family cannot be presumed to be in existence only on the basis of Ration Card un less there is evidence that the funds of joint Hindu Family were in vested in the business in the tenanted premises. The Allahabad High Court in Ram Awalamb held that notions of Hindu law or Mohamedan law or any other personal law cannot be imported into the rights created by the U.P. Zamindari Abolition and Land Reforms Act. The Court held as under “8. Hindu joint families have existed from times immemorial and they exist even now. However it is by no means necessary that every Hindu Joint family should be possessed of joint family property also. Where any property is ancestral or it is acquired by all the members of a joint Hindu family or after having been acquired by one member of the joint family only it is thrown in the common stock it is regarded to be joint family property or coparcenary property. Until partition takes place or only one member of the family is left without having any male issue the coparcenary property remains with the family and upon the death of any one member only his interest devolves on the surviving coparceners. The Karta or manager of the family alone has the right to transfer the property either for legal necessity or for the benefit of the estate 45. Our conclusions can therefore be briefly summarised 1) Where members of a joint Hindu family hold bhumidhari rights in any holding they hold the same as tenants in common and not as joint tenants. The notions of Hindu law cannot be invoked to determine that status 2) Where in certain class of tenancies such as permanent tenure holders the interest of a tenant was both heritable and transferable in a limited sense and such a tenancy could prior to the enforcement of the Act be described as joint family property or coparcenary property the position changed after Act 51 came into force. Thereafter the interest of each bhumidhar being heritable only according to the order of succession provided in the Act and transferable without any restriction other than mentioned in the Act itself must be deemed to be a separate unit 3) Each member of a joint Hindu family must be considered to be a separate unit for the exercise of the right of transfer and also for the purposes of devolution of bhumidhari interest of the deceased member 4) The right of transfer of each member of the joint Hindu family of his interest in bhumidhari land is controlled only by Sec. 152 of the Act and by no other restriction. The provisions of Hindu law relating to restriction on transfer of coparcenary land e.g. existence of legal necessity do not 31. We thus find that the High Court has committed a basic error of law and fact that the payment of rent or the Ration Card proves that the tenant was carrying business as a Joint Hindu Family Busi ness. There can be presumption of Hindu joint family property if the property has been acquired by the male member or if the same has been treated as joint Hindu family. But no such pre sumption is attached to a business activity carried out by an indi vidual in a tenanted premise A perusal of the facts on record would show that it was a contract of tenancy entered upon by great grandfather of the plaintiff Even if the great grandfather was maintaining the family out of the income generated from the hotel business that itself would not make the other family members as coparceners in the hotel business. It was the contract of tenancy which was inherited by the grandfather of the plaintiff who later surrendered it in favour of the Wakf Board. The tenancy was an individual right vested with the grandfather of the plaintiff who was competent to surren der it to the landlord. The High Court has clearly erred in law by holding that since the grandfather was a tenant the tenancy is a joint family asset. The contract of tenancy is an independent con tract than the joint Hindu family business. In fact the evidence produced by the plaintiff is payment of rent by either Ram Sewak Ram or by the grandfather of the plaintiff Such payment of rent is not indicative of the fact that the hotel business was by the joint Hindu family. This Court in a judgment reported as G. Narayana Raju by his Legal Representative v. G. Chamaraju & Ors.18 held that there is no presumption under Hindu Law that business standing in the name of any member of the joint family is a joint business even if that member is the manager of the joint family unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate. This Court held as under 18 AIR 1968 SC 1276 “3. … It is well established that there is no presumption under Hindu Law that business standing in the name of any member of the joint family is a joint business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate the business remains free and separate. 6. … It is a well established doctrine of Hindu Law that property which was originally self acquired may become joint property if it has been voluntarily thrown by the coparcener into joint stock with the intention of abandoning all separate claims upon it. The doctrine has been repeatedly recognised by the Judicial Committee 3 Ind App 259and Lal Bahadur v. Kanhaia Lal 1907) 34 Ind App 65 18 Ind App 9 PC). For instance in Naina Pillai v. Daivanai Ammal AIR 1936 Madras 177 where in a series of documents self acquired property was described and dealt with as ancestral joint family property was not sufficient but an intention of the coparcener must be shown to waive his claims with full knowledge of his right to it as his separate property. The important point to keep in mind is that the separate property of a Hindu coparcener ceases to be his separate property and acquires the characteristics of his joint family or ancestral property not by mere act of physical mixing with his joint family or ancestral property but by his own volition and intention by his waiving or surrendering his special right in it as separate property. A man s intention can be discovered only from his words or from his acts and conduct When his intention with regard to his separate property is not expressed in words we must seek for it in his acts and conduct. But it is the intention that we must seek in every case the acts and conduct being no more than evidence of the intention. …”This Court in a judgment reported as P.S. Sairam & Anr. v. P.S Rama Rao Pissey & Ors.19 following the above said judgment held that so far as immovable property is concerned there would be a presumption that the same belongs to joint family provided it is proved that the joint family had sufficient nucleus at the time of its acquisition but no such presumption can be applied to a business. It was held as under “7. Crucial question in the present appeal is as to whether business which was conducted by defendant No. 1 was his separate business or it belonged to joint family consisting of himself and his sons. It is well settled that so far as immovable property is concerned in case the same stands in the name of individual member there would be a presumption that the same belongs to joint family provided it is proved that the joint family had sufficient nucleus at the time of its acquisition but no such presumption can be applied to business …” Thus mere payment of rent by great grandfather or by the grand father of the plaintiff raises no presumption that it was a joint Hindu family business. The High Court has clearly erred in law to hold so without any legal or factual basis Even if Devendra Prasad Sinha is considered to be representing the joint Hindu family while carrying out hotel business in the ten anted premises the question as to the act Karta to surrender of tenancy was for the benefit of the joint Hindu family. The powers 19 11 SCC 320 of Karta of a Joint Hindu Family have been described in 22nd Edition of Hindu Law by Mullainter alia to the following effect “Alienation by manager of coparcenary property for legal necessity. The power of the manager of a joint Hindu family to alienate the joint family property is analogous to that of a manager for an infant heir as defined by the Judicial Committee 2) The manager of a joint Hindu family has the power to alienate for value joint family property so as to bind the interest of both adult and minor coparceners in the property provided that the alienation is made for legal necessity or for the benefit of the estate. A managercan alienate even the share of a minor coparcener to satisfy an antecedent debt of the minor’s fatherwhen there is no other reasonable course open to him Nag 214). It is not necessary to validate the alienation that the express consent of the adult members should have been obtained In Suraj Bunsi Koer v. Sheo Proshad 6 IA 88 p 101 the Judicial Committee stated that it was not clearly settled whether where an alienation is made by a manager for a legal necessity but without the express consent of the adult coparceners the alienation is binding on them However in later decisions of the same tribunal the view taken is that if legal necessity is established the express consent of the adult coparceners is not necessary (Sahu Ram v. Bhup Singh AIR 1917 PC 61). As to alienation by manager for joint family business Where any such transaction has been entered into for legal necessity by a manager it would be deemed to be on behalf of the family and would bind it. The position is not worsened by the fact that a junior member joins the transaction and the joining by him is abortive by reason of his minority (Radha Krishnadas v. Kaluram AIR 1967 SC The pleaded stand of the Plaintiff is that the hotel was closed for several years. Therefore the liability to pay monthly rent contin ued to accrue upon karta Devendra Prasad Sinha. The question is as to whether in these circumstances on account of cessation of activities of running of the hotel the act of the surrender of ten ancy is in fact for the benefit of the joint family. The learned High Court found that the letter of surrender was not reliable or ten able. The executor of the surrender letter has admitted such sur render letter in the written statement and while appearing as a witness as DW 5. The Mutawalli Md. Salimuddin has also accepted the surrender letter in the written statement and while appearing in the witness box as DW 10. Merely for the reason that signa tures in the translated copy do not tally with the Urdu copy is not sufficient to hold the surrender letter as unreliable as the transla tion can be incorrect but the correctness of the document in has not been disputed by the executor or by the acceptor. The said document could not have been said to be unreliable on the basis of the statement of the plaintiff who is not a party to such transac tion. It is one thing to say that the document is unreliable and an other to say that the document does not bind the plaintiff. We have no hesitation to hold that the document was validly proved and accepted by the Wakf Board. Therefore the act of surrender of tenancy was for the benefit of the Joint Hindu family 38. We thus hold that the order of the High Court is not sustainable for the reasons recorded above. Consequently the present appeal is allowed. The order of the High Court is set aside and that of the Wakf Tribunal is restored with no order as to costs. S. ABDUL NAZEER NEW DELHI APRIL 05 2021

Petition disposed of giving liberty to the petitioner to raise all the issues available to her including framing of charge: The High Court of Calcutta

In a case in which the CBI alleges a big chit fund scam, it is claimed there are several people involved in this case. The prejudice being suffered by the petitioner with the delay of trial can be resolved with a direction to the learned Court below to expedite the trial as the petitioner being a widow lady living at Delhi is facing trial at Kolkata. In the High Court of Calcutta for the matter Manoranjana Sinh & Anr. v. Central Bureau of Investigation[CRR/1310/2021] led through the division bench chaired by Justice Rajesh Bindal and Justice Arijit Banerjee. The facts of the case are that an application was filed under Section 482 of the Code of Criminal Procedure, 1973, praying for quashing of the proceedings being CBI RC 04/S/2014 pending before the Learned Additional Chief Judicial Magistrate, Alipore, South 24-Parganas, arising out of CBI/SCB/Kolkata Case No. RC 4/S/2014 dated 4.6.2014 under Section 4 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 (for short, ‘the PCMC Act), read with Sections 120B/420/409 of the Indian Penal Code, in so far as the same relates to the petitioners. The petitioners submitted that the dealing between the petitioners and the Saradha Group of Companies was at arm’s length. There was a commercial arrangement between the petitioners and the Saradha Group of Companies, whereunder the petitioners were to promote the business and image of the Saradha Group of Companies. The petitioners were never aware that such companies were indulging in any unlawful activity. Relying on the Supreme Court decision in the case of Anil Mahajan v. Bhor Industries Ltd. & Anr.: (2005) 10 SCC 228, it was submitted that the dishonest intention must be existing from the inception of the transaction in question to attract the mischief of Section 420. Relying on the case of Kehar Singh & Ors. v. State (Delhi Administration): (1988) 3 SCC 609, it was submitted that mere knowledge of the source of funds mid-way into the execution of a bona fide agreement would not amount to conspiracy in law. Learned Additional Solicitor General, submitted that the only argument advanced on behalf of the petitioners was based on an alleged agreement entered into by and between P2 represented by P1, P1 representing herself, her father and others being 100% shareholders of the P2 company on the one hand and Bengal Media Pvt. Ltd., represented by Sudipta Sen, on the other hand, under an alleged Memorandum of Understanding dated 09.06.2010 between Bengal Media represented by Sudipta Sen, and P1. Learned Counsel submitted that there are several discrepancies between the Memorandum of Understanding and the alleged agreement, entered into between the parties, which cannot be relied upon. There is no reference to any Board Resolution on the strength of which the document has been purported to be signed. Manoranjana Sinh appears to have signed on behalf of GNN Private Ltd. The respondents submitted that at the stage of framing charges or quashing of an FIR/Charge sheet the Court is precluded from looking into any documents other than those produced by the prosecution. The Courts would not be justified in invoking the inherent jurisdiction under Section 482 Cr. P.C. to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course and even in such exceptional cases the High Court could look into only those documents, which are unimpeachable and can be legally translated into relevant evidence. The court directed “It is a case in which the CBI alleges a big chit fund scam, the FIR for which was registered on a direction by Hon’ble the Supreme Court in the year 2014. It is claimed that there is number of persons involved in the crime. Even though 4-5 charge sheets have been filed but the matter is still under investigation for which the CBI has permission from the Court under section 173(8) Cr.P.C. At the time of a hearing number of documents were referred to by both the parties. We do not find it appropriate to opine thereon as the evidentiary value thereof will be appreciated by the learned Court below at appropriate stage of the proceedings.“ The High Court of Calcutta concluded “From the arguments of the parties as we have noticed briefly above, in our opinion the present petition can be disposed of giving liberty to the petitioner to raise all the issues available to her at appropriate stage of the case including framing of charge. The prejudice being suffered by the petitioner with the delay of trial can be resolved with a direction to the learned Court below to expedite the trial as the petitioner being a widow lady living at Delhi is facing trial at Kolkata.”

IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION CRR 13121 Pronounced on: 01.10.2021 Manoranjana Sinh & Anr. Petitioner Central Bureau of Investigation. Opposite Party Present: Mr. Sabyasachi Banerjee Mr. Amit Agarwalla Advocates …for the Petitioner Mr. Y.J. Dastoor Ld. ASG Mr. Phiroze Edulji Advocate Mr. Samrat Goswami Advocate …for the Respondents Coram: THE HON’BLE JUSTICE RAJESH BINDAL CHIEF JUSTICETHE HON’BLE JUSTICE ARIJIT BANERJEE This is an application filed under Section 482 of the Code of Criminal Procedure 1973 praying for quashing of the proceedings being CBI RC 04 S 2014 pending before the Learned Additional Chief Judicial Magistrate Alipore South 24 Parganas arising out of CBI SCB Kolkata Case No. RC 2 CRR 13121 4 S 2014 dated 4.6.2014 under Section 4 of the Prize Chits and Money Circulation SchemesAct 1978read with Sections 120B 420 409 of the Indian Penal Code in so far as the same relates to the petitioners. The learned Counsel appearing for the petitioners submitted that the dealing between the petitioners and the Saradha Group of Companies was at arm’s length. The petitioners had no idea as regards the source of the funds that Sudipta Sen promised to invest in P2. There was a commercial arrangement between the petitioners and the Saradha Group of Companies whereunder the petitioners were to promote the business and image of the Saradha Group of Companies. The petitioners were never aware that such companies were indulging in any unlawful activity. Learned Counsel submitted that even taking the allegations in the FIR or charge sheet at their face value the same do not disclose the ingredients of Sections 420 406 409 120B of the IPC or Section 4 of the PCMC Act. As regards Section 420 it was submitted that it is not CBI’s case that there was any direct dealing between the petitioners and the investors who deposited money in Sen’s companies. No investor has filed any case against the petitioners. Even SEBI has not thought it fit to make any allegations against any of the petitioners. There is no allegation in the charge sheet of any inducement much less dishonest inducement by the petitioners to any investors. Relying on the Supreme Court decision in the case of Anil Mahajan v. Bhor Industries Ltd. & Anr.: 10 SCC 228 it was submitted that the dishonest intention must be existing from the inception of the transaction in question to attract the mischief of Section 420. As regards Section 406 of IPC it was submitted that no ingredient of Sections 405 406 of IPC has been made out. There is no allegation of “entrustment of property” by anyone with the petitioners. Similarly Section 409 is not attracted since the petitioners are 3 CRR 13121 admittedly neither public servant nor their business is that of a banker or merchant or factor or broker or attorney or agent. As regards Section 4 of the PCMC Act it was submitted that it is not even the case of CBI that the petitioners were in any manner concerned with the collection of deposits from the investors in the Saradha Group of It was then submitted that the entire case of CBI hinges on Section 120B of the IPC. It was submitted as follows: Since the first FIR against Sen and Saradha Group was on 6.05.2013 there cannot be “enquiries contemplated” in June 2010 when the MoU and Agreement were executed between the petitioners and Sen’s entity8 SCC 617 and submitted that mere knowledge is not enough to rope in a person on charges of conspiracy. In the impugned charge sheet CBI at 4 CRR 13121 best has attempted to indicate that the petitioner had knowledge of business of the Saradha Group. The same is insufficient to rope in the petitioners as CBI has failed to show how the petitioners had participated in attracting investors parked and or helped Sen to park funds of Saradha Group through her company. This fact has to be appreciated in juxtaposition to the fact that none of the documents relating to the accounts of P2 including its Balance Sheets has been said to be forged manufactured documents and the trade payables and receivables shown in the Balance Sheets have not been called in question as fictitious in nature. Relying on the case of Kehar Singh & Ors. v. State 3 SCC 609 it was submitted that mere knowledge of source of funds mid way into execution of a bona fide agreement would not amount to conspiracy in law. Learned Counsel for the petitioner submitted that she was arrested on October 07 2015 and was granted bail by Hon’ble the Supreme Court vide order dated February 06 2017 passed in Criminal Appeal No. 240 of 2017 titled as Manoranjana Sinh @ Gupta vs. Central Bureau of Investigation. As the conditions imposed for bail were stringent she filed application for modification thereof. The same was allowed vide order dated August 27 2020. Ever since then she has never misused the concession of bail. The trial is not proceeding even though the charge sheet was filed more than five years back on January 04 2016. This fact is even mentioned in the order passed by Hon’ble the Supreme Court. The continuation of trial against the petitioner is nothing else but causing mental agony to her and is misuse of process of law. It was case of simpliciter business transaction otherwise the petitioner had nothing to do with the collection of funds by Sudipta Sen. Appearing for CBI Mr. Dastoor Learned Additional Solicitor General submitted that the only argument advanced on behalf of the petitioners was on the basis of an alleged agreement entered into by and between P2 represented 5 CRR 13121 by P1 P1 representing herself her father and others being 100% shareholders of the P2 company on the one hand and Bengal Media Pvt. Ltd. represented by Sudipta Sen on the other hand pursuant to an alleged Memorandum of Understanding dated 09.06.2010 between Bengal Media represented by Sudipta Sen and P1. Learned Counsel submitted that there are several discrepancies between the Memorandum of Understanding and the alleged agreement entered into between the parties which cannot be relied upon. There is no reference to any Board Resolution on the strength of which the document has been purported to be signed. Manoranjana Sinh appears to have signed on behalf of GNN Private Ltd. The non judicial stamp paper of Rs. 50 bearing Serial No. E 911715 appears to have been purchased on 18th March 2010. That had lost its validity for the purpose of execution within the prescribed period of 3 months from the date of purchase of the document. The MOU though apparently was filled up completely but the agreement is bereft of many details including addresses PAN No. dates etc. Major portions are blank. The MOU states that P1 and her father are the 100% owners of the P2 company. However the Agreement states that P1 her father and others together are the 100% shareholders of the company. Learned Additional Solicitor General submitted that on the basis of the aforesaid two documents the petitioners sought to establish that the agreement was made at arm’s length and that P1 was unaware that the money approximately Rs. 21.05 crores she received came from the Saradha Group of Learned Counsel submitted that at the stage of framing charges or quashing of an FIR Charge sheet the Court is precluded from looking into any documents other than those produced by the prosecution. The Courts would not be justified in invoking the inherent jurisdiction under Section 482 Cr. P.C. to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course and even in such exceptional 6 CRR 13121 cases the High Court could look into only those documents which are unimpeachable and can be legally translated into relevant evidence. It was then submitted that P1 was always aware of the activities of the Saradha Group and she had been engaged as admitted by her to launch the Saradha Group in Assam to publicize their so called noble activities to identify politicians and illegally finance their elections in Assam. Even though she was aware of and fully participated in the activities of the Saradha Group she now seeks to portray herself as a paragon of virtue and a victim of the Saradha Group. It was submitted that in the last paragraph of the Supplementary Charge sheet No. 5 dated 04.01.2016 it is stated that further investigation of the case as per the provisions of Section 173(8) Cr.P.C. continues in respect of the accused persons including influential persons role of regulatory agencies like SEBI ROC RBI role of other agencies larger criminal conspiracy and money trail as submitted in the Supplementary Charge sheet dated 03.12.2015. By order dated January 4 2016 Learned Additional Chief Judicial Magistrate 24 Parganas South at Alipore allowed the Investigating Officer’s prayer for further investigation u s. 173(8) Cr.P.C. Heard learned Counsel for the parties and perused the relevant referred record. It is a case in which the CBI alleges a big chit fund scam the FIR for which was registered on a direction by Hon’ble the Supreme Court in the year 2014. It is claimed that there are number of persons involved in the crime. Even though 4 5 charge sheets have been filed but the matter is still under investigation for which the CBI has permission from the Court under section 173(8) Cr.P.C. At the time of hearing number of documents were referred to by both the parties. We do not find it appropriate to opine thereon as the evidentiary value thereof will be appreciated by the learned Court below at appropriate stage of the proceedings. Delay in any trial certainly prejudices an 7 CRR 13121 accused as the sword keeps on hanging on the head. There are number of restrictions imposed. The factum of delay of trial was even noticed by Hon’ble the Supreme Court in order dated August 27 2020 relaxing the conditions of bail. The order records that for the last 4 years the trial was standstill. The petitioner had appeared before the trial Court at Kolkata 27 times though she is residing at Delhi. Even her personal appearance was exempted and she was allowed to appear through Counsel unless otherwise directed by the Court. From the arguments of the parties as we have noticed briefly above in our opinion the present petition can be disposed of giving liberty to the petitioner to raise all the issues available to her at appropriate stage of the case including framing of charge. The prejudice being suffered by the petitioner with the delay of trial can be resolved with a direction to the learned Court below to expedite the trial as the petitioner being a widow lady living at Delhi is facing trial at Kolkata. Keeping that fact in view and the order dated August 27 2020 passed by Hon’ble the Supreme Court in our opinion use of video conferencing facility can be explored by the trial Court for recording of evidence wherever possible. Needless to add that in case the trial still does not proceed or any order adverse to the petitioner is passed she shall be entitled to avail of her appropriate remedy. The petition is disposed of accordingly. RAJESH BINDAL) CHIEF JUSTICE(ARIJIT BANERJEE) JUDGE 01 .10.2021 PA

State cannot act as a private person in matter of contract: Calcutta High Court

In a proceeding before Court which assails the exercise of powers of the State in the award of contract, the Courts must also take into consideration the public interest involved. This judgment was delivered by single judge bench comprising hon’ble Justice Debangsu Basak at the High Court of Judicature at Calcutta in the matter of M/s. Sonai Food Marketing Pvt. Ltd. & anr. v. The State of West Bengal & Ors. [WPO No. 359 and 360 of 2020]. The two writ petitions have been heard on November 20, 2020 and December 3, 2020 and the judgment in respect thereof was reserved on December 3, 2020. Since the issues involved in the two writ petitions are same, both the writ petitions are being disposed of by this common judgment and order. The admitted facts of this case are: By a memo dated 11th July, 2018 which was published in the official Gazette on July 23, 2018, the state invited applications for filling the vacancies of distributorship at Minakhan Block. It was alleged by the respondents that the notice of July 11, 2018 was superseded by that of January 19, 2019. By the Gazette notification dated January 19, 2019, the date for determining the last date of application had been notified to be 30 days from the date of publication of the official Gazette or publication of advertisement in newspaper whichever is later. The Hon’ble High Court while deciding upon the matter held that “the order dated November 22, 2019 has been passed acting on the order dated August 8, 2019 passed by the High Court in the first writ petition of the petitioners. The order dated November 22, 2019 has taken note of the declaration of the vacancy, the initiation of the selection process, the conduct of the parties and the ultimate cancellation of the selection process. It has noted that, approval and cancellation of a vacancy is within the realm of valid decision by the State and that such decision is not in contravention of any law. It has opined that the State did not act with any mala fide intention or attempt to infringe upon any fundamental or legal right of the petitioners.” The court placed its reliance on the case of M/s. Kultali Food Marketing Private Limited & anr. v. State of West Bengal where it was held that “the first two limbs of the reasons given in the impugned order dated August 7, 2019 do not apply to the facts of that case. The third limb of reason, that is, the delay was beyond the period contemplated in Clause 26 of the West Bengal Public Distribution System (Maintenance & Control) Order, 2013 was perverse. It has held that, the delay was not caused by the writ petitioner. It has also held that, the delay was not occasioned by anything that was beyond the control of the State. It has gone on to hold that, unless the State indicates cogent grounds for annulling the process, the application made by all the candidates merit consideration in accordance with law.” The court further stated that “in such circumstances, the writ petitions are allowed. The writ petitioners being similarly situated and circumstanced as that of the writ petitioners in M/s. Kultali Food Marketing Private Limited & Anr. v. State of West Bengal, same reliefs have to be granted. The respondent authorities will process the applications of the petitioners for engagement of MR Distributor in the respective blocks applied for in accordance with law and communicate their decision within six weeks from date. W.P.O. 359 of 2020 and W.P.O. 360 of 2020 are disposed of accordingly without any order as to costs.”  

WPO No. 3520 WPO No. 3620 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Original Side M s. Sonai Food Marketing Pvt. Ltd. & Anr. The State of West Bengal & Ors. For the Petitioner : Mr. Kalyan Kumar Bandyopadhyay Sr. Advocate Mr. Ram Anand Agarwal Advocate Ms. Nibedita Pal Advocate Mr. Ramesh Dhara Advocate Mr. Ananda Mukherjee Advocate : Mr. Kishore Datta Ld. Advocate General Mr. Susavan Sengupta Advocate Mr. Subir Pal Advocate For the State Hearing concluded on : December 3 2020 Judgment on : December 18 2020 DEBANGSU BASAK J. : 1. Two writ petitions have been heard on November 20 2020 and December 3 2020 and the judgment in respect thereof was reserved on December 3 2020. Since the issues involved in the two writ petitions are same both the writ petitions are being disposed of by this common judgment and order. 2. The petitioners have assailed the government order dated August 7 2019 and any consequential order pursuant thereto including the order dated November 22 2019. For the sake of convenience the facts situation obtaining in WPO 359 of 2020 are 3. Learned senior advocate appearing for the petitioners has contended that the state invited applications for filling up of the vacancies of distributorship at Minakhan Block under Basirhat subdivision in the district of North 24 Parganas by a memo dated July 11 2018 published in the official Gazette on July 23 2018. The first petitioner had submitted its application against such vacancy notice. By a notification dated January 19 2019 the vacancy notice dated July 11 2018 had been superseded. By the Gazette notification dated January 19 2019 the date for determining the last date of application had been notified to be 30 days from the date of publication of the official Gazette or publication of advertisement in newspaper whichever is later. By letter dated January 25 2019 the petitioners had represented that they were opting for consideration of their application under the notification dated January 19 2019. The petitioners had received a notice dated March 11 2019 for a spot enquiry to be held on March 14 2019. A spot enquiry had been held and the petitioners participated therein. The authorities however did not complete the selection process. Consequently the petitioners had made a representation dated July 29 2019 seeking to know the fate of the application. However the petitioners had not been favoured with any response. The petitioners thereafter had moved a writ petition being W.P. No. 15260 of 2019. Such writ petition had been disposed of by an order dated August 8 2019 directing the Principal Secretary to expedite and conclude the selection process within two months. Thereafter the petitioners had became aware of a government order dated August 7 2019 purporting to cancel the vacancy notification. The petitioners had been forwarded with the cheque covering the application money. The Principal Secretary had passed an order dated November 22 2019 which the petitioners had received on December 27 2019. 4. Learned senior advocate appearing for the petitioners has drawn the attention of the Court to the contents of the order dated November 22 2019. He has submitted that the impugned order dated November 22 2019 contains reasons. However such reasons are contrary to the judgment and order dated October 19 20 passed by the Division Bench in FMA 913 of 2020 with CAN 1 of 2020 Order 2013 is directory as it does not incorporate any penal consequence. 7. Learned Senior Advocate appearing for the petitioner has submitted that the decision to cancel the selection process cannot be said to be a policy decision. The decision to cancel the selection process is arbitrary and that the rights of the petitioner cannot be denied on the basis of such arbitrary decision. 8. Learned Advocate General appearing for the State has submitted that the State had taken a decision to cancel the selection process. The decision to cancel the selection process is not candidate specific. The decision applies to all candidates participating in the selection process. The petitioner has not been singled out for special treatment in the decision to cancel the selection process. Therefore no right of the petitioner can be said to have been affected by the decision to cancel the selection process. 9. Learned Advocate General appearing for the State has submitted that when an administrative decision is taken the Courts are usually restrained in interfering with the same. He has submitted that although an administrative decision can be interfered by a Constitutional Court nonetheless in the facts of the present case the Court need not interfere with the decision to cancel the selection process. He has submitted that the petitioner has not alleged that the State acted mala fide in taking the decision to cancel the selection process. The petitioner has not been victimized. As the initiator of the selection process the State retains the right to withdraw the selection process. So long the decision to withdraw the selection process is not directed as against the petitioner individually no right of the petitioner can be said to be effected. The petitioner has a right to be considered fairly in the selection process. Such right has not been affected by the decision to withdraw the selection process. In support of his contentions learned Advocate General has relied upon 2007 Volume 2 Supreme Court Cases page 588 and 2005 Volume 6 Supreme Court Cases page 138 Master Marine ServicesLtd. v. Metcalfe & HodgkinsonLtd. Anr.). He has submitted that no relief can be granted to the In reply learned Senior Advocate appearing for the petitioner has distinguished the authorities cited on behalf of the petitioner. According to him the authorities cited on behalf of the State are not applicable in the facts scenario of the present case. He has submitted that the petitioner is governed by the decision of the Division Bench dated October 9 2020. By a memo dated July 11 2018 published in the Official Gazette on July 23 2018 the District Controller Food and Supplies North 24 Parganas invited applications for filling up of the vacancy of the Distributorship at Minakhan Block under Basirhat Sub Division in the District of North 24 Parganas. The petitioners had applied against such vacancy notice. The state authorities by a subsequent gazette notification dated January 9 2019 superseded the vacancy notice dated July 11 2018. By the subsequent notification the date for determination of the last date of application had been fixed at 30 days from the date of publication of the second notification in the official gazette or publication of advertisement in newspaper whichever is later. It has also specified that persons applying under the first notification may opt for consideration of their application under the second notification by submitting an undertaking to such effect with the authorities. The petitioners had opted for considering the application under the second notification dated January 9 2019. Apparently the authorities had commenced the process of selection by issuing a notice dated March 11 2019 for holding a spot enquiry. A spot enquiry so far as the petitioners were concerned had been held. Thereafter on the failure of the authorities to take steps the petitioners by a letter dated January 29 2019 had sought to know the fate of their application. The petitioners did not receive any response thereto. The petitioners had filed a writ petition being W.P. No. 15260of 2019 which was disposed of by an order dated August 8 2019 by directing the Principal Secretary to expedite and conclude the process of selection within two months. However the authorities had issued a Government Order dated August 7 2019 cancelling the selection process. None of the parties to W.P. No. 15260(W) of 2019 had brought the Government Order dated August 7 2019 to the notice of the Court passing the Order dated August 8 2019. The authorities had also forwarded the application fees of the petitioners which the petitioners received some time in September 2019. The authorities acting in terms of the High Court’s Order dated August 8 2019 had decided the fate of the petitioners by the impugned order dated November 22 2019. 13. Master Marine ServicesLtd.has considered grant of contract by the State authorities and the scope of judicial review of an administrative decision by the State. It has held as follows : “12. After an exhaustive consideration of a large number of decisions and standard books on administrative law the Court enunciated the principle that the modern trend points to judicial restraint in administrative action. The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision without the necessary expertise which itself may be fallible. The Government must have freedom of contract. In other words fair play in the joints is a necessary concomitant for an administrative body functioning in an However the decision must not only be tested by the application of Wednesbury principles of reasonableness but also must be free from arbitrariness not affected by bias or actuated by mala fides. It was also pointed out that quashing decisions may impose heavy administrative burden on the quasi administrative 10 administration and expenditure. increased and unbudgeted in Air 15. The law relating to award of contract by the State and public sector corporations was Ltd. v. Cochin International Airport Ltd.2 SCC 617] and it was held that the award of a contract whether by a private party or by a State is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons if the tender conditions permit such a relaxation. It corporations instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference the court should interfere.” the court must exercise further held the State follows : Ramchandra Murarilal Bhattad & Ors.has held as “66. In New Horizons Ltd. v. Union of India1 SCC 478] this Court opined that in the matter of grant of tender the State cannot act as a private person having regard to Article 14 of the Constitution of India. It was categorically opined that departing from the narrow legalistic view the courts have taken note of the realities of the situation which by no stretch of imagination would mean that the court would substitute itself in the place of a statutory authority. The court in a case of this nature must exercise judicial restraint. It may be one thing to say that having regard to the public interest the court may itself invite bids so as to verify the justification of accepting a palpably lower bid as was done in Ram and Shyam Co. v. State of Haryana3 SCC 267] but it is the court would under all another thing to say circumstances not allow a play in the joints in favour of the 67. However if the court in a given situation is not in a position to allow a bid to take place before it may not still venture to strike down an act in the name of public interest although no such public interest exists.” In order to discharge its duties and functions a State is required from time to time to enter into contracts. In the matter of contract by virtue of Article 14 of the Constitution of India a State and or an instrumentality of the State cannot act as a private person. The actions of the State and or the instrumentalities of the State in the realm of award of contracts must conform with the principles of transparency fair play and be free from arbitrariness caprice colourable exercise of power perversity and mala fides. In the realm of contract when the actions of the State and or instrumentalities of the State are not tainted with mala fide arbitrariness colourable exercise of power or perversity then a decision taken by the State or the instrumentality of the State need not be interfered by the Courts. In such circumstances the Courts allow the State a greater leeway. It allows the State to play in the joints. In a proceeding before Court which assails the exercise of powers of the State in the award of contract the Courts must also taken into consideration the public interest involved. 16. Master Marine ServicesLtd. and Ramchandra Murarilal Bhattad & Ors.have recognised that an award of a contract by the State is amenable to judicial scrutiny if it satisfies the defined parameters. If a decision of the State is tainted with arbitrariness judicial review of such decision lies. A participant in a similar selection process for distributorship in another block under the same sub division of the same district had filed a writ petition challenging the order of cancellation of the selection process dated August 7 2019. Such writ petition had been dismissed by an order dated September 16 2020. The participant as the writ petitioner had preferred an appeal against the order dated September 16 2020 passed in such writ petition. Such appeal being FMA 913 of 2020 with CAN 1 of 2020 had been disposed of by a judgment and order dated October 9 2020. In M s. Kultali Food Marketing Private Limited & Anr supra) the Division Bench has considered the order of cancelation of the selection process dated August 7 2019. It has held that the first two limbs of the reasons given in the impugned order dated August 7 2019 do not apply to the facts of that case. The third limb of reason that is the delay was beyond the period contemplated in Clause 26 of the West Bengal Public Distribution System Order 2013 was perverse. It has held that the delay was not caused by the writ petitioner. It has also held that the delay was not occasioned by anything that was beyond the control of the State. It has gone on to hold that unless the State indicates cogent grounds for annulling the process the application made by all the candidates merit consideration in accordance with law. 19. M s. Kultali Food Marketing Private Limited & Anr.has considered the contention of the State that the decision to cancel the selection process is a policy decision. It has negated such contention on the ground that there can be no policy decision on such score. Moreover the order dated August 7 2019 cancelling the selection process does not specify that more distributorship have opened up and therefore the State needs to undertake a fresh selection process. It has held that when a selection process is cancelled without adequate grounds being cited the decision must be seen to be arbitrary capricious and unreasonable. A similar decision of cancelling the selection process for distributorship has been the subject matter of M s. Kultali Food Marketing Private Limited & Anr.excepting that the petitioners herein have suffered an additional order dated November 21 2019 deciding the fate of the petitioners. The order dated November 22 2019 has been passed acting on the order dated August 8 2019 passed by the High Court in the first writ petition of the petitioners. The order dated November 22 2019 has taken note of the declaration of the vacancy the initiation of the selection process the conduct of the parties and the ultimate cancellation of the selection process. It has noted that approval and cancellation of a vacancy is within the realm of valid decision by the State and that such decision is not in contravention of any law. It has opined that the State did not act with any mala fide intention or attempt to infringe upon any fundamental or legal right of the The impugned order dated November 22 2019 has based its reasons on the order dated August 17 2019. The order dated August 17 2019 has been held to be arbitrary in M s. Kultali Food Marketing Private Limited & Anr. same reliefs have to be granted. The respondent authorities will process the applications of the petitioners for engagement of MR Distributor in the respective blocks applied for in accordance with law and communicate their decision within six weeks from date. 24. W.P.O. 359 of 2020 and W.P.O. 360 of 2020 are disposed of accordingly without any order as to costs. DEBANGSU BASAK J.]

“the said queries cannot be construed as seeking ‘information’ as defined under section 2 (f) of the RTI Act..”: Appellate Authority, SEBI.

The appellate authority under the RTI (Right to Information) Act of the Securities and Exchange Board of India comprising of Mr. Anand Baiwar adjudicated in the matter of A Sirajudeen v CPIO, SEBI, Mumbai (Appeal No. 4348 of 2021) dealt with an issue in connection with Section 2 (f) of the Right to Information Act, 2005. The appellant, Mr A Sirajudeen 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 15th of June, 2021, filed by the appellate. After receiving a letter from the respondent on 15th of June, 2021, on his application, the appellate decided to file an appeal on the 17th of June, 2021. In his application, the appellate was seeking the following information: “I spoke to SEBI helpline, on 04/June/2021. I told, I want to complain about Trade24x and Digitex technologies.. I also said that the above 2 is FOREX related.. SEBI helpline replied me that, regarding FOREX, need to complain RBI, but not SEBI.. is it true sir ? I just want to know.. Forex will comes under SEBI (SECURITIES AND EXCHANGE BOARD OF INDIA) ? OR Forex will comes under RBI (Reserve Bank of India) ? OR Any other Department.” The respondent, in response to the application, informed that the queries are in the nature of seeking/ opinion clarification and accordingly, cannot be construed as “information”, as defined under section 2(f) of the RTI Act. The respondent also advised the appellant to lodge his grievance (if any), on the SCORES portal and also refer to the FAQs available on the SEBI website. Further, the respondent also provided the toll free helpline numbers launched by SEBI to facilitate replies to various queries of the general public on matters relating to securities market. The appellant has not mentioned any specific ground for filing the appeal. The appellant, in his appeal, reiterated his queries raised in the application. For the queries, the appellate authority, Mr Anand Baiwar, made reference to the matter of Hon’ble CIC, in the matter of Vineet Pandey vs. CPIO, United India Insurance Company Limited (Judgment dated January 21, 2021), wherein similar observations were made by the Hon’ble CIC. Further, in the matter of Shri Shantaram Walavalkar vs. CPIO, SEBI (Decision dated January 17, 2013), it was noted that the Hon’ble CIC held: “… we would also like to observe that, under the Right to Information (RTI) Act, the citizen has the responsibility to specify the exact information he wants; he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO…”. In view of these observations, the appellate authority found no deficiency in the response. On perusal of the submission, it appears that the appellant has grievance regarding Trade24x and Digitex technologies. Mr Anand Baiwar, made reference to the matter of Hon’ble CIC, in the matter of Sh. Triveni Prasad Bahuguna vs. LIC of India, Lucknow (Decision dated September 6, 2012), held: “The Appellant is informed that … redressal of grievance does not fall within the ambit of the RTI Act rather it is up to the Appellant to approach the correct grievance redressal forum…” No defiency in the response was found.

Appeal No. 43421 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43421 A Sirajudeen CPIO SEBI Mumbai The appellant had filed an application dated June 04 2021under the Right to Information Act 2005 OR Forex will comes under RBIOR Any other Department.” The respondent in response to the application informed that the queries are in the nature of seeking opinion clarification and accordingly cannot be construed as “information” as defined under section 2(f) of the RTI Act. The respondent also advised the appellant to lodge his grievanceon the SCORES portal and also refer to the FAQs available on the SEBI website. Further the respondent also provided the toll free helpline numbers launched by SEBI to facilitate replies to various queries of the general public on matters relating to securities market. 4. Ground of appeal The appellant has not mentioned any specific ground for filing the appeal. The appellant in his appeal reiterated his queries raised in the application. Appeal No. 43421 5. On consideration I agree with the observation of the respondent that the queries are in the nature of seeking clarification opinion from the respondent. It is understood that the respondent is not supposed to create information or to interpret information or to furnish clarification to the appellant under the ambit of the RTI Act. I find that the said queries cannot be construed as seeking ‘information’ as defined under section 2of the RTI Act. Consequently the respondent did not have an obligation to provide such clarification under the RTI Act. In this context reference is made to the mater of Vineet Pandey vs. CPIO United India Insurance Company Limited wherein 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 I do not find any deficiency in the response. 6. On perusal of the submission it appears that the appellant has grievance regarding Trade24x and Digitex technologies. In this context I note that the Hon’ble CIC in the matter of Sh. Triveni Prasad Bahuguna vs. LIC of India Lucknowheld: “The Appellant is informed that … redressal of grievance does not fall within the ambit of the RTI Act rather it is up to the Appellant to approach the correct grievance redressal forum…”. In view of these observations I find that if the appellant has any grievance the remedy for the same would not lie under the provisions of the RTI Act. Further I note that the respondent has adequately guided the appellant by providing information with respect to lodging his grievance if any on the SCORES portal. Accordingly I find no deficiency in the response. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed. Place: Mumbai Date: July 16 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

Provision of one trial against a person for multiple offences under Section 138 of the Act committed within a period of 12 months: Supreme Court

Concerned with the large number of cases filed under Section 138 of the Negotiable Instruments Act, 1881 pending at various levels, a Division Bench of the Supreme Court consisting of the Chief Justice of India and L. Nageswara Rao, J. decided to examine the reasons for the delay in disposal of these cases in In Re: Expeditious Trial of Cases Under Section 138 OF N.I. ACT 1881[ SUO MOTO WRIT PETITION (CRL.) NO.2 OF 2020] Chapter XVII inserted in the Act, containing Sections 138 to 142, came into force on 01.04.1989. Dishonour of cheques for insufficiency of funds was made punishable with imprisonment for a term of one year or with fine which may extend to twice the amount of the cheque as per Section 138. Section 139 dealt with the presumption in favour of the holder that the cheque received was for the discharge, in whole or in part, of any debt or other liability. The defence which may not be allowed in a prosecution under Section 138 of the Act is governed by Section 140. Section 141 pertains to offences by companies. Section 142 lays down conditions under which cognizance of offences may be taken under Section 138. Over the years, courts were inundated with complaints filed under Section 138 of the Act which could not be decided within a reasonable period and remained pending for a number of years Section 138 of the Act which could not be decided within a reasonable period and remained pending for a number of years The Court observed that the words “as far as may be” in Section 143 are used only in respect of applicability of Sections 262 to 265 of the Cr.P.C. and the summary procedure to be followed for trials under Chapter XVII. Conferring power on the court by reading certain words into provisions is not permissible and a judge must not rewrite a statute, neither to enlarge nor to contract it. The judge is believed to interpret and apply the law, not to change it to meet the Judge’s idea of what justice requires. The court cannot add words to a statute or read words into it which are not there. The bench scrutinized the judgments of this Court in Adalat Prasad (2004) 7 SCC 338 and Subramanium Sethuraman (2004)13 SCC 324 and warranted that the Trial Court cannot be conferred with inherent power either to review or recall the order of issuance of process. The Court, in its anxiety to cut down delays in the disposal of complaints under Section 138, has applied Section 258 to hold that the Trial Court has the power to discharge the accused even for reasons other than payment of compensation in the above cases. However, amendment to the Act empowering the Trial Court to reconsider/recall summons may be considered on the recommendation of the Committee constituted by the Court which shall look into this aspect as well.

IN THE CRIMINAL ORIGINAL JURISDICTION SUO MOTU WRIT PETITIONNO.2 OF 2020 In Re: EXPEDITIOUS TRIAL OF CASES UNDER SECTION 138 OF N.I. ACT 1881 O R D E R Special Leave Petition No. 5464 of 2016 pertains to dishonour of two cheques on 27.01.2005 for an amount of Rs.1 70 000 . The dispute has remained pending for the past 16 years. Concerned with the large number of cases filed under Section 138 of the Negotiable Instruments Act 1881 pending at various levels a Division Bench of this Court consisting of two of usdecided to examine the reasons for the delay in disposal of these cases. The Registry was directed to register a Suo Motu Writ Petition Criminal) captioned as “Expeditious Trial of Cases under Section 138 of N.I. Act 1881”. Mr. Sidharth Luthra learned Senior Counsel was appointed as Amicus Curiae and Mr. K Parameshwar learned Counsel was requested to assist him 1 | P a g e Notices were issued to the Union of India Registrar Generals of the High Courts Director Generals of Police of the States and Union Territories Member Secretary of the National Legal Services Authority Reserve Bank of India and Indian Banks’ Association Mumbai as the representative of banking The learned Amici Curiae submitted a preliminary report on 11.10.2020 which was circulated to all the Respondents. On 19.01.2021 the learned Amici Curiae informed this Court that only 14 out of 25 High Courts had submitted their responses to the preliminary report. The Reserve Bank of India had also filed its suggestions. Seven Directors General of Police had filed their affidavits putting forward their views to the preliminary report. The parties who had not filed their responses were granted further time and the matter was listed on 24.02.2021 for final disposal. During the course of the hearing it was felt by a Bench of three Judges consisting of the Chief Justice of India L. Nageswara Rao J. and S. Ravindra Bhat J. that the matter had to be considered by a larger bench in view of the important issues that arose for determination before this Court The reference of the matter to a larger bench was also 2 | P a g e necessitated due to the submission made by the learned Amici Curiae that certain judicial pronouncements of this Court needed clarification. We have heard learned Amici Curiae Advocates for some States the learned Solicitor General of India Mr. Vikramjit Banerjee learned Additional Solicitor General of India Mr. Ramesh Babu Advocate for the Reserve Bank of India and Dr. Lalit Bhasin Advocate for the Indian Chapter XVII inserted in the Act containing Sections 138 to 142 came into force on 01.04.1989. Dishonour of cheques for insufficiency of funds was made punishable with imprisonment for a term of one year or with fine which may extend to twice the amount of the cheque as per Section 138 Section 139 dealt with the presumption in favour of the holder that the cheque received was for the discharge in whole or in part of any debt or other liability. The defence which may not be allowed in a prosecution under Section 138 of the Act is governed by Section 140. Section 141 pertains to offences by companies. Section 142 lays down conditions under which cognizance of offences may be taken under Section 138. Over the years courts were inundated with complaints filed under 3 | P a g e Section 138 of the Act which could not be decided within a reasonable period and remained pending for a number of This gargantuan pendency of complaints filed under Section 138 of the Act has had an adverse effect in disposal of other criminal cases. There was an imminent need for remedying the situation which was addressed by the Negotiable Instruments Act 2002. Sections 143 to 147 were inserted in the Act which came into force on 06.02.2003. Section 143 of the Act empowers the court to try complaints filed under Section 138 of the Act summarily notwithstanding anything contained in the Code of Criminal Procedure 1973 of Section 143 stipulates that an endeavour be made to conclude the trial within six months from the date of filing of the complaint. Section 144 deals with the mode of service of summons. Section 145 postulates that the evidence of the complainant given by him on affidavit may be read as evidence in any inquiry trial or other proceeding under the Code. Bank’s slip or memo denoting that the cheque has been dishonoured is presumed to be prima facie evidence 4 | P a g e of the fact of dishonour of the cheque according to Section 146. Section 147 makes offences punishable under the Act compoundable. The punishment prescribed under the Act was enhanced from one year to two years along with other amendments made to Sections 138 to 142 with which we are not concerned in this case. The situation has not improved as courts continue to struggle with the humongous pendency of complaints under Section 138 of the Act. The preliminary report submitted by the learned Amici Curiae shows that as on 31.12.2019 the total number of criminal cases pending was 2.31 crores out of which 35.16 lakh pertained to Section 138 of the Act. The reasons for the backlog of cases according to the learned Amici Curiae is that while there is a steady increase in the institution of complaints every year the rate of disposal does not match the rate of institution of complaints. Delay in disposal of the complaints under Section 138 of the Act has been due to reasons which we shall deal with in this order. The learned Amici Curiae identified seven major issues from the responses filed by the State Governments and Union Territories which are as under 5 | P a g e Service of summons Statutory amendment to Section 219 of the Code Summary trials Attachment of bank accounts Applicability of Section 202 of the Code Inherent jurisdiction of the Magistrate Service of summons on the accused in a complaint filed under Section 138 of the Act has been one of the main reasons for the delay in disposal of the complaints. After examining the responses of the various State Governments and Union Territories several suggestions have been given by the learned Amici Curiae for speeding up the service of summons. Some of the suggestions given by him pertain to dishonour slips issued by the bank under Section 146 of the Act disclosing the current mobile number email address and postal address of the drawer of the cheque the details of the drawer being given on the cheque leaf creation of a Nodal Agency for electronic service of summons and generation of a unique number from the dishonour memo. The Union of India and the Reserve Bank of India were directed to submit their responses to the suggestions made by the learned Amici Curiae on these 6 | P a g e aspects. After hearing the learned Solicitor General of India and Mr. Ramesh Babu learned counsel for the Reserve Bank of India on 10.03.2021 it was considered appropriate by this Court to form a Committee with Hon’ble Mr. Justice R.C Chavan former Judge of the Bombay High Court as the Chairman to consider various suggestions that are made for arresting the explosion of the judicial docket. The recommendations made by the learned Amici Curiae relating to attachment of bank accounts to the extent of the cheque amount pre summons mediation and all other issues which are part of the preliminary note and the written submissions of the learned Amici Curiae shall be considered by the aforementioned Committee in addition to other related issues which may arise during such consideration. The Committee is directed to deliberate on the need for creation of additional courts to try complaints under Section 138 of the Act. MECHANICAL CONVERSION OF SUMMARY TRIAL TO SUMMONS TRIAL The learned Amici Curiae submitted that Section 143 of the Act provides that Sections 262 to 265 of the Code shall apply for the trial of all offences under Chapter XVII of the Act 7 | P a g e The second proviso empowers the Magistrate to convert the summary trial to summons trial if he is of the opinion that a sentence of imprisonment exceeding one year may have to be passed or that it is undesirable to try the case summarily after recording reasons. The learned Amici Curiae has brought to the notice of this Court that summary trials are routinely converted to summons trials in a mechanical manner. The suggestions made by him in his preliminary note that the High Courts should issue practice directions to the Trial Courts for recording cogent and sufficient reasons before converting a summary trial to summons trial have been accepted by the High Courts. Section 143 of the Act has been introduced in the year 2002 as a step in aid for quick disposal of complaints filed under Section 138 of the Act. At this stage it is necessary to refer to Chapter XXI of the Code which deals with summary trials. In a case tried summarily in which the accused does not plead guilty it is sufficient for the Magistrate to record the substance of the evidence and deliver a judgment containing a brief statement of reasons for his findings. There is a restriction that the procedure for summary trials under Section 8 | P a g e 262 is not to be applied for any sentence of imprisonment exceeding three months. However Sections 262 to 265 of the Code were made applicable “as far as may be” for trial of an offence under Chapter XVII of the Act notwithstanding anything contained in the Code. It is only in a case where the Magistrate is of the opinion that it may be necessary to sentence the accused for a term exceeding one year that the complaint shall be tried as a summons trial. From the responses of various High Courts it is clear that the conversion by the Trial Courts of complaints under Section 138 from summary trial to summons trial is being done mechanically without reasons being recorded. The result of such conversion of complaints under Section 138 from summary trial to summons trial has been contributing to the delay in disposal of the cases. Further the second proviso to Section 143 mandates that the Magistrate has to record an order spelling out the reasons for such conversion. The object of Section 143 of the Act is quick disposal of the complaints under Section 138 by following the procedure prescribed for summary trial under the Code to the extent possible. The discretion conferred on the Magistrate by the second proviso to Section 143 is to be exercised with due care and caution after recording reasons for converting the 9 | P a g e trial of the complaint from summary trial to summons trial Otherwise the purpose for which Section 143 of the Act has been introduced would be defeated. We accept the suggestions made by the learned Amici Curiae in consultation with the High Courts. The High Courts may issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 from summary trial to summons trial in exercise of power under the second proviso to Section 143 of the Act INQUIRY UNDER SECTION 202 OF THE CODE IN RELATION TO SECTION 145 OF THE ACT Section 202 of the Code confers jurisdiction on the Magistrate to conduct an inquiry for the purpose of deciding whether sufficient grounds justifying the issue of process are made out. The amendment to Section 202 of the Code with effect from 23.06.2006 vide Act 25 of 2005 made it mandatory for the Magistrate to conduct an inquiry before issue of process in a case where the accused resides beyond the area of jurisdiction of the court. 14 SCC 638 10 | P a g e Madhukar Nimbalkar and Anr.2 and Birla Corporation Limited v. Adventz Investments and Holdings Limited Ors.3). There has been a divergence of opinion amongst the High Courts relating to the applicability of Section 202 in respect of complaints filed under Section 138 of the Act Certain cases under Section 138 have been decided by the High Courts upholding the view that it is mandatory for the Magistrate to conduct an inquiry as provided in Section 202 of the Code before issuance of process in complaints filed under Section 138. Contrary views have been expressed in some other cases. It has been held that merely because the accused is residing outside the jurisdiction of the court it is not necessary for the Magistrate to postpone the issuance of process in each and every case. Further it has also been held that not conducting inquiry under Section 202 of the Code would not vitiate the issuance of process if requisite satisfaction can be obtained from materials available on record 11. The learned Amici Curiae referred to a judgment of this Court in K.S. Joseph v. Philips Carbon Black Ltd & Anr.4 where there was a discussion about the requirement of inquiry 23 SCC 528 316 SCC 610 411 SCC 105 11 | P a g e under Section 202 of the Code in relation to complaints filed under Section 138 but the question of law was left open. In view of the judgments of this Court in Vijay DhanukaAbhijit Pawarand Birla Corporationthe inquiry to be held by the Magistrate before issuance of summons to the accused residing outside the jurisdiction of the court cannot be dispensed with. The learned Amici Curiae recommended that the Magistrate should come to a conclusion after holding an inquiry that there are sufficient grounds to proceed against the accused. We are in agreement with the learned Amici. 12. Another point that has been brought to our notice relates to the interpretation of Section 202which stipulates that the Magistrate shall take evidence of the witness on oath in an inquiry conducted under Section 202 for the purpose of issuance of process. Section 145 of the Act provides that the evidence of the complainant may be given by him on affidavit which shall be read in evidence in any inquiry trial or other proceeding notwithstanding anything contained in the Code Section 145of the Act enables the court to summon and examine any person giving evidence on affidavit as to the facts 12 | P a g e contained therein on an application of the prosecution or the accused. It is contended by the learned Amici Curiae that though there is no specific provision permitting the examination of witnesses on affidavit Section 145 permits the complainant to be examined by way of an affidavit for the purpose of inquiry under Section 202. He suggested that Section 202should be read along with Section 145 and in respect of complaints under Section 138 the examination of witnesses also should be permitted on affidavit. Only in exceptional cases the Magistrate may examine the witnesses personally. Section 145 of the Act is an exception to Section 202 in respect of examination of the complainant by way of an affidavit. There is no specific provision in relation to examination of the witnesses also on affidavit in Section 145. It becomes clear that Section 145 had been inserted in the Act with effect from the year 2003 with the laudable object of speeding up trials in complaints filed under Section 138. If the evidence of the complainant may be given by him on affidavit there is no reason for insisting on the evidence of the witnesses to be taken on oath. On a holistic reading of Section 145 along with Section 202 we hold that Section 202 of the Code is inapplicable to complaints under Section 138 in respect of 13 | P a g e examination of witnesses on oath. The evidence of witnesses on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself it is not compulsory that he should examine witnesses. In suitable cases the Magistrate can examine documents for satisfaction as to the sufficiency of grounds for proceeding under Section 202 SECTIONS 219 AND 220 OF THE CODE 13. Section 219 of the Code provides that when a person is accused of more offences than one of the same kind committed within a space of 12 months he may be tried at one trial for a maximum of three such offences. If more than one offence is committed by the same person in one series of acts so committed together as to form the same transaction he may be charged with and tried at one trial according to Section 220. In his preliminary report the learned Amici Curiae suggested that a legislative amendment is required to Section 219 of the Code to avoid multiplicity of proceedings where cheques have been issued for one purpose. In so far as Section 220 of the Code is concerned the learned Amici Curiae submitted that same similar offences as part of the same transaction in one series of acts may be the subject matter of 14 | P a g e one trial. It was argued by the learned Amici Curiae that Section 220of the Code is not controlled by Section 219 and even if the offences are more than three in respect of the same transaction there can be a joint trial. Reliance was placed on a judgment of this Court in Balbir v. State of Haryana Anr.5 to contend that all offences alleged to have been committed by the accused as a part of the same transaction can be tried together in one trial even if those offences may have been committed as a part of a larger conspiracy. 14. The learned Amici Curiae pointed out that the judgment of this Court in Vani Agro Enterprises v. State of Gujarat Ors.6 needs clarification. In Vani Agrothis Court was dealing with the dishonour of four cheques which was the subject matter of four complaints. The question raised therein related to the consolidation of all the four cases. As only three cases can be tried together as per Section 219 of the Code this Court directed the Trial Court to fix all the four cases on one date. The course adopted by this Court in Vani Agrois appropriate in view of the mandate of Section 219 of the Code Hence there is no need for any clarification especially in view 51 SCC 285 6 2019SCJ 238 15 | P a g e of the submission made by the learned Amici that Section 219 be amended suitably. We find force in the submission of the learned Amici Curiae that one trial for more than three offences of the same kind within the space of 12 months in respect of complaints under Section 138 can only be by an amendment To reduce the burden on the docket of the criminal courts we recommend that a provision be made in the Act to the effect that a person can be tried in one trial for offences of the same kind under Section 138 in the space of 12 months notwithstanding the restriction in Section 219 of the Code. 15. Offences that are committed as part of the same transaction can be tried jointly as per Section 220 of the Code What is meant by “same transaction” is not defined anywhere in the Code. Indeed it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any court which has embarked upon the difficult task of defining the expression. But it is generally 16 | P a g e thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts it may be possible to infer that they form part of the same transaction. It is however not necessary that every one of these elements should co exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction7. There is no ambiguity in Section 220 in accordance with which several cheques issued as a part of the same transaction can be the subject matter of one trial. 16. The learned Amici Curiae have brought to our notice that separate complaints are filed under Section 138 of the Act for dishonour of cheques which are part of the same transaction Undue delay in service of summons is the main cause for the disproportionate accumulation of complaints under Section 138 before the courts. The learned Amici suggested that one way of reducing the time spent on service of summons is to treat service of summons served in one complaint pertaining to a transaction as deemed service for all complaints in relation to the said transaction. We are in agreement with the suggestion 7 State of Andhra Pradesh v. Cheemalapati Ganeswara Rao & Anr. 3 SCR 297 17 | P a g e made by the learned Amici Curiae. Accordingly the High Courts are requested to issue practice directions to the Trial Courts to treat service of summons in one complaint forming part of a transaction as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction. INHERENT POWERS OF THE MAGISTRATE In K. M. Mathew v. State of Kerala & Anr.8 this Court dealt with the power of the Magistrate under Chapter XX of the Code after the accused enters appearance in response to the summons issued under Section 204 of the Code. It was held that the accused can plead before the Magistrate that the process against him ought not to have been issued and the Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. This Court was of the opinion that there is no requirement of a specific provision for the Magistrate to drop the proceedings and as the order issuing the process is an interim order and not a judgment it can be varied or recalled. The observation in the case of K. M. Mathew supra) that no specific provision of law is required for recalling 81 SCC 217 18 | P a g e an erroneous order of issue of process was held to be contrary to the scheme of the Code in Adalat Prasad v. Rooplal Jindal and Others9. It was observed therein that the order taking cognizance can only be subject matter of a proceeding under Section 482 of the Code as subordinate criminal courts have no inherent power. There is also no power of review conferred on the Trial Courts by the Code. As there is no specific provision for recalling an erroneous order by the Trial Court the judgment in the case of K. M. Mathewwas held to be not laying down correct law. The question whether a person can seek discharge in a summons case was considered by this Court in Subramanium Sethuraman v. State of Maharashtra & Anr.10. The law laid down in Adalat Prasad supra) was reiterated. It was contended by learned Amici Curiae that a holistic reading of Sections 251 and 258 of the Code along with Section 143 of the Act should be considered to confer a power of review or recall of the issuance of process by the Trial Court in relation to complaints filed under Section 138 of the Act. He referred to a judgment of this Court in Meters and 97 SCC 338 1013 SCC 324 19 | P a g e Instruments Private Limited and Another v. Kanchan Mehta11 which reads as follows “While it is true that in Subramanium Sethuraman v. State of Maharashtra this Court observed that once the plea of the accused is recorded under Section 252 CrPC the procedure contemplated under Chapter XX CrPC has to be followed to take the trial to its logical conclusion the said judgment was rendered as per statutory provisions prior to the 2002 Amendment. The statutory scheme post 2002 Amendment as considered in Mandvi Coop. Bank and J.V Baharuni has brought about a change in law and it needs to be recognised. After the 2002 Amendment Section 143 of the Act confers implied power on the Magistrate to discharge the accused if the complainant is compensated to the satisfaction of the court where the accused tenders the cheque amount with interest and reasonable cost of litigation as assessed by the court. Such an interpretation was consistent with the intention of legislature. The court has to balance the rights of the complainant and the accused and also to enhance access to justice. Basic object of the law is to enhance credibility of the cheque transactions by providing speedy remedy to the complainant without intending to punish the drawer of the cheque whose conduct is reasonable or where compensation to the complainant meets the ends of justice. Appropriate order can be passed by the court in exercise of its inherent power under Section 143 of the Act which is different from compounding by consent of parties. Thus Section 258 CrPC which enables proceedings to be stopped in a summons case even though strictly speaking is not applicable to complaint cases since the provisions of CrPC are applicable “so far as may be” the principle of the said provision is applicable to a complaint case covered by Section 143 of the Act which contemplates applicability of summary trial provisions as far as possible i.e. with such deviation as may be necessary for speedy trial in the context.” 111 SCC 560 20 | P a g e In Meters and Instruments this Court was of the opinion that Section 143 of the Act confers implied power on the Magistrate to discharge the accused if the complainant is compensated to the satisfaction of the court. On that analogy it was held that apart from compounding by the consent of the parties the Trial Court has the jurisdiction to pass appropriate orders under Section 143 in exercise of its inherent power. Reliance was placed by this Court on Section 258 of the Code to empower the Trial Courts to pass suitable orders. 20. Section 143 of the Act mandates that the provisions of summary trial of the Code shall apply “as far as may be” to trials of complaints under Section 138. Section 258 of the Code empowers the Magistrate to stop the proceedings at any stage for reasons to be recorded in writing and pronounce a judgment of acquittal in any summons case instituted otherwise than upon complaint. Section 258 of the Code is not applicable to a summons case instituted on a complaint. Therefore Section 258 cannot come into play in respect of the complaints filed under Section 138 of the Act. The judgment of this Court in Meters and Instrumentsin so far as it conferred 21 | P a g e power on the Trial Court to discharge an accused is not good law. Support taken from the words “as far as may be” in Section 143 of the Act is inappropriate. The words “as far as may be” in Section 143 are used only in respect of applicability of Sections 262 to 265 of the Code and the summary procedure to be followed for trials under Chapter XVII. Conferring power on the court by reading certain words into provisions is impermissible. A judge must not rewrite a statute neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy making might wisely suggest construction must eschew interpolation and evisceration. He must not read in by way of creation12. The Judge’s duty is to interpret and apply the law not to change it to meet the Judge’s idea of what justice requires13. The court cannot add words to a statute or read words into it which are not there14. 21. A close scrutiny of the judgments of this Court in Adalat Prasad and Subramanium Sethuraman 1 All ER 529SCC 323 22 | P a g e above this Court in its anxiety to cut down delays in the disposal of complaints under Section 138 has applied Section 258 to hold that the Trial Court has the power to discharge the accused even for reasons other than payment of compensation However amendment to the Act empowering the Trial Court to reconsider recall summons may be considered on the recommendation of the Committee constituted by this Court which shall look into this aspect as well. 22. Another submission made by the learned Amici Curiae relates to the power of the Magistrate under Section 322 of the Code to revisit the order of issue of process if he has no jurisdiction to try the case. We are in agreement with the learned Amici Curiae that in case the Trial Court is informed that it lacks jurisdiction to issue process for complaints under Section 138 of the Act the proceedings shall be stayed and the case shall be submitted to the Chief Judicial Magistrate or such other Magistrate having jurisdiction. 23. Though we have referred all the other issues which are not decided herein to the Committee appointed by this Court on 10.03.2021 it is necessary to deal with the complaints under Section 138 pending in Appellate Courts High Courts and 23 | P a g e in this Court. We are informed by the learned Amici Curiae that cases pending at the appellate stage and before the High Courts and this Court can be settled through mediation. We request the High Courts to identify the pending revisions arising out of complaints filed under Section 138 of the Act and refer them to mediation at the earliest. The Courts before which appeals against judgments in complaints under Section 138 of the Act are pending should be directed to make an effort to settle the disputes through mediation 24. The upshot of the above discussion leads us to the following conclusions: 1) The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial 2) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused when such accused resides beyond the territorial jurisdiction of the court. 24 | P a g e 3) For the conduct of inquiry under Section 202 of the Code evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses 4) We recommend that suitable amendments be made to the Act for provision of one trial against a person for multiple offences under Section 138 of the Act committed within a period of 12 months notwithstanding the restriction in Section 219 of the 5) The High Courts are requested to issue practice directions to the Trial Courts to treat service of summons in one complaint under Section 138 forming part of a transaction as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said 6) Judgments of this Court in Adalat Prasadand Subramanium Sethuramanhave interpreted 25 | P a g e the law correctly and we reiterate that there is no inherent power of Trial Courts to review or recall the issue of summons. This does not affect the power of the Trial Court under Section 322 of the Code to revisit the order of issue of process in case it is brought to the court’s notice that it lacks jurisdiction to try the complaint. 7) Section 258 of the Code is not applicable to complaints under Section 138 of the Act and findings to the contrary in Meters and Instrumentsdo not lay down correct law. To conclusively deal with this aspect amendment to the Act empowering the Trial Courts to reconsider recall summons in respect of complaints under Section 138 shall be considered by the Committee constituted by an order of this Court dated 10.03.2021. 8) All other points which have been raised by the Amici Curiae in their preliminary report and written submissions and not considered herein shall be the subject matter of deliberation by the aforementioned Committee. Any other issue relating to expeditious 26 | P a g e disposal of complaints under Section 138 of the Act shall also be considered by the Committee 25. List the matter after eight weeks. Further hearing in this matter will be before 3 Judges Bench. 26. We place on record our appreciation for the valuable assistance rendered by Mr. Sidharth Luthra learned Senior Counsel and Mr. K. Parameshwar learned Counsel as Amici Curiae. S. A. BOBDE L. NAGESWARA RAO B. R. GAVAI A. S. BOPANNA 27 | P a g e S. RAVINDRA BHAT ] New Delhi April 16 2021

In any case any objection same in nature cannot be raised or heard twice and adjudicated again:  High Court of Delhi.

In any case any objection same in nature cannot be raised or heard twice and adjudicated again:  High Court of Delhi. Any same objection of a case cannot be heard twice as res-judicata, even in the scenario of res-judicata Single Judge can be read in evidence before the Labour Court, and can be considered even at the preliminary stage as a judgment which is of relevance as held by the Hon’ble High Court of Delhi through the learned bench led by JUSTICE PRATIBHA M. SINGH in the case of PRATAP SINGH V. JASPAL KAUR PUBLIC SCHOOL (W.P(C) 9182/2019 & CM APPLS. 525/2020, 526/2020). The present petitions have been filed challenging the impugned orders dated 3rd May 2019, passed by the Presiding Officer, Labor Court, New Delhi, vide which, the applications filed by the Management for rejecting and the claims of the workmen have been dismissed as not maintainable. Counsel for the Petitioners submits that the Petitioners have been non-suited on the ground of res-judicata. He submits that the Labor Court could not have considered the said plea of res-judicata at the initial stage. Ld. Counsel relies upon the judgment of the Supreme Court in SRIHARI HANUMANDAS TOTALA V. HEMANT VITHAL KAMAT AND ORS., to argue that res-judicata ought to be a plea which should have been considered after all the pleadings are complete and issues are framed in the matter before the Labour Court. Ld. Counsel appearing for the Respondent-School has, on the other hand, taken the Court through the previous round of proceedings before the Education Tribunal and the resultant orders passed in the writ petition titled RAMPAL SINGH V. THE DIRECTOR OF EDUCATION AND ANR., to argue that the question of retrenchment under Section 25F of the Industrial Disputes Act, 1947 1947, has already been adjudicated by this Court. He submitted that the same ground which is sought to be alleged in these writ petitions, has already been raised, considered and decided. According to him, the Petitioners are attempting to obtain a second chance in respect of the same very objections to argue that the retrenchment is illegal, and the Labour Court has rightly held that the claims of the Workman are not maintainable. After the perusal of the facts and arguments, the Hon’ble Court held, “In any event, the liberty to withdraw, which was granted to the Appellants, was to be exercised in accordance with law. The order passed by the ld. Single Judge is clear and categorical to the effect that there was complete compliance of Section 25F of the Act. They were given proper notice and all the requirements were complied with. In fact, the pleadings of the Petitioners have also been extracted to show the fact that compliance of 25F of the Act has been done, and the same was even not denied by the Petitioners herein. Under these circumstances, in view of the order of the ld. Single Judge of this Court dated 19th May 2017. the retrenchment having been held to be in compliance with Section 25F of the Act, the present petitions challenging the impugned order would not be maintainable. The impugned order is correct and does not warrant any interference.”

A 11 TO A 22IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 12th November 2021 PRATAP SINGH W.P.(C) 9182 2019 & CM APPLs. 525 2020 526 2020 Through: Mr. Yashaswi S.K. Chocksey Adv. ..... Petitioner for Mr. Mukesh Kumar Advocate. JASPAL KAUR PUBLIC SCHOOL AND ANR. ..... Respondents A 12 RAMPAL SINGH Through: Mr. Anil Bhat Advocate. W.P.(C) 9183 2019 Through: Mr. Yashaswi S.K. Chocksey Adv. ..... Petitioner for Mr. Mukesh Kumar Advocate. JASPAL KAUR PUBLIC SCHOOL AND ANR. ..... Respondents A 13 MOHINDER SINGH Through: Mr. Anil Bhat Advocate. W.P.(C) 9184 2019 ..... Petitioner Through: Mr. Yashaswi S.K. Chocksey Adv. for Mr. Mukesh Kumar Advocate. JASPAL KAUR PUBLIC SCHOOL AND ANR. ..... Respondents A 14 VIJAY KUMAR PANDEY Through: Mr. Anil Bhat Advocate. W.P.(C) 9186 2019 Through: Mr. Yashaswi S.K. Chocksey Adv. ..... Petitioner for Mr. Mukesh Kumar Advocate. MATA JAI KAUR PUBLIC SCHOOL AND ANR. ..... Respondents A 15 VED PAL Through: Mr. Anil Bhat Advocate. W.P.(C) 9187 2019 Through: Mr. Yashaswi S.K. Chocksey Adv. ..... Petitioner W.P.(C) 9182 2019 and connected matters Digitally Signed By:DevanshuSigning Date:14.11.202113:05:05Signature Not Verified for Mr. Mukesh Kumar Advocate. JASPAL KAUR PUBLIC SCHOOL AND ANR. A 16 JITENDER KUMAR Through: Mr. Anil Bhat Advocate. W.P.(C) 9188 2019 ..... Respondents Through: Mr. Yashaswi S.K. Chocksey Adv. ..... Petitioner for Mr. Mukesh Kumar Advocate. JASPAL KAUR PUBLIC SCHOOL AND ANR. A 17 FAUJA SINGH Through: Mr. Anil Bhat Advocate. W.P.(C) 9189 2019 Through: Mr. Yashaswi S.K. Chocksey Adv. ..... Respondents ..... Petitioner for Mr. Mukesh Kumar Advocate. MATA JAI KAUR PUBLIC SCHOOL AND ANR. ..... Respondents A 18 RAM BARAN Through: Mr. Anil Bhat Advocate. W.P.(C) 9190 2019 Through: Mr. Yashaswi S.K. Chocksey Adv. ..... Petitioner for Mr. Mukesh Kumar Advocate. MATA JAI KAUR PUBLIC SCHOOL AND ANR. .....Respondents A 19 GHANSHYAM JHA Through: Mr. Anil Bhat Advocate. W.P.(C) 9191 2019 Through: Mr. Yashaswi S.K. Chocksey Adv. ..... Petitioner for Mr. Mukesh Kumar Advocate. MATA JAI KAUR PUBLIC SCHOOL AND ANR. ..... Respondents A 20 Through: Mr. Anil Bhat Advocate. W.P.(C) 9194 2019 W.P.(C) 9182 2019 and connected matters Digitally Signed By:DevanshuSigning Date:14.11.202113:05:05Signature Not Verified NARENDER SINGH ..... Petitioner Through: Mr. Yashaswi S.K. Chocksey Adv. for Mr. Mukesh Kumar Advocate. JASPAL KAUR PUBLIC SCHOOL AND ANR. ..... Respondents A 21 RADHEY SHYAM YADAV Through: Mr. Anil Bhat Advocate. W.P.(C) 9195 2019 Through: Mr. Yashaswi S.K. Chocksey Adv. ..... Petitioner for Mr. Mukesh Kumar Advocate. JASPAL KAUR PUBLIC SCHOOL AND ANR. ..... Respondents A 22 BRIJPAL SAINI Through: Mr. Anil Bhat Advocate. W.P.(C) 9196 2019 Through: Mr. Yashaswi S.K. Chocksey Adv. ..... Petitioner for Mr. Mukesh Kumar Advocate. JASPAL KAUR PUBLIC SCHOOL AND ANR. ..... Respondents JUSTICE PRATHIBA M. SINGH Through: Mr. Anil Bhat Advocate. Prathiba M. Singh J.This hearing has been done through video conferencing. 2. The present petitions have been filed challenging the impugned orders dated 3rd May 2019 passed by the Presiding Officer Labour Court Rouse Avenue Court Complex New Delhi vide which the applications filed by the Management for rejecting the claim of the Workmen have been allowed and the claims of the workmen have been dismissed as not maintainable. Ld. counsel for the Petitioners submits that the Petitioners have been non suited on the ground of res judicata. He submits that the Labour Court could not have considered the said plea of res judicata at the initial stage. W.P.(C) 9182 2019 and connected matters Digitally Signed By:DevanshuSigning Date:14.11.202113:05:05Signature Not Verified Ld. Counsel relies upon the judgment of the Supreme Court in Srihari Hanumandas Totala v. Hemant Vithal Kamat and Ors.to argue that res judicata ought to be a plea which should have been considered after all the pleadings are complete and issues are framed in the matter before the Labour Court. Ld. Counsel appearing for the Respondent School has on the other hand taken the Court through the previous round of proceedings before the Education Tribunal and the resultant orders passed in the writ petition bearing W.P.(C) 4335 2017 titled Rampal Singh v. The Director of Education and Anr. and the consequent LPA bearing LPA No. 611 2017 to argue that the question of retrenchment under Section 25F of the Industrial Disputes Act 1947 1947 has already been adjudicated by this Court. He submits that the same ground which is sought to be alleged in these writ petitions has already been raised considered and decided. According to him the Petitioners are attempting to obtain a second chance in respect of the same very objections to argue that the retrenchment is illegal and the Labour Court has rightly held that the claims of the Workman are not maintainable. 5. Heard ld. counsels for the parties and perused the record. A perusal of the ld. Single Judge’s order dated 19th May 2017 in W.P.(C) 4335 2017 titled Rampal Singh v. The Director of Education and Anr. and connected matters which involve the very same Petitioners shows that the issue considered by the ld. Single Judge in that case was as to whether there was proper adherence to provisions of Section 25F of the Act prior to the retrenchment of the Petitioners. On this issue the findings of the ld. Single Judge are as under: W.P.(C) 9182 2019 and connected matters Digitally Signed By:DevanshuSigning Date:14.11.202113:05:05Signature Not Verified “4. The only plea urged by the learned counsel for the petitioners is that the respondents have not complied with the provisions of Section 25F(c) which reads as under: c) notice in the prescribed manner is served on the appropriate Government of ID Act but appellant come under Section 2(h) 8(2) and 10 of the Delhi School Education Act 1972 ". 7. I note that in reply to the Appeal before the Delhi School Tribunal the School respondent No.2 has contended as under XXXX XXXX The respondent No.2 strictly complied with all the requirements in respect of the retrenchment for issuance of the necessary notice to the Appropriate Government. XXXX XXXX XXXX XXXX" 8. There is no rebuttal to this stand of the respondent No.2 in rejoinder wherein the petitioners have only stated as under That the contents of para 7 of the preliminary objection are wrong and denied. However the W.P.(C) 9182 2019 and connected matters Digitally Signed By:DevanshuSigning Date:14.11.202113:05:05Signature Not Verified respondent No.2 with a malafide intention made all the driver including the appellant on the road by retrenchment they even did not follow the Rule and Regulation of DSE Act. " 9. In view of the aforesaid it must be held that Section 25F(c) has been followed. I may also state here on a specific query to the learned counsel for the petitioners that whether requirement under Section 25F(a) and Section 25F(b) have been complied with by the respondent No.2 the answer was in the affirmative. In other words the compensation has been rightly given to the petitioners with proper notice. The following are the details of the compensation received by each of the petitioners in this batch of writ petitions: S.NO. W.P.(C) 4308 2017 May 31 2016 4335 2017 May 31 2016 4370 2017 May 31 2016 4314 2017 May 31 2016 4307 2017 May 31 2016 4317 2017 May 31 2016 4319 2017 May31 2016 4344 2017 May 31 2016 4328 2017 May 31 2016 4325 2017 May 31 2016 Rs.9 85 349 Rs. 13 39 883 Rs.7 21 560 Rs.5 93 411 Rs.7 45 050 Rs. 10 53 676 Rs.6 29 340 Rs.11 11 160 Rs.7 44 180 Rs.7 49 994 10. I may also note the learned counsel for the petitioners has referred to the judgment of the Supreme Court in the case reported as 6 SCC 541 Raj Kumar v. Directorate of Education to contend that provisions of Section 25F need to be followed scrupulously. There is no dispute on the said proposition. As concluded by the Delhi School Tribunal that provisions of Section 25F have been followed with which I concur 1 do not see any merit in the only plea urged by the learned counsel for the petitioners. The writ petitions are accordingly dismissed. No costs.” 6. This judgment was carried in appeal before the Division bench where vide order dated 15th September 2017 the LPA bearing LPA No. 611 2017 W.P.(C) 9182 2019 and connected matters Digitally Signed By:DevanshuSigning Date:14.11.202113:05:05Signature Not Verified was withdrawn by the Petitioners and liberty as sought was granted in the following terms. “It is pointed out that the limited ground urged in this appeal is that the learned Single Judge despite noticing that the provisions of Section 25 F(c) of The Industrial Disputes Act 1947 have not been complied with and further noticing that the pleadings in that regard did not support arguments proceeded to render findings. It is submitted therefore that the appellant workman may be permitted to withdraw the present appeal with liberty to pursue remedy in accordance with law under The Industrial Disputes Act 1947. are accordingly dismissed as withdrawn.” Liberty granted. This appeal and pending application 7. A perusal of the above paragraph of the order of the Division Bench shows that first the submission of ld. Counsel for the Appellants therein was that the ld. Single Judge had held that provisions of Section 25F of the ID Act had not been complied with whereas in fact the ld. Single Judge holds the contrary which is clear from the reading of the first sentence of paragraph 9 of the order of the ld. Single Judge. In any event the liberty to withdraw which was granted to the Appellants was to be exercised in accordance with law. 8. A perusal of the order of the ld. Single Judge dated 19th May 2017 shows that the Petitioners’ counsel raised the issue regarding Section 25F compliance in the writ petition. The same was considered by the Court. The order is clear and categorical to the effect that there was complete compliance of Section 25F of the Act. The ld. Single Judge has given clear findings to the effect that compensation has been paid and the amounts of the compensation have also been mentioned. They were given proper notice and all the requirements were complied with. In fact the pleadings of the W.P.(C) 9182 2019 and connected matters Digitally Signed By:DevanshuSigning Date:14.11.202113:05:05Signature Not Verified Petitioners have also been extracted to show the fact that compliance of 25F of the Act has been done and the same was even not denied by the Petitioners herein. The Labour Court in the impugned order has held that once the ld. Single Judge had held that the Section 25F of the Act is duly complied with the claims are not maintainable. The relevant findings of the Labour Court are as under: “…The fact remains the Hon ble Single Judge of the Hon ble High Court of Delhi has given a categorical and detailed finding that the compliance under Section 25F of the Industrial Disputes Act 1947 has been duly followed by the management. Keeping in view all these facts and circumstances this court cannot pass an award with a finding on the retrenchment when the same has already been decided and upheld by the Hon ble Single Judge of the Hon’ble High Court of Delhi. Further the said finding has not been set aside by the Hon’ble Division Bench of the Hon ble High Court of Delhi and has thus attained finality and cannot be re agitated before this court. Further this court is also in agreement with the judgment relied upon by Ld. AR for management i.e. Chairman and Managing Director The Fertilizers And Chemicals Tranvancore Ltd. & Anr. Vs. General Secretary FACT Employees Association & Ors.and since the issue in question has already been decided by a competent court i.e. Ld. Delhi School Tribunal the claim of the claimant also suffers from the Principals of res judicata and the claimant cannot be permitted in law to re agitate the same issue before this court. Therefore keeping in view all these facts and circumstances the application of the management is allowed is rejected being not the claim of the claimant Once the ld. Single Judge had held that there was compliance of Section 25F of the Act the Labour Court has inevitably followed the said judgment. The W.P.(C) 9182 2019 and connected matters Digitally Signed By:DevanshuSigning Date:14.11.202113:05:05Signature Not Verified Labour Court rightly holds that the finding of the ld. Single Judge has attained finality. 10. In respect of the submission of ld. Counsel for the Petitioner that the plea of res judicata cannot be considered at this stage by the Labour Court the said plea does not hold weight and would not be applicable when admittedly the Petitioners themselves had availed of their remedies under the Delhi School Education Act 1973 and had urged the contention of non compliance of Section 25F of the Act before the Court dealing with the writ petition. The same objection cannot be raised twice heard twice and adjudicated again. 11. Even if the same is not treated as res judicata the judgment of the ld. Single Judge can be read in evidence before the Labour Court and can be considered even at the preliminary stage as a judgment which is of relevance. This Court is of the opinion that the Petitioners after having accepted the compensation paid intend to merely take a chance firstly before the Education Tribunal and thereafter before the Labour Court. Such an approach cannot be permitted. 12. Under these circumstances in view of the order of the ld. Single Judge of this Court dated 19th May 2017 the retrenchment having been held to be in compliance with Section 25F of the Act the present petitions challenging the impugned order would not be maintainable. The impugned order is correct and does not warrant any interference. 13. All the petitions are dismissed with no orders as to costs. PRATHIBA M. SINGH NOVEMBER 12 2021 dk Ak W.P.(C) 9182 2019 and connected matters Digitally Signed By:DevanshuSigning Date:14.11.202113:05:05Signature Not Verified

While taking cognizance, the court is not required to consider the defence version nor it is required to evaluate the merits of the materials or evidence of the complainant: Jharkhand High Court

At the stage of taking cognizance, the concerned court is not required to consider the defence version or materials or arguments in that respect nor is it required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not. The judgement was passed by the High Court of Jharkhand in the case of Satish Kumar Singh v. The Union of India [Cr.M.P. No.1058 of 2020] by Single Bench consisting of Hon’ble Justice Anil Kumar Choudhary. The facts of the case are that the accused persons respectively being the member, examination controller-cum-secretary entered into a criminal conspiracy and fraudulently manipulated the merit list of the selection process of lecturers for the 3 universities of Jharkhand through JET,2006. After completion of investigation of the case, they were booked under Sections 120 B, 201, 420, 468, 471 of the IPC and under Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988. The learned counsel for the petitioner submitted that the petitioner was not named in the FIR and the allegation against the petitioner is false. It is then submitted that though after being appointed as a lecturer the petitioner has become a Public Servant no sanction for prosecution has been obtained for prosecuting the petitioner. It is next submitted that none of the offences alleged is made out against the petitioner. It is also submitted that the order taking cognizance is cryptic and nonspeaking hence it is submitted that the impugned order be set aside. The learned counsel for the respondent on the other hand submitted that the average marks given by the experts in the interview to the petitioner was worked out at 26.5 and this average mark of 26.5 was calculated being the mean of the different marks given by different experts and was arrived at after manipulating the initially given 26 marks by one of the experts to 36. Hence there is no merit in the contention of the petitioner that no illegality was done in his selection process. It is next submitted by the counsel that the impugned order taking cognizance categorically reflects application of judicial mind on the part of the learned trial court and there is no illegality in the impugned order. It is lastly submitted that this petition being without any merit be dismissed. While relying on the supreme court judgment State of Karnataka & Another v. Pastor P. Raju, it was held that “It is a settled principle of law that cognizance is regarding the offence and not the offender. Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence. Taking cognizance of an offence is not the same thing as issuance of process.”

Cr.M.P. No.10520 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.10520 HON BLE MR. JUSTICE ANIL KUMAR CHOUDHARY Against the Order dated 30.09.2019 passed by learned A.J.C. XVI cum Special Judge C.B.I. Ranchi in R.C. Case No.04(A) 2013 R) Dr. Satish Kumar Singh aged about 60 yrs. Son of Late Janardan Prasad Singh resident of L 12 Harmu Housing Colony Saket Vihar P.O. & P.S. Argora District. Ranchi …. Petitioner The Union of India through C.B.I. For the Petitioner Mr. Rajiv N. Prasad Advocate .... Opposite Party For the C.B.I. Mr. B. K. Prasad Advocate C.A.V. ON 18.01.2021 Anil Kumar Choudhary J. PRONOUNCED ON 17.04.2021 Heard the parties through video conferencing. This Criminal Miscellaneous Petition has been filed with a prayer for quashing the entire criminal proceeding including the Order dated 30.09.2019 taking cognizance against the petitioner for the offences punishable under Section 120 B 201 420 468 471 of the Indian Penal Code and under Section 13 read with Section 13 (d) of the Prevention of Corruption Act in R.C. Case No.04(A) 2013 R passed by learned A.J.C. XVI cum Special Judge C.B.I. Ranchi. The brief facts of the case is that the co accused persons respectively being the member examination controller cum secretary of the Jharkhand Public Service Commission thus public servants along with a private person of M s. Global Informatics and inter alia the petitioner entered into a criminal conspiracy and in pursuance of the said criminal Cr.M.P. No.10520 conspiracy the public servants in abuse of their respective official positions dishonestly and fraudulently manipulated allowed manipulate the merit list assessment charts of the selection process of lecturers for the 3 universities of Jharkhand through Jharkhand Eligibility Test 2006 to extend undue benefit to their preferred candidates including the petitioner and inter alia dishonestly and fraudulently the petitioner was declared qualified even though the petitioner got marks less than the minimum marks required for the said examination and for this purpose marks in the assessment charts of the petitioner was increased to extend undue favour to the petitioner which facilitated the selection of the petitioner as a lecturer of Psychology. The specific allegation against the petitioner is that the petitioner was declared selected on the basis of 54 marks for his career and 26.5 marks for interview i.e. total 80.5 marks. The Central Forensic Science Laboratory deciphered that the petitioner was initially given 26 marks by one expert which was manipulated to 36 in the Assessment Chart and as such but for the said manipulation the petitioner was only entitled to get 78 whereas the minimum marks required was 80 and only because of the said manipulation done in criminal conspiracy with the co accused public servants the petitioner could succeed in getting selected as a lecturer in Psychology. The co accused member of Jharkhand Public Service Commission who was the chairman of the interview board in respect of the interview of the petitioner for the said purpose in criminal conspiracy the petitioner did the manipulation. After completion of investigation of the case the Central Bureau of Investigation submitted charge sheet inter alia finding that the petitioner along with the co accused persons having committed the offences punishable under Sections 120 B 201 420 468 471 of the Indian Penal Code and under Section 13read with Section 13(d) of the Prevention of Corruption Act 1988. The learned trial court on perusal of the relevant documents found that offences punishable under Sections 120 B 201 420 468 471 of the Indian Penal Code and under Section 13 read with Section 13 d) of the Prevention of Corruption Act is made out inter alia against the Cr.M.P. No.10520 petitioner and vide order dated 30.09.2019 took cognizance for the said offences inter alia against the petitioner. It is submitted by the learned counsel for the petitioner that the petitioner was not named in the FIR and the allegation against the petitioner is false. It is then submitted that though after being appointed as a lecturer the petitioner has become a Public Servant but no sanction for prosecution has been obtained for prosecuting the petitioner. It is next submitted that none of the offences alleged is made out against the petitioner. It is also submitted that the order taking cognizance is cryptic and nonspeaking hence it is submitted that the impugned order be set The learned counsel for the petitioner relied upon the judgment of Hon’ble Supreme Court of India in the case of Sunil Bharti Mittal v. CBI 2015) 4 SCC 609 paragraph 49 of which reads as under: “49. Cognizance of an offence and prosecution of an offender are two different things. Section 190 of the Code empowered taking cognizance of an offence and not to deal with offenders. Therefore cognizance can be taken even if offender is not known or named when the complaint is filed or FIR registered. Their names may transpire during investigation or The learned counsel for the petitioner next relied upon the judgment of the Hon’ble Supreme Court of India in the case of State of W.B. & Another v. Mohd. Khalid & Others 1 SCC 684 paragraph 44 of which reads as under: “44. Cognizance is defined in Wharton’s Law Lexicon 14th Edn. at page 209. It reads: “Cognizance knowledge upon which a judge is bound to act without having it proved in evidence: as the public statutes of the realm the ancient history of the realm the order and course of proceedings in Parliament the privileges of the House of Commons the existence of war with a foreign State the several seals of the King the Supreme Court and its jurisdiction and many other things. A judge is not bound to take cognizance of current events however notorious nor of the law of other It has thus reference to the hearing and determination of the case in connection with an offence. By the impugned judgment the High Court has quashed the orders of sanction and the Designated Court taking cognizance in the matter.” Cr.M.P. No.10520 The learned counsel for the petitioner further relied upon the order of a co ordinate Bench of this court in the case of Amresh Kumar Dhiraj and Others vs. State of Jharkhand and Another reported in 2019 SCC OnLine Jhar 2775 the paragraphs 10 14 and 22 of which reads as under : “10. The word “cognizance” is not defined in the Code of Criminal Procedure. In the case of “S.K. Sinha Chief Enforcement Officer v. Videocon International Ltd. reported in2 SCC 492” the Hon ble Supreme Court in Para 19 has held as follows:— “19. The expression ‘cognizance’ has not been defined in the Code. But the wordis of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means ‘become aware of’ and when used with reference to a court or a Judge it cannot ‘to take notice of judicially’. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by “14. It is clear that it is not necessary to pass a detail order giving detail reasons while taking cognizance. The order taking cognizance should only reflect application of judicial mind. If the Magistrate after going through the complaint petition and the statements of the other witnesses or after going through the FIR case diary and charge sheet or the complaint as the case may be comes to a conclusion that the offence is made out he is bound to take cognizance of the offence. The order should reflect application of judicial mind to the extent that from the FIR the case diary or complaint offence is made out.” “22. In the case of “Sunil Bharti Mittal v. CBI reported in4 SCC 609” the Hon ble Supreme Court has held that an opinion to proceed further against the accused is to be stated in the order itself. Further in the case of “Anil Kumar v. M.K. Aiyappa reported in10 SCC 705” at para 11 the Hon ble Supreme Court while dealing with the scope of Section 156(3) Cr.P.C. has held that the application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint documents and heard the complainant as such as reflected in the order will not be sufficient. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused though detailed reasons need not to be given. The proper satisfaction should be recorded by the Judge.”It is then submitted by the learned counsel for the petitioner that the impugned order being not sustainable in law be set aside and the entire criminal proceeding against the petitioner be quashed. The learned counsel for the Central Bureau of Investigation on the other hand submitted that the average marks given by the experts in the interview to the petitioner was worked out at 26.5 and this average mark of 26.5 was calculated being the mean of the different marks given by different experts and was arrived at after manipulating the initially given 26 marks by one of the experts to 36. Hence there is no merit in the contention of the petitioner that no illegality was done in his selection Cr.M.P. No.10520 process. It is then submitted by the learned counsel for the Central Bureau of Investigation that as at the time of his selection when the offence was committed the petitioner was not a Public Servant hence no sanction for prosecution is required for prosecution of the petitioner. It is next submitted by the learned counsel for the Central Bureau of Investigation impugned order taking cognizance categorically reflects application of judicial mind on the part of the learned trial court and there is no illegality in the impugned order. It is lastly submitted that this petition being without any merit be dismissed. 10. Having heard the submissions made at the Bar and after going through the material in the record it is crystal clear that this a clear cut case against the petitioner that the petitioner in criminal conspiracy with the co accused public servant member and controller of examinations of the Jharkhand Public Service Commission got the marks awarded in the interview by one of the experts manipulated from 26 to 36 so as to bring the average of the marks given by the experts to 26.5. 11. It is a settled principle of law that cognizance is in regard to the offence and not the offender. At the stage of taking cognizance the court concerned is not required to consider the defence version or materials or arguments in that respect nor is it required to evaluate the merits of the materials or evidence of the complainant because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not. Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence. Taking cognizance of an offence is not the same thing as issuance of process as has been observed by the Hon’ble Supreme Court of India in the case of State of Karnataka & Another v. Pastor P. Raju 6 SCC 728 paragraphs 10 and 13 of which read as under: 10. Several provisions in Chapter XIV of the Code of Criminal Procedure use the word “cognizance”. The very first section in the said Chapter viz. Section 190 lays down how cognizance of offences will be taken by a Magistrate. However the word “cognizance” has not been defined in the Code of Criminal Procedure. The dictionary meaning of the word “cognizance” is — “judicial hearing of a matter”. The meaning of the Cr.M.P. No.10520 word has been explained by judicial pronouncements and it has acquired a definite connotation. The earliest decision of this Court on the point is R.R. Chari v. State of U.P. wherein it was held:“… ‘taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence.” 13. It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.It is needless to mention that in the case of Sunil Bharti Mittal v. CBI reported in4 SCC 609 the Supreme Court of India was also considering issuance of process in a complaint case. 12. Hence in view of the overwhelming material in the record this court is of the considered view that there is ample material in the record for the learned trial court to take cognizance for the offence punishable under Sections 120 B 201 420 468 471 of the Indian Penal Code and under Section 13 read with Section 13 (d) of the Prevention of Corruption Act 1988 and that the uncontroverted allegations as made establish a prima facie case against the petitioner of having committed the said offence. Accordingly this criminal miscellaneous petition being without any merit is dismissed. In the High Court of Jharkhand Ranchi Dated 17 04 2021 AFR Animesh

The person can always show why an eviction order should not be made against him under, The provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971: High Court Of Calcutta

There was an issue raised by the Estate Officer, under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (“the Act”), this was held in the judgement passed by a single bench judge comprising HON’BLE MR. JUSTICE RAVI KRISHAN KAPUR, in the matter VARUN JAIN V. THE UNION OF INDIA &ORS [W.P.A.10632 of 2021]. The facts of this case belong to pertain to a plot of land being Plot No. TE-137 is situated in Gole Bazar, Kharagpur, District-Paschim Medinipur and the premises was owned and managed by the respondent Railway Board. It s was used only for 2 commercial purposes by Noor Mohammad (since deceased). They also mentioned that there was a sale of the premises by and between the said Mahendra Kumar Jain and his grandson, the petitioner no.1 for a consideration of Rs.5,00,000/-. It is alleged that the said Mahendra Kumar Jain also executed a Power of Attorney dated 30 January 2013 in favour of petitioner no.1 authorising petitioner no.1 to use the premises to run the said business in the name and style of M/s. Jain Traders. It was further alleged that the petitioner had written several different letters to the authorities seeking redressal of his grievances. The valuable right had been accrued in favour of the petitioner because of the rent which was paid by the petitioner, a further letter which was dated 18 February 2021 the petitioner was held to be an “unauthorised occupant” and proceedings under the Act have been initiated against the petitioner. It was submitted that the petitioner is not an unauthorised occupant and has a lawful right in the premises which has also been recognised by the Railway Authorities. On behalf of the respondent authorities, it was submitted that because of the clear embargo contained under the provisions of the Act, the petition was not maintainable and is liable to be dismissed. It is also submitted that the petitioner is now participating in the proceedings initiated under the Act and all questions raised by the petitioner ought to be adjudicated by the Estate Officer. The fundamental was that the remedy under Article 226 of the Constitution of India is in general discretionary, Article 226 was never intended to circumvent statutory procedures. Moreover, a mere show cause notice does not infringe the right of anyone. It was only when a final order imposing some punishment or otherwise adversely affecting a party is passed can the rights of the party be said to be infringed. They also mentioned that, the view that no exceptional grounds are warranting exercising any discretion in favour of the petitioner. The attempt on the part of the petitioner to raise the issue as to whether the petitioner is an ‘authorised’ or ‘unauthorised’ was worthless.

IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE The Hon’ble Mr. Justice Ravi Krishan Kapur W.P.A.106321 Varun Jain vs The Union of India & Ors. For the petitioner For the Railway Authority Hearing concluded on Mr. Suddhasatva Banerjee Mr. Shashwat Nayak Mr. Aniruddha Dutta Mr. Subhankar Chakraborty Mr. Saptashi Bhattacharjee 22.07.2021 04.08.2021 Judgment on 14.09.2021 Ravi Krishan Kapur J.: 1. The petitioner assails a show cause notice dated 26 March 2021issued by the Estate Officer South Eastern Railways Kharagpur under the provisions of the Public Premises Eviction of Unauthorised Occupants) Act 1971exclusively for commercial use. Thereafter in or about 1985 the said Noor Mohammad executed a Power of Attorney in favour of one Mahendra Kumar Jain for the purposes of carrying on distributorship business of kerosene oil the premises. Subsequently it is alleged that there was a sale of the premises by and between the said Mahendra Kumar Jain and his grandson the petitioner no.1 for a consideration of Rs.5 00 000 . It is alleged that the said Mahendra Kumar Jain also executed a Power of Attorney dated 30 January 2013 in favour of the petitioner no.1 authorising the petitioner no.1 to use the premises for the purposes of running the said business in the name and style of M s. Jain Traders. There have been several attempts by the petitioner no.1 to have the premises mutated in his name but admittedly there has been no mutation of the premises in favour of the petitioner no.1 till date. It is further alleged that the petitioner had written several different letters to the authorities seeking redressal of his grievances. It is also alleged that the Power of Attorney by the said Noor Mohammad has never been revoked at any point of time and the same is still valid continuing and binding till date. It is also alleged that the petitioner and his predecessor in interest have continuously paid rent in respect of the premises to the respondent Railways Authorities and thus a valuable right has accrued in favour of the petitioner. Subsequently the respondent no.5 issued the impugned notice directing the petitioner to show cause and justify the basis of his occupation in the premises. By a further letter dated 18 February 2021 the petitioner was held to be an “unauthorised occupant” and proceedings under the Act have been initiated against the petitioner. Hence this petition. 3. It is submitted that the petitioner is not an unauthorised occupant and has a lawful right in the premises which has also been recognised by the Railway Authorities. It is also submitted that the petitioner has obtained an indefeasible right in the premises from the original licensee and cannot be treated as an unauthorised occupant. It is further submitted that the respondent authorities have been fully aware of the rights of the petitioner and a subsisting legal relationship has been created in view of the fact that the respondent authorities have received occupational charges from the petitioner. 4. On behalf of the respondent authorities it is submitted that in view of the clear embargo contained under the provisions of the Act the petition is not maintainable and is liable to be dismissed. It is also submitted that the petitioner is now participating in the proceedings initiated under the Act and all questions raised by the petitioner ought to be adjudicated by the Estate Officer. Accordingly there is no scope for entertaining the petition and the same is liable to be dismissed on the ground that the petitioner has an alternative efficacious statutory remedy. 5. At the outset it is fundamental that the remedy under Article 226 of the Constitution of India is in general discretionary. Ordinarily a Writ Court loathes to exercise its jurisdiction when the petitioner has an alternative remedy available to him unless exceptional circumstances are cited. The well settled exceptions are a) where the petitioner seeks enforcement of any of his fundamental rights b) where there is failure of the principles of natural justice or c) where the orders in the proceedings are wholly without jurisdiction or the vires of an Act has been challenged. The Act is a self contained Code and provides that the Estate Officer has sufficient powers to adjudicate all issues raised by the petitioner. This would also appear from a plain reading of Sections 2(g) 4 5 8 9 10 and 15 of the Act. Article 226 was never intended to circumvent statutory procedures. Moreover a mere show cause notice does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed can the rights of the party be said to be infringed. Accordingly I find that there are no grounds whatsoever which justify or warrant entertaining this petition. I am of the view that there are no exceptional grounds warranting exercising any discretion in favour of the petitioner. The attempt on the part of the petitioner to raise the issue as to whether the petitioner is an ‘authorised’ or ‘unauthorised’ occupant is in my view a question fit to be assessed exclusively by the Estate Officer. 6. In view of the aforesaid WPA 10632 of 2021 is dismissed. However there will be no order as to costs. The petitioner is free to urge all grounds which may be available to him in accordance with law before 5 the Estate Officer. The Estate Officer is directed to conclude the proceedings as expeditiously in accordance with law. It is needless to mention that the Estate Officer will not be bound by any observation or finding in this order. 7. Urgent certified photostat copy of this judgment if applied for be given to the parties upon compliance of requisite formalities. Ravi Krishan Kapur J.)

The case can’t be reheard due to the absence of the witnesses of the parties to the case: High Court Of Patna

The Appellant moved to the Court for revising the previous judgment of his acquittal and plead that since the witnesses who supported him weren’t present in the court the previous time, he deserves to be heard again. The court in light of all facts and circumstances dismissed the appeal. The Hon’ble High Court of Patna before Justice Mr. Ashwani Kumar Singh and Arvind Srivastava in the matter of Shambhu Choudhary v. The State of Bihar[Criminal Appeal (DB) No.228 of 2020]. The facts of the case were that an instant appeal was filed under Section 372 of Code of Criminal Procedure and the judgment was challenged by the appellant passed in the Session Trial and was framed under the offenses punishable under Sections 324, 326, 341, 307, and 452 read with Section 34 of the Indian penal Code. The Appellant contended that in the main trial the witnesses were examined and on behalf of the prosecution out of whom the majority supported the prosecution case. However, the investigating officers of the case were not examined and this adversely affected the appellant’s case. The Learned Counsel for the State contended that after exhausting all the processes, the Trial. The court closed the prosecution case and in absence of any evidence on record acquitted the respondent nos. 2 to 4 and discharged them from the liabilities of their bail bonds. He contended that there is no illegality in the order passed by the Court below. According to the FIR Raghunath Ahir and Deonath Bind, having Daab in their hands were repeatedly assaulting his father while Deolal Bind and Dharam Bind were catching hold of his legs. He raised alarm and saw a cut injury on the neck of his father. He also saw injuries on different parts of his body. On his alarm, villagers rushed there whereafter the accused persons fled away. He stated that about a year ago Deonath Bind and Raghunath Ahir had taken away Masoor crop from his khalihan to which they had objected and the accused persons threatened them of dire consequences. The Hon’ble High Court Of Patna stated,”… we are of the view that the prosecution witnesses were aware of the proceedings going on before the trial court. They had already entered into appearance and deposed before the court before summoning of the respondent nos. 2 to 4 under Section 319 of the Cr.P.C. In that view of the matter, they ought to have been vigilant about the on going proceedings before the court. The trial could not have been kept pending for an infinite period awaiting for the witnesses.” The Court further added,” In that view of the matter, we are of the opinion that no illegality can be found with the judgment of acquittal passed by the trial Court. We see no merit in this appeal. It is dismissed accordingly.” Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The facts of the case were that an instant appeal was filed under Section 372 of Code of Criminal Procedure and the judgment was challenged by the appellant passed in the Session Trial and was framed under the offenses punishable under Sections 324, 326, 341, 307, and 452 read with Section 34 of the Indian penal Code. The Appellant contended that in the main trial the witnesses were examined and on behalf of the prosecution out of whom the majority supported the prosecution case. However, the investigating officers of the case were not examined and this adversely affected the appellant’s case. The Learned Counsel for the State contended that after exhausting all the processes, the Trial. The court closed the prosecution case and in absence of any evidence on record acquitted the respondent nos. 2 to 4 and discharged them from the liabilities of their bail bonds. He contended that there is no illegality in the order passed by the Court below. According to the FIR Raghunath Ahir and Deonath Bind, having Daab in their hands were repeatedly assaulting his father while Deolal Bind and Dharam Bind were catching hold of his legs. He raised alarm and saw a cut injury on the neck of his father. He also saw injuries on different parts of his body. On his alarm, villagers rushed there whereafter the accused persons fled away. He stated that about a year ago Deonath Bind and Raghunath Ahir had taken away Masoor crop from his khalihan to which they had objected and the accused persons threatened them of dire consequences. The Hon’ble High Court Of Patna stated,”… we are of the view that the prosecution witnesses were aware of the proceedings going on before the trial court. They had already entered into appearance and deposed before the court before summoning of the respondent nos. 2 to 4 under Section 319 of the Cr.P.C. In that view of the matter, they ought to have been vigilant about the on going proceedings before the court. The trial could not have been kept pending for an infinite period awaiting for the witnesses.” The Court further added,” In that view of the matter, we are of the opinion that no illegality can be found with the judgment of acquittal passed by the trial Court. We see no merit in this appeal. It is dismissed accordingly.” Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The Learned Counsel for the State contended that after exhausting all the processes, the Trial. The court closed the prosecution case and in absence of any evidence on record acquitted the respondent nos. 2 to 4 and discharged them from the liabilities of their bail bonds. He contended that there is no illegality in the order passed by the Court below. According to the FIR Raghunath Ahir and Deonath Bind, having Daab in their hands were repeatedly assaulting his father while Deolal Bind and Dharam Bind were catching hold of his legs. He raised alarm and saw a cut injury on the neck of his father. He also saw injuries on different parts of his body. On his alarm, villagers rushed there whereafter the accused persons fled away. He stated that about a year ago Deonath Bind and Raghunath Ahir had taken away Masoor crop from his khalihan to which they had objected and the accused persons threatened them of dire consequences. The Hon’ble High Court Of Patna stated,”… we are of the view that the prosecution witnesses were aware of the proceedings going on before the trial court. They had already entered into appearance and deposed before the court before summoning of the respondent nos. 2 to 4 under Section 319 of the Cr.P.C. In that view of the matter, they ought to have been vigilant about the on going proceedings before the court. The trial could not have been kept pending for an infinite period awaiting for the witnesses.” The Court further added,” In that view of the matter, we are of the opinion that no illegality can be found with the judgment of acquittal passed by the trial Court. We see no merit in this appeal. It is dismissed accordingly.” Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish According to the FIR Raghunath Ahir and Deonath Bind, having Daab in their hands were repeatedly assaulting his father while Deolal Bind and Dharam Bind were catching hold of his legs. He raised alarm and saw a cut injury on the neck of his father. He also saw injuries on different parts of his body. On his alarm, villagers rushed there whereafter the accused persons fled away. He stated that about a year ago Deonath Bind and Raghunath Ahir had taken away Masoor crop from his khalihan to which they had objected and the accused persons threatened them of dire consequences. The Hon’ble High Court Of Patna stated,”… we are of the view that the prosecution witnesses were aware of the proceedings going on before the trial court. They had already entered into appearance and deposed before the court before summoning of the respondent nos. 2 to 4 under Section 319 of the Cr.P.C. In that view of the matter, they ought to have been vigilant about the on going proceedings before the court. The trial could not have been kept pending for an infinite period awaiting for the witnesses.” The Court further added,” In that view of the matter, we are of the opinion that no illegality can be found with the judgment of acquittal passed by the trial Court. We see no merit in this appeal. It is dismissed accordingly.” Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The Hon’ble High Court Of Patna stated,”… we are of the view that the prosecution witnesses were aware of the proceedings going on before the trial court. They had already entered into appearance and deposed before the court before summoning of the respondent nos. 2 to 4 under Section 319 of the Cr.P.C. In that view of the matter, they ought to have been vigilant about the on going proceedings before the court. The trial could not have been kept pending for an infinite period awaiting for the witnesses.” The Court further added,” In that view of the matter, we are of the opinion that no illegality can be found with the judgment of acquittal passed by the trial Court. We see no merit in this appeal. It is dismissed accordingly.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEALNo.2220 Arising Out of PS. Case No. 135 Year 1994 Thana SAHPUR District Bhojpur SHAMBHU CHOUDHARY @ SHAMBHU NATH CHOUDHARY Son of Shivbrat Chaoudhary @ Sheo Barat Chaudhary Resident of Village Hirakhi Pipra P.S. Shahpur Distt Bhojpur ... Appellant The State of Bihar Prabhunath Yadav @ Raghunath Ahir Son of Sheo Kumar Yadav Resident of Village Hirakhi Pipra P.S. Shahpur Distt Bhojpur 3. Deonath Bind Son of Late Ramgahan Bind Resident of Village Hirakhi Pipra P.S. Shahpur Distt Bhojpur 4. Dharam Bind Son of Late Kailash Bind Resident of Village Hirakhi Pipra P.S. Shahpur Distt Bhojpur ... Respondent s Mr. Arun Kumar Singh Advocate Dr. Mayanand Jha APP For the Appellant s For the Respondent s CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH and HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH Date : 31 08 2021 Heard Mr. Arun Kumar Singh learned counsel for the appellant and Dr. Mayanand Jha learned counsel for the 2. By filing the instant appeal under the proviso to Section 372 of the Code of Criminal Procedure the appellant has challenged the judgement dated 16.11.2019 passed in Patna High Court CR. APPNo.2220 dt.31 08 2021 Sessions Trial No. 503 by the learned Presiding Officer Fast Track Court II Bhojpur at Ara whereby and whereunder the respondent nos. 2 to 4 have been acquitted of the charges framed against them for the offences punishable under Sections 324 326 341 307 and 452 read with Section 34 of the Indian Penal Code. 3. Learned counsel for the appellant submitted that the respondent nos. 2 to 4 were summoned under Section 319 of the Code of Criminal Procedure. He contended that in the main trial altogether 9 witnesses were examined on behalf of the prosecution out of whom P.W.1 to P.W.6 had fully supported the prosecution case. However during trial the Medical Officer who had examined the victim and the Investigating Officer were not examined. Since they are official witnesses for their failure to turn up before the court during trial the case of the appellant ought not to have adversely affected. Lastly he contended that the judgement of acquittal has been recorded by the Trial Court erroneously without appreciating the fact that no summon were ever served upon the 4. On the other hand learned counsel appearing for the State submitted that from the record it would appear that Patna High Court CR. APPNo.2220 dt.31 08 2021 the FIR was registered in the year 1994 and the case was committed to the court of session in January 2003. The Respondent nos. 2 to 4 were not sent up for trial. The trial had proceeded against only Deolal Bind. In his trial after examination of 9 witnesses respondent nos. 2 to 4 were summoned by the Trial Court as additional accused in exercise of power conferred under Section 319 of the Code of Criminal Procedure. He contended that after appearance of the respondent nos. 2 to 4 the trial court issued summons and processes in order to ensure appearance of the prosecution witnesses but none of the witness was examined on behalf of the prosecution He contended that after exhausting all the processes the Trial Court closed the prosecution case and in absence of any evidence on record acquitted the respondent nos. 2 to 4 and discharged them from the liabilities of their bail bonds. He contended that there is no illegality in the order passed by the Court below. 5. We have heard learned counsel for the parties and carefully perused the records. The FIR relates to occurrence that had taken place in the month of January 1994. It is based on the fardbeyan of the appellant Shambhu Choudhary Shambhunath Choudhury which was recorded by the SHO Patna High Court CR. APPNo.2220 dt.31 08 2021 Shahpur Police Station at Referal Hospital Shahpur on 5th of November 1994. In his fardbeyan he had stated that on 4th of November 1994 at about 1.30 AM. when he along with his father Shiv Barat @ Sheo Barat Choudhary was sleeping in front of his house in Palani he woke up on hearing some sound He saw that Raghunath Ahir and Deonath Bind having Daab in their hands were repeatedly assaulting his father while Deolal Bind and Dharam Bind were catching hold of his legs. He raised alarm and saw cut injury on the neck of his father. He also saw injuries on different parts of his body. On his alarm villagers rushed there whereafter the accused persons fled away. He stated that about a year ago Deonath Bind and Raghunath Ahir had taken away Masoor crop from his khalihan to which they had objected and the accused persons threatened them of dire 6. On the basis of the fardbeyan of the informant Shahpur P.S. Case No. 135 of 1994 was registered. On Completion of investigation the police submitted charge sheet only against Deolal Bind. 7. On perusal of the chargesheet learned Chief Judicial Magistrate Bhojpur at Ara took cognizance of the offences and summoned Deolal Bind to face trial. Patna High Court CR. APPNo.2220 dt.31 08 2021 8. After completing the mandatory requirements of Section 207 of the Cr. P.C. the case of Deolal Bind was committed to the court of sessions vide order dated 18.01.2003 In due course the sessions court framed charges against the accused Deolal Bind. 9. In course of trial 9 witnesses were examined on behalf of the prosecution. They are Smt. Shivratia Devi PW1) Mst. LaxminiaVijay Kumar ChoudharyRamashankar ChoudharyShambhu ChoudharyShivbrat Choudhary Dindayal Choudhary Raman ChoudharyNo.2220 dt.31 08 2021 turned up to support the prosecution case. The trial court has recorded in the impugned judgement that after issuance of summons to the witnesses all efforts were taken to ensure their appearance but no prosecution witness turned up to depose before the Court 12. Though a submission has been made on behalf of the appellant that summons were never served to the witnesses the order sheet of the court below has not been annexed with the memo of appeal to support the contention that summons were not served 13. Even otherwise we are of the view that the prosecution witnesses were aware of the proceedings going on before the trial court. They had already entered into appearance and deposed before the court before summoning of the respondent nos. 2 to 4 under Section 319 of the Cr.P.C. 14. In that view of the matter they ought to have been vigilant about the on going proceedings before the court The trial could not have been kept pending for an infinite period awaiting for the witnesses. 15. In that view of the matter we are of the opinion that no illegality can be found with the judgment of acquittal passed by the trial Court. Patna High Court CR. APPNo.2220 dt.31 08 2021 16. We see no merit in this appeal. It is dismissed Ashwani Kumar Singh J) ( Arvind Srivastava J

‘Registrar’ does not fall into the category of ‘A person authorized by Central Government’: Karnataka High Court

‘Registrar’ and ‘a person authorized by Central Government’ are two different entities and entitling the Registrar with the power to present a petition to the Tribunal for the winding up of a company is valid and well within the scope of law. A single-judge bench comprising of Justice Dinesh Kumar, while adjudicating the matter in Devas Employees Mauritius Private. Ltd. V. Union of India & Ors; [WRIT PETITION No.6191 OF 2021 (GM-RES)], dealt with a plea challenging the winding-up proceedings against a company. The petitioner held a certain number of shares in Devas Multimedia Pvt Ltd (respondents). The petitioner and the respondent entered into an agreement for the lease of space segment capacity on ISRO/Antrix S-Band Space Craft. As per the petitioner, various shareholders including Deutshe Telekom, an enterprise of the German Government had invested in the respondent company. The petitioner terminated the agreement on the ground that they were not happy with the services of the respondent company, in response to which the respondent initiated arbitration proceedings in ICC. The Arbitral Tribunal passed an award which imposed an amount of 10,000 crores on the petitioners. A petition was filed before NCLT to wind up the respondent company on the ground that the respondent company’s affairs were being conducted in a fraudulent manner and the persons involved in the company’s management have been guilty of fraud, misfeasance and misconduct. The petitioner also sought to declare Section 272(1)(e) of Companies Act, 2013 which states that a petition to the Tribunal for the winding up of a company shall be presented by the Registrar, as ultra vires to the Constitution of India. The learned counsel representing the respondents held that the Registrar of Companies and a ‘person authorized by the Central Government’ stand on the same footing. In the case of Registrar, before according sanction, Central Government is required to give an opportunity to the Company and the same is missing in the case of a ‘person authorized by Central Government’.

W.P No.6191 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF APRIL 2021 THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR WRIT PETITION No.6191 OF 2021A COMPANY INCORPORATED UNDER THE LAWS OF THE REPUBLIC OF MAURITIUS BEARING COMPANY NO.C087664 HAVING ITS REGISTERED OFFICE AT C O INTERNATIONAL PROXIMITY 5TH FLOOR EBENE ESPLANADE 24 CYBERCITY EBENE 72201 REPUBLIC OF MAURITIUS RERPESENTED BY ITS DIRECTOR MR. RAMACHANDRAN VISWANATHAN AGED ABOUT 53 YEARS ... PETITIONER BY SHRI. RAJIV NAYAR SENIOR ADVOCATE FOR SHRI. C.K. NANDA KUMAR ADVOCATE) THROUGH VIDEO CONFERENCE] AND : 1. UNION OF INDIA THROUGH MINISTRY OF CORPRATE AFFAIRS 5TH FLOOR A WING WWW.LIVELAW.IN W.P No.6191 2021 SHASTRI BHAWAN NEW DELHI 110 001 REPRESENTED BY ITS ANTRIX CORPORATION LTD REGISTERED OFFICE AT ANTARIKSH BHAVAN CAMPUS NEAR NEW BEL ROD BANGALORE KARNATAKA 560 094 REPRESENTED BY ITS AUTHORISED SIGNATORY CHAIRMAN AND MANAGING DIRECTOR EMAIL ID:cmd.ofnce@.antrix.co.in CONTACT NUMBER: +91 80 2217 8311 2. 3. DEVAS MULTIMEDIA PVT LTD IN PROVISIONAL LIQUIDATION) FIRST FLOOR 29 1 KAVERIAPPA LAYOUT MILLERS TANK BUND ROAD BANGALORE 560 052 REPREENTED BY ITS DIRECTOR ... RESPONDENTS BY SHRI. N. VENKATARAMAN ASG SENIOR ADVOCATE FOR SHRI. SAJI P. JOHN ADVOCATE FOR R2 THROUGH VIDEO CONFERENCE SHRI. M.B. NARAGUND ASG A W SHRI. M.N. KUMAR CGC FOR R1 THROUGH VIDEO CONFERENCE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THAT SECTION 272(1)(e) OF THE COMPANIES ACT 2013 IS ULTRA VIRES THE CONSTITUTION OF INDIA 1950 ANNEXURE B AND DECLARE THAT THE SECOND PROVISO TO SC.272(3) OF THE COMPANIES ACT 2013 MUST BE READ TO BE APPLICABLE TO PETITION PRESENTED BY PERSONS FAILING UNDER S.272(1)(e) OF THE COMPANIES ACT 2013 I.E ANY PERSON AUTHORIZED BY THE CENTRAL GOVERNMENT IN THAT BEHALF ANNEXURE B AND ETC. WWW.LIVELAW.IN W.P No.6191 2021 THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 19.04.2021 COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY THE COURT PRONOUNCED THE FOLLOWING: Devas Employees Mauritius Pvt. Ltd. a Company incorporated under the laws of Republic of Mauritius has presented this writ petition with prayers to declare Section 272(1)(e) of Companies Act 2013 as ultra vires Constitution of India to declare that the second proviso to Section 272(3) of the Act must be read to be applicable to the petitions presented by persons falling under Section 272(1)(e) of the Act and to issue a writ of certiorari quashing sanction order dated January 18 2021 and consequently to quash all proceedings in C.P. No. 06 BB 2021 before NCLT1. Brief facts of the case are petitioner holds 3.48% shares in Devas Multimedia Pvt. Ltd. (hereinafter referred to as Devas ). On January 28 2005 Antrix Corporation Ltd. and Devas entered into an agreement for lease of space segment capacity on ISRO Antrix S Band Space Craft. According to the petitioner investments were brought into Devas from different shareholders including State owned Deutshe Telekom an enterprise of the German Government. 3. On February 25 2011 Antrix Corporation terminated the agreement. Devas initiated arbitration proceedings in ICC2. On September 14 2015 ICC Arbitral Tribunal passed an Award for USD 562.5 Million with interest thereon which according to the petitioner works out to about Rs.10 000 Crores and same is being enforced in several jurisdictions. The Central Government vide notification dated January 18 2021 has authorised the Chairman & Managing Director of Antrix Corporation to present a petition to wind up Devas. Accordingly Antrix Corporation has filed a Company Petition before NCLT Bengaluru. By it s order dated January 19 2021 NCLT has 2 International Chamber of Commerce WWW.LIVELAW.IN W.P No.6191 2021 admitted the petition and granted time to the respondents therein to file replies and appointed the official liquidator attached to this Court as provisional liquidator. Petitioner has challenged NCLT’s order before NCLAT3 Chennai in Company Appeal a winding up petition can be presented by persons specified in Section 272(1) of the Act which includes both Registrar and any person authorized by the Central Government . Section 272(3) provides that Registrar shall obtain previous sanction from the 3 National Company Law Appellate Tribunal WWW.LIVELAW.IN W.P No.6191 2021 Central Government to present a winding up petition. The second proviso to Section 272(3) mandates that Central Government shall not accord sanction unless Company has been given an opportunity of making representation in this case no opportunity was given to Devas prior to the accord of sanction by the Central Government the order passed by the Central Government authorizing the Chairman and Managing Director of Antrix Corporation to file winding up petition is malafide exercise of power the agreement between Antrix and Devas has been terminated on the ground of force majeure after taking opinion from the learned Additional Solicitor General and not on the ground of fraud the arbitral award passed by ICC is unanimous Shri. Nargund and Shri. Venkataraman learned Additional Solicitors General for the Union of India and Antrix Corporation argued opposing the petition. I have carefully considered rival contentions and perused the records. In the conspectus of facts of this case following points arise for consideration: WWW.LIVELAW.IN W.P No.6191 2021 1) Whether Section 272 is ultra vires Constitution of India and 2) Whether order dated 18.01.2021 needs any interference Re. Point No.1 Shri. Nayar has argued that both Registrar of Companies and a person authorized by the Central Government stand on the same footing. In the case of Registrar before according sanction Central Government is required to give an opportunity to the Company and the same is missing in the case of a person authorized by Central Government . Placing reliance on paragraph No.10 in Ram Dial and others Vs. The State of Punjab4 he argued that where one of the provisions provides for notice and hearing and the other does not it is drastic and arbitrary and on this ground the Apex Court has declared Section 14(e) of the Punjab Municipalities Act as unconstitutional. Shri. N.Venkataraman learned ASG has submitted that there is a classic distinction between the 4 AIR 1965 SC 1518 WWW.LIVELAW.IN W.P No.6191 2021 Registrar of Companies and a person authorized by the Central Government because Registrar is a regulator and stands on a different footing. 10. In Ram Dial the Apex Court was considering Section 14(e) and Section 16 of the Punjab Municipalities Act. Under Section 14(e) of the said Act the State Government in public interest could direct that a seat of a specified member whether elected or appointed shall be vacated on a given date. Section 16 of the said Act gave power to the State Government to remove any member of the Municipal Committee. Proviso to Section 16(1) of the said Act required the State Government to communicate the reasons for removal and provide an opportunity to the noticee to explain his stand. Thus the Punjab Municipality Act had two distinct provisions of which one provided for notice and the other did not. Both provisions dealt with removal of a member. In contradistinction in this case Section 272 of the Companies Act permits different category of persons to present a petition for winding up. WWW.LIVELAW.IN W.P No.6191 2021 The Registrar of Companies is privy to all information of the Company and when he proposes to move a petition for winding up under Section 271(c) of the Companies Act it shall be based on his opinion and satisfaction that the affairs of that Company were conducted in a fraudulent manner which is not the case of a person authorised by the Central Government. 11. Shri. Rajiv Nayar placed reliance on another authority Subramanian Swamy Vs. Director Central Bureau of Investigation and another5 and contended that discrimination cannot be justified on the ground classification. In the said authority the issue was whether classification be made creating a class of Government officers at the level of Joint Secretary and above on one hand and certain officials in Public Sector Undertakings on the other for the purpose of enquiry investigation into offences alleged to have been committed under the 578 81 83 93 137 157 206 208 209 and 248 of the Companies Act. Therefore I am persuaded to accept the submission of learned ASG that Registrar falls in a different category. 14. Shri. Nayar next relied upon paragraph No.255 in Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress WWW.LIVELAW.IN W.P No.6191 2021 and others6 and paragraph No. 11 in Sultana Begum Vs. Prem Chand Jain7 and urged that proviso to Sec. 272(3) may be read to be applicable to petitions presented by any person authorised by the Central Government . In Delhi Transport Corporation case the issue is with regard to applicability of certain rules in case of retrenchment on account of in establishment and other circumstances such as probationary period. In Sultana Begum it is held that statute has to be read as a whole. As recorded hereinabove the Registrar being the Regulator falls in a distinct category and these authorities do not lead petitioner’s case any further. 15. Shri. Venkataraman learned Addl. SG has placed reliance on the following authorities and contended that sanction is an administrative act and therefore affording any opportunity of hearing is not contemplated at that stage: 6 1991 SuppSCC 600 7Superintendent of Police C.B.I.) Vs. Deepak Chowdhary and others8cid:1) Sultan Singh vs. State of Haryana and another9 paragraph No.4) cid:1) Designated Authority Ministry of Commerce Vs. Haldor Topsoe A S10 paragraphs No.24 & 25) cid:1) State of Maharashtra Vs. Ishwar Piraji Kalpatri and others11(paragraphs No.16 & 17) and cid:1) Asst. Commissioner Assessment II Bangalore and others Vs. Velliappa Textiles Ltd. and another12 paragraphs No.7 & 8). 16. In Velliappa Textiles the Apex Court has quoted Lord Reid’s statement in Wiseman Vs. Borneman13 that every public officer who has to decide whether to prosecute or raise proceedings ought first to decide whether there is prima facie case but no one supposes that justice requires that he should first seek the comments of the accused or 8Ltd. Vs. Municipal Corporation of Greater Bombay and others14. In this authority the Constitution Bench of Supreme Court of India has held as 14. To summarise: Where a statute providing for a more drastic procedure different the ordinary procedure ......... The fact that in such cases the executive will choose which cases are to be tried under the special procedure will not affect the validity of the statute. Therefore the contention that the mere availability of two procedures will vitiate one of them that is the special procedure is not supported by reason or authority." 18. Shri. Venkataraman also urged that the State enjoys a special status. In support of this contention he 14SCC 201 16 1989 SuppSCC 696 174 SCC 656 WWW.LIVELAW.IN W.P No.6191 2021 judgment. The Courts have only the power to destroy but not to reconstruct. When these are added to the complexity of economic regulation the uncertainty the liability to error the bewildering conflict of the experts and the number of times the Judges have been overruled by events self limitation can be seen to be the path to judicial wisdom and institutional prestige and stability. 20. Shri. Venkataram also relied upon paragraph No.17 in K.B. Nagur Vs. UOI18 and contended that presumption of constitutionality is always in favour of legislation unless the contrary is shown. In this authority is also held as follows: 20. It is also a settled and deeply rooted canon of jurisprudence the process of constitutional adjudication the courts ought not to pass decisions on questions of constitutionality unless such adjudication is unavoidable. In this sense the courts have followed a policy of strict necessity in disposing of a issue. In dealing with issues of constitutionality the courts are slow to embark upon an unnecessary wide or general enquiry and should confine 1821. It is settled that when a provision of law is challenged Courts are required to exercise restraint and be cautious in striking down a provision. It may be profitable to note the decision of the Apex Court in Government of Andhra Pradesh and others Vs. P. Laxmi Devi 1 SCC 23 : AIR 1979 SC 83] SCC para 6 : AIR para 6. Also it is none of the concern of the court whether the legislation in its opinion is wise or unwise. 19DEVAS has the capacity and power to enter into and perform this Agreement in terms thereof ii) DEVAS has the ability to design Digital Multimedia Receiversiii) DEVAS has the ability to design Commercial Information Devicesiv) DEVAS has the ownership and right to use the Intellectual Property used in the design of DMR and CID v) The fulfillment of DEVAS obligations under this Agreement by DEVAS will not violate any Laws vi) DEVAS shall assign transfer and or sub let its rights and obligations hereunder in accordance with law. WWW.LIVELAW.IN W.P No.6191 2021 vii) DEVAS shall be solely responsible for securing and obtaining all licenses and approval for the delivery of Devas Services via satellite and terrestrial network." 24. He has submitted that Devas did not have the ownership of any intellectual property as the technical know how mentioned in the agreement was unknown in the world at that point of time. Thus all that Devas has done is bringing money into India under different channels and siphoning off a major portion of it. 25. Shri. Venkataraman has further submitted that CBI20 has investigated and filed charge sheet in 2016. The ED21 and Authorities under PMLA22 have also investigated into the matter. Letters of Rogatory have been issued to France USA and Singapore. The Director of petitioner s Company Shri. Ramachandran Vishwanath who is the deponent verifying the Affidavit annexed to the writ petition is an accused in Criminal Proceedings and he is 20 Central Bureau of Investigation 21 Enforcement Directorate 22 Prevention of Money Laundering Act 2002 WWW.LIVELAW.IN W.P No.6191 2021 avoiding service of summons sent to the very address mentioned in the Affidavit. Therefore petitioner has not come to this Court with clean hands. He submitted that Officers of ISRO the Chairman and Executive Director of Antrix Corporation and other Officers are also accused in the Criminal cases. 26. The Secretary of Department of Space will also be ex officio Chairman of ISRO and Antrix Corporation. The material on record discloses that on January 14 2021 the Chairman cum Managing Director of Antrix Corporation has written a detailed letter to the Secretary Ministry of Corporate Affairs giving chronological events and sought sanction to file winding up proceeding against Devas. It is stated in the letter that Devas had committed fraud in collusion with earlier Officers of Antrix Corporation Department of Space and ISRO and it has resulted in huge financial loss to the Government of India. WWW.LIVELAW.IN W.P No.6191 2021 27. It is further stated in the letter that in the year 2011 Newspapers reported a mega scam and fraud in the Department of Space and views of various Ministries were sought. They had replied that the Contract and subsequent transactions had involved serious contraventions and breach of laws and it was completely overlooked and a misrepresented Cabinet note was prepared seeking termination of agreement dated 28.01.2005. 28. While filing application before the FIPB 23 Devas had projected investments only as Internet Service Provider ISP) and the Department of Telecom had issued a license to Devas for ISP services only. The application filed before FIPB does not refer to multimedia services to be employed in the use of S Band transponder facility for which Antrix Corporation and Devas had entered into the agreement. It is further stated that Devas was incorporated with a Share capital of Rs.1 00 000 about one month prior to the 23 Foreign Investment Promotion Board WWW.LIVELAW.IN W.P No.6191 2021 agreement with Antrix Corporation and Devas itself had valued the Company at Rs.579 Crores. 29. It was argued by Shri. Nayar that Antrix Corporation is the judgment debtor. Therefore in order to avoid payment under the Arbitration Award the Antrix Corporation has chosen to seek liquidation of Devas and the request made by Antrix has been acceded in great hurry by according sanction. He contended that the aspect of fraud has been designed to deprive Devas of its legitimate dues. 30. Admittedly Antrix Corporation is fully owned by the Government of India and the Secretary of the Department of Space is the Ex officio Chairman of Antrix Corporation. It is no doubt true that agreement has been cancelled on the ground of force majeure and Devas has obtained an Arbitral Award. But at the same time the contents of the letter dated January 14 2021 written by the Antrix Corporation cannot be brushed aside. The Managing Director of Antrix Corporation has stated that with an WWW.LIVELAW.IN W.P No.6191 2021 Investment of Rs. 579 Crores Devas have provided ISP services for about 25 people and earned a revenue of Rs.80 000 . It is also stated that out of Rs.579 Crores Rs.233 Crores have been moved out towards litigation services and large sum of money has been transferred to the wholly owned subsidiary of Devas in USA. 31. Petitioner has annexed a copy of the Company filed by Antrix Corporation before NCLT as Annexure H to the writ petition. Averment with regard to siphoning of money reads thus: 13(dd). Monies to the tune of Rs.579 Crores were brought in and when the same were not being used for the stipulated ends the investment would be rendered illegal and loses the eligibility as a protected investment. 13(ee). The investment of Rs.579 Crores instead of being used to render internet services was used in the following manner that resulted in a case of Money Laundering: Around of Rs.75 Crores were sent out of India by creating a wholly owned subsidiary in the USA with the directors of Devas controlling the subsidiary. ii) Over Rs.180 Crores were sent out as payment towards business support services without receiving either WWW.LIVELAW.IN W.P No.6191 2021 assets or services and writing them off as losses in the iii) Over Rs.233 Crores moved out of India in the guise of litigation services. When the earlier payments were made as business support it resulted in service tax exposure on reverse charge basis. To avoid payment of such taxes the monies were laundered in the guise of litigation support services. iv) Rs.92 Crores remained in India out of which a sum of Rs.21 Crores was lying in fixed deposits which have been seized by the PMLA authorities and Rs.59 Crores was paid as upfront capacity fee to Antrix. The balance monies were paid out as salaries to the Directors of Devas." 32. It is the specific case of Antrix Corporation that there was collusion of its officials and it is narrated as 46. Because the officials of Antrix in collusion with the Respondents No.1 Company illegally and arbitrarily arrived at a separate pricing of spectrums including the lease charges to be paid by the Respondent No.1 company even when "Devas Services" which involved both Mobile Satellite Services and Broadcasting Satellite Services was absent from the price stipulation available at that time." "55. Because it is revealed that in 58th Meeting of the Board of Directors held on 17 03 2005 at Bangalore Mr.G.Madhavan Nair the then Chairman while welcoming WWW.LIVELAW.IN W.P No.6191 2021 the Directors informed the Board that Antrix had signed a contract worth US$ 144 Million with the Respondent for leasing of S Band Transponders over a period of 12 years. Ms. Veena S Rao the then Additional Secretary Department of Space being one of the Directors on the Board of Antrix was also present in the said meeting and as such she was aware of the agreement between Antrix and the Respondent No.1 Company for leasing of S Band Transponders an agreement which illegal and unenforceable. However the same was concealed before the 104th Space Commissioner meeting which was attended by the aforementioned persons forming part of the 58th Board Meeting of Antrix." 33. With regard to the valuation of the Company it is stated thus in the Company petition: 74. Because for a company with no commercial antecedent and hardly in vogue for more than six months the shares of the Respondent No.1 Company were sold at exorbitant rates as high as Rs.1.26 Lakhs per equity share. The officials of the Respondent No.1 Company were not able to give any valid justification to the investigating agencies for pricing the shares at such high premiums thus leading to the conclusion that the foreign investments were brought into India only fraudulent activities including money laundering. This is evident from the subsequent actions of the Respondent No.1 Company whereby Rs.487 Crores out of Rs.579 Crores investment were laundered out of Indian WWW.LIVELAW.IN W.P No.6191 2021 the US subsidiary of the Respondent No.1 34. The averment with transactions reads as follows: 79. Because of the Rs.579 Crores of foreign investment Rs.76 19 04 563 subscription investment in Devas America Inc and Rs.180 77 58 989 in the guise of service fee towards business support services were laundered out of India. Out of the Rs.180 Crores the Respondent No.1 Company paid around 40 crores for the period 2006 October 2010 for which there was no agreement at all. The agreement was entered into only in October 2010 with the US subsidiary. If one adds the share subscription of Rs.76 19 04 563 it would total upto Rs.256 96 63 544 had been paid to 2 of its directors. Other than 12 Crore spend over 11 years out of the 579 Crores the balance 568 Crores way lying as liquidity of which around Rs.487 07 78 278 that the existence of Contract dated 28.01.2005 was suppressed by the then officials from various Government Authorities while seeking approval for the project. It is also averred that a Cabinet note dated 17.11.2005 put up for the consideration of Union Cabinet WWW.LIVELAW.IN W.P No.6191 2021 suppressed the existence of Contract which had already been executed on 28.01.2005 and stated instead that ISRO was in receipt of "several firm expressions of interest" by different service providers for utilization of Satellite capacity. 36. It is further averred in the Company Petition that Devas a Company incorporated without any commercial antecedents and hardly in existence for six months had sold its shares at exhorbitant rates as high as Rs.1.26 Lakhs per share to foreign investors.14 AC 33725of the Companies Act. held in the negative. 53. Accordingly both points for consideration are 54. Resultantly this writ petition must fail and it is accordingly dismissed with cost of Rs.Five Lakhs payable in the name of the Registrar General of this Court within WWW.LIVELAW.IN W.P No.6191 2021 four weeks from today and Registrar General shall report compliance. 55. In view of the dismissal of this petition pending interlocutory applications if any do not survive for consideration and they stand disposed of. P.S. DINESH KUMAR) WWW.LIVELAW.IN W.P No.6191 2021 WRIT PETITION No.6191 OF 2021 (GM RES CT CSR WWW.LIVELAW.IN W.P No.6191 2021

Tribunal must pass an opinion by appreciating all the documents and exhibits: High Court of Gauhati

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

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

When the rights of one party, if any, are yet to be determined in the suit for specific performance, the party cannot claim a right to be impleaded, in the suit for partition: High Court of Delhi

An unregistered Agreement to Sell cannot be the basis of claiming ownership, the said Agreement to Sell cannot, in law, be a ground or the basis for the impleadment of the Petitioner in a partition suit as upheld by the High Court of Delhi through the learned bench led by Justice Prathiba M. Singh in the case of Rajbala Ghiloria v. Ashok Kumar Sethi & Anr (C.R.P. 67/2021 & CM APPL. 31940/2021). The brief background of the matter is that a suit for partition was filed in respect of the property bearing no. C-2/21, Malka Ganj, Delhi –17 by the Plaintiff in the suit/ Respondent No. 1 herein. Respondent No. 2 herein is the Defendant in the suit. It is the admitted position between the Plaintiff and the Defendant that the Plaintiff owns 1/3rd share of the suit property and the Defendant owns 2/3rd share in the same. However, the case of the Applicant/Petitioner herein is that the Defendant in the suit has sold his share of the property to the Petitioner. Accordingly, in view of the fact that the interest of the Petitioner could be affected in the said suit proceedings, the Petitioner filed an application under Order I Rule 10 CPC, for impleadment as a necessary party, which has been rejected by the Trial Court. Hence this present revision petition has been filed under Section 115 of the CPC. The Hon’ble High Court held, “A suit for partition has to be adjudicated between the co-owners of the property. Since the rights of the Petitioner, if any, are yet to be determined in the suit for specific performance which is pending before the Trial Court, the Petitioner cannot claim a right to be impleaded, in the suit for partition. Thus, the Trial Court is not at fault, in holding that the suit for partition would have to be adjudicated only between the co-owners. With these observations, the petition is disposed of. All pending applications are also disposed of. Let a copy of the present order be sent to C.R.P. 67/2021 Page 13 of 13 the ld. District Judge, Central District, Tis Hazari Courts, so as to list both the suits before the same ADJ.”

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 25th October 2021 C.R.P. 67 2021 & CM APPL. 31940 2021 Through: Mr. Yash Vardhan Singh Advocate ASHOK KUMAR SETHI & ANR Through: Mr. Rajat Aneja Advocate Respondent No.1by the Plaintiff in the suit Respondent No. 1 herein. Respondent No. 2 herein is the Defendant in the suit. It is the admitted position between the Plaintiff and the Defendant that the Plaintiff owns 1 3rd share of the suit property and the Defendant owns 2 3rd share in the same. However the case of the Applicant Petitioner herein is that the Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01 Defendant in the suit has sold his share of the property to the Petitioner Accordingly in view of the fact that the interest of the Petitioner could be affected in the said suit proceedings the Petitioner filed an application under Order I Rule 10 CPC for impleadment as a necessary party which has been rejected by the Trial Court. Hence this present revision petition has been filed under Section 115 of the CPC Mr. Singh ld. Counsel for the Petitioner submits that in the Written Statement the Defendant admits the fact that sale has taken place. He places specific reliance on paragraph 13 of the Written Statement filed before the Trial Court which reads as under the contents of the para under reply are admitted to the extent that the defendant has already sold his 2 3rd undivided share in the entire 1st Floor with its roof rightsin the suit property to one Smt. Rajbala Galoria W o Sh. Jai Hind Galoria R o 94 Nehru Kutia Malkaganj Delhi 07 Ld. Counsel submits that his client’s interest would be severely prejudiced if a decree for partition is passed behind his back inasmuch as he has an interest in the suit property and therefore he would be a proper party to the suit He relies upon the judgment of the Madras High Court in C.M.V Krishnamachari vs M.D. Dhanalakshmi Ammal And Ors.2 MLJ 298] where the Court has specifically held that though a suit for specific performance in certain circumstances may be pending since the Petitioner has an interest in the property he is entitled to be impleaded in a suit concerning the said property Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01 7 Mr. Aneja ld. Counsel appearing for the Plaintiff in the suit on the other hand submits that the Petitioner does not have any registered agreement or instrument in his favour. In fact the Defendant who is stated to be the vendor of the Petitioner has stated in the reply to the application under Order I Rule 10 CPC that the Petitioner was put in possession only for the purposes of carrying out repairs and renovation and only bayana payment was given. The same has also been forfeited as the Petitioner has violated the terms of the Agreement to Sell. He relies upon the following paragraphs of the reply filed by the Defendant in the application under Order 1 Rule 10 CPC before the Trial Court no reply being matter of record That the contents of the para under reply 2. That the contents of para under reply are denied as sated. It is most respectfully submitted that only an agreement to sell was entered into between the applicant and the answering defendant on the payment of bayana for the sale of the share of the defendant in the suit property The applicant was put in possession only for the purpose of carrying out repairs and renovation however the applicant failed to perform her part obligation and arrange payment within the agreed time and hence the bayana payment was forfeited and now she is in unauthorized occupation of the part of the suit property and liable to be evicted from the same. The defendant reserves his right to initiate appropriate legal According to Mr. Aneja the prayer in the suit in question is for partition and for appointment of a local commissioner to suggest the mode Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01 of partition. He submits that the shares of the two parties to the suit i.e. the Plaintiff and the Defendant are admitted as to being 1 3rd and 2 3rd respectively. However possession of the share of the Defendant is with the Petitioner who currently is in occupation of some part of the property pursuant to the Agreement to Sell entered into with the Defendant. He submits that this Agreement to Sell is not valid in law as the same is not registered in terms of the judgement of the Supreme Court in Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana1 SCC 656. Further according to Mr. Aneja the defense under Section 53A of the Transfer of Property Act 1882 is also not available to the Petitioner post amendment to the said provision in 2001 He relies upon the judgment of the Supreme Court in The Greater Bombay Cooperative Bank Limited v. Mr. Nagaraj Ganeshmal JainSCC 316] and judgment of this Court in Sunil Kapoor v. Hemant Singh and OthersNo.1215 2007 decided on 29th January 2010 in support of his argument that a mere Agreement to Sell which is not registered does not create or confer any rights to the vendee as the suit for partition is between registered co owners 10. Mr. Parasher ld. Counsel appearing for the Defendant submits that the Defendant is contesting the suit for specific performance which has been filed by the Petitioner herein post the impugned order being passed. The said suit being CS DJ 246 21 titled Rajbala Ghiloria v Gurucharan Singh Pahwa is stated to be pending before the ADJ 03 Central Tis Hazari Courts. The stand of the Defendant in this suit for specific performance is that the amount which was paid as bayana by the Petitioner stands forfeited 11. Heard ld. Counsel for the parties Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01 12 The Petitioner’s case in the present revision petition is that he has purchased 2 3rd of the property from the Defendant in the suit and accordingly he ought to be impleaded under Order I Rule 10 CPC in the suit for partition. The fact that the Respondent has a 2 3rd share in the suit property is not in dispute in these litigations The question that arises is as to whether the Petitioner would be a necessary or proper party in the present suit pending between the Plaintiff and the Defendant. The application under Order 1 Rule 10 has been rejected by the Trial Court by holding that the suit is between the Plaintiff and the Defendant and not with the Petitioner and therefore she is not a necessary party. The Trial Court in the impugned order has held “The plaintiff has filed the present suit for partition and possession qua the suit property and he has claimed his share to the extent of 1 3rd only. The plea that he had purchased the the suit property vide remaining 2 3rd share of agreement to sale dated 04.03.2011 and applicant has also staked her claim in that share only on basis of to sale entered with the defendant and defendant has admitted that he entered into agreement to sale qua his share with the applicant. The crux of the matter is that applicant is deriving her interest in the suit property on the basis of agreement entered with the defendant which is not the direct and substantial question in the present suit and whatever remedy he has that is against defendant only and qua his share only. In view of the same I held that presence adjudication of the case since she has independent aforesaid facts and circumstances the application in to pursue the said remedy is not necessary In view of Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01 hand is dismissed. The application is accordingly 14. A perusal of the judgment of the Supreme Court in The Greater Bombay Cooperative Bankclearly shows that an Agreement to Sell which is not registered would not give the Petitioner a right to claim ownership in the property. The Supreme Court in the said judgment relied upon the rationale rendered the Supreme Court in Suraj Lampand “Immoveable property can be transferred only by a Registered document. There can be no transfer of any right title or interest in any immoveable property except by way of a registered document. In this behalf we may make reference to the judgment of this Court in Suraj Lamp & IndustriesLtd. v. State of Haryana1 SCC 656 wherein it was held as follows is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyanceno right title or interest in an immovable property can be transferred 19. Any contract of salewould fall requirements of Sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable propertyhas held that an Agreement to Sell executed in favour of the Petitioner being unregistered would not give a right to the petitioner to be recognized as the owner of the property. The relevant portion of the said judgment reads Thus even if A mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement the petitioner defendant would to occupy that property as an not get any right in Jiwan Das Vs Narain Das AIR 1981 Delhi 291 has held that in fact no rights enure to the agreement purchaser not even after the passing of a decree for specific performance and till conveyance in accordance with law and in pursuance thereto is executed the petitioner has to remain in occupation of the premises or retain possession of the premises merely because of the agreement to sell in his favour.” Thus in law 16. Mr. Singh ld. Counsel for the Petitioner has placed reliance on the judgment of the Madras High Court in C.M.V. Krishnamacharito argue that in the said case the Court had held that such a Petitioner ought to have been impleaded as a supplemental defendant to the suit proceedings by exercising powers under Order I Rule 10(2) CPC. The Petitioner in the said case did not claim to be a necessary party to the suit. The Madras High Court in the said judgment had noted the following fact “It is not claimed that the petitioner is a person who ought to have been joined as a necessary party to the suit and the only question is whether he could be Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01 impleaded as a party whose presence before the court may be necessary in order to enable the court effectually and completely adjudicate upon and settle the questions involved in the suit.” Thus the Madras High Court has in the above decision permitted the presence of the person by impleading as a supplemental defendant. The said “28. He is impleaded only for the limited purpose ofestablishing that the property is the separate the first defendant or property of his vendor alternativelyfor suggesting to the Court without prejudice to the interest of the plaintiffs the property agreed to be sold may be allotted to the share of the first defendant so that in a separate suit of his own he can either obtain specific performance or enforce a charge under Section 55(6)(b) against the property in the hands of the first defendant after a final allotment in the partition suit the trial Court and direct impleaded as a supplemented defendant.” For all these reasons I set aside the order of the petitioner be Further the present case is slightly distinguishable from the facts in C.M.V Krishnamacharias the said judgment was passed prior to the judgment of the Supreme Court in Suraj Lampwherein it was held that no unregistered document can be used to determine ownership or legitimate sale of property. The Supreme Court in Suraj Lamphad recognized the said principle and rendered it prospectively applicable by Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01 “16. We therefore reiterate that immovable property can be legally and lawfully transferred conveyed only by a registered deed of conveyance GPA sales or the nature of SA GPA WILL transfers do not convey title and do not amount to transfer nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable They cannot be recognized as deeds of title except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA GPA WILL transactions known as GPA 17. It has been submitted that making declaration that GPA sales and SA GPA WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of is also submitted that should be made applicable prospectively to avoid 18. We have merely drawn attention to and reiterated the well settled legal position that SA GPA WILL transactions are not transfers or sales and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01 said existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to transactions may also be used to obtain specific performance or to defend possession under Section 53A of Transfer of Property Act. If they are entered before this day they may be relied upon to apply for regularization of allotments leases by Development Authorities. We make it clear that if the documents relating to SA GPA WILL transactions has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation they need not be disturbed merely on account of this decision.” 17. Accordingly given the fact that the Agreement to Sell was entered into by the Petitioner herein on 21st March 2018 post the judgment in Suraj Lampwherein the Supreme Court clearly held that an unregistered Agreement to Sell cannot be the basis of claiming ownership the said to Sell cannot in law be a ground or the basis for the impleadment of the Petitioner in a partition suit 18. A suit for partition has to be adjudicated between the co owners of the property. Since the rights of the Petitioner if any are yet to be determined in the suit for specific performance which is pending before the Trial Court the Petitioner cannot claim a right to be impleaded in the suit for partition Thus the Trial Court is not at fault in holding that the suit for partition would have to be adjudicated only between the co owners This Court however agrees with the spirit of the rationale in C.M.V Krishnamachariespecially because the Petitioner herein claims to have paid more than a sum of Rs. One Crore as in terms of the Agreement to Sell dated 21st March 2018 Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01 20. On a query put to the Counsels it is confirmed that the subject suit for partition being CS DJ No. 1330 2018 titled Ashok Kumar Singh vs Gurcharan Singh Pahwa and the suit for specific performance filed by the Petitioner being CS DJ 246 21 titled Rajbala Ghiloria v Gurucharan Singh Pahwa are pending before the same Court i.e. Central District Tis Hazari Courts New Delhi. Since both the suits are in respect of the same suit property and broadly involve the same parties the following directions are Both the suits being CS DJ No. 1330 2018 titled Ashok Kumar Singh vs. Gurcharan Singh Pahwa and CS DJ 246 21 titled Rajbala Ghiloria v Gurucharan Singh Pahwa shall be listed before the same ADJ at the Tis Hazari Courts so that the said Court is conscious of the pendency of the specific performance suit while deciding the suit for partition ii) Both the suits shall proceed independently for trial iii) However prior to passing of any decree of preliminary decree of partition or physical division by metes and bounds or any other directions which may affect the possession of the Petitioner being disturbed the Petitioner herein who has filed the suit for specific performance and is in possession of some part of the suit property shall be allowed to make his submissions so that the relief to be granted in the partition suit is balanced in accordance with the law 21. With these observations the petition is disposed of. All pending applications are also disposed of. Let a copy of the present order be sent to Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01 the ld. District Judge Central District Tis Hazari Courts so as to list both the suits before the same ADJ The digitally signed copy of this order duly uploaded on the official website of the Delhi High Court www.delhihighcourt.nic.in shall be treated as the certified copy of the order for the purpose of ensuring compliance. No physical copy of orders shall be insisted by any authority entity or litigant OCTOBER 25 2021 PRATHIBA M. SINGH Digitally Signed By:DEVANSHUJOSHISigning Date:27.10.2021 13:55:01

The appellate court should interfere with the conclusions of the trial court only when they are palpably erroneous, unreasonable, perverse and likely to result in injustice: Bombay High Court

The appellate court should interfere with the conclusions of the trial court only when they are palpably erroneous, unreasonable, perverse and likely to result in injustice, this was upheld as a part of the principle on which reversal of acquittal is based, in the recent matter of The State of Maharashtra v. Omprakash @ Munna Aliyar Singh & Ors. [CRIMINAL APPEAL NO. 428 OF 2001], listed Bombay High Court, Criminal Civil Appellate Jurisdiction. The final proceedings of the case were taken place on February 10th 2022, and the said proceedings were presided by a coram comprising of Justice S.S. Shinde & Justice Milind N. Jadhav. The facts, as presented before the court of law, are as follows. Respondent No. 1 and his father had a long-standing dispute with the deceased and his brother in respect of a room housing a manufacturing unit. The deceased and his brother had paid a consideration of Rs. 50,000.00 to the Respondent No. 1 and his father for the manufacturing unit. However, the latter demanded more money from the former, over and above the consideration that was already paid. On 27.11.1997 the deceased left the manufacturing unit. According to the Prosecution, the deceased was attacked and assaulted with deadly weapons. As a result, the deceased was injured seriously. However, on reaching the hospital, the deceased was pronounced dead. The court also places reliance on Murlidhar @ Gidda v. State of Karnataka [2014 (5) SCC 730 : 2014 (2) SCC (Cri) 690] where it was held that “the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.” Court, after perusal of facts and evidences, held that “reversal of acquittal is permissible on the touchstone of the principle that the appellate court should, generally, be loath in disturbing the finding of facts recorded by a trial court as the trial court has the advantage of seeing the demeanor of the witnesses, and that the appellate court should interfere with the conclusions of the trial court only when they are palpably erroneous, unreasonable, perverse and likely to result in injustice.” In addition to the above, the court related the case with the principle and held that “we may state that there are demonstrable flaws in the evidence given by the key prosecution witnesses.. However, given that this evidence in our opinion is not only palpably erroneous, but also unreliable to prove the chain of causation of the actual incident beyond reasonable doubt. The findings of the Trial Court conform with our reappraisal of evidence on record, and hence we concur with the findings of the Trial Court in its entirety.” Judgment reviewed by Pranav Sharma

Ajay IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CIVIL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 428 OF 2001 The State of Maharashtra At the instance of Sr.P.I. of Dindoshi Police Station Vide C.R.No. 60 Versus 1. Omprakash @ Munna Aliyar Singh 2. Sanjay Gopal Pawar 3. Rakesh @ Babu Sakharam Tejam 4. Prakash Chhedilal Nagar All residing at Aliyarsingh Chawl Shivaji Nagar MaladMumbai 400 097 Orig. Accused Nos. 1 to 4  Mr. V.B. Kondedeshmukh APP for Appellant State  Mr. M.K. Kocharekar for Respondent Nos. 1 to 4. CORAM : S.S. SHINDE MILIND N. JADHAV JJ RESERVED ON : 20 DECEMBER 2021 PRONOUNCED ON : 10 FEBRUARY 2022 JUDGMENTThe learned Additional Sessions Judge Court of Sessions Greater Bombay by judgement and order dated 26.02.2001 28.02.2001 has acquitted Respondent Nos. 1 to 4of the offences punishable under Section 302 read with Section 34 of the Indian Penal Code 1860in furtherance of their common intention at 6:00 PM on 27.11.1997 in front of a paan beedi shop of one Shri. Radheshyam Shivshankar Rai which is adjacent to the hardware shop of Maharashtra Trading Company situated at Adarsh Nagar Chowk Kurar Village MaladMumbai Before we advert to the submissions made by the respective advocates and to the reappraisal of evidence on record it will be apposite to refer to the relevant facts of the incident briefly Respondent No. 1 is the son of Shri. Aliyar Singh who is the owner of a chawl near the spot of the incident. Respondent No. 1 and his father have had a long standing dispute with the deceased and his brother Shri. Jitendra Ramchandra Singhin respect of a room housing a manufacturing unit. This dispute pertained to the transaction and valuation by which the manufacturing unit was purchased by the deceased and his brother from the father of Respondent No. 1 The deceased and his brother Shri. Jitendra Singhwas beside the deceased at the time The police constable on duty thereafter registered an entry in the Emergency Police Registerand informed the concerned police station by telephone. Shri. Trimbak Lal Patilthe Investigating Officer immediately visited Bhagwati Hospital. He was told that Shri. Jitendra Singhwas not in a position to make any statement. As a result he recorded the statement of the owner of the paan shop Shri. Radheshyam Rai and treated the same as the First Information Reportand sent for chemical analysis A chargesheet was filed before the Additional Chief Metropolitan Magistrate of the 24th Court Borivali. As the offence was exclusively triable by the Court of Sessions the learned Metropolitan Magistrate committed the case to the Court of Sessions Greater Bombay under the provisions of Section 209 of the Code of Criminal Procedure 1973and Shri. Sagar Gawadethe finding of the Trial Court that Shri Jitendra Singhwas not present at the time of the commission of the act is erroneous the testimony of Shri. Jitendra Singhand Shri. Sagar Gawadeis corroborated by the deposition of Shri. Dharmendra Singhwho had heard of the plan to assault the deceased the evidence of all the aforementioned three witnesses along with the recovery of the blood stained clothes and weapons recovered pursuant to the statement recorded by Respondent No. 3 and 4 themselves proves the case of the Prosecution beyond reasonable doubt. We shall now outline and then scrutinize the evidence given by each of the three witnesses based upon which Prosecution makes out its case against the Respondents Shri. Jitendra Singhbrother of the deceased has deposed as under i. He states that he opened the manufacturing unit at 9:00 AM on 27.11.1997 as usual. At around 6:00 PM the deceased left the manufacturing unit and went to the paan shop of Shri. Radheshyam Rai which is in the vicinity of the manufacturing unit In Paragraph 5 of his examination in chief he has deposed as under “5….then my brother Virendra left our factory at about 6:00 PM on that day Then he went to paan shop to take paan as usual the said paan shop was in front of our factory. That time I had remained in our factory as a phone call was received from the customer. The said phone call was for the purpose of supplying of goods from our factory. So I went out of the factory to call out my brother. Then that time I saw persons on the street were running away. The people were helter and skelter on the road. Then I came little ahead from my factory and I saw that my brother was being assaulted by all the four accused now before the court.” as well as further aspects to the case that arise from his evidence are as follows From the evidence given by P.W. 1 it is clear that the incident took place in the presence of Shri. Radheshyam Rai the owner of the paan shop adjacent to the factory His clothes are also said to have been stained with the blood of the deceased. It is also stated that he accompanied P.W. 1 to the various hospitals. Thus Shri Radheshyam Rai becomes an important witness to the incident. However surprisingly Shri. Radheshyam Rai has not been examined by the Prosecution. This deficiency in the Prosecution’s case has also been underscored by the Trial Court. Furthermore the blood stained clothes of Shri. Radheshyam Rai have also not been seized by the Investigating Officer and no explanation for the same has been given P.W. 1 is the brother of the deceased and therefore is an interested witness especially owing to the long standing disputes between the deceased and the Respondents iii. Notwithstanding P.W. 1’s deposition in Paragraph 5 of his examination in chief there is an additional item of evidence on record that raises a doubt as to the presence of P.W. 1 at the spot of the incident. Shri. Dharmendra Singh has deposed that he saw Shri Radheshyam Rai the owner of the paan shop take the then injured deceased to a hospital in an autorickshaw However P.W. 3 does not mention the presence of P.W 1 at the spot of the incident or in the autorickshaw along with Shri. Radheshyam Rai The presence of P.W. 1 at Bhagwati Hospital along with the body of the deceased and Shri. Radheshyam Rai is 1 directly contradicted by two additional items of evidence a. The Emergency Police Register does not reflect the name of P.W. 1 despite the fact that he was the only relative of the deceased who was purportedly present at Bhagwati Hospital b. Contrary to P.W. 1’s deposition as to his whereabouts while at Bhagwati Hospital Shri Trimbak Lal Patil the Investigating Officer) and Shri. Dharmanand(P.W. 12 the police constable on duty) have deposed that the body of the deceased was in the morgue by the time P.W 11 arrived at Bhagwati Hospital. Therefore the question of P.W. 1 sitting and wailing beside the body of the deceased does not arise. In Paragraph 37 and 39 of his cross examination P.W. 11 states “37. It is true that in none of the panchanamas prepared in the hospital there is reference to presence of Jitendra Singh. It is true that in spot panchanama also there is not reference to his Emergency Police Register 38. … 39. …I did not make any 1 enquiries from constable on duty at the hospital as to who informed him about the four In view of our observations as above we find that a serious doubt has been raised as to whether Shri Jitendra Singh was even present at the spot of the incident or at the hospital thereafter which fells the Prosecution’s assertion of P.W 1 being an eyewitness to the incident entirely. Our observation is further strengthened with the fact that the blood stained clothes of P.W.1 have not been seized or recovered as evidence if it is his case that he carried the deceased alongwith Radheshyam Rai to the three hospitals. Shri. Sagar Gawade is also stated by the Prosecution to be an eyewitness to the incident. He has deposed as i. He was standing at the junction when the incident took place also witnessed it but did not appraoch the police as he was too scared Paradoxically he also stated that he along with a friend went to visit the Respondent Nos. 1 to 4 in jail in January 1998 and was not afraid of doing so because he was with his friend 1 In his cross examination he has deposed that after the incident and till the recording of his statements he was attending to his duty as a salesman of garments as usual Our observations on the evidence given by Shri. Sagar Gawadeare as follows Although the incident took place on 27.11.1997 the statement of P.W. 2 was recorded by the police authorities on 04.12.1997 i.e. seven days after the incident. The delay in the recording of P.W. 2’s statement is unexplained and prima facie suspicious It has come on record that P.W. 2 was found in the company of Respondent Nos. 2 to 4 when they were arrested. The same is confirmed by the Station House Diary produced by the Prosecution. As such even though Shri. Trimbak Lal Patil P.W. 11 the Investigating Officer) has deposed that P.W. 2 was separately summoned to the police station in the evening of 03.12.1997it cannot be ruled out that P.W. 2 was arrested along with the Respondent Nos. 2 to 4 and forced to be a prosecution witness Thus the evidence given by P.W. 2 does not inspire any confidence especially since his statements are 1 inconsistent with each other Shri. Dharmendra Singhanother witness examined by the Prosecution has deposed inter alia that he visited the video center of the Respondent No. 1 four days prior to the incident where he heard all the Respondents conversing about a quarrel that they had with the deceased and about how they plan to deal with the deceased However he has deposed that he had not mentioned this incident in the statement he gave to the police. We may state our analysis of the evidence given by this witness as follows The statement of P.W. 3 has been recorded on 08.01.1998 i.e. forty days after the incident even though P.W. 3 was available from the date of the incident till 30.11.1997 and thereafter from 08.12.1997 to 08.01.1998. This unexpected delay raises a serious doubt as to the veracity of the evidence given by P.W. 3 As stated earlier P.W. 3 did not mention Shri. Jitendra Singhas being present at the spot of the incident. Thus the evidence given by P.W. 3 does not even corroborate that of P.W. 1 and is in any case unreliable because of the aforementioned unexplained delay in recording his statement That apart P.W. 3 has not deposed about hearing "any plan" to eliminate the deceased from the Respondents 1 four days ago. He has deposed about hearing from the Respondents that "they will have to see him" due to their quarrel with the deceased. This statement amongst the Respondents does not amount to hatching any plan to eliminate or kill the deceased. Shri. Sunil Guptais the owner of the house from which the blood stained clothes and weapons purportedly used by the Respondents were seized. There are two circumstances pertinent to note in relation to the evidence given by P.W. 4 which are as follows It is important to note that P.W. 4 deposed that he had visited Arthur Road Jail with one Shri. Parag Kalusingh Pardeshi to meet the Respondents on 24.06.2000 which was before the recording of his evidence. This raises a serious doubt as to the veracity of the evidence given by P.W. 4 P.W. 4 deposed that the Respondent Nos. 2 to 4 had come to his room changed their clothes and kept the clothes they were wearing during the incident in the room. However the police authorities recovered only the clothes of the Respondent Nos. 3 and 4 in the course of their investigation. Thus the evidence given by P.W. 4 in this regard does not inspire any confidence. 1 At this juncture we may also highlight one relevant aspect of Shri. Trimbak Lal Patil who deposed that the blood stained clothes of the Respondent No. 2 were on his person at the time of arrest and were seized therefrom However the Respondent Nos. 2 to 4 were arrested on 03.12.1997 i.e. seven days after the incident it is impossible for the Respondent No. 2 to have worn the blood stained clothes for a period of seven days. Thus even the evidence given by the Investigating Officer in the present case is not without its shortcomings. Shri. Bansi Prasada pancha who witnessed the seizure of the weapons and blood stained clothes from Shri. Sunil Gupta is the witness to the inquest panchanama. Shri. Sureshbhai Patelis the witness to the spot panchanama. Dr. Manikprabhakar Sangale is the doctor who conducted the autopsy of the body of the deceased. Shri. Ramesh Mahimkaris the draftsman of the map of the scene of crime Shri. Dilip Amrellais a photographer who photographed the scene of the crime as well the body of the deceased in Bhagwati 1 Hospital. We have perused the depositions of these witnesses carefully but the same do not throw any light on the culpability of the It is a well settled position of law that reversal of acquittal is permissible on the touchstone of the principle that the appellate court should generally be loath in disturbing the finding of facts recorded by a trial court as the trial court has the advantage of seeing the demeanor of the witnesses and that the appellate court should interfere with the conclusions of the trial court only when they are palpably erroneous unreasonable perverse and likely to result in The Hon’ble Supreme Court in the case of Murlidhar Gidda vs. State of Karnataka 1 while considering criminal appeals averted to the fundamental principles to be kept in mind by an appellate court while hearing an appeal against acquittal. Paragraphs 10 11 and 12 are relevant and read thus “10. Lord Russell in Sheo Swarup61 IA 398 :highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said :the views of the trial Judge as to the credibility of the 1 2014SCC 730 : 2014SCC690 1 witnesses the presumption of innocence in favour of the accused a presumption certainly not weakened by the fact that he has been acquitted at his trial the right of the accused to the benefit of any doubt andthe slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.” The opinion of Lord Russell has been followed over the years. 11. As early as in 1952 this Court in Surajpal Singhwhile dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed :Madan Mohan SinghAtleyAher Raja Khima Aher Raja Khima v. State of Saurashtra AIR 1956 SC 217 : 1956 Cri LJ 426] Balbir Singh Balbir Singh v. State of Punjab AIR 1957 SC 216 : 1957 Cri LJ 481] M.G. Agarwal1 Cri LJ 235] Noor Khan1 Cri LJ 167] Khedu Mohton2 SCC 450 1970 SCC479] Shivaji Sahabrao Bobade Shivaji Sahabrao Bobade v. State of Maharashtra 2 SCC 793 : 1973 SCC Cri) 1033] Lekha Yadav2 SCC 424 : 1973 SCCKhem Karan4 SCC 603 : 1974 SCC639] Bishan Singh3 SCC 288 : 1973 SCC914] Umedbhai Jadavbhai1 SCC 228 : 1978 SCC Cri) 108] K. Gopal Reddy1 SCC 355 : 1979 SCC Cri) 305] Tota Singh2 SCC 529 : 1987 SCCRam KumarSCC 248 : 1995 SCC Cri) 355] Madan Lal7 SCC 677 : 1997 SCCSambasivan5 SCC 412 : 1998 SCCBhagwan Singh4 SCC 85 : 2002 SCCHarijana Thirupala6 SCC 470 : 2002 SCC1370] C. Antony1 SCC 1 : 2003 SCC Cri) 161] K. Gopalakrishna9 SCC 291 : 2005 SCC1237] Sanjay Thakran State of Goa v. Sanjay Thakran 3 SCC 755 :2 SCC162] and Chandrappa Chandrappa v. State of Karnataka 4 SCC 415 :2 SCC325] . It is not necessary to deal with these cases individually Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal the appellate court must bear in mind i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal iii) Though the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case interference by the appellate court with the judgment of acquittal is not justified. Unless the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand they are likely to result in grave injustice the reluctance on the part of the appellate court 1 in interfering with such conclusions is fully justified and iv) Merely because the appellate court on reappreciation and re evaluation of the evidence is inclined to take a different view interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial In view of the above discussion and findings we may state that there are demonstrable flaws in the evidence given by the key prosecution witnesses. The Prosecution has heavily relied on the circumstantial evidence given by the three witnesses as alluded to and discussed above to make out its case against the Respondents However given that this evidence in our opinion is not only palpably erroneous but also unreliable to prove the chain of causation of the actual incident beyond reasonable doubt especially because Shri. Radheshyam Rai the first informant and owner of the paan shop has not been examined by the Prosecution The findings of the Trial Court conform with our reappraisal of evidence on record and hence we concur with the findings of the Trial Court in its entirety. In view thereof the impugned judgement and order does not call for any interference. Criminal Appeal stands dismissed with no order as to costs [ S. S. SHINDE J.] 2

KOCHUKAKKADA ABOOBACKER (DEAD) BY LRS & ORS VS V. ATTAH KASIM & ORS

“The paucity of evidence and the pleadings were far from clear” The petitioner seeks to highlight the plight of A-3 is a crucial document in establishing the title of the plaintiffs in the property. In those judicial proceedings it was declared that the defendants in that suit had no title to the tress. It would appear that in the island, the title to the trees is relatable to the title to the land. That finding gets corroboration from other judicial proceedings under Ex. A-4, A-8 and A-9. It would thus be clear that the title of the property which is the subject matter of the partition suit in favour of the respondents, stands established. The appellate Court had not considered these documents in proper perspective and the effect of those documents on the rights of the parties. The plaintiffs and the first defendant are children of Ahmad Malmi through his first and second wives respectively. The only claim was with regard to one item, namely, Konchukakkada property.It is seen that the case of the plaintiffs was that it was left undivided to the extent of their 3/4th share therein of their father and that; therefore, they are entitled to partition and separate share.PROCEDURAL HISTORY:High Court in Second Appeal No.542/75 passed on 13.2.1979, we are of the view that the High Court has rightly interfered with the concurrent finding of fact recorded by the trial Court as well as by the appellate Court and decreed the suit.The trial Court had wrongly proceeded on the premise of burden of proof on the plaintiff which was corrected by the appellate Court.  However, the appellate Court committed another error of not considering the documentary evidence in proper perspective of the respective claims of the parties.ISSUE BEFORE THE COURT:Whether there was any error of law made by the courts?RATIO OF THE COURT:The court held that the previous court finding is based on total misconceptions as to the nature of the documents relied upon. The finding is not reasonably supported by any evidence whatever. On the other hand the evidence to the contrary was ignored. Exts. A-1 to A-3 as well as Exts. A-4, A-6, A-8 and A-9, whatever their evidentiary value, were a pointer in the opposite direction. Exts A-1 to A-3 showed that the suit properties were gifted in favour of the plaintiff. Ext. A-4 showed that the authorities competent to decide on title to coconut trees considered that the trees standing in the suit property belonged to the plaintiffs. The court pointed that Ext. A-4 showed that the authorities competent to decide on title to coconut trees considered that the trees standing in the suit property belonged to the plaintiffs. It would appear, as stated by the lower appellate court, that on the island at the relevant time, disputes as to title to properties arose only in the form of disputes about trees. The dispute in regard to the trees in Ext. A-4 proceedings was thus a dispute in regard to the ownership of the property in which the trees stood. Exts. A-8 and A-9 proceedings confirmed the validity of Ext. A-3 and rejected the 1st defendant’s contentions to the contrary. The statement of the 2nd defendant in his capacity as the power-of-attorney-holder of the 1st defendant’s contentions to the contrary. The statement of the 2nd defendant in his capacity as the power-of-attorney holder of the 1st defendant to the effect that Attah Mohammad had rights in the suit property is also very significant. The Munsif as well as the Judge felt that there was a paucity of evidence and the pleadings were far from clear. As stated by them, the pleadings on the island at the relevant time were not drafted by experts. The court held that in this case was not conducted with the assistance of counsel, as the parties were represented by local Mikthiars who had no legal training. Only at the appellate stage did counsel appear. But with all this infirmity and handicaps, it seems to me that one thing stands out clear, and that is, the property in question belonged to Ahmmad Malmi and his nephew Abdul Rahman and they were self-acquisitions of those persons. It is also clear that Abdul Rahman transferred his share in the property to Pathumma and her children including the Ist plaintiff. The court further stated that furthermore, the plaintiffs are the heirs of Ahmmad Malmi. The only defendant who was personally connected with Ahmmad Malmi was the 1st defendant who was born to him by his second marriage. The plaintiffs recognise the rights of defendants 1, 2 and 5 to claim their share in the property in accordance with their personal law. The case of the plaintiffs appears to be reasonable, just and in the circumstances, well founded. The court held that they are entitled to a decree The Munsif after finding that the plaintiff did not discharge their burden to prove that the suit property was available for partition, worked out the share to which the parties were entitled in the event of his finding on the question of partition being reversed in appeal. The allotment of shares by the Munsif has not been challenged, and the court therefore, accepts it as final.DECISION HELD BY COURT:The court finally held that the parties have to work out their rights in furtherance thereof.The court held that having considered the totality of the facts and circumstances, the court the considered the view that the learned Judge had rightly interfered with the concurrent finding of fact recorded by the trial court and the appellate court and granted a preliminary decree for partition.The court did not find any error of law much less substantial question of law, for interference.

KOCHUKAKKADA ABOOBACKERBY LRS. & ORS DATE OF JUDGMENT: 16 01 1996 1996 SCC 389 JT 1996658 1996 SCALE (1)SP36 Vs ATTAH KASIM & ORS RAMASWAMY K RAMASWAMY K G.B. PATTANAIK (J O R D E R Having perused the judgment of the High Court in Second Appeal No.542 75 passed on 13.2.1979 we are of the view that the High Court has rightly interfered with the concurrent finding of fact recorded by the trial Court as well as by the appellate Court and decreed the suit The trial Court had wrongly proceeded on the premise of burden of proof on the plaintiff which was corrected by the appellate Court. However the appellate Court committed another error of not considering the documentary evidence in proper perspective of the respective claims of the parties Admittedly the plaintiffs and the first defendant are children of Ahmad Malmi through his first and second wives respectively. The only claim was with regard to one item namely Konchukakkada property. It is seen that the case of the plaintiffs was that it was left undivided to the extent of their 3 4th share therein of their father and that therefore they are entitled to partition and separate share. Ex.A 3 is a crucial document in establishing the title of the plaintiffs in the property. In those judicial proceedings it was declared that the defendants in that suit had no title to the tress. It would appear that in the island the title to the trees is relatable to the title to the land. Under those circumstances the High Court has proceeded on the basis that it was relatable to the title to the property. That finding gets corroboration from other judicial proceedings under Ex. A 4 A 8 and A 9. It would thus be clear that the title of the property which is the subject matter of the partition suit in favour of the respondents stands established. The appellate Court had not considered these documents in proper perspective and the effect of those documents on the rights of the parties Accordingly the learned Judge reluctantly had reconsidered the evidence and in our view quite rightly since it is not a mere appreciation of evidence but drawing inferences from the admitted documents. Since proper construction of the documents and inferences have not legally been drawn by the appellate Court the High Court has gone in detail and recorded the finding thus "It is with extreme reluctance that I interfere with the concurrent finding on questions of facts. But the finding is totally without evidence and is therefore perverse. The finding is based on total misconceptions as to the nature of the documents relied upon. The finding is not reasonably supported by any evidence whatever. On the other hand the evidence to the contrary was ignored. Exts. A1 to A3 as well as Exts A4 A6 A8 and A9 whatever their evidentiary value were a pointer in the opposite direction. Exts. A1 to A3 showed that the suit properties were gifted in favour of the plaintiff. Ext A4 showed that the authorities competent to decided on title to coconut trees considered that the trees standing in the suit property belonged to the plaintiffs. It would appear as stated by the lower appellate court that in the Island at the relevant time disputes as to title to properties arose only in the form of disputes about trees. The dispute in regard to the trees in Ex. A4 proceedings was thus a dispute in regard to the ownership of the property in which the trees stood Again the decision in Exts. A8 and A9 proceedings confirmed the validity of Ext. A3 and rejected the Ist defendant’s contentions to the contrary. The statement of the 2nd defendant in his capacity as the power of attorney holder of the ist defendant’s contentions to the contrary. The statement of the 2nd defendant in his capacity as the power of attorney holder of the Ist defendant to the effect that Attath Mohammad had rights in the suit property is also very significant. The Munsif as well as the Judge felt that there was a paucity of evidence and the pleadings were far from clear. As stated by them the pleadings in the Island at the relevant time were not drafted by experts. The trial in this case was not conducted with the assistance of counsel as the parties were represented by local Mikthiars who had no legal training. Only at the appellate stage did counsel appear. But with all this infirmity and handicaps it seems to me that one thing stands out clear and that is the property in question belonged to Ahmmad Malmi and his nephew Abndul Rahman and they were self acquisitions of those persons. It is also clear that Abdul Rahman transferred his share in the property to Pathumma and her children including the Ist plaintiff. Furthermore the plaintiffs are the heirs of Ahmmad Malmi. The only defendant who was personally connected with Ahmmad Malmi was the Ist defendant who was born to him by his second marriage. The plaintiffs recognise the rights of defendants 1 2 and 5 to claim their share in the property in accordance with their personal law. The case of the plaintiffs appears to be reasonable just and in the circumstances well founded. In my view they are entitled to a decree The Munsiff after finding that the plaintiff did not discharge their burden to prove that the suit property was available for partition worked out the share to which the parties were entitled in the event of his finding on the question of partition being reversed in appeal. The allotment of shares by the Munsif has not been challenged and I therefore accept it as final Accordingly a preliminary decree was passed by the learned Judge directing the parties to work out their rights in furtherance thereof Having considered the totality of the facts and circumstances we are of the considered view that the learned Judge had rightly interfered with the concurrent finding of fact recorded by the trial Court and appellate Court and granted a preliminary decree for partition. We do not find any error of law much less substantial question of law for interference The appeal is accordingly dismissed. No costs

The learned trial court has failed to make an analytical discussion of the evidence adduced on record: High Court of Orissa

The prosecution had not bothered to produce the weapon of offence before the learned trial court. Such an opinion was held by The Hon’ble High Court of Orissa before The Hon’ble Chief Justice B.P. Routray in the case of Suduru @ Sudarsan Gouda Vs. State of Orissa [CRLA No.473 of 2014].  The facts of the case were associated with the appellant Suduru @ Sudarsan Gouda who had been sentenced to life imprisonment for commission of an offence under Section 302 of the I.P.C. by the learned Special Judge-cum-2nd Addl. Sessions Judge, Berhampur. It was reported that the appellant detained the autorickshaw; where the deceased Raghumani Das and his wife Bangali Das was in, who was a resident of village Balarampur and belonged to the scheduled caste community and so was the appellant; attempted to kill the wife by a knife. Later, after reaching home the deceased with his wife and daughter went to the pond for disinfection. Later the wife after reaching home received news from Naba Das of their village that the appellant stabbed Raghumani Das with a knife near the village library.  F.I.R was lodged by Harihar Sahu. The investigation was carried. The dead body and sent dead body for post-mortem examination to MKCG Medical College and Hospital, Berhampur. The Appellant faced trial taking the plea of innocence. During the proceedings, the prosecution examined thirteen witnesses and marked eighteen documents as Exhibits. Further, The trial court upon conclusion of the trial found him guilty for the charge under Section 302 of the I.P.C. but acquitted him from the offence under the SC & ST (PoA) Act. As seen from the evidence of P.Ws.1, 4 and 5, they were the post occurrence witnesses, who had admitted that they had not seen the alleged assault. From a thorough analysis of the evidence of P.Ws.1, 2, 3, 4 & 5, nothing can be taken to implicate the Appellant as the author of the crime. The prosecution did not bring further against the appellant. No motive on the part of the Appellant has been suggested or attributed against the appellant for causing any murderous assault on the deceased. The Hon’ble Court stated that “… In view of the discussions made above, it is thus concluded that the prosecution has failed to prove the charge of murder against the Appellant beyond all reasonable doubts. Accordingly, the impugned judgment conviction dated 21st February, 2014 is set aside and the Appellant is acquitted from the charges. He is held not guilty for the charge under Section 302 of the I.P.C. and directed to be released forthwith from the custody, if his detention is not required in any other case. The appeal is allowed.”

IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.4714 From the judgment dated 21st February 2014 passed by Shri Chintamani Panda learned Special Judge cum 2nd Addl. Sessions Judge Berhampur in Sessions Case No.88 of 2009 Sessions Trial No.286 of 2009 of G.D.C.) Suduru @ Sudarsan Gouda Versus State of Orissa Advocate(s) appeared in this case : For Appellant For Respondent Mrs. Saswat Patnaik A.G.A Mr. Ashok Das Advocate CORAM : THE CHIEF JUSTICE JUSTICE B.P. ROUTRAY 21st October 2021 B.P. Routray J. 1. The sole Appellant namely Suduru @ Sudarsan Gouda has been convicted and sentenced to life imprisonment for commission of offence under Section 302 of the I.P.C. by the learned Special Judge cum 2nd Addl. Sessions Judge Berhampur. 2. The deceased Raghumani Das was a resident of village Balarampur and belonged to scheduled caste community. The Appellant also belongs to the same village Balarampur under Hinjli Police Station. On 30th CRLA No.4714 January 2009 in the afternoon while the deceased along with his wife Bangali Daswas returning in an auto rickshaw driven by Arjun Dasthe Appellant detained their auto rickshaw and attempted to kill P.W.2 by means of a knife. The deceased protested the same. Thereafter the Appellant fled away and the deceased along with P.W.2 returned to their house. On the same evening at around 7.30 P.M. the deceased along with P.W.2 and their daughter Mami Dashad gone near the village pond for defecation. After cleaning in the village pond the deceased returned first and P.Ws.2 and 3 were still at the village pond. At that time one Naba Das of their village came running to P.Ws.2 and 3 and told that the Appellant stabbed deceased by means of a knife near village library and he was lying there with bleeding injury. Immediately both P.Ws.2 and 3 rushed to the spot and found the deceased lying in a pool of blood having an injury in the left side abdomen. Thereafter other villagers namely Sarat Chandra DasLochan Dasand others gathered and the deceased was shifted in the same auto rickshaw of P.W.4 to the hospital where the doctor declared him dead. P.W.2 lodged the F.I.R. under Ext.9 scribed by P.W.10 Ramesh Chandra Sethi which was registered as Hinjli Police Station Case No.09 dated 30th January 2009. The F.I.R. was registered by Harihar Sahuthe then Police Sub Inspector present in the Police Station. He then took up investigation and requested the SDPO Aska Shri B.P.Dehuri to take up investigation as the deceased is a member of the scheduled caste community. Requesting so P.W.11 proceeded to investigate the case and examined the informant and other witnesses visited the spot collected sample earth bloodstained earth held inquest over the dead body and sent the dead body for post mortem examination to MKCG Medical College and Hospital Berhampur. He CRLA No.4714 thereafter arrested the Appellant on 31st January 2009 and as per the disclosure statement given by the Appellant discovered the weapon of offence i.e. the knife from the house of one Narshu Gouda of village Alavigada and seized the same under Ext.4. P.W.11 continued the investigation till 25th March 2009 and then handed over it to the SDPO. On the same day P.W.12 Binaya Krushna Kamila DSP took up investigation from B.P. Dehuri and on completion of investigation P.W.12 submitted the chargesheet on 29th May 2009 for offences under Section 302 of the I.P.C. and Section 3(2)(v) of the SC & STAct against the accused. 3. The Appellant faced trial taking the plea of innocence. In course of trial the prosecution examined thirteen witnesses and marked eighteen documents as Exhibits. The Appellant examined himself as Defense Witness No.1 in support of his plea of innocence. 4. The learned trial court upon conclusion of trial found him guilty for the charge under Section 302 of the I.P.C. but acquitted from the offence under the SC & STAct. The learned trial court convicted the Appellant mainly relying on the evidence of P.Ws.1 2 and 4. 5. As seen from the medical evidence the deceased died homicidal death. P.W.6 Dr.Sachidananda Mohanty who postmortem examination over the dead body on 31st January 2009 at 11.30 A.M. has opined that the deceased died due to the stab wound which was ante mortem and homicidal in nature. He noticed one stab wound of size 5 cm x 2 cm up to cavity deep over the left chest 5 cm below from the left nipple and another abraded contusion of size 0.5 cm x 0.5 cm. over the right elbow. On dissection he further noticed that CRLA No.4714 stab wound was entering to the left thoracic cavity through 5th intercostal space and subsequently enters to left ventricle in the postero lateral aspect resulting collection of blood around 500 ml. in the thoracic cavity. The time of death was within 12 to 18 hours which means in between 5.30 P.M. to 11.30 P.M. on 30th January 2009. The inquest report under Ext.2 as well as the statement of different witnesses supports the injury sustained by the deceased as described by P.W.6. As such no doubt is left to conclude the death of the deceased as homicidal. 6. It is seen that the learned trial judge without discussing the evidences treated P.W.2 as an eyewitness. It is mentioned at page 9 of the impugned judgment that “.. xx .. .. From the evidence of P.W.2 and the evidence of P.Ws.1 & 4 that the accused led the police and gave recovery of the knife. It is material evidence against the accused as the accused was prepared beforehand to commit the murder of the deceased and attempted while the deceased was returning with his wife after leaving their daughter for her in law’s house there was sufficient preparation and intention to commit murder .. .. xx .. .. The evidence of accused as D.W.1 that he did not know the deceased and nor about his murder. His evidence is not acceptable in view of consistent nature of evidence of the prosecution witnesses and giving recovery of the knife.” It is also observed at page 11 that “.. xx … … Moreover the accused has prepared to cause murder he restrained the informant and deceased while they were returning after leaving their daughter in her in laws house. The accused has the intention to caused injury on the vital part of the body which caused injury to the heart of the deceased who died at the spot.” CRLA No.4714 7. Coming to examine the evidences of P.Ws.2 & 3 who claim to be eyewitnesses to the alleged assault made by the Appellant it is seen that their evidence goes contrary to the very contention of the F.I.R. lodged by P.W.2. They have stated in their evidence that while they were returning along with the deceased from the pond the Appellant stabbed the deceased causing severe bleeding injury. The defence in the cross examination have suggested both the witnesses to have not stated so in their earlier statement made before the investigating officer. This is also confirmed by P.W.11 who have examined both the witnesses under Section 161 Cr.P.C. P.W.11 in his evidence has admitted to the suggestion of defence that both P.Ws. 2 & 3 have not stated so before him in course of investigation. He has further admitted that these P.Ws.2 & 3 have stated before him that while both mother and daughter P.Ws. 2 & 3) were near the tank at that time Naba Das told them that Appellant stabbed the deceased. The recitals of the F.I.R. under Ext.9 also speaks in the same line. It has been categorically mentioned by P.W.2 in the F.I.R. that while she along with her daughter were present near the tankone Naba Das of their village informed them that the Appellant stabbed the deceased by means of a knife. Thus the statement of P.Ws.2 & 3 to the effect they saw the Appellant stabbing the deceased by a knife is not believed. The aforesaid statement of P.Ws.2 & 3 amounts to contradiction in terms of Section 162 of the Cr.P.C. The prosecution have tried to develop their case by such statement of P.Ws. 2 & 3 which is not permissible. Thus the evidence of P.Ws. 2 & 3 to the effect that they saw the Appellant dealing the knife blow to the deceased is discarded from their evidence. CRLA No.4714 8. Admittedly Naba Das who allegedly informed P.Ws. 2 and 3 about the assault has not been examined by prosecution as a witness. Said Naba Das is definitely a relevant witness as he first informed about the assault. His non examination casts a serious doubts on prosecution version. The evidence of P.Ws. 2 & 3 are hearsay evidence since they heard about the assault from Naba Das. So in absence of any statement from Naba Das the evidence of P.Ws. 2 & 3 to the effect that they know about the assault made by the Appellant cannot be accepted as reliable evidence. It is needless to say that hearsay evidence is a very weak piece of evidence. Therefore nothing can be utilized from the statement of P.Ws. 2 & 3 to implicate the Appellant as the assailant of the deceased. 9. As seen from the evidence of P.Ws.1 4 and 5 they are the post occurrence witnesses who have admitted to have not seen the alleged assault. From a thorough analysis of evidences of P.Ws.1 2 3 4 & 5 nothing can be taken to implicate the Appellant as the author of the crime. 10. The prosecution through the evidence of P.Ws.1 4 and 11 have projected another piece of evidence relating to discovery of weapon of offence at the instance of the Appellant under Section 27 of the Indian Evidence Act. The disclosure statement of the Appellant in this regard has been marked as Ext.3 and the seizure list of the knife is Ext.4. P.W.11 in his evidence has stated that the Appellant while in police custody gave discovery of the knife which he concealed in the house of one Narshu Gouda of village Alavigada and P.Ws. 1 & 4 are the witnesses of such disclosure information as well as seizure of the weapon. CRLA No.4714 Interestingly the knife was not produced before the learned trial court without assigning any reason which is the first deficiency noticed in this regard. Now looking to evidence of P.W.4 it is seen that he has denied in his cross examination about any such disclosure information given by the Appellant. It is stated by him that “.. xx .. .. when I reached at the P.S. found the accused present there in the P.S. and the knife was lying on the floor. On the instruction of police I myself and Sarat Chandra Das put our signatures in the seizure list. I do not know the contents of the seizure list under Ext.4” 11. P.W.4 appears to be truthful a witness. He is the auto rickshaw driver who brought the deceased P.Ws. 2 and 3 at the first instance when the appellant allegedly attempted to assault P.W.2. He is also the same driver who took the deceased in his auto rickshaw to hospital after the occurrence. On a close and careful analysis of his evidence in comparison with the evidence of P.Ws. 1 and 11 to the extent that the Appellant gave discovery of the weapon of offence the evidence of P.W. 4 seems more trustworthy than them. P.W. 4 speaks truthfully and that goes contrary to theirevidences. So what is stated by the P.W.11 and supported by P.W.1 in respect of discovery of the weapon of offence is viewed with serious doubt. As such the same is not accepted as a reliable evidence. 12. Except as discussed above there is no further material from prosecution side. Nothing more has been brought by prosecution against the Appellant. No motive on the part of the Appellant has been suggested or attributed against the appellant for causing any murderous assault on the deceased. The first incident alleged by prosecution that the Appellant attempted to assault P.W.2 while they were returning in CRLA No.4714 the auto rickshaw of P.W.4 in the same afternoon prior to the present occurrence no separate F.I.R. was lodged for the same nor any separate charge has been framed in that respect. However the injury report of P.W.2 in relation to that occurrence has been marked under Ext.14 through the I.O. Neither the doctor has been examined in that respect nor P.W.2 has whispered anything about her examination by the doctor. Therefore no gain can the prosecution achieve by exhibiting the said injury report. It is no way helpful to the prosecution case. 13. Apart from above several other errors and infirmities are noticed in the impugned judgment of the trial court. The impugned judgment shows complete non application of mind of the trial court as well as his whimsical approach. The learned trial court has failed to make an analytical discussion of the evidence adduced on record. Though the accused himself has been examined as D.W.1 but the learned trial court has failed to notice the same in the list of witnesses at the bottom of the judgment. 14. For the doubts raised on analysis of the prosecution evidence P.Ws. 2 & 3 cannot be treated as an eyewitness and their evidences are found insufficient to lead the conviction against the Appellant. The prosecution has not bothered to produce the weapon of offence before the learned trial court. It has also not assigned any reason for non examination of Naba Das the key witness. A serious doubt is casted in the projected disclosure information given by the Appellant leading to discovery of the knife. Though P.W.6 has stated in his evidence about his opinion on examination of the knife with regard to possibility of causing the fatal stab wound but the same cannot be held in any way helpful in absence CRLA No.4714 of production of the knife before the court for identification without any valid reason. 15. In view of the discussions made above it is thus concluded that the prosecution has failed to prove the charge of murder against the Appellant beyond all reasonable doubts. Accordingly the impugned judgment conviction dated 21st February 2014 is set aside and the Appellant is acquitted from the charges. He is held not guilty for the charge under Section 302 of the I.P.C. and directed to be released forthwith from the custody if his detention is not required in any other case. 16. The appeal is allowed. Judge Dr. S. Muralidhar) Chief Justice C.R. Biswal Secy. CRLA No.4714

Injury caused during the hour of Open Firing by an individual doesn’t add up to Arrest: High Court Of Patna

The man claimed of making injury the witness side allowed pre-capture bail. It was claimed that the candidate alongside another open fire. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter of Dhiraj Kumar v. The State of Bihar[Criminal Miscellaneous No. 2086 of 2021]. The current facts of the case were that the candidate was captured regarding a Case documented under Sections 147, 148, 149, 447, 341, 323, 307, 324 of the Indian Penal Code and 27 of the Arms Act, 1959. The candidate alongside four others was asserted of terminating on the source. The candidate open shoot by gun and co-charged were affirmed to make injury the source. The Learned Counsel called attention to that nobody was harmed during the terminating by the solicitor. Furthermore, it was presented that main Upendra Kumar has been ascribed to shooting on Suresh Kumar, who has experienced a slug injury. The applicant had no criminal predecessor and was presented that in a comparable instance of co-charged Kedar Yadav and Gorelal Yadav was allowed bail. The Hon’ble High Court of Patna fought that there has been a main omnibus claim that the request had discharged from the gun with practically no injury caused and that the solicitor had no other criminal forerunner. The court was leaned towards allowing a pre-capture bail. The appeal was arranged on the conditions that the applicant will help out the court, police, and arraignment. Any inability to the terms and fuse will prompt the wiping out of the bond. The pre-capture bail was allowed to the candidates in the wake of paying attention to the two players. The Hon’ble High Court of Patna held,” …in case of capture or give up under the watchful eye of the Court underneath inside about a month and a half from today, the solicitor be delivered on bail after outfitting bail obligations of Rs. 25,000/ – (25 thousand) with two guarantees of the like sum each as per the general inclination of the learned Judicial Magistrate, first Class, Jamui, in Sikandra PS Case No. 93 of 2020, dependent upon the conditions set down in Section 438(2) of the Code of Criminal Procedure, 1973 and further (I) that one of the bailors will be a direct relation of the candidate, (ii) that the solicitor and the bailors will execute security and give undertaking concerning acceptable conduct of the applicant and (iii) that the applicant will help out the Court and the police/indictment. Any infringement of the agreements of the securities or undertaking or inability to collaborate will prompt abrogation of his bail securities.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.20821 Arising Out of PS. Case No. 93 Year 2020 Thana SIKANDRA District Jamui Dhiraj Kumar @ Dhiraj Kumar Singhaged about 32 years son of Upendra Prasad Singh R o village and P.O. Darkha P.S. Sikandra District ... Petitioner s The State of Bihar ... Opposite Party s For the Petitioner s For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Mr. Arun Kumar Advocate Mr. Jagdhar Prasad APP Date : 28 09 2021 Heard Mr. Arun Kumar learned counsel for the petitioner and Mr. Jagdhar Prasad learned Additional Public Prosecutorfor the State 2. The petitioner apprehends arrest in connection with Sikandra PS Case No. 920 dated 09.05.2020 instituted under Sections 147 148 149 447 341 323 307 324 of the Indian Penal Code and 27 of the Arms Act 1959. 3. The allegation against the petitioner and four others is of firing on the informant side and specifically against the petitioner that he opened fire by pistol though not hitting any person and against co accused Upendra Singh that firing made by him caused injury to the informant and Suresh Kumar. Patna High Court CR. MISC. No.20821 dt.28 09 2021 4. Learned counsel for the petitioner submitted that in the FIR except for bald allegation that the petitioner has also fired there is no allegation that due to his firing any person was hit. Further it was submitted that only Upendra Kumar has been attributed of firing on Suresh Kumar who has suffered bullet injury. Learned counsel submitted that the petitioner has been falsely implicated just because he is the son of Upendra Kumar It was submitted that the petitioner has no other criminal antecedent. Learned counsel submitted that similarly situated co accused Kedar Yadav and Gorelal Yadav have been granted anticipatory bail by order dated 26.08.2021 in Cr. Misc. No 377220. 5. Learned APP submitted that as per the allegation the petitioner also had pistol in his hand and had opened fire However it was not controverted that no injury is alleged to have been caused to any person by such firing. 6. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties there being only general and omnibus allegation that the petitioner fired from pistol without there being any injury caused and further the petitioner not having any other criminal antecedent the Court is inclined to allow the prayer of pre arrest Patna High Court CR. MISC. No.20821 dt.28 09 2021 7. 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 Judicial Magistrate 1st Class Jamui in Sikandra PS Case No. 93 of 2020 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and furtherthat one of the bailors shall be a close relative of the petitioner that the petitioner and the bailors shall execute bond and give undertaking with regard to good behaviour of the petitioner and iii) that the petitioner shall cooperate with the Court and the police prosecution. Any violation of the terms and conditions of the bonds or undertaking or failure to cooperate shall lead to cancellation of his bail bonds. 8. It shall also be open for the prosecution to bring any violation of the foregoing conditions by the petitioner to the notice of the Court concerned which shall take immediate action on the same after giving opportunity of hearing to the 9. The petition stands disposed of in the Patna High Court CR. MISC. No.20821 dt.28 09 2021 (Ahsanuddin Amanullah J J. Alam

Under Section 20 of Civil Procedure Code, the Jurisdiction of court decide where the cause of action takes place: Chhattisgarh High Court.

Section 20 of CPC is relevant for the purpose at this juncture, which provides as, other suits to be instituted where defendants reside or cause of action arises subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction. The judgment was given by the High court of Chhattisgarh in the case of Jayant Jha vs. Manager Somna Collery, Bijuri, Anuppur M.P. Case no. [40 of 2017] By the Hon’ble Shri Sanjay S. Agrawal, J. The counsel for petitioner was Shri Parag Kotecha, Advocate and counsel for respondent represented by Shri Vinod Deshmukh, Advocate. The Plaintiff, who is the  Proprietor of Ritika Enterprises, instituted a suit claiming recovery of Rs.7,47,499/- by submitting interi alia that he supplied spare parts of the machine described in Plaint schedule-‘A’ to the Defendants i.e. Somna Colliery, Bijuri, District Anuppur (M.P.). According to the Plaintiff, the Defendants have failed to make their payment despite the delivery of the alleged materials, which led to the issuance of the Demand Notice dated 16.09.2009. However, in spite of that, the same was not paid; therefore, he has been constrained to institute the suit in the instant nature instituted on 25.09.2010. It was observed by the trial Court while taking note of the explanation to Section 20 of CPC and that by relying upon the principles laid down by the Supreme Court in the matter of Patel Roadways Limited, Bombay vs. Prasad Trading Company reported in (1991) 4 Supreme Court Cases 270 that since the cause of action has arisen at Somna Colliery, Bijuri, District Anuppur (M.P.), where the disputed materials alleged to have been delivered, therefore, the cause of action has arisen at the staid place which is beyond the territorial jurisdiction of this Court and accordingly, the claim as made has been held to be barred by jurisdiction under Section 20 of CPC and the Plaint has been directed to be returned in exercise of the powers enumerated under Order 7 Rule 10 of CPC for its presentation before the competent Court having its territorial jurisdiction by its separate order, which was passed on the same day, i.e. 23.12.2016. This is the order, which has been impugned by way of this Appeal. The counsel for petitioner said that the court misinterpreting the provisions prescribed under Section 20 of CPC, has erred in holding that it has no jurisdiction to entertain the suit. Further counsel said that the suit can be instituted where Defendants reside or where the cause of action arises and since the business of Defendants is at Manendragarh, therefore, the suit ought not to have been held to be barred by jurisdiction. The court rely upon the principles laid down by the Supreme Court in the matter of New Moga Transport Co. through its Proprietor Krishan Lal Jhanwar vs. United India Insurance Co. Ltd and others (4 SCC 677 : AIR 2004 SC 2154) which read as under “On a plain reading of the Explanation to Section 20 CPC it is clear that the Explanation consists of two parts: (i) before the word “or” appearing between the words “office in India” and the word “in respect of”, and (ii) the other thereafter. The Explanation applies to a defendant which is a corporation, which term would include even a company. The first part of the Explanation applies only to such corporation which has its sole or principal office at a particular place. In that event, the court within whose jurisdiction the sole or principal office of the company is situate will also have jurisdiction inasmuch as even if the defendant may not actually be carrying on business at that place, it will be deemed to carry on business at that place because of the fiction created by the Explanation. The latter part of the Explanation takes care of a case where the defendant does not have a sole office but has a principal office at one place and has also a subordinate office at another place. The expression “at such place” appearing in the Explanation and the word “or” which is disjunctive clearly suggest that if the case falls within the latter part of the Explanation it is not the court within whose jurisdiction the principal office of the defendant is situate but the court within whose jurisdiction it has a subordinate office which alone has the jurisdiction “in respect of any cause of action arising at any place where it has also a subordinate office.” The court said that the, after applying the aforesaid principles to the case in hand where admittedly no cause of action, either wholly or in part as provided under clause (c) of Section 20 CPC arose in the Court of Manendragarh, the Head Office of the Defendants, and as the disputed spare parts of the machine alleged to have been supplied to the Office of Somna Colliery, Bijuri, District Anuppur (M.P.), the cause of action has, therefore, arisen at the staid place, which is beyond the territorial jurisdiction of the Court below. In view of the said background, the trial Court has not committed any illegality in returning the Plaint in exercise of the powers under Order 7 Rule 10 of CPC and I do not find any legal infirmity in the same so as to call for any interference in this appeal. The Appeal is accordingly dismissed with the aforesaid observation. No order as to costs.

1AFRHIGH COURT OF CHHATTISGARH BILASPUR M.A No.417Reserved on 09.08.2021Pronounced on 24.08.2021Jayant Jha S o Shri Ramakant Jha Prop. Ritika Enterprises RailwayCrossing Road Bijuri Distt. Anuppur M.P. At Present R o Ward No.1 Manendragarh Distt. Koriya Chhattisgarh .................Plaintiff AppellantVersus 1.South Eastern Coalfields Limited Through Chief General Manager S E CL Hasdeo Area South Jhagrakhand Ledri Distt. Koriya Chhattisgarh 2.Sub Area Manager S E C L Hasdeo Area Bijuri Sub Area Bijuri Distt.Anuppur M.P.3.Sub Area Engineer S E C L Hasdeo Area S E C L Hasdeo Area BijuriSub Area Bijuri Distt. Anuppur M.P.4.Manager Somna Collery Bijuri Anuppur M.P.5.Colliery Engineer Somna Colliery Bijuri Distt. Anuppur M.P..................Defendants RespondentsFor Appellant:Shri Parag Kotecha Advocate.For Respondents:Shri Vinod Deshmukh Advocate.Single Bench:Hon ble Shri Sanjay S. Agrawal JC A V Order 1.This Miscellaneous Appeal has been preferred by the Plaintiff underOrder 43 Rule 1(a) of the Code of Civil Procedure 1908questioning the legality and propriety of the order dated 23.12.2016passed in Civil Suit No.16 B 2011 whereby the trial court has directed forreturn of the Plaint holding it to be barred by territorial jurisdiction underSection 20 of CPC. The parties to this Appeal shall be referred hereinafteras per their description before the Court below. 2.Briefly stated the facts of the case are that the Plaintiff who is the 2Proprietor of Ritika Enterprises instituted a suit claiming recovery ofRs.7 47 499 by submitting interi alia that he supplied spare parts of themachine described in Plaint schedule A to the Defendants i.e. SomnaColliery Bijuri District Anuppurwhich is beyond its jurisdiction therefore the suit as framed andinstituted is barred by jurisdiction. 4.Based upon the aforesaid objection an issue namely issue No.3was framed which reads as under: “Whether the Court has territorial jurisdiction toentertain the suit ”5.After considering the aforesaid issue it was observed by the trialCourt while taking note of the explanation to Section 20 of CPC and thatby relying upon the principles laid down by the Supreme Court in thematter of Patel Roadways Limited Bombay vs. Prasad Trading Companyreported in4 Supreme Court Cases 270 that since the cause ofaction has arisen at Somna Colliery Bijuri District Anuppurwherethe disputed materials alleged to have been delivered therefore the causeof action has arisen at the said place which is beyond the territorial 3jurisdiction of this Court and accordingly the claim as made has been heldto be barred by jurisdiction under Section 20 of CPC and the Plaint hasbeen directed to be returned in exercise of the powers enumerated underOrder 7 Rule 10 of CPC for its presentation before the competent Courthaving its territorial jurisdiction by its separate order which was passed onthe same day i.e. 23.12.2016. This is the order which has been impugnedby way of this Appeal. 6.Learned Counsel for the Appellant Plaintiff submits that the Courtbelow while misinterpreting the provisions prescribed under Section 20 ofCPC has erred in holding that it has no jurisdiction to entertain the suit.According to him the suit can be instituted where Defendants reside orwhere the cause of action arises and since the business of Defendants isat Manendragarh therefore the suit ought not to have been held to bebarred by jurisdiction. 7.On the other hand learned Counsel appearing for the Respondentshas supported the order under Appeal as passed by the Court below.8.I have heard learned Counsel for the parties and perused the entirerecord carefully. 9.From perusal of the averments made in the Plaint and the noticeissued by the Plaintiff on 16.09.2009 it appears that the alleged spareparts of the machine were supplied to Defendant No.5 i.e. at SomnaColliery Bijuri District Anuppurrefers to a court within local limits of whose jurisdictionthe cause of action wholly or in part arises. Explanation to the aforesaidprovision is relevant in the instant matter in order to determine thejurisdiction of the court and the interpretation of it has been dealt with bythe Supreme Court in the matter of Patel Roadways Limited Bombay vs.Prasad Trading Companyat para 9 as under: “9…....... The first part of the Explanationapplies only to such a corporation which has itssole or principal office at a particular place. Inthat event the courts within whose jurisdiction 5the sole or principal office of the defendant issituate will also have jurisdiction inasmuch aseven if the defendant may not be actuallycarrying on business at that place it will “bedeemed to carry on business" at that placebecause of the fiction created by theExplanation. The latter part of the Explanationtakes care of a case where the defendant doesnot have a sole office but has a principal officeat one place and has also a subordinate officeat another place. The words "at such place"occurring at the end of the Explanation and theword "or" referred to above which is disjunctiveclearly suggest that if the case falls within thelatter part of the Explanation it is not the courtwithin whose jurisdiction the principal office ofthe defendant is situate but the court withinwhose jurisdiction it has a subordinate officewhich alone shall have jurisdiction "in respect ofany cause of action arising at any place where ithas also a subordinate office".And that by considering the intention of the legislature in enacting theExplanation to the said provision it was observed further atparagraphs 12 and 13 as under: “12.........The Explanation is really anExplanation to clauseviz. asto where the corporation can be said to carry onbusiness. This it is clarified will be the placewhere the principal office is situatedorthe place where a business is carried on givingrise to a cause of actionso long as there is a subordinate officeof the corporation situated at such place. Thelinking together of the place where the cause ofaction arises with the place where asubordinate office is located clearly shows thatthe intention of the legislature was that in thecase of a corporation for the purposes ofclausethe location of the subordinate office within the local limits of which a cause of actionarises is to be the relevant place for the filingof a suit and not the principal place ofbusiness. If the intention was that the location ofthe sole or principal office as well as thelocation of the subordinate officeare tobe deemed to be places where the corporationis deemed to be carrying on business thedisjunctive "or" will not be there. Instead thesecond part of the Explanation would haveread "and in respect of any cause of actionarising at any place where it has a subordinateoffice also at such place”.“13........The clear intendment of theExplanation however is that where thecorporation has a subordinate office in theplace where the cause of action arises itcannot be heard to say that it cannot be suedthere because it does not carry on business atthat place. It would be a great hard ship if inspite of the corporation having a subordinateoffice at the place where the cause of actionarisessuch plaintiff is to becompelled to travel to the place where thecorporation has its principal place. That placeshould be convenient to the plaintiff and sincethe corporation has an office at such place itwill also be under no disadvantage. Thus theExplanation provides an alternative locus forthe corporation s place of business not anadditional one.”12.The aforesaid principles have been reiterated by the Supreme Courtin the matter of New Moga Transport Co. through its Proprietor Krishan LalJhanwar vs. United India Insurance Co. Ltd and others reported inbefore the word "or"appearing between the words "office in India"and the word "in respect of" andthe otherthereafter. The Explanation applies to adefendant which is a corporation which termwould include even a company. The first part ofthe Explanation applies only to such corporationwhich has its sole or principal office at aparticular place. In that event the court within 7whose jurisdiction the sole or principal office ofthe company is situate will also have jurisdictioninasmuch as even if the defendant may notactually be carrying on business at that place itwill be deemed to carry on business at thatplace because of the fiction created by theExplanation. The latter part of the Explanationtakes care of a case where the defendant doesnot have a sole office but has a principal officeat one place and has also a subordinate officeat another place. The expression "at suchplace" appearing in the Explanation and theword "or" which is disjunctive clearly suggestthat if the case falls within the latter part of theExplanation it is not the court within whosejurisdiction the principal office of the defendantis situate but the court within whose jurisdictionit has a subordinate office which alone has thejurisdiction "in respect of any cause of actionarising at any place where it has also asubordinate office". 11. Section 20 before the Amendment by CPCin 1976 had two Explanations beingExplanations I and II. By the Amendment Act Explanation I was omitted and Explanation IIwas renumbered as the present Explanation.Explanation which was omitted reads asfollows: “Explanation 1. Where a person has a permanent dwellingat one place and also temporary residence at another place he shall be deemed to reside at both places in respect of anycause of action arising at the place where he has suchtemporary residence." 12. This Explanation dealt with the case ofplace of residence of the defendant andprovided with regard to a person having apermanent dwelling at one place and alsotemporary at another place that such personshall be deemed to reside at both places inrespect of any cause of action arising at theplace where he has such temporary residence.The language used in Explanation II on theother hand which is the present Explanation was entirely different. Had the intention beenthat if a corporation had its principal office atone place and a subordinate office at anotherplace and the cause of action arose at the placewhere it had its subordinate office it shall bedeemed to be carrying on business at bothplaces the language used in Explanation IIwould have been identical to that of Explanation 8I which was dealing with a case of a personhaving a permanent dwelling at one place andalso temporary residence at another place.”13.Applying the aforesaid principles to the case in hand whereadmittedly no cause of action either wholly or in part as provided underclauseof Section 20 CPC arose in the Court of Manendragarh theHead Office of the Defendants and as the disputed spare parts of themachine alleged to have been supplied to the Office of Somna Colliery Bijuri District Anuppurthe cause of action has therefore arisen atthe said place which is beyond the territorial jurisdiction of the Courtbelow. In view of the said background the trial Court has not committedany illegality in returning the Plaint in exercise of the powers under Order 7Rule 10 of CPC and I do not find any legal infirmity in the same so as tocall for any interference in this appeal. The concerned trial Court shallreturn the Plaint to the Plaintiff Appellant along with all the necessarypapers with appropriate endorsement under its seal for its presentationbefore the Court having its territorial jurisdiction. 14.The Appeal is accordingly dismissed with the aforesaid observation.No order as to costs. Sd JUDGEPriya

Medical termination of pregnancies can be allowed even where duration of the pregnancy has exceeded 24 weeks: High Court of Delhi

A pregnant woman should have a right to seek medical termination of pregnancy not only when the foetus is diagnosed with substantial abnormalities by the Medical Board, but also when forcibly continuing the pregnancy is likely to cause grave injury to her mental health. Question as to termination of pregnancy where duration of pregnancy has exceeded 24 weeks was examined by High Court of Delhi, containing Justice Rekha Pallli in the matter of Sangeeta Thapa vs. Govt. of NCT of Delhi & Ors. [W.P.(C) 15241/2021] on 07.01.2022. The facts of the case are that the petitioner sought medical termination of her pregnancy on the ground that the foetus is suffering not only from Edward Syndrome (Trisomy 18) but also from non-ossified nasal bone and bilateral pyelectasis. In case the pregnancy is taken to its logical conclusion, then as per medical opinion, the child is not likely to survive beyond one year, and that too with continued medical assistance, which will not only cause severe harm to her physical, but mental health as well. When she went for a scheduled check up in the 24th week of her pregnancy that the Ultrasound Report (USG) showed the lateral ventricle size as 1.2 cm, which is more than the normal size, and thus, an anomaly was detected in the foetus for the first time. She was subsequently advised to consult a specialist and get some further tests done. Once this condition of the foetus came to light, the petitioner was referred by her gynaecologist to Lok Nayak Jay Prakash Hospital, (LNJP) a government hospital for further consultation, where she was explained, after analysis of her QF-PCR and Chromosomal Microarray Cytoscan 750K test reports, that the defect in the foetus was a critical one and the chances of survival of the new born children with the condition of Edward Syndrome is even otherwise less than 50% in the first week of birth, whereas 90% of the babies born with the syndrome are likely to die in the first year of birth itself. Once this condition of the foetus came to light, the petitioner was referred by her gynaecologist to Lok Nayak Jay Prakash Hospital, (LNJP) a government hospital for further consultation, where she was explained, after analysis of her QF-PCR and Chromosomal Microarray Cytoscan 750K test reports, that the defect in the foetus was a critical one and the chances of survival of the new born children with the condition of Edward Syndrome is even otherwise less than 50% in the first week of birth, whereas 90% of the babies born with the syndrome are likely to die in the first year of birth itself. The Counsel for the petitioner submitted that forcing the petitioner to go through this pregnancy despite her knowing fully well that the child she gives birth to will most likely not survive beyond the first year, will take an immense toll on her mental wellbeing, and thus defeat the very purpose of the MTP Act. She contends that the MTP Act allows women to terminate their pregnancies even after 24 weeks gestation period, if it is found that the continuance of the same is likely to cause grave injury to her physical or mental health. The Counsel for the respondent submitted is not in a position to dispute the fact that as per medical opinion the foetus suffers from such substantial medical abnormalities, that even if the petitioner is compelled to give birth, the child is not likely to survive beyond the first year. She, however, opposes the petition by contending that now that the petitioner has reached an advanced stage of her pregnancy, no permission for termination thereof ought to be granted, especially since as per medical opinion, there are certain inherent risks the petitioner herself faces if she is allowed to terminate her pregnancy at this stage.

IN THE HIGH COURT OF DELHI AT NEW DELHI Via video conferencing Date of Decision: 07.01.2022 W.P.(C) 15241 2021 SANGEETA THAPA ..... Petitioner Through Mr. Aditi Negi Ms. Swati Draik & Ms. Hage Nanya Advs. GOVERNMENT OF NCT OF DELHI & ORS. Respondent Through Ms. Shobhana Takiar Adv. HON BLE MS. JUSTICE REKHA PALLI REKHA PALLI J1. The petitioner a 28 year old pregnant woman has approached this Court seeking the following reliefs: “a. For a writ of mandamus or any other writ order directing the Respondents to allow the Petitioner to undergo Medical Termination of the Pregnancy. b. For an order directing the Respondent No. 3 for setting up an expert panel of doctors to assess the pregnancy and offer MTP to the petitioner in need of the procedure beyond the prescribed 20 weeks limit. c. For an order directing any other government hospital in National Capital of Delhi who already has an expert panel of doctors to assess the pregnancy and offer MTP to the petitioner in need of the procedure beyond the prescribed 20 weeks limit.” W.P.(C) 15241 2021 2. The petitioner has sought medical termination of her pregnancy on the ground that the foetus is suffering not only from Edward Syndrome Trisomy 18) but also from non ossified nasal bone and bilateral pyelectasis. In case the pregnancy is taken to its logical conclusion then as per medical opinion the child is not likely to survive beyond one year and that too with continued medical assistance which will not only cause severe harm to her physical but mental health as well. 3. It is the petitioner‟s case that she had been going for regular check ups ever since 23.07.2021 i.e. from the 7th week of her pregnancy and all reports were normal till about the18th week of her pregnancy. It is only on 05.12.2021 when she went for a scheduled check up in the 24th week of her pregnancy that the Ultrasound Report showed the lateral ventricle size as 1.2 cm which is more than the normal size and thus an anomaly was detected in the foetus for the first time. She was subsequently advised to consult a specialist and get some further tests 4. The petitioner thereafter consulted a gynaecologist for further tests who advised her go for a „Fetal Echocardiography‟since the foetus had crossed the 24 weeks limit. The Fetal Eco tests conducted on 10.12.2021 showed certain other anomalies in the foetus such as non ossified nasal bone mild bilateral fetal renal pyelectasis cisternal magna mild prominentbesides there being a cyst in a umbilical cord. After this following medical advice the petitioner underwent some tests of Quantitative Fluorescence PCR QF PCR) and Chromosomal Microarray Cytoscan 750K to get clarity on the formation of chromosomal abnormalities in the foetus. It is after these two tests W.P.(C) 15241 2021 that the petitioner found out that the foetus is suffering from Edward Syndrome which is a chromosomal disorder that occurs due to the presence of an extra chromosome and is a rare condition the cause whereof is not known. 5. Once this condition of the foetus came to light the petitioner was referred by her gynaecologist to Lok Nayak Jay Prakash Hospital a government hospital for further consultation where she was explained after analysis of her QF PCR and Chromosomal Microarray Cytoscan 750K test reports that the defect in the foetus was a critical one and the chances of survival of the new born children with the condition of Edward Syndrome is even otherwise less than 50% in the first week of birth whereas 90% of the babies born with the syndrome are likely to die in the first year of birth itself. 6. On 27.12.2021 the petitioner after learning about the aforesaid condition consulted another senior gynaecologist at LNJP who after examination of her test reports once again concurred with the earlier opinion regarding the status of the petitioner‟s foetus. The petitioner‟s request for a medical termination of pregnancy however was not acceded to as by this time she had already completed 28 weeks of pregnancy. 7. It is at this stage that the petitioner has approached this Court seeking permission to undergo medical termination of her pregnancy under sections 3(2)(b) and 3(2B) of the Medical Termination of Pregnancy Act 1971 as amended by the Medical Termination of Pregnancy Amendment) Act 202115241 2021 respondent no.3 LNJP Hospital to constitute a Medical Board at the earliest and submit its report after examining the petitioner and her medical reports. 9. Pursuant to this order dated 03.01.2022 of this Court a Medical Board under the Chairmanship of Dr. Sangeeta Gupta Director Professor Gynaecology Chairman Department of Obstetrics and Gynaecology Maulana Azad Medical College and Hospital was promptly constituted by respondent no.3. The said Board has after examining the petitioner and her medical records submitted its report the relevant extract whereof reads as under: “Ms. Sangeeta Thapa W o Dinesh Thapa R o RZD 11 2nd Floor Mahavir Enclave Street no 5 Delhi 110045 Evaluation of the patient was performed by history examination and available investigation by the Medical Board members. According to history and examination the patient is about 31 weeks pregnant. USG done on 10 12 2021 is suggestive of congenital malformations in fetus. As advised by the treating doctor the patient underwent Ammocentesis on 11 12 2021 from Dr. S. Bajaj s Centre for fetal medicine. The QFPCR analysis and chromosomal microarray cystoscan 750K of amniotic fluid from Life Cell International Private Limited shows that the foetus is affected with Edward Syndrome 80% of children die in the first year 10 year survival is 10 %. Survivors have significant neurodevelopmental delay. Patient and her husband have been explained about the implications of termination of pregnancy in view of advanced gestation which include the following risks to the mother: W.P.(C) 15241 2021  Excessive bleeding.  Rupture uterus leading to significant morbidity and sometimes  Failure of medical methods for termination of pregnancy.  Possible need of surgical procedures which are associated with inherent risks and complications related to surgery and The baby may be born alive at this gestation. The responsibility of taking care of the baby lies with the patient and her husband.” 10. A perusal of the aforesaid report clearly shows that the petitioner‟s foetus is found to be suffering from Edward Syndrome15241 2021 toll on her mental wellbeing and thus defeat the very purpose of the MTP Act. She contends that the MTP Act allows women to terminate their pregnancies even after 24 weeks gestation period if it is found that the continuance of the same is likely to cause grave injury to her physical or mental health. 12. Learned counsel for the respondent is not in a position to dispute the fact that as per medical opinion the foetus suffers from such substantial medical abnormalities that even if the petitioner is compelled to give birth the child is not likely to survive beyond the first year. She however opposes the petition by contending that now that the petitioner has reached an advanced stage of her pregnancy no permission for termination thereof ought to be granted especially since as per medical opinion there are certain inherent risks the petitioner herself faces if she is allowed to terminate her pregnancy at this stage. 13. Before I deal with the rival submissions of the parties it would be also apposite to note the relevant provisions of the MTP Act being sections 3(2)(b)(i) 3(2)(b)(ii) and 3(2B) of the MTP Act which read as under: “3.When Pregnancies may be terminated by registered medical practitioners. 2) Subject to the provisions of sub sectiona pregnancy may be terminated by a registered medical practitioner — b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty four weeks in case of such category of woman as may be prescribed by rules made under this Act if not less than two registered medical practitioners are of the opinion formed in good faith that— W.P.(C) 15241 2021 i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health or ii) there is a substantial risk that if the child were born it would suffer from any serious physical or mental abnormality. Explanation 1.— For the purposes of clause where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. Explanation 2. — For the purposes of clausesandwhere any pregnancy is alleged by the pregnant woman to have been caused by rape the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.” 2B) The provisions of sub section relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board. 14. It is evident that the Legislature was conscious that a pregnant woman should have a right to seek medical termination of pregnancy not only when the foetus is diagnosed with substantial abnormalities by the Medical Board but also when forcibly continuing the pregnancy is likely to cause grave injury to her mental health. A plain reading of sections 3(2)(b)(i) 3(2)(b)(ii) and 3(2B) of the MTP Act together clearly indicates that medical termination of pregnancies can in certain situations be allowed even where duration of the pregnancy exceeds 24 weeks. 15. The aforesaid provisions were recently considered by a Coordinate Bench of this Court in Pratibha Gaur v. Government of NCT of Delhi & Ors. wherein a woman was granted the relief of W.P.(C) 15241 2021 terminating her pregnancy much after 28 weeks had passed after observing that if she was forced to continue with the pregnancy despite knowing that the child will be born with certain congenital defects her mental wellbeing would be gravely prejudiced. The Court held as under: “It is explicitly clear from a plain reading of the provisions of Section 3(2)(b)(i) of MTP Act as amended that grave injury to „mental health‟ of a pregnant woman is a legal ground available to the woman to seek medical termination of pregnancy with the caveat that the maximum period permissible under the Act for termination is 24 weeks.” The Bench also relied on a decision of the Hon‟ble Bombay High Court in XYZ v. Union of India 3 Bom CR 400 referred to in Sidra Mehboob Shaikh v. State of Maharashtra & Anr. 3 RCR872 the relevant extract wherof reads as under: “27. In XYZ v. Union of India 3 Bom CR 400 a Division Bench of this Court held that the provisions of the Act has to be given a purposive interpretation. Division Bench has opined that for the purposes of section 3(2) of the Act the expression ‗grave injury to the mental health„ is used in a liberal sense by the legislature itself. Further for determining whether continuance of pregnancy would involve risk of injury to mental health of the pregnant woman account may be taken of the pregnant woman s actual or reasonable foreseeable environment. In fact the aspect of a pregnant woman s actual or reasonable foreseeable environment has greater nexus to the aspect of mental health as compared to physical health. Division Bench proceeded to hold that this legislative liberality when it comes to expanding the concept of grave injury to mental health cannot evaporate no sooner the ceiling of 20 weeks prescribed in section 3(2)(b) of the Act is exceeded. If the expression ‗life„ in section 5(1) of the Act is not to be confined to mere physical existence or survival W.P.(C) 15241 2021 then permission will have to be granted under section 5(1) of the Act for medical termination of pregnancy which may have exceeded 20 weeks if the continuance of such pregnancy would involve grave injury to the mental health of the pregnant woman.” 16. At this stage a reference may also be made to the decision in Priyanka Shukla v. Union of India SCC OnLine Del 9098 wherein the Division Bench held as under: “Section 3(2)(b) permits termination of pregnancy inter alia where there is substantial risk of serious physical or mental abnormalities were the child to be allowed to be born. Seen in isolation it thus places a gap of 20 weeks gestation for this to be permissible. At the same time Sec 5 relaxes the rigor of Sec 3(2) in a case where the termination of pregnancy is immediately necessary to save the life of the pregnant woman. We are of the opinion that these provisions have to be construed as part of one cumulative dispensation and not isolated from each other. Seen thus we are convinced that even in a case where the condition of the fetus is as in the present case incompatible with life the rigor of Sec 3deserves to be relaxed and the right to terminate the pregnancy cannot be denied merely because gestation has continued beyond 20 weeks.” 17. In the present case I am of the considered view that if the petitioner is forced to continue with the pregnancy she will not only constantly live with the fear that the odds of giving birth to a stillborn are very high but that even if the infant is born alive she will be raising the child with heavy pain knowing that she could lose the child forever within a few months. Not to mention that the child will be born with such substantial abnormalities that living a normal life may never be an option thus causing grave hardship to the child as well as putting the petitioner W.P.(C) 15241 2021 through extreme amounts of mental emotional and even financial distress. It is thus a clear case where leaving aside the lifelong anguish and trauma which may be caused to the petitioner the foetus itself suffers from such abnormalities that it clearly falls under the ambit of section 3(2B) of the MTP Act. 18. No doubt there are certain risks to the petitioner herself in undergoing the termination of her pregnancy at this stage but when considered in the light of the medical opinion which clearly suggests that the foetus is suffering from a rare chromosomal disorder the compelling reason for the petitioner to seek permission to end her pregnancy are not difficult to fathom. The petitioner is also present in person and submits that she has been explained the risks involved in the procedure. 19. I thus have no hesitation in holding that this is a fit case where the petitioner should be granted permission to undergo medical termination of her pregnancy at a medical facility of her choice. However the same shall be done at her own risk and consequences. 20. The writ petition is accordingly disposed of in the aforesaid terms. REKHA PALLI) JUDGE JANUARY 7 2022 W.P.(C) 15241 2021

Court not inclined to grant bail when witnesses are yet to be examined: High Court of Jammu and Kashmir

In cases where there are witnesses have not yet been examined, the Court will not be inclined to grant bail to the accused. This is due to the possibility that the accused can influence these witnesses and hence alter the path of the trial. This was held in the judgement passed by a single member bench of the High Court of Jammu and Kashmir consisting of Justice Rajnesh Oswal in the case of Sunny Choudhary v State of Jammu and Kashmir [B.A. No. 125/2018] pronounced on 23rd August 2021. The petitioner, Sunny Choudhary filed the present application seeking bail from the FIR No. 66/2014 dated 20th March 2014. The petitioner is accused of committing murder, criminal trespass, rioting with a deadly weapon, unlawful assembly, mischief, criminal conspiracy and abetment to criminal activity which is punishable under Sections 302, 460, 148, 149, 427, 120B and 109 of the Ranbir Penal Code respectively. Additionally the petitioner has also been accused of possession of unlicensed weapons punishable under Section 4/25 of the Arms Act of 1959. 55 witnesses had been mentioned in the challan, however at the time only 11 of these witnesses had been examined by the prosecution. Furthermore none of these mentioned witnesses delved any information in their statements that either supported or weakened the prosecution’s case. The petitioner submitted that he had been falsely implicated in the case and that there was no evidence against him on record that could establish any guilt beyond doubt. The petitioner further contended that no injury had been inflicted on the victim Mohinder Kumar by outside people and it was only his own family members who were responsible for his death. The FIR mentioned that all other people who had allegedly murderer Mohinder Kumar had met and consulted the petitioner just before the murder had taken place and for this reason the prosecution submitted that the petitioner too was guilty of the aforementioned offences. The petitioner further contended that the trial has been going on for seven years now and that his right to speedy trial was being violated by the Court as 44 witnesses were yet to be examined and covid-19 was slowing down time of the trial.

HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU Reserved on : 17.08.2021 Pronounced on 23.08.2021 B. A No. 125 2018 Through : Mr. Sudershan Sharma Advocate Sunny Choudhary State of J&K Through : Mr. Aseem Sawhney AAG Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL JUDGE The petitioner has filed the present bail application seeking bail in challan titled State of J&K vs. Rattan Lal arising out of FIR bearing No. 66 2014 dated 20.03.2014 registered with Police Station R. S. Pura for commission of offences punishable under sections 302 460 148 149 427 120 B 109 RPC and Section 4 25 of the Arms Act pending before the court of learned Ist Additional and Sessions Judge Jammuand all the injuries were inflicted by family members of Mohinder Kumar. It is also stated that one of the main witness namely Neelam Verma Police official has categorically and specifically stated before the trial court that at no point of time he had allowed any one to establish contact with the petitioner named in the aforesaid FIR whereas in the FIR it has been alleged that the said persons met the petitioner while in custody and a conspiracy was hatched to murder the deceased. It is further contended that right of speedy trial of the petitioner has been violated as till date only 11 witnesses have been examined by the trial court. It is further stated that the petitioner had earlier filed bail application before the trial court but the learned trial court dismissed the said application vide order dated 07.06.2018 and now the present bail application has been filed. 302 RPC. Objections stand filed by the respondents in which it has been stated that after a detailed investigation the involvement of the petitioner was found in hatching the conspiracy for murder of the deceased. The petitioner has arranged two persons namely Gulshan Kumar and Bilbir Singh for committing the murder. It is also stated that the petitioner cannot be granted bail as there is bar in granting the bail for commission of offence under section Mr. Sudershan Sharam learned counsel for the petitioner has reiterated the grounds taken in the bail application. Besides he submitted that 3 B. A No. 125 2018 the many material witnesses have been examined and the complainant PW 1 Ashwani Kumar is yet to be examined. the other hand Mr. Aseem Sawhney learned AAG vehemently submitted that evidence cannot be appreciated while considering the application for grant of bail. He further submitted that since the charges against the petitioner are of serious nature as such the petitioner is not entitled to be enlarged on bail at this stage when only 11 out of 55 witnesses have been examined and the petitioner will threaten and win over the witnesses if granted bail. Heard learned counsel for the parties and perused the record. From the perusal of the record it is evident that the charges for commission of offence under section 302 109 120 B RPC were framed against the petitioner on 02.01.2015 by the trial court and the allegations against the petitioner are that the other co accused met with the petitioner for committing the murder of the deceased and conspiracy was hatched. The petitioner arranged two persons namely Gulshan Kumar and Balbir Singh for committing the murder of the deceased. The prosecution has cited as many as 55 witnesses out of which only 11 witnesses have been examined till date and rest of the witnesses including the complainant are yet to be examined. The petitioner is facing trial for commission of offences under section 302 109 and 120 B RPC and there is specific bar with regard to the grant of bail for offence under section 302 RPC. At this stage from the perusal of the statements of the witnesses no definite opinion can be formed that there are reasonable grounds for believing that the petitioner is not guilty of alleged offences. No doubt that 4 B. A No. 125 2018 the petitioner is facing trial for the last seven years but it is also fact that he is facing trial for commission of heinous offence of murder. The Hon’ble Apex Court has considered considerations for grant of bail in Jayendra Saraswathi Swamigal v. State of T.N. reported in2 SCC 13 the relevant para is extracted as under: 9. Then again in Prasad Shrikant Purohit v. State of Maharashtra 2018) 11 SCC 458 Apex Court has held as under: 16. The considerations which normally weigh with the court in granting bail in non bailable offences have been explained by this Court in State v. Capt. Jagjit Singh3 SCR 622 : AIR 1962 SC 253 : 1 Cri LJ 215] and Gurcharan Singh v. State [(1978) 1 SCC 118 : 1978 SCC41 : AIR 1978 SC 179] and basically they are the nature and seriousness of the offence the character of the evidence circumstances which are peculiar to the accused a reasonable possibility of the presence of the accused not being secured at the trial reasonable apprehension of witnesses being tampered with the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case. " 29. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non application of mind. It is also necessary for the court granting bail to consider among other circumstances the following factors also before granting bail they are: a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. 5 B. A No. 125 2018 b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. c) Prima facie satisfaction of the court in support of the charge. 31. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated to a large extent by the facts and circumstances of each particular case. But at the same time right to bail is not to be denied merely because of the sentiments of the community against the accused. The law is well settled that the court should refrain from appreciating the evidence while considering the bail application. Further the Apex Court in Satish Jaggi v. State of Chhattisgarh reported in11 SCC 195 has held as under: “12. Normally if the offence is non bailable also bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non bailable offence the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings the learned Chief Justice has virtually acquitted the accused of all the criminal charges levelled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of granting of bail the court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial. 6 B. A No. 125 2018 13. In the present case the findings recorded by the learned Chief Justice as referred to above virtually amount to the regular trial pointing out the deficiency and reliability credibility of the prosecution evidence. Such findings recorded at the stage of consideration of bail in our view cannot be allowed to sustain.” There are serious allegations against the petitioner of hatching a conspiracy for committing murder and arranging the killers in pursuance of the said conspiracy. At this stage it cannot be determined that the allegations are either false or not true as number of other witnesses are yet to be examined and there is every chance that if the petitioner is enlarged on bail he may influence the witnesses as the petitioner is facing trial for commission of offence which is punishable with death or imprisonment to life. So far as delay in the conclusion of trial is concerned perusal of record shows that the trial court has conducted the effective proceedings and even to secure the presence of the complainant PW 1 trial court has resorted to even coercive process. It requires to be noted that for the last two years the courts have been functioning in restricted mode and obviously some delay has caused due to Covid 19 pandemic in conducting the trial of the case. In view of what has been discussed and stated above the present bail application is found to be misconceived. The same is as such dismissed. Karam Chand Secy. Judge Whether the order is speaking: Whether the order is reportable:

Driving of the insured vehicle using invalid or fake driving license, constitutes a breach of policy conditions, entitling the insurance company to avoid its liability : Jammu and Kashmir High Court

The Court held that it has power to direct the insurance company to satisfy the award with a right to recover the awarded sum from the owner/insured even in cases, where breach of policy conditions has been proved by the insurance company. This was held in the judgment passed by a single judge bench comprising of HON’BLE MR. JUSTICE SANJAY DHAR,, in the matter United India Insurance Company Ltd V. Mohammad Subhan Bhat and others. [CMAM No. 34/2014], dealt with an issue where the petitioner filed a petition challenging the award dated 08.10.2013 passed by the Motor Accidents Claims Tribunal, Srinagar. The deceased, namely, Mohd. Ayoub Bhat and Shakeel Ahmed Baba were travelling in a car, the vehicle in question was subjected to firing by unidentified gunmen, resulting in fatal injuries to both the deceased as well as the driver-cum-owner of the vehicle in question. The legal heirs/dependants of the aforesaid two deceased filed two separate claim petitions before the Tribunal, claiming compensation against the legal heirs of the owner-cum-driver and the appellant-insurance company. The legal heirs of the deceased owner-cum-driver did not contest the claim petitions, whereas the appellant-insurance company contested the claim petitions before the Tribunal by filing its objections. While admitting the currency of policy of the insurance of the offending vehicle covering the period of the occurrence, the insurance company claimed that the accident was not caused due to negligence of the driver of the offending vehicle, inasmuch as the police has filed charge-sheet for offences under Sections 302, 307, 427, 120-B, 324 RPC and Section 7/27 of the Arms Act. On this ground it was urged that the claim petition is not maintainable. It was further contended that the driver of the vehicle in question was not holding a valid driving licence at the time of the accident and as such, the insurance company is not liable to pay any compensation to the claimants. The insurance company also contended that the deceased were travelling as gratuitous passengers in the offending car and that risk to their lives was not covered under the terms of the policy of insurance. After hearing both sides, the Hon’ble High Court of Jammu and Kashmir allowed the petition and held that having regard to the circumstances of the present case, particularly the fact that the claimants in both the claim petitions may not find it easy to recover the amount of compensation from the legal heirs of the deceased driver, that too after a lapse of eighteen years of the accident, it is directed that the awarded sum in each of the claim petitions shall be paid by the insurance company to the claimants as per the quantum assessed by the Tribunal vide the impugned judgment, with a right to recover the same from the legal heirs of the deceased owner. Click here to view judgement Judgement reviewed by – Vaishnavi Raman

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR i) CMAM No. 34 2014 United India Insurance Company Ltd. Reserved on: 24.06.2020 Pronounced on: 02.07.2020 …...Appellant(s) Through: Mr. Nissar A. Dandroo Adv. V s Mohammad Subhan Bhat and others. ….Respondent(s) Through: Mr. Mohd. Altaf Khan Adv. ii) CMAM No. 35 2014 United India Insurance Company Ltd. …..Appellant(s) Through: Mr. Nissar A. Dandroo Adv. V s Mohammad Shafi Baba and others. ….Respondent(s) Through: Mr. Mohd. Altaf Khan Adv. Coram: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE The instant appeals have been filed by the appellant against the Award dated 08.10.2013 passed by the Motor Accidents Claims Tribunal Srinagar 2 CMAM Nos. 34 2014 & 35 2014 On 31.07.2002 the deceased namely Mohd. Ayoub Bhat and Shakeel Ahmed Baba were in a Maruti Car bearing No. CH 01 V 1342 that was being driven by one Fayaz Ahmed Bhat. At about 9.25 A.M on reaching near Gol Masjid Tral the vehicle in question was subjected to firing by unidentified gunmen resulting in fatal injuries to both the deceased as well as the driver cum owner of the vehicle in question. The legal heirs dependants of the aforesaid two deceased filed two separate claim petitions before the Tribunal claiming compensation against the legal heirs of the owner cum driver and the appellant insurance company. The legal heirs of the deceased owner cum driver did not contest the claim petitions whereas the appellant insurance company contested the claim petitions before the Tribunal by filing its objections. While admitting the currency of policy of the insurance of the offending vehicle covering the period of the occurrence the insurance company claimed that the accident was not caused due to negligence of the driver of the offending vehicle inasmuch as the police has filed charge sheet for offences under Sections 302 307 427 120 B 324 RPC and Section 7 27 of the Arms Act. On this ground it was urged that the claim petition is not maintainable. It was further contended that the driver of the vehicle in question was not holding a valid driving licence at the time of the accident and as such the insurance company is not liable to pay any compensation to the claimants. The insurance company also contended that the deceased were travelling as gratuitous passengers in the offending car and that risk to their lives was not 3 CMAM Nos. 34 2014 & 35 2014 covered under the terms of the policy of insurance. On the basis of the pleadings of the parties the Tribunal framed the following issues: “Whether on 03.07.2002 the deceased Mohd Ayub Bhat HC JKAP was deputed as Security Guard of one Naib Tehsildar Awantipora an during the course of his duty with Naib Tehsildar in Maruti Car bearing registration No.CH 01 V 1342 and near Main Chowk Naib Tehsildar was given to understand that as he has been mandated as NC Assembly candidate therefore he may not proceed ahead because some unidentified gunmen has planned to attack him but the Naib Tehsildar turned deaf ear to their request and proceeded ahead and when he reached near Gol Masjid Tral militants attacked him due to which deceased sustained bullet injuries on various parts of his body and succumbed to the same OPP ii) Whether this Tribunal has no jurisdiction to try the claim petition as such it merits dismissal against the respondent company OPR 1 iii) Whether the petitioner has no causes of action to file the claim petition against then respondents as such the same merits dismissal OPRs iv) Whether the respondent driver of the offending vehicle was having driving license on the date of accident as such the respondent company cannot be saddled with liability .. OPR 1 In case the issue no.1 is proved in affirmative to what amount of compensation the petitioners are entitled to from whom and in what proportion .. OPP The Tribunal vide the the impugned judgement after holding that the death of the deceased has arisen out of use of the offending vehicle and that there was no breach of policy conditions on the part of the insurer allowed the two claim petitions vide the impugned award. The common award passed by the Tribunal is under challenge through the medium of instant appeals on the following grounds: The death of the deceased has not been caused due to any vehicular accident but as a result of militant activities and as such the claim petitions are not maintainable. The deceased was not holding a valid driving licence which fact stsnds established before the Tribunal and in spite of that the 4 CMAM Nos. 34 2014 & 35 2014 Tribunal has decided the issue in this regard against the insurance company. iii) As per the terms of policy of the insurance the risk to the lives of the occupants of the car in question was not covered and the same has been proved by the insurance company before the Tribunal but in spite of this the Tribunal has recorded a finding against the I have heard learned counsel for the parties. I have also gone through the grounds of appeal the impugned award and record of the Tribunal. The very first contention of the appellant insurance company is that the claim petition is not maintainable because the death of the deceased has not taken place due to rash and negligent act on the part of the driver of the vehicle in question. According to the appellant it is a case where death of the deceased was result of firing by unidentified gunmen upon the vehicle in which they were travelling and the police after investigation of the case found that offences under Sections 302 307 427 120 B 324 RPC and Section 7 27 of the Arms Act are established. It is urged that unless it is shown that the accident was caused due to negligence of the driver of the offending vehicle no liability can be fastened upon the insured and resultantly the insurance company is not liable to indemnify the insured. In order to determine the above issue it is necessary to have a look at the relevant provisions of the Motor Vehicles Act. Chapter XII of the Act relates to Claims Tribunal and Section 165 provides for establishment of the Motor Accidents Claims Tribunal for a particular area. Sub sectionof the said provision is relevant to the context and the same is reproduced as under: 5 CMAM Nos. 34 2014 & 35 2014 Section 165(1) “A State Government may by notification in the Official Gazette constitute one or more Motor Accidents Claims Tribunals hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles or damages to any property of a third party so arising or both. Explanation.—For the removal of doubts it is hereby declared that the expression “claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles” includes claims for compensation under section From the perusal of the aforesaid provision it appears that a Claims Tribunal is established for adjudicating upon the claims for compensation in respect of accidents involving the death or bodily injuries to persons “arising out of use of motor vehicles” or damages to any property of a third party so arising or both. It is nowhere mentioned in the aforesaid the Claims Tribunal will adjudicate upon claims for compensation in respect of only those accidents where there is negligence of driver of the vehicle involved. The Claims Tribunal possesses the jurisdiction to assess and award compensation in respect of all cases of accidents arising out of use of motor vehicle. The Hon’ble Supreme Court in the case of Shivaji Dayanu Patel and Anr. Vs. Vatschala Uttam Morereported as3 SCC 530 had an occasion to interpret the expression “use of motor vehicle” in the context of provisions contained in Section 165 of the Act. It was a case of a collision between a petrol tanker and a truck as a result of which the petrol tanker had gone off the road about 20 feet away from the highway and due to overturning 6 CMAM Nos. 34 2014 & 35 2014 of the tanker the petrol contained in it had leaked out resulting in an explosion. The said explosion caused the death of some persons who had gone there to collect the leaked petrol from the tanker. In the backdrop of these facts the Hon’ble Supreme Court observed as under: The expression arising out of the use of motor vehicles" was also used by Parliament in sub section of Section 110 of the Act wherein provision was made for constitution of Motor Accidents Claims Tribunals for speedy and expeditious adjudication of claims of compensation in respect of accidents involving death or bodily injuries to persons arising out of the use of motor vehicles or damages to any property of a third party so arising or both. Furthermore by subsection of Section 94 of the Act an obligation was imposed that no person shall use except as a passenger or cause or allow any other person to use a motor vehicle in a public place unless there is in force in relation to the use of the vehicle by that person or that other person as the case may be a policy of insurance complying with the requirements of Chapter VIII of the Act. Section 95 prescribed the requirements of such insurance policies as well as limits of liability. In arising out of the use of the vehicle in a public place. While construing the expression "arising out of the use of a motor vehicle" in Sub sectionof Section of the Act regard will have to be had to the fact that expressions to the same effect were also contained in sections 95 and 110 of the Act. clause of Sub section of Section 95 it was laid down that the policy of insurance required must be a policy which insures the person or classes of persons specified in the policy to the extent specified in Sub section againstany liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place andthe death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. While construing the expression "arising out of the use of a motor vehicle" in sub sectionof Section of the Act regard will have to be had to the fact that expressions to the same effect were also contained in Sections 95 and 110 of the Act.” 11. The Hon’ble Court in para 36 of the aforesaid judgment further went on to observe as under: “36. This would show that as compared to the expression “caused by” the expression “arising out of” has a wider connotation. The expression "caused by" was used in Sections 95(1)(b)(i) andand 96(2)(b)(ii) of the Act. In Section 92 A of the Act Parliament however chose to use the expression "arising out of" which 7 CMAM Nos. 34 2014 & 35 2014 indicates that for the purpose of awarding compensation under Section 92 A the causal relationship between the use of the motor vehicle and the accident resulting in death or permanent disablement is not required to be direct and proximate and it can be less immediate. This would imply that accident should be connected with the use of the motor vehicle but the said connection need not be direct and immediate. This construction of the expression "arising out of the use of a motor vehicle" in section 92 A enlarges the field of protection made available to the victims of accident and is in consonance with the beneficial object underlying the enactment.” From the aforesaid enunciation of law on the subject it is clear that a claim petition is maintainable if the accident has arisen out of use of the motor vehicle and it is not necessary that the accident should have taken place due to negligence of the driver of the vehicle. This position of law has been reiterated in a number of subsequent judgments of the Hon’ble Supreme Court as well as of our own High Court. In “Bipal Bashi Das Vs. Oriental Insurance Company Ltd. reported as 2008ACJ 1728” the claim petition by widow of the deceased who was one of the dead passengers travelling in a jeep that was fired upon by extremists was held to be maintainable. Similarly in “Smt. Rita Devi and others Vs. New India Assurance Company Limited reported as 2000 SCC 113 the Hon’ble Supreme Court has held that the incident of murder of driver of an Auto Rikshaw hired by the passengers who committed felony of stealing of Auto Riskhaw is an accident within the meaning of Motor Vehicles Act. The death of the deceased in the instant case has resulted on account of firing by unidentified gunmen on the vehicle in which they were travelling. The said incident in view of the law discussed herein before can safely be termed as an accident arising out of use of motor vehicle and as such 8 CMAM Nos. 34 2014 & 35 2014 the claim petition is maintainable. The finding of the Tribunal in this regard does not deserve any interference. Another ground taken by the appellant in the instant appeals is that the policy of insurance of the vehicle involved in the accident covered risk to only 3rd parties and not to the occupants of the car. To buttress this point the appellant has relied upon the statement of Mr. M.K. Raina Senior Branch Manager United India Insurance Company Limited Pulwama who has stated in his examination in chief that premium for covering risk of occupants of the vehicle in question was not received by the company and as such risk to their life was not covered under the terms of the policy. A careful perusal of the cover note of the insurance policy photo copy whereof is on record of the Tribunal reveals that the insurance company has received premium from the insured which covers own damage also meaning thereby that it is a comprehensive package policy. The things become clearer when we have a look at the cross examination of Sh. M.K. Raina Branch Manager. He has stated in his cross examination that the vehicle in question was covered by a comprehensive policy. It is not in dispute that a comprehensive package policy of a private car covers the risk to the life of the occupants of the car. It is not the case of the insurance company that the deceased had paid any fare for travelling in the vehicle in question or in other words it is not the case of the insurance company that the vehicle in question was being plied for hire and reward. Therefore the contention of the insurance company that risk to the life of the deceased was not covered by the terms of the policy conditions is without any merit. 9 CMAM Nos. 34 2014 & 35 2014 Although the appellant insurance company has urged in the appeal that the quantum of compensation awarded by the Tribunal in favour of the claimants in both the claim petitions is on higher side yet no arguments in this regard were advanced by the learned counsel for the appellants. Even otherwise the compensation awarded by the Tribunal in favour of the claimants in both the cases is not on higher side. In fact it is on lower side inasmuch as the Tribunal while assessing the compensation has not taken into account the gross salary of the deceased but it has taken into account only net salary of the deceased which is contrary to the settled law of the land. The claimants however have not filed any cross appeal. Thus the compensation awarded by the Tribunal in favour of the claimants in both the appeals is not on higher side. Lastly it has been argued by learned counsel for the insurance company that the driver of the offending vehicle was not in possession of a valid driving licence at the time of the accident and as such there has been breach of policy conditions on the part of the insured resulting in exoneration of the insurance company in paying compensation to the claimants. It is urged that the Tribunal has not appreciated the evidence brought on record by the insurance company on this issue which has resulted in recording of a perverse finding by the Tribunal. So far as the issue with regard to the validity of the driving licence is concerned the insurance company has contended that the deceased driver of the vehicle in question was in possession of a fake learner’s licence at the time of the accident. In order to prove this fact the insurance company has 10 CMAM Nos. 34 2014 & 35 2014 examined RW Tariq Ahmed the licencing clerk RTO Office Srinagar and RW Mohd. Sultan licensing clerk RTO Office Srinagar. RW Tariq Ahmed has on the basis of record of his office stated that the driving licence No. 2587 R is a learners’ driving licence issued in the name of one Mushtaq Ahmed Sheikh S o Ghulam Mohammed Sheikh. RW Mohd. Sultan has stated that as per the record licence bearing No. 2582 R is a learners’ licence in the name of Muneer Ahmad Khan S o Maqsood Ahmed Khan. So the witnesses have stated that none of the aforesaid licences are in the name of the deceased driver namely Fayaz Ahmed Bhat. As per the charge sheet vide seizure memo dated 31.07.2002 learner’s licence No. 2587 RTO R with date of issue 25.04.2002 in the name of Fayaz Ahmad Bhat stands seized by the police during investigation of the case. Photo copy of the said learner’s licence is on record. Statement of RW Tariq Ahmed the licensing clerk establishes that the driving licence No. 2587 R exist in the name of Mushtaq Ahmed Sheikh and not in the name of Fayaz Ahmad Bhat. From the aforesaid evidence on record it is clear that the deceased driver who also happened to be the owner of the vehicle was holding a fake learner’s licence. The fact that he was holding a fake learner’s driving licence was well within his knowledge. Being himself the owner of the offending vehicle the breach of policy condition on his part was willful. As per the terms of the policy conditions which stands proved by the statement of the Branch Manager Mr. M.K. Raina the driving of the insured vehicle by a driver holding an invalid or fake driving licence constitutes a breach of policy conditions entitling the insurance company to 11 CMAM Nos. 34 2014 & 35 2014 avoid its liability to pay the compensation to the claimants. Thus the insurance company in this case has been successful in discharging its burden of proving that there has been a breach of policy condition on the part of the insured. The legal heirs of the deceased driver cum owner have chosen not to contest the claim petition and they have not brought anything in rebuttal on record on this issue. In the face of the aforesaid evidence on record the observation of the Tribunal that the insurance company has not proved the issue by speaking evidence with documentary record is perverse and against the record. The same therefore deserves to be set aside. For the foregoing reasons the appeals of the appellant insurance company are allowed to the extent that the finding on issue No. 1 returned by the Tribunal with regard to the validity of the driving licence of the driver of the vehicle involved in the accident is set aside and it is held that the driver of the vehicle in question was not holding a valid driving licence at the time of the accident and as such there has been breach of policy condition on the part of the insured. It has time and again been held by this court and by the Hon’ble Supreme Court that the Court has power to direct the insurance company to satisfy the award with a right to recover the awarded sum from the owner insured even in cases where breach of policy conditions has been proved by the insurance company. Having regard to the circumstances of the present case particularly the fact that the claimants in both the claim petitions 12 CMAM Nos. 34 2014 & 35 2014 may not find it easy to recover the amount of compensation from the legal heirs of the deceased driver that too after a lapse of eighteen years of the accident it is directed that the awarded sum in each of the claim petitions shall be paid by the insurance company to the claimants as per the quantum assessed by the Tribunal vide the impugned judgment with a right to recover the same from the legal heirs of the deceased owner. Accordingly the appeals stand disposed Ram Krishan) SANJAY DHAR) JUDGE Whether the order speaking: Whether the order is reportable: Yes No

Victimising a person for an Uncommunicated Order of Termination or Disengagement is not Lawful: Orissa High Court

Discriminating against a person at all stages and holding him responsible for an uncommunicated order is not legally permissible. Merely taking a decision and passing it and keeping it in the file without publishing it or communicating it to the petitioner will not be a valid reason for not regularising him in accordance with the orders of the Apex Court. This auspicious judgment was passed by the Orissa High Court in the matter of RAJIB LOCHAN MAHANTA V. VICE-CHANCELLOR, UTKAL UNIVERSITY & ORS. [WRIT PETITION (C) NO. 6213 OF 2014] by Honourable Dr. Justice DR. Justice B.R.Sarangi. This writ petition is filed for seeking direction to remove discrimination against the petitioner and instead regularize him in the Group-D post so as to claim consequential services and financial benefits as due and admissible to him at par with similarly situated persons, whose services have already been regularized as opposed to him. The factual matrix of this case relates to another case, Dhrubananda Mishra and others vs. Vice-Chancellor 77 (1994) CLT 70, where the petitioners sought two directions from the Court; first pertained to regularization of service and the second was to pay them equal to that of their counterparts in regular service. The Division Bench of this Court held that regularization is ordered for those who had completed five years of continuous service. This judgement was confirmed by the Apex Court also in SLP (C) No. 9240 of 1993. Thus, the university formed a list for regularising the class-IV cadre but the petitioner was not regularized, though the one standing just above the petitioner was regularized so he filed a writ petition, W.P.(C) No. 7391 of 2006 which was disposed with a direction to the State Government to take a decision on the proposal given by the University within a period of fifteen days. During this period several other petitions were filed in the court, all of which were disposed with a similar direction, yet the petitioner, who has completed five years’ service and is disallowed further service, has still not been regularised. The court relied on Parikhit Mallik v Vice-Chancellor, Utkal University OJC No.13005 of 1999 and Prafulla Kumar Barik & Ors W.P.(C) No.6567 of 2006 and also acknowledged all the evidence and documents submitted by the Petitioner to substantiate his allegation of discrimination against him for not regularising him. The Court observed that “The ban so imposed on recruitment of work charged employees and NMRs is only applicable to the fresh engagement but not for regularization of services. Therefore, the petitioner has been discriminated in all the times even though he made his grievances time and again and consequentially, he faced disengagement.” Also, the court considered the order passed in Mohan Kumar Muduli W.P.(C) No.13254 of 2014 case and iterated that, “Mohan Kumar Muduli and Sarbeswar Gochhayat, who was appointed after the cutoff date and disengaged along with the petitioner were regularized and allowed to equal pay with equal work. Admittedly, both are juniors to the petitioner and were engaged after the cut-off date and yet the petitioner was not regularised.” Also, the Court agreed that, “the same was not communicated to the petitioner nor any opportunity of hearing was given to him while disengaging the petitioner from service.” Therefore, this termination is not valid.

ORISSA HIGH COURT: CUTTACK W.P.(C) NO. 6213 OF 2014 In the matter of an application under Articles 226 and 227 of the Constitution of India. AFR Rajib Lochan Mahanta … Petitioner Versus Vice Chancellor Utkal University and others ….. Opp. Parties For Petitioner M s. Digambar Mishra and S. Satpathy Advocates and M. Ojha Advocates O.Ps. No. 1 & 2] For Opp. Parties : M s. T. Pattanayak S. Pattanaik Mr. Y.S.P. Babu Addl. Govt. Advocate O.P. No.3] P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of hearing: 25.03.2021 :: Date of Judgment: 31.03.2021 DR. B.R. SARANGI J. Rajib Lochan Mahanta who was working as a Group D employee in Utkal University Khurda has filed this writ petition seeking direction to the opposite The factual matrix of the case in hand is parties to remove the discrimination and regularize him in the Group D post available in the establishment of opposite party University and place him in the gradation list meant for Class IV posts for consequential services and financial benefits as due and admissible to him at par with similarly situated persons whose services have already been regularized. that in Dhrubananda Mishra and others vs. Vice Chancellor Utkal University 77 CLT 70 nine petitioners had approached this Court seeking two directions from this Court the first was relating to regularization of service and the second was to pay them equal to that of their counterparts in regular service. The Division Bench of this Court held that regularization has been accepted as a part and parcel of condition of service and specifically for those who had completed five years of continuous service. Since all the nine petitioners in the said writ petition had completed more than five years of continuous service so a case of regularization was made out and the Division Bench of this Court directed the opposite parties to take early steps for regularization of those petitioners along with other eligible employees by framing an appropriate scheme and thereafter to regularize as per the seniority of the incumbents. It was also directed that apart from the basic pay those petitioners at all be entitled to dearness and additional dearness allowance only being paid to the regular hands. That entitlement would be given effect from the date of passing of the judgment i.e. 13.01.1993. It is apparent that on regularization the incumbents would get the pay and other allowances as are available to regularly employed employees. The aforesaid judgment was challenged before the apex Court in SLPNo. 92493 and the same was dismissed on 13.02.1996. Consequentially the order passed by the Division Bench was confirmed. After confirmation of the judgment of this Court the opposite partyUniversity on 23.05.1996 prepared a seniority list of daily wages working in its establishment wherein the petitioner’s name found place at serial no. 171 and one Niranjan Patra at serial no. 170. The opposite party University also prepared the list indicating deduction of EPF from the wages of non regular employees according to the seniority wherein the petitioner’s name found place at serial no. 83 Niranjan Patra was placed at serial no. 82 Sarbeswar Gochhayat at seial no. 85 Mohan Kumar Muduli at serial no. 86. In terms of the judgment passed by the Division Bench of this Court in Dhrubananda Mishra the University regularized the employees in two spells in 1st spell 87 and in 2nd spell 77 totaling to 164 employees who were in the seniority list under Annexre 2 were regularized. In the 2nd spell Niranjan Patra who was at serial no. 170 just above the petitioner was regularized on 06.02.2014. As per received under the Right to Information Act 2005 all total 174 posts were available in Class IV cadre in the opposite Therefore the petitioner along with party University establishment. Thereby 10 more vacancies were left out against which the petitioner who is standing at serial no. 171 could have been regularized but for the reasons best known to the authority his services have not been regularized though one Niranjan Patra standing just above the petitioner at serial no. 170 was regularized. fourteen others filed W.P.(C) No. 73906 before this Court. The Division Bench of this Court vide order dated 26.02.2009 disposed of the said writ petition directing the State Government to take a decision on the proposal given by the University within a period of fifteen days from the date of receipt of a copy of that order. Prafulla Kumar Barik and three others filed another writ petition bearing W.P.(C) No. 65606 and this Court vide order dated 18.03.2011 disposed of the said writ petition with a direction to the opposite party University to move the State Government to obtain clearance to regularize the services of those petitioners and that if such a move was made the Department of Finance would pass necessary orders directing the Utkal University to regularize the services of those petitioners within three months from the date of communication of that order. Similar direction was also made in OJC No. 130099which was disposed of on 27.01.2006. The said order was challenged in SLP No. 19829 of 2006 and the apex Court vide order dated 16.02.2009 dismissed the said SLP. Thereby a large number of persons have been regularized in terms of the various orders passed in different writ petitions as well as contempt petitions. Similarly pursuant to the order passed in CONTC No. 33711 arising out of W.P.(C) No.65606 four persons have been regularized. But the petitioner has been discriminated though Niranjan Patra standing at serial no. 170 just above the petitioner has been regularized. Due to such discriminatory action of the authority the petitioner has approached this Court by filing this application. Mr. D. Mishra learned counsel for the petitioner vehemently contended that once the matter has been settled by the apex Court in SLP in compliance of the order dated 13.01.1993 passed in Dhrubananda Mishra the petitioner who is coming under the other eligible employees category having completed five years of continuous service is entitled to be regularized and as such he is also entitled to get equal pay for equal work. In compliance of direction of the Division Bench of this Court though seniority list was prepared and the name of the petitioner was found place at serial no. 171 but his services were not regularized even though the services of one Niranjan Patra who was just above the petitioner at serial no. 170 have been regularized. Thereby the petitioner along with others again approached this Court by filing W.P.(C) No. 73906 which was disposed of on 26.02.2009 taking averments made in paragraph 7 of the counter affidavit wherein it was specifically stated that pursuant to the order of this Court in OJC No. 3490 the University prepared a list of DLRs according to their date of engagement and regularized 77 persons according to the the meantime the Government on 14.03.2001 imposed ban on the recruitment as a part of austerity measure. Furthermore the University had also moved the State Government to permit it to fill up the vacancies in Group D category. Till then the University had not received any reply from the State Government. Thereby this Court disposed of the said writ petition on 26.02.2009 directing the State Government to take decision on the proposal given by the University within a period of fifteen days from the date of receipt of the copy of that order. Consequentially in compliance of such order some of the persons have already been regularized but the petitioner has only been discriminated. As such his service has not been regularized nor has he been granted the benefit as due and admissible to him in view of judgment of this Court in Dhrubananda Mishra supra). On the other hand he has not been allowed to continue in service and no such communication has been made to the petitioner. To substantiate his contention he has relied upon the judgments in Dhrubananda Mishra v. Vice Chancellor Utkal University 77CLT 70 State of Punjab v. Amar Singh Harika AIR 1966 SC 1313 Dulu Devi v. State of Assam 2016 SCC 622 and State of Karnataka v. M.L. Keshari AIR 2010 SC Mr. T.N. Pattanayak learned counsel appearing for opposite parties no. 1 and 2 University referring to the counter affidavit contended that since the petitioner was engaged on 22.08.1994 which is after the cutoff date i.e. 12.04.1993 his services could not be regularized. It is further contended that the employees who were engaged prior to 12.04.1993 were to be conferred with temporary status. Since the petitioner’s case is not so being engaged on 22.08.1994 i.e. after the cutoff date he was not conferred with the temporary status for not being eligible as per the criteria enumerated in the Finance Department Resolution dated 04.09.2012. It is further contended that pursuant to judgment dated 13.01.1993 passed by this Court in OJC No. 348 of 1990 a list of DLRs containing the names of 175 persons was prepared on 23.05.1996 out of which the services of 77 DLRs were regularized against the substantive vacancies in phased manner up to 2002 prior to imposition of selective ban on recruitment by the Government vide letter dated 14.03.2001. It is further contended that though the name of the petitioner was enlisted at serial no. 171 yet later on it was found that his engagement admittedly was after the cutoff date i.e. 12.04.1993 as per the Finance Department Resolution dated 04.09.2012 and thereby his services have not been regularized. As such no illegality or irregularity has been committed by the authority. Mr. Y.S.P. Babu learned Addl. Government Advocate appearing for opposite party no.3 contended that since it is a matter between the petitioner and opposite parties no. 1 and 2 University unless the University placed the matter before the Government for approval it cannot be considered. Therefore for non implementation of the judgment passed by this Court responsibility can be fixed on opposite parties no. 1 and 2 but not on opposite party no.3. This Court heard Mr. Digambar Mishra learned counsel appearing for the petitioner Mr. T.N. Pattanayak learned counsel appearing for opposite parties no.1 and 2 and Mr. Y.S.P. Babu learned Additional Government Advocate appearing for opposite party no.3. Pleadings have been exchanged between the parties and since this matter is of the year 2014 with the consent of learned counsel for the parties the writ petition is being disposed of finally at the stage of admission. In view of the factual matrix as delineated above there is no dispute that the petitioner was continuing in a Group D post in Utkal University and has completed more than five years of continuous service to be for regularization. In Dhrubananda Mishra supra) this Court vide judgment dated 13.01.1993 observed as follows: “2. Regularization has been accepted as a part and parcel of condition of service and specially for those who have completed five years of continuous service. In the present case according to Shri Mohapatra all the nine petitioners before us have completed by now more than five years of continuous service as a case for regularization has been made and we direct the opposite parties to take early steps for regularization of those petitioners along with other eligible employees by framing an appropriate scheme and thereafter to regularize as per the seniority of the incumbents.” As a consequence thereof the services of petitioners therein and other eligible employees from the seniority list were regularized. The petitioner herein is one of those eligible employees whose name found place at Serial No.171 of the list prepared in consonance with the direction given by the Division Bench of this Court. In Dhrubananda Mishrathis Court also directed to pay equal that of regularly employed class IV incumbents which reads as follows: “ … Placed in such a situation we can only direct to make available to all the nine petitioners the pay equal to that of regularly employed class IV incumbents and we do so.” “ .So order that apart from the basic pay the petitioners at all be entitled to dearness and additional dearness allowance only being paid to the regular hands. This entitlement will be given that on regularization the incumbents would get the pay and other allowances as are available to regularly employed employees.” is apparent The aforesaid judgment of this Court was challenged before the apex Court in SLP No.92493 which was dismissed vide order dated 13.02.1996. Consequentially the judgment dated 13.01.1993 passed by this Court in OJC No.348 of 1990 was confirmed. In consonance with the said judgment a list of daily wagers working under the Utkal University was prepared vide Annexure 2 dated 23.06.1996 wherein the petitioner’s name found place at Serial No.171. The University also prepared a list indicating deduction of EPF from the wages of non regular employees from the month of January 2009 wherein the petitioner’s name found place at Serial No.83 Sarbeswar Gochhayat at Serial No.85 Mohan Kumar Muduli at Serial No.86 in terms of the judgment passed by this Court in Dhrubananda Mishra persons were regularized who were in the seniority list under Annexure 2. According to the information received under the RTI Act 2005 there were 174 posts available in Class IV cadre in the opposite party University. As such even though 10 vacancies were available the services of the petitioner could not be regularized whereas services of Niranjan Patra whose name stands just above the petitioner at Serial No.170 have been regularized. Due to inaction of the authority fifteen persons including the petitioner filed W.P.(C) No.7391 of 2006 and the Division Bench of this Court vide order dated 26.02.2009 disposed of the said writ petition on the basis of the averments made in paragraph 7 of the counter affidavit filed by the University. The said paragraph 7 is quoted below: “7. That it is apt to state here that pursuant to order of this Hon’ble Court in OJC No.3490 the university has prepared a list of DLRs their date of engagement and regularized 77 persons according to vacancies. In the mean time the Government have imposed a ban on the recruitment on 14.03.2001 as a part of austerity measure. Furthermore the university has also moved the State Government to permit it till fill up the vacancies in Group D post category. Still yet the university has not received any reply from the State Government.” In terms of paragraph 7 as quoted above this Court disposed of the said writ petition directing the State Government to take a decision on the proposal submitted by the University within a period of 15 days from the date of passing of the order. Thereafter Prafulla Kumar Barik and three others filed W.P.(C) No.65606 and this Court vide order dated 18.03.2011 disposed of the said writ petition wherein reference was made to the following the vacancy. the meantime “Counter affidavit has been filed by the opposite party university and in paragraph 7 thereof it has been indicated that pursuant to the order passed by this Court in OJC No.348 of 1990 they have prepared a list of DLRs according to their date of engagement and regularized 77 persons according the state government has issued a ban order vide office memorandum no.10954 F Bt1 9 2001 dated 14.03.2001 and due to ban order the University is not in a position to regularize the DLRs and moved the state government for necessary permission. It is further indicated that the university mostly depends on the state government for funds for payment of salary to its employees for their filed on financial need. This affidavit the services of “Accordingly we direct the opposite party University to move the state government to obtain petitioners. If such a move is made the government in the department of Finance is directed to pass necessary orders directing the Utkal University to regularize the services of the petitioners. Let the entire exercise be completed within three months from the date of communication of this order.” Finally this Court disposed of the said writ petition with the following direction: Similar direction was also given in OJC No.13005 of 1999 disposed of on 27.01.2006. The said order was challenged before the apex Court in SLP No.19829 of 2006 which was also dismissed on 16.02.2009. As a consequence thereof a large number of persons were regularized in terms of various orders passed in different writ petitions and contempt petitions. Similarly pursuant to order passed in CONTC No.3374 of 2011 arising out of W.P.(C) No.65606 the services of four persons were regularized vide Annexure 10 dated 06.02.2014. Thereby the petitioner claims that he should not have been discriminated the matter of regularization as the similarly situated persons have been The sole contention raised by University is that the services of the DLRs who were engaged prior to cutoff date i.e. 12.04.1993 were temporary status pursuant to Finance Department Resolution No.31715 F dated 04.09.2012 wherein it has been specifically mentioned that employees who were engaged prior to 12.04.1993 shall be conferred with temporary status. As the petitioner was engaged on 22.08.1994 i.e. after the cutoff date 12.04.1993 he was not conferred with temporary status. But subsequently by filing rejoinder affidavit on 27.06.2017 the petitioner disputed such fact and specifically stated as follows: “Further the case of the university is that the petitioner was appointed after 12.04.1993 his case was not consideration. This ground also falls to the ground in as much as persons engaged after the petitioner had already been regularized. For kind perusal a true copy of the letter dated 22.07.2014 isused by the Warden and which had already been brought to the knowledge of this Hon’ble Court in a contempt proceeding is annexed hereto as Annexure 13.” He has given an extract of Annexure 13 annexing to the rejoinder affidavit stating inter alia the persons engaged subsequent to the petitioner as DLR NMR by the University even after the cutoff date i.e. 12.04.1993 their services have been regularized. The same is given below: Date of with effect Maker Bhoi Sudhir Nayak Ramesh Panda Saraswati Rao Pratima Nayak 01.02.1996 Daily wage 01.02.1996 Daily wage 08.06.1994 Daily wage 08.06.1994 Daily wage 01.05.1996 Daily wage 07.02.1995 Daily wage As the services of juniors to the petitioners have been regularized the University should not have taken an apathetic attitude to the petitioner taking the plea that the petitioner was engaged after the cutoff date i.e. 12.04.1993 which indicates that the University is bent upon not to regularize the services of the petitioner even though he is otherwise entitled to. Pursuant to direction issued by this Court if the University has already prepared a seniority list of 175 persons and out of them 170 persons have been regularized in two spells i.e. 87+77 and the petitioner’s name found place in Sl. No.171 there is no valid and justifiable reason not to regularize the services of the petitioner and put him to harassment for no fault of him. A specific pleadings have been made by the petitioner in reply affidavit to the additional affidavit filed by opposite parties no.1 and 2 that Makar Bhoi whose date of joining is 01.02.1996 Sudhir Nayak whose date of joining is 01.02.1996 Ramesh Panda whose date of joining is 08.06.1994 Gitanjali Upadhyay whose date of joining is 08.06.1994 Saraswati Rao whose date of joining is 01.05.1996 and Pratima Nayak whose date of appointment is 07.02.1995 were appointed as daily wager their services have been regularized w.e.f. 31.05.2006. Therefore it is evident that the persons having been appointed after the cutoff date and also after the petitioner have been regularized but the petitioner has been discriminated. In response to the rejoinder affidavit a further affidavit has been filed on behalf of opposite parties no.1 and 2 stating as follows: “However the government in its own prudence has been pleased to turn down such proposal of the university in negative stating therein that since the university has never appointed such NMRs DRLs with the permission of the government there is no question of regularization with the concurrence of the government vide letter no.10999 dated 06.04.2009 of the S.L.O. cum Deputy Secretary to Govt. Govt. of Odisha Department of Higher Education Odisha Bhubaneswar. Copy of the said letter no.10999 dated 06.04.2009 of the S.L.O. cum Deputy Secretary to Govt. Govt. of Odisha and a legible typed copy of the said letter is annexed hereto as Annexure A 4. That further it is pertinent to bring to the kind notice of the Hon’ble Court that in the past vide circular FDOM No.17815 F dated 12.04.1993 of the Finance Dept. Govt. of Odisha as regards the following subject “Ban of recruitment of Work charge employees and NMRs and Ban on engagement of persons on daily wage personal responsibility on person engaging and or disbursing wage for such persons” the Syndicate in its meeting held on dated 24.07.2013 had resolved as follows: “the Vice Chancellor was authorized to disposed off the case” of the petitioner Sri Rajib Lochan Mohanta along with certain other similarly persons. However the Vice Chancellor in his own prudence considered it proper to place the said matter of disengagement of the petitioner along with others as stated above for necessary reconsideration at the level of Syndicate of its earlier decision dated 24.07.2013. Thus the same was placed as item no.4 dated 04.11.2013 before the Syndicate. Yet the Syndicate resolved as follows: “Resolved that the steps to be taken to disengage 4 05.11.2013 and the Vice Chancellor is authorized to make suitable alternatives.” four) DLRs with effect Thus as per the official records as on date the petitioner stands disengaged. Copy of the said circular FDOM No.17815 F dated 12.04.1993 of the Finance Dept. Govt. Odisha the list of Item to the Syndicate to be held on 04.11.2013 for reconsideration of the case of the petitioner and others duly signed by the Registrar on dated 01.11.2013 and the decision of the Syndicate dated 04.11.2013 thereafter are annexed hereto as Annexure A 5 series.” In view of such affidavit an attempt has been made to bring to the notice of this Court that the petitioner was disengaged from service pursuant to decision taken by the Syndicate on 04.11.2013. The said document has been placed at page 105 of the brief by which along with the petitioner one Sarbeswar Gochhayat Mohan Muduli and Smt. Saraswati Barik were also disengaged from service. The ban so imposed on recruitment of work charged employees and NMRs on 14.03.2001 is only fresh engagement but not regularization of services. Therefore the petitioner has been discriminated in all the times even though he made his grievances time and again and consequentially he faced disengagement. Mohan Kumar Muduli who was disengaged along with the petitioner pursuant to decision of the Syndicate on 04.11.2013 and was engaged after the cutoff date i.e. 12.04.1993 approached this Court by filing W.P.(C) No.13254 of 2014 and this Court on 21.11.2019 passed a detailed order which reads as “Heard Mr. S. Mohanty learned counsel for the petitioner learned Additional Government Advocate for the State and Mr. T. Pattanayak learned counsel for opposite party nos. 1 & 2 Utkal University. In the accompanied writ application the petitioner who was engaged as a DLR employee to the Utkal University has filed the instant writ petition for correction of graduation list published on 12.04.2013. The name of the petitioner has not been approved and petitioner further prays for grant of all financial consequential benefits. Bereft of unnecessary details relevant facts delineated in the writ petition is that initially the petitioner was engaged as a DLR employee on 01.01.1989 and was discharging his duties as and when required and whatever work has been assigned by the Utkal University till 14.03.1995 intermittent breaks. Subsequently petitioner was allowed to discharge duties like DLR continuously till 12.04.2013. In the year 2013 the Registrar Utkal University opposite party nos. 1 & 2 prepared a gradation list of DLR employees as per the information available in the establishment where the petitioner’s position in the gradation list is at Serial No. 103 and his date of joining in the University was reflected as 15.03.1995 as per Annexure 2 to the writ petition. After coming to know about incorrect reflection of date of joining of the petitioner the petitioner brought this matter to the notice of the opposite parties which fell on deaf years. The services of 87 DLR employees were conferred with temporary status and services were regularized in various Group D posts with effect from 18.03.2011 as evident from Annexure 4 when the petitioner was not allowed to discharge his duties and was not paid his salary in the month of February 2014. In spite of the fact that dismissal removal has been issued the petitioner came to know under RTI Act that the syndicate at its meeting held on 04.11.2013 has resolved to discharge the DLRs those who were engaged after 12.04.1993 pursuant to the Finance Department circular no. 17815 F dtd. 12.04.1993 as evident from Annexure 6 series. The petitioner has approached this Court under Article 226 of the Constitution of redressal of his Learned counsel for the petitioner submits that the petitioner in fact was engaged as DLR in the year 1989. Prior to the cutoff date and there was some intermittent breaks on 01.01.1989 to 1995. Since 1995 the petitioner continued in his duties uninterruptedly till 2013. Thereafter the name of the petitioner ought to have been reflected appointment engagement of the petitioner was prior to the cutoff date. list Learned counsel for the petitioner in order to buttress his claim refers the decision of the Hon’ble Apex Court in the cases of Secretary State of karnatak v. Umadevi AIR 2006 SC 1806 State of Karnatak v. M.L. Keshari AIR 2010 SC 2587 Nihal Singh v. State of Punjab AIR 2013 SC 3567 and Amarkant Rai v. State of Bihar and others 8 SCC 265. Learned counsel for the petitioner submits that in view of the aforesaid dictum of the Hon’ble Apex Court the petitioner’s service deserves to be regularized and he is entitled to all consequential service benefits. Controverting the averments made in the writ application counter affidavit has been filed by opposite party no. 1 & 2 wherein it has been stated that since there is a break in service of the petitioner from the very initial date of engagement i.e. 28.11.1988 his date of engagement in the said service has been computed from 15.03.1995 i.e. from when he has rendered continuous service. Therefore his representation dated 12.04.2013 soliciting correction in the gradation list was not considered by the authorities of the University It is further submitted in the counter affidavit that the petitioner was never in continuous service for long 26 years as claimed rather he was absent continuously from more than two years i.e. from July 1992 to 14.03.1995. Long authorized absence from duty amounts to discontinuity in from 08.01.19992 Also counter affidavit filed by opposite party nos. 1 and 2 to consolidated writ application where it has been stated that the petitioner remained absconded 14.03.1995 for which his name could not be reflected in the gradation list with effect from 28.11.1988. Besides as per the circular issued by the Registrar dated 26.11.1999 the daily wager who is absent will be absent continuously for one month or more without prior permission of the controlling officer be discontinued. Hence breakage in service his date of engagement has been taken as 15.03.1995 from where he rendered his duty after return from the absconding period. it appears After hearing learned counsel respective parties and discussing submissions made absolutely no dispute with regard to the fact that the petitioner rendered continuous services from the year 1995 to 2013 and there is also no dispute with regard to the services rendered by the petitioner prior to the cutoff date. i.e. 12.04.1993 as DLR employee though it was replete with immediate breaks. It would be profitable be quote the relevant paragraphs of the decision of the Hon’ble Apex Court in Umadevi M.L. Keshari Nihar Singh and Amarkant Rai citedhereunder : “ In Umadevi mentioned supra paragraph 53 of the said judgmentthe Apex Court held as follows : tribunals. The “ 53. One aspect needs to be clarified. There may be cases where irregular appointments as explained Narayanappa SCR 128): R.N. Nanjundappa(1) SCC 409) : AIR 1972 SC 1767) and B.N. Ngarajan SCC 507) AIR 1979 SC 1676) and referred to in para 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 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 instrumentalities should Government and their take steps to regularize as a one time measure the services of such irregularity appointed who have worked for ten years of more in duty 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 employees or daily wagers are being now employed. The process must be set in motion within six months from this date ..” The object behind the aforesaid direction is two fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of the courts or tribunals before the decision in Umadevi supra) was regularization in view of their long service. Second departments instrumentalities do not perpetuate rendered are the practice of employing persons on daily wage ad hoc casual for long periods and then periodically regularize them on the ground that they have served for more than ten years thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years without the protection of any interim order of any Court or tribunal in vacant posts processing the requisite qualification are entitled to be considered for regularization. Following the aforesaid principles rendered in the case of Umadevi in M.L. Keshari supra) the apex Court held that case of such employees who have completed ten years of service and do not possess the educational qualification prescribed for the post at the time of their appointment may be regularization in suitable lower posts considering their length of service rendered to be organization. In Nihal Singh mentioned supra the apex Court directed for regularization of service of the appellants creating new posts and on such regularization the appellants would be entitled to al the benefits of service attached to the posts which are similar in nature in the category of police service of the State and also awarded cost to be paid to each of the appellants in the said case. In the case of Amarkant Raitaking into consideration the cases of Umadevi M.L. Keshari and Nihal Singh mentioned supra the apex Court came to a conclusion that the appellant served the University for more than 29 years in the post of Night Guard and he has serviced the college on daily wage basis and therefore directed the authority to regularize the service of the appellant in the said case retrospectively w.e.f. 03.01.2002. Considering the contention raised by learned counsel for the parties and after going through the records without expressing any opinion on the merits of the case this writ petition is disposed of directing the opposite parties University to consider the grievance of the petitioner with regard to regularization of his service as expeditiously as possibly preferably within a period of four months from the date of communication of this order. Needless to say that while considering the grievance of the petitioner the authority shall take into account the case of the similarly situated person who has already been regularized by the authority concerned. It is made clear that the Government will not cause any further delay in granting necessary approval with regard to request made by the University for approval of the post. With the above observation and direction the writ petition stands disposed of.” Issue urgent certified copy as per rules.” Subsequently he filed I.A. No.17102 of 2019 for modification of order dated 21.11.2019 passed in W.P.(C) No.13254 of 2014 and this Court on 28.01.2020 passed the following order: “This is an application for modification of in W.P.(C) order dated 21.11.2019 passed No.132514. Considering the submission made by the learned counsel for the petitioner in 6th line of para 1 of page no.7 of the order dated 21.11.2019 insert the words ‘reinstatement and’ after the word ‘to’. Rest part of the order shall remain unaltered. Office to do the needful. The I.A. is accordingly disposed of. Urgent certified copy of this order be granted on proper application.” Since the said order was not complied with he filed CONTC No.1720 of 2020 which was disposed of on 08.06.2020. In compliance of the said order Mohan Kumar Muduli and Sarbeswar Gochhayat who were appointed after the cutoff date and disengaged along with the petitioner pursuant to the decision of the syndicate dated 04.11.2013 were regularized and allowed to equal pay with equal work. Admittedly both are juniors to the petitioner and were engaged after the cutoff date. reliance has been placed on Syndicate decision held on 04.11.2013 but the same was not communicated to the petitioner nor was any opportunity of hearing given while disengaging the petitioner from service. In Dulu Devithe apex Court held that mere passing of an order of dismissal or termination would not be effective unless is published and communicated to employee concerned. Merely a decision was taken by the Syndicate and an order was passed and kept in file need not be treated as order of disengagement termination from service as the said order was not communicated to the petitioner. In Amar Singh Harika supra) a Constitution Bench of the apex Court held that the order of termination without communication shall not have any This Court while considering the case of Mohan Kumar Muduli in W.P.(C) No. 13254 of 2014 taking into consideration the judgments of the apex Court in Umadevi M.L. Keshari Nihal Singh and Amarkant Rai mentioned supra directed for regularization of service of the petitioner Mohan Kumar Muduli and Sarbeswar Gochhayat as a consequence whereof in view of the order passed in contempt application the services of Mohan Kumar Muduli and Sarbeswar Gochhayat have been regularized. The cumulative effect of factual and legal aspects as discussed above is that the petitioner in the present writ petition has been discriminated at all stages and for the reasons best known to the authorities the services of the petitioner have not been regularized though services of similarly situated persons and the persons engaged after him have been regularized long since. As it appears the petitioner has only been victimized by the uncommunicated order of the syndicate disengaging him from service. Thereby such order of the syndicate dated 04.11.2013 disengaging the petitioner is liable to be quashed and is accordingly quashed. The petitioner shall be deemed to be continuing in service and as such his service shall be regularized forthwith with all consequential benefits as due and admissible to him at par with his counterparts from the date his immediate juniors have been extended with such benefits. Accordingly his seniority shall be fixed and he shall be granted both service and financial benefits as due and admissible to the post against which he shall be regularized from the date his juniors have been extended such benefits. The entire exercise shall be completed within a period of three months from the date of communication of this judgment. The writ petition is thus allowed. However there shall be no order as to costs. JUDGE DR.B.R.SARANGI Orissa High Court Cuttack The 31st March 2021 Alok Ajaya GDS

“The High Court was of the opinion that the Board of Councilors did not hear the matter and did not take a decision as required under Section 217 of the Act.”: Supreme Court, Part 1.

In context of the Civil Case No. 3657 of 2010, Debabrata Saha vs. Serampore Municipality & Ors., Justice L Nageswara Rao passed the judgment. In this case, the appeal was filed against the judgment of the Calcutta High Court by which the Appeal filed by Respondent No.3 was allowed and the Writ Application filed by the Appellant stood dismissed. The Appellant had purchased the ground floor of a two storied building situated at 45/2/G.T. Road (West) Serampore on 14.08.2002 from Respondent No.3 by a registered deed of conveyance. Mutation was done in the name of the Appellant on 12.03.2003. According to the Appellant, Respondent No.3 who was residing on the first floor started construction on the roof of the second floor on 31.12.2003. The Appellant had made a complaint to the local police station and the Chairman, Board of Councilors, Serampore Municipality-Respondent No.2 herein. The Appellant reiterated his complaint on 14.07.2004. As no action was being taken on the complaints preferred, the Appellant filed a Writ Petition before the High Court of Calcutta alleging inaction on the part of the Municipal Corporation in taking appropriate steps. The Writ Petition was disposed of by the High Court with a direction to the Board of Councilors (for short “the Board of Councilors, Serampore Municipality”) to consider the representations made by the Appellant on 31.12.2003 and 14.07.2004 within a period of four weeks from the date of communication of the order. In the meeting of the Board held on 14.02.2006, it was decided that the permission for construction on the second floor was obtained by Respondent No.3 on the basis of misrepresentation of facts. Thereafter, an order was passed by the Chairman, Board of Councilors, Serampore Municipality revoking the sanctioned plan in favour of Respondent No.3. Being aggrieved by the municipal authorities in not taking action to demolish the illegal construction which was made pursuant to the revocation of the sanctioned plan, the Appellant filed another Writ Petition seeking a direction to the authorities of the municipal corporation to take appropriate action to demolish the construction. The said Writ Petition was disposed of by the High Court directing the municipal corporation to initiate proceedings under Section 218 of the West Bengal Municipal Act, 1996 (for short “the Act”) for demolition of the illegal construction and to pass a reasoned order after giving a reasonable opportunity to all concerned. By way of implementation of the order of the High Court, a letter was issued by the municipal corporation to Respondent No.3 to remove the structure on the second floor.

Non Reportable IN THE CIVIL APPELLATE JURISDICTION Civil Appeal No. 36510 Appellant Serampore Municipality & Ors. …. Respondents JUDGMENT L. NAGESWARA RAO J This Appeal is filed against the judgment of the Calcutta High Court by which the Appeal filed by Respondent No.3 was allowed and the Writ Application filed by the Appellant stood dismissed. The Appellant purchased the ground floor of a two storied building situated at 45 2 G.T. Road to consider the representations made by the Appellant on 31.12.2003 and 14.07.2004 within a period of four weeks from the date of communication of the order. In the meeting of the Board held on 14.02.2006 it was decided that the permission for construction on the second floor was obtained by Respondent No.3 on the basis of misrepresentation of facts. Thereafter an order was passed by the Chairman Board of Councilors Serampore Municipality revoking the sanctioned plan in favour of Respondent No.3. Being aggrieved by the municipal authorities in not taking action to demolish the illegal construction which was made pursuant to the revocation of the sanctioned plan the Appellant filed another Writ Petition seeking a direction to the authorities of the municipal corporation to take appropriate action to demolish the 2 | P a g e construction. The said Writ Petition was disposed of by the High Court directing the municipal corporation to initiate proceedings under Section 218 of the West Bengal Municipal Act 1996 for demolition of the illegal construction and to pass a reasoned order after giving a reasonable opportunity to all concerned. By way of implementation of the order of the High Court a letter was issued by the municipal corporation to Respondent No.3 to remove the structure on the second floor. Respondent No.3 filed a Writ Petition challenging cancellation of the building plan by the municipal authorities A learned Single Judge of the High Court disposed of the Writ Petition and relegated Respondent No.3 to an alternate remedy of Appeal. Respondent No.3 filed an Appeal against the order of the learned Single Judge which was allowed by the Division Bench of the Calcutta High Court. Therefore this Appeal. The High Court was of the opinion that the Board of Councilors did not hear the matter and did not take a decision as required under Section 217 of the Act. After perusing the records produced by the Municipal Corporation the High Court found that the Chairman of the Board of Councilors heard the matter on 27.12.2005 in the Municipal Office when the Appellant Respondent No.3 and two other 3 | P a g e gentlemen i.e. Shri Avijit Saha and Shri Amitava Dey were present. The Board of Councilors is the competent authority under Section 217 of the Act to decide any dispute on the issue of misrepresentation or fraudulent statement in the application seeking sanction of building plan for the purpose of passing an appropriate order to cancel such sanction. The decision of the Chairman on 14.02.2006 was held to be without jurisdiction. In consequence thereof the decision dated 14.02.2006 was declared a nullity and set aside by the High Court. While referring to the deed of conveyance the High Court held that the Appellant had a right to use the roof of first floor and the roof of proposed second floor. The High Court opined that the dispute raised by the Appellant cannot be decided by the municipality in terms of Section 217 of the Act and it requires adjudication by a civil court. While leaving it open to the parties to approach civil court to redress their grievances the High Court dismissed the Writ Application filed by the Appellant. 4. We have heard Mr. S.K. Bhattacharya learned counsel appearing for the Appellant and Mr. Ranjan Mukherjee learned counsel appearing for Respondent No.2. By relying upon the Minutes of Meeting dated 27.12.2005 of the Board of Councilors Serampore Municipality the learned counsel for the Appellant argued that the Chairman Vice Chairman 4 | P a g e and three other Members of the Council were present at the meeting during which a decision was taken that Respondent No.3 had obtained permission for construction on the second floor by misrepresentation and suppression of facts. On the other hand learned counsel for the Respondent argued that there is no ambiguity in Section 217 of the Act by which a decision has to be taken by the municipal council and not by the Chairman of the Municipality. We have perused the Minutes of Meeting dated 27.12.2005. The learned counsel for the Respondent is right in submitting that the Chairman Vice Chairman and three other Members of the Municipal Corporation were present in the meeting. However in the said meeting a decision was taken to recommend for appropriate action under Section 217 of the Act and for a reasoned order to be passed after the meeting of the Board of Councilors. It is not in dispute that thereafter the order dated 14.02.2006 was passed by the Chairman of the Serampore Municipality. The High Court is right in holding that the order dated 14.02.2006 passed by the Chairman of the Serampore Municipality is without jurisdiction. There is no error committed by the High Court in holding that the order dated 05.06.2006 by which action was directed to be initiated under Section 218 of the Act for demolition of the 5 | P a g e structure does not survive as the basis of the said order was the order dated 14.02.2006 passed by the Municipality. 5. We have perused the sale deed dated 14.08.2002 by which the Appellant had purchased the ground floor of the property in dispute. The conveyance relates to the ground floor of the two storied building admeasuring a covered area of 950 square feet. The Appellant was permitted to use the common stair case septic tank open yard separate water reservoir in common portion common passages common drain in the ground floor along with roof right. The dispute pertains to the right of Respondent No.3 in making a construction on the roof of the first floor in which he resides Any dispute relating to that right has to be decided by the civil court as held correctly by the High Court. Therefore the Appeal is dismissed. .....................................J [ L. NAGESWARA RAO .....................................J [ B.R. GAVAI New Delhi September 01 2021. 6 | P a g e

Criminal Force applied on a woman with intention to outrage her modesty completes Section 354 of IPC. : Jharkhand High Court

The offence under Section 354 of the I.P.C. is complete when the accused uses criminal force on any woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty was mentioned by Justice Anubha Rawat Choudhary of the Jharkhand High Court in the matter of Rita Devi Wife of Triloki Das versus State of Jharkhand [Cr. Rev. No. 949 of 2013] This order was passed for the facts where the petitioner was convicted under Section 354 of the Indian Penal Code by the learned trial court but was acquitted for an offence under Section 323 of the Indian Penal Code, according to learned counsel standing on behalf of the petitioner. He also claims that the State or the informant did not file a cross-appeal or acquittal appeal against the petitioner’s acquittal under Section 323 of the Indian Penal Code. He contends that the learned appellate court could not have convicted the petitioner under Section 323 of the Indian Penal Code in the absence of any cross or acquittal appeal filed by the State or the informant. The appellate court, according to the learned counsel, convicted the petitioner under Section 323 of the I.P.C. and upheld the petitioner’s conviction and sentence under Section 354 of the I.P.C. passed by the learned trial court. At this point, learned counsel for the opposing party, the State, contends that after reading para 9 of the appellate court’s decision, it is clear that the learned appellate court has upheld the petitioner’s conviction by the learned trial court, and that the petitioner was convicted by the learned trial court for an offence under Section 354 of the Indian Penal Code. He also claims that the petitioner was convicted under Section 323 of the Indian Penal Code by the appellate court. The learned counsel for the State contends that the reference to Section 345 rather than 354 in paragraph 9 of the appellate court’s judgement is most likely a clerical error, as the appellate court clearly notes the trial court’s upholding of the petitioner’s conviction. According to the case record, the complainant and the petitioner are co-villagers, and the petitioner is the complainant’s next-door neighbour. It is claimed that on the night of March 22, 2007, at approximately 11 p.m., the complainant came out of her residence with her dewar to attend to her natural call. Meanwhile, the petitioner, armed with a pistol, trespassed into the complainant’s courtyard, having made preparations to cause harm, and pointed the pistol at the complainant’s head by using criminal force, and the accused caught the complainant’s hand and began dragging her with the intention of outraging her modesty. The complainant raised an alert and opposed the petitioner’s illegal act with her dewar; nonetheless, the petitioner beat the complainant and her dewar with fists and slaps, causing harm. It is further claimed that another witness, the complainant’s husband, arrived on the scene after the complainant raised the alarm and that the petitioner then fled, leaving behind his shoe. It was also revealed that C.W. 3 and 4, the complainant’s father-in-law and mother-in-law, were in Bengal at the time of the incident. They came after receiving information and went to the Madhupur police station, but the police did not file a case, and the complaint was eventually made. The petitioner was charged with violating Sections 323, 354 and 452 of the Indian Penal Code on March 26, 2007, in the court of learned S.D.J.M., Madhupur at Deoghar, and the case was registered as P.C.R. Case No. 96 of 2007. In terms of the learned appellate court’s conviction and sentence of the petitioner under Section 323 of the Indian Penal Code, this Court finds that, while the learned trial court did not convict the petitioner under Section 323 of the IPC, the appellate court found that the basic ingredients of the offence under Section 323 of the Indian Penal Code were present and that the trial court had erred. The state and the informant did not submit a cross-appeal against the petitioner’s acquittal under Section 323 IPC, and the impugned appellate court judgement does not represent an opportunity for the petitioner to be heard at the appellate stage. This Court is of the considered opinion that the appeal court could not have convicted the petitioner under Section 323 IPC in the aforementioned circumstances, and has reversed the petitioner’s acquittal under that section. As a result of the appeal court’s decision, revisional jurisdiction should be exercised in relation to the petitioner’s conviction and sentence under Section 323 IPC. In light of the foregoing, the petitioner’s conviction and punishment under Section 323 IPC by the appeal court is hereby set aside.

Rita Devi Wife Of Triloki Das vs The State Of Jharkhand on 21 June 2021 Jharkhand High Court Rita Devi Wife Of Triloki Das vs The State Of Jharkhand on 21 June 2021 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 9413 Rita Devi wife of Triloki Das resident of Village Bara Sanghra P.O. and P.S. Madhupur District Deoghar ... ... Petitioner Versus 1. The State of Jharkhand 2. Suresh Das son of Jaleshwar Das resident of Village Bara Sanghra P.O. and P.S. Madhupur District Deoghar ... ... Opposite Parties Cr. Rev. No. 9113 Suresh Das s o Sri Jaleswar Das r o Village Bara Sanghra P.O Pathrol P.S. Madhupur Dist. Deoghar ... ... Petitioner Versus 1. State of Jharkhand 2. Rita Devi w o Triloki Das r o Mauza Bara Sanghara P.S. Madhupur Dist. Deoghar ... ... Opposite Parties CORAM :HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY In Cr. Rev. No. 9413 For the Petitioner : Mr. Sudhanshu Kumar Deo Advocate For Opp Party No. 2 : Mr. Prakash Chandra Advocate For the State : Mr. Ravi Prakash A.P.P In Cr. Rev. No. 9113 For the Petitioner : Mr. Prakash Chandra Advocate For Opp. Party No. 2 Mr. Sudhanshu Kumar Deo Advocate For the State : Mr. Ravi Prakash A.P.P Through Video Conferencing 10 21.06.2021 Heard Mr. Sudhanshu Kumar Deo learned counsel appearing on behalf of the petitioner in Cr. Rev. No. 9413. He is appearing on behalf of the opposite party no. 2 in Cr Rev. No. 9113 Indian Kanoon Rita Devi Wife Of Triloki Das vs The State Of Jharkhand on 21 June 2021 2. Heard Mr. Prakash Chandra learned counsel appearing on behalf of the petitioner in Cr. Rev. No 9113. He is appearing on behalf of the opposite party no. 2 in Cr. Rev. No. 9413 3. Cr. Rev. No. 9113 has been filed by the convict and Cr. Rev. No. 9413 has been filed by the informant of the case. These two criminal revision petitions arise out of judgement dated 10.07.2013 passed in Criminal Appeal No. 709 by 1st Additional Sessions Judge Deoghar whereby the learned appellate court has dismissed the appeal filed by the accused and has additionally convicted and sentenced the petitioner accused under Section 323 of Indian Penal Code. The petitioner has been additionally sentenced to undergo Rigorous Imprisonment for six months and fine of Rs. 5 000 and in default to undergo Simple Imprisonment for one month under Section 323 of Indian Penal Code. The appellate court confirmed the conviction and sentence of the petitioner for Rigorous Imprisonment for a period of one year under Section 354 of Indian 4. The petitioner in Cr. Rev. No. 9113has also challenged the judgement and order of conviction and sentence dated 14.07.2009 passed by learned Judicial Magistrate Ist Class Madhupur at Deoghar in P.C.R. Case No. 907 and T.R. Case No. 5909 whereby the petitioner was convicted under Section 354 of Indian Penal Code and sentenced to undergo Rigorous Imprisonment for a period of one year 5. Upon perusal of the judgements passed by the learned trial court and learned appellate court it appears that the accused was tried for offence punishable under Sections 323 and 354 of Indian Cr. Rev. No. 9413 6. At this stage the learned counsel appearing on behalf of the petitioner in Cr. Rev. No. 9413 who was the informant of the case seeks permission to withdraw the criminal revision and does not want to press the same 7. The learned counsel appearing on behalf of the State as well as the opposite party No. 2 in Cr. Rev No. 9413 have no objection to the prayer made 8. Accordingly Cr. Rev. No. 9413 is dismissed as not pressed Cr. Rev. No. 9113 Arguments of the petitioner 9. Learned counsel appearing on behalf of the petitioner submits that the petitioner was convicted under Section 354 of Indian Penal Code by the learned trial court but was acquitted for offence under Section 323 of Indian Penal Code. He further submits that there was no cross appeal or acquittal appeal filed by the State or the informant against the acquittal of the petitioner under Section 323 of Indian Penal Code. He submits that in absence of any cross appeal or acquittal appeal filed by the State or the informant the learned appellate court could not have convicted the petitioner under Section 323 of Indian Penal Code. The learned counsel submits that the appellate Indian Kanoon Rita Devi Wife Of Triloki Das vs The State Of Jharkhand on 21 June 2021 court has convicted the petitioner under Section 323 as well as upheld the conviction and sentence of the petitioner under Section 354 of I.P.C. passed by the learned trial court 10. The learned counsel while referring to the operative portion of the appellate court s judgement submits that while upholding the judgement of conviction of the petitioner by the learned trial court conviction under Section 354 of Indian Penal Code) the learned appellate court has referred to Sections 323 and 454 of Indian Penal Code and also held that the petitioner has committed offence under Sections 323 345 and 454 of Indian Penal Code but no charge was framed under Section 454 of IPC. As section 354 of IPC has not been mentioned in para 9 the operative portion of the impugned judgement it cannot be said that the conviction of the petitioner under section 354 has been upheld by the learned appellate court. It is submitted that in view of the aforesaid facts and circumstances the impugned judgement is not sustainable in the eyes of law and is fit to be Arguments of the State 11. At this stage learned counsel appearing on behalf of the opposite party State submits that upon complete reading of para 9 of the appellate court s judgement it is apparent that the learned appellate court has upheld the conviction of the petitioner passed by the learned trial court and admittedly the petitioner was convicted by the learned trial court for offence under Section 354 of Indian Penal Code for which the petitioner was sentenced for one year. He submits that additionally the appellate court has convicted the petitioner under Section 323 of Indian Penal Code. The learned counsel for the State submits that mentioning of Section 345 instead of 354 in para 9 of the appellate court s judgement is apparently a typographical error as the appellate court clearly records upholding of the conviction of the petitioner by the trial court 12. The learned counsel further submits that so far as the conviction under Section 323 of Indian Penal Code by the learned appellate court is concerned it is not in dispute that no cross appeal or acquittal appeal was filed against acquittal of the petitioner by the learned trial court under Section 323 IPC either by the state or by the informant. He does not dispute the fact that in absence of any acquittal appeal or cross appeal the appellate court could not have convicted the petitioner under Section 323 IPC as that would amount to reversal of the acquittal of the petitioner under Section 323 of Indian Penal Code Findings of this Court 13. Upon perusal of the case record it appears that the complainant and the petitioner are co villagers and the petitioner is the neighbour of the complainant. It is alleged that in the night of 22.03.2007 at about 11 p.m. the complainant came out along with her dewar from her house to attend to her natural call. In the meantime petitioner armed with pistol trespassed into the courtyard of the complainant having made preparation for causing hurt and pointed the pistol on the head of the complainant by using criminal force and the accused caught hand of the complainant and began to drag her with intention to outrage her modesty. The complainant raised alarm and she along with her dewar protested the illegal act of the petitioner and then the complainant and her Indian Kanoon Rita Devi Wife Of Triloki Das vs The State Of Jharkhand on 21 June 2021 dewar were assaulted by the petitioner with fists and slaps which caused injury. It is further alleged that another witness i.e. the husband of the complainant also came on the spot upon raising alarm by the complainant and thereafter the petitioner fled away leaving behind his slipper. It has also been stated that at the time of occurrence C.W. 3 and 4 who are the father in law and mother in law of the complainant were in Bengal. Upon information they came and thereafter they went to Madhupur police station but the police did not register a case and ultimately the complaint was filed. The complaint was instituted on 26.03.2007 before the court of learned S.D.J.M. Madhupur at Deoghar and was registered as P.C.R. Case No. 907 for offence under Sections 323 354 and 452 of Indian Penal Code against the petitioner 14. After recording the statement of the complainant on solemn affirmation the case was sent for further enquiry to another court who found a prima facie case for offence under Sections 323 and 354 of Indian Penal Code against the present petitioner. The petitioner appeared before the court and the substance of accusation was explained to the petitioner in Hindi on 06.07.2007 to which he pleaded not guilty and claimed to be tried 15. During the trial altogether five witnesses were examined on behalf of the complainant. C.W. 1 is the husband of the complainant C.W. 2 is the brother in law of the complainant C.W. 3 is the father in law of the complainant C.W. 4 is the mother in law of the complainant and C.W. 5 is the 16. The complainant who was examined as C.W. 5 stated in her examination in chief that the incident had taken place on the fateful day at 11 p.m. and C.W. 2 had taken her for urinal and she went along with him. At that point of time the petitioner crossed the boundary and came in the courtyard and caught her and told her to go outside with him. On her protest the petitioner began abusing and pointed the pistol over her cheek upon which C.W. 2 made noise and accused began to run away after leaving his slipper. Upon hearing the noise the other person also came and her in laws were informed who came later and went to concerned police station along with her. She claimed to identify the petitioner. During her cross examination she admitted that there was no enmity with the family of the accused and she denied the suggestion that the petitioner had not caught her hand with ill intention 17. So far as C.W. 1 is concerned he has supported the prosecution case so far as the time and place of incident is concerned. However this witness has stated that his wife told him for urinal and he had taken his wife and then accused had entered the campus and began to pull his wife by catching her hand. He further deposed that the accused pointed out a revolver and assaulted his wife and then fled away leaving his Slipper. He has also deposed that on alarm the villagers assembled but they would not depose because the accused may beat them. In his cross examination he further admitted that his wife went for urinal alongwith his brother. He has also stated in his cross examination that he went on alarm being raised and saw the accused in his campus and then the accused fled away 18. C.W. 2 the brother in law of the complainant has also supported the prosecution case so far as time manner and place of occurrence is concerned but he deposed that at the relevant time he Indian Kanoon Rita Devi Wife Of Triloki Das vs The State Of Jharkhand on 21 June 2021 wanted to go for urinal and for that he told his brother who told him to go with the complainant and he went to the courtyard with the complainant. At that time the petitioner crossed the boundary and entered in his campus and began to pull the complainant towards outside and when he made noise the accused slapped him and pointed his pistol. At that time his brother i.e. husband of the complainant also came there and the petitioner fled away leaving his slipper. This witness has also been thoroughly cross examined by the defence 19. The learned trial court discussed the evidences on record and also considered the inconsistencies or contradictions in the evidences and held that all the witnesses have supported the occurrence that the petitioner entered into the courtyard of the complainant at 11 p.m. in the night and caught her hand and pulled her towards outside. The learned trial court also recorded that the victim has fully supported the allegation against the petitioner and her testimony is consistent and does not suffer from any serious contradictions. The learned trial court also recorded that the complainant has clearly stated that the petitioner caught her hand and pulled her towards outside and on her protest he pointed out pistol and as such the learned trial court did not find any reason to disbelieve the testimony of the complainant victim. The learned trial court also recorded that the defence was given opportunity to produce its defence evidence and the defence had not led any evidence. It further recorded that the defence had not whispered anywhere about previous enmity with the petitioner and rather the complainant had clearly deposed that there was no previous enmity with the petitioner and accordingly rejected the plea of false implication also. However the learned trial court in para 19 of its judgement recorded that from the perusal of the deposition of the complainant it transpired that she had not stated that the petitioner had beaten her by fists and slaps and even she had not stated that her brother in law was assaulted by the petitioner. Under such circumstances the trial court was of the view that the allegation under Section 323 of Indian Penal Code was not proved against the petitioner beyond all reasonable doubt. The learned trial court recorded its specific finding in the concluding paragraph 20 of the trial court judgement which reads as under 20. So far the allegation under Section 354 of the I.P.C. is concerned it clearly transpires from perusal of all the witnesses that they have consistently supported that accused Suresh Das had caught the hand of the complainant in the night at 11:00 p.m. and pulled her towards outside but on hulla he fled away. The offence under Section 354 of the I.P.C. is complete when the accused uses criminal force to any woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty. In this case the complainant has fully supported the allegation against the accused for the offence under Section 354 of the I.P.C. which has been fully supported and corroborated by the other witness of occurrence also. Therefore on the basis of aforesaid discussions and evidences as well as considering submissions of both the parties it can be clearly said that the complainant has been able to prove the allegation for the offence under Section 354 of the I.P.C. against accused beyond all reasonable doubts hence 20. Thus the trial court convicted the petitioner only under Section 354 of Indian Penal Code and found that the prosecution has not been able to prove the offence under Section 323 of Indian Penal Indian Kanoon Code beyond all reasonable doubt Rita Devi Wife Of Triloki Das vs The State Of Jharkhand on 21 June 2021 21. The appellate court also considered the evidences on record including the contradictions in the evidences of the witnesses and rejected the arguments advanced on behalf of the appellant. The learned appellate court also recorded that the learned trial court committed error in finding that the offence under Section 323 of Indian Penal Code was not made out. The learned appellate court recorded its findings and also further convicted the petitioner under Section 323 IPC and upheld the conviction and sentence passed by the learned trial court. The learned appellate court also recorded that no charge was framed under Section 454 of Indian Penal Code although the ingredients of the offence under section 454 IPC were present and accordingly did not proceed to record order of conviction sentence under section 454 IPC. Paragraph 9 of the appellate court judgement reads as 9. The findings of learned trial court on the point of conviction only u s 354 I.P.C. is correct but the learned trial court has committed error in their finding after leaving sentence u s 323 I.P.C. because both the victim deposed in one tone that the accused assaulted them by fists and there is no possibilities of independent witness. Therefore the ingredients of section 323 I.P.C. is on the record For the application of section 323 I.P.C. only ingredient is voluntarily caused bodily pain to the victim and accused is so with intention to causing hurt or with the knowledge that he would hereby caused hurt to the victim. Therefore if the ingredients available on the record but not appreciated by the learned Magistrate then it is an error in the eye of law. Here is also no any fact and circumstances that why she made any false allegation while there is no previous enmity with the accused. And he is her neighbour. The allegation of out rage her modesty in Indian society is destroyed her whole peace of her life and the accused entered in to her boundary with an intention to made outrage her modesty and on her protest he assaulted and taken on point of pistol. The act of the accused fulfill all ingredients of Sec. 323 & 454 I.P.C. Lurking house trespass. It is a grievous offence and ingredient is 1. lurking house trespass 2. and commit an offence punishable with imprisonment. In this case the accused entered in the boundary in the night and caught hold her arms and force to take her out. The two facts fulfilled the requirement which is graver then sec. 345 I.P.C. hence in this stage it is not possible to take in to consideration. The accused committed offence u s 323 345 and 454 IPC. But no charge was framed u s 454 IPC. And I would not like to remand back the record for fresh trail but he sentence of go R.I. For six month and fine of 500 and in dealt he will further go simple imprisonment for S.I of one month u s 323 I.P.C. and also sentence awarded by the trial court such as undergo R.I. for a period of one year. The period already undergone by the convict during the proceeding of this case shall be set off. The appeal is dismissed sentence is modified and confirmed all sentences run concurrently 22. This Court finds that the learned appellate court in its opening sentence in para 9 has clearly recorded that the findings of learned trial court on the point of conviction only u s 354 I.P.C. is correct and also proceeded to hold that the learned trial court has committed error in their finding after leaving sentence u s 323 I.P.C. because both the victim deposed in one tone that the accused assaulted them by fists and there is no possibilities of independent witness. This Court finds that in the later part of para 9 the appellate court has mentioned Section 345 IPC which is apparently a typographical error. The present case is not even remotely related to any offence under Section 345 Indian Kanoon Rita Devi Wife Of Triloki Das vs The State Of Jharkhand on 21 June 2021 IPC. This Court is of the considered view that upon reading para 9 of the impugned judgement as a whole it appears that the appellate court has upheld the conviction of the petitioner under Section 354 IPC and additionally convicted the petitioner under Section 323 IPC. This Court is of the considered view that the said typographical error in para 9 of the appellate court judgement in mentioning Section 345 IPC instead of Section 354 IPC at certain places does not cut any ice in favour of the petitioner as upon complete reading of para 9 the appellate court has clearly upheld the conviction and sentence of the petitioner under Section 354 IPC passed by the learned trial 23. This Court finds that the judgements passed by the learned courts below have considered all the arguments advanced on behalf of the petitioner including the contradictions pointed out by the petitioner and have dealt with the arguments and rejected the argument of the petitioner so far as the contradictions in the evidence are concerned and found that the materials for convicting and sentencing the petitioner for offence under Section 354 of Indian Penal Code were available. There are concurrent findings recorded by the learned courts below on the point of conviction and sentence of the petitioner under Section 354 IPC. There being no illegality or perversity in the findings of conviction and sentence of the petitioner under Section 354 IPC no interference is called for under revisional jurisdiction by this Court 24. So far as the conviction and sentence of the petitioner under Section 323 IPC by the learned appellate court is concerned this Court finds that admittedly the learned trial court did not convict the petitioner under Section 323 of IPC but the appellate court found that the basic ingredients of offence under Section 323 of Indian Penal Code were present and the trial court had committed error. Admittedly no cross appeal was filed by the state or the informant against the order of acquittal of the petitioner under Section 323 IPC and the impugned appellate court judgement does not reflect grant of any opportunity of hearing to the petitioner at the appellate stage. This Court is of the considered view that in the aforesaid circumstances the appellate court could not have convicted the petitioner under Section 323 IPC and reversed the order of acquittal of the petitioner under the said section. Thus the appellate court judgement calls for interference in revisional jurisdiction so far as it relates to conviction and sentence of the petitioner under Section 323 IPC. In view of the aforesaid the conviction and sentence of the petitioner by the appellate court under Section 323 IPC is hereby set aside 25. Thus the sentence and conviction of the petitioner under Section 354 of Indian Penal Code is upheld and sentence and conviction of the petitioner under Section 323 of Indian Penal Code by the appellate court is set aside. Accordingly this criminal revision petition is partly allowed 26. Pending interlocutory application if any stands closed 27. The bail bond furnished by the petitioner is cancelled 28. Let the Lower Court Records be immediately sent back to the court concerned 29. Let a copy of this order be communicated to the learned court below through FAX Email Indian Kanoon Pankaj Rita Devi Wife Of Triloki Das vs The State Of Jharkhand on 21 June 2021 Indian Kanoon

Order XXI Rule 41(2) of CPC can only be invoked by an application filed on behalf of the decree holder: High Court of Delhi

Power under Order XXI Rule 41(2) of the CPC can only be invoked by an application only in respect of the judgment debtor. The affidavit of assets can only be directed to be filed upon an application on behalf of the decree holder under Order XXI Rule 41(2) of the CPC. Such a direction cannot be passed suo motu by the Executing Court. These were stated by High Court of Delhi, consisting Justice Amit Bansal in the case of G.S Sandhu & Anr. vs. Geeta Aggarwal [CM(M) 1399/2019] on 14.01.2022. The facts of the case are that the respondent instituted a suit under Order XXXVII of the Code of Civil Procedure, 1908  for recovery of Rs.13,56,625 against the judgment debtor company. The said suit was decreed in favour of the respondent on 06th July, 2012 for a sum of Rs.6,00,000/- along with interest. On 20th January, 2014, auction sale was conducted in respect of the movable property of the judgment debtor company, which resulted in Rs.5,00,000/- being recovered by the decree holder. On 05th August, 2014, the decree holder moved an application under Order XXI Rule 37 of the CPC seeking detention of the petitioners, being the directors of the judgment debtor company. The said application was contested by the petitioners by filing a reply, stating that the judgment debtor company had become defunct after attachment of its movable assets and there were no further assets in the judgment debtor company. Vide the impugned order, the Executing Court directed the petitioners to file affidavits of assets in pursuance of the judgment of this Court in Bhandari Engineers and Builders Pvt. Ltd. The Counsel for the petitioners contended that the petitioners were neither parties in the suit filed by the respondent, nor were any averments made against the petitioners in the plaint and even in the application filed by the decree holder under Order XXI Rule 37 of the CPC, no specific allegations have been made against the petitioner. It was further stated that the petitioners, being directors of the judgment debtor company were not parties to the suit which was decreed in favour of the respondent. The decree was passed only against the judgment debtor company and not the petitioners but the petitioners were also made parties to the execution petition filed on behalf of the decree holder; and under Order XXI of the CPC the directors of the judgment debtor company cannot be asked to file their list of assets. The Counsel for the respondent contended that only the petitioner no.1 has complied with the order passed by this Court to comply with the direction of the Executing Court however, the petitioner no.2 has failed to comply with the same. Further, it was contended that the petitioner no.1 has falsely stated in his affidavit that judgment Debtor Company does not own any immovable property. Reliance in this regard was placed from the balance sheet of the judgment debtor company and also it was falsely stated in the affidavit of the petitioner no.1 that all movable assets of the judgment debtor company were disposed of through auction and proceeds given to the decree holder. While admitting that the petitioners were not parties in the suit or in the execution proceedings, the counsel for the decree holder contended that specific allegations were made in respect of the petitioners in the application filed on behalf of the decree holder under Order XXI Rule 37 and that the petitioners were guilty of making false statement and fraud.

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on : 07th January 2022 Judgment Delivered on : 14th January 2022 CM(M) 1399 2019 & CM No.42217 2019G.S SANDHU & ANR. ..... Petitioners Through: Ms. Shalini Kapoor Ms. Sukriti Mago and Mr. Sangram Singh Kheechi Advocates for petitioner Sameer Nandawani Ms.Pratibha Singh Advocates for petitioner No.2. GEETA AGGARWAL Through: Mr. Rajesh Manchanda Advocate ..... Respondent HON BLE MR. JUSTICE AMIT BANSAL AMIT BANSAL J. The present petition under Article 227 of the Constitution of India impugns the order dated 13th August 2019 passed by the District Judge Patiala House Courts in Execution No.5359 2016 whereby the petitioners being the directors of M s. Silver Fern Hotels Private Limited have been directed to file affidavits of assets in pursuance of the judgment of this Court in Bhandari Engineers and Builders Pvt. Ltd. Vs. Maharia Raj Joint Venture and Ors. 227 DLT 302. CM(M) 1399 2019 The issue involved in the present petition was formulated by this Court in the order dated 20th September 2019 while issuing notice in the present petition viz. whether directors of a company can be directed to file affidavits of their assets in an execution petition. Pursuant to directions passed by this Court written submissions have been filed on behalf of the petitioners and the respondent decree holder. Brief facts to the extent relevant for deciding the present petition are set out below: 3.1 The respondent instituted a suit under Order XXXVII of the Code of Civil Procedure 1908 on 16th January 2012 for recovery of Rs.13 56 625 against the judgment debtor company. The said suit was decreed in favour of the respondent on 06th July 2012 for a sum of Rs.6 00 000 along with interest. 3.2 On 12th August 2013 execution proceedings were initiated by the respondent against the judgment debtor company seeking execution of the decree. 3.3 Thereafter on 19th August 2013 warrants of attachment were issued against the judgment debtor company. 3.4 On 20th January 2014 auction sale was conducted in respect of the movable property of the judgment debtor company which resulted in Rs.5 00 000 being recovered by the decree holder. 3.5 On 05th August 2014 the decree holder moved an application under Order XXI Rule 37 of the CPC seeking detention of the petitioners being the directors of the judgment debtor company. The said application was contested by the petitioners by filing a reply stating that the judgment debtor company had become defunct after CM(M) 1399 2019 attachment of its movable assets and there are no further assets in the judgment debtor company. 3.6 Vide the impugned order dated 13th August 2019 the Executing Court directed the petitioners to file affidavits of assets in pursuance of the judgment of this Court in Bhandari Engineers and Builders Pvt. Ltd.the petitioners were neither parties in the suit filed by the respondent nor were any averments made against the petitioners in the plaint even in the application filed by the decree holder under Order XXI Rule 37 of the CPC no specific allegations have been made against the petitioners the petitioners being directors of the judgment debtor company were not parties to the suit which was decreed in favour of the respondent decree was passed only against the judgment debtor company and not the petitioners but the petitioners were also made parties to the execution petition filed on behalf of the decree holder andunder Order XXI of the CPC the directors of the judgment debtor company cannot be asked to file their list of assets. Reliance has also been placed by the counsels for the petitioners on the judgments of Anirban Roy and Ors. Vs. Ram Kishan Gupta and Ors 2017 SCC OnLine Del 12867 Gurmeet Satwant Singh and Ors. Vs. Meera Gupta and Ors. 2019 SCC OnLine Del 9505 and Delhi Chemical and Pharmaceutical Works Pvt. Ltd. and Ors. Vs. Himgiri Realtors Pvt. Ltd. and Ors. 2021 SCC OnLine Del 3603. Per contra counsel appearing on behalf of the respondent contends that only the petitioner no.1 has complied with the order dated 20th CM(M) 1399 2019 September 2019 passed by this Court to comply with the direction of the Executing Court however the petitioner no.2 has failed to comply with the direction of the Executing Court it has been falsely stated by the petitioner no.1 in his affidavit that the judgment debtor company does not own any immovable property. Reliance in this regard has been placed from the balance sheet of the judgment debtor company and it has been falsely stated in the affidavit of the petitioner no.1 that all movable assets of the judgment debtor company were disposed of through auction and proceeds given to the decree holder. 7. While admitting that the petitioners were not parties in the suit or in the execution proceedings the counsel for the decree holder contends that specific allegations were made in respect of the petitioners in the application filed on behalf of the decree holder under Order XXI Rule 37 that the petitioners were guilty of making false statement and fraud being committed upon the decree holder. It is further contended that the judgments cited on behalf of the petitioners in Anirban Roy and Ors. and Delhi Chemical and Pharmaceutical Works Pvt. Ltd. and Ors. are not applicable to the facts of the present case. There is no infirmity in the order passed by the Trial Court as when the said order was passed the judgment in Bhandari Engineers and Builders Pvt. Ltd. had not been overruled. Reliance is placed on the judgment of the Supreme Court in Delhi Development Authority Vs. Skipper Construction Co. Ltd. and Ors. 10 SCC 130 to justify lifting of the corporate veil in view of the fraud committed by the petitioners which was discovered by the decree holder in the course of the execution proceedings. CM(M) 1399 2019 In rejoinder it has been submitted that the averments made in the application under Order XXI Rule 37 of the CPC are vague and general in nature and no specific allegations of fraud have been made against the petitioners. As regards non compliance with the direction of this Court in the order dated 20th September 2019 by the petitioner no.2 it is submitted that an application seeking extension of time has been filed by the petitioner no.2 before the Executing Court and an extension has been granted. I have considered the rival submissions and analyzed the judgments relied upon by the parties. The application on which the impugned order was passed was filed under Order XXI Rule 37 of the CPC which is reproduced hereinafter: “37. Discretionary power to permit judgment debtor to show cause against detention in prison.—(1) Notwithstanding anything in these rules where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment debtor who is liable to be arrested in pursuance of the application the Court instead of issuing a warrant for his arrest issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison : 2) Where appearance is not made in obedience to the notice the Court shall if the decree holder so requires issue a warrant for the arrest of the judgment debtor.” 10. Order XXI Rule 37 of the CPC provides that when an application is filed in execution proceedings for payment of money seeking arrest and civil imprisonment of the judgment debtor the court would issue a notice to the CM(M) 1399 2019 judgment debtor as to why the judgment debtor should not be sent to the civil prison. Order XXI Rule 37 does not provide for a judgment debtor or its directors to file their list of assets. There is not even a prayer made in the aforesaid applications filed on behalf of the decree holder for the petitioners or the judgment debtor company to disclose their list of assets. Therefore there was no occasion for the Executing Court to pass the impugned order directing the petitioners to file their list of assets under the provisions of Order XXI Rule 37 of the CPC. 11. The requirement to provide list of assets is provided in Order XXI Rule 41 of the CPC which is reproduced hereinafter: “41. Examination of judgment debtor as to his property.— Where a decree is for the payment of money the decree holder may apply to the Court for an order that— a) the judgment debtor or b)any officer thereof or c) any other person be orally examined as to whether any or what debts are owing to the judgment debtor and whether the judgment debtor has any and what other property or means of satisfying the decree and the Court may make an order for the attendance and examination of such judgment debtor or officer or other person and for the production of any books or documents. 2) Where a decree for the payment of money has remained unsatisfied for a period of thirty days the Court may on the application of the decree holder and without prejudice to its power under sub rule. by order require the judgment debtor or where the judgment debtor is a corporation any officer thereof to make CM(M) 1399 2019 an affidavit stating the particulars of the assets of the judgment debtor.] 3) In case of disobedience of any order made under sub rulethe Court making the order or any Court to which the proceeding is transferred may direct that the person disobeying the order be detained in the civil prison for a term not exceeding three months unless before the expiry of such term the Court directs his release.]” Sub ruleof Order XXI Rule 41 provides that where a money decree is against the judgment debtor which is a corporation the decree holder may apply to the court for an officer of the said corporation to be orally examined to determine the quantum of debts that are owed by the judgment debtor and whether judgment debtor has the means of satisfying the decree. Order XXI Rule 41(2) provides that on an application of a decree holder the court has the power to require the judgment debtor or where the judgment debtor is a corporation any officer to file an affidavit stating the particulars of the assets of the judgment debtor. Order XXI Rule 41(3) provides that in case of disobedience of any order made under Order XXI Rule 41(2) the court may direct civil imprisonment of the person disobeying the said order. It appears that the Executing Court has invoked the provisions of Order XXI Rule 41(2) of the CPC and relied on the judgment of this Court in Bhandari Engineers and Builders Pvt. Ltd. in passing the impugned order to direct the petitioners to file their personal list of assets. Before coming to the judgment of this Court in Bhandari Engineers and Builders Pvt. Ltd.it may be pertinent to mention here that there is no requirement at all under Order XXI Rule 41 of the CPC for filing of the CM(M) 1399 2019 list of personal assets of the directors officers of the judgment debtor company. The requirement is only to file particulars of assets of the judgment debtor. Further the power under Order XXI Rule 41(2) of the CPC can only be invoked upon an application filed on behalf of the decree holder and in the present case admittedly no application has been filed by the decree holder under Order XXI Rule 41(2) of the CPC. In Bhandari Engineers and Builders Pvt. Ltd. a Single Bench of this Court directed that in cases of execution of money decrees the judgment debtor at the initial stage itself should be directed to file particulars of assets as on the date of the institution of the suit as well as of the current date under Order XXI Rule 41(2) of the CPC along with the statement of the bank accounts for the last three years. It was further provided that if the judgment debtor’s affidavit does not sufficiently disclose assets a further affidavit may also be directed to be filed and the judgment debtor be also examined orally under Order XXI Rule 41(1) of the CPC. This constituted the dicta of Bhandari Engineers and Builders Pvt. Ltd. supra). Thereafter the Court in Bhandari Engineers and Builders Pvt. Ltd. directed inter alia the directors of the judgment debtor company therein to file the details of their personal assets. However the aforesaid directions with regard to the directors filing affidavits of their personal assets was only in the facts and circumstances of the said case and was not the dicta of the said case. Therefore the reliance placed by the Executing Court on the judgment in Bhandari Engineers and Builders Pvt. Ltd. for directing the petitioners to file their affidavit of personal assets is clearly erroneous. CM(M) 1399 2019 In this regard reference may be made to the observations made by a Single Bench of this Court in Anirban Roy and Ors. wherein this aspect of the judgment in Bhandari Engineers and Builders Pvt. Ltd. supra) was considered. The relevant observations are set out below: “14. As far as reference to Bhandari Engineers & Builders Pvt.Ltd. supra is concerned a perusal thereof does not show this Court to have held that in every case of execution of a money decree against a company the Directors of the judgment debtor company are required to furnish details of their personal properties. The direction to the Directors in Bhandari Engineers & Builders Pvt. Ltd. supra was on account of the business relationship as found therein. There is no such finding in the present case.” 16. Even in the subsequent judgments1 passed by this Court in Bhandari Engineers and Builders Pvt. Ltd.no directions were made for filing of affidavit of assets by the directors of the judgment debtor company therein. Even while formulating the format in which the list of assets has to be filed by the judgment debtor no observations were made with regard to filing of personal assets of the directors of the judgment debtor company In Delhi Chemical and Pharmaceutical Works Pvt. Ltd. and Ors. supra) a Division Bench of this Courtobserved that a direction under Order XXI Rule 41(2) of the CPC can only be made upon an application filed by the decree holder in that behalf. As per the provisions of Order XXI the decree holder has to first make efforts to 1 Bhandari Engineers and Builders Pvt. Ltd. Vs. Maharia Raj Joint Venture and Ors. 266 DLT 106 Bhandari Engineers and Builders Pvt. Ltd. Vs. Maharia Raj Joint Venture and Ors. 2020 SCC OnLine Del 1969 Bhandari Engineers and Builders Pvt. Ltd. Vs. Maharia Raj Joint Venture and Ors. 2021 SCC OnLine Del 3595. CM(M) 1399 2019 determine and find out the assets of the judgment debtor and only if the decree holder is unable to find the same the assistance of the court can be taken under Order XXI Rule 41(2) of the CPC for direction that the judgment debtor be directed to disclose its list of assets on affidavit. But for such a direction to be passed an application has to be filed by the decree holder under Order XXI Rule 41(2) of the CPC. In this regard observations made by the Division Bench in Delhi Chemical and Pharmaceutical Works Pvt. Ltd. and Ors.are set out below: “57. We are thus of the view that Bhandari Engineers & Builders Pvt Ltd. supra to the extent extends what is laid down therein to execution proceedings pertaining to all money decrees and to all courts executing a money decree cannot said to be good law. Axiomatically what is held in Bhandari Engineers & Builders Pvt. Ltd. supra could not have been followed in the execution proceedings from which this appeal arises. 62. As per the existing provisions of Order XXI Rule 41 of the CPC the Commercial Division in our view erred in issuing direction to judgment debtors to file affidavits and affidavits in a form other than as prescribed in the CPC. The impugned orders do not record that the decree holder had applied therefor verbally or in writing. A direction under Order XXI Rule 41 could not have been issued without the decree holder applying therefor. Such direction could not have been issued without inspite of taking steps and owing to obstruction by the judgment debor the decree remaining unsatisfied. No reason whatsoever has been given in the impugned orders as to why the directions as issued were called for in the facts of the case or why affidavit in the form prescribed in the CPC could not have sufficed.” CM(M) 1399 2019 18. At this stage reference may also be made to the judgment in Anirban Roy and Ors.that there is no provision in the CPC for execution of a money decree against a Pvt. Ltd. company against its directors that though Order XXI Rule 50 of the CPC does provide for execution of a money decree against a firm from the assets of the partners of the said firm mentioned in the said Rule but there is no provision with respect to directors of a company that the Executing Court cannot go behind the decree and can execute the same as per its form only that if the decree is against the company the executing Court cannot execute the decree against anyone other than the judgment debtor company or against the assets and properties of anyone other than the judgment debtor company that the identity of a director or a CM(M) 1399 2019 shareholder of a company is distinct from that of the company that is the very genesis of a company or a corporate identity or a juristic personthe classic exposition of law in this regard is contained in Solomon v. Solomon & Co. Ltd. 1897 AC 22 where the House of Lords held that in law a company is a person all together different from its shareholders and directors and the shareholders and Directors of the company are not liable for the debts of the company except to the extent permissible that though a Single Judge of this Court in Jawahar Lal Nehru Hockey Tournament v. Radiant Sports Management MANU DE 1756 2008 : 149(2008) DLT 749 observed that there could be a case where the Court even in a execution proceeding lifts the veil of a closely held company particularly a Pvt. Ltd. company and in order to satisfy a decree proceed against its directors and the personal assets of shareholders but the said judgment was over ruled by the Division Bench EFA(OS) No. 17 2008 decided on 7th November 2008 and reported as MANU DE 1756 2008 : finding that the director of the company had agreed to be personally liable to satisfy the decree and for this reason holding him liable however the Division Bench refrained from commenting authoritatively on the aspect of lifting of the corporate veil in execution that though Section 53 of the Transfer of the Property Act 1882 allows the creditors to have a transfer of property made with an intent to defeat the creditors set aside but a case therefor has to be pleaded that it cannot be laid as a general proposition that whenever the decree is against a company its Directors shareholders would also be liable to hold so would be contrary to the very concept of limited liability and obliterate the distinction between a partnership and a company x) that though the Courts have watered down the principle in Solomon supra to cover the cases of a fraud improper conduct etc. as laid down in Singer India Ltd. v. Chander Mohan Chadha MANU SC 0626 2004 :SCC 1 but a case therefor has to be made out that the decree holders in that case had not made out CM(M) 1399 2019 xxx any case therefor the directors were not parties to the proceedings in which decree was passed and were not impleaded in the execution petition also and there were no averments in the execution petition of fraud or improper conduct or of incorporation of the company to evade obligations imposed by law and in which situations Supreme Court in Singer India Ltd. supra has held that the corporate veil must be disregarded. 10. Applying the aforesaid principles the decree in favour of the respondent No. 1 and against the respondent No. 2 for recovery of money cannot be executed against the petitioners for the reason of the petitioners being directors of the respondent No. 2. 17. The direction impugned is evidently under sub Rule of Order XXI Rule 41. However what the said rule permits is a direction for disclosure of the particulars of the assets of the judgment debtor and not assets of any other person. Though Order XXI Rule 41(1) also permits the Court to examine "any other person" but the words "any other person" are absent from sub Ruleof Rule 41 which permits a direction only against the judgment debtor where the judgment debtor is a corporation against any officer thereof and disclosure as aforesaid of assets of the judgment debtor only and not of personal assets of such 18. Once the directors of a company are not judgment debtor in a decree against a company there can be no direction to them to disclose their assets. Mr. Justice Chagla of the Bombay High Court in Bachubai Manjrekar v. Raghunath Ghanshyam Manjrekar MANU MH 0159 1941 : ILR 1942 Bombay 128 held that except in very exceptional circumstances the Court should never make an order under Order XXI Rule 41 of CPC without in the first instance giving notice to the party against whom an order is sought. In the present case the order against the petitioners has been made CM(M) 1399 2019 without even giving any opportunity to the petitioners to show cause as to why the direction against them should not be issued.” 19. The present case is squarely covered by the aforesaid observations of this Court in Anirban Roy and Ors. for a direction to be passed against the officers of the judgment debtor company to file their personal list of assets. Even in respect of the judgment debtor the affidavit of assets can only be directed to be filed upon an application having been filed on behalf of the decree holder under Order XXI Rule 41(2) of the CPC. Such a direction cannot be passed suo motu by the Executing Court. In the present case there was no occasion to pass the aforesaid direction since the application was filed by the decree holder under Order XXI Rule 37 of the CPC. Therefore the Executing Court committed an error in issuing direction to the petitioners to file affidavits by placing reliance on the judgment of this Court in Bhandari Engineers and Builders Pvt. Ltd. In the judgment of Skipper Construction a clear case for lifting of the corporate veil was made out in the facts and circumstances of the matter. However in the present case only vague and general averments with regard to fraud have been made by the decree holder against the petitioners in their application filed under Order XXI Rule 37 of the CPC CM(M) 1399 2019 and that by itself cannot be a ground for piercing of the corporate veil. Therefore the reliance placed by the decree holder in the case of Skipper Constructionis misplaced. In view of the above the directions contained in the impugned order dated 13th August 2019 directing the petitioners to file an affidavit disclosing their personal assets cannot be sustained and are set aside. However it is clarified that it would be open to the decree holder to pursue her application filed under Order XXI Rule 37 of the CPC and or to file an application under Order XXI Rule 41 or any other provisions of the CPC as advised for the execution of the decree. 23. Petition is allowed in the above terms. AMIT BANSAL J. JANUARY 14 2022 CM(M) 1399 2019

Service of an employee on probation can be terminated without notice: Bombay High Court

An employer can terminate the services of an employee without notice during the period of his probation. The bench consisting of Justice AA Sayed and Justice Prakash Naik pronounced this judgement in the matter of Dharampal Singh Dahiya v M/s.Inter-University Centre, [WRIT PETITION NO.1373 OF 2000]. The petitioner was serving the Indian Army for the past 18 years and opted for voluntary retirement on 20th July 1998 as he decided to take up a job as an Administrative Officer, the offer of which was given by respondent no 3. His duties included maintaining records of vehicles which he did diligently. The petitioner alleged that respondent no.2 was using the vehicle of respondent no.3 for personal purposes and since the petitioner was maintaining records, it was not liked by respondent no.2. Therefore, the petitioner claimed that the respondents had conspired to terminate him. The petitioner was appointed on probation. This fact is not in dispute. Before completing the period of probation, his services were terminated. Further, the petitioner applied for 31 days leave, 19 paid and 12 days unpaid leave. A few days later, he received a letter that stated the termination of his services. By way of the petition, the aggrieved petitioner contended that the termination is arbitrary, illegal, unlawful and without complying with principles of natural justice. The respondents stated that the petitioner relied on fabricated documents. Since the petitioner was on probation for a period of one year, it is not illegal to terminate his services without giving notice. The Court applied the principle enunciated by Supreme Court in various cases, to the facts of the present case and held that “it is apparent that the impugned order is an order of termination simpliciter without casting any stigma. The order does not in any way involve any civil consequences and is an order of discharge simpliciter of the petitioner who was a probationer. The petitioner has not been able to make out any case of victimisation or one of punishment”. The Court relied on the judgement given in the case of Unit Trust of India & Ors. Vs. T.Bijay Kumar & Anr. (Supra), where it was held that “in simpliciter discharge, the question of giving a hearing before the termination of service, does not arise. During the period of probation, the services of an employee may be terminated by the appointing authority without assigning any reasons by giving a notice of one month in writing or one month’s pay in lieu of. We do not find that there is a breach of the aforesaid rule in any manner. One month’s salary was credited to the bank account of the petitioner. The petitioner was terminated before completing the period of one year. The Service Rules permits termination without assigning reasons. The contents of the termination letter are not stigmatic. Not furnishing ACR in the facts of this case would not affect the order of termination. There is no violation of the principles of natural justice. The claim of the petitioner about malafides, vendetta, conspiracy, fabrication is based on disputed questions of facts and cannot be accepted. Hence, the petition is devoid of merits and deserves to be dismissed”. Click here to read the judgement

rpa 1 31 wp 1373 2000 j..doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1373 OF 2000 Petitioner Dharampal Singh Dahiya Adult Indian Residing at Flat No.3 Plot No.10 B 12 Gemini Park Co op. Hsg. Soc. Sion Trombay Road Mankhurd Mumbai 400 088 Director IUC DAEF University of Campus Khandwa Road Indore 452 017M s.Inter University Centre DAEF Mumbai Centre R.S. Shed B A R C Trombay Mumbai 400 085 Respondents Mr.Rohan Cama a w. Mr. Shanay Shah Mr.Netaji Gande Kaushal Udeshi i b. M s.Sanjay Udeshi & Co. Advocate for the Petitioner Ms.Neeta Masurkar a w. Ms.Nieyaati Masurkar Advocate for the CORAM : A.A. SAYED AND PRAKASH D. NAIK JJ JUDGMENT RESERVED ON : SEPTEMBER 26 2019 & NOVEMBER 03 2020 JUDGMENT DELIVERED ON : NOVEMBER 06 2020 rpa 2 31 wp 1373 2000 j..doc JUDGMENT: The petitioner invokes Article 226 of Constitution of India challenging the impugned order of termination communicated vide letter dated 23rd August 1999 issued by the respondents Brief facts urged by the petitioner are as follows The petitioner was in defence service for about 18 years till he took voluntary retirement in August 1998. He had acquired masters degree and since there was no much further scope for promotion in his career in defence service and on the background of educational qualifcations he was interested in utilizing his experience and qualifcation. After reading the advertisement in the newspaper dated 11th March 1998 inviting application for the post of Administrative Oficer by respondent no.3 the petitioner applied for the said post. He was selected. Vide letter dated 13th July 1998 intimation was given to the petitioner of having been selected for the aforesaid post calling for his rpa 3 31 wp 1373 2000 j..doc The petitioner resigned from defence services vide letter dated 20th July 1998 seeking voluntary retirement Petitioner then communicated his acceptance of the ofer for the aforesaid post vide communication dated 20th July 1998 to respondent no.3. He joined the services of respondent no.3 from 2nd September 1998 d) He was discharging his duties diligently to the satisfaction of his superiors including respondent nos. 1 and 2. No adverse remarks were ever made known to him by the respondents. He discharged his duties honestly The petitioner noticed that the respondent no.2 has been using the vehicle of respondent no.3 for his personal use and purposes. The petitioner was maintaining records of use of vehicles for which there was resentment by respondent no.2. He invited ire of respondent no.2 who cultivated bias against the petitioner. The petitioner received envelope from anonymous sender containing correspondence between the respondent no.2 and other employees of respondent no.3 at Indore Centre rpa 4 31 wp 1373 2000 j..doc The contents of the correspondence support and corroborate the contention of the petitioner. The petitioner applied for leave by applications dated 16th August 1999 for 31 days i.e. 19 days earned leave from 24th August 1999 to 11th September 1999 and 12 days half pay leave from 12th September 1999 to 23rd September 1999 in continuation both days inclusive and also for grant of advance pay The petitioner reported for his duty on 23rd August 1999 He was informed by Mr.S.S. Narayanan the Administrative oficer of Mumbai Centre that his leave has been duly sanctioned and payment up to 23rd September 1999 has been credited to his bank account. He was asked to submit necessary receipt of amount credited to his account. The petitioner passed on the receipt On 23rd August 1999 respondent no.2 called the petitioner and informed him that some letter is to be handed over to him which was in a sealed envelope. The contents were not revealed to him. On opening the envelope the petitioner rpa 5 31 wp 1373 2000 j..doc came to know that envelope contained letter dated 23rd August 1999 addressed to the petitioner by respondent no.2. The petitioner was terminated from services arbitrarily in violation of principles of natural justice The petitioner was orally informed that the amount credited to his bank account on 23rd August 1999 includes one month salary. After reading the contents of letter dated 23rd August 1999 the petitioner immediately refunded the amount back to the credit of centre in cash. The petitioner relies on receipt issued by Mr.S.S.Narayanan in respect to amount refunded by him The petitioner vide his advocate’s letter dated 30th August 1999 addressed to respondent no.1 intimated that the termination of petitioner is arbitrary illegal unlawful and without complying principles of natural justice. The termination is a part of conspiracy to get rid of the petitioner. He called upon for reinstatement. He also demanded the copy of service regulations. However there was no response. rpa 6 31 wp 1373 2000 j..doc The petitioner fled Appeal before CAT Mumbai challenging termination. The said Appeal was heard on 3rd March 2000 The same was dismissed by order dated 3rd March 2020 on the ground that CAT has no jurisdiction to entertain the Appeal. m) Respondent no.1 forwarded evasive reply dated 13th September 1999 to notice dated 30th August 1999 The petitioner forwarded representation dated 9th September 1999 to respondent no.1. According to petitioner the respondent no.1 had orally informed him that his services were illegally terminated and assured him of reinstatement. He was directed to contact respondent no.2. The petitioner met respondent no.2 on 24th September 1999. He was given assurance of justice by reinstatement provided he submits representation in the name of respondent no.1 and hands it over to respondent no.2 who shall forward it to respondent no.1 with recommendation. The petitioner forwarded letter dated 26th September 1999. He sent reminders. There was no response. Reply dated 18th October 1999 was received by rpa 7 31 wp 1373 2000 j..doc the petitioner which was negative. The petitioner vide letter dated 17th March 2000 submitted to the Governing Board of respondent no.3 appealing for revocation of the termination order dated 23rd August 1999. He submitted Appeal before Chairman University Grant Commission. Respondent no.2 fled afidavit in reply to the petition dated 26th July 2000. Mr.S.Sankarnarayanan working as Administrative Oficer fled the said afidavit dated 26th July 2000. The petitioner fled additional afidavit dated 4th August 2000. The petitioner then fled additional afidavit dated 21st December 2000. Shri Mahesh Chandra Gupta who was working as Administrative Oficer Indore fled afidavit dated 9th August 2000. Respondent no.2 fled additional afidavit dated 11th January 2001. The petitioner than fled additional afidavit dated 20th February 2001 and compilation of documents before this Court. Subsequently another additional afidavit dated 8th March 2011 was fled by the petitioner Learned counsel Mr.Rohan Cama appearing for the petitioner has made several submissions in support of challenge to the impugned order of termination which can be summarized rpa 8 31 wp 1373 2000 j..doc The termination of services of the petitioner is arbitrary highhanded illegal and unlawful The impugned termination without complying due process of law amounts to colourful exercise of the powers conferred on respondents iii) No opportunity of being heard has been ofered to the petitioner before the impugned termination was contemplated by the respondents iv) No reasons were assigned for termination of services of petitioner by respondents The termination is in gross violation of principles of natural justice principle of equity and fair play The respondents have indulged in unfair practice vii) Respondent no.2 was biased against the petitioner viii) The action of termination is out of vendetta by respondent The services of the petitioner were terminated on the basis of his ACR’s which he came to know after receiving the photocopy of ACR under RTI Act 2005. Adverse remarks were given in his ACR by reporting ofice and with recommendation for termination of service. He was never rpa 9 31 wp 1373 2000 j..doc given show cause notice warning memo during his service The petitioner was not informed of adverse remarks and grade below V by fnal grading oficer before fnal acceptance. He was not informed of any adverse remarks or grade below V in his ACRs by respondents or fnal reviewing authority xi) His ACR for probation period had to be completed by 1 st August 1999 i.e. one month before the expiry of the probation period and the same was completed on 13th August 1999. The adverse remarks in the ACR were fabricated and devoid of substance. Learned counsel for the petitioner relied on judgments in support of his submission which are as follows i) Dev Dutt Vs. Union of India & Ors.1 ii) State of Gujarat & Anr. Vs. Suryakant Chunilal Shah2 iii) The Management of Brooke Bond IndiaLtd. Vs Y.K. Gautam3 iv) Dipti Prakash Banerjee Vs. Satyayendranath Bose National Centre for Basic Science4 v) Union of India & Ors. Vs. Mahaveer C. Singhavi 5 2008) 8 SCC 725 1999) SCC 529 3 AIRSC 2634 1999) 3 SCC 60 2010) 8 SCC 220 rpa 10 31 wp 1373 2000 j..doc vi) Pradip Kumar Vs. Union of India & Ors.6 vii) V.P. Ahuja Vs. State of Punjab & Ors.7 viii) Kesar Enterprises Ltd. Vs. State of Uttar Pradesh ix) Maya Devi Vs. Raj Kumari Batra9 Learned counsel Ms.Neeta Masurkar for the respondents submitted that there is no illegality in the termination order. The petitioner has challenged the letter dated 23rd August 1999 and not the termination order dated 19th August 1999. He has relied on fabricated documents. The petitioner has not come with clean hands. The petitioner was appointed on probation of one year. Hearing was not necessary There were no stigma in the termination order. There were no malafdes. The contentions with regards to the ACR were not urged in the petition and for the frst time in the afidavit dated 8th March 2011 the petitioner has urged the grounds enumerated therein. The contentions in afidavit dated 8th March 2011 are devoid of merits. It was not necessary to assign any reason for termination. As per Rule 2.2.8 relating to the period of probation enumerated in the Bye Laws and the service condition of UGC DAE CSR during the period of probation the services of 2012) 13 SCC 182 2000) 3 SCC 239 2011) 13 SCC 733 2010) SCC 486 rpa 11 31 wp 1373 2000 j..doc an employee may be terminated by appointing authority without assigning any reasons by giving a notice of one month in writing or one month’s pay in lieu of. There is no violation of rules. Since the termination order does not refer to any stigma against the petitioner no hearing is warranted. Learned counsel relied upon the following decisions i) Rajendra Chandra Banerjee Vs. the Union of India10 ii) Oil And Natural Gas Commission and Ors. Vs Dr.MDS. Iskender Ali11 iii) Unit Trust of India & Ors. Vs. T.Bijay Kumar & Anr.12 iv) Krishnadevaraya Education Trust & Anr. Vs. L.A v) Oswal Pressure Die Casting Industry Faridabad Vs Presiding Oficer and Anr.14 We have heard learned counsel for the parties and perused the documents on record and the afidavits fled by both the parties. Letter dated 13th July 1998 annexed as Exhibit B to the petition mentions that on recommendation of selection committeethe Director IUC 10 AIR 1963 SC 1552 113 SCC 428 12 1992(5) SLR 855 13 JT 2001SC 617 143 SCC 225 rpa 12 31 wp 1373 2000 j..doc DAEF has approved the appointment of petitioner for the post of administrative oficer on terms mentioned therein. The letter was in the nature of ofer of appointment. The letter states that the appointment is temporary but is likely to continue. He will be on probation for a period of one year from the date of his appointment which may be extended upto one more year at the discretion of competent authority. During the probationary period his services are liable to be terminated without assigning any reason and without notice and he can also resign without giving any notice. On successful completion of probation his services can be confrmed. However after the probation services are liable to be terminated in accordance with the existing Bye laws and service conditions of IUC DAEF which require three months notice in writing. In the event of services being terminated without notice he will be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of notice or for the period by which such notice falls short of prescribed period. The petitioner accepted ofer and joined services Apparently the petitioner was terminated vide letter dated 19th August 1999 issued by respondent no.3 stating that the petitioner joined as Administrative Oficer on 2nd September 1998 with a probation of one year under stipulation that during the rpa 13 31 wp 1373 2000 j..doc probation period his services are liable to be terminated According to terms and conditions the petitioner’s services are terminated with immediate efect. An amount of Rs.14 060 equivalent to one month salary and allowance is deposited in his account in State Bank of India Mumbai. He was asked to submit a receipt thereof to the Centre Director Mumbai Centre. He was intimated that for settlement of other claims if any he should contact Sankara Narayanan Administrative Oficer or the Center Director of Mumbai Centre. By letter dated 23rd August 1999 petitioner was intimated that the Director ICU And DAEF has terminated his services as Administrative Oficer in the institution with immediate efect and his one month salary is deposited in his account in State Bank of India The petitioner has alleged that respondent no.2 was using the vehicle of the respondent no.3 for personal purpose and that the record was maintained by him which was not liked by respondent no.2. The respondents had conspired to terminate the petitioner. Several other contentions are agitated in this petition The petitioner has relied upon the documents which are annexed to petition and the afidavits along with compilation of rpa 14 31 wp 1373 2000 j..doc Vide afidavit dated 26th July 2000 respondent no.2 stated that the petition involves disputed question of facts. The letter of termination dated 19th August 1999 was delivered to the petitioner under sealed cover. Letter dated 23rd August 1999 is a consequential letter of termination order dated 19th August 1999. The petitioner had raised false dispute regarding payment of Rs.24 492 to him by respondent on 23rd August 1999. The respondent has credited the said amount in petitioner’s S.B Account towards notice pay salary upto 23rd August 2000. The receipt ExhibitH and leave application ExhibitE annexed at page nos. 46 and 40 are fabricated documents. Receipt dated 23rd August 1999 Exhibit “F” is tampered by inserting a line “ON GOING ON 31 DAYS LEAVE” and altering timing shown in the original receipt as 11:20 hrs. to 11:00 hrs. The words 11:20 are changed into 11:00 hours. The letters at pages 38 and 39 are false documents. Letter dated 14th March 1999 is not written or signed by him. The petitioner makes false claim that he has received copies of letter Exhibit “D” from anonymous sender The petitioner suppresses with ulterior motive letter of termination dated 19th August 1999 which was given to him in sealed cover. The petitioner accepted termination letter without any objection. He signed in acknowledgment the receipt of rpa 15 31 wp 1373 2000 j..doc sealed cover. The termination letter has been annexed to the petition. Consequential letter was issued to petitioner. Before serving termination order the respondent credited to petitioner’s account one month’s salary upto 23rd August 1999. Receipt was given by petitioner. He surrendered his identity card vehicle permit to respondent and in acknowledgment the receipt was issued which is tampered by petitioner. No hearing was necessary before termination. The other contentions of petitioner were denied. Mr.S. Sankaranarayan in his afidavit dated 26th July 2000 denied having written letter dated 7th February 1998. The petitioner in paragraph no.23 of the petition had contended that Mr.Narayanan had informed him that his leave with advance of pay has been duly sanctioned and his pay upto 23 rd September 1999 has been duly credited to his bank account. The said contention is false. There is no record of submission of leave application for the period from 23rd August 1999 to 23rd September 1999 by the petitioner. He had no talk with petitioner in that regard. Petitioner has tampered with receipt ExhibitF which was issued to him on his surrendering Identity Card vehicle permit etc. consequent to termination of his services. The receipt is tampered by inserting therein a line “ON GOING ON 31 DAYS LEAVE”. The receipt is further tampered by altering rpa 16 31 wp 1373 2000 j..doc time shown in original receipt as “11:20 hrs” to “11:00 hrs.” Respondent no.2 had informed the petitioner on 23rd August 1999 that the sealed cover contains termination letter dated 19th August 1999 issued by respondent no.1. The afidavit further mentions that the contentions of the petitioner that he refunded the amount back to the credit of the Center in cash and receipt was issued to him in respect of amount refunded by petitioner is totally false. The receipt shown at ExhibitH. The petitioner fled afidavit in rejoinder dated 4th August 2000. Afidavit of Mahesh Chandra Gupta dated 9th August 2000 fled on 29th December 2000 stated that he was working as Administrative oficer at Inter University Consortium at Indore. He further stated that he has not received the alleged letters at Exhibit “D” of petition which according to petitioner as contended in paragraph 21 of the petition were received from anonymous source and that the letters were allegedly written by Dr.P.S. Goyal and Mr.S.S Narayanan and addressed to him. The respondent no.2 fled afidavit dated 11th January 2001 denied contentions of petitioner. The petitioner then fled additional afidavit dated 21st December 2000 and another afidavit dated 20th February 2001 The petitioner also fled compilation of documents on 4th February 2001. Lastly the petitioner fled afidavit dated 8th rpa 17 31 wp 1373 2000 j..doc March 2011. In the last afidavit it is contended by petitioner that the action of termination is malafde. His services have been terminated on the basis of ACR which he came to know after receiving photocopy of ACR under RTI Act. Adverse remarks were given in ACR with recommendation of termination. The reporting oficer concocted stories. No opportunity was given to explain his position. No show cause notice was given to him Adverse remarks not informed to him. ACR was completed on 13th August 1999 which was signed by Reviewing Oficer without date. The petitioner tendered explanation towards remarks against him in this afidavit. He also relied on documents annexed to said afidavit. The petitioner was appointed on probation. This fact is not in dispute. Before completing the period of probation his services were terminated. It would be relevant to refer the rules Bye Law and service conditions. Rule 2.2.8 reads as follows “2.2.8 Period of Probation The employees of Consortium except those appointed on temporary basis or on contracts shall be put on probation for a period of one year. At the end of this period the probation may be extended provided that rpa 18 31 wp 1373 2000 j..doc the total period of probation is not more than two years. During the period of probation the services of an employee may be terminated by the appointing authority without assigning any reason by giving a notice of one month in writing or one month’s pay in lieu of. Similarly the employee on probation can resign from his her post without assigning any reason by giving a notice of one month or depositing one month’s salary in lieu thereof.” Thus the aforesaid rule categorically mentions that during the period of probation the services of an employee may be terminated by the appointing authority without assigning any reasons by giving a notice of one month in writing or one month’s pay in lieu of. We do not fnd that there is breach of the aforesaid rule in any manner. One month’s salary was credited in the bank account of the petitioner. In Dev Dutt Vs. Union of India & Ors.the Apex Court was dealing with the issue relating the confdential report adverse entries remarks. It was observed that whether an entry is adverse or not depends upon its actual impact on employee’s career and not on its terminology. It was also observed that the entry in ACR has to be communicated to the rpa 19 31 wp 1373 2000 j..doc employee. The factual aspects of the said decision indicate that the appellant therein was promoted as Executive Engineer and he was eligible to be considered for promotion of Superintending Engineer after completing stipulated period and his name was included in the list of candidates eligible for promotion. The promotion committee held that the appellant was not eligible for promotion. The contention of the respondents therein was that the Bench mark grade should be “Very Good” for the last fve years. The appellants grievance was that he was not communicated “Good” entry. The Court observed that the said entry should have been communicated to the appellant to enable him to make representation praying that the entry should be upgraded from “Good” to “Very Good”. Opportunity of making such representation should have been given to him. Considering bench mark for promotion “good” entry was adverse entry for promotion. It was further observed that every entry in the ACR must be communicated to public servant within a reasonable period. Non communication would afect the employee. Non communication of entry would violative of Article 14 of the Constitution of India. Non communication of an entry may adversely afect the employees chances of promotion. The factual aspects of this decision are distinct. It is relevant to note that in rpa 20 31 wp 1373 2000 j..doc the termination letter it has not been stated that his services were terminated on account of his ACR. The petitioner was on probation and in accordance with the Service Rules relating to probation services could be terminated without assigning any reasons. Thus the ratio laid down in the aforesaid decision is not of assistance to the petitioner In State of Gujarat & Anr. Vs. Suryakant Chunilal Shah it was observed that the purpose of communication of adverse remark is to ofer an opportunity to an employee to improve himself or to explain his conduct so as to show that the adverse entry was wholly uncalled for or to silently brood over the matter and on being convinced that his previous conduct justifed such an entry to improve his performance. The facts of this case would indicate that the employee was compulsorily retired. The authorities themselves were uncertain about the action which was to be taken ultimately against him There was hardly any material on the basis of which bonafde opinion could have been formed that it would be in public interest to retire employee compulsorily. There were no adverse remarks and integrity was not doubted and after his promotion character roll entries were not available to doubt his integrity and no rpa 21 31 wp 1373 2000 j..doc material for compulsory retirement. It is in these circumstances the observations regarding roll entries were made by the Court In the case of The Management of Brooke Bond Indiathe Apex Court had considered the issue whether termination of employee without assigning any reasons is mala fde capricious and arbitrary. The respondent was on probation and was appointed by the appellant as salesman. The employer relied upon the reports regarding the unsatisfactory work of the employee. It was observed that the reports about the conduct of the employee would at the most shows his lack of enthusiasm. The Court held that the stand of the employer that the employee was not suitable for the job is not made out having regard to its action two days later of entrusting the employee with an independent charge of a potential area with full expectation that the sales of the said area would increase The facts of the case refect that the respondent was terminated Dispute was referred to Tribunal. The termination was set aside by Tribunal. The Apex Court referred to several decisions relating termination of employee who was on probation. The employer had relied on reports against employee. Oficers were examined before Tribunal. The stand of employer was that employer was not suitable for job which was disbelieved on the ground that the rpa 22 31 wp 1373 2000 j..doc employee was entrusted with independent charge. The said decision in our view is not applicable in the present case In Dipti Prakash Banerjee Vs. Satyayendranath Bose National Centre for Basic Sciencethe issue before the Supreme Court was whether the termination of employee was stigmatic and whether it was necessary to hold an inquiry before initiating action against employee. It was held that stigma may be inferrable from the references quoted in the termination order though the order itself may not contain anything ofensive. Termination would be bad if it contains stigma and no enquiry has been conducted. The employee was appointed on probation. The employee was informed that the work was not satisfactory on several counts. The employee submitted reply denying allegations. The probation was extended for six months to give opportunity to employee to improve performance. Defciencies were noted again. The Apex Court considered when can an order of termination of a probationer be said to contain an express stigma. The court observed that if fndings were arrived at in an enquiry as to misconduct behind the back of oficer or without regular departmental enquiry the simple order of termination is to be treated as founded on the rpa 23 31 wp 1373 2000 j..doc allegations and will be bad. But if the enquiry was not held no fndings were arrived at and the employer was not inclined to conduct an enquiry but at the same time he did not want to continue the employee against whom there were complaints it would only be a case of motive and the order would not be bad. In the case before Apex Court the order of termination was not simple order of termination but it was a lengthy order. It not only says that performance during probation is not satisfactory but also refers to letter by which the period of probation was extended and by referring to other letters it was concluded that the appellants conduct performance ability capacity during probation was not satisfactory. In the case before us the termination order was issued without assigning any reasons There is no adverse observations against the petitioner. Thus it cannot be said that the order of termination would amount to In the case of Union of India & Ors. Vs. Mahaveer C. Singhaviit was held that if inquiry is held behind the back of employee the termination would be punitive and bad in law. The facts of the case disclose that the proposal to terminate services was approved by superiors. The services were rpa 24 31 wp 1373 2000 j..doc terminated on the ground of misconduct. The High Court held that order of discharge was without formal enquiry and without giving opportunity to defend. The Apex Court observed that if no enquiry was held or contemplated and the allegations were merely a motive for the passing of an order of discharge of a probationer without giving hearing the same would be valid However the case before Apex Court was diferent since termination was based on misconduct. It was punitive in character and motivated by considerations which are not refected in order. In the case of Pradip Kumar Vs. Union of India Ors.the Supreme Court has observed that while terminating arbitrary stigmatic report was considered. In the facts of the case it was held that the order of discharge was vitiated due to colourable exercise of power stigmatic and punitive in nature and such order cannot be sustained in law. It is violative of Article 14 of Constitution. In Kesar Enterprises Ltd. Vs. State of Uttar Pradesh & Ors.the Court considered the right of hearing. It was held that the principle of natural justice is to rpa 25 31 wp 1373 2000 j..doc check arbitrary exercise of power. The principle implies duty to act fairly. The underlying principle of natural justice evolved under the common law is to check arbitrary exercise of power by the State or its functionaries. Similarly in Maya Devi Vs. Raj Kumari Batrathe Supreme Court has dealt with arbitrary exercise of power. It was observed that the discretionary powers are to be exercised by application of mind and recording of reasons. In V.P. Ahuja Vs. State of Punjab and Others it was observed that services of probationer cannot be terminated punitively without complying with principles of natural justice. The afidavit fled by parties before the Court indicated in that case that the order was stigmatic. The facts of that case are distinct. In the present case no hearing was necessary as the termination was not stigmatic. The ratio laid down in the aforesaid decisions is not applicable to the facts of the case before us. We have noted above that services of probationary could be terminated without assigning reasons in accordance with rules of service applicable to the petitioner. The termination order is not stigmatic. Learned counsel for respondent placed reliance on rpa 26 31 wp 1373 2000 j..doc several decisions. In the case of Rajendra Chandra Banerjee Vs. the Union of Indiathe Constitution bench has observed that a Government servant who is on probation can be discharged during the period of probation and such discharge would not amount to dismissal or removal within the meaning of Article 311and would not attract the protection of that Article where the services of a probationary are terminated in accordance with rules and not by way of punishment. The probationary has no right to the post held by him and under the terms of his appointment he is liable to be discharged at any time during the period of his probation subject to the rules governing such cases. 20 We have noted that the petitioner in the case before us was terminated in accordance with rules. The petitioner has belatedly contended by fling the additional afidavit dated 8th March 2011 that he has collected ACR during RTI and that the respondent had relied upon the ACR without furnishing copy of the ACR to him and without giving him hearing the petitioner has been terminated. We fnd that the termination order does not refer to any adverse remark against petitioner. The petitioner could be terminated before the probation period gets over. There are no rpa 27 31 wp 1373 2000 j..doc observations in termination order which are stigmatic. The issuance of show cause notice or giving hearing to the petitioner was not warranted In the case of Oil And Natural Gas Commission and Ors. Vs. Dr.MDS. Iskender Aliit was held that the termination of temporary services of probation by innocuous order in accordance with the terms of employment was valid and Article 311(2) is not attracted. Motive of termination is immaterial. Ordinarily the Court does not go into the ofice fles to fnd out any possible stigma. The facts of this case indicate that confdential roll refecting assessment of work of employee during the relevant period showed that he was careless and lacking in sense of responsibility. The period of probation was extended. The Court observed that the remarks in the assessment roll merely indicates the nature of the performance put in by oficer for the limited purpose of determining whether or not his probation should be extended. These remarks were not intended to cast stigma. The respondent was probationer the appointing authority did not consider it to continue enquiry and decided to terminate the services of respondent as he was not suitable for job. In case of probationer or a temporary employee rpa 28 31 wp 1373 2000 j..doc who has no right to the post such termination is valid and does not attract Article 311 of the Constitution of India. The petitioner in this case had insisted that the fles of the ofice be called for perusal of ACR. It is pertinent to note that the appointment letter issued to the petitioner itself categorically mentions that the appointment of the petitioner is temporary but likely to continue He will be on probation for a period of one year from the date of appointment which may be extended for one more year at the discretion of the competent authority. It however mentions that during the probationary period the services of the petitioner are liable to be terminated without assigning any reasons and without notice and even he can resign without giving notice. On successfully completion of probation the services will be confrmed. It also mentions that in the event of services being terminated without notice he will be entitled to claim sum equivalent to the amount of pay and allowances for the period of notice or for period by which such notice sought for the prescribed period. Applying the principle enunciated by Supreme Court in various cases to the facts of the present case it is apparent that the impugned order is an order of termination simplicitor rpa 29 31 wp 1373 2000 j..doc without casting any stigma. The order does not in any way involve any civil consequences and is an order of discharge simplicitor of petitioner who was a probationer. The petitioner has not been able to make out any case of victimisation or one of punishment. In Unit Trust of India & Ors. Vs. T.Bijay Kumar Anr.It was held that in simplilcitor discharge question of giving a hearing before the termination of service does not In Krishnadevaraya Education Trust & Anr. Vs L.A. Balkrishnait was observed that termination of service during probation period wherein the order merely states that the employee will be relieved from specifc day and he be paid dues if any cannot be said to be by way of punishment. The services were terminated during probation. The Court further observed that during the period of probation the suitability of the recruit appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job then the employer has a right to terminate the services as a reason rpa 30 31 wp 1373 2000 j..doc In Oswal Pressure Die Casting Industry Faridabad Vs Presiding Oficer and Anr.it was held that it is not open to sit in Appeal over the assessment made by the employer about the performance of employee. Once it is found that the assessment made by the employer was supported by material and termination was not malafde it is not proper for the High Court Considering the conditions stipulated in the appointment letter the contents of termination order it cannot be said that there was breach of settled principles of law. The petitioner was terminated before completing the period of one year. The Service Rules permits termination without assigning reasons. The contents of termination letter are not stigmatic. Not furnishing ACR in the facts of this case would not afect order of termination. There is no violation of principles of natural justice The claim of petitioner about malafdes vendetta conspiracy fabrication is based on disputed questions of facts and cannot be accepted. Hence the petition is devoid of merits and deserves to Hence we pass the following order rpa 31 31 wp 1373 2000 j..doc O R D E R i) Writ Petition No.13700 stands dismissed ii) No order as to costs (PRAKASH D. NAIK J (A.A. SAYED J

High Court has the power to issue orders, directions, and writs to any individual or authority including the Government: High Court Of New Delhi

The petition was filed under Article 226 of the Constitution of India, the order which was dated 08.07.2021 “Impugned Order” and letter dated 16.07.2021, which includes the filing of C.P. No. 295/MB/2021 and the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MS. JUSTICE REKHA PALLI, in the matter, SUNIL TANDON V.  UNION OF INDIA & ANR dealt with an issue mentioned above. The facts were mentioned as such that the present petition was that the respondent no.3 company, of which the petitioner is an erstwhile independent Non-Executive Director till 18.05.2018, is a part of a group of companies associated with the flagship company i.e. Videocon Industries Ltd. and was admitted under the IBC Framework and thereafter, made subject to the corporate insolvency resolution process (CIRP) before the NCLT, Mumbai Bench on 31.08.2018. On 08.06.2021, the resolution plan which was filed by Twin-Star Technologies Ltd. for the consolidated CIRP of all the Videocon Group companies was approved by the NCLT, Mumbai Bench. Upon the said order being assailed by way of Company Appeal Nos. (AT) (Insolvency) 503 and 505 of 2021, the National Company Law Appellate Tribunal (NCLAT), on 19.07.2021, stayed the said order. Meanwhile, respondent no.1, based on the material placed before it by the Resolution Professional (RP), passed the Impugned Order on 08.07.2021 directing the Serious Fraud Investigation Office (SFIO) W.P.(C) 10645/2021 to investigate the affairs of Videocon Industries Ltd. and its group companies, including respondent no.3. And also it was mentioned that respondent no .3. filed a company petition bearing C.P. No. 295/MB/2021 before the NCLT, Mumbai which, on 31.08.2021. The order which was passed by the NCLT, Mumbai whereby inter alia all his assets have been attached, the petitioner has approached this Court seeking quashing of order dated 08.07.2021 and letter dated 16.07.2021 issued by respondent no.1, and has also prayed that the proceedings initiated before the NCLT, Mumbai Bench, including the order dated 31.08.2021. Mr Arvind Nigam, learned senior counsel for the petitioner, was that the proceedings initiated by respondent no.1 before the NCLT, Mumbai are a nullity as the Bench at Mumbai did not have any jurisdiction to entertain such a petition because of the proviso to Section 241(2) of the Companies Act, 2013 which in unequivocal terms states that only the NCLT, Principal Bench at New Delhi has the exclusive jurisdiction to entertain a petition under Section 241(2) W.P.(C) 10645/2021  filed by the Central Government. Consequently, any order passed by the NCLT, Mumbai is non-est and liable to be ignored by this Court; which has, therefore, rightly been approached by the petitioner to seek quashing of the order dated 08.07.2021 and letter dated 16.07.2021 issued by respondent no. 1 at Delhi. Mr Nigam urged that once the proceedings under Section 241(2), initiated at the instance of respondent no.1, could be filed only before the Principal Bench, NCLT and not before the NCLT, Mumbai Bench; the NCLT, Mumbai Bench has while passing the impugned order on 31.08.2021, exercised jurisdiction which is not at all vested in it. He contends that in the present case, once the NCLT had proceeded to entertain a petition which it had no jurisdiction to deal with, merely because the petitioner has an alternative remedy of approaching the NCLT or the W.P.(C) 10645/2021 NCLAT, cannot be a bar from his invoking the writ jurisdiction of this Court. He also submits that the reliance on the observations of the Apex Court in Embassy Property (supra), Mentioned that the present case squarely falls within the well-recognised exception to the self-imposed restraint of the High Courts to entertain a writ petition once a statutory alternative remedy of appeal is available as there was lack of jurisdiction on the part of the NCLT, Mumbai Bench in entertaining the petition. The court mentioned the below statement after referring to a lot of case laws and conclude that, I may observe that the petitioner has, by relying on the decisions in Navinchandra N. Majithia vs. State of Maharashtra and Ors. (2000) 7 SCC 740 and M/s Sterling Agro Industries Ltd. vs. Union of W.P.(C) 10645/2021 Page 22 of 22 India & Ors. ILR (2011) VI Delhi 729, urged that this Court has territorial jurisdiction to deal with the matter as the impugned order dated 08.07.2021 and letter dated 16.07.2021 were issued by respondent no.1 at Delhi. However, because of my conclusion that the present petition is not maintainable on account of the alternative statutory remedies available to the petitioner and not for want of territorial jurisdiction, I do not deem it necessary to delve into this aspect. The court perused the facts and argument’s presented, it thought that- “The writ petition, along with the pending application, is dismissed. Needless to observe that this Court has not gone into the merits of the petitioner’s challenge to the impugned orders and letter and therefore, the petitioner will be at liberty to raise all grounds raised in the present petition either before the NCLT or NCLAT, which he may choose to approach”.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 29.09.2021 Date of Decision: 22.10.2021 W.P.(C) 10645 2021 & CM APPL. 32831 2021SUNIL TANDON Through Mr.Arvind K. Nigam Sr. Adv. with Ms.Smita Kant Adv. ..... Petitioner UNION OF INDIA & ANR. ..... Respondents Through Mr.Chetan Sharma ASG with Mr.Anurag Ahluwlia CGSC Mr.R.V.Prabhat Mr.Amit Gupta Mr.Vinay Yadav Mr.Akshay Gadeock & Mr.Sahaj Garg Advs. Mr.Abhinav Vashisht Sr.Adv. with Mr.Shantanu Tyagi Mr.Anoop Rawat Mr.Saurav Panda Mr.Zeeshan Khan Advs for R 3. HON BLE MS. JUSTICE REKHA PALLI REKHA PALLI J By way of the present petition filed under Article 226 of the Constitution of India the Petitioner an erstwhile independent Non Executive Director in respondent no.3 company assails order dated 08.07.2021 and letter dated 16.07.2021 issued by respondent no.1 and all consequential actions emanating therefrom which includes the filing of C.P. No. 295 MB 2021 before the Hon’ble National Company Law TribunalMumbai Bench and the W.P.(C) 10645 2021 other persons. order passed by the said Bench on 31.08.2021 against the petitioner and The brief facts leading to the filing of the present petition are that the respondent no.3 company of which the petitioner is an erstwhile independent Non Executive Director till 18.05.2018 is a part of a group of companies associated with the flagship company i.e. Videocon Industries Ltd. and was admitted under the IBC Framework and thereafter made subject to the corporate insolvency resolution process before the NCLT Mumbai Bench on 31.08.2018. The respondent no.3 company is therefore being represented in the present petition by the Resolution Professionalappointed by the NCLT Mumbai Bench. As 12 other companies of Videocon Industries Ltd. group were also undergoing CIRP the NLCT Mumbai vide its order dated 08.08.2019 consolidated the insolvency process of all the Videocon group companies including the respondent no.3. On 08.06.2021 the resolution plan filed by Twin Star Technologies Ltd. for the consolidated CIRP of all the Videocon Group companies was approved by the NCLT Mumbai Bench. Upon the said order being assailed by way of Company Appeal Nos. Insolvency) 503 and 505 of 2021 the National Company Law Appellate Tribunal on 19.07.2021 stayed the said order. Aggrieved thereby Twin Star Technologies Limited approached the Supreme Court by way of Civil Appeal Nos. 4626 and 4593 of 2021 which came to be dismissed on 13.08.2021. In the meanwhile the respondent no.1 on the basis of the material placed before it by the Resolution Professionalpassed the Impugned Order on 08.07.2021 directing the Serious Fraud Investigation OfficeW.P.(C) 10645 2021 to conduct an investigation into the affairs of Videocon Industries Ltd. and its group companies including respondent no.3. Simultaneously vide its Impugned Letter dated 16.07.2021 the respondent no.1 directed the Regional Director Ministry of Corporate Affairs to file a petition under Sections 221 241 242 246 r w 339 of Companies Act 2013 hereinafter referred to as “the Act”) before the NCLT Mumbai Bench against Videocon Industries Ltd. and its group companies seeking interim prayers for declaration and the freezing of the assets and properties including that of “persons prima facie responsible”. In pursuance of the impugned order and letter the respondent no.1 filed a company petition bearing C.P. No. 295 MB 2021before the NCLT Mumbai which on 31.08.2021 issued the following directions: “I. That the Petitioner is permitted to serve the Respondents Through Joint Director working in office of post publication in the newspapers email WhatsApp messaging wherever required in order to ensure due service of notice to all Respondents present in India and overseas II. That the Respondents are immediately directed to disclose on affidavit their moveable and immovable properties assets including bank accounts owned by them in India or anywhere in the world III. That the Central Depository Services Ltd. and National Securities Depository Ltd. is directed that securities owned held by the Respondentsin any company society be frozen and be prohibited from being transferred or alienation and details thereof be shared with the Petitioner IV. That the Central Board of Direct Taxes is be directed to disclose information about all assets of the W.P.(C) 10645 2021 Respondents their knowledge or possession for the purpose of freezing and restrain on alienation of such assets V. That the Indian Banks Associationis directed facilitate disclosure of the details of the bank accounts lockers owned by the Respondents and such bank accounts and lockers also be frozen with immediate effect VI. That the Petitioner is permitted to write to the State Government(s) and the Union Territories to identify and disclose all details of immovable properties owned held by the RespondentsVII. That all movable and immovable properties of Respondents including bank accounts lockers demat accounts including jointly held properties be attached during the pendency of the company petition” Being aggrieved with this order passed by the NCLT Mumbai whereby inter alia all his assets have been attached the petitioner has approached this Court seeking quashing of order dated 08.07.2021 and letter dated 16.07.2021 issued by respondent no.1 and has also prayed that the proceedings initiated before the NCLT Mumbai Bench including order dated 31.08.2021 be declared as non est. The first and foremost contention of Mr. Arvind Nigam learned senior counsel for the petitioner is that the proceedings initiated by the respondent no.1 before the NCLT Mumbai are a nullity as the Bench at Mumbai did not have any jurisdiction to entertain such a petition in view of the proviso to Section 241(2) of the Companies Act 2013 which in unequivocal terms states that only the NCLT Principal Bench at New Delhi has the exclusive jurisdiction to entertain a petition under Section 241(2) W.P.(C) 10645 2021 filed by the Central Government. Consequently any order passed by the NCLT Mumbai is non est and liable to be ignored by this Court which has therefore rightly been approached by the petitioner to seek quashing of the order dated 08.07.2021 and letter dated 16.07.2021 issued by the respondent no. 1 at Delhi. On the other hand the very maintainability of the petition has been vehemently opposed by the respondents who have contended that once the impugned letter and order have resulted in the passing of orders by NCLT Mumbai Bench the petitioner if aggrieved is required to challenge the order passed by the NCLT either by approaching the same NCLT bench or the NCLAT i.e. the statutory appellate authority provided under Section 421 of the Act. The respondents have contended that irrespective of the merits of the petitioner’s challenge to the impugned order and letter once there is an efficacious statutory remedy available to the petitioner he cannot be permitted to bypass the same by invoking the extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India. Even a petition under Article 227 would not be maintainable as the petitioner is aggrieved by an order passed by the NCLT Mumbai Bench over which this Court does not exercise any supervisory jurisdiction. In the light of these rival stands taken by the parties once it emerged that the issue which was required to be first adjudicated by this Court was whether in the light of the position that the petitioner had approached this Court after the passing of the order by NCLT Mumbai Bench on 31.08.2021 the writ petition would be maintainable learned counsel for the parties were heard at length on this aspect. Consequently judgment was reserved to first determine the maintainability of the present petition as the W.P.(C) 10645 2021 parties were ad idem that it is only if the writ petition were held to be maintainable could this Court examine the merits of the impugned order and letter. Accordingly this decision is confined only to the aspect of maintainability of the writ petition. 10. Mr. Nigam learned senior counsel for the petitioner in support of his plea that the proceedings initiated before the NCLT Mumbai under Sections 241 and 242 of the Act are a nullity states that from a plain reading of the proviso to Section 241(2) which came into effect from 15.08.2019 it is clear that the same is in the nature of an “ouster clause” as it categorically provides that only the Principal Bench of the NCLT at New Delhi would have the exclusive jurisdiction to entertain all petitions filed by the Central Government under Sections 241 242 of the Act. He submits that though prior to the amendment Section 241(2) provided the Central Government with the right to file an application for oppression and mismanagement with the concerned NCLT if it was of the opinion that the affairs of the company have been conducted in a manner prejudicial to public interest however by way of a proviso added to Section 241(2) the Principal Bench of the NCLT has been vested with exclusive jurisdiction to entertain such applications filed by the Central Government. 11. He submits that keeping in view the exclusive jurisdiction conferred on the Principal Bench in terms of the proviso to Section 241(2) there can be no doubt that the jurisdiction of all benches of NCLT was excluded and therefore the impugned letter issued by the respondent no.1 on 16.07.2021 authorizing the Regional Director Ministry of Corporate Affairs to file a petition under Section 241(2) of the Act before the NCLT Mumbai Bench not only depicted non application of mind but was even otherwise W.P.(C) 10645 2021 non est and therefore liable to be set aside. Consequently the impugned order passed by NCLT Mumbai Bench which lacked the inherent jurisdiction to deal with such a petition was a nullity. 12. To buttress his submission that the NCLT Mumbai Bench could not entertain a petition under Section 241 of the Act preferred by the Central Government as it was hit by the ouster clause prescribed in the statute he places reliance on the observations of the Supreme Court in Para 30 of its decision in Embassy Property Developments Pvt. Ltd. v State of Karnataka Ors. 13 SCC 308 wherein the Apex Court held that the NCLT being a creation of a statute can exercise only powers as vested upon it under the statute: “30. The NCLT is not even a Civil Court which has jurisdiction by virtue of Section 9 of the Code of Civil Procedure to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Therefore NCLT can exercise only such powers within the contours of jurisdiction as prescribed by the statute the law in respect of which it is called upon to administer” 13. Mr. Nigam thus urges that once the proceedings under Section 241(2) initiated at the instance of respondent no.1 could be filed only before the Principal Bench NCLT and not before the NCLT Mumbai Bench the NCLT Mumbai Bench has while passing the impugned order on 31.08.2021 exercised jurisdiction which is not at all vested in it. He contends that in the present case once the NCLT had proceeded to entertain a petition which it had no jurisdiction to deal with merely because the petitioner has an alternative remedy of approaching the NCLT or the W.P.(C) 10645 2021 NCLAT cannot be a bar from his invoking the writ jurisdiction of this Court. His plea thus being that when the present case was a clear case of absence of jurisdiction with the NCLT and not a case of mere error in exercise of jurisdiction the writ petition would be maintainable and ought to be entertained by this Court. By placing reliance on the observations of the Apex Court in Paras 15 18 of Embassy Propertyhe submits that the present case squarely falls within the well recognised exception to the self imposed restraint of the High Courts to entertain a writ petition once a statutory alternative remedy of appeal is available as there was lack of jurisdiction on the part of the NCLT Mumbai Bench in entertaining the petition. The exercise of jurisdiction where none existed would certainly be amenable to the extraordinary jurisdiction of this Court under Article 226 of the Constitution and therefore despite the availability of an appellate remedy the impugned order and letter issued by the respondent no.1 at Delhi from which proceedings before the NCLT Mumbai Bench have emanated are liable to be set aside by this Court. In support of his plea that this Court despite the existence of the statutory alternate remedy ought to exercise its jurisdiction under Article 226 to entertain the present petition Mr. Nigam relies on a decision of the High Court of Calcutta in Kolkata Municipal Corporation & Anr. vs. Union of India & Ors. WPA No. 977 2020 as also a decision of the High Court of Jammu & Kashmir in SA Gold Ipsat Pvt. Ltd. v. The J&K Bank Ltd. & Ors. W.P.361 2020. 15. Mr. Nigam also seeks to place reliance on a decision of a Coordinate Bench of this Court in Venus Recruiters Private Limited vs. Union of India Ors. W.P.8705 2019 wherein this Court despite the objection of the W.P.(C) 10645 2021 respondents therein that any order passed by the NCLT under Sections 60 and 61 of the Insolvency and Bankruptcy Code 2016was appealable before the NCLAT entertained the writ petition after finding that the NCLT lacked jurisdiction to entertain an application beyond what was permitted under the IBC. 16. He further submits that even otherwise the impugned order and the letter were vitiated by non application of mind as the petition before the NCLT was filed without appreciating the fact that a prerequisite for filing of the same was formation of an opinion by the Central Government that the affairs of the company “are being” conducted in a manner prejudicial to public interest. Admittedly the operation and functioning of the respondent no.3 company was at the time of issuance of both the impugned order and the letter being managed by the RP of the said company and not the petitioner as the CIRP in respect of the said respondent had commenced way back on 31.08.2018. Moreover the petitioner had already resigned as a Director of respondent no.3 on 18.05.2018 i.e. well before the initiation of CIRP of the respondent no.3 on 31.08.2018. Thus there existed no reason for the respondent no.1 to have formed an opinion that respondent no.3’s affairs “are being” conducted in a manner prejudicial to public interest as the management of the respondent no. 3 was already in the hands of the RP. In support of his contention that the use of the term "are being" in Section 241(2) of Companies Act is in contradistinction to the phrase "have been or are being" used in Section 241(1)(a) of Companies Act he relies on the decision of a Co ordinate Bench in B.D. Pawar v. Union of India through Ministry of Corporate Affairs & Anr. W.P.(Crl.) 1285 2020 wherein the Court held as under: W.P.(C) 10645 2021 “7. Since the functioning of NSEL remains suspended since the past over six years there is no reason for the Central Government to have formed an opinion that its affairs are being conducted in a manner prejudicial to public interest. 10. Since the affairs of operation of NSEL have been suspended for almost over six years prima facie it would be difficult to accept that a petition under Section 241of the Companies Act 2013 would be maintainable.” 18. Mr. Nigam thus contends that not only do the impugned order and letter suffer from non application of mind but the same have been passed by also ignoring the relevant material including the audit report prepared by N.V. Dand & Associates Chartered Accountants appointed by the RP which did not point out any irregularities in the transaction audit conducted during the CIRP of the respondent no.3 and group companies namely “avoidance transactions” as claimed by the respondent no.1 while issuing the impugned order and letter. 19. He further submits that in any event once the RP who is sufficiently empowered under the mandate of the IBC to take sufficient steps against such “avoidance transactions” and is presently seized of the affairs of the respondent no.3 company has not raised any grievance and has in fact actively supported the resolution plan approved by the committee of creditors the impugned order and letter were without jurisdiction. Moreover even though both the impugned letter and the order have been purportedly passed to safeguard public interest all the companies are already undergoing CIR Process and therefore the public interest is already being taken care of. W.P.(C) 10645 2021 20. Per contra the learned ASG appearing on behalf of respondent nos.1 2 firstly submits that the petitioner is by misinterpreting the provisions of Section 241 of the Act wrongly trying to project that the NCLT Mumbai Bench did not have the jurisdiction to entertain the petition. The reliance on the proviso to Section 241(2) by the petitioner to contend that the petition could be entertained only by the Principal Bench of the NCLT is wholly misplaced as admittedly till date no rules laying down the class of companies qua whom an application can be filed by the Central Government before Principal Bench of the NCLT have been prescribed. Once the precondition for applicability of the proviso does not exist as admittedly the Central Government has till date not prescribed any rules regarding the companies qua which such a petition is required to be filed before Principal Bench the respondent no.1 could not have filed such petition before the Principal Bench of the NCLT. By placing reliance on 63 Moons Technologies Ltd. v. Union of India 2017 SCC OnLine NCLAT 36 he submits that the respondents had therefore correctly approached the Mumbai Bench within the territorial jurisdiction of whom the registered office of the offending company is located. He further submits that the instant case is not a case where proceedings under Section 241 of the Act have been initiated before a forum not having jurisdiction over the said subject matter as it is an admitted position that petitions under Section 241 of the Act by any person other than the Central Government are even as per the petitioner still required to be filed before the respective bench of the Tribunal having territorial jurisdiction over the offending company. He therefore contends that even as per the petitioner the proceedings were required to be filed only before W.P.(C) 10645 2021 the NCLT and therefore the filing of the petition before the Mumbai Bench instead of the Principal Bench can at best be said to be a wrongful exercise of available jurisdiction and not of any inherent lack of jurisdiction. Thus neither the order passed by the Mumbai Bench of the NCLT is a nullity nor the impugned letter issued by the respondent no.1 seeking initiation of proceedings before the NCLT Mumbai Bench is non est. Without prejudice to his submissions that the order passed by the NCLT cannot be said to be without jurisdiction the learned ASG contends that even otherwise once specialized bodies like the NCLT and NCLAT have been created to adjudicate upon the disputes arising under the Companies Act this Court ought not to exercise its discretion and instead the petitioner ought to avail of the readily available alternative statutory remedy provided for in the Companies Act which is a complete Act in itself and does not envisage any room for challenging the orders of the NCLT other than in a manner prescribed by the Act itself. He contends that once an efficacious alternative remedy is available and a statutory forum has been created for the redressal of the grievances sought by the petitioner this Court ought not to entertain the present petition and that too against an order passed by the Mumbai Bench of the NCLT over which it does not even exercise supervisory jurisdiction under Article 227 of the Constitution. By placing reliance on a decision of a Co ordinate Bench in Shriraj Investment and Finance Limited & Ors. vs. Union of India W.P.(Crl.) 1823 2020 he urges that once the Mumbai Bench of the NCLT is seized with the petition all contentions including the power of the respondent no.1 to initiate such proceedings must be raised before the said forum and be determined in those proceedings. W.P.(C) 10645 2021 23. He submits that even otherwise there is no justification for the petitioner to invoke the jurisdiction of this Court under Article 226 by bypassing the remedy available to him under the Companies Act i.e. to raise an objection without regard to maintainability before the NCLT itself and if aggrieved by the decision pursue the appellate remedy before the NCLAT under Section 421 of the Act. For this purpose he places reliance on Para 9 of Church of South India Trust Association v. John Dorai 2018 SCC Online Mad 12756 which records the observations of the Apex Court in Surya Dev Rai v. Ram Chander Rai 6 SCC 675. 24. Furthermore the Mumbai Bench of the NCLT has not acted in contravention to the provisions of the Companies Act or in defiance of the fundamental principles of judicial procedure or in violation of the principles of natural justice warranting this Court to exercise its jurisdiction under Article 226 of the Constitution. 25. He thus contends that once the rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available the petitioner ought to be relegated to avail appellate remedy before the NCLAT as provided for under Section 421 of the Act more especially when two of the similarly placed respondents in the petition before the NCLT Mumbai have already preferred appeals being Company Appeal Nos. 110 & 111 of 2021 against the order dated 31.08.2021 sought to be challenged by the petitioner in the present petition. 26. Mr.Abhinav Vashisht learned senior counsel for respondent no.3 while adopting the submissions made by the learned ASG submits that the present petition is not maintainable as no case has been made out by the petitioner warranting exercise of its extraordinary jurisdiction instead of W.P.(C) 10645 2021 being relegated to avail the alternative statutory remedy available under the Companies Act. 27. At this stage the learned ASG without prejudice to his submissions that the writ petition is not maintainable submits on instructions that if the petitioner moves an application seeking withdrawal of amounts from his accounts to meet his immediate needs the respondent will consider the same favourably and permit the petitioner to withdraw the requisite amounts. 28. Having considered the submissions of the parties I may at the outset note that they are ad idem that the existence of an alternative statutory remedy would not be an absolute bar for an aggrieved party to invoke writ jurisdiction of the High Court under Articles 226 & 227 of the Constitution of India. The petitioner has vehemently urged that in a case like this where his plea is that the order passed by the Tribunal is wholly without jurisdiction and therefore a nullity the Court ought not to relegate him to the alternative statutory remedy under the Companies Act. The respondent on the other hand has firstly urged that the petitioner’s plea that the proceedings before the NCLT Mumbai Bench are without jurisdiction is contrary to the scheme of Section 241 of the Act and secondly even if the petitioner’s plea that the same are without jurisdiction were to be accepted the petitioner ought to be relegated to the readily available statutory remedy under the Companies Act. It is thus clear that the only issue which this Court needs to determine is as to whether in the light of the petitioner’s plea that the proceedings before the NCLT Mumbai Bench are without jurisdiction having been filed before a Bench whose jurisdiction has been specifically ousted by the proviso to Section 241(2) the writ petition ought to be W.P.(C) 10645 2021 entertained or the petitioner ought to be relegated to the NCLT NCLAT. This aspect has to be considered in the light of the admitted position that some of the affected parties have already approached the NCLAT by way of statutory appeals against the order dated 31.08.2021 passed by the NCLT Mumbai Bench which appeals are stated to be pending consideration. In support of his plea that when the proceedings before a Tribunal are a nullity or are vitiated on account of having been passed without jurisdiction a writ petition under Article 226 would be maintainable despite the availability of a statutory appellate remedy Mr. Nigam has placed heavy reliance on the decision of the Apex Court in Embassy Propertyto draw this Court’s attention to the distinction between an error of jurisdiction vis à vis absence of jurisdiction. Reference may be made to Paras 15 17 18 which read as under: Ltd. v. Foreign 15. …An “error of jurisdiction” was always distinguished from “in excess of jurisdiction” until the advent of the decision rendered by the House of Lords by a majority of 3:2 Ltd. v. Foreign in Anisminic Commission2 AC 147 : 2 WLR 163 . After acknowledging that a confusion had been created by the observations made in R. v. Governor of Brixton Prison ex p Armah3 WLR 828 to the effect that if a Tribunal has jurisdiction to go right it has jurisdiction to go wrong it was held in Anisminic2 AC 147 :2 WLR 163 that the real question was not whether an authority made a wrong decision but whether they enquired into and decided a matter which they had no right to consider. 16. x x x W.P.(C) 10645 2021 law on 17. But Racal In re3 WLR 181made a distinction between courts of the one hand and administrative tribunal administrative authority on the other and held that insofar as courts of law are concerned the subtle distinction between errors of law that went to jurisdiction and errors of law that did not would still survive if the decisions of such courts are declared by the statute to be final and Ltd. v. Foreign Compensation with Anisminic2 AC 147 :2 WLR 163but another was born with Racal In re3 WLR 181 . This could be seen from the after effects of Anisminic2 AC 147 : 1969) 2 WLR 163 . 2 AC 147 : 1969) 2 WLR 163had its own quota of problems. Prof. Wade as pointed out in R. v. Lord President of the Privy Council ex p Page 1993 AC 682 :3 WLR 1112seems to have opined that the true effect of Anisminic was still in doubt. People like Sir John Laws quoted by Prof. Paul Craig and which was extracted in the decision in R.v. Investigatory Powers Tribunal 2019 UKSC 22 :2 WLR 1219 seems to have opined that once the jurisdictional and non jurisdictional distinction between errors was discarded there was no longer any need for the ultra vires principle and that ultra vires is in truth a fig leaf which has enabled the courts to intervene in decisions without an assertion of judicial power which too nakedly confronts the established authority of the Executive or other public bodies. According to Sir John Laws Anisminic 2 AC 147 : 1969) 2 WLR 163has produced the historical irony that with all its emphasis on nullity it nevertheless erected the legal milestone which pointed jurisprudence in which the concept of voidness and the ultra vires doctrine have become redundant. In R. 2019 UKSC 22 : 2 WLR 1219 the UK towards a public W.P.(C) 10645 2021 the effect:“84. … Supreme Court also quoted the editors of De Smith s Judicial „The distinction between Review to jurisdictional and non jurisdictional error is ultimately based upon foundations of sand. Much of the superstructure has already crumbled. What remains is likely quickly to fall away as the courts rightly insist that all administrative action should be simply lawful whether or not jurisdictionally lawful.‟” WLR p. 1251 para 84)] 18. Interestingly just four days before the House of Lords in Anisminic2 AC 147 : 1969) 2 WLR 163 (on 17 12 1968) an identical view was taken by a three member Bench of this Court in Official Trustee v. Sachindra Nath Chatterjee3 SCR 92 : AIR 1969 SC 823] approving the view taken by the Full Bench of the Calcutta High Court in Hriday Nath Roy v. Ram Chandra BarnaSarma48 Cal 138] . It was held therein that : 3 SCR 92 : AIR 1969 SC 823] AIR p. 828 para 15) “15. … before a court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for”. Trustee v. Sachindra caseThis Court also pointed out that it is not sufficient that it has some jurisdiction in relation to the subject matter of the suit but its jurisdiction must include the power to hear and decide the questions at issue andthe power to grant the relief asked for. This decision in Official Trustee3 SCR 92 : AIR in a recent decision 1969 SC 823] was W.P.(C) 10645 2021 in Iffco Ltd. v. Bhadra Products2 SCC 534 :2 SCC208] quite Ltd. v. Foreign Compensation Commission 2 AC 147 :2 WLR 163and its followers.” of Anisminicwherein the High Court of Calcutta observed as under: “38. As such a combined reading of the aforesaid propositions as laid down in the various judgments boil down to the ratio that although a wrongful exercise of available jurisdiction would not be sufficient to invoke the High Court’s jurisdiction under Article 226 of the Constitution the ground of absence of jurisdiction could trigger such invocation. Hence in view of the nature of challenge involved in the present writ petition the same is maintainable in law.” 32. The dictum of these judgments only reiterates the well settled proposition that the mere existence of an alternate remedy does not by itself bar the High Court from exercising its writ jurisdiction. The power of judicial review with which the High Court is vested under Article 226 of the Constitution cannot be taken away merely because an alternative statutory remedy of appeal is available. However it cannot be denied that the power of the High Court to entertain a writ petition under Article 226 even when an alternative statutory remedy is available is ultimately only discretionary and therefore it is for the High Court to consider whether in the facts of the case a party must be relegated to the available statutory remedy. There can be no dispute with the proposition urged by the petitioner that one of the W.P.(C) 10645 2021 factors which the High Court will consider while exercising its discretion to entertain a writ petition would be whether the order passed by the Tribunal was without jurisdiction or was merely a case of an error of jurisdiction. In the present case the only basis for the petitioner to approach this Court is that under the proviso to Section 241(2) it is only the Principal Bench of NCLT at Delhi which could entertain the petition preferred by the Central Government and therefore the very filing of the petition before the NCLT Mumbai Bench and the passing of any order by the said Bench being coram non judice was a nullity. The petitioner has however not denied the fact that two company appeals being Company AppealNos. 110 & 1121 assailing the very same impugned order passed by the NCLT Mumbai Bench filed by aggrieved parties forming part of the same group are already pending adjudication before the NCLAT. There is also no denial that the Companies Act is a complete code in itself as also that the NCLT and NCLAT are specialized Tribunals created by the statute for dealing with issues arising under the Companies Act. The petitioner’s primary plea before this Court is that in view of the proviso to Section 241(2) of the Companies Act the NCLT Mumbai did not have the jurisdiction to entertain the petition and therefore the proceedings before it and all orders passed by the said Bench are a nullity. The respondents have vehemently denied this position and have contended that only the Mumbai Bench had the necessary jurisdiction. The conflicting stands taken by the parties will depend only on the interpretation of the proviso to Section 241(2) and thus it is evident that the petitioner is ultimately seeking to urge that a provision of the Companies Act is required to be read in a particular manner. This aspect in my view can be and ought to be considered by the W.P.(C) 10645 2021 forums of NCLT NCLAT created under the Companies Act for dealing with issues arising under the said Act. Even otherwise the petitioner has given absolutely no justification as to why he cannot approach these specialized forums created for dealing with the issues arising under the Companies Act. In this regard reference may also be to the decision of the High Court of Madras in Church of South India Associationrelied upon by the respondent wherein the Madras High Court while dealing with a challenge to an order passed by the NCLT Chennai had after noticing that an efficacious alternate remedy was available to the petitioner therein by approaching the NCLT and NCLAT created under the Companies Act declined to entertain the writ petition. I have also considered the decision of the Coordinate Bench in Venus Recruitersand find that the same does not in any manner forward the case of the petitioner. In the said case the Court was not dealing with a position like the present case where some of the aggrieved parties have already approached the concerned Appellate Tribunal assailing the same impugned order. More so in the said case the Court was dealing with the question as to whether the NCLT would have the jurisdiction to deal with questions that have arisen after the resolution plan already stood approved by the Tribunal. This is not the position in the present case where the petitioner’s plea is that the very filing of the petition by the respondent no.1 was without application of mind and contrary to the provisions of the Companies Act and therefore the Mumbai Bench of the NCLT did not have any jurisdiction to entertain the petition. These aspects can certainly be appropriately examined by the NCLT and the NCLAT. It can also not be said that the remedy before these Tribunals is W.P.(C) 10645 2021 not efficacious. In fact the NCLAT is already actively considering the validity of the impugned orders and letter and therefore there is no reason as to why the petitioner ought also not to approach the same forum. I am therefore of the considered view that the petitioner has not been able to make out any case compelling this Court to exercise its extraordinary writ jurisdiction when adequate statutory remedies are available to him. 36. Though Mr. Nigam has vehemently relied upon the proviso to Section 241(2) of the Act to contend that the petition before the Mumbai Bench of NCLT was without jurisdiction as the jurisdiction of the said Bench was clearly ousted by the said proviso I am of the view that once I do not deem it appropriate to exercise my extraordinary writ jurisdiction to entertain the present petition any interpretation of this provision one way or the other is likely to prejudice the case of the parties before the appropriate forum to which in my view they should be relegated to. I am therefore refraining from expressing any opinion as to whether in the light of the newly added proviso to Section 241(2) the respondent no.1 could have approached the NCLT Mumbai Bench. For the same reasons I do not deem it appropriate to examine the petitioner’s plea that the issuance of the impugned order and letter by the respondent no.1 are even otherwise vitiated by non application of mind or that the condition precedent for invocation of Section 241(2) of the Act which requires the Central Government to come to an opinion that the affairs of the company “are being conducted in a manner prejudicial to public interest” was not satisfied. 37. Before I conclude I may observe that the petitioner has by relying on the decisions in Navinchandra N. Majithia vs. State of Maharashtra and Ors.7 SCC 740 and M s Sterling Agro Industries Ltd. vs. Union of W.P.(C) 10645 2021 India & Ors. ILRVI Delhi 729 urged that this Court has territorial jurisdiction to deal with the matter as the impugned order dated 08.07.2021 and letter dated 16.07.2021 were issued by the respondent no.1 at Delhi. However in view of my conclusion that the present petition is not maintainable on account of the alternative statutory remedies available to the petitioner and not for want of territorial jurisdiction I do not deem it necessary to delve into this aspect. 38. For the aforesaid reasons the writ petition along with the pending application is dismissed. Needless to observe that this Court has not gone into the merits of the petitioner’s challenge to the impugned orders and letter and therefore the petitioner will be at liberty to raise all grounds raised in the present petition either before the NCLT or NCLAT which he may choose to approach. REKHA PALLI) JUDGE OCTOBER 22 2021 W.P.(C) 10645 2021

Gurunanak Industries Faridabad V/S Amar Singh (D) Thru Lrs

Where a partner dies and the surviving partners continue carrying the business of the firm without settling the accounts of the deceased partner, his legal representative has a right to the subsequent profits. [Case Brief] Gurunanak Industries Faridabad V/S Amar Singh (D) Thru Lrs Four persons, including two brothers, Swaran Singh and Amar Singh, both of whom have since died and are represented by their legal representatives, had constituted a partnership firm – Guru Nanak Industries, on 2nd May 1978.On 6th May 1981, a fresh partnership deed was executed between Swaran Singh and Amar Singh as the other two partners had resigned.With effect from 1st April 1983, profit and loss sharing ratio was altered between Swaran Singh and Amar Singh to 60:40 respectively.On 29th March 1989, Guru Nanak Industries and Swaran Singh filed a civil suit against Amar Singh claiming that the latter had retired from partnership with effect from 24thAugust 1988 and had voluntarily accepted payment of his share capital of Rs.89, 277.11p.Amar Singh had agreed that he would not be entitled to profits and liabilities of the firm. In support, reliance was placed upon intimation dated 5thOctober 1988 sent by Amar Singh to Bank of India, the bankers of the partnership firm. It was stated that Amar Singh was paid amounts of Rs.1,00,000/- and Rs.50,000/- by way of pay orders and another amount of Rs.1,00,000/- in cash for which he had executed receipt dated 17th October 1988.Amar Singh contested the suit and on 29thApril 1989, filed a suit for dissolution of partnership and rendition of accounts. The plea and contention of Amar Singh was that he had never resigned.The trial court dismissed the suit filed by Amar Singh and partly decreed the suit filed by Guru Nanak Industries and Swaran Singh primarily by relying upon letter dated 24th August 1988 and also the receipt dated 17th October 1988 observing that there is discrepancy in the two versions given by Amar Singh, the first version being that his signature on the letter dated 17th October 1988 was forged and the second version being that the receipt had been manipulated by adding the last sentence. ISSUE BEFORE THE COURT: Whether the Plaintiff was entitled to gain any profit from the firm? RATIO OF THE COURT Two appeals preferred by Amar Singh were accepted by the first appellate court observing that the receipt dated 17th October 1988 was certainly manipulated by adding the last sentence. Letter dated 24th August 1988, in fact, supported the case of Amar Singh that he had not resigned as the letter was signed by both Amar Singh and Swaran Singh, wherein Amar Singh has been described as a partner. Amar Singh was held to be entitled to the prayer for partition of movable and immovable property wherein 40% belonged to Amar Singh and 60% belonged to Swaran Singh. Amar Singh would also be entitled to interest @ 9% per annum.The primary claim and submission of the appellants is that Amar Singh had resigned as a partner and, therefore, in terms of clause (10) of the partnership deed (Exhibit P-3) dated 6 th May 1981, he would be entitled to only the capital standing in his credit in the books of accounts. However, the argument was rejected as in the present case there were only two partners and there is overwhelming evidence on record that Amar Singh had not resigned as a partner. On the other hand, there was mutual understanding and agreement that the partnership firm would be dissolved.In case of dissolution, accounts have to be settled and distributed as per the mode prescribed in Section 48 of the Partnership Act. When the partners agree to dissolve a partnership, it is a case of dissolution and not retirement.The court held that there being only two partners, the partnership firm could not have continued to carry on business as the firm. A partnership firm must have at least two partners. When there are only two partners and one has agreed to retire, then the retirement amounts to dissolution of the firm.The court held that the case old and Swaran Singh and Amar Singh have expired. The evidences revealed that the Amar Singh has set his own business. Therefore, court gave one more opportunity to the parties to appear before the Supreme Court Mediation and Conciliation Centre to explore possibility of a settlement. However, in case of no settlement within a period of three months, the matter would proceed before the trial court for passing of the final decree, in accordance with law. DECISION HELD BY COURT: Court dismissed the appeals and upheld the judgment and decree dated 24thSeptember 2004 passed by the Additional District Judge, Faridabad and sustained by the High Court, except that the date of dissolution of the firm would be taken as 24thAugust 1988 and not 31st of March 1989.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 6659 6660 OF 2010 GURU NANAK INDUSTRIES FARIDABAD AND ANOTHER VERSUS AMAR SINGHTHROUGH LRS JUDGMENT SANJIV KHANNA J Four persons including two brothers Swaran Singh and Amar Singh both of whom have since died and are represented by their legal representatives had constituted a partnership firm Guru Nanak Industries on 2nd May 1978. On 6th May 1981 a fresh partnership deed was executed between Swaran Singh and Amar Singh as the other two partners had resigned. The partnership firm was primarily in the business of manufacture and sale of print machinery for paper polythene etc. Initially profits and losses were to be divided in the ratio of 69:31 between Swaran Singh and Amar Singh. However with effect from 1st April 1983 profit and Civil Appeal Nos. 6659 66610 loss sharing ratio was altered between Swaran Singh and Amar Singh to 60:40 respectively On 29th March 1989 Guru Nanak Industries and Swaran Singh filed a civil suit against Amar Singh claiming that the latter had retired from partnership with effect from 24th August 1988 and had voluntarily accepted payment of his share capital of Rs.89 277.11p. In addition he had been advanced loan from the funds of the partnership firm on the same date. Amar Singh had agreed that he would not be entitled to profits and liabilities of the firm. In support reliance was placed upon intimation dated 5 th October 1988 sent by Amar Singh to Bank of India the bankers of the partnership firm. It was stated that Amar Singh was paid amounts of Rs.1 00 000 and Rs.50 000 by way of pay orders and another amount of Rs.1 00 000 in cash for which he had executed receipt dated 17th October 1988as a partner which letter was also signed by Swaran Singh as a partner stating that the dispute between the partners had been settled and the bank may allow operation of the account. Amar Singh had pleaded that the receipt dated 17th October 1988 is forged and has been manipulated as he had signed and given papers to Swaran Singh The trial court dismissed the suit filed by Amar Singh and partly decreed the suit filed by Guru Nanak Industries and Swaran Singh primarily by relying upon letter dated 24th August 1988was forged and the second version being that the receipt had been manipulated by adding the Two appeals preferred by Amar Singh were accepted by the first appellate court observing that the receipt dated 17th October 1988 Civil Appeal Nos. 6659 66610 was certainly manipulated by adding the last sentence. Letter dated 24th August 1988 in fact supported the case of Amar Singh that he had not resigned as the letter was signed by both Amar Singh and Swaran Singh wherein Amar Singh has been described as a partner. Official records in the Sales Tax Department and Income Tax Department also support the case of Amar Singh that the partnership firm was not dissolved on 24th August 1988. Accordingly Amar Singh was held to be entitled to the prayer for partition of movable and immovable property wherein 40% belonged to Amar Singh and 60% belonged to Swaran Singh. The accounts would be rendered and settled as on the date of institution of the suit for dissolution of partnership that is 29th April 1989. Amar Singh would also be entitled to interest @ 9% per annum Swaran Singh who had died when the civil suits were pending before the trial court and represented by his widow filed two appeals before the Punjab and Haryana High Court which have been dismissed by the impugned judgment dated 18th May 2009 Having heard counsel for the parties and having perused the relevant documents and oral evidence we are not inclined to interfere with the findings recorded by the first appellate court Civil Appeal Nos. 6659 66610 which have been affirmed by the High Court as they are born out from the records. Exhibit P 5 a letter dated 24 th August 1988 was individually signed by both Amar Singh and Swaran Singh clearly stating that they were partners of Guru Nanak Industries. By this letter Amar Singh had requested the bank to start operation of the account of the partnership firm stating that the disputes between the partners had been settled. The subsequent letter dated 5th October 1988 relied by the appellants and written by Amar Singh states that there has been mutual understanding and agreement between him and Swaran Singh and as a result he had left the firm with effect from 24th August 1988 and therefore he would not be responsible in the event of any loan being granted after 24 th August 1988. This letter also records that Amar Singh ‘had to completely withdraw his share and accounts’ The receipt Exhibit P 9 dated 17th October 1988 which is a disputed document reads as under “Received with thanks a sum of Rs.1 00 000 by cash from S. Swaran Singh Mg Partner of M s. Guru Nanak Industries Plot No. C.P. 6&7 N.H.5 Rly. Road Faridabads o. Swaran Singhin his cross examination has accepted that the firm was the owner of plot Nos. CP 6&7 NH 5 Faridabad and Plot No.8 Sector 5 measuring 4098 sq.yards. He could not recollect the machinery as on date of dissolution that is 24th August 1988. He could not deny the suggestion that at the time of dissolution the value of the factory plots was Rs.25 00 000 each or that the goodwill of the firm was at least Rs.10 00 000 He did not know whether his father had encashed FDRs of Rs.77 000 in the name of the partnership firm. However he accepted as correct that the value of the machinery owned by the firm on the date of dissolution could be Rs.17 00 000 though he was not sure. Similarly he could not answer whether the value of the finished goods or furniture and fixtures on the date of dissolution was Rs.17 00 000 and Rs.17 50 000 respectively and that stock in hand was Rs.3 60 000 Civil Appeal Nos. 6659 66610 The primary claim and submission of the appellants is that Amar Singh had resigned as a partner and therefore in terms of clause 10) of the partnership deeddated 6th May 1981 he would be entitled to only the capital standing in his credit in the books of accounts. However the argument has to be rejected as in the present case there were only two partners and there is overwhelming evidence on record that Amar Singh had not resigned as a partner. On the other hand there was mutual understanding and agreement that the partnership firm would be dissolved. This is apparent from even the version put forward by Swaran Singh and deposed to by his son Sukhdev Singh3 SCC 445]. In the present case there being only two partners the partnership firm could not have continued to carry on business as the firm. A partnership firm must have at least two partners. When there are only two partners and one has agreed to retire then the retirement amounts to dissolution of the firm2 SCC 724 Therefore in view of the aforesaid discussion we dismiss the appeals and uphold the judgment and decree dated 24th September 2004 passed by the Additional District Judge Faridabad and sustained by the High Court except that the date of dissolution of the firm would be taken as 24th August 1988 and not 31st of March 1989 Civil Appeal Nos. 6659 66610 Counsel for the appellants at the time of arguments had expressed desire of the appellants to settle the matter with the respondents legal heirs of the Amar Singh. He had prayed for four weeks’ time. It appears that settlement has not been possible The case is rather old and Swaran Singh and Amar Singh have expired. Primarily it is a money matter where the accounts have to be settled and payment etc. has to be made by the legal representatives of Swaran Singh. The case record also reveals that Amar Singh had set up his own business in September October 1988 in the name of Guru Nanak Mechanical Industries similar to the name of the partnership firm. Swaran Singh had not objected. We would therefore give one more opportunity to the parties to appear before the Supreme Court Mediation and Conciliation Centre to explore possibility of a settlement. However in case of no settlement within a period of three months the matter would proceed before the trial court for passing of the final decree in accordance with law Civil Appeal Nos. 6659 66610 (SANJIV KHANNA NEW DELHI MAY 26 2020 Civil Appeal Nos. 6659 66610 Page 1

A catena of judgments was issued by the Apex and High courts regarding grant or refusal of pre-arrest or anticipatory bail: High Court of Meghalaya

The Court cannot lose sight of the fact that such a piece of information even at this point of time would cast doubt on the accuracy of the actual age of the victim girl. Such was held by The Hon’ble High Court of Meghalaya before The Hon’ble Mr. Justice W. Diengdoh in the matter of Shri. Akramuz Zaman Vs. State of Meghalaya & 2 Ors [AB. No. 12 of 2021].  The facts of the case were associated with the applicant praying under section 438 Cr.P.C for pre-arrest bail in connection with Tura Women P.S Case No. 46(06)2021 under Section 3 (a)/4 of the POCSO Act. It was alleged by the Informant that the applicant had sexually assaulted one minor girl. On the other hand, the applicant stated that he was in a mutual relationship with the alleged victim girl for a few months and this relationship was accepted by the parents of the said victim girl. It was alleged by the applicant that the victim was not a minor and her birth certificates and other government-issued certificates stated her d.o.b to be 07.01.2002. At the time of filing the FIR, she was more than 19 years and therefore she’s an adult and there was no bar for her to enter into a marital relationship on her own accord.  The counsel, Mr. A.H. Hazarika representing contended that the father and family of the victim had no objection to the relationship between the victim and the accused/applicant thereby, the said complaint is not correct. Moreover, it was submitted by the applicant’s counsel that the alleged victim was pregnant for about 3 months, the family of the girl were not objecting to the said union instead only some NGOs were against inter-caste marriage and were objecting to the same. The AAG, Mr. B. Bhattacharjee submitted that the documents annexed by the applicant relating to the age of the victim girl had to be carefully scrutinised in the factual and circumstantial context, inasmuch as, such documents should not be questionable.  The Hon’ble Court considering all the facts and submissions stated that “In view of the above, this Court has no option but to reject this instant application under the facts and circumstances of the case and the same is found not tenable at this juncture. The interim bail granted is hereby discharged. This matter is hereby disposed of accordingly.”

HIGH COURT OF MEGHALAYA AT SHILLONG Serial No. 01 Regular List AB. No. 121 Date of Decision: 21.10.2021 Shri. Akramuz Zaman State of Meghalaya & 2 Ors. Hon’ble Mr. Justice W. Diengdoh Judge For the Petitioner Appellant(s) For the Respondent(s) i) Whether approved for reporting in Law journals etc.: Mr. A.H. Hazarika Adv. Mr. B. Bhattacharjee AAG. with Ms. R. Colney GA. Ms. Z.E. Nongkynrih GA. ii) Whether approved for publication in press: This is an application u s 438 Cr.P.C preferred by the applicant herein with a prayer to grant pre arrest bail in connection with Tura Women P.S Case No. 46(06)2021 under Section 34 of the POCSO Act. The applicant in this application has referred to the FIR dated 14.06.2021 wherein the Informant therein has made an allegation that the applicant has sexually assaulted one minor girl on 12.06.2021 at about 2:30 PM at Matramchigre village West Garo Hills District. The version of the applicant is that he is in love with the alleged victim girl for a few months and this relationship was accepted by the parents of the said victim girl and thereafter since the month of June 2021 they had stayed together as husband and wife. The applicant has also stated that the victim girl is not a minor as alleged but as per the birth certificate her date of birth is 07.01.2002. This is also reflected in her school certificate Adhaar card Pan card and other vital documents which shows that as on the date of filing of the said FIR she is more than 19 years of age and is therefore an adult and there is no bar for her to enter into a marital relationship on her own accord. However since the marriage tie between the applicant and the alleged victim girl was not agreeable by one of her relative and a few local Non governmental Organizationsthe Headmaster of the local school in which the victim girl was studying was forced to issue a school certificate to show the date of birth of the victim girl as 07.01.2005. In view of the fact that the police had come to his residence in search of him he is therefore apprehensive of being arrested in connection with the said Tura Women Police Case No. 46(06) 2021. Hence this application. 7. Mr. A.H. Hazarika learned counsel appearing on behalf of the applicant has submitted that the FIR was filed by a third person who has forcibly taken the signature of the father of the alleged victim when in fact the father and family of the victim has no objection to the relationship between the victim and the accused applicant herein and as such the said complaint is not correct. Another contention raised by Mr. Hazarika is that the documents which are in the possession of the victim girl Viz the birth certificate the Adhaar card etc. all recorded the date of birth of the said victim girl as 07.01.2002 however the one which was in the possession of the I O particularly the Transfer Certificate from the School which shows the date of birth of the victim girl as 07.01.2005 is not the correct one since it was procured only by forcing the Headmaster to issue the same. Again learned counsel for the applicant has submitted that the said victim girl is living with the accused applicant and is now pregnant for about three months and as stated earlier the family of the girl are not objecting to the said union instead only some NGOs are against inter caste marriage and are objecting to the same. It is finally submitted that the applicant may be allowed to go on anticipatory bail with any conditions and that he will fully co operate with the I O if the liberty prayed for is granted. 11. Mr. B. Bhattacharjee learned AAG seeking to contradict the submission and contention of the learned counsel for the applicant has submitted that this matter is to be considered from many aspects some of which are factual in nature though the same are yet to be proved in due course. However what has to be prima facie establish is whether the victim girl is a minor or major at the time of the incident. 12. The learned AAG has also submitted that the documents annexed by the applicant in this instant application particularly those relating to the age of the victim girl has to be carefully scrutinised in the factual and circumstantial context inasmuch as such documents should not be questionable. In this regard the learned AAG has submitted that the documents annexed by the applicant in his application has to be such that they can be taken as authentic since preliminary evidence collected by the I O shows that there are also some documents pertaining to the age to the victim girl which are contradictory to those relied upon by the applicant. Example is cited to the Adhaar card submitted by the applicant which shows that it was applied after the FIR was filed. There are also two Adhaar cards of the victim girl the date of birth on the one produced by the applicant indicate the same as 07.01.2002 while the one seized by the I O again in the name of the victim girl shows the date of birth as 07.01.2005. 14. Yet again reference is made to the affidavit sworn in by the victim girl on 24.06.2021 wherein she had claimed to have converted to Islam and that she is 19 years of age based on the certificate of some doctor but nowhere was any reliance or reference made to the documents such as Adhaar card or the birth certificate. 15. Another document seized by the I O is the Marriage Certificate of the accused applicant and the victim girl which was purportedly issued by the Kazi Moulana Md. Omar Ali on 25.06.2021 when in fact the said Md. Omar Ali was in jail in connection with some other case and as such the said document is also suspect. In the light of the submission made the learned AAG has reiterated that there is a bigger conspiracy here involving the accused applicant and therefore this application is liable to be rejected at the threshold. 17. Having heard the learned counsels for the parties and on perusal of the case dairy duly produced before this Court what is apparent is that apart from the facts related above there are two reports involved with the applicant herein the first dated 14.06.2021 is a complaint of him having sexually assaulted the victim girl the daughter of the Complainant and the second is one dated 15.06.2021 which is a report again filed by the father of the victim girl which is a missing report informing that on the night of the 14th June 2021 the said victim girl was found missing. Investigation as well as admission of the applicant herein suggests that the said victim girl is nor living with the applicant but could not be traced by the I O till date. 18. Another fact that surfaced from these proceedings is that the applicant has been absconding since the time the first FIR was filed and he could not be found at his place of residence prompting the I O to report that he has been absconding till date. 19. As to the contention of the learned AAG that the documents produced by the applicant as regard the age proof of the victim girl are procured fraudulently and that the one procured by the I O that is the Transfer Certificate from the School of the victim girl is the one with the correct date of birth is indeed a matter of evidence at the time of the trial. However this Court cannot lose sight of the fact that such piece of information even at this point of time would cast doubt on the veracity of the actual age of the victim 20. Yet another aspect of the matter is the fact that the victim girl in her statement before the police has stated that she had been sexually assaulted by the applicant accused about three months ago. As to the basic principles applicable to cases of grant or refusal of pre arrest or anticipatory bail the Apex Court and other High Courts in a catena of judgments has time and again reiterated and restated the fact that certain factors ought to be considered by the Court in this exercise some of which includes the following: i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence nature and gravity of the accusation severity of the punishment in the event of conviction iv) danger of the accused absconding or fleeing if released on bail character behavior means position and standing of the accused likelihood of the offence being repeated vii) reasonable apprehension of the witnesses being influenced viii) danger of course of justice being thwarted by grant of bail. In a recent case of Sanatan Pandey v. State of Uttar Pradesh and Anr the Hon’ble Supreme Court in Special Leave PetitionNo. 7358 of 2021 vide Order dated 07.10.2021 has opined that . “The Court shall not come to the rescue or help the accused who is not cooperating the investigating agency and absconding…” 23. It is to be noted that vide order dated 24.09.2021 this Court has granted interim bail to the applicant provided he co operate with the I O but from the records there is no indication that the applicant has appeared before the I O which can be presumed that he is still absconding. In view of the above this Court has no option but to reject this instant application under the facts and circumstances of the case and the same is found not tenable at this juncture. 25. The interim bail granted is hereby discharged. 26. This matter is hereby disposed of accordingly. No cost. 27. Registry is directed to return the case dairy. Judge “D. Nary PS”

Cancellation of bail on re-appreciation of facts would amount to review of earlier order: Himachal Pradesh High Court

Cancellation of bail for breach of a condition imposed, at the time of granting bail, does not amount to review or modification of earlier order granting the bail. The single-judge bench consisting of J. Vivek Singh Thakur adjudged on the matters of breach of bail conditions and the power of Trial Court in the case of Virender Kumar v. State of H.P. &Anr. [Cr. Revision No. 161 of 2019].   The Petitioner was accused and registered in Women Police Station Mandi under Section 498-A, 323, 506 and 34 of the Indian Penal Code. He later preferred an application under Section 438 Crpc wherein he was directed to be enlarged on bail on furnishing personal and surety bonds and was also directed to surrender his passport before the Investigating Officer. These orders were made absolute by the Sessions Judge and the Petitioner was not allowed to leave the country. His previous application for release of passport was dismissed by the trial court on the grounds that such a request should have been made to the Sessions Judge and the trial court now, did not have the power to dilute the conditions imposed at the time of granting bail. The counsel for the petitioner argued that for earning a livelihood, the petitioner was required to go out of India frequently since he was in Merchant Navy. That his fundamental right to earn a livelihood (Article 21) had been affected and he should be given his passport as held in Gian Singh v. State of Rajasthan [(1999) 5 SCC 694]. The High Court held that based on various previous cases, such as Sunil K. Sinha v. State of Bihar [AIR 1999 SC 1533] and Hazari Lal Gupta v. Rameshwar Prasad and Anr. [AIR 1972 SC 494], the Court was empowered to impose such restrictions and the release of passport so surrendered depended upon the facts and circumstances of each case on its own merit by “balancing the individual interest of accused and the complainant and also the larger interest of the public to ensure the presence of an accused before the Court during the trial”. The HC observed that the 3rd condition of bail enabled the petitioner to seek the permission of the Investigating Officer or Court to leave the country and the natural corollary thereof would be the entitlement of the petitioner to have his passport released. Upon the issue of the power of the Trial Court, the HC held that “condition No.3 may be taken as a condition empowering the trial Court to consider the case of the petitioner for permission to leave India, but, here also, it is not clear that ‘Court’ referred in the said condition means the Court granting the bail or also includes the trial Court. Therefore, the trial Court has rightly rejected the application filed by petitioner for alteration of condition imposed in order granting the bail to him”. The HC directed the petitioner to seek the Sessions Court for the release of passport and stated that “Cancellation of bail on re-appreciation of same facts by the same Court would amount to review of earlier order, but, cancellation of bail for breach of condition imposed, at the time of granting bail, does not amount to review or modification of earlier order granting the bail, rather it would be in consonance with and in continuation to the previous order wherein cancellation of bail on breach of condition is inherent, for the reason that bail is granted subject to certain condition(s), breach whereof would entail cancellation of the bail Similarly, modification of condition(s) imposed at the time of granting bail, after taking into consideration new, additional or other facts, not considered earlier, also does not amount to review of previous order, particularly when order itself contains the condition that conditions, so imposed, may be varied, modified and/or altered suitably as and when it would be deemed fit by the Court in the facts and circumstances of the case”.  The petition has been disposed of. Click here to read the judgement

Hig h C o urt of H.P on 29 11 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Revision No. 1619 Judgment reserved on 23 rd Sept.2020 Date of Decision 27 th November 2020________________________________________________________Virender Kumar…PetitionerVersusState of H.P. & another….RespondentsCoramThe Hon’ble Mr. Justice Vivek Singh Thakur J. Whether approved for reporting 1 Yes______________________________________________________________For the Petitioner: Mr. Sahil Malhotra Advocatethrough Video Conferencing.For the Respondents: Mr. Desh Raj Thakur AdditionalAdvocate General for respondentNo.1 and Mr.Neeraj K. Sharma Advocate for respondent No.2 through Video Conferencing. __________________________________________________________________Vivek Singh Thakur J. Petitioner has approached this Court for modificationof order dated 12.9.2019 passed by learned Sessions Judge Mandi in Bail Application No. 1819 titled Virender Kumar1 Whether Reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 29 11 HCHP 2vs. State of H.P. whereby condition to surrender the passport bypetitioner at the time of granting the bail has been imposed uponthe petitioner. Petitioner is also praying for direction toInvestigating Officer to return his passport so as to enable him tovisit abroad and earn his livelihood.2 Petitioner is an accused in a case FIR No. 37 dated9.9.2019 registered in Police Station Women Police StationMandi at Bhiuli under Sections 498 A 323 506 and 34 of IndianPenal Code.3 On 12.9.2019 in an application preferred bypetitioner under Section 438 of Cr.P.C. he in the event of arrest was directed to be enlarged on bail on furnishing personal andsurety bonds and was also directed to surrender his passportbefore the Investigating Officer. 4. On 25.9.2019 interim order dated 12.9.2019 wasmade absolute subject to further conditions imposed bySessions Judge Mandi. Therefore order dated 12.9.2019 andconditions imposed therein have now merged in order dated25.9.2019.5. On 25.9.2019 amongst other conditions imposed there was condition No.3 whereby petitioner was directed that Hig h C o urt of H.P on 29 11 HCHP 3he shall not leave the country without prior permission ofInvestigating Officer Court. 6 Though petitioner has prayed for modification oforder dated 12.9.2019 instead of 25.9.2019 however ignoringthis technicality present petition is being considered to havebeen filed for modification of order dated 25.9.2019 whereinorder dated 12.9.2019 has merged. 7 Earlier petitioner had also approached the trial Courti.e. Additional Chief Judicial Magistrate Court No.1 Mandi forrelease of his passport. Vide order dated 16.1.2020 hisapplication was dismissed by the trial Court on the ground thatpetitioner was admitted to bail by imposing condition ofsurrendering the passport by learned Sessions Judge Mandi andtherefore petitioner should have placed such an application inthe Court of learned Sessions Judge Mandi as the trial Court wasnot having the power to dilute the condition imposed at the timeof granting bail to petitioner by learned Sessions Judge.8 Learned counsel for petitioner referringpronouncement of the Apex Court in case Abdul Basit @ Rajuand others. vs. Mohd. Abdul Kadir Chaudhary andanother reported infor an amount as considered by Courtjust and reasonable taking into consideration the entire facts andcircumstances of case and petitioner may be directed to ensurehis presence on the dates as and when his presence isindispensable during trial with further direction to him to ensurehis representation on each and every date of hearing through an Hig h C o urt of H.P on 29 11 HCHP 8Advocate and failure to ensure that would definitely be resultedinto cancellation of bail for breach of condition imposed uponpetitioner at the time of granting the bail.15 Plea raised on behalf of petitioner that SessionsCourt is not empowered to review or recall its earlier orderspassed on 12.9.2019 and 25.9.2019 is not applicable in presentcase for the reason that in order dated 25.9.2019 itself there iscondition that applicant shall not leave the country without priorpermission of Investigating Officer Court entitling the petitionerto file an appropriate application before the same Court to seekpermission to leave the country and therefore allowing ordisallowing such application by learned Sessions Court cannot betreated as modification variation recalling or review of earlierorders passed by Court at any stretch of imagination rather itwould be in continuation and in consonance with earlier orderspassed by the said Court. 16 Cancellation of bail on re appreciation of same factsby the same Court would amount to review of earlier order but cancellation of bail for breach of condition imposed at the timeof granting bail does not amount to review or modification ofearlier order grating the bail rather it would be in consonancewith and in continuation to the previous order wherein Hig h C o urt of H.P on 29 11 HCHP 9cancellation of bail on breach of condition is inherent for thereason that bail is granted subject to certain condition(s) breachwhereof would entail cancellation of the bail. At the time ofgranting bail normally a condition is imposed and I would saythat it is always desirous to impose such condition that in case ofviolation of breach of any condition imposed upon the accused atthe time of granting the bail his bail shall be liable to becancelled and in such eventuality prosecution should be grantedliberty to approach the competent Court of law for cancellation ofbail in accordance with law. It is not modification or review of theorder but an order consequential to the previous order. 17. Similarly modification of condition(s) imposed at thetime of granting bail after taking into consideration new additional or other facts not considered earlier also does notamount to review of previous order particularly when order itselfcontains the condition that conditions so imposed may bevaried modified and or altered suitably as and when it would bedeemed fit by the Court in the facts and circumstances of thecase.18. Normally at the time of granting confirming the bailby the Sessions Court and or High Court a condition is imposedthat it will be open to prosecution to apply for imposing any such Hig h C o urt of H.P on 29 11 HCHP 10other or further condition on petitioner as deems necessary inthe facts and circumstances of the case and in the interest ofjustice and also that it shall also be open to trial Court to imposeany other or further condition on petitioner as it may deemnecessary in the interest of justice. For such condition imposedat the time of granting the bail the trial Court shall also becompetent to impose any other or further condition on petitionereither suo moto or on request of prosecution includingmodification of condition on the application of accused inchanged circumstances as deemed necessary in the interest ofjustice as in view of specific condition contained in order suchaddition modification or alteration in the condition by the trialCourt shall be consequential extension of order passed by Courtat the time of granting the bail. In present case unfortunately no such condition has been imposed by learned Sessions Judge.To some extent condition No.3 may be taken as a conditionempowering the trial Court to consider the case of petitioner forpermission to leave India but here also it is not clear that‘Court’ referred in the said condition means the Court grantingthe bail or also includes the trial Court. Therefore the trial Courthas rightly rejected the application filed by petitioner foralteration of condition imposed in order granting the bail to him. Hig h C o urt of H.P on 29 11 HCHP 1119. Keeping in view the provisions of Section 362 Cr.P.C. it would be desirous that at the time of granting the bail theCourt should incorporate the condition in bail order itselfempowering the same Court and the trial Court to impose anyother or further condition or alter modify the conditions alreadyimposed on application of prosecution or the accused asdeemed necessary by such Court for ends of justice. Though it isinherent in order however by way of abundant caution it mayalso be specifically incorporated in order granting the bail thatsuch bail shall liable to be cancelled by the competent Court onbreach violation of any condition imposed upon accused at thetime of granting the bail and prosecution should be grantedliberty to approach the competent Court of law in thateventuality for cancellation of bail in accordance with law.20 Release of passport has been opposed bycomplainant wife respondent No.2 by raising various contentionsnarrated in reply and submitted by learned counsel representingher during course of arguments. The said contentions are notdiscussed herein for the reason that this Court is not passing anyorder for release of passport of petitioner at this stage bydirecting the petitioner to approach the same Court which hasimposed the condition to seek permission to leave the country Hig h C o urt of H.P on 29 11 HCHP 12and also for release the passport in case such permission isgranted by the said Court. Release of passport shall precedepermission to leave India. 21. No opinion with respect to merit of rival contentionsraised by parties for seeking and opposing release of passportare being expressed by this Court. 22. In view of aforesaid discussions and in the peculiarfacts and circumstances of the case petitioner is directed toapproach the Sessions Court by filing an appropriate applicationseeking permission to leave the country and also forconsequential relief that in case permission so prayed isgranted to petitioner for release of his passport.23 Parties are at liberty to raise all contentions beforelearned Sessions Judge who after taking into consideration allsuch contentions shall pass an order on its own merits inaccordance with law. Petition stands disposed of in aforesaid terms. November 27 2020 (ms) Judge

Dispute in terms of Section 217 cannot be decided by municipal corporation and need adjudication by a Civil Court: The Supreme Court of India

The Board of Councilors is the competent authority under Section 217 of the Act, to decide any dispute on the issue of misrepresentation or fraudulent statement in the application seeking sanction of building plan, for the purpose of passing an appropriate order to cancel such sanction. The aforesaid has been affirmed by the Supreme Court of India while adjudicating the case of Debabrata Saha v. Serampore Municipality & Ors. [Civil Appeal No. 3657 of 2010] which was decided by a single judge bench comprising Justice Nageswara Rao on 1st September 2021. The facts of the case are as follows. Appellant had purchased the ground floor of the property in dispute. The conveyance relates to the ground floor of the two-storied building admeasuring a covered area of 950 square feet. The Appellant was permitted to use the common stair case, septic tank, open yard, separate water reservoir in common portion common passages, common drain in the ground floor along with roof right. The dispute pertains to the right of Respondent No.3 in making a construction on the roof of the first floor in which he resides. While referring to the deed of conveyance, the High Court held that the Appellant had a right to use the roof of first floor and the roof of proposed second floor. The High Court opined that the dispute raised by the Appellant cannot be decided by the municipality in terms of Section 217 of the Act and it requires adjudication by a civil court. While leaving it open to the parties to approach civil court to redress their grievances, the High Court dismissed the Writ Application filed by the Appellant.

Non Reportable IN THE CIVIL APPELLATE JURISDICTION Civil Appeal No. 36510 Appellant Serampore Municipality & Ors. …. Respondents JUDGMENT L. NAGESWARA RAO J This Appeal is filed against the judgment of the Calcutta High Court by which the Appeal filed by Respondent No.3 was allowed and the Writ Application filed by the Appellant stood dismissed. The Appellant purchased the ground floor of a two storied building situated at 45 2 G.T. Road to consider the representations made by the Appellant on 31.12.2003 and 14.07.2004 within a period of four weeks from the date of communication of the order. In the meeting of the Board held on 14.02.2006 it was decided that the permission for construction on the second floor was obtained by Respondent No.3 on the basis of misrepresentation of facts. Thereafter an order was passed by the Chairman Board of Councilors Serampore Municipality revoking the sanctioned plan in favour of Respondent No.3. Being aggrieved by the municipal authorities in not taking action to demolish the illegal construction which was made pursuant to the revocation of the sanctioned plan the Appellant filed another Writ Petition seeking a direction to the authorities of the municipal corporation to take appropriate action to demolish the 2 | P a g e construction. The said Writ Petition was disposed of by the High Court directing the municipal corporation to initiate proceedings under Section 218 of the West Bengal Municipal Act 1996 for demolition of the illegal construction and to pass a reasoned order after giving a reasonable opportunity to all concerned. By way of implementation of the order of the High Court a letter was issued by the municipal corporation to Respondent No.3 to remove the structure on the second floor. Respondent No.3 filed a Writ Petition challenging cancellation of the building plan by the municipal authorities A learned Single Judge of the High Court disposed of the Writ Petition and relegated Respondent No.3 to an alternate remedy of Appeal. Respondent No.3 filed an Appeal against the order of the learned Single Judge which was allowed by the Division Bench of the Calcutta High Court. Therefore this Appeal. The High Court was of the opinion that the Board of Councilors did not hear the matter and did not take a decision as required under Section 217 of the Act. After perusing the records produced by the Municipal Corporation the High Court found that the Chairman of the Board of Councilors heard the matter on 27.12.2005 in the Municipal Office when the Appellant Respondent No.3 and two other 3 | P a g e gentlemen i.e. Shri Avijit Saha and Shri Amitava Dey were present. The Board of Councilors is the competent authority under Section 217 of the Act to decide any dispute on the issue of misrepresentation or fraudulent statement in the application seeking sanction of building plan for the purpose of passing an appropriate order to cancel such sanction. The decision of the Chairman on 14.02.2006 was held to be without jurisdiction. In consequence thereof the decision dated 14.02.2006 was declared a nullity and set aside by the High Court. While referring to the deed of conveyance the High Court held that the Appellant had a right to use the roof of first floor and the roof of proposed second floor. The High Court opined that the dispute raised by the Appellant cannot be decided by the municipality in terms of Section 217 of the Act and it requires adjudication by a civil court. While leaving it open to the parties to approach civil court to redress their grievances the High Court dismissed the Writ Application filed by the Appellant. 4. We have heard Mr. S.K. Bhattacharya learned counsel appearing for the Appellant and Mr. Ranjan Mukherjee learned counsel appearing for Respondent No.2. By relying upon the Minutes of Meeting dated 27.12.2005 of the Board of Councilors Serampore Municipality the learned counsel for the Appellant argued that the Chairman Vice Chairman 4 | P a g e and three other Members of the Council were present at the meeting during which a decision was taken that Respondent No.3 had obtained permission for construction on the second floor by misrepresentation and suppression of facts. On the other hand learned counsel for the Respondent argued that there is no ambiguity in Section 217 of the Act by which a decision has to be taken by the municipal council and not by the Chairman of the Municipality. We have perused the Minutes of Meeting dated 27.12.2005. The learned counsel for the Respondent is right in submitting that the Chairman Vice Chairman and three other Members of the Municipal Corporation were present in the meeting. However in the said meeting a decision was taken to recommend for appropriate action under Section 217 of the Act and for a reasoned order to be passed after the meeting of the Board of Councilors. It is not in dispute that thereafter the order dated 14.02.2006 was passed by the Chairman of the Serampore Municipality. The High Court is right in holding that the order dated 14.02.2006 passed by the Chairman of the Serampore Municipality is without jurisdiction. There is no error committed by the High Court in holding that the order dated 05.06.2006 by which action was directed to be initiated under Section 218 of the Act for demolition of the 5 | P a g e structure does not survive as the basis of the said order was the order dated 14.02.2006 passed by the Municipality. 5. We have perused the sale deed dated 14.08.2002 by which the Appellant had purchased the ground floor of the property in dispute. The conveyance relates to the ground floor of the two storied building admeasuring a covered area of 950 square feet. The Appellant was permitted to use the common stair case septic tank open yard separate water reservoir in common portion common passages common drain in the ground floor along with roof right. The dispute pertains to the right of Respondent No.3 in making a construction on the roof of the first floor in which he resides Any dispute relating to that right has to be decided by the civil court as held correctly by the High Court. Therefore the Appeal is dismissed. .....................................J [ L. NAGESWARA RAO .....................................J [ B.R. GAVAI New Delhi September 01 2021. 6 | P a g e

Court under S.482 C.R.P.C can quash FIR lodged with ulterior motive and malicious intention: High Court of Jammu And Kashmir

Where the FIR has been lodged with ulterior motive and maliciously to harass the petitioner and to dissuade the petitioner from raising any grievance against the conduct of the respondent, the court can without hesitation  can quash the proceeding under sec. 482 CRPC. This was held in Nowshad Ahmad Rather V. State Through Police Station Kothibagh Sgr. & Anr[CRMC No. 334/2018] in the High Court of Jammu And Kashmir at Shrinagar by single bench consisting of JUSTICE RAJNESH OSWAL. Facts are that the petitioner on way to his office was prevented, by road closure by the police. The petitioner requested the police to let him pass, was harassed and took to social media and lodged a complaint with the Governor and Grievance Cell. FIR was registered against the petitioner under Section 353, 506 RPC for entering into an argument with respondent, the Dy. SP on duty at the time. The counsel for petitioner contended that FIR against the petitioner has been registered six days later with no justification for delay and is the result of afterthought, vengeance and based on mala fide. There was no occasion or reason available to the petitioner for obstructing the respondent from discharging his lawful duties. The court made reference to the Supreme Court judgement in Manoj Kumar Sharma v. State of Chhattisgarh, wherein the following observations were made, “ Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story” The court made relied on the judgement of the Apex Court judgement inM/S Indian Oil Corporation vs M/S NEPC India Ltd, the court in the case had highlighted the principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings, the court held, “A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.”

IN THE HIGH C0URT 0F JAMMU AND KASHMIR AT SRINAGAR CRMC No. 334 2018 IA No. 01 2018 Reserved on 16.03.2021. Pronounced on 02.04.2021 Nowshad Ahmad Rather Through: Mr. Shafaqat Nazir Adv. State Through Police Station Kothibagh Sgr. & Anr. Through: Ms. Saba Gulzar Assisting Counsel vice Mr B. A. Dar Sr. AAG Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL JUDGE 1. The present petition has been filed by the petitioner for quashing of FIR bearing No. 74 2018 registered with Police Station Kothibagh Srinagar on 03.08.2018 under Section 353 506 RPC on the following grounds: a) That the FIR impugned has been registered against the petitioner to punish the petitioner for entering into an argument with respondent No. 2 and then taking to social media and also for approaching His Excellency the Governor of the then State against the erring police official who harassed and humiliated the petitioner without any fault. b) That the alleged occurrence took place on 28.07.2018 but the FIR against the petitioner has been registered on 03.08.2018 and no justification has been given by the concerned Dy. SP in his complaint as to why the FIR has not been lodged on same date and as to why such delay has been crept into the registration of the FIR and as CRMC No. 334 2018 such it becomes clear that the FIR is the result of afterthought and the FIR as such is a result of vengeance and is based on mala fide. c) That the petitioner is a gazetted officer working as Dy. Director in the Floriculture Department and there was no occasion or reason available to the petitioner for obstructing the respondent No. 2 from discharging his lawful duties. The only sin which the petitioner has committed is that the petitioner sought answers from the official on duty respondent No. 2 as to why the petitioner is being prevented from attending his duties when there is no lawful justification available for the same. It is further stated by the petitioner that he was made to run from pillar to post for the purpose of attending his duties and it is the concerned police officer who is actually guilty of preventing the petitioner from discharging his official duties. 2. Along with the petition the petitioner has placed on record the copy of the challan dated 28.07.2018 issued by the respondent No. 2 complaint made by the petitioner to the J&K Grievance Cell post uploaded on Facebook and also the FIR in question. 3. Response stands filed by the respondents in which it is stated that Police Station Kothibagh Srinagar received a written docket from Dy.SP Traffic City South Srinagar dated 28.07.2018 that while performing duty at Radio Kashmir Crossing one Nowshad Ahmad Rather S o Gh. Hassan R o Hardu Shiva Sopore had parked his vehicle Swift bearing registration No. JK05D 0533 in the No Parking Zone. The Dy. SP traffic approached the accused person and advised him to remove his vehicle from No Parking Zone but instead of following the law the accused person argued threatened and obstructed him from performing his lawful duties etc. and on receipt of this docket FIR bearing No. CRMC No. 334 2018 74 2018 under Section 353 506 RPC was registered and investigation was started. The investigation was closed as challan against the petitioner and charge sheet was produced before the court of Additional Munsiff Srinagar on 08.11.2018 and the case is under trial. 4. Learned counsel for the petitioner Mr. Shafqat Nazir has vehemently argued that the FIR has been lodged with malice and just to harass the petitioner as the petitioner had raised his voice against the high handedness of the respondent No. 2 in social media and also before His Excellency the Governor. During the course of hearing the Learned Counsel also produced the challan filed against the petitioner sub judice before Additional Munsiff Srinagar. 5. On the contrary Ms. Saba Gulzar Assisting counsel appearing vice Mr B. A. Dar Sr. AAG has vehemently argued that as the challan stands filed the present petition is not maintainable and the FIR was not actuated with malice. 6. Heard and perused the record. 7. Before appreciating the rival contention of the parties it would be appropriate to have the brief resume of the averments made by the petitioner in his petition. It is stated that the petitioner is working as a Dy. Director in the Department of Floriculture. On 28.07.2018 the petitioner was driving his vehicle bearing registration No. JK05D 0533 towards his office located at Emporium Garden Srinagar. Due to some political rally in Sheri Kashmir Park the petitioner was prevented by traffic police officer from proceeding towards his office at Polo View near GPO Srinagar and was advised to take TRC route which the petitioner did and the petitioner was again stopped by police near the under construction flyover outside the office of the petitioner and the petitioner found the road closed by the police. The petitioner approached the police officer who was Dy. SP by rank namely Sajad Ahmad respondent No. 2 and requested him to allow the petitioner to CRMC No. 334 2018 proceed towards his office which was only a stone’s throw away from the said place however the respondent No. 2 not only prevented the petitioner from attending his duties but also abused and humiliated the petitioner. The petitioner was harassed on spot in full public gaze and ultimately the petitioner was advised to take up the matter with concerned SSP which the petitioner did however the petitioner could not motivate the police man on duty to allow the petitioner to reach his office on time along with his vehicle. Ultimately the petitioner’s vehicle was seized by the police officer on duty and the petitioner was wrongly booked under Sections 109 II 179 177 of Motor Vehicles Act and the petitioner was made to pay a fine of Rs. 1500 for daring to approach senior police office with his grievance. The petitioner being humiliated and disgusted immediately lodged a complaint before His Excellency the Governor of the then State through Grievance Cell. The petitioner in his complaint narrated how he was humiliated and harassed and how the vehicle of the petitioner was taken away though the vehicle of the petitioner was neither parked in a No Parking Zone nor the petitioner had done any illegal activity. The petitioner also narrated in the complaint that the petitioner was harassed only for joining issue with the police officer on duty as the petitioner had perhaps hurt the ego of the officer on duty. The petitioner also uploaded a Facebook post therein narrating the whole story as to how the petitioner was humiliated and harassed by the people who are otherwise meant to protect life honour dignity and liberty of the citizen. The petitioner thereafter was shocked to know that the respondent No. 1 has registered an FIR on 03.08.2018 on the complaint of Dy. SP concerned i.e. respondent No. 2 under Section 353 506 RPC when the alleged occurrence had taken place on 28th July 2018. 9. The very first objection that has been raised by learned counsel for the respondents is that the challan stands filed and as such the FIR cannot be quashed. This issue is no more res integra as the Hon’ble Apex Court in the case titled Joseph Salvaraj A. v. State of Gujarat reported in 2011) 7 SCC 59 has observed: CRMC No. 334 2018 6. After completion of the investigation as per the FIR lodged by the complainant on 5 9 2006 the appellant was arrested at Chennai for commission of the said offences on 17 11 2006. He was thus constrained to file an application under Section 437 of the Code of Criminal Procedure 1973 hereinafter shall be referred to as “the Code”) for grant of bail to him. The same was granted to him on the conditions mentioned in the order dated 22 11 2006. The appellant thereafter was constrained to file the petition under Section 482 of the Code in the High Court of Gujarat at Ahmedabad with a prayer for quashing of the FIR bearing CR No. I 371 of 2006 registered with Odhav Police Station and to stay further investigation in the case. The said application came to be considered before the learned Single Judge on 11 1 2007. By that time charge sheet was already filed before the competent criminal court. Thus the learned Single Judge was of the opinion that it was not a fit case to be entertained and refused to hear the petition on merits even though the appellant was given liberty to file an application for his discharge before the trial court. It may be noted that even in its impugned order the learned Single Judge has emphasised that he had not considered the case on merits. Thus the appellant s petition was dismissed and interim order granted in his favour was vacated. 19. The appellant cannot be allowed to go through the rigmarole of a criminal prosecution for long number of years even when admittedly a civil suit has already been filed against the appellant and Respondent 4 complainant and is still sub judice. In the said suit the appellant is at liberty to contest the same on grounds available to him in accordance with law as per the leave granted by the trial court. It may also be pertinent to mention here that the complainant has not been able to show that at any material point of time there was any contract much less any privity of contract between the appellant and Respondent 4 complainant. There was no cause of action to even lodge an FIR against the appellant as neither the complainant had to receive the money nor was he in any way instrumental to telecast “GOD TV” in certain areas of Ahmedabad. He appears to be totally a stranger to the same. The appellant s prosecution would only lead to his harassment and humiliation which cannot be permitted in accordance with the principles of law. 20. Thus looking to the matter from all angles we are of the considered opinion that the prosecution of the appellant for commission of the alleged offences would be clear abuse of the process of law. The FIR under the circumstances deserves to be quashed at the threshold. We accordingly do so. The appeal is therefore allowed. The order of the learned Single Judge is set aside. The FIR dated 5 9 2006 lodged by Respondent 4 complainant with Odhav Police Station Ahmedabad stands quashed and all criminal proceedings emanating therefrom also stand quashed. CRMC No. 334 2018 11. In the above mentioned case the High Court had refused to quash F.I.R on the ground that during the pendency of the petition under sec 482 Cr.P.C the charge sheet stood filed but the Apex Court did not approve the course adopted by High Court and quashed the F.I.R along with consequential proceedings. The principle laid down by Apex Court in judgment were reaffirmed by Apex Court in Anand Kumar Mohatta v. Statereported in11 SCC 706 and relevant para is reproduced as under: 14. First we would like to deal with the submission of the learned Senior Counsel for Respondent 2 that once the charge sheet is filed petition for quashing of FIR is untenable. We do not see any merit in this submission keeping in mind the position of this Court in Joseph Salvaraj A. v. State of Gujarat7 SCC 59 :3 SCC23] . 12. So merely filing of challan would not divest the court of its powers to quash the FIR provided the petitioner makes out a case for quashing of FIR as such the first contention of the respondents are rejected. 13. Now the only issue that is to be considered by this Court is as to whether the impugned FIR was lodged with malafide and to harass the petitioner or not. It is an admitted fact that on 28.07.2018 the petitioner was challaned by the respondent No. 2 for commission of offences under Section 190 II 179 177 Motor Vehicles Act and on the same date the said offences were compounded by the respondent No. 2 by imposing a fine of Rs. 1500 . The perusal of the challan annexed as Annexure A issued by the respondent No. 2 reveals that there is no mention as to whether the respondent No. 2 was obstructed in performance of his duty by the petitioner or not and assuming any such offence under Section 353 506 RPC was committed by the petitioner the respondent No. 2 would have immediately lodged FIR against the petitioner for the commission of offences under Section 353 506 RPC. Rather the mere CRMC No. 334 2018 factum of punishing the petitioner for traffic rules violations substantiate the contention of the petitioner that false and frivolous FIR has been lodged against the petitioner with ulterior purpose particularly when there is no whisper either in the FIR or in the charge sheet filed against the petitioner that the petitioner was fined for violation of traffic rules. Rather punishing the petitioner for violation of traffic rules negate the story of the respondent No.2 that he was obstructed by the petitioner in performance of his official duties. The perusal of the statement of the respondent No.2 recorded under sec 161 Cr.P.C reveals that that the has no where deposed that he was prevented by the petitioner in performance of his official duties. Rather he has stated that the petitioner had altercation initially with his staff and then he had an altercation with him and the petitioner even resorted to sloganeering so as to attract the attention of the public. Lastly he stated that the petitioner threatened him. There is no whisper in his statement that the petitioner was challaned for violation of traffic rules and made to pay fine of Rs. 1 500 particularly when the challan evidencing the compounding of the offences have been issued by the respondent No.2. 14. The respondents in their objections have not disputed or controverted the factum of the complaint made by the petitioner to the J&K Grievance Cell regarding the unruly behaviour of the respondent No. 2 with the petitioner and it is evident that the said FIR was lodged only after the petitioner made the complaint before the J&K Grievance Cell and uploaded his story of harassment at the hands of respondent No. 2 on the Facebook. Generally the delay in lodging FIR is not fatal to the prosecution case provided the delay is explained and the same is to be considered at the time of the final disposal of the challan but at the same time when it is apparent from the record that the said FIR was lodged only as a tool to harass the petitioner then the delay in lodging FIR shall certainly be a relevant factor for considering the motive behind lodging FIR. When the respondent No:2 challaned the petitioner for violation of traffic rules then what prevented the respondent No:2 from lodging CRMC No. 334 2018 F.I.R against the petitioner on the same day when it is evident from FIR that it was lodged with respondent No:1 on 03.08.2018. 15. In Manoj Kumar Sharma v. State of Chhattisgarh reported in9 SCC 1 Apex Court has observed: 30. Delay in lodging the FIR often results in embellishment which is a creature of an afterthought. On account of delay the FIR not only gets bereft of the advantage of spontaneity danger also creeps in of the introduction of a coloured version or exaggerated story. In our opinion such extraordinary delay in lodging the FIR raises grave doubt about the truthfulness of allegations made by Respondent 2 herein against the appellants which are in any case general in nature. We have no doubt that by making such reckless and vague allegations Respondent 2 herein has tried to rope the appellants in criminal proceedings. We are of the confirmed opinion that continuation of the criminal proceedings against the appellants pursuant to this FIR is an abuse of the process of law. Therefore in the interest of justice the FIR deserves to be quashed. In this context it is apt to quote the following decision of this Court in Jai Prakash Singh v. State of Bihar4 SCC 379 : 2012) 2 SCC468] wherein it was held as under:“12. The FIR in a criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to the crime was in which committed the names of the actual culprits and the part played by them as well as the names of the eyewitnesses present at the scene of occurrence. If there is a delay in lodging the FIR it loses the advantage of spontaneity danger creeps in of the introduction of coloured version exaggerated account or concocted story as a result of large number of consultations deliberations. Undoubtedly the promptness in lodging the FIR is an assurance regarding truth of the informant s version. A promptly lodged FIR reflects the first hand account of what has actually happened and who was responsible for the offence in 16. Hon’ble the Apex Court in the case of “Indian Oil Corporation vs. NEPC India Ltd. And Ors” reported in6 SCC 736 has held as under: 12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few— Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao CRMC No. 334 2018 Cri) 1045] Angre1 SCC 692 : 1988 SCC 234] State of Haryana v. Bhajan LalSCC 335 : 1992 SCC Cri) 426] Rupan Deol Bajaj v. Kanwar Pal Singh Gill6 SCC 194 : 1995 SCC 1059] Central Bureau of Investigation v. Duncans Agro Industries Ltd.5 SCC 591 1996 SCC State of Bihar v. Rajendra Agrawalla8 SCC 164 : 1996 SCC 628] Rajesh Bajaj v. State NCT of Delhi3 SCC 259 : 1999 SCC401] Medchl Chemicals & Pharma Ltd. v. Biological E. Ltd.3 SCC 269 : 2000 SCC615] Hridaya Ranjan Prasad Verma v. State of Bihar4 SCC 168 : 2000 SCC Cri) 786] M. Krishnan v. Vijay Singh8 SCC 645 : 2002 SCC 19] and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque1 SCC 122 : 2005 SCC283] . The principles relevant to our purpose are: i) A complaint can be quashed where the allegations made in the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose the complaint has to be examined as a whole but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing of a complaint. ii) A complaint may also be quashed where it is a clear abuse of the process of the court as when the criminal proceeding is found to have been initiated with mala fides malice for wreaking vengeance or to cause harm or where the allegations are absurd and inherently improbable. iii) The power to quash shall not however be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint merely on the ground that a few ingredients have not been stated in detail the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. v) A given set of facts may make out:purely a civil wrong orpurely a criminal offence or a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute apart from furnishing a cause of action for seeking remedy in civil law may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding the mere fact that the complaint relates to a commercial transaction or breach of contract for which a civil remedy is available or has been availed is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not. In Sunder Babu v. State of T.N. JUDGE Whether the order is speaking: Yes Whether the order is reportable: Yes CRMC No. 334 2018

Owing to a prima facie opinion of the Court, petitioner accused under the Arms Act given concession of bail: Delhi High Court

At the time of considering bail application, this Court is not required to dwell upon minute details on the merits of the case but has to form a prima facie opinion. This was said in the case of Tanveer Malik vs State[BAIL APPLN. 1002/2021] by Mr. Justice Suresh Kumar Kait in the High Court of Delhi  The facts of the case are that the petitioner is accused in FIR for allegedly committing offences under 147/148/149/153A/505/436/307/120B/34 IPC and Sections 27/30 of Arms Act. He is in judicial custody since 12.03.2020 in this case and by this petition, he is seeking bail while claiming to be innocent and of having been falsely implicated in this case. The petitioner contended that the technical evidence relied upon by the prosecution i.e. the call detail record and CCTV footage does not in any way establish presence of petitioner at the spot, as on the day of incident petitioner was not in Delhi. Secondly, it was contended that there are six accused persons in this FIR case, however, petitioner has no concern with them and his phone location is different from that of other accused persons. Thirdly, it was contended that Constable Sodan and Constable Pawan in their statements have stated that there was a mob of 1000 to 1200 people on the day of incident and so, their claim of having identified the petitioner amongst a huge crowd of mob cannot be accepted. It was further contended that recording of injured’s supplementary statement that he identified the petitioner after seeing the pictures of the riot shown to him is nothing but an attempt to fill in the lacuna by the prosecution The learned Special Public Prosecutor for State contended that the petitioner has been found promoting enmity and disharmony by rioting and charge sheet in this case has already been filed and trial is in progress and if released on bail, he may threaten or manipulate the witnesses or tamper with the evidence and hence, this petition be rejected The Court, after analysing the contentions of both the parties and settled position of law in the case, opined that “petitioner’s earlier bail applications in the present FIR case have been rejected by this Court, but the said orders were passed at the time when investigation was in progress and role of petitioner was yet to be established. Now, investigation is complete and charge sheet qua petitioner and other accused persons has already been filed and trial shall take substantial time. At the time of considering bail application, this Court is not required to dwell upon minute details on the merits of the case but has to form a prima facie opinion. Keeping in mind that the facts of the present case are similar to that of previous FIR, registered at police station Dayalpur, Delhi and that the questions raised in the said case and the present case are more or less similar and shall be answered during trial, I have no hesitation to hold that petitioner now deserves concession of bail in the present case as well”. Hence, the bail application was accepted.

Delhi High Court Tanveer Malik vs State on 26 April 2021 IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved Pronounced BAIL APPLN. 1002 2021 TANVEER MALIK ..... Through: Mr. Salim Malik Advocate Versus STATE ... Through: Mr. Manoj Chaudhary Special Public Prosecutor for State CORAM: HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT 1. Petitioner is accused in FIR No. 91 2020 registered at police station Dayalpur Delhi for allegedly committing offences under Sections 147 148 149 153A 505 436 307 120B 34 IPC and Sections 27 30 Arms Act. He is in judicial custody since 12.03.2020 in this case and by this petition he is seeking bail while claiming to be innocent and of having been falsely implicated in this case. 2. The FIR in question is fulcrum of riots which broke out in North East Delhi on 25.02.2020. Pertinently two more FIRs i.e. FIR No. 88 2020 and FIR No. 92 2020 both registered at police station Dayalpur Delhi pertaining to the incident of riots on 25.02.2020 are also pending to the credit of petitioner. However vide order dated 04.02.2021 petitioner has been granted bail in FIR No. 92 2020by this Court whereas in FIR No. 88 2020 he has been granted bail by the Court of Sessions vide order dated 30.05.2020. 3. In the present FIR petitioner had earlier approached this Court for bail and the same was dismissed by passing a detailed order on 24.09.2020 was also dismissed by this Court vide order dated 23.11.2020. Thereafter his third bail applicationwas not pressed by him while seeking liberty to approach the learned trial court for the relief claimed. However his bail application has been dismissed by the learned trial court vide order dated 12.03.2021rejecting his claim of parity in FIR No. 92 2020 registered at police station Dayalpur Delhi wherein he has been granted bail by this Court while holding "that there is no independent eye witness identification of applicant in case in FIR No. 92 2020 whereas in the present case besides being identified by injured Ajay he has also been categorically identified by public witnesses PW Harish Chander and PW Prashant Kumar." The learned trial court has further held as under: 19. In view of the categorial dismissal of regular bail application(s) of applicant thrice once by this Court vide order dated 24.08.2020 and thereafter twice by the Hon ble High Court vide order(s) dated 24.09.2020 and 23.11.2020 I do not find any change in circumstance(s) since the dismissal of last bail application of applicant by Hon ble High Court of Delhi. I further do not find any merit in the claim of applicant seeking bail on the ground of parity. As such considering the facts and circumstances of the case in totality I am of the considered opinion that the applicant is not entitled for bail in the matter at this stage. The bail application is accordingly dismissed." 4. Hence petitioner is before this Court to claim relief of bail. 5. During the course of arguments learned counsel for petitioner submitted that the technical evidence relied upon by the prosecution i.e. the call detail record and CCTV footage does not in any way establish presence of petitioner at the spot as on the day of incident petitioner was not in Delhi. Learned counsel submitted that out of 11 CCTV footage relied upon by the prosecution he cannot be seen in any of them and the phone location chart also does not show petitioner s presence at the spot. Further submitted that there are six accused persons in this FIR case however petitioner has no concern with them and his phone location is different from that of other accused persons. Next submitted that Constable Sodan and Constable Pawan in their statements have stated that there was a mob of 1000 to 1200 people on the day of incident and so their claim of having identified the petitioner amongst a huge crowd of mob cannot be 6. Learned counsel also submitted that as per the supplementary statement of injured recorded on 20.05.2020 he has identified the petitioner after seeing the photographs whereas after seeing the black and white dozier of petitioner he cannot be recognized. It was submitted that petitioner had surrendered himself on 12.03.2020 in FIR No. 88 2020 registered at police station Sunlight Colony Delhi and in the police station many of his photographs were taken and thereafter he has been falsely implicated in the present FIR case. It was submitted that recording of injured s supplementary statement is nothing but an attempt to fill in the lacuna by the prosecution. 7. Further submitted that as per site plan the distance between the place of incident and where petitioner was allegedly standing on the roof of Tahir Hussain is more than 600 meters and it is unbelievable that Constable Sudan and Constable Pawan who are eyewitnesses to the incident and have already known petitioner had not given any intimation to the police regarding him and other accused persons. 8. Lastly it was submitted that petitioner is a young boy of 23 years of age and has no involvement in the alleged incident and deserve bail in this case. 9. On the other hand the case put forth by the prosecution is that upon receipt of information from Sushant Trauma Center Civil Lines regarding gunshot injury having been received by a person vide DD No. 163A dated 25.02.2020 Investigating Officer SI Hukam Singh reached there and collected the MLC No. 1970 2020 of injured Ajay. However injured Ajay did not give statement on the said day and hence the FIR in question was registered on the basis of said DD entry. The statement of injured Ajay under Section 161 Cr.P.C. was recorded on 02.03.2020. 10. In his statement injured Ajay stated that on 25.02.2020 at around 4:00 PM when he came out from his house to purchase few household articles and reached near Lakhpat School Chand Bagh he realized that the riots broke out in the whole area and nearby areas. When he reached near Tahir Hussain s house he saw angry mob on the terrace of the said house who were pelting stones petrol bombs and firing on people crossing the main Karawal Nagar Road. Suddenly he was fired from a pistol like object which hit on his right shoulder and because he has been staying in the said area since his birth he could identify the said boy as Gulfam @ VIP and also identified other individuals who were part of mob and petitioner is allegedly one of those 11. Further submitted by learned Special Public Prosecutor for State that petitioner has been found promoting enmity and disharmony by rioting and charge sheet in this case has already been filed and trial is in progress and if released on bail he may threaten or manipulate the witnesses or tamper with the evidence and hence this petition be rejected. 12. Pertinently the factual matrix of the alleged incident the pleas urged by the petitioner to seek bail and the defence of prosecution as stated in the status report is similar as have been narrated in the order dated 04.02.2021 passed by this Court in Bail. Appln. 3864 2020 wherein petitioner has been granted bail in FIR No. 92 2020 registered at police station Dayalpur Delhi for similar offences. The distinction between the two FIR cases is that in the said case injured was one Prince Bansal whereas in the present case injured is Ajay. In both the cases the FIR was registered on the basis of respective DD entries and statements of both the injured persons were recorded on 02.03.2021. The eye witnesses in the present case namely Constable Sudan Constable Pawan Harish Chander and Prashant Kumar are also eye witnesses in the said case i.e. FIR No. 92 2020. 13. It is not in dispute that co accused Kasim and Nazim have already been granted bail by this Court vide orders dated 13.10.2020 and 11.11.2020 respectively in the present FIR i.e. FIR No. 91 2020 registered at police station Dayalpur. Further while granting bail to the present petitioner in FIR No.92 2020 this Court had observed as under: "11. In addition to above Ct.Sodan and Ct.Pawan were also present on duty on 25.02.2020 and have identified the present applicant along with other co accused persons. But the fact remains that the aforesaid Constables had not made any DD entry or any call to PCR by naming the petitioner or any other persons indulged in the crime at that point of time. It is also not in dispute that from 25.02.2020 to 02.03.2020 there is no proof on record that the police has taken any action or adopted any procedure to register FIR or to take down the statement of the injured except that on 29.02.2020 I.O visited the hospital however injured was not found." 14. Coming to the case in hand this Court is conscious of the fact that petitioner s earlier bail applications in the present FIR case have been rejected by this Court but the said orders were passed at the time when investigation was in progress and role of petitioner was yet to be established. Now investigation is complete and charge sheet qua petitioner and other accused persons has already been filed and trial shall take substantial time. At the time of considering bail application this Court is not required to dwell upon minute details on the merits of the case but has to form a prima facie opinion. Keeping in mind that the facts of the present case are similar to that of FIR No. 92 2020 registered at police station Dayalpur Delhi and that the questions raised in the said case and the present case are more or less similar and shall be answered during trial I have no hesitation to hold that petitioner now deserves concession of bail in the present case as well. 15. In view of the above without commenting on the merits of the case the petitioner is directed to be released on bail forthwith upon his furnishing personal bond in the sum of Rs.20 000 with one surety in the like amount to the satisfaction of the trial court. 16. The petitioner shall not directly or indirectly influence any witness or tamper with the evidence and shall appear before the court as and when directed. 17. With aforesaid directions the present petition is allowed and accordingly disposed of while making it clear that any observation made herein shall not influence trial of the prosecution case. 18. A copy of this order be transmitted to the Trial Court and Jail Superintendent concerned for information and compliance. SURESH KUMAR KAIT) JUDGE APRIL 26 2021 r

No illegality or irregularity merely by showing the Vigilance case is still pending before the learned court of Special Judge, Vigilance: Patna high court

The petitioner cannot prove that the entire proceeding adopted by the authorities was illegal and baseless by merely showing the Vigilance case is still pending before the learned court of Special Judge. A single bench comprising of Justice Anjani Kumar Sharan adjudicating the matter of Anuj Kumar v. The State of Bihar (Civil Writ Jurisdiction No. 7646 of 2020) dealt with an issue of whether to allow the writ petition in favour of the Petitioner or not.    In the present case, the Petitioner is the elected Mukhiya of Patharaura Gram Panchayat, under Rajgir Block, in Nalanda district and is challenging the order dated 19.08.2020 by which the petitioner was removed from the post of Mukhiya under the provision of Section 18 (5) of the Bihar Panchayati Raj Act, 2006 and also seeks ancillary reliefs. It was submitted by the Petitioner that the ex-Mukhiya of Patharaura Gram Panchayat, namely Ranjeet Kumar and his friend Sagar Paswan made an application dated 24.12.2018 before the District Magistrate, Nalanda, to remove the petitioner from his elected post as Mukhiya under Section 18 (5) of Bihar Panchayati Raj Act, 2006, alleging of financial irregularities and accusation of a bribery case. According to the application, the Dist. Magistrate Nalanda made a physical enquiry and the report was sent to him. The accusation of demanding bribery by the petitioner and in this regard an FIR has been lodged under Section 7 of Prevention of Corruption Act’ before Vigilance Police Station in the Patna District which is still pending before the Special Judge, Vigilance, Patna. The Petitioner has arrested and later was released on bail. The petitioner upon direction also served a detailed show cause notice concerning all allegations of financial irregularities of his previous and present tenure along with evidence in support. Also, it was contended that District Magistrate, Nalanda, did not serve any notice to the petitioner and without any hearing or examination any evidentiary materials recommended for removable of petitioner from the post of Mukhiya of Patharaura, Gram Panchayat, and the petitioner knew this only when a notice for hearing was sent to him by the Principal Secretary, Panchayati Raj Department, Government of Bihar. The Respondents in their reply stated that that the show causes notice and sufficient opportunities were given to the District Panchayati Raj Officer, Nalanda, as well as by the Panchayati Raj Department, Government of Bihar, Patna, to the petitioner to place his case and the petitioner submitted his show cause notice before the concerned authorities, considering all material on record the final order was passed by the Panchayati Raj Department, which was under challenge in the instant writ petition. Learned senior counsel further argued that the District Magistrate, Nalanda, sent his recommendation for removal of the then Mukhiya under Section 18 (5) of the Act, 2006 based on the findings of the enquiry into the aforementioned allegation in the enquiry report submitted by the Sub-divisional Officer.

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.76420 Anuj Kumar son of Saryug Chaudhary resident of village Patharaura Post Office Patharaura Police Station Chabilapur District Nalandavide letter no.4817 dated 19.08.2020 by which the petitioner was removed from the post of Patna High Court CWJC No.76420 dt.28 06 2021 Mukhiya under the provision of Section 18 of the Bihar Panchayati Raj Act 2006and for other ancillary reliefs Learned counsel for the petitioner submits that ex Mukhiya of Patharaura Gram Panchayat namely Ranjeet Kumar and his friend Sagar Paswan made an application dated 24.12.2018 before the District Magistrate Nalanda with respect to remove the petitioner from his elected post as Mukhiya under Section 18Nalanda for enquiry. Now D.D.C. Nalanda vide Letter no.2568 dated 31.12.2018 Annexure P1 to the writ petition) directed Rajgir B.D.O. to make physical enquiry and sent enquiry report to him. The Ward Member of Ward No.06 of Patharaura Gram Panchayat who filed an application with respect to accusation of demanding bribery by the petitioner and in this regard an FIR has been lodged under Section 7 of Prevention of Corruption Act’ before Vigilance Police Station in the Patna District bearing Vigilance Case No. 34 2018 dated 06.08.2018which is still pending before the learned court of Special Judge Vigilance Patna High Court CWJC No.76420 dt.28 06 2021 Patna. Petitioner has arrested and has been released on bail on Learned counsel for the petitioner submits that the B.D.O. Rajgir sent a detailed enquiry report to the D.D.C. Nalanda vide Letter No.89 dated 17.01.2019 in which B.D.O. Rajgirhimself requested for a District Level Enquiry since according to Rajgir B.D.O. there is an involvement of JE(Junior Engineer) PSPRS Panchayat Rojagar Sevak PO (Annexure P4). The Sub Divisional Magistrate Rajgir to conduct an enquiry in this regard and sent a detailed report to the District Panchayati Raj Officer Nalandavide Letter No.261 Gop dated 26.04.2019and filed a show cause notice in relation to the enquiry report of the B.D.O. Nalanda and allegations of financial irregularities of his different tenures including one allegation of financial irregularities and another about vigilance case with respect to the present tenure Learned counsel for the petitioner submits that the petitioner submitted his detailed show cause notice on 04.05.2019 Patna High Court CWJC No.76420 dt.28 06 2021 with respect to all allegations of financial irregularities of his previous and present tenure alongwith evidence in support Annexure P6 to the writ petition). Learned counsel for the petitioner submits that the District Magistrate Nalanda did not serve any notice to the petitioner and without any hearing or examination any evidentiary materials recommended for removable of petitioner from the post of Mukhiya of Patharaura Gram Panchayat and the petitioner knew this only when a notice for hearing was sent to him by the Principle Secretary Panchayati Raj Department Government of Bihar alongwith Letter no.1642 P dated 06.09.2019 wherein the District Magistrate Nalanda had sent a letter to the Principle Secretary Panchayati Raj Department Government of Bihar recommending removal of petitioner from his postGovernment of Bihar vide Letter no. 4715 dated 26.07.2019 along with Letter No. 671 dated 06.05.2019 in which the District Magistrate Nalanda recommending for removal of petitioner under Section 18of Bihar Panchayati Raj Act sent show cause notice on 13.08.2019of the Bihar Panchayati Raj Act Annexure P10 to the writ petition Learned counsel for the petitioner submits that the following charges were framed and reported by the District Patna High Court CWJC No.76420 dt.28 06 2021 Magistrate Nalanda against the petitioner as then accused Mukhiya under his letters dated 06.05.2019: i) Illegal withdrawal of Rs.5 lakhs under MANREGA Year 2012) ii) Providing double benefits by changing names of 14 beneficiaries under the Prime Minister Awas Yojana iii) Defalcation of funds under the Prime Minister Awas Yojana by making payment to 17 fake beneficiaries Year 2011 15) Year 2011 15) iv) Illegal withdrawal under the MANREGA Scheme without boring of 55 hand pumpsv) Illegal withdrawal of funds by the petitioner in his present tenure as then Mukhiya time and again for the same work by changing names of the schemes some time under 4th State Finance Commission 5th State Finance Commission BRGF or MANREGA vi) The petitioner as then Mukhiya was arrested by the Vigilance for taking bribe of Rs.50 000 in his present tenure Learned counsel for the petitioner submits that apart from the fifth and sixth allegations rests pertain to previous term Patna High Court CWJC No.76420 dt.28 06 2021 of the petitioner as Mukhiya in which petitioner has not been found guilty of financial irregularities and on account of order of this Court in C.W.J.C. No. 7893 2010 Dinesh Pandey Vs. State of Bihar and others which has been further followed in C.W.J.C No. 9384 2011 Rajesh Kumar Manjhi Vs. State of Bihar and others allegations with respect to previous terms have been dismissed by respondent no.2 Learned counsel for the petitioner submits that the petitioner filed a rejoinder cum reply cum show cause with respect to letter no. 2P AA 15 18 2018 6589 P.RA. dated 17.10.2019 sent by the Authorityof the Bihar Panchayati Raj Act against the petitioner for removal from his post citing ‘guilty of misconduct in the discharge of his duties and abuses the power vested in him. It is further submitted that the petitioner has not yet been found guilty under Section 7 of Prevention of Corruption Act by the Special Vigilance Court Patna in Vigilance Case no 34 2018 and therefore it is wrong interpretation by the respondent authorities to include aforesaid provision in order to remove an elected Mukhiya of Gram Panchayat and such interpretation is Patna High Court CWJC No.76420 dt.28 06 2021 liable to be set aside by this Court. In this regard he relied upon a decision of the Hon’ble Apex Court in the case of Sharda Kailash Mittal Vs. State of Madhya Pradesh and Others. Reported in 2010SCC 319 and a decision of this Court in Maksudan paswan @ Madhusudan Paswan Vs. State of Bihar and others C.W.J.C. No.142010 under para nos. 18 and 19 of the order Learned senior counsel for the respondents P.N. Shahi submits that the show cause notice and sufficient opportunities were given to the District Panchayati Raj Officer Nalanda as well as by the Panchayati Raj Department Government of Bihar Patna to the petitioner to place his case and the petitioner submitted his show cause notice before the concerned authorities considering all material on record the final order was passed by the Panchayati Raj Department which was under challenge in the instant writ Learned senior counsel further argued that the District Magistrate Nalanda sent his recommendation for removal of the then Mukhiya under Section 18of the Act 2006 under his Letter no. 671 dated 06.05.2019of the Act 2006 in the present tenure. However the petitioner failed to submit any evidence in his defense on the two grievous charges which pertain to his present tenure as sitting Mukhiya for the embezzlement of public fund and taking bribe when he was caught and arrested by the Vigilance. It further submits that under Section 170 of the Bihar Panchayati Raj Act 2006 Mukhia and all elected representatives of Panchayats are Public Servants hence under Section 170 of the Bihar Panchayati Raj Act 2006 as also under Section 2(b) of the Prevention of Corruption Act 1988 suitable action can be taken against the Patna High Court CWJC No.76420 dt.28 06 2021 elected representatives of the PRIs including Mukhiya of a Gram Panchayat being Public Servant Learned senior counsel further argued that in view of the statutory scheme proceeding under Section 18(5) of the Act 2006 was started against the petitioner and a show cause notice was asked from the petitionerin order to provide the petitioner a reasonable opportunity on the charges framed and recommended by the District Magistrate Nalanda. The petitioner was asked to be present before the Additional Chief Secretary on 13.08.2019 for submitting his explanation on the charges. The petitioner appeared on 13.08.2019 for submitting his explanation The explanation of the petitioner was sent to the District Magistrate Nalanda vide Panchayati Raj Department vide Letter no. 5121 dated 16.08.2019 to give his opinion on the explanation submitted by the petitioner. Next date for the hearing was fixed for 27.08.2019 and communicated vide letter no. 5122 dated 16.08.2019. The petitioner was present but the opinion of the District Magistrate was not received till then hence next date was fixed for 17.09.2019 and communicated under letter no. 5488 dated 02.09.2019. The District Magistrate Nalanda was requested to send his opinion vide D.O. letter no. 5483 dated 02.09.2019 The opinion of the District Magistrate Nalanda on the explanation Patna High Court CWJC No.76420 dt.28 06 2021 of the petitioner was received in the Department on 12.09.2019 vide his letter no. 1642 dated 06.09.2019. On the next date the petitioner was present along with his counsel but the hearing could not be held on the date due to certain unavoidable reason Next date was fixed for 15.10.2019 when the petitioner and his counsel were present. The opinion of the District Magistrate Nalanda was sent to the petitioner for submitting his reply on the opinion of the District Magistrate Nalanda. Hearing on next fixed dates on 05.11.2019 26.11.2019 17.12.2019 and 31.12.2019 could not be held due to unavoidable reasons. The petitioner had not submitted his reply on the opinion of the District Magistrate Nalanda by that time hence the petitioner was reminded to submit his reply vide Department’s letter no.7153 dated 07.11.2019 and further reminder letter no. 7832 dated 03.12.2019 then only his reply could be received in the Department on 07.12.2019. Learned senior counsel submits that the matter has been independently perused in light of the documentary evidences and material facts available on the record. There has been enough evidence of dereliction of duty and misuse of office of the Mukhiya by the petitioner. The vital points that emerged concluding in the independent hearing on the matter apart from Patna High Court CWJC No.76420 dt.28 06 2021 other findings based on the documentary evidence are being highlighted hereunder for better appreciation of this Court as i) The complaints allegations from Sl. No.(i) toof the Act 2006 in view of the law settled by this Court vide its order dated 13.05.2010 passed in the C.W.J.C. No.7893 2010 Dinesh Pandey Vs. the State of Bihar & Others and also in view of the opinion of the learned Advocate General Bihar ii) The rest of the two charges were found pertaining to the current tenure of the petitioner as sitting Mukhiya. For the charge of irregularities and misappropriation of funds under the MANRGA Schemes the District authorities could not produce sufficient evidence to prove the charges hence no decision could be taken on this particular charge iii) Arrest of the petitioner red handed by the Vigilance authorities proves that the petitioner was indulged into the grave misconduct which was a concrete Patna High Court CWJC No.76420 dt.28 06 2021 reason to take action against a sitting Mukhiya under Section 18 of the Act 2006. Under Section 170 of the Act 2006 Mukhiya and all elected representative of Panchayats are Public Servant. Being a Public Servant the petitioner was indulged into corrupt practices which was serious offence under the Prevention of Corruption Act and was a grave misconduct and dereliction of duties in view of the Zero Tolerance Policy of the State Government on corruption. This grave misconduct in discharge of duties as a Mukhiya being a Public Servant was sufficient reason to take action against the petitioner under Section 18of the Act 2006 Learned senior counsel argued that Section 18of the Act gives ample power to the authorities to take such steps after observing due process of law and it is quite apparent from the record that the authorities concerned has adopted the proper procedure in accordance with law and only thereafter had passed the impugned order. Hence the authorities concerned have not committed either any illegality in law or any irregularity in procedure while passing the impugned order Patna High Court CWJC No.76420 dt.28 06 2021 Learned senior counsel submits that based on the findings of the hearing on the charges framed against the petitioner explanation submitted by the petitioner opinion of the District Magistrate Nalanda and the documentary evidences brought on the records of the proceeding during the course of hearing under Section 18of the Act 2006 the petitioner has been found guilty of committing gross financial irregularities and misappropriation of public fund and committing gross misconduct in discharge of duty as Mukhiya. The dereliction of duty distinctively comes under the category of gross misconduct under Section 18of the Act 2006. The petitioner was arrested red handed in taking bribe worth Rs.50 000 by the Vigilance authority. He has been held guilty of having indulged into financial corruption. The charges against the petitioner for gross financial corruption dereliction of duties misuse of office of the Mukhiya has been proved and well established. The petitioner has accordingly been removed from the office of the Mukhiya of the Gram Panchayat Raj Pathraura Block Rajgir District Nalanda under Section 18of the Act 2006 vide order dated 03.08.2020 and has been communicated to all the concerned under Memo No. 4817 dated 19.08.2020 which is under challenge Patna High Court CWJC No.76420 dt.28 06 2021 Considering the entire facts and circumstances of this case as well as the pleadings of the parties and the material on the record it is quite apparent that at first the District Panchayati Raj Officer Nalanda and thereafter the Panchayati Raj Department had taken all due steps in the matter and impugned order had been passed after fulfilling all the formalities including issuance of show cause notice to the petitioner and also after considering the show cause of the petitioner merely by showing the Vigilance case is still pending before the learned court of Special Judge Vigilance Patna the petitioner cannot prove that the entire proceeding adopted by the authorities was illegal and baseless. In the said circumstance this court does not find any illegality and irregularity in the process adopted by the authorities concerned Furthermore it is quite apparent that inquiries were made in which was specifically found that the petitioner was arrested red handed in taking bribe worth Rs.50 000 by the Vigilance Authorities. This was a very serious allegation against the petitioner who was the Mukhiya of the Gram Panchayat but his action was detrimental of the interest of the people of the Gram Panchayat which he represented. Hence it is quite apparent that he not only committed grave Patna High Court CWJC No.76420 dt.28 06 2021 illegality misconduct but also eroded the confidence of the people who had elected him as their Mukhiya So far as decision of the Apex Court relied upon by the petitioner in the case of Sharda Kailash Mittaland order passed in C.W.J.C. No.14207 2010 is concerned it is quite apparent that the petitioner had not committed any minor irregularity rather he had committed a very serious illegality misconduct detrimental to the system of Panchayati Raj and basic democracy itself. Furthermore the allegation having been well proved as is apparent from the impugned order as well as enquiry report and the communication of the District Magistrate and other material available on record the authorities concerned was quite justified in passing the impugned order against the In the said circumstance this court does not find any illegality in the impugned order nor does find any merit in this writ application which is accordingly dismissed. Anjani Kumar Sharan J

THE WRIT PETITION AND THE MANDAMUS SOUGHT FOR IS ISSUED: HIGH COURT OF MADRAS

The HIGH COURT OF MADRAS in the Writ petition Nos. 5459, 5463 & 5465 of 2022 in the case of HI-TECH ARAI PRIVATE LIMITED v. TANGEDCO, THE CHIEF ENGINEER & TAMIL NADU ELECTRICITY REGULATORY COMMISSION has allowed these writ petitions and the mandamus sought for is issued including the specific direction for settlement of dues to the petitioner. The petitioner has filed the writ petition under Article 226 of the Constitution of India, praying for issuance of Writ of Mandamus directing the respondents to allow the petitioner to migrate the utility change from “Sale to Board” to “Group Captive Scheme”, by terminating the existing ‘Wind Energy Purchase Agreement’ for their Wind Mill bearing present HTSC No.079224723429 and old WEG HTSC No.3429 and to execute fresh ‘Energy Wheeling Agreement’ under Group Captive Scheme by considering the petitioner’s representation and reminder representation in consonance with Common Order dated 30.08.2019 passed by this Hon’ble Court, which was upheld by the Hon’ble Division Bench of this Hon’ble Court, by its order dated 18.02.2020 and also by the Hon’ble Supreme Court of India by its order dated 24.09.2020 with consequential direction the respondents to make outstanding payment of Rs.40,70,894/- to the petitioner towards the wind energy sold by them to the respondent/TANGEDCO for a period from 01.07.2020 to 30.11.2021 along with interest at 1% per month for delay in payments. The prayers of the petitioner in all Writ Petitions is for a mandamus directing the respondents to permit the Utility Change to them by terminating the existing Energy Purchase Agreements and executing fresh Energy Wheeling Agreements. Mr. Abul Kalam, learned Standing Counsel accepts notice for the respondents and is armed with instructions to proceed with the matters finally. Hence, by consent of both counsel, these writ petitions are disposed finally even at the stage of admission. These Writ Petitions are allowed as above and the mandamus sought for is issued including the specific direction for settlement of dues to the petitioners.

W.P.Nos.5459 5463 & 54622IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 10.03.2022CORAM:THE HONOURABLE DR.JUSTICE ANITA SUMANTH W.P.Nos.5459 5463 & 54622Hi Tech Arai Private LimitedRep. by its Senior Manager Admin. HR. Pr.Mr.V.Shanmuga Sundaram No.33 Sarojini Street Chinna Chokkikulam Madurai 625 002.... Petitioner in all W.P. sVs1.TANGEDCO Rep. by its Chairman and Managing Director 10th Floor 144 Annai Salai Chennai 600 002.2.The Chief Engineer Non Conventional Energy SourcesTANGEDCO 2nd Floor 144 Anna Salai Chennai 600 002.4.Tamil Nadu Electricity Regulatory Commission Rep. by its Secretary 19 A Rukmini Lakshmipathi Salai Egmore Chennai 600 008.... Respondents in all W.P. s3.The Superintending Engineer TANGEDCO 1 8 https: www.mhc.tn.gov.in judis W.P.Nos.5459 5463 & 54622 Tirunelveli Electricity Distribution Circle Tirunelveli.... Respondent in W.P.No.545223.The Superintending Engineer TANGEDCO Palladam Electricity Distribution Circle Palladam.... Respondent in W.P.No.546223.The Superintending Engineer TANGEDCO Dindigul Electricity Distribution Circle Dindigul.... Respondent in W.P.No.54622PRAYER in W.P.No.54522: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus directing the respondents No.1 to 3 to allow the petitioner to migrate the utility change from “Sale to Board” to “Group Captive Scheme” by terminating the existing Wind Energy Purchase Agreement dated 30.09.2010 for their Wind Mill bearing present HTSC No.079224723429 and old WEG HTSC No.3429 and to execute fresh Energy Wheeling Agreement under Group Captive Scheme by considering the petitioner s representation dated 21.01.2022 and reminder representation dated 16.02.2022 in consonance with Common Order dated 30.08.2019 passed by this Hon ble Court which was upheld by the Hon ble Division Bench of this Hon ble Court by its order dated 18.02.2020 and also by the Hon ble Supreme Court of India by its order dated 24.09.2020 with consequentila direction directing the respondents No.1 to 3 to make outstanding payment of Rs.40 70 894 to the petitioner towards the wind energy sold by them to the 2 8 https: www.mhc.tn.gov.in judis W.P.Nos.5459 5463 & 54622respondent TANGEDCO for a period from 01.07.2020 to 30.11.2021 along with interest at 1% per month for delay in payments.PRAYER in W.P.No.54622: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus directing the respondents No.1 to 3 to allow the petitioner to migrate the utility change from “Sale to Board” to “Group Captive Scheme” by terminating the existing Wind Energy Purchase Agreement dated 27.07.2015 for their Wind Mill bearing present HTSC No.039224391285 and old WEG HTSC No.1570 and to execute fresh Energy Wheeling Agreement under Group Captive Scheme by considering the petitioner s representation dated 21.01.2022 and reminder representation dated 16.02.2022 in consonance with Common Order dated 30.08.2019 passed by this Hon ble Court which was upheld by the Hon ble Division Bench of this Hon ble Court by its order dated 18.02.2020 and also by the Hon ble Supreme Court of India by its order dated 24.09.2020 with consequentila direction directing the respondents No.1 to 3 to make outstanding payment of Rs.86 34 593 to the petitioner towards the wind energy sold by them to the respondent TANGEDCO for a period from 01.07.2020 to 31.12.2021 along with interest at 1% per month for delay in payments.PRAYER in W.P.No.54622: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of 3 8 https: www.mhc.tn.gov.in judis W.P.Nos.5459 5463 & 54622Mandamus directing the respondents No.1 to 3 to allow the petitioner to migrate the utility change from “Sale to Board” to “Group Captive Scheme” by terminating the existing Wind Energy Purchase Agreement dated 25.08.2015 for their Wind Mill bearing present HTSC No.059214500110 and old WEG HTSC No.110 and to execute fresh Energy Wheeling Agreement under Group Captive Scheme by considering the petitioner s representation dated 21.01.2022 and reminder representation dated 16.02.2022 in consonance with Common Order dated 30.08.2019 passed by this Hon ble Court which was upheld by the Hon ble Division Bench of this Hon ble Court by its order dated 18.02.2020 and also by the Hon ble Supreme Court of India by its order dated 24.09.2020 with consequentila direction directing the respondents No.1 to 3 to make outstanding payment of Rs.33 83 621 to the petitioner towards the wind energy sold by them to the respondent TANGEDCO for a period from 01.07.2020 to 31.12.2021 along with interest at 1% per month for delay in payments.(In all W.P. s)For Petitioner : Mr.S.SenthilFor Respondents: Mr.Abul Kalam Standing Counsel O R D E R4 8 https: www.mhc.tn.gov.in judis W.P.Nos.5459 5463 & 54622Mr.Abul Kalam learned Standing Counsel accepts notice for the respondents and is armed with instructions to proceed with the matters finally. Hence by consent of both counsel these writ petitions are disposed finally even at the stage of admission.2. The prayers of the petitioner in all Writ Petitions is for a mandamus directing the respondents to permit the Utility Change to them by terminating the existing Energy Purchase Agreements and executing fresh Energy Wheeling Agreements.3. An identical prayer was made in the case of other similarly placed petitioners and has come to be accepted by this Court in W.P.No.51919 etc. batch by a learned single Judge of this Court vide order dated 30.08.2019 operative portion of which reads as follows: 29. Thus for the reasons stated above the writ petitions deserve to be allowed with the following directions the respondents TANGEDCO are directed to permit the petitioners to switch over to captive consumption so as to use the same for their own industry the respondents TANGEDCO are directed to settle the respective dues to the petitioners as per their respective invoices raised by them along with interest as per Clause 6(b) within a period of two months from the date of receipt of a copy of this order. 5 8 https: www.mhc.tn.gov.in judis W.P.Nos.5459 5463 & 54622(c) Consequently in view of permitting the petitioners to migrate from EPA to EWA the proceedings dated 20.05.2017 of the first respondent deciding not to concede any request for migration is set aside. 4. The aforesaid order is confirmed in W.A.No.41819 vide order dated 18.02.2020 which has also been confirmed in SLP Nos.8513 to 85120 by order of the Hon ble Supreme Court dated 24.09.2020.5. The aforesaid orders have also been consistently followed by this Court thereafter. In view of the admitted identity in facts and legal position the aforesaid orders are taken to be passed in the present matters as well.6. These Writ Petitions are allowed as above and the mandamus sought for is issued including the specific direction for settlement of dues to the petitioners. No costs. 10.03.2022sl kbsInternet: Yes NoIndex : Yes NoSpeaking Order Non Speaking OrderTo6 8 https: www.mhc.tn.gov.in judis W.P.Nos.5459 5463 & 546221.Chairman and Managing Director TANGEDCO 10th Floor 144 Annai Salai Chennai 600 002.2.The Chief Engineer Non Conventional Energy SourcesTANGEDCO 2nd Floor 144 Anna Salai Chennai 600 002.3.Secretary Tamil Nadu Electricity Regulatory Commission 19 A Rukmini Lakshmipathi Salai Egmore Chennai 600 008.4.The Superintending Engineer TANGEDCO Tirunelveli Electricity Distribution Circle Tirunelveli.5.The Superintending Engineer TANGEDCO Palladam Electricity Distribution Circle Palladam.6.The Superintending Engineer TANGEDCO Dindigul Electricity Distribution Circle Dindigul.DR.ANITA SUMANTH J.7 8 https: www.mhc.tn.gov.in judis W.P.Nos.5459 5463 & 54622sl kbsW.P.Nos.5459 5463 &5462210.03.20228 8

Alleged of Rape the petitioner was granted bail by the Court: High Court Of Patna

The Petitioner was alleged of committing rape on the informant in the presence of her 2 sisters and also further allegations were on the petitioner’s father for asking for inappropriately touching the informant. The matter was disposed of after considering all facts and circumstances and the bail was granted to the petitioners. The Hon’ble High Court of Patna before Justice Mr. Ahsanuddin Amanullah in the matter Md. Tofik Alam v. The State of Bihar[Criminal Miscellaneous No.35522 of 2020].  The facts of the case were that the petitioner was apprehended arrest in connection with the Case instituted under Sections 341, 323, 376, 354, 504, 506, 120-B/34 of the Indian Penal Code and 4 of the Protection of Children from Sexual Offences Act, 2012. It was alleged that the petitioner committed rape on informant and continued to maintain physical relationship on the pretext that he would marry her and later it is alleged that she had pain in stomach and had gone to the father of the informant, who had inappropriately touched her and told her that if she gets into physical relationship with him then he would get her married to his son. The petitioner submitted that the allegation of rape is false and is done only to create pressure to marry the informant and hence, a false case has been lodged. It was submitted that it is unbelievable that a father would tell a girl that if she gets into physical relationship with him, he would get her married to his son. The medical reports showed that she was 17-18 years old and not 16 years which she claimed to be. According to the FIR the informant was taken into a field by 2 sisters of the petitioner where the petitioner committed rape.  The Learned Additional Public Prosecutor didn’t disputed the facts mentioned in the FIR and also not controverted that rape was committed on the informant by the petitioner in the presence of his sisters and further that she was in the custody of two female constables when she was taken to the Court for getting her statement recorded under Section 164 of the Code. 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 petitioner be released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty five thousand) with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate, Katihar in Barari PS Case No. 288 of 2019, subject to the conditions laid down in Section 438(2) of the Code and further (i) that one of the bailors shall be a close relative of the petitioner, (ii) that the petitioner and the bailors shall execute bond and give undertaking with regard to good behaviour of the petitioner, and (iii) that the petitioner shall cooperate with the Court and police/prosecution. Any violation of the terms and conditions of the bonds or the undertaking or non-cooperation shall lead to cancellation of his bail bonds.” The petition was disposed off on the mentioned terms.” Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The facts of the case were that the petitioner was apprehended arrest in connection with the Case instituted under Sections 341, 323, 376, 354, 504, 506, 120-B/34 of the Indian Penal Code and 4 of the Protection of Children from Sexual Offences Act, 2012. It was alleged that the petitioner committed rape on informant and continued to maintain physical relationship on the pretext that he would marry her and later it is alleged that she had pain in stomach and had gone to the father of the informant, who had inappropriately touched her and told her that if she gets into physical relationship with him then he would get her married to his son. The petitioner submitted that the allegation of rape is false and is done only to create pressure to marry the informant and hence, a false case has been lodged. It was submitted that it is unbelievable that a father would tell a girl that if she gets into physical relationship with him, he would get her married to his son. The medical reports showed that she was 17-18 years old and not 16 years which she claimed to be. According to the FIR the informant was taken into a field by 2 sisters of the petitioner where the petitioner committed rape.  The Learned Additional Public Prosecutor didn’t disputed the facts mentioned in the FIR and also not controverted that rape was committed on the informant by the petitioner in the presence of his sisters and further that she was in the custody of two female constables when she was taken to the Court for getting her statement recorded under Section 164 of the Code. 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 petitioner be released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty five thousand) with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate, Katihar in Barari PS Case No. 288 of 2019, subject to the conditions laid down in Section 438(2) of the Code and further (i) that one of the bailors shall be a close relative of the petitioner, (ii) that the petitioner and the bailors shall execute bond and give undertaking with regard to good behaviour of the petitioner, and (iii) that the petitioner shall cooperate with the Court and police/prosecution. Any violation of the terms and conditions of the bonds or the undertaking or non-cooperation shall lead to cancellation of his bail bonds.” The petition was disposed off on the mentioned terms.” Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The petitioner submitted that the allegation of rape is false and is done only to create pressure to marry the informant and hence, a false case has been lodged. It was submitted that it is unbelievable that a father would tell a girl that if she gets into physical relationship with him, he would get her married to his son. The medical reports showed that she was 17-18 years old and not 16 years which she claimed to be. According to the FIR the informant was taken into a field by 2 sisters of the petitioner where the petitioner committed rape.  The Learned Additional Public Prosecutor didn’t disputed the facts mentioned in the FIR and also not controverted that rape was committed on the informant by the petitioner in the presence of his sisters and further that she was in the custody of two female constables when she was taken to the Court for getting her statement recorded under Section 164 of the Code. 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 petitioner be released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty five thousand) with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate, Katihar in Barari PS Case No. 288 of 2019, subject to the conditions laid down in Section 438(2) of the Code and further (i) that one of the bailors shall be a close relative of the petitioner, (ii) that the petitioner and the bailors shall execute bond and give undertaking with regard to good behaviour of the petitioner, and (iii) that the petitioner shall cooperate with the Court and police/prosecution. Any violation of the terms and conditions of the bonds or the undertaking or non-cooperation shall lead to cancellation of his bail bonds.” The petition was disposed off on the mentioned terms.” Click Here To Read The Judgment Judgment Reviewed By Nimisha Dublish The Learned Additional Public Prosecutor didn’t disputed the facts mentioned in the FIR and also not controverted that rape was committed on the informant by the petitioner in the presence of his sisters and further that she was in the custody of two female constables when she was taken to the Court for getting her statement recorded under Section 164 of the Code. 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 petitioner be released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty five thousand) with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate, Katihar in Barari PS Case No. 288 of 2019, subject to the conditions laid down in Section 438(2) of the Code and further (i) that one of the bailors shall be a close relative of the petitioner, (ii) that the petitioner and the bailors shall execute bond and give undertaking with regard to good behaviour of the petitioner, and (iii) that the petitioner shall cooperate with the Court and police/prosecution. Any violation of the terms and conditions of the bonds or the undertaking or non-cooperation shall lead to cancellation of his bail bonds.” The petition was disposed off on the mentioned terms.” 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 petitioner be released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty five thousand) with two sureties of the like amount each to the satisfaction of the learned Chief Judicial Magistrate, Katihar in Barari PS Case No. 288 of 2019, subject to the conditions laid down in Section 438(2) of the Code and further (i) that one of the bailors shall be a close relative of the petitioner, (ii) that the petitioner and the bailors shall execute bond and give undertaking with regard to good behaviour of the petitioner, and (iii) that the petitioner shall cooperate with the Court and police/prosecution. Any violation of the terms and conditions of the bonds or the undertaking or non-cooperation shall lead to cancellation of his bail bonds.” The petition was disposed off on the mentioned terms.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.355220 Arising Out of PS. Case No. 288 Year 2019 Thana BARARI District Katihar Md. Tofik Alam male aged about 25 years S o Abdul Salam resident of village Marghia Nicha Tola P.S. Barari District Katihar The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s Mr. Raghib Ahsan Senior Advocate with Mr. Bipin Kumar Advocate Mr. Md. Arif APP For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH Date : 20 07 2021 The matter has been heard via video conferencing. 2. Heard Mr. Raghib Ahsan learned senior counsel along with Mr. Bipin Kumar learned counsel for the petitioner and Mr. Md. Arif learned Additional Public Prosecutor hereinafter referred to as the ‘APP’) for the State 3. The petitioner apprehends arrest in connection with Barari PS Case No. 2819 dated 11.09.2019 instituted under Sections 341 323 376 354 504 506 120 B 34 of the Indian Penal Code and 4 of the Protection of Children from Sexual Offences Act 2012 4. The allegation against the petitioner is that he had committed rape on the informant and thereafter he continued to maintain physical relationship on the pretext that he would Patna High Court CR. MISC. No.355220 dt.20 07 2021 marry her and later it is alleged that she had pain in stomach and had gone to the father of the informant who had inappropriately touched her and told her that if she gets into physical relationship with him then he would get her married to his son. 5. Learned counsel for the petitioner submitted that only to exert pressure on the petitioner to marry her this false case has been lodged. It was submitted that it is unbelievable that a father would tell a girl that if she gets into physical relationship with him he would get her married to his son Further it was submitted that the medical report discloses that she is 17 18 years old and not 16 years. Learned counsel submitted that in the statement before the Court under Section 164 of the Code of Criminal Procedure 1973 which was recorded on 16.09.2020 she has stated that the petitioner again committed rape on her on 15.09.2019. It was submitted that such claim is falsified for the reason that from 13.09.2019 to 16.09.2019 she was in the police station in the custody of Mahila Police Constable Neha Kumari and Mahila Chaukidaar Taleshwari Devi and thus there is no question of the petitioner committing rape on 15.09.2019. It was submitted that no date of even the Jalsa meeting in which for the first time it is said that she was taken to Patna High Court CR. MISC. No.355220 dt.20 07 2021 a field and raped by the petitioner has been mentioned. Learned counsel submitted that even the allegation that she was in Jalsa and was taken to a field by Sawana Khatoon and Tajkesh Kahtoon where the petitioner was present and rape was committed is unbelievable for the reason that no such act would be committed by any person in presence of his two sisters. It was submitted that in the FIR it has been stated that two sisters of the petitioner had called her and had taken her to the field where the petitioner was present whereas in her statement under Section 161 of the Code before the police she has stated that the petitioner had taken her to the field on the pretext of introducing her to his sisters where he had committed the crime. Learned counsel submitted that in the statement under Section 164 of the Code also she had stated that the petitioner had taken her to the field where his two sisters were present and thereafter she had stated on 15.09.2020 that she was again raped in the Madrasa Thus it was submitted that there is enough discrepancy in the statements of the informant to indicate the falsity of the allegation and most importantly with regard to the allegation that the petitioner again committed rape on her on 15.09.2019 during such period she was in the custody of two female constables at the police station. It was submitted that the Patna High Court CR. MISC. No.355220 dt.20 07 2021 petitioner has been falsely implicated only to exert pressure for marriage and that he has no other criminal antecedent 6. Learned APP from the case diary did not dispute the fact that the FIR version is that the sisters of the petitioner had called the informant to the field whereas in the statement under Sections 161 and 164 of the Code she has stated that the petitioner had taken her to the field. It was also not controverted that as per the statements rape was committed on the informant by the petitioner in the presence of his sisters and further that she was in the custody of two female constables from 13.09.2019 to 16.09.2019 when she was taken to the Court for getting her statement recorded under Section 164 of the Code. 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 petitioner be released on bail upon furnishing bail bonds of Rs. 25 000 of the Code and furtherthat one of the bailors shall be a close relative of the petitioner that the petitioner and the Patna High Court CR. MISC. No.355220 dt.20 07 2021 bailors shall execute bond and give undertaking with regard to good behaviour of the petitioner and that the petitioner shall cooperate with the Court and police prosecution. Any violation of the terms and conditions of the bonds or the undertaking or non cooperation shall lead to cancellation of his 8. 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 9. The petition stands disposed off in the (Ahsanuddin Amanullah J

Absence of Applicant with or without sufficient cause – Abuse of liberty of bail : Allahabad High Court

If the applicant abuses his liberty of bail during the trial, and a proclamation under Section 82 Cr.P.C. is issued to secure his presence, and the applicant fails to appear before the court on the date fixed in such proclamation, the trial court shall initiate proceedings against him in accordance with the law, under Section 174-A of the Indian Penal Code, said Justice Om Prakash Vii of the Allahabad High Court in the matter of Rahul Kothari v. Serious fraud Investigation [CRIMINAL MISC. BAIL APPLICATION No. – 36542 of 2020]. The order was issued on the application filed by the learned counsel for the interim bail of his applicant as both parents of the applicant were Covid positive and there is no one to look after the house and applicant being the only son. But the Sri Gyan Prakash, learned Senior Advocate of the opposite side, argued that the applicant’s regular bail prayer could not be entertained because the applicant had not filed a regular bail application before the court below. It was then argued that the impugned order issued by the lower court on the default bail application contains no illegality, infirmity, or perversity. The contention is also that the provision of Section 167 Cr.P.C. itself is sufficiently clear, and default bail can only be granted if the charge sheet/complaint was not filed within the specified period. It is also argued that if the charge sheet was filed within the prescribed time frame, a default bail prayer cannot be granted. Sri Gyan Prakash learned Sr. Advocate also referred to the dates and events of the filing of the complaint and date of the first remand in the matter and argued that the complaint was filed within sixty days but the applicant did not show their presence in the court for the same matter. In the present matter huge amount i.e. Rs. 4168 crores have become N.P.A. due to modus operandi adopted by the applicant and other co-accused. Bail order passed in respect of the FIR lodged on the part of the C.B.I. was not related to the Companies Act, therefore, regular bail prayer is also not liable to be allowed. Furthermore, The applicant is also accused of abusing his position as promoter-director, resulting in a wrongful loss of Rs. 4188 crores to public sector banks. He used the corporate identity to commit fraud by rotating funds obtained through Letter of Credit discounting in order to capitalise on the interest arbitrage available between LC issuance and discounting charges and interest on fixed deposits. This entire conspiracy was carried out under the guise of performing MT.

Court No. 52. Case : CRIMINAL MISC. BAIL APPLICATION No. 36542 of Applicant : Rahul Kothari Opposite Party : Serious Fraud Investigation Office Counsel for Applicant : Sankalp Narain Counsel for Opposite Party : Gyan Prakash Sanjay Kumar Hon ble Om Prakash VII J Order on Criminal Misc. Application No. IA 05 2021 Heard Shri Vikram Chaudhary learned Senior Advocate assisted by Shri Sankalp Narain and Shri Pranjal Krishna learned counsel for the applicant Shri Gyan Prakash learned Senior Advocate assisted by Shri Sanjay Kumar Yadav learned counsel appearing for the S.F.I.O. through video conferencing. Prayer made in the aforesaid application is quoted “WHEREFORE it is most respectfully prayed that this Hon ble Court may kindly be pleased to allow the Application for Interim Relief and the applicant namely Mr. Rahul Kothari may be released on Interim Bail during the pendency of the Criminal Misc. Bail Application No. 36542 of 2020 on such terms and conditions as are deemed fit and proper in the circumstances of the case so as to meet the ends of justice Any other orders or direction which this Hon ble High Court deems fit proper in the facts and circumstances of the matter may also be passed in the interest of justice.” Submission of the learned counsel for the applicant is that both father and mother of the applicant were suffering from Covid 19 disease and were in critical condition. Father of the applicant also met with an accident. No one is to look after them in the house. Applicant is the only son. Thus referring to the documents annexed with the interim bail application prayer was made to allow the interim bail application. Sri Gyan Prakash learned Sr. Advocate appearing for the S.F.I.O. argued that earlier the applicant had also approached this Court for interim bail on other grounds but same was rejected. Since argument has been completed on the main bail application therefore interim bail application cannot be allowed. At this juncture learned counsel appearing for the S.F.I.O. also referred to the prayer made in the interim bail application and prayed for rejection of the application. Having considered the rival submissions and going through the affidavit annexed with the interim bail application and also the documents annexed therewith the court is of the view that interim bail application moved by the applicant is not liable to be allowed as main bail application moved by the applicant is being decided today itself. Thus the interim bail application is hereby rejected. ORDER ON CRIMINAL MISC. BAIL APPLICATION No. 365420 This application has been filed with the prayer to enlarge the applicant Rahul Kothari on bail in S.T. No. 577 of 2020 SFIO Vs. Rotomac Global Pvt. Ltd. and others) for the alleged offences under Sections 36r w 447 185 186 447 448 r w 447 of the Companies Act 2013 and Section 211 r w 628 of the Companies Act 1956. Heard Shri Vikram Chaudhary learned Senior Advocate assisted by Shri Sankalp Narain and Shri Pranjal Krishna learned counsel for the applicant Shri Gyan Prakash learned Senior Advocate assisted by Shri Sanjay Kumar Yadav learned counsel appearing for the S.F.I.O. through video conferencing. Sri Chaudhary learned Sr. Advocate submits that present bail application has been moved taking recourse to the provisions of Sections 167 and 439 Cr.P.C. both. Although no regular bail application has been moved before the court below yet keeping in view the pandemic situation in the country and non regular functioning of the District Sessions Court regular bail prayer of the applicant could be heard and decided by this Court itself. It is also argued that initially one FIR was lodged by the Central Bureau of Investigation against the applicant and he was arrested and thereafter applicant moved bail application and he was allowed on bail by the co ordinate Bench of this Court. C.B.I. approached the Apex Court but the S.L.P. was rejected. It was next contended that since the applicant was allowed on bail on the basis of same set of facts in the case started by the C.B.I. therefore applicant is also entitled to be released on bail in the present matter started by the S.F.I.O. Referring to the provisions of Section 212of the Companies Act it was further argued that bar created in this Section will not come in the way to release the applicant on regular bail as no new facts have been brought up by the 10. Sri Chaudhary also referred to the provisions of Section 167 173 and 309 Cr.P.C. and further argued that mere filing of the complaint police report within the period of 60 days will not be sufficient to deprive the applicant from an indefeasible right accrued in his favour. Referring to the dates and events of the filing of the complaint taking of the cognizance and also the date of extended remand it was next contended that cognizance had not been taken within 60 days therefore indefeasible right had been accrued in favour of the applicant to release him on bail as applicant had applied for default bail on 18.05.2020 itself. At this juncture learned Sr. Advocate also referred to the legal position and further argued that right of the default bail accrued in favour of the applicant will not be extinguished by filing of the complaint challan only. Trial Court while rejecting the default bail prayer has committed illegality Remand of the accused after filing the police report complaint could not continue under Section 167 Cr.P.C. therefore on this ground also remand extended by the concerned Magistrate is illegal and applicant is entitled to be released on bail as custody of the applicant is illegal in the present matter. It was further argued that ratio laid down by the Hon ble Supreme Court in Sanjay Dutt Case could not be applied in the present matter The same was propounded on the basis of concession given by the learned counsel appearing for the accused in that matter. At this juncture learned counsel appearing for the applicant also referred to the observations recorded by the co ordinate Bench of this Court in Bail Application No. 29218 and 34918 and further argued that bar created under Section 2125 SCR 37 AIR 1964 SC 1541 2. K.S. Puttaswamy Versus Union of India 10 SCC 1 3. Beni Madhava Versus State of Rajasthan 1981 SCC Online Raj 88 1983 Cri LJ 633 4. Gopal Das Sindhi Versus State of Assam AIR 1961 SC 1993 SC 1 5. Aslam Babalal Desai Versus State of Maharashtra AIR 6. Vinubhai Haribhai Malaviya Versus State of Gujarat AIR Online 2019 SC 1199 7. Mithabhai Pashabhai Patel Versus State of Gujarat AIR 2009 SC1658 6 SCC 332 8. Ram Narayan Singh Versus State of Delhi 1953 Cri 538 3 SCC 628 9. Narendra Kumar Amin Versus C.B.I. 3 SCC 417 10. Sanjay Dutt Versus State through C.B.I. 1994 AIR SCW 11. Uptron India Ltd. Versus Shammi Bhan 6 SCC 12. Union of India Versus Mohanlal Likumal Punjabi 3 SCC 77 14. Vineet Narain Verus Union of India 1 SCC 226 15. C.B.I. Versus Ashok Kumar Aggarwal14 SCC 16. State of Bihar Versus J.A.C. Saldanha 1 SCC 17. Hussainara Khatoon and Ors. Versus Home Secretary State of Bihar Patna1 SCC 108 18. Ranjitsingh Brahmajeetsing Sharma Versus State of Maharashtra 5 SCC 294 19. Natabar Parida Versus State of Orissa 2 SCC 220 SCC484 20. Nikesh Tarachand Shah Versus Union of India 11 SCC 1 2 SCC302 21. Sanjay Chandra Versus C.B.I. 1 SCC 40 22. Bikramjit Singh Versus State of Punjab10 SCC 23. Rakesh Kumar Paul Versus State of Assam 15 24. Achpal Versus State of Rajasthan 14 SCC 599 2019) 17 SCC 326 SCC 14 1 SCC 554 2001) 5 SCC 453 25. Yogesh Mittal Versus Enforcement Directorate MA 1487 2017 in Criminal Appeal No.20117 26. Shri Chamundi Mopeds Ltd. Versus Church of South India Trust Association 3 SCC 1 27. Mohd. Iqbal Madar Sheikh Versus State of Maharashtra 1 SCC 722 28. State of U.P. Versus Lakshi Brahman 2 SCC 29. Pradeep Ram Versus State of Jharkhand & Another 30. Union of India Versus Thamisharasi 4 SCC 190 31. Deepak Bajaj Verus State of Maharashtra 16 32. State of Bihar Versus J.A.C. Saldhana and Ors. 3 SCC 141 Learned Sr. Advocate also referred to the points disclosed in the written argument and further argued that there are two stages in Section 167 Cr.P.C. Section 167Cr.P.C. is related to the prosecution agency but Section 167 Cr. P. C. is related to the Court. It is next contended that in action on part of the Court in taking cognizance will not be a ground to deprive the accused to release him on default bail. Material question in the present matter is that cognizance was taken on the complaint after prayer made by the applicant for default bail Thus it is argued that present bail application be allowed and applicant be released on bail. 12. Sri Gyan Prakash learned Sr. Advocate argued that regular bail prayer made by the applicant cannot be entertained as the applicant has not moved regular bail application before the court below. It was next contended that there is no illegality infirmity or perversity in the impugned order passed by the court below on the default bail application. Contention is also that provision of Section 167 Cr.P.C. itself is ample clear and default bail can only be granted in case charge sheet complaint was not filed within the stipulated period. It is further argued that if charge sheet had been filed within the prescribed period default bail prayer cannot be allowed. 13. Sri Gyan Prakash learned Sr. Advocate also referred to the dates and events of the filing of the complaint i.e 15.05.2020 and date of first remand in the matter i.e 21.03.2020 and argued that complaint was filed within sixty days. It was further argued that if sixty days period is calculated from the date of first remand i.e. 21.03.2020 then also there was no fault on part of the prosecution. Thus default bail application moved by the applicant has rightly been rejected by the Trial Court. It was next contended that transit remand period for producing the accused before the concerned Magistrate having jurisdiction shall not be taken into consideration at the time of calculating the sixty days period Referring to the law laid down in Suresh Kumar Bhikamchand Jain and Pradeep Ram case it was next contended that since complaint police report was filed within the period of sixty days no right shall accrue in favour of the applicant to release him on default bail. It was further contended that regular bail application of the applicant could also not be allowed as there is clear bar under Section 212of the Companies Act will not come in the way in allowing the regular bail application. Both the courts i.e. High Court and Sessions Court have concurrent jurisdiction therefore regular bail prayer could be moved directly before this Court. Remand was extended without taking cognizance on the complaint in the present matter thus it indicates that it was beyond the scope of Section 167 Cr.P.C. In that situation only provision for extended remand is given in Section 309 Cr.P.C Thus referring to the aforesaid facts it was next contended that the applicant is entitled to be released on default bail and also on regular bail. 15. Prosecution case in nutshell as disclosed in the bail application and affidavits filed by the parties are that the applicant has been arrayed as an accused no. 42 in the complaint dated 15.05.2020 filed by the S.F.I.O.. It has been averred in the said complaint that applicant was one of the promoter Director of the Rotomac Global Private Limited hereinafter will be referred as R.G.P.L.) Crown Alba Writing Instruments Private Limited Kothari Foods and Fragrances Private Limited Rotomac Exports Private Ltd and also Rotomac Exim Private Limited and other sister companies which caused wrongful loss to the public sector banks to the tune of Rs. 4168 crores as N.P.A. Aforesaid companies and sister companies of the Rotomac Group of Companies were engaged in the business of commodities and merchant trading MT). Aforesaid companies had secured the credit faciltiies by way of margin money FDs as well as other co lateral. It has also been averred that since its incorporation R.G.O.C. had duly serviced all its loan and obligation towards bank and other creditors in a timely manner and over a period of time banks have increased sanctioned limit from time to time. Later on on the basis of complaint M.C.A. &of the Companies Act formed an opinion that the investigation into affairs of 11 Companies of Rotomac Group is necessary to be conducted by the S.F.I.O and pursuant to the aforesaid order complainant was appointed as Investigating Officer. On completion of investigation investigation report dated 06.05.2020 was submitted to the M.C.A. who in turn granted direction to initiate prosecution against the accused whose name appears in the complaint Complaint also reveals that R.G.O.C. and its promoters and directors have fraudulently induced the banks to obtain credit facility. False deceptive documents for opening of Letter of Credit was also furnished before the banks concerned manipulating and misrepresenting the financial statement Allegations is also that aforesaid group of companies flouting the R.B.I. Guidelines obtained M. T. finances and credit facility from the banks. Complaint also reveals that fictitious M.T. Trade were also shown in the financial statement showing it to be profitable. Aforesaid companies were also engaged in speculative currency transaction. For the aforesaid reason and showing the false M.T. Trade over the years Rs. 4168 crores became outstanding which in turn became N.P.A. Thus aforesaid group of companies caused a loss of multi crores rupees to the public sector banks. Complaint also reveals that aforesaid companies adopting aforesaid modus operandi obtained bad debts write off. They also made manipulation in share capital. They have not shown true and fair picture of the business done by them and also furnished wrong reflection of sales and purchase figure. They have also wrongly classified the interest income. It has also been averred that applicant under the garb of MT conducted moping of interest arbitrage thereby fraudulently inducing the public sector Banks to obtain credit facilities Applicant had knowingly falsified the books of accounts and the financial statements deliberately concealing material facts. It is also averred that applicant was also indulged in speculative currency trading unrelated to MT being undertaken by RGC thereby gambling with Banks money which resulted in huge loss. Applicant was instrumental in holding the currency losses in the books of accounts under the garb of debit notes. These debit notes were raised against foreign parties and made part of trade receivable. Later on these debit notes were adjusted against the payment received from the LC rotated funds. 17. Allegation against the applicant is also that he abused his position as promoter director and caused wrongful loss of Rs 4188 Crores to public sector Banks. He utilized the corporate identity to perpetrate fraud of rotating the funds obtained through Letter of Credit discounting for mopping the interest arbitrage available between LC issuance and discounting charges and that between the interest on fixed deposits. This whole conspiracy was played under the garb of doing MT Applicant and co accused also used the corporate identity to rotate LC funds for mopping the interest arbitrage and showed it in the books as Merchanting Trade business Since it was not actually into MT business the corresponding sales and purchase shown in the financial statements and books of accounts was false. Since mopping of interest was done by keeping the rotated funds obtained through LC discounting in Fixed Deposits to camouflage the same and the interest income from FD was shown as part of revenue from operation in the financial statements to give a false picture of profitability of MT business. A large amount of these fictitious trade receivables were standing against their undisclosed 19. Thus the sum and substance of the investigation conducted in the matter and the facts mentioned in the complaint for prosecution are that concerned Companies were engaged in fraudulent merchantine trade and caused wrongful loss to the Public Sector Banks to the tune of Rs. 7820 Crores approximately applying different modus operandi including siphoning of Bank funds through merchantine trade falsification of financial statement of the Companies involved in the matter by not showing true and fair views. I have considered the rival submissions made by the learned counsel appearing for the parties and have gone through the entire record including the case laws relied upon by the parties. 21. Before dealing with the matter I find it necessary to quote the order passed in Bail Application No. 29218 and 34918 passed on 30.11.2018 : “These two bail applications were heard together on several dates and some significant orders were passed by this Court on 25.10.2018 14.11.2018 and 20.11.2018. By order dated 25.10.2018 the Court directed for impleadment of the informant Bank of Baroda on whose behalf arguments were made by Sri Chandra Shekhar Sinha learned counsel. The order passed on 14.11.2018 opened the hearing but for lack of understanding the issues dimensionally the matter was posted on 20.11.2018. The following order was passed on The three dimensional question which this bail application involves ispersonal liberty of the accused persons read with Section 13(d) of the Prevention of Corruption Act. 1988 Police Station CBI BS&FC New Delhi District Kanpur Delhi. Charge sheet was filed on 19.5.2018 under the same very sections. Supplementary charge sheet was also filed on 7.8.2018. Both the charge sheets mention of pendency of further investigation but not against the applicants. The relevant portion of the charge sheet in this regard may be extracted as under That further investigation is pending against Smt. Sadhna Kothari Directgor of M s RGPL FIR named accused in this Sri Ravindra Dalal case and also pending against Sri Brijesh Shankar Mishra CFO of M s RGPL Sri Manoj Upadhyay Senior Manager of M s RGPL Sri Shailesh Rawat GM Banking and Finance of M s RGPL Sri Pawan Kumar Gupta Assistant Accountant of M s RGPL Sri Umesh Kumar Verma Accountant of M s RGPL Sri Krishan Narain Pandey GM Accounts & Audit) of M s RGPL Sri N.K. Agarwal Credit AGM Branch Head Officer Scale II Sri Dheeraj Agrawal Assistant Manager Operation & Forex) Sri Radhey Shyam Senior Manager Joint Manager Smt. Ankita Srivastava the then Scale I Officer. Sri Sunando Bandopadhyay Assistant Manager Scale I) Sri Dipesh Narain Officer Sri Anil Kumar Rakhit Senior Manager Forex Incharge Ms. Parul Nigam Assistant Manager Operation Sri Keerthy Anjaneyulu Chief Manager Branch Head Sri Sanjiv Jha Sr. Manager Forex) all staff posted at BOB IBB Kanpur and Shri Mangalore Devadas Mallya the then Chairman & Managing Director Sri Rajiv Kumar Bakshi the then Executive Director Sri Atul Agarwal the then Direkctorposted at BOB Head Office Mumbai and unknown private persons unknown public servants After completion of investigation under Section 173(8 against the above mentioned accused persons supplementary charge sheet will be filed in this Hon ble Court in due course." The Court has heard the case of both the applicants in the light of material gathered in the charge sheet filed on 19.5.2018. The charge sheet prima facie makes a distinction of complicity between the two accused applicants in the backdrop of their role which each of them has severally played in the business of the Company of which they are joint beneficiaries. The distinction lies in the framing of charges itself which read as follows i) M s Rotomac Global Private Limited(A 1 u s 420 IPC through its CMD Sh. Vikram Kothari authorised representative. Sri Vikram KothariCMD of M s RGPL u s 120 B r w 420 467 468 471 IPC and Section 13(2) r w 13of PC Act 1988 and substantive offence u s 420. 471 r w 467 & 468 Sri Rahul Kothari Director of M s RGPL u s 420 467 468 471 IPC and section 13r w 13(d) of PC Act 1988 and substantive offence u s 420 IPC. The arguments put forth by learned counsel for the applicants is that if everything that is projected in the charge sheet is believed to be true yet distinction in the complicity of the two applicants is manifest from the charges itself and there is no reason as to why Rahul Kothari who has not played any representative role in the business affairs of the Company may be responsible for commission of the offences in the nature of cheating or forgery therefore accused Rahul Kothari is entitled to be enlarged on bail. It is further argued that all the properties and business establishments have been sealed attached Consequentially not only that the personal liberty of the applicants has been curtailed but the applicants are deprived of the right of defence in the present case as well as in the civil proceedings resorted to against them which is a blatant disregard of the procedure established by law. The submission put forth by learned counsel for Rahul Kothari could not be successfully refuted by learned counsel for CBI or the Bank on any tangible ground except for the fact that the Company was joint family business and each Director having equal mens rea was vicariously liable for the commission of offence. This is a submission relevant at the time of trial but not at this stage when the Court is considering the case of Rahul Kothari for bail is to face who Regard being had to the entirety of material placed on record this Court would find that after filing of charge sheet against Rahul Kothari his further detention in jail would be nothing but a measure of punishment before holding trial This in my humble view is not permissible looking to the scope of Article 21 of the Constitution of India hence a case for grant of bail is made out in favour of Rahul Insofar as the co accused Vikram Kothari Managing Director of the Company is concerned it has strongly been argued that even if it is assumed that there is a prima facie case against him yet after filing of the charge sheet there is no justification for the CBI to harp on his continued detention which impinges upon the personal liberty of the accused applicant In nutshell it is argued that the same very ground on which the co accused is entitled to be granted bail in equal measure is applicable to the case of Vikram Kothari he may also be set This Court would note that the advances made to M s Rotomac Global Pvt. Ltd. have not been secured by primary or collateral security as per the mandate of Section 21 of Banking Regulation Act 1949. The consortium of nationalised banks prima facie appears to have failed to secure the advances by adhering to the condition of primary security margins and even not to the extent of collateral Securities despite the fact that there exists a pervasive control of the Ministry of Finance and Reserve Bank of India. The Court may strike a note of caution that the public money in the pursuit of windfall profits by the persons of creditworthiness cannot be advanced in dark and without ensuring cent percent security. This Court would therefore not lose sight of the fact that the creditworthiness of the Company has come under the cloud on the basis of alleged misrepresentation by the Managing Director. Hoping that the CBI would retrieve the loss and shall not spare anybody who has shaken the trust of public in the interest of investigation and looking to the apprehensions raised the prayer for bail made by Vikram Kothari at this stage is rejected This Court is also constraint to observe that the matters of economic offences are bound to be tried by the courts of law with expedition so that the delay does not become a cause of Learned counsel for the applicants cited a series of the system to distrust concern which Mohan Singh Advocate Vs. Union Territory Chandigarh 1978) 2 Supreme Court Bhagirathsinh Judeja versus State of AIR 1984 Supreme M.P. Lohia versus State of W.B. and 2005) 2 Supreme Court Som Mittal versus Government of 2008) 3 Supreme Court S.K. Alagh versus State of U.P and 2008) 5 Supreme Court Maksud Saiyed versus State of Gujarat and others 2008) 5 Supreme Court Dalip Kaur and others versus Jagnar Singh and another 2009) 14 Supreme Court cases 696 Ratiram and others versus State of 2012) 4 Supreme Court Sunil Bharti Mittal versus Central Bureau of Investigation 2015) 4 Supreme Court Rajendra Prakash Agrawal versus Union of India and another 2015) 15 Supreme Court cases 233 Dataram Singh versus State of U.P 2018) 3 Supreme Court Learned counsel for CBI also cited the following Nimmagadda Prasad versus Central Bureau of Investigation Court cases 466 7 Supreme Y.S. Jagan Mohan Reddy versus Central Bureau of Investigation Court cases 439 7 Supreme Gulabrao Baburao Deokar versus State of Maharashtra and others 2013) 16 Supreme Court cases 190 Prem Prakash Verma versus Central Bureau of Investigation Court cases 414 5 Supreme Virupakshappa Gouda and another versus State of Karnataka and Court cases 406 3 Supreme State of Bihar and another versus Amit Kumar alias Bachcha Rai 2017) 13 Supreme Court cases 751 Reference to each decision cited by the applicants and dealing with the principles embodied therein in my humble view is uncalled for once the fact situation of the present case is dealt with by recording reasons in the discretionary exercise of powers Insofar as the decisions cited by learned counsel for CBI are concerned emphasis has been laid on the nature of offences being economic. It is urged that the apex court in the matters of this category of offences has not disapproved the apprehensions of investigating agency and curtailing the right of personal liberty has been dealt with firmly and without attaching more importance to the right of personal liberty which each offender may claim This submission advanced by learned counsel for CBI is not convincing for the reason that no material has been supplemented against the accused applicants after filing of the charge sheet on 19.5.2018 and the accused applicants are languishing in jail since last more than nine months without any progress in the trial. This Court while dealing with the right of personal liberty must have due regard to such a fundamental right of a citizen and the procedure established by law has to be essentially weighed of which the premise cannot be founded on mere apprehensions. That apart for any such conduct it is always open to the investigating agency to approach the court of law for seeking cancellation of bail but at this stage nothing would turn on the basis of presumptive apprehensions of the investigating agency insofar as the grant of bail to Rahul Kothari is concerned. In view of the aforesaid discussions the bail application of Vikram Kothari is rejected at this stage and that of Rahul Kothari is allowed Let Rahul Kothari involved in involved crime no RC BD1 2018 E 0001 under Section 120 B IPC read with Section 420 467 468 and 471 IPC and Section 13 read with Section 13(d) of the Prevention of Corruption Act 1988 Police Station CBI BS&FC New Delhi District Kanpur Delhi be released on bail on his furnishing a bail bond and two heavy and reliable sureties to the satisfaction of the court concerned subject to the following conditions. i) The applicant shall surrender his passport before the ii) The applicant shall give due intimation to the court concerned about any movement within the country with specific time schedule immediately on his court The applicant shall file undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law iv) The applicant shall remain present before the trial court on each date fixed either personally or through counsel. In case of his absence without sufficient cause the trial court may proceed against him under Section 229 A of the Indian Penal Code In case the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation then the trial court shall initiate proceedings against him in accordance with law under Section 174 A of the Indian Penal Code vi) The applicant shall remain present in person before the trial court on the dates fixed foropening of the case ii) framing of charge andrecording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law. The trial court is also expected to expedite the trial once the charge sheet has been filed.” It is admitted fact in the present matter that the applicant has not moved regular bail application before the court below Only default bail application was moved and same was rejected by the court below. Thereafter present bail application has been moved before this Court taking recourse to the provisions of Section 439 and 167 Cr.P.C. It is true that provision of Section 212 Cr.P.C. has not been mentioned in the bail application but on this technical ground alone prayer made by the applicant to consider the bail application on regular side cannot be rejected Thus preliminary objection raised on behalf of the S.F.I.O cannot be accepted particularly keeping in view the pandemic situation arose in the country and non regular functioning of the subordinate courts. 23. As far as default bail is concerned applicant was allowed on bail through aforesaid Bail Application No. 34918 in a case lodged by the C.B.I. Present matter is related to the Companies Act and S.F.I.O. is only authorized to investigate the matter. Applicant s judicial custody was firstly made on 21.03.2020. It is settled proposition of law that period of transit remand cannot be included in the total period of judicial custody for calculating the sixty days period for filing the charge sheet police report complaint. In this matter complaint had been filed on 15.05.2020 itself in the court. Sixty days period for filing the police report complaint was to be expired on 17.05.2020. 24. Submission of the learned counsel appearing for the applicant is that since cognizance was taken on 29.05.2020 therefore remand extended after expiry of sixty days period was illegal and indefeasible right had accrued in favour of the applicant to release him on default bail. 25. To analyse the submissions raised across the Bar on this score court has minutely perused the case laws relied upon by the learned counsel appearing for the parties. 26. Submissions made by the learned counsel appearing for the applicant and disclosed in the written submission regarding the application of provisions of Section 167Section 167Cr.PC. in the present matter till the court takes cognizance on the complaint as has been discussed herein above. Custody of the applicant on this score will not be deemed to be illegal and applicant was not deprived of his constitutional right as enshrined under Article 21 of the Constitution of India. There was valid ground to extend the judicial custody of the accused applicant under Section 167of the Companies Act have not been considered while allowing the bail application of the applicant in the F.I.R. lodged by the C.B.I. which clearly prohibits the release of the accused unless and 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. Bar created under Section 212 of the Companies Act is also against the release of the applicant. Thus regular bail application of the applicant in the opinion of the court is also not liable to be allowed. 28. Thus on the basis of discussion made herein above and keeping in view the entire facts and circumstances of the case and also the amount involved in the matter which has become N.P.A. the court is of the view that no case for regular bail is made out. 29. The prayer for regular bail is also hereby rejected. Order Date : 11.05.2021

Merely claiming that he is not tenant of the plaintiff would not constitute a ground under Section 12(1)(c) of the Chhattisgarh Accommodation Control Act of 1961- Chhattisgarh High Court

For ground under   Section   12(1)(c)   of the   Act of   1961, the title must be specifically denied by the   Respondent, which is detrimental to the interest of the plaintiff, then only ground under Section 12(1)(c) of the Act of 1961 is made out. A single-judge bench comprising of Justice Sanjay K. Agrawal adjudicating in the matter of Shivprasad Tiwari v. Banshilal Sablok(Second Appeal No.293 of 2006) dealt with an issue of whether to set aside judgment passed by the lower courts. In the present case, the Appellant preferred a second appeal claiming that the Respondent is his tenant and the judgment and decree passed under   Section   12(i)(a)   &   (c)   of the Chhattisgarh Accommodation Control Act, 1961 should be set aside. The plaintiff’s mother purchased a property and constructed a shop over there and let out such shop to the Respondent (died during the pendency of the second appeal) for a monthly rent of Rs.500/- for non-residential purpose and after the death of the plaintiff’s mother, he became the landowner of the suit accommodation. Plaintiff further stated that the Respondent is not paying rent for the last 3 years for which he was served legal notice. The Respondent did reply to legal notice but neither paid the rent and denied the plaintiff’s title and thereby he is entitled to a decree u/s 12(1) (a) &(c) of the   Chhattisgarh   Accommodation   Control   Act, 1961. The Respondent in his written statement denied the averments made by Plaintiff and stated he was not the tenant of Plaintiff. The Respondent in his reply to the legal notice stated that the plaintiff is not the landlord of the suit accommodation. The plaintiff submitted that both courts below have committed legal error in holding that relationship of landlord and tenant is not established between the plaintiff and the Respondent. The court has ignored the testimonies of the witnesses, where they clearly admitted that the suit accommodation was let-­out   by the plaintiff’s mother to the Respondent, and hence the findings recorded by the two courts below are liable to be dismissed. Also, it was further submitted that u/s-12(1) (a) & (c) of the   Chhattisgarh   Accommodation   Control   Act, 1961. it is clearly established that the plaintiff’s mother purchased the suit land and after the death of his mother, the plaintiff has succeeded the suit property,   as such,   finding recorded by two   Courts below that relationship of landlord and tenant between the plaintiff and the Respondent is not established is perverse and is hereby set-aside. The court after minute consideration of both the parties, it is clearly established that the plaintiff’s mother purchased the suit land and after the death of his mother, the plaintiff has succeeded the suit property,   as such,   finding recorded by two   Courts below that relationship of landlord and tenant between the plaintiff and the Respondent is not established is perverse and is hereby set­aside. Also, it is clearly established that the plaintiff’s mother purchased the suit land and after the death of his mother, the plaintiff has succeeded the suit property, as such, finding recorded by two   Courts below that relationship of landlord and tenant between the plaintiff and the Respondent is not established is perverse and is hereby set-aside. Also, the court stated that the Respondent has not denied the title of the plaintiff specifically. Merely claiming that he is not a tenant of the plaintiff would not constitute a ground under Section 12(1)(c) of the Act of 1961. For ground under   Section   12(1)(c)   of the   Act of   1961, title must   be specifically denied by the   Respondent, which is detrimental to the interest of the plaintiff, then only ground under Section 12(1)(c) of the Act of 1961 is made out and simple and vague denial of the plaintiff’s title,   if   any,   would   not   constitute   a ground   under   Section   12(1)(c)   of   the   Act   of   1961, therefore,   the   plaintiff   is   not   entitled   for   decree under Section 12(1)(c) of the Act of 1961. In the present case the arrears of rent  has not been paid to the plaintiff on the premises that there is no relationship of landlord and tenant, as such, since it has already been held that relationship between   the   plaintiff   and   the   Respondent   as   landlord and   tenant   is   established   and   despite   service   of notice (Ex.P­3) to the Respondent he has not tendered arrears   of   rent   within   two   months   from   the   date   of notice   (Ex.P­1),   the   plaintiff   would   be   entitled   to decree under Section 12(1)(a) of the Act of 1961. Both the   substantial   questions   of   law   are   answered   in favour of the plaintiff and against the Respondent. Finally the court relied upon Satish Chandra v. Jankiprasad and considered Section 12(1)(a) of the Act of 1961 and held that it is not necessary to mention in the demand notice the period within which arrears to be paid, and even if period less than two months is mentioned, the demand notice shall not become invalid.

Shivprasad Tiwari S o Vasudev Prasad Tiwari Aged about 51 years R o Naharpara Raipur1­A. Harish Sablok S o late Shri Banshilal Sablok Aged about 48 years R o­P­225 6 Priyadarshni Nagar Raipur 2. This second appeal preferred by the appellant plaintiff was admitted for hearing on 13.12.2007 by formulating the following substantial not the owner and the respondent defendant not his tenant is perverse since both the the plaintiff as also the documents Ex.P­1 B. If yes whether the judgment and decree passed under Section 12(i)(a) & of the referred hereinafter as per their status shown and nomenclature in the suit before the trial 3. It is the case of the plaintiff that the suit accommodation was owned by his mother Bhagwati Bai which she has purchased by Exs.P­1 & P­2 and constructed a shop therein which she let­out to original defendant Basnshilal who died during he became landlord of the suit accommodation. It is further case of the plaintiff that the defendant is legal notice vide Ex.P­3 on 20.8.1998 which was of the Chhattisgarh Accommodation Control Act 1961 hereinafter called as the Act of 1961 4. Resisting the suit the defendant filed his written plaintiff is not entitled for decree. He has also pleaded that on 16th March 1986 the plaintiff has also issued notice to the defendant which he has 5. The trial Court upon appreciation of oral and documentary evidence available on record by its judgment and decree dated 23.7.2003 dismissed the appeal being preferred by the plaintiff the first appellate Court affirmed the judgment and decree of the trial Court and dismissed the first appeal Questioning the judgment and decree of the first in which two substantial questions of law have been 6. Mr.Amrito Das learned counsel for the below have committed legal error in holding that he referred paras­7 and 19 and also referred the statement of Narayan Prasad Trivedi the defendant has not denying the landlord­tenant relationship as such he is entitled for decree of eviction on the ground landlord and tenant between the plaintiff and the which has been called in question in this second In order to establish landlord­tenant relationship the plaintiff­Shivprasad Tiwari has examined himself as PW­1 and also examined witness Shri Narayan Prasad Trivedi as PW­2. It is quite accommodation is situated is purchased by the been examined as PW­1. He has stated that the suit as PW­2. In para­7 of cross­examination on question plaintiff has clearly stated that the suit him and in same paragraph on question being put this is carrying his business in the suit accommodation Prasad Tiwari in whose presence the suit accommodation has been let­out in para­5 he has purchased the suit land and thereafter tenancy was Apart from the plaintiff witness in cross­ examination the aforesaid fact has been extracted that the suit accommodation was let­out by the his own title right but he is tenant as such from the statements of plaintiff­Shivprasad Tiwari it is clearly has succeeded the suit property as such finding recorded by two Courts below that relationship of landlord and tenant between the plaintiff and the and tenant is established between the plaintiff and The plaintiff has pleaded two grounds under to the defendant he has denied the title of the the Act of 1961 and reply to notice has also been “12. Restriction on eviction of tenants.­(1 Notwithstanding anything to the contrary shall be filed in any civil Court against a which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation or which is likely to affect deemed to be an act inconsistent with the purpose for which he was admitted to the ground under Section 12(1)(c) of the Act of 1961 title must be specifically denied by the defendant plaintiff s title if any would not constitute a ground under Section 12(1)(c) of the Act of 1961 therefore the plaintiff is not entitled for decree defendant has also filed reply vide Ex.P­6 and the not been paid to the plaintiff on the premises that there is no relationship of landlord and tenant as between the plaintiff and the defendant as landlord and tenant is established and despite service of arrears of rent within two months from the date of notice the plaintiff would be entitled to the substantial questions of law are answered in within which arrears to be paid and even if period judgment and decree of both the Courts below are of the Act of 1961 and it is directed that the defendant will hand over the peaceful vacant possession of the suit accommodation as shown in from the date of drawing the decree. The plaintiff Sd 1 1992 MPLJ 90

The petitioners were released on bail after being arrested under Sections 8(c), 22(b) of The NDPS Act, 1985 as they had the license to deal in drugs.: High court of Patna

The petitioners, who are husband and wife were taken into custody under  Section 8(c) The Narcotic Drugs and Psychotropic Substances Act, 1985, “produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes”, section 22(b) of NDPS act, “where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees.” This present petitioner is in connection with Dholbajja (Kadwa) PS Case No. 08 dated 24.01.2021. In the high court of Judicature at Patna, this judgment was given by honorable Mr. Justice Ahsanuddin Amanullah on the 16th of August 2021 in the case of Shabana Perween and Md. Imtiyaz Alam versus the state of Bihar criminal miscellaneous No. 41027 of 2021, Mr. P K Shahi Represented as the senior advocate for the petitioner, and Mr. Jharkhandi Upadhyay 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 are husband and wife and they are accused of selling 16 cartons containing bottles of Wiscof syrup, each of 100 ml., which was seized from the possession of arrested co-accused, who had bought the same from the shop owned by the petitioners, petitioner no.1 is the licensee and petitioner no.2 is the agent and both were present when such a purchase was made and was clearly involved in the crime. The counsel representing the petitioners held that with regard to the allegations in the FIR  the petitioners are legal distributors both wholesale and retail and they sold medicines that were seized by the police and therefore committed no offense by selling the same. Further, the counsel held that the agency of the petitioners had a license to deal with drugs, and the amount seized was purchased by them from a wholesaler of the said drugs prior to the date on which the medicines were seized. Therefore, the petitioners cannot be held liable for any misuse of these drugs after it was being sold and the counsel also brought before the court the license of the parties which was valid till 2023 and 2025. The counsel held that the petitioners have no other criminal antecedent and the statement made by the co-accused before the police have no value in the eyes of the law. The additional public prosecutor held that the person who was caught with drugs which is the co-accused in his statement stated that he bought the same from the shop of the petitioners. After considering the facts and circumstances of the case the court held that “the petitioners having a license to deal in drugs, both as wholesalers and as retailers and having purchased the syrups in question from the authorized agency as also having no criminal antecedent, the Court is inclined to allow their prayer for pre-arrest bail. The petitioners will be released on bail upon furnishing bail bonds of Rs. 25,000 each with two sureties of the like amount each to the Sessions Judge, in connection with PS Case No. 08 of 2021, 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 petitioners and (ii) that the petitioners shall co-operate with the Court and police/prosecution. Failure to cooperate shall lead to the cancellation of their bail bonds. The petition stands disposed of in the aforementioned terms.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 410221 Arising Out of PS. Case No. 8 Year 2021 Thana DHOLBAJJA District Bhagalpur Shabana Perween Female aged about 41 years Wife of Md. Imtiyaz Alam. 2. Md. Imtiyaz Alam @ Imteyaz Alam Male aged about 48 years Son of Md Both residents of village Ujani PS Naugachia District Bhagalpur The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s Mr. P K Shahi Senior Advocate with Mr. Md. Najmul Hodda Advocate Mr. Jharkhandi Upadhyay APP For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 16 08 2021 The matter has been heard via video conferencing. 2. The case has been taken up out of turn on the basis of motion slip filed by learned counsel for the petitioners on 03.08.2021 which was allowed. 3. Heard Mr. P K Shahi learned senior counsel along with Mr. Md. Najmul Hodda learned counsel for the petitioners and Mr. Jharkhandi Upadhyay learned Additional Public Prosecutorfor the State 4. The petitioners who are wife and husband apprehend arrest in connection with DholbajjaPS Case No. 08 of Patna High Court CR. MISC. No.410221 dt.16 08 2021 2021 dated 24.01.2021 instituted under Sections 8(c) 22(b) of The Narcotic Drugs and Psychotropic Substances Act 1985 5. The allegation against the petitioners who are wife and husband is that the 16 cartons containing bottles of Wiscof syrup each of 100 ml. which was seized from the possession of arrested co accused Abhiram Kumar had been bought from the shop of which petitioner no. 1 who is the licensee and petitioner no. 2 who is the authorized agent of petitioner no. 1 both were present in the shop when such purchase was made 6. Learned counsel for the petitioners submitted that no allegation is made out from the entire reading of the FIR as even if it is accepted that the medicines which were seized by the police had been sold by the petitioners they being the legal distributors both wholesale and retail had committed no offence by selling it to any person. It was submitted that the agency of the petitioners has a licence to deal in such drugs and further that the amount which has been seized had been purchased by them from a wholesaler of the said drugs prior to the date on which the medicines were seized. Learned counsel submitted that the petitioners cannot be held responsible for any misuse by any person who had bought the medicines. Further it was submitted that the two licences of the petitioners’ agency one related to the Patna High Court CR. MISC. No.410221 dt.16 08 2021 godown and the other to the shop is valid till 2023 and 2025. It was submitted that the petitioners have an unblemished record having no other criminal antecedence. Moreover from an academic point of view learned senior counsel submitted that such statement by the arrested co accused before the police has no value in the eyes of law 7. Learned APP submitted that the person who has been caught with the drugs has stated he had bought the same from the shop of the petitioners 8. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the petitioners having licence to deal in drugs both as wholesalers and as retailers and having purchased the syrups in question from the authorised agency as also having no criminal antecedent the Court is inclined to allow their prayer for pre arrest bail. 9. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioners be released on bail upon furnishing bail bonds of Rs. 25 000 twenty five thousand) each with two sureties of the like amount each to the satisfaction of the learned Sessions Judge Bhagalpur in Dholbajja PS Case No. 08 of 2021 subject to the conditions laid down in Section 438(2) of the Code of Criminal Patna High Court CR. MISC. No.410221 dt.16 08 2021 Procedure 1973 and further that one of the bailors shall be a close relative of the petitioners andthat the petitioners shall co operate with the Court and police prosecution. Failure to co operate shall lead to cancellation of their bail bonds 10. It shall also be open for the prosecution to bring any violation of the foregoing conditions 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

Section 100 of CrPC has no applicability on seizure of vehicles containing forest produce: High court of Calcutta

When a vehicle carrying forest produce is seized for not having a valid permit, the seizure of the vehicle and the timber cannot be governed by Section 100 CrPC and the authorities are not required to follow the   procedure as per this section which only applies for open places. Instead, the provisions of specific legislations like the Forest Act shall be applied. This was decided in the case of Premananda Saha and Ors. Vs. State of West Bengal and Ors. [WPA No. 8856 of 2020 and WPA No. 8852 of 2020} in the High Court of Calcutta by Hon’ble judge Sabyasachi Bhattacharyya. The petitioner in the first petition, runs a timber business and was transporting his products on a vehicle owned by Satyendra Singh, the second petitioner. The authorities seized the products, along with the vehicle, on the allegation that the vehicle was carrying forest products without appropriate permit. A notice was issued to the petitioners and after hearing them, the Authorized officers passed an order for confiscation of the vehicle along with the timber. Upon an appeal being preferred before the appellate authority, the order of respondent was affirmed. Challenging the said orders, the present writ petitions have been preferred by the owners of the vehicle and the timber respectively. The counsel for the petitioners argued that the products, along with the vehicle, were seized in contravention of Rule 8 of the West Bengal Forest-Produce Transit Rules, 1959 and Section 100 of the Code of Criminal Procedure, 1973. It was also alleged that no copy of the seizure list was handed over to the owner or driver in accordance with law. For this reliance was placed on Minati Paul vs. State of West Bengal, [2005 (4) CHN 565] where it was held that “The expression ‘may’ occurring under Section 59D(2) of the Indian Forest Act, 1927,is to be interpreted as discretionary and not mandatory and for the purpose of securing justice, the vehicle may be released by imposition of fine in lieu of confiscation thereof in suitable cases”.  The counsel appearing for the respondent-authorities in both the matters argued that a notice was duly given to the owner, as contemplated under Section 59B of the 1927 Act before confiscation. Such notice contained the requisite particulars. Moreover, the seizure list was sent to the appropriate authority thereafter in compliance with law. As such, Section 52 of the 1927 Act was also followed.

In the High Court at Calcutta Constitutional Writ Jurisdiction Appellate Side The Hon’ble Justice Sabyasachi Bhattacharyya WPA No. 88520 Sri Satyendra Singh Vs. The State of West Bengal and others WPA No. 88520 Premananda Saha The State of West Bengal and others For the petitioner in both the cases Mr. Chinmoy Pal Mr. Kamal Krishna Guha For the respondent authorities Mr. Subir Kumar Saha Mr. Bikramaditya Ghosh Hearing concluded on Judgment on Sabyasachi Bhattacharyya J: 1. The two writ petitions are taken up together for hearing since both arise from the same cause of action. Premananda Saha the petitioner in WPA No. 8856 of 2020 runs a timber business and was transporting his products on a vehicle owned by Satyendra Singh the petitioner in WPA No. 8852 of 2020. The authorities seized the products along with the vehicle on the allegation that the vehicle was carrying forest products 2 logs) without appropriate permit. Notice was issued to the petitioners and upon hearing them the Authorized Officer Darjeeling District and Divisional Forest Officerpassed an order on March 2 2020 for confiscation of the vehicle along with the timber. Upon an appeal being preferred before the appellate authority the said authority vide Order dated August 12 2020 affirmed the order of respondent no.3. Challenging the said orders the present writ petitions have been preferred by the owners of the vehicle and the timber respectively. 2. Learned counsel for the petitioners argues that the products along with the vehicle were seized in contravention of Rule 8 of the West Bengal Forest Produce Transit Rules 1959and Section 100 of the Code of Criminal Procedure 1973. No copy of the seizure list was handed over to the owner or driver in accordance with law it is alleged. Moreover signatures of independent witnesses were not taken at the time of seizure. Only the driver’s signature was taken. 3. Placing reliance on 2005 CHN 565 learned counsel submits that the court has power to release the offending vehicle by imposition of fine in lieu of confiscation of the vehicle. The expression “may” occurring under Section 59D(2) of the Indian Forest Act 1927it was 3 cases. held in the report is to be interpreted as discretionary and not mandatory and for the purpose of securing justice the vehicle may be released by imposition of fine in lieu of confiscation thereof in suitable 4. Learned counsel next places reliance on State and others vs. Santosh Saha reported at AIR 2000 Cal 104 wherein a Division Bench of this court held inter alia that as laid down in Wazir Chand vs. State of Himachal Pradesh illegal seizure of goods would amount to infringement of fundamental rights and the High Court under Article 226 of the Constitution of India would be entitled to direct return of such goods. 5. Learned counsel next refers to Section 16 of the West Bengal Trees Protection and Conservation in Non Forest Areas) Act 2006for the proposition that an offence committed and punishable under the said Act may be compounded by 6. The petitioners further submit that in the present case non forest teak produce was seized. As such it is argued that the 2006 Act and not the the concerned Officer. 1927 Act is applicable. It is contended on behalf of the petitioners that the seizure took place on May 1 2019. As such the West Bengal Forest Produce Transit Rules 4 2019 published vide Notification No. 875 FR O FP 6M 11 2014 dated May 31 2019 is not applicable to the instant case. It is argued that the impugned appellate order records that transit pass was issued in respect of non forest teak produce to the petitioners thus rendering the seizure illegal. 9. Learned counsel appearing for the respondent authorities in both the matters argues that a notice was duly given to the owner as contemplated under Section 59B of the 1927 Act before confiscation. Such notice contained the requisite particulars. Moreover the seizure list was sent to the appropriate authority thereafter in compliance with law. As such Section 52 of the 1927 Act was also followed. 10. Learned counsel contends that out of the total logs being carried on the vehicle 144 teak logs were without any hammer impression. As such under Section 69 of the 1927 Act the produce was rightly presumed to be the property of the Government until the contrary was proved. 11. The seizure of the vehicle it is argued was in compliance with Rules 7(3) and 8(1)(b) of the 1959 Rules. The seizure list was drawn up and forwarded to the concerned Judicial Magistrate vide POR No. 8 BD of 19 20 dated May 1 2019 in terms of Section 52 of the 1927 Act. 12. The seizure list in compliance with Rule of the 1959 Rules was drawn up in presence of witnesses and the person in charge of the goods 5 that is the driver signed the same. Details and particulars of all 144 teak logs were annexed with the seizure list. 13. The owners of the vehicle and seized products appeared before the Authorized Officer and submitted written submissions. Thereafter they were given adequate opportunity to represent themselves and to present their case in a personal hearing. Upon consideration of such submissions the Authorized Officer passed a reasoned order prior to confiscation. The appellate authority confirmed such order with elaborate reasons as well. As such it is argued that minor technical issues raised by the petitioners without demonstrating any prejudice being caused to them ought not to be taken note of. 14. In the present case admittedly notice was issued to the owners under Section 59B of the 1927 Act. They were heard and only thereafter the order of confiscation was passed. The orders passed by the Authorized Officer and appellate authority are both reasoned. 15. The specific allegation against the petitioners is that forest produce was being carried in the offending vehicle without a valid permit. Therefore the seizure was in terms of the 1927 Act. Sufficient materials have been furnished by the respondents to show that a seizure list was duly drawn up and forwarded to the Magistrate as contemplated under Section 52 of the said Act. 6 16. Section 100 of the Code of Criminal Procedure has no application in the present case. The instant seizure was made under the provisions of the 1927 Act read with the 1959 Rules. Section 100 of the Code provides for search or inspection under the relevant chapter that is Chapter VII of the Code and pertains to closed places. Not only was the present seizure made in an open area the same was conducted under a special statute being the 1927 Act and not Chapter VII of the Code which relates to general procedure of production and search in respect of persons to whom summons or an order under Section 91 or a requisition under Section 92(1) of the Code was addressed. 17. It is evident from the seizure list that the same carries the signature of the driver and contains detailed particulars of the seized products. Rule 7(3) of the 1959 Rules provides that any timber or other forest produce not covered by a transit pass referred to in Rule 4(2) and together with vehicles suspected to be carrying the same shall be liable to seizure. 18. Rule 8(1) of the 1959 Rules provides that a Forest Officer who has seized any forest produce under Rule 7 shall immediately issue a written notice to the owner of the forest produce or if the owner is unknown to the person in charge or possession of such forest produce at the time of seizure calling upon him to produce proof of the origin of the forest produce and his title thereto within 30 days from the date of issue of 7 such written notice and submit a seizure report in the prescribed form without delay to the Magistrate having jurisdiction to try the offence on account of which the seizure was made. 19. The seized forest produce shall then be released or confiscated under the provisions contained in Chapter IX of the 1927 Act. In the present case such notice was admittedly given to the owner. No fault on the part of the authorities can be found on such score. 20. Section 59B of the 1927 Act also contemplates notice before confiscation which was complied with as well in the present case as evident from the notice annexed to the writ petitions. 21. Section 16 of the 2006 Act has no direct application in the present case since the alleged offence did not pertain to any offence committed or punishable under the said Act. In any event compounding an offence is at the discretion of the concerned Officer and does not vitiate the action of the Officer for non exercise of such discretion. 22. As far as Minati Paul is concerned a co ordinate Bench of this court held that the court has power to release the offending vehicle by imposition of fine “in suitable cases”. In the said case certain distinguishing features were recorded including the value of the seized products and the fact that the offence was committed by the petitioner therein for the first time. As such no general proposition was laid down that the discretion has to be exercised in a blanket fashion in each and 8 every case. In the present instance no such distinguishing feature has been pleaded or proved. Moreover the exercise of discretion by the authorities was justified in law and as such does not deserve intervention by the court. 23. The Division Bench judgment of State vs. Santosh Saha merely laid down that illegal seizure of goods would amount to infringement of fundamental rights and the High Court would be entitled to direct return of such goods under Article 226 of the Constitution. No illegality in seizure however has been made out in the present case. Thus there cannot arise any occasion to direct return of the confiscated goods. 24. In the circumstances discussed above there is no scope of interference with the impugned orders. 25. Accordingly WPA No. 8852 of 2020 and WPA No. 8856 of 2020 are dismissed on contest without any order as to costs. 26. Urgent certified copies of this order shall be supplied to the parties applying for the same upon due compliance of all requisite formalities. Sabyasachi Bhattacharyya J. )

A Writ of Mandamus cannot be issued unless the petitioners have a vested right of appointment: High Court Of Jammu & Kashmir And Ladakh

The competent authority seemed to have considered the detailed opinion rendered by the Law Secretary and instead of taking a policy decision, had directed the matter to be closed. Such an opinion was held by The Hon’ble High Court Of Jammu & Kashmir And Ladakh before The Hon’ble Mr. Justice Sanjeev Kumar in the matter of Dr. Jahangir Rashid Beigh and another vs. State of J&K and others [SWP No.602/2019].  The facts of the case are associated with the advertisement published by the Sher-i-Kashmir Institute of Medical Sciences (SKIMS), inviting applications for filling up positions of Professor and Assistant Professor in different departments. In response to said advertisement, numerous applications from eligible doctors including petitioners were received for the post of Assistant Professor in Cardiology. The application of the petitioner and 8 others were found eligible by the Screening Committee constituted by the Government. The Apical Selection Committee (ASC) framed the merit list after the conclusion of the interview and appointment. The list was topped by Dr. Aamir Rashid followed by petitioner No.1 and petitioner No.2. Dr. Aamir Rashid, who was first in the order of merit, as Assistant Professor, Cardiology was issued.  Further, the proposal submitted to the finance department by the petitioners received the concurrence of the finance department. In the department of cardiology, the SKIMS needed faculty and the petitioners were found qualified and meritorious in the selection process conducted by the ASC. A reply affidavit was filed by the respondents wherein they contended that according to the advertisement only one available post of Assistant Professor in the department of Cardiology was notified for selection, and on the basis of selection and recommendations made by the ASC, was filled up by the appointment of the top candidate Dr. Aamir Rashid. Petitioners no 1 and 2 were not offered any appointment since there were no posts to accommodate them.  The Chief Secretary conveyed the concurrence of the finance department, called upon the Director, SKIMS to revise his proposal earlier submitted by him. The Chairman, Governing Body through Chief Secretary was forwarded the revised proposal and further he had directed to get clarification on the legality of such proposal. The said matter finally landed before the department of law for opinion. The Law Secretary had such opinion that “the exigency pointed out by the Director, SKIMS on account of non-availability of Cardiologists in SKIMS, would fall within the purview of an emergent situation and exceptional circumstances and, therefore, the respondents may take a policy decision in this regard.” After going through all submissions The Hon’ble High Court held that “… They cannot, in law, seek a mandamus to the respondents to create supernumerary posts and adjust them on the ground that they are next in merit to the candidate selected and appointed. Viewed from any angle, I find no merit in this petition. The same is, accordingly, dismissed.” 

h475 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR SWP No.602 2019 Dr. Jahangir Rashid Beigh and another Reserved on : 27.09.2021 Pronounced on : 06.10.2021 ...Petitioner(s) Through: Mr. Jahangir Iqbal Ganai Sr. Adv. with M s Murad and Rahat Advocates State of J&K and others ...Respondent(s) Through: Mr. Shah Aamir AAG Coram: HON’BLE MR. JUSTICE SANJEEV KUMAR JUDGE Sher i Kashmir Institute of Medical Sciences vide advertisement notice No.04 of 2015 dated 10th July 2015 invited applications from eligible candidates possessing requisite qualification and experience for filling up of various vacant faculty positions and the posts of Professor and Assistant Professor in different department. By way of addendum to the aforesaid advertisement notification post of Assistant Professor in the department of Cardiology was also notified on the terms and conditions already notified vide advertisement notice No.015. This was followed by Advertisement Notice Nos.01 of 2016 dated 19th March 2016 06 of 2016 dated 5th May 2016 and Advertisement Notice No.016 dated 5th September 2016. 2 SWP No.602 2019 In response the said advertisement notifications several applications from eligible doctors including petitioners were received for the post of Assistant Professor in Cardiology. The Screening Committee constituted by the Government for screening the applications found eight applicants including the petitioner Nos. 1 and 2 possessing the requisite qualification and experience and eligible for the post. The Apical Selection Committee constituted by the Government for recommending suitable candidates which met under the Chairmanship of the Chief Secretary of Jammu & Kashmir State interviewed all the eligible candidates on 19th July 2017. The ASC on conclusion of interviews of the eligible candidates framed a merit list of candidates for appointment. Dr. Aamir Rashid topped the merit list followed by petitioner No.1 and petitioner No.2 who figured at serial Nos. 2 and 3 of the merit list. It appears that the ASC which is only a recommending body placed the merit list before the Chairman of the SKIMS governing body. The Chairman of the governing body i.e. His Excellency the Governor of Jammu & Kashmir State ordered the matter to be placed before Sub Committee recommendations made by the ASC. Accordingly vide Government Order No. 64 SKIMS of 2018 dated 28th July 2018 the matter was placed before the Sub Committee for scrutinizing the recommendations of the ASC on case to case basis and offer its recommendations. As is gatherable from the reply affidavit filed by the respondents the appointment order in respect of Dr. Aamir Rashid who was first in the 3 SWP No.602 2019 order of merit as Assistant Professor Cardiology was issued. The only post which was notified for selection was thus filled up. However having regard to the recommendations of the ASC and in view of dearth of faculty in the discipline of Cardiology matter with regard to creation of additional posts of Assistant Professors in Cardiology department was taken up with the competent authority and the finance department. It is the positive case of the petitioners that the proposal submitted to the finance department received the concurrence of the finance department but the competent authority for undisclosed reasons did not formally create posts and adjust the petitioners though the SKIMS needed faculty in the department of cardiology and the petitioners were found qualified and meritorious in the selection process conducted by the ASC. The respondents have filed reply affidavit. It is submitted that in terms of Advertisement Notice No.015 dated 10th July 2015 read with addendum dated 10th July 2015 only one available post of Assistant Professor in the department of Cardiology was notified for selection which post on the basis of selection and recommendations made by the ASC was filled up by appointment of Dr. Aamir Rashid the candidate who was on top of the merit list. Petitioner Nos.1 and 2 however were not offered any appointment for the reason that there were no post to accommodate them. It is admitted by the respondents that having regard to the dearth of faculty in the department of cardiology and the eligibility and merit of the petitioners and on the basis of recommendation of the ASC the matter was taken up with the competent authority and the finance 4 SWP No.602 2019 department for creation of additional posts of Assistant Professors in the cardiology department however the proposal could not materialize. It is because of this reason the petitioners though recommended by the ASC could not be appointed due to non availability of posts. The post which later fell vacant in November 2017 on superannuation of Dr. Viccar Jan was advertised under direct recruitment and reserved for Scheduled Caste category4 SCC 319 and opined that in case of rare and exceptional circumstances and in emergent situation the respondents may by a policy decision fill up even the vacancies which 6 SWP No.602 2019 were not earlier notified. The Law Secretary also opined that the exigency pointed out by the Director SKIMS on account of non availability of Cardiologists in SKIMS would fall within the purview of an emergent situation and exceptional circumstances and therefore the respondents may take a policy decision in this regard. 10. The matter once again landed before the Chairman of the Governing Body Hon’ble the Governor through Chief Secretary. The Chairman however directed to close the matter meaning thereby the competent authority declined to take any policy decision. This is how the proposal mooted by the Director SKIMS could not get through. 11. When the case set up by the petitioners is examined and analyzed in the light of settled legal position and the record produced by Mr. Shah Aamir learned AAG one would find no justification to interfere with the decision taken by the competent authority. Indisputably the advertisement notification was for filling up one post of Assistant Professor in the department of Cardiology SKIMS. It is also not in dispute that on the date of issuance of advertisement notification and even after conclusion of the selection process only one post of Assistant Professor Cardiology was available in SKIMS. The petitioners along with other candidates participated in the selection process for the said post. On the basis of overall merit it was Dr. Aamir Rashid who got selected and subsequently appointed. As rightly opined by the Law Secretary and which opinion of the Law Secretary is in consonance 7 SWP No.602 2019 with the settled legal position that if a selection process is initiated to fill up a solitary post in a cadre the moment said post is filled up by appointing the selected candidate the select panel gets exhausted and the persons in the panel cannot be appointed against the post(s) that become subsequently available for any reason whatsoever. It is equally true that a selection process can be initiated for clear as well as anticipated vacancies but not for the future vacancies and in doing so the selection authority is obliged to indicate that the selection is not only for clear vacancies but also for future vacancies so that the candidates applying have a fair idea of vacancies they are competing for. In the instant case the post that fell vacant due to superannuation of Dr. Vicar Jan was perhaps an anticipated vacancy but that was not made part of the advertisement and therefore was not put to selection. Two supernumerary posts of Assistant professor which were proposed to be created and if created by the orders of the competent authority would have been the posts that would come in existence after the selection process was over. In any case these could only be termed as future vacancies. 14. The judgment in Prem Singh’s case does not permit filling up such future vacancies by operating the wait panel prepared in relation to a selection of a post and which panel stands exhausted and there is rationale in this proposition of law. There could be many more candidates who may have acquired eligibility after the closing date of filling application in reference to the earlier advertisement notification and have 8 SWP No.602 2019 thus acquired a right to seek consideration against such future vacancies. True it is that by way of an exception carved out by the Supreme Court in Prem Singh and Rakhi Ray and others v. High Court of Delhi and others 2 SCC 637 such Rule can be deviated if there are rare and exceptional circumstances or an emergent situation. However such deviation is permissible only after a policy decision is taken by the employer based on some rationale. The competent authority appears to have considered the detailed opinion rendered by the Law Secretary and has instead of taking a policy decision directed the matter to be closed. It is in these circumstances the proposal which was mooted by the Director SKIMS and which had the approval of ASC and the Sub Committee and the concurrence from the finance department did not get through. Consequently no formal order of creation was issued by the competent authority. Besides a writ of mandamus cannot be issued unless the petitioners have a vested right of appointment. As is held in Punjab State Electricity Board and others v. Malkiat Singh 9 SCC 22 mere inclusion of candidate in a select panel does not confer upon him her a vested right to appointment. 15. That being so the clear position that emerges is that the respondents have not created any post on supernumerary basis or otherwise nor the petitioners acquire any right of appointment against non existent posts. They cannot in law seek a mandamus to the respondents to create supernumerary posts and adjust them on the ground that they are next in merit to the candidate selected and appointed. The only post that became 9 SWP No.602 2019 available on superannuation of Dr. Vicar Jan too was subsequently notified for selection thereby creating third party right of consideration 16. Viewed from any angle I find no merit in this petition. The same is Record produced by Mr. Shah Aamir learned AAG be returned against the said post. accordingly dismissed. 06.10.2021 Judge Whether the order is speaking : Yes Whether the order is reportable: Yes

Avoidance to rectify particulars of the petitioner is bad in law: Bombay High Court

A company cannot show avoidance when an individual has approached them to correct his details and particulars in the company data documents. A division bench of SUNIL B. SHUKRE AND ANIL S.KILOR, JJ, while adjudicating the matter in Prabhat Kumar Titus v. Western Coalfields Ltd; [WRIT PETITION NO. 1315 OF 2021], dealt with the issue of the change of particulars of a Badli Loader. The petitioner was appointed as a Badli loader in the respondent WCL. Though, his date of birth in Matriculation Certificate reflects as 6th December, 1961, it was recorded as 1st July, 1961 in the Form ‘B; maintained by the respondents. The petitioner had thereafter on 28th November, 1992 cleared an examination for the post of ‘Sirdar’ and at that point of time his date of birth was recorded as 6th December, 1961. The petitioner, thereafter, was transferred from Kanhan area to Umrer area, and at that moment his date of birth was recorded as 6th December, 1961. The petitioner had cleared the examination for the post of ‘Overman’ on 3rd July, 2008 and while joining as ‘Overman’, his date of birth was recorded as 6th December, 1961. Thereafter, the petitioner was promoted as ‘Senior Overman’ on 29th September, 2017, and since then he is working as ‘Senior Overman’. On 15th September, 2011, the Deputy General Manager (Personnel), Umrer published a notice on the notice board stating that as per the direction issued by the General Manager (Industrial Relation), the objections regarding date of birth should be submitted within the scheduled date mentioned in the notice. Accordingly, the petitioner submitted his objections/representations on 7th October 2011, pointing out the clerical mistake committed in recording of his date of birth as 1st July, 1961, while as per Matriculation Certificate it should be 6th December, 1961. The petitioner had also enclosed the copy of ‘Matriculation Certificate’ along with his objection / representation in support of his request. Thereupon a notice was published by Manager (Personnel), Umrer Sub Area, on the notice board giving particulars of the employees who had raised objections. In the said list the name of the petitioner appears at serial number 6, and against the name of the petitioner there was an endorsement that, the case of the petitioner will be examined separately on the basis of Matriculation Certificate. However, when the petitioner found that the respondents are not taking any decision on his application, he filed a writ petition, namely Writ Petition No. 2195 of 2020 before this Court, which came to be disposed of on 14th January, 2021 on a statement made by the respondents that they will pass a fresh order in respect of the application of the petitioner for change of date of birth.

on 02 07 2021 on 22 03 wp 1315 21(j).odt 1 26 IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH NAGPURWRIT PETITION NO. 1315 OF 2021Prabhat Kumar Titus Aged 59 years Working as Senior OvermanMakardhokda mine no.1 Tq. Umrer District Nagpur 441 204: PETITIONER...VERSUS...1. Western Coalfields Limited through Chairman cum Managing Director Western coalfields Ltd. headquarters Coal Estate Civil Lines Nagpur 440 001.2. The General ManagerWestern Coalfields Ltd. headquarters Coal Estate Civil Lines Nagpur 440 0013. The Area Manager Umrer Sub Area PO Umrer Project District Nagpur 441204 : RESPONDENTS= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = Shri M.M.Sudame Advocate for the petitioner.Shri A.M.Ghare Advocate for the respondents.= = = = = = = = = = = = = = = = = = = = = = = = = CORAM : SUNIL B. SHUKRE AND ANIL S.KILOR JJ. DATED : 30th JUNE 2021.ORAL JUDGMENT : Umrer published a notice on the noticeboard stating that as per the direction issued by the GeneralManagerthe objections regarding dateof birth should be submitted within the scheduled datementioned in the notice.4.7Accordingly the petitioner submitted hisobjections representations on 7th October 2011 pointing outthe clerical mistake committed in recording of his date ofbirth as 1st July 1961 while as per Matriculation Certificate itshould be 6th December 1961. The petitioner had alsoenclosed the copy of ‘Matriculation Certificate’ alongwith hisobjection representation in support of his request. 4.8.Thereupon a notice was published by Manager(Personnel) Umrer Sub Area on the notice board givingparticulars of the employees who had raised objections. In on 02 07 2021 on 22 03 wp 1315 21(j).odt 4 26 the said list the name of the petitioner appears at serialnumber 6 and against the name of the petitioner there wasan endorsement that the case of the petitioner will beexamined separately on the basis of Matriculation Certificate.4.9.Thereafter the date of birth of the petitioner wasgot verified from the Higher Secondary Board and whichultimately found as correct. Accordingly Umrer Sub Area Colliery Manager forwarded the case of the petitioner forcorrection of date of birth to the Sub Area Level Committeewho in turn has forwarded it with positive recommendationto the Area Committee. Consequently the Area Committeewho has also recommended for correction of date of birth ofthe petitioner.4.10.However as the petitioner did not receive anycommunication either rejecting or accepting his request forchange of date of birth he made a representation on 1st July 2019 requesting the respondents to take decision on hisrepresentation dated 7th October 2011.4.11.On 30th June 2020 the petitioner received a‘notice of retirement’ wherein considering date of birth of thepetitioner as 1st July 1961 the date of retirement was on 02 07 2021 on 22 03 wp 1315 21(j).odt 5 26 informed as 30th June 2020. The petitioner thereupon againmade a representation for reconsideration of his request forcorrection of his date of birth as 6th December 1961 viderepresentation dated 7th July 2020.4.12.However when the petitioner found that therespondents are not taking any decision on his application hefiled a writ petition namely Writ Petition No. 21920before this Court which came to be disposed of on 14thJanuary 2021 on a statement made by the respondents thatthey will pass a fresh order in respect of the application of thepetitioner for change of date of birth.4.13. Now in pursuance thereof the respondents issued impugned ‘Reasoned Order’ dated 2nd February 2021 rejecting the request of the petitioner made vide applicationdated 7th October 2011 for correction of date of birth.Hence this petition.5.We have heard the learned counsel for therespective parties.6.Shri Sudame learned counsel appearing for thepetitioner submits that the petitioner immediately on on 02 07 2021 on 22 03 wp 1315 21(j).odt 6 26 receiving knowledge about recording of wrong date of birth and on publication of notice by the respondents callingobjections as regard to date of birth submitted hisobjection representation on 7th October 2011 alongwithMatriculation Certificate which contained date of birth of thepetitioner as 6th December 1961. It is submitted that despitethe same the application was not decided for about 10 yearsand petitioner was required to approach to this Court by filingwrit petition no. 21920. He therefore submits thatthe respondents have acted contrary to the interest of thepetitioner and the implementation instruction no. 76.6.1.He submits that after submitting objection forcorrection of date of birth the respondents initiated theprocess for verification of correctness of the claim of thepetitioner and on satisfaction that the claim of the petitioneris valid the authorities namely the Sub Area Level Committeeand the Area Committee had favourably recommended forchange of date of birth of the petitioner. However onfrivolous reasons the request of the petitioner for change ofdate of birth came to be turned down. on 02 07 2021 on 22 03 wp 1315 21(j).odt 7 26 6.2.Shri Sudame learned counsel for the petitionerpoints out that after transfer of the petitioner from KanhanArea to Umrer his date of birth was recorded as 6th December 1961. Similarly after clearing examination for the post of‘Sirdar’ and ‘Overman’ the date of birth of the petitioner wasrecorded as 6th December 1961. He also points out that afterjoining the post of promotion i.e. ‘Senior Overman’ his dateof birth was recorded as 6th December 1961 in Form “B”. He therefore submits that except Form “B” which was filled in bya clerk of office of Mine Manager at the time of joining dutiesin the year 1984 other official record supports the claim ofthe petitioner. 6.3.Shri Sudame learned counsel for the petitionerdraws attention of this Court to the Employment ExchangeRegistration Card issued by the Secretariat Employment andTraining Madhya Pradesh which contained the date of birthof the petitioner as 6th December 1961. He further submitsthat the petitioner was called for interview throughEmployment Exchange and he was asked to submit the‘Registration Card’ of Employment Exchange at the time ofinterview as per the condition stipulated in the interview callletter issued to the petitioner by the respondents. on 02 07 2021 on 22 03 wp 1315 21(j).odt 8 26 6.4Further it is submitted that it is not the case ofthe respondents that the Matriculation Certificate of thepetitioner containing the date of birth as 6th December 1961 is dubious or not genuine. Thus he submits that denial tocorrect the date of birth of the petitioner in service record isarbitrary.6.5.Shri Sudame learned counsel for the petitionersubmits that the implementation instructionno. 76 whichcame into existence in the year 1988 when the petitioner wasin service permits the respondents to review and determinethe date of birth in respect of existing employees. It issubmitted that as per the II No.76(B)(i)(a) in case of theexisting employee Matriculation Certificate or HigherSecondary Certificate issued by the recognized Universities orBoard or Middle Pass Certificate issued by the Board ofEducation and or Department of Public Instruction and admitcards issued by the aforesaid bodies should be treated ascorrect provided they were issued by the saidUniversities Boards Institutions prior to the date ofemployment. It is submitted that in this matter theMatriculation Certificate which was issued prior to the date of on 02 07 2021 on 22 03 wp 1315 21(j).odt 9 26 appointment of the petitioner is valid for review anddetermination of date of birth of the petitioner.6.6.It is further pointed out that as per II no. 76where there is no variation in records such case will not bere opened unless there is a very glaring and apparent wrongentry brought to the notice of the Management. It issubmitted that the case of the petitioner falls in the categoryof glaring and apparent wrong entry.6.7.Shri Sudame learned counsel for the petitionerhas placed reliance on the judgment of the Hon’ble SupremeCourt of India in a case of Bharat Coking Coal Ltd. andothers Vs. Chhota Birsa Uranw reported in 2014SCC 411.iii.Kapil Deo S o Ram Naresh Shahi Vrs. Chief GeneralManager Nagpur Area Western Coalfields Ltd. Nagpur inWrit Petition No. 35215 delivered on 18th July 2017.iv.Bhola Matru Harde Nagpur Vrs. Chief GeneralManager Nagpur Area Nagpur and another in Writ PetitionNo. 38517 delivered on 19th January 2018 v. Mandhata Ram Suresh Ram Vrs. Dy. General Manager(M) Sub Area Manager and another in Writ Petition No. 2113of 2019 delivered on 23rd July 2019.8.To consider the rival contentions of the parties we have carefully perused the record and also gone throughthe relevant judgments. on 02 07 2021 on 22 03 wp 1315 21(j).odt 12 26 9.In this matter on 19th March 2021 this Court hasissued notice for final disposal and on 20th April 2021 interimprotection was granted in favour of the petitioner on a condi tion that in case the petition is dismissed the petitioner shallrefund the salary which would be paid to him from 1st July 2021 and onward.10.The respondents filed their affidavits in reply op posing prayers made in the petition. After going through thepetition and the reply it is revealed that the following factshave not been disputed by the respondents:a)In the matriculation Certificate of the petitioner issuedon 23rd June 1981 by the Higher Secondary Board the dateof birth of the petitioner was recorded as 6th December 1961.b)In the Registration Card issued to the petitioner by theEmployment Exchange the date of birth of the petitioner wasrecorded as 6th December 1961. c)The petitioner was called for interview through Employ ment Exchange and he was asked to submit his RegistrationCard issued by the Employment Exchange at the time of inter view as per the condition stipulated in the interview call letterissued by the respondents. on 02 07 2021 on 22 03 wp 1315 21(j).odt 13 26 d)The petitioner was appointed in the year 1984 and inthe B Form filled in by a Clerk of Mine Manager he hadrecorded the date of birth as 01st July 1961.e)Though the thumb impression of the petitioner was ob tained on the said “B” Form the petitioner was totally un aware that the wrong date of birth was recorded.f)On 15th September 2011 the Deputy GeneralManagerof Umrer Area published a notice andthereby called objections as regards date of birth of the exist ing employees.g)The petitioner preferred anobjection representation on 7th October 2011 pointing outthat as per the Matriculation Certificate the correct date ofbirth is 6th December 1961 and not 1st July 1961 as recordedat the time of entry of the petitioner in service.h)The notice was published by the Manager(Personnel) on the notice board giving particulars of theemployees who had raised objections and in the said list thename of the petitioner appeared at serial No.6 and againstthe name of the petitioner there was an endorsement that the on 02 07 2021 on 22 03 wp 1315 21(j).odt 14 26 case of the petitioner will be examined separately on the basisof Matriculation Certificate. i)The petitioner s matriculation certificate was gotverified by the respondent No.4 through the HigherSecondary Board Bhopal Madha Pradesh.j)At the time of joining of the petitioner as ‘Sirdar’and ‘Senior Overman’ the date of birth of the petitioner wasrecorded as 6th December 1961. k)The case of the petitioner was recommended bythe Sub Area Level Committee and the Area Committee forcorrection of date of birth.l)The respondents rejected the request made by thepetitioner for correction of his date of birth vide applicationdated 7th October 2011 i.e. after about nine years and fourmonths vide impugned ‘Reasoned Order’ dated 2nd February 2021. 11.In the aforesaid backdrop we proceed to considerthe contention of the respective parties. on 02 07 2021 on 22 03 wp 1315 21(j).odt 15 26 12.As regards the maintainability of the presentpetition it is a well settled law that though the existence ofalternate remedy is not an absolute bar but it is acircumstance which the Court takes into consideration whileexercising its power of issuing writs. In this case looking tothe undisputed facts referred above such factual situationdoes not inhibit us from entertaining the present writ petitionthough a suitable efficacious alternate remedy may beavailable as suggested by the respondents. 13.Moreover looking to the duties and responsibilityof ‘Overman’ enumerated in the notification issued by theMinistry of Labour and Employment dated 27th November 2017 it is apparently clear that such duties andresponsibilities are Supervisory in nature. However withoutgoing into the aspect of whether the duties are supervisory ornot in view of discussion made in foregoing paragraph weare of the opinion that on the ground of alternate remedy thispetition cannot be thrown out. Hence we proceed further todeal with the contentions of the parties on merit.14.We are conscious of well settled law that theCourts or Tribunal shall not interfere with the matter where on 02 07 2021 on 22 03 wp 1315 21(j).odt 16 26 an employee of Government or its instrumentality whoremained in service for over decades with no objectionwhatsoever raised to his date of birth accepted by theemployer as correct when all of a sudden comes forwardtowards the fag end of his service career before the Court orTribunal seeking correction of his date of birth in his servicerecord.15.In this matter it is an undisputed fact that therespondents called objections vide notice dated 15thSeptember 2011 and in pursuance thereof the petitioner hadsubmitted his objection on 7th October 2011 i.e. 10 yearsbefore his date of retirement. Thereupon the genuineness ofMatriculation Certificate was examined by the respondentsand on satisfaction that the certificate in valid one the Sub Area Level Committee and the Area Committee recommendedthe case of the petitioner for correction of date of birth.16.However for long period of 9 years and 4months no decision was communicated to the petitioner though the reminder letter was issued by the petitioner on 1stJuly 2019. In the above facts and circumstances we are at a on 02 07 2021 on 22 03 wp 1315 21(j).odt 17 26 loss to understand as to how the petitioner could be non suited on the ground of delay and laches.17.On the contrary if there is any delay it is on thepart of the respondents in deciding such representation orobjection of the petitioner for correction of his date of birth for such a long period of nine years and four months. Thus for the fault on the part of the respondents in not deciding theapplication for such a long period the petitioner cannot beasked to suffer.18.Had the representation objection dated 7thOctober 2011 of the petitioner been decided immediately andadverse to his interest the petitioner would have approachedto this Court years before for redressal of his grievances.Thus the delay on the part of the respondents in deciding therepresentation objection of the petitioner will not come in theway of the petitioner.19.In the circumstances the contentions of therespondents that the petitioner has approached to this Courtafter 30 years of his service at the fag end of his servicecannot be accepted and the same is rejected. on 02 07 2021 on 22 03 wp 1315 21(j).odt 18 26 20.The Hon’ble Supreme Court of India in the caseof Secretary & Commissioner Home Department and othersVs. R. Kirubakaran reported in 1994 SuppSCC 155 hasobserved that unless a clear case on the basis of materialswhich can be held to be conclusive in nature is made out bythe respondent the Court or the Tribunal should not issue adirection on the basis of materials which make such claimonly plausible. Before any such direction is issued the Courtor the Tribunal must be fully satisfied that there has been realinjustice to the person concerned and his claim for correctionof date of birth has been made in accordance with theprocedure prescribed and within the time fixed by any rule ororder. If no rule or order has been framed or made prescribing the period within which such application has to befiled then such application must be filed within the time which can be held to be reasonable. The applicant has toproduce the evidence in support of such claim which mayamount to irrefutable proof relating to his date of birth.Whenever any such question arises the onus is on theapplicant to prove about the wrong recording of his date ofbirth in his service book. on 02 07 2021 on 22 03 wp 1315 21(j).odt 19 26 21.In the backdrop of above referred touchstone werevert back the contentions of the respective parties.22.At this juncture we are of the opinion that it isnecessary to refer to relevant II No.76 which is reproducedhereunder:"(B) Review determination of date of birth inrespect of existing employees. In the caseof the existing employees matriculation certificateofhigher secondary certificate issued bythe recognised universities of Board or middlepass certificate issued by the cards issued by theaforesaid bodies should be treated as correctprovided they were issued by the saiduniversities Boards Institutions prior to the dateof employment.(I) b)….ii) Wherever there is no variation in records suchcases will not be reopened unless there is a veryglaring and apparent wrong entry brought to thenotice of the management. The managementafter being satisfied on the merits of the case willtake appropriate action for correction throughDetermination Committee Medical Board”23.The impugned order states that when thepetitioner was appointed the II No.37 was in force and it hasbeen replaced by II no.76. It further states that because thepetitioner did not raise any dispute regarding date of birthprior to 25th April 1988 the case of the petitioner was treatedas undisputed case and therefore it cannot be reopened. on 02 07 2021 on 22 03 wp 1315 21(j).odt 20 26 24.The aforesaid ground cannot be accepted in viewof the judgment in the case of Bharat Coking Coal Ltd. andothers Vs. Chhota Birsa Uranw reported in 2014permits rectification ofthe date of birth by treating the date of birthmentioned in the school leaving certificate to becorrect provided such certificates were issued bythe educational institution prior to the date ofemployment.….”25.It is pertinent to note that in the case of BharatCoking Coal Ltd. and others Vs. Chhota Birsa Uranwand Bharat CokingCoal Limited and others Vrs. Shyam Kishore Singh reportedin 2020(3) SCC 411 relied upon by the respondents there isno dispute about the principal of law laid down in both thesaid judgments however both the judgments aredistinguishable on facts and therefore the said judgments arenot of any help to the petitioner in this matter.32.The judgment relied upon by the respondents inthe case of Satishkumar S o Hardayal Pashine Vrs. WesternCoalfields Ltd. and others in Writ Petition No. 22898delivered on 19th September 2016 Kapil Deo S o RamNaresh Shahi Vrs. Chief General Manager Nagpur Area Western Coalfields Ltd. Nagpur in Writ Petition No. 3528 of2015 delivered on 18th July 2017 and Bhola Matru Harde Nagpur Vrs. Chief General Manager Nagpur Area Nagpurand another in Writ Petition No. 38517 delivered on on 02 07 2021 on 22 03 wp 1315 21(j).odt 25 26 19th January 2018 are also of no help to the respondents inthis matter as the said judgments are distinguishable on facts.33.In view of the observations and findings recordedabove and having found merits in the present petition wepass the following order.ORDERi.The Writ Petition No.13121 is allowed ii.The respondents are directed to correct the date of birthof the petitioner as 6th December 1961 in the service record ofthe petitioner iii.No order as to costs. JUDGE JUDGELater on34.Shri Ghare learned counsel for the respondentsmakes a request for suspending the effect and operation of thejudgment.35.The prayer is staunchly opposed by Shri Sudame learned counsel for the petitioner contending that if theprayer is granted it may adversely affect the right of thepetitioner and may also lead to defeating of his claim. on 02 07 2021 on 22 03 wp 1315 21(j).odt 26 26 36.Considering the law governing the field we donot know that the apprehension expressed by the learnedcounsel for the petitioner has any basis. Ultimately the finalresult of the Special Leave Petition or the Appeal that therespondents may prefer before the Hon ble Apex Court wouldgovern the rights and liabilities of both sides but just in case the case proposed to be put forward by the respondentsbefore the Hon ble Apex Court is to be accepted it may resultin some complications as regards recovery of the salary thatmay have been paid to the petitioner during the interregnum.Therefore we are inclined to grant the request of the learnedcounsel for the respondents. The effect and operation of thisjudgment are hereby suspended for a period of two weeks. JUDGE JUDGEsknair nd.thawre

Compounding of offence u/s 138 of Negotiable Instruments Act, 1881 not permissible except with the complainant’s consent: Punjab and Haryana High Court

It appeared that the petitioners are not legally sustainable. Under Section 147 of the NI Act, the offence under Section 138 of the Negotiable Instruments Act can be compounded at any stage. However, the Hon’ble Supreme Court laid down a graded scale of costs to be paid by the party applying for compounding concerning the stage of proceedings at which the compounding has sought the compounding. Beyond that, this judgment has no significance; so far as the question of consent of the complainant for compounding is concerned held by Hon’ble Justice Rajbir Sehrawat in M/s Anant Tools (Unit No. II) Pvt. Ltd. and others versus M/s Anant Tools Pvt. Ltd., Jalandhar [CRM-M-17300 of 2017 (O&M)]. The facts leading to this case relate to the respondent – M/s Anant Tools Pvt. Limited filed complaint against the present petitioners, M/s Anant Tools Pvt. Limited, and its Directors. The allegations in the complaint are that earlier, the complainant and the accused had common business and were initially running a joint business. After that, the business was separated by the two. As a result, the assets, rights and liabilities were divided between the parties. An amount of Rs.18,52,253/- was required to be paid by the accused No.1 to the complainant due to the above-said settlement, as involved in one complaint. There are other amounts also, which are involved in two other complaints. For discharge of the above-said liability, the petitioners had issued a cheque dated 08.01.2009 for the above-said amount of Rs.18, 52,253/-. For the amounts involved in other complaints, two other cheques were also issued. However, on being presented, the cheques were dishonoured by the Bank. Then notices were issued to the accused of dishonour of all the three cheques, as involved in three complaints. Despite the notices, the amounts were not paid by the petitioners. This resulted in complaints being filed against the petitioners under Section 138 of the Negotiable Instruments Act. The summoning orders were issued against the present petitioners in all three complaints. During the pendency of the above-said complaints against the petitioners, they filed applications for the compounding of the offences in all three complaints. However, since the complainant had not agreed. Compounding the offences, the trial Court dismissed the applications moved by the petitioners in all three complaints. The petitioner’s counsel stated that after the summons was issued against the petitioner, they had also lodged an FIR against the complainant. As an attempt for compromising the entire matter, the complainant had agreed to the quashing of the complaints at the stage when the complaints had applied to seeking anticipatory bail; in the FIR case lodged by the petitioner. However, after that, the complainant got dishonest, and the complainant tried to get out of the agreement between the parties. Hence, the petitioners moved the above-said applications for compounding by attaching the drafts for the amounts of cheque involved in the complaint, with the further undertaking to pay any more reasonable amount deemed appropriate by the Court. But these applications have been dismissed by the trial Court.

IN THE HIGH COURT OF PUNJAB AND HARYANA Date of Decision:20.09.2018 CRM M 173017Pvt. Ltd. and others .....Petitioners M s Anant Tools Pvt. Ltd. Jalandhar .....Respondent CRM M 173517Pvt. Ltd. and others ....Petitioners Swatantar Kumar Chopra .....Respondent CRM M 173517Pvt. Ltd. and others .....Petitioners M s Anant Tools Pvt. Ltd. Jalandhar .....Respondent CORAM: HON BLE MR. JUSTICE RAJBIR SEHRAWAT Present: Mr. M.L. Saggar Senior Advocate with Mr. Abhilaksh Grover Advocate for the Mr. Vikram Chaudhri Senior Advocate with Ms. Ishal Goyal Advocate for the Rajbir Sehrawat J.(Oral This order shall dispose of three petitions i.e. CRM M 173017 M s Anant ToolsPvt. Ltd. and others Vs. Anant Tools Pvt. Ltd. Jalandhar CRM M 173517 M s Anant ToolsPvt. Ltd. and others Vs. Anant Tools Pvt. Ltd. Jalandhar involving identical facts but involving different cheques and thus resulting in three different complaints and three different CRM M 173017and 2 Broadly outlined the facts of this case are that the respondent M s Anant Tools Pvt. Limited filed complaint against the present petitioners which is incidentally having a little bit similar name i.e. M s Anant Tools Unit No.II) Pvt. Limited and its Directors. The allegations in the complaint are that earlier the complainant and the accused had common business and were initially running a joint business. However thereafter the business was separated by the two. As a result the assets rights and liabilities were divided between the parties. An amount of Rs.18 52 253 was required to be paid by the accused No.1 to the complainant as a result of the above said settlement as involved in one complaint. There are other amounts also which are involved in two other complaints. For discharge of the above said liability the petitioners had issued cheque dated 08.01.2009 for the above said amount of Rs.18 52 253 . For the amounts involved in other complaints two other cheques were also issued. However on being presented the cheques were dishonored by the Bank. Resultantly notices were issued to the petitioners accused on account of dishonor of all the three cheques as involved in three complaints. Despite the notices the amounts were not paid by the petitioners. This resulted into complaints being filed against the petitioners under Section 138 of Negotiable Instruments Act. The summoning orders were issued against the present petitioners in all the three complaints During the pendency of the above said complaints against the petitioners they filed applications for compounding of the offences in all the three complaints. However since the complainant had not agreed for CRM M 173017and 3 compounding the offences therefore the trial Court dismissed the applications moved by the petitioners in all the three complaints Challenging that order passed by the trial Court as well as seeking quashing of the complaint and the summoning order the present petitions have been filed Counsel for the petitioners has contended that after the summons were issued against the present petitioners in the complaints then they had also got lodged an FIR against the complainant. As an attempt for compromising the entire matter the complainant had agreed for quashing of the complaints at the stage when the complaints had filed application for seeking anticipatory bail in the FIR case lodged by the petitioner However thereafter the complainant got dishonest and the complainant tried to get out of the agreement arrived at between the parties. Hence the petitioners moved the abovesaid applications for compounding by attaching the drafts for the amounts of cheque involved in the complaint with further undertaking to pay anymore reasonable amount deemed appropriate by the Court. But these applications have been dismissed by the trial Court. It is further contended by the counsel that as per the law laid down by the Hon ble Supreme Court in 2010(5) SCC 663 Damodar S. Prabhu v Sayed Babalal H. and another judgment rendered in 2017(4) RCR Criminal) 476 M s Meters and Instruments Private Limited and Another v. Kanchan Mehta the consent of the complainant is not required for compounding the offence under Section 138 of Negotiable Instruments Act. Counsel has referred to the judgment of the Hon ble Supreme Court in Damodar S. Prabhu s caseto contend that provisions of Section CRM M 173017and 4 320 Cr.P.C which requires consent of complainant have been held to be non applicable in case of compounding of the offence under Section 138 of NI Act due to use of non obstante clause in Section 147 of NI Act. While referring to the judgment rendered in M s Meters and Instruments Private Limited s casecounsel has submitted that this judgment has specifically dealt with the issue of consent of the complainant for the purpose of compounding and has held that the Court can permit compounding of the offence irrespective of or in absence of the consent of the complainant as well. Counsel for the petitioner further contends that pursuant to the earlier agreement arrived at between the parties the petitioners had already given their consent for quashing of the FIR No.31 dated 06.02.2010 registered under Sections 420 406 465 467 468 471 120 B IPCat Police Station Division No.4 Jalandhar which was lodged against the complainant. However now the complainant has resiled from his part of the compromise. Through this modality the complainant has tried to take the undue advantage of the Court proceedings On the other hand learned counsel for the complainant respondent has argued that it is not disputed that the complainant had filed the three complaints prior in time. Thereafter as a counter blast the present petitioners had also got lodged the above said FIR against the complainant in the year 2010. At the stage of seeking anticipatory bail the parties had arrived at a compromise on 19.03.2010. Under that compromise the parties were to withdraw get quashed all the criminal proceedings against each other. The present petitioners were to pay Rs.12 lakhs to the complainant In compliance of the compromise the complainant had withdrawn the three CRM M 173017and 5 complaints against the present petitioners. However the present petitioners neither paid Rs.12 lakhs to him nor got the FIR against the complainant quashed in compliance of the compromise arrived at between the parties This led to filing of three petitions by the present complainant before this Court earlier i.e. CRM M 144211 Swatantar Kumar Chopra Vs M s Anant ToolsPvt. Ltd. and others CRM M 205211 M s Anant Tools Pvt. Ltd. Vs. M s Anant Tools Pvt. Ltd. and others CRM M 205211 M s Anant Tools Pvt. Ltd. Vs. M s Anant ToolsPvt. Ltd. and others After hearing both the sides this Court had found that the compromise between the parties had finally broken down. As a result this Court had passed order dated 05.08.2014 separately in those three petitions holding that the agreement between the parties is declared to be rescinded and the parties would be at liberty to prosecute their criminal proceedings against each other. Accordingly it is contended by counsel for the respondent that there was no more any compromise between the parties and this Court had granted liberty to the parties to prosecute their respective cases. Hence the earlier compromise cannot be referred to by the petitioners for any purpose for compounding of the offences or for quashing of the complaints As reply to the judgments cited by counsel for the petitioners the counsel for the respondents has submitted that the Hon ble Supreme Court in Damodar S. Prabhu s casehas not been decided upon the issue involved in the present case i.e. whether the compounding can be permitted by the Court even in absence of the consent of the complainant CRM M 173017and 6 It is contended by the counsel that consent of the complainant injured in a criminal case is a sine qua non for compounding of the offences. While referring to the above said case of Damodar S. Prabhu s casethe counsel has contended that although this judgment has dealt with the Section 147 of Negotiable Instruments Act which uses a non obstante clause and has considered its effect vis a vis Section 320 of Cr.P.C. however this judgment has not specifically explored the applicability of Section 320 of Cr.P.C qua the consent of the complainant in case of compounding of offence under Section 138 of NI Act. It is further contended by the counsel that this aspect was specifically considered and decided by the Hon ble Supreme Court in 2012(1) R.C.R.822 JIK Industries Limited and Others v. Amarlal V. Jumani and Another In this case the Hon ble Supreme Court has categorically explained that although in the earlier judgment rendered in Damodar S. Prabhu s case supra) the question of exclusion of Section 320 Cr.P.C in cases relating to compounding of offences under Section 138 of NI Act due to Section 147 of NI Act has been considered yet the applicability of Section 320 Cr.P.C for the purpose of consent of the compounding party has not been decided by the Court. It is contended by the counsel that the judgment in JIK Industries Limited s casehas considered the scope of the non obstante clause used in Section 147 of NI Act in great details and has ultimately held that despite the earlier judgment rendered in Damodar S Prabhu s casethe proceedings under Section 138 of Negotiable Instruments Act cannot be compounded except with the consent of the CRM M 173017and 7 Having heard learned counsel for the parties this Court finds that the arguments raised by the learned counsel for the petitioners are not legally sustainable. So far as the compromise between the parties under which the petitioner can take recourse is concerned the same has already been held to be finally revoked by this Court with further liberty to the respective parties to prosecute their criminal cases against each other Therefore by any means it would not have been possible for the trial Court to give effect to any kind of agreement compromise or consent on the part of the complainant on its own. Hence the only question which the trial Court could have considered is whether the application filed by the petitioner for compounding of the offence under Section 138 of Negotiable Instruments Act would have been allowed even without consent of the complainant. The trial Court has rightly rejected the application for compounding moved by the petitioners for the lack of necessary consent from the complainant. This Court does not find any illegality or infirmity in the order passed by the trial Court So far as judgments cited by the learned counsel for the petitioner are concerned this Court finds substance in the argument of the learned counsel for the respondents that the judgment of the Hon ble Supreme Court rendered in Damodar S. Prabhu s casedoes not specifically deal with the issue of compounding of an offence under Section 138 of Negotiable Instruments Act in absence of consent of the complainant. This judgment primarily proceeds on the assumption that in the facts of that particular case there was a consent between the parties The dispute in that case was only regarding the stage at which the parties CRM M 173017and 8 can appropriately be permitted to compound the offence under Section 138 of Negotiable Instruments Act. Although the Hon ble Supreme Court held that even under Section 147 of NI Act the offence under Section 138 of Negotiable Instruments Act can be compounded at any stage however the Hon ble Supreme Court laid down a graded scale of costs to be paid by the party applying for compounding with reference to the stage of proceedings at which the compounding has been sought by the party. Beyond that this judgment has no significance so far as the question of consent of the complainant for compounding is concerned The above said judgment of the Supreme Court rendered in Damodar S. Prabhu s casehas specifically been considered by the subsequent Bench of Hon ble Supreme Court in case of JIK Industries Limited s the Hon ble Supreme Court in the case of JIK Industries Limited s has held that this judgment cannot be interpreted to mean that applicability of Section 320 Cr.P.C stands altogether obliterated due to use of non obstante clause in Section 147 of the Negotiable Instruments Act. The Court in JIK Industries Limited s casealso held that the basic ingredients of Section 320 Cr.P.C do not stand excluded merely because of uses of non obstante clause in Section 147. It has been further held that the use of the non obstante clause in a statute has to be considered with reference to the context in which it has been used. Accordingly it has been held that the basic ingredient of compounding i.e. the consent of the other side the complainant in the present case cannot be dispensed with while considering any application CRM M 173017and 9 for compounding. This proposition qua compounding has been contrasted by the Hon ble Supreme Court in this judgment as against the proceedings where the quashing of a complaint is sought by the accused. The Supreme Court has held that quashing of a complaint stands on a different footing and it can be ordered even without the consent of the complainant However compounding is altogether a different concept and the same cannot be resorted to or applied by the Court except with the consent of the Although the counsel for the petitioners has rightly relied upon the subsequent judgment of the co ordinate Bench of the Hon ble Supreme Court rendered in M s Meters and Instruments Private Limited s case supra) however this Court finds that this judgment though has referred to the earlier judgment of the Supreme Court rendered in JIK Industries Limited s casehowever has neither overruled the same nor has taken a detailed discussion regarding the proposition which was specifically decided by the Hon ble Supreme Court in the case of JIK Industries Limited s caseRCR1009 National Insurance Company Limited v. Pranay Sethi and others. In this judgment the Hon ble Supreme Court has amply clarified that in case the subsequent Bench of equal strength does not intend to follow the earlier Bench of the CRM M 173017and 10 same strength then the appropriate course for the subsequent Bench is only to refer the matter to the larger Bench. It has further been clarified that in case this recourse is not adopted by the subsequent Bench then it is the judgment first in point of time which shall be a binding precedent on that point of law and not the subsequent judgment In view of this pronunciation of the law by the Constitutional Bench judgment of the Supreme Court in Pranay Sethi s casethis Court finds that it has to follow the judgment rendered by the Hon ble Supreme Court in case of JIK Industries Limited s casewhich mandated the content of the complainant for compounding of the offence under Section 138 of NI Act In the present case admittedly there is no consent for compounding on the part of the complainant therefore it was impermissible for the trial Court to permit compounding merely on unilateral application moved by the petitioner accused. Hence the trial Court has not committed any illegality by declining the application for compounding. So far as other relief prayed for in this petition qua quashing of complaint and summoning orders on merits of the case are concerned this Court does not find any factual or legal basis for those reliefs. Neither any serious arguments were addressed qua that aspect same are dismissed In view of the above finding no merit in these petitions the September 20 2018 ( RAJBIR SEHRAWAT JUDGE Whether Speaking reasoned Yes No Whether Reportable

Assessee cannot claim double deduction if Section 14A of the Income Tax Act is applicable : Karnataka High Court

Under the Income Tax Act, 1961, deduction under Section 35(2AB) is an expenditure based deduction whereas deduction under Section 10B is income based deduction and hence, the two are independent provisions. The High Court bench consisting of J. Alok Aradhe and J. Nataraj Rangaswamy decided upon income tax deduction in a given assessment year in the matter of Biocon Ltd. v. The Deputy Commissioner of Income Tax [I.T.A. No. 416 of 2014].   The assessee was a company engaged in the manufacture and sale of biotechnological products in Pharmaceutical and enzyme sectors through fermentation based technology. The assessee filed its return of income for the Assessment Year 2004-2005  declaring a total income of Rs. 50,65,18,080/- after claiming various deduction which included deduction under Section 10B as well as Section 35(2AB) of the Act. The assessing officer held that the assessee could not claim deductions under both the sections. The Commissioner of Income Tax (Appeals) affirmed this order upon which the assessee filed an appeal before the Tribunal. The Tribunal again affirmed the previous orders to which the assesse filed the present appeal. Learned Counsel for the assessee submitted that Section 10A as well as Section 10B were not exemption provisions but were deduction provisions and the deduction had to eb given effect  to at the stage of computation of profits and gains of business. It was also brough to the notice of this court that Section 10B was qua the undertaking and was given in respect of the profits of business of the undertaking whereas deduction under Section 35(2AB) was given effect to a later stage while computing the total income of the assessee at the entity level. Therefore, the two deductions were independent of each other. The Learned Counsel for the revenue submitted that the legislature never intents upon providing the benefit of double deduction and hence, the appeal should be set aside.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF JANUARY 2021 THE HON’BLE MR. JUSTICE ALOK ARADHE THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY I.T.A. NO.416 OF 2014 BIOCON LIMITED 20TH KM HOSUR ROAD ELECTRONICS CITY P.O. BANGALORE 560100 REP. HEREIN BY ITS DEPUTY GENERAL MANAGER TAX & COMPLIANCE MR. B. SHIVADUTT. BY MR. SURYANARAYANA T ADVOCATE) APPELLANT THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 11(2) C.R. BUILDING QUEENS ROAD BANGALORE 560001. THE COMMISSIONER OF INCOME TAX LTU JSS TOWERS 100 FEET RING ROAD BANASHANKARI 3RD STAGE BANGALORE 560085. BY MR. K.V. ARAVIND ADVOCATE) RESPONDENTS 2 THIS I.T.A. IS FILED UNDER SEC. 260 A OF INCOME TAX ACT 1961 ARISING OUT OF ORDER DATED 30.04.2014 PASSED IN ITA NO.369 BANG 2010 FOR THE ASSESSMENT YEAR 2004 05 PRAYING TO: i) FORMULATE THE SUBSTANTIAL QUESTION OF LAW STATED ABOVE. ii) ALLOW THE APPEAL AND SET ASIDE THE ORDER OF THE ITAT DATED 30.04.2014 IN ITA NO.369 BANG 2010 TO THE EXTENT QUESTIONED HEREIN. THIS I.T.A. COMING ON FOR HEARING THIS DAY ALOK ARADHE J. DELIVERED THE FOLLOWING: This appeal under Section 260 A of the Income Tax Act 1961has been filed by the assessee. The subject matter of the appeal pertains to the Assessment Year 2004 05. The appeal was admitted by a Bench of this Court vide order dated 01.12.2014 on the following substantial questions of law: 1. The Tribunal was right in holding that the appellant was not entitled to deduction under Section 35(2AB) of the Act to the extent the expenses eligible for deduction under the said provisions pertained to unit entitled for deduction under Section 10B of the Act 3 2. The Tribunal was right in holding that Section 14A of the Act was applicable to the appellant although it had no exempt income " 2. Facts leading to filing of this appeal briefly stated are that the assessee is a company engaged in the manufacture and sale of biotechnological products in fermentation based technology. The assessee filed its return of income for the Assessment Year 2004 05 declaring a total income of Rs.50 65 18 080 after claiming various deductions which included deduction under Section 10B as well as under Section 35(2AB) of the Act. The Assessing Officer by an order dated 29.12.2006 inter alia held that since the assessee has claimed deduction under Section 10B of the Act therefore it is not entitled to claim deduction under Section 35(2AB) of the Act. The aforesaid order was affirmed by the Commissioner of Income Tax 4 by an order dated 13.11.2009. Thereupon the assessee filed an appeal before the Tribunal. The Tribunal by an order dated 30.04.2014 affirmed the order passed by the Commissioner of Income Tax as well as the Assessing Officer. In the aforesaid background the assessee has approached this Court. 3. Learned counsel for the assessee submitted that Section 10A as well as Section 10B of the Act are not exemption provisions but are deduction provisions and the deduction have to be given effect to at the stage of computation of profits and gains of business or profession under Chapter IV D of the Act. It is further submitted that the Tribunal has relied on the decision of this Court in CIT Vs. YOKOGAWA INDIA LIMITED 2012) 21 TAXMANN.COM 154and it was held that Section 10A and Section 10B of the Act are the provisions with regard to deduction. In this connection our attention was invited to paragraph 18 of the judgment. It is also submitted that deduction under Section 10B of the Act is qua the undertaking and is given in respect of the profits of business of the undertaking whereas deduction under Section 35(2AB) of the Act is given effect to a later stage while computing the total income of the assessee at the entity level. Therefore the deductions granted under Section 10B as well as Section 35(2AB) of the Act are independent and the deduction under Section 35(2AB) of the Act is an expenditure based deduction whereas deduction under Section 10B of the Act is an income based deduction and are independent provisions. 4. Our attention has also been invited to sub Section of Section 10B as amended by Finance Act 6 2003 with effect from 01.04.2001 which provides that after 01.04.2001 the units are entitled to deduction under Section 10B of the Act are to be treated on par with other units and will also be entitled to deductions available under the Act under Sections 32 35 etc. It is also urged that prior to amendment of sub Section of Section 10B by the Finance Act 2003 the intention was to curtail the other tax concessions under the Act to the eligible units which is evident from the Circular No.794 dated 09.08.2000. It is also submitted that in order to eliminate the restrictions contained in sub Section of Section 10B the aforesaid provision was amended by Finance Act 2003 by which phrase ending before the 1st day of April 2001" was inserted which means that after 01.04.2001 the restrictions on other tax concessions or deductions are not been in existence. In this connection our attention has been drawn to the Circular No.03 dated 05.09.2003. It is also contended that Section 10B of the Act is a code in 7 itself and deduction under the said provision will have to be computed in accordance with the formula prescribed in sub Section on commercial profits and therefore reducing profits on a notional basis attributing some profits to the expenses eligible for weighted reduction under Section 35(2AB) amounts to tinkering with the formula. It is also urged that the Tribunal grossly erred in relying on Section 14A of the Act to uphold the disallowance. It is further submitted that Section 14A applies only to exempt incomes and since Section 10B of the Act is not an exemption provision as has been held by the Supreme Court in CIT Vs. YOKOGAWA LIMITED supra the aforesaid provision does not apply to the fact situation of the case. In support of aforesaid submission reliance has been placed on the decisions in KARLE INTERNATIONAL PRIVATE LTD. Vs. ACIT dated 07.09.2020 in ITA No.377 2012 VIJAY INDUSTRIES Vs. CIT 103 TAXMANN.COM 454 REDINGTON LTD. Vs. ACIT 8 77 TAXMANN.COM 257CHEMINVEST LTD. Vs. CIT 61 TAXMANN.COM 118 AND PCIT Vs. GVK PROJECT AND TECHNICAL SERVICES LTD. 106 TAXMANN.COM 181 SC). 5. On the other hand learned counsel for the revenue submitted that the assessee is not entitled to deduction of expenditure both under Sections 37 and 35(2AB) specifically in view of Section 35(2) of the Act. It is also submitted that it is never the intention of the legislature nor there is any provision in the Act which confers the benefit of double deduction to the extent of 250%. It is also submitted that restriction imposed under Section 35(2) of the Act equally applies to the expenditure for computing deduction under Section 10B of the Act and the Supreme Court in paragraph 11 of the decision in CIT Vs. YOKOGAWA supra has held that deduction under Section 35 is deemed to have been claimed which includes deduction under Section 35(2AB) 9 of the Act. It is also submitted that deduction under Section 10B is arrived at after allowing the deduction and undertaking is eligible for deduction under Section 35(2AB) and the same is being claimed and therefore once again assessee is not entitled to claim deduction for 100% expenditure and all deductions are deemed to have been claimed in view of Section 10A(6) of the Act. It is also urged that profits of a unit have to be computed on stand alone basis without reference to other eligible or non eligible units or undertaking of the assessee. In this connection our attention has been invited to paragraph 16 of the decision of the Supreme Court in YOKOGAWA INDIA LTD. supra. 6. We have considered the submissions made on both sides and have perused the record. Before proceeding further it is apposite to take note of the relevant extract of Section 10B and Section 35(2AB) of the Act which reads as under: 10 10B. Special provisions in respect of newly established hundred per cent export oriented undertakings 1) Subject to the provisions of this section a deduction of such profits and gains as are derived by a hundred per cent export oriented undertaking from the export of articles or things or computer software for a period of ten consecutive assessment years beginning with the assessment year relevant the previous year in which undertaking begins to manufacture or produce articles or things or computer software as the case may be shall be from the total income of the 35(2AB)(1) Where a company engaged in the business of bio technology or in any business of manufacture or production of any article or thing not being an article or thing specified in the list of the Eleventh Schedule incurs any expenditure on scientific research on in house research and development facility as 11 approved by the prescribed authority then there shall be allowed a deduction of a sum equal to one and one half times of the expenditure so incurred. 2) No deduction shall be allowed in respect of the expenditure mentioned in clause under any other provision of this 7. A Division Bench of this Court in CIT Vs. YOKOGAWA LTD. supra held that Section 10B of the Act is in the nature of an exemption provision. It is pertinent to mention here that the Tribunal by placing reliance on decision of this Court in YOKOGAWA INDIA LTD. supra held that Section 10B of the Act is in the nature of the exemption provision and therefore the Assessing Officer was right in reducing the profits of the units eligible for deduction under Section 10B to the extent of additional 50% deduction available under Section 35(2AB) of the Act. However it is pertinent to mention here that subsequently the decision of this 12 Court in YOKOGAWA INDIA LTD. supra insofar as it pertains to nature of provision of Section 10B of the Act is concerned was reversed by the Supreme Court in CIT VS. YOKOGAWA supra and it was held that Section 10B of the Act is in the nature of deduction provision. It is also pertinent to mention here that Section 10B is a provision which deals with deduction of income whereas Section 35(2AB) deals with deduction on expenditure. It is also relevant here to mention that the restriction contained in sub Sectionof Section 10B of the Act operate only upto 1st day of April 2001. Therefore the restrictions contained in sub Section of Section 10B of the Act have no application to the obtaining factual matrix of the case as the Assessment Year is subsequent to 1st April 2001. It is also noteworthy that the bar contained in Section 35(2AB)(2) does not apply to the fact situation of the case as the same provides that no deduction shall be allowed in respect of expenditure mentioned in clause(1) under any 13 provisions of the Act. As stated supra the deduction under Section 10B of the Act is on the income and not on the expenditure. The Supreme Court in CIT VS. WALFORT SHARE AND STOCK BROKERS 326 ITR 1 has held that mandate of Section 14A is clear and the same is aimed to curb the practice to claim deduction of expenses incurred in relation to exempt income against taxable income and at the same time avail of the tax incentive by way of exemption of income without making apportionment of expenses incurred in relation to exempt income. In the instant case no exempt income has accrued to the assessee therefore the provisions of Section 14A of the Act are not attracted. In view of preceding analysis the substantial question of law framed in this appeal are answered in favour of the assessee and against the revenue. In the result the impugned order dated 30.04.2014 passed by the tribunal insofar as it pertains to the finding that the 14 assessee is not entitled to claim deduction under Section 35(2AB) of the Act to the extent expenses eligible for deduction under the said provision in relation to units entitled to deduction under Section 10B of the Act is hereby quashed. In the result the appeal is disposed of. Sd Sd

When payment of Interest clause present in the contract but interest rate is blank parties are obligated to pay the same: Supreme Court

When a contract between the parties stipulate for the payment of interest on delayed payment but the rate of interest is left blank, in the absence of an exclusionary clause the parties are obligated to pay the same and the Tribunal or Court concerned can decide the rate of interest. This judgment was passed in the case of M/s Oriental structural Engineers Pvt. Ltd. vs. State of Kerala [C.A.No. 3454/2011] by a Single Bench consisting of Hon’ble Justice Aniruddha Bose.  The present appeal arose from a no. of disputes relating to making of payments to the appellants. This appeal was specific towards the entitlement of the appellant to receive interest over the delayed payment in local currency. The agreement has clause to resolve disputes  by the Disputes Review board which would give recommendations. If the same was not acceptable to the parties, then they would have to file a notice for arbitration proceedings. Under this appeal the disputes could not be settled by the DRB and was then referred to the Arbitral tribunal. The tribunal passed the majority award in favour of the appellants and a unanimous one. Based on this the State of Kerala preferred an appeal before the district court under section 34 of the Arbitration and Conciliation Act (The Act). The decision was in favour of the State and the same was upheld by the Division Bench of High Court. The present Appeal is to set aside the order of High Court and restore the award rendered by the tribunal. The agreement stated that the payment to the contractor could be in foreign and local currency. The foreign currency payment was to be made at LIBOR plus 2% which was the specified norm. on this premise the State contended that the local currency would be nil. Further there were communications made by the appellant to the State, stating that there is no interest on delayed payment. However, to rebut the same the appellant contended that the second communication was made under duress and the first communication was in relation to release of withheld amount. The majority award of the tribunal stated that there was an interest payment clause in the contract  The Supreme Court considered the present appeal an extension of the proceeding under section 34 of the Act. Respondents argued that the tribunal’s order was vitiated by the Patent illegality principle as laid down in the judgment of Oil Natural Gas Corporation Ltd. vs. Saw Pipes Lt.[(2003) 5 SCC 705]. Under the above principle the award would be invalid in case if it was in contravention to the arbitration act itself. In the case of Union of India vs. Bright Power Projects ltd. [(2015) 9 SCC 695], the SC had stated the provision of 31(7) of the Act for grant of Interest. The Supreme court held that because the Interest rate was not mentioned, does not mean that there is no payment of interest on delayed payments. Since in the present case interest on delayed payment formed part of the contract itself with an absence of any exclusionary clause, the reasoning by the Tribunal was accepted.  The SC went on to hold, the Tribunal could have awarded the interest as a compensatory or equitable measure due to the absence of an exclusion clause. While addressing the question of if the Tribunal can assign such interest, the Supreme Court want back to the G.C. Roy case, where Interest payment was held to be essentially compensatory in nature. It went on to hold that the same was broadly incorporated under section 31(7)(a) of the Act. Thus, the Supreme Court restored the award of the tribunal, setting aside orders of other Courts. 

The appellants were awarded a contract by the State of Muvattupuzha­Thodupuzha and MuvattupuzhaAngamaly. The agreement in this regard was executed on 7th November 2002 This appeal originates from disputes on certain issues arising appellants under certain heads. In the present proceeding recommendations at the first instance. If the recommendations was required to give notice to commence arbitration within a specified time and thereafter the dispute was to be settled appeal arises are concerned disputes on three counts arose member Arbitral Tribunal The amount due to the Contractor under any Contract shall subject to Clauses be paid by the within 42 days after the Contractor’s monthly statement has been submitted to the Engineer for to or deducted from the next payment to the credit In the event of the failure of the Employer to shall pay to the Contractor interest compounded same should have been paid in the currencies in which the payment are due. The provisions of the 4. The relevant provision of the appendix to the bid the content of which came for interpretation before the Tribunal and “ANNEXURE P 3 The above of interest for foreign currencies shall be supplied by the recording the rate of interest for payment to be made in local currency blank. The agreement contemplated payment to the been that the rate of interest on delayed payment and the next was another written communication dated 3rd August 2004 is a waiver of the rights of the claimant does not stand. The receiving payment in respect of IPC. I The waiver does not apply to the instant case. This is corroborated by the fact that was due under the terms of the contract the DRB made after due deliberations and discussions with the parties has relevance The Tribunal directed interest on delayed payment in paragraphs 1.6 to 1.8 of the award. Extract from the award containing these paragraphs would appear later in this was no waiver and in any event the communication of 14 th July 2004 followed by that of 3rd August 2004 related to IPC­I only This stand had been broadly accepted by the Tribunal. The the appellants claimants had continued to raise demand for interest subsequent to the issue of those two communications interest on delay in payment with regard to the local currency Appellate Bench was that in the event it was intention of the claimants to retain their entitlement to interest on delayed persuaded to accept the appellants’ bid on the basis that the situation as this factor could have made their bid more 10. This appeal in substance is an extension of a proceeding under Section 34 of the 1996 Act. To go into the question of Ltd. vs. Saw Pipes Ltd. 5 SCC 705]. Contention of the respondents has been that the Arbitral Tribunal’s order stood vitiated under the “patent illegality” principle spelt out in that What would constitute patent illegality has been elaborated by this Court in a later judgment Associate Builders vs. Delhi invalidated as per this authority if the same was in “42.3Equally the third subhead of patent “28. Rules applicable to substance of decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the This last contravention must be understood with a caveat. An Arbitral terms of the contract but if an arbitrator construes a term of the contract in a award can be set aside on this ground Construction of the terms of a contract is primarily for an arbitrator to decide unless that no fair­minded or reasonable person in the bid document the “appendix to bid” to be specific had far as payment in local currency component contained in the agreement is concerned. In our opinion however the interference with the award by the Arbitration Court on this ground was unwarranted. The underlying reasoning of the 9 SCC 266] were relied upon before us by the appellants to distinguished on behalf of the respondents on the ground that the former decision related to interest pendente lite and both statute an arbitrator had power or jurisdiction to grant pre­ lite and future interest. Such jurisdiction stood curbed only if express terms of the contract precluded payment of interest Referring to another authority the Union of India vs. Bright Power Projects(P) Ltd. 9 SCC 695] this Court 31(7) of the 1996 Act. In the case of Bright Power Projects agreed by the parties the Arbitral Tribunal can award interest at which forms the subject­matter of this appeal being the 12. On the other hand the specific term of the agreement our opinion cannot be construed as cancellation of the clause do not think the Appellate Court or the Arbitration Court was interest under that head was necessary to have been incorporated in the agreement. Though the case of G.C. Roy supra) was delivered in a dispute to which the 1940 Act was applicable the Constitution Bench of this Court has laid down “43. The question still remains whether arbitrator has the power to award interest must reiterate that we are dealing with the situation where the agreement does not prohibit such grant. In other words we are dealing with a case where the agreement is of aforementioned decisions the following any name. It may be called interest compensation or damages. This basic consideration is as valid for the period the upon the reference. This is the principle of 13. The underlying principle guiding award of interest is that interest payment is essentially compensatory in nature. But as we have already observed in the case before us interest on delayed payment formed part of the contract itself. The agreement did not contain any express exclusion clause on reasoning of the Tribunal on the basis of which it rejected the respondents’ plea of waiver. This was a finding of fact on reasons behind the decisions of the Appellate Court and Arbitration Court was that the appellants while bidding had and the said two fora sought to invoke the principle of law 14. The Appeal Court accepted reasoning of the Arbitration Court that the blank portion in the appendix to the bid would imply “zero” or “nil”. This reasoning in our opinion is flawed constitute rewriting the contract which is impermissible. The payment. The Tribunal determined the rate thereof in sub­ paragraphs 1.6 to 1.8 of the award. This part of the award It is therefore held that the Claimants under any IPCs issued by the Engineer or Claimants monthly statements submitted to the Engineer for certification and when were not paid or had been withheld by the after the claimants’ respective monthly statements had been submitted to the Engineer for certification to the date of The Arbitral Tribunal therefore directs that the Respondents shall pay to the 2 15 72 150 ­ for the period of the due dates of payment till the actual dates of full The Respondents shall further pay to the claimants such interest on the unpaid sums in respect of other IPCs No. 5 to 14 issued by the Engineer or the Claimants for certification for the period from the due dates of payment till the actual dates of full to para 1.7 and 1.8 hereinabove from such dates of payment of the principal amount to 15. The Appellate Court’s rationale that such blank interest assumption that the other bidders might have had pressed for other bidders had left the space blank or filled the same with specified rate. The Arbitration Court’s view sustained by the High 16. We do not find any flaw in the reasoning of the Arbitral in respect of delayed payment in local currency component specified therein. This being the position in our opinion the under Section 34 of the Act which view was upheld by the Appellate forum breaches the permissible boundaries for encroaching upon an award as laid down in Saw Pipes case In our opinion the view taken by the Tribunal on view. We however are of the opinion that the rate at which 1.6 and 1.8 of the award which we have reproduced above are of interest but provides for payment of interest on delayed payment the Tribunal’s exercise of fixing the rate should have been on the basis of applying the principle laid down in paragraph 43.1. in the case of G.C. Roy (supra). The said of the 1996 Act. The only difference between the situation provision for such payment. Only the rate at which interest would be payable remained unspecified. In our view simple 1.6. to 1.8 of the award. We accordingly set aside the judgment interest on delayed payment in relation to local currency component of the contract. As a consequence judgment of the Sixth Additional District Judge Ernakulam shall also stand of interest on the sum shall be computed in the manner prescribed in paragraphs 1.6 1.7 and 1.8 and shall be at 8

M/S. Omcon Infrastructure Pvt. Ltd V/s. Indiabulls Investment Advisors Ltd

“Once the Managing Director of the Respondent Company was ineligible to appoint the arbitrator, the same would also bar the Company itself from unilaterally appointing the sole arbitrator” The dispute arose out of an agreement entered into between the parties on 01.07.2017, whereby the respondent was appointed by the petitioner as its marketing representative for the development of its project “Reign Forest” at Visakhapatnam. The said agreement provided for the resolution of disputes by way of arbitration under Clause 7.2.Upon disputes having arisen between the parties, the respondent, vide its legal notice dated 15.02.2019, called upon the petitioner to pay a sum of Rs.4,11,44,163/- towards refund of security fee and marketing fee, which the petitioner refused to pay. The respondent then invoked arbitration on 14.06.2019 and simultaneously appointed Justice S.K. Katriar, a former Judge of Patna High Court, as its sole Arbitrator by exercising its power under Clause 7.2 of the agreement.Upon receiving information about the unilateral appointment of the Arbitrator by the respondent, the petitioner, vide its letter dated 25.08.2019, informed the learned Arbitrator that the said unilateral appointment was not acceptable to it. However, since the petitioner did not appear before the learned Arbitrator on 26.08.2019, i.e., the date of the first sitting; the learned Arbitrator adjourned the matter and vide its subsequent order passed on 25.09.2019, fixed the schedule for conduct of further proceedings and also directed the parties to deposit his fees in accordance with the terms of para 5 thereof.The petitioner, however, did not appear before the learned Arbitrator even on the next date and on 20.01.2020, filed an application under Section 12 of the Act before the learned Arbitrator, challenging his very jurisdiction to continue with the arbitration. In the said application, the primary plea of the petitioner was that the unilateral appointment of the arbitrator by the respondent, by resorting to clause 7.2 of the agreement dated 01.07.2017, was contrary to the decision of the Hon’ble Supreme Court in Perkins Eastman Architects DPC & Anr. V. HSCC India Ltd., [2019 SCC Online SC 1517].Vide his order dated 03.02.2020, the learned Arbitrator had rejected the petitioner’s application by holding that the same was barred by delay and laches and that the decision of the Apex Court in Perkins Eastman Architects DPC & Anr. (supra) was not applicable to the present case, as the authority to nominate the arbitrator in the present case was vested in a Company, and not in an individual.Assailing the aforesaid order passed by the learned Arbitrator, the present petition was filed praying for the termination of his mandate. ISSUE BEFORE THE COURT: Whether the unilateral appointment of the arbitrator was sustainable? RATIO OF THE COURT In support of the petition, learned senior counsel for the petitioner submitted that once it is an admitted position that the respondent had unilaterally appointed the sole Arbitrator on 14.06.2019 and that the petitioner had, even before the first date of hearing before the learned Arbitrator i.e. 26.08.2019, informed the learned Arbitrator that his appointment was not acceptable to the petitioner, its objection could not be rejected on the ground of delay and laches.This court held that the unilateral appointment of the learned sole Arbitrator by the Respondent Company on 14.06.2019, in terms of Clause 7.2, could not be sustained. The ratio of the decision in Perkins Eastman Architects DPC & Anr. (supra) cannot be read in such a narrow manner as has been sought to be done by the learned Arbitrator. In the court’s view, once the Managing Director of the Respondent Company was ineligible to appoint the arbitrator in the light of the decision in Perkins Eastman Architects DPC & Anr. (supra), the same would also bar the Company itself from unilaterally appointing the sole arbitrator.The court also rejected the conclusion arrived at by the learned Arbitrator that there was any inordinate delay on the part of the petitioner in raising an objection to his appointment. The petitioner had admittedly conveyed its objection to the learned Arbitrator even before the first sitting was held by him and, therefore, it cannot be stated that the petitioner was in any way guilty of delay, laches or negligence. DECISION HELD BY COURT: The mandate of the learned Arbitrator, namely Justice (Retd.) S.K. Katriar was terminated, and Justice Reva Khetrapal, a former Judge of this Court (Mobile No. 9871300030) was appointed as the sole Arbitrator for adjudication of the disputes between the parties in relation to the Agreement dated 01.07.2017.

Via video conferencing IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 01.09.2020 O.M.P.(COMM.) 35 2020 & I.A.6153 2020 M S. OMCON INFRASTRUCTURE PVT. LTD. ..... Petitioner Through Mr.Gopal Jain Sr.Adv. with Mr.Alok Kumar Mr.Shivang Singh Advs INDIABULLS INVESTMENT ADVISORS LTD. ..... Respondent Through Mr.Rudreshwar Singh Adv. HON BLE MS. JUSTICE REKHA PALLI REKHA PALLI JThis a petition under Sections 14 & 15 of the Arbitration and Conciliation Act 1996 seeking termination of the mandate of the learned Arbitrator unilaterally appointed by the respondent. The petitioner also seeks quashing of order dated 03.02.2020 passed by the learned Arbitrator whereby the petitioner’s application under Section 12 of the Act has been rejected. The dispute arises out of an agreement entered into between the parties on 01.07.2017 whereby the respondent was appointed by the petitioner as its marketing representative for the development of its project “Reign Forest” at Visakhapatnam. The said agreement provides for the resolution of disputes by way of arbitration under Clause 7.2 which reads as under: “7.2 Notwithstanding anything to the contrary in this if any dispute Agreement the Parties agree O.M.P.(COMM.) 35 2020 disagreement differences arises between the Parties during the subsistence of this Agreement and or thereafter in connection with inter alia the validity interpretation implementation and or alleged breach of any provision of this Agreement jurisdiction or existence appointment of the arbitrator or of any nature whatsoever then the Dispute shall be referred to a sole arbitrator who shall be nominated appointed by the Company only. The Parties expressly agree that in any circumstance the appointment of the sole arbitrator by the Company shall be and shall always be deemed to be the sole means for securing the appointment nomination of the sole arbitrator without recourse to any other alternative mode of appointment nomination of the sole arbitrator.” Upon disputes having arisen between the parties respondent vide its legal notice dated 15.02.2019 called upon the petitioner to pay a sum of Rs.4 11 44 163 towards refund of security fee and marketing fee which the petitioner refused to pay. The simultaneously appointed Justice S.K. Katriar a former Judge of Patna High Court as its sole Arbitrator by exercising its power under Clause 7.2 of the agreement. Upon receiving information about the unilateral appointment of the Arbitrator by the respondent the petitioner vide its letter dated 25.08.2019 informed the learned Arbitrator that the said unilateral appointment was not acceptable to it. However it appears that since the petitioner did not appear before the learned Arbitrator on 26.08.2019 i.e. the date of the first sitting the learned Arbitrator O.M.P.(COMM.) 35 2020 adjourned the matter and vide its subsequent order passed on 25.09.2019 fixed the schedule for conduct of further proceedings and also directed the parties to deposit his fees in accordance with the terms of para 5 thereof. The petitioner however did not appear before the learned Arbitrator even on the next date and on 20.01.2020 filed an application under Section 12 of the Act before the learned Arbitrator challenging his very jurisdiction to continue with the arbitration. In the said application the primary plea of the petitioner was that the unilateral appointment of the arbitrator by the respondent by resorting to clause 7.2 of the agreement dated 01.07.2017 was contrary to the decision of the Hon’ble Supreme Court in Perkins Eastman Architects DPC & Anr. V. HSCC India Ltd. was not applicable to the present case as the authority to nominate the arbitrator in the present case was vested in a Company and not in an individual. Assailing the aforesaid order passed by the learned Arbitrator the present petition has been filed praying for the termination of his mandate. In support of the petition learned senior counsel for the petitioner submits that once it is an admitted position that the respondent had unilaterally appointed the sole Arbitrator on 14.06.2019 and that the petitioner had even before the first date of O.M.P.(COMM.) 35 2020 hearing before the learned Arbitrator i.e. 26.08.2019 informed the learned Arbitrator that his appointment was not acceptable to the petitioner its objection could not be rejected on the ground of delay and laches. He further submits that the learned Arbitrator has failed to appreciate the ratio of the decision in Perkins Eastman Architects DPC & Anr.and has erroneously come to the conclusion that the same would not be applicable to the facts of the present case. He therefore prays that the mandate of the learned Arbitrator be terminated and an independent Arbitrator be appointed by this Court. Though a counter affidavit has been filed opposing the petition learned counsel for the respondent is unable to dispute the fact that the petitioner had objected to the unilateral appointment of the learned Arbitrator by the respondent at the very first instance. He also does not dispute that the ratio of the decision in Perkins Eastman Architects DPC & Anr. would also be applicable to a situation like in the present case wherein the appointment is made by a Company instead of a named individual. Having heard the learned counsel for the parties I have no hesitation in holding that the unilateral appointment of the learned sole Arbitrator by the Respondent Company on 14.06.2019 in terms of Clause 7.2 cannot be sustained. The ratio of the decision in Perkins Eastman Architects DPC & Anr.cannot be read in such a narrow manner as has been sought to be done by the learned Arbitrator. In my view once the Managing Director of the Respondent Company was ineligible to appoint the arbitrator in the light of the decision in Perkins Eastman Architects DPC & Anr. O.M.P.(COMM.) 35 2020 supra) the same would also bar the Company itself from unilaterally appointing the sole arbitrator. In this regard reference may also be made to the decision in Proddatur Cable TV Digi Services v. Siti Cable Network Limited109 2019] wherein while dealing with a similar clause a Coordinate Bench of this Court held as under: “25. Insofar as the reliance by the respondent on the judgments permitting unilateral appointment by the Authority designate of one party to the agreement is concerned in my view the same will have no relevance in view of the judgment of the Supreme Court in the case of Perkins will not apply only because the designated Authority empowered to appoint an Arbitrator is other than a Managing Director. Moreover as brought out by the respondent itself Company here is run by the Board of Directors. The „Board of Directors‟ is defined in Section 2(10) of the Companies Act 2013 as under: O.M.P.(COMM.) 35 2020 “2(10) “Board of Directors” or “Board” in relation to a company means the collective body of the directors of the interest of the Company its employees and Thus the Company is run none other than the Directors collectively. Duties of the Directors have been stipulated in Section 166 of the Companies Act 2013. A bare perusal of the duties clearly reveals that the Director at all times has to act in good faith to promote the objects of the Company and in the shareholders. A Director shall not involve in a situation in which he may have a direct or an indirect interest that conflicts or possibly may conflict with the interest of the Company. It goes without saying that the Directors of the Company as a part of the Board of the Directors would be interested in the outcome of the Arbitration proceedings. The Company therefore acting through its Board of Directors would suffer the ineligibility under Section 12(5) read with Schedule VII of the Act. The same ineligibility would also apply to any person appointed by the said Company. Thus in my view for the purposes of Section 11(6) and Section 12(5) read with Schedule VII there cannot be a distinction based on the appointing authority being a Company. 26. Insofar as the argument of applicability of the judgment in Perkins case to on going arbitration proceedings is concerned the Supreme Court in the case of Bharat Broadband supra) has already decided the said issue. Relevant paras of the judgment in the case of Bharat Broadband have been extracted above. Thus following the ratio of said judgment once the Supreme Court has laid down the law under Section 12 of the Act Section 14 of the Act gets attracted and the mandate of the jure. O.M.P.(COMM.) 35 2020 27. The respondent is not right in its contention that only because the arbitration agreement was entered into on 30.08.2015 i.e. before the coming into force of the Amendment Act 2016 the judgment of Perkinsand Section 12(5) of the Act would not apply. First and foremost Section 12(5) of the Act itself begins with a nonobstante clause stipulating that Section 12(5) would apply notwithstanding any prior agreement to the contrary. Secondly the relevant date to decide the applicability of Section 12(5) is not the date of the agreement but the date on which the Arbitration commences. By virtue of Section 21 of the Act the Arbitration commences when the notice invoking arbitration is sent. In the present case the notice invoking the arbitration agreement was sent by the petitioner on 28.10.2018 which is after the insertion of Section 12(5) of the Act by the Amendment Act 2016. Thus there is no doubt that Section 12(5) would apply to the present case and the Company is debarred in law from appointing the Arbitrator. I am fortified in my view by the judgment of the Supreme Court in the case of Board of Control for Cricket in India vs. Kochi Cricket Private Limited & Ors.6 SCC 287 the relevant paras of which read as under: “39. Section 26 therefore bifurcates proceedings as has been stated above with a great degree of clarity into two sets of proceedings — arbitral proceedings themselves and court proceedings in relation thereto. The reason why the first part of Section 26 is couched in negative form is only to state that the Amendment Act will apply even to arbitral proceedings commenced before the amendment if parties otherwise agree. If the first part of Section 26 were couched in positive language it would have been necessary to add a proviso stating that the Amendment Act would apply even to arbitral proceedings commenced before O.M.P.(COMM.) 35 2020 amendment if the parties agree. In either case the intention of the legislature remains the same the negative form conveying exactly what could have been stated the necessary proviso. Obviously positively with “arbitral proceedings” having been subsumed in the first part cannot re appear in the second part and the expression “in relation to arbitral proceedings” would therefore apply only to court proceedings which relate to the arbitral proceedings. The scheme of Section 26 is thus clear: that the Amendment Act is prospective in nature and will apply to those arbitral proceedings that are commenced as understood by Section 21 of the principal Act on or after the Amendment Act and to court proceedings which have commenced on or after the Amendment Act came into force.” I am also unable to agree with the conclusion arrived at the by the learned Arbitrator that there was any inordinate delay on the part of the petitioner in raising an objection to his appointment. The petitioner had admittedly conveyed its objection to the learned Arbitrator even before the first sitting was held by him and therefore it cannot be stated that the petitioner was in any way guilty of delay laches or negligence. 11. For the aforesaid reasons the mandate of the learned Arbitrator namely Justice S.K. Katriar is terminated and Justice Reva Khetrapal a former Judge of this Courtis appointed as the sole Arbitrator for adjudication of the disputes between the parties in relation to the Agreement dated 01.07.2017. It is however made clear that the termination of the mandate of Justice O.M.P.(COMM.) 35 2020 Retd.) S.K. Katriar will not be seen as a reflection on his impartiality and fairness. 12. At this stage learned senior counsel for the petitioner fairly submits that since the respondent had paid a fee of about 5 lakhs to the earlier Arbitrator so appointed the petitioner volunteers to contribute a sum of Rs.1 lakh towards the fees paid by the respondent to the erstwhile Arbitrator. It is made clear that this Court has not considered the rival claims of the parties on merits and it will therefore be open for them to file claims counter claims and raise all pleas permissible in law before the learned Arbitrator which will be decided in accordance with law. 14. Before commencing arbitration proceedings the Arbitrator will ensure compliance of Section 12 of the Act. 15. A copy of this order be sent to the learned Arbitrator through electronic means. 16. The petition along with pending application is disposed of. REKHA PALLI J SEPTEMBER 1 2020 O.M.P.(COMM.) 35 2020

Petitioner released on bail upon furnishing bail bonds after being arrested under Sections 147/149/302 of the Indian Penal Code: High court of Patna

The petitioner was arrested under Section 147 of the Indian Penal Code, “Punishment for rioting”, section 149, “ Every member of unlawful assembly guilty of offense commit­ted in the prosecution of a common object”, section 302 of the Indian Penal Code, “Punishment for murder”. This is in connection with Simri Bakhtiyarpur PS Case No. 263 of 2019 dated 05.07.2019. This Judgment was given in the high court of Judicature at Patna on the 6th  of July 2021 by the Honorable Mr. Justice Ahsanuddin Amanullah in the case of Baby Khatoon versus the state of Bihar criminal miscellaneous No. 37145 of 2020, Mr. Uday Chand represented as the advocate for the petitioner and Mr. Arvind Kumar represented the state of Bihar as the additional Public prosecutor, the proceedings of the court were held through video conference. The following are the facts of the case, the petitioner was accused along with her family members of assaulting the informant and his daughter and his brother which resulted in injuries. The counsel for the petitioner held that the petitioners were ladies and since they were accused of assault along with the male member of the family and the reason they have been implicated was to involve the entire family. It was submitted that the male members were previously in a fight where the petitioners never intervened since petitioner no.1 is only 18 years and petitioner no.2 is a window of 60 years the counsel further conceded that the petitioner has no other criminal antecedent. The Additional Public Prosecutor held that the petitioners have committed assault which resulted in the death of one person, it was not disputed that the allegations of assault against the petitioner were in general and omnibus. After considering the facts and circumstances of the case 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 Chief Judicial Magistrate, subject to the conditions under Section 438(2) Cr.P.C., 1973  “(i) that one of the bailors shall be a close relative of the petitioners, (ii) that the petitioners and the bailors shall execute the bond and give an undertaking with regard to good behavior of the petitioners, and (iii) that the petitioners shall cooperate with the Court and police/prosecution.”

Date : 06 07 2021 IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No. 371420 Arising Out of PS. Case No. 263 Year 2019 Thana SIMRI BAKHTIYARPUR District 1. Baby Khatoon aged about 18 years Female Daughter of Late Mojeem. 2. Farida Khatoon aged about 60 years Female wife of Late Mojeem. Both resident of Village Hussain Chowk P.S. Simri Bakhtiyarpur District ... Petitioner s ... Opposite Party s The State of Bihar Appearance : For the Petitioner s For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Mr. Uday Chand Prasad Advocate Mr. Arvind Kumar Pandey APP The matter has been heard via video conferencing. 2. Heard Mr. Uday Chand Prasad learned counsel for the petitioners and Mr. Arvind Kumar Pandey Additional Public Prosecutor for the State. 3. The petitioners apprehend arrest in connection with Simri Bakhtiyarpur PS Case No. 2619 dated 05.07.2019 instituted under Sections 147 149 302 of the Indian Penal Code. 4. The allegation against the petitioners and other family members is of assault on the informant his daughter and brother who later succumbed to his injuries. Patna High Court CR. MISC. No. 371420 dt.06 07 2021 2 3 5. Learned counsel for the petitioners submitted that the petitioners are ladies and the allegation is that they had also assaulted by lathi and danda along with the male family members and thus it is obvious that they have been implicated only to involve the whole family. It was submitted that when the male members were already in a fight there was no occasion for the petitioners to intervene especially since the petitioner no. 1 is aged 18 years and petitioner no. 2 is a widow of 60 years. Learned counsel submitted that the petitioners have no other criminal antecedent. 6. Learned APP submitted that the petitioners have also assaulted and there has been death of one person. However it was not disputed that against the petitioners the allegation of assault is general and omnibus. 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 Chief Judicial Magistrate Saharsa in Simri Bakthiyarpur PS Case No. 2619 subject to the conditions Patna High Court CR. MISC. No. 371420 dt.06 07 2021 3 3 laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that one of the bailors shall be a close relative of the petitioners that the petitioners and the bailors shall execute bond and give undertaking with regard to good behaviour of the petitioners and that the petitioners shall cooperate with the Court and police prosecution. Any violation of the terms and conditions of the bonds or the undertaking or non cooperation shall lead to cancellation of their bail bonds. 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 action on the same after giving opportunity of hearing to the aforementioned terms. 9. The petition stands disposed off Anjani

Secretaries and Field Staff of Local Government Institution personally liable for illegal installation of political party’s flag mast: Kerala High Court

The issue placed before consideration of the bench of Kerala High Court consisting of Justice Devan Ramachandran was legality of unauthorized installation of flag masts of various political parties across the state in the matters between The Manam Sugar Mills Co-operative Ltd. v. Deputy Superintendent of Police W.P.(C)Nos. 22750 of 2018, 25784 of 2018 and 42574 of 2018 decided on 19.1.2022. The facts of this case are that this petition is by a property owner who approached the Court through counsel Adv.RT Pradeep, seeking police protection to remove flagpoles allegedly erected on his property by political parties. The Amicus Curiae (Sri. Hareesh Vasudevan) informed the court that only because this Court has not issued orders in the last few months, that unauthorized Boards/Banners/Flags are no longer allowed if they come to occupy the public spaces of the state.Although the Road Safety Commissioner has issued order dated 06/02/2020 prohibiting the same in any public space, including pedestrian paths, guardrails, medians, traffic islands, etc. However, various individuals and organizations seem to have the impression that they can still violate this and will not take any action against them.One reason why this threat is not fully contained is because ad agencies have been tasked with installing them, and these agencies do so without even realizing the relevant laws, especially since some of their employees are not from Kerala. The Kerala High Court held that the licenses of printing houses/advertising agencies that are found to have erected such flagpoles on behalf of political parties and others will be revoked. The Court decided that the larger question of such facilities elsewhere should also come to the attention of the authorities and gathered together several petitions on the same subject. As the government has allowed political parties to continue the practice of erecting flagpoles wherever they wish, without consequences, the government has ordered strict action against those who fail to remove these facilities in accordance with the law. The following guidelines have been issued by the Court:

Devan Ramachandran J W.P.(C)Nos. 227518 257818 and 425718 Dated this the 19th day of January 2022 O R D E R Apparently as is also reported by the learned Amicus Curiae Sri.Hareesh Vasudevan merely because this Court has not issued orders for the last few months unauthorized Boards Banners Flags have now come to occupy the public spaces in the State even though the Road Safety Commissioner has issued an order dated 06 02 2020 banning the placing of the same on any public space including pedestrian paths pedestrian railings medians traffic Islands etc 2. However various persons and entities seem to have gained an impression that they can still violate this and that no action will fall upon them 3. Through the advent of various orders passed by this Court which are more than 20 or 25 in number W.P.(C)Nos. 227518 257817 and 425718 the stakeholders including the Secretaries of the Local Self Government Institutions have been sufficiently warned including that they will be personally responsible for the cost of the unauthorized installations. Pertinently every time this Court passed orders to remove them they were complied with but it would simply return because the resolve to ensure that it is finally rid of is lacking 4. Sri. Hareesh Vasudevan learned Amicus Curiae informs this Court that one reason why this menace has not been fully controlled is because advertising agencies are entrusted with the task of installing them who do so without even being aware of the laws involved particularly because some of their workmen are not from 5. Taking note of the afore submissions and since any installations can be made on the public places only under the specific sanction of the Secretary of the Local Self Government Institution involved this Court is now of W.P.(C)Nos. 227518 257817 and 425718 the firm view that certain additional directions will also have to be issued before this writ petition is disposed of 6. In the afore circumstances I make the following directions in addition to the ones which have already been a) The Secretaries of the Local Self Government Institutions shall immediately begin a drive to remove all the unauthorized Boards Banners Flags which are contrary to the directions of this Court and in violation of the order of the Road Safety Commissioner and return them to the perpetrators without dumping it in the public waste disposal systems within a period of thirty days from today. Necessary directions to the various Secretaries of the Local Self Government Institutions shall be issued by the Director of Panchayats and by the Director of Urban Affairs by way of Circulars Orders within a period of five days W.P.(C)Nos. 227518 257817 and 425718 b) Every unauthorized Board Banner Flag etc. remaining after the afore period as has been already declared by this Court shall be the personal responsibility of the Secretaries of the Local Self Government Institutions as also the Field Staff thereof which will invite necessary action as per law c) No Advertisement Agency Entity shall be entitled to fix any unauthorized Board Banner Flag or such other in violation of the orders of this Court or contrary to the order of the Road Safety Commissioner and for this purpose they shall make such installations only after they are provided the necessary sanction from the Secretary of the Local Self Government Institutions and in no other manner. Evey Board Banner Flag which shall be printed by the Advertisement Agencies Printing Presses shall contain their addresses and phone numbers displayed at its lower end so that W.P.(C)Nos. 227518 257817 and 425718 necessary action can be taken in the event of any violation found against them by the competent d) Any Boards Banners Flags hereinafter printed without the details of the Printing Press Advertising Agency as above will be deemed to be illegal inviting stringent action including under the Indian Penal Code and the Land Conservancy Act e) Any violation of the directions in (c) and (d above will also entail the cancellation to the licenses to the Printing Press Advertising Agencies subject to a proper enquiry being completed List this matter for further consideration on DEVAN RAMACHANDRAN JUDGE

The Payment of Gratuity Act, 1972 only excludes an apprentice and not a trainee: Kerala High Court

The Kerala High Court, in a recent judgement dated 02.11.2020 observed that an employer cannot deny his employee the benefit of gratuity, as stated in the Payment of Gratuity Act, 1972, by designating her/him, the position of a trainee, while continuing to extract regular work from the employee. This was laid down by the Hon’ble Justice A. M. Badar in the mater of IREL (India) Limited versus P. N. Raghava Panicker [WP(C).No.2254 OF 2020(F)] IREL (India) Limited, the petitioners, claimed that Raghava Panicker, the respondent, could not claim gratuity for the first two years of his employment (from 16.07.1991 to 15.07.1993) since he was appointed as a Helper Trainee and was only subjected to a monthly stipend. The respondent argued that his nature of employment remained the same before and after 16.07.1993 and had rendered continuous service for a duration of 23 years 8 months and 15 days, for which he should get the full gratuity amount. The case was first adjudged by the Controlling Authority who directed the petitioner (employer) to pay the balance amount of gratuity of Rs. 41,459/- to the employee further stating that “Section 2(e) of the Payment of Gratuity Act, 1972 defines an “employee” which excludes only apprentice. The Act says “employee means any person (other than an apprentice)…” and that “The trainee comes under the scope of any person and therefore is an employee. Further in the instant case, although the Applicant has joined as trainee, he was a regular employee at the time of superannuation. The argument of the Opposite Party that the Applicant cannot claim gratuity for the training period is not found justified.” Aggrieved by the judgement, IREL (India) Limited filed an appeal u/s 7(7) of the Gratuity Act, to the Appellate Authority who confirmed the order passed by the Controlling Authority. On the filing of a Writ Petition, the HC, by relying on SC judgement of Employees State Insurance Corporation and Another Vs. Tata Engineering & Co., Locomotive Co. Ltd and Another AIR 1976 SC 66, held that “the 1st respondent herein is not a Trade Apprentice Trainee and therefore, there is no exemption to the employer from the liability under the Gratuity Act so far…”. The HC also relied on Chairman-cum-Managing Director, Orissa Mining Corporation Ltd Vs. Controlling Authority under Payment Of Gratuity Act-cum-Assistant Labor Commissioner and Others 1994 (2) LLN 1130  where the Orissa HC held that “… A trainee employed under a contract of employment is not an apprentice, under the Apprentices Act, unless he is undergoing apprenticeship training in a designated trade in pursuance of a contract of apprenticeship…”. Hence, the HC dismissed the Writ Petition affirming the orders passed by the Controlling Authority and the Appellate Authority, and found that the respondent was entitled to gratuity for his entire period of employment.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE A.M.BADAR MONDAY THE 02ND DAY OF NOVEMBER 2020 11TH KARTHIKA 1942 WP(C).No.2254 OF 2020(F IRELLIMITED FORMERLY INDIAN RARE EARTHS LIMITED) RARE EARTHS DIVISION UDYOGAMANDAL ERNAKULAM DISTRICT REPRESENTED BY ITS HEAD RED MR. A. VEERAMANI SRI.PAULOSE C. ABRAHAM P. N. RAGHAVA PANICKER CHINCHU NIVAS KARRIKAD P. O. CHERTHALA 688 527 THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT KAKKANAD 682 030 THE APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT KAKKANAD 682 030 R1 BY ADV. SRI.C.S.AJITH PRAKASH R1 BY ADV. SRI.T.K.DEVARAJAN R1 BY ADV. SMT.T.N.SREEKALA R1 BY ADV. SRI.PAUL C THOMAS R1 BY ADV. SRI.M.B.SOORI R1 BY ADV. SHRI.BABU M R1 BY ADV. SMT.ANCY THANKACHAN THIS WRIT PETITION HAVING BEEN FINALLY HEARD ON 28 10 2020 THE COURT ON 02 11 2020 DELIVERED THE FOLLOWING W.P.(C) No.22520 A.M.BADAR J W.P.(C) No.2254 OF 2020 Dated this the 2nd day of November 2020 JUDGMENT By this writ petition the petitioner IREL determining the balance amount of gratuity payable to the 1st respondent herein as Rs.41 459 which has been confirmed by the Appellate Authority under the said Act vide order dated 15.10.2019 in an appeal under Section 7(7) of the said Act filed by the petitioner employer. 2. The facts in brief are thus The 1st respondent herein has undisputedly retired as Helper on attaining the age of superannuation on 30.04.2015 from the service of the petitioner. On or about 21.05.2015 he preferred an application under Section 7(4) of the Gratuity Act with an averment that he was in the employment of the petitioner from 16.07.1991 to 30.04.2015 and has rendered W.P.(C) No.22520 continuous service of 23 years 8 months and 15 days. In the said application the 1st respondent contended that the petitioner is liable to pay balance amount of gratuity of Rs.41 293 to him. The said application is at Ext.P1 The petitioner herein filed a counter statement before the Controlling Authority admitting the fact that the 1st respondent retired on attaining the age of superannuation on 30.04.2015. However the petitioner herein set up a case that vide letter of offer dated 28.06.1991 the 1st respondent joined the petitioner as Helper Trainee with effect from 16.07.1991 and he was Trainee Helper for a period of two years i.e. upto 15.07.1993 on consolidated monthly stipend of Rs.800 during that training period. He was not entitled to any other benefit. It is further averred in the counter statement Ext.P2) by the petitioner that on successful completion of the training the 1st respondent was offered regular employment and was appointed as Helper on 16.07.1993. This training period of two years cannot be counted as regular employment and the trainee cannot be treated as regular employee. In the said counter statement the petitioner admitted that from the date of his engagement as Helper Trainee the 1st respondent W.P.(C) No.22520 was kept in different sections of the plant of the petitioner so as to enable the 1st respondent to become conversant with the general working of the plant where processing of the Monazite was being carried out for extraction of Rare Earths Chloride Thorium Hydrozide and Trisodium Phosphate. Being a trainee who is akin to the apprentice the 1st respondent was excluded from the term ‘employee’ as defined by Section 2(e) of the Gratuity Act and therefore the 1st respondent cannot claim gratuity for this training period of two years. With this averment the petitioner herein prayed for rejecting the application under Section 7(4) of the Gratuity Act for balance gratuity filed by the 1st respondent. The 1st respondent then tendered proof affidavit Ext.R1(a)) and has stated in his duly sworn testimony that as per the understanding between the management and the union the training was in paper only but the employment was that of permanent nature with all benefits equivalent to other employees. The 1st respondent also stated in the proof affidavit that he was posted in shift duties independently and in combination of other trainees employees as per the requirements in the plants. It was further stated in the affidavit W.P.(C) No.22520 that he was granted all benefits like shift allowance holiday wages free milk coupon medical reimbursement employer s contribution to the Provident Fund etc. whichever were granted to other permanent employees of the employer. As per the version of the 1st respondent there was no change in the nature of employment before or after 16.07.1993 and he continued to be in the same shift allocation in the plant until he was redeployed to the security section in the year 2004. There was an intention on the part of his employer not to impart training in any specified trade and the 1st respondent was not intended to receive any occupational training from the employer during the so called two years training period. As against this version of the 1st respondent before the Controlling Authority the petitioner herein placed on record of the Controlling Authority the duly sworn testimony of one Sri.G.Balasubramanian Deputy General Manager by way of proof affidavitNo.22520 for consolidated stipend. The statutory contribution towards Provident Fund was being made by the employer as trainees were included in the definition of employee as per the provisions of the Employees’ Provident Funds and Miscellaneous Provisions Act 1952. So far as other facilities are concerned the deponent stated that those were extended as a good gesture and on humanitarian grounds. It was denied that the 1st respondent was paid shift allowance holiday wages etc during the training period. The witness for the petitioner in his proof affidavit had further accepted the fact that the 1st respondent was kept in different sections in the plant so as to enable him to become conversant with the general working of the plant and stated that the 1st respondent joined services only on 16.07.1993 after completion of his training period from 16.07.1991 to 16.07.1993. Therefore according to the employer there is no basis to the claim for gratuity for two years training period e) After hearing the parties the Controlling Authority under the Gratuity Act vide order dated 13.06.2018was pleased to allow the gratuity application by directing the petitioner herein to pay the difference of gratuity amounting to W.P.(C) No.22520 Rs.41 459 to the 1st respondent. After going through the evidence adduced by the parties so also the documentary evidence placed on record the Controlling Authority has been pleased to give the following finding “On scrutiny of Ext.P2 it is observed that the Applicant was appointed as Trainee Helper and clause No.2 of the Ext.P2 speaks about placing him in the grade after successful completion of the training period and performance which indicates that this engagement was with an intention to regularize him against the sanctioned post. During the cross examination Opposite Party s witness has accepted that Ext.P2 is posting order against a permanent vacancy of helper. The Applicant along with nine others was appointed vide Ext.P3 and on scrutiny of this document it is seen that this was in continuation to the training period. Section 2(e) of the Payment of Gratuity Act 1972 defines an “employee” which excludes only apprentice. The Act says “employee means any person other than an apprentice)...”. The trainee comes under the scope of any person and therefore is an employee Further in the instant case although the Applicant has joined as trainee he was a regular employee at the time of superannuation. The argument of the Opposite Party that the Applicant cannot claim gratuity for the training period is not found justified. f) It is further held by the Controlling Authority that the opposite party has not produced any W.P.(C) No.22520 document to prove that the initial appointment of the applicant 1st respondent herein) was as apprentice under the Apprentices Act 1961 and therefore he is entitled to get gratuity for the entire period of service including the training period of two years. The Controlling Authority was pleased to hold that the 1st respondent herein is an employee and the stipend earned by him is an emolument amounting to wages. Feeling aggrieved by the order of the Controlling Authority the petitioner herein preferred an appeal under Section 7(7) of the Gratuity Act and the Appellate Authority vide impugned order dated 15.10.2019was pleased to dismiss that appeal by confirming the order passed by the Controlling Authority. The Appellate Authority relying on the judgment of the Hon’ble Supreme Court in the matter of Employees State Insurance Corporation and another vs Tata Engineering & Co. Locomotive Co. Ltd and another AIR 1976 SC 66) has held that apprentice who are undergoing apprenticeship training as trade apprentice with specific contract involving Director under the Apprentices Act are not entitled for gratuity under the Gratuity Act. It was further held that the 1st respondent herein is not a Trade Apprentice W.P.(C) No.22520 Trainee and therefore there is no exemption to the employer from the liability under the Gratuity Act so far as the 1st respondent is concerned. The Appellate Authority further held that during the training period the 1st respondent was assigned to various sections and was doing shift duty like other regular employees. The employer had not maintained any separate training Department and the employee was not assigned to any Training Manager. 3. Heard the learned Senior Counsel appearing for the petitioner employer at sufficient length of time. He argued that the order of the Controlling Authority is without any finding about the issue involved and the 1st respondent has not pleaded and proved that he was not an apprentice trainee. It is further argued that the trainee or learner is in fact an apprentice and therefore not an employee as defined by Section 2(e) of the Gratuity Act. The 1st respondent is therefore not an employee nor he was employed on wages so far as his training period ranging from 16.07.1991 to 15.07.1993 is concerned Therefore according to the submission of the learned Senior Counsel the 1st respondent is not entitled for gratuity for this period. There is no finding that this period of training was a W.P.(C) No.22520 camouflage for avoiding payment of gratuity. To buttress this contention learned Senior Counsel relied on the following Regional Provident Fund Commissioner vs Lord Krishna Bank Ltd2 SCC 381 The Employees State Insurance Corporation and Another vs. The Tata Engineering & Co Locomotive Co. Ltd & anotherand Appellate Authority under Payment of Gratuity Act 1972 Bangalore & Others.(2006 LLR 1029 4. As against this learned counsel appearing for the 1st respondent strenuously urged that the order at Ext.P3 shows that the post of Helper was available with the employer and the 1st respondent was appointed in the said post though the order at Ext.P3 is stating that he was appointed as a Trainee Helper By taking me through the provisions of Section 2(aa) of the Apprentices Act 1961 learned counsel for the 1st respondent argued that there is no contract of apprenticeship as per the W.P.(C) No.22520 provisions of this Act and therefore the 1st respondent cannot be treated as apprentice. He cannot be excluded from the beneficial provisions of the Gratuity Act for the so called training period. The employee is therefore entitled for the gratuity during this period as the Gratuity Act is a welfare legislation Learned counsel for the 1st respondent relied on the following Chairman Cum Managing Director Orissa Mining Corporation Ltd vs. Controlling Authority Payment of Gratuity Act and Others of the Gratuity Act defines the term employee and any person who is employed for wages other than an apprentice is covered by the said definition provided the establishment in which such person is working is covered by the provisions of the said Act W.P.(C) No.22520 Section 2(e) of the Act reads thus “employee” means any person who is employed for wages whether the terms of such employment are express or implied in any kind of work manual or otherwise in or in connection with the work of a factory mine oil field plantation port railway company shop or other establishment to which this Act applies but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity” 6. The employee on termination of his employment from the specified establishment becomes entitled for payment of gratuity from his employer provided he has rendered continuous service of not less than five years. The gratuity is payable on superannuation or retirement as well as on resignation of the employee. It is also payable on death or disablement of the employee due to accident or disease. Case of the petitioner herein employer is to the effect that the 1st respondent employee is not entitled for payment of gratuity for the initial period of two years when he was appointed as a trainee which is equivalent to his appointment as apprentice. W.P.(C) No.22520 7. The finding of fact has been recorded by both the authorities below to the effect that the 1st respondent was not an apprentice even though his engagement from 16.07.1991 to 15.07.1993 under order dated 28.06.1991 was shown as Trainee Helper. The Controlling Authority after considering the materials placed on record including the evidence adduced by the parties concluded that a trainee is different from an apprentice and the 1st respondent herein was an employee and stipend earned by him during the training period of 16.07.1991 to 15.07.1993 was nothing but wages. The Appellate Authority confirmed this finding and at the cost of repetition it needs to be put on record that the Appellate Authority after going through the evidence recorded a finding of fact that the 1st respondent was not an apprentice as during training period he was assigned to various sections and was doing shift work like other regular employees. The fact that the employer had not maintained any separate training department and the 1st respondent was not assigned to any Training Manager weighed in favour of the employee and that is how the Appellate Authority dismissed the appeal by confirming the finding of fact recorded by the Controlling W.P.(C) No.22520 Authority. The scope of jurisdiction of this Court while disturbing the finding of fact is very limited. This Court cannot interfere in any finding of fact unless and until the same is totally perverse. The evidence cannot be reviewed re appreciated or re weighed in the writ jurisdiction by this Court for substituting its own decision. It can only be done when it is pointed out that the decision of the subordinate Tribunal is based on no evidence. The decision of the Tribunal can be interfered only when the same is based on some inadmissible evidence or when the Tribunal excludes some admissible evidence for arriving at a conclusion. Similarly the decision of the Tribunal can be interfered with when the same suffers from grave error of law. Learned counsel for the 1st respondent rightly relied on the judgment of the Hon ble Apex Court in the matter of Essen Deinki on this proposition regarding jurisdiction of this Court in dealing with the decision of the Appellate Authority under the Gratuity Act. 8. Let us therefore examine whether the finding of the authorities below is based on legally admissible evidence or whether the same is perverse. The evidence adduced by the W.P.(C) No.22520 1st respondent employee is clear and categorically stating that no training was imparted to him during the so called training period in any specified trade nor there was such intention on the part of the employer while engaging him as Helper Trainee The employee has stated in his affidavit that he was posted in shift duties and that too independently with combination of other trainees employees as per the requirements of the plant The employee further stated in his evidence adduced on affidavit before the Controlling Authority that there was no change in the nature of his employment after completion of the training period i.e after 16.07.1993. His evidence shows that before completion of training and after completion of training his nature of work was same and he continued to work in same shift allocation. Evidence adduced on affidavit by the opposite party is conspicuously silent on the aspect as to how the employee was being trained during his training period as per the order at Ext.P3. Who was imparting training to the employee is not stated in the evidence on affidavit by the employer. The employer had admitted in the proof affidavit that the employee was deputed in different sections of the plant during the training period. But the employer has W.P.(C) No.22520 chosen to keep silence on the issue as to how he was being imparted training in those sections. This implies that even during the so called training period from 16.07.1991 to 15.07.1993 the 1st respondent employee was in fact doing regular work of the employer. It was attempted to demonstrate that the 1st respondent employee has failed to plead the fact that the nomenclature of the post on which he was first appointed by the employer is wrong or erroneous This submission is not carrying any weight because the gratuity application at Ext.P1 filed by the 1st respondent categorically mentions the fact that he was in employment of the petitioner herein from 16.07.1991 to 30.04.2015 meaning thereby that the 1st respondent has categorically pleaded that he was a regular employee and not a trainee Similar is his proof affidavit. These facts placed on record coupled with the silence on the part of the employer regarding the mode and manner of imparting training if any to the 1st respondent during the initial period of his two years employment does not allow him to hold that the finding of fact arrived at by the Controlling Authority and affirmed by the Appellate Authority that the 1st respondent was not an W.P.(C) No.22520 apprentice for the period from 16.07.1991 to 15.07.1993 is without any evidence and warrants interference. Thus I hold that the authorities below have rightly concluded that the 1st respondent was not an apprentice during the period of his initial engagement with the petitioner from 16.07.1991 9. In the matter of Regional Provident Fund Commissioner vs. Lord Krishna Bank Ltd. the Hon ble Division Bench of this Court was dealing with a petition relating to the Employees Provident Funds and Miscellaneous Provisions Act 1952. Paragraphs 5 and 6 of that judgment “5. An apprentice is engaged mainly for learning work. It may or may not be that in the process he works in connection with the work of the person who had engaged him as an apprentice. He may contribute his labour during training towards the work of the person who engages him for training. This is incidental. The main or predominant objective is that he should learn his work during the period of training. 6. Learned counsel refers to the case of a trainee who may not be an apprentice. According to him where training is not the main objective but that is only incidental it would be employment as for instance an Articled Clerk in W.P.(C) No.22520 an Auditor s firm. We do not want to pronounce on whether that case would be a case of training or apprenticeship. But we can certainly envisage a case where though apparently a person is styled as a trainee or apparently he is under training the predominant object of his training is that he should contribute to the work for which he is engaged. In other words there may be instances where despite the fact that a person is undergoing training he also is an employee. But such a case will have to be pleaded and more than that 10. It is thus clear that the main or predominant object of training is that the person should learn his work during the period of training when such person is engaged as apprentice The Hon ble Division Bench has also noted that there can be instances that despite a person undergoing training he can be an employee. The case in hand is such a case where in the guise of appointing him as a Trainee Helper the 1st respondent was in fact employed to do all work like regular employee of the petitioner in the so called period of training during which he was not imparted any training by the employer. The 1st respondent was in fact supplementing the work of regular staff as seen from his evidence and therefore was an employee even during his so called training period. In the W.P.(C) No.22520 matter of Tata Engineering & Co. Locomotive Co. Ltd supra) the Hon ble Supreme Court was dealing with the matter under the Employees State Insurance Act 1948 When that matter was being decided the definition of the term employee found in Section 2(9) of the said Act was not including any person engaged as apprentice as an employee under the said Act. However with effect from 20.10.1989 that definition has undergone change and any person engaged as an apprentice not being an apprentice engaged under the Apprentices Act 1961 becomes an employee. The said judgment is explaining the term apprentice as a person who is not an employee but mere trainee for a particular period and therefore the employer is not bound to employ him after the training period is over. Thus this judgment is not relevant for the case in hand 11. In the matter of Central Arecanut & Coca Marketing and Processing Coop Ltd the Hon ble Supreme Court was dealing with the matter under the Employees Provident Funds and Miscellaneous Provisions Act 1952 and had considered the definition of the term employee W.P.(C) No.22520 given under Section 2(f) of the Act. On fact it was held that the trainees were apprentice under the model standing order and therefore not employees. The definition of the term employee under the said Act includes apprentice but excludes apprentice engaged under the Apprentices Act 1961. The last judgment relied by the petitioner is in the matter of General Manager Yellamma Cotton Woollen & Silk Millsof the Industrial Disputes Act 1947 but in the absance of any statutory provision under the Payment of Gratuity Act which could be pressed into service a trainee cannot be held entitled to gratuity. It is not possible to subcribe to the view in S. Arunachalam s case. On the other hand the several decided cases under the Apprentices Act 1961 where apprentices are held to be "trainees" and hence not entitled to wages like regular employees would render the tenor of Section 2(e) of the Payment of Gratuity Act entirely un favourable to the respondents”. W.P.(C) No.22520 It was observed by the said court that in the absence of any statutory provision under the Gratuity Act which could be pressed into service a trainee cannot be entitled to gratuity. 12. I am unable to concur with the views expressed by the learned Single Judge of the Karnataka High Court for the reason that a trainee is not excluded from the definition of the term employee under the Gratuity Act. What is excluded is an apprentice . On this aspect the judgment of the Hon ble Madras High Court in the matter of Arunachalam Sis very clear. Paragraphs 6 and 7 of the said judgment reads 6. The controversy arose when the petitioner demanded the payment of gratuity even for the period from 2.6.84 to 7.6.86 the period when the petitioner was appointed as trainee. The question to be resolved is whether the petitioner could be considered as an employee under Section 2(e) of "the Act" for the purpose of payment of gratuity for the period from 2.6.84 to 7.6.86. Section 2(e) of "the Act" reads as under Employee" means any person employed on wages in any establishment factory mine oilfield plantation port railways company or shop to do any skilled semi skilled or unskilled W.P.(C) No.22520 manual supervisory technical or clerical work whether the terms of such employment are express or implied and whether or not such person is employed in a managerial or administrative capacity but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity A plain reading of the said Act shows that it excludes an apprentice from the application of the provisions of "the Act". In order to find out whether the word "apprentice includes the trainee also and in the absence of any definition of an apprentice under "the Act" this Court has to consider the same with reference to the dictionary meaning as well as the interpretation of the said Section with reference to the object of "the Act" coupled with the definition of apprentice or training in any other statute. In the Concise Oxford Dictionary the word apprentice" means "a person learning a trade from a skilled employer". In Black s Law Dictionary the word apprentice" means "a person bound by an indenture to work for an employer for a specific period to learn a craft trade or profession and a learner in any field of employment or business." As per P. Ramanatha Aiyar s Law of Lexicons the word "apprentice" means "a learner is one who is taken to learn a trade a person under a contract of apprenticeship to a master to learn from him his trade or business and to serve him during his time of the W.P.(C) No.22520 Correspondingly as per Concise Oxford Dictionary the word trainee" means "a person undergoing training for a particular job or profession". As per P. Ramanatha Aiyars Law of Lexicons the word "training" means "systematic instruction". From the above expression from various dictionaries it is seen that both the words "apprentice" and trainee" are not either similar identical or same as both the words have been distinctly defined with reference to the nature of job. As referred to in Black s Law Dictionary apprentice" means "a person must be either a learner in any field of employment or business or a person was bound by indenture to work for an employer for specific period to learn a craft trade or profession". With the above definitions on the background it is to be now considered as to the nature of the duties that were performed by the petitioner. According to the petitioner the petitioner was treated as a full member of the department and he was allotted duties equivalent to other staff of personnel department and he was also asked to do the following i) Correspondence follow up and submission for orders in the matters relating to training absorption and confirmation ii) Tamil notices iii) Reimbursement of conveyance expenses to officers fuel allowanceProvision of furniture v) Issuance of transfer orders W.P.(C) No.22520 vi) National and festival holidays vii) Salary advance court matters and insurance claims viii) Any other work that may be assigned by A.M.of "the Act". On the above facts it is seen that the petitioner was appointed not for learning a trade from a skilled employer was appointed as a trainee not to learn any designated trade alone and therefore cannot be considered as apprentice Further while the provisions of any Act is interpreted the Court has to read the provisions literally in its ordinary natural and grammatical meaning as used by the legislature. The Supreme Court in the judgment reported in Jugalkishore Saraf v. M s. Raw Cotton Co. Ltd. 1955 SC 376 has held that when any of the provisions of Statute is interpreted the provision has to be read in its ordinary natural and grammatical meaning. I had an occasion to consider the said judgment of the Supreme Court as to the interpretation of the Statute in W.P.No. 17927 of 1994 W.P.(C) No.22520 dated 14.8.2001. After considering the said judgment I had also taken the view that while interpreting a statute the object of the Act also has to be kept in mind. The object of Payment of Gratuity Act is to provide a scheme for payment of gratuity to the employees engaged in factory mine oilfield port railway company or shop or other establishments. The Act is mainly intended to the provisions for payment of gratuity. As per the definition of Section 2(e) of "the Act" all employees arc entitled to the payment of gratuity except an apprentice which would necessarily mean that the Legislature intended to exclude the applicability of the provisions of the Act only in case of apprentice. They have done it so in clear terms by excluding only an apprentice from the applicability of the provisions of the said Act. As laid down by the Supreme Court in the judgment referred to supra if the literal meaning of apprenticeship is considered along with the meanings given in the various dictionaries it would be clear that the petitioner who has been appointed for a definite period and who has been assigned various duties and not only to a particular designated trade cannot be called as apprentice In support of the above conclusion the judgment of the Orissa High Court reported in Orissa Mining Corporation Ltd rep. by Chairman cum Managing Director v. Controlling Authority under Payment of Gratuity Act cum Assistant Labour Commissioner and others 1994LLN 1130 may be also referred to wherein the Orissa High Court while considering the applicability of the provisions of Payment of Gratuity Act 1972 held that a trainee employee under a W.P.(C) No.22520 contract of employment is not an apprentice under the Apprentices Act unless he is undergoing apprentice training in designated trade in pursuance to a contract of apprentice. The Orissa High Court had in fact considered the definition of "apprentice" under the provisions of Apprentices Act 1961 wherein the apprentice has been defined in Section 2(a) of the Apprentices Act 1961 as Apprentice" means a person who is undergoing apprenticeship training in a designated trade in pursuance of a contract of apprenticeship 13. Trainees give various duties during the course of the so called training and who is not deputed in a particular designated trade cannot be called as an apprentice or learner The nomenclature of the post is not of much consequence while interpreting the beneficial provisions of the welfare statute. The Gratuity Act is undoubtedly a welfare statute which only bars an apprentice from the benefit of payment of gratuity during such training period. However designating an employee as trainee extracting regular work from him and then denying him the benefit of Gratuity Act under the pretext of such employee being a trainee would certainly defeat the object of the welfare statute. The Hon ble Orissa High Court W.P.(C) No.22520 has also considered similar case in the matter of Chairman cum Managing Director Orissa Mining Corpn. LtdNo.22520 PETITIONER S EXHIBITS TRUE COPY OF THE APPLICATION FOR GRATUITY AND ITS ANNEXURE FILED BY THE 1ST RESPONDENT DATED 21.5.2015 BEFORE THE 2ND TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 15.7.2015 TRUE COPY OF THE OFFER LETTER DATED 28.6.1991 TO THE 1ST RESPONDENT FROM THE TRUE COPY OF THE ORDER DATED 29.7.1993 ISSUED TO THE 1ST RESPONDENT TRUE COPY OF THE ORDER NO.313 DATED 10.6.2004 ISSUED TO THE 1ST RESPONDENT BY TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 13.6.2018 IN APPLICATION TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 7.9.2018 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT IN APPLICATION TRUE COPY OF THE ORDER DATED 15.10.2019 PASSED BY THE 3RD RESPONDENT IN GA TRUE COPY OF THE JUDGMENT PASSED BY THE HON BLE HIGH COURT DATED 14.8.2014 IN WA RESPONDENT S EXHIBITS EXHIBIT R1(a) in I.A 20 A TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE PETITIONER COMPANY TO MR. AMEENSHA K.B DATED 30.06.2015 W.P.(C) No.22520 I.A No.20 A TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE APPLICANT IN G.A No.48(12) 2015 D1 A TRUE COPY OF THE OFFICE ORDER DTD.16.7.1991 THE LETTER OF APPOINTMENT IS MARKED IN EVIDENCE AS EXT.P1 BEFORE THE AUTHORITY FROM THE SIDE OF THE APPLICANT IN G.A. DTD.16.7.1991 A TRUE COPY OF THE MEMO DTD.28.6.1991 MARKED IN EVIDENCE AS EXT.P2 FROM THE SIDE OF THE APPLICANT IN G.A A TRUE COPY OF THE LETTER DTD.29.7.1993 ISSUED BY IREL WHICH IS MARKED IN EVIDENCE AS EXT.P3 FROM THE SIDE OF THE APPLICANT IN G.A A TRUE COPY OF THE REQUEST LETTER SUBMITTED BY THE APPLICANT BEFORE THE IREL MARKED AS EXT.P4 FROM THE SIDE OF THE APPLICANT IN G.A A TRUE COPY OF THE LETTER DTD.28.6.1991 MARKED IN EVIDENCE AS EXT.P5 FROM THE SIDE OF THE APPLICANT IN G.A A TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE MANAGEMENT A TRUE COPY OF THE LETTER DTD.22.7.1991 ISSUED BY THE GENERAL MANAGER IREL WHICH IS MARKED IN EVIDENCE AS EXHIBIT O2 FROM THE SIDE OF THE MANAGEMENT A TRUE COPY OF THE OFFICE ORDER No.W 552 93 DTD.13.7.1993 ISSUED BY THE SENIOR GENERAL MANAGER MARKED IN EVIDENCE AS EXHIBIT O3 FROM THE SIDE OF THE A TRUE COPY OF THE BANK STATEMENT VOUCHER DTD.28.4.2015 WHICH IS MARKED IN EVIDENCE AS EXHIBIT O4 FROM THE SIDE OF THE P.S to Judge

Sentence passed under Section 16 of the POCSO Act reduced to period already undergone, appellant set free: Patna High Court

Since charge proved against appellant is of an abettor, this Court is of the view that if sentence is reduced to period already undergone that would meet the ends of justice. This was said in the case of Nagina Choudhary vs The State Of Bihar [CRIMINAL APPEAL (SJ) No.2060 of 2017] by Mr. Justice Birendra Kumar in the High Court of Judicature at Patna  The facts of the case date back to 13.06.2017 and 15.06.2017 when the judgment of conviction and order of sentence was passed by the learned Special Judge where the appellants were sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.25000/- for offence under Section 4 of the POCSO Act. Three months further imprisonment was ordered in default of payment of fine. The appellants were acquitted of the charge under Section 376 (D) of the Indian Penal Code. Assailing the judgment of the Trial Court, an appeal was filed. The appellant contends that in the statement under Section 164 Cr.P.C., the victim stated that both the appellants had ravished her, however before the Court as PW-3, she stated that only appellant Lalu (since deceased) had ravished her. This one is material contradiction. Since the victim girl was not confronted with her earlier statement under Section 164 Cr.P.C., the aforesaid argument has no leg to stand and the proved charge against the appellant Nagina Chaudhary is that he was abettor of the offence, as per definition of abetment under Section 16 of the POCSO Act. It was further contended that the informant has stated in the F.I.R. that the neighbour informed about kidnapping of the victim girl, but that neighbour has not been produced as prosecution witness. The occurrence allegedly took place on 20.12.2014 and the F.I.R. was lodged on 27.12.2014, however there is no explanation for such delayed information to the police. Regarding the delay in filing the FIR the Court opined that “The aforesaid minor contradiction is possible when the F.I.R. was lodged by an illiterate lady and the same was written by some other person. Aforesaid infirmity would be of no consequence when the victim is consistent in the matter of place of occurrence, manner of occurrence and identity of the perpetrators of the crime. It is highly unbelievable and unacceptable that the prosecutrix would make a self-humiliating statement for the alleged dispute between the parties which is itself of shaky nature and cannot take place of strong motive for making false allegation”. Furthermore, the Court said that “The prosecutrix is consistent that appellant Nagina Chaudhary and Lalu, both had lifted her from the house and both were present at the time of occurrence of rape, hence appellant Nagina Chaudhary cannot be absolved of his criminal liability as an abettor”. After analyzing the facts of the case and the settled position of law in the case, the Court said that “Since charge proved against appellant is of an abettor, this Court is of the view that if sentence is reduced to period already undergone that would meet the ends of justice”. Hence, the appellant was set free.

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEALNo.20617 Arising Out of PS. Case No. 337 Year 2014 Thana DIGHA District Patna Nagina Choudhary son of Late Keshwar Chaudhary Resident of Mohalla Ramjeechak Digha P.S. Digha District Patna The State of Bihar ... Appellant s ... Respondent s CRIMINAL APPEALNo. 25217 Arising Out of PS. Case No. 337 Year 2014 Thana DIGHA District Patna Lallu Rai Son of late Sidani Rai Resident of Mohalla Ramjichak P.O Bataganj P.S. Digha District Patna The State of Bihar ... Appellant s ... Respondent s In CRIMINAL APPEALNo. 20617 For the Appellant s Mr.Alok Advocate. For the Respondent s Smt. Abha Singh APP. In CRIMINAL APPEALNo. 25217 For the Appellant s Mr.Jitendra Kumar Rai Advocate. For the Respondent s Mr.Zeyaul Hoda APP CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR Date : 26 04 2021 Both the appellants aforesaid faced trial in connection with Digha P.S. Case No. 3314 corresponding Patna High Court CR. APPNo.20617 dt.26 04 2021 to POCSO Case No. 714 before learned Special Judge Patna and both were sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.25000 for offence under Section 4 of the POCSO Act. Three months further imprisonment was ordered in default of payment of fine The appellants were acquitted of the charge under Section 376 D) of the Indian Penal Code. The Judgment of conviction dated 13.06.2017 and order of sentence dated 15.06.2017 are under challenge in these appeals 2. When the matter was taken up for final hearing on 16.04.2020 Mr. Jitendra Kumar Rai learned counsel for appellant Lallu Rai informed the Court that Lallu Rai has already died while serving out the sentence. His legal heirs are not ready to prosecute the matter Mr. Zeyaul Hoda learned APP for the State concedes that in the aforesaid circumstance the appeal may be dismissed as infructuous. Accordingly Cr. Appeal No. 2521 of 2017 stands dismissed as infructuous. 3. Prosecution case as disclosed in the written report dated 27.12.2014 of Phul Kumari Deviis that on 20.12.2014 a Saturday at 5 AM both the appellants lifted to the Patna High Court CR. APPNo.20617 dt.26 04 2021 minor daughter of the informant from the house and took to the brick kiln near Ganga Bank and both ravished her. At the time of occurrence the informant was at her vegetable shop near Digha ghat. In the evening at 3 PM neighbour informed about the occurrence. Then the informant rushed to her house and found her daughter in semi unconscious condition. There was injury and bleeding from the private parts of the victim. On the basis of the statement aforesaid Digha P.S. Case No. 3314 was registered under Section 376(2)(f) 34 IPC as well as 4 and 6 of the POCSO Act 4. After investigation of the case the police submitted chargesheet as aforesaid however charges were framed during trial under Section 376IPC and 4 of the 5. The prosecution examined altogether six witnesses. PW 1 Yogendra Rai deposed that he knows nothing about the occurrence. PW 2 Subodh Kumar Pal was declared hostile by the prosecution. PW 3 is the victim girl. PW 4 Phul Kumari Devi is mother of the victim and informant of the case PW 5 Kanchan Sinha is the Investigating Officer of the case PW 6 Dr. Pushpa Prakash had clinically examined the victim According to PW 3 she was at her house at the Patna High Court CR. APPNo.20617 dt.26 04 2021 time of occurrence. Both Lalu and Nagina Chaudhary came and lifted her and took her near a bridge and Lalu ravished her. Both the appellants allegedly threatened her not to disclose to anyone otherwise they would kill her and both fled away. Thereafter the victim came to her house. In the cross examination there is nothing to doubt the trustworthiness of her testimony. She has denied any dispute between the two families leading to false PW 4 has supported the prosecution case as hearsay witness from the victim girland has denied that any dispute with the accused was reason for false implication. PW 5 the Investigating Officer has supported the investigation done by her PW 6 Dr. Pushpa Prakash examined the prosecutrix on 17.01.2015. No spermatozoa was found on examination of the vaginal swab. However the doctor noticed a case of vaginal penetration. Hymen was ruptured. There was vaginal swelling and injury over vulva redness and bleeding. The age of the victim was less than 14 years The defence witnesses DW 1 Suchit Kumar and DW 2 Bholi Rai stated that due to dispute between the informant and the accused persons for non refund of the loan Patna High Court CR. APPNo.20617 dt.26 04 2021 taken the false case has been lodged. However PW 2 is specific that money was not given to the informant by the accused in his presence nor PW 1 is specific that money was paid in his 6. Mr. Alok learned counsel for the appellant contends that in the statement under Section 164 Cr.P.C. the victim stated that both the appellants had ravished her however before the Court as PW 3 she stated that only appellant Lalu since deceased) had ravished her. This one is material contradiction. Since the victim girl was not confronted with her earlier statement under Section 164 Cr.P.C. the aforesaid argument has no leg to stand and the proved charge against the appellant Nagina Chaudhary is that he was abettor of the offence as per definition of abetment under Section 16 of the POCSO Act which is being reproduced below: “16. Abetment of an offence.A person abets an offence who First. Instigates any person to do that offence or Secondly. Engages with one or more other person or persons in any conspiracy for the doing of that offence if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing Patna High Court CR. APPNo.20617 dt.26 04 2021 of that offence or Thirdly. Intentionally aids by any act or illegal omission the doing of that Explanation I. A person who by wilful misrepresentation or by wilful concealment of a material fact which he is bound to disclose voluntarily causes or procures or attempts to cause or procure a thing to be done is said to instigate the doing of that Explanation II. Whoever either prior to or at the time of commission of an act does anything in order to facilitate the commission of that act and thereby facilitates the commission thereof is said to aid the doing of that Explanation III. Whoever employs harbours receives or transports a child by means of threat or use of force or other forms of coercion abduction fraud deception abuse of power or of a position vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of any offence under this Act is said to aid the doing of that act.” The prosecutrix is consistent that appellant Nagina Chaudhary and Lalu both had lifted her from the house and both were present at the time of occurrence of rape hence appellant Nagina Chaudhary cannot be absolved of his criminal liability as an abettor. Patna High Court CR. APPNo.20617 dt.26 04 2021 7. Learned counsel for the appellant next contends that the informant has stated in the F.I.R. that the neighbour informed about kidnapping of the victim girl but that neighbour has not been produced as prosecution witness. For non examination of the neighbour the testimony of the victim cannot be disbelieved. Especially when her testimony is corroborated by the medical evidence 8. Learned counsel for the appellant contends that the occurrence allegedly took place on 20.12.2014 and the F.I.R was lodged on 27.12.2014 however there is no explanation for such delayed information to the police. Moreover PW 4 stated that on the very next day of the occurrence she had lodged the The aforesaid minor contradiction is possible when the F.I.R. was lodged by an illiterate lady and the same was written by some other person. Aforesaid infirmity would be of no consequence when the victim is consistent in the matter of place of occurrence manner of occurrence and identity of the perpetrators of the crime. It is highly unbelievable and unacceptable that the prosecutrix would make a self humiliating statement for the alleged dispute between the parties which is itself of shaky nature and cannot take place of strong motive for Patna High Court CR. APPNo.20617 dt.26 04 2021 making false allegation. 9. Learned counsel for the appellant has placed reliance on the Division Bench Judgment of Uttrakhand High Court in Puran Singh and Anr. Vs. State of Uttrakhand disposed of on 17.05.2017 Puran Singh’s case was of rape and murder. There was material contradiction in the testimony of the eye witnesses The victim was not medically examined and there was no evidence that who had strangulated the victim to death. The present case is distinguishable as the prosecutrix has come forward to fully support the prosecution case and her testimony is corroborated by the medical evidence She has withstand the test of cross examination. Hence in my view there does not appear to be any reason to interfere with the judgment of conviction 10. The appellant Nagina Chaudhary is in custody since 28.12.2014 and has almost completed more than six years of the sentence awarded Since charge proved against Nagina Chaudhary is of an abettor this Court is of the view that if sentence is reduced to period already undergone that would meet the ends of justice Patna High Court CR. APPNo.20617 dt.26 04 2021 Accordingly sentence is reduced to period already undergone and with the aforesaid modification in sentence the Cr. AppealNo. 20617 stands dismissed Let appellant Nagina Chaudhary be set free. Birendra Kumar J

There is a need for continuous monitoring of the implementation of the schemes in favour of the affected children: Supreme Court

The Court permitted the learned Amicus Curiae to have a dialogue with Nodal Officers to be appointed by the State Governments to ascertain the information relating to the implementation of the schemes announced by the Union of India and the State Governments/Union Territories favouring orphans and Children in Need of Care and Protection (CNCPs). A division bench of JUSTICE L. NAGESWARA RAO and JUSTICE ANIRUDDHA BOSE; while adjudicating the matter in Re Supreme Court case, SMW (C) NO.4 OF 2020; dealt with providing protection to orphans. In a scheme that dealt with providing orphans and children in need of care and protection, a certain amount of relief, the learned ASG, Ms. Aishwarya Bhati stated that the scheme was announced by the Prime Minister of India on 29.05.2021. On behalf of the Union of India, an Action Taken Report has been filed. The learned ASG sought further time to furnish the modalities for the implementation of the scheme announced by the Prime Minister of India on 29.05.2021. The Union of India is granted four weeks’ time from today to file an affidavit setting out the details of the scheme dated 29.05.2021 and the manner of its implementation. Mr. Gaurav Agrawal, learned Amicus Curiae submitted a note in which he has referred to six stages for alleviation of the forlorn children who have lost both parents or a single parent. He suggested that identification of children who have become orphans or have lost one of their parents during this pandemic does not brook any delay. Immediate relief should follow the identification of such children without any delay. Thereafter, the Child Welfare Committees (CWC) should conduct inquiries and pass suitable orders expeditiously which have to be implemented without any delay. Monitoring of children by CWC and the District Child Protection Officer (DCPO) should be conducted on a periodical basis. Suitable steps should be taken by CWC’s to ensure that the benefits announced by the Central Government/State Governments should reach the children. The learned Amicus Curiae has brought to our notice that according to the response on behalf of the District Child Protection Officers (DCPO) and other officials from the States of Telangana, Tamil Nadu and Jharkhand almost all the children who have become orphans or lost one parent need financial assistance. The learned Amicus Curiae has suggested that the DCPO should meet the child and the guardian immediately after receipt of information and ascertain the willingness of the guardian to take care of the child apart from making an assessment of the immediate needs of the child and the financial condition of the guardian.

LL 2021 SC 268 ITEM NO.1 Court 7SECTION PIL W S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS SMWNO.4 OF 2020 IN RE CONTAGION OF COVID 19 VIRUS IN CHILDREN PROTECTION HOMES MR GAURAV AGRAWAL ADVOCATEshould conduct inquiries and pass suitable orders expeditiously which have to be implemented without any delay. Monitoring of children by CWC and the District Child Protection Officer DCPO) should be conducted on a periodical basis Suitable steps should be taken by CWC’s to ensure that the benefits announced by the Central Government State Governments should reach the children. LL 2021 SC 268 IDENTIFICATION OF CHILDREN : The information provided by the State Governments Union Territories on the ‘Bal Swaraj’ Portal upto 05.06.2021 shows that there are 30 071 children who have become orphans or have lost one parent or abandoned. The break up given in the affidavit filed by the National Commission for Protection of Child Rights is that there are 3 621 orphans 26 176 children who have lost one parent and 274 children who have been abandoned. The State wise data that is given in the affidavit filed by NCPCR shows that NCT of Delhi and the State of West Bengal have not uploaded the correct information. Mr. Chirag M. Shroff learned counsel appearing for the NCT of Delhi submitted that there was some difficulty in collecting data to be uploaded on the NCPCR portal. He submitted that a decision was taken recently to depute government officers at the grassroot level to take immediate steps to gather the information which will be updated on the NCPCR portal Further the basic needs of children who become orphans or have lost one parent shall be attended to apart from steps being taken as provided in the Juvenile Justice Act 2015 The learned counsel for the State of West Bengal submitted that the data could not be uploaded LL 2021 SC 268 in view of some confusion about the six stages that are mentioned in the web portal of NCPCR. It was made clear in the order dated 01.06.2021 that it is not necessary for the states to provide information relating to all the six stages at present and that it would be sufficient if the data pertaining to the first two stages are uploaded on the portal. The State of West Bengal is directed to take steps to identify the children who have become orphans or lost one parent after March 2020 immediately and upload the data on the NCPCR website. The learned Amicus Curiae submitted that the figures given by the State of Tamil Nadu does not appear to be correct as in several districts not even one child is produced before the CWC. The only information provided by the State of Tamil Nadu is in respect of those children who have lost both parents or single parent due to Covid 19. The direction given by this Court is to upload information on the website of the NCPCR pertaining to all children who have become orphans or lost one of their parents after March 2020 either due to Covid 19 or otherwise. Mr. Joseph Aristotle learned counsel appearing for the State of Tamil Nadu stated that suitable directions shall be given to the concerned authorities to take steps for identification of the affected children by collecting information from LL 2021 SC 268 health officials Panchayati Raj Institutions police authorities and Non Governmental Organisationsand other officials from the States of Telangana Tamil Nadu and Jharkhand almost all the children who have become orphans or lost one parent need financial assistance The learned Amicus Curiae has suggested that the DCPO should meet the child and the guardian immediately after receipt of information and ascertain the willingness of the guardian to take care of the child apart from making an assessment of the immediate needs of the child and the financial condition of the guardian. He emphasised the need for the DCPO to ensure that adequate provision is made for ration food medicines and clothing etc. for the child. He further submitted an amount of Rs.2 000 per month should be released in favour of the child till CWC passes an order after due inquiry. The DCPO should provide his contact number and the name of the local LL 2021 SC 268 official who can be contacted by the guardian. There should be a follow up with the child at least once a month to ascertain his her well being. The learned Amicus Curiae stressed the need for the child being produced before the CWC in case DCPO is of the prima facie opinion that the guardian is not capable of taking care the child. Needless to say that the CWC shall pass appropriate orders at the earliest According to the Amicus Curiae the CWC should open a case file of each child and secure all relevant information pertaining to the affected child. The CWC should ensure that various benefits announced by the Central Government and the State Governments Union Territories reach the affected child. The financial benefit that was announced by Integrated Child Protection Scheme to the tune of Rs.2000 per month per child has to be provided immediately by the DCPOs. There should be continuous monitoring regarding the welfare of the child by the District Child Protection Units even after the financial order is passed by the CWC. This should be done periodically every three to six months. After the identification of the children who have become orphans or lost one parent prompt action has to be taken to provide the basic needs of the children. The DCPO should act swiftly to contact the LL 2021 SC 268 child on receipt of information about the loss of the parent parents of the child. The DCPUs shall ensure that adequate provision is made for the ration food medicines clothing etc. to the child. The State Governments have announced certain financial benefits to the affected children which have to be provided to them immediately. The DCPO should produce the child before CWC if he is not prima facie satisfied that the guardian is capable of taking care of the child. CWC is directed to take steps in accordance with the Juvenile Justice and the Rules framed thereunder to conduct an inquiry. During the pendency of the inquiry the CWC is directed to ensure that the basic needs of the child are taken care of EDUCATION OF THE CHILD The concern of the learned Amicus Curiae is that the affected children should not face a situation of discontinuance of their education. If the affected children are studying in Government schools they should be permitted to continue. In so far as the children who are studying in private schools the State Governments Union Territories should take steps and direct the continuance of the children in those schools at least for period of six months by which time some arrangement can be worked out. We accept LL 2021 SC 268 the suggestion made by the learned Amicus Curiae relating to the education of the affected children The State Government Union Territories should ensure that there is no break in the education of children who have become orphans or lost either one parent during the Pandemic. The other issues that have been raised by the learned Amicus Curiae relating to the protection of property rights of the children further education of the children including employment opportunities special care to be taken in respect of the girl child will be taken up on the next date of hearing Mr.K.M.Nataraj learned Additional Solicitor General appearing for the NCPCR submitted that the identification of affected children is a dynamic activity. The State Governments and the Union Territories should be asked to update the figures on the web portal of NCPCR promptly. He expressed his anguish about certain NGOs collecting funds in the names of the affected children. It has come to the notice of the NCPCR that the identity of the affected children is being disclosed in public announcements by certain unscrupulous agencies and individuals who are inviting interested persons to adopt the affected children. He submitted that it has been brought to the notice of the NCPCR that illegal adoptions contrary to the provisions of the Juvenile Justices LL 2021 SC 268 Act 2015are also resorted to which should be prevented. He suggested that the District Legal Service Authorities should be associated with the Government officials to ameliorate the condition of the affected children. Ms. Shobha Gupta learned counsel appearing in IA Nos.66075 and 660721 filed on behalf of the ‘We the Women of India’ stated that there are several advertisements in the public domain inviting people to adopt orphans. Such posts have been found on social media as well. She submitted that most of them are fake and in any event no adoption is permissible without involvement of Central Adoption Resource Authorityhealth officials Panchayati Raj Institutions police authorities NGOs etc The DCPU is directed to contact the affected child and his guardian immediately on receipt of information about the death of the parent parents Assessment shall be made about the suitability and willingness of the guardian to take care of the child. The DCPU should ensure that adequate provisions are made for ration food medicine clothing etc. for the affected child. Financial assistance to which the disconsolate child is entitled to under the prevailing schemes by the Central Government and the State Governments Union Territories should be provided without any delay. The DCPO should furnish his phone number and the name and phone number of the local official who can be contacted by the guardian and the child There should be a regular follow up by the concerned authorities with the child at least once LL 2021 SC 268 in a month If the DCPO is of the prima facie opinion that the guardian is not suitable to take care of the child he should produce the child before the CWC CWC should provide for the essential needs of the child during the pendency of the inquiry without fail. The inquiry should be completed expeditiously. CWC shall ensure that all financial benefits to which the child is entitled are provided without any delay. The State Governments Union Territories are directed to make provisions for continuance of education of the children both in Government as well as in private schools The State Governments Union Territories are directed to take action against those NGOs individuals who are indulging in illegal Wide publicity should be given to the provisions of the JJ Act 2015 and the prevailing schemes of the Union of India and the State Governments Union Territories which would benefit the affected DPCO shall take the assistance of government servants at the Gram Panchayat level to monitor LL 2021 SC 268 the welfare of the disconsolate children who are devastated by the catastrophe of losing their parent parents. All other issues shall be taken up on the next date of hearing List on 27.07.2021 In the meanwhile learned Amicus Curiae shall contact the nodal officers to be appointed by the States of Andhra Pradesh Odisha West Bengal Assam Uttarakhand NCT of Delhi Punjab Haryana Himachal Pradesh and UT of Jammu and Kashmir to obtain the information relating to the welfare of the children who are in a dolorous state due to loss of their parent parents and submit a report (B.PARVATHI) (ANAND PRAKASH COURT MASTER COURT MASTER COURT MASTER

Ignoring the requirement of public interest under Rule 67(1) Kerala Education Rules 1959, prejudicial to the intent and language of the provision: Kerala High Court

Under Rule 67(1) of the Kerala Education Rules 1959, ignorance of the Public Interest condition apart from the other three conditions for suspension of a teacher would not only be prejudicial but may amount to conferring unbridled, unguided, and absolute powers upon the manager to suspend a teacher. This judgment was passed in the case of The Manager, Zamorin’s Higher Secondary School Vs. The District Educational Officer And Anr.[Wa.1375/2020] by a Bench consisting of Hon’ble Justice Bechu Kurian Thomas and Hon’ble Justice S.V.Bhatti. In the present case under Rule 67(8) of the Kerala Education Rules 1959, the 1st respondent directed the appellant to reinstate a teacher, after canceling an order of suspension. The appellant challenged the said order in the writ petition, but the learned Single Judge dismissed the same. Against the same order, the present appeal is preferred. The appellant had placed the 3rd Respondent under suspension on 13.02.2020 due to the registration of a crime. The 1strespondent canceled the same by the order under the impugned writ petition. Without inquiry or factual situation, the 1st respondent observed the alleged assault was not proved and that the frequent initiation of disciplinary proceedings against the 3rd respondent without adhering to the Kerala Education Rules was also adversely affecting the smooth academic atmosphere of the school apart from creating headache to the department. On the above reasoning, the order suspending the 3rd respondent was canceled. The 3rd respondent is a High School Teacher and by order dated 27-1-2020, he was under suspension pending the disciplinary proceedings as per section 67(1)(a) of chapter XIVA of KER. an application to continue the suspension was made on 03-02-2020, but the same was rejected by the 1st respondent on 10-02-2020. Meanwhile, a crime was registered against the 3rd  respondent on the basis of a private complaint filed by a student, alleging offense under sections 323, 341 of the IPC and section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. On the information regarding the crime, the 3rd respondent was under suspension on 13.02.2020. Vide a letter on 14-02-2020, the appellant reported the suspension to the 1st respondent and also sought an extension for the period of such suspension. The said application was rejected. The Kerala High Court after hearing the contentions of all the parties to the case, observed Rules 67(1), (3), and (8) of Kerala Education Rules 1959 indicates that the right to place a teacher under suspension is that of the manager. To place a teacher under suspension, rule 67(1) stipulates that three conditions are to be satisfied: disciplinary proceedings are contemplated or pending, an investigation for a criminal offense against the delinquent is going on, and final orders are pending in disciplinary proceedings. Apart from the aforementioned three conditions, one additional condition shall be met, i.e., suspension of the teacher is necessary for the public interest. Public interest is necessary to suspend a teacher in all the three situations mentioned in Rule 67(1) of Chapter XIVA of KER. Under rule 67(8), one manager orders the suspension of the educational officers have to be reported on the same day, and on conduction preliminary investigation by him the suspension is justified, permission is granted to continue the order beyond 15 days. A detailed inquiry or investigation will be part of the disciplinary proceedings only. Since the investigation under Rule 67(8) is preliminary, the findings will also be preliminary. The High Court observed that the findings of the 1st  respondent, that the alleged assault of a student was not proved can be treated only for the limited purpose of continuing the suspension of the teacher. The said observations shall not influence the disciplinary proceedings nor can they be used for any purpose in the criminal proceedings. The order to suspend a teacher has certain repercussions as far as the teacher, the school’s functioning, and the administrative functions of the education department. It is for this purpose that Rule 67(8) provides for a re-evaluation by the controlling officer at the initial stage. The existence of a public interest in suspending a teacher, therefore, looms large.

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE S.V.BHATTI THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY THE 4TH DAY OF JUNE 2021 14TH JYAISHTA 1943 WA NO. 1375 OF 2020 AGAINST THE JUDGMENT IN WP(C) 6266 2020 OF HIGH COURT OF THE MANAGER ZAMORIN S HIGHER SECONDARY SCHOOL CHALAPPURAM P.O. KOZHIKODE 673 002 RESPONDENTS RESPONDENTS 1 TO 3 THE DISTRICT EDUCATIONAL OFFICER KOZHIKODE OFFICE OF THE DEO KOZHIKODE PIN 673 001 STATE OF KERALA REPRESENTED BY THE SECRETARY GENERAL EDUCATION DEPARTMENT THIRUVANANTHAPURAM 695 001 GIRIJAN K. W.A. No.1375 20 :2: HSTUNDER SUSPENSION ZAMORIN S HIGHER SECONDARY SCHOOL CHALAPPURAM P.O. KOZHIKODE 673 002 RESIDING AT SIVADHAM ERAMANGALAM P.O. BALUSSERY KOZHIKODE R3 BY ADV SRI.MANU GOVIND SRI.M.I.JOHNSON SR.GOVT. PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.06.2021 THE COURT ON THE SAME DAY DELIVERED THE W.A. No.1375 20 :3: Dated this the 4th day of June 2021 Bechu Kurian Thomas J. By an order under Rule 67(8) of the Kerala Education Rules 1959 the 1st respondent directed the appellant to reinstate a teacher after canceling an order of suspension. Though the appellant challenged the said order in the writ petition the learned Single Judge dismissed the same against which this appeal is preferred 2. Ext.P6 order issued by the 1st respondent was impugned in the writ petition. By Ext.P4 the appellant had placed the 3rd respondent teacher under suspension on 13 02 2020 due to the registration of a crime. The 1st respondent cancelled the order of suspension by the order impugned in the writ petition. Finding that the suspension was imposed by Ext.P4 without considering any of the factual situations and without a preliminary enquiry the 1st respondent observed in Ext.P6 that the alleged assault was not proved and that the frequent W.A. No.1375 20 :4: initiation of disciplinary proceedings against the 3rd respondent without adhering to the Kerala Education Rules was also adversely affecting the smooth academic atmosphere of the school apart from creating headache to the department. On the above reasoning the order suspending the 3rd respondent was cancelled 3. The primary contention raised by the appellant was that the Manager can place a teacher under suspension at any time as per rule 67(1)(b) of Chapter XIVA of the Kerala Education Rules 1959and that when a criminal case is registered against the teacher the manager has the authority and discretion to suspend the teacher and further that when such an order of suspension is issued the same could not have been interfered with by the 1st respondent. It was also pleaded that the correctness or otherwise of the allegations that led to the registration of a crime ought not to have been gone into by the 1 st respondent while passing the order under Rule 67(8) of KER and also that the finding by the 1st respondent that the incident as alleged had not occurred was beyond the authority of the 1st respondent 4. The learned single Judge on a consideration of the entire W.A. No.1375 20 :5: factual situation that arose and after referring to the statutory provisions concluded that the order suspending the 3rd respondent did not record the satisfaction of the manager and that it was necessary in public interest to keep the 3rd respondent under suspension. The learned Single Judge further observed that in a case where the crime was registered the same by itself does not provide a ground for automatic suspension unlike in a case where there is detention and custody for a period exceeding 48 hours. After elaborate consideration of the factual situation arising in the case the learned single Judge found that Ext.P6 does not warrant any interference and on the other hand it was held that the appellant was duty bound to reinstate the 3 rd respondent in service 5. The learned Senior Counsel Adv.K.Gopalakrishna Kurup duly assisted by Adv. Susy George Poothicote vehemently contended that the learned Single Judge failed to consider the statutory provisions in the correct perspective and that in the nature of the offence alleged against the 3rd respondent the suspension was inevitable. It was also argued by the learned Senior Counsel that Rule 67 of Chapter XIVA of W.A. No.1375 20 :6: KER was not properly appreciated by the learned single Judge Relying upon the decision in Meenakshi v. State of Keralait was argued that the investigation contemplated under Rule 67(8) was not the same as the enquiry mentioned under rule 75 of Chapter XIVA of KER 6. Adv. Manu Govind the learned counsel for the 3rd respondent contended that the action of the appellant was tainted with malafides especially since on an earlier occasion when proceedings were initiated against the 3rd respondent the Government interfered and directed reinstatement. By Ext.R3(a) judgment this Court confirmed the said order. The 3rd respondent was initially placed under suspension in the aforementioned instance from 20 08 2014 while the Government order was dated 04 08 2017. Even thereafter when the management refused to reinstate the 3rd respondent he was forced to approach this Court twice and it was only after Ext.R3(c) and Ext.R3(d) judgments and pursuant to Ext.R3(e) order dated 16 01 2020 that the petitioner could get reinstatement. Thus from 20 08 2014 till 16 01 2020 3rd respondent was under suspension. According to the learned counsel W.A. No.1375 20 :7: the said reinstatement on 16 01 2020 infuriated the school authorities and within 10 days of reinstatement i.e on 27 01 2020 the 3rd respondent was again suspended. The said suspension order was interfered with by the 1st respondent. This paved the way for the next suspension order dated 13 02 2020 produced as Ext.P4. Order suspending the 3rd respondent was issued by the school authorities based upon a false criminal complaint filed at the behest of the manager himself contended the learned counsel. 7. The learned Government Pleader supported Ext.P6 order and submitted that the same was issued in compliance with the provisions of Rule 67(8) of Chapter XIVA of KER and that the suspension order issued by the appellant on 27 01 2020 was found to be unsustainable and thereafter the same manager placed the said teacher under suspension from 13 02 2020 onwards. Referring to the past it was pointed out that the very same manager had in fact placed the teacher under suspension from 20 08 2014 onwards on unproven charges and that the teacher was kept under suspension without considering the Government Order to reinstate the teacher on 04 08 2017. It was W.A. No.1375 20 :8: further stated that it was only on 16 01 2020 that the 3rd respondent could get actual reinstatement and that after a preliminary investigation the 1st respondent found that all actions taken by the manager against the 3rd respondent were as a means of wreaking 8. We have considered the rival contentions. A brief background of the case may be apposite in the context. The 3rd respondent is a High School Teacherand by order dated 27 1 2020 he was initially placed under suspension pending contemplation of disciplinary proceedings as per section 67(1)(a) of chapter XIVA of KER. Pursuant to an application dated 03 02 2020 seeking permission to continue the suspension the 1st respondent by order dated 10 02 2020 rejected the said application. While so a crime was registered with No.54 2020 against the 3rd respondent on the basis of a private complaint filed by a student alleging offence under sections 323 341 of the IPC and section 75 of the Juvenile Justice(3) andare extracted as below 67. Suspension: The Manager may at any time place a teacher under suspension a) when disciplinary proceedings against him are contemplated or are pending or b) when a case against him in respect of any criminal offence is under investigation or trial or c) when the final orders are pending in the disciplinary proceedings if the authority considers that in the then prevailing circumstances it is necessary in public interest that the teacher should be suspended from service 3) A teacher who is detained in custody on a Civil Criminal or other proceedings for a period exceeding 48 hours shall be deemed to have been under suspension during that period and he cannot draw his pay and allowance other than subsistence allowance allowable under the rule till the final termination of such proceedings 8) Where the orders of suspension is made by the manager he shall on the same day report the matter together with reasons for the suspension to the Educational Officer and where the suspension is in respect of Headmaster of Secondary school and Training school such reports shall be sent to the Deputy Directoralso in addition to the W.A. No.1375 20 :10: Educational Officer. The Deputy Director if the suspension is in respect of Headmaster of a Secondary school or Training School and the Educational Officer in other cases shall thereupon make a preliminary investigation into the grounds of suspension. If on such investigations the authority is satisfied that there was no valid ground for the suspension he may direct the manager to reinstate the teacher with effect from the date of suspension and thereupon the teacher shall forthwith be reinstated by the manager. If the teacher is not actually reinstated the teacher shall be deemed to have been on duty. It shall then be open to the Department to disburse the pay and allowances to the teacher as if he were not suspended and recover the amount so disbursed from the manager. If on such investigation it is found that there are valid grounds for such suspension permission may be given to the manager to place the teacher under suspension beyond 15 days if necessary. The authority mentioned above shall pass orders permitting the suspension or otherwise within said 15 days.” 10. A reading of the above provisions indicate that the prerogative of placing a teacher under suspension is that of the manager. Even under section 12A of the Act the Government or the authorized Officer gets the power to suspend a teacher only when the manager fails to suspend the teacher. However except for the cases covered under Rule 67(3) suspension is not automatic. To place a teacher under suspension as per rule 67(1) three conditions are required to be satisfied. They are disciplinary proceedings are contemplated or are pending when an investigation for a criminal offence against the delinquent is going on andwhen final orders W.A. No.1375 20 :11: are pending in disciplinary proceedings. An understanding of the scope purport and object of Rule 67(1) of Chapter XIVA of KER will reveal that it is not sufficient that any of the aforesaid three conditions are available in a given case to suspend an employee. There is an additional requirement that in the prevailing circumstances suspension of the teacher is necessary in public interest. To ignore the requirement of public interest in all the three conditions in the aforesaid Rule 67(1 would be doing prejudice to the intent and language of the said provision and may amount to conferring unbridled unguided and absolute powers upon the manager to suspend a teacher. Thus public interest is necessary to suspend a teacher in all the three situations mentioned in Rule 67(1) of Chapter XIVA of KER 11. However once a suspension order is issued by the manager he has to report under sub ruleof rule 67 to the Educational Officer on the same day itself. Thus the Educational Officer comes into seisin of the order of suspension. Thereafter he conducts a preliminary investigation. If after such an investigation the Educational Officer is of the view that the suspension is justified he can grant permission to W.A. No.1375 20 :12: continue the suspension order beyond 15 days. On the other hand if the Educational Officer is of the opinion that the order of suspension was not made on valid grounds he can direct reinstatement of the 12. Rule 67(8) of KER contemplates a preliminary investigation to be carried out by the Educational Officer. The preliminary investigation contemplated under the said sub rule is to satisfy the controlling officer about the necessity or need for suspending the teacher. It is a measure of protection against indiscriminate use of the power of suspension. At the said stage of preliminary investigation the Educational Officer acting as the controlling officer is not required to go into the merits of the allegation. He can of course consider as a preliminary measure the validity of the grounds alleged and also appreciate whether the suspension imposed is as a means of victimization or imposed for other ulterior purposes. The scope of the said preliminary investigation is irrefutably limited and is intended only to find out whether there are any valid grounds for the suspension A detailed investigation or enquiry is not contemplated under the said W.A. No.1375 20 :13: provision. The detailed investigation will be part of the disciplinary proceedings. This court had occasion to deal with the nature of power exercisable under rule 67(8) of KER in the decision in Sreedharan v State as well as in Kurien v. AEO Kolenchery 1984 KLT 381). In the latter case it was held that “ As a matter of fact it is only after the preliminary investigation the controlling officer can take a decision as to whether the approval sought for has to be given or not and to say that no enquiry or investigation should be conducted or made by the controlling officer would virtually mean that the provision contained in the sub rule is made redundant 13. In the instant case Ext.P4 was the order of suspension issued by the manager. It does not record any reason for suspending the teacher except the information received about a crime registered against the teacher as Crime No.54 2020. There is no recording of satisfaction of the element of public interest in Ext.P4. The learned single Judge has held that from Ext.P4 it is clear that there was no satisfaction recorded by the manager that in public interest it was necessary to keep the teacher under suspension. We concur with the W.A. No.1375 20 :14: said findings of the learned single Judge. 14. The investigation contemplated under rule 67(8) of Chapter XIVA of the KER is only preliminary and hence the observations made pursuant to such investigation also can only be preliminary. It is not conclusive or binding upon the disciplinary proceedings. Thus the finding of the 1st respondent in Ext.P6 that the alleged assault of a student was not proved can be treated only for the limited purpose of continuing the suspension of the teacher. The said observations shall not influence the disciplinary proceedings nor can it be used for any purpose in the criminal proceedings. The 1st respondent has taken a holistic view of the entire matter and also placed reference to the past conduct of the manager to arrive at the finding that the order of suspension is to be cancelled. The learned single Judge has found that the impugned order is justifiable. We cannot find fault with the said 15. The order suspending a teacher though not a punishment still has certain repercussions as far as the teacher is concerned. It will also affect the smooth administration of the school as well as the entire W.A. No.1375 20 :15: administrative machinery of the education department. It is for this purpose that Rule 67(8) of KER provides for a reappraisal by the controlling officer not only after every 6 months but even at the initial stage. The existence of public interest in suspending a teacher must therefore loom large. The judgment of the learned single Judge does not warrant any interference and hence the appeal is only to be The writ appeal therefore fails and is dismissed. BECHU KURIAN THOMAS S.V.BHATTI JUDGE JUDGE vps

In matters of determination of compensation both the Tribunal and the Court are statutorily charged with a responsibility of fixing a “just compensation”: Tripura High Court

The Tribunal erroneously awarded compensation for the loss of consortium only to the wife. The old mother of the deceased and his two minor children was also entitled to the consortium. The Hon’ble High Court of Tripura led by The Hon’ble Mr. Justice S. G. Chattopadhyay held such an opinion in the matter of Smt. Suruchi Bhattacharjee and Ors Vs. Smt. Tripti Paul and Ors [MAC App No. 03/2020].  The facts of the case were associated with an appeal under Section 173(1) of the Motor Vehicles Act, 1988 against the judgment passed by the learned Member, Motor Accident Claims Tribunal on 03.5.2019. It was reported that the deceased who was the son of appellant 1 was walking along the Assam Agartala road at a place called Howaibari within the jurisdiction of Teliamura police station. At the time a Maruti Van drove in a rash and negligent manner dashed into the deceased due to which the deceased suffered with grievous injuries and was hospitalised for 3 months and had to undergo multiple surgeries. Subsequently, it was reported that the deceased suffered from 85% permanent locomotor disability. Eventually, under Section 166 M.V. Act, compensation of a sum of Rs.10,00,000/- was filed in a claim petition. Later, at the time of pendency of the petition, he succumbed to his injuries. At the time of the contest, respondent 2 stated that the claim was exorbitant. Respondent no 3, the owner of the offending vehicle also stated that the claim amount was huge and there were no documents for its support as well. It was stated that respondent 1 was the actual owner of the vehicle on the date of the accident. However, the respondent denied his liability. Petitioner 2, wife of the deceased submitted the death certificate and also the disability certificate. While no oral or documentary was produced on behalf of the respondents. The Tribunal examined the facts and stated that the accident occurred due to the rash and negligent driving of the vehicle and Prajoy Bhattacharjee, died of the injuries sustained by him in the said accident. Considering all the facts and submissions The Hon’ble Court stated that “The claimants will be entitled to equal share of this compensation. The whole share of the two minor children of the deceased would be invested in a term deposit in a nationalised bank for a period until they attain majority. Monthly income generated from the said deposit would be spent for education and other needs of the children. The share of the mother of the deceased would also be invested in term deposit for a period of five years and the monthly income generated from such investment would be deposited in the individual bank account of the said claimant for her personal and living expenses.” Therefore, the appeal was disposed of.

Page HIGH COURT OF TRIPURA MAC App No. 03 2020 Smt. Rama Bhattacharjee late Prajoy Bhattacharjee Smt. Suruchi Bhattacharjee. Mother of late Prajoy Bhattacharjee resident of Tuichindrai P.O. Hawaibari P.S. Teliamura District Khowai Tripura. resident of wife of Tuichindrai P.O. Hawaibari P.S. Teliamura District Khowai Tripura. Smt. Susmita Bhattacharjeedaughter of late Prajoy Bhattacharjee resident of Tuichindrai P.O. Hawaibari P.S. Teliamura District Khowai Tripura son of resident of Tuichindrai P.O. Hawaibari P.S. Teliamura District Khowai Tripura Sri. Prakash Bhattacharjeelate Prajoy Bhattacharjee Versus Smt. Tripti Paul. wife of Sri Bipad Paul resident of Gokulpur Udaipur P.S. R.K.Pur District Gomati Tripura 2. M S General Insurance Company Limited Agartala Branch located at 2nd Floor Teensanghi Akhaura Road Krishnanagar P.S. West Agartala District West Tripura no. 3362 00621714 000 00 Sri Maran Chandra Das MAC App. No.03 2020. … Appellant. … Respondent(s). Page THE HON’BLE MR. JUSTICE S. G. CHATTOPADHYAY For Appellant(s) For Respondent(s) : Mr. Mr. P. K. Ghosh Advocate. : Mr. A. Nandi Advocate. Mr. R. G. Chakraborty Advocate. Mr. S.K. Patari Advocate. : 15th September 2021. Date of hearing Date of Judgment & Order : 24th November 2021. Whether fit for reporting : NO. JUDGMENT AND ORDER This appeal under Section 173(1) of the Motor Vehicles Act 1988 is directed against the judgment and award dated 3.5.2019 passed by the learned Member Motor Accident Claims Tribunal No.3 West Tripura Judicial District Agartala in TSNo. 2612. The case in brief is that on 06.02.2012 at about 7 „O‟ clock in the evening the deceased who is the son of appellant No.1 husband of appellant No.2 and father of appellants No. 3 and 4 was walking along the Assam Agartala road at a place called Howaibari within the jurisdiction of Teliamura police station. At that time the offending Maruti Van bearing registration No.TR 03 C 0569 came in a rash and negligent manner and knocked him down from behind. As a result of the accident the deceased sustained grievous injuries and he was hospitalized. He was admitted in A.G.M.C and G.B.P Hospital at Agartala where he was confined to bed for about three months from 06.02.2012 to 04.05.2012. During the period he had undergone multiple surgeries. After his discharge from hospital the District Disability Medical Board certified that he suffered from 85% MAC App. No.03 2020. permanent locomotor disability. He filed a claim petition at the Tribunal Page claiming compensation of a sum of Rs.10 00 000 under Section 166 M.V. Act. During the pendency of his claim petition he succumbed to his injuries on 12.06.2014. As a result of the death of the claimant his mother wife and his minor daughter and son were impleaded as After the accident wife of the deceased lodged FIR with the Officer in Charge of Teliamura Police Station on 04.05.2012 which was registered as Teliamura P.S Case No.521 under Sections 279 and 338 IPC and the case was investigated by the police. Before the injured died police submitted final report for want of evidence. Concluding part of the final report of the investigating officer is as under: “Hence I do not think wise to drag the matter pending for more. Hence I do hereby submit Final Report vide TLM PS FR No.17 12 dtd.31 08 12 u s 279 338 IPC. The fact is true but wanting evidence in C w the case. With a view to the case may be re opened if the evidence comes in near future and thus obliged. While contesting the claim at the Tribunal the insurance companytook up usual defence stating that the claim was exorbitant and the onus of proving the claim was strictly put on the claimants. claimants. Respondent No.3 owner of the offending vehicle also claimed that the claim of compensation was exorbitant which was not even supported by any document. The respondent also pleaded that actual owner of the vehicle on the date of occurrence was Smti. Tripti MAC App. No.03 2020. Paul because he purchased the vehicle from Smt. Page Tripti Paul on 20.3.2012 and on 06.02.2012 when the accident occurred Tripti Paul was the owner of the vehicle. The respondent therefore denied his liability. Said Smt. Tripti Paul who was impleaded as respondent No.1 at the Tribunal. Notice of the case was issued to her but she did not file any written response. In this regard the tribunal had made the following observation in paragraph 4 of its award. “4. Initially the OP NO. 1 Smt Tripti Paul appeared before this Tribunal by executing one Vokalatnama in favour of Mr.Pramod Sahu learned Advocate and by filing petition prayed for time to present her written statement but ultimately the OP NO. 1 did not cooperate with her engaged learned counsel for which on 02.06.2015 Mr. P. Sahu learned Advocate filed one petition expressing his intention to retire from this case and ultimately the said petition was accepted by this Tribunal vide order dated petitioners were directed to take necessary steps to issue fresh notice to the OP NO. 1 Smt Tripti Paul but in spite of several opportunities the claimant petitioners did not file any requisite for issuance of notice to the OP NO. 1. Accordingly this Tribunal by passing an order on 11.09.2017 closed the case against the OP NO. 1.” Thereafter On the basis of the pleadings of the parties the learned Tribunal had framed the following issues: “(i) Whether claimant Prajoy Bhattacharjee sustained bodily injury in a vehicular accident which occurred on 06.02.2012 at Howaibari due to rash and negligent driving of the MAC App. No.03 2020. Page offending vehicle bearing registration No.TR 03 C 0569. ii) Whether the claimant was entitled to compensation as prayed for. If so up to what extent and who would be held liable to pay the After the injured claimant died of injuries during pendency of the claim petition the Tribunal did not recast the issues. examined Smt. Rama Bhattachajree wife of the deceased as PW 1 and Dr. Dipti Bikash Roy a locomotor specialist of the District Disability Medical Board of West Tripura as PW 2 and produced various documents including the death certificate of the deceased his disability certificate which was issued by the District Disability Medical Board before his death survival certificate of the claimants etc. No evidence oral or documentary was produced on behalf of the respondents. They however cross examined the witnesses of the claimants. 10] Having appreciated the facts and circumstances of the case and the evidence on record Tribunal held that the accident occurred due to rash and negligent driving of the vehicle and Prajoy Bhattacharjee died of the injuries sustained by him in the said accident. The tribunal had assessed monthly income of the deceased at Rs.5000 and since the deceased was stated to be 47 years of age at the time of his death multiplier 13 was applied in terms of the judgment of the Apex Court in MAC App. No.03 2020. the case of Sarla Verma(Smt.) and others Vrs. Delhi Transport Page Corporation and Another: reported in 6 SCC 121 and loss of dependency was thus worked out at Rs.5000 X 12 X13 = Rs.7 80 000 . Since the deceased was married and he had dependent family members 1 3rd of the said amount i.e. Rs.2 60 000 was deducted towards personal and living expenses of the deceased and as such the actual loss of dependency was worked out at Rs.7 80 000 2 60 000 = Rs.5 20 000 . With the said amount Tribunal added Rs.40 000 as loss of consortium to the wife Rs.25 000 for funeral expenses and Rs.10 000 for loss of estate and the total compensation was computed as under: 1. Loss of dependency Rs.5 20 000 2. Loss of consortium to wife Rs. 40 000 3. For funeral expenses Rs. 25 000 4. Loss of estate Rs. 10 000 Total: Rs.5 95 000 Tribunal also awarded 6% annual interest on the said amount from the date of presentation of the claim petition till disbursement. 11] Challenging the said award Mr. A. Nandi learned counsel appearing for the claimants has vehemently argued that Tribunal did not follow the settled principle in determining the compensation. Counsel submits that Tribunal did not also give any compensation towards future prospect of the deceased. Moreover the Tribunal assessed the monthly income of the deceased at a meagre sum of Rs.5000 which was quite MAC App. No.03 2020. unjust and unreasonable because even the monthly income of an Page unskilled day labourer was more than that amount. Counsel therefore urges the Court to award a just and appropriate amount of compensation to the claimants. 12] Mr. P. K. Ghosh learned counsel appearing for the respondent insurance company on the other hand argues that the present petition was filed by the deceased himself for compensation for personal injury suffered by him. Since he died natural death during pendency of the case the case stood abated after his death and the claimant appellants were not entitled to any compensation arising out of such death. In support of his contention counsel has relied on the decision of Gauhati High Court in Sipra Bhowmik & another Vrs. Soumendra Ch. Saha & others: reported in 2012 In so far as the first contention of the counsel of the respondent insurance company is concerned the contention is not acceptable because it is clearly held by the Tribunal after appreciation of evidence that Prajoy Bhattacharjee died of the injuries received from the accident. In the aforesaid decision of Gauhati High Court which has been relied on by the counsel of the respondent insurance company the only question which arose before the Court was whether in a case where the claimant petitioner who claimed compensation under the M.V. Act for MAC App. No.03 2020. personal injury suffered by him died during pendency of the claim not in Page consequence the injury suffered by him due to motor vehicle accident but for some other cause his successors legal representatives continue with the claim case for compensation. This court decided the issue in the negative and held that in such cases the suit would stand abetted and the appellant would have no right to proceed. In the given case there is no challenge to the decision of the Tribunal that deceased who brought the claim at the Tribunal under Section 166 M.V. Act for personal injury suffered by him died in consequence of the injuries suffered by him in the accident. In these circumstances the respondent insurer cannot derive any benefit from the said judgment of this High Court. 14] We may now proceed to examine as to whether the compensation awarded by the Tribunal is just and appropriate. A duty is cast on every Tribunal to award a just and reasonable compensation in such cases by adopting equitable principles and reasonable approach for determination of compensation. In this regard in case of Yadava Kumar Vs. Divisional Manager National Insurance Company Ltd. & Anr. reported in 10 SCC 341 the Hon‟ble Apex Court has held as under: “15. It goes without saying that in matters of determination of compensation both the tribunal and the court are statutorily charged with a responsibility of fixing a “just compensation”. It is obviously true that determination of a compensation cannot be equated to a bonanza. At the same time the concept of “just compensation” fair and obviously suggests application of equitable principles and a reasonable approach on the part of the tribunals and courts. This reasonableness on the part of the tribunal and the court must be on a large peripheral field. Both the courts and the tribunals in the matter of this MAC App. No.03 2020. Page exercise should be guided by principles of good conscience so that the ultimate result becomes just and equitable At the time of his death the appellant was a Tea stall owner and a Tribunal held that monthly income of a Tea stall owner would not be less than Rs.5 000 when the deceased died. Tribunal therefore assessed his annual income at Rs.60 000 at the rate of Rs.5 000 per month and by applying multiplier 13 Tribunal worked out the loss of dependency at Rs.7 80 000 . From which 1 3rd was deducted for his personal and living expenses and the actual loss of dependency was worked out to be Rs.5 20 000 . Approach of the Tribunal is not correct because the mother wife and two school going children were his dependant family members and none of them had any income. The whole family depended on the income of the deceased since they had no other source of income. Therefore it was quite unlikely that the deceased would be able to run his family consisting of five members with a monthly income of Rs.5000 only. Moreover presumably the monthly income of a person having a Tea stall at the road side would not be less than Rs.9000 . Therefore the Tribunal should have assessed the monthly income of the deceased at least Rs.9000 in absence of any document adduced on behalf of the claimants with regard to the income of the deceased. Since the deceased was a self employed person and he was between the age of 40 to 50 years an addition of 25% of his monthly income would be made towards future prospect in terms of the decision of the Apex Court in the case of National Insurance Company Limited Vrs. Pranay Sethi and others reported in 16 SCC 680 and MAC App. No.03 2020. thus his monthly income is worked out at Rs.9000 X 25% = 9000 + 2250 Page 1 11250 . Since the deceased was 47 years old at the time of his death arising out of the accident multiplier 13 would apply in terms of the decision of the Apex Court in case of Sarla Verma(Supra). Applying the multiplier 13 loss of dependency is worked out at Rs.11250 X 12 X 13 = Rs.17 55 000 . 1 4th of the said amount i.e. Rs.4 38 750 would be deducted towards personal and living expenses of the deceased in terms of the decision of the Apex Court in the case of Sarla Verma(Supra) because the number of dependent family members of the deceased was four. After such deduction the actual loss of dependency comes to Rs.17 55 000 4 38 750 = Rs.13 16 250 . 16] The Tribunal erroneously awarded compensation for loss of consortium only to the wife. Old mother of the deceased and his two minor children are also entitled to consortium at the rate of Rs.40 000 per head. Therefore the claimants would be entitled to consortium of an amount of Rs.40 000 X 4 = Rs.1 60 000 . With this amount Rs.15 000 for funeral expenses and Rs.15 000 for loss of estate would be added and the total compensation payable to the claimants would be as under: Loss of dependency Rs.13 16 250 Loss of consortium Rs. 1 60 000 For funeral expenses Rs. 15 000 Loss of estate Rs. 15 000 Total : Rs.15 06 250 MAC App. No.03 2020. 17] The said amount would carry 7% annual interest from the Page 1 date of presentation of the claim till disbursement. The insurance company is directed to deposit the whole amount of compensation with the interest accrued thereon with the Registry of this Court within a period of 8 weeks from today. The claimants will be entitled to equal share of this compensation. The whole share of the two minor children of the deceased would be invested in a term deposit in a nationalised bank for a period until they attain majority. Monthly income generated from the said deposit would be spent for education and other needs of the children. The share of the mother of the deceased would also be invested in term deposit for a period of five years and the monthly income generated from such investment would be deposited in the individual bank account of the said claimant for her personal and living expenses. 50% of the share of the claimant wife would be released in her favour and rest 50% of the amount would be invested in a term deposit for five years in her name in any nationalised bank having the provision of monthly income. The monthly income generated from such investment would be transferred to her individual savings bank account. The amount already deposited by the insurance company shall be adjusted. 18] In terms of the above the appeal is disposed of. Pending application(s) if any shall also stand disposed of. Send down the L.C record. Dipankar MAC App. No.03 2020.

Contemplation or the existence of an arbitral proceedings is a must before the Court can pass protective orders as contemplated in section 9 (1) (ii) (a) to (e) of the Arbitration Act: Sikkim High Court

  This dispute arises out of the impugned order dated 31.05.2021 passed by the learned Commercial Court on an application filed by the respondent (Brij Raj Oberoi) under section 9 (1) (ii) of the Arbitration and Conciliation Act, 1996. The learned Commercial Court examined, inter-alia, the relevant arbitration clause i.e. 4 (xiii) of the lease agreement dated 09.12.1997 entered between the appellant (the State) and the respondent (Brij Raj Oberoi) leasing out the premises known as “Norkhil Hotel”. After an appeal by the plaintiff this dispute was decided by Sikkim High court in the matter of The Secretary, Tourism & Civil Aviation Department & Anr. v. Brij Raj Oberoi [Arb.A. No. 02 of 2021] The facts of the case were that the on 09.12.1997 the deed of lease was executed between the State and Brij Raj Oberoi by which “Norkhil Hotel” was leased to Brij Raj Oberoi for a period of 24 years. The lease was to expire on 31.05.2021 further, the lease deed contained some important facts for the consideration of the case as: The lessee shall in the last year of the lease tenure and not later than six months prior to the expiry of the present lease, communicate in writing to the lessor his terms and conditions for the renewal of the present lease and if the same is accepted by the lessor, then the present lease may be renewed for such further period and on such rent as may be mutually agreed upon between the parties thereto, failing which the matter shall be referred to arbitration by an arbitrator to be appointed by the Chief Justice of the Sikkim High Court. On 12.11.2020 before the expiry of the period of lease on 31.05.2021 Brij Raj Oberoi sent an offer of renewal to the State but there was no response from the state side. Thus, Brij Raj decided to send a legal notice. The State thereafter, issued a letter dated 17.05.2021 to Brij Raj Oberoi conveying their inability to renew the lease furthermore, on 21.05.2021 Brij Raj Oberoi wrote to the State contending that disputes and differences had arisen between them in respect of the renewal of the lease and its terms; and keeping in mind clause 4(xiii) of the lease agreement to refrain from taking any steps as contemplated by them for tender to handover “Norkhil Hotel” to a third party until the disputes are decided through arbitration. The state side argued that Brij Raj Oberoi had misconstrued clause 4(xiii) of the lease agreement. It was contended that as the State had not accepted the offer made by Brij Raj Oberoi there was no case for arbitration. The bench comprising of consisting of Justice Bhaskar Raj Pradhan and Chief Justice Biswanath Somadder decided that Section 9 of the Arbitration Act deals with interim measures for protection which a party may, before or during arbitral proceedings or at any time after the making of the arbitral award or before it is enforced in accordance with section 36, apply to a Court for. It is certain that a contemplation or the existence of an arbitral proceedings is a must before the Court can pass protective orders as contemplated in section 9 (1) (ii) (a) to (e) of the Arbitration act. The bench relied on the case of Firm Ashok Traders vs. Gurmukh Das Saluja [(2004) 3 SCC 155] in which the supreme court held that party invoking section 9 may not have actually commenced the arbitral proceedings but must be able to satisfy the Court that arbitral proceedings were actually contemplated or manifestly intended and were positively going to commence within a reasonable time. “In such circumstances, none of the disputes – which can be termed as arbitrable dispute – as specified hereinbefore, are present in the facts of the instant case. In absence of any arbitrable dispute, an order could not have been passed by the Learned Commercial Court under section 9 of the Arbitration Act.” Hence, the arbitration appeal was allowed. and the impugned judgment and order dated 31.05.2021, passed by the learned Commercial Court on the application filed by Brij Raj Oberoi under section 9 of the Arbitration and Conciliation Act, 1996 was set aside.

Arb.A. No. 021 The Secretary Tourism & Civil Aviation Department & Anr. v. Brij Raj Oberoi Arb. P.No.021 Brij Raj Oberoi v. State of Sikkim through the Secretary & Anr. THE HIGH COURT OF SIKKIM: GANGTOK Civil Appellate Jurisdiction) DIVISION BENCH: HON’BLE MR. JUSTICE BISWANATH SOMADDER CHIEF JUSTICE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE Arb. A. No. 021 AND Arb. P. No. 021 1. The Secretary Tourism and Civil Aviation Department Government of Sikkim Gangtok East Sikkim. 2. State of Sikkim Through the Secretary Tourism and Civil Aviation Department Government of Sikkim Gangtok East Sikkim. … Appellants versus Brij Raj Oberoi Managing Director of Elgin Hotel Pvt. Ltd. 18 H.D. Lama Road P.O. Darjeeling West Bengal Resident at Hotel Norkhil Campus Paljor Stadium Road Gangtok. East Sikkim. Section 37 Arbitration and Conciliation Act 1996 read with section 13 of the Commercial Courts Act 2015 Article 227 of the Constitution of India. …. Respondent Dr. Doma T. Bhutia Additional Advocate General and Mr. S.K. Chettri Government Advocate for the Mr. A. Moulik Senior Advocate with Ms. K.D. Bhutia and Mr. Ranjit Prasad Advocates for the respondent. Arb.A. No. 021 The Secretary Tourism & Civil Aviation Department & Anr. v. Brij Raj Oberoi Arb. P.No.021 Brij Raj Oberoi v. State of Sikkim through the Secretary & Anr. Arb. P. No. 021 Brij Raj Oberoi Managing Director of Elgin Hotels Pvt. Ltd. 18 H.D. Lama Road P.O. Darjeeling West Bengal Resident at Hotel Norkhil Campus Paljor Stadium Road Gangtok. East Sikkim. …. Petitioner. 1. State of Sikkim Through the Secretary Tourism and Civil Aviation Department Government of Sikkim Gangtok East Sikkim. 2. The Secretary Tourism and Civil Aviation Department Government of Sikkim Gangtok East Sikkim. Application for appointment of arbitrator under section 11 of the Arbitration and Conciliation Act 1996 read with section 10 of the Commercial Courts Act 2015 and under Article 227 of the Constitution of India. .… Respondents Mr. A. Moulik Senior Advocate with Ms. K.D. Bhutia and Mr. Ranjit Prasad Advocates for the Petitioner. Dr. Doma T. Bhutia Additional Advocate General and Mr. S.K. Chettri Government Advocate for the State JUDGMENT 1. Arbitration Appeal No. 02 of 2021 arises out of the impugned order dated 31.05.2021 passed by the learned Commercial Court on an application filed by the respondent Arb.A. No. 021 The Secretary Tourism & Civil Aviation Department & Anr. v. Brij Raj Oberoi Arb. P.No.021 Brij Raj Oberoi v. State of Sikkim through the Secretary & Anr. Brij Raj Oberoi) under section 9 (ii) of the Arbitration and Conciliation Act 1996 of the lease agreement dated 09.12.1997 entered between the appellant and the respondent Brij Raj Oberoi) leasing out the premises known as “Norkhil Hotel”. It held that arbitrable dispute had arisen between the parties which were to be referred to arbitration and restrained the appellant from disturbing the possession and enjoyment of “Norkhil Hotel” until the commencement of arbitral proceedings. 2. Arbitration Petition No. 02 of 2021 is an application filed by Brij Raj Oberoi on 16.07.2021 for appointment of arbitrator under section 11 of the Arbitration Act read with section 10 of the Commercial Courts Act 2015. 3. Both cases shall be disposed by this common judgment. 4. On 09.12.1997 the deed of lease was executed between the State and Brij Raj Oberoi by which “Norkhil Hotel” was leased to Brij Raj Oberoi for a period of 24 years. The lease was to expire on 31.05.2021. The lease deed inter alia contained the following relevant clauses: “3. That the initial terms of the lease under this deed shall be a period of twenty four years from 1.6.1997 to 31.5.2021 and shall be renewable for such further period as the lessor deems fit subject to acceptance of the lessee’s offer in terms of clause 4hereinafter.” Arb.A. No. 021 The Secretary Tourism & Civil Aviation Department & Anr. v. Brij Raj Oberoi Arb. P.No.021 Brij Raj Oberoi v. State of Sikkim through the Secretary & Anr. x x x x x x “4. xiii. The lessee shall in the last year of the lease tenure and not later than six months prior to the expiry of the present lease communicate in writing to the lessor his terms and conditions for the renewal of the present lease and if the same is accepted by the lessor then the present lease may be renewed for such further period and on such rent as may be mutually agreed upon between the parties thereto failing which arbitration by an arbitrator to be appointed by the Chief Justice of the Sikkim High Court.” the matter shall be referred 5. On 12.11.2020 before the expiry of the period of lease on 31.05.2021 Brij Raj Oberoi sent an offer of renewal to the State to the following effect: the period 01.06.2021 will be Rs.64 30 766.43 per year i.e. 10% more than the annual rent that is being paid now. The escalation clause will remain the same i.e. 10% more every three years. The rent will be paid in equal quarterly suggested that the period of the renewed lease will be 30 years commencing from 1.6.2021. All other terms and conditions of the lease will remain the installment every year. 6. As there was no response to the letter dated 12.11.2020 Brij Raj Oberoi sent a reminder on 09.04.2020. Thereafter it was followed by a legal notice dated 05.05.2021. On 15.05.2021 Brij Raj Oberoi moved an application under section 9 (ii) of the Arbitration Act of the lease agreement to refrain from taking any steps as contemplated by them for tender to handover “Norkhil Hotel” to a third party until the disputes are decided through arbitration. On 24.05.2021 Brij Raj Oberoi filed an additional affidavit before the learned Commercial Court informing about the issuance of the letter dated 17.05.2021 by the State declining to renew the lease without considering the offer made by him. He also appraised the learned Commercial Court about his reply dated 21.05.2021 and the fact that he had come to learn that the State was taking steps for allotment of “Norkhil Hotel” to a party person of their choice and the fact that the lease itself was going to expire on 31.05.2021. 7. On 28.05.2021 the State filed a response to the application contending that Brij Raj Oberoi had misconstrued clause 4(xiii) of the lease agreement. It was contended that as the State had not accepted the offer made by Brij Raj Oberoi there was no case for arbitration. Read properly clause 4(xiii) Arb.A. No. 021 The Secretary Tourism & Civil Aviation Department & Anr. v. Brij Raj Oberoi Arb. P.No.021 Brij Raj Oberoi v. State of Sikkim through the Secretary & Anr. would permit reference of the quantum of rent and the period of renewal for arbitration. Under clause 4(xiii) upon termination and or expiry of the lease Brij Raj Oberoi was required to quit and vacate “Norkhil Hotel”. Section 9 of the Arbitration Act deals with interim measures for protection which a party may before or during arbitral proceedings or at any time after the making of the arbitral award or before it is enforced in accordance with section 36 apply to a Court for. It is certain that a contemplation or the existence of an arbitral proceedings is a must before the Court can pass protective orders as contemplated in section 9(ii)to3 SCC 155 Arb.A. No. 021 The Secretary Tourism & Civil Aviation Department & Anr. v. Brij Raj Oberoi Arb. P.No.021 Brij Raj Oberoi v. State of Sikkim through the Secretary & Anr. i. If there is a dispute with regard to the further period of renewal of the present lease as proposed and ii. If there is a dispute with regard to the quantum of rent proposed to be paid by the lessee to the lessor for the extended period of lease. 10. In the instant case the State expressed its inability to renew the lease through its letter dated 17th May 2021. It may have been written belatedly however it was before expiry of the lease period. As a consequence the result of this letter dated 17th May 2021 tantamount to a final decision on the part of the State not to renew the present lease in favour of Brij Raj 11. In such circumstances none of the disputes which can be termed as arbitrable dispute as specified hereinbefore are present in the facts of the instant case. In absence of any arbitrable dispute an order could not have been passed by the Learned Commercial Court under section 9 of the Arbitration 12. Consequently Arbitration Appeal No. 02 of 2021 is allowed and judgment and order dated 31.05.2021 passed by the learned Commercial Court on the application filed by Brij Raj Oberoi under section 9 of the Arbitration and Conciliation Act 1996 is set aside. The Arbitration Petition No. 02 of 2021 seeking appointment of Arb.A. No. 021 The Secretary Tourism & Civil Aviation Department & Anr. v. Brij Raj Oberoi Arb. P.No.021 Brij Raj Oberoi v. State of Sikkim through the Secretary & Anr. Arbitrator under section 11 of the Arbitration and Conciliation Act 1996 read with section 10 of the Commercial Courts Act 2015 is also dismissed. The parties to bear their own costs. ( Biswanath Somadder ) Chief Justice 18.11.2021 Judge 18.11.2021 sdl Approved for reporting: yes. Internet: yes.

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: Appellate Authority, SEBI

The appellate authority under the RTI (Right to Information) Act of the Securities and Exchange Board of India comprising of Mr. Anand Baiwar adjudicated in the matter of Shailendrakumar H Ughadmathe v CPIO, SEBI, Mumbai (Appeal No. 4284 of 2021) dealt with an issue in connection with Section 2 (f) of the Right to Information Act. The appellant, Mr Shailendrakumar H Ughadmathe had filed an application via RTI MIS Portal on the 15th of May, 2021 under the Right to Information Act, 2005. The respondent responded to the application by a letter on the 27th of May, 2021, filed by the appellate. After receiving a letter from the respondent on 27th of May, 2021 on his application, the appellate decided to file an appeal on the 31st of May, 2021. In his application on the 15th of May, 2021, the appellate was seeking the following information: “1. The appellant has been charged for same ISINs (listed below) in the month of January 2021 as outgoing charges. What is the reason behind i) BANDHAN BANK LIMITED EQ (ISIN: INE54……14) ii) TANLA SOLUTIONS LIMITED EQ NEW RE.1/(ISIN: INE48…….32) The respondent to this replied by saying that taking action or resolution of grievance does not come under the provisions of RTI Act since query numbers 1,2,3,4 and 5, are of the nature of seeking clarification/grievance. Hence, it does not qualify under Section 2 (f) of the Right to Information Act, 2005 and was advised to file the application on the SCORES portal in case of dissatisfaction with the resolution provided of the complaint. The appellate filed the appeal on the basis of him not being granted the information he was seeking. The appellate authority, Mr Anand Baiwar, made reference to the matter of Vineet Pandey vs. CPIO, United India Insurance Company Limited (Judgment dated January 21, 2021), wherein similar observations were made by the Hon’ble CIC. Further, in the matter of Shri Shantaram Walavalkar vs. CPIO, SEBI (Decision dated January 17, 2013), he noted that the Hon’ble CIC held: “… we would also like to observe that, under the Right to Information (RTI) Act, the citizen has the responsibility to specify the exact information he wants; he is not supposed to seek any opinion or comments or clarifications or interpretations from the CPIO…”. In view of the above-made observations, the Appeal was accordingly dismissed since the appellate authority found that there was no need to interfere with the decision of the respondent.

Appeal No. 42821 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 42821 Shailendrakumar H CPIO SEBI Mumbai The appellant had filed an application dated May 15 2021under the Right to Information Act 2005in the month of January 2021 as outgoing charges. What is the reason behind i) BANDHAN BANK LIMITED EQ TANLA SOLUTIONS LIMITED EQ NEW RE.12. The appellant has complained to Kotak Securities2 times but appellant got no response. If there is any penalty they have to pay to customer due to their ignorance. 3. If answer for above case is yes then provide the way in which appellant can charge them. 4. The appellant has also complained to SEBIEbut they also closed the ticket even though the appellant has confirmed that issue is not resolved during telephonic conversation. Provide the escalation matrix in SEBIE. 5. How can the appellant be ensured that such kind of mistake did not happen during rest of months. ” The respondent in response to query numbers 1 2 3 4 and 5 informed that the queries are in the nature of seeking clarification grievance. The respondent also informed that taking action or resolution of grievance does not come under the provisions of RTI Act. Therefore it does not qualify as information Appeal No. 42821 under provisions of section 2(f) of RTI Act. With regard to closure of the complaint in SCORES the appellant was advised to file a review in SCORES portal in case he is not satisfied with the resolution of the complaint. 4. Ground of appeal The appellant has filed the appeal on the ground that the access to the requested information was refused. The appellant in his appeal has reiterated his queries raised in his application. The appellant has further submitted that he has a right to know where to escalate his grievance further. I have perused the queries and the response provided thereto. On consideration I agree with the observation of the respondent that the queries are in the nature of seeking clarification from the respondent regarding outgoing charges for same ISINs. 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. Consequently the respondent did not have an obligation to provide such clarification under the RTI Act. In this context reference is made to the mater of Vineet Pandey vs. CPIO United India Insurance Company Limitedwherein similar observations were made by the Hon’ble CIC. Further in the matter of Shri Shantaram Walavalkar vs. CPIO 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 I do not find any deficiency in the response. Further the appellant in his appeal has raised grievance regarding alleged non resolution of his complaints filed with Kotak Securities SEBI. 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. CPIO Decision dated May 28 2021) the 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 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. Appeal No. 42821 7. With respect to the query with respect to escalation matrix in SEBI I find that the respondent has addressed the query by providing the information available with him regarding review of resolution of complaint. Accordingly I do not find any deficiency in the response. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeal is accordingly dismissed. Place: Mumbai Date: June 30 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA

Magistrate has power to monitor during investigation and probe : Allahabad High Court

The issue whether magistrate can monitor an investigation or probe into a criminal case where a party was aggrieved by the manner of investigation or probe was decided upon by the division bench of Allahabad High Court consisting of Justice Anjani Kumar Mishra and  Justice Deepak Verma in the matters between Satyaprakash v. State of Uttar Pradesh and Other CRIMINAL MISC. WRIT PETITION No. – 23 of 2022 decided on 20.1.2022 The facts of the case were a petition was filed seeking directions to the respondent authorities to conduct a fair investigation of a criminal case under Sections 363, 366 of the IPC and whether the suspects have been arrested or whether any criminal complaint has been made against them as the petitioner was aggrieved from the manner of conducting the investigation. The counsel on behalf of the petitioner contended that the police acted in collusion with the suspects and that the suspects had not been arrested and  yet no charges had been brought against the accused persons.Undoubtedly, the petitioner was a victim of the manner in which the investigation said to have been carried out against the private respondent. The judgement text does not mention any arguments made out by a counsel on behalf of the respondent. The Allahabad High Court held that Magistrate has the power to ‘monitor’ an investigation under section 156(3) of CrPC and a person injured by a police investigation can move the Magistrate to follow up on the investigation. Dismissing the present petition, the Supreme Court granted the petitioner the freedom to exercise the jurisdiction of the Magistrate available under the CRPC in the light of the law laid down by the Supreme Court.Citing various judgements like in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage (2016) 6 SCC 277, Sakiri Vasu v. State of Uttar Pradesh (2008) 2 SCC 409,  and M Subramaniam and another v. S Janaki and Anr, the court laid  that section 156 (3) is broad enough to include all these powers required of a Magistrate. It includes the authority to provide an appropriate investigation and, if the Magistrate is satisfied that a proper investigation has not been or has not been made by the police, to order an FIR registration and to order an appropriate investigation. The court opined that although succinctly stated, section 156 (3) of the CrPC is very broad and will include all incidental powers necessary to ensure a proper investigation.

T7ITEM NO.58 COURT NO.7 SECTION IIA 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).7022 2009 From the judgement and order dated 08 09 2009 in CRLWP No 2482 2008 of The HIGH COURT OF BOMBAY SUDHIR BHASKARRAO TAMBE Petitioner(s VERSUS HEMANT YASHWANT DHAGE & ORS. Respondent(s With appln(s) for exemption from filing O.T. intervention stay permission to file additional documents Vol. III and office report WITH SLP(Crl) NO. 72109 With appln(s) for stay and office report Date: 12 04 2010 This Petition was called on for hearing today HON’BLE MR. JUSTICE MARKANDEY KATJU HON’BLE MR. JUSTICE A.K. PATNAIK For Petitioner(s) Mr. Shanti Bhushan Sr. Adv In SLP 7022 2009 Mr. R.N. Dhorde Adv Mr. T.M.Kanawade Adv Mr. M.Y.Deshmukh Adv.for Mr. Rameshwar Prasad Goyal Adv For Petitioner(s) Mr. R.F.Nariman Sr. Adv In SLP 7219 2009 Mr. R.N.Dhorde Adv Mr. T.M.Kanawade Adv Mr. Sushil Karanjkar Adv Mr. Vishal Patil Adv.for Mr. K.N. Rai Adv For Respondent(s) Mr. Ram Jethmalani Sr. Adv Mr. Sushil Kumar Sr. Adv Mr. Arun Kanade Adv Ms. P.R. Mala Adv Ms. Syed Mazag Andrabi Adv.for Mr. Rajnish Prasad Adv 2 Mr. Arun R. Pednekar Adv Mr. Sanjay Kharde Adv.for Ms. Asha Gopalan Nair Adv Mr. Jayant Bhushan Sr. Adv Mr.Jitendra Kumar Adv UPON hearing counsel the Court made the following O R D E R Leave granted The Appeals are allowed in terms of the signed In view of the order passed in the appeals no orders need be passed on the application for intervention and it is disposed of accordingly (Indu Satija Court Master Court Master No.7022 2009 Sudhir Bhaskarrao Tambe ..Appellant versus Hemant Yashwant Dhage & Others ..Respondents WITH CRIMINAL APPEAL NO. 767 OF 2010 No.72109 O R D E R Leave granted These Two Appeals have been filed against the common impugned judgment of the High Court of Bombay dated September 08 2009 The facts in detail have been set out in the and appointed a Special Investigating Officer to impugned judgment and hence we are not repeating the same By the impugned order the Bombay High Court has in paragraph 9 of its order changed the Investigating Officer investigate into the alleged offence This Court has held in Sakiri Vasu vs. State of U.P Others reported in AIR 2008 SC 907 that if a person has a grievance that his F.I.R. has not been registered by the police or having been registered proper investigation is not being done then the remedy of the aggrieved person is 2 not to go to the High Court under Article 226 of the Constitution of India but to approach the concerned Magistrate under Section 156(3) Cr.P.C.. If such an application under Section 156(3) Cr.P.C. is made and the Magistrate is prima facie satisfied he can direct the F.I.R. to be registered or if it has already been registered he can direct proper investigation to be done which includes in his discretion if he deems it necessary recommending change of the Investigating Officer so that a proper investigation is done in the matter. We have said this in Sakiri Vasu’s case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation We are of the opinion that if the High Courts entertain such writ petitions then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence we have held that the complainant must avail of his alternate remedy to approach the concerned Magistrate under Section 156(3) Cr.P.C. and if he does so the Magistrate will ensure if prima facie he is satisfied registration of the first information report and also ensure a proper 3 investigation in the matter and he can also monitor the In view of the settled position in Sakiri Vasu’s case(supra) the impugned judgment of the High Court cannot be sustained and is hereby set aside. The concerned Magistrate is directed to ensure proper investigation into the alleged offence under Section 156(3) Cr.P.C. and if he deems it necessary he can also recommend to the S.S.P. S.P. concerned change of the Investigating Officer so that a proper investigation is done. The Magistrate can also monitor the investigation though he cannot himself investigate (as investigation is the job of the police Parties may produce any material they wish before the concerned Magistrate. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court The Appeals are allowed in the above terms In view of the aforesaid order no orders need be passed on the application for intervention and it is disposed of accordingly ...........................J [MARKANDEY KATJU NEW DELHI ...........................J APRIL 12 2010 [A.K. PATNAIK

Compromise Deed- No further Proceedings to be Conducted: High Court of Shimla

If the parties had compromised the matter vide Compromise Deed, then no purpose would be served by keeping the proceedings alive. This remarkable judgement was passed by High Court of Shimla in the case of Rohit Kumar & anr. v. State of H.P. and anr. [Cr. MMO No. 143 of 2021] by The Hon’ble Mr. Justice Chander Bhusan Barowalia. The petition, under Section 482 of the Code of Criminal Procedure had been maintained by the petitioners for quashing of F.I.R No. 360, dated 26.09.2020, under Sections 324, 323, 504 and 34 of the Indian Penal registered at Police Station Sadar-Una, District Una, H.P., the complainant, wherein that the accused persons are his brothers and he was living separately from them, but on one pretext or the other his brothers keep harassing his family, they made allegations against his wife that she took their 700/- Rupees. The petitioners also abused his wife and when he reached at the spot and asked what is going on, the petitioners attacked him with “Darat”, owing to which, he sustained injuries. However, now the parties had compromised the matter and in order to maintain their relations cordial, they do not want to pursue the case against each other. The petitioners had argued that as the parties had compromised the matter vide Compromise Deed, no purpose would be served by keeping the proceedings alive, hence, the FIR, along with consequent proceedings, may be quashed and set aside. The council referred the case of B.S. Joshi and others vs. State of Haryana and another, held that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, section 320 would not be a bar to the exercise of power of quashing. In Preeti Gupta and another vs. State of Jharkhand and another, held that the ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. In Jitendra Raghuvanshi and others vs. Babita Raghuvanshi and another, and in Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur and others vs. State of Gujarat and another have held that criminal proceedings or FIR or complaint can be quashed under section 482 Cr.P.C. The court opinioned that, ‘the fact that the parties have arrived at compromise vide Compromise Deed and do not want to proceed further with the case in order to maintain their relations cordial, I find that the interest of justice would be met, in case, the proceedings are quashed.’

Hig h C o urt of H.P on 20 03 HCHP 1IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLACr. MMO No. 1421Decided on: 19.03.2021 _________________________________________________________Rohit Kumar & anr. …..PetitionersVersusState of H.P. and anr. Respondents_______________________________________________________________CoramThe Hon ble Mr. Justice Chander Bhusan Barowalia Judge.1 Whether approved for reporting Yes. For the petitioners: Ms. Leena Guleria Advocate. For the respondents: Mr. S.C. Sharma and Mr. P.K. Bhatti Addl. AGs for respondentNo. 1. Mr. Lalit K. Sehgal Advocate for respondent No. 2. ____________________________________________________________Chander Bhusan Barowalia JudgeThe instant petition under Section 482 of theCode of Criminal Procedurehas been maintained by the petitioners for quashingof F.I.R No. 360 dated 26.09.2020 under Sections 324 323 504 and 34 of the Indian Penal Coderegistered at Police Station Sadar Una District Una H.P. alongwith all consequent proceedings arising out of thesaid F.I.R. pending before the learned trial Court.2.Briefly stating the facts giving rise to the presentpetition are that on 26.09.2020 the complainantmade a complaint to the police wherein it hasbeen alleged that the accused persons are his brothers and heis living separately from them but on one pretext or the otherhis brothers keep harassing his family and today they madeallegations against his wife that she took their 700 Rupees.As per the complainant the petitioners also abused his wifeand when he reached at the spot and asked what is going on the petitioners attacked him with “Darat” owing to which hesustained injuries. On the complaint of complainant F.I.R No.360 dated 26.09.2020 under Sections 324 323 504 and 34of IPC came to be registered against the petitioners.However now the parties have compromised the matter andin order to maintain their relations cordial they do not want topursue the case against each other. Hence the presentpetition. 3.Ms. Leena Guleria learned counsel for thepetitioners has argued that as the parties have compromisedthe matter vide Compromise Deednopurpose will be served by keeping the proceedings alive hence the FIR alongwith consequent proceedings arising outof the same pending before the learned trial Court may bequashed and set aside. 4.Mr. Lalit K. Sehgal learned counsel appearing onbehalf of respondent No. 2 has argued that the present Hig h C o urt of H.P on 20 03 HCHP 3petition may be allowed in view of the compromise arrived atbetween the parties.5.Learned Additional Advocate General has arguedthat taking into consideration the offence committed by thepetitioners the present petition deserves dismissal. 6.To appreciate the arguments of learned counselappearing on behalf of the parties I have gone through theentire record in detail.7. Their Lordships of the Hon’ble Supreme CourtB.S. Joshi and others vs. State of Haryana and another4 SCC 675 have held that if for the purpose ofsecuring the ends of justice quashing of FIR becomesnecessary section 320 would not be a bar to the exercise ofpower of quashing. It is well settled that the powers undersection 482 have no limits. Of course where there is morepower it becomes necessary to exercise utmost care andcaution while invoking such powers. Their Lordships have heldas under:[6] In Pepsi Food Ltd. and another v. Special JudicialMagistrate and others5 SCC 749) this Courtwith reference to Bhajan Lal s case observed that theguidelines laid therein as to where the Court willexercise jurisdiction under Section 482 of the Codecould not be inflexible or laying rigid formulae to befollowed by the Courts. Exercise of such power woulddepend upon the facts and circumstances of eachcase but with the sole purpose to prevent abuse ofthe process of any Court or otherwise to secure theends of justice. It is well settled that these powershave no limits. Of course where there is morepower it becomes necessary to exercise utmost care Hig h C o urt of H.P on 20 03 HCHP 4and caution while invoking such powers.[8] It is thus clear that Madhu Limaye s casedoes not lay down any general proposition limitingpower of quashing the criminal proceedings or FIR orcomplaint as vested in Section 482 of the Code orextraordinary power under Article 226 of theConstitution of India. We are therefore of the viewthat if for the purpose of securing the ends ofjustice quashing of FIR becomes necessary Section320 would not be a bar to the exercise of power ofquashing. It is however a different matterdepending upon the facts and circumstances of eachcase whether to exercise or not such a power.[15] In view of the above discussion we hold thatthe High Court in exercise of its inherent powers canquash criminal proceedings or FIR or complaint andSection 320 of the Code does not limit or affect thepowers under Section 482 of the Code.8. Their Lordships of the Hon’ble Supreme Court inPreeti Gupta and another vs. State of Jharkhand andanother 7 SCC 667 have held that the ultimateobject of justice is to find out the truth and punish the guiltyand protect the innocent. The tendency of implicating thehusband and all his immediate relations is also notuncommon. At times even after the conclusion of the criminaltrial it is difficult to ascertain the real truth. Experiencereveals that long and protracted criminal trials lead torancour acrimony and bitterness in the relationship amongstthe parties. The criminal trials lead to immense sufferings forall concerned. Their Lordships have further held thatpermitting complainant to pursue complaint would be abuseof process of law and the complaint against the appellantswas quashed. Their Lordships have held as under: Hig h C o urt of H.P on 20 03 HCHP 5[27] A three Judge Benchof thisCourt in Inder Mohan Goswami and Another v. Stateof Uttaranchal & Others 2007 12 SCC 1comprehensively examined the legal position. Thecourt came to a definite conclusion and the relevantobservations of the court are reproduced in para 24of the said judgment as under: "Inherent powers under section 482 Cr.P.C.though wide have to be exercised sparingly carefully and with great caution and only when suchexercise is justified by the tests specifically laiddown in this section itself. Authority of the courtexists for the advancement of justice. If any abuseof the process leading to injustice is brought to thenotice of the court then the Court would bejustified in preventing injustice by invokinginherent powers in absence of specific provisions inthe Statute."[28] We have very carefully considered theaverments of the complaint and the statements ofall the witnesses recorded at the time of the filingof the complaint. There are no specific allegationsagainst the appellants in the complaint and none ofthe witnesses have alleged any role of both theappellants.[35] The ultimate object of justice is to find outthe truth and punish the guilty and protect theinnocent. To find out the truth is a herculean task inmajority of these complaints. The tendency ofimplicating husband and all his immediate relationsis also not uncommon. At times even after theconclusion of criminal trial it is difficult to ascertainthe real truth. The courts have to be extremelycareful and cautious in dealing with thesecomplaints and must take pragmatic realities intoconsideration while dealing with matrimonial cases.The allegations of harassment of husband s closerelations who had been living in different cities andnever visited or rarely visited the place where thecomplainant resided would have an entirelydifferent complexion. The allegations of thecomplaint are required to be scrutinized with greatcare and circumspection. 36. Experience reveals that long and protractedcriminal trials lead to rancour acrimony andbitterness in the relationship amongst the parties.It is also a matter of common knowledge that incases filed by the complainant if the husband or thehusband s relations had to remain in jail even for afew days it would ruin the chances of amicablesettlement altogether. The process of suffering isextremely long and painful.[38] The criminal trials lead to immensesufferings for all concerned. Even ultimate acquittalin the trial may also not be able to wipe out the Hig h C o urt of H.P on 20 03 HCHP 6deep scars of suffering of ignominy. Unfortunately alarge number of these complaints have not onlyflooded the courts but also have led to enormoussocial unrest affecting peace harmony andhappiness of the society. It is high time that thelegislature must take into consideration thepragmatic realities and make suitable changes inthe existing law. It is imperative for the legislatureto take into consideration the informed publicopinion and the pragmatic realities in considerationand make necessary changes in the relevantprovisions of law. We direct the Registry to send acopy of this judgment to the Law Commission andto the Union Law Secretary Government of Indiawho may place it before the Hon ble Minister forLaw & Justice to take appropriate steps in the largerinterest of the society.9.Their Lordships of the Hon’ble Supreme Court inJitendra Raghuvanshi and others vs. BabitaRaghuvanshi and another 4 SCC 58 have held thatcriminal proceedings or FIR or complaint can be quashedunder section 482 Cr.P.C. in appropriate cases in order to meetends of justice. Even in non compoundable offences pertainingto matrimonial disputes if court is satisfied that parties havesettled the disputes amicably and without any pressure thenfor purpose of securing ends of justice FIR or complaint orsubsequent criminal proceedings in respect of offences can bequashed. Their Lordships have held as under:[13] As stated earlier it is not in dispute thatafter filing of a complaint in respect of the offencespunishable under Sections 498A and 406 of IPC theparties in the instant case arrived at a mutualsettlement and the complainant also has sworn anaffidavit supporting the stand of the appellants.That was the position before the trial Court as wellas before the High Court in a petition filed underSection 482 of the Code. A perusal of the impugnedorder of the High Court shows that because themutual settlement arrived at between the parties Hig h C o urt of H.P on 20 03 HCHP 7relate to non compoundable offence the courtproceeded on a wrong premise that it cannot becompounded and dismissed the petition filed underSection 482. A perusal of the petition before theHigh Court shows that the application filed by theappellants was not for compounding of non compoundable offences but for the purpose ofquashing the criminal proceedings.[14] The inherent powers of the High Court underSection 482 of the Code are wide and unfettered. InB.S. Joshi this Court has upheld the powers of theHigh Court under Section 482 to quash criminalproceedings where dispute is of a private natureand a compromise is entered into between theparties who are willing to settle their differencesamicably. We are satisfied that the said decision isdirectly applicable to the case on hand and the HighCourt ought to have quashed the criminalproceedings by accepting the settlement arrived at.[15] In our view it is the duty of the courts toencourage genuine settlements of matrimonialdisputes particularly when the same are onconsiderable increase. Even if the offences are non compoundable if they relate to matrimonialdisputes and the court is satisfied that the partieshave settled the same amicably and without anypressure we hold that for the purpose of securingends of justice Section 320 of the Code would notbe a bar to the exercise of power of quashing ofFIR complaint or the subsequent criminalproceedings.[16] There has been an outburst of matrimonialdisputes in recent times. The institution of marriageoccupies an important place and it has an importantrole to play in the society. Therefore every effortshould be made in the interest of the individuals inorder to enable them to settle down in life and livepeacefully. If the parties ponder over their defaultsand terminate their disputes amicably by mutualagreement instead of fighting it out in a court oflaw in order to do complete justice in thematrimonial matters the courts should be lesshesitant in exercising its extraordinary jurisdiction.It is trite to state that the power under Section 482should be exercised sparingly and withcircumspection only when the court is convinced onthe basis of material on record that allowing theproceedings to continue would be an abuse of theprocess of the court or that the ends of justicerequire that the proceedings ought to be quashed.We also make it clear that exercise of such powerwould depend upon the facts and circumstances ofeach case and it has to be exercised in appropriatecases in order to do real and substantial justice forthe administration of which alone the courts exist.It is the duty of the courts to encourage genuine Hig h C o urt of H.P on 20 03 HCHP 8settlements of matrimonial disputes and Section482 of the Code enables the High Court and Article142 of the Constitution enables this Court to passsuch orders.[17] In the light of the above discussion we holdthat the High Court in exercise of its inherentpowers can quash the criminal proceedings or FIRor complaint in appropriate cases in order to meetthe ends of justice and Section 320 of the Codedoes not limit or affect the powers of the High Courtunder Section 482 of the Code. Under thesecircumstances we set aside the impugnedjudgment of the High Court dated 04.07.2012passed in M.C.R.C. No. 28712 and quash theproceedings in Criminal Case No. 41611pending on the file of Judicial Magistrate Class I Indore.”10.Similarly Hon’ble Supreme Court in ParbatbhaiAahir alias Parbatbhai Bhimsinhbhai Karmur and othersvs. State of Gujarat and another 9 SupremeCourt Cases 641 wherein it has been held as under :“16.The broad principles which emerge from theprecedents on the subject may be summarised inthe following propositions: 16.1. Section 482 preserves the inherent powers ofthe High Court to prevent an abuse of the processof any court or to secure the ends of justice. Theprovision does not confer new powers. It onlyrecognises and preserves powers which inhere inthe High Court 16.2. The invocation of the jurisdiction of the HighCourt to quash a First Information Report or acriminal proceeding on the ground that asettlement has been arrived at between theoffender and the victim is not the same as theinvocation of jurisdiction for the purpose ofcompounding an offence. While compounding anoffence the power of the court is governed by theprovisions of Section 320 of the Code of CriminalProcedure 1973. The power to quash underSection 482 is attracted even if the offence is non compoundable.16.3. In forming an opinion whether a criminalproceeding or complaint should be quashed inexercise of its jurisdiction under Section 482 theHigh Court must evaluate whether the ends ofjustice would justify the exercise of the inherentpower 16.4 While the inherent power of the High Court Hig h C o urt of H.P on 20 03 HCHP 9has a wide ambit and plenitude it has to beexercised to secure the ends of justice ortoprevent an abuse of the process of any court 16.5 The decision as to whether a complaint orFirst Information Report should be quashed on theground that the offender and victim have settledthe dispute revolves ultimately on the facts andcircumstances of each case and no exhaustiveelaboration of principles can be formulated 16.6. In the exercise of the power under Section482 and while dealing with a plea that the disputehas been settled the High Court must have dueregard to the nature and gravity of the offence.Heinous and serious offences involving mentaldepravity or offences such as murder rape anddacoity cannot appropriately be quashed thoughthe victim or the family of the victim have settledthe dispute. Such offences are truly speaking notprivate in nature but have a serious impact uponsociety. The decision to continue with the trial insuch cases is founded on the overriding element ofpublic interest in punishing persons for seriousoffences 16.7. As distinguished from serious offences theremay be criminal cases which have anoverwhelming or predominant element of a civildispute. They stand on a distinct footing in so faras the exercise of the inherent power to quash isconcerned 16.8. Criminal cases involving offences which arisefrom commercial financial mercantile partnershipor similar transactions with an essentially civilflavour may in appropriate situations fall forquashing where parties have settled the dispute 16.9 In such a case the High Court may quash thecriminal proceeding if in view of the compromisebetween the disputants the possibility of aconviction is remote and the continuation of acriminal proceeding would cause oppression andprejudice and16.10. There is yet an exception to the principleset out in propositions 16.8 and 16.9 above.Economic offences involving the financial andeconomic well being of the state have implicationswhich lie beyond the domain of a mere disputebetween private disputants. The High Court wouldbe justified in declining to quash where theoffender is involved in an activity akin to afinancial or economic fraud or misdemeanour. Theconsequences of the act complained of upon thefinancial or economic system will weigh in thebalance.Even if the trial is allowed to be continued as theparties have compromised the matter there are bleak chances Hig h C o urt of H.P on 20 03 HCHP 10of conviction to secure the ends of justice. 11.Thus taking into consideration the law as discussedhereinabove and the the fact that the parties have arrived atcompromise vide Compromise Deedand do notwant to proceed further with the case in order to maintain theirrelations cordial I find that the interest of justice would be met in case the proceedings are quashed.12.Accordingly looking into all attending facts andcircumstances this Court finds that present is a fit case toexercise jurisdiction vested in this Court under Section 482 ofthe Code and therefore the present petition is allowed and F.I.RNo. 360 dated 26.09.2020 under Sections 324 323 504 and 34of IPC registered at Police Station Sadar Una District Una H.P. is ordered to be quashed. Since F.I.R No. 360 dated 26.09.2020 under the aforesaid Sections has been quashed consequentproceedings arising out of the said F.I.R. pending before thelearned trial Court are thereby rendered infructuous. 13. The petition is accordingly disposed of alongwithpending applications if any.

Section 8 of the Transfer of Property Act states that ownership and title in property pass to the transferee under the terms and circumstances of the deed of conveyance: Tripura High Court

On a transfer of property, all the interests which the transferor has or he was having at that time, capable of passing to, pass on such transfer unless a different intention is expressed or necessarily implied. Further, section 8 and section 54 of the Transfer of Property Act suggests that through execution and registration of a sale deed, the ownership and all interest in property shall pass to the transferee and that would be on terms and conditions embodied in the deed indicating the intention of the parties. The judgement was passed by the High Court of Tripura in the case of Sri Parimal Ghosh & Ors v. Sri Nandalal Ghosh & Ors [RFA 18/2015] by Division Bench consisting of Hon’ble Justice S. Talapatra & Justice S.G. Chattopadhyay. The said suit was instituted for declaration of right, title, interest and cancellation of sale deed, recovery of possession, perpetual injunction and mesne profit under Section 96 of the CPC. Learned counsel for the appellant has submitted that inference, as drawn by the civil judge in respect of payment of consideration money, is grossly unsustainable in view of the fact that those defendants have proved that such payment was made. Thus, “Section 25 of the Indian Contract Act will have no application in the facts as emerged. It has been dis-proved that the claim of payment of consideration money is a hoax.” Learned counsel for the respondent to repel the submission advanced counsel, has stated that the incidence of payment of consideration money to the extent of Rs.10,00,000/- to the defendants has not at all been proved. No prudent person shall believe such a hoax. According to learned counsel, there is no legal evidence to prove the claim of payment of consideration money for transferring the land in schedules B(i), B(ii), B(iii) and B(iv).

HIGH COURT OF TRIPURA RFA 18 2015 1. Sri Parimal Ghosh son of Late Prafulla Ghosh. 2. Sri Bimal Ghosh. son of Late Prafulla Ghosh. 3. Sri Shyamal Ghosh. son of Late Prafulla Ghosh. 4. Smti Swapna Rani Ghosh W O. Sri Parimal Ghosh. All are resident of Village Karayiamura P.S. R.K. Pur P.O. R.K. Pur District Gomati Tripura. Appellant(s) 1. Sri. Nandalal Ghosh S O. Late Sashi Kr. Ghosh. 2. Sri Sanjit Ghosh S o. Sri Nandalal Ghosh. Both are resident of Village Karayiamura P.S. R.K. Pur P.O. R.K. Pur District Gomati 3. Sri Himangshu Ghosh S o. Late Krishna Ghosh. 4. Sri Nirmal Kanti Ghosh S o. Late Jamini Ghosh. Both are resident of Village Karayiamura P.S. R.K. Pur P.O. R.K. Pur District Gomati Respondent(s) For Petitioner(s) Mr. P Chakraborty Advocate For Respondent(s) Mr. D Bhattacharya Advocate Whether fit for reporting Date of hearing Date of pronouncement NO 06.06.2021 13.06.2021 HON BLE MR. JUSTICE S. TALAPATRA HON BLE MR. JUSTICE S.G. CHATTOPADHYAY JUDGMENT & ORDER Talapatra J. This appeal under Section 96 of the CPC arises from the judgment dated 29.09.2015 delivered in T.S. No.39 of 2013 by the Civil Judge Sr. Div. Gomati District Udaipur. The said suit was instituted for declaration of right title interest and cancellation of sale deed recovery of possession perpetual injunction and mesne profit. The respondent No.1 hereinafter referred to as the plaintiff No.1 became the owner of the suit land mentioned in the Schedule “A” of the plaint measuring 1.60 acre by way of allotment made by the Collector under Section 14 of the TLR & LR Act. The Plaintiff No.1 had executed a General Power of Attorney in favour of his son the plaintiff No.2 vesting authority upon him to do all acts on his behalf over his properties including the suit land]. The plaintiff No.1 started possessing the suit land in the year 1967 though the allotee Khatian was opened in his name in the year 1975. Taking advantage of his absence from the suit land his brother Prafulla Kumar Ghosh recorded his possession over 0.72 acres of land in the allottee Khatian. The defendant No.6 did the same act over the land measuring 0.0161 acre. In the year 1993 the plaintiff left the suit land for Kolkata authorising Sri Priyalal Ghosh to look after the land. From the year 2006 being advised by Sri Priyalal Ghosh the plaintiff No.1 raised Rubber plantation within 0.40 acre of the “A” Schedule land. In that year Sri Priyalal Ghosh informed the plaintiff No.1 to appoint any other person to assist him in looking after the property of the plaintiff No.1. The plaintiff No.1 having regard to that request requested his nephews the defendants No. 1 to 3 to assist Sri Priyalal Ghosh and the said defendants suggested the plaintiff No.1 to appoint the defendant No.5 as his Attorney for looking after the property and to do all the acts on his behalf and accordingly the Plaintiff No.1 appointed the defendant No.5 as his Attorney in respect of the land measuring 0.80acres within the “A” schedule land after executing a Registered Deed of Power of Attorney bearing No.IV 2 dated 05.01.2007. In the year 2012 the plaintiff No.1 returned to the suit land and appointed his son as his attorney and demanded the Deed of Power of Attorney from the defendant No.5 but the defendant No.5 did not return the said Power of Attorney. In the first week of January 2013 the defendant No.5 disclosed to the plaintiff No.2 that under tremendous pressure from the husband and her husband‟s brothers i.e. the defendants No. 1 to 3 she was compelled to execute three sale deeds in their favour without payment of consideration amount. As stated by the plaintiff for executing such sale deeds no prior sanction of the plaintiff No.1 was taken. The plaintiff also pleaded that though it was mentioned in the sale deed that a total sum of Rs.10 00 000 was given for purchasing 0.80 acre of land but such consideration amount was actually not paid and the defendants No.1 to 3 had no source of income for earning such huge amount and so the plaintiff No.1 prayed to declare those Sale Deeds vide No. 1 1932 1 1933 and 1 1934 dated 26.09.2012 as void. The plaintiff No.1 cancelled the Deed of Power of Attorney dated 05.01.2007 and on 01.08.2013 the fact of cancellation was informed to the defendant No.5. The plaintiff No.1 has also contended that the defendants No. 1 to 3 dispossessed the plaintiff No.1 from the land described in Schedule “B(i) to “B(iii)” respectively on 13.06.2013 which are the part and parcel of the “A” Schedule land and on the same date the defendant No.6 also dispossessed the plaintiff No.1 from the schedule “B(iv)” land of the plaint. However the plaintiffs are in exclusive possession of “C” schedule land but there is threat from the defendants No. 1 to 3 and the defendant No.6 that they shall occupy the land forcibly. Thus a prayer for granting injunction has been made against the defendants. The plaintiff No.1 us ed to derive income of Rs.4 000 from each piece of land mentioned in the schedule B(i) B(ii) B(iii) and B(iv) and so the plaintiff No.1 is entitled to get mesne profit from the defendants till the date of dispossession till the date of recovery. Hence the suit was The defendants having received the summon filed the written statement and denied the facts relating to the transfer of property as alleged to have been made in connivance. Even the record of rights was opened on the basis of those sale deeds but no notice was received by the plaintiff No.1 as the owner. Thus it appeared to the plaintiff No.1 that the „Settlement staffs‟ were hand in gloves. It has been contended in the written statement that the plaintiff No.1 with a view to sell out his share within the suit land measuring 0.80 acres took consideration amount of Rs.10 00 000 from the defendants No. 1 to 3 and executed a deed of power of attorney in favour of the wife of the defendant No.1 i.e. the defendant No.5 to execute deeds of sale in his absence whenever it is required by the defendants. Accordingly deeds of sale on behalf of the plaintiff No.1 were registered in favour of the defendants No. 1 to 3. It has been also contended that the defendants were always in possession of the suit land and to get the entry in the ROR corrected which entry till then stood in the name of the plaintiff No.1 the defendants requested the plaintiff No.1 to execute the deed of sale in favour of the defendants No. 1 to 3. the plaintiff had demanded Rs.1 50 000 defendants for transferring the share in their name. However the defendants handed over Rs.50 000 on the day of execution of the unregistered agreement for sale with a condition that the rest amount of Rs.1 00 000 would be handed over to the Plaintiff No.1 after execution of the deed of sale. But in spite of repeated requests by the defendants the plaintiff No.1 denied to execute any deed of sale in favour of the defendants No. 1 to 3. Having examined the rival pleadings the following issues were framed: i) Whether the suit is maintainable in its present from and nature ii) Is the plaintiff No.1 eneitlted to get his right title and interest over the “A” Schedule land iii) Are the plaintiffs entitled to get a declaration over the Sale Deeds bearing No. 1 1932 101933 1 934 dated 26.09.2012 executed by the defendant No.5 on behalf of the plaintiff No.1 in favour of the defendant No. 1 to 3 are invalid void and inoperative iv) Are the plaintiffs entitled to get a decree to recover possession of the “B(i)” “B(ii)” “B(iii)” and “B(iv)” schedules of the plaint by evicting the defendants No. 1 to 4 there from v) Are the plaintiffs entitled to get a decree of perpetual injunction restraining the defendants No. 1 to 4 from entering into the “C” schedule land vi) Are the plaintiffs entitled to get mesne profit from the date of their dispossession till recovery of possession of the land described in the Schedule “B” and the same is to be paid by the defendants No. 1 to 4 proportionately to the plaintiff No.1 vii) Whether the plaintiffs are entitled to get any other relief reliefs The plaintiff in order to prove his case admitted documentary evidence and adduced and examined other witnesses. The defendants adduced four witnesses and also admitted some documents. After the evidence was recorded the civil Judge having appreciated the evidence as recorded at the instance of the parties has observed that unlawful possession of the land mentioned in schedule “B(iv)” of the plaint and in some portions of the plaint it is mentioned that the defendant No.6 namely Sri. Nirmal Kanti Ghosh is in the unlawful possession of the said property. The defendants have also in the written statement stated that the defendant No.4 is in occupation of the said scheduled property but in the last part of the written statement it has been admitted by the defendants that the defendant No.6 is in possession of the said property and the defendant No.4 has been unnecessarily added as the defendant in the suit. Thus the issue No.1 was decided in favour of the plaintiff. While deciding issue No.iii the civil judge has returned the finding having regard to the sale deeds bearing No. 1 1931 1 1933 and 1 1934 dated 06.09.2012 as executed by the defendant No.5 for and behalf of the plaintiff No.1. The civil judge has observed thatthe defendant No.5 sold out the land without prior sanction of the plaintiff No.1 andthe defend ant No.5 sold out the said land without any consideration money to the defendants No.1 to 3. Learned counsel for the defendants has submitted that the power of attorney was executed by the plaintiff No. 1 so that the defendant No.5 can execute the sale deeds in favour of the defendants No.1 to 3 in absence of the plaintiff No.1 as per the prior oral agreement which was entered into prior to execution of the power of attorney dated 05.01.2007. The sum of Rs. 10 00 000 was paid as consideration money to the plaintiff No.1 by the defendants No. 1 to 3. It appeared to the civil judge on perusal of the power of attorney dated 05.01.2007 that plaintiff No.1 had authorised the defendant No.5 to sell out his property to anyone or any institution after bargaining the price and she was authorized to transfer the land to anyone by completing the required process. Nowhere in the power of attorney it has been mentioned that for transferring the property of the plaintiff No.1 prior consent was to be taken by the defendant No.5. So the argument of prior consent as made by the learned counsel for the plaintiff has not been considered tenable by the civil judge. From perusal of the records it surfaces that the plaintiff No.1 executed the power of attorney in favour of the defendant No.5. Simultaneously it can be located that said power of attorney was executed at the suggestion of the nephews of the plaintiff No.1. But the plaintiff No.1 has flatly Rs.10 00 000 to him by the defendants No. 1 to 3. The defendants did not submit any money receipt in respect of payment of such consideration amount of Rs.10 00 000 . The defendants No. 1 to 3 have submitted that since there existed a cordial relation between the defendants No. 1 to 3 and the plaintiff No.1 no money receipt was taken. But during cross examination of DW1 it has been admitted that on the date of execution of the power of attorney one unregistered sale of agreement was executed relating to the ‘shares of the defendants No. 1 to 3’ by operation of which the plaintiff No.1 was to execute sale deeds in favour of those defendants. The civil judge had recorded the following finding on further appreciation of the evidence: “Gene rally when an amount like Rs.10 00 000 is handed over being a conside ration amount of an Agreeme nt a pe rson having common prudence shall take a money receipt of the same. But surprisingly though the defendants No. 1 to 3 took money receipt for payme nt of Rs. 50 000 from the plaintiff No.1 did not ta ke money receipt for payment of Rs.10 00 000 . So it is very difficult to be lieve that prior to execution of Sale Deeds consideration amount was paid.” Emphasis added] The civil judge has taken note of the admission made by DW1 DW2(Smt. Swapna Rani Ghosh) and DW4that on the day of execution and registration of the sale deeds no consideration amount was paid. Even the attorney namely Smt. Swapna Rani Ghosh admitted that she took no consideration amount from Sri Shyamal Ghosh Shri Bimal Ghosh or Shri Parimal Ghosh i.e. defendants No. 1 2 and 3 in the suit. Thus the civil judge has observed that it is highly improbable that the sale deeds were executed on payment of consideration amount and so the contention of the defendants that they paid the consideration amount to the plaintiff No. 1 cannot be relied on. Having regard to Section 25 of the Indian Contract Act the civil judge has observed that since no consideration was paid transfer of the land as stated above is void. The defendants No. 1 2 and 3 even though have claimed that they have paid consideration amount of Rs.10 00 000 to the plaintiff No.1 but they have failed to prove such payment in the transaction. As a result the sale deeds are void and inoperative for all purposes. Even though the defendant No.5 Smt. Swapna Rani Ghosh had authority to sell out those immovable properties but such sale without consideration money has not only affected the interest of the plaintiff No. 1 adversely but also made the transaction void even though the transaction was carried out by the registered sale deeds as noted before. One of the important observations made by the civil judge reads as follows: “Moreover no date time and place of such payment of conside ration amount is mentioned by the defe ndants. There is no explanation from the side of the defe ndants why the deeds of sale were not executed on the date of payment of allege d conside ration amount and why those we re executed after five years of execution of the power of attorney deed. Thus again appreciation goes in favour of the plaintiffs in this respect.” Finally the civil judge has held that it has been proved by the plaintiffs that no consideration amount was paid in refund to the alleged transfer of property made by the attorney of the plaintiff No.1. Under these circumstances the transfers of lands being made without consideration by the deeds of s ale being 1 1932 1 1933 and 1 1934 dated 26.09.2015 are liable to the cancelled and if those instruments are left outstanding those may cause serious injuries to the plaintiffs in future. Hence those are directed to be shown as cancelled in the book by the District Sub Registrar. On the aspect of mutation of record of rights by virtue of those sale deeds the civil judge while deciding the issue No.2 having referred to the schedule of the plaint has observed that schedule A land appertains to RS Khatian No. 363 comprised RS Plot No.1517 RS Plot No. 1519 RS Plot No.1520 and RS Plot No.1521 and within the plots there situate land measuring 1.60 acres. Khatian No. 363 shows that the said khatian is the record of right of the A scheduled land. As per the khatian the suit land was admitted in the name of Shri Nandalal Ghosh i.e. the plaintiff No. 1 and still he is the owner of the land being the allottee. The contention of the defendants that actually the land mentioned in the schedule A land was under the occupation of the plaintiff No.1 and his brother Prafulla Kumar Ghosh who is the predecessors in interest of the defendants No. 1 2 and 3 is not borne in any record. But the plaintiff No. 1 being an influential person had in connivance with the settlement staff got one allotment khatian created in his favour. The record of rights has a presumptive value. Thus there cannot be any difficulty to hold that the entire A schedule land was allotted in favour of the plaintiff No. 1. It has been observed by the civil judge that the plaintiff No. 1 is the title holder of the land. The issue No. iv framed on the aspect of unlawful possession as stated by the plaintiff. Schedules B(i) to schedule B(iv) according to the plaintiffs were under wrongful possession of the defendants No. 1 2 3 and 6. According to the defendants No. 1 2 and 3 their father namely Prafulla Kumar Ghosh was in possession of the suit property appertaining to RS plot No. 1517 measuring 0.72 acres. After his death the defendants No. 1 to 3 and defendant No. 5 being his wife are in occupation of the land. Records related to schedule B(i) Schedule B(ii) and Schedule B(iii) land have demonstrated that the defendants No. 1 to 3 were in possession of the total land measuring 0.74 acre. A small piece of land measuring 0.02 acre is in access of the land mentioned in the Khatian. There is no doubt or dispute that the entire suit land described in the Schedule A was allotted to the plaintiff No. 1 in the year 1975 and hence the plaintiff No. 1 had no right to transfer the said land without prior permission of the Collector. Hence the defendants No. 1 to 3 and defendant No. 6 are liable to be evicted for their respective occupations over the suit land. The civil judge has also granted perpetual injunction against the defendants in respect of the C schedule land which is part and parcel of A schedule land as that C schedule land is still under occupation of the plaintiffs. Thus the defendants have been refrained from disturbing the possession of the plaintiffs. The civil judge has referred a decision of this Court in Haradhan Choudhury and Ors. Vs. Barada Kumar Sen and Ors reported in1 TLR 525 as regards the mesne profit. Such relief can only be granted on the basis of the cogent evidence laid before the court. Mere bald statement of the plaintiff cannot entitle ipse dixit the plaintiff mesne profit unless such claim is supported by reliable evidence. Finally the civil judge has declared that: a) The plaintiff No. 1 has right title and interest over the suit land mentioned in the Schedule A of the plaint appertaining to R.S. Khatian No. 363 having R.S. Plot No. 1517 land measuring 0.72 acres R.S. Plot No. 1519 land measuring 0.20 acres R.S.Plot No. 1520 land measuring 0.52 acres and R.S. Plot No. 1521 land measuring 0.16 acres in total the land measuring 1.60 acres under Tehsil Bagma Mouja Kariayamura being an allottee b) The registered deeds of sale bearing Nos. 1 1932 1 1933 and 1 1934 all dated 26.09.2012 executed by the defendant No. 5 on behalf of the plakitniff No. 1in favour of the defendants No. 1 to 3 and registered at Sub Registry Office Udaipur Gomati District is void and in operative and liable to be cancelled. The defendants No. 1 to 3 shall deliver and cancel the same with the Sub Registry Office Udaipur Sub Division Gomati District. c) It has been directed that a copy of the judgment and decree be sent to the office of the sub registrar Udaipur Gomati District who shall attest note on the copies of the said instruments contained in his book the fact of their d) The defendants No. 1 to 3 and the defendant No. 6 shall vacate the suit land mentioned in the Schedule B(i) Schedule B(ii) Schedule B(iii) and Schedule B(iv) respectively within a period of thirty days from the date of drawing up of decree and shall hand over the vacant possession of the same to the plaintiff No. 1. The said defendants are also perpetually retrained from entering in to the above mentioned scheduled land after vacation of the e) The defendants No. 1 to 3 and the defendant No.6 are perpetually restrained from entering into the C Schedule land and disturbing the peaceful possession of the plaintiffs Mr. P Chakraborty learned counsel having appeared for the defendants No. 1 to 3 and 5 the appellants herein has submitted that even the plaintiff No. 1 has not disputed that the defendant No. 5 was lawfully constituted attorney of the plaintiff No.1 and the said attorney was authorised to sell the property to any person or any organisation. The defendant No. 5 sold the property to the defendants No. 1 to 3 three sons of Prafulla Ghosh when a sum of Rs.10 00 000 was paid to the plaintiff No. 1 as the consideration. In support thereof Mr. Chakraborty learned counsel has referred to the evidence of DW1 where he had volunteered that transaction of consideration amount was made prior to the execution of those deeds of sale between Shri Nandalal Ghosh and the defendants No. 1 to 3. He has also referred to the statement of DW2 that defendants No. 1 to 3 were in possession of the suit land prior to the execution of the sale deeds and they continued in the said possession. The reference has been made by Mr. Chakraborty learned counsel appearing for the appellants that in the year 2000 while the plaintiff No.1 came to Kariyamura to visit his niece and other relatives then the defendants No. 1 to 3 requested their uncle 1 TLR 213 where this court had occasion to observe that it is settled principle of law that ownership and the title in a property pass on to the transferee under the terms and conditions of the deed of conveyance Section 8 of the Transfer of Property Act declares that on a transfer of property all the interests which the transferor has or he was having at that time capable of passing to pass on such transfer unless a different intention is expressed or necessarily implied. A combined reading of section 8 and section 54 of the Transfer of Property Act suggests that through execution and registration of a sale deed the ownership and all interest in property shall pass to the transferee and that would be on terms and conditions embodied in the deed indicating the intention of the parties. supra) as under: It has been further observed in Rakhi Debbarma “31. Chapte r II of Indian Contract Act 1872 deals with contracts which are voidable contracts and void agreements and all such agreements and contracts that fulfil the requireme nt of section 10 and e ntere d with free consent of the parties or compete nt to contract for a la wful conside ration with lawful object unde r any law relating to the registration is re quire d to be complie d with and considered to be a le gally executable contract unde r the Act.” From the other side Mr. D Bhattcharjee learned counsel in order to repel the submission advanced by Mr. Chakraborty learned counsel has stated that the incidence of payment of consideration money to the extent of Rs.10 00 000 to the defendants No. 1 to 3 has not at all been proved. No prudent person shall believe such hoax. According to Mr. Bhattacharjee learned counsel there is no legal evidence to prove the claim of payment of consideration money transferring the land in the schedules B(i) B(ii) B(iii) and B(iv). The ultimate question that arises in this appeal is whether or not the transaction as reflected in sale deeds bearing No. 1 1932 1 1933 and 1 1934 dated 06.09.2012 are all void and inoperative. Mr. Bhattacharjee learned counsel has further submitted that the civil judge has correctly observed that when for granting advance of Rs.50 000 for entering into an unregistered agreement the defendants No. 1 2 and 3 had realised or obtained a receipt from the plaintiff No. 1 their claim for not obtaining the receipt of payment of consideration amount for cordial relation cannot be believed. It is therefore correctly held that it is not probable that payment of Rs.10 00 000 was made to the plaintiff No.1 as consideration amount. It is also not believable that even after payment of Rs.10 00 000 for purpose of transaction the defendants No. 1 2 and 3 had not taken a receipt. There was no payment at all. That is the reason why the witnesses adduced by the defendants No. 1 2 3 and 5 did not state the date time and place and in whose presence such consideration amount was paid. Hence the civil judge has disbelieved the statements of those defendants as regards the payment of consideration money. Having appreciated the submission made by the learned counsel for the parties this court finds that the land as described in Schedule A could not have been transferred without prior permission of the District Collector as every allotment is made by keeping the control over the land. When the Tripura Land Revenue and Land Reforms Rules 1980 replaced the former Tripura Land Revenue and Land Reforms Rules it became mandatory to obtain the prior permission from the District Collector for transfer of any part of the allotted land. But that aspect of the matter has not been asserted by anyone and that being a statutory requirement not obliged is the other reason to believe that the plaintiff No. 1 had any serious intention to sell the suit land. That apart the inference drawn by the civil judge from the analysis of the evidence as recorded in the trial cannot be faulted with inasmuch as there is no proof how the defendants No. 1 to 3 gathered that huge sum of Rs. 10 00 000 and in whose presence the said amount was paid and or on which date and time such payment was made. It has been also observed that when the defendants No. 1 to 3 paid the earnest money to the extent of Rs.50 000 to the plaintiff No.1 they had obtained the receipt. Hence their plea that for cordial relation no receipt was obtained from the plaintiff No. 1 when they paid the consideration money cannot be acctepted. Hence there is no m erit in this appeal and accordingly the same stands dismissed. Draw the decree accordingly. Thereafter send down the LCRs.

Accused gets an indefeasible right to default bail – Supreme Court

In the case of Saravanan Vs State represented by the Inspector of Police [Arising from S.L.P. (Criminal) Nos.43864387/ 2020] Hon’ble Supreme Court held that the only requirement for getting the default bail/statutory bail under Section 167(2), Cr.P.C. is that the accused is in jail for more than 60 or 90 days. The appellant was arrested and remanded to the judicial custody for the offences punishable under Section 420 of the IPC. The appellant filed an application before the learned Judicial Magistrate seeking bail under Section 437 Cr.P.C. The wife of the appellant filed an affidavit before the learned Magistrate and assured to pay Seven Lakhs of the alleged amount of Rupees Fifteen lakhs Sixty Seven thousand Three hundred thirty eight only. The learned Magistrate released the appellant on bail on the condition to deposit Rupees Seven Lakh in the court and after release pay the remaining amount. Feeling aggrieved and dissatisfied with condition of the order passed by the learned Magistrate releasing the appellant on bail, the appellant approached the High Court. The High Court dismissed the said application with liberty to the appellant to approach the Magistrate Court for any modification and observed that if any modification is required, the same may be considered by the Magistrate. Thereafter, the appellant filed an application before the learned Sessions Court to release the appellant on default bail/statutory bail under Section 167(2), Cr.P.C. The appellant was arrested and remanded for more than 101 days and the investigation was not completed and the police had not filed the final report within the period provided under Section 167 Cr.P.C. The said application came to be dismissed by the learned Sessions Court on the ground that earlier when the appellant applied for regular bail and which was allowed on condition to deposit money in the Court and the same had not been complied with, and despite the liberty reserved by the High Court to approach the Magistrate Court for modification of the conditions, instead of doing so, the appellant had filed an application for default bail/statutory bail under Section 167(2), Cr.P.C., therefore, the learned Sessions Court dismissed the said application. Feeling aggrieved, the appellant approached the High Court and prayed to release the appellant on default bail/statutory bail. It was the case on behalf of the appellant that non-deposit of any amount which was required to be deposited pursuant to the order passed by the learned Magistrate, imposed while releasing the appellant on regular bail under Section 437, Cr.P.C., shall not come in the way of the appellant in getting default bail/statutory bail under Section 167(2), Cr.P.C. High Court had imposed the condition that the appellant shall deposit a sum of Rs.8,00,000/before the learned Magistrate. It was submitted by the appellant that as observed by this Court in catena of decisions, the scheme of Code of Criminal Procedure delineates that provisions of Section 167 Cr.P.C. give due regard to the personal liberty of a person. Without submission of charge sheet within 60 days or 90 days, as may be applicable, an accused cannot be detained by the Police. It was submitted that the conditions imposed by the High Court while releasing the appellant on default bail/statutory bail are against the scheme of Section 167, Cr. P.C. Court observed that, “We are of the opinion that the High Court has committed a grave error in imposing condition that the appellant shall deposit a sum of Rs.8,00,000/while releasing the appellant on default bail/statutory bail. It appears that the High Court has imposed such a condition taking into consideration the fact that earlier at the time of hearing of the regular bail application, before the learned Magistrate, the wife of the appellant filed an affidavit agreeing to deposit Rs.7,00,000/.”

dated 24.06.2020 in Criminal O.P.(MD) No. 6214 of 2020 and passed by the Madurai Bench of the Madras High Court by which the High Court has released the appellant on default bail statutory bail on condition to deposit Rs.8 00 000 ­ before the learned Judicial Magistrate Court No.1 Nagercoil Kanyakumari District the original accused has preferred the seeking bail under Section 437 Cr.P.C. That the wife of the appellant filed an affidavit before the learned Magistrate and assured to pay Rs.7 00 000 ­and the alleged amount of Rs.15 67 338 ­ and the police has not filed the final report within the period allowed on condition to deposit Rs.7 00 000 ­ in the Court and the same has not been complied with and despite the liberty modification of the conditions instead of doing so the appellant has filed an application for default bail statutory bail under Section 167(2) Cr.P.C. therefore the learned Sessions Court amount which was required to be deposited pursuant to the the appellant on regular bail under Section 437 Cr.P.C. shall bail statutory bail under Section 167(2) Cr.P.C. It was submitted that the default bail statutory bail under Section 167(2) Cr.P.C. is mandatory bail provided the conditions in Section 167 Cr.P.C. are satisfied i.e. investigation is not completed and the chargesheet report is not filed by the Cr.P.C. The High Court by the impugned judgment and order dated 24.06.2020 accepted the same however considering the of the learned Magistrate while considering the regular bail application under Section 437 Cr.P.C. i.e. to deposit Rs.7 00 000 ­ while releasing the appellant on default bail statutory bail the High Court has imposed the condition that the appellant shall deposit a sum of Rs.8 00 000 ­ before the learned Magistrate. That thereafter the appellant preferred High Court to modify condition nos. and in Criminal deposit Rs.8 00 000 ­ before the learned Judicial Magistrate and station daily at 10:00 a.m. until further orders for interrogation By the impugned order dated 27.07.2020 the High Court has dismissed the said application for modification observing that earlier wife of the appellant filed affidavit before the learned Magistrate to deposit Rs.7 00 000 ­ and the alleged amount is Rs.32 23 073 ­ condition nos. and in order dated scheme of Section 167 of the Cr.P.C. It is submitted that as Cr.P.C. give due regard to the personal liberty of a person as may be applicable an accused cannot be detained by the v. State of Assam 15 SCC 67 where investigation is not completed within 60 days or 90 days as the case may be no chargesheet is filed on the 60th or 90th day accused applies for default bail and is prepared to furnish bail accused becomes entitled to default bail it cannot be frustrated either by the bail but only needs to state that 60 90 days as the case may be have expired chargesheet not filed he is entitled to bail and willing to furnish the same. It is submitted that therefore condition nos. and imposed by the High Court while 6.1 It is submitted by the learned counsel appearing on behalf before the learned Magistrate to deposit Rs.7 00 000 ­ and the earlier order passed by the learned Magistrate to release the appellant on deposit of Rs.15 67 338 ­ was with respect to come in the way of the appellant in getting the default bail statutory bail if a case is made out under Section 167(2) Cr.P.C. It is submitted that as such and in fact the High Court bail statutory bail however with condition to deposit Rs.8 00 000 ­ on the ground that while considering the regular bail application under Section 437 Cr.P.C. the wife of the appellant agreed to and filed affidavit to deposit Rs.7 00 000 ­. It is submitted that condition to deposit Rs.8 00 000 ­ while releasing the appellant on default bail statutory bail on the aforesaid ground would defeat the very purpose of grant of 6.2 Making the above submissions it is prayed to allow the present appeals and delete condition nos. and of order 7. Mr. Jayanth Muthuraj learned Additional Advocate General appearing on behalf of the State has tried to support the as earlier the wife of the appellant filed an affidavit before the learned Magistrate to deposit Rs.7 00 000 ­ and the alleged amount was Rs.15 67 338 ­ probably the High Court has imposed condition no. directing the appellant to deposit Rs.8 00 000 ­ default bail statutory bail under Section 167(2) Cr.P.C. any condition of deposit of amount as imposed by the High Court and considering the scheme and the object and purpose of appellant shall deposit a sum of Rs.8 00 000 ­ while releasing High Court has imposed such a condition taking into regular bail application before the learned Magistrate the wife of the appellant filed an affidavit agreeing to deposit Rs.7 00 000 ­ more particularly in the case of Rakesh Kumar Paul where the investigation is not completed within 60 days or 90 days as the case may be and no chargesheet is filed by 60th or 90th day accused gets an “indefeasible right” to default bail and the accused becomes entitled to default bail once the accused applies for default bail and furnish bail. Therefore the only requirement for getting the default bail statutory bail under 60 or 90 days as the case may be and within 60 or 90 days as the case may be the investigation is not completed and no chargesheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail. No other condition of deposit of the alleged amount involved can be default bail statutory bail would frustrate the very object and bail subject to the eventuality occurring in Section 167 Cr.P.C. namely investigation is not completed within 60 days or 90 days and the accused applies for default bail and is prepared to 9.1 As observed hereinabove and even from the impugned imposed the condition to deposit Rs.8 00 000 ­ taking into considering the regular bail application under Section 437 Cr.P.C. the wife of the accused filed an affidavit to deposit Rs.7 00 000 ­. That cannot be a ground to impose the condition to deposit the amount involved while granting default 9.2. The circumstances while considering the regular bail application under Section 437 Cr.P.C. are different while deposit Rs.8 00 000 ­ while releasing the appellant on default 10. Now so far as condition no.imposed by the High Court namely directing the appellant to report before the concerned police station daily at 10:00 a.m. until further orders for interrogation is concerned the same is also unsustainable as it is too harsh. Instead condition which can be imposed is concerned police station for investigation interrogation as and when called for and on breach the investigating officer can approach the concerned court for cancellation of the bail on present appeals succeed. Condition No. of order dated 24.06.2020 passed by the High Court in Criminal OP(MD) No 6214 of 2020 i.e. directing the appellant to deposit Rs.8 00 000 ­ to the credit of crime No. 319 before the learned Judicial Magistrate Court No.1 Nagercoil Kanyakumari District while releasing the appellant on default bail is hereby quashed and set aside. Condition no.namely directing the a.m. daily until further orders for interrogation is hereby co­operate with the investigating agency and shall report the concerned police station as and when called investigation interrogation and on non­cooperation the of the conditions imposed by the High Court in order dated 13. The appeals are allowed accordingly in the aforesaid terms

Motor Accident Claims Tribunal required to deliberate upon effective driving licence of driver of offending vehicle, which, however, is missing in the case: The High Court of Jammu & Kashmir and Ladakh

The Tribunal, required to deliberate upon, discuss and decide the validity and effective driving licence of the driver of the offending vehicle, in detail, which, however, is missing in the present case. The Tribunal required to come up with a lucid finding thereabout. In the Hon’ble High Court of Jammu & Kashmir and Ladakh through the single-bench led by Justice VINOD CHATTERJI KOUL  in the matters of National Insurance Company Limited. v. Shameema  Begum& Ors [CM/76/2017]. The facts of the case are respondent no.8 (driver) was rashly and negligently plying offending vehicle, bearing Registration no.JK01E-2018, and on reaching Mirgund on Srinagar-Baramulla NHW, he lost control over the offending vehicle and struck against a pedestrian, namely, Ghulam Rasool Antoo, who was standing on the correct side of the road with due care and caution, with the result deceased sustained multiple fatal injuries on various parts of his body, and ultimately succumbed to injuries in hospital. The offending vehicle was insured with the appellant Insurance Company. Claimants/respondents 1 to 4 sought a grant of compensation of Rs.25.00 Lakhs along with interest. Appellant Insurance Company resisted the claim petition before the Tribunal on the ground that the driver of the offending vehicle was not having a valid and effective driving licence at the time of the alleged accident. It was also stated that the offending vehicle at the time of the alleged accident was being driven in violation of terms and conditions of insurance policy, permit and provisions of the Motor Vehicle Act. It was admitted that the offending vehicle was insured with the appellant-Insurance Company. The Tribunal framed three issues. The Tribunal directed “The Tribunal found claimants/respondents entitled to receive compensation of Rs.10,10,000/- along with 6% interest per annum by saddling appellant Insurance Company to pay it.” The counsel for the applicants submitted that the Tribunal has not dealt with Issue no.2 in proper perspective. Respondent no.8, driver of the offending vehicle, was not having a valid and effective driving licence at the time of the accident. However, the Tribunal did not properly appreciate this facet of the matter while deciding the aforesaid Issue. According to him, finding returned by the Tribunal on Issue no.2 is bad in law as there was a breach on the part of the owner of the offending vehicle and, therefore, the insurance company is not bound to prove the terms and conditions of the insurance policy. It is contended that the driving licence of respondent no.8 could not be verified as the records pertaining to the period from 05.02.2002 to 29.01.2006 and the record pertaining to HGV endorsement w.e.f. 05.07.2002 to 07.05.2007 was missing from the office of ARTO Doda. It is also contended that driving licence was renewed from ARTO Udhampur w.e.f. 27.03.2008 to 26.03.2011 and thereafter the said licence was renewed from 08.07.2011 to 07.07.2014 and, therefore, the licence was not renewed after 03 months of the date of the accident. The court concluded “the Appeal on hand is partly allowed and the Award dated 13th May 2017, passed by Motor Accident Claims Tribunal, Srinagar, on a Claim Petition, bearing File no.254/2021, titled Shameema Begum and others v. National Insurance Company Limited and others, is set-aside to the extent of Issue No.2 (viz. Whether the owner of the offending vehicle has permitted the driver (respondent no.5) to ply the said vehicle without valid, effective DL and has committed the breach of the insurance contract?). The matter is remanded back to the Tribunal to decide afresh the claim petition with reference to the validity of driving licence of the driver of offending vehicle (i.e., Issue no.2) after considering all aspects of the matter and after taking all steps that may be warranted therefor, including the summoning of witnesses and recording their statements. Obviously, outcome thereof shall also decide payment of compensation either to be made by Insurance Company or owner of offending vehicle and to this extent, the Issue, framed by Tribunal, is also to be decided by the Tribunal.”

National Insurance Company Limited HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR CMAM no. 76 2017 Reserved on: 06.10.2021 Pronounced on: 18.11.2021 Through: Mr. J.A. Kawoosa Senior Advocate with Mr Areeb Kawoosa Advocate ….. Respondent(s) Through: Mr M. Altaf Khan Advocate Shameema Begum and others HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL JUDGE 1. Challenge in this Appeal is thrown to Award dated 13th May 2017 passed by Motor Accident Claims Tribunal Srinagaron a Claim Petition bearing File no.254 2021 titled Shameema Begum and others v. National Insurance Company Limited and others directing appellant Insurance Company to pay compensation of Rs.10 10 000 along with 6% interest per annum from the date of institution of claim till realization on the grounds made mention of therein. 2. A claim petition as is discernible from perusal of file was filed by claimants respondents 1 to 4 herein before the Tribunal on 12th August 2011 averring therein that on 7th June 2011 respondent no.8was rashly and negligently plying offending vehicle bearing Registration no.JK01E 2018 and on reaching Mirgund on Srinagar Baramulla NHW he lost control over offending vehicle and struck against a pedestrian namely Ghulam Rasool Antoo who was standing on the correct side of Page 1 CMAM no.76 2017 the road with due care and caution with the result deceased sustained multiple fatal injuries on various parts of his body and ultimately succumbed to injuries in hospital. Offending vehicle was insured with appellant Insurance Company. Claimants respondents 1 to 4 sought grant of compensation of Rs.25.00 Lakhs along with interest 3. Appellant Insurance Company resisted claim petition before the Tribunal on the ground that driver of offending vehicle was not having valid and effective driving licence at the time of alleged accident. It was also stated that offending vehicle at the time of alleged accident was being driven in violation of terms and conditions of insurance policy permit and provisions of the Motor Vehicle Act. It was admitted that offending vehicle was insured with appellant Insurance Company. 4. The Tribunal in view of pleadings of parties framed following Issues for determination: 1. Whether on 07.06.2011 while the respondent no.5 was driving a vehicle bearing no.JK01E 2048 rashly and negligently coming from Pattan towards Srinagar and on reaching Mirgund the driver of the offending vehicle lost control over his vehicle and struck against a pedestrian namely Ghulam Rasool Antoo standing on the right side of the road with the result the deceased sustained multiple fatal injuries on various parts of his body and succumbed to the injuries 2. Whether the owner of the offending vehicle has permitted the driverto ply the said vehicle without valid effective DL and other vehicular documents e.g. R P R C etc and has committed the breach of insurance contract absolved respondent no.1 insurance company from its liability on account of petitioners’ claim 3. If issue no.1 is proved in affirmative to what amount of compensation the petitioners are entitled to from whom and in what proportion OPP 4. Relief. 5. Claimants produced and examined four witnesses before the Tribunal besides claimant respondent no.1. Driver of offending vehicle also got his statement recorded. Appellant Insurance Company produced one witnesses i.e. Licence Clerk ARTO in support of its stand. 6. By impugned Award the Tribunal found claimants respondents entitled to receive compensation of Rs.10 10 000 along with 6% interest per annum by saddling appellant Insurance Company to pay it. 5. Heard and considered. Page 2 CMAM no.76 2017 6. Learned senior counsel for appellant Insurance Company has stated that the Tribunal has not dealt with Issue no.2 in proper perspective. Respondent no.8 driver of offending vehicle was not having valid and effective driving licence at the time of accident. However the Tribunal did not properly appreciate this facet of the matter while deciding aforesaid Issue. According to him finding returned by the Tribunal on Issue no.2 is bad in law as there was breach on the part of owner of offending vehicle and therefore insurance company is not bound to prove terms and conditions of insurance policy. It is contended that driving licence of respondent no.8 could not be verified as the records pertaining to the period from 05.02.2002 to 29.01.2006 and the record pertaining to HGV endorsement w.e.f. 05.07.2002 to 07.05.2007 was missing from the office of ARTO Doda. It is also contended that driving licence was renewed from ARTO Udhampur w.e.f. 27.03.2008 to 26.03.2011 and thereafter the said licence was renewed from 08.07.2011 to 07.07.2014 and therefore the licence was not renewed after 03 months of the date of accident. It is also contended that the Tribunal while passing impugned award has not appreciated the law correctly. There is substance in the submission of learned senior counsel qua validity of driving licence. The Tribunal was required to deliberate upon discuss and decide Issue no.2 vis à vis valid and effective driving licence of driver of offending vehicle in detail which however is missing in the present case. So the Tribunal is required to discuss comprehensively Issue no.2 and come up with a lucid finding thereabout. To this extent impugned Award is liable to be set aside. 7. Another contention of learned counsel for appellant is that quantum of compensation awarded by Tribunal is exorbitant arbitrary and unjust. The multiplier is stated to have not been applied properly. The award of compensation is not within four corners of law and schedule contained in the Motor Vehicle Act. Above submission of learned counsel for appellant Insurance Company is misconceived. The reason being that the Tribunal while Issue no.4 qua computation of compensation has comprehensively discussed all aspects of the matter. The Tribunal relied Page 3 CMAM no.76 2017 upon the judgment rendered by the Supreme Court in Sarla Verma v. Delhi Transport Corporation ACJ 2009 1298 and only thereafter granted compensation in the amount of Rs.10 10 000 . In that view of matter impugned Award to the extent of compensation does not warrant any interference. 12. For the foregoing reasons the Appeal on hand is partly allowed and the Award dated 13th May 2017 passed by Motor Accident Claims Tribunal Srinagar on a Claim Petition bearing File no.254 2021 titled Shameema Begum and others v. National Insurance Company Limited and others is set aside to the extent of Issue No.2to ply the said vehicle without valid effective DL and has committed the breach of insurance contract ). The matter is remanded back to the Tribunal to decide afresh the claim petition with reference to validity of driving licence of driver of offending vehicleafter considering all aspects of the matter and after taking all steps that may be warranted therefor including summoning of witnesses and recording their statements. Obviously outcome thereof shall also decide payment of compensation either to be made by Insurance Company or owner of offending vehicle and to this extent the Issue framed by Tribunal is also to be decided by the Tribunal. 13. Disposed of in terms of above. 14. Record of the Tribunal be sent down along with copy of this judgement. 15. Parties shall appear before the Tribunal on 22nd December 2021. Ajaz Ahmad PS Whether approved for reporting Yes No Vinod Chatterji Koul) Judge Page 4 CMAM no.76 2017

Minor discrepancies in witness’s statement will not make it entirely inadmissible: High Court of Orissa

Statements of witnesses are used to connect different aspect of a case together and to establish the truth in a trial. Minor discrepancies in matters not central to the crime need not be given too much importance because witnesses cannot be expected to have a perfect memory of the incident. This was held in the judgement passed by a bench consisting of Justice S.K Mishra and Justice Savitri Ratho of the High Court of Orissa in the case of Mohan Sabar and others v State of Orissa [CLRA No.49 of 2002] on 11th June 2021. On 4th October 2000, Brajsundar Sabar was lying on a cot in his house while his wife and children were sleeping in the next bedroom. In the middle of the night, the appellant, Mohan Sabar and his accomplices, Prahlad and Durja were seen assaulting Brajsundar using an axe but the victim’s wife was not able to leave her room out of fear. After the victim’s death, the appellants fled the scene. The deceased’s wife filed a first information report for the offence of murder under Section 302/34 of the Indian Penal Code. A total of 14 witnesses were questioned in the criminal trial including the family of the deceased who identified the faces of the appellants, doctors who conducted the autopsy and also other people from the village who had seen the appellant with a similar axe earlier that day. Considering all the evidence against them which built a strong case, the appellants were convicted by an Additional Sessions Judge in S.C. Case No, 41/14 of 2001 on 15th July 2002 for murder under Section 302/34 of the Indian Penal Code and sentenced to life imprisonment. The appellants assailed their conviction and stated that the statement made by the deceased’s wife should not be considered as it was contradictory. The appellants contended that the deceased’s wife stated that it was a very dark night yet she was able to identify the faces of her husband’s murders which should make her statement invalid before the court. The court cited the case of Bharwada Bhoginibhai Hirjibhai v State of Gujarat [AIR 1983 SC 753] where the Supreme Court of India held that “Too much importance cannot be attached to minor discrepancies and a witness cannot be expected to possess a photographic memory to recall the details of an incident”.

State of Orissa … Respondent HIGH COURT OF ORISSA CUTTACK CRLA NO.49 0F 2002 From the judgment and order of conviction dated 15.7.2002 passed by the learned Additional District and Sessions Judge Nuapada in S.C. Case No.41 101. Mohan Sabar & others … Appellants Versus For Appellant : Mr. Trilochan Nanda For Respondent : Mrs. Saswata Pattnaik Addl. Government Advocate P R E S E N T : MR. JUSTICE S.K.MISHRA AND MISS JUSTICE SAVITRI RATHO Date of Hearing:24.2.2021& 11.6.2021 and Date of Judgment: 11.6.2021 S.K.Mishra J. The appellants have assailed their conviction and order of sentence for the offence under Section 302 34 of the Indian Penal Codeby the learned Addl. Sessions Judge Bhanjanagar in S.C. Case No.41 14 of 2001. The learned Addl. Sessions Judge has convicted them on 15.7.2002 and sentenced them to undergo imprisonment for life. 2. The gravamen of the charges against the appellants is that on 3 4.10.2000 in the night the deceased Brajasundar Sabar after taking his dinner went to sleep on a cot in front of his house on the Varandah. He had no foreboding that it was his last night. His wife and children were sleeping inside the room by keeping the doors open. At the dead of the night his wife heard an unusual sound and noticed that the appellants were assaulting her husband by means of an axe which each of them were holding by their own hands. Accused Durje assaulted her husband on his neck by his axe and her husband fell down. P.W.14 the Investigating Officer has stated in his deposition that P.W.1 did not state in her statement that each of accused persons were armed and accused Durje cut the throat of her husband and other accused persons assaulted by their axe and her husband and fell down on the ground and accused Durje cut the throat. P.W. 2 has also not stated before the I.O. that her father was assaulted and the accused persons ran away from the spot. Learned Amicus has stated that the I.O. said in his deposition that at the time of inquest no witnesses stated the name of the accused persons to be involved in the crime. Learned Amicus further mentioned that in the recitals of the FIR the weapon of offence has been described as “Tabil” but in the evidence the weapon of offence has been stated by P.W.1 as Tangi18 OCR (SC)34 the Hon’ble Supreme Court held that it is indeed necessary to note that hardly one comes across a witness whose evidence does not contain some exaggeration or embellishment and sometimes in the over anxiety they may give slightly exaggerated account. The Court can shift the chaff from the corn and find out the truth from the testimony of witnesses. Total repulsion of evidence is unnecessary. The evidence is to be considered from the point view of trustworthiness. If this element is satisfied they ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same. 16. In the case of Appabhai and another v. State of Gujurat reported in AIR 19988 SC 696 the Hon’ble Supreme Court held that the Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may not be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witnesses. When a doubt arises in respect of certain facts alleged by such witnesses the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire story. The witnesses go on embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts however should not disbelieve the evidence of such witnesses if they are otherwise trustworthy. 17. In the case of State of U.P. v. Ballabh Das reported in AIR 1985 SC 1384 the Hon’ble Supreme Court has examined the law relating to appreciation of evidence of a related witness or interested witness it has observed that there is no law which says that in the absence of any independent witness the evidence of interested witnesses should be thrown out at the behest of or should not be relied upon for convicting an accused. What the law requires is that where the witnesses are interested the Court should approach their evidence with care and caution in order to exclude the possibility of false implication. The evidence of interested witness is not like that of an approver which is presumed to be tainted and requires corroboration but the said evidence is as good as any other 19. 20 18. In the case of State of Rajasthan v. Teja Ram and other reported in AIR 1999 SC 1776 the Hon’ble Supreme Court has held that over insistence on witnesses having no relation with the victims often results in criminal justice going awry. When any incident happens in a dwelling house the most natural witnesses would be inmates of the house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have seen the occurrence. In applying the aforesaid principles of law in appreciation of evidence this Court keeps in mind that criminal trial cannot be equated to a mock scene of a stunt film. It is about the real people witnessing the gruesome being committed offences in their presence. Learned Amicus in this case has emphasized upon the so called discrepancy between the evidence of P.W.1 P.W.9 and P.W.14 the Investigating Officer regarding the place where the F.I.R. which was prepared and affixed with L.T.I. So there appears to be some confusion regarding this aspect. But from the recorded materials available on record that is the F.I.R. itself and the case diary which was referred by the I.O. at the time of his deposition in the Court nothing substantially could be brought out to show that actually the F.I.R. was written in the Police Station at first was not registered and suppressed and a second F.I.R. was prepared in village Bijayapur. So only on the basis of some statements during the course of cross examination of P.W.9 that the F.I.R. was not read over to P.W.1 and in P.W.1’s statement that she put her L.T.I. in village Bijayapur the evidence regarding lodging of the F.I.R. cannot be doubted and cannot be held that the original F.I.R. has been suppressed in this case. 21. The second issue is relating to the spot. The Investigating Officer P.W.9 in cross examination at paragraph 10 stated that the deceased was sleeping on the open verandah of the case house and the informant was sleeping in ‘the parchi’ which is adjacent to the verandah and covered up by a roof and the dead body of the deceased was found in the open verandah of a house and there appears to be no discrepancy regarding the same. Moreover the I.O. has collected the blood stained earth sample earth blood stained bed sheet and napkin as per the seizure list Ext.10. It was sent for post mortem examination and it was found that the sample blood stained earth collected from the spot was stained with human blood of Group ‘A’. Similarly the bed sheet and napkin seized from the spot were moderately stained with human blood of Group ‘A” origin. The said blood group i.e. found on the lungi of the deceased as in the Axes i.e produced in this case on being seized by the I.O. as well as Dhoti and Napkin of two accused persons which have been seized in this case. So there appears to be no plausible reason to come to a conclusion that there is a discrepancy regarding the spot as put forth by the prosecution in this case. 22. The learned Amicus would further argue that though the prosecution alleges that the appellants gave blows by means of Tabli or Tabal the prosecution produced two Axes. He argued that Axe and Tabli are two different kind of weapons. We are unable to agree with the same because ‘Tabil’ is a variety of Axe and the distinction between the two is very minor. Both Tabli and axe have an iron portion with a sharp cutting edge and on the back of it a handle is appended. The only difference between Tabli and Axe which is known as ‘Tangia’ in western parts of Odisha is the length of the cutting edge. ‘Tabli’ generally has wider cutting edge and axe has a smaller cutting edge. But this aspect can be reconciled by the fact that the accused Mohan gave a discovery statement that lead to the discovery and seizure of one of the Axes. The other Axe was seized on production by the accused. Both the axes were found to be stained with deep spurs of human blood of group ‘A’ human blood was found on the wearing apparels of the deceased. Thus we are of the opinion that the learned Amicus though advanced his argument in a very attractive manner there is hardly any reason to accept the same. 23. On the final analysis we find the evidence of P.W.1 is quite trustworthy having ring of truth. Her is duly corroborated by the objective determination of the spot which is verandah of their house where from the I.O. seized blood stained earth etc. Her evidence also gets corroboration from the evidence of P.W.6 the Doctor. The Doctor found incised injury on the dead body of the deceased in course of post mortem examination which could have been caused by the axes seized in this case. The recovery of one of the weapon of offence at the instance of the appellant Mohan Sabar admissible under Section 27 of the Indian Evidence Act lends further corroboration by principle of confirmation that the appellants did the deceased to death. The final stand in the case of the prosecution is the result of the chemical examination which supports the case of the prosecution. 24. Thus in the ultimate analysis we find that the learned Addl. District and Sessions Judge Nuapada had a clear and perspicacious view of the evidences available on record he noticing the demeanor of the witnesses while recording their evidence held that the prosecution has proved its case beyond reasonable doubt. There is no plausible or reasonable basis for disturbing such finding of fact which in our opinion are in the line of the various pronouncements of the Hon’ble Supreme Court on this aspect of appreciation of evidence of witnesses in a criminal trial. 25. In the result the appeal is dismissed. The judgment of conviction and order of sentence passed by the learned Addl. District and Sessions Judge Nuapada in S.C. No.41 101 are hereby confirmed. .…. …..….. Savitri Ratho J. S.K.Mishra J I agree. Savitri Ratho J …. Orissa High Court Cuttack Dated 11th June 2021 A.K.Behera. .…. …..….. Savitri Ratho J. S.K.Mishra J I agree. Savitri Ratho J …. Orissa High Court Cuttack Dated 11th June 2021 A.K.Behera.

An intention to publicly humiliate a person of SC/ST category necessary for applicability of the Act: Supreme Court

Supreme court sheds light on the SC/ST Atrocities Prevention Act in a property Dispute. Talking about the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, the court stated that relying merely on the fact that the complainant was a member of the SC or ST community, would not imply the conviction of the accused under the Act. This was held in the case of Hitesh Verma v. The State of Uttarakhand & Anr. [Criminal Appeal No. 7070 of 2020], benched by J. L Nageswara Rao, J. Hemant Gupta and J. Ajay Rastogi. The present appeal challenged the dismissal of a petition filed by the appellant in the High Court of Uttarakhand pleading for the quashing of a charge sheet. The FIR in question was filed by the respondent under section-504 and 506 of the IPC and section-3(1)(r) of the Act, claiming that the accused hurled death threats and caste related abuses at the respondent and her family. The appellant argued, relying on Gerige Pentaiah v. State of Andhra Pradesh & Ors [(2008) 12 SCC 531], wherein the complaint was quashed, stating that the issue in dispute were property related and the caste of the respondents had no significance. The SC, while reading the long title of the Act, induced that “The Act was enacted to improve the social economic conditions of the vulnerable sections of the society as they have been subjected to various offences such as indignities, humiliations and harassment. They have been deprived of life and property as well. The object of the Act is thus to punish the violators who inflict indignities, humiliations and harassment and commit the offence as defined under Section 3 of the Act. The Act is thus intended to punish the acts of the upper caste against the vulnerable section of the society for the reason that they belong to a particular community.” However, relying on the case of Khuman Singh v. State of Madhya Pradesh [(2019) SCC OnLine SC 1104], the court stated that “offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out.”

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 707 OF 2020 ARISING OUT OF SLPNO. 3585 OF 2020 THE STATE OF UTTARAKHAND & ANR JUDGMENT HEMANT GUPTA J The challenge in the present appeal is to an order passed by the High Court of Uttarakhand at Nainital on 20.7.2020 whereby the petition filed by the appellant under Section 482 of the Code of Criminal Procedure 19731 for quashing the charge sheet as well as the summoning order dated 25.6.2020 was dismissed The FIR No. 173 in question was lodged by the respondent No. 2 on 11.12.2019 at 23:24 hours in respect of an incident alleged to have occurred on 10.12.2019 at 10:00 hours against the appellants and others. The FIR was lodged for the offences under Sections 452 For short the ‘Code’ 504 506 and Section 3(1)(x) and 3(1)(e) of the Scheduled Castes and the Scheduled TribesAct 19892. The said FIR when translated reads as under “Respected SHO with respect of registering of FIR the complainant is presently resident of Gram New Bajeti Patti Chandak Tehsil & District Pithoragarh. I am constructing my house on my Khet No. 6195 6196 6199 but Banshilal Pyarelal S o Late Har Lal Hitesh Verma S o Sh. Pyarelal Pawan Verma S o Banshilal Uma Verma w o Pyarelal and their Nepali Domestic help Raju from past 6 months are not allowing the applicant to work on her fields. All the above persons used to abuse the applicant her husband and other family members and use to give death threats and use Caste coloured abuses. On 10.12.2019 at around 10 am all these persons entered illegally in to four walls of her building and started hurling abuses on myself and my labourers and gave death threats and used castes’ remarks abuses and took away the construction material such as Cement Iron Rod Bricks. The Applicant is a Scheduled Caste and all of the above person uses castes’ remarks abuses and said that you are persons of bad caste and that we will not let you live in this mohalla vicinity Respect Sir the applicant and her family has threat to her life from such persons. Thus it is requested that an FIR may be lodged against such persons and necessary action may be taken against them…..” Pursuant to the FIR filed by Respondent No. 2 Police filed a report disclosing offences under Sections 504 506 IPC and Section 3(1)(x of the Act cognizance for the same was taken by the Trial Court on 25.6.2020. It is the said order which was challenged along with the charge sheet before the High Court which was unsuccessful. On the other hand on the basis of the statement of Mr. Pawan Verma an FIR No. 174 at about 23:47 hours was lodged on For short “the Act” 11.12.2019 in respect of an occurrence which had taken place allegedly at 9:45 hours on 11.12.2019. A charge sheet in the said matter has been submitted against respondent No. 2 and others Thereafter the learned Chief Judicial Magistrate Pithoragarh had taken cognizance for the offences under Sections 323 and 354 IPC against respondent No. 2 and others on 2.7.2020 The Appellant invoked the jurisdiction of the High Court by way of a petition under Section 482 of the Code to challenge the charge sheet and the order taking cognizance. The Appellant relied upon Gerige Pentaiah v. State of Andhra Pradesh & Ors.3 wherein the allegation was of abusing the complainant in the name of their caste and this Court quashed the complaint. The attention of the High Court was drawn to another judgment reported as Ashabai Machindra Adhagale v. State of Maharashtra & Ors.4 wherein this Court refused to quash the FIR on the ground that the caste of the accused was not mentioned in the first information report. The High Court found that both the abovementioned cases dealt with the same issue with regard to applicability of the provisions of the Act. It was observed by the High Court that the appellant had categorically admitted that the informant belonged to Scheduled Caste and that she and her labourers were abused. Therefore the provisions of the Act were found to be applicable and accordingly after investigation charge sheet has been submitted. The High Court dismissed the petition with the aforesaid findings 12 SCC 531 3 SCC 789 The learned counsel for the appellant argued that the disputes relating to the property are pending before the Civil Court and that the present FIR has been filed on patently false grounds by respondent No. 2 only to harass the appellant and to abuse of process of law. It is argued that the allegations levelled in the FIR and the subsequent report submitted by the Police after investigations does not disclose any offence under the Act Furthermore it is argued that the report neither discloses the caste of the informant nor the allegations are that they were made in public view. Also the offending words are not purported to be made for the reason that the informant is a person belonging to The learned counsel for the State on the contrary submitted that during investigations certain persons have supported the version of the informant. It is argued on behalf of respondent No. 2 that in fact the appellant and his family are encroacher on the informant’s land. Therefore the appellant was rightly not granted any indulgence by the High Court. Against the backdrop of these facts it is pertinent to refer to the Statement of Objects and Reasons of enactment of the Act. It is provided as under “Despite various measures to improve the socio economic conditions of the Scheduled Castes and the Scheduled Tribes they remain vulnerable. They are denied number of civil rights. They are subjected to humiliations and various offences harassment. They have in several brutal incidents been deprived of their life and property. Serious crimes are committed against them for various historical social and economic reasons 2. Because of the awareness created amongst the Scheduled Castes and the Scheduled Tribes through spread of education etc. they are trying to assert their rights and this is not being taken very kindly by the others. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self respect or honour of their women they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and the Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. Of late there has bene an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Caste persons eat inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and the Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes. Under the circumstances the existing laws like the Protection of Civil Rights Act 1955 and the normal provisions of the Indian Penal Code have been found to be inadequate to check these crimes. A special Legislation to check and deter crimes against them committed by non Scheduled Castes and non Scheduled Tribes has therefore become The long title of the Act is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes to provide for Special Courts and Exclusive Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto The Act was enacted to improve the social economic conditions of the vulnerable sections of the society as they have been subjected to various offences such as indignities humiliations and harassment. They have been deprived of life and property as well The object of the Act is thus to punish the violators who inflict indignities humiliations and harassment and commit the offence as defined under Section 3 of the Act. The Act is thus intended to punish the acts of the upper caste against the vulnerable section of the society for the reason that they belong to a particular It may be stated that the charge sheet filed is for an offence under Section 3(1)(x) of the Act. The said section stands substituted by Act No. 16 w.e.f. 26.1.2016. The substituted corresponding provision is Section 3(1)(r) which reads as under “3(1)(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view ” The basic ingredients of the offence under Section 3(1)(r) of the Act can be classified as “1) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and 2) in any place within public view”. The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus an offence under the Act would be made out when a member of the vulnerable section of the Society is subjected to indignities humiliations and harassment. The assertion of title over the land by either of the parties is not due to either the indignities humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore if the appellant or his family members have invoked jurisdiction of the civil court or that respondent No.2 has invoked the jurisdiction of the civil court then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that respondent No.2 is member of Scheduled Caste. Another key ingredient of the provision is insult or intimidation in “any place within public view”. What is to be regarded as “place in public view” had come up for consideration before this Court in the judgment reported as Swaran Singh & Ors. v. State through Standing Counsel & Ors.5. The Court had drawn distinction between the expression “public place” and “in any place within public view”. It was held that if an offence is committed outside the building e.g. in a lawn outside a house and the lawn can be seen 8 SCC 435 by someone from the road or lane outside the boundary wall then the lawn would certainly be a place within the public view. On the contrary if the remark is made inside a building but some members of the public are therewhen he stood near the car which was parked at the gate of the premises. In our opinion this was certainly a place within public view since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building and also was not in the public view. However if the offence is committed outside the building e.g. in a lawn outside a house and the lawn can be seen by someone from the road or lane outside the boundary wall the lawn would certainly be a place within the public view. Also even if the remark is made inside a building but some members of the public are therethen also it would be an offence since it is in the public view. We must therefore not confuse the expression “place within public view” with the expression “public place”. A place can be a private place but yet within the public view. On the other hand a public place would ordinarily mean a place which is owned or leased by the Government or the municipalityor gaon sabha or an instrumentality of the State and not by private persons or private bodies.” 15. As per the FIR the allegations of abusing the informant were within the four walls of her building. It is not the case of the informant that there was any member of the publicat the time of the incident in the house. Therefore the basic ingredient that the words were uttered “in any place within public view” is not made out. In the list of witnesses appended to the charge sheet certain witnesses are named but it could not be said that those were the persons present within the four walls of the building. The offence is alleged to have taken place within the four walls of the building. Therefore in view of the judgment of this Court in Swaran Singh it cannot be said to be a place within public view as none was said to be present within the four walls of the building as per the FIR and or charge sheet 16. There is a dispute about the possession of the land which is the subject matter of civil dispute between the parties as per respondent No.2 herself. Due to dispute appellant and others were not permitting respondent No.2 to cultivate the land for the last six months. Since the matter is regarding possession of property pending before the Civil Court any dispute arising on account of possession of the said property would not disclose an offence under the Act unless the victim is abused intimated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe In another judgment reported as Khuman Singh v. State of Madhya Pradesh6 this Court held that in a case for applicability of Section 3(2)(v) of the Act the fact that the deceased belonged to Scheduled Caste would not be enough to inflict enhanced punishment. This Court held that there was nothing to suggest that the offence was committed by the appellant only because the deceased belonged to Scheduled Caste. The Court held as under 2019 SCC OnLine SC 1104 “15. As held by the Supreme Court the offence must be such so as to attract the offence under Section 3(2)(v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case the fact that the deceased was belonging to “Khangar” Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore the conviction of the appellant accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes Act is not sustainable.” 18. Therefore offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste the offence under Section 3(1)(r of the Act is not made out. This Court in a judgment reported as Dr. Subhash Kashinath Mahajan v. State of Maharashtra & Anr.7 issued certain directions in respect of investigations required to be conducted under the Act. In a review filed by the Union against the said judgment this Court in a judgment reported as Union of India v State of Maharashtra & Ors.8 reviewed the directions issued by this Court and held that if there is a false and unsubstantiated FIR 6 SCC 454 4 SCC 761 the proceedings under Section 482 of the Code can be invoked The Court held as under “52. There is no presumption that the members of the Scheduled Castes and Scheduled Tribes may misuse the provisions of law as a class and it is not resorted to by the members of the upper castes or the members of the elite class. For lodging a false report it cannot be said that the caste of a person is the cause. It is due to the human failing and not due to the caste factor. Caste is not attributable to such an act. On the other hand members of the Scheduled Castes and Scheduled Tribes due to backwardness hardly muster the courage to lodge even a first information report much less a false one. In case it is found to be false unsubstantiated it may be due to the faulty investigation or for other various reasons including human failings irrespective of caste factor. There may be certain cases which may be false that can be a ground for interference by the Court but the law cannot be changed due to such misuse. In such a situation it can be taken care of in proceeding under Section 482 CrPC.” Later while examining the constitutionality of the provisions of the Amending Act this Court in a judgment reported as Prathvi Raj Chauhan v. Union of India Ors.9 held that proceedings can be quashed under Section 482 of the Code. It was held as under “12. The Court can in exceptional cases exercise power under Section 482 CrPC for quashing the cases to prevent misuse of provisions on settled parameters as already observed while deciding the review petitions The legal position is clear and no argument to the contrary has been raised.” In Gerige Pentaiah one of the arguments raised was non disclosure of the caste of the accused but the facts were almost 4 SCC 727 similar as there was civil dispute between parties pending and the allegation was that the accused has called abuses in the name of the caste of the victim. The High Court herein has misread the judgment of this Court in Ashabai Machindra Adhagale as it was not a case about the caste of the victim but the fact that the accused was belonging to upper caste was not mentioned in the FIR. The High Court of Bombay had quashed the proceedings for the reason that the caste of the accused was not mentioned in the FIR therefore the offence under Section 3(1)(xi) of the Act is not made out. In an appeal against the decision of the Bombay High Court this Court held that this will be the matter of investigation as to whether the accused either belongs to or does not belong to Scheduled Caste or Scheduled Tribe. Therefore the High Court erred in law to dismiss the quashing petition relying upon later larger Bench judgment. The appellant had sought quashing of the charge sheet on the ground that the allegation does not make out an offence under the Act against the appellant merely because respondent No. 2 was a Scheduled Caste since the property dispute was not on account of the fact that respondent No. 2 was a Scheduled Caste. The property disputes between a vulnerable section of the society and a person of upper caste will not disclose any offence under the Act unless the allegations are on account of the victim being a Scheduled Caste. Still further the finding that the appellant was aware of the caste of the informant is wholly inconsequential as the knowledge does not bar any person to protect his rights by way of a procedure established by law. 23. This Court in a judgment reported as Ishwar Pratap Singh & Ors v. State of Uttar Pradesh & Anr.10 held that there is no prohibition under the law for quashing the charge sheet in part. In a petition filed under Section 482 of the Code the High Court is required to examine as to whether its intervention is required for prevention of abuse of process of law or otherwise to secure the ends of justice. The Court held as under “9. Having regard to the settled legal position on external interference in investigation and the specific facts of this case we are of the view that the High Court ought to have exercised its jurisdiction under Section 482 CrPC to secure the ends of justice. There is no prohibition under law for quashing a charge sheet in part. A person may be accused of several offences under different penal statutes as in the instant case. He could be aggrieved of prosecution only on a particular charge or charges on any ground available to him in law. Under Section 482 all that the High Court is required to examine is whether its intervention is required for implementing orders under the Criminal Procedure Code or for prevention of abuse of process or otherwise to secure the ends of justice. A charge sheet filed at the dictate of somebody other than the police would amount to abuse of the process of law and hence the High Court ought to have exercised its inherent powers under Section 482 to the extent of the abuse There is no requirement that the charge sheet has to be quashed as a whole and not in part. Accordingly this appeal is allowed. The supplementary report filed by the police at the direction of the Commission is quashed.” In view of the above facts we find that the charges against the appellant under Section 3(1)(r) of the Act are not made out Consequently the charge sheet to that extent is quashed. The 10 13 SCC 612 appeal is disposed of in the above terms The FIR in respect of other offences will be tried by the competent Court in accordance with law along with the criminal case 11 though separately initiated for the reason that it relates to interparty dispute and is in respect of same subject matter of property despite of the fact that two different dates of the incident have been provided by the parties L. NAGESWARA RAO NEW DELHI NOVEMBER 5 2020 11 FIR No. 1719

No proof of granting debt doesn’t free the defaulter in a Check Bounce Case: High court of Karnataka

Offences under the Negotiable Instrument Act can be proved even when the source of income from the complainant is not disclosed in matters of debt repayment. This was decided by Hon’ble Justice P.N Desai of the High court of Karnataka in Mohan Kumar vs. Syed Mohd Ali [Criminal Appeal 200033 of 2014]. In this case of appeal, the appellant is the actual complainant of the case decided in Trial Court. There existed a fiduciary relationship between the appellant and the defendant. The appellant advanced a loan of about Rs.10 Lakhs to the accused, on account of good friendship. However, after multiple reminders and sending a legal notice, the accused failed to repay the debt. Therefore complaint was filed against the accused under Section 136 of the Negotiable Instruments Act, 1881. The lower courts acquitted the accused because the source of payment of the amount and presence of any person during the said payment by the appellant was not proved. The Trial court also found that it was violative of Section 269 of the Income Tax Act. In the instant case, the accused took the defense that there is no legally enforceable liability on him. He used the absence of any security documents for the transaction to validate this contention. The defense also accused the appellant of running a chit business and that the blank check issued was misused by him. The counsel for the defense, on the other hand, stated that presumption under Section 114 of the Indian Evidence Act and 139 of the Negotiable Instruments Act was available to the appellant. Further, the appellant produced documents of plot ownership thereby suggesting the capacity of the appellant to lend a loan of a huge amount to the defendant. Reliance mas also made on recent cases of Supreme Court like the AIR 2020 SC 945 APS Forex Services Pvt. Ltd., vs. Shakti International Linkers and others. The court categorically stated when there are insufficient funds then there is a statutory presumption in favour of the holder of the cheque that it is dishonoured. The burden to rebut is on the accused and not on the appellant. It further stated that an Issue of debt is no precondition to remove the presumption under section 139 of the Negotiable Instruments Act. It referred to the landmark judgment of the Supreme Court with a similar set of facts that is AIR 2012 SC 1876 Rohitbhai Jivanlal Patel vs State of Gujurat and another. Here, it was held here that “the trial court suffered from perversity and fundamental error of approach. The observations of the Trial Court that there was no documentary evidence to show the source of funds with the respondent to advance loan would have been relevant if the matter was to be examined beyond a reasonable doubt.”

IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 23RD DAY OF DECEMBER 2020 THE HON’BLE MR.JUSTICE P.N.DESAI CRIMINAL APPEAL NO.200083 2014 MOHAN KUMAR S O SHANKAR RATHOD AGE: 34 YEARS OCC: AGRICULTURE R O: GDA COLONY IIIRD PHASE FILTERBEDS PLOT NO.44 DIST: GULBARGA BY SRI A. VIJAY KUMAR ADVOCATE) …. APPELLANT SYED MOHD ALI S O SYED SAMSHODDIN AGE: 48 YEARS OCC: BUSINESS H.NO.5 993 20 52 PLOT NO.52 OMER COLONY AZADPUR ROAD BY SRI. FAIZUDDIN K. ZARDI AND SRI. ALEEMUDDIN SIDDIQUE ADVOCATES) … RESPONDENT THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO CALL FOR RECORDS IN C.C.NO.2088 2012 ON THE FILE OF THE IVTH ADDL. CIVIL JUDGE AND JMFC AT GULBARGA AND BE PLEASED TO SET ASIDE THE JUDGMENT PASSED THEREIN DATED 11.03.2014 AND BE PLEASED TO ALLOW AND CONVICT THE ACCUSED IN ACCORDANCE WITH LAW AND GRANT COMPENSATION ON TO APPELLANT AS AVAILABLE IN LAW. THIS APPEAL HAVING BEEN HEARD RESERVED FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY THIS COURT DELIVERED THE This appeal lays challenge to the judgment of in C.C.No.2088 2012 11.03.2014 by the IV Addl. Civil Judge and JMFC Court Gulbarga. 02. The appellant was the complainant and respondent was the accused before the Trial Court. They will be referred as complainant and accused as per their respective ranks before the Trial Court convenience in this judgment. 03. The brief case of the complainant before the Trial Court was that the complainant and accused are conversant to each other. They are good friends. It is further case of the complainant that on 15.07.2011 accused approached the complainant in respect of hand loan of Rs.9 80 000 for his business needs and other necessities. In view of good relationship complainant advanced the loan on assurance of the accused that he will repay the loan within a month. But the accused did not return the amount inspite of repeated request. Then the accused issued a cheque dated 21.11.2011 bearing No.339579 of State Bank of Hyderabad Super Market Gulbarga for a sum of Rs.9 80 000 to the complainant in discharge of said debt or loan. The complainant presented the said cheque for collection to bank but it was returned dishonoured with a endorsement as "funds insufficient". On the request of accused the cheque was again presented on 07.12.2011. But again the said cheque was returned dishonored for very same reason. 04. The accused did not give proper answer to complainant in this regard hence complainant issued legal notice dated 21.12.2011 which was returned with endorsement that the notice was refused. Therefore complainant filed compliant against the accused for the offence punishable under Section 138 of Negotiable Instruments Act 1881 That the impugned judgment of the Trial Court is not sustainable and liable to be set aside. The accused has not led evidence to discharge the presumption in favour of complainant. c) The defence of the accused was not The Trial Court failed to consider the presumption under Sections 139 and 118 of "N.I. Act". No evidence is adduced to probabalise the probable. The Trial Court has not properly appreciated the decisions referred. With these main contentions the appellant has prayed to allow the appeal. 07. Heard Sri. A. Vijaykumar learned counsel for the appellant and Sri. Faizuddin K. Zardi advocate for learned counsel for the respondent. 08. The learned counsel the appellant submitted that issuance of cheque and signature on cheque is not denied by the accused. Presumption under Negotiable Instruments Act is available to complainant. The presumption is not rebutted by the accused either in the cross examination or in the defence evidence. The defence of the accused is that there was no legally enforceable debt the source of amount is not proved cheque is given as a security for chitt transaction repaid the entire amount but cheque not returned back. The learned counsel argued that no documents were produced to show that complainant was running any chitt business or chitt transaction with accused. In the cross examination of PW.1 there is a suggestion regarding purchasing of plot by complainant that itself shows the income and the capacity of the complainant to lend the loan. Misuse of cheque defence is not proved. Stop payment notice was not given. Notice was sent to the address and house number of the accused and the notice is served. The learned counsel relied upon the judgments of the Hon ble Supreme Court reported in 1) AIR 2020 SC 945 in the case of APS Forex Services Pvt. Ltd. vs. Shakti International Fashion Linkers and others 2) 2019 CRI.L.J 3227in the case of Bir Singh vs Mukesh Kumar 3) 2019 AKR 562 in the case of H. G. Nagaraja vs. H. Suresh Naika. With these main contentions he prayed to set aside the acquittal judgment and convict the accused. 09. Against learned counsel respondent accused argued that there are no additional or other documents were taken by the complainant when huge amount was alleged to have been given as a loan only on the basis of cheque. The accused was a student. Why cheque was issued to him. No source of income of complainant was produced. In fact the complainant was running a chitt business wherein there were fifty members and one has to pay Rs.1 000 each month. On the third month itself the accused got B.C. prize money of Rs.47 000 . So the cheque was issued for Rs.50 000 as a B.C. amount. The plot was sold by the complainant to the accused but the amount was not given as the possession was not handed over. The blank cheque issued by accused was misused. There was no registered sale deed about the plot. The dispute is regarding plot but not for the cheque. When the cheque amount was given to complainant is not stated. The Trial Court has properly appreciated the evidence. The accused has also examined one witness. So considering the grounds of realities and the plot selling business this blank cheque was misused. The learned counsel relied upon the decision of the Hon ble Supreme Court reported in 1) AIR 2008 SC 1325 in the case of Krishna Janardhan Bhat vs Dattatraya G. Hegde 2) 2012KCCR 2057 in the case of Veerayya vs. G. K. Madivalar 3) ILR 2008 KAR 4629 in the case of Shiva Murthy vs Amruthraj. With these main contentions the accused counsel prayed to dismiss the appeal. 10. From the above materials evidence and the points that would arise for my consideration are as under: 01. Whether the learned Trial Court has appreciated the evidence before the light of the sound principles regarding appreciation of evidence in cases arising out of Cheque Bounce" under Negotiable Instruments Act 1881 02. Whether the Judgment passed by the Trial Court in C.C.No.2088 2012 dated illegal perverse and needs interference by this Court 11. My answer to the above points is as under for the reasons given below. 12. The undisputed contentions as borne out from the records are that the issuance of cheque Ex.P.1 in question is admitted by the accused. The accused has not denied his signature on cheque nor he has disputed that the cheque does not belong to him. It is also undisputed that the cheque in question dated 15.07.2011 when presented the bank by complainant it was returned with endorsement that amount insufficient". Issuance of demand notice by the complainant to the accused is also proved as discussed by the Trial Court in Para Nos.13 14 15 and 16. The Trial Court has discussed Ex.P.4 legal notice and the evidence of DW.1 Syed Mohd. Ali. The learned Trial Judge considering Section 27 of General Clauses Act 1897 raised the presumption. Further as per Section 114 of the Evidence Act a presumption is made and it is held that the demand notice is served in accordance with law on the accused. 13. Now the grounds on which the learned Trial Court has acquitted the accused are that a) without there being any additional document or without any security such a huge amount was paid. b) Source of payment of huge amount was not proved by complainant. c) The persons in whose presence the loan was advanced is not proved. So on these grounds the learned Trial Judge come to conclusion that without proving execution of any other document as a security for the said loan handing over loan of huge amount without interest and in violation of Section 269 of Income Tax Act the contention of the complainant are not tenable. Hence he acquitted the accused. In my considered view such a finding of the Trial Court is without any legal basis and contrary to the evidence on record. It is settled principles of law that once the cheque is issued and signed by the accused and if it is returned dishonored stating that the amount in account is "insufficient" then there is a statutory presumption is in favour of the holder of the cheque that the cheque which was issued for enforcement of debt or liability is dishonored. The burden to rebut the presumption is on the accused. The accused can rebut such presumption either by cross examining the complainant and showing before the Court the evidence in cross examination probabalise the defence of the accused or the case of the complainant is not proved. Secondly the accused can also lead defence evidence to rebut the presumption. 15. The defence of the accused in this case is that there is no legally enforceable debt or liability by him as contended by the complainant. There is no source of income to the complainant to pay the amount shown in the cheque. No documents like surety bond promissory note or other security documents were taken when such huge amount was stated to have been given as a hand loan. The accused further defence is that cheque is given as a security for chitt transaction. His main contention is that he has repaid the entire cheque amount and not taken back the cheque. In the light of the case of complainant and defence of the accused the evidence in this case will have to be appreciated. PW.1 Mohan Kumar complainant in his examination in chief has reiterated the complaint averments. He has stated about the loan borrowed by the accused. He has also produced the cheque Ex.P.1 which is admittedly signed by the accused. Exs.P.2 and 3 are the Bank Endorsements showing that the said cheque was returned with endorsement as insufficient. Ex.P.4 is the demand notice. Ex.P.5 is the postal receipt. Ex.P.6 is the un served postal receipt. Ex.P.7 is the bank pass book. So all these documents clearly indicate the complainant has proved ingredients of Section 138 of N.I.Act". Though PW.1 was cross examined there is nothing in his evidence so as to rebut the presumption under Section 139 of "N.I.Act". The Trial Court has quoted the extracts of some of his deposition of PW.1 regarding he has not obtained on demand promissory note separate agreement and complainant not doing any other work except agricultural work he completed degree in the year 2013 and on that basis came to the conclusion that he has no source of income to give hand loan. This observation and finding is totally wrong and not based on any legal presumption or decisions. A suggestion is made the cross examination of PW.1 that he has purchased the plots this is not denied. He has also stated that he has sold his plots for Rs.10 50 000 and that amount was with him. The said evidence is also not denied. Even in his cross examination he has stated at Para No.9 that his father has got 35 to 40 acres of agricultural lands and he has got 10 acres of lands bearing Sy.Nos.60 and 85 and he is a agriculturist. The said evidence elicited in the cross examination by the accused. 17. Therefore the stray sentences picked up from the evidence of complainant referred by the Trial Court will not help the accused. On the other hand it help the complainant to show that he has got sufficient income to purchase the plots to give loan out of the money which he received by selling the plots. He has got agricultural lands. The Trial Court has also wrongly appreciated the evidence of Manager of the Bank PW.2 wherein he has stated that the complainant has not withdrawn the amount on 15.07.2011 then the accused case appears to be not true. Such a inference is not based on any material when it is not the case of complainant that he has withdrawn the amount from the bank and given it to the accused then the observation of Trial Court in this regard is not tenable. 18. The learned counsel for the appellant has relied upon decision of the Hon ble Supreme Court reported in 2019 CRI.L.J 3227 in the case of Bir Singh vs Mukesh Kumar wherein at Para Nos.36 37 38 39 40 and 41 it is held as under : 36. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act. 37. A meaningful reading of the provisions of the Negotiable Instruments Act including in particular Sections 20 87 and 139 makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer if the cheque is duly signed by the drawer. If the cheque is otherwise valid the penal provisions of Section 138 would be 38. If a signed blank cheque is voluntarily towards some payment the payee may fill up the amount to a payee and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. It is not the case of the respondent accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent accused that the unfilled signed cheque had been stolen. The relationship between the payee of a cheque and its drawer would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act in the absence of evidence of exercise of influence or coercion. The second question is also answered in the negative. of a 40. Even a blank cheque leaf voluntarily signed and handed over by the accused is towards some payment would attract presumption under Section 139 of the Negotiable Instruments Act in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. 41. The complainant might have been an Income Tax practitioner conversant with knowledge of law does not make any difference to the law relating to the dishonour of a cheque. The fact that the loan may not have been advanced by a cheque or demand draft or a receipt might not have been obtained would make no difference. In this context it would perhaps not be out of context to note that the fact that the respondent accused should have given or signed blank cheque to the appellant complainant as claimed by the respondent accused shows initially there was mutual trust and faith between them." 19. The learned counsel for the appellant has also relied upon another decision of the Hon ble Supreme Court reported in AIR 2020 SC 945 in the case of APS Forex Services Pvt. Ltd. vs. Shakti International Fashion Linkers and others at Para No.7 it is held as under: 7. Coming back to the facts in the present case and considering the fact that the accused has admitted the issuance of the cheques and his signature on the cheque and that the cheque in question was issued for the second time after the earlier cheques were dishonoured and that even according to the accused some amount was due and payable there is a presumption under Section 139 of the N.I. Act that there exists a enforceable debt or liability. Of course such presumption is rebuttable in nature. However to rebut the presumption the accused was required to lead the evidence that full amount due and payable to the complainant has been paid. In the present case no such evidence has been led by the accused. The story put forward by the accused that the cheques were given by way of security is not believable in absence of further evidence to rebut the presumption and more particularly the cheque in question was issued for the second time after the earlier cheques were dishonoured. Therefore both the courts below have materially erred in not properly appreciating and considering the presumption in favour of the complainant that there exists legally enforceable debt or liability as per Section 139 of the N.I. Act. It appears that both the Learned Trial Court as well as the High Court have committed error in shifting the burden upon the complainant to prove the debt or liability without appreciating the presumption under Section 139 of N.I. Act. As observed above Section 139 of the Act is an example of reverse onus clause and therefore once the issuance of the cheque has been admitted and even the signature on the cheque has been admitted there is always a presumption in favour of the complainant that there exists legally enforceable debt or liability and thereafter it is for the accused to rebut such presumption by leading evidence". 20. The learned counsel also relied upon the decision of the learned Single Judge of this Court reported in 2019 AKR 562 in the case of H. G. Nagaraja vs. H. Suresh Naika at Para Nos.8 9 10 and 11 it is held as under: 8. Be that as it may. Even as could be seen from the defence taken by the accused during the course of cross examination that the complainant has no financial capacity to lend such huge amount and the said cheque was issued to one Ravindranath for security purpose and the same was misused by the complainant and filed a false complaint the said defence itself clearly goes to show that the said cheque has been issued from the account of the accused and it bears his signature and it is his specific case that the said cheque has been to one Ravindranath for the purpose of security. When accused admits the signature then under such circumstances the Court has to draw a presumption mandated under Section 139 of the N.I. Act. This proposition of law has been laid down by the Hon ble Apex Court in the case of Rangappa Vs. Sri.Mohan reported in 11 SCC 441 wherein at paragraph 16 it has been observed as under: 16. All of these circumstances led the High Court to conclude that the accused had not raised a probable defence to rebut the statutory presumption. It was held that: 6. Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the N.I. Act is a mandatory presumption and not a general presumption but the accused is entitled to rebut the said What is required to be established by the accused in order to rebut the presumption is from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court. The defence raised by the accused was that a blank cheque was lost by him which was made use of by the complainant. Unless this barrier is crossed by the accused the other defence raised by him whether the cheque loan or towards the amount spent by the complainant need not be considered. ..." the hand Hence the High Court concluded that the alleged discrepancies on part of the complainant which had been noted by the trial court were not material since the accused had failed to raise a probable defence to rebut the presumption placed on him by Section 139 of the Act. Accordingly the High Court recorded a finding of conviction. On going the said paragraph it reveals that Section 139 of the N.I. Act mandates the Court to draw a presumption that the said cheque has been in discharge of debt or However the accused is permitted to rebut the said presumption on preponderance of probabilities to show that the complainant was not having any capacity to lend money and there was no legally recoverable debt or liability and the said cheque has been issued for the purpose of security. It is for the accused to prove his defence when once he has taken a specific contention that the said cheque has been issued to one Ravindranath for the purpose of security and the same has been misused by the complainant burden is on the accused to prove the same. 10. Even though during the course of cross examination of PW.1 it has been suggested that the said cheque has been issued as a security to Ravindranath and the same has been misused the said suggestion has been denied. Apart from that neither the accused has stepped into the witness box nor produced any document. Even he has not given any reply to the notice issued by the complainant as per Ex.P3. If really he has not availed the loan from the complainant and the complainant has misused the cheque Ex.P1 then under such circumstances immediately after receipt of the legal notice as per Ex.P3 he could have given reply stating the said fact. Keeping silent over the said notice it draw a presumption that he was not having any grievance after receipt of the said notice and even after coming to know after receipt of the legal notice the said cheque has been bounced for insufficient funds then under such circumstances at least he could have filed a complaint alleging that the cheque which has been issued as a security to one Ravindranath has been misused. The conduct of the accused also does not substantiate his case. When the presumption has been drawn under Section 139 of the N.I. Act about the recoverable debt and the said presumption has not been rebutted by cogent and acceptable evidence then under such circumstances the case of the complainant stands proved and accused is liable to be convicted under Section 138 of the N.I. Act. Without looking into the said fact the trial Court only on the basis of the contention of the accused that a huge amount has been advanced and the complainant is not having any capacity to lend such huge amount and on that count the trial Court has acquitted the accused. But as could be seen from the cross examination of PW1 in his evidence it has been elicited that per month he is getting a salary of Rs.5 000 to Rs.15 000 and he is working as a Cinema Representative and per day he is running four shows and he has taken the house on a lease by giving Rs.5 00 000 and it has also been elicited that he is having a only son and he is working in Bengaluru. All these materials even draw the attention of this Court that the complainant is having capacity to lend the said amount. 11. Be that as it may. When a presumption has been drawn under Section 139 of the N.I. Act the said presumption is that there exists legally recoverable debt or liability. Then under such circumstances the trial court until it is rebutted it ought not to have gone to the said facts and ought not to have acquitted the accused. The reasons arrived at by the Court below are not based upon any cogent and acceptable evidence and as such the same is liable to be set aside and the accused is liable to be convicted. 21. There is also a decision of the Hon ble Supreme Court reported in AIR 2019 SC 1876 Rohitbhai Jivanlal Patel vs State of Gujarat and another wherein at Para Nos.19 it is held as under: Trial Court. 19. Hereinabove we have examined in detail the findings of the Trial Court and those of the High Court and have no hesitation in concluding that the present one was clearly a case where the decision of the Trial Court suffered from perversity and fundamental error of approach and the High Court was justified in reversing the observations of the Trial Court that there was no documentary evidence to show the source of funds with the respondent to advance the loan or that the respondent did not record the transaction in the form of receipt of even kachcha notes or that there were inconsistencies in the statement of the complainant and his witness or that the witness of the complaint was more in know of fact etc. would have been relevant if the matter was to be examined with reference to the onus on the complaint to prove his case considerations and observations do not stand in conformity with the presumption existing in favour of the complainant by virtue of Sections 118 and 139 of the NI Act. Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour such a complainant. When presumption is drawn the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were consideration while examining if the accused has been able to rebut the presumption or not. The other observations as regards any variance in the statement of complainant and witness or want of knowledge about dates and other particulars of the cheques or washing away of the earlier cheques in the rains though the office of the complainant being on the 8th floor had also been of irrelevant factors for consideration of a probable defence of the appellant. Similarly the factor that the complainant alleged the loan amount to be Rs.22 50 000 and seven cheques being of Rs.3 00 000 each leading to a deficit of even worth Rs.1 50 000 determination of real questions involved in the matter. May be if the total amount of cheques exceeded the alleged amount of loan a slender doubt might have arisen but in the present matter the total amount of 7 cheques is lesser than the amount of loan. Significantly the specific amount of loan was distinctly stated by the accused appellant in the aforesaid acknowledgement dated the purpose of 22. So in the light of the above principles if the evidence of complainant is considered and in the light of defence taken by the accused then it is crystal clear that the complainant has proved his case and an offence under Section 138 of N.I.Act against the accused is made out by the complainant by legally admissible 23. The defence of the accused is considered in the light of the above referred decisions then it is crystal clear that the accused defence is neither probabale nor tenable. The accused has simply stated that the complainant was running a chitt fund business and he was member of it. He has issued a blank cheque for the prize of chit fund a sum of Rs.50 000 . The complainant has promised him to return the cheque but he did not return the cheque. Accused has further stated that he has purchased one plot from complainant for Rs.3 00 000 but he was not given possession. So for that purpose there is a dispute. This is accused defence. But no documents are produced to show that there was any chitt fund business run by the complainant. If at all the complainant has not returned the cheque why no intimation was given to the bank to stop payment. No criminal case is filed against the complainant in this regard. No action is taken for filing this complaint if at all this is a false case. So the accused in his exanimation in chief never rebuts any statutory presumption arising in favour of complainant. In the cross examination he has admitted that he has no documents to show that complainant was running a chitt fund business. He has also admitted that he has not filed any suit seeking possession of the land sold by the complainant. He has also stated that he do not know whether the plots were sold by the complainant are still in existence or not. He has clearly admitted that Ex.P.1 cheque belongs to him and Ex.P.1(a) is his signature. So his evidence will not help to the accused in any way to rebut the presumption in favour of the 24. The accused examined one S. Mohan Kumar as DW.2. The said witness also states that he is also member of Chitt B.C. Business and very strangely states in examination in chief that accused has paid entire B.C. amount. He further states that himself and accused asked complainant to return the cheque the complainant returned his cheque but he do not know whether the cheque issued by the accused was returned to him or not. So this evidence in examination in chief falsifies the defence of the accused. DW.2 has also admitted that he do not know the name and address of members of the chitt fund business. He do not know the cheque number given by him. He do not remember the date and month when he has given cheque to the complainant. He has no documents to show about payment of B.C.amount. He cannot say the date and month when the accused has given the cheque to the complainant. He has not attended any panchayat regarding cheque given by the accused in favour of the complainant. He has clearly stated he do not know anything about this case. He do not know what is amount of cheque involved in this case. So this type of evidence of DW.2 totally falsify the defence of the 25. Therefore the findings of the learned Trial Court that the complainant has failed to prove the debt and the accused has substantiated his defence by preponderance of probability is totally illegal perverse and not based on the evidence on record or the settled principles regarding appreciation of evidence. The decisions relied upon by the learned counsel for the accused reported in 2012KCCR 2057 in the case of Veerayya vs. G. K. Madivalar the decision of the Hon ble Supreme Court reported in AIR 2008 SC 1325 the case of Krishna Janardhan Bhat vs Dattatraya G. Hegde and another decision reported in ILR 2008 KAR 4629 in the case of Shiva Murthy vs Amruthraj will not help the accused in any way. In the decision of this Court referred by the accused counsel in that case the suit filed for recovery of cheque amount which was dismissed. Whether the complaint was premature or not was in question. The principles stated in the decision of Krishna Janardhan Bhat was referred by the Hon ble Supreme Court and this High Court in number of subsequent decisions. The principles stated in that decision has no application to the evidence and facts of this case. Therefore that decisions in no way help the accused. In the light of the principles stated in the above referred decisions of the Hon ble Supreme Court if the present appeal the judgment and evidence placed on record are considered then it is evident that the complainant has proved by legally admissible evidence that the accused has borrowed loan of Rs.9 80 000 and issued cheque Ex.P.1 in discharge of the said debt or liability which is legally recoverable. The accused has failed to rebut statutory presumption in favour of complainant. The Trial Court has not appreciated the principles stated by the Hon ble Supreme Court and this Court in the cases under Negotiable Instruments Act particularly cheque bounce case. The Trial Court has failed to appreciate the burden of proof and drawing presumption. Only on untenable contentions and evidence the Trial Court has acquitted the accused. Therefore the judgment of the Trial Court is illegal perverse and needs interference by this Court and liable to be set aside. 26. It is crystal clear that the accused has committed an offence punishable under Section 138 of Instruments Act and he needs to be sentenced accordingly. 27. The Section 138 of Negotiable Instruments Act 1881 provides punishment both imprisonment which may extend two years or with fine which may extend to twice the amount of cheque or with both. 28. The offences under Negotiable Instrument Act are regulatory offences intend to give sanctity to the negotiable instruments. Keeping in mind the settled principles regarding imposition of sentence in cheque bounce case in my considered view the accused needs to be imposed the fine double the cheque amount. In this case the cheque amount is Rs.9 80 000 . The case of the year 2012. Now we are in the end of the year 2020. So nearly eight years the case is pending. Therefore in my considered view the imposition of double the cheque amount as a fine is a proper sentence. Hence I answer the Points for consideration accordingly and proceed to pass the following: The Criminal Appeal filed under Section 378of Code of Criminal Procedure by the appellant complainant is allowed. The Judgment and order of acquittal passed in C.C.No.2088 2012 dated 11.03.2014 by the IV Addl. Civil Judge and JMFC Court at Gulbarga. is hereby set The accused respondent is hereby convicted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. The accused respondent is sentenced to pay a fine of Rs.19 60 000 Rupees Nineteen Lakhs Sixty Thousand only) shall be paid to the appellant complainant PW.1 Mohan Kumar s o Shankar Rathod as compensation under Section 357 of the Code of Criminal Procedure 1973. The remaining amount of Rs.10 000 shall be credited to the State Account. Send back the secured records of the Trial Court Sd

Section 47 of the Tamil Nadu Panchayats Act, 1994 come into play only when elections had not been held for the post of President – Madras High Court

That very order, nominating the petitioner as President, itself is not lawful and non est in the eyes of law. Therefore, the petitioner cannot claim any right owing to the holding of a post to which he had no right to hold. This was decided by a single bench heading Honourable Mr. Justice C.V. Karthikeyan in the case of Pandiarajan v. The District Collector & Anr. W.P.(MD)No.15135 of 2021 In the case of Pandiarajan v. The District Collector & Anr. Writ Petition was filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari, seeking interference of the proceedings by the respondent (District Collector/Inspector of Panchayat, Sivagangai District). The entire dispute arose when the two candidates for President of Sankarapuram Panchayat, Ms. Devi and Ms. Priyadharshini, questioned each other’s eligibility to be President of the Panchayat and were engaged in judicial processes that eventually reached the Honourable Supreme Court’s portals, where an interim injunction was issued prohibiting A. Priyadharshini from taking office. This created a vacuum and the petitioner, who was elected as Vice President by the Ward Members provided with an opportunity to act as the President of the Panchayat. The learned Counsel for the petitioner cited Section 47 of the Tamil Nadu Panchayats Act, which said that if the office of President is vacant, the Vice President will execute the powers of the President. As a result, the petitioner claimed that not only had he been wrongfully robbed of the advantage of being the first authority to sign checks, but that he had also seized the ability to summon meetings, which is also a privilege associated with the position of President. Sections 83 and 84 of the Tamil Nadu Panchayats Act were also cited by the learned Counsel. The learned Counsel for the petitioner relied on a judgment of Honourable Supreme Court in the case of Samuel vs Tukaram Laxman Sable and ors,1995 Supp (4) SCC 215 and pointed out the following observation “…. It is also admitted that as on today, no fresh or other proceedings have been initiated for removal/disqualification of the appellant for any alleged irregularities. In the circumstances, denying him the office of President would amount to punishing him for no fault of his. It cannot be that he is not guilty and yet he is removed from the offices held by him……” The Honourable Mr. Justice C.V. Karthikeyan dismissed the case and other miscellaneous petitions that Section 47 of the Act does not come into play in the instant case. And that provision would come into play only when elections had not been held for the post of President and the post had therefore fallen vacant or an elected President suffered from some inability and therefore the post had fallen vacant necessitating fresh elections. That is not the situation in the instance case. The second respondent has every right to call for meetings and as observed, let the meetings proceed in accordance with the resolution passed by the majority of the members who participate in the meetings.

W.P.(MD)Nos.15135 and 175321BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTRESERVED ON : 08.12.2021PRONOUNCED ON : 20 .12.2021 CORAM THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYANW.P.(MD)Nos.15135 and 175321andW.M.P.(MD)Nos.12059 14374 14375 and 143721W.P.(MD)No.151321: Pandiarajan... Petitionervs.1.The District Collector Inspector of Panchayat Union Sivagangai Sivagangai District.2.The Block Development Officer Sakottai Panchayat Sivagangai District.... RespondentsPRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari to call for the records relating to the impugned proceedings in Na.Ka.A1 558 2020 dated 17.08.2021 issued by the first respondent and quash the same as illegal. 1 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 175321W.P.(MD)No.175321: Pandiarajan... Petitionervs.1.The District Collector Inspector of Panchayat Union Sivagangai Sivagangai District.2.The Block Development Officer Sakottai Panchayat Sivagangai District.3.The Executive Officer Sankarapuram Panchayat Union Sivagangai District.... RespondentsPRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari to call for the records relating to the impugned proceedings of the third respondent signed on 09.09.2021 styled as “Monthly Meetin Notice” in respect of Sankarapuram Panchayat Sakottai Union Sivagangai District and quash the same.For Petitioner:Mr.V.R.ShanmuganathanFor Respondents:Mr.VeerakathiravanAdditional Advocate General IIIassisted by Mr.S.KameswaranGovernment Advocate(In both cases) 2 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 175321COMMON ORDERBoth Writ Petitions have been filed by Mr.Pandiarajan. Owing to unexpected circumstances he found himself thrust to the post of President Sankarapuram Village Panchayat Karaikudi in Sivagangai District.2.W.P.(MD)No.151321 had been filed in the nature of Certiorari seeking interference of the proceedings dated 17.08.2021 of the first respondent District Collector Inspector of Panchayat Sivagangai District which relegated the petitioner as the second authority to sign cheques for and on behalf of the Panchayat in view of his actual position as Vice President and had relegated the second respondent Block Development Officer Sakottai Panchayat Union Sivagangai to act as the first authority to sign the cheques. 3.This Writ Petition has been filed expressing grievance at the said proceedings since till that time the petitioner though the Vice President was acting as in default President owing to the fact that the contestants to the post of President were locked a legal battle pending before the 3 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 175321Honourable Supreme Court and an interim direction had been given that neither of them should be permitted to function as President. 4.W.P.(MD)No.175321 had been filed again in the nature of Certiorari seeking interference with a notice calling for monthly meeting by the second respondent Block Development Officer Sakottai. It had been filed questioning the authority of the second respondent Block Development Officer to act as Chairperson of the meeting when the petitioner claimed that as in default President he should have that privilege and also on the apprehension that during the meeting a resolution adverse to the interest of the petitioner might be passed.5.The entire case of the petitioner had arisen owing to the fact that the two contestants for the post of President of Sankarapuram Panchayat Ms.Devi and Ms.Priyadharshini had questioned each others right to be the President of the Panchayat and got embroiled in judicial proceedings which finally had reached the portals of the Honourable Supreme Court and an interim direction had been issued by the Honourable Supreme Court as follows:4 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 175321“Until further orders there shall be a stay of operation of the impugned judgment(s) and order(s) passed by the High Court.We also direct that the petitioner viz. A.Priyadharshini shall not assume charge for the post of President of Sankarapuram Panchayat until further orders of this Court.”6.This created a vacuum and the petitioner who was elected as Vice President by the Ward Members provided with an opportunity to act as the President of the Panchayat giving further opportunity to lay a prominent stake for the same. By proceedings dated 09.04.2020 the first respondent District Collector Inspector of Panchayat realising that a President is required for the effective functioning of the Panchayat permitted the petitioner to perform the functions of the President. This permission was granted by the first respondent invoking Section 203 of the Tamil Nadu Panchayats Act 1994. The petitioner however also claims that under Section 47(1) of the same Act whether the first respondent had passed such order or not as Vice President he was entitled to perform the functions of the President whenever the post of the President falls vacant. 7.At any rate he commenced functioning the post of President. 5 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 175321This effectively meant that in all cheques issued for and on behalf of the President he was the first signatory and there was another second signatory the Member from Ward No.6 Nallammal Selvarani. She was so permitted by proceedings dated 27.05.2020.8.The impugned proceedings came to be passed on 17.08.2021 again by the first respondent District Collector Inspector of Panchayats withdrawing that particular privilege granted to the petitioner and relegating the petitioner to his actual position namely Vice President and appointing the Block Development Officer of Sakottai Panchayat as the first signatory to sign any cheque. Questioning that proceedings W.P.(MD)No.151321 had been filed by the petitioner.9.Mr.VR.Shanmuganthan leaned Counsel for the petitioner questioned the legality of the impugned proceedings by stating that the petitioner was not heard prior to withdrawal of his privilege to act as President and that notice was also not issued. It was also pointed out that though in the proceedings there is reference that complaints had been received from various persons the copies of those complaints had not 6 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 175321been put to the petitioner herein by the Collector thereby violating the principles of natural justice.10.The learned Counsel for the petitioner also pointed that the petitioner was incidentally also the Executive Authority of the Panchayat. He further pointed Section 206 of the Act which related to the removal of Vice President and pointed out that the provisions required issuance of notice examination of the explanation and passing orders on consideration of the same.11.The learned Counsel for the petitioner placed specific reliance on Section 47 of the Act which provided that the Vice President shall exercise the functions of the President if the office of President is vacant. This among these functions would also include the right to convene the meetings of the Village Panchayat and also to execute and implement all schemes programs or activities that may be entrusted to the President. 12.It was therefore the contention of the petitioner that not only 7 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 175321had he been unreasonably removed from the privilege of being the first authority to sign the cheques but also that the second respondent Block Development Officer had usurped the right to call for meetings which is also a privilege attached to the post of President. This has led lead to the filing of W.P.(MD)No.175321.13.In the counter affidavit filed by the first respondent District Collector Inspector of Panchayat it is contended that the petitioner had been co opted as a President owing to a dispute between the two candidates who contested the post of President and in order to avoid a vacuum the petitioner as the Vice President was permitted to function as President. It was only a temporary arrangement. It was not an arrangement which the petitioner can seek as a matter of right. It had also been contended that having been given such a privilege it was only expected that the petitioner would bestow his attention towards the proper functioning of the Panchayat but rather unfortunately complaints have been received and this necessitated the first respondent to interfere with and withdraw such power and restore the petitioner back to his original post as Vice President. 8 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 17532114.It had further stated that if the petitioner had been selected as President and had been removed or his power had been divested then opportunity must be given to him. But a permission granted had been withdrawn. Both grant of permission and withdrawal of permission were within the rights of the first respondent to ensure the smooth functioning of the Panchayat. The procedure was therefore justified by the first respondent.15.In the counter affidavit filed by the second respondent Block Development Officer it had been contended that the petitioner was only holding the post of President temporarily and that since complaints had been received the first respondent District Collector Inspector of Panchayat had taken a considered decision to withdraw such privilege. It had therefore been stated that there was no withdrawal of any of the existing right of the said petitioner but only restoring the petitioner back to his original position as Vice President.16.It was also contended by the second respondent that as the 9 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 175321authority who has the privilege to sign the cheques first he has every authority to call for meeting. The meeting was only to discuss the affairs of the Panchayat and the petitioner cannot interfere with the same. He can always participate in the meeting and speak up for the benefit of the Panchayat.17.Heard Mr.VR.Shanmuganathan learned Counsel for the petitioner in both the Writ Petitions and Mr.Veerakathiravan learned Additional Advocate General assisted by Mr.S.Kameswaran learned Government Advocate for the respondents in both the Writ Petitions.18.Mr.VR.Shanmuganathan learned Counsel for the petitioner pointed out that the first respondent District Collector Village Panchayat keeping in mind the smooth functioning of the Panchayat had taken a conscious decision to nominate the petitioner as President of the Panchayat. The learned Counsel pointed out that under Section 47 of the Tamil Nadu Panchayat Act 1994 in the absence of the President the Vice President has a right to function as President. It was also contended by the learned Counsel that without any notice such permission had been 10 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 175321withdrawn by the first respondent and this act seriously violated the principles of natural justice. If the petitioner had been put on notice about the nature of the allegations he could have very well answered the same. 19.The learned Counsel also placed reliance on Sections 83 and 84 of Tamil Nadu Panchayats Act and stated that the Executive Authority cannot be a President and under Section 84 of the Act the functioning of the Executive Authority had been given and in this connection the learned Counsel for the petitioner stated that the decision taken by the first respondent will necessarily have to be interfered with. It had also been contended that under Rule 3 of Tamil Nadu Panchayats Rule 2000 meetings can be called only by the President and under Rule 6 the agenda can be determined only by the President.20.It was further pointed out that under Rule 3 of the Tamil Nadu Village PanchayatsRules 1999 the Executive Authority shall determine the tax which each person having property is liable to pay. The learned Counsel therefore stated 11 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 175321that the allegations of the first respondent cannot be held against the petitioner herein since while functioning as President he had every authority to assess and collect taxes for the properties. 21.The learned Counsel for the petitioner relied on a judgment of Honourable Supreme Court in the case of Samuel vs Tukaram Laxman Sable and others reported in 1995 SuppSCC 215 and pointed out the following observation of the Honourable Supreme Court:“8..... It is also admitted that as on today no fresh or other proceedings have been initiated for removal disqualification of the appellant for any alleged irregularities. In the circumstances denying him the office of President would amount to punishing him for no fault of his. It cannot be that he is not guilty and yet he is removed from the offices held by him......” 22.The learned Counsel also relied on a judgment of this Court in the case of S.Udayakumar vs The District Collector cum Inspector of Panchayats and others reported in 2009MLJ 537 and pointed out the following observation:“21. Section 203 of the Act empowers the Inspector to take immediate action in case he was of the opinion that there was an emergent situation to provide for the execution of any work or the doing of any act which a panchayat or executive authority or 12 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 175321commissioner or secretary is empowered to execute or do and the immediate execution or doing of which is in his opinion necessary for the safety of the public. In such cases the Inspector Collector was entitled to pass appropriate orders for executing such work or doing such act and for payment of the amount for such works from the panchayat fund in priority to any other charges.22. The power given to the Collector or Inspector was an emergency power to do certain acts in the interest of the panchayat. It was not an ordinary power to interfere in the affairs of the village panchayat. In case the village panchayat President or Executive Authority makes default in performing any of the duties imposed by or under the provisions of the Act the Inspector was given powers under Section 204 of the Act to take appropriate action. The Collector or Inspector was not obliged to use the emergency powers as a routine measure......”23.The learned Counsel relied on yet another judgment of this Court in the case of Logeswari vs The District Collector Tiruchirappalli and others reported in 2013CTC 846 and pointed out that in that particular case notice had not been issued. This Court had held as follows in paragraphs 17 and 22:“17.The powers conferred upon the Collector under Section 203 is not intended to act as an authority to take Disciplinary proceedings against the President or Vice President. The Government wanted the activities of the Panchayats to be taken up emergently without obtaining formal orders from the Panchayat or Executive Authority. In case the Collector is of the view that the execution of a particular work is imminent or the doing of a particular thing is necessary for the safety of the 13 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 175321public it is open to him to take up such works without the association of the Panchayat or Executive Authority. A careful reading of Section 203 in the light of Section 86 of the Act would make the position very clear that the power is intended to exercise only in emergency. ......22.The Inspector of Panchayats is given power under Section 205 of the Act to remove the President from office. Similar powers are given under Section 206 of the Act for the purpose of removal of Vice President. Sub Sectionof Section 205(1) of the Act gives authority to the Inspector of Panchayats to take action against the President of Panchayat in case it is made out that the President abused the power vested in him. In case it is made out that the President abused the cheque signing power and misappropriated the public funds the same can be a valid reason to initiate action for removal under Section 205 of the Act.” 24.The learned Counsel thus contended that exercise of powers by the first respondent was an act of punishment and was not warranted and if it is to be termed as punishment it cannot be imposed without putting the petitioner on notice. The learned Counsel therefore urged that both the impugned orders should be set aside and the Writ Petitions must be allowed.25.Mr.Veerakathiravan learned Additional Advocate General on the other hand pointed out that this case has to be differentiated from all the precedents cited by the learned Counsel for the petitioner since the 14 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 175321petitioner herein was permitted to act as President only pending resolution of the dispute before the Honourable Supreme Court and it was expected that the petitioner herein would discharge the duties of the President in accordance with the Rules. However complains had come against the functioning of the petitioner herein necessitating withdrawal of the power. The learned Additional Advocate General stated that notice was therefore not necessary as the petitioner cannot claim any right to act as a President and therefore in the interest of Panchayat the emergency measures had been resorted to by the first respondent and therefore the impugned proceedings had been passed. It was pointed out that the petitioner was only restored to his actual position namely Vice President and therefore the learned Additional Advocate General justified the impugned proceedings.26.I have given careful consideration to the arguments advanced and have perused the records available on record.27.The petitioner cannot claim to be the President of the Panchayat. He did not contest in the election for the post of President. 15 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 175321He contested only for the post of Ward Member. The Ward Members who got elected later selected him as Vice President. He cannot aspire to be the President. There had been an independent election for the post of President. But owing to the disputes between the two rival candidates there has been a small vacuum in the post of President. 28.There were two rival candidates for the post of President and there cannot be any scope for a third person to enter into and act as a President. The dispute between the two candidates Ms.Devi and Ms.Priyadharshi was pending before the Honourable Court and one of them alone in accordance with the judgment of the Honourable Supreme Court can be the President of the Panchayat. Nobody else can claim any lawful right.The initial act of the Collector appointing the petitioner as President itself is questionable since the post of President was subjudice before the Honourable Supreme Court and viewed from any angle the first respondent should have obtained permission from the Honourable Supreme Court before permitting the petitioner herein to act as President of the Panchayat. 16 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 17532129.Section 47 of the Tamil Nadu Panchayats Act relied upon by the learned Counsel for the petitioner will have no application to the circumstances of this Act. Section 47(1) of the Act is as follows:“47.When the office of president is vacant the vice president shall exercise the functions of the president until a new president is declared elected and assumes office.” 30.This provision comes into play only when the office of the President is vacant. Here it is not vacant. The dispute is live before the Honourable Supreme Court. At any point of time the post will be filled. It is vacant only because it is under consideration of the Honourable Supreme Court and therefore the petitioner has no right to claim the post of President. 31.Even a cursory reading of the above provision shows that a Vice President can exercise the functions of the President till a new President is declared and elected. This would obviously meant to cover a situation where the post of President had fallen vacant owing to the fact that the elections were not held. When no elections had been held then the Vice President can act as President. In the instance case the elections 17 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 175321for the post of President had been conducted. The petitioner did not contest in that election for the post of President.32.The result of the election depends upon the judgment of the Honourable Supreme Court. The first respondent District Collector Inspector of Panchayat made a grave error while passing the proceedings on 09.04.2020 nominating the petitioner as President. He should have done so only after obtaining permission from the Honourable Supreme Court. That very order nominating the petitioner as President itself is not lawful and non est in the eyes of law. Therefore the petitioner cannot claim any right owing to the holding of a post to which he had no right to hold. The post of President will have to abide the judgment of Honourable Supreme Court. Till such time as it was done in the impugned proceedings the first respondent District Collector Inspector of Panchayats should have appointed the second respondent Block Development Officer or any other independent and responsible Official to act as the President. The first respondent should atleast have filed an application before the Honourable Supreme Court seeking permission and then appointing anybody as President till the 18 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 175321judgment is declared by the Honourable Supreme.33.When the right of the petitioner to function as the President itself is questionable withdrawing the powers can never be assailed by him. The judgments quoted by the learned Counsel for the petitioner are distinguishable on facts with the present case. Here once complaints had been received then the first respondent District Collector Inspector of Panchayats had realised his error and with authority to revisit his earlier order had set the clock right and had divested the petitioner of all powers and restored the only powers which he can legitimately enjoy as Vice President. That alone has been done. I would therefore not interfere with the impugned orders. 34.The first respondent District Collector Inspector of Panchayats had nominated the second respondent as the cheque signing authority alone. Therefore that nomination is also lawful. As a responsible functionary the second respondent has every right to call for meeting. During the meeting if the Ward Members take a decision as to who is to preside over the meeting then very certainly the second 19 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 175321respondent Block Development Officer would abide by such resolution. Therefore even W.P.(MD)No.175321 is extremely premature. There must be periodical meetings of the Members of the Panchayat to take crucial decisions. The meetings may be called for only by the second respondent and thereafter the members who attend the meeting can regulate the procedure in which the meeting is to be conducted. 35.W.P.(MD)No.175321 has been filed even before the meeting could be convened and I would therefore dismiss the said Writ Petition and permit the second respondent to call for monthly meetings and give the liberty to the elected representatives Ward Members to formulate the procedure for the meetings to be held. I hope that they would do so keeping in mind the interest of the voters who elected them as representatives.36.In view of the above reasoning the order of the first respondent withdrawing the powers of the petitioner herein and relegating him back to the position of Vice President and as the second authority to sign the cheques is upheld. I specifically hold that since complaints had been 20 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 175321received the correct step has been taken by the first respondent and in this regard since the initial permission to the petitioner to act as President itself is unlawful owing to the peculiar circumstances of the litigation now pending in the Honourable Supreme Court the issue of notice not being served on the petitioner and explanation not being called from him cannot be agitated. I hold there has been no violation of the principles of natural justice and as a mater of fact the said principles will not apply in the instant case since the petitioner was holding a post which he was not at all entitled to. 37.Section 47 of the Act does not come into play in the instant case. That provision would come into play only when elections had not been held for the post of President and the post had therefore fallen vacant or an elected President suffered from some inability and therefore the post had fallen vacant necessitating fresh elections. That is not the situation in the instance case. 38.The second respondent has every right to call for meetings and as observed let the meetings proceed in accordance with the resolutions 21 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 175321passed by the majority of the members who participate in the meetings. Therefore W.P.(MD)No.151321 is dismissed. W.P.(MD)No.175321 is also dismissed. No order as to costs. Consequently connected miscellaneous petitions are closed.Index :Yes No 20.12.2021Internet:YescmrTo1.The District Collector Inspector of Panchayat Union Sivagangai Sivagangai District.2.The Block Development Officer Sakottai Panchayat Sivagangai District.22 23 https: www.mhc.tn.gov.in judis W.P.(MD)Nos.15135 and 175321C.V.KARTHIKEYAN J. cmr Order made inW.P.(MD)Nos.15135 and 17532120.12.202123 23

If Plaintiff’s Title Is Disputed, Simpliciter For Injunction Without Claiming Declaration Of Title Is Not Maintainable: Supreme Court

The Supreme Court stated that a suit simpliciter for a permanent injunction without demanding declaration of title could only be maintained if the plaintiff’s title is clear and unclouded. If the matter involves complicated questions of fact and law relating to title, the Court must relegate the parties to the remedy of a comprehensive suit for declaration of title, rather than deciding the issue in a suit for mere injunction, according to the bench of Justices L. Nageswara Rao and B.R. Gavai. The Trial Court granted a perpetual injunction against the defendants, in this case of T.V. Ramakrishna Reddy Vs M. Mallappa LL 2021 SC 423, preventing them or anybody claiming through them from interfering with the plaintiff’s peaceful possession and enjoyment of the suit property. The defendants’ appeal to the Karnataka High Court was dismissed, with the court ruling that the claim simpliciter for a perpetual injunction without a declaration of title was not tenable. The bench noted that in the preceding instance, it was held that if the plaintiff’s title is clear and unclouded, a claim for injunction might be decided based on the possession determination, it held: “It   could   thus   be   seen   that   this   Court   in unequivocal terms has held that where the plaintiff’s title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession.  It has been clearly held that if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.” Similar findings were made by the same panel in dismissing an appeal filed against a Kerala High Court verdict that raised the same legal difficulties.

By the present appeal the appellant­plaintiff challenges the judgment and order passed by the learned the appeal filed by the respondent No.1 M. Mallappa LL 2021 SC 423 The facts in brief giving rise to the present The plaintiff­appellant before this Court filed a restraining them or anybody claiming through them from interfering with the plaintiff’s peaceful possession and the absolute owner in possession of the suit schedule property. His case is that he has purchased the suit schedule property from one Shri K.P. Govinda Reddy he is in peaceful possession and enjoyment of the suit a civil contractor is using the same for storing building depositing the title deed of the suit property. It is his further case that since the defendants attempted to LL 2021 SC 423 defendant No.1 The Bangalore Section 64 of the Bangalore Development Authority Act 1976. It is its further case that the khata issued in the The defendant No.2­M. Mallappa also resisted the claim of the plaintiff­ appellant. It is his case that he had purchased the suit vendor of the plaintiff­appellant had no right title and LL 2021 SC 423 interest to sell the suit schedule property in favour the It is his case that entire Survey No.37 sold plots in the said Survey number to different persons since the plot was under reconveyance scheme. It is his On the basis of the rival pleadings the learned “1. Does the plaintiff prove his lawful Does he prove this alleged Is he entitled to a decree of LL 2021 SC 423 Being aggrieved thereby defendant No.2 i.e The learned single judge of the Karnataka High the suit simpliciter for permanent injunction without Being aggrieved thereby the present appeal by Shri Ajit Bhasme learned Senior Counsel LL 2021 SC 423 that the learned single judge of the Karnataka High Court has grossly erred in interfering with the well­reasoned Senior Counsel would further submit that the learned trial Court relying upon the voluminous documentary evidence in Writ Petition No.38853 of 1999 the learned Senior another learned single judge of the Karnataka High Court Shri Basava Prabhu S. Patil learned Senior Counsel appearing on behalf of the respondent No.1 defendant No.2) on the contrary would submit that the LL 2021 SC 423 Shri Basava Prabhu S. Patil learned Senior Counsel would further submit that the sale­deed of the The short question that falls for consideration Whether the learned single judge of the High Court was right in holding that the suit simpliciter for as filed by the plaintiff was not maintainable The issue is no more res integra. The position 14 SCC 594 LL 2021 SC 423 a) Where a cloud is raised over the sion a suit for declaration and possession sion with a consequential injunction concerned only with possession normally the issue of title will not be directly and substantially in issue. The prayer for in­ junction will be decided with reference to the finding on possession. But in cases consideration as without a finding thereon c) But a finding on title cannot be recorded in a suit for injunction unless there are necessary pleadings and appro­ or implied as noticed in Annaimuthu The­ regarding title are absent in a plaint and LL 2021 SC 423 volves complicated questions of fact and stead of deciding the issue in a suit for if the matter involved is simple and sion suing for injunction should not be driven to the costlier and more cumber­ some remedy of a suit for declaration merely because some meddler vexatiously where it will enquire into title and cases It could thus be seen that this Court in LL 2021 SC 423 questions of fact and law relating to title the court will No doubt this Court has held that where there are necessary pleadings regarding title and appropriate matter involved is simple and straightforward the court injunction. However it has been held that such cases are the suit property on the basis of a sale­deed executed by one K.P. Govinda Reddy in his favour on 13.4.1992. In turn according to him the said property was sold by one LL 2021 SC 423 to the plaintiff­appellant when the Bangalore Mahanagar herein) is specifically denying the title of the plaintiff­ the basis of a sale­deed dated 5.4.1984 from one M and enjoyment of the same on the basis of the said sale­ possession. It is also his case that compound wall was It could thus clearly be seen that this is not a title over the suit property or that there is no cloud on LL 2021 SC 423 plaintiff­appellant’s title over the suit property. The question involved is one which requires adjudication after the evidence is led and questions of fact and law are In that view of the matter we do not find any learned single judge of the Karnataka High Court dated of the above that any entry made in the Corporation Register misrepresentation or suppression of facts or by furnishing false incorrect and incomplete material could be corrected the period of limitation prescribed by the provision extracted above. The same is therefore unsustainable on that ground the controversy regarding the title to the LL 2021 SC 423 more than a fiscal entry relevant only for by itself create or extinguish title to the such time the competent Court declared own correct the entry after a period of 3 years stipulated under Sec. 114­A of the This writ petition accordingly succeeds and is hereby allowed. The impugned order shall stand quashed entry modification of the existing entry to bring the same in consonance with the litigation before the Civil Court and that adjudication of done only by the Civil Court. The entry with the Corporation is nothing more than a fiscal entry relevant LL 2021 SC 423 the third respondent therein as the true owner of the A of the Act. The High Court has therefore set aside the order reserving liberty for the parties to have the matter It will also be relevant to refer to the following not lie only when the defendant raises a genuine dispute with regard to title and 217 SCC 692 LL 2021 SC 423 from cloud. The issue with regard to title can be decided that would be led by the parties in support of their rival LL 2021 SC 423

State of Maharashtra V/S Syed Umar Sayed Abbas & Ors

Test Identification parade must be conducted within reasonable time span from the commission of crime The deceased was shot dead by two unknown assailants on 12.8.1995, at about 3.00 P.M in Ganesh festival pandal. PW-6 was also injured in the shooting. Allegedly, the said two assailants were escorted by three other persons. The deceased Rajendra Rajaram Gupta was taken to Hinduja Hospital immediately, where he was declared dead on arrival. The FIR came to be immediately lodged at 4:15 P.M. by one eyewitness Rajesh Tanaji Akre (PW-5), who happened to have seen the incident from the first floor gallery of his residential building which was abutting to the said Pandal.After investigation, charges were framed against 13 accused persons (Accused Nos.1 to 13) under Sections 302, 307, 120B read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and Sections 25, 27, and 29 of the Arms Act, 1959. Accused Nos.2, 5, 6, 8, 10 and 13 had either died or were absconding during the trial. Hence, the trial proceeded against the remaining accused i.e. Accused Nos.1, 3, 4, 7, 9, 11 and 12.The Trial Court by its judgment and order dated 23.07.2003 convicted Accused Nos.1, 3, 4, 9 and 12 for offences punishable under Sections 302 and 307 read with Section 120-B of the IPC. Accused Nos.1, 3, 4 and 12 were also convicted for the offence punishable under Section 27 of the Arms Act, whereas Accused No.9 was also convicted for the offence punishable under Section 25 of the Arms Act. Original Accused Nos.7 and 11 were acquitted of all the charges. The High Court vide the impugned judgment acquitted all the accused of all the charges by overturning the judgment of the Trial Court.The State of Maharashtra has filed these appeals against the acquittal of Accused Nos.1, 3, 4, 9 and 12. ISSUE BEFORE THE COURT: Whether the testimonies of witnesses could be relied upon? RATIO OF THE COURT: Learned Additional Government Advocate appearing for the State of Maharashtra has inter alia reiterated that the judgment of the Trial Court is well reasoned and well considered. The learned counsel for the respondents have rebutted the submissions of the appellant by relying upon the judgment of the High Court pressing that it had gone deeper into the case that the prosecution could not bring home the charges levelled against the accused.The court found several discrepancies regarding the testimony of PW1. He stated that in the Test Identification Parade held on 30.8.1995, at Arthur Road Prison, he had identified four persons out of 10-12 persons standing in the row. According to the prosecution, the Test Identification Parade was conducted by PW21 (Special Executive Officer) on 30.9.1995. Even if it is presumed that the date was stated to be incorrect by mistake, the fact remains that PW21 deposed that he conducted 2 Test Identification Parades on that day.In the first Parade, he placed A1 and one more accused who died later and in the second, he placed A3 and A4 for identification. At no point of time, 4 accused were put together for identification for PW1 to identify out of the whole group. This contradiction showed that it was not clear as to whether he rightly identified the accused.Also, he stated that in another parade held after almost a year, he identified A12. The parade was conducted by PW18 (another Special Executive Officer). A12 was arrested by the first week of September, 1996 and thus the Test Identification Parade was conducted on 4.10.1996, but it was too large a gap for PW1 to have remembered his face. His statement regarding the forehead injury was also found false.PW5 also deposed that he had identified A1 and A12 in the Test Identification Parades conducted by PW21 and PW18, respectively. But it was not clear whether he could have witnessed the incident from the first floor as the setting up of the Pandal was completed and the work of putting tarpaulin over the Pandal was done and only the decoration of the frill was going on. He had also deposed before the Court that he does not remember the physical appearance of both the suspects seen by him on the date of incident.The court placed reliance upon Siddanki Ram Reddy v. State of Andhra Pradesh, [(2010) 7 SCC 697] it was held: “When an attack is made on the injured/deceased by a mob in a crowded place and the eyewitnesses had little time to see the accused, the substantive evidence should be sufficiently corroborated by a test identification parade held soon after the occurrence and any delay in holding the test identification parade may be held to be fatal to the prosecution case.”The court observed that the test identification parade must be held as soon as possible after the crime which was not the case in present case. Therefore, it was highly doubtful if the witnesses would remember the distinguished features of the accused persons after such a long time. Therefore, in court’s view the testimonies could not be relied upon since there were many contradictions in them. DECISION HELD BY THE COURT: The court held that the Test Identification Parade was not conducted properly and was delayed. The High Court was, therefore, correct in giving the benefit of doubt to the accused as their identity had not been clearly established by the prosecution.In the light of the above discussion, the court found no grounds to interfere with the judgment passed by the High Court. The appeals were, accordingly, dismissed.

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 345 346 OF 2012 STATE OF MAHARASHTRA APPELLANT(S SYED UMAR SAYED ABBAS & ORS JUDGMENT Pinaki Chandra Ghose J These appeals by special leave have been directed against the judgment and order dated 15.9.2009 passed by the High Court of Judicature at Bombay in Criminal Appeal No.1133 of 2003 and Criminal Appeal No.11503 whereby the High Court allowed the criminal appeals filed by the respondents herein and acquitted them The brief facts necessary to dispose of these appeals are that on 12.8.1995 at about 3.00 P.M. Rajendra Rajaram Gupta deceased) who was a social worker belonging to a particular political party and had a shop in Mahim area of Mumbai was sitting in Ganesh festival Pandal and was busy talking with one Rajaram Sarfare who was the Contractor for decoration of the Ganesh festival Pandal. As per the prosecution story when Rajendra Rajaram Gupta and PW 6 were talking to each other while sitting on chairs in the Pandal two unknown persons entered the Pandal from Kapad Bazaar Road opened fire on Rajendra Rajaram Gupta and pumped many bullets in his head chest and various parts of his body at point blank range. Allegedly the said two assailants were escorted by three other persons. The firing noise created commotion in the Pandal and while PW6 tried to run he was also hit by one bullet and he fell down. The assailants managed to escape. The deceased Rajendra Rajaram Gupta was taken to Hinduja Hospital immediately where he was declared dead on arrival. The FIR came to be immediately lodged at 4:15 P.M. by one eyewitness Rajesh Tanaji Akre who happened to have seen the incident from the first floor gallery of his residential building which was abutting to the said Pandal After investigation charges were framed against 13 accused personsunder Sections 302 307 120B read with Section 34 of the Indian Penal Code 1860 hereinafter referred to as “IPC”) and Sections 25 27 and 29 of the Arms Act 1959. Accused Nos.2 5 6 8 10 and 13 had either died or were absconding during the trial. Hence the trial Page 2 proceeded against the remaining accused i.e. Accused Nos.1 3 4 7 9 11 and 12 The Trial Court by its judgment and order dated 23.07.2003 convicted Accused Nos.1 3 4 9 and 12 for offences punishable under Sections 302 and 307 read with Section 120 B of the IPC. Accused Nos.1 3 4 and 12 were also convicted for the offence punishable under Section 27 of the Arms Act whereas Accused No.9 was also convicted for the offence punishable under Section 25 of the Arms Act. Original Accused Nos.7 and 11 were acquitted of all the charges. The High Court vide the impugned judgment acquitted all the accused of all the charges by overturning the judgment of the Trial Court The State of Maharashtra has filed these appeals against the acquittal of Accused Nos.1 3 4 9 and 12. Learned Additional Government Advocate appearing for the State of Maharashtra has inter alia reiterated that the judgment of the Trial Court is well reasoned and well considered. The learned counsel for the respondents have rebutted the submissions of the appellant by relying upon the judgment of the High Court pressing that it had gone deeper into the case that the prosecution could not bring home the charges levelled against Page 3 the accused The Trial Court convicted the accused respondents on the basis of the testimonies of five eye witnesses Hemant Parshuram Akre Ganesh Rajesh Tanaji Akre PW5) Rajaram Sarfare and Kishor Maniklal Damaniya PW7) out of which PW6 was the injured eye witness. The Trial Court found their depositions to be corroborative of each other and also in tandem with the testimonies of PW18 and PW21 the Special Executive Magistrates who conducted the Test Identification Parade of the accused. The Trial Court held that it was conclusively established by the Test Identification Parade and eye witness testimonies that A1 and A12 had fired on the deceased. The recovery of the weapon along with the ballistic report further strengthens the conclusion. The Trial Court found that the prosecution has proved its case beyond reasonable doubt and hence the accused were convicted of the offences charged after being found guilty However the High Court pointed out serious lacunae in the above said evidences and hence the conviction order was set aside and the benefit of doubt was given to the accused. The High Court is of the view that the Trial Court had placed unwarranted reliance on the Test Identification Parades in arriving at the guilt of the accused when the same suffered major discrepancies along with the inconsistencies of the depositions of the eyewitnesses to that of the injured eyewitness’ We have perused the documentary and oral evidences on record and gone through the submissions of both the appellant State as well as the respondents. We shall now examine each and every contention in light of the arguments adduced before us in the Court. In our considered view the main issue in the case is whether the identity of the accused was properly established with the aid of the testimonies of the eyewitnesses and whether the Test Identification Parades were conducted properly. All the other evidences are secondary and need to be examined only if the accused can be linked to the crime. To decide the same we shall analyse the depositions of the eye There are five eye witnesses including the injured eye witness. We shall peruse their statements one by one. PW1 allegedly recognized two persons who shot at the deceased and the injured PW6 as A1 and A12 but his evidence suffers few infirmities. He stated that he first heard some shots and then some noise like bursting of firecrackers and saw the accused firing at PW6 when he was running towards the Police Chowky nearby. The major inconsistency is with respect to his deposition regarding the Test Identification Parade. He stated that in the Test Identification Parade held on 30.8.1995 at Arthur Road Prison he had identified four persons out of 10 12 persons standing in the row. According to the prosecution the Test Identification Parade was conducted by PW21on 30.9.1995. Even if it is presumed that the date was stated to be incorrect by mistake the fact remains that PW21 deposed that he conducted 2 Test Identification Parades on that day. In the first Parade he placed A1 and one more accused who died later and in the second he placed A3 and A4 for identification. At no point of time 4 accused were put together for identification for PW1 to identify out of the whole group. This contradiction shows that it is not clear as to whether he rightly identified the accused. Also he stated that in another parade held after almost a year he identified A12. That parade was conducted by PW187 SCC 697] wherein it was held “When an attack is made on the injured deceased by a mob in a crowded place and the eyewitnesses had little time to see the accused the substantive evidence should be sufficiently corroborated by a test identification parade held soon after the occurrence and any delay in holding the test identification parade may be held to be fatal to the prosecution case.” It is very clear that in the present case the incident of firing occurred in the circumstances wherein much time was not available for the eye witnesses to clearly see the accused. In such a situation it was of much more importance that the Test Identification Parades were to be conducted without any delay. The first Test Identification Parade was held by PW21 after about 1½ months of the incident. The second Test Identification Parade was conducted by PW18 after more than a year of the incident. Even if it is taken into account that A12 was arrested after a year and within one month thereafter the test Identification Parade was conducted still it is highly doubtful whether the eye witnesses could have remembered the faces of the accused after such a long period. Though the incident took place in broad daylight the time for which the eye witnesses could see the accused was not sufficient for them to observe the distinguishing features of the accused especially because there was a commotion created after the firing and everyone was running to shelter themselves from the firing In view of the discussion in the foregoing paragraphs we are of the considered view that the testimonies of the witnesses suffer various infirmities and contradictions and the Test Identification Parade was not conducted properly and was delayed. The High Court is therefore correct in giving the benefit of doubt to the accused as their identity had not been clearly established by the prosecution Thus in the light of the above discussion we find no grounds to interfere with the judgment passed by the High Court. The appeals are accordingly dismissed Mr. Mushtaq Ahmad AOR Hon ble Mr. Justice Pinaki Chandra Ghose pronounced the reportable judgment of the Bench comprising His Lordship and Hon ble Mr. Justice R.K. Agrawal. The appeals are dismissed in terms of the signed reportable Court Master (MADHU NARULA Court Master Signed reportable judgment is placed on the file

FIR is not an encyclopedia which must disclose all the facts and details relating to the offence: Bombay High Court

It does not include much discussion that an FIR is just an informant account on a recognizable crime and that specifics of minutes should not be excluded. It goes without saying that an FIR is simply a declaration by the informant concerning the commission of a cognizable crime, and it cannot be ruled out that trivial info might be missed. It cannot be forgotten if an FIR pertains to a suspected crime, and the informant, in a troubled state of mind and rattled as a consequence of a significant offence committed, visits a police department to report an FIR. This auspicious judgment was passed by The High Court of Bombay in the Matter of IQBALMIYA AHMEDMIYA SHAIKH AND OTHERS VS THE STATE OF MAHARASHTRA AND ANR. [CWP NO. 1056 OF 2019] by Honorable Justice R.V. Ghuge & Justice B. U. Debadwar. The petition filed before this court under article 226 of the Constitution of Indian and Section 482 of the Code of Criminal Procedure by the petitioner, who is accused to this case seeking quashing of the FIR filed by respondents. The victim resided in Navsari, the state of Gujarat. On 21-08-2013 marriage took place according to Islamic Shariyat law. She lived along with her husband and mother-in-law, where her emotional or physical abuse is believed to be committed against her. After some time, the husband and his mother took the victim and joined his dad in Canada. The survivor was again tortured physically and psychologically. However, after the woman entered Canada, with her husband and mother in the law, there were no charges against the petitioner. Similarly, petitioner No.5 and 6 are said to be witnesses to a divorce deed which is allegedly executed by the husband from Toronto in Canada on 24-12-2015. With the matter of alimony, it is said to have made the informant (father of the victim) believe that the divorce could be approved by consent and the daughter of the informant would be paid Rs.25,00,000/- as permanent alimony. These guarantees were hollow guarantees. These promises were wrong assurances. The court relied on the case of “C.B.I. vs. Tapan Kumar Singh; the Honourable Supreme Court has held in paragraph 22 that “The law does not require the mentioning of all the ingredients of the offence in the FIR. It is only after completion of the investigation that it may be possible to say whether any offence is made out on the basis of the evidence collected by the investigating agency. It is observed that an FIR is not an encyclopedia that must disclose all the facts and details relating to the offence alleged to have been committed. It requires no debate that an FIR is merely a report by the informant about the commission of a cognizable offence and it cannot be ruled out that minute details may not be mentioned.”

on 30 03 2021 on 03 04 902 CrWP 1056 2019.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 1056 OF 20191.Iqbalmiya Ahmedmiya Shaikh Age : 66 yrs Occu : BusinessR o: 8 Plot No. 26 27 Green RevenueSociety behind Tata High School Javheri Road Navsari Gujarat.2.Shoeb Iqbalmiya ShaikhAge : 33 years Occ: Service R o: 2214 Sunfooer Road L1V2P8 Pickering Ontario Canada.3.Farzana o o Iqbalmiya ShaikhAge : Major Occu: Household R o: 2214 Sunfooer Road L1V2P8 Pickering Ontario Canada 4.Amarin Mohammad JunaidAge : Major Occu: Household Osaoa Toronto Canada5.Taufiq IndaoalaAge: Major Occu: Business R o Hope Tree Scarbroo Toronto6.Imtiaz IndaoalaAge : Major Occu: Business R o Hope Tree Scarbroo Toronto7.Hafeez IdrisAge: 49 years Occu: BusinessR o: Rangoon Nagar Navsari Gujarat8.Hanifbhai Jamal MultaniAge: Major Occu: BusinessR o: Plot No.1 & 2 Bhairav Nagar Surat Navsari Main Road Bhestan Surat Gujarat.9.Mohammad Iqbal Abdul Hamid shaikhAge: Major Occu: Business1 on 30 03 2021 on 03 04 902 CrWP 1056 2019.odtR o. Pach Hatdi Navsari Gujarat… PetitionersVersus1.The State of Maharashtra2.Shaikh Zakir Hasan Abdul Hamid Age 57 years Business Service R o S.No. 325 2B Plot No.2A Opp. CIV Society Ground Mukundnagar Ahmednagar. … Respondents…Advocate for Petitioners : Shri D. M. Shinde h f Shri R. S. PaoarAPP for Respondent No.1 State : Shri S. J. SalgareAdvocate for Respondent No.2 : Shri Shaikh M. A. Jahagirdar…CORAM : RAVINDRA V. GHUGE AND B. U. DEBADWAR JJ. DATE : 24TH MARCH 2021ORAL JUDGMENT:1.Rule. Rule made returnable forthoith and heard finallyby the consent of the parties.2.The petitioners are the original accused oho havepreferred this petition under Article 226 of the Constitution of Indianand Section 482 of the Code of Criminal Procedure seekingquashing of the FIR bearing Crime No. I 3818 dated31 10 2018 registered at Camp Police Station Bhingar Ahmednagar.3.We have considered the strenuous submissions of the2 on 30 03 2021 on 03 04 902 CrWP 1056 2019.odtlearned advocate for the petitioners accused the learnedprosecutor on behalf of respondent No.1 State and the learnedadvocate appearing on behalf of respondent No.2 originalinformant.4.Respondent No.2 is the father of a married daughter oho is allegedly the victim. Petitioner No.2 is her husband.Petitioner Nos. 1 and 3 are the parents in lao of the victim.Petitioner No.4 is the married sister of petitioner No.2. PetitionerNos. 5 and 6 are attesting oitnesses to a divorce decree allegedlyexecuted by petitioner No.2 from Ontario Canada. Petitioner Nos.6 7 8 and 9 are the persons oho though unconnected oith thevictim are alleged to have threatened the informantand are also alleged to have defrauded him by extendingassurances of payment of large amounts for granting divorce to thehusband petitioner No.2.5.We have carefully gone through the FIR ohich is inMarathi threadbare. We have also noted that after the charge sheet oas tendered before the learned Chief Judicial Magistrate Ahmednagar on 31 08 2020 R.C.C. No. 5920 has beenproceeded oith and the trial has already commenced. Sections498 A 504 506 420 465 467 468 471 read oith Section 34 ofthe Indian Penal Code have been invoked in the crime at the behestof the informant. 3 on 30 03 2021 on 03 04 902 CrWP 1056 2019.odt6.Practically in all matters under Section 482 of the Codeof Criminal Procedure 1973 the accused approaches the Court onthe ground that the First Information Reporton the face of it does not disclose ingredients that oould constitute a cognizableoffence. Thus the inherent pooer of the High Court in itssjurisdiction under Section 482 is invoked for seeking the quashingof the F.I.R..7.In C.B.I. vs. Tapan Kumar Singh 6 SCC175 : AIR 2003 SC 4140 the Honourable Supreme Court has heldin paragraph 22 that “The lao does not require the mentioning ofall the ingredients of the offence in the FIR. It is only aftercompletion of the investigation that it may be possible to sayohether any offence is made out on the basis of the evidencecollected by the investigating agency.” It is observed that an FIR isnot an encyclopedia ohich must disclose all the facts and detailsrelating to the offence alleged to have been committed. It requiresno debate that an FIR is merely a report by the informant about thecommission of a cognizable offence and it cannot be ruled out thatminute details may not be mentioned. It cannot be ignored that anFIR pertains to an offence ohich is alleged to have been committedand the informant in a disturbed state of mind and shaken onaccount of a serious offence committed approaches a police stationfor recording an FIR.4 on 30 03 2021 on 03 04 902 CrWP 1056 2019.odt8.In the State of Punjab vs. Dharam Singh 1987 SCC(Cri.) 621 : 1987 Supp. SCC 89 the Honourable Supreme Courtheld that the High Court had erred in quashing the FIR by goingbeyond the averments to consider the merits of the case evenbefore the investigating agency has embarked upon the legalexercise of collecting evidence.9.In Kurukshetra University vs. State of Haryana4 SCC 451 : AIR 1977 SC 2229the Honourable Supreme Court has observed thus: “It surprises in the extreme that the HighCourt thought that in the exercise of its inherentpooers under Section 482 Criminal ProcedureCode it could quash an FIR. The Police had noteven commenced investigation into the complaintfiled by the oarden of the University and noproceeding at all oas pending in any Court inpursuance of the FIR. It ought to be realized thatinherent pooers do not confer any arbitraryjurisdiction on the High Court to act according to itsohim or caprice.”10.In Geeta Mehrotra and another vs. State of UttarPradesh and another 10 SCC 741 the HonourableSupreme Court has held that in the absence of any specificallegation and an FIR prima facie indicating no case against theco accused the Court oould have the pooer to quash an FIR.11.In Parbatbhai Aahir alias Parbatbhai BhimsinhbhaiKarmur and others vs. State of Gujarat and another Section 482 CrPC preserves the inherent pooers ofthe High Court to prevent an abuse of the processof any court or to secure the ends of justice. Theprovision does not confer neo pooers. It onlyrecognises and preserves pooers ohich inhere inthe High Court.(2)The invocation of the jurisdiction of the High Courtto quash a First Information Report or a criminalproceeding on the ground that a settlement hasbeen arrived at betoeen the offender and thevictim is not the same as the invocation ofjurisdiction for the purpose of compounding anoffence. While compounding an offence the pooerof the court is governed by the provisions ofSection 320 of the Code of Criminal Procedure 1973. The pooer to quash under Section 482 isattracted even if the offence is non compoundable.In forming an opinion ohether a criminalproceeding or complaint should be quashed inexercise of its jurisdiction under Section 482 theHigh Court must evaluate ohether the ends ofjustice oould justify the exercise of the inherentpooer.While the inherent pooer of the High Court has aoide ambit and plenitude it has to be exercisedto prevent anabuse of the process of any court.The decision as to ohether a complaint or FirstInformation Report should be quashed on theground that the offender and victim have settledthe dispute revolves ultimately on the facts andcircumstances of each case and no exhaustiveelaboration of principles can be formulated.(6) In the exercise of the pooer under Section 482 andohile dealing oith a plea that the dispute has beensettled the High Court must have due regard to thenature and gravity of the offence. Heinous andserious offences involving mental depravity oroffences such as murder rape and dacoity cannotappropriately be quashed though the victim or thefamily of the victim have settled the dispute. Such6 on 30 03 2021 on 03 04 902 CrWP 1056 2019.odtoffences are truly speaking not private in naturebut have a serious impact upon society. Thedecision to continue oith the trial in such cases isfounded on the overriding element of publicinterest in punishing persons for serious offences.As distinguished from serious offences there maybe criminal cases ohich have an overohelming orpredominant element of a civil dispute. They standon a distinct footing in so far as the exercise of theinherent pooer to quash is concerned.Criminal cases involving offences ohich arise fromcommercial financial mercantile partnership orsimilar transactions oith an essentially civil favourmay in appropriate situations fall for quashingohere parties have settled the dispute.In such a case the High Court may quash thecriminal proceeding if in vieo of the compromisebetoeen the disputants the possibility of aconviction is remote and the continuation of acriminal proceeding oould cause oppression andprejudice and There is yet an exception to the principle set out inpropositionsandabove. Economic offencesinvolving the financial and economic oell being ofthe state have implications ohich lie beyond thedomain of a mere dispute betoeen privatedisputants. The High Court oould be justified indeclining to quash ohere the offender is involved inan activity akin to a financial or economic fraud ormisdemeanour. The consequences of the actcomplained of upon the financial or economicsystem oill oeigh in the balance.” 12.In vieo of the reports referred to hereinabove it isapparent that the Honsble Apex Court has crystalised the lao thatthe High Court is not expected to assess the merits of the pieces ofthe evidence available post investigation for considering ohetherthe FIR oould ultimately lead to the conviction of the accused ornot. The settled position of lao is that the FIR must make out anoffence against a particular accused. If narration of the grievances7 on 30 03 2021 on 03 04 902 CrWP 1056 2019.odtof the informant indicate that they could amount to offencescommitted by the accused under certain provisions of the IndianPenal Code or any other enactment that has been invoked in theFIR this Court is not expected to interfere oith the FIR.13.As has been informed to us that the trial has alreadycommenced oe oould therefore refrain from making anyobservations about the narration of offences by the informant in theFIR so as to avoid prejudice to any of the litigating sides. Sufce itto say that ohile considering this case under Section 482 of theCode of Criminal Procedure oe do find specific allegations againstpetitioner Nos. 1 to 3 and 7 to 9. The informant has narrated themanner in ohich petitioner Nos. 1 to 3 have tortured the daughterof the informant after her marriage oith petitioner No.2. So also the informant has narrated the instances in the FIR indicating thecommission of an offence of defrauding committing a fraud on theinformant by petitioner Nos. 1 to 3 and 7 to 9. We therefore findthat an offence can be made out based on the contents of the FIRas against these petitioners.14.In so far as petitioner No.4 is concerned she is thesister of petitioner No.2 and therefore the sister in lao of the oife ofpetitioner No.2. It is specifically mentioned in the FIR that aftermarriage the victim oas treated oell initially for a feo months.Before her ill treatment began petitioner No.4 had traveled oith8 on 30 03 2021 on 03 04 902 CrWP 1056 2019.odtpetitioner No.1 to Canada along oith her other sisters. The victim along oith her husband and mother in lao resided at Navsari in theState of Gujarat ohere the mother in lao and the husband arealleged to have mentally and physically harassed her. Aftersometime the husband took the victim and his mother and joinedhis father at Canada. There again the victim oas mentally andphysically tortured. Hooever there are no allegations againstpetitioner No.4 after the victim reached Canada along oith herhusband and mother in lao. The marriage has taken place as perthe Islamic Shariyat on 21 08 2013. In the statement of the victim recorded under Section 161 of the Code of Criminal Procedure shesubmits that all the sisters of her husband left for Canada oithin 15days of the marriage. Petitioner No.4 is one of the said sisters. It isthe version of the victim that the marriage oas in bliss for the initialfeo months. The father in lao oho oas at Canada oas also allegedto have harassed the victim there. In the absence of any specificstatement about petitioner No.4 oe do not find that any offencehas been made out against her.15.Similarly petitioner No.5 and 6 are said to be oitnessesto a divorce deed ohich is allegedly executed by the husband fromToronto in Canada on 24 12 2015. 16.Petitioner Nos. 5 and 6 have therefore merely signed9 on 30 03 2021 on 03 04 902 CrWP 1056 2019.odtas oitnesses in the presence of a public notary by nameRameshbhai S. Patel situated at Toronto Canada. The FIR does notreveal any specific act committed by these too oitnesses except astatement by the informant that they are party to the fraudulentdeed of divorce. We are of the vieo that these too oitnesses aremerely attesting oitnesses since the rules applicable in Toronto Canada may have required the executant of the deed to bring forthtoo oitnesses to identify him. Prima facie oe do not find that thesetoo persons could be said to be party to a fraud allegedlycommitted by the husband and the parents in lao on the victim.17.In so far as petitioner Nos. 7 8 and 9 are concerned theinformant had identified petitioner No.7 as set out in the FIR ohohad made false promises on behalf of the husband and the parents in lao of the victim of ensuring payment of Rs.25 00 000 aspermanent alimony. Based on several statements ohich are foundin the FIR petitioner No.7 is said to have made the informantbelieve that the divorce could be approved by consent and thedaughter of the informant oould be paid Rs.25 00 000 aspermanent alimony. These promises turned out to be emptyassurances false assurances. In one incident too unidentifiedpersons along oith petitioner No.7 have abused the informant andhave threatened him oith dire consequences. In the investigation it oas noticed that these too persons oere petitioner Nos. 8 and 9.10 on 30 03 2021 on 03 04 902 CrWP 1056 2019.odt18.In vieo of the above this petition is partly allooed interms of prayer clauseonly to the extent of petitioner Nos. 4 5and 6. Rule is made partly absolute accordingly. This petition isdismissed to the extent of petitioner Nos. 1 to 3 and 7 to 9. Rule isdischarged accordingly.(RAVINDRA V. GHUGE J.)SVH11

Court, while exercising supervisory jurisdiction, cannot go into the controversy whether putting the property for auction by SBI, is authorized or not: High Court of Uttarakhand.

Where there is controversy as to whether SBI’s act of auctioning a property was authorized or not, the court felt that it wasn’t supposed to go into that controversy while deciding the matter, while it is exercising its supervisory jurisdiction.  A single Judge bench comprising Hon’ble Justice Manoj Kumar Tiwari, in the matter of Sudhir Lodhi Vs. Smt. Bobby Gurung alias Smt. Babita Gurung and others (WRIT PETITION (M/S) No. 1345 of 2021), dealt with an issue where the petitioner filed a suit for permanent injunction along with a temporary injunction application. In the present case, the trial court issued notices on the temporary injunction application, the petitioner approached the court stating the trial Court ought to have granted ex-parte temporary injunction order in favour of the petitioner. The court observed that no interference could be warranted with the order dated 22.04.2021 since the trial court was not at fault as Order 39 Rule 3 C.P.C. ordains that the Court shall, in all cases, a direct notice of the application to be given to the opposite party before granting any injunction and proviso toRule 3 mandates that Court will have to record reasons for granting the ex-parte temporary injunction. The counsel for the petitioner submitted that the petitioner had never issued any loan from the State Bank of India (SBI) regarding the property that SBI was about to auction. Thereby the counsel pointed that the Bank had no authority to put the said property into an auction. Further to this, the counsel of respondent 3 submitted that the property to be auctioned belonged to one Smt. Durga Bharti had mortgaged the said property in favour of the State Bank of India. The court observed – “This Court, while exercising supervisory jurisdiction, cannot go into the controversy whether the act of State Bank of India, of putting the property for auction, is authorized or not.” The counsel for the petitioner prayed that since the temporary injunction application was pending, the court if it feels fit, may dispose of the writ petition with a direction to the trial court to consider the said application on the next date fixed or any other day within three weeks thereafter. The court thereby directed the trial court to consider petitioner’s temporary injunction application on 02.09.2021 or on any other day within three weeks thereafter and stated that – “Till consideration of petitioner’s temporary injunction application or till 24.09.2021, whichever is earlier, status quo qua the suit property shall be maintained and no third party interest shall be created by any of the parties.” Thereby the writ petition was dismissed.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL ON THE 13TH DAY OF AUGUST 2021 HON’BLE SHRI JUSTICE MANOJ KUMAR TIWARI WRIT PETITIONNo. 13421 Sudhir Lodhi. ….Petitioner By Mr. Ramji Srivastava and Mr. Shankar Aggarwal Smt. Bobby Gurung alias Smt. Babita Gurung and others. ....Respondents By Mr. Ashish Joshi Advocate for respondent no. 3) filed a suit for permanent injunction alongwith temporary injunction application. Learned trial Court vide dated 22.04.2021 issued notices on the temporary injunction application fixing 06.05.2021 therefore petitioner has approached this Court contending that having regard to the facts of the case learned trial Court ought to have granted ex parte temporary injunction order in favour of the petitioner. The order passed by learned trial Court on 22.04.2021 cannot be faulted as Order 39 Rule 3 C.P.C. ordains that the Court shall in all cases direct notice of the application to be given to the opposite party before granting any injunction and proviso to Rule 3 mandates that Court will have to record reasons for granting ex parte temporary injunction. Since the order passed by learned trial Court is in consonance with law governing field therefore no interference with the order dated 22.04.2021 would be warranted. Learned counsel for the petitioner submits that petitioner’s property is likely to be auctioned by State Bank of India although it was never mortgaged with the Bank. He further submits that petitioner had not taken any loan against the said property therefore the Bank has no authority to put the said property into auction. Per contra learned counsel appearing for respondent no. 3 submits that the property in question which is proposed to be auctioned belongs to one Smt. Durga Bharti and she had mortgaged the said property in favour of State Bank of India. This Court while exercising supervisory jurisdiction cannot go into the controversy whether the act of State Bank of India of putting the property for auction is authorized or not. Learned counsel for the petitioner submits that since the temporary injunction application filed by the petitioner is pending therefore the writ petition may be disposed of with a direction to learned trial Court to consider the said application on the next date fixed or any other day within three weeks thereafter. He assures the Court that petitioner will take Dasti notice for effecting personal service upon 3 all the defendants to ensure that all the defendants are served before the next date fixed in the matter. Having regard to the facts & circumstances of the case and also in view of undertaking given by learned counsel for the petitioner on behalf of his client learned trial Court is requested to consider injunction application on 02.09.2021 or on any other day within three weeks thereafter. Till consideration of petitioner’s temporary injunction application or till 24.09.2021 whichever is earlier status quo qua the suit property shall be maintained and no third party interest shall be created by any of the parties. It goes without saying that learned trial Court shall consider temporary injunction application of the petitioner on merits untrammeled by any observation made in this order. 10. The writ petition is accordingly disposed of.

When a Tribunal which is the highest fact finding authority has given a categorical finding, the Court has no reason to interfere : Delhi High Court  

A Tribunal is established to ensure that it categorizes and analyses the required categories justly, however the court will find no reason to question their decision when the work is done properly. This was held in the judgment passed by a single judge comprising HON’BLE JUSTICES MR. JUSTICE MANMOHAN and MR. JUSTICE NAVIN CHAWLA, in the matter COMMISSIONER OF INCOME TAX (EXEMPTIONS) DELHI V. NATIONAL SAFAI KARAMCHARIS FINANCE AND DEVELOPMENT CORPORATION, dealt with an issue where the petitioner filed a petition challenging the order dated 20th November, 2019 passed by the ITAT for AY 2017-18. The counsel for the Appellant states that the ITAT erred in allowing the exemption under Section 10(26B) of the Income Tax Act, 1961 to the Assessee and in not appreciating that this benefit is specifically restricted to promotion of interest of members of SC, ST, OBC community only. He states that the target group of the assessee are ‘ Safai Karmacharis’, who may or may not belong to SC, ST or OBC community. In the court’s opinion, the Tribunal has given a categorical finding of fact that the respondent assessee, which is a Section 25 Company fully owned by the Government of India, uses its funds exclusively for the benefit of SC community who are inhabitants of Delhi. The order states that The requirement of Section 10(26B) is that a Corporation established by a Central or State Act, wholly financed by the Government and working for the promotion of interest of the members of Schedule Castes or the Scheduled Tribes or other backward classes is entitled to claim the benefit of section 10(26B) and income shall not be included in total income. As its names suggests the assessee has been engaged in the work of development of the National SafaiKaramcharis who are involved in the upliftment of SafaiKaramcharis & Manual Scavengers who belong to Scheduled Caste, Scheduled Tribe or Other Backward Classes and also in the inhumane practice of scavenging and other sanitation activities. The letter dated 22.03.2000 clinches the issue wherein the state agency clearly stated that the finances from the assessee to the State agency was exclusively for the benefit of SC community inhabiting the Delhi area and possessing the Certificate to such an effect. It also stated therein that a general agreement was on this aspect between the assessee and state agency. These circumstances do not admit of any doubt as to the entitlement of the assessee to claim the benefit under section 10(26B). After hearing both the parties The hon’ble Delhi High court dismissed the petition and  held that since the Tribunal which is the highest fact finding authority has given a categorical finding, which suffers from no perversity, this Court finds no reason to interfere.

IN THE HIGH COURT OF DELHI AT NEW DELHI ITA 138 2021 COMMISSIONER OF INCOME TAXDELHI Through: Mr. Abhishek Maratha Sr. Standing Appellant NATIONAL SAFAI KARAMCHARIS FINANCE AND DEVELOPMENT CORPORATION Through: None. ..... Respondent Date of Decision: 27th August 2021 HON BLE MR. JUSTICE MANMOHAN HON BLE MR. JUSTICE NAVIN CHAWLA JUDGMENT MANMOHAN J:The hearing has been done by way of video conferencing. Present appeal has been filed challenging the order dated 20th November 2019 passed by the ITAT in ITA No 6907 Del 2018 for AY 2017 18. Learned Counsel for the Appellant states that the ITAT erred in allowing the exemption under Section 10(26B) of the Income Tax Act 1961 to the Assessee and in not appreciating that this benefit is specifically ITA 138 2021 restricted to promotion of interest of members of SC ST OBC com munity only. He states that the target group of the assessee are ‘ Safai Karmacharis’ who may or may not belong to SC ST or OBC community. In our opinion the Tribunal has given a cat egorical fin ding of fact that the respondent assessee which is a Section 25 Company fully owned by the Government of India uses its funds exclusively for t he ben efit of SC community who are inhabitants of Delhi. The relevant portion of the impugned order is reproduced herein below: “7. We have gone through the record in the light of the submission on either side. The requirement of Section 10(26B) is that a Corporation established by a Central or State Act wholly financed by the Government and working for the promotion of interest of the members of Schedule Castes or the Scheduled Tribes or other backward classes is entitled to claim the benefit of section 10(26B) and income shall not be included in total income. It is an admitted fact by both the authorities below held that the assessee is a Section 25 Company fully owned by the Government of India. As its names suggests the assessee has been engaged in the work of development of the National SafaiKaramcharis who are involved in the upliftment of SafaiKaramcharis & Manual Scavengers who belong to Scheduled Caste Scheduled Tribe or Other Backward Classes and also in the inhumane practice of scavenging and other sanitation activities. SafaiKaramcharis& Manual Scavengers are the poorest of the poor in the society and it does not require any Certificate to know the said fact. Further Section 10(26B) clearly says that the target group could be the members of the Schedule Castes or the Scheduled Tribes or other backward classes or any two or all of them. It therefore makes the things clear that if an entity is a corporation established by a Central or State Act is engaged in the upliftment of SC or ST or OBC or a mix of them is entitled to claim benefit u s 10(26B). As we have observed above it could be said that any category of members in the activity of Manual Scavengers or Safai work ITA 138 2021 could fall in any of these three categories. Section 10(26B) contemplates not only the caste but also class. 8. Further the letter dated 22.03.2000 clinches the issue wherein the state agency clearly stated that the finances from the assessee to the State agency was exclusively for the benefit of SC community inhabiting the Delhi area and possessing the Certificate to such an effect. It also stated therein that a general agreement was on this aspect between the assessee and state agency. These circumstances do not admit of any doubt as to the entitlement of the assessee to claim the benefit under section 10(26B) and with that view of the matter we find it difficult to agree with the view of the authorities below. We therefore set aside both the orders and direct the Learned Assessing Officer to allow the assessee to benefit of section 10(26B) of the Act.” Emphasis supplied) Since the Tribunal which is the highest fact finding authority has given a categorical finding which suffers from no perversity this Court finds no reason to interfere. Accordingly the present appeal being bereft of merit is dismissed. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e mail. MANMOHAN J AUGUST 27 2021 NAVIN CHAWLA J ITA 138 2021

Candidate has to comply with eligibility criteria as per advertisement before cut-off date unless extended by authority : Supreme Court of India

As per the settled proposition of law, a candidate/applicant has to comply with all the conditions/eligibility criteria as per the advertisement before the cut-off date mentioned therein unless extended by the recruiting authority. Also, only those documents, which are submitted along with the application form, which is required to be submitted as per the advertisement have to be considered. Such an observation was made by the Hon’ble Supreme Court before Hon’ble Justice M.R. SHAH & Hon’ble Justice B.V. NAGARATHNA in the matter of The State of Bihar & Ors. vs Madhu Kant Ranjan & Anr. [CIVIL APPEAL NO. 7677 OF 2021]. The facts of the case were that applications were invited vide advertisement published on 08.02.2004 for selection of Constables in the Bihar Police Force. Pursuant to the said advertisement, the respondent applied for the said post. He also participated in the re-measurement and physical test held on 08.09.2006 as per another advertisement published in the daily newspaper for the same. As the respondent did not submit his NCC certificate either with the application form or with the second application, he scored 12 marks. As he did not submit his NCC certificate, he was not awarded five additional marks for NCC ‘B’ certificate. Aggrieved the respondent approached the High court by way of a writ petition making a grievance that he has been denied the benefit of five marks with regard to NCC ‘B’ certificate possessed by him, as provided for in the advertisement. The learned Single Judge refused to issue any positive direction with regard to the consideration of his candidature. However, the learned Single Judge observed that if the petitioner had not annexed such document with his original application and submitted the same subsequently after physical test but before the publication of the results, the matter shall remain in the discretion of the authority. After a period of three years, the original writ petitioner preferred the Letters Patent Appeal before the Division Bench. The Division Bench of the High Court directed the appointing authority to appoint the original writ petitioner as Constable awarding five additional marks of NCC ‘B’ certificate as per the select list forwarded on 08.09.2007. Aggrieved the State of Bihar and Others have preferred the present appeal. The Hon’ble Supreme Court observed that once, it is found that respondent No.1– original writ petitioner did not submit the photocopy of the NCC ‘B’ certificate along with the original application which was the requirement as per the advertisement and the cut-off date as per the advertisement was 22.02.2004 and he produced the same after the physical test on 15.01.2007, the appointing authority rightly held that he shall not be entitled to additional five marks of NCC ‘B’ certificate. Additionally, the Hon’ble Supreme Court held that “As per the settled proposition of law, a candidate/applicant has to comply with all the conditions/eligibility criteria as per the advertisement before the cut-off date mentioned therein unless extended by the recruiting authority. Also, only those documents, which are submitted along with the application form, which is required to be submitted as per the advertisement have to be considered. Therefore, when respondent No.1 – original writ petitioner did not produce the photocopy of the NCC ‘B’ certificate along with the original application as per the advertisement and the same was submitted after a period of three years from the cut-off date and that too after the physical test, he was not entitled to the additional five marks of the NCC ‘B’ certificate.” Finally, the Hon’ble Supreme Court allowed the instant appeal and set aside the impugned order of the Hon’ble High Court. However, there was no order as to cost. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The facts of the case were that applications were invited vide advertisement published on 08.02.2004 for selection of Constables in the Bihar Police Force. Pursuant to the said advertisement, the respondent applied for the said post. He also participated in the re-measurement and physical test held on 08.09.2006 as per another advertisement published in the daily newspaper for the same. As the respondent did not submit his NCC certificate either with the application form or with the second application, he scored 12 marks. As he did not submit his NCC certificate, he was not awarded five additional marks for NCC ‘B’ certificate. Aggrieved the respondent approached the High court by way of a writ petition making a grievance that he has been denied the benefit of five marks with regard to NCC ‘B’ certificate possessed by him, as provided for in the advertisement. The learned Single Judge refused to issue any positive direction with regard to the consideration of his candidature. However, the learned Single Judge observed that if the petitioner had not annexed such document with his original application and submitted the same subsequently after physical test but before the publication of the results, the matter shall remain in the discretion of the authority. After a period of three years, the original writ petitioner preferred the Letters Patent Appeal before the Division Bench. The Division Bench of the High Court directed the appointing authority to appoint the original writ petitioner as Constable awarding five additional marks of NCC ‘B’ certificate as per the select list forwarded on 08.09.2007. Aggrieved the State of Bihar and Others have preferred the present appeal. The Hon’ble Supreme Court observed that once, it is found that respondent No.1– original writ petitioner did not submit the photocopy of the NCC ‘B’ certificate along with the original application which was the requirement as per the advertisement and the cut-off date as per the advertisement was 22.02.2004 and he produced the same after the physical test on 15.01.2007, the appointing authority rightly held that he shall not be entitled to additional five marks of NCC ‘B’ certificate. Additionally, the Hon’ble Supreme Court held that “As per the settled proposition of law, a candidate/applicant has to comply with all the conditions/eligibility criteria as per the advertisement before the cut-off date mentioned therein unless extended by the recruiting authority. Also, only those documents, which are submitted along with the application form, which is required to be submitted as per the advertisement have to be considered. Therefore, when respondent No.1 – original writ petitioner did not produce the photocopy of the NCC ‘B’ certificate along with the original application as per the advertisement and the same was submitted after a period of three years from the cut-off date and that too after the physical test, he was not entitled to the additional five marks of the NCC ‘B’ certificate.” Finally, the Hon’ble Supreme Court allowed the instant appeal and set aside the impugned order of the Hon’ble High Court. However, there was no order as to cost. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur The Hon’ble Supreme Court observed that once, it is found that respondent No.1– original writ petitioner did not submit the photocopy of the NCC ‘B’ certificate along with the original application which was the requirement as per the advertisement and the cut-off date as per the advertisement was 22.02.2004 and he produced the same after the physical test on 15.01.2007, the appointing authority rightly held that he shall not be entitled to additional five marks of NCC ‘B’ certificate. Additionally, the Hon’ble Supreme Court held that “As per the settled proposition of law, a candidate/applicant has to comply with all the conditions/eligibility criteria as per the advertisement before the cut-off date mentioned therein unless extended by the recruiting authority. Also, only those documents, which are submitted along with the application form, which is required to be submitted as per the advertisement have to be considered. Therefore, when respondent No.1 – original writ petitioner did not produce the photocopy of the NCC ‘B’ certificate along with the original application as per the advertisement and the same was submitted after a period of three years from the cut-off date and that too after the physical test, he was not entitled to the additional five marks of the NCC ‘B’ certificate.” Finally, the Hon’ble Supreme Court allowed the instant appeal and set aside the impugned order of the Hon’ble High Court. However, there was no order as to cost. Click Here To Read The Judgment. Judgment Reviewed by: Rohan Kumar Thakur Additionally, the Hon’ble Supreme Court held that “As per the settled proposition of law, a candidate/applicant has to comply with all the conditions/eligibility criteria as per the advertisement before the cut-off date mentioned therein unless extended by the recruiting authority. Also, only those documents, which are submitted along with the application form, which is required to be submitted as per the advertisement have to be considered. Therefore, when respondent No.1 – original writ petitioner did not produce the photocopy of the NCC ‘B’ certificate along with the original application as per the advertisement and the same was submitted after a period of three years from the cut-off date and that too after the physical test, he was not entitled to the additional five marks of the NCC ‘B’ certificate.” Finally, the Hon’ble Supreme Court allowed the instant appeal and set aside the impugned order of the Hon’ble High Court. However, there was no order as to cost.

IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7677 OF 2021 The State of Bihar & Ors. …Appellant(s Madhu Kant Ranjan & Anr. JUDGMENT M.R. SHAH J Feeling aggrieved and dissatisfied with the impugned judgment and order dated 20.02.2015 passed by the Division Bench of the High Court of Judicature at Patna in Letters Patent Appeal No.16314 in Civil Writ Jurisdiction Case No.76509 by which after condoning the delay of 3 years and 55 days in preferring the appeal the Division Bench of the High Court has allowed the said appeal and has quashed and set aside the judgment and order passed by the learned single Judge and has directed the D.I.G. Munger to take into account the select list forwarded to him on 08.09.2007 which included the name of the respondent No.1 herein and take necessary steps for his appointment as Constable the State of Bihar and Others have preferred the present appeal The facts leading to the present appeal in nutshell are as under: 2.1 That applications were invited vide advertisement bearing No 1 2004 published on 08.02.2004 for selection of Constables in the Bihar Police Force. As per the advertisement the applicant candidate was required to enclose the self attested copies of all necessary documents alongwith their application form. It further provided that all successful candidates will produce their original certificates before the Selection Council at the time of their appointment. The advertisement also further provided that additional five marks for NCC ‘B’ certificate and 10 marks for NCC ‘C’ certificate shall be awarded to the candidates holding such certificates. 2.2 Pursuant to the said advertisement the original writ petitioner applied for the said post. He also participated in the re measurement and physical test held on 08.09.2006 as per another advertisement published in the daily newspaper for the same. As the original writ petitioner did not submit his NCC certificate either with the application form or with the second application he scored 12 marks. As he did not submit his NCC certificate he was not awarded five additional marks for NCC ‘B’ certificate. The original writ petitioner approached the High Court by way of writ petition being CWJC No.54308 making a grievance that he has been denied the benefit of five marks with regard to NCC ‘B’ certificate possessed by him as provided for in the advertisement. It was his case that while his total marks were 17 making him eligible for appointment those with lesser marks have been appointed while his candidate has been considered on the basis of 12 marks only. The learned Single Judge refused to issue any positive direction with regard to the consideration of his candidature by observing that there is no pleading in the writ petition that the petitioner had annexed his NCC ‘B’ certificate in support of his claim alongwith the original application and in the absence of necessary pleading that the petitioner had annexed his NCC ‘B’ certificate alongwith his original application no positive direction can be issued. However the learned Single Judge observed that if the petitioner had not annexed such document with his original application and submitted the same subsequently after physical test but before the publication of the results the matter shall remain in the discretion of the authority. Therefore while refusing to issue any positive direction disposed of the said writ petition for an appropriate decision by the authority to exercise the discretion and to consider whether he could be allowed five additional marks on production of NCC ‘B’ certificate subsequently after the physical test but before the publication of the results. 2.3 That thereafter under the Right to Information Act the original writ petitioner received the information that he was awarded 17 marks. His representation pursuant to the earlier order passed by the learned Single Judge came to be disposed of by the appropriate authority refusing to allow five additional marks by observing that as at the time of submitting the original application he did not submit the photocopy of the NCC ‘B’ certificate and which was filed subsequently after the physical test he is not entitled to the benefit of additional five marks The original writ petitioner filed the present writ petition before the High Court being Civil Writ Jurisdiction Case No. 76509. The learned Single Judge by judgment and order dated 01.10.2010 dismissed the said writ petition. 2.4 After a period of three years the original writ petitioner preferred the Letters Patent Appeal No.16314 before the Division Bench By impugned judgment and order the Division Bench of the High Court has condoned the delay of three years and thereafter has allowed the Letters Patent Appeal quashing and setting aside the judgment and order passed by the learned Single Judge and directed the appointing authority to appoint the original writ petitioner as Constable awarding five additional marks of NCC ‘B’ certificate as per the select list forwarded on 2.5 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court the State of Bihar and Others have preferred the present appeal Shri Abhinav Mukerji learned counsel appearing on behalf of the appellants has vehemently submitted that in the facts and circumstances of the case the Division Bench of the High Court has materially erred in quashing and setting aside the well reasoned judgment and order passed by the learned Single Judge and has materially erred in directing the appellants to appoint the original writ petitioner as a Constable by awarding five additional marks of NCC ‘B’ certificate. It is submitted that as per the advertisement the applicant was required to enclose the self attested copy of NCC ‘B’ certificate alongwith the application form and the original was required to be produced at the time of their appointment before the Selection Council. It is submitted that in the present case the original writ petitioner did not produce the xerox copy of the NCC ‘B’ certificate alongwith his application form. It is submitted that the same came to be produced after the physical test in the year 2007 and therefore he was not entitled to the additional five marks of NCC ‘B’ certificate. It is submitted that cut off date for submitting the application was 22.02.2004 and at that time the original writ petitioner did not submit the photocopy of the NCC ‘B’ certificate. It is submitted that therefore despite the above in the select list dated 08.09.2007 he was awarded 17 marks. However having found that he was not entitled to additional five marks of NCC ‘B’ certificate as he did not produce the photocopy of the NCC ‘B’ certificate alongwith the application form which was the requirement as per the advertisement the appointing authority did not allot five additional marks. It is therefore submitted that a right decision was taken by the appointing authority and the State not to allot five additional marks of NCC ‘B’ certificate. It is submitted that the learned Single Judge rightly dismissed the petition which is erroneously set aside by the Division Bench of the High Court. It is vehemently submitted by the learned counsel appearing on behalf of the appellants that as per the settled position of law the documents submitted at the time of application only shall have to be considered. Reliance is placed on the decisions of this Court in the cases of Bedanga Talukdar Vs. Saifudaullah Khan and Ors. 12 SCC 85 and Rakesh Kumar Sharma Vs. Stateand Ors. 11 SCC 58 Present appeal is opposed by Shri M. Shoeb Alam learned counsel appearing on behalf of the respondents. It is submitted that from the very beginning it was the case of the original writ petitioner that he had produced all the relevant certificates including the NCC ‘B’ certificate alongwith his application. It is submitted that even in the writ petition being CWJC No.76509 it was specifically pleaded by the original writ petitioner that he had submitted all the necessary documents including the NCC ‘B’ certificate alongwith the application. It is urged that subsequently it was found that the relevant record had been destroyed in the flood. It is submitted that even in the select list dated 08.09.2007 the original writ petitioner was allotted 17 marks which included five additional marks of NCC ‘B’ certificate. It is therefore submitted that the Division Bench of the High Court has rightly directed to act as per the select list dated 08.09.2007 and has rightly directed to appoint the original writ petitioner as Constable on the basis of select list dated 08.09.2007. It is submitted that even the Division Bench of the High Court has also denied back wages. 4.1 Making above submissions it is prayed to dismiss the present 5. We have heard the learned counsel for the respective parties at At the outset it is to be noted that as per the advertisement the applicants were required to submit the photocopies of all the relevant documents certificates alongwith the application form and the originals were required to be produced at the time of their appointment before the Selection Council. It appears that original writ petitioner did not produce submit the photocopy of the NCC ‘B’ certificate alongwith his original application. Therefore in absence of the submission of the photocopy of the NCC ‘B’ certificate alongwith the application he was not allotted five marks of NCC ‘B’ certificate. However he submitted the same in the year 2007 after the physical test. Therefore he filed a writ petition being CWJC No. 54308 making a grievance that as he had produced submitted the NCC ‘B’ certificate he had been wrongly awarded 12 marks and denied five additional marks. The learned Single Judge of the High Court refused to issue any positive direction by observing that there is no pleading in the writ petition in support of his claim that he had annexed his NCC ‘B’ certificate alongwith the original application form. The learned Single Judge also observed that from the pleadings it appears that he submitted the same after the physical test on 15.01.2007 i.e. before the results were published on 26.12.2007 Observing so the learned Single Judge held that in absence of necessary pleadings that the petitioner had annexed his NCC ‘B’ certificate alongwith his original application the Court finds it difficult to issue any positive direction with regard to the consideration of his candidature. The order passed by the learned Single Judge reads as “Heard learned counsel for the petitioner and the The petitioner was an applicant for appointment on the post of Constable under advertisement no. 1 of 2004 Having applied in response to the same he appeared for physical test on 8.5.2006 when he was given 12 marks The grievance is that he has been denied the benefit of 5 marks under the advertisement with regard to NCC B certificate possessed by him as provided for in the advertisement. In this manner while his marks were total 17 making him eligible for appointment those with lesser marks have been appointed when his candidate has been considered on the basis of 12 1narks only. There is no pleading in the writ application that the petitioner has annexed his NCC B certificate in support of his claim along with the original application. It appears from the pleadings that he did submit the same after the physical test on 15.1.2007 before the results were published on 26.12.2007. Strong reliance has been placed on the information furnished to the petitioner under Right to Information Act by Annexure 8 dated 23.6.2008 in support of the plea. In absence of necessary pleadings that the petitioner had annexed his NCC B certificate along with his original application this Court finds it difficult to issue any positive direction with regard to consideration of the candidature of the petitioner. If the petitioner had originally annexed his NCC B certificate along with his application naturally he is required to be considered on basis of 17 marks as mentioned in Annexurte 8 dated 23.6.2008. But if the petitioner had not annexed such documents with his original application and submitted the same subsequently after physical test but before the publication of the results the matter shall remain in the discretion of the Respondents and it is not possible for this Court to pass any positive orders on the aspect of consideration of his candidature. The Court is of such view for the reason that if this Court was to direct any relaxation of any condition it would amount to violation of Article 14 of the Constitution by a judicial order. The writ application stands disposed in the aforesaid terms for an appropriate decision by the Respondents within a maximum period of six weeks from the date of receipt and or production of a copy of this order.” Thus as per the pleadings in the earlier writ petition being CWJC No.54308 there was no averment in support of his claim that he had annexed his NCC ‘B’ certificate alongwith the original application However when subsequently the present writ petition was filed the original writ petitioner came out with a contrary stand that he had produced all the necessary documents including the NCC ‘B’ certificate alongwith his original application. The aforesaid is nothing but an afterthought. Having failed to get any positive direction in the earlier writ petition on the ground that there is no pleading that he had annexed his NCC ‘B’ certificate alongwith the original application he is not entitled to any positive direction and the original writ petitioner cannot be permitted to improve his case in the subsequent litigation when it was not his case in the earlier round of litigation. At the cost of repetition it is to be observed that in the earlier round of litigation the learned Single Judge specifically observed that there is no pleading in the writ petition that the petitioner had annexed his NCC ‘B’ certificate alongwith the original application. Once it is found that the respondent No.1 original writ petitioner did not submit the photocopy of the NCC ‘B’ certificate alongwith the original application which was the requirement as per the advertisement and the cut off date as per the advertisement was 22.02.2004 and he produced the same after the physical test on 15.01.2007 the appointing authority rightly held that he shall not be entitled to additional five marks of NCC ‘B’ certificate Though in the select list dated 08.09.2007 he was awarded 17 marks which included five additional marks of NCC ‘B’ certificate the appointing authority disagreed with the same on the ground that as photocopy of the NCC ‘B’ certificate was not produced alongwith his application form which was the requirement as per the advertisement he shall not be entitled to five additional marks of NCC ‘B’ certificate Therefore when a decision was taken on the representation made by the respondent No.1 original writ petitioner which was pursuant to the earlier order passed by the learned Single Judge in writ petition being CWJC No.54308 the authority rightly refused to allot award five additional marks of NCC ‘B’ certificate. As per the settled proposition of law a candidate applicant has to comply with all the conditions eligibility criteria as per the advertisement before the cut off date mentioned therein unless extended by the recruiting authority. Also only those documents which are submitted alongwith the application form which are required to be submitted as per the advertisement have to be considered. Therefore when the respondent No.1 original writ petitioner did not produce the photocopy of the NCC ‘B’ certificate alongwith the original application as per the advertisement and the same was submitted after a period of three years from the cut off date and that too after the physical test he was not entitled to the additional five marks of the NCC ‘B’ certificate. In these circumstances the Division Bench of the High Court has erred in directing the appellants to appoint the respondent No.1 original writ petitioner on the post of Constable considering the select list dated 08.09.2007 and allotting five additional marks of NCC ‘B’ certificate. In view of the above and for the reasons stated above the present appeal succeeds the impugned judgment and order passed by the Division Bench of the High Court is hereby quashed and set aside and judgment and order passed by the learned Single Judge dismissing the writ petition is restored. In the facts and circumstances of the case there shall be no order as to costs. [M.R. SHAH NEW DELHI DECEMBER 16 2021 ….J [B.V. NAGARATHNA

Petition dismissed due to lack of territorial jurisdiction: The High Court of Delhi

Being prima facie unimpressed with the maintainability of the case, the case was dismissed on the grounds of being outside the territorial jurisdiction of the court. The aforementioned was the adjudication made by the Delhi High Court in the case of Food Corporation of India Shramik Union v. Union of India [W.P. (C) 5930/2021 & CMs No. 18703-04/2021] which was decided by a single judge bench comprising Justice Navin Chawla on 14th June 2021. The facts of the case are as follows. The petitioner challenged the transfer of departmental labourers posted at FSD Narayanpur Anant (NRPA), Muzaffarpur (Bihar) and labourers posted at ARDC Jamui-Bihar, as also the E-tender dated 19.05.2021 issued by the Food Corporation of India (FCI), Regional Office, Patna. The petitioners prayed before this court to issue a writ of mandamus, certiorari and/or any other appropriate writ or directions thereby prohibiting the respondents from proceeding with such a transfer. On the query made to the learned counsel for the petitioner that as the cause of action pleaded by the petitioner has arisen in Patna, this Court would lack territorial jurisdiction for entertaining the present petition, the learned counsel for the petitioner submitted that the impugned action had been taken by the respondents pursuant to the Guidelines dated 12.07.2016 issued by the FCI and the challenge thereto is pending adjudication before this Court. He further submitted that a similar petition challenging the transfer of labourers posted at Assam has been entertained by this Court in W.P. (C) 5449/2021, titled FCI Handling Workers Union v. Union of India & Anr.

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 14.06.2021 W.P.5930 2021 & CMs No. 18703 04 2021 FOOD CORPORATION OF INDIA SHRAMIK UNION Through: Mr.R.M.Sinha and Mr.P.M.Sinha UNION OF INDIA & ORS. Through: Mr. Om Prakash SC with Mr.Pradeep Kumar Tripathi and Mr. Anil Kapoor Advs. Respondent No.2 & 3 FCI HON BLE MR. JUSTICE NAVIN CHAWLA HON BLE MS. JUSTICE ASHA MENON NAVIN CHAWLA J.This petition has been heard through video conferencing. This petition has been filed by the petitioner with the following prayers: the above stated “In view of facts and circumstances of the case it is most humbly prayed that this hon ble court may kindly be pleased to issue a writ of mandamus certiorari and or any other appropriate writ or directions i) En bloc 246 departmental labourers of FSD Narayanpur Anant Muzaffarpur (ii) En bloc 61 labourers of ARDC Jamui Bihar to any other the respondent nos.2 & 3 W.P.5930 2021 depot with a view to substitute them with contract labourers under the mandate of guidelines dated 12.07.2016 and 31.12.2020 issued by the FCI challenged by way of writ petitionsno. 5449 of 2021 act 1970 Challenged vide Writ Petitionno. 6192 2016 writ petition bearing No. 7627 2016 and Writ Petition No. bearing 7241 2016 pending in this Hon ble court) and in addition to above 13 1 2021 e tend nit dated 19.05.2021 for the appointment of contractor and all the proceedings initiated in furtherance thereof and pursuant tender notice no.S&c thee — Such other or and further orders may also be passed in favour of the petitioners and against the respondents as this Hon ble Court may deem fit and proper under the present circumstances of the case.” As is evident from the above the petitioner challenges the transfer of departmental labourers posted at FSD Narayanpur Anant Muzaffarpurand labourers posted at ARDC Jamui Bihar as also the E tender dated 19.05.2021 issued by the Food Corporation of India FCI) Regional Office Patna. On the query made to the learned counsel for the petitioner that as the cause of action pleaded by the petitioner has arisen in Patna this Court would lack territorial jurisdiction for entertaining the present petition the learned counsel for the petitioner submits that the impugned action has been taken by the respondents pursuant to the Guidelines dated 12.07.2016 issued by the FCI and the challenge thereto is pending adjudication before this Court. He further submits that a similar petition challenging the transfer of labourers posted at Assam has been W.P.5930 2021 entertained by this Court in W.P. 5449 2021 titled FCI Handling Workers Union vs. Union Of India & Anr. 4. We are not impressed with the arguments made by learned counsel for the petitioner. Whether the impugned action is in terms of and as a result of the Guidelines dated 12.07.2016 issued by the FCI can only be answered by the Regional Office at Patna. As far as the prayers made in the present petition the cause of action has arisen at Patna i.e. outside the jurisdiction of this court. The reliance of the learned counsel for the petitioner on the order dated 25.05.2021 passed by this Court in W.P.(C) 5449 2021 is also ill founded inasmuch as the said petition was merely directed to be listed along with an already pending petition before this Court without answering the objection of maintainability of the petition before this Court. In fact from a reading of the order it appears that the coordinate Bench in the said petition was also prima facie not convinced with the maintainability of the petition before this Court. In view of the above the present petition is dismissed along with the pending applications leaving it open to the petitioner to agitate its claim before the Court of competent jurisdiction. There shall be no order as to costs. JUNE 14 2021 s NAVIN CHAWLA) VACATION JUDGE VACATION JUDGE W.P.5930 2021

Petitioner was accused under section 22 of narcotic drugs and psychotropic substances act 1985, after investigation, under section 439 of crpc bail was granted: high court of Punjab and Haryana at Chandigarh

A petition was filed Under section 439 of the code of criminal procedure i.e. Special powers of the High Court or Court of Session regarding bail and the High Court and the Court of Sessions have concurrent jurisdiction with regard to granting of bail. However, The petitioner was convicted under section 22 of the Narcotic Drugs and psychotropic substances act, 1985 i.e. where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years and Punishment for contravention in relation to psychotropic substances. This judgment and final order were given in the high court of Punjab and Haryana at Chandigarh on the 6th of July, 2021 in the case Ranjit Singh v/s state of Punjab CRM-M-24616-2021 by the Hon’ble Mr. Justice Jasgurpreet Singh Puri, the proceedings of the court was held in a virtual platform, Mr. Angel Walia represented the petitioner and Mr. Randhir Singh represented the state of Punjab.  The following are the facts of the case, The petitioner was accused under section 22 of the Narcotic Drugs and psychotropic substances act, 1985, and FIRno.40  on 4/03/2021 were filed against him at the police station Samrala, Khanna, Ludhiana. The counsel for the petitioner laid down before the courts that the petitioner while he was traveling from Ludhiana to Amritsar he had been falsely implicated and the reason behind this is because he is not a member of the ruling party. According to the counsel the petitioner has not been involved in any other case previously. Further, the counsel explains the following is in the category of non-commercial quantity consisting of  52.8 grams of spasmo, 26 grams of Lomotil, and 50.4 grams of alprasafe. It has been submitted before the courts that all of the above is the recovery made from the petitioner and this is the reason he has not been hit by the bar contained under section 37 of the NDPS act i.e.  “where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offense and that he is not likely to commit any offense while on bail”.  According to the counsel of the petitioner, even after the completion of the investigation, the petitioner was held in custody since 4/03/2021. Now the according to the state of Punjab, the counsel submitted that the petitioner has been confined under the law and it is legal and the investigation has been complete as well and the custody was since 4/04/2021. According to the respondent, the petitioner has been in possession of three categories of contraband i.e. goods that have been imported or exported illegally. And therefore, regular bail should not be permitted to the petitioner.

on 09 07 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH210 CRM M 24616 2021Date of Decision : July 06 2021RANJIT SINGH .....PetitionerVERSUSSTATE OF PUNJAB.....RespondentCORAM:HON BLE MR. JUSTICE JASGURPREET SINGH PURIPresent :Mr. Angel Walia Advocatefor the petitioner.Mr. Randhir Singh Thind DAG Punjab.Through Video ConferencingJ ASGURPREET SINGH PURI. J.The present petition has been filed under Section 439 of theCode of Criminal Procedure for grant of regular bail to the petitioner incase FIR No.40 dated 4.3.2021 under Section 22 of the Narcotic Drugsand Psychotropic Substances Act 1985 registered at Police StationSamrala Khanna Ludhiana.Learned counsel for the petitioner has submitted that thepetitioner has been falsely implicated in the present case only because ofpolitical enmity as the petitioner does not belong to the ruling party. Hehas submitted that the petitioner is not involved in any other case andwhile he was travelling from Ludhiana to Amritsar the present false casewas planted upon him. He further submitted that the alleged recoveryfrom the petitioner has been shown to be 52.8 grams of Spasmo 26 gramsof Lomotil and 50.4 grams of Alprasafe and all these are of category of on 09 07 CRM M 24616 2021 2 non commercial quantity and therefore he has not been hit by the barcontained under Section 37 of the NDPS Act. Learned counsel hassubmitted that the petitioner is in custody since 4.3.2021 andinvestigation of the case is already complete and no recovery is to bemade from the petitioner. He has submitted that there are no badantecedents of the petitioner as he is not involved in any other case andthe trial would take long time and therefore he may be considered forgrant of regular bail.On the other hand Mr. Thind learned DAG Punjab hassubmitted that it is correct that the petitioner is in custody since 4.3.2021and the investigation of the case is already complete and no recovery is tobe made from the petitioner. However he has further submitted thatsince three categories of contraband were recovered from the petitioner the petitioner may not be considered for grant of regular bail. Although all these recoveries do not fall in the commercial quantity.I have heard the learned counsel for the parties. The custody period of the petitioner is not in dispute. It isalso not in dispute that the investigation of the case is already completeand the challan has already been presented. It is also not disputed by thelearned State counsel that the petitioner is not involved in any other case.So far as the recoveries of different salts are concerned all of themindividually fall in the non commercial quantity. Furthermore it is not the case of the State that in case thepetitioner is released on bail then he may influence any witness or maytamper with evidence or may flee from justice. on 09 07 CRM M 24616 2021 3 In view of the above and considering the totality of thecircumstances of the present case the present petition is allowed. Thepetitioner is ordered to be released on bail on furnishing of bail bondsand surety bonds to the satisfaction of concerned Chief JudicialMagistrate Duty Magistrate.(JASGURPREET SINGH PURI)July 06 2021 JUDGEajay 1Whether speaking reasoned.:Yes NoWhether Reportable.:Yes No

The High Court shall be well within its jurisdiction to quash any criminal proceeding: High Court of Uttarakhand.

The High Court, in the exercise of its inherent power, can quash criminal proceedings or FIR or complaint and Section 320 of Cr.P.C. does not limit or affect the powers under Section 482 of the Code of Criminal Procedure, 1973. A single Judge Bench comprising Hon’ble Justice R.C. Khulbe, in the case of Muntijeer and others Vs. State of Uttarakhand and others (Crl. Misc. Application (C-482) No.929 of 2021), dealt with an issue where the petitioner filed the present application seeking to quash the entire proceedings of Crl. Case No. 918 of 2020, State v. Muntijeer and another, pending in the Court of Judicial Magistrate 1st Haridwar. In the present case, the parties had filed the compounding application to show that they have settled their dispute amicably. However, the counsel for the state opposed the compounding application. The counsel for applicants contended that the offences punishable under Sections 323, 504, 506, 354 IPC were compoundable offences whereas under Sections 147, 148, 452 IPC were non-compoundable offences. Further, the Apex Court had dealt with the consequence of a compromise in regard to non-compoundable offences in the case of B.S.Joshi and others vs. the State of Haryana and another, (2003) 4 SCC 675 and has held- “If for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be a bar to the exercise of a power of quashing.” Moreover, the parties also drew the attention of this Court towards the citation of Gian Singh v. the State of Punjab and another, (2013) 1 SCC (Cri) 160, in which Hon’ble Supreme Court observed that- “the High Court shall be well within its jurisdiction to quash the criminal proceeding”. The court observed that the instant case was fairly covered by the above ruling of the Hon’ble Supreme Court. Thereby the compounding application was allowed and hence the pending proceeding was quashed.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Crl. Misc. ApplicationNo.9221 Compounding ApplicationMuntijeer and Others State of Uttarakhand & Others .…Respondents Mr. Sanjeev Singh learned counsel for the applicants. Mr. Siddhartha Bisht learned B.H. for the State of Uttarakhand. Mr. Niranjan Bhatt learned counsel for private respondents. Hon’ble R.C. Khulbe J. By way of present application moved under Section 482 of Cr.P.C. applicants seek to quash the entire proceedings of Crl. Case No. 9120State v. Muntijeer and another pending in the Court of Judicial Magistrate 1st Haridwar District Haridwar. The parties have filed the above numbered compounding application to show that they have buried their differences and have settled their disputes Learned counsel for the State opposed the compounding application. It is contended by learned counsel for the applicants that the offences punishable under Sections 323 504 506 354 IPC are compoundable offences whereas under Sections 147 148 452 IPC are non compoundable offences. The Apex Court has dealt with consequence of a compromise in regard to non compoundable offences in the case of B.S.Joshi and others vs. State of Haryana and another 4 SCC 675 and has held as below “If for the purpose of securing the ends of justice quashing of FIR becomes necessary Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It is however a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power.” Thus the High Court in exercise of its inherent power can quash criminal proceedings or FIR or complaint and Section 320 of Cr.P.C. does not limit or affect the powers under Section 482 of the Code of Criminal Procedure 1973. 7. The Hon’ble Supreme Court has permitted compounding of such offences in the decision of Nikhil Merchant v. CBI and another 9 SCC 650. 8. Learned counsel for the parties also drew the attention of this Court towards the citation of Gian Singh v. State of Punjab and another 1 SCC 160 in which Hon’ble Supreme Court observed as below: that emerges in exercise of “The position the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz to secure the ends of justice or to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However before exercise of such power the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder rape dacoity etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc cannot provide for any basis for involving such quashing criminal proceedings offences. But overwhelmingly and pre dominatingly civil favour stand on different footing for the purposes of quashing particularly the offences arising from commercial financial mercantile civil partnership or such like transactions or the offences arising out of matrimony relating to dowry etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases High Court may quash criminal proceedings if in its view because of the compromise between the offender and victim the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative the High Court shall be well within its jurisdiction to quash the criminal proceeding.” 9. The instant case is squarely covered by the above ruling of the Hon’ble Supreme Court. The obvious reply to the question posed above is in the affirmative in view of the ruling of Hon’ble Apex Court in Gian Singh’s case

The court must be informed about the death which was caused to any of the party member belonging to that particular case: High Court Of Calcutta

The information about the death party was supposed to be disclosed before the court, this was held in the judgement passed by a single bench judge comprising HON’BLE JUSTICE SUBHASIS DASGUPTA, in the matter Sk. As far Ali & Ors. Vs. Sk. Asgar Ali [CO. No. 1322 of 2021]. The impugned order No. 37 dated 26th March 2021 passed by learned Civil Judge (Senior Division), Additional Court, Hooghly in Misc. Case No. 20 of 2019 arising out of Title Suit No. 370 of 2018, which was directing the petitioner’s parties to furnish information accordingly, where original Title Suit No. 88 of 2014, subsequently transferred and renumbered as Title Suit No. 370 of 2018, had already been dismissed for default by order dated 04.04.2019. Meanwhile connection to the Misc. Case, opposite party Nos. 1 to 6 filed a petition dated 10.12.2020, seeking a recording of abatement order as against the defendant No.7/opposite party No.7, namely Sri Mandan Baul Das, who died on 14.05.2018. The learned advocate appearing for the petitioner’s parties submitted that the Court below had mechanically rejected their prayer for recording the abatement order, as against the defendant No.7/opposite party No.7. Which was contended by Mr Chatterjee that under the behest of an order under Order XXII Rule 10A of the Code of Civil Procedure, 3 petitioners could not be compelled to furnish the names and addresses of legal heirs, left by deceased defendant No.7/opposite party No.7, and it was highly illegal having no sanction of law. But Mr Sounak Bhattacharya, a learned advocate representing the opposite party in reply submitted that there had been collusion in suppressing the death information of deceased defendant No.7, which was easily understood upon visualising the burial certificate, furnished by petitioners party Nos. 1 to 6 in the Court below. It was further contended by Mr Bhattacharya that since the original suit was for declaration and partition, the question of abatement would not necessarily arise, and more so the required death information neither could be 4 furnished by the learned advocate representing the deceased defendant No.7 in the court below nor by the opposite party Nos. 1 to 6/defendants. And also Misc. The case under Order IX Rule 9 of the Code of Civil Procedure for restoration of the suit was filed impleading defendant No.7, who was died. The Order XXII Rule 10A of the Code of Civil Procedure, a duty has been cast upon learned advocate to communicate to Court, the death information of a party in a suit. It was difficult for the opposite plaintiff to gather knowledge of such death information of deceased defendant No.7 without any required death information being filed by the learned pleader appearing for the deceased defendant No.7, who also entered his appearance for defendant No. 1 to 6/petitioners, involved in this case. It was mentioned in the original suit that partition has been sought for in respect of subject property, shown in the schedule, upon declaring a sole name decree, dated 14.12.1982 passed by the learned Subordinate Judge, First Court Chinsurah, Hooghly in Title Suit No. 99 of 1981 and the sole name decree dated 16.12.1981 passed by Civil Judge. The technicalities thus sought to be capitalized by Mr Chatterjee, learned advocate appearing for the petitioners, in the given context of this case, should not be given precedence, giving a contrary look to the provisions contained in Order XXII Rule 10A of the Code of Civil Procedure.

In the High Court at Calcutta Civil Revisional Jurisdication The Hon’ble Justice Subhasis Dasgupta CO. No. 13221 Sk. Asfar Ali & Ors Sk. Asgar Ali For the Petitioners Mr. Bhudeb Chatterjee Adv Mr. Sanjib Kumar Ghosh Adv For the Opposite Party Mr. Sounak Bhattacharya. Adv Subhasis Dasgupta J: The impugned order No. 37 dated 26th March 2021 passed by learned Civil Judge Additional Court Hooghly in Misc Case No. 219 arising out of Title Suit No. 3718 directing the petitioners opposite parties to furnish information regarding the names and addresses of legal heirs of deceased defendant No.7 opposite party No.7 after rejecting the prayer of the petitioners dated 10.12.2020 under 151 of the Code of Civil Procedure for recording the abatement as against defendant No.7 opposite party No.7 who left this world on 14.05.2018 is subject of challenge in this revisional application Original Title Suit No. 88 of 2014 subsequently transferred and renumbered as Title Suit No. 3718 had already been dismissed for default by order dated 04.04.2019. Seeking restoration of the suit opposite party plaintiff registered Misc. Case No. 219 under Order IX Rule 9 of the Code of Civil Procedure In connection with Misc. Case opposite party Nos. 1 to 6 field a petition dated 10.12.2020 seeking recording of abatement order as against the defendant No.7 opposite party No.7 namely Sri Mandan Baul Das who died on 14.05.2018 on the ground that legal heirs of defendant No.7 opposite party No.7 could not be substituted by resorting to the provisions available for substitution within the time provided under the Mr. Bhudeb Chatterjee learned advocate appearing for the petitioners defendants opposite parties submitted that the Court below had mechanically rejected their prayer for recording the abatement order as against the defendant No.7 opposite party No.7 and proceeded thereafter illegally directing petitioners to furnish information regarding the names and addresses of legal heirs of deceased defendant No.7 oppsoite party No.7 It was contended by Mr. Chatterjee that under the behest of an order under Order XXII Rule 10A of the Code of Civil Procedure petitioners could not be compelled to furnish the names and addresses of legal heirs left by deceased defendant No.7 opposite party No.7 and it was highly illegal having no sanction of law. Incidentally Mr. Chatterjee referred the Vakalatnama furnished by the learned advocate appearing in the Court below for deceased defendant No.7 opposite party No.7 and taking recourse to the Vakalatnama further contended that by reason of change of brief the subsequent learned advocate appointed petitioners opposite party Nos. 1 to 6 could not be compelled to furnish the required information as to who are the legal heirs of deceased defendant No.7 opposite party No.7 simply for adhering to the mandate available under Section XXII Rule 10A of the Code of Civil Procedure Mr. Sounak Bhattacharya learned advocate representing the opposite party plaintiff in reply submitted that there had been a collusion in suppressing the death information of deceased defendant No.7 which could be easily understood upon visualising the cremation burial certificate furnished by petitioners opposite party Nos. 1 to 6 in the Court Mr. Bhattacharya contended that petitioners opposite party Nos. 1 to 6 had there definite information as regards the death occurred to deceased defendant No.7 oppsoite party No.7. It was thus further contended by Mr. Bhattacharya that since the original suit was for declaration and partition the question of abatement would not necessarily arise and more so the required death information neither could be furnished by the learned advocate representing the deceased defendant No.7 in the court below nor by the opposite party Nos. 1 to 6 defendants or their learned advocates for taking effective steps as regards the substitution of legal heirs left by deceased defendant No.7 opposite party Upon advancing such submission Mr. Bhattachaya tried to impress upon the Court that death information of deceased defendant No.7 was deliberately suppressed thereby preventing the plaintiff opposite parties from taking appropriate steps simply to avoid future complication Admittedly no death information as against the deceased defendant No.7 opposite party No.7 was the Court below Consequently Misc. Case under Order IX Rule 9 of the Code of Civil Procedure for restoration of the suit was filed impleading defendant No.7 opposite party No.7 who had already left this world With the insertion of Order XXII Rule 10A of the Code of Civil Procedure a duty has been cast upon learned advocate to communicate to Court the death information of a party in a suit. The relevant provisions mentioned hereinabove may be mentioned hereinbelow “10A. Duty of pleader to communicate to Court death of a party. Whenever a pleader appearing for a party to the suit comes to know of the death of that party he shall inform the Court about it and the Court shall thereupon give notice of such death to the other party and for this purpose the contract between the pleader and the deceased party shall be deemed to subsist.” There is neither any ambiguity nor any obscurity contained in the ‘words’ used in Order XXII Rule 10A thereby laying down an express imperative upon the learned advocate appearing for a party to suit to furnish the death information immediately upon knowing the same so that the Court upon such information being furnished give notice of such death information to other party simply to facilitate the requirement of It is quite impossible for the opposite party plaintiff to gather knowledge of such death information of deceased defendant No.7 opposite party No.7 without any required death information being filed by the learned pleader appearing for the deceased defendant No.7 oppsoite party No.7 who also entered his appearance for defendant No. 1 to 6 petitioners involved in this case. In the event of such death information being furnished to the Court the opposite party plaintiff was required to act on account of the death of deceased defendant No.7 who simply for ignorance allowed limitation to run against him for taking appropriate steps against the legal heirs of deceased defendant No.7 Mere change of brief with subsequent appointment of learned advocate in the given context of this case as contended to have taken place would not be sufficient enough to take an exception to the provisions contained under Order XXII Rule 10A of the Code of Civil Upon perusal of the impugned order it appears that deceased defendant No.7 filed his written statement on 19th September 2014 stating purchase of some portion of the suit property along with his three brothers. Without any controversy Mr. Madan Baul Das defendant No.7 left this world whose death information neither could be furnished by the learned advocate representing the deceased defendant No.7 nor by anyone of the defendants having gathered such information at any In the original suit partition has been sought for in respect of subject property shown in the schedule upon declaring a solenama decree dated 14.12.1982 passed by the learned Subordinate Judge First Court Chinsurah Hooghly in Title Suit No. 981 and the solenama decree dated 16.12.1981 passed by Civil Judge 1st Court Chinsurah Hooghly in Title Suit No. 8 of 1981 to be void inoperative concocted and fraudulent For the reasons discussed hereinabove the opposite party plaintiff was prevented by sufficient causes from taking any appropriate steps for substitution as against deceased defendant No.7 oppsoite party No.7 and the learned court below upon consideration of the entire materials available in the case record rightly rejected the prayer for recording the abatement order as against deceased defendant No.7 opposite party No.7 and thereby allowing the petition of opposite party plaintiff with a direction upon the petitioners opposite party Nos.1 to 6 to furnish information regarding names and addresses of legal heirs of deceased defendant No.7 opposite party No.7 The technicalities thus sought to be capitalized by Mr. Chatterjee learned advocate appearing for the petitioners in the given context of this case should not be given precedence giving a contrary look to the provisions contained in Order XXII Rule 10A of the Code of Civil Procedure. For a little bit change in the circumstances the imperative obligation to furnish the death information of deceased defendant No.7 should not be interpreted in a manner other than the purpose actually contemplated under Order XXII Rule 10A of the Code of Civil Procedure The impugned order does not call for any interference The revisional application fails being without any merits and accordingly stands dismissed Urgent certified copy of this order and judgment if applied for be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities (Subhasis Dasgupta J

The petitioners were released on bail after accusation of procuration of a minor girl under Section 366A IPC: High court of Patna

The petitioners were arrested under Section 366A of the Indian Penal Code, “Procuration of a minor girl, whoever, by any means whatso­ever, induces any minor girl under the age of eighteen years to go from any place or to do any act with the intent that such girl maybe, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine”. This is in connection with Chhatapur (Rajeshwari OP) PS Case No. 44 of 2020 dated 23.02.2020. 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 Pradeep Yadav and others versus the state of Bihar criminal miscellaneous No.37123 of 2020, Mr. Kamal Kishore Represented as the advocate for the petitioner and Mr. Md. Arif represented as the additional Public Prosecutor, and it also includes the case of Vipin Yadav versus the state of Bihar criminal miscellaneous No. 37785 of 2020  Mr. Kamal Kishore Represented as the advocate for the petitioner and Ms. Anita represented for the state of Bihar, Mr. Mohan represented the informant in both the cases the proceedings of the court were held via video conference The following are the facts of the case, the petitioners and others were accused of forcibly abducting the minor granddaughter of the informant and without her parents’ consent getting her married to a co-accused named Rahul Yadav. The counsel representing the petitioners held that the granddaughter of the informant came to live with her grandparents (informant) and fell in love with the co-accused and based on her willingness to elope with the co-accused and got married, the petitioners are only co-villagers and that’s how they know Rahul (co-accused) besides that they have no connection to this incident and they have been accused regardless. However, the minor girl has returned and made a statement before the court under section 164 Cr.P.C., she stated that even the petitioners were involved in the abduction which was self-contradictory, she held that the incident took place on 21.02.2020 and was raped by the co-accused and became pregnant two months prior to the day of the incident regarding the same there is no evidence to prove the above. However, no physical abuse allegations against the petitioners, the petitioners have no criminal antecedent. In another statement made by the girl under section 161 Cr.P.C. the girl was seen with the co-accused bringing her on his motorcycle when the police caught them on the way which was on the national highway, therefore based on the circumstance it was clearly a love affair and it is unrealistic that five people would abduct a minor to marry the co-accused, however, the Rahul Yadav is held in custody and therefore the petitioners must not be held for no fault of theirs. The APP submitted that the girl according to her statement accused even the petitioners of being party to the crime. However, it is not controverted about her statement under section 161 Cr.P.C. and also there were no signs of rape according to the medical report examination. The counsel representing the informant submitted that this incident is common and the petitioners due to their dominant power in the village they abducted the girl with the bad intentions she could have also been sold. In both the statements made by the minor girl she has pointed to the petitioners for being party to the abduction and taking her to Nepal. After considering the facts and circumstances of the case the court held that “The petitioners will be released on bail upon furnishing bail bonds of Rs. 25,000 each with two sureties of the like amount each to the learned ACJM, VI, PS Case No. 44 of 2020, subject to the conditions laid down in Section 438(2) Cr.P.C., 1973 (i) that the petitioners and the bailors shall execute the bond and give an undertaking with regard to the good behavior of the petitioners and (ii) that the petitioners shall co-operate with the Court and police/prosecution.”

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.371220 Arising Out of PS. Case No. 44 Year 2020 Thana CHHATAPUR District Supaul Pradeep Yadav Male aged about 24 years Son of Bulbul Yadav. Santosh Yadav Male aged about 28 years Son of Late Shanichar Yadav Both are Resident of Village Gwalpara Ward No. 4 PS Chhatapur District Supaul The State of Bihar ... Petitioner s CRIMINAL MISCELLANEOUS No. 377820 ... Opposite Party s Arising Out of PS. Case No. 44 Year 2020 Thana CHHATAPUR District Supaul 1. Vipin Yadav Male aged about 29 years Son of Mahaseo Yadav. Chandan Yadav Male aged about 30 years Son of Indradeo Yadav Both are resident of Village Gwalpara Ward No. 4 PS Chhatapur District Supaul The State of Bihar ... Petitioner s ... Opposite Party s In CRIMINAL MISCELLANEOUS No. 371220 For the Petitioner s For the State For the Informant In CRIMINAL MISCELLANEOUS No. 377820 For the Petitioner s For the State For the Informant Mr. Kamal Kishore Singh Advocate Ms. Anita Kumari Singh Advocate Mr. Chandra Mohan Jha Advocate Mr. Kamal Kishore Singh Advocate Mr. Md. Arif APP Mr. Chandra Mohan Jha Advocate CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 02 08 2021 The matter has been heard via video conferencing Patna High Court CR. MISC. No.371220 dt.02 08 2021 2. Heard Mr. Kamal Kishore Singh learned counsel for the petitioners in both the cases Mr. Md. Arif learned Additional Public ProsecutorPS Case No. 44 of 2020 dated 23.02.2020 instituted under Section 366A of the Indian Penal 4. The allegation against the petitioners and others is that they had forcibly abducted the minor granddaughter of the informant for getting her married to co accused Rahul Yadav 5. Learned counsel for the petitioners submitted that the grand daughter of the informant who had come to live with her grandparents fell in love with co accused Rahul Yadav and she on her own free will had run away with him and they had also married and because the petitioners are co villagers and were known to Rahul Yadav they have been made accused. It was submitted that the girl has returned and in her statement before the Court under Section 164 of the Code of Criminal Patna High Court CR. MISC. No.371220 dt.02 08 2021 Procedure 1973though she has stated that the petitioners were also involved in her abduction but the story itself is self contradictory. It was submitted that she has stated that the incident took place on 21.02.2020 and she had been raped by Rahul Yadav and became pregnant two months prior to such date. However it was submitted that neither has she told anybody nor there is any evidence of any rape or her being pregnant for such a long period. It was further submitted that in her statement she has also stated that she was forcibly married to Rahul Yadav. Learned counsel submitted that had there been any role of the petitioners the girl would not have admitted that co accused Rahul Yadav had married her and most importantly there is not even a whisper of any wrong act or physical abuse against the petitioners. Learned counsel submitted that from the statement of the girl it is also clear that she was taken to different places and even Nepal and thus it is not believable that while travelling to all these places they would not come across any person or police so as to enable the girl to raise a cry that she was abducted. Further it was contended that the girl having been properly fed and given a place to live is a clear indication that she and Rahul Yadav had married with consent Learned counsel submitted that the petitioners have no other Patna High Court CR. MISC. No.371220 dt.02 08 2021 criminal antecedent. It was further submitted that the girl in her statement under Section 161 of the Code has stated that when Rahul Yadav whom she had married had heard about the present case he was bringing her with him on a motorcycle when the police caught them on the way. This learned counsel submitted is corroborated by the police as they have shown the place of recovery to be the National Highway and both Rahul Yadav and the girl were recovered together. It was submitted that there is no allegation of any misbehaviour or physical assault or abuse against the petitioners. Learned counsel submitted that from the very circumstances of the case it is clear that there was love affair between Rahul Yadav and the girl as it cannot be believed that five persons would just bring a girl and force Rahul Yadav to commit rape on that girl and they themselves would not indulge in the same if at all the purpose was something immoral. Learned counsel further submitted that in such statement she has also stated that she was two months pregnant and had married Rahul Yadav but it was said that it was done under force which clearly is tutored. It was submitted that the main accused Rahul Yadav is in 6. Learned APP from the case diary submitted that the girl has stated that the petitioners were also party to her being Patna High Court CR. MISC. No.371220 dt.02 08 2021 taken to Nepal. However it was not controverted that in her statement under Section 161 of the Code she has stated that when Rahul Yadav heard about the case he was bringing her back on the motorcycle and on the way both of them were caught by the police. Moreover it was not controverted that during medical examination no sign of any rape has been found 7. On a query of the Court as to whether any sign of being pregnant has been found during medical examination it was submitted that the age opined is between 17 19 years and ultrasound was advised but no such report is available in the case 8. Learned counsel for the informant submitted that such incident is common and that because the petitioners were dominant in the village they had abducted with bad intention and the marriage was sham as ultimately she would have been sold for flesh trade. It was further submitted that both in the statement before the police under Section 161 of the Code and before the Court under Section 164 of the Code the petitioners have been said to be among the persons who had taken her to 9. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court Patna High Court CR. MISC. No.371220 dt.02 08 2021 finds force in the submission of learned counsel for the petitioners. From the allegations made and what has come during investigation there are indications that the marriage of the girl to Rahul Yadav who is still in custody may not be a forced one for the reason as has been submitted by learned counsel for the petitioners five persons cannot bring a girl with bad intention to only allow Rahul Yadav to physically abuse the girl without themselves also taking part in the said crime and most importantly if at all the intention was only for immoral purposes there would not have been any occasion to marry which admittedly has been performed between the girl and Rahul Yadav 10. Accordingly in the event of arrest or surrender before the Court below within six weeks from today the petitioners be released on bail upon furnishing bail bonds of Rs 25 000 each with two sureties of the like amount each to the satisfaction of the learned ACJM VI Supaul in ChhatapurPS Case No. 420 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure 1973 and further that the petitioners and the bailors shall execute bond and give undertaking with regard to good behaviour of the petitioners andthat the petitioners shall co operate with the Court and police prosecution. Any violation of Patna High Court CR. MISC. No.371220 dt.02 08 2021 the terms and conditions of the bonds or the undertaking or failure to co operate shall lead to cancellation of their bail bonds 11. 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 12. The petitions stand disposed of in the (Ahsanuddin Amanullah J

Section 67 of CGST Act Empowers Officer to Seize ‘Cash’ during a Search

The Hon’ble High Court of Madhya Pradesh in Smt. Kanishka Matta V. Union of India and Ors. [Writ Petition No. 8204/2020] held that S. 67(2) of the Central Goods and Services Tax Act, 2017 empowers the competent officer to seize ‘cash’ as the same is included within the meaning of the term “things” appearing in Section 67 (2). The division bench comprising of Hon’ble Justices S.C. Shukla and Shailendra Sharma noted that the word “things” keeping in view its dictionary meaning, includes cash/money and it is well settled preposition of law that in interpreting a statute the court must adopt that construction which suppresses the mischief and advances the remedy, it was observed that “This is a rule laid down in Heydon’s case, also known as the rule of purposive construction or mischief rule” It was further observed by the Hon’ble court that “The core issue before this Court is that whether expression “things” covers within its meaning the cash or not. In the considered opinion of this Court, the CGST Act, 2017 has to be seen as a whole and the definition clauses are the keys to unlock the intent and purpose of the various sections and expressions used therein, where the said provisions are put to implementation. Section 2(17) defines “business” and Section 2(31) defines “consideration”. In the considered opinion of this Court a conjoint reading of Section 2(17), 2(31), 2(75) and 67(2) makes it clear that money can also be seized by authorized officer.” The Hon’ble court expounded that “The word “things” appears in Section 67(2) of the CGST Act, 2017 is to be given wide meaning and as per Black’s Law Dictionary, 10th Edition, any subject matter of ownership within the spear of proprietary or valuable right, would come under the definition of “ thing” (page No.1707). Similarly, Wharton’s Law Lexicon at page No.1869 and 1870, the word “thing” has been defined and it includes “money”. It is a cardinal principle of interpretation of statute that unreasonable and inconvenient results are to be avoided, artificially and anomaly to be avoided and most importantly a statute is to be given interpretation which suppresses the mischief and advances the remedy (Interpretation of statute by Maxwel , 12th Edition, page No.199 to 205). The same preposition of law is propounded in Craies on Statute Law, 7th Edition, page No.94).” While examining various judgements of Supreme Court and High Courts it was held by the Hon’ble Court that “Therefore, keeping in view the aforesaid interpretation of the word “thing” money has to be included and it cannot be excluded as prayed by the petitioner from Section 67(2).” Click here to read Judgement The division bench comprising of Hon’ble Justices S.C. Shukla and Shailendra Sharma noted that the word “things” keeping in view its dictionary meaning, includes cash/money and it is well settled preposition of law that in interpreting a statute the court must adopt that construction which suppresses the mischief and advances the remedy, it was observed that “This is a rule laid down in Heydon’s case, also known as the rule of purposive construction or mischief rule” It was further observed by the Hon’ble court that “The core issue before this Court is that whether expression “things” covers within its meaning the cash or not. In the considered opinion of this Court, the CGST Act, 2017 has to be seen as a whole and the definition clauses are the keys to unlock the intent and purpose of the various sections and expressions used therein, where the said provisions are put to implementation. Section 2(17) defines “business” and Section 2(31) defines “consideration”. In the considered opinion of this Court a conjoint reading of Section 2(17), 2(31), 2(75) and 67(2) makes it clear that money can also be seized by authorized officer.” The Hon’ble court expounded that “The word “things” appears in Section 67(2) of the CGST Act, 2017 is to be given wide meaning and as per Black’s Law Dictionary, 10th Edition, any subject matter of ownership within the spear of proprietary or valuable right, would come under the definition of “ thing” (page No.1707). Similarly, Wharton’s Law Lexicon at page No.1869 and 1870, the word “thing” has been defined and it includes “money”. It is a cardinal principle of interpretation of statute that unreasonable and inconvenient results are to be avoided, artificially and anomaly to be avoided and most importantly a statute is to be given interpretation which suppresses the mischief and advances the remedy (Interpretation of statute by Maxwel , 12th Edition, page No.199 to 205). The same preposition of law is propounded in Craies on Statute Law, 7th Edition, page No.94).” While examining various judgements of Supreme Court and High Courts it was held by the Hon’ble Court that “Therefore, keeping in view the aforesaid interpretation of the word “thing” money has to be included and it cannot be excluded as prayed by the petitioner from Section 67(2).” Click here to read Judgement It was further observed by the Hon’ble court that “The core issue before this Court is that whether expression “things” covers within its meaning the cash or not. In the considered opinion of this Court, the CGST Act, 2017 has to be seen as a whole and the definition clauses are the keys to unlock the intent and purpose of the various sections and expressions used therein, where the said provisions are put to implementation. Section 2(17) defines “business” and Section 2(31) defines “consideration”. In the considered opinion of this Court a conjoint reading of Section 2(17), 2(31), 2(75) and 67(2) makes it clear that money can also be seized by authorized officer.” The Hon’ble court expounded that “The word “things” appears in Section 67(2) of the CGST Act, 2017 is to be given wide meaning and as per Black’s Law Dictionary, 10th Edition, any subject matter of ownership within the spear of proprietary or valuable right, would come under the definition of “ thing” (page No.1707). Similarly, Wharton’s Law Lexicon at page No.1869 and 1870, the word “thing” has been defined and it includes “money”. It is a cardinal principle of interpretation of statute that unreasonable and inconvenient results are to be avoided, artificially and anomaly to be avoided and most importantly a statute is to be given interpretation which suppresses the mischief and advances the remedy (Interpretation of statute by Maxwel , 12th Edition, page No.199 to 205). The same preposition of law is propounded in Craies on Statute Law, 7th Edition, page No.94).” While examining various judgements of Supreme Court and High Courts it was held by the Hon’ble Court that “Therefore, keeping in view the aforesaid interpretation of the word “thing” money has to be included and it cannot be excluded as prayed by the petitioner from Section 67(2).” Click here to read Judgement The Hon’ble court expounded that “The word “things” appears in Section 67(2) of the CGST Act, 2017 is to be given wide meaning and as per Black’s Law Dictionary, 10th Edition, any subject matter of ownership within the spear of proprietary or valuable right, would come under the definition of “ thing” (page No.1707). Similarly, Wharton’s Law Lexicon at page No.1869 and 1870, the word “thing” has been defined and it includes “money”. It is a cardinal principle of interpretation of statute that unreasonable and inconvenient results are to be avoided, artificially and anomaly to be avoided and most importantly a statute is to be given interpretation which suppresses the mischief and advances the remedy (Interpretation of statute by Maxwel , 12th Edition, page No.199 to 205). The same preposition of law is propounded in Craies on Statute Law, 7th Edition, page No.94).” While examining various judgements of Supreme Court and High Courts it was held by the Hon’ble Court that “Therefore, keeping in view the aforesaid interpretation of the word “thing” money has to be included and it cannot be excluded as prayed by the petitioner from Section 67(2).” Click here to read Judgement

HIGH COURT OF MADHYA PRADESH BENCH AT INDORE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE Writ Petition No.8204 2020 Smt. Kanishka Matta Vs. Union of India and Others 1 Indore dated 26 08 2020 for the petitioner Shri Vivek Dalal with Shri Lokendra Joshi learned counsel Shri Prasanna Prasad learned counsel for the The petitioner before this Court has filed this present petition for issuance of an appropriate writ order or direction directing the respondent No.4 Assistant Director DGGSTI Indore and respondent No.5 Senior Intelligence Officer DGGSTI Indore to release the cash amounting to Rs.66 43 130 seized from the petitioner vide Panchnama dated 30 05 2020 from the residential premises of the petitioner and her husband. The petitioner is the wife of Shri Sanjay Matta. Shri Sanjay Matta is the Proprietor of the firm functioning in the name and style of M s. S. S. Enterprises. The Firm is in the business of Confectionery and Pan Masala items. The petitioner has further stated that search operation was carried out by respondent No.5 at the business premises as well as residential premises and a Panchnama was drawn on 31 05 2020. The respondents have also seized an amount to the tune of Rs.66 Lakhs as per the Panchnama prepared by them. Shri Vivek Dalal learned counsel for the petitioner has vehemently argued before this Court that the respondent No.5 has got HIGH COURT OF MADHYA PRADESH BENCH AT INDORE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE Writ Petition No.8204 2020 Smt. Kanishka Matta Vs. Union of India and Others 2 no power vested under Section 67(2) of the Central Goods and Services Tax Act 2017 to effect seizure of cash amount from the petitioner nor from her husband. He has stated that the cash cannot be treated as “Document Book or Things” as per the definition under the definition clause of the CGST Act 2017 and therefore the respondents be directed to release the cash which they have seized. It has also been stated that as per the provisions of Section 37 of CGST Act 2017 there is a procedure for filing of returns by the assessee and return could not be filed in time on account of lockdown keeping in view the Covid 19 Pandemic. It has vehemently been argued that the sale proceeds were kept by the petitioner and her husband and the respondents have illegally seized the money without their being any provision of law. It has also been stated that the statement of the petitioner s husband was recorded on 30 05 2020 31 05 2020 01 06 2020 and 02 06 2020 and he was tortured in the name of tax terrorism by the authorities. The basic thrust is on the ground that without their being any provision under the CGST Act 2017 the amount as seized by the respondents could not have been done and the same is violative of Article 14 of the Constitution of India. The another ground raised by the petitioner that the raid on the residential premises of petitioner and her husband is again violative of Article 19 HIGH COURT OF MADHYA PRADESH BENCH AT INDORE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE Writ Petition No.8204 2020 Smt. Kanishka Matta Vs. Union of India and Others 3 and finally a prayer has been made to release the seized cash sale proceeds to the tune of Rs.66 43 130 A reply has been filed in the matter by respondents No.1 to 5 and it has been stated that from the Directorate of Revenue Intelligence a specific input was received that Shri Sanjay Matta is involved in large scale of evasion of GST on Pan Masala. The proper officer under reasonable beliefs that the goods documents things were secreted at the said premises issued a search warrant dated 30 05 2020 and a consequential search was carried out at the residential premises of Shri Sanjay Matta on 30 05 2020 by the Team of Directorate General of GST Intelligence. A Panchnama dated 30 05 2020 was also prepared and the officers seized documents and cash amounting to Rs.66 43 130 . It has been stated that the documents and cash were seized in terms of Section 67(2) of the CGST Act 2017 and the Order of Seizure in Form GST INS 02 dated 30 05 2020 was issued. It has also been stated that Shri Sanjay Matta the husband of the petitioner made a voluntary statement stating categorically that the said cash of Rs.66 43 130 was the sale proceeds of the illegally sold Pan Masala without payment of GST. The present petitioner is certainly not registered with GST Department and the investigation reveals that cash documents seized do not pertain to the applicant. The respondents have stated HIGH COURT OF MADHYA PRADESH BENCH AT INDORE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE Writ Petition No.8204 2020 Smt. Kanishka Matta Vs. Union of India and Others 4 that the petition deserves to be dismissed as the petitioner does not have locus to file the present petition. It has been stated that as per the voluntary statement dated 30 05 2020 the said cash of Rs.66 43 130 was the sale proceeds of illegally sold Pan Masala without payment of GST. The respondents have stated that keeping in view Section 67(2) of the CGST Act 2017 read with definition Clause makes it very clear that the respondents were justified in seizing the amount from the petitioner and the statute empowers them to do so. The respondents have also submitted the Case Diary in a sealed cover before this Court. A rejoinder has been filed in the matter and the stand of the petitioner is that by no stretch of imagination Section 67(2) of the GST Act 2017 empowers the respondents to seize the cash and later on the husband of the petitioner Shri Sanjay Matta has retracted the statement vide affidavit dated 07 06 2020 and in light of his affidavit dated 07 06 2020 the respondents should release the cash forthwith. Heard learned counsel for the parties at length and perused the record including the case diary. The matter is being disposed of at motion hearing stage itself with the consent of the The statement made in the case diary reveals that Shri Sanjay Matta a Pakistani National was involved in illicit supply of Pan Masala of various brands without invoices and without payment of HIGH COURT OF MADHYA PRADESH BENCH AT INDORE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE Writ Petition No.8204 2020 Smt. Kanishka Matta Vs. Union of India and Others 5 applicable GST of the CGST Act read with Section 129 of the CGST Act and Section 130 of CGST Act from six godowns operated by Shri Sanjay Matta and his brother Shri Sandeep Matta as no bills invoices could be produced by them. Unaccounted cash of Rs.66 43 130 was also seized from the residential premises of Shri Sanjay Matta. The case diary also reveals that seizure was done under HIGH COURT OF MADHYA PRADESH BENCH AT INDORE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE Writ Petition No.8204 2020 Smt. Kanishka Matta Vs. Union of India and Others 6 Section 67(2) of the CGST Act 2017 under a reasonable belief that the aforesaid are the proceeds of the illicit supply of goods namely Tobacco and Pan Masala and would be useful for further investigation. Panchnama dated 30 05 2020 31 05 202 and 05 06 2020 were also brought to the notice of this Court. The case diary also reveals that Shri Sanjay Matta in his statement before the officers have stated categorically that the value of the goods sold without any bills and invoices during the period April 2019 to May 2020 would be approximately 40.11 Crores in cash and the GST on the said clandestine clearance works out to Rs.18.77 Crores. There are other persons involved in the matter however as the controversy involved in the present case only relates to the seizure of cash this Court is not referring to the names of the other persons involved in the matter nor in respect of other recoveries and other seizures from other persons The statutory provisions as contained under the Central Goods and Services Tax Act 2017 which are necessary for deciding the present writ petition reads as under: In this Act unless the context otherwise requires. 2(17). “business” includes commerce any manufacture profession vocation adventure wager or any other similar activity whether or not it is for a pecuniary benefit any activity or transaction in connection with or incidental or ancillary to sub clauseHIGH COURT OF MADHYA PRADESH BENCH AT INDORE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE Writ Petition No.8204 2020 Smt. Kanishka Matta Vs. Union of India and Others 7 any activity or transaction in the nature of sub clause whether or not there is volume frequency continuity or regularity of such transaction supply or acquisition of goods including capital goods and services in connection with commencement or closure of business provision by a club association society or any such body of the facilities or benefits to its members admission for a consideration of persons to any premises services supplied by a person as the holder of an office which has been accepted by him in the course or furtherance of his trade profession or vocation activities of a race club including by way of totalisator or a license to book maker or activities of a licensed book maker in such club and any activity or transaction undertaken by the Central Government a State Government or any local authority in which they are engaged as public authorities any payment made or to be made whether in money or otherwise in respect of in response to or for the inducement of the supply of goods or services or both whether by the recipient or by any other person but shall not include any subsidy given by the Central Government or a State Government the monetary value of any act or forbearance in respect of in response to or for the inducement of the supply of goods or services or both whether by the recipient or by any other person but shall not include any subsidy given by the Central Government or a State Government: Provided that a deposit given in respect of the supply of goods or services or both shall not be considered as payment made for such supply unless the supplier applies such deposit as consideration for the said supply 2(31). “consideration” in relation to the supply of goods or services or both includes HIGH COURT OF MADHYA PRADESH BENCH AT INDORE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE Writ Petition No.8204 2020 Smt. Kanishka Matta Vs. Union of India and Others 8 2(75). “money” means the Indian legal tender or any foreign currency cheque promissory note bill of exchange letter of credit draft pay order traveller cheque money order postal or electronic remittance or any other instrument recognised by the Reserve Bank of India when used as a consideration to settle an obligation or exchange with Indian legal tender of another denomination but shall not include any currency that is held for its numismatic value Furnishing details of outward supplies 1) Every registered person other than an Input Service Distributor a non resident taxable person and a person paying tax under the provisions of section 10 or section 51 or section 52 shall furnish electronically in such form and manner as may be prescribed the details of outward supplies of goods or services or both effected during a tax period on or before the tenth day of the month succeeding the said tax period and such details shall be communicated to the recipient of the said supplies within such time and in such manner as may be PROVIDED that the registered person shall not be allowed to furnish the details of outward supplies during the period from the eleventh day to the fifteenth day of the month succeeding the tax period: PROVIDED FURTHER that the Commissioner may for reasons to be recorded in writing by notification extend the time limit for furnishing such details for such class of taxable persons as may be specified therein: PROVIDED ALSO that any extension of time limit notified by the Commissioner of State tax or Commissioner of Union territory tax shall be deemed to be notified by the Commissioner. 2) Every registered person who has been communicated the details under sub section of section 38 or the details pertaining to inward supplies of Input Service Distributor under sub section of section 38 shall either accept or reject the details so communicated on or before the seventeenth day but not before the fifteenth day of the month succeeding the tax period and the details furnished by him under sub section shall stand amended accordingly. 3) Any registered person who has furnished the details under sub section for any tax period and which have remained unmatched under section 42 or section 43 shall upon discovery of any error or omission therein rectify such error or omission in such manner as may be prescribed and shall pay the tax and interest if any in case there is short payment of tax on account of such error or omission in the return to be HIGH COURT OF MADHYA PRADESH BENCH AT INDORE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE Writ Petition No.8204 2020 Smt. Kanishka Matta Vs. Union of India and Others 9 furnished for such tax period: PROVIDED that no rectification of error or omission in respect of the details furnished under sub sectionshall be allowed after furnishing of the return under section 39 for the month of September following the end of the financial year to which such details pertain or furnishing of the relevant annual return whichever is earlier. Explanation : For the purposes of this Chapter the expression “details of outward supplies” shall include details of invoices debit notes credit notes and revised invoices issued in relation to outward supplies made during any tax period Claim of input tax credit and provisional acceptance 1) Every registered person shall subject to such conditions and restrictions as may be prescribed be entitled to take the credit of eligible input tax as self assessed in his return and such amount shall be credited on a provisional basis to his electronic credit ledger. The credit referred to in sub section shall be utilised only for payment of self assessed output tax as per the return referred to in the said sub section. Collection of tax at source 1) Notwithstanding anything to the contrary contained in this Act every electronic commerce operator not being an agent shall collect an amount calculated at such rate not exceeding one per cent. as may be notified by the Government on the recommendations of the Council of the net value of taxable supplies made through it by other suppliers where the consideration with respect to such supplies is to be collected by the operator. Explanation : For the purposes of this sub section the expression “net value of taxable supplies” shall mean the aggregate value of taxable supplies of goods or services or both other than services notified under sub sectionof section 9 made during any month by all registered persons through the operator reduced by the aggregate value of taxable supplies returned to the suppliers during the said month. 2) The power to collect the amount specified in sub section shall be without prejudice to any other mode of recovery from the operator 3) The amount collected under sub sectionshall be paid to the Government by the operator within ten days after the end of the month in which such collection is made in such manner as may be prescribed. 4) Every operator who collects the amount specified in HIGH COURT OF MADHYA PRADESH BENCH AT INDORE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE Writ Petition No.8204 2020 Smt. Kanishka Matta Vs. Union of India and Others 10 sub section shall furnish a statement electronically containing the details of outward supplies of goods or services or both effected through it including the supplies of goods or services or both returned through it and the amount collected under sub sectionduring a month in such form and manner as may be prescribed within ten days after the end of such 5) Every operator who collects the amount specified in sub sectionshall furnish an annual statement electronically containing the details of outward supplies of goods or services or both effected through it including the supplies of goods or services or both returned through it and the amount collected under the said sub section during the financial year in such form and manner as may be prescribed before the thirty first day of December following the end of such financial year. 6) If any operator after furnishing a statement under sub section discovers any omission or incorrect particulars therein other than as a result of scrutiny audit inspection or enforcement activity by the tax authorities he shall rectify such omission or incorrect particulars in the statement to be furnished for the month during which such omission or incorrect particulars are noticed subject to payment of interest as specified in sub sectionof section 50: PROVIDED that no such rectification of any omission or incorrect particulars shall be allowed after the due date for furnishing of statement for the month of September following the end of the financial year or the actual date of furnishing of the relevant annual statement whichever is earlier. 7) The supplier who has supplied the goods or services or both through the operator shall claim credit in his electronic cash ledger of the amount collected and reflected in the statement of the operator furnished under sub section in such manner as may be prescribed. 8) The details of supplies furnished by every operator under sub sectionshall be matched with the corresponding details of outward supplies furnished by the concerned supplier registered under this Act in such manner and within such time as may be prescribed. 9) Where the details of outward supplies furnished by the operator under sub section do not match with the corresponding details furnished by the supplier under section 37 the discrepancy shall be communicated to both persons in such manner and within such time as may be prescribed. 10) The amount in respect of which any discrepancy is communicated under sub sectionand which is not rectified by the supplier in his valid return or the operator in his statement for the month in which discrepancy is communicated shall be added HIGH COURT OF MADHYA PRADESH BENCH AT INDORE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE Writ Petition No.8204 2020 Smt. Kanishka Matta Vs. Union of India and Others 11 to the output tax liability of the said supplier where the value of outward supplies furnished by the operator is more than the value of outward supplies furnished by the supplier in his return for the month succeeding the month in which the discrepancy is communicated in such manner as may be prescribed. 11) The concerned supplier in whose output tax liability any amount has been added under sub sectionshall pay the tax payable in respect of such supply along with interest at the rate specified under sub section of section 50 on the amount so added from the date such tax was due till the date of its payment. 12) Any authority not below the rank of Deputy Commissioner may serve a notice either before or during the course of any proceedings under this Act requiring the operator to furnish such details relating to— supplies of goods or services or both effected through such operator during any period or stock of goods held by the suppliers making supplies through such operator in the godowns or warehouses by whatever name called managed by such operator and declared as additional places of business by such suppliers as may be specified in the notice. 13) Every operator on whom a notice has been served under sub section shall furnish the required information within fifteen working days of the date of service of such notice. 14) Any person who fails to furnish the information required by the notice served under sub section shall without prejudice to any action that may be taken under section 122 be liable to a penalty which may extend to twenty ive thousand rupees. Explanation : For the purposes of this section the expression “concerned supplier” shall mean the supplier of goods or services or both making supplies through the operator Power of inspection search and seizure 2). Where the proper officer not below the rank of Joint Commissioner either pursuant to an inspection carried out under sub section or otherwise has reasons to believe that any goods liable to confiscation or any documents or books or things which in his opinion shall be useful for or relevant to any proceedings under this Act are secreted in any place he may authorise in writing any other officer of central tax to search and seize or may himself search and seize such goods documents or books or things: HIGH COURT OF MADHYA PRADESH BENCH AT INDORE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE Writ Petition No.8204 2020 Smt. Kanishka Matta Vs. Union of India and Others 12 PROVIDED that where it is not practicable to seize any such goods the proper officer or any officer authorised by him may serve on the owner or the custodian of the goods an order that he shall not remove part with or otherwise deal with the goods except with the previous permission of such officer: PROVIDED further that the documents or books or things so seized shall be retained by such officer only for so long as may be necessary for their examination and for any inquiry or proceedings under this Act 75. General provisions relating to determination of tax 1) Where the service of notice or issuance of order is stayed by an order of a court or Appellate Tribunal the period of such stay shall be excluded in computing the period specified in sub sectionsandof section 73 or sub sectionsand 10) of section 74 as the case may be. 2) Where any Appellate Authority or Appellate Tribunal or court concludes that the notice issued under sub sectionof section 74 is not sustainable for the reason that the charges of fraud or any wilful misstatement or suppression of facts to evade tax has not been established against the person to whom the notice was issued the proper officer shall determine the tax payable by such person deeming as if the notice were issued under sub sectionof section 73. 3) Where any order is required to be issued in pursuance of the direction of the Appellate Authority or Appellate Tribunal or a court such order shall be issued within two years from the date of communication of the said direction. 4) An opportunity of hearing shall be granted where a request is received in writing from the person chargeable with tax or penalty or where any adverse decision is contemplated against such person. 5) The proper officer shall if sufficient cause is shown by the person chargeable with tax grant time to the said person and adjourn the hearing for reasons to be recorded in writing: Provided that no such adjournment shall be granted for more than three times to a person during the proceedings. 6) The proper officer in his order shall set out the relevant facts and the basis of his decision. 7) The amount of tax interest and penalty demanded in the order shall not be in excess of the amount specified in the notice and no demand shall be confirmed on the grounds other than the grounds specified in the notice. 8) Where the Appellate Authority or Appellate Tribunal or court modifies the amount of tax determined by the proper officer the amount of interest and penalty shall stand modified accordingly taking into account the amount of tax so modified. HIGH COURT OF MADHYA PRADESH BENCH AT INDORE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE Writ Petition No.8204 2020 Smt. Kanishka Matta Vs. Union of India and Others 13 9) The interest on the tax short paid or not paid shall be payable whether or not specified in the order determining the tax 10) The adjudication proceedings shall be deemed to be concluded if the order is not issued within three years as provided for in sub sectionof section 73 or within five years as provided for in sub sectionof section 74. 11) An issue on which the Appellate Authority or the Appellate Tribunal or the High Court has given its decision which is prejudicial to the interest of revenue in some other proceedings and an appeal to the Appellate Tribunal or the High Court or the Supreme Court against such decision of the Appellate Authority or the Appellate Tribunal or the High Court is pending the period spent between the date of the decision of the Appellate Authority and that of the Appellate Tribunal or the date of decision of the Appellate Tribunal and that of the High Court or the date of the decision of the High Court and that of the Supreme Court shall be excluded in computing the period referred to in sub sectionof section 73 or sub sectionof section 74 where proceedings are initiated by way of issue of a show cause notice under the said sections. 12) Notwithstanding anything contained in section 73 or section 74 where any amount of self assessed tax in accordance with a return furnished under section 39 remains unpaid either wholly or partly or any amount of interest payable on such tax remains unpaid the same shall be recovered under the provisions of section 79. 13) Where any penalty is imposed under section 73 or section 74 no penalty for the same act or omission shall be imposed on the same person under any other provision of this The petitioner s contention is that the word “money” is not included in Section 67(2) of the CGST Act 2017 and therefore once the “money” is not included under Section 67(2) of the CGST Act 2017 the Investigating Agency Department is not competent to seize the This Court has carefully gone through Section 67 of the CGST Act 2017 and the expression used in sub sectionof Section 67 is “confiscation of any documents or books or things which in HIGH COURT OF MADHYA PRADESH BENCH AT INDORE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE Writ Petition No.8204 2020 Smt. Kanishka Matta Vs. Union of India and Others 14 proper officer s opinion shall be useful for or relevant to any proceedings under this Act are secreted in any place”. Thereafter sub sectionhas two provisos and first proviso relates to goods and the second proviso refers to documents or books or things so seized shall be retained The core issue before this Court is that whether expression “things” covers within its meaning the cash or not. In the considered opinion of this Court the CGST Act 2017 has to be seen as a whole and the definition clauses are the keys to unlock the intent and purpose of the various sections and expressions used therein where the said provisions are put to implementation. Section 2(17) defines “business” and Section 2(31) defines “consideration”. In the considered opinion of this Court a conjoint reading of Section 2(17) 2(31) 2(75) and 67(2) makes it clear that money can also be seized by authorized officer. The word “things” appears in Section 67(2) of the CGST Act 2017 is to be given wide meaning and as per Black s Law Dictionary 10th Edition any subject matter of ownership within the spear of proprietary or valuable right would come under the definition of “ thing”6 SCC 456 in paragraph No.12 as held as under: It is well settled that in interpreting a statute the court must adopt that construction which suppresses the mischief and advances the remedy. This is a rule laid down in Heydon s case76 ER 637 : 3 Co Rep 7a] also known as the rule of purposive construction or mischief rule.” Therefore keeping in view the aforesaid interpretation of the word “thing” money has to be included and it cannot be excluded as prayed by the petitioner from Section 67(2). The present case is at the stage of search and seizure. A search has been carried out and proceedings are going on. A Division Bench of this Court in the case of Sumedha Dutta & Another Vs. The Union of India & Another in paragraphs No.9 to 12 has held as under: “9. The Hon ble Apex Court in the case of Director General of Income Tax & Others v s Spacewood Furnishers Pvt. Ltd & Others reported in 2015 374) ITR 595has dealt with the scope of interference by the High Court in the matter of search and seizure. The Apex Court has held that findings with regard to satisfaction touching upon sufficiency and adequacy of reasons and authenticity and HIGH COURT OF MADHYA PRADESH BENCH AT INDORE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE Writ Petition No.8204 2020 Smt. Kanishka Matta Vs. Union of India and Others 16 acceptability of information on which satisfaction reached is not permissible in writ jurisdiction. The scope of interference has been dealt with in depth by the Apex Court. 10. The Apex Court in the case of Dr. Pratap Singh & Another v s Director of Enforcement & Others reported in AIR 1985 SC 989 has held that illegality if any does not vitiate the evidence collected during the search. 11. The Orissa High Court in the case of Aditya Narayan Mahasupakar v s Chief Commissioner of Income Tax & Others reported in 2017 ITR 131 was dealing with the issue of search and seizure with specific reference to warrant of authorization and it has been held that the High Court should not go into the sufficiency and insufficiency of the ground which induce the Income Tax Officer to arrive at a conclusion to carry out search and seizure operation. 12. The scope of interference at this stage is very limited and the Income Tax Act 1961 provides a complete mechanism which has been followed after the search and seizure operation has been carried out. Even if it is presumed for a moment that warrant relating to search and seizure was not proper and there was some defect in it the material collected during the search and seizure cannot be brushed aside on this count alone. The Income Tax Act 1961 provides for a detailed procedure that has to be followed and this Court in the present writ petition does not find any reason to quash the entire search and seizure operation as prayed by the petitioners in the relief clause. Accordingly the present writ petition stands dismissed.” The Division Bench of this Court was dealing with a search a seizure case and the writ petition was filed at the initial stage only. Though it was a case under the Income Tax Act 1961 however this Court has declined to interfere in the matter of search and seizure by way of judicial review. Much has been argued by learned counsel for the petitioner in respect of “confessional statements” and the fact that the husband of the petitioner has retracted at a later stage. In the case of Surjeet Singh Chhabra Vs. Union of India reported in 1997E.L.T. 646 the Hon ble Supreme Court has held that HIGH COURT OF MADHYA PRADESH BENCH AT INDORE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE Writ Petition No.8204 2020 Smt. Kanishka Matta Vs. Union of India and Others 17 “confessional statements” made before Customs Officer though retracted within six days is an admission and binding since Custom Officers are not Police Officers. In the present case also the statements were made confessing the guilt by the husband of the petitioner and later on he has retracted from that statement as stated in the writ petition and therefore in light of the Hon ble Supreme Court s judgment no relief can be granted in the present writ petition on the basis of aforesaid ground keeping in view the judgment of Hon ble Supreme Court. A Division Bench of this Court in the case of R. S. Company Vs. Commissioner of Central Excise reported in 2017 351) E.L.T. 264has dealt with “confessional statements” and decided the matter in favour of the revenue and therefore the ground raised in the present petition that the husband of the petitioner retracted the confessional statement does not help the petitioner nor her husband in any manner. Learned counsel for the petitioner has placed reliance upon a judgment delivered in the case of Vinod Solanki Vs. Union of India and Another reported in 16 SCC 537. Heavy reliance has been placed in paragraph No.23 and the same reads as under: “22. It is a trite law that evidences brought on record by way of confession which stood retracted must be substantially corroborated by other independent and cogent evidences which would lend adequate assurance to the court that it may seek to rely thereupon. We are not oblivious of some decisions of this Court wherein reliance has been placed for supporting such contention but we must also notice that in some of the cases HIGH COURT OF MADHYA PRADESH BENCH AT INDORE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE Writ Petition No.8204 2020 Smt. Kanishka Matta Vs. Union of India and Others 18 retracted confession has been used as a piece of corroborative evidence and not as the evidence on the basis whereof alone a judgment of conviction and sentence has been recorded. {See Pon Adithan v. Deputy Director Narcotics Control Bureau 1999) 6 SCC 1 : 1999 SCC1051}” The aforesaid case was a case under the Foreign Exchange Regulation Act 1973 and the Hon ble Apex Court has held that evidence brought on record by way of confession which stood retracted must be substantially corroborated by other independent and cogent evidence which would lend adequate assurance to the Court that it may seek to rely thereupon. In the present case the authorities are at the stage of investigation. The evidence is being collected and and therefore at this stage the judgment relied upon by learned counsel for the petitioner is of no help. Resultantly keeping in view the totality of the circumstances of the case the material available in the case diary and also keeping in view Section 67(2) of the CGST Act 2017 this Court is of the opinion that the authorities have rightly seized the amount from the husband of the petitioner and unless and until the investigation is carried out and the matter is finally adjudicated the question of releasing the amount does not arise. The writ petition is dismissed Certified copy as per rules. S. C. SHARMA J U D G E J U D G E

Hon’ble High Court of Allahabad refused to grant permission to hold Muharram procession

The complete prohibition of practices that are essential to our religions is an extraordinary measure, it is very much in proportion to the unprecedented situation we are faced with, owing to the pandemic. The right to practise and propagate religion has been made subject to public order, morality and health, even under the Constitution of India. Adoption of safe practices is needed to win over the health crisis held by Hon’ble Justice Shashi Kant Gupta and Hon’ble Justice Shamim Ahmed in Roshan Khan & Ors. V. State of U.P [PIL No. 840 of 2020]. The facts relate to leading PIL is that petitioners seek to challenge the Government Orders dated 10.08.2020 and 23.08.2020 passed by the State Government, in so far as they prohibit the petitioners and members of their community, from taking out the Moharram Processions, and further seek the issuance of a direction to the Respondent Authorities to permit them to perform religious mourning rituals connected with Moharram, during the period of ten days i.e. up to 30.08.2020, amid the pandemic restrictions in the State of Uttar Pradesh. Hon’ble High Court at Allahabad refused to grant permission to hold the Tazia procession. They observed that Tazias there is no doubt that the burial of the Taziyas at the burial ground is a solemn and important part of the custom of Muharram. However, it is necessary to note that every locality has Taziyas, besides various individual families, all of whom have to get to the burial ground since the burial of Taziyas cannot be deputed but has to be done personally. There is no mechanism fathomable, by the means of which it can be ensured that all such persons be permitted to take the Taziyas to the burial ground in a single day while avoiding the risk of transmission of the contagion or following basic rules of social distancing, which are an absolute necessity in these unprecedented times. Another important aspect of the matter is that no restriction can be placed only on certain groups or individuals while permitting the others since that would clearly amount to forming a class within a class, which would be arbitrary and discriminatory.

Court No. 32 AFR Order reserved on 28.08.2020 Order delivered on 29.08.2020 Case : PUBLIC INTEREST LITIGATIONNo. 8420 Petitioner : Roshan Khan And 2 Others Respondent : State Of U.P. And 4 Others Counsel for Petitioner : M J Akhtar Imran Khan Viquar Mehdi ZaidiNo. 8420 Petitioner: Japhar Abbas Union Of India And 2 Others Counsel for Petitioner: Sayyed Kashif Abbas Rizvi Counsel for Respondent: A.S.G.I. A.N.Rai C.S.C Case : PUBLIC INTEREST LITIGATIONNo. 8420 Mehdi Principal Secretary And 2 Others Counsel for Petitioner: Mashhood Abbas Sayyed Kashif Abbas Rizvi Counsel for Respondent : C.S.C Case: PUBLIC INTEREST LITIGATIONNo. 8420 Petitioner: Syed Shabbir Shaukat Abdi Alias Shaukat Bharti And 3 Others State Of U.P And 3 Others Counsel for Petitioner: Charlie Prakash Kamal Counsel for Respondent: C.S.C Hon ble Shashi Kant Gupta J Hon ble Shamim Ahmed J Delivered by Hon’ble Shashi Kant Gupta J Since the controversy raised in all the aforesaid Writ Petitions is identical they are being decided by a common order treating Public Interest Litigationas the leading case 2. In sum and substance the Petitioners seek to challenge the Government Orders dated 10.08.2020 and 23.08.2020 passed by the State Government in so far as they prohibit the petitioners and members of their community from taking out the Moharram Processions and further seek the issuance of a direction to the Respondent Authorities to permit them to perform religious mourning rituals practice connected with Moharram during the period of ten days i.e. up to 30.08.2020 amid the pandemic restrictions in the State of Uttar Pradesh 3. The main thrust of the argument of the learned counsel for the petitioners is that Government Orders issued by State of Uttar Pradesh dated 10.08.2020 and 23.08.2020 are discriminatory in nature insofar as they provide for a complete ban in taking out the Moharram processions. It has been further submitted that such guidelines are discriminatory targeting only one community in particular. In support of his contention he has referred to the Guidelines dated 29.07.2020 issued by the Government of India Ministry of Home Affairs as well as Government Orders issued by the State Government dated 10.08.2020 as well as 23.08.2020. Relevant portions of Government Orders dated 10.08.2020 and 23.08.2020 are quoted herein below Guidelines For Phased Re openingOrder No. 40 3 2020 DM 1(A) dated 29th July 2020 1. Activities Permitted during Unlock 3 period outside the Containment Zones. In Areas outside the Containment Zones All activities will be permitted except the following i. … … v. Social political sports entertainment academic cultural religious functions and other large congregations. … … ... 5. States UTs based on their assessment of the situations may prohibit certain activities outside the containment zones or impose such restrictions as deemed necessary. … … सेवा मे Government Order dated 10.08.2020 समस्त जि(cid:10)लाधि(cid:13)कारी वरिरष्ठ पुलिलस अ(cid:13)ीक्षक पुलिलस अ(cid:13)ीक्षक प्रधितलिलपिप समस्तउ०प्र०। समस्त मण्डलायुक्त पुलिलस महापिनरीक्षक पुलिलस उप उ०प्र०। अपर पुलिलस महापिनदेशक कानून एवं व्यवस्था अभि.सूचना सुरक्षा रेलवे उ०प्र०। पुलिलस कपिमश्नर लखनऊ गौतमबुद्ध नगर। समस्त डी०आर०एम० रेलवे उ०प्र०। प्रबन्(cid:13) पिनदेशक उ०प्र० राज्य सड़क परिरवहन पिनगम पुलिलस महापिनदेशक उत्तर प्रदेश लखनऊ। सूचनाथ<ः अपर मुख्य सधिचव मा० मुख्यमंत्री2005 लखनऊः पिदनांक 10 अगस्त 2020 माह अगस्त 2020 में पड़ने वाले त्योहार यथामें अस्थिस्थरता फैलाने वाले व्यपिक्तयों पर सतक दृपिष्ट रखने की आवश्यकता है। इस अवधि(cid:13) मे असामाजि(cid:10)क तत्वों द्वारा कानून व्यवस्था को .ंग करने का प्रयास पिकयापिनदेशक उ०प्र० राज्य सड़क परिरवहन पिनगम लखनऊ। पुलिलस महापिनदेशक उत्तर प्रदेश लखनऊ। सूचनाथ< अपर मुख्य सधिचव मा० मुख्यमंत्री उत्तर प्रदेश शासन लखनऊ। स्टाफ आपिफसर मुख्य सधिचव उत्तर प्रदेश शासन लखनऊ। प्रेषकः गृह पिव.ाग उत्तर प्रदेश शासन लखनऊ। संख्या 7K VI 7K VI 7K VI के छः सापिनप्र 2020 लखनऊःपिदनांक 23 अगस्त कृपया माह अगस्त 2020 मे पड़ने वाले त्यौहारो को गृह मंत्रालय .ारत सरकार की कोपिवड़ 19 की गाइड लाइन्स का पालन करते हुये सादगी से मनाये2005 ) 2005 पिदनांक 10 अगस्त 2020 का संद.< ग्रहण करने का कष्ट करे जि(cid:10)सके द्वारा माह अगस्त मे पड़ने वाले त्यौहारो पर कोई .ीमे पिवस्तृत पिदशा पिनदZश पिनग<त पिकये गये है। 2 उक्त के क्रम मे वत<मान परिरस्थिस्थधितयों के दृपिष्टगत प्रदेश के स.ीमे .ारत सरकार नई पिदल्ली एवं उत्तर प्रेदश शासन द्वारा समय समय पर पिनग<त पिनदZशो के आलोक मे असामाजि(cid:10)क तत्वो आतंकवादी एवं समा(cid:10) मे अस्थिस्थरता फैलाने वाले व्यपिक्तयों पर सत<क दृपिष्ट रखने की आवश्यकता है। 3 उक्त के दृपिष्टगत आगामी अवधि(cid:13) मे असामाजि(cid:10)क तत्वो द्वारा कानून व्यवस्था एवं सम्प्रदाधियक सौहाद< को .ंग करने का प्रयास पिकयेvide its judgment dated 29.07.2020 had dismissed the writ petition wherein a relief was sought for relaxing the guidelines for the festival of Eid ul Adha He further referred to the decision of the Hon’ble Apex Court in the case of Odisha Vikash Parishad Vs. Union 1 of India and others wherein in paragraph no. 9 of the judgment the Hon’ble Apex Court has observed as “(9) The bare minimum number of people shall be allowed by the Committee to participate in the rituals and in the Rath Yatra. We take note of the fact that the State of Orissa has a good record of having controlled the pandemic with a very little loss of life We see no reason why the same attitude of care and caution should not be applied to the Rath Yatra.” 8. Heard Mr. V.M. Zaidi Senior Advocate Mr. S.F.A Naqvi Senior Advocate Mr. S.K.A. Rizvi Mr. K.K. Roy learned counsels for the petitioners Mr. S.P. Singh learned Addl. Solicitor General of India assisted by Mr A.N. Rai Counsel for the Union of India Mr. Ramanand Pandey and learned Additional Chief Standing Counsel appearing on behalf of the State and perused the material available on record particularly Notification dated 29.07.2020 issued by Central Government and Notification dated 10.08.2020 and 23.08.2020 issued by the State Government 9. It is notable that earlier a writ petition filed by Syed Kalbe Jawad i.e. Writ PetitionNo. 9220 1 before the Apex Court which was dismissed as withdrawn with liberty to approach the Allahabad High Court on 27.08.2020 and no relief was granted by the Apex Court in the aforesaid matter 10. That in view of the aforesaid contentions the issues that arise for determination before this Court are: 1) Whether the impugned Government Orders are arbitrary and discriminatory inasmuch as they seek to target a particular community 2) Whether the complete prohibition on carrying out processions or Taziyas on 30.08.2020 violates the Fundamental Right to practice and profess religion guaranteed under Part III of the Constitution of India and whether the rituals ought to be permitted by imposition of reasonable restrictions instead 3) Whether in view of the prevalent situation of the pandemic the imposition of complete prohibition from carrying out processions or Taziyas on 30.08.2020 is reasonable and justified 1 11. With regard to the first issue it may be noted that the main thrust of the argument of the learned counsel for the petitioners has been that restrictions imposed by the State Government are discriminatory in nature and only one community has been targeted in the aforesaid Government Order. This argument advanced by the learned counsel for the petitioner has no legs to stand on and appears to be patently misconceived 12. A bare perusal of the Notifications dated 10.08.2020 and 23.08.2020 issued by the State Government clearly indicates that the same yardstick has been adopted for all religious communities and they have been restricted from carrying on any processions or Jhankis or activities that have a danger of large congregations that may lead to a spread of the pandemic Covid 19. Regard may be had to Clause of the Notification dated 10.08.2020 that clearly indicates that no processions or Jhankis have been permitted during the Janmastami festival. Similarly Clause of the said Notification also indicates that 1 during the Festival for Ganesh Chaturthi too the Hindu community has been prohibited from erecting any Pooja Pandals and from installing any statues idols. Likewise the Muslim community has been prohibited from taking out processions Tazias during Moharram. 13. Thus it is clear that in view of controlling the spread of Covid 19 the State Government has imposed a complete prohibition on all religion activities that may involve a large conglomeration of people across communities and as such the government orders are not discriminatory nor do they target any Community in 14. Since the Second and the Third issues are interrelated they are being dealt with together. The contention of the learned counsel for the petitioners is that the total prohibition imposed on the processions and carrying out Tazias is completely arbitrary especially when reasonable restrictions could easily be imposed keeping in mind the Guidelines issued by the Government for prevention of 1 spread of Covid 19. It is therefore accepted that with the prevalent rate of transmission in Uttar Pradesh large processions cannot be permitted and certain restrictions are necessary for controlling the spread of the pandemic 15. It has further been sought to be urged that even the Hon’ble Apex Court had allowed the devotees to access the place of worship and permitted the Annual Chariot processionof Jagganath Temple Puri and further permitted to offer Paryushan prayer in three Jain Temples in Mumbai then the petitioners too must be permitted to carry out procession during Moharram. 16. In this regard it may be noted that the Apex Court had not passed any general directions but the permission to carry out the Annual Chariot Procession pertained to a specific place Puri and only from one point to another. Further the intensity of Covid 19 spread in Orissa was also duly noted by the Hon’ble Apex Court while granting the permission. 1 17. However the present case is clearly distinguishable from the aforesaid cases since it pertains to the entire State of Uttar Pradesh and is not confined to one or a few districts. In this regard it may be noted that it would be discriminatory to grant permission to certain districts while prohibiting the others. Further the intensity of the spread of the contagion in the State is rising at an alarming rate. 18. That we have also given serious thought to working out some mechanism in order to permit the processions for Taziyas burials while imposing certain restrictions However no such workable mechanism could be suggested even by the Counsels for the Petitioners. 19. It may be noted that Taziyas are a replica of the tomb of Husain the martyred grandson of Prophet Muhammad and the same is taken to be buried to a burial ground Karbala) by innumerable groups as well as by individuals on the 10th day of the Muharram or the day of Ashura. It is also a custom that any person who makes a 1 Taziya must take it himself and bury it at the designated burial ground. Many individuals even seek to bury the Taziyas as a fulfilment of their Vows. 20. Therefore there is no doubt that the burial of the Taziyas at the burial ground is a solemn and important part of custom of Muharram. However it is necessary to note that every locality colony has Taziyas besides various individual families all of whom have to get to the burial ground since the burial of Taziyas cannot be deputed but has to be done personally. There is no mechanism fathomable by the means of which it can be ensured that all such persons be permitted to take the Taziyas to the burial ground in a single day while avoiding the risk of transmission of the contagion or following basic rules of social distancing which are an absolute necessity in these unprecedented times. Another important aspect of the matter is that no restriction can be placed only on certain groups or individuals while permitting the others since that would clearly amount to 1 forming a class within a class which would be arbitrary 21. Further at this juncture regard may be had to the intensity of Covid 19 transmission in the State of Uttar Pradesh which is alarmingly high. It may be noted that the Uttar Pradesh is the most populated State in the Country and is at the Stage of Community Transmission on account of which it has quicky reached the 4th spot amongst the States in the number of active cases with each passing day the highest number of cases being reported. Further this Court in P.I.L. No. 5720 while taking cognizance of the rise in intensity of the rise of Covid 19 cases across the state directed the State Government vide order dated 25.08.2020 to present an action plan to contain the contagion. The Court also observed that any step lesser than a lock down would be of no help. 22. Therefore although the complete prohibition of practices which are essential to our religions is an 1 extraordinary measure it is very much in proportion to the unprecedented situation we are faced with owing to the pandemic. The right to practise and propagate religion has been made subject to public order morality and health even under the Constitution of India. 23. The Pandemic is spreading like wild fire despite harsh lockdowns. We are standing naked at the shore and don’t know when the huge wave of Corona may sweep us into the deep sea. We really don’t know what tomorrow holds. Adoption of safe practices are needed to win over the health crisis. We need to understand the Art of living with the Corona Virus. 24. Therefore it is with a heavy heart that we hold that in these testing times it is not possible to lift the prohibition by providing any guidelines for regulating the mourning rituals practice connected with the 10th day of Moharram We must hope and trust that God would perceive our restraint in our customary practices not as a slight but as an act of compassion for our brothers and sisters and give 1 us the opportunity to celebrate all festivals with greater faith and fervour in future. It is only together with co operation understanding and support we as ‘One Nation’ can emerge stronger from these treacherous times and overcome this season of darkness 25. In view of the above we do not see justification to issue any directions in the matter. The present Public Interest Litigation as well as Public Interest Litigation Nos. 841 of 2020 842 of 2020 and 848 of 2020 are accordingly dismissed Order Date: 29.8.2020 2